Adams v. Social Security Administration

Filing 25

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
LESHA L. WOODS and
KELBY L. ADAMS on behalf of
Verna D. Adams, deceased,
Plaintiff,
v.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-17-333-KEW

OPINION AND ORDER

Plaintiffs Lesha L. Woods and Kelby L. Adams on behalf of Verna
D. Adams, deceased (collectively referred to as 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.
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 52 years old at the time of the ALJ’s decision.
Claimant completed her education through the ninth grade.

Claimant

has worked in the past as an cage manager for a casino.

Claimant

alleges an inability to work beginning July 26, 2012 due to
limitations resulting from back fusion surgery, back pain, migraine

3

headaches, high blood pressure, anxiety, and COPD.
Procedural History
On April 7, 2014, 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

Daniel

Dallas, Texas.
decision.

denied

initially

and

upon

On March 4, 2016, Administrative Law Judge

reconsideration.

(“ALJ”)

were

Curran

conducted

an

administrative

hearing

in

On May 10, 2016, the ALJ entered an unfavorable

The Appeals Council denied review on July 12, 2017.

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 less than a full range of
light work with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) ignoring and

4

rejecting the opinion of Claimant’s treating physician; (2) failing
to properly assess probative medical evidence related to Claimant’s
efforts to obtain treatment for her migraine headaches; and (3)
posing

hypothetical questions of the vocational expert which did

not mirror her impairments with precision.
Evaluation of the Opinion Evidence
In his decision, the ALJ found Claimant suffered from the
severe impairments of disorders of the spine, degenerative disc
disease, depressive disorder, and anxiety-related disorder.
133).

(Tr.

The ALJ determined Claimant retained the RFC to perform less

than a full range of light work.

In so doing, he found Claimant

could lift/carry 20 pounds occasionally and ten pounds frequently;
stand and walk for six hours in an eight hour workday and sit for
six hours in an eight hour workday; no climbing ladders, ropes, or
scaffolds; all other postural functison limited to occasional;
occasional use of upper extremtities, except overhead reaching
limited to frequent, “gives 1/3 to rest”; and avoid exposure to
pulmonary irritants due to respiratory problems, limiting Claimant
to only work in an indoor climate-controlled environment.

The ALJ

found Claimant had the ability for understanding, remembering, and
carrying out only simple instructions; making judgments that are
commensurate with the functions of unskilled work – i.e., simple

5

work-related decisions; responding appropriately to supervision, coworkers and usual work situations; and dealing with changes in a
routine work setting.

However, the ALJ also limited Claimant to

work that does not require joint decision-making or teamwork and
contact with members of the general public, which must be no more
than occasional; and Claimant must not be required to direct or
receive directions from them.

Interactions on the job with other

people must be of a superficial rather than of a substantive nature.
Claimant was determined to be able to do only simple, routine,
solitary, repetitive work that does not require close oversight by
a supervisor.

For medication/mental reasons, Claimant must avoid

exposure to unguarded hazards such as uneven walking surfaces, open
nip points, unprotected heights, moving machinery, and open pits,
open flames, open pools of water, or dangerously sharp objects.
Finally, Claimant must have work that does not require more than
occasional exposure to extremes of temperature, loud noises, smoke,
flashing lights or other intrusive environmental distractions. (Tr.
134-35).
After consultation with a vocational expert, the ALJ determined
Claimant could perform the representative jobs of food inspector,
belt inspector, and laundry inspector, all of which the ALJ found
existed

in

sufficient

numbers

in

the

national

and

regional

economies. (Tr. 139). As a result, the ALJ concluded that Claimant

6

was not under a disability from July 26, 2012 through the date of
the decision.

Id.

Claimant contends the ALJ failed to properly consider the
opinion of her treating physician, Dr. Michael Irvin.

Claimant

received treatment from Dr. Irvin since November of 2010. By letter
dated September 11, 2014, Dr. Irvin related that he was treating
Claimant for “multiple medical conditions” and that he did not feel
she could work at this time as a result of these conditions.

He

also stated that he did not believe the conditions “will improve in
the near future and it is unknown at this time if she will ever be
able to enter the workforce.”

(Tr. 1182).

On July 1, 2016, Dr. Irvin also provided a letter to the
Appeals

Council

which

further

defined

the

“multiple

medical

conditions” as “depression, anxiety, back pain, degenerative disc
disease

and

spinal

stenosis

in

her

neck,

hypertension, migraine headaches, and edema.”

shoulder

pain,

He stated that some

of the conditions had become severe and all affected her on a daily
basis.

He wrote that he was not treating Claimant with medication.

Dr. Irvin related that Claimant did not have the financial ability
to pay for care.

He opined that Claimant could not work in any

capacity and that he did not feel her conditions would improve
without

proper

imaging

and

treatment

Claimant’s financial condition.

which

(Tr. 124).

7

were

precluded

by

Claimant contends the ALJ never referenced Dr. Irvin’s letter
of September of 2014 and that he only mentioned one specific
treatment record from Dr. Irvin despite a considerable record of
treatment.

The ALJ is required to consider every medical opinion

in reaching his assessment and must provide specific, legitimate
reasons for rejecting an opinion. Doyal v. Barnhart, 331 F.3d 758,
764 (10th Cir. 2003).

Defendant argues that the statement by Dr.

Irvin serves as a vocational opinion rather than a medical opinion
and, therefore, it is typically reserved to the Commissioner.

Even

though this is an issue reserved to the Commissioner, the ALJ must
still assess and consider the opinion. “[O]pinions from any medical
source

on

ignored.”
2002).

issues

reserved

to

the

Commissioner

must

never

be

Miller v. Barnhart, 43 Fed.Appx. 200, 204 (10th Cir.

The ALJ did just that in the case of Dr. Irvin’s letter.

On remand, the ALJ shall consider and weigh the opinion together
with the July, 2016 letter which was provided to the Appeals
Council.2
Discussion of Probative Evidence

2

Defendant also contends the ALJ discussed the opinion of a state
agency medical consultant who considered Dr. Irvin’s letter opinion.
Therefore, Defendant asserts the ALJ considered the letter.
This
circuitous type of vicarious consideration of an opinion is not
defensible when the state agency consultant’s discussion of Dr. Irvin’s
opinion is not discussed in the ALJ’s decision. He merely referenced the
state agency consultant’s opinion on the exertional level at which
Claimant could work.

8

Claimant

also

asserts

the

ALJ

ignored

probative

medical

evidence regarding her efforts to seek treatment for her migraine
headaches.

Claimant sought treatment for her migraine headaches in

the emergency room five times between January of 2012 and April of
2012, on two occasions in September of 2012, and on four occasions
in December of 2012 as well as in February of 2013, April of 2013,
May of 2013, twice in July of 2013, twice in August of 2013, twice
in October of 2013, twice in November of 2013, and twice in December
of 2013.

The treatment usually involved injections of Demerol and

an anti-nausea medication.

(Tr. 776-77, 786-87, 790-92, 799-802,

804-06, 807, 808-11, 812, 813-16, 817, 818, 820, 822-23, 825-29).
Claimant also sought emergency room treatment for her migraines on
three occasions in January of 2014, twice in February of 2014, once
in March of 2014, once in April of 2014, and once in May of 2014.
(Tr. 803, 830-36).

In the interim, Dr. Irvin also treated Claimant

for migraine headaches in April, May, July, August, and October of
2012, and November of 2013.

(Tr. 651-52, 662-65, 733-34, 737-38,

748-49, 785).
The ALJ only referenced Claimant’s migraine condition as a part
of referencing her disability report form and once in connection
with a recognition by the psychiatric reviewer, Dr. Mary Rolison.
According to the ALJ, Dr. Rolison noted that Claimant received a
diagnosis of migraine headaches on November 21, 2013. (Tr. 135-36).

9

Given the considerable evidence of Claimant’s treatment record
and ongoing difficulties with her migraine headaches, the ALJ should
have considered the condition and its effects both singly and in
combination with her other impairments to determine whether they
interfered
activities.

with

Claimant’s

ability

to

engage

in

basic

work

“The record must demonstrate that the ALJ considered

all of the evidence, but an ALJ is not required to discuss every
piece of evidence. . . . Vincent ex rel. Vincent v. Heckler, 739
F.2d 1393, 1394–95 (9th Cir. 1984).

Rather, in addition to

discussing the evidence supporting his decision, the ALJ also must
discuss the uncontroverted evidence he chooses not to rely upon, as
well as significantly probative evidence he rejects.

Id.; see also

Zblewski v. Schweiker, 732 F.2d 75, 79 (7th Cir. 1984) (“a minimal
level of articulation of the ALJ's assessment of the evidence is
required in cases in which considerable evidence is presented to
counter the agency's position”).”
1009–10 (10th Cir. 1996).
meaningful

consideration

Clifton v. Chater, 79 F.3d 1007,

The ALJ’s decision lacks evidence of any
of

the

treatment

record

supporting

Claimant’s migraine headaches as a debilitating impairment.

On

remand, the ALJ shall analyze the evidence concerning Claimant’s
treatment for migraines, whether the condition continues to require
such frequent treatment, and the effect the condition has upon her
ability to engage in work activities.

10

Step Five Analysis
Claimant also contends the ALJ’s hypothetical questioning of
the vocational expert did not mirror the RFC with precision.
Specifically, the ALJ’s questioning included occasional overhead
reaching but frequent reaching in all other directions and frequent
handling

and

fingering.

(Tr.

165-66).

The

RFC

included

a

restriction to only occasional use of upper extremities. (Tr. 134).

“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 hypothetical questioning of the vocational expert did not
mirror the ALJ’s RFC in all respects.

11

Moreover, since this Court

is requiring a re-evaluation of the RFC in light of the other
deficiencies in the ALJ’s decision, the questioning may require
further modification to accommodate any changes to the RFC 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
Social Security Administration should be and is REVERSED and the
case is REMANDED for further proceedings consistent with the Opinion
and Order.
IT IS SO ORDERED this 19th day of March, 2019.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

12