Trammell 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
PATRICK D. TRAMMELL,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.
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Case No. CIV-17-067-KEW
OPINION AND ORDER
Plaintiff
Patrick
D.
Trammell
(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 Claimant was not disabled.
For the
reasons discussed below, it is the finding of this Court 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).
2
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 50 years old at the time of the ALJ’s decision.
Claimant obtained his GED.
Claimant has worked in the past as a
route sales representative and delivery driver.
Claimant alleges
an inability to work beginning April 25, 2012 due to limitations
resulting from severe depression and anxiety disorder.
3
Procedural History
On May 2, 2013, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C. § 401, et seq.) of the
Social Security Act.
On April 15, 2013, Claimant filed 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 August 11,
2015, Administrative Law Judge (“ALJ”) Richard Kallsnick conducted
an administrative hearing by video with Claimant appearing in
Poteau, Oklahoma and the ALJ presiding from Tulsa, Oklahoma.
August 19, 2015, the ALJ entered an unfavorable decision.
Appeals Council denied review on December 23, 2016.
the
decision
of
the
ALJ
represents
the
decision for purposes of further appeal.
On
The
As a result,
Commissioner’s
final
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, he did not meet a listing and retained the residual
functional capacity (“RFC”) to perform medium work with limitations.
Errors Alleged for Review
4
Claimant asserts the ALJ committed error in (1) failing to
properly evaluate the medical source evidence; (2) failing to
perform a proper determination at steps four and five; and (3)
failing to perform a proper credibility analysis.
Evaluation of Medical Source Evidence
In his decision, the ALJ found Claimant suffered from the
severe impairments of anxiety disorder and depression.
(Tr. 13).
The ALJ determined Claimant retained the RFC to perform medium work
except that Claimant was limited to simple tasks, related to coworkers and supervisors for work-related purposes, could not relate
to the general public and should avoid any job which includes the
general public, but could adapt to work situations.
(Tr. 15).
After consultation with a vocational expert, the ALJ determined
Claimant could perform the representative jobs of dishwasher, hand
packager, hospital cleaner, marking clerk, and hotel housekeeper,
all of which the ALJ concluded existed in sufficient numbers in both
the regional and national economies. (Tr. 25-26). As a result, the
ALJ concluded that Claimant was not under a disability from April
25, 2012 through the date of the decision.
(Tr. 26).
Claimant contends the ALJ failed to properly evaluate the
opinion
of
the
consultative
examiner
and
the
non-examining
consultative reviewers. The ALJ gave “great weight” to the opinions
5
of the consultative mental examiner, Dr. Theresa Horton.
(Tr. 24).
In her examination of Claimant, Dr. Horton found he drove to the
appointment with his wife, appeared to be a reliable historian
concerning his condition, complained of anxiety and depression, felt
his condition interfered with his work, and became worse when he was
off his medication.
(Tr. 402).
Claimant reported that he was able
to provide for his personal hygiene but did not help around the
house.
He does not enjoy television or reading, does not use a
computer or the internet, and spends his days “sitting around.”
While he saw relatives, he had no friends and attended no groups,
clubs, or church.
He indicated that he was slow to get things
started and finished and lacked motivation to initiate tasks.
(Tr.
402-03).
Dr. Horton observed that Claimant was dressed and groomed
appropriately, made appropriate eye contact, had normal speech, had
a friendly attitude and appropriate cooperation, walked without
assistance,
sat
comfortably,
did
not
present
excessive
motor
movement, appeared genuine, calm and euthymic, appeared in no
distress, and appeared to have spent time in the sun recently. (Tr.
403).
Claimant’s thought processes were logical, organized, and
goal directed.
He stated that he attempted suicide twice but was
treated and released.
had
not
He had no other unusual though content.
hallucinations
or
paranoid
6
thoughts.
His
mood
He
was
predominantly described as depressed and lacking motivation with
intermittent anxiety and avoidance of large crowds.
content congruent and expressive.
His affect was
Claimant was oriented to person,
place, time, and situation. His recall memory appeared intact. His
concentration was adequate.
He had an adequate fund of information
and was of average intelligence.
exercises were appropriate.
Claimant’s recall and number
When offered scenarios, Claimant
presented with appropriate judgment, but his insight was poor.
Horton believed Claimant was capable of managing benefits.
Dr.
(Tr.
404).
As
far
as
non-examining
consultative
professionals
are
concerned, Claimant’s records were reviewed by Dr. Pamela G. Davis,
a psychologist and “JLK” who was coded as a psychologist.
These
reviewing professionals reached similar if not identical conclusions
on Claimant’s RFC.
They determined Claimant could complete simple
and complex types of tasks.
However, during times of stress, the
ability to attend to detail and sustain average pace would likely
decline.
The reviewers found Claimant would not be well suited to
deal with the public on more than a superficial basis.
adapt to a work situation.
(Tr. 61, 71, 84, 95).
He could
Claimant
appears to contend that the ALJ did not engage in a formulaic
examination of the factors set forth in Watkins v. Barnhart, 350
7
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 medical evidence
and concluded that the objective medical record supported his
decision to give Dr. Horton and the reviewers’ opinions “great
weight.”
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.
No error is found in the ALJ’s
consideration of this opinion evidence.
Claimant also contends the ALJ misidentified his treating
physician by name. This appears to be accurate. The ALJ, however,
confused the issue by referring to Dr. Malini and his records in
reaching his conclusions, citing to Exhibits 3F and 7F, which are,
8
in fact, Dr. Malini’s records.
(Tr. 24).
Claimant’s treating
physician, Dr. Shahram Zandi Hanjari’s records are referenced
earlier in the opinion but not when the conclusion is reached as to
the weight given to the opinion.
The ALJ is not only required to
consider whether a treating physician’s opinion is entitled to
controlling weight, but also to determine the reduced weight to
which it is entitled.
Watkins v. Barnhart, 350 F.3d 1297, 1300
(10th Cir. 2003). More disturbing, however, is the conclusion that
the opinion is not consistent with the objective medical evidence,
“but moreso on the subjective complaints made by the claimant.”
(Tr. 24).
This conclusion stands without objective support in the
record and appears to form the primary basis for rejecting the
treating physician’s opinion.
See Langley v. Barnhart, 373 F.3d
1116, 1121 (10th Cir. 2004)(“In choosing to reject the treating
physician's assessment, an ALJ may not make speculative inferences
from medical reports and may reject a treating physician's opinion
outright only on the basis of contradictory medical evidence and
not due to his or her own credibility judgments, speculation or lay
opinion.” quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th
Cir. 2002)).
On remand, the ALJ shall make clear which physician’s
opinion is being evaluated and engage in a proper analysis as to the
weight to which the opinion is entitled.
9
Step Four and Five Determination
Claimant also contends the ALJ failed to include many of the
limitations
Primarily,
found
by
Claimant
the
reviewing
asserts
the
psychologists
ALJ
should
in
have
the
RFC.
included
a
restriction in Claimant’s ability to attend to detail and sustain
average pace in times of stress in the RFC and questioning of the
vocational expert.
Claimant also states the ALJ should have
included the other restrictions found in Section I of the MRFCA.
“The purpose of section I . . . is chiefly to have a worksheet
to ensure that the psychiatrist or psychologist has considered each
of
these
pertinent
mental
activities
and
beneficiary's degree of limitation. . . .
the
claimant's
or
It is the narrative
written by the psychiatrist or psychologist in Section III . . .
that adjudicators are to use as the assessment of RFC.”
POMS DI
25020.010 B.1.; see also POMS DI 24510.060 B.4.a. (stating that
“Section III . . . is for recording the mental RFC determination
[and where] . . . the actual mental RFC assessment is recorded”);
POMS DI 24510.065 A. (substantially the same).
The ALJ included
more restrictive findings on Claimant’s interaction with the public
than that found by the reviewers.
Defendant contends the findings
of declining pace and attention to detail under stress is not stated
in vocational terms and, therefore, cannot be included in the RFC.
10
Pace is a frequently addressed vocational requirement.
On remand,
the ALJ shall consider any restriction to low stress jobs or the
effect of stress upon pace in his RFC evaluation.
Credibility Determination
Claimant challenges the ALJ’s credibility findings. This Court
is concerned in particular with the conclusion that
The description of the symptoms and limitations, which
the claimant has provided throughout the record, has
generally ben inconsistent and unpersuasive and the
claimant has not provided convincing details regarding
factors that precipitate the allegedly disabling
symptoms. The undersigned finds that, in consideration
of all medical evidence, there appears to be some
inconsistency regarding functional limitations and
allegations, yielding to a partial allegation of
credibility assumption.
(Tr. 24).
Initially, this Court is uncertain as to the precise meaning
of this statement by the ALJ.
More importantly, the ALJ fails to
explain this conclusion and the evidentiary basis for reaching it.
It is well-established that “findings as to credibility should be
closely and affirmatively linked to substantial evidence and not
just a conclusion in the guise of findings.”
F.3d 387, 391 (10th Cir. 1995).
Kepler v. Chater, 68
“Credibility determinations are
peculiarly in the province of the finder of fact” and, as such,
will not be disturbed when supported by substantial evidence.
11
Id.
Factors to be considered in assessing a claimant’s credibility
include (1) the individual’s daily activities; (2) the location,
duration, frequency, and intensity of the individual’s pain or
other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of
any medication the individual takes or has taken to alleviate pain
or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other
symptoms; (6) any measures other than treatment the individual uses
or has used to relieve pain or other symptoms (e.g., lying flat on
his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and (7) any other factors concerning the
individual's functional limitations and restrictions due to pain or
other symptoms.
The
ALJ’s
unsupported.
Soc. Sec. R. 96-7p; 1996 WL 374186, 3.
conclusions
on
credibility
are
unclear
and
The ALJ shall re-evaluate Claimant’s statements on
credibility, without engaging in speculation, on remand.
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
12
Social Security Administration should be and is REVERSED and the
case is REMANDED for further proceedings consistent with this
Opinion and Order.
IT IS SO ORDERED this 21st day of March, 2018.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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