Warrior v. Social Security Administration

Filing 20

OPINION AND ORDER by Magistrate Judge Steven P. Shreder reversing and remanding the decision of the ALJ. (tmb, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
JAN DARLENE WARRIOR,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of the Social )
Security Administration, 1
)
)
Defendant.
)

Case No. CIV-16-305-SPS

OPINION AND ORDER
The claimant Jan Darlene Warrior requests judicial review of a denial of benefits
by the Commissioner of the Social Security Administration pursuant to 42 U.S.C.
§ 405(g). She appeals the Commissioner’s decision and asserts that the Administrative
Law Judge (“ALJ”) erred in determining she was not disabled. For the reasons discussed
below, the Commissioner’s decision is hereby REVERSED and the case is REMANDED
to the ALJ 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
Security Act “only if h[er] physical or mental impairment or impairments are of such
1

On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social
Security. In accordance with Fed. R. Civ. P. 25(d), Ms. Berryhill is substituted for Carolyn W.
Colvin as the Defendant in this action.

severity that [s]he is not only unable to do h[er] previous work but cannot, considering
h[er] age, education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy[.]” Id. § 423 (d)(2)(A). Social security
regulations implement a five-step sequential process to evaluate a disability claim. See 20
C.F.R. §§ 404.1520, 416.920. 2
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997). Substantial evidence is “‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938); see also Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the
Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d 799,

2

Step one requires the claimant to establish that she is not engaged in substantial gainful
activity, as defined by 20 C.F.R. §§ 404.1510, 416.910. Step two requires the claimant to
establish that she has a medically severe impairment (or combination of impairments) that
significantly limits her ability to do basic work activities. Id. §§ 404.1521, 416.921. If the
claimant is engaged in substantial gainful activity, or if her impairment is not medically severe,
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. If the claimant suffers from a listed
impairment (or impairments “medically equivalent” to one), she is determined to be disabled
without further inquiry. Otherwise, the evaluation proceeds to step four, where the claimant must
establish that she lacks the residual functional capacity (RFC) to return to his past relevant work.
The burden then shifts to the Commissioner to establish at step five that there is work existing in
significant numbers in the national economy that the claimant can perform, taking into account
her age, education, work experience and RFC. Disability benefits are denied if the Commissioner
shows that the claimant’s impairment does not preclude alternative work. See generally Williams
v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).

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800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he
substantiality of 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’s Background
The claimant was born on March 9, 1958, and was fifty-seven years old at the time
of the administrative hearing (Tr. 34). She has a high school education and vocational
training in phlebotomy, and has worked as a seamstress (Tr. 35-36, 46). The claimant
alleges that she has been unable to work since May 9, 2014, due to depression, high
blood pressure, back pain, nerve pain, rheumatoid arthritis, and osteoarthritis (Tr. 213).
Procedural History
On July 10, 2014, the claimant applied for disability insurance benefits under Title
II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security
income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85, on
July 15, 2014 (Tr. 161-77). Her applications were denied. ALJ Larry D. Shepherd
conducted an administrative hearing and found that the claimant was not disabled in a
written opinion dated March 1, 2016 (Tr. 14-24). The Appeals Council denied review, so
the ALJ’s written opinion is the Commissioner’s final decision for purposes of this
appeal. See 20 C.F.R. §§ 404.981, 416.1481.
Decision of the Administrative Law Judge
The ALJ made his decision at step four of the sequential evaluation. He found that
the claimant had the residual functional capacity (“RFC”) to perform a limited range of
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light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), i. e., she could lift/carry
twenty pounds occasionally and ten pounds frequently; sit/stand/walk for about six hours
during an eight-hour workday; and occasionally climb, balance, stoop, kneel, crouch,
crawl, and reach overhead (Tr. 19). The ALJ then concluded that the claimant was not
disabled because she could return to her past relevant work as a seamstress (Tr. 23-24).
Review
The claimant contends that the ALJ erred by failing to properly: (i) analyze the
opinions of treating physician Dr. Osborn, (ii) weigh the opinions of the state agency
physicians, (iii) analyze the opinion of consultative examiner Dr. Buffington, and
(iv) assess her RFC. The Court agrees with the claimant’s first and third contentions, and
the decision of the Commissioner must therefore be reversed and the case remanded to
the ALJ for further proceedings.
The ALJ found the claimant’s obesity, degenerative disc disease, hypertension,
generalized osteoarthritis, and fibromyalgia were severe impairments, but that her
depression was non-severe (Tr. 17). The medical evidence relevant to this appeal reveals
that Dr. Osborn regularly treated the claimant between March 2013 and November 2015
(Tr. 326-48, 411-55). In March and April 2013, Dr. Osborn treated the claimant for
depression, hypertension, neuropathy, and lumbar disc disease (Tr. 347-48). At the
claimant’s next follow-up appointment in April 2014, Dr. Osborn indicated the claimant
was tender in all areas of her spine and in all of her joints, and he diagnosed her with
osteoarthritis (Tr. 343-45). The claimant was involved in a motor vehicle accident on
May 9, 2014, and CT scans of her abdomen and chest revealed subcutaneous contusions,
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while a CT scan of her cervical spine revealed shallow cervical lordosis with left
curvature possibly representative of spasm, and mild spondylosis anteriorly and
posteriorly at C5-6 (Tr. 332-41). In August 2014, the claimant reported that her low back
was still significantly worse than before the accident, but “[e]verything else seems to be
doing better.” (Tr. 411). Dr. Osborn again noted tenderness in all areas of her spine and
in all of her joints, but his examination was otherwise normal (Tr. 412). At a follow-up
appointment on October 28, 2014, the claimant reported pain in her arms and knees as
well as significant back pain radiating into her legs (Tr. 415). On physical examination,
Dr. Osborn found her spine was tender in all areas with decreased range of motion, and
all of her joints were tender with decreased range of motion due to pain, but his exam was
otherwise normal (Tr. 416-17). Thereafter, Dr. Osborn’s treatment notes reflect similar
findings until November 2015, the last appointment in the record (Tr. 449-55).
On October 28, 2014, Dr. Osborn completed a Medical Source Statement (“MSS”)
regarding the claimant’s physical and mental abilities and limitations (Tr. 395-96, 45758). He opined that the claimant could sit/stand for fifteen minutes at a time; work for
two hours per day; occasionally lift ten pounds, bend, stoop, manipulate her hands, and
raise her arms above shoulder level; never frequently lift; and needed to occasionally
elevate her legs during an eight-hour workday, noting that she could not work an eighthour day (Tr. 395). As to her mental impairments, Dr. Osborn indicated the claimant was
not significantly impaired in her ability to understand, remember, and carry out detailed
instructions; maintain attention and concentration; work with others; accept supervision;
or get along with coworkers (Tr. 396). He concluded that the claimant’s severe
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osteoarthritis prevented her from engaging in gainful employment (Tr. 396).
Additionally, the record contains a similar MSS from Dr. Osborn dated December 9,
2015, except he noted that the claimant had some memory loss due to her medications
(Tr. 458).
State agency physicians reviewed the record in October 2014 and January 2015
and found the claimant could perform the full range of light work (Tr. 57-58, 79-80).
State agency psychologists reviewed the record in August 2014 and December 2014 and
found the claimant’s mental impairments were non-severe (Tr. 56, 77-78).
Dr. Bill Buffington performed a consultative physical examination of the claimant
on September 3, 2014 (Tr. 387-94). An x-ray of the claimant’s lumbosacral spine taken
as part of the exam revealed straightening of the lumbar curvature, but good alignment,
well-maintained intervertebral disk spaces, and no degenerative changes to the vertebrae,
sacrum, or pelvis (Tr. 394). On examination, Dr. Buffington noted, inter alia, painful
decreased range of motion and paraspinous muscle tenderness in the claimant’s cervical
spine and lumbar spine; paraspinous muscle tenderness in her thoracic spine; full range of
motion and good strength in her shoulders; and full range of motion without pain in her
elbows, wrists, hips, knees, and ankles (Tr. 387-89, 392). He also noted weak heel and
toe walking, a minimally unsteady tandem gait, and positive straight leg raise tests
(Tr. 389). Dr. Buffington assessed the claimant with low back pain, neuropathy (by
history), depression, and hypertension (Tr. 393).
At the administrative hearing, the claimant testified that she uses a cane two or
three times per week due to swelling and pain her left foot which she described as feeling
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like stepping on something sharp such as glass or needles (Tr. 35, 41-42). She stated that
she does not drive very often due to involuntary jerking movements in her leg, and has a
tendency to drop things due to numbness and tingling in her hands (Tr. 38, 40-41). As to
specific limitations, the claimant testified that she could stand for ten minutes before
needing to sit and rest, and could lift no more than ten pounds two or three times per hour
(Tr. 43-44).
In his written opinion, the ALJ summarized the claimant’s testimony and the
medical records. At step two, he gave great weight to Dr. Osborn’s opinion regarding the
claimant’s mental impairments, finding he indicated that her judgment and insight were
intact and made no other psychologically-based notes at numerous appointments (Tr. 17).
In discussing the opinion evidence at step four, the ALJ gave little weight to Dr. Osborn’s
opinion for the following reasons: (i) he made no positive findings other than tenderness
and decreased range of motion in the claimant’s spine and joints; (ii) he did not
corroborate her complaints with any objective or laboratory studies; (iii) his treatment
consisted solely of medication management; and (iv) his opinions were inconsistent with
the May 2014 cervical CT scan, the September 2014 lumbar x-ray, and the claimant’s
own reported daily activities, particularly her continued part-time work (Tr. 23).
Nonetheless, the ALJ adopted some, but not all, of the Dr. Osborn’s limitations. As to
Dr. Buffington’s opinion, the ALJ referenced his lumbar x-ray and some of his findings
concerning the claimant’s hands and wrists, but entirely ignored the remainder of his
report, and did not assign it any specific weight (Tr. 22). The ALJ then gave great weight
to the state agency medical consultants’ opinions because they were consistent with the
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medical record as a whole, supported by specific reasoning, unbiased, and accounted for
the claimant’s subjective complaints (Tr. 22).
“An ALJ must evaluate every medical opinion in the record, although the weight
given each opinion will vary according to the relationship between the disability claimant
and the medical professional. . . . An ALJ must also consider a series of specific factors
in determining what weight to give any medical opinion.” Hamlin v. Barnhart, 365 F.3d
1208, 1215 (10th Cir. 2004), citing Goatcher v. United States Department of Health &
Human Services, 52 F.3d 288, 290 (10th Cir. 1995). The pertinent factors include the
following: (i) the length of the treatment relationship and the frequency of examination;
(ii) the nature and extent of the treatment relationship, including the treatment provided
and the kind of examination or testing performed; (iii) the degree to which the
physician’s opinion is supported by relevant evidence; (iv) consistency between the
opinion and the record as a whole; (v) whether or not the physician is a specialist in the
area upon which an opinion is rendered; and (vi) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion. See Watkins v. Barnhart, 350
F.3d 1297, 1300-01 (10th Cir. 2003), citing Drapeau v. Massanari, 255 F.3d 1211, 1213
(10th Cir. 2001). Here, the ALJ assigned little weight to Dr. Osborn’s opinions as to the
claimant’s physical limitations, and then adopted his limitations as to the claimant’s
ability to bend, stoop, and reach overhead without explaining why he rejected Dr.
Osborn’s other limitations.

Likewise, the ALJ appeared to adopt Dr. Buffington’s

findings as to the claimant’s hands and wrists, but did not discuss or analyze any of his
other findings. This analysis was particularly important because the ALJ discredited Dr.
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Osborn’s opinions largely due to inconsistencies with the evidence of record, and Dr.
Buffington’s findings regarding the claimant’s back appear to provide some support for
Dr. Osborn’s opinions. It was error for the ALJ to “pick and choose” in this way, i. e., to
cite findings supportive of his own determination while disregarding unsupportive
findings. See, e.g., Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004) (noting that
the ALJ may not “pick and choose among medical reports, using portions of evidence
favorable to his position while ignoring other evidence.”) In addition to evaluating Dr.
Buffington’s findings according to the appropriate standards and indicating what weight
he was assigning to them, the ALJ should have explained why he found certain aspects of
Dr. Osborn’s opinion and Dr. Buffington’s opinion persuasive but not others. See Haga
v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (“[T]he ALJ should have explained why
he rejected four of the moderate restrictions on Dr. Rawlings' RFC assessment while
appearing to adopt the others. An ALJ is not entitled to pick and choose through an
uncontradicted medical opinion, taking only the parts that are favorable to a finding of
nondisability. . . . [T]he ALJ did not state that any evidence conflicted with Dr. Rawlings'
opinion or mental RFC assessment. So it is simply unexplained why the ALJ adopted
some of Dr. Rawlings' restrictions but not others.”).
Because the ALJ failed to properly evaluate the opinions of Dr. Osborn and Dr.
Buffington, the decision of the Commissioner should be reversed and the case remanded
for further analysis by the ALJ. If such analysis results in an adjustment to the claimant’s
RFC, the ALJ should then re-determine what work, if any, the claimant can perform and
ultimately whether she is disabled.
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Conclusion
In summary, the Court finds that correct legal standards were not applied by the
ALJ, and the Commissioner’s decision is therefore not supported by substantial evidence.
Accordingly, the decision of the Commissioner is hereby REVERSED, and the case is
REMANDED for further proceedings consistent herewith.
DATED this 22nd day of September, 2017.

_________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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