Friend v. Social Security Administration

Filing 18

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
NORA J. FRIEND,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

Case No. CIV-17-062-KEW

OPINION AND ORDER

Plaintiff Nora J. Friend (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
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

Security

Act

“only

if

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).
two inquiries:
substantial

This Court’s review is limited to

first, whether the decision was supported by

evidence;

and,

second,

1

whether

the

correct

legal

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).

2

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.”
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 46 years old at the time of the ALJ’s decision.
Claimant completed her education through the tenth grade.

Claimant

has worked in the past as a laundry worker, cook, and motel maid.
Claimant alleges an inability to work beginning November 17, 2011
due to limitations resulting from joint pain in the hands, wrists,

and elbows, knee problems, social problems, and anxiety.
Procedural History

3

On

September

11,

2013,

Claimant

protectively

filed

for

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.

On July 24, 2015, the Administrative Law

Judge (“ALJ”) Luke Liter conducted an administrative hearing by
video with Claimant appearing in Muskogee, Oklahoma and the ALJ
presiding from Tulsa, Oklahoma.

On August 26, 2015, the ALJ

entered an unfavorable decision. The Appeals Council denied review
on January 20, 2017.
represents

the

further appeal.

As a result, the decision of the ALJ

Commissioner’s

final

decision

for

purposes

of

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 work at the light exertional
level.

Errors Alleged for Review
Claimant asserts the ALJ committed error in rejecting the

4

opinion offered by the consultative psychologist.
Consideration of Opinion of the Consultative Psychologist
In his decision, the ALJ found Claimant suffered from the
severe impairments of right index finger impairment, osteoarthritis,
bipolar disorder, and PTSD.

(Tr. 14).

The ALJ determined Claimant

retained the RFC to perform light work.

In so doing, he found

Claimant could lift/carry, push or pull 20 pounds occasionally and
ten pounds frequently.

Claimant could sit for six hours out of an

eight hour workday and could stand or walk a combined total of six
hours out of an eight hour workday.
climb

ramps

or

stairs,

but

cannot

Claimant could occasionally
climb

ladders,

ropes,

or

scaffolds. Claimant could occasionally crouch and crawl. She could
frequently handle and finger with her right, non-dominant upper
extremity.

She was limited to simple tasks which the ALJ defined

as unskilled work with a specific vocational preparation (SVP) of
1-2. Claimant was unable to have contact with the public and should
have

superficial

contact

with

co-workers

and

supervisors.

“Superficial contact” is defined as brief and cursory contact.
Claimant’s work should be repetitive and routine which was defined
as work where Claimant was able to do the same thing over and over.
(Tr. 16).
After consultation with a vocational expert, the ALJ determined

5

Claimant

could

perform

the

representative

jobs

of

production

inspector, bench assembler, and mail clerk, all of which the ALJ
found existed in sufficient numbers in the national and regional
economies.

(Tr. 22).

As a result, the ALJ concluded that Claimant

was not under a disability from November 17, 2011 through the date
of the decision.

Id.

Claimant contends the ALJ erred in rejecting the opinion of the
consultative psychologist, Dr. Shalom Palacio-Hollmon. Dr. PalacioHollmon

performed

a

mental

status

examination

November 9, 2013 and prepared a report.

on

Claimant

on

Claimant reported problems

with osteoarthritis, bipolar disorder, physical problems, being
“really depressed”, and sexual urges.

She reported thoughts of

hurting someone else, being isolated, socially withdrawn, and sad.
She had problems with anger and frustration, was easily agitated and
annoyed, and defied rules, blamed others, and argued with others.
(Tr. 372).

Dr. Palacio-Hollmon diagnosed Claimant with Bipolar

Disorder, PTSD, Marijuana Abuse, Intermittent Explosive Disorder,
and Antisocial Traits.

He did not believe her to be malingering.

He found Claimant’s “overall adjustment to stress is poor.”

Dr.

Palacio-Hollmon recommended Claimant seek counseling from provider
focusing on anxiety management, marijuana abuse, management of her
depressive symptoms, mood stabilization, and anger management.
Claimant’s

“ability

to

deal

with

6

the

public,

supervisors

and

coworkers is poor.”

She was able to understand instructions during

the evaluation but had difficulty with lengthy, verbal and complex
instructions.

Dr. Palacio-Hollmon thought Claimant “would benefit

from having structure, supervision, support and restricted to
repetitive type behaviors in a work setting.”

He concluded that

“[i]t is unlikely that she would be able to meet the demands of the
work environment at this time.”

(Tr. 374-75).

The ALJ recognized Dr. Palacio-Hollmon’s findings in the
decision.

However, he gave “little weight” to the opinion because

it was not consistent with exam findings or Claimant’s activities.
He

noted

exam

findings

were

largely

normal,

concentration was normal, and memory was normal.

attention

and

He stated that

Claimant scored a 29 our of 30 on the Montreal Cognitive Assessment
and found Claimant’s treating physician noted she was better on her
medication.

(Tr. 18-19).

Claimant contends the ALJ failed to address Dr. PalacioHollmon’s conclusion that Claimant’s “ability to deal with the
public, supervisors and coworkers is poor.” (Tr. 375). The ALJ did
not address this statement at all in his decision.
evaluate every medical opinion in the record.
365 F.3d 1208, 1215 (10th Cir. 2004).

The ALJ must

Hamlin v. Barnhart,

The ALJ must also explain in

the decision the weight given to the medical opinions.
R. 96-6p, 1996 WL 374180.

Soc. Sec.

An ALJ “is not entitled to pick and

7

choose through an uncontradicted medical opinion, taking only the
parts that are favorable to a finding of nondisability.”
Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).

Haga v.

The ALJ did not

adequately address this restriction from Dr. Palacio-Hollmon in the
RFC.

On remand, he shall consider the effect of Claimant’s

limitation in social functioning, including her ability to interact
with supervisors and co-workers, in the RFC.
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 to Defendant for further proceedings consistent
with this Opinion and Order.
IT IS SO ORDERED this 27th day of September, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

8