Ferland v. Social Security Administration
Filing
18
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. (adw, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
BENTLY J. FERLAND,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. CIV-18-130-KEW
OPINION AND ORDER
Plaintiff
Bently
J.
Ferland
(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 in the national economy. . .”
§423(d)(2)(A).
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
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
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.
determination
is
This Court’s review is
whether
and,
the
second,
decision
was
whether
the
Hawkins v. Chater, 113 F.3d
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 20 years old at the time of the ALJ’s decision.
3
Claimant
completed
his
high
school
education
and
attended
vocational-technical training for computer augmented drafting and
designing.
an
Claimant has never been employed.
inability
to
work
beginning
September
Claimant alleges
22,
2003
due
to
limitations resulting from autism and learning disorders.
Procedural History
On
April
24,
2015,
Claimant
protectively
filed
for
supplemental security income pursuant to Title XVI (42 U.S.C. '
1381, et seq.) of the Social Security Act.
Claimant’s application
was denied initially and upon reconsideration.
Administrative
Law
Judge
administrative
hearing
McClain
conducted
an
Claimant
appearing
in
Muskogee, Oklahoma and the ALJ presiding from Tulsa, Oklahoma.
On
by
(“ALJ”)
video
Lantz
On March 6, 2017,
with
April 28, 2017, the ALJ issued an unfavorable decision.
9, 2018, the Appeals Council denied review.
On April
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, he retained the residual functional capacity
4
(“RFC”) to perform a full range of work at all exertional levels
with non-exertional limitations.
Error Alleged for Review
Claimant asserts the ALJ committed error in (1) rejecting the
opinions of a psychologist; and (2) rejecting the opinions of the
reviewing state agency physicians regarding Claimant’s mental
functioning limitations.
Evaluation of the Psychologist Opinion
In his decision, the ALJ determined Claimant suffered from
the severe impairment of autistic spectrum disorder and a learning
disorder.
(Tr. 14).
The ALJ determined Claimant could perform a
full range of work at all exertional levels but with the nonexertional limitations of performing simple, repetitive tasks,
could relate to supervisors and co-workers only superficially, and
could not work with the public.
(Tr. 16).
After consultation
with a vocational expert, the ALJ found Claimant could perform the
representative jobs of dishwasher and electronic assembler, both
of which were found to exist in sufficient numbers in the regional
and national economies.
(Tr. 22).
As a result, the ALJ found
Claimant was not under a disability since April 24, 2015, the date
of the filing of the application.
5
Id.
Claimant contends the ALJ improperly ignored and rejected the
opinion of Melissa Morris, a certified school psychologist.
Ms.
Morris completed a psychological evaluation on Claimant dated
October 7, 2014 at the request of a teacher because he struggled
with task completion and was not making the progress expected.
Claimant was attending an alternative school.
She found Claimant
had problems with his stomach which required several procedures
and medication.
up at night.
He had difficulty making friends and often gets
(Tr. 258).
Ms. Morris administered various standard testing to Claimant.
His overall intellectual ability was found to be in the low average
range of others his age.
standard
testing.
scores
in
the
He scored in the average range of
Phonemic
Awareness
and
Broad
Reading
Claimant’s Working Memory and Thinking Ability were
within the average range.
(Tr. 259).
Claimant’s Verbal Ability was rated in the low average range.
Ms. Morris found he would find age level verbal communication,
knowledge, and comprehension tasks “very difficult.”
Claimant’s
Cognitive Efficiency was found to be in the low range for his age
with his cognitive processing considered “mildly delayed” such
that
he
would
find
similar
age
6
level
tasks
very
difficult.
Mathematics Reasoning was rated in the low range for Claimant’s
age.
It was considered “moderately delayed” with Ms. Morris
finding Claimant’s “very limited mathematics reasoning may be
related to his limited knowledge and comprehension and working
memory capacity.”
Claimant’s Processing Speed was in the low
range and was mildly delayed on age appropriate tasks.
His Math
Calculation Skills were in the “very low range” for Claimant’s age
and were, again, mildly delayed for his age.
Claimant’s Visual-
Auditory Learning, Writing Samples, and Academic Applications were
all delayed.
Ms.
(Tr. 260-61).
Morris
administered
the
Devereux
Scales
of
Mental
Disorders and found Claimant’s Total Scale T score was within the
average
range
but
his
score
was
elevated
in
the
areas
Internalizing and on the Anxiety and Depression scales.
261).
(Tr.
He scored in the Very Likely range on the Autism scale.
displayed significant social skills deficits.
of
He
(Tr. 263).
Ms. Morris concluded Claimant required more support than
could be provided in the general education setting.
(Tr. 257).
Claimant was placed on an Individualized Education Program (“IEP”)
in November of 2014.
(Tr. 288).
(Tr. 275).
He failed many regular classes.
He continued to struggle with academic skills and
7
failed all classes with the exception of science.
He was provided
a quite area to work with repeated instruction and several chances
to redo work.
“His emotional needs are too great and adversely
affect his classroom performance.”
(Tr. 289).
The group monitoring the IEP noted Claimant’s attendance of
an alternative school in the Fort Gibson Public Schools.
They
found Claimant’s behavior ratings all fell in the area of concerns
with social withdrawal, depression, and affective problems.
His
scores on the GARS 2 placed him in the very likely range for autism
by both school and home.
He preferred to be alone, won’t talk,
was withdrawn, worried, failed to finish tasks, struggled with
concentration, and was functioning poorly in school.
He did a
good job with computers and liked to be a businessman and make
money from home.
His academic strengths were reading fluency and
writing fluency.
His cognitive strengths appeared to be auditory
working memory and sound blending.
Ms.
Morris
noted
that
(Tr. 290).
accommodations
for
Claimant’s
limitations in processing speed might include providing extended
time, reducing the quantity of work required (breaking large
assignments into two or more component assignments), eliminating
or limiting copying activities, and increasing “wait” times after
8
questions are asked as well as after responses are given.
(Tr.
267).
The ALJ addressed Ms. Morris’ findings by stating
In terms of the claimant’s alleged Asperger’s
syndrome and learning disability, the claimant
was in alternative education classes in the
12th grade and was under an IEP (individualized
education plan).
He was in all resource
classes. . . . This placement was determined
after a psychological evaluation by Melissa
Morris, M.Ed. in October 2014. . . .
(Tr. 18).
The ALJ failed to discuss any of Ms. Morris’ findings on
Claimant’s processing limitations or cognitive deficiencies and
the effects these conditions have upon Claimant’s ability to engage
in basic work activities.
Soc. Sec. R. 06–03p notes that in
deciding disability, the regulations require the Commissioner to
consider medical and other evidence.
20 C.F.R. §§ 404.1512,
404.1513, 416.912, 416.913. Evidence to be considered includes
opinion evidence from “acceptable medical sources,” from “other”
medical sources, from “non-medical sources” who have contact with
the claimant in their professional capacity, and from “other”
nonmedical
neighbors.
sources
such
as
spouses,
parents,
friends,
and
While Claimant characterizes Ms. Morris as a “non-
medical source”, the regulations consider “licensed or certified
psychologists” including “school psychologists” as “acceptable
9
medical sources.” Soc. Sec. R. 06-03P, 2006 WL 2329939, *1 (August
9, 2006).
Whether Ms. Morris was a “non-medical source” or an
“acceptable medical source”, the ALJ was required to discuss the
opinion, state the weight it was given in the decision, and
determine
its
effect
upon
his
limitations.
This
Court
specifically rejects as an impermissible post hoc explanation by
Defendant that Ms. Morris’ opinions were effectively rejected or
addressed in any way through the circuitous avenue of adopting the
opinions of other medical professionals.
contained in the decision.
No such discussion was
The ALJ simply failed to address the
significant and relevant opinion evidence offered by Ms. Morris.
He shall do so on remand.
Consideration of Mental Limitations
Claimant also asserts the ALJ failed to address the mental
functional
physicians.
limitations
found
by
the
reviewing
state
agency
On January 11, 2016, Dr. Laura Eckert provided a
functional analysis which found Claimant was markedly limited in
the ability to understand and remember detailed instructions,
ability to carry out detailed instructions, and ability to interact
appropriately with the general public.
She was moderately limited
in the areas of the ability to work in coordination with or in
proximity to others without being distracted by them, ability to
10
complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods, ability
to ask simple questions or request assistance, ability to get alone
with co-workers or peers without distracting them or exhibiting
behavioral
behavior
extremes,
and
to
ability
adhere
to
to
basic
maintain
social
standards
of
appropriate
neatness
and
cleanliness, ability to respond appropriately to changes in the
work setting, and ability to set realistic goals or make plans
independently of others.
(Tr. 65-67).
Dr. Eckert 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, could adapt to a work
situation with forewarning in a reasonably stable and familiar
work environment.
(Tr. 67).
Dr. Bruce Lochner made consistent
findings in his assessment dated March 23, 2016.
(Tr. 79-81).
The ALJ recited these physicians’ findings and stated that he
incorporated them in his RFC assessment.
He also stated he gave
them “diminished weight” because portions of the opinions were
issued “in compliance with Regulations no longer in effect. . . .”
(Tr. 20).
Despite these findings, the ALJ failed in include any
restrictions on the ability to understand, remember, or carry out
11
detailed instructions in the RFC.
(Tr. 16).
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.
Sec. R. 96-6p, 1996 WL 374180.
Soc.
An ALJ “is not entitled to pick
and choose through an uncontradicted medical opinion, taking only
the parts that are favorable to a finding of nondisability.”
v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
Haga
The failure to
include the additional restriction was not harmless since the ALJ
identified jobs which Claimant could ostensibly perform with a
reasoning level of R2 which requires the ability to “[a]pply
commonsense understanding to carry out detailed but uninvolved
written or oral instructions.”
App. C, 1991 WL 688702.
Dictionary of Occupational Titles,
The additional limitation upon the ability
to understand and carry out detailed instructions is in direct
conflict
with
the
requirements
of
R2
occupations.
If
the
restriction on detailed instructions were excluded from Claimant’s
RFC, he would not be able to perform the identified jobs.
On
remand, the ALJ shall consider the limitation in the ability to
understand and carry out detailed instructions found by the state
agency physicians, include the limitation in his RFC assessment,
or explain the basis for excluding the limitation.
12
Conclusion
The
decision
of
the
Commissioner
is
not
supported
by
substantial evidence and the correct legal standards were not
applied.
fourth
Therefore, this Court finds, in accordance with the
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 30th day of September, 2019.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?