Grubbs v. Social Security Administration

Filing 18

OPINION AND ORDER by Magistrate Judge Paul J Cleary reversing and, remanding case (terminates case) (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
KATHY C. GRUBBS,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of the
Social Security Administration,
Defendant.

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Case No. 11-CV-097-PJC

OPINION AND ORDER
Claimant, Kathy C. Grubbs (“Claimant”), pursuant to 42 U.S.C. § 405(g), requests
judicial review of a final decision of the Commissioner (“Commissioner”) of the Social Security
Administration, denying her application for supplemental security income benefits under Title
XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq. In accordance with 28 U.S.C. §
636(c)(1) and (3), the parties have consented to proceed before a United States Magistrate Judge.
Any appeal of this order will be directly to the Tenth Circuit Court of Appeals. 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, the undersigned recommends that the Commissioner’s decision be
REVERSED AND REMANDED.
Claimant’s Background
Claimant was 53 years old at the time of the hearing before the ALJ on February 12,
2009. (R. 23-51). Claimant left school prior to completing the seventh grade. (R. 48). For most
of her adult life, Claimant was a housewife, though she had worked as a housekeeper and
molder/machine feeder and served as a foster parent. (R. 28-33). Claimant testified her inability

to work was caused by degenerative disk disease, degenerative joint disease, cardiac problems
and depression. (R. 27, 39-40).
Claimant testified that she endured chronic pain due to degenerative disk disease. (R. 35,
39). She testified that the disease caused her to have pain in her legs, which had increased to the
point where she was in continuous pain, with pain starting at her hip and radiating down to her
feet. (R. 35, 37-38). Claimant described the pain as achy and sharp. Id. Claimant further
described her feet as staying hot and feeling like her legs were asleep. (R. 37). Claimant
complained of lost strength in her legs and being unable to control them. (R. 35). She also
complained of leg cramps that caused her pain and made it difficult for her to sit. Id. She took
pain medication and had to lie down when she was no longer able to tolerate her pain. (R. 3738).
Claimant also testified that the degenerative joint disease caused her pain in her back and
arms, with her arms aching and feeling weak. (R. 43-44). She suffered occasions of
“unbearable” shoulder pain. (R. 43). Claimant testified the problems with her arms caused her
difficulty with gripping and dropping things. (R. 43-44). Repetitive motion made Claimant’s
hands hurt and ache. (R. 44). On occasion, while driving, her hands seized up and she lost
control of them. Id. She said the heaviest item she could lift was a half-gallon of milk. (R. 44).
Claimant testified that she suffered dizziness and vertigo since a heart attack in 2006. (R.
39-40). She claimed to suffer dizzy spells two to three times a week. (R. 40). Being dizzy made
Claimant feel nauseated as though she might pass out. Id. She had chest pain that caused her to
be short of breath and unenergetic. (R. 41). She experienced shortness of breath on exertion. Id.
She said that loading the dishwasher and walking 100 feet to her mailbox caused her to be short

2

of breath. (R. 42). Claimant testified that Dr. Childs at the Salina Clinic at the Cherokee Nation
had her take an aspirin a day for her heart condition. (R. 45). Claimant also said that she was
prescribed Prozac by a psychiatrist, Colleen Springer,1 at the same clinic. (R. 46).
Claimant described herself as being very active in the past and said that she had enjoyed
helping people and working. (R. 35, 42). Her physical limitations left her unable to do the things
she used to do. Id. She testified that her attendance at the hearing would cause her difficulty to
the point that she would have to go home afterwards to take a pill that would knock her out. (R.
42).
Claimant was transported via ambulance to the Emergency Room at the Mayes County
Medical Center on August 7, 2000. (R. 167-72). At that time, she complained of chest pain and
pressure, nausea, and sweats. (R. 167). She reported that she had been experiencing left-sided
chest pain for about a month. Id. Her blood pressure was recorded by the nurse as 154/95, and
other blood pressure recordings were 142/92, 136/68 and 129/78. (R. 167, 172). However, other
than noting post-surgical changes from a previous bypass surgery, Claimant’s chest x-ray was
normal. (R. 171).
On February 27, 2006, a CT of Claimant’s chest, abdomen and pelvis revealed benignappearing calcified right lung granulomas and a left cortical cyst of increased size. (R. 204-05). In
comparison to a CT from October 2001, there was increased post-inflammatory scarring of the
right kidney. Id. The CT also revealed the “heart size is normal with no pericardial effusion.
Calcified atherosclerotic changes of the coronary vessels are noted.” (R. 204).

1

It is noted by the undersigned that Ms. Springer is not a psychiatrist, but appears to be a
counselor with an MSW. (R. 333).
3

On June 22, 2006, Claimant presented to the Emergency Room at Claremore Indian
Hospital complaining that she was weak and shaky, and had been experiencing chest pressure.
(R. 174). Claimant reported that two days earlier, she had felt weak with sharp pain in her chest
lasting four minutes, with pain into her left arm, as well as dizziness and headache. Id. The
records reflect negative cardiac enzymes, and an electrocardiograph (“EKG”) performed showed
she had normal sinus rhythm. (R. 174-75). A chest x-ray conducted on June 22, 2006 was
similar to one from March 5, 1999 and evidenced normal heart size, no acute disease, a prior left
thoracotomy2 and healed granulomatous disease. (R. 180).
Claimant presented to Sam Hider Jay Community Clinic on October 30, 2006 complaining
of chest pain, bilateral leg pain, left arm pain, weakness, and shortness of breath. (R. 190). She
was additionally seen for a mass on her right breast. Id. The results of a chest x-ray indicated
“[n]o acute infiltrates, effusions or soft tissue masses. . . Heart is not enlarged and bony structures
are intact” and “no acute chest disease.” (R. 203). At a follow-up visit on November 15, 2006,
Claimant was evaluated for ischemia secondary to her complaints of chest pain and underwent an
adenosine cardiolite. (R. 188, 202). The adenosine cardiolite was completed “without chest pain
or EKG changes” and the images showed “no areas of fixed deficit or redistribution indicative of
low probability of significant coronary artery disease.” (R. 202).
Claimant had a mammogram and bilateral breast ultrasound on December 14, 2006. (R.
186, 199-201, 241-43). The results showed she had mild benign bilateral ductal dilation, but
without intraluminal masses or suspicious shadowing. (R. 200, 242). The radiologist

2

A thoracotomy is a “surgical incision of the chest wall.” Taber’s Cyclopedic Medical
Dictionary 1985-86 (17th ed. 1993).
4

recommended correlation with clinical findings of palpable mass to determine if a surgery referral
was warranted. (R. 200, 243).
On March 7, 2007, Lawerence C. Brotherton, Jr., M.D., provided a consultation for
surgical evaluation of Claimant’s bilateral breast masses. (R. 236-39). Dr. Brotherton’s report
indicates that Claimant was self-employed. (R. 237). Claimant reported a history of fatigue,
chest pain, pain in legs and hips with exercise, shortness of breath with exertion, arthritis,
intermittent numbness, and herniated discs. (R. 237-38). Upon examination, Dr. Brotherton noted
Claimant was “a well-nourished, well-developed [woman]. . . in no apparent distress,” and she
moved “all extremities well to command.” (R. 238). Dr. Brotherton noted Claimant had a
“history of breast cancer by self report, although it appears all that she had done was an excision
with no chemotherapy or radiation.” (R. 239).
Unable to adequately palpate the masses, Dr. Brotherton scheduled Claimant for
additional diagnostic screening and core needle biopsies. (R. 239). An ultrasound of her breasts
showed an area of palpable abnormal mass in her right breast. (R. 272-73). Further evaluation of
the right breast by MRI showed the mass was benign. (R. 269). Results of a chest x-ray revealed
that Claimant had a couple of small pulmonary nodules in her lungs. (R. 270). After completing
the additional testing, on June 1, 2007, Claimant told Dr. Brotherton that she wanted to undergo
excisional biopsy of the benign bilateral breast masses. (R. 231-32). Dr. Brotherton referred
Claimant to a cardiologist for cardiac clearance prior to performing surgery. Id.
Claimant presented to Dr. Robert Sweeten, on June 13, 2007, for a routine check up on her
blood pressure. (R. 218). At that time, Claimant reported that her legs hurt and that they felt
restless and weak. Id. Dr. Sweeten diagnosed Claimant with hypertension, gastritis, and restless

5

leg syndrome. Id. He noted that Claimant’s weight had increased approximately 20 pounds since
December 2006, and he diagnosed her as being overweight. Id. Dr. Sweeten started her on
samples of Requip for restless leg syndrome. Id.
Edward J. Morris, MD, of Cardiology of Tulsa, performed Claimant’s pre-surgical cardiac
evaluation on June 22, 2007. (R. 225-27). Claimant told Dr. Morris that she had an occasion in
2006 of chest discomfort that made her weak and that she had been weak ever since. (R. 225).
She reported that she experienced chest pain lasting several seconds, with some pains lasting up
to 4 minutes. Id. She said that she had weakness and cramping in her legs from walking ½ a
block. Id. Under “Social History,” Dr. Morris noted Claimant was unemployed but “has an
active lifestyle.” Id. In review of her systems, Dr. Morris noted that Claimant reported weight
gain, dyspnea3, edema, claudication4, acid reflux, nocturia5, dizziness, and symptoms of
depression. (R. 225). Results from Claimant’s EKG were normal. (R. 227). Dr. Morris
diagnosed Claimant with chest pain, unspecified, and ongoing tobacco abuse. (R. 226). He
additionally diagnosed that Claimant had benign hypertension, noting that her symptoms were
reasonably well controlled. Id.
On June 28, 2007, Claimant reported to Dr. Sweeten that she continued to have leg pain,
including a “burning” sensation. (R. 251). Dr. Sweeten’s handwritten notes appear to question

3

Dyspnea is “air hunger resulting in labored or difficult breathing, sometimes
accompanied by pain.” Taber’s Cyclopedic Medical Dictionary 593 (17th ed. 1993).
4

Claudication is defined as “lameness or limping. It is a severe pain in calf muscles
occurring during walking but subsides with rest.” Taber’s Cyclopedic Medical Dictionary 398
(17th ed. 1993).
5

Nocturia is urination, especially excessive, during the night. Taber’s Cyclopedic
Medical Dictionary 1314 (17th ed. 1993).
6

whether Claimant had neuropathy. Id. He prescribed Lyrica for pain and the anti-depressant
Cymbalta.6 Id. Claimant told Dr. Sweeten on July 30, 2007, that the Cymbalta was not helping.
(R. 250).
Dr. Morris evaluated Claimant for symptoms of hypertension on August 22, 2007. (R.
265-67). Dr. Morris noted that Claimant was doing well and felt better. (R. 265). Claimant had
been using Chantix, and she had reduced the number of cigarettes she smoked a day. Id. She
continued to report problems with atypical chest pain. Id. Despite Claimant’s self- report of
sustaining a heart attack in 2000, Dr. Morris noted that he reviewed Claimant’s records that
showed Claimant did not, in fact, suffer from a heart attack and that the EKG and stress test were
unremarkable. (R. 265, 267). As before, Dr. Morris noted that Claimant had “an active lifestyle.”
(R. 265). Claimant’s medications were listed as Chantix, Lisinopril, Requip, Aspirin, and
Ranitidine Hcl. (R. 266). Dr. Morris diagnosed Claimant with chest pain, unspecified; ongoing
tobacco abuse; and well-controlled hypertension. Id.
At Dr. Morris’ referral, Claimant participated in a Myocardial Perfusion Imaging Study
and EKG on September 5, 2007. (R. 264, 266). After walking for a little over four-and-a-half
minutes, the test was stopped due to dyspnea and fatigue. (R. 264). The results reflected no
significant arrhythmias at either baseline or during recovery, no ischemic changes at peak
exercise and normal and/or undilated ventricles. Id. Dr. Morris subsequently gave Claimant
clearance to proceed with noncardiac surgery, stating there were no cardiac contraindications or
restrictions. (R. 262, 271).

6

Lyrica (pregabalin) is used to manage neuropathic pain and Cymbalta (duloxetine hcl)
is an antidepressant used to treat major depressive disorder and generalized anxiety disorder.
www.pdr.net
7

On September 26, 2007, Claimant underwent excisional biopsy of bilateral breast masses,
and biopsies of skin lesions on her neck and shoulder. (R. 288-96, 307-22). The pathology report
of the biopsies found no evidence of malignancy. (R. 297).
A medication list from Salina Community Clinic (“Salina Clinic”) reflects that Claimant
had been prescribed Fluoxetine7, Ranitidine, Ciprofloxacin and Lisinopril on December 6, 2007
by Dr. William Dieker. (R. 358). On January 21, 2008, it was noted at a follow up visit at the
Salina Clinic, that Claimant could not tolerate the Fluoxetine, because it “spaced [her] out” and it
was discontinued although she still reported symptoms of depression and anxiety. (R. 357-58).
During a February 19, 2008 appointment at the Salina Clinic, Claimant reported
depression and anxiety. (R. 354). Claimant also reported that she had been involved in a motor
vehicle accident the previous month and had pain that radiated from her hips to her legs. Id.
Neurologic examination showed she had L5 radiculopathy and was diagnosed with lumbar disc
disease. Id. She was referred for an MRI of her lumbar spine on March 12, 2008 for bilateral
lower extremity radiculopathy and left-sided foot drop. (R. 354, 395). The test revealed wellmaintained vertebral body heights and intervertebral disc space heights, normal prevertebral soft
tissues, early disc desiccation at T12-L1 and L1-L2 and anterior osteophyte formation at L1-L2
through L3-L4. (R. 395). The impression was that Claimant had moderate hypertrophic changes
of the facet joints of L4-L5 and no neural foraminal narrowing or spinal canal stenosis. (R. 352,
395).
Claimant saw Colleen D. Springer, MSW, with the Salina Clinic, on April 17, 2008. (R.

7

Fluoxetine (Prozac) is an antidepressant indicated for the treatment of major depressive
disorder (MDD). www.pdr.net.
8

333). Claimant reported that she had severe, chronic pain that made her feel “really sad” and
continually anxious. Id. However, Claimant reported that things were “much better.” Id. She
said that she had no other problems and was sleeping well. Id. Springer noted that Claimant had
a flat affect and anxious mood. Id. Springer diagnosed Claimant with major depressive disorder,
recurrent, moderate, and generalized anxiety disorder. Id. Claimant’s prescription for Fluoxetine
was renewed on this date. (R. 349-50).
Claimant continued to be seen at the Salina Clinic during the rest of 2008 for multiple
routine and/or follow-up appointments. (R. 332, 336-48). During these appointments, Claimant
had consistent complaints of pain, anxiety, and depression, and she continued to receive
medication. Id. During one of these appointments, on August 27, 2008, Claimant complained of
problems with pain in her leg, back, neck, shoulders, and arms and additionally reported that she
had muscle spasms in her arms and hands. (R. 339). On October 29, 2008, Claimant was seen
again for complaints of muscle weakness, fatigue, malaise, muscle spasms, and her legs drawing
up. (R. 336). She further reported numbness in her legs and hands. Id. Rest helped relieve her
symptoms, but she reportedly would go “downhill” as the day progressed. Id. Other than a refill
of medication, no additional treatment or referrals were noted. (R. 336-337).
On January 13, 2009, Claimant continued to be diagnosed at the Salina Clinic with L5
radiculopathy, hypertension, and depression. (R. 376). She was given a prescription for
Neurontin and Tramodol for pain. Id. The remainder of her prescriptions were refilled. Id.
On February 13, 2009, Claimant underwent a cervical myelography for upper extremity
radiculopathy. (R. 386-87). The myelogram revealed bilateral lateral extradural defects at C6-C7
and a lateral extradural defect at C5-C6 on the left. (R. 387). The myelogram additionally

9

showed an anteriorly extradural small defect at C4-C5 and a moderate anterior extradural defect
at C6-C7. Id. A CT of the spine performed that day showed Claimant had multilevel mild to
moderate facet arthropathy, degenerative joint disease of the sacroiliac joints, and atherosclerotic
vascular disease. (R. 383-85). An MRI additionally revealed a rounded cystic structure in
Claimant’s right kidney. (R. 385).
On February 26, 2009, Claimant was seen at the Salina Clinic for follow-up of her CT
tests. (R. 374-75). She said she had severe headaches and back pain. (R. 374). Hypertension,
depression, and degenerative joint disease of her cervical and lumbar spine were noted. Id.
Claimant was using Fluoxetine, Aspirin, Ranitidine, Ibuprofen, Gabapentin8, Tramadol, and
Lisinopril. (R. 375).
On March 5, 2009, Claimant had an EMG9 and nerve conduction testing. (R. 388-93). It
was noted that Claimant claimed she suffered from parasthesias and pain in both hands since
January of 2006, as well as pain in her lower back and legs since 2005. (R. 388). The test results
revealed no evidence of acute or chronic cervical or lumbosacral radiculopathy and no evidence
of peripheral neuropathy in the legs. (R. 393). Testing did show bilateral carpal tunnel syndrome
of mild to moderate degree. Id.
John T. Main, D.O., of Tulsa Brain & Spine, evaluated Claimant for generalized pain on
April 27, 2009. (R. 394). Claimant told Dr. Main that subsequent to a motor vehicle accident
several years prior, she had suffered pain in her neck. Id. Her neck pain radiated into her
shoulders, bilaterally, and was slightly worse on her left side. Id. She reported that she suffered
8

Gabapentin is used for management of neuralgia. www.pdr.net.

9

Electromyogram (EMG) is a graphic record of the contraction of a muscle as a result of
electrical stimulation. Taber’s Cyclopedic Medical Dictionary 618, 629 (17th ed. 1993).
10

low back pain with radiation down her right leg to the bottom of her foot. Id. The quality of her
pain was dull and aching with associated numbness. Id. Ibuprofen gave Claimant minimal pain
relief. Id. Dr. Main reviewed Claimant’s CT myelogram of her cervical and lumbar spine. Id.
He determined that she had “diffuse degenerative changes throughout the entire spine.” Id. Dr.
Main also remarked Claimant suffered from disk osteophyte complex at the C6-C7 level of her
spine, but he felt that it was not the cause of her problems. Id. He recommended that Claimant be
treated with “conservative therapy including physical therapy and epidural steroid injections at
the C6-[C]7 level.” Id. Because Claimant additionally reported visual problems where her eyes
crossed and her vision appeared doubled, Dr. Main scheduled Claimant for an MRI of her brain.
Id.
After the ALJ rendered her decision on September 2, 2009, Dr. Main reviewed the results
of the MRI of Claimant’s brain on November 25, 2009, noting “some strange white matter
lesions” appeared on the scan. (R. 398). Dr. Main recommended Claimant be evaluated by a
neurologist out of concern that Claimant had multiple sclerosis. Id.
Agency consultant Seth Nodine, M.D., examined Claimant on March 28, 2007. (R. 20816). Claimant told Dr. Nodine that she experienced intermittent chest pains that prevented her
from working and said that her legs were weak and felt rubbery. (R. 208). She said that her legs
felt weaker when her chest was hurting. Id. She was unable to climb a flight of stairs because her
legs gave out. Id. She reported a history of benign and cancerous tumors. Id. She had used
tobacco for 30 years and had chronic cough. (R. 209).
Dr. Nodine’s evaluation showed that Claimant had a full and normal range of joint motion
and motion of the spine. (R. 211-13). However, during the range of motion exercises, Claimant

11

told him that she experienced pain in the left shoulder. (R. 210). In describing Claimant’s pain
on the Chest Discomfort form, Dr. Nodine wrote that Claimant’s pain was located at the center of
her chest and that it radiated to her left arm. (R. 214). He wrote that Claimant experienced
weekly occurrence of pain and pressure that was sharp, stabbing, and intermittent. Id. He noted
that Claimant reported pain that lasted for minutes, and that it went away on its own or with rest
and prayer. Id. Dr. Nodine’s noted impressions were as follows:
1. [Hypertension]
2. GERD
3.Tobacco abuse
4. Benign tumors and cancers with ongoing investigation of nipple/with question
of breast cancer.
4. Intermittent angina pectoris
5. Generalized lower extremity weakness and easy fatigue with exertion
by history and normal exam as above.
(R. 210).
Nonexamining agency consultant Cynthia Kampschaefer, Ph.D., completed a Psychiatric
Review Technique (“PRT”) on September 6, 2007 and determined Claimant had no medically
determinable mental impairment. (R. 274-87). In explanation of her assessment, she marked that
Claimant’s complaints of depression were not confirmed by medical evidence. (R. 277). Dr.
Kampschaefer found that Claimant had no functional restrictions in her activities of daily living,
no difficulties in maintaining social functioning, no difficulties in maintaining concentration,
persistence or pace and no episodes of decompensation of extended duration. (R. 284). In the
“Consultant’s Notes” portion of the form, Dr. Kampschaefer wrote that Claimant had no medical
evidence to show a complaint of or diagnosis of depression, and that there was no prescription for
antidepressants. (R. 286).
Procedural History
12

Claimant filed an application dated December 11, 2006 seeking supplemental security
income benefits under Title XVI, 42 U.S.C. §§ 401 et seq. (R. 108-10). The application was
denied initially on April 16, 2007, and upon reconsideration on November 6, 2007. (R. 63-66).
A hearing before ALJ Deborah L. Rose was held February 12, 2009 in Tulsa, Oklahoma. (R. 2351). By decision dated September 2, 2009, the ALJ found that Claimant was not disabled. (R. 922). On January 3, 2011, the Appeals Council denied review of the ALJ’s findings. (R. 1-5).
Thus, the decision of the ALJ represents the Commissioner’s final decision for purposes of this
appeal. 20 C.F.R. § 416.1481.
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 Act only if 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 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.
20 C.F.R. § 404.1520.10 See also Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)
10

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. See 20 C.F.R. § 404.1520(c). 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 (“Listings”). 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 the claimant must establish that he does not retain the residual functional
13

(detailing steps). “If a determination can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not necessary.” Id.
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 two inquiries: first, whether the decision was supported
by substantial evidence; and, second, whether the correct legal standards were applied. Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted).
Substantial evidence is such evidence as a reasonable mind might accept as adequate to
support a conclusion. Id. The court’s review is based on the record taken as a whole, and the
court will “meticulously examine the record in order to determine if the evidence supporting the
agency’s decision is substantial, taking ‘into account whatever in the record fairly detracts from
its weight.’” Id., quoting Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). The court
“may neither reweigh the evidence nor substitute” its discretion for that of the Commissioner.
Hamlin, 365 F.3d at 1214 (quotation omitted).
Decision of the Administrative Law Judge
The ALJ made her decision at Step Five of the evaluation process. At Step One, the ALJ
found the Claimant had not engaged in substantial gainful activity since the application date of
December 4, 2006. (R. 14). At Step Two, the ALJ found that Claimant had a severe impairment
of degenerative joint disease of the spine. Id. The ALJ determined that Claimant did not have a
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. See Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir.
2001). Disability benefits are denied if the Commissioner shows that the impairment which
precluded the performance of past relevant work does not preclude alternative work. 20 C.F.R. §
404.1520.
14

severe mental impairment. (R. 14-16). At Step Three, the ALJ found that Claimant’s
impairments, or combination of impairments, did not meet any Listing. (R. 16).
The ALJ, after reviewing the record, determined Claimant had the RFC to perform a full
range of light work. (R. 17). At Step Four, the ALJ found that Claimant was not capable of
performing past relevant work. (R. 21). At Step Five, the ALJ found that there were jobs in
significant numbers in the economy that Claimant could perform, taking into account her age,
education, work experience and RFC. (R. 22). Therefore, the ALJ found that Claimant was not
disabled from December 4, 2006 through the date of her decision. Id.
Review
Claimant alleges the ALJ erred in failing to consider or include non-exertional
impairments in determining Claimant’s RFC; in considering and weighing medical opinion
evidence; and in assessing Claimant’s credibility. Because the undersigned finds that the ALJ’s
RFC determination is not supported by substantial evidence, the other allegations of error raised
by Claimant are not addressed.
At Step Two, the ALJ determined that Claimant had no mental impairment, or if she did,
it was non-severe. (R. 15-16). After reaching this determination, the ALJ did not discuss
Claimant’s claim of disabling mental symptoms in her determination of Claimant’s RFC. (R. 1721). Specifically, at Step Two, the ALJ mentioned only two records showing diagnoses of major
depressive disorder and generalized anxiety disorder, finding those records “not consistent with
the medical evidence of record” and without supportive “objective evidence.” (R. 15). The ALJ
also gave “great weight” to the nonexamining consultant’s PRT finding no mental impairment,
specifically noting Claimant reported “no diagnosis or treatment for depression by a mental health

15

professional or any treating doctor, and no medications being prescribed for antidepressants.” (R.
14). No other reference to records indicating depression or anxiety was included anywhere in the
ALJ’s decision.
Under ordinary circumstances, the reports of examining and nonexamining consultants
can be substantial evidence upon which the ALJ can rely in formulating the RFC determination.
Cowan v. Astrue, 552 F.3d 1182, 1189-90 (10th Cir. 2008) (opinion evidence of nonexamining
consultants can constitute substantial evidence); Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th
Cir. 2007) (ALJ entitled to consider nonexamining physician’s opinion); Weaver v. Astrue, 353
Fed. Appx. 151, 154-55 (10th Cir. 2009) (unpublished) (nonexamining opinion was substantial
evidence supporting RFC determination). Here, however, the PRT cannot constitute substantial
evidence because the reasoning contained therein is directly contradicted by previous and
subsequent treatment. Stephens v. Apfel, 134 F.3d 383, 1998 WL 42524 at *2 (10th Cir.)
(unpublished), the court had multiple problems with the ALJ’s decision, but one was the
“obvious” problem of using a “stale” 1989 consulting report instead of a current 1993 treating
assessment. The Third Circuit addressed the problem of stale evidence in Social Security cases in
more detail in Wier ex rel. Wier v. Heckler, 734 F.2d 955, 963-64 (3d Cir. 1984). In Wier, the
claimant was 17, but the ALJ relied on reports that had been completed when he was 11 and 13.
Id. The court found the reliance on the reports “particularly troubling” because they were
“extraordinarily stale.” Id. Although the lapse of time in the case at hand is not as long, the
underlying reasoning and concern remains the same.
Here, the consultant’s PRT report cannot constitute substantial evidence under the
particular circumstances of Claimant’s situation. The PRT was completed in September 2007

16

with the specific statement that there was no medical evidence showing complaints or diagnoses
of depression, as well as no prescribed anti-depressants. (R. 286). However, Claimant had
reported depressive symptoms to her treating physicians and had been prescribed an antidepressant just a few months earlier, in June 2007. (R. 227, 250-51). There is no reference to
these records in the report completed by the agency’s nonexamining consultant, and therefore it
appears that the consultant did not have access to these records at the time she completed her
report. In addition, there were numerous records subsequent to the consultant’s completion of the
PRT reflecting diagnoses of depression and anxiety, together with anti-depressant prescriptions.
(R. 332-33, 336-50, 356-58, 374-76). For these reasons, the PRT is not supported by medical
evidence. See Washington, 37 F.3d at 1442 (“There must be competent evidence in the record to
support the conclusions recorded on the PRT form. . .”). Under these circumstances, the
undersigned finds that the consulting report was stale and could not constitute substantial
evidence on which the ALJ could rely.
A second problem with the ALJ’s RFC was her failure to discuss the evidence supporting
Claimant’s claim of disabling mental symptoms. It is oft-stated law in this circuit that an ALJ
must discuss more than just the evidence favorable to an opinion that a claimant is not disabled:
[I]n 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.
Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). It is error to ignore evidence that would
support a finding of disability while highlighting the evidence that favors a finding of
nondisability. Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007). A bare conclusion,
without discussion, is beyond meaningful judicial review, and therefore an ALJ is required to

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discuss the evidence and give reasons for the conclusions. Clifton, 79 F.3d at 1009.
Here, the ALJ discussed only two records reflecting Claimant’s diagnoses of depression
and anxiety and concluded they were inconsistent with the other medical evidence. The ALJ did
not mention any of the other numerous records indicating Claimant suffered from depression or
anxiety or the fact that she was prescribed anti-depressants. (R. 332-33, 336-50, 356-58, 374-76).
In reaching the conclusion that Claimant had no mental impairment, the ALJ rejected the two
select records even though they appear to be consistent with other medical evidence. This onesided review is not in keeping with the requirement of Clifton that the ALJ must not only discuss
evidence supporting her decision, but she must also discuss the uncontroverted evidence she
chooses not to rely upon, as well as significantly probative evidence she rejects.
Because the lack of substantial evidence supporting the ALJ’s RFC determination requires
reversal, the undersigned does not address the remaining contentions of Claimant.11 On remand,
the Commissioner should ensure that any new decision sufficiently addresses all issues raised by
Claimant. The undersigned also emphasizes that “[n]o particular result” is dictated on remand.
Thompson v. Sullivan, 987 F.2d 1482, 1492-93 (10th Cir. 1993). This case is remanded only to
assure that the correct legal standards are invoked in reaching a decision based on the facts of the
case. Angel v. Barnhart, 329 F.3d 1208, 1213-14 (10th Cir. 2003) (citing Huston v. Bowen, 838
F.2d 1125, 1132 (10th Cir. 1988)).
11

The ALJ also did not have the benefit of a subsequent record from Dr. Main
discussing the results of the MRI of the brain revealing “strange white matter lesions, which are
of great concern” and could be indicative of multiple sclerosis. (R. 398). This Court, however,
has included the new evidence in its consideration of whether substantial evidence supports the
ALJ’s decision. “[W]e must consider the entire record, including [the newly submitted]
treatment records, in conducting our review for substantial evidence on the issues presented.”
Martinez v. Barnhart, 444 F.3d 1201, 1208 (10th Cir. 2006). On remand, this evidence will need
appropriate consideration.
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Conclusion
Based upon the foregoing, the Court REVERSES AND REMANDS the decision of the
Commissioner denying disability benefits to Claimant for further proceedings consistent with this
Order.
Dated this 19th day of April, 2012.

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