Mehlhoff v. Social Security Administration

Filing 26

OPINION AND ORDER by Judge Claire V Eagan that the Report and Recommendation is accepted in part and rejected in part; the report and recommendation is accepted as to the magistrate judge's recommendation that the case be reversed and rema nded for further consideration of plaintiff's education and plaintiff's RFC, but the report and recommendation is rejected as to affirmance on any other issues. The Commissioner's decision to deny plaintiff's claim for disability benefits is reversed and remanded. ; accepting in part 21 Report and Recommendation (Re: 2 Social Security Complaint ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

KEVIN MEHLHOFF,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

Case No. 14-CV-0267-CVE-TLW

OPINION AND ORDER
Now before the Court is the Report and Recommendation (Dkt. # 21) of the magistrate judge
recommending that the Commissioner’s decision to deny plaintiff’s claim for disability benefits be
reversed and remanded in part and affirmed in part. Plaintiff has filed an objection (Dkt. # 22) to
the Report and Recommendation as to two issues on which the magistrate judge recommended that
the Commissioner’s decision be affirmed. Defendant has filed a response and objection (Dkt. # 23),
and defendant asks the Court to reject all of plaintiff’s arguments and affirm the ALJ’s decision in
its entirety.
I.
On September 23, 2011, plaintiff filed an application for disability benefits alleging a date
of onset of disability of April 1, 2011, and he was 51 years when his application was filed. Dkt. #
13-5, at 4. Plaintiff’s application was denied on the ground that he retained the residual functional
capacity (RFC) to perform his past relevant work. Dkt. # 13-3, at 2-4. Plaintiff requested
reconsideration of the initial denial of his application, and his application was again denied. Dkt.

# 13-4, at 15-17. Plaintiff requested a hearing before an administrative law judge (ALJ), and a
hearing was set for August 15, 2012.
Plaintiff appeared at the hearing and he was represented by counsel. Plaintiff’s counsel
argued that plaintiff could “bend, left, and twist no more than 15 minutes in an hour” and lifting
would be limited to 25 pounds due to degenerative disc disease and a bulging disc. Dkt. # 13-2, at
47. Counsel also argued that plaintiff suffered from a major depressive disorder, and he claimed that
plaintiff had a low IQ and was “borderline illiter[ate].” Id. at 48. Plaintiff attended school up to the
ninth grade and he was in special education classes. Id. at 49. He had previously worked as a
dishwasher and prep cook at a restaurant, but he claimed he stopped working after an incident when
he believed that he was having a heart attack. Id. at 51. Plaintiff had a panic attack, rather than a
heart attack, and he has not had another panic attack since that incident. Id. Plaintiff takes
medication to treat depression, but the medication causes him to lose his temper. Id. He had
difficulty working with others and he could not maintain a consistent pace of work, and plaintiff
believed that his inability to read caused these problems. Id. at 52. Plaintiff stated that he was
unable to read and his girlfriend had to read documents to him, but he could determine the correct
change when making purchases at a store. Id. at 53. Plaintiff had previously worked at Wal-Mart,
but he suffered an on-the-job injury and received a workers’ compensation settlement. Id. at 54.
He was treated by John Marouk, M.D., following his injury, but Dr. Marouk did not believe that
plaintiff was a candidate for back surgery. Id. Plaintiff claimed that he could not lift over 25
pounds, and he stated that he had difficulty performing tasks of daily life such as dressing and
bathing. Id. at 55. Plaintiff also claimed that he had problems grasping small objects due to carpal
tunnel syndrome, and he also claimed that he suffered from swelling in his legs due to diabetes. Id.

2

at 57-59. Plaintiff has a driver’s license, even though he claims to be unable to read, and he states
that he can interpret road signs that have symbols. Id. at 64-65. Plaintiff has prior felony
convictions for auto theft and burglary and he served a total of 16 years in prison. Id. at 66. The
ALJ called a vocational expert (VE) to testify, and the VE identified at least three jobs that a
hypothetical claimant with plaintiff’s exertional limitations could perform assuming that the
hypothetical claimant had a limited ability to read and write. Id. at 68-72.
The ALJ issued a written decision denying plaintiff’s claim for disability benefits. Id. at 2638. Plaintiff’s alleged date of onset of disability was April 1, 2011, and he had not engaged in
substantial gainful employment since that date. Id. at 28. At step two, the ALJ found that plaintiff
had the severe impairments of diabetes mellitus, hypertension, degenerative disc disease, obesity,
learning disorder, and depression, but he determined that plaintiff did not have an impairment or
combination of impairments that met or equaled the criteria in 20 C.F.R. Part 404, Subpart P,
Appendix 1. The ALJ found that plaintiff had the residual functional capacity to:
perform less than the full range of light work as defined in 20 CFR 404.1567(b) and
416.967(b). The claimant is able to lift and/or carry up to twenty pounds
occasionally and ten pounds frequently. The claimant is able to sit six hours in an
eight-hour workday. The claimant is able to use his hands for hand control and feet
for foot controls. The claimant is able to perform simple and some complex tasks
and is able to interact with peers and co-workers for work-related tasks. The
claimant is able to adapt to a work situation.
Id. at 30. The ALJ summarized plaintiff’s testimony and, in relevant part, noted that plaintiff claims
that he is unable to read the newspaper or a grocery list and he claims that his girlfriend read his
social security paperwork to him. Id. at 31. Plaintiff stated that he had visited Dr. Marouk five
times for treatment in relation to a workers’ compensation claim, and plaintiff represented to Dr.
Marouk that he could not lift more than 25 pounds or stoop, bend, or squat. Id. He complained of

3

pain in his hands and lower back, and he suffers from numbness in his legs. Id. He takes medication
for depression and he takes insulin four times a day. Id. Plaintiff spends most of his time watching
television, but he does use a computer for about an hour and he assists with some chores around the
house. He is able to drive and he goes to the grocery store, but he ordinarily sits while his girlfriend
shops. Id. at 31-32. He quit school in the ninth grade and he testified that he has been fired from
jobs because he could not read. Id. at 32. However, he claims that he can interpret road signs and
he was able to pass the driver’s license exam, and he is able to “read and write some.” Id.
The ALJ reviewed function reports completed by plaintiff and his friend Betty Hairl. In
plaintiff’s report, he states that he cannot read or write beyond a third grade level. Dkt. # 13-6, at
29. He claims that cannot sit for long periods of time due to back spasms, but he can visit friends,
fish, and go to movies. Id. at 32. Hairl stated that plaintiff cannot bend, stand, lift, or walk without
pain, and that plaintiff appears to suffer continuous back pain. Id. at 44. Plaintiff performs some
household chores such as doing dishes and cleaning, and plaintiff goes shopping for groceries,
clothes, and household supplies. Id. at 47. The ALJ gave Hairl’s opinions little weight because she
is not a medical professional. Id. at 32.
The ALJ also summarized the medical evidence in the record. Kenneth R. Trinidad, D.O.,
evaluated plaintiff in January 2008, and he opined that plaintiff could perform light work with lifting
of no more than 20 pounds. Dkt. # 13-2, at 32. In September 2008, Dr. Marouk advised plaintiff
that he was restricted from lifting more than 25 pounds and that he could “lift, bend or twist only
15 times an hour.” Id. Plaintiff was diagnosed with benign hypertension in September 2011, and
he complained of lower back pain. Id. at 33. Plaintiff visited the Morton Clinic and received
education about prediabetes mellitus, and he reported to the diabetes clinic on December 16, 2011

4

for evaluation. Id. Plaintiff was diagnosed with chronic kidney disease, hyperlipidemia, obesity,
and Type II diabetes mellitus. Id.
The ALJ found that plaintiff was unable to return to his past relevant work as a baker/helper,
kitchen helper, or building maintenance laborer, and he proceeded to step five to determine if there
were jobs in sufficient numbers that plaintiff could perform with his RFC. Id. at 36. He found that
plaintiff was a person approaching advanced age and that plaintiff had a “limited education.” Id.
The ALJ found that there were at least three jobs that existed in sufficient numbers in the regional
and national economies that plaintiff could perform with his RFC, and the ALJ concluded that
plaintiff was not disabled. Id. at 38. Plaintiff filed a request for the Appeals Council to review the
ALJ’s decision, and the Appeals Council found no basis under its rules to review the ALJ’s decision.
Dkt. # 13-2, at 1-4. Plaintiff filed this case seeking judicial review of the ALJ’s decision to deny
his claim for disability benefits, and the matter was referred to a magistrate judge for a report and
recommendation. The magistrate judge recommended that the ALJ’s decision be reversed in part
and affirmed in part, and both parties have filed objections to the report and recommendation.
II.
Without consent of the parties, the Court may refer any pretrial matter dispositive of a claim
to a magistrate judge for a report and recommendation. However, the parties may object to the
magistrate judge’s recommendation within 14 days of service of the recommendation. Schrader v.
Fred A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega v. Suthers, 195 F.3d 573, 579
(10th Cir. 1999). The Court “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §

5

636(b)(1). The Court may accept, reject, or modify the report and recommendation of the magistrate
judge in whole or in part. Fed. R. Civ. P. 72(b).
III.
Plaintiff does not object to the magistrate judge’s recommendation that the case be reversed
and remanded for further consideration of plaintiff’s educational level and for the ALJ to consider
whether certain permanent exertional limitations imposed by Dr. Marouk should be included in
plaintiff’s RFC. However, the magistrate judge found no merit plaintiff’s arguments that the ALJ
failed to give a third party function report sufficient weight and that the ALJ conducted a faulty
credibility analysis, and plaintiff objects to these recommendations by the magistrate judge. Dkt.
# 22. Defendant objects to the magistrate judge’s recommendation that the case be reversed and
remanded for further administrative proceedings. Dkt. # 23.
The Social Security Administration has established a five-step process to review claims for
disability benefits. See 20 C.F.R. § 404.1520. The Tenth Circuit has outlined the five step process:
Step one requires the agency to determine whether a claimant is “presently engaged
in substantial gainful activity.” [Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.
2004)]. If not, the agency proceeds to consider, at step two, whether a claimant has
“a medically severe impairment or impairments.” Id. An impairment is severe under
the applicable regulations if it significantly limits a claimant’s physical or mental
ability to perform basic work activities. See 20 C.F.R. § 404.1521. At step three, the
ALJ considers whether a claimant’s medically severe impairments are equivalent to
a condition “listed in the appendix of the relevant disability regulation.” Allen, 357
F.3d at 1142. If a claimant’s impairments are not equivalent to a listed impairment,
the ALJ must consider, at step four, whether a claimant’s impairments prevent [him]
from performing [his] past relevant work. See Id. Even if a claimant is so impaired,
the agency considers, at step five, whether [he] possesses the sufficient residual
functional capability to perform other work in the national economy. See Id.
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). The ALJ decided this case at step five of the
analysis. At step five, the ALJ must consider a claimant’s RFC, age, education, and work

6

experience to determine if other work exists that a claimant is able to perform. Williams v. Bowen,
844 F.2d 748, 751 (10th Cir. 1988). If the claimant can adjust to work outside of his past relevant
work, the ALJ shall enter a finding that the claimant is not disabled. 42 U.S.C. § 423(d)(2)(A).
However, the ALJ must find that a claimant is disabled if insufficient work exists in the national
economy for an individual with the claimant’s RFC. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th
Cir. 2010). The Commissioner bears the burden to present sufficient evidence to support a finding
of not disabled at step five of the review process. Emory v. Sullivan, 936 F.2d 1092, 1094 (10th Cir.
1991). The ALJ issued a written decision that was reviewed by the Appeals Council, which is a final
decision by an administrative agency. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
The Court may not reweigh the evidence or substitute its judgment for that of the ALJ but, instead,
reviews the record to determine if the ALJ applied the correct legal standard and if his decision is
supported by substantial evidence. Id. Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” O’Dell v. Shalala, 44 F.3d 855,
858 (10th Cir. 1994). “A decision is not based on substantial evidence if it is overwhelmed by other
evidence in the record or if there is a mere scintilla of evidence supporting it.” Hamlin v. Barnhart,
365 F.3d 1208, 1214 (10th Cir. 2004). The Court must meticulously examine the record as a whole
and consider any evidence that detracts from the Commissioner’s decision. Washington v. Shalala,
37 F.3d 1437, 1439 (10th Cir. 1994).
A.
Defendant objects to the magistrate judge’s recommendation that the ALJ erred at step five
by failing to adequately explain his finding that plaintiff had “limited education.” Dkt. # 23, at 1-2.
The magistrate judge reviewed the administrative record and noted that there was conflicting

7

evidence presented as to plaintiff’s ability to read and write, but the ALJ did not explain in his
written decision how he resolved the factual disputes as to plaintiff’s literacy. The ALJ’s entire
finding on plaintiff’s educational ability is that plaintiff “has a limited education and is able to
communicate in English (20 CFR 404.1564 and 416.964).” Dkt. # 13-2, at 36. Defendant argues
that plaintiff reported that he had completed the ninth grade and that he could read at a fifth or sixth
grade level, and plaintiff fits squarely within the definition of “limited education” provided by 20
C.F.R. § 404.1564(b)(2). Dkt. # 17, at 4.
Plaintiff’s ability to read and write is significant in this case, because the ALJ relied on
Medical-Vocational Rule 202.04 (the Grids) to find that plaintiff was “not disabled,” and a finding
that plaintiff was illiterate would have resulted in a finding that plaintiff was disabled. Dkt. # 21,
at 13. The ALJ found that plaintiff had a “limited education,” which means that a claimant has
“ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these
educational qualities to do most of the more complex job duties needed in semi-skilled or skilled
jobs.” 20 C.F.R. § 404.1564(b)(3). A person who has completed the 7th through 11th grades is
generally considered to have a limited education. Id. There are categories of “illiteracy” and
“marginal education” that are below the category of “limited education.”

In making this

determination, an ALJ may rely on the numerical grade level in school completed by the claimant,
unless there is some evidence in the administrative record showing that plaintiff’s actual educational
abilities may be higher or lower than what is represented by the grade level alone. 20 C.F.R. §
404.1564(b).
In this case, plaintiff’s counsel argued at the administrative hearing that plaintiff could
“barely read and write - - borderline illiteracy.” Dkt. # 13-2, at 48. Plaintiff completed the ninth

8

grade but he testified that he was placed in special education classes. Id. at 49. Plaintiff was
criticized at work for not completing tasks quickly enough, and he claims that his inability to read
prevented him from working with sufficient persistence or pace. Id. at 52. He testified that he
cannot read a grocery list or a newspaper, and he could not fill out the forms to file a claim for
Social Security disability benefits. Id. at 53. Plaintiff does drive and he can interpret road signs
with symbols, but he cannot read signs that have words. Id. at 64-65. However, plaintiff
subsequently testified that he can read and write “some.” Id. at 67. The ALJ summarized plaintiff’s
testimony in his written decision and referenced many of the statements identified above, but at step
five he concluded without explanation that plaintiff had a “limited education.” Although not cited
by the ALJ, there is a statement in a disability report that the interviewer observed plaintiff editing
his Social Security forms, even though plaintiff claimed that he could not read. Dkt. # 13-6, at 4.
The Court has reviewed the administrative record and finds that the ALJ failed to provide
sufficient analysis to support his conclusion that plaintiff had a “limited education.” There is
contradictory evidence concerning plaintiff’s ability to read and write, and the ALJ could not have
relied solely on plaintiff’s grade level to make a finding as to plaintiff’s education. There is some
evidence suggesting that plaintiff may have some ability to read and write and the ALJ may
ultimately find that plaintiff has a “limited education,” but the ALJ must expressly consider
plaintiff’s subjective claims that he is unable to read and write in making this determination. The
case should be remanded for further proceedings as to plaintiff’s educational ability, because if
plaintiff is ultimately determined to be illiterate this could warrant a finding that plaintiff is disabled.
At a minimum, the ALJ must provide additional explanation to support his finding that plaintiff
qualifies as having a “limited education.”

9

B.
Plaintiff objects to the magistrate judge’s recommendations that the ALJ provided sufficient
explanation for his decision to give little weight to a third party function report submitted by Hairl
and that the ALJ’s credibility analysis was adequate. Dkt. # 22, at 1-2. Plaintiff does not object to
the magistrate judge’s recommendation that the ALJ failed to include all limitations found by Dr.
Marouk as part of plaintiff’s RFC, but defendant does object to the report and recommendation on
this issue and the Court will consider this issue de novo.
Plaintiff visited Dr. Marouk five times in 2008 for treatment following an on-the-job injury,
and Dr. Marouk limited plaintiff to lifting no more than 25 pounds1 and lifting, bending, and twisting
no more than 15 times per hour. Dkt. # 13-7, at 15. Although plaintiff saw Dr. Marouk in 2008 and
plaintiff alleged onset of disability in 2011, the restrictions imposed by Dr. Marouk were permanent
restrictions. The ALJ noted that Dr. Marouk had previously imposed a restriction that plaintiff could
lift, bend, or twist only 15 times an hour. Dkt. # 13-2, at 32. However, the RFC provided in the
ALJ’s written decision did not include any limitation on the number of times that plaintiff could lift,
bend, or twist per hour. Id. at 30. The Court has already determined that this case should be
remanded due to factual disputes concerning plaintiff’s literacy and education, and the ALJ should
explain whether the permanent restriction as to lifting, bending, and twisting identified by Dr.
Marouk affects plaintiff’s RFC. In the ALJ’s written decision, he mentions that Dr. Marouk
“advised [that] claimant could . . . lift, bend, or twist only 15 times an hour.” Dkt. # 13-2, at 32.

1

Plaintiff’s RFC included a limitation that plaintiff could not lift more than 20 pounds
occasionally, and this limitation is more restrictive than the 25 pound restriction stated by
Dr. Marouk. Plaintiff’s objection is solely focused on the number of times that he may lift,
bend, and twist per hour.
10

This somewhat misstates the actual restriction recommended by Dr. Marouk and the ALJ fails to
explain why this restriction is not included in plaintiff’s RFC. The ALJ’s treatment of Dr. Marouk’s
permanent restriction as to lifting, bending, and twisting and the failure to include this restriction
in the RFC should be clarified on remand.
C.
As to plaintiff’s remaining arguments concerning Hairl’s third party function report and the
ALJ’s credibility analysis, the Court finds that it is unnecessary to consider these objections,
because the Court has identified two errors warranting remand of the case for further administrative
proceedings and the ALJ will be required to make additional findings that will undoubtedly affect
his review of the administrative record and his credibility analysis. See Clifton v. Chater, 79 F.3d
1007 (10th Cir. 1996). The Court declines to issue an advisory opinion on issues that should be
considered by the ALJ in the first instance upon remand of the case, and the report and
recommendation is rejected to the extent that the magistrate judge recommends that the ALJ’s
decision be affirmed in part. Saterlee v. Astrue, 450 F. App’x 753, 755 (10th Cir. Dec. 12, 2011).
IT IS THEREFORE ORDERED that the Report and Recommendation is accepted in part
and rejected in part; the report and recommendation is accepted as to the magistrate judge’s
recommendation that the case be reversed and remanded for further consideration of plaintiff’s
education and plaintiff’s RFC, but the report and recommendation is rejected as to affirmance on
any other issues. The Commissioner’s decision to deny plaintiff’s claim for disability benefits is
reversed and remanded. A separate judgment is entered herewith.
DATED this 6th day of August, 2015.

11