Murray v. Commissioner of Social Security

Filing 25

OPINION AND ORDER. The decision of the Commissioner is reversed and remanded in accordance with sentence four of 42 U.S.C. § 405(g). Signed by Magistrate Judge Charles B Goodwin on 09/12/2017. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JAMES EDWARD MURRAY,
Plaintiff,
v.
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NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

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Case No. CIV-15-364-CG

OPINION AND ORDER
Plaintiff James Edward Murray brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of the Social Security
Administration (“SSA”) denying Plaintiff’s applications for disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, id. §§
1381-1383f. The parties have consented to the jurisdiction of a United States Magistrate
Judge. Doc. No. 18. Upon review of the administrative record (Doc. No. 11, hereinafter
“R. _”) and the arguments and authorities submitted by the parties, the Court reverses the
Commissioner’s decision and remands the matter for further proceedings.2

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The current Acting Administrator is substituted as Defendant in this action pursuant to
Federal Rule of Civil Procedure 25(d).
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With the exception of the administrative record, references to the parties’ filings use the
page numbers assigned by the Court’s electronic filing system.

PROCEDURAL HISTORY
Plaintiff protectively filed his applications for DIB and SSI on August 27, 2010,
alleging a disability onset date of August 15, 2010, and alleging disability based on major
depression, anxiety, social anxiety and isolation, and various physical conditions. R. 17479, 180-83, 212-14, 302. Following denial of Plaintiff’s applications initially and on
reconsideration, an Administrative Law Judge (“ALJ”) held a hearing. R. 75-124. The
ALJ issued an unfavorable decision on September 11, 2013. R. 56-67. The SSA Appeals
Council denied Plaintiff’s request for review, making the ALJ’s unfavorable decision the
final decision of the Commissioner. R. 1-6; see also 20 C.F.R. §§ 404.981, 416.1481. This
action for judicial review followed.
ADMINISTRATIVE DECISION
As relevant here, the Commissioner uses a five-step sequential evaluation process
to determine eligibility for disability benefits. Wall v. Astrue, 561 F.3d 1048, 1052 (10th
Cir. 2009); 20 C.F.R. §§ 404.1520, 1520(a)(4), 416.920, 920(a)(4). At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since August 15, 2010,
the alleged onset date. R. 58; see 20 C.F.R. §§ 404.1571, 416.971. At step two, the ALJ
determined that Plaintiff had the severe impairments of: acquired hypothyroidism; high
blood pressure, well controlled; obesity; and depression. R. 58-59; see 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, the ALJ determined that Plaintiff’s
impairments did not meet or equal any of the presumptively disabling impairments listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 59-60; see 20 C.F.R. §§ 404.1520(d),
416.920(d).

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The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all
of his impairments. R. 60-65; see 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The
ALJ found that Plaintiff had the RFC to perform sedentary work subject to the additional
limitations that Plaintiff could:
sit for 6 hours; stand/walk for 2 hours; [have] no concentrated exposure to
extreme heat; perform simple and some complex tasks with routine
supervision; [have] no public contact; [perform] no customer service; . . .
interact appropriately with supervisors and co-workers for superficial work
purposes; and . . . adapt to work situations.
R. 60; see 20 C.F.R. §§ 404.1567(a) (defining “sedentary work”), 416.967(a) (same). At
step four, the ALJ found that Plaintiff was unable to perform any past relevant work and
that transferability of job skills was not a material issue. R. 65; see 20 C.F.R. §§ 404.1565,
.1568, 416.965, .968.
At step five, the ALJ considered whether there are jobs existing in significant
numbers in the national economy that Plaintiff—in view of his age, education, work
experience, and RFC—could perform. Taking into consideration the hearing testimony of
a vocational expert regarding the degree of erosion to the unskilled sedentary occupational
base caused by Plaintiff’s additional limitations, the ALJ concluded that Plaintiff could
perform occupations such as tube operator, document preparer, and addresser, all of which
offer jobs that exist in significant numbers in the national economy. R. 66; see 20 C.F.R.
§§ 404.1545(a)(5)(ii), 416.945(a)(5)(ii). On this basis, the ALJ concluded that Plaintiff
had not been under a disability, as defined in the Social Security Act, from August 15,
2010, through the date of the decision. R. 66; see 20 C.F.R. §§ 404.1520(g), 416.920(g).

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STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is limited to determining
whether factual findings are supported by substantial evidence in the record as a whole and
whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th
Cir. 2009). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th
Cir. 2003) (internal quotation marks omitted). “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.” Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004)
(internal quotation marks omitted). The court “meticulously examine[s] the record as a
whole,” including any evidence “that may undercut or detract from the ALJ’s findings,”
“to determine if the substantiality test has been met.” Wall, 561 F.3d at 1052 (internal
quotation marks omitted). While a reviewing court considers whether the Commissioner
followed applicable rules of law in weighing particular types of evidence in disability
cases, the court does not reweigh the evidence or substitute its own judgment for that of
the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
ANALYSIS
Plaintiff presents two issues on appeal: (1) whether the ALJ’s RFC determination is
supported by substantial evidence and is adequately explained, and (2) whether the ALJ
failed to properly weigh Plaintiff’s credibility. See Pl.’s Br. (Doc. No. 13) at 6, 16-20, 2124. As to both issues, Plaintiff addresses evidence and testimony related to his mental
impairments and not his physical impairments.

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A. Whether the ALJ Properly Weighed Plaintiff’s Credibility
Plaintiff asserts that the ALJ’s credibility analysis was legally flawed and the result
unsupported by substantial evidence. Pl.’s Br. at 21-24. Notably, at the time of the ALJ’s
decision, assessment of a claimant’s subjective complaints was governed by Social
Security Ruling 96-7p, but on March 16, 2016, the Commissioner adopted a superseding
Ruling—Social Security Ruling 16-3p—that eliminated use of the term “credibility” and
provided new guidance for evaluating the intensity, persistence, and limiting effects of a
claimant’s symptoms. See SSR 16-3p, 2016 WL 1119029 (eff. Mar. 28, 2016). Without
foreclosing the possibility that a proper assessment under Ruling 16-3p may lead to the
same result, the Court determines that the lack of analysis in the assessment actually
performed by the ALJ requires reversal and remand.
The Ruling in place when the ALJ issued her decision required adjudicators to make
findings regarding the credibility of testimony describing “the intensity, persistence, and
functionally limiting effects of . . . symptoms,” such as pain and other subjective
complaints, that are associated with the claimant’s medically determinable impairments.
See SSR 96-7p, 1996 WL 347186, at *1 (July 2, 1996); Wilson v. Astrue, 602 F.3d 1136,
1144-45 (10th Cir. 2010). In addition to objective evidence, the ALJ was required to
consider certain factors in evaluating a claimant’s credibility, including:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain or
other symptoms;
3. Factors that precipitate and aggravate the symptoms;

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4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received
for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back, standing
for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *3; accord 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3)
(2013); Hamlin v. Barnhart, 365 F.3d 1208, 1220 (10th Cir. 2004).
When considering these factors, the ALJ must “explain why the specific evidence
relevant to each factor led him to conclude claimant’s subjective complaints were not
credible.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). The 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 676, 678-79 (10th Cir. 2004) (quoting Kepler, 68 F.3d at 391); see SSR
96-7p, 1996 WL 374186, at *4 (“The reasons for the credibility finding must be grounded
in the evidence and articulated in the determination or decision.”). This is because, in the
absence of “specific reasons for the finding on credibility, supported by the evidence in the
case record,” the weight the ALJ afforded Plaintiff’s statements and the reasons for that
weight are unclear, and the court cannot undertake the requisite “full and fair review” of
the decision. SSR 96-7p, 1996 WL 374186, at *4.
Here, the ALJ concluded that Plaintiff was “not entirely credible,” stating that
Plaintiff’s “medically determinable impairments could reasonably be expected to cause the
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alleged symptoms; however, [Plaintiff’s] statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely credible for the reasons explained
in this decision.” R. 62; see also R. 63. As support for this conclusion, the ALJ
summarized Plaintiff’s hearing testimony and adult function reports regarding his daily
activities, summarized some of Plaintiff’s medical history including medications, noted
Plaintiff’s sobriety and criminal history, noted that Plaintiff has traveled, and stated that
Plaintiff’s “treatment for the allegedly disabling impairment(s) . . . has been essentially
routine and/or conservative in nature.” R. 62-63.

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Thus, the ALJ did consider some of the relevant factors. The ALJ did not, however,
closely and affirmatively link these factors to her credibility determination or provide
specific reasons for that determination. See R. 62-63; Wilson, 602 F.3d at 1144 (explaining
that ALJ is required to closely and affirmatively link credibility findings to substantial
evidence in the record and to “articulate specific reasons” for such findings). Instead, the
ALJ simply recited evidence from the record and did not provide any insight into how that
evidence impacted her credibility determination—she did not tie her findings to the
evidence. See Kepler, 68 F.3d at 391 (“[T]he link between the evidence and credibility
determination is missing; all we have is the ALJ’s conclusion.”). The lack of explanation

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Plaintiff does not include the ALJ’s review of Plaintiff’s testimony and adult function
reports in his argument regarding factors the ALJ relied on. See Pl.’s Br. at 22. However,
because that review follows the ALJ’s discussion of the need to assess the credibility of
Plaintiff’s statements, the undersigned finds the review relevant to the ALJ’s credibility
assessment. See R. 61.
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or analysis is most notable in connection with the tendency toward isolation caused by
Plaintiff’s mental impairments, as detailed below.
1. Daily activities
Though the ALJ recounted Plaintiff’s testimony and report of his daily activities,
she did not provide analysis or explanation as to how those activities lessened Plaintiff’s
credibility either generally or specifically regarding his testimony that his depression was
isolating. See R. 61, 96, 257, 258, 259; see also R. 262, 264. The ALJ’s summary is only
a narrative description of Plaintiff’s testimony and adult function reports.

This is

insufficient to fulfill the ALJ’s duty to perform a credibility analysis. See Bledsoe ex rel.
J.D.B. v. Colvin, 544 F. App’x 823, 825 (10th Cir. 2013) (finding that ALJ’s narrative
summary of testimony lacked credibility findings and was insufficient).
Plaintiff reported that his mental impairments severely limit his ability to engage in
activities outside of his home where he comes into contact with people. See R. 94, 96, 204,
205, 207, 209, 256, 258, 259. The ALJ stated that Plaintiff testified that he “goes shopping
once a week” and reported on his adult function report that he “goes to the post office and
grocery store.” R. 61. In Plaintiff’s adult function reports, however, he reported that he
shops once a month for about one to two hours and that he needs someone to accompany
him when he does go outside the home. R. 207, 256. At the hearing, Plaintiff stated that
when he goes out, “being around a lot of people makes me real nervous” “[a]nd I just, I
think people are talking about me in the store and I usually have to leave the store.” R. 94.
Similarly, the ALJ states that: “[Plaintiff] traveled to McCurtain County, near
Idabel, Oklahoma, to see a relative. He also travels with his parents to their medical

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appointments in Oklahoma City and Midwest City.” R. 87. Plaintiff stated that he had
traveled to McCurtain County to see his sister once or twice in the three years prior to the
hearing and taken no other trips outside the Oklahoma City metro area. R. 86. Plaintiff
states that for the trips to McCurtain County and to his parents’ medical appointments, he
was accompanied by others. Id.
Taking Plaintiff’s statements and testimony in full, the minimal activities cited by
the ALJ do not constitute substantial evidence refuting Plaintiff’s claims of difficulty
functioning outside of his home. See Frey v. Bowen, 816 F.2d 508, 516-17 (10th Cir. 1987)
(finding that plaintiff’s lifestyle consisting of limited and sporadic activities “does not
contradict a claim of disabling pain” and ALJ’s citation of such daily activities did not
indicate substantial evidence refuting plaintiff’s credibility or claims of pain). Nor do the
other daily activities cited by the ALJ, which include activities performed at home, such as
watching television, fixing simple meals, and managing money. See R. 61; see also
Miranda v. Barnhart, 205 F. App’x 638, 642 (10th Cir. 2005) (reversing when ALJ
“perfunctorily acknowledged the testimony about [the claimant’s] reluctance to leave his
apartment” but “focused almost entirely on the various activities [the claimant] reported
being able to do while inside his apartment”).
2. Sobriety and criminal history
In her discussion of Plaintiff’s credibility, the ALJ stated: “[Plaintiff] has been sober
since 2008,” and “[Plaintiff] has three charges of possession of drug paraphernalia and was
in prison in Oklahoma for 18 months.” R. 63. No elaboration on these facts is made and,
specifically, no findings are made as to how or why Plaintiff’s sobriety or criminal history

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impact Plaintiff’s credibility or the RFC assessment. The ALJ’s perfunctory references to
Plaintiff’s sobriety and criminal history do not constitute substantial evidence refuting
Plaintiff’s claims of difficulty functioning outside the home. See Kepler, 68 F.3d at 391
(holding that “findings as to credibility should be closely and affirmatively linked to
substantial evidence”).
3. Medical record
The ALJ summarized some of Plaintiff’s medical history, including some of his
medications, and then stated that Plaintiff’s “treatment for the allegedly disabling
impairment(s) . . . has been essentially routine and/or conservative in nature.” R. 62-63;
see 20 C.F.R. §§ 404.1529(c)(3)(iv) (evaluation of symptoms includes consideration of
effectiveness of medication), .1529(c)(3)(v) (evaluation of symptoms includes
consideration of treatment received), 416.929(c)(3)(iv), .929(c)(3)(v).
The ALJ’s recitation of Plaintiff’s medical history, in and of itself, indicates that
Plaintiff’s mental impairments were not well controlled and the treatment not routine. The
ALJ’s summary includes that Plaintiff had been diagnosed with “major depression”;
“major depressive disorder with psychotic features”; “major depressive disorder, recurrent,
severe with psychotic features”; “major depressive disorder, severe, without psychotic
features”; and “anxiety disorder.” R. 62-63 (citing Exs. 16F, 25F, 26F, 27F, 28F, 35F,
37F). The ALJ’s summary also reflects that Plaintiff “reported suicidal and homicidal
ideation [and] he hears voices”; Plaintiff reported having “frequent panic attacks”;
Plaintiff’s “[a]ffect was depressed”; “hallucinations and delusions were present”; and
“delusions were noted as present.” R. 62-63 (citing Exs. 25F, 26F, 34F, 36F, 37F). In June

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2011, Plaintiff received inpatient treatment at Oklahoma County Crisis Intervention
Center, where he “was assessed with major depressive disorder, recurrent, severe with
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psychotic features and a global assessment of functioning score of 14,” “reported suicidal
and homicidal ideation,” and “reported that he hears voices.” R. 62 (citing Exs. 25F, 26F).
Subsequently, Plaintiff continued to be diagnosed with anxiety and severe depression, and
continued to experience delusions, hallucinations, and panic attacks. See R. 62-63.
Further, though the ALJ mentioned some medications, she did not assess whether
such medications were effective. See R. 62-63. As such, it is unclear how the ALJ’s
references to Plaintiff’s treatment and medication led to a conclusion that Plaintiff’s
allegations regarding his mental impairments were not credible. See McFerran v. Astrue,
437 F. App’x 634, 637 (10th Cir. 2011) (rejecting credibility assessment that consisted of
criteria for evaluating allegations of symptoms, a summary of portions of plaintiff’s
testimony, and restatement of entries in the medical record, but “provide[d] no explanation
of how the ALJ applied the criteria to the testimony and medical records”).

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A GAF score “represents a clinician’s judgment of the individual’s overall level of
functioning” at a given time, using a scale of 1 to 100. Am. Psychiatric Ass’n, Diagnostic
& Statistical Manual of Mental Disorders 32 (4th ed. text rev. 2000) (“DSM-IV”). A GAF
score in the range of 11-20 indicates “[s]ome danger of hurting self or others (e.g., suicide
attempts without clear expectation of death; frequently violent; manic excitement) OR
occasionally fails to maintain minimal personal hygiene (e.g., smears feces) OR gross
impairment in communication (e.g., largely incoherent or mute).” Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1162 n.1 (10th Cir. 2012) (quoting DSM-IV at 34).
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4. Conclusion
In sum, when determining the credibility of a claimant’s subjective complaints of
symptoms, an ALJ must explain the conclusion reached and provide some link between
the credibility determination and the evidence. Kepler, 68 F.3d at 391. While it is not
necessary to perform a formalistic analysis of each factor considered, there must be at least
some discussion of the basis for the conclusion as to credibility. See Strickland v. Astrue,
496 F. App’x 826, 835-36 (10th Cir. 2012). Here, the ALJ’s decision stated a conclusion
as to Plaintiff’s credibility, and provided a recitation of evidence, but included no
meaningful discussion of how the evidence served as a basis for the conclusion, at least
with respect to Plaintiff’s ability to function independently and outside the home. The ALJ
did not attempt to tie particular evidence to the conclusion drawn or otherwise provide a
basis for review by this Court as to the reasoning behind the credibility determination.
It may well be that, upon remand, the ALJ can explain the evidence leading to the
conclusion that Plaintiff’s complaints of the limiting effects of his symptoms do not
preclude his ability to work. Because such explanation is lacking in this decision, a remand
for further proceedings is necessary to allow the ALJ “to evaluate the intensity and
persistence” of Plaintiff’s symptoms and determine how those symptoms limit his “ability
to perform work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2; see Pruitt v.
Colvin, No. CIV-15-207-HE, 2016 WL 1266960, at *1-2 (W.D. Okla. Mar. 31, 2016); cf.
Bledsoe ex rel. J.D.B., 544 F. App’x at 825-26 (rejecting the proposition that the ALJ’s
failure to fulfill the duty to perform a credibility analysis could be excused as harmless

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error where “[a] reasonable administrative factfinder could view” the claimant’s testimony
“as supporting a finding of disability”).
B. Whether the ALJ’s Decision Otherwise Contains Reversible Error
Based on the recommendation of remand, the Court need not address the remaining
claim of error raised by Plaintiff. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir.
2003) (“We will not reach the remaining issues raised by appellant because they may be
affected by the ALJ’s treatment of this case on remand.”).
CONCLUSION
Based on the foregoing analysis, the decision of the Commissioner is REVERSED
and REMANDED in accordance with sentence four of 42 U.S.C. § 405(g). Judgment will
issue accordingly.
IT IS SO ORDERED this 12th day of September, 2017.

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