Graham v. Social Security Administration
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
VICKIE L. GRAHAM,
NANCY A. BERRYHILL,
Acting Commissioner of the Social )
Security Administration, 1
Case No. CIV-16-452-SPS
OPINION AND ORDER
The claimant Vickie L. Graham 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 set forth below, the
decision of the Commissioner 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
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 Colvin as the
Defendant in this action.
such 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[.]” 42 U.S.C. § 423
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,
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 her 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).
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.
The claimant was born on April 26, 1972, and was forty-three years old at the time
of the administrative hearing (Tr. 35). She has a high school education and vocational
training in medical coding and terminology, and has worked as a billing clerk, claims
examiner, and patient scheduler (Tr. 49, 232). The claimant alleges she has been unable
to work since August 20, 2013, due to a fractured spine, problems with her hands, and
pain in her back, neck, and legs (Tr. 37, 231).
On December 17, 2013, the claimant applied for disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Her application was
denied. ALJ Lantz McClain held an administrative hearing and determined the claimant
was not disabled in a written decision dated December 7, 2015 (Tr. 13-22). The Appeals
Council denied review, so the ALJ’s written decision represents the final decision of the
Commissioner for purposes of this appeal. See 20 C.F.R. § 404.981.
Decision of the Administrative Law Judge
The ALJ made his decision at steps four and five of the sequential evaluation. He
found that the claimant retained the residual functional capacity (“RFC”) to perform
sedentary work as defined in 20 C.F.R. § 404.1567(a), except that she should avoid work
above shoulder level and could frequently use her hands for repetitive tasks such as
keyboarding (Tr. 16).
The ALJ then concluded that the claimant was not disabled
because she could return to her past relevant work as a claims examiner and patient
scheduler, and alternatively because there was work she could perform in the national
economy, i. e., food and beverage order clerk, and electronics worker (Tr. 21-22).
The claimant contends that the ALJ failed to properly account for her non-severe
mental impairments in formulating her RFC. More specifically, she asserts that the ALJ
ignored probative evidence related to her mental impairments, summarized the mental
health evidence without analysis, and did not consider the combined effects of all of her
impairments at step four. She further claims that such errors negatively impacted the
ALJ’s analysis of her ability to perform the mental demands of her past relevant work as
well as his hypothetical question to the VE. The Court agrees that the ALJ erred in his
analysis of the claimant’s non-severe impairments and his decision is not supported by
The ALJ determined that the claimant had the severe impairments of status post
injury to cervical spine with surgery, history of knee pain, and carpal tunnel syndrome, as
well as the non-severe impairments of depression and anxiety (Tr. 15). The record
reveals the claimant was involved in a motor vehicle accident on August 21, 2013, which
caused a laminar fracture at C6, and a ligamentous injury resulting in instability at C6, C7
(Tr. 491-97). On August 23, 2013, she underwent a fusion at C5 to T1 with pedicle
screw instrumentation (Tr. 491-97). The medical evidence related to the claimant’s non-4-
severe mental impairments reveals that her primary care physician, Dr. Timothy Sanford,
treated her for depression with anxiety from August 2012 through February 2014
(Tr. 539-71, 606-17). On examination, Dr. Sanford generally found the claimant had an
appropriate mood and affect, and good insight and judgment, however, he did note her
mood and affect were “depressed, flat” on January 10, 2013, and depressed on January
20, 2014 (Tr. 542, 547, 560, 565, 570, 610, 616). Additionally, Dr. Sanford treated the
claimant for posttraumatic stress disorder in January and February 2014 (Tr. 606-17).
The claimant established care with Dr. Adel Malati on April 24, 2014 (Tr. 68385).
At this initial appointment, she denied psychologically-based symptoms, but
indicated on a depression screening that she occasionally experienced: (i) loss of interest
or pleasure in doing things; (ii) feeling down, depressed, or hopeless; (iii) trouble falling
asleep or sleeping too much; (iv) feeling tired or having little energy; (v) poor appetite or
overeating; (vi) feeling bad about herself or feeling a failure; and (vii) trouble
concentrating (Tr. 684). Dr. Malati diagnosed the claimant with depression and anxiety
disorder not otherwise specified on June 9, 2014 (Tr. 685).
His mental status
examinations of the claimant were consistently normal (Tr. 685, 688, 691, 694).
On May 26, 2014, the claimant presented to the Okmulgee Memorial Hospital
Emergency Department and reported suicidal thoughts and that she had taken
approximately fifteen benzodiazepine tablets two hours earlier (Tr. 649-72). A urine
drug screen was negative for benzodiazepines, but was positive for opiates (Tr. 671).
The claimant was subsequently transferred to Wagoner Community Hospital, where she
received inpatient psychiatric care (Tr. 679-81). She was discharged on May 30, 2014,
with a bright mood, broad affect, no thoughts of suicide, and a Global Assessment of
Functioning (“GAF”) score of forty-five (Tr. 681). 3
On March 21, 2014, a state reviewing physician (identified as “RC, Ph.D.”)
completed a Psychiatric Review Technique (Tr. 123-24).
Dr. RC found that the
claimant's mental impairments consisted of an affective disorder and anxiety disorder,
and that she was mildly impaired in activities of daily living, maintaining social
functioning, and maintaining concentration, persistence, or pace (Tr. 123). Dr. RC noted
the claimant did not endorse any mental limitations on Section 20a of her Function
Report, and that the Third Party Function Report reflected no difficulty with memory,
concentration, understanding, following instructions, getting along with others, handling
stress, or handling changes in her routine (Tr. 124). In an analysis of the evidence, Dr.
RC stated the claimant’s activities of daily living indicated no significant mental
limitations other than driving, and therefore rated her mental impairments as non-severe
The claimant established care at CREOKS Behavioral Health Clinic on August 11,
2015 (Tr. 814-24). Her initial treatment plan revealed diagnoses of generalized anxiety
disorder and recurrent depression, and a GAF score of thirty-one (Tr. 814).
In his written opinion at step two, the ALJ found that the claimant’s depression
and anxiety were non-severe because she had only mild restriction in the three areas of
functional limitation, and no episodes of decompensation (Tr. 13). In support of these
The record contains only the first and last pages of the claimant’s Psychiatric Discharge
Summary from Wagoner Community Hospital.
findings, the ALJ noted the claimant prepared simple meals, did some household
cleaning, helped care for her children, went shopping, visited with family on a daily
basis, interacted well with her treating sources, watched television, read, and paid bills,
and could count change and handle a savings account, but could not use a checkbook or
money orders (Tr. 16). He also noted the claimant’s brief hospitalization for depression,
but found that she was quickly stabilized on medications (Tr. 16). At step four, the ALJ
summarized some of the evidence with regard to the claimant’s mental impairments, and
gave the state agency physician’s opinion great weight, but made no further findings
related to the claimant’s mental impairments (Tr.18-20).
The claimant alleges error with regard to her non-severe mental impairments.
Because the ALJ did find that the claimant had severe impairments, any failure to find the
claimant’s additional impairments severe at step two is considered harmless error because
the ALJ would nevertheless be required to consider the effect of these impairments and
account for them in formulating the claimant’s RFC at step four. See, e. g., Carpenter v.
Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“‘At step two, the ALJ must ‘consider the
combined effect of all of [the claimant’s] impairments without regard to whether any
such impairment, if considered separately, would be of sufficient severity [to survive step
two]. Nevertheless, any error here became harmless when the ALJ reached the proper
conclusion that Mrs. Carpenter could not be denied benefits conclusively at step two and
proceeded to the next step of the evaluation sequence.”), quoting Langley v. Barnhart,
373 F.3d 1116, 1123-24 (10th Cir. 2004) and 20 C.F.R. § 404.1523. See also Hill v.
Astrue, 289 Fed. Appx. 289, 292 (10th Cir. 2008) (“Once the ALJ finds that the claimant
has any severe impairment, he has satisfied the analysis for purposes of step two. His
failure to find that additional alleged impairments are also severe is not in itself cause for
reversal. But this does not mean the omitted impairment simply disappears from his
analysis. In determining the claimant’s RFC, the ALJ is required to consider the effect of
all of the claimant’s medically determinable impairments, both those he deems ‘severe’
and those ‘not severe.’”) [emphasis in original] [citations omitted]. But here the error
was not harmless, because although the ALJ mentioned each impairment at step two, and
summarized some of the mental health-related evidence at step four, the ALJ entirely
failed to consider the “cumulative effect of claimant’s impairments,” at step four.
Langley, 373 F.3d at 1123. See also Hamby v. Astrue, 260 Fed. Appx. 108, 112 (10th
Cir. 2008) (“In deciding Ms. Hamby’s case, the ALJ concluded that she had many severe
impairments at step two. He failed to consider the consequences of these impairments,
however, in determining that Ms. Hamby had the RFC to perform a wide range of
sedentary work.”) [unpublished opinion]. The Tenth Circuit has held that “a conclusion
that the claimant’s mental impairments are non-severe at step two does not permit the
ALJ simply to disregard those impairments when assessing a claimant’s RFC and making
conclusions at steps four and five.” Wells v Colvin, 727 F.3d 1061, 1068-69 (10th Cir.
2013). “To sum up, to the extent the ALJ relied on his finding of non-severity as a
substitute for adequate RFC analysis, the Commissioner’s regulations demand a more
thorough analysis.” Wells, 727 F.3d at 1069.
Because the ALJ failed to properly account for all the claimant’s impairments at
step four, the decision of the Commissioner is therefore reversed and the case remanded
to the ALJ for further analysis of all the claimant’s impairments. If such analysis results
in any changes to the claimant’s RFC, the ALJ should re-determine what work the
claimant can perform, if any, and ultimately whether she is disabled.
The Court hereby FINDS that correct legal standards were not applied by the ALJ,
and the Commissioner’s decision is therefore not supported by substantial evidence. The
decision of the Commissioner is accordingly REVERSED and the case is REMANDED
for further proceedings consistent herewith.
DATED this 13th day of March, 2018.
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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