Greenlee v. Social Security Administration

Filing 22

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
TERESA C. GREENLEE,

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

Case No. CIV-16-461-SPS

OPINION AND ORDER
The claimant Teresa C. Greenlee 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 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

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.

Act “only if h[er] physical or mental impairment or impairments are of 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[.]” 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

2

Step one requires the claimant to establish that she is not engaged in substantial gainful activity.
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. If the
claimant is engaged in substantial gainful activity, or her impairment is not medically severe,
disability benefits are denied. If she does have a medically severe impairment, it is measured at
step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant
has a listed (or “medically equivalent”) impairment, she is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that she lacks the residual functional capacity (“RFC”) to return to her past
relevant work. At step five, the burden shifts to the Commissioner to show there is significant
work in the national economy that the claimant can perform, given her age, education, work
experience, and RFC. Disability benefits are denied if the claimant can return to any of her past
relevant work or if her RFC does not preclude alternative work. See generally Williams v. Bowen,
844 F.2d 748, 750-51 (10th Cir. 1988).

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Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d 799, 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 July 30, 1963, and was fifty-two years old at the time of
the administrative hearing (Tr. 37). She has a high school equivalent education, and has
worked as a convenience store clerk/cashier II, appliance assembler, and home attendant
(Tr. 37, 51). The claimant alleges she has been unable to work since an amended onset
date of April 1, 2014, due to collapsed foot bones, bad left knee, degenerative disc disease,
scoliosis, high blood pressure, and high cholesterol (Tr. 40, 220).
Procedural History
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 June 5, 2014 (Tr. 166-79).
Her applications were denied. ALJ Edward M. Starr conducted an administrative hearing
and found that the claimant was not disabled in a written opinion dated October 2, 2015
(Tr. 23-29). The Appeals Council denied review, so the ALJ’s written opinion is the final
decision of the Commissioner for purposes of this appeal. See 20 C.F.R. §§ 404.981,
416.1581.

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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 ability to perform light work as defined in 20 C.F.R. §§ 404.1567(b)
and 416.967(b) with frequent climbing, balancing, crawling, kneeling, stooping, and
crouching (Tr. 26). The ALJ then concluded that the claimant was not disabled because
she could return to her past relevant work as a convenience store clerk/cashier II (Tr. 29).
Review
The claimant contends that the ALJ erred by failing to: (i) properly develop the
record as to her back impairment, (ii) support his step-two findings and RFC with
substantial evidence in light of contradictory evidence related to her foot impairment, and
(iii) assess her credibility. The Court agrees that the ALJ failed to properly assess the
claimant’s back impairment at step four.
The ALJ found the claimant had the severe impairments of essential hypertension,
degenerative disc disease, and obesity, but that her foot pain status post-surgery did not
meet the twelve-month durational requirement for disability (Tr. 25-26).
The relevant medical records as to the claimant’s back reveal that she presented to
Good Samaritan Clinic on June 4, 2013, and reported low back pain that began the day
before (Tr. 303). On examination, a nurse practitioner noted the presence of pain with
palpation of the thoracic paraspinous muscles, but that the claimant had a normal gait and
station (Tr. 303). She assessed the claimant with back pain, most likely musculoskeletal,
and recommended a heating pad and ibuprofen (Tr. 303). At a follow-up appointment on
June 25, 2013, the claimant reported continued back pain (Tr. 302). The nurse practitioner
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ordered an x-ray of the claimant’s thoracic spine, the results of which revealed scoliotic
changes in the mid to upper thoracic spine, and degenerative changes of mild to moderate
degree in the mid-thoracic spine (Tr. 302, 307). Thereafter, the claimant established care
at All River Valley Primary Care Services on May 20, 2014, and reported muscle spasms
in her lower back (Tr. 329-30). Tracy Fisher, a nurse practitioner, examined the claimant
and found mild tenderness to palpation in her lumbar/lumbosacral spine, muscle spasms in
her lumbar spine, and an antalgic gait (Tr. 330). Ms. Fisher made no assessment regarding
the claimant’s back, but nonetheless prescribed ibuprofen and a muscle relaxant (Tr. 330).
James Saunders, a physician assistant at All River Valley Primary Care Services, assessed
the clamant with lumbago on September 16, 2014, prescribed a pain medication, and
referred her for physical therapy (Tr. 330). As to the claimant’s foot impairment, she
underwent a left first tarsal metatarsal fusion on May 5, 2015 (Tr. 358-439). At a followup appointment on August 6, 2015, Dr. Smith noted satisfactory alignment, good
opposition of bones, and no evidence of hardware failure, and he released the claimant
from follow-up care (Tr. 443-45).
State reviewing physician Dr. Lucy Sauer completed a physical RFC assessment on
August 8, 2014 (Tr. 63-71). Dr. Sauer indicated that the claimant could perform the full
range of light work (Tr. 69-69). In support, Dr. Sauer referred to the March 2013 through
May 2014 treatment notes from Good Samaritan Clinic as well as the claimant’s June 2014
pain form (Tr. 313-314). On January 23, 2015, state reviewing physician Dr. William
Harrison affirmed Dr. Sauer’s assessment (Tr. 83-92). In addition to the evidence cited by
Dr. Sauer, he also cited Dr. Dotson’s treatment notes as support for his opinion (Tr. 90).
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In his written opinion, the ALJ thoroughly discussed the claimant’s hearing
testimony and function report, as well as all the evidence in the record. He gave significant
weight to the state reviewing physician opinions that the claimant could perform light
work, but modified the claimant’s RFC to include only frequent climbing, balancing,
crawling, kneeling, stooping, and crouching (Tr. 26).
The claimant asserts that the ALJ should have ordered a consultative examination
to develop the record and properly account for her back impairment. An ALJ has broad
latitude in deciding whether to order a consultative examination. Hawkins v. Chater, 113
F.3d 1162, 1166 (10th Cir. 1997), citing Diaz v. Secretary of Health & Human Services,
898 F.2d 774, 778 (10th Cir. 1990). Once the claimant has presented evidence suggestive
of a severe impairment, it “becomes the responsibility of the ALJ to order a consultative
evaluation if such an examination is necessary or helpful to resolve the issue of
impairment.” Id. at 1167. A consultative examination also may be required if there is a
direct conflict in the medical evidence, the medical evidence is inconclusive, or when
additional tests are needed to explain a diagnosis already in the record. Id. at 1166. But
an ALJ does not generally have a duty to order a consultative examination unless requested
by counsel or the need is clearly established in the record. Id. at 1168.
Here, counsel did not request a consultative examination in writing or at the hearing.
Nevertheless, such an examination would have been helpful this case because in its
absence, the ALJ had no opinion evidence to connect to his findings to the claimant's
physical RFC. Although the ALJ stated he gave significant weight to the state reviewing
physician opinions, he actually rejected these opinions at least in part, by making additional
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modifications to the RFC. These further postural modifications are presumably intended
to account for the claimant’s back impairment, but the ALJ has connected no evidence in
the record to instruct this Court as to how such limitations account for the claimant’s severe
degenerative disc disease, much less all of her impairments in combination. See, e.g.,
Timmons v. Barnhart, 118 Fed. Appx. 349, 353 (10th Cir. 2004) (finding the ALJ should
have “explained how a ‘severe’ impairment at step two became ‘insignificant’ at step
five.”); 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.”). See also Hill v.
Astrue, 289 Fed. Appx. 289, 292 (10th Cir. 2008) (“In determining the claimant’s RFC, the
ALJ is required to consider the effect of all of the claimant’s medically determinable
impairments[.]’”) [emphasis in original] [citations omitted]. The ALJ's discretion is not
boundless, and under the circumstances in this case, the ALJ should at least have explained
why no further development was necessary.
For the reasons set forth above, the Court concludes that the decision of the
Commissioner should be reversed and the case remanded to the ALJ for proper analysis of
the claimant’s back impairment.

If such analysis results in any adjustments to the

claimant's RFC, the ALJ should re-determine what work the claimant can perform, if any,
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.
The decision of the Commissioner decision is accordingly hereby REVERSED and the
case REMANDED for further proceedings consistent herewith.
DATED this 13th day of March, 2018.

____________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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