Pease v. Social Security Administration

Filing 25

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

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
KIMBERLEY DIANNE PEASE,
PLAINTIFF,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
DEFENDANT.

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CASE NO. 16-CV-353-FHM

OPINION AND ORDER
Plaintiff, KIMBERLY DIANNE PEASE, seeks judicial review of a decision of the
Commissioner of the Social Security Administration denying 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.
Standard of Review
The role of the court in reviewing the decision of the Commissioner under 42 U.S.C.
§ 405(g) is limited to a determination of 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. See Briggs ex rel. Briggs v.
Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th
Cir. 1996); Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th

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Plaintiff Kimberly Dianne Pease’s application was denied initially and upon reconsideration. A video
hearing before an Administrative Law Judge (ALJ) Edmund C. Werre was held October 21, 2014. By decision
dated December 11, 2014, the ALJ entered the findings which are the subject of this appeal. The Appeals
Council denied Plaintiff’s request for review on April 14, 2016. The decision of the Appeals Council represents
the Commissioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981, 416.1481.

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Cir. 1994). 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. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.2d
842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The
court may neither reweigh the evidence nor substitute its judgment for that of the
Commissioner. Casias v. Secretary of Health & Human Servs., 993 F.2d 799, 800 (10th
Cir. 1991). Even if the court would have reached a different conclusion, if supported by
substantial evidence, the Commissioner’s decision stands. Hamilton v. Secretary of Health
& Human Servs., 961 F.2d 1495 (10th Cir. 1992).
Background
Plaintiff was 41 years old on the alleged date of onset of disability and 42 on the date
of the denial decision. Plaintiff has a high school education and attended some college.
Her past work experience includes kennel attendant. Plaintiff claims to have become
disabled as of August 22, 20132 due to back and hip problems, neck problems, depression,
anger issues, memory problems, arthritis, hands and feet go to sleep, and sleep apnea. [R.
194].
The ALJ’s Decision
The ALJ found that Plaintiff has severe impairments relating to degenerative disc
disease, osteoarthritis of the hands and feet, obesity, organic mental disorder/borderline
intellectual functioning status post remote (1994) traumatic head injury, major depressive
disorder, anger disorder, and personality disorder. [R. 13].

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Plaintiff amended the date of onset from July 26, 2013 to August 22, 2013. [R. 57].

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The ALJ determined that Plaintiff has the residual functional capacity to perform light
work with the exception of no more than occasional lifting up to twenty pounds; no more
than the frequent lifting or carrying up to ten pounds; and standing/walking/sitting six hours
out of an eight-hour workday. Plaintiff is able to understand, remember, and carry out
simple instructions consistent with unskilled work that is repetitive and routine in nature;
able to relate and interact with co-workers and supervisors on a work related basis only;
and no to minimal interaction with the general public. Plaintiff can adapt to a work situation
with these limitations, and her medications would not preclude her from remaining
reasonably alert to perform required work functions presented in a work setting. [R. 15].
The ALJ determined that although Plaintiff cannot return to her past relevant work, based
on the testimony of the vocational expert, there are a significant number of jobs in the
national economy that Plaintiff could perform. [R. 20-21]. Accordingly, the ALJ found
Plaintiff was not disabled. The case was thus decided at step five of the five-step
evaluative sequence for determining whether a claimant is disabled. See Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps in detail).
Plaintiff’s Allegations
Plaintiff asserts that the ALJ failed to give greater weight to the expert medical
opinion of treating psychiatrist, Weldon Mallgren, D.O., which resulted in a flawed residual
functional capacity (RFC). [Dkt. 22, p. 4].
Analysis
A treating physician's opinion is accorded controlling weight if it is well-supported by
medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent

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with other substantial evidence in the record. However, if the opinion is deficient in either
of these respects, it is not given controlling weight. When an ALJ decides to disregard a
medical report by a claimant's physician, he must set forth specific, legitimate reasons for
his decision. An ALJ "may reject a treating physician's opinion outright only on the basis
of contradictory medical evidence and not due to his or her own credibility judgments,
speculation or lay opinion." Watkins v. Barnhart, 350 F.3d, 1297, 2003 WL 22855009 (10th
Cir. 2003). If the ALJ decides that a treating source's opinion is not entitled to controlling
weight, he must determine the weight it should be given after considering: (1) the length
of the treatment relationship and the frequency of examination; (2) the nature and extent
of the treatment relationship, including the treatment provided and the kind of examination
or testing performed; (3) the degree to which the treating source's opinion is supported by
objective evidence; (4) whether the opinion is consistent with the record as a whole; (5)
whether or not the treating source is a specialist in the area upon which an opinion is given;
and (6) other factors brought to the ALJ's attention which tend to support or contradict the
opinion. See § 404.1527(d)(2)-(6).
Dr. Mallgren is the Medical Director of Grand Lake Mental Health Center, Inc.,
where Plaintiff was treated from August 22, 2013 to August 12, 2014. A Medical Source
Statement - Mental (MSS-M) was signed by Dr. Mallgren on October 2, 2014 that indicated
Plaintiff would have approximately four “bad days” per month which would cause her to
leave prematurely or be absent from work. Plaintiff would be “off task” from her symptoms
which would interfere with attention needed to perform even simple tasks twenty-five
percent or more of the time. Plaintiff was found to have extreme limitations in her ability
to: understand and remember detailed instructions; carry out detailed instructions; complete
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a normal workday and workweek without interruption from psychologically based symptoms
and to perform at a consistent pace without an unreasonable number and length of rest
periods; respond appropriately to changes in the work setting; be aware of normal hazards
and take appropriate precautions; and travel in unfamiliar places or use public
transportation.
Plaintiff was also found to have marked limitations in ability to: maintain attention and
concentration for extended periods; perform activities within a schedule, maintain regular
attendance and be punctual within customary tolerances; sustain an ordinary routine
without special supervision; work in coordination with or proximity to others without being
distracted by them; interact appropriately with the general public; accept instructions and
respond appropriately to criticism from supervisors; and get along with coworkers or peers
without distracting them or exhibiting behavioral extremes. [R. 444-45].
The ALJ gave little weight to Dr. Mallgren’s opinion noting:
That opinion was not completed by Dr. Mallgren, rather it was
completed by a nurse who went over the form with the claimant
and asked her questions. Further still, Dr. Mallgren is the
medical director of Grand Lake Mental Health and he saw the
claimant by video. Further, the definitions on the form are not
the agency definitions, if the claimant had ninety-percent
reduction in the extreme categories, she should not be driving
or doing anything outside a hospital. ...[N]ot consistent with the
treatment notes from Grand Lake Mental Health, which indicate
that the claimant’s symptoms are controlled with medication.
[R. 19].
Plaintiff argues that, aside from her testimony, [R. 46-47], the ALJ provided no
evidence that the MSS-M form was completed by a nurse rather than Dr. Mallgren.
Further, the ALJ failed to explain why Dr. Mallgren’s opinion was discounted because

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contact with Plaintiff was by video3. Plaintiff contends that there are no “agency” definitions
for the terms “moderately,” “markedly,” or “extremely,” and the definitions contained on the
MSS-M form provided Dr. Mallgren with a clear understanding of those terms and their
vocational meaning. Moreover, Dr. Mallgren’s position as Medical Director of the Grand
Lake Mental Health Center, Inc., should enhance, rather than diminish, the weight given
to his opinion. [Dkt. 22, p. 9]. Defendant responds that the ALJ evaluated the record as
a whole, including Plaintiff’s treating doctor’s opinion, and determined an RFC supported
by substantial evidence.
The court finds that the ALJ’s decision does not demonstrate that the treating
doctor’s opinion was properly considered.

The statement that the opinion was not

completed by the doctor is not clearly supported by the record. Although the Plaintiff
testified she answered questions for the nurse, it is not clear that the form signed by the
doctor contains the Plaintiff’s answers. Moreover, the doctor’s signature clearly indicates
the form represents his opinion.
The fact that the doctor is the medical director and saw Plaintiff by video is not
relevant to the issue. Finally, the conclusory statement that the opinion is not consistent
with the treatment notes and that symptoms are controlled with medication is insufficient
without further discussion by the ALJ when treatment notes reflect that Plaintiff continued
to suffer from mental health problems and there was no indication that the medications
improved Plaintiff’s condition to a level consistent with the RFC.

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The court is cognizant that Plaintiff appeared by video during the Administrative Hearing held
before ALJ Edmund C. Werre on October 21, 2014.

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CONCLUSION
The ALJ’s decision is therefore REVERSED and the case REMANDED for further
proceedings in accordance with this Opinion and Order.
SO ORDERED this 14th day of April, 2017.

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