McEwin v. Commissioner of the Social Security Administration
Filing
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MEMORANDUM OPINION AND ORDER -- Based on the Court's review of the record and the issues presented, the Court REVERSES the Commissioner's decision and REMANDS the case for further administrative proceedings. Signed by Magistrate Judge Shon T. Erwin on 11/21/16. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GARY McEWIN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
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Case No. CIV-16-447-STE
MEMORANDUM OPINION AND ORDER
Plaintiff 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 denying his
application for disability insurance benefits under the Social Security Act. The
Commissioner has answered and filed a transcript of the administrative record
(hereinafter TR. ____). The parties have consented to jurisdiction over this matter by a
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court REVERSES the
Commissioner’s
decision
and
REMANDS
the
case
for
further
administrative
proceedings.
I.
PROCEDURAL BACKGROUND
Plaintiff’s application was denied initially and on reconsideration. Following a
hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 1930). The Appeals Council denied Plaintiff’s request for review. (TR. 1-3). Thus, the
decision of the ALJ became the final decision of the Commissioner.
II.
THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency
regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§ 404.1520. At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since March 7, 2011, the alleged disability onset date. (TR.
21). At step two, the ALJ determined Mr. McEwin had “severe” depressive disorder. (TR.
21). At step three, the ALJ found that Plaintiff’s impairments did not meet or medically
equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404,
Subpart P, Appendix 1. (TR. 23).
At step four, the ALJ found that Plaintiff was not capable of performing his past
relevant work. (TR. 28). The ALJ further concluded that Mr. McEwin had the residual
functional capacity (RFC) to
[P]erform a full range of work at all exertional levels but with the
following nonexertional limitations: he is limited to simple and some
complex tasks with routine supervision, no public contact, and no
customer service work. The claimant is able to interact appropriately with
supervisors and coworkers on a superficial work basis and he is able to
adapt to work situations.
(TR. 25).
Based on the finding that Mr. McEwin could not perform his past relevant work,
the ALJ proceeded to step five. There, he presented several limitations to a vocational
expert (VE) to determine whether there were other jobs in the national economy that
Plaintiff could perform. (TR. 67). Given the limitations, the VE identified three jobs from
the Dictionary of Occupational Titles. (TR. 68). The ALJ adopted the testimony of the
VE and concluded that Mr. McEwin was not disabled based on his ability to perform the
identified jobs. (TR. 29-30).
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III.
ISSUE PRESENTED
On appeal, Plaintiff alleges error in the analysis of an opinion from a state
agency physician.
IV.
STANDARD OF REVIEW
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).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court will “neither reweigh
the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805
F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
V.
ERROR IN THE ALJ’S EVALUATION OF A STATE AGENCY OPINION
On September 3, 2014, state agency physician Dr. William Farrell assessed Mr.
McEwin’s mental RFC. (TR. 95-97). Plaintiff alleges that the ALJ erred in her evaluation
of Dr. Farrell’s opinions and the Court agrees.
A.
ALJ’s Duty to Evaluate Medical Opinions
Although ALJs need not discuss every piece of evidence, they are required to
discuss the weight assigned to each medical source opinion. Keyes–Zachary v. Astrue,
695 F.3d 1156, 1161 (10th Cir. 2012). Specifically, when assessing a plaintiff's RFC, an
ALJ must explain what weight is assigned to each opinion and why. SSR 96-5p, 1996
WL 374183, at *5 (July 2, 1996). “[T]here is no requirement in the regulations for a
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direct correspondence between an RFC finding and a specific medical opinion on [a
specific] functional capacity . . . because the ALJ, not a physician, is charged with
determining a claimant’s RFC from the medical record.” Chapo v. Astrue, 682 F.3d
1285, 1288 (10th Cir. 2012) (alteration and internal quotation marks omitted)).
Nevertheless, “[a]n ALJ is not entitled to pick and choose through an uncontradicted
medical opinion, taking only the parts that are favorable to a finding of nondisability.”
Chapo, 682 F.3d at 1292 (internal brackets omitted) (quoting Haga v. Astrue, 482 F.3d
1205, 1208 (10th Cir. 2007)). Ultimately, ALJs are required to weigh medical source
opinions and to provide “appropriate explanations for accepting or rejecting such
opinions.” SSR 96-5p, 1996 WL 374183, at *5.
B.
Evidence from Dr. William Farrell
At the reconsideration level, state Agency non-examining psychologist Dr.
William Farrell assessed Mr. McEwin’s mental RFC in four areas: (1) understanding and
memory, (2) sustained concentration and persistence, (3) social interaction, and (4)
adaptation. (TR. 95-97). In each area, Dr. Farrell rated specific functional limitations
(i.e.--mild, moderate, severe) and provided a narrative explanation which described
how the evidence supported each conclusion. (TR. 95-97). In “understanding and
memory,” Dr. Farrell stated that Plaintiff was moderately limited in his ability to
understand and remember detailed instructions. (TR. 95). By means of explanation, Dr.
Farrell stated that Mr. McEwin retained the capacity to understand and remember
simple 1-3 step instructions. (TR. 96).
In the area of “sustained concentration,” Dr. Farrell opined that Mr. McEwin was
moderately limited in his ability to: (1) carry out detailed instructions and (2) complete
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a normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods. Dr. Farrell explained that Mr. McEwin retained the capacity for
concentration, persistence, and pace for 1-3 step instructions for 2 hour periods over an
8 hour day throughout a 40-hour week. (TR. 96).
In the area of “social interaction,” Dr. Farrell opined that Plaintiff was moderately
limited in his ability to: (1) interact appropriately with the general public and (2) get
along with co-workers or peers without distracting them or exhibiting behavioral
extremes. (TR. 96). By means of explanation, Dr. Farrell stated that Plaintiff could
relate to others on a superficial basis. (TR. 97).
Finally, in the area of “adaptation,” Dr. Farrell concluded that Plaintiff had
moderate limitations in his ability to respond appropriately to changes in the work
setting. (TR. 97). By means of explanation, the physician stated that Plaintiff retained
the adaptive capacity to deal with routine changes and safety issues in the work setting.
(TR. 97).
After rating and explaining each area, the form contained a section for “MRFC—
Additional Explanation.” (TR. 97). There, Dr. Farrell stated that Mr. McEwin could: (1)
perform simple and some complex tasks, (2) relate to others on a superficial work
basis, and (3) adapt to a routine work situation. (TR. 97).
C.
The ALJ’s Evaluation of Dr. Farrell’s Opinion
In the administrative decision, the ALJ discussed Dr. Farrell’s opinions, first
noting that the physician had adopted the same opinion as another SSA doctor who had
concluded that Plaintiff “[wa]s capable of performing simple and some complex tasks,
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relating to others on a superficial basis, and adapting to a work situation.” (TR. 27).
The judge went on to discuss Dr. Farrell’s specific findings, stating:
Dr. [Farrell] stated that the claimant retains the adaptive capacity to deal
with routine changes and safety issues and the capacity for concentration,
persistence, and pace for one to three-step instructions for two-hour
periods over an eight-hour day throughout a 40-hour workweek.
(TR. 27). The ALJ accorded “great weight” to Dr. Farrell’s opinions, stating that they
were consistent with Dr. Danaher’s consultative examination, which was “the most
thorough mental examination of the claimant within the record.” (TR. 27). In the RFC,
the ALJ stated:
[Mr. McEwin] is limited to simple and some complex tasks with routine
supervision, no public contact, and no customer service work. The
claimant is able to interact appropriately with supervisors and coworkers
on a superficial basis and he is able to adapt to work situations.
(TR. 25).
D.
The Parties’ Arguments
Plaintiff argues that remand is warranted because the ALJ failed to apply the
correct legal standard in evaluating Dr. Farrell’s opinions. (ECF No. 14:5-9). Dr. Farrell
had opined that Plaintiff:
(1)
had moderate limitations in his ability to adapt to changes in the work
setting and
(2)
could only perform 1-3 step instructions for 2-hour periods over an 8-hour
day throughout a 40-hour workweek.
(ECF No. 14:7-9). Plaintiff argues that the ALJ did not incorporate these limitations into
her RFC assessment or the hypothetical question to the VE even though she said she
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gave Dr. Farrell’s opinion “great weight.” (ECF No. 14:7-8).1 Plaintiff argues that the
implicit rejection of these opinions without explanation constitutes an impermissible
picking and choosing from Dr. Farrell’s opinion. (ECF No. 14:7-8) (citing Haga v. Astrue,
482 F.3d 1205 (10th Cir. 2007).
In response, the Commissioner argues that based on the instructions printed on
the doctor’s mental RFC assessment (MRFCA) form, and certain sections of the SSA’s
Program Operations Manual System (POMS), the ALJ need not make findings on the
challenged opinions because those portions of Dr. Farrell’s opinion did not reflect
Plaintiff’s ultimate RFC. (ECF No. 20:6-8).
Specifically, the Commissioner argues that the omitted opinions were:
Preliminary Section I findings that addressed the severity of Plaintiff’s
impairments, not functional limitations as required for a Section III RFC
determination. It was this ultimate opinion on Section III of the MRFCA
form—not the summary conclusions from Section I—that the ALJ was
required to consider and weigh as part of the residual functional capacity
analysis.
(ECF No. 20:6-7). Thus, Ms. Colvin concludes that the ultimate RFC determination
(which included Plaintiff’s ability to do simple and some complex tasks, interact with
supervisors and co-workers on a superficial basis, and adapt to work situations)
reflected “verbatim the mental limitations opined by Dr. Farrell in Section III of the
MRFCA form” along with additional limitations of no public contact or customer service
work, which is all the ALJ was required to do. (ECF No. 20:7).
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Plaintiff also argues that the ALJ failed to address Dr. Farrell’s opinion that Plaintiff had
moderate limitations in his ability to “adapt to a routine work situation.” (ECF No. 14:7). But Dr.
Farrell did not make such finding, rather he concluded that Mr. McEwin could adapt to a routine
work situation. (TR. 97).
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E.
Error in the ALJ’s Treatment of Dr. Farrell’s Opinions
At the initial and reconsideration stages of evaluating a disability application, the
ultimate issue of disability is made by a “medical consultant.” POMS § DI
24501.00(B)(2). To record the RFC assessment, the medical consultant uses form SSA47340F4-SUP—the MRFCA form. POMS DI §§ 24510.005(B)(2); 24510.061(A). Section I
of the form is for the doctor to “record preliminary conclusions about the effect of the
impairment(s) on each of four general areas of mental function” and “Section III” of the
form is for the doctor to record a narrative explanation which reflects each of the
findings in Section I. POMS § DI 24510.061(A).
At the reconsideration level in the instant case, the adjudicator medical
consultant was Dr. Farrell. However, Dr. Farrell’s opinion is not reflected on the SSA47340F4-SUP form, and there are no clear “Section I” and “Section III” findings. See
TR. 95-97. Nonetheless, Dr. Farrell rated each area of mental function and provided
accompanying narrative explanations. (TR. 95-97). Likewise, the parties seem to agree
that the challenged opinions fall under what is traditionally considered as “Section I”
while “Section III” consists of Dr. Farrell’s findings that Mr. McEwin can: (1) perform
simple and some complex tasks, (2) relate to others on a superficial work basis, and (3)
adapt to a routine work situation. See ECF Nos. 20:6-8; 21:2-5. The parties also agree
that the ALJ did not include the challenged opinions in the RFC or the hypothetical.
Thus, the dispositive question is whether the ALJ was entitled to reject, without
explanation, the “Section I” findings in his ultimate RFC determination. In this case, the
answer is no.
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The Tenth Circuit has held that “[w]here a psychologist’s Section III narrative
does not contradict any Section I limitations and describes the effect each Section I
limitation would have on the claimant’s mental RFC, the ALJ may properly look to only
the Section III narrative as the psychologist’s opinion regarding mental RFC.” Fulton v.
Colvin, 631 F. App’x. 498, 502 (10th Cir. 2015) (citing Carver v. Colvin, 600 F. App’x.
616, 618–19 (10th Cir. 2015)). However, that does not mean that the ALJ can turn a
blind eye to Section I limitations. Carver, 600 F. Appx. at 619. “[I]f a consultant’s
Section III narrative fails to describe the effect that each of the Section I moderate
limitations would have on the claimant’s ability, or if it contradicts limitations marked in
Section I, the MRFCA cannot properly be considered part of the substantial evidence
supporting an ALJ’s RFC finding.” Id.
In the instant case, the RFC determination only reflected Dr. Farrell’s “Section
III” findings which concluded that Plaintiff could: (1) perform simple and some complex
tasks, (2) relate to others on a superficial work basis, and (3) adapt to a routine work
situation. Compare TR. 25 with 97. But as noted by Plaintiff, the RFC did not reflect
portions of Dr. Farrell’s “Section I” findings which stated that Plaintiff:
(1)
had moderate limitations in his ability to adapt to changes in the work
setting and
(2)
could only perform 1-3 step instructions for 2-hour periods over an 8-hour
day throughout a 40-hour workweek.
The ALJ was not freed from her responsibility to discuss the “Section I” findings
by directly adopting Dr. Farrell’s “Section III” findings for two reasons. First, in “Section
I” Dr. Farrell had concluded that Plaintiff had moderate limitations in the area of
adaptation, and he explained that this meant that Plaintiff “retained the adaptive
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capacity to deal with routine changes and safety issues.” (TR. 97). The implicit
conclusion, therefore, was that Plaintiff had moderate limitations in adapting outside the
areas of “routine changes and safety issues.” But the Section III narrative failed to
account for Dr. Farrell’s specific conclusion by expanding, without explanation or
support, Plaintiff’s ability to adapt to all “routine work situation[s.]” Because the
“Section III narrative [regarding Plaintiff’s ability to adapt to a routine work situation]
fails to describe the effect that . . . the Section I moderate limitations [in Plaintiff’s
ability to adapt],” the ALJ could not, without explanation, reject Dr. Farrell’s conclusions
that Plaintiff was moderately limited in his ability to respond appropriately to changes in
the work setting.
Second, and more bothersome, is the ALJ’s rejection, without explanation, of Dr.
Farrell’s opinion that Mr. McEwin could only perform 1-3 step instructions for 2-hour
periods over an 8-hour day throughout a 40-hour workweek. Dr. Farrell reached this
conclusion after determining that Plaintiff was moderately limited in his ability to
“complete a normal workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number
and length of rest periods.” (TR. 96). But the Section III findings failed to account for
this limitation, instead stating that Plaintiff was capable of “adapt[ing] to a routine work
situation” with no mention of Mr. Farrell’s moderate limitations in his ability to complete
a normal workday without an unreasonable number of rest periods. Dr. Farrell’s
statement that Plaintiff could perform “for two-hour periods” suggested a need for
breaks at least every two hours, but the RFC determination made no such finding was
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silent on the issue, despite the ALJ’s explicit discussion of the limitation and subsequent
statement that he was according all of Dr. Farrell’s opinions “great weight.” (TR. 27).
Because the “Section Three” narrative “contradicts limitations marked in Section
I,” it cannot properly “be considered part of the substantial evidence supporting an
ALJ’s RFC finding” and reversal is warranted. See Gonzales v. Colvin, 2016 WL 4091171
at *4 (ALJ committed reversible error in adopting only a “Section III” narrative which
reflected claimant’s ability to do work which could be learned in one month’s time while
failing to adopt a “Section I” finding that claimant was moderately impaired her ability
to complete a normal workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number
and length of rest periods).
Plaintiff also alleges that the ALJ’s error in evaluating Dr. Farrell’s opinion,
affected the step five findings. (ECF No. 14:9). But the Court will not consider this
argument, as it is premature pending the ALJ’s reconsideration of the opinion. See
Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004) (“We will not reach the
remaining issues raised by claimant because they may be affected by the ALJ’s
resolution of this case on remand.”).
F.
Summary
In Haga v. Astrue, 482 F.3d 1205 (10th Cir. 2007), the Tenth Circuit Court of
Appeals held that an ALJ erred in failing to explain why he adopted some of a
consultative examiner’s restrictions but rejected others. Haga, 482 F.3d at 1208. “[T]he
ALJ did not state that any evidence conflicted with [the CE’s] opinion or mental RFC
assessment. So it is simply unexplained why the ALJ adopted some of [the CE’s]
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restrictions but not others.” Id. The court, therefore, remanded “so that the ALJ [could]
explain the evidentiary support for his RFC determination.” Id.
To be sure, the ALJ was entitled to reject portions of Dr. Farrell’s opinions. But
under Haga, she was not allowed to do so without explanation. Here, the ALJ
thoroughly discussed Dr. Farrell’s opinions and accorded them “great weight.” (TR. 25).
But as the RFC demonstrates, the ALJ implicitly rejected portions of Dr. Farrell’s
opinions concerning Plaintiff’s moderate limitations in his ability to: (1) adapt to
changes in the work setting and (2) complete a normal workday and work week without
an unreasonable number and length of rest periods. Absent an explanation for rejecting
the opinions, the ALJ’s actions were impermissible under Haga and are not salvaged by
Ms. Colvin’s argument regarding “Section I” versus “Section III” findings. Because the
ALJ failed to explain why she omitted portions of Dr. Farrell’s opinions that conflicted
with the doctor’s “Section III” findings, remand is appropriate.
ORDER
Having reviewed the medical 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 REVERSES the Commissioner’s decision and
REMANDS the case for further administrative proceedings.
ENTERED on November 21, 2016.
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