Ross v. Social Security Administration

Filing 17

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
TISHA D. ROSS,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-16-547-KEW

OPINION AND ORDER

Plaintiff Tisha D. Ross (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.

Claimant

appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined

that

discussed

below,

Claimant
it

is

was
the

not

disabled.

finding

of

this

For

the

Court

reasons

that

the

Commissioner’s decision should be and is REVERSED and the case is
REMANDED for further proceedings consistent with this Opinion and
Order.
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).
Security

Act

“only

if

A claimant is disabled under the Social
his

physical

or

mental

impairment

or

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
work

which

exists

§423(d)(2)(A).

in

the

national

economy.

.

.”

42

U.S.C.

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

1

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).

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two inquiries:
substantial

first, whether the decision was supported by

evidence;

and,

standards were applied.

second,

whether

the

correct

legal

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.”
Richardson

v.

Perales,

402

U.S.

389,

401

(1971)

(quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

The

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’s Background
Claimant was 44 years old at the time of the ALJ’s decision.
Claimant completed her high school education and took advanced
classes.

Claimant has no past relevant work.

Claimant alleges an

inability to work beginning February 15, 1999 due to limitations
resulting from bipolar and psychotic disorders, migraine headaches,

3

and high blood pressure.
Procedural History
On

September

20,

2013,

Claimant

protectively

filed

for

disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) and for supplemental security income pursuant to Title XVI

(42 U.S.C. § 1381, et seq.) of the Social Security Act.

Claimant’s

applications were denied initially and upon reconsideration.

June 22, 2015,

On

Administrative Law Judge (“ALJ”) David Engel

conducted an administrative hearing in Tulsa, Oklahoma.
15, 2015, the ALJ entered an unfavorable decision.
Council denied review on October 5, 2016.

On July

The Appeals

As a result, the

decision of the ALJ represents the Commissioner’s final decision
for purposes of further appeal.

20 C.F.R. §§ 404.981, 416.1481.

Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential
evaluation.

He determined that while Claimant suffered from severe

impairments, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform a full range of light work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
properly evaluate the medical and non-medical source evidence; (2)
failing to perform a proper determination at steps four and five;

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(3) failing to perform a proper credibility analysis; and (4)
failing to reopen Claimant’s prior claim.
Evaluation of the Source Evidence
In his decision, the ALJ found Claimant suffered from the
severe impairments of bipolar disorder, residuals of comminuted
posteriorly displaced fracture distal fibula, diabetes mellitus, and
left ankle problems.

(Tr. 13).

The ALJ determined Claimant

retained the RFC to perform light and sedentary work.

She was

unable to climb ropes, ladders, and scaffolds, and was unable to
work in environments where she would be exposed to unprotected
heights and dangerous moving machinery parts.

The ALJ determined

Claimant was able to understand, remember, and carry out simple to
moderately detailed instructions in a work-related setting, and was
able to interact with co-workers and supervisors, under routine
supervision.

(Tr. 14).

After consultation with a vocational expert, the ALJ determined
Claimant could perform the representative jobs of kitchen helper,
hand packager, housekeeper/cleaner, and touch-up screener, all of
which were found to exist in sufficient numbers in the regional and
national economies.

(Tr. 18).

As a result, the ALJ found Claimant

was not under a disability from February 15, 1999 through the date
of the decision.

(Tr. 19).

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Claimant contends2 the ALJ failed to properly consider the
medical and non-medical source evidence.

Claimant first asserts

that the ALJ should not have relied upon a non-examining, nontreating consultative reviewer identified in the record as “Lynette
M. PhD.”

(Tr. 105).

reviewer’s

Claimant states that she cannot confirm this

“existence,

or

the

authenticity

of

their

degree.”

Claimant accuses Defendant of “secret cloaking of the so-called
expert” and that “there is no way to know that the person is a duespaying member of any state licensing authority.”

While further

identification of this reviewing agency medical professional might
be desirable and should be forthcoming in the future, she is coded
under the Program Operation Manual System as a psychologist.

(Tr.

Some degree of deference must be given the Social Security

105).

Administration’s
Claimant’s

retention

contention

of

of
an

qualified
agency

medical

conspiracy

consultants.
to

hide

its

professionals is not supported by the overall record since the same
findings

and

opinion

were

rendered

professional, Dr. Bernard Pearce.
Claimant
professional

contends
constitutes

the
a

another

reviewing

(Tr. 68).

failure
denial

2

by

to
of

fully
due

identify

process.

the
The

Claimant filed two opening briefs in this case which appear to
be duplicative of one another (Docket Entry Nos. 12 and 13).
For
purposes of official review, this Court will consider the latest filed
brief as setting forth Claimant’s arguments in this appeal.

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constitutional requirement for procedural due process applies to
social security hearings.

Yount v. Barnhart, 416 F.3d 1233, 1235

(10th Cir. 2005) citing Allison v. Heckler, 711 F.2d 145, 147 (10th
Cir. 1983).

Typically, a due process argument is made when an ALJ

utilizes post-hearing evidence without affording a claimant a
hearing to cross-examine or challenge the evidence.

Id.

No such

violation of due process occurred in this case.

Claimant appears to contend that the ALJ did not engage in a
formulaic examination of the factors set forth in Watkins v.
Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003).

However, many

of these factors have very little application to the opinion of a
reviewing physician such as length of treatment relationship,
nature and extent of treatment relationship, and testing performed.
This is precisely the basis for the conclusion that
it is not necessary for the ALJ to address each factor
expressly or at length . . . .
As long as the ALJ
provides “good reasons in his decision for the weight he
gave to the . . . opinion[], [n]othing more [is]
required[.]” . . . What matters is that the decision is
“sufficiently specific to make clear to any subsequent
reviewer[] that weight the adjudicator gave to the . . .
opinion and the reasons for that weight.”
Mounts v. Astrue, 479 Fed.Appx. 860, 8665 (10th Cir.
2012) quoting Oldham v. Astrue, 509 F.3d 1254, 1258 (10th
Cir. 2007).
The ALJ made detailed findings concerning the psychological
evidence and concluded that the overall record supported his
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decision to give the reviewing physcian’s opinion “great weight.”
(Tr. 17). Support from the medical record is the primary factor in
deciding the weight of reviewer’s consultative opinions as few of
the other factors are germane.

The ALJ cited to the consultative

examination by Dr. Diane Brandmiller and the treatment records from
CREOKS Mental Health Clinic as a part of the overall record which
supported the reviewer’s opinion.

(Tr. 16-17).

In her narrative

opinion, the reviewer concluded Claimant could perform simple tasks
with routine supervision, could relate to supervisors and peers on
a superficial work basis, could not relate to the general public on
an ongoing basis, and could adapt to a work situation.

(Tr. 105).

Dr. Brandmiller concluded Claimant’s abstract thinking appeared
mildly impaired, her expressive and receptive language skills
appeared intact, she appeared to be able to understand and carry
out simple instructions, and may have difficulty in a work setting
that required frequent interactions with the public.

(Tr. 361).

These findings are not inconsistent and show support for one
another.

No error is found in the ALJ’s consideration of the

opinion evidence.
Claimant

also

asserts

the

ALJ

failed

to

consider

limitations imposed by her non-severe migraine headaches.

the
The

objective medical record indicates that Claimant “continues to have

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good migraine control of her headaches with Imitrex.”

(Tr. 340).

Claimant did not testify of the limiting effects of her migraine
headaches at the administrative hearing. The ALJ cannot be expected
to manufacture limitations that do not exist.
Step Four and Five Determination
Claimant contends the ALJ’s questioning of the vocational
expert was inconsistent with the RFC findings.

The ALJ questioned

the vocational expert as follows:
In our first scenario, assume an individual able to
perform medium or light or sedentary exertional work.
But assume even then no climbing of ladders, scaffolds,
unprotected heights, or dangerous machinery, parts or
environments of that kind. Assume an individual able to
understand, remember, and carryout simple instructions
only in a work-related setting. And assume interaction
with coworkers and supervisors under routine supervision.
I’ll come to close supervision in a minute. But assume
routine supervision. Assume interaction with the general
public is going to prove problematic and would be limited
to an occasional basis only. And assume it will make not
difference whether it’s in person or over a telephone.
In either event that interaction with the public is going
to be occasional in nature only.
And assume symptoms
from a variety of sources. Those could be depression.
It could be anxiety. Could be bi-polar. Doctors have
used a lot of labels. But here today here assume all of
them variously described and of sufficient severity as to
be noticeable to that person at all times, yet able to
remain
attentive,
responsive,
and
perform
work
assignments within the above limits I have just given.
(Tr. 51-52).
The vocational expert responded with the jobs identified in the

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decision.

(Tr. 52-53).

The ALJ went on to provide additional

limitations on close supervision and absenteeism which precluded
maintaining employment as found by the expert.

(Tr. 54-55).

Despite this testimony, the ALJ concluded in the RFC that
Claimant could “carry out simple to moderately detailed instructions
in a work-related setting, and able to interact with co-workers and
supervisors,

under

routine

supervision”.

(Tr.

14).

The

RFC

contained no reference to restrictions in interaction with the
general public.

“Testimony elicited by hypothetical questions that do not
relate with precision all of a claimant’s impairments cannot
constitute

substantial

decision.”

Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.

1991).

evidence

to

support

the

Secretary’s

In positing a hypothetical question to the vocational

expert, the ALJ need only set forth those physical and mental
impairments accepted as true by the ALJ.
F.2d 585, 588 (10th Cir. 1990).

Talley v. Sullivan, 908

Additionally, the hypothetical

questions need only reflect impairments and limitations borne out
by the evidentiary record.
(10th Cir. 1996).

Decker v. Chater, 86 F.3d 953, 955

Moreover, Defendant bears the burden at step

five of the sequential analysis.

Hargis, 945 F.2d at 1489.

The

ALJ’s questioning did not mirror Claimant’s impairments and his RFC

10

findings. This Court rejects Defendant’s argument that somehow the
jobs identified by the vocational expert absolved the ALJ from
including the same restrictions in his questioning as were included
in the ultimate findings in the RFC.

On remand, the ALJ shall

include the same restrictions in the hypothetical questions as are
identified in the RFC.
Claimant also contends the ALJ improperly excluded the findings
by the reviewing psychologists contained in Section I of the MRFCA.
While Section III of the MRFCA generally reflects the opinion of the
expert while Section I acts as a worksheet, if the Section III
narrative inadequately addresses the summary restrictions found in
Section I, it cannot be relied upon to provide substantial evidence
in support of the RFC.
(10th Cir. 2015).

Carver v. Colvin, 600 F. App'x 616, 618–19

On remand, the ALJ shall consider whether the

reviewer’s opinions contained in the Section III portion of the
MRFCA adequately addresses the findings in Section I before he
relies upon it in his decision.
Credibility Determination
Claimant’s briefing does not challenge the recitation of her
testimony contained in the ALJ’s decision.

He appears to accept

much of Claimant’s restrictions, including restrictions in the
ability to interact with the general public.

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However, he concludes

that he accounted for these restrictions in the RFC.
did not.

(Tr. 17).

He

Again, on remand, the ALJ shall reconcile his acceptance

of Claimant’s testimony with the restrictions that he includes in
the RFC.
Reopening of a Prior Claim
Claimant also asserts that the ALJ considered evidence from a
prior claim and, therefore, effectively reopened it.
assessment is accurate.

Claimant’s

However, it is unclear how Claimant was

prejudiced by doing so. On remand, the ALJ shall expressly consider
the reopening of the prior claim and address the issue in his
decision.
Conclusion
The

decision

of

the

Commissioner

is

not

supported

by

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
case is REMANDED for further proceedings consistent with this
Opinion and Order.

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IT IS SO ORDERED this 21st day of March, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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