Kelley v. Social Security Administration

Filing 27

OPINION AND ORDER by Magistrate Judge T Lane Wilson , remanding case (terminates case) (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
KASANDRA L KELLEY,
Plaintiff,
vs.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

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Case No. 12-cv-528-TLW

OPINION AND ORDER
Plaintiff Kasandra L. Kelley requests judicial review pursuant to 42 U.S.C. §405(g) of the
decision of the Commissioner of the Social Security Administration denying plaintiff’s claims
for supplemental security income under section 1614(a)(3)(A) of the Social Security Act. In
accordance with 28 U.S.C. § 636(c)(1) and (3), the parties have consented to proceed before the
undersigned United States Magistrate Judge, (dkt # 8). Any appeal will be directly to the Tenth
Circuit Court of Appeals.
Background
Plaintiff last worked September 1, 2009 in a temporary job through Work Force and the
Department of Human Services. Before her four month stint in that job, she was formerly
employed as a janitor in a cafeteria and was a sandwich maker at Subway for two weeks. (R. 35).
She left both positions due to her inability to get along with her peers. Plaintiff applied for
disability because of her social issues and her tendencies to easily become rude, angry,
argumentative, and oftentimes depressed. Plaintiff identifies her primary issues as being unable

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 Effective February 14, 2013, pursuant to Fed. R. Civ. P. 25(d)(1), Carolyn W. Colvin, Acting
Commissioner of Social Security, is substituted as the defendant in this action. No further action
need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act. 42 U.S.C. § 405(g).

to handle stress, social situations, and depression, all of which she claims make it difficult for her
to leave her house. (R. 35). Plaintiff has also struggled with ADHD for much of her life, and she
graduated from high school with B’s and C’s. However, she has seen improvement in her
conditions over the past year. She currently lives in an all-expenses-paid apartment and receives
food stamps. Id.
Plaintiff’s own Function Reports indicate that she has no issues with her own personal
care. On a daily basis, she is capable of taking her own medication, watching television,
cleaning, reading, preparing meals, cleaning up, caring for her foster family’s dogs, cats, goats,
and mule, speaking on the phone, regularly attending church, the library, and the grocery store
independently. (R. 35, 211). Additionally, she reports that her ADHD affects her memory,
completion of tasks, concentration, ability to follow instructions, and ability to get along with
others. (R. 35, 216). Plaintiff believes that she can focus for 30 minutes to an hour, can handle a
change in routine and written instructions, but she cannot handle stress well. In her second
Function report, plaintiff additionally states that her hobbies include sewing and reading, she can
finish what she starts, but she can only walk for 30 minutes at a time. (R. 35, 114).
At plaintiff’s hearing before an Administrative Law Judge (“ALJ”), several third parties
provided additional insight into plaintiff’s conditions. Plaintiff’s coworker, Meredith Reeve,
testified that in a workplace setting, plaintiff presents herself as anxious, depressed, subject to
frequent mood changes, and having an attitude. (R. 35, 70). A Function Report-Adult-Third
Party prepared by plaintiff’s former foster mother, Libby D. Malone, states that she has known
plaintiff for three years and frequently spends time with her. (R. 35, 186). Together, plaintiff and
Ms. Malone shop, eat, clean the house, cook, and go to church activities together. Ms. Malone
reports that plaintiff has no difficultly with sleep or personal care, preparing her own meals,

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cleaning her room and bathroom, visiting the neighbors, and going to the library and church. (R.
36).
Plaintiff has asthma, for which she receives albuterol prescriptions, but has never been
hospitalized. Dr. Lora Collier, M.D. noted in 2008 that plaintiff is “not a bully, anxious, not
fearful, not euphoric, negative for paranoia, irritable, does not exhibit obsessive-compulsive
behavior, no sleep disturbance, does not display picking behavior, combative, and is focused.”
(R. 36, 327). In the same year, another doctor diagnosed plaintiff with PTSD, Oppositional
Defiant Disorder, Reactive Attachment Disorder, Mathematics Disorder, Sexual Abuse of a
Child, Physical Abuse of a Child and Neglect of a Child. Various other doctors diagnosed
plaintiff with ADHD, and as having poor impulse control and hyperactivity. (R. 36, 241). One
doctor reported that plaintiff had 11 of the 19 listed “severe impairments,” and stated that
plaintiff lacked the ability to maintain attention, or carry out or comprehend simple instructions.
(R. 37, 497). At the request of the agency, Dr. Tom Shadid, Ph.D., examined plaintiff and
reviewed her records and found that although she had moderate limitations in the activities of
daily living, social functioning, concentration, persistence and pace; she showed insufficient
evidence of decompensation. In summary, he concluded that plaintiff could perform simple tasks
with routine supervision, relate to supervisors and peers on a superficial work basis, and could
adapt to a general work setting, but not the general public. (R. 37, 390).
ALJ’s Decision
The ALJ concluded that although the plaintiff has severe impairments of asthma,
depression, and post-traumatic stress disorder, the plaintiff’s impairments did not meet or
medically equal any listed impairment. (R. 31). In reaching his conclusion, the ALJ noted that in
order to constitute medically listed asthma, there must be reports of medically documented
asthma, chronic asthmatic bronchitis, and asthma attacks in spite of prescriptions. (R. 31, 32).
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These episodes must also occur within a specific time period and with a certain frequency. (R.
32). Because the plaintiff could not satisfy the requirements of severity and frequency, the ALJ
concluded that the plaintiff did not meet the criteria for medically listed asthma.
The ALJ additionally considered the plaintiff’s alleged mental and personality disorders.
In order to have a medically listed mental impairment, “there must be medically documented
psychological or behavioral abnormalities… evidenced by: disorientation to time and place,
memory impairment, perceptual or thinking disturbances, change in personality, disturbance in
mood, emotional liability, impairments in impulse control, or loss of measured intellectual ability
of at least 15 I.Q. points.” (R. 32). In addition, the ALJ reasoned that “there must be medically
documented findings of generalized persistent anxiety” accompanied by certain symptoms. (R.
32). In order to constitute a medically listed personality disorder, symptoms must be so severe
that “the individual exhibits deeply ingrained, maladaptive patterns of behavior associated with
reclusiveness or autistic thinking; pathologically inappropriate suspiciousness or hostility;
oddities of thought, perception, speech and behavior; persistent disturbances of mood or affect;
pathological dependence, passivity or aggressively; or intense and unstable interpersonal
relationships.” (R. 32).
In order to fully determine whether the plaintiff had met the standards for mental and
personality disorders, the ALJ addressed the “paragraph B” criteria. To do so, he examined
whether the plaintiff provided evidence of two of the following: “marked restriction of activities
of daily living; marked difficulties in maintaining social functioning, marked difficulties in
maintaining concentration, persistence, or pace; or repeated episodes of decompensation.” (R.
33). The ALJ concluded that the plaintiff failed to satisfy any of the set standards for mental and
personality disorders, and therefore did not have a medically listed mental impairment.

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Additionally, the ALJ determined that plaintiff’s “mental impairments [did] not cause at least
two ‘marked’ limitations or one ‘marked’ limitation and ‘repeated episodes of decompensation,
each of extended duration, the “paragraph B” criteria [were] not satisfied.” (R. 34).
The ALJ addressed plaintiff’s credibility as part of his RFC findings. (R. 34-37). First,
the ALJ summarized plaintiff’s testimony: she last worked September 1, 2009, she has a
tendency to become angry, rude, and argumentative, she is applying for disability because she
cannot get along with people, she does not sleep and she isolates herself when she is depressed,
she has ADHD, she graduated from high school with B’s and C’s, she wants a job because she
does not like living inside, and she is not as depressed as she used to be. (R. 35). The ALJ noted
that plaintiff performs household chores, takes care of her foster family’s pets, prepares meals,
and is capable of finishing what she starts. Id. The ALJ next analyzed the third party testimony
of Meredith Reeve, who stated that plaintiff’s primary issues are her attitude, anxiety, depression
and mood changes, as well as temper tantrums. Id. The ALJ also took into account the opinion of
plaintiff’s foster mother, who opined that plaintiff is capable of sleeping, personal care, preparing
her own meals, cleaning her own room and bathroom, visiting with the neighbor, and going to
the library and church. Id. Additionally, the ALJ noted plaintiff’s prescription for asthma
medicine, but that plaintiff has no medical record of emergency treatment for her asthma. (R.36).
The ALJ noted inconsistencies in reports of plaintiff’s mood and presentation in the
medical reports, indicating that claimant’s psychological issues fluctuate. (R.36, 37). Although
the ALJ considered the report of plaintiff’s current physician, he reasoned that this report is an
outlier that is outweighed by a number of conflicting reports. (R. 37). By comparison, medical
reports spanning from 2007 through 2009 show that plaintiff was tested and frequently
diagnosed with ADHD, but was also reported to have good days, in which she appeared “jovial.”

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(R. 36, 37). Additionally, plaintiff’s doctor from 2007 through 2008 found that plaintiff was “not
a bully, anxious, not fearful, not euphoric, negative for paranoia, irritable, does not exhibit
obsessive-compulsive behavior, no sleep disturbance, does not display picking behavior,
combative, and is focused”. (R. 36).
The ALJ specifically noted the report of Dr. Tom Shadid, who stated that although
plaintiff has moderate limitations in the activities of daily living, maintaining social functioning,
concentration, and persistence or pace, plaintiff can perform simple tasks with routine
supervision, relate to supervisors and peers on a superficial work basis, and adapt to a work
situation, but not the general public. (R.364). In conclusion, the ALJ found that even though the
plaintiff’s medically determinable impairments could reasonably be expected to cause the
alleged symptoms, her statements regarding the intensity, persistence and limiting effects of her
impairments were not credible. After considering the testimony of the vocational expert, and the
plaintiff’s age, education, work experience, and residual functional capacity, the ALJ determined
that the plaintiff failed to allege any physical limitations or restrictions that would preclude her
from performing medium-level work related activities.
Issues
Plaintiff appeals the decision of the ALJ, and asserts that the ALJ incorrectly determined
that plaintiff was not disabled. Plaintiff specifically asserts that the ALJ failed to: (1) properly
consider the medical source opinions; (2) perform a proper step 5 determination; (3) properly
consider plaintiff’s obesity; and (4) perform a proper credibility analysis. (Dkt. # 17).
Discussion
The Court finds that although the ALJ’s credibility determination is well supported by the
record, the ALJ’s analysis does not comport with the applicable legal standard. The Court finds

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no other error with the ALJ’s decision; however, the ALJ is free to re-evaluate his decision,
except with respect to plaintiff’s obesity (see infra. at 7-8), if he reaches a different conclusion
regarding plaintiff’s credibility on remand.
Credibility
An ALJ’s credibility findings warrant particular deference, because he is uniquely able to
observe the demeanor and gauge the physical abilities of the claimant in a direct and unmediated
fashion. White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2002); Gay v. Sullivan, 986 F.2d 1336,
1341 (10th Cir. 1993). Further, the review of an ALJ’s credibility determination is limited, and
reweighing the evidence is not permissible. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005). As long as the ALJ sets forth the specific evidence relied on in evaluating plaintiff’s
credibility, the ALJ is not required to make a “formalistic factor-by-factor recitation of the
evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). The ALJ may consider a
number of factors in assessing a claimant’s credibility, including “the levels of medication and
their effectiveness, the extensiveness of attempts… to obtain relief, the frequency of medical
contacts, the nature of daily activities, subjective measures of credibility that are peculiarly
within the judgment of the ALJ… and the consistency or compatibility of nonmedical testimony
with objective medical evidence.” Kepler, 68 F.3d at 391 (quoting Hargis v. Sullivan, 945 F.2d
1482, 1489 (10th Cir. 1991)). Finally, “an ALJ’s findings with respect to a claimant’s credibility
should be closely and affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.” Hardman v. Barnhart, 362 F.3d at 676, 678-79 (10th Cir. 2004).
The ALJ included a detailed factual recitation of plaintiff’s medical history, including
plaintiff’s testimony, as well as third party testimony. However, the ALJ failed to provide any
analysis linking these facts with his conclusion that plaintiff’s testimony lacked credibility. In his

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report, the ALJ immediately jumped from his detailed findings of fact to the conclusion that “the
claimant’s statements concerning the intensity, persistence and limiting effects of [her]
symptoms are not credible to the extent they are inconsistent with the above residual functional
capacity assessment”. (R. 37). The ALJ did not discuss plaintiff’s credibility in any meaningful
way or link his factual findings to his credibility finding. Although the ALJ cited more than
sufficient facts to support his conclusion, the Court is not allowed to provide the necessary link
between the facts and the ALJ’s finding. Thus, this case must be remanded for the ALJ to revisit
his credibility finding.
Obesity
Plaintiff’s contention that the ALJ failed to properly consider her obesity is erroneous.
Although a plaintiff must have the opportunity to litigate issues before the agency, “when one
party utterly fails to raise a significant issue before the ALJ, [the] record developed with regard
to that issue will usually be inadequate to support substantive finding in its favor and, generally
speaking, neither ALJ nor agency should consider such an issue.” Trident Seafoods, Inc., v.
Nat’l. Labor Relations Board, 101 F.3d 111 (D.C. Cir. 1996), Chicago Local No. 458-3M v.
N.L.R.B., 206 F.3d 22 (D.C. Cir. 2000). Additionally, the Tenth Circuit court of appeals requires
“compelling reasons” to justify hearing an issue for the first time on appeal. Gilbert v. Astrue,
231 Fed. Appx. 778, 785 (10th Cir. 2007); Madron v. Astrue, 646 F.3d 1255, 1258 (10th Cir.
2011). When the “issue of ALJ's failure to discuss obesity as an impairment or risk factor [is]
raised by claimant for the first time on appeal in social security disability benefits case, [it is]
waived, [unless] exceptional circumstances justified claimant's failure to raise the issue.”
Robinson v. Barnhart, 183 Fed. Appx. 451 (5th Cir. 2006).

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Although the plaintiff mentioned her obesity during her hearing, she failed to raise it as a
substantive factor impacting her ability to work in the future. Plaintiff also failed to provide
compelling reasons for the issue to be raised on appeal. Therefore, the ALJ had no obligation to
consider it.
Conclusion
The decision of the Commissioner finding plaintiff not disabled is hereby REVERSED in
part, and this case is REMANDED for the purpose of allowing the ALJ to make the required
analysis between the evidence in his decision and his credibility finding. The ALJ’s decision
regarding plaintiff’s alleged obesity is affirmed. The Court finds no error with the remainder of
the ALJ’s decision; however, the ALJ is free to re-evaluate his decision, except with respect to
plaintiff’s obesity, if he reaches a different conclusion regarding plaintiff’s credibility on remand.
SO ORDERED this 31st day of October, 2013.

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