Spillar v. Social Security Administration

Filing 21

OPINION AND ORDER by Magistrate Judge Frank H McCarthy, remanding case (terminates case) (jcm, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
NANCY SPILLAR,
PLAINTIFF,
vs.
MICHAEL J. ASTRUE,
Commissioner of the
Social Security Administration,
DEFENDANT.

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CASE NO. 10-CV-574-FHM

OPINION AND ORDER
Plaintiff, Nancy Spillar, seeks judicial review of a decision of the Commissioner
of the Social Security Administration denying Social Security disability benefits.1 In
accordance with 28 U.S.C. § 636(c)(1) & (3) the parties have consented to proceed
before a United States Magistrate Judge.
The role of the Court in reviewing the decision of the Commissioner under 42
U.S.C. §405(g) is limited to determining whether the decision is supported by
substantial evidence and whether the decision contains a sufficient basis to determine
that the Commissioner has applied the correct legal standards. Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005). Substantial evidence is more than a scintilla, less
than a preponderance, and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Doyal v. Barnhart, 331 F.3d 758 (10th Cir.

1
Plaintiff’s December 18, 2006 application for Disability Insurance benefits was denied initially
and upon reconsideration. A hearing before an Administrative Law Judge (ALJ) was held January 6,
2009. By decision dated March 12, 2009, the ALJ entered the findings which are the subject of this
appeal. The Appeals Council denied review of the findings of the ALJ on July 13, 2010. The action of
the Appeals Council represents the Commissioner's final decision for purposes of further appeal. 20
C.F.R. §§ 404.981, 416.1481.

2003). The Court may neither reweigh the evidence nor substitute its judgment for that
of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005).
Even if the Court might have reached a different conclusion, if supported by substantial
evidence, the Commissioner’s decision stands. White v. Barnhart, 287 F.3d 903, 908
(10th Cir. 2002).
Plaintiff was 53 years old at the time of the hearing. [R. 35]. She claims to have
been unable to work since August 1, 2007, due to back pain, depression, anxiety,
Crohn’s disease and arthritis. [Plaintiff’s Memorandum Brief, Dkt. 18, p. 1].
The ALJ determined that Plaintiff has severe impairments consisting of
degenerative disk disease, degenerative joint disease, Crohn’s disease, depression and
anxiety. [R. 13]. Despite these impairments, the ALJ found that Plaintiff retains the
residual functional capacity (RFC) to perform the full range of sedentary work. [R.16].
He determined that Plaintiff’s RFC precluded returning to her past relevant work (PRW)
as a counter cashier, assistant manager for restaurant, manager for fast food
restaurant, apartment cleaning, truck driver and assembler. [R. 28-29]. Based upon
the testimony of a Vocational Expert (VE), the ALJ concluded that there are jobs
existing in significant numbers in the national economy that Plaintiff could perform with
this RFC and that Plaintiff is therefore not disabled as defined by the Social Security
Act. [R. 29]. The case was thus decided at step five of the five-step evaluative
sequence for determining whether a claimant is disabled. See Fischer-Ross v. Barnhart,
431 F.3d 729, 731 (10th Cir. 2005) (describing the five steps); Williams v. Bowen, 844
F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps in detail).

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Plaintiff asserts the following allegations of error: 1) the ALJ failed to properly
consider the medical source opinions; 2) the ALJ’s finding regarding the claimant’s
credibility is not supported by substantial evidence; 3) the ALJ’s RFC assessment is
legally inconsistent and not supported by substantial evidence; and 4) the ALJ’s
vocational findings are not supported by substantial evidence. [Dkt. 18, p. 5].
After review of the record and the ALJ’s decision, the Court concludes the ALJ
did not properly evaluate Plaintiff’s credibility and RFC in light of the mental
impairments he determined were severe at steps two and three of the evaluative
sequence. For that reason, the Court finds this case must be reversed and remanded
to the Commissioner for reconsideration.2
At step one, the ALJ determined Plaintiff has not engaged in substantial gainful
activity since August 1, 2007, the alleged onset date. [R. 13]. At step two, the ALJ
found Plaintiff’s mental impairments, depression and anxiety, are severe impairments
because they have more than a minimal effect on Plaintiff’s ability to perform basic work
activities. [R. 13].
At step three, where the ALJ considered whether Plaintiff’s impairments met a
listing,3 the ALJ assessed limitations identified in the “paragraph B” criteria as: “mild

2

Because this case is remanded for reconsideration and explanation of the impact that
Plaintiff’s severe mental impairment has on Plaintiff’s RFC, only the medical records relating to
Plaintiff’s mental health care and the ALJ’s treatment of that evidence are discussed in this opinion and
order.
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The listings set out at 20 CFR pt. 404, subpt. P, App. 1 (pt. A) (1989), are descriptions of
various physical and mental illnesses and abnormalities, most of which are categorized by the body
system they affect. Each impairment is defined in terms of several specific medical signs, symptoms,
or laboratory test results. If the impairment meets or equals one of the listed impairments, the claimant
is conclusively presumed to be disabled.

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restriction” in activities of daily living; “moderate difficulties” in social functioning; “mild
difficulties” in concentration, persistence or pace; and “no evidence” of any episodes
of decompensation of extended duration. [R. 15-16]. He concluded that Plaintiff’s
impairments did not meet either the “B” or “C” criteria of the listings.
The ALJ followed these findings with a summarization of the medical evidence
and Plaintiff’s testimony. [R. 16-28]. The ALJ discussed the F&CS records in some
detail and acknowledged that the record contained a variety of medical, psychological
and social work records. [R. 24]. As he had during his questioning of the Plaintiff during
the hearing, the ALJ paid particular attention to a three-month period of time when
Plaintiff failed to take her medication as prescribed and refused to answer the door
when COPES4 came to her apartment after her neighbors called and reported that
Plaintiff was screaming and yelling inside her apartment. [R. 69-73, 824-832]. During
his reading of the treatment records, he apparently concluded that COPES offered
Plaintiff transportation to medical appointments and pharmacies for refills of her
medications and so he discredited Plaintiff’s testimony that she had no means of
transportation to the new clinic location for treatment and medication refills. Based
upon this conclusion, the ALJ stated the following:
I cannot, therefore, credit Ms. Spillar with the degree of
psychological limitation she now urges is attributable to her
psychological impairments because she has failed to

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Community Outreach Psychiatric Emergency Services (COPES) is offered by Family &
Children’s Services (F&CS), a mental health treatment facility, as a 24/7 telephone and mobile
psychiatric crisis intervention. The COPES team is often called by family members, friends, neighbors,
law enforcement officials and social service agencies to assess the level of risk and to stabilize a crisis
by phone or, if necessary, to travel to provide on-site assessment, stabilization and intervention. See
http://www.fcsok.org.

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cooperate with her treatment provider. See, 20 C.F.R.
404.1530.
I find, therefore, based on the evidence of her physical
impairments that Ms. Spillar is limited, physically, as
described above, to-wit: a full range of sedentary work.
[R. 25].
This language suggests the ALJ completely discredited Plaintiff’s testimony
regarding the severity of her mental limitations for the entire relevant period, including
the three month period of time that Plaintiff was not taking her medications as
prescribed. The Court finds such treatment of Plaintiff’s credibility troublesome in two
respects. First, Plaintiff’s testimony that she had no means of transportation to go to
the newly assigned treatment center for counseling and prescription refills does not
conflict with the records from the Family and Children’s Services crisis intervention
team (COPES). Second, in order to deny benefits under the regulation cited by the
ALJ, 20 C.F.R. § 404.1530, the ALJ must make the findings necessary to deny the
claim on the basis of claimant’s noncompliance with prescribed treatment. See Frey v.
Bowen, 816 F.2d 508, 517 (10th Cir. 1987) (four-part test required to assess claimant’s
failure to pursue treatment: 1) whether treatment would have restored ability to work;
2) whether treatment was prescribed; 3) whether treatment was refused; and 4)
whether excuse was justified). The ALJ did not follow that procedure in this case.
Therefore, the ALJ’s denial of benefits based upon his apparent conclusion that none
of Plaintiff’s testimony regarding limitations imposed by her mental impairments was
credible is not based upon substantial evidence.

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In making the RFC assessment, an ALJ must consider how an impairment, and
any related symptoms, may cause physical and mental limitations that affect what a
claimant can do in a work setting. 20 C.F.R. § 404.1545(a)(1). Here, the ALJ found at
steps two and three that Plaintiff has mental impairments that significantly limit her
ability to perform basic work activities but he failed to include any mental limitations in
Plaintiff’s RFC and he failed to provide any explanation for not including any mental
limitations in the RFC. Contrary to the Commissioner’s argument, the ALJ’s finding at
step two that Plaintiff’s mental impairments were severe was not clarified in his later
findings that addressed the impairments individually [Dkt. 19, p. 8] because he never
articulated his mental RFC findings.5
If the ALJ finds at step two that the claimant has mental limitations which
significantly limit Plaintiff’s ability to perform basic work activities, then the ALJ must
include those mental limitations in Plaintiff’s RFC or provide an explanation as to why
the mental limitations are not included in the RFC. See generally, Haga v. Astrue, 482
F.3d 1205, 1208 (10th Cir. 2007); Frantz v. Astrue, 509 F.3d 1299, 1303 (10th Cir.
2007). The ALJ did not do so here.
This case must therefore be reversed to allow the ALJ the opportunity to explain
his treatment of Plaintiff’s mental RFC before she discontinued her medications and
decompensated. Because Plaintiff has also raised an issue in this litigation regarding

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It is clear that the ALJ did not adopt the opinion of the Disability Determination Service
Psychological Consultant who concluded Plaintiff did not have a severe mental impairment because he
found Plaintiff’s mental impairments of depression and anxiety were severe. [R. 24]. At any rate, nonsevere but medically determinable mental impairments must still be taken into account when establishing
a claimant’s RFC. 20 C.F.R. 404.1545(a)(2).

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Plaintiff’s transferable skills, upon remand the ALJ is urged to revisit his step five
findings to resolve those questions.
The decision of the Commissioner finding Plaintiff not disabled is REVERSED
and REMANDED to the Commissioner for further development of the record.
SO ORDERED this 20th day of October, 2011.

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