Dickson v. Commissioner of Social Security

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION 18 of Magistrate Judge Shon Erwin and reverses the final decision of the Commissioner and remands case for further proceedings consistent with the report and recommendation. Signed by Honorable Joe Heaton on 07/22/2014. (Attachments: # 1 Attachment Report & Recommendation)(lam)

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CLARA D. DICKSON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Case No. CIV-13-442-HE

REPORT AND RECOMMENDATION
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review
of Defendant Commissioner's final decision denying Plaintiff's application for benefits
under the Social Security Act. This matter was referred for hearing, if necessary, and
submission of findings and recommendations pursuant to 28 U.S.C. §§ 636(b)(1)(B),
636(b)(3), and Fed. R. Civ. P. 72(b). The administrative record (Tr.) has been filed, and
the appeal has been fully briefed and is ready for disposition. For the reasons set forth
below, the undersigned recommends the Commissioner's decision be REVERSED AND
REMANDED for further administrative proceedings.
This Court reviews the Commissioner's final “decision to determin[e] whether the
factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quotation omitted).

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I.

THE DECISION UNDER REVIEW

This appeal concerns a decision reached at step five of the sequential evaluation
process. In a decision issued on December 13, 2011, the administrative law judge (ALJ)
found that Plaintiff was not disabled under the Social Security Act and therefore not
entitled to benefits. (Tr. 17). The ALJ found Plaintiff to have the following severe
impairments: depression; anxiety; personality disorder; and migraine headaches. (Tr.
12). However, he found that none of these impairments met or equaled the criteria for
any of the listed impairments in 20 C.F.R. § Part 404, Subpart P, Appendix 1. (Tr. 14).
The ALJ found that Plaintiff’s physical impairments were not severe. Id.
Upon continuing the sequential analysis, the ALJ found Plaintiff to have the
residual functional capacity (RFC) to perform a range of light work, described as
follows: “[T]he claimant has the residual functional capacity to perform light work . . .
except she only has concentration for unskilled work, needs to work in relative isolation
with limited contact with peers, coworkers and general public.” (Tr. 15).
The ALJ found that Plaintiff has no past relevant work. Based upon his RFC
finding, the ALJ found that Plaintiff could perform other jobs existing in the national
economy. (Tr. 16-17). In reaching this finding, the ALJ relied on the testimony of a
vocational expert (VE) and, as a framework, the Medical-Vocational Guidelines, 20
C.F.R. Part 404, Subpart P, Appx. 2. (Tr. 17). The VE identified the following
representative jobs that a person with Plaintiff’s RFC and vocational factors could
perform: textile sewing machine operator; small parts assembler; and motel cleaner. Id.
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II.

ERRORS ALLEGED ON APPEAL

In this appeal, Plaintiff alleges that the ALJ erred in two respects. First, she
claims that the ALJ failed to properly evaluate the opinions evidence of Plaintiff’s mental
health counselor, Rebecca L. Koecker Livesay, MHR, LPC-S, RPT-S. ECF No. 15:6.
Second, Plaintiff contends that the ALJ failed to discuss uncontroverted and significantly
probative evidence that conflicted with his findings.
A. The ALJ’s Treatment of the Evidence of Rebecca Livesay
Plaintiff first argues that the ALJ did not perform an appropriate evaluation of
evidence provided by Plaintiff’s mental health counselor, Ms. Livesay. ECF No. 15:6.
Plaintiff contends that the ALJ did not follow the specific criteria for evaluation of nonacceptable medical sources. ECF No 15:6. While conceding that a medical professional’s
lack of qualification as an “acceptable medical source” may be considered by the ALJ,
Plaintiff points out that a non-acceptable medical source’s opinion might outweigh that
of an “acceptable medical source” in certain situations. ECF No. 15:7.
The Plaintiff directs the Court’s attention to SSR 06-3p. In this ruling, the Social
Security Administration acknowledged that an increasing number of claimants are
receiving treatment from medical sources that are not considered to be acceptable
medical sources under its rules. The agency has noted:
With the growth of managed health care in recent years and
the emphasis on containing medical costs, medical sources
who are not “acceptable medical sources,” such as nurse
practitioners, physician assistants, and licensed clinical social
workers, have increasingly assumed a greater percentage of
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the treatment and evaluation functions previously handled
primarily by physicians and psychologists. Opinions from
these medical sources, which are not technically deemed
“acceptable medical sources” under our rules, are important
and should be evaluated on key issues such as impairment
severity and functional effects, along with other relevant
evidence in the file.
SSR 06–03p, 2006 WL 2329939, at *3. Thus, despite the fact that Ms. Livesay is not an
acceptable medical source, Plaintiff argues that the ALJ was required to consider the
evidence, which she provided:
[W]e consider all relevant evidence in the case record when
we make a determination or decision about whether the
individual is disabled. Evidence includes, but is not limited
to, opinion evidence from “acceptable medical sources,”
medical sources that are not “acceptable medical sources,”
and “non-medical sources” that have seen the individual in
their professional capacity. The weight to which such
evidence may be entitled will vary according to the particular
facts of the case, the source of the opinion, including that
source's qualifications, the issue(s) that the opinion is about,
and many other factors, as described below.

Id. at *4. These factors include the length and frequency of the claimant's relationship
with the source, the evidentiary support for the opinion, the source's explanation of the
opinion, and the source's specialty or expertise. Id. Underscoring the requirement that
all medical source opinion evidence must be addressed, the Ruling states:
Since there is a requirement to consider all relevant evidence
in an individual's case record, the case record should reflect
the consideration of opinions from medical sources that are
not “acceptable medical sources” and from “non-medical
sources” that have seen the claimant in their professional
capacity. Although there is a distinction between what the
adjudicator must consider and what the adjudicator must
explain in the disability determination or decision, the
adjudicator generally should explain the weight given to
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opinions from these “other sources,” or otherwise ensure
that the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow
the adjudicator's reasoning, when such opinions may have
an effect on the outcome of the case.

Id. at *6.
In applying these standards to the opinions of Ms. Livesay, Plaintiff points out
several alleged problems in the ALJ’s analysis. The ALJ summarized his findings
regarding the mental status forms prepared by Ms. Livesay, stating: [t]he undersigned
gives little weight to the mental status forms . . . as they were [sic] completed or
reviewed by a psychiatrist or psychologist and are not supported by the total evidence
of record.” (Tr. 16). However, Plaintiff argues that the finding that Ms. Livesay’s
opinions were not supported by the “total evidence of record” was not only vague but
also incorrect. ECF No. 15:10. The Plaintiff then goes on to recite evidence that was not
discussed by the ALJ in making this finding.
For example, the ALJ never mentioned the fact that Ms. Dickson’s visits to Ms.
Livesay from November 2007 through June 2010 were for persistent symptoms like
depression, anxiety, anger, irritability, frustration, and flashbacks. ECF No. 15:10. Ms.
Livesay also noted delusions, poor motivation, and interpersonal conflict. ECF No.
15:10-11 (citing Tr. 196-276, 414-431). During her sessions with Ms. Livesay, Plaintiff
argues that she was consistently found to have objective abnormalities like depressed,
angry, tense, anxious, overwhelmed, worried, frustrated feelings, mood, and/or affect;
distorted, irrational, and/or impulsive thought processes; and sometimes limited
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progress. ECF No. 15:11 (citing Tr. 199-202, 206, 209-210, 212-214, 217-224, 227,
229-233, 236, 238-245, 247-261, 263-275, 418-420, 422-423, 425-431).
Plaintiff also argues that because the ALJ failed to discuss Ms. Livesay’s mental
status forms, there is no discussion in his decision regarding Ms. Livesay’s references to
paranoia, extreme impulsivity, illogical thinking, poor motivation, chronic emotional
problems, extremely poor social skills, being easily angered, poor grooming, angry and
agitated attitude, tangential speech, depressed and irritable affect, monthly suicidal
thoughts, blaming of others, scratching herself, and illogical, distorted, and often
grandiose thinking noted in those forms. (Tr. 15:11) (citing Tr. 16, 413, 482).
The Plaintiff also notes that the ALJ mischaracterized the frequency and
longitude of Ms. Livesay’s counseling relationship with Plaintiff. ECF No. 15:11. The ALJ
referred to monthly counseling, whereas Plaintiff points to the medical record showing
that she saw Ms. Livesay from two to six times a month from November 2007 through
June 2010. ECF No. 15:11 (almost 90 visits).
The Commissioner responds that the ALJ’s assignment of “little weight” to the
mental status forms of Ms. Livesay “demonstrates that he properly considered them in
relation to the record as a whole.” ECF No. 16:3. She argues that the ALJ’s summary of
the weight he gave to the mental status exams should be viewed with “common
sense,” and that the Court cannot hold an ALJ to technical perfection. ECF No. 16:4.
The Commissioner argues, “it is obvious that the ALJ properly discounted Ms. Livesay’s
mental status forms; otherwise he would not have developed the mental RFC that he
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did.” She also claims that Ms. Livesay’s treatment notes do not contain any significant
objective findings. ECF No. 16:5. The Commissioner claims that her counselors never
suggested inpatient treatment, “which would have occurred if Plaintiff was truly
disabled as she would like us to find.” ECF No. 16:6.
Finally, the Commissioner argues that the treatment notes of the “medically
acceptable” sources “further support the ALJ’s conclusion that Ms. Livesay’s mental
status forms were entitled to little weight.” ECF No. 16:7. She then goes on to discuss
the findings of Dr. Laurie Clemens and those of the state agency medical consultants.

Id.
In reply, Plaintiff argues that Ms. Livesay’s treatment notes contain numerous
references to her objective findings regarding Plaintiff: depressed, angry, tense,
anxious, overwhelmed, worried, frustrated feelings, mood, affect; distorted, irrational,
and/or impulsive thought processes; and sometimes limited progress ECF No. 17:3. The
Commissioner also notes that no case or regulation has ever required inpatient mental
health treatment to qualify for disability. ECF No. 17:5.
Plaintiff characterizes the Commissioner’s argument as a post-hoc rationalization,
but even if such is considered, contends that the findings of the consultative examining
psychologist that were accepted by the ALJ are not in conflict with the notes of Ms.
Livesay. ECF No. 17:7.
In light of the foregoing, the ALJ was not entitled to reject Ms. Livesay’s opinion
evidence and treatment notes in such a conclusory fashion. Accordingly, the
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undersigned finds that the ALJ’s lack of consideration of the relevant factors in
considering the opinion of Ms. Livesay is reversible error. See Frantz v. Astrue, 509 F.3d
1299, 1302 (10th Cir. 2007).
The Commissioner’s attempt to provide reasons why the ALJ might have given
Ms. Livesay’s notes and opinion little weight if he had engaged in the proper analysis is
a “post hoc effort to salvage the ALJ's decision” and “would require us to overstep our
institutional role and usurp essential functions committed in the first instance to the
administrative process.” 509 F.3d at 1302 (“The Commissioner's post hoc argument
supplying possible reasons for the ALJ's seeming rejection of [the nurse practitioner's]
opinions is unavailing.”).
In sum, the ALJ failed to engage in any meaningful consideration of Ms. Livesay’s
treatment notes or opinions under SSR 06–3p. And, this failure is particularly troubling
because she was almost exclusively Plaintiff's only health care provider, she provided a
basis for her findings, and her opinion would undermine the RFC findings and thus
could have an effect on the outcome of the case. Accordingly, remand is required.
In light of the recommended disposition of this appeal, it is unnecessary to
address Plaintiff’s second claim of error. However, the undersigned notes that it is
improper for the ALJ to pick and choose among medical reports, using portions of
evidence favorable to his position while ignoring other evidence. Hardman v. Barnhart,
362 F.3d 676, 681 (10th Cir. 2004). Thus, on remand, the ALJ must take care to explain
any significantly probative and conflicting evidence he chooses to reject.
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RECOMMENDATION
Having reviewed the evidence of record, the transcript of the administrative
hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the
undersigned magistrate judge finds that the decision of the Commissioner should be
REVERSED AND REMANDED for further administrative proceedings.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file specific written objections to this
Report and Recommendation. See 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Any such
objection should be filed with the Clerk of the District Court by July 14, 2014. The
parties are further advised that failure to make timely objection to this Report and
Recommendation waives the right to appellate review of the factual and legal issues
addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in
this matter.
ENTERED on June 30, 2014.

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