Fluaitt v. Social Security Administration

Filing 19

OPINION AND ORDER by Magistrate Judge Kimberly E. West reversing the ruling of the Commissioner of Social Security Administration in accordance with the fourth sentence of 42 U.S.C. § 405(g) and remanding the case for further proceedings. (slr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
TRINA L. FLUAITT,

)
)
)
)
)
)
)
)
)
)

Plaintiff,

COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

Case No. CIV-18-070-KEW

OPINION AND ORDER
Plaintiff Trina L. Fluaitt (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.
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 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
in the national economy. . .” 42 U.S.C. § 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. 1
Judicial

review

of

the

Commissioner’s

limited in scope by 42 U.S.C. § 405(g).
limited

to

supported

two
by

inquiries:

substantial

first,
evidence;

correct legal standards were applied.
1162,

1164

(10th

Cir.

1997)

is

This Court’s review is

whether
and,

determination

the

decision

was

whether

the

second,

Hawkins v. Chater, 113 F.3d

(citation

omitted).

The

term

“substantial evidence” has been interpreted by the United States

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. 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. 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, 75051 (10th Cir. 1988).

2

Supreme Court to require “more than a mere scintilla.
such

relevant

evidence

as

a

reasonable

adequate to support a conclusion.”

mind

might

It means
accept

as

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 51 years old at the time of the ALJ’s decision.
She has a limited education and worked in the past as a laundry
worker and a housekeeper. Claimant alleges an inability to work
beginning on July 24, 2015, due to limitations resulting from back
problems, high blood pressure, obesity, depression, and anxiety
attacks.
Procedural History
On July 14, 2015, Claimant protectively filed for a period of
disability and disability insurance benefits under Title II (42
U.S.C. § 401, et seq.) of the Social Security Act.

Claimant’s

application was denied initially and upon reconsideration.
3

On

December
McClain

12,

2016,

conducted

the
a

Administrative

video

hearing

from

Claimant appeared in Poteau, Oklahoma.
ALJ entered an unfavorable decision.

Law

Judge(“ALJ”)

Tulsa,

Lantz

Oklahoma,

and

On February 2, 2017, the

Claimant requested review by

the Appeals Council, and on January 9, 2018, it denied review.

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.
Decision of the Administrative Law Judge
The ALJ made his decision at steps four and 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 medium work,
with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error by (1) failing to
reach a proper RFC determination (with several subparts to the
issue); and (2) failing to reach a proper step four determination
with respect to past relevant work.
RFC Determination
In his decision, the ALJ found Claimant suffered from severe
impairments
disorder
disorder.

of

with

degenerative
depressed

(Tr. 15).

disc

mood,

disease,
and

obesity,

unspecified

adjustment
personality

He determined Claimant could perform medium

work with additional limitations.
4

In so doing, the ALJ found

Claimant

could

occasionally

lift

and/or

carry

fifty

pounds,

frequently lift and/or carry twenty-five pounds, stand and/or walk
at least six hours in an eight-hour workday, and sit for at least
six hours in an eight-hour workday.

Claimant was limited to

simple, repetitive tasks, and she was able to relate to supervisors
and coworkers only superficially.
public.

She could not work with the

(Tr. 18).

After consultation with a vocational expert (“VE”), the ALJ
determined Claimant could perform her past relevant work as a
housekeeper and laundry worker. (Tr. 24-25).

Relying on the VE’s

testimony, the ALJ also determined Claimant could perform the
representative jobs of hand packager and dishwasher, both of which
the

ALJ

found

existed

economy. (Tr. 25-26).

in

sufficient

numbers

in

the

national

As a result, the ALJ concluded Claimant was

not under a disability from July 24, 2015, her amended alleged onset
date, through the date of the decision. (Tr. 26).
Claimant contends the ALJ’s RFC assessment is unsupported by
substantial evidence.

“[R]esidual functional capacity consists of

those activities that a claimant can still perform on a regular
and continuing basis despite his or her physical limitations.”
White v. Barnhart, 287 F.3d 903, 906 n.2 (10th Cir. 2001).

A

residual functional capacity assessment “must include a narrative
discussion describing how the evidence supports each conclusion,
citing specific medical facts . . . and nonmedical evidence.” Soc.
5

Sec. Rul. 96-8p.

The ALJ must also discuss the individual’s

ability to perform sustained work activities in an ordinary work
setting on a “regular and continuing basis” and describe the
maximum amount of work-related activity the individual can perform
based on evidence contained in the case record. Id.

The ALJ must

“explain how any material inconsistencies or ambiguities in the
evidence in the case record were considered and resolved.”

Id.

However, there is “no requirement in the regulations for a direct
correspondence between an RFC finding and a specific medical
opinion on the functional capacity in question.”

Chapo v. Astrue,

682 F.3d 1285, 1288 (10th Cir. 2012).
Claimant first asserts that even though the ALJ determined
Claimant suffered from severe degenerative disc disease in the
lumbar spine and obesity, he failed to include any non-exertional,
postural limitations in the RFC.

The ALJ discussed the medical

evidence in the decision, including the objective evidence cited
by

Claimant

in

support

of

such

limitations.

He

evaluated

Claimant’s symptoms, the objective medical evidence, and the other
evidence in the record and determined that no further limitations
were warranted other than those included in the RFC. (Tr. 19-22).
The Court will not reweigh the evidence to determine whether
substantial evidence exits to support the ALJ’s decision.
Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004).

6

See

Claimant next asserts the RFC is deficient because the ALJ
adopted the opinions of the non-examining state agency physicians
in his decision from October 16, 2015 and February 3, 2016.

She

contends these opinions cannot serve as substantial evidence to
support the RFC, because neither physician examined Claimant and
the opinions were issued prior to objective findings of right
paresthesia and an updated MRI showing progression of Claimant’s
degenerative disc disease.

The ALJ considered the opinions of the

state agency physicians in the decision and after evaluating
Claimant’s symptoms and considering the objective evidence in the
record, he determined their opinions that Claimant could perform
medium work were consistent with the record as a whole.

(Tr. 23).

He noted the evidence of Claimant’s MRI findings from February 11,
2016, and the January of 2016 treatment records of Dr. Solangel
Pollack, M.D., noting right leg paresthesia.

The ALJ relying on

other medical evidence in the record determined that the additional
findings did not reduce Claimant’s capacity “to perform workrelated activities to a greater degree than the limited range of
medium work set forth in the RFC.

(Tr. 21-22).

It is “the ALJ,

not a physician, [who] is charged with determining a claimant’s
RFC from the medical record.”

Howard, 379 F.3d at 949, citing

Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *5.
Claimant also argues that the ALJ inappropriately relied upon
her having “routine care” when assessing the RFC.
7

She contends

that she had breast reduction surgery to relieve her back pain and
she was also without insurance for part of the time.

However, the

ALJ noted that Claimant underwent “routine follow-up care”, when
she was seeing Dr. Pollack in 2016.
of her treatment as routine.

He did not characterize all

(Tr. 21-22).

Moreover, Claimant

never claimed she did not seek treatment because she could not
afford it.

Claimant testified that she had not always had medical

insurance, but since she has had insurance, she has been seeing
more doctors.

(Tr. 19).

The ALJ did not improperly consider

Claimant’s effort to seek treatment.

See Flaherty v. Astrue, 515

F.3d 1067, 1070-71 (10th Cir. 2008) (“To the extent Ms. Flaherty
claims she could not afford treatment . . ., the record indicates
that she had health insurance during at least part of the relevant
period . . . and she did not testify during the hearing that a
lack of finances was the reason she did not receive treatment[.]”).
Claimant
opinion

of

argues

the

consulting

determining the RFC.

ALJ

inappropriately

physician

Azhar

considered

Shakeel,

M.D.,

the
when

Dr. Shakeel noted Claimant complained of

back pain, but otherwise, he determined her range of motion and
physical examination were normal. (Tr. 362-69). The ALJ discussed
Dr. Shakeel’s opinion in the decision and he weighed it with the
other evidence in the record to determine that Claimant had an RFC
for medium work with additional limitations.
here.
8

There is no error

Claimant

next

argues

that

the

ALJ

ignored

Claimant’s

testimony and medical evidence of Claimant’s impairments to her
knee and neck and paresthesia.

Claimant contends that even if

these impairments were considered “non-severe,” the ALJ should
have considered them in the RFC.

The ALJ noted in his decision

that he considered all medically determinable impairments, even
those that were not severe, in the RFC determination. (Tr. 16).
In

his

RFC

assessment,

the

ALJ

specifically

considered

an

examination of Claimant wherein it was noted Claimant suffered
from chronic knee and neck pain and paresthesia (upper and lower
extremities). (Tr. 21). Thus, the ALJ did not ignore this evidence
when assessing Claimant’s RFC.
Claimant further contends that the ALJ determined her obesity
was a severe impairment, but he failed to identify any functional
limitations related to her obesity in the RFC.

Social Security

Ruling 02-1p requires that an ALJ consider that “the combined
effects of obesity with other impairments can be greater than the
effects of each of the impairments considered separately” when
assessing the RFC.
12, 2002).

Soc. Sec. Rul. 02-1p, 2000 WL 628049, *1 (Sept.

“Obesity in combination with another impairment may or

may not increase the severity or functional limitations of the
other impairment.”

Id. at *6.

Thus, “assumptions about the

severity or functional effects of obesity combined with other
impairments [will not be made].”

Id.
9

Claimant cites to DeWitt v. Astrue, 381 Fed. Appx. 782 (10th
Cir. 2010) in support of her argument that the ALJ failed to
consider her obesity when assessing the RFC.

In Dewitt, although

the Tenth Circuit ultimately determined the ALJ failed to give
adequate

consideration

to

the

claimant’s

obesity,

the

court

suggested that if the medical expert had considered her obesity
with her other impairments, the ALJ’s reliance on the medical
expert’s

testimony

requirement.

for

the

RFC

could

have

satisfied

the

Id. at *3.

Here, the ALJ determined the opinions of the state agency
physicians were consistent with the record as a whole, and he
agreed with their conclusion that Claimant could perform medium
work.

The state agency physicians’ review of the record reveals

that in reaching their conclusions that Claimant could perform
medium work, they both considered her obesity a severe impairment
(Tr. 81, 97), her complaints of back pain when bending, stooping,
sitting for long periods of time, or twisting (Tr. 84, 100), and
determined her obesity did not further affect the RFC. (Tr. 85,
101).

Thus, this is sufficient to establish that Claimant’s

obesity was considered with her other impairments in the RFC.

See

Howard, 379 F.3d at 948 (“[T]he consultative examination and
resulting report, which took into account claimant’s obesity,
supports the ALJ’s RFC determination.”).

10

Claimant lastly contends the ALJ failed to include all the
necessary limitations for her mental impairments in the RFC.
First, she argues that the RFC does not properly account for her
moderate difficulties in maintaining concentration, persistence,
or pace.

However, the ALJ was not required to include these

restrictions in the RFC.

See Bales v. Colvin, 576 Fed. Appx. 792,

798 (10th Cir. 2014); see also Soc. Sec. Rul. 96-8p, 1996 WL
374184, at *4 (July 2, 1996) (“[T]he limitations identified in the
‘paragraph B’ and paragraph ‘C’ criteria are not an RFC assessment
but are used to rate the severity of mental impairment(s) at steps
2 and 3 of the sequential evaluation process.

The mental RFC

assessment used at steps 4 and 5 of the sequential evaluation
process requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraphs B
and C of the adult mental disorders listings.”).

The Court finds

no error in this regard.
Second, Claimant argues that the state agency psychologists
determined Claimant was markedly limited in her ability to carry
out detailed instructions.
agency

psychologists’

The ALJ adopted portions of the state

opinions,

“diminished, but partial weight.”
he

gave

more

weight

to

the

stating

that

(Tr. 23).

opinions

of

he

gave

them

The ALJ noted that
the

psychological

consultants because their opinions conformed with the Revised
Medical Criteria for Evaluating Mental Disorders, and the opinions
11

from the state agency psychologists did not.

The ALJ notes that

the new criteria did not become effective until January 17, 2017.
(Tr. 23).

In any event, the ALJ did not specifically address which

portions of the state agency psychologists’ opinions he gave
“diminished weight” and those he gave “partial weight.”

The ALJ

may not “pick and choose among medical reports, using portions of
evidence favorable to his position while ignoring other evidence.”
Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004), citing
Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984).
The ALJ’s omission of the marked limitation is not harmless
to

Claimant’s

case.

The

ALJ

did

not

reference

“detailed

instructions” in the RFC or in the hypothetical questions to the
VE.

(Tr. 72-73).

In response to the hypothetical question, and

relying on the Dictionary of Occupational Titles, the VE indicated
Claimant could perform her past relevant work as a housekeeper
(DOT # 323.687-010) and a laundry worker (DOT # 361.685-018) and
other jobs in the national economy, including a hand packager (DOT
# 920.587-018) and a dishwasher (DOT # 318.687-010).

Id.

Based

on the VE’s testimony, the ALJ determined Claimant could perform
her past relevant work as well as the jobs of hand packager and
dishwasher.

(Tr. 24-26).

The VE testified and the DOT confirms that Claimant’s past
relevant work and the additional jobs identified by the VE include
a reasoning level of 2, which requires the ability to “[a]pply
12

commonsense understanding to carry out detailed instructions but
uninvolved written or oral instructions.”

Thus, if the limitation

that Claimant is markedly limited in her ability to carry out
detailed instructions is incorporated into the RFC, the Claimant
will be unable to perform her past relevant work and the other
jobs identified by the VE and relied upon by the ALJ in the
decision.

On remand, the ALJ shall re-evaluate the RFC in light

of the his evaluation of the opinion evidence from the state agency
psychologists.

He should make the required modifications in the

RFC consistent with the limitations he finds.
Step Four Determination Regarding Past Relevant Work
Claimant asserts the ALJ’s step four determination that she
can perform her past relevant work is legally flawed.

The Court

is remanding the case for the ALJ to re-evaluate the RFC based on
the above-described deficiency.

The may be required to further

modify the RFC and the hypothetical questioning of the VE.

He may

also have to make a new determination of whether Claimant can
perform her past relevant work.
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
13

case is REMANDED for further proceedings consistent with the
Opinion and Order.
IT IS SO ORDERED this 30th day of September, 2019.

KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

14