Edwards v. Social Security Administration
OPINION AND ORDER by Magistrate Judge Kimberly E. West reversing and remanding the decision of the ALJ.(sjr, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RENEE D. EDWARDS,
NANCY A. BERRYHILL, Acting
Commissioner of Social
Case No. CIV-16-284-KEW
OPINION AND ORDER
Plaintiff Renee D. Edwards (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.
appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
Commissioner’s decision should be and is REVERSED and the case is
REMANDED to Defendant for further proceedings.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the
“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment. . .”
42 U.S.C. § 423(d)(1)(A).
A claimant is disabled under the Social
impairments are of such severity that he is not only unable to do
his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
Social Security regulations implement a five-step
sequential process to evaluate a disability claim.
See, 20 C.F.R.
§§ 404.1520, 416.920.1
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
This Court’s review is limited to
first, whether the decision was supported by
Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C.F.R. §§
404.1510, 416.910. Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), disability benefits are denied. At step three, the
claimant’s impairment is compared with certain impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work.
If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).
standards were applied.
Hawkins v. Chater, 113 F.3d 1162, 1164
(10th Cir. 1997)(citation omitted). The term “substantial evidence”
has been interpreted by the United States Supreme Court to require
“more than a mere scintilla.
It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
court may not re-weigh the evidence nor substitute its discretion
for that of the agency.
Casias v. Secretary of Health & Human
Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the court
must review the record as a whole, and the “substantiality of the
evidence must take into account whatever in the record fairly
detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951); see also, Casias, 933 F.2d at 800-01.
Claimant was 44 years old at the time of the ALJ’s decision.
Claimant completed her high school education and three years of
Claimant also completed her insurance license training.
Claimant has worked in the past as a insurance specialist, insurance
agent, and retail manager.
Claimant alleges an inability to work
cyclical vomiting syndrome, fibromyalgia, depression, and syncope.
On March 28, 2012, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C. § 401, et seq.) and
for supplemental security income under Title XVI (42 U.S.C. § 1381,
et seq.) of the Social Security Act.
Claimant’s applications were
denied initially and upon reconsideration. On October 30, 2014, an
administrative hearing was held before Administrative Law Judge
(“ALJ”) James Bentley in McAlester, Oklahoma.
By decision dated
December 30, 2014, the ALJ denied Claimant’s request for benefits.
The Appeals Council denied review of the ALJ’s decision on March
As a result, the decision of the ALJ represents the
Commissioner’s final decision for purposes of further appeal.
C.F.R. §§ 404.981, 416.1481.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential
He determined that while Claimant suffered from severe
impairments, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform light work with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
perform a proper analysis at steps four and five; (2) failing to
properly evaluate the medical and non-medical source evidence; and
(3) failing to perform a proper credibility determination.
Evaluation at Steps Four and Five
In his decision, the ALJ found Claimant suffered from the
severe impairment of cyclical vomiting syndrome, irritable bowel
syndrome, fibromyalgia, and syncope. (Tr. 22). The ALJ determined
Claimant retained the RFC to perform light work except that she
could perform simple and somewhat more detailed tasks with routine
supervision; must avoid even moderate exposure to dust, fumes,
odors, and poorly ventilated areas; must avoid unprotected heights
and dangerous moving machinery; and could not climb ladders, ropes,
After consultation with a vocational
expert, the ALJ found Claimant could perform the representative jobs
of furniture rental clerk, cashier II, and electrical accessory
assembler, all of which he found existed in sufficient numbers in
the regional and national economies.
As a result, the
ALJ determined Claimant was not disabled from November 1, 2009
through the date of the decision.
Claimant contends the ALJ failed to address her ability to
interact with the public in the RFC.
At step three, the ALJ
indicated Claimant had a mild limitation in social functioning.
(Tr. 23). Dr. Edith King, a consultative psychologist, agreed with
The finding was further supported by
consultative mental health professional Dr. Caren Phelan.
Claimant refers to the medical source statement provided by
Dr. Phelan on June 1, 2011 for what it does not state.
contends the expert failed to address working with the public,
which is a requirement of two of the three representative jobs
identified by the vocational expert which Claimant could perform.
Dr. Phelan clearly indicates on the assessment form that Claimant
is “not significantly limited” in the area of “the ability to
interact appropriately with the general public.”
ALJ is not obligated to include all of the areas where Claimant is
not limited in the RFC.
“[R]esidual functional capacity consists of those activities
that a claimant can still perform on a regular and continuing basis
despite his or her physical limitations.”
F.3d 903, 906 n. 2 (10th Cir. 2001).
White v. Barnhart, 287
The record does not support
a limitation in the area of working with the public and, therefore,
the ALJ was not obligated to include any limitation in that area in
Claimant also argues that the job of electrical accessory
assembler did not exist in sufficient numbers in Oklahoma.
Court will not address this issue since two other jobs were
identified which the vocational expert testified Claimant could
Evaluation of Medical and Non-Medical Evidence
Claimant asserts the ALJ failed to properly evaluate certain
Dr. Coriane T. Alvarez-Sanders performed a
mental status evaluation on Claimant on May 17, 2011.
Claimant scored a 27/30 on the
Folstein Mini-Mental State Exam-2, Blue Form Version, which Dr.
Alvarez-Sanders related indicated in the below average range with
a t-score of 45.
She also found Claimant to have below
All other cognitive and judgment findings
Dr. Alvarez-Sanders diagnosed Claimant with Major
Depressive Disorder, Single Episode, Severe Without Psychotic
Claimant’s prognosis was “guarded” that she could maintain stable
full time employment due to her severe symptoms of depression.
The ALJ gave the opinion “little weight” because it was “vague
and imprecise as to how the claimant’s reported symptoms of
depression affect her ability to perform work-like tasks.
also inconsistent with the lack of treatment from a mental health
specialist during the pertinent period at issue.”
Some of the findings in the opinion are directly
relatable to work functions such as below average concentration.
Moreover, the Folstein Mini-Mental Examination is utilized to
abilities and functions.
testing as well.
Claimant tested below average on this
The ALJ appears to contend that the
absence of a specific medical source statement which details workrelated impairments somehow renders Dr. Alvarez-Sanders’ opinion
incomplete or “vague.”
The regulations expressly state that “the
absence of such a statement in a consultative examination report
will not make the report incomplete.” 20 C.F.R. § 404.1519n(c)(6).
The ALJ also reduced the weight given to the report because of
the lack of treatment.
While the ALJ may consider the treatment
record of Claimant, rejecting an opinion based upon objective
testing and observation is counterintuitive.
On remand, the ALJ
shall consider the specific findings of Dr. Alvarez-Sanders which
de Boer C, Mattace-Raso F, van der Steen J, et al; Mini-Mental
State Examination subscores indicate visuomotor deficits in Alzheimer's
disease patients: A cross-sectional study in a Dutch population. Geriatr
Gerontol Int. 2013 Nov 15. doi: 10.1111/ggi.12183.
are translatable to the work context.
Claimant makes a similar argument pertaining to the opinion of
Dr. Jay Johnson and Dr. V. Sridhar.
Dr. Johnson offered a rather
demonstrated he was a treating physician and that Claimant suffered
therefore, “temporarily and totally disabled.”
Sridhar also offered a brief letter dated September of 2007 which
stated Claimant was diagnosed with cyclical vomiting syndrome and
that “she would have to stay home from work and or other activities
from 1 to 5 days.”
The ALJ gave the opinions “little weight” because they were
dated prior to Claimant’s alleged onset date and, therefore, do not
reflect Claimant’s functional status and limitations during the
He also found the requirement for Claimant to
stay home 1 to 5 days was belied by her earnings record.
This Court agrees with the ALJ that Dr. Sridhar’s opinion is
somewhat minimized because of Claimant’s earnings during most of
As for Dr. Johnson’s opinion, medical opinions outside of
the period to be adjudicated are relevant to Claimant’s cumulative
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th
While the finding of temporary total disability is an
finding and any associated limitations should be considered by the
ALJ on remand.
consideration to the third party statement from Claimant’s friend,
Stacy Jackson. (Tr. 211-18). Nothing appears in the ALJ’s opinion
concerning whether this statement was reviewed.
upon the catch-all phrase used by the ALJ that he considered the
On remand, the ALJ shall give this third party
statement express consideration, especially on the issue of whether
the statement bears either positively or negatively upon Claimant‘s
Claimant also takes issue with the ALJ giving “substantial
weight” to the opinions of two state agency medical consultants.
She appears to base this challenge on the fact the ALJ
cited to duplicate records in his decision.
Although the ALJ’s
explanation for relying upon these opinions is rather rote, it is
not sufficiently vague to remand on this basis.
The ALJ found Claimant’s testimony to be “partially credible”,
contending Claimant has some limitations but not to the extent to
which she testified.
This Court agrees with Claimant that the
rejection of the testimony concerning activities of daily living on
the basis that they have not been objectively verified to a
reasonable degree of certainty misstates the proper evaluative
He also attempts to attribute any limitations in
activities of daily living to “other reasons” without specifying
the nature of these alternative bases.
The ALJ also cites to
inconsistencies in the testimony, acknowledging that they may not
This type of “gotcha” rejection of subjective
testimony cannot support a credibility finding.
It is well-established that “findings as to credibility should
be closely and affirmatively linked to substantial evidence and not
just a conclusion in the guise of findings.”
F.3d 387, 391 (10th Cir. 1995).
Kepler v. Chater, 68
“Credibility determinations are
peculiarly in the province of the finder of fact” and, as such,
will not be disturbed when supported by substantial evidence.
Factors to be considered in assessing a claimant’s credibility
include (1) the individual’s daily activities; (2) the location,
duration, frequency, and intensity of the individual’s pain or
other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of
any medication the individual takes or has taken to alleviate pain
or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other
symptoms; (6) any measures other than treatment the individual uses
or has used to relieve pain or other symptoms (e.g., lying flat on
his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and (7) any other factors concerning the
individual's functional limitations and restrictions due to pain or
Soc. Sec. R. 96-7p; 1996 WL 374186, 3.
cannot satisfy his obligation to gauge a claimant’s credibility by
merely making conclusory findings and must give reasons for the
determination based upon specific evidence.
Kepler, 68 F.3d at
On remand, the ALJ shall affirmatively link his credibility
findings to permissible bases for acceptance or rejection.
Additionally, since the ALJ’s decision in this matter, the
Social Security Administration has revised its rulings on evaluating
statements related to the intensity, persistence, and limiting
effects of symptoms in disability claims - what heretofore has been
known as “credibility” assessments.
Soc. Sec. R. 16-3p, 2106 WL
1119029 (March 16, 2016), superceding Soc. Sec. R. 96-7p, 1996 WL
374186 (July 2, 1996). The ALJ shall apply the new guidelines under
Soc. Sec. R. 16-3p in evaluating Claimant’s testimony regarding
substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of
Social Security Administration should be and is
REVERSED and the
matter REMANDED to Defendant for further proceedings.
IT IS SO ORDERED this 25th day of September, 2017.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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