Lang v. Commissioner of the Social Security Administration
MEMORANDUM OPINION and Order stating that for the reasons set forth, the Court reverses the decision of the Commissioner and remands the matter for further proceedings consistent with this Memorandum Opinion and Order. Signed by Magistrate Judge Bernard M. Jones on 7/26/2017. (brs)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
AMANDA G. LANG,
NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security Administration,
Case No. CIV-16-565-BMJ
MEMORANDUM OPINION AND ORDER
Plaintiff, Amanda G. Lang, brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the Social Security Administration’s final decision finding she was not disabled under
the Social Security Act. The parties have consented to the exercise of jurisdiction over this matter
by a United States Magistrate Judge. See 28 U.S.C. § 636(c). The Commissioner has filed the
Administrative Record (AR) [Doc. No. 12], and both parties have briefed their respective
positions. For the reasons stated below, the Court reverses the Commissioner’s decision and
remands the matter for further proceedings.
On April 16, 2013, Plaintiff protectively filed an application for disability insurance
benefits (DIB). See AR 89. The Social Security Administration (SSA) denied the application
initially and on reconsideration. AR 125, 149. Following a hearing, an Administrative Law Judge
(ALJ) issued an unfavorable decision dated October 24, 2014. AR 86-100. The Appeals Council
Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill, Acting Commissioner of Social Security
Administration, is hereby substituted as the proper Defendant in this action.
denied Plaintiff’s request for review. AR 1-6. Thus, the decision of the ALJ became the final
decision of the Commissioner. Plaintiff seeks judicial review of this final agency decision.
The ALJ’s Decision
The ALJ followed the sequential evaluation process required by agency regulations. See
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining five-step sequential
evaluation process); see also 20 C.F.R. § 404.1520. The ALJ first determined Plaintiff had not
engaged in substantial gainful activity since February 2, 2011, her alleged onset date. AR 91.
At step two, the ALJ determined Plaintiff suffers from the severe impairments of status
post traumatic brain injury, a mood disorder, and a cognitive disorder. AR 91.2 At step three, the
ALJ found Plaintiff’s impairments do not meet or medically equal any of the impairments listed
at 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 92-93.
The ALJ next determined Plaintiff’s residual functional capacity (RFC), concluding:
[Plaintiff] has the residual functional capacity to perform a full range
of work at all exertional levels but with the following nonexertional
limitations: She is limited to simple tasks; only superficial contact
with supervisors and co-workers; and no interaction with the general
public. She can adapt to a low stress work environment that does
not involve high production standards or require rapid mental
AR 93-96. The ALJ determined Plaintiff was unable to perform any past relevant work. AR 96.
Relying on the testimony of a vocational expert (VE), the ALJ found there were other jobs that
existed in significant numbers in the national economy that Plaintiff could perform— hand packer
and laundry sorter. AR 96-97. The ALJ concluded, therefore, that Plaintiff was not disabled for
purposes of the Social Security Act. AR 97.
The ALJ also found Plaintiff had the non-severe impairments of migraine and slight ataxic gait.
Issues Presented for Judicial Review
Plaintiff argues the ALJ failed to develop the record regarding Plaintiff’s mental
impairments. Pl.’s Br. [Doc. No. 16], 5-12.3 She also argues the ALJ improperly ignored probative
medical evidence contradicting his findings. Id. at 12-15.
Standard of Review
Judicial review of the Commissioner’s final decision is limited to determining whether the
factual findings are supported by substantial evidence in the record as a whole and whether the
correct legal standards were applied. See 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) (quotation 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). The court “meticulously examine[s] the record as a whole, including anything
that may undercut or detract from the ALJ’s findings in order to determine if the substantiality test
has been met.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations 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 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)
(quotations and citations omitted).
Plaintiff asserts the ALJ inadequately developed the record with regard to her mental
impairments. Specifically, Plaintiff contends the ALJ had a duty to obtain a neuropsychological
Page references to briefs are to the CM/ECF page number.
evaluation4 because “the record contained sufficient evidence ‘to suggest a reasonable possibility’
that she suffered continuing effects from her previous traumatic brain injury.” Pl.’s Br. 8.
A. Summary of Relevant Portions of the Record
In 1997, Plaintiff was involved in a motor vehicle accident in which she suffered a
traumatic brain injury and was in a coma for over two months. AR 318, 385. Later in 1997, when
Plaintiff was seventeen years old, she underwent a neuropsychological evaluation with Mitchel A.
Woltersdorf, Ph.D. AR 385-388. Dr. Woltersdorf’s evaluation indicates that Plaintiff had a
performance scale IQ score of 62 and was “on the mildly retarded range of visual spatial abilities.”
AR 386. Plaintiff had another neuropsychological evaluation with Dr. Woltersdorf in March 1998,
where she received a performance scale IQ score of 65, and the report further stated:
[Plaintiff] is functioning in the low average range of verbal abilities
and the retarded range of visual-spatial abilities. Her poorest scores
were in visual-perceptual problem-solving (severely retarded and
not changed from previous exam) and processing speed (now in the
borderline retarded range, up from the previous severely retarded
Processing speed is likely to improve slightly but the others are
Plaintiff underwent a consultative psychological evaluation in 2013 with Suzan B.
Simmons, Ph.D. AR 318-324. At the end of Dr. Simmons’ report, she stated: “Review of
[Plaintiff’s] neuropsychological evaluation post [traumatic brain injury] and comparison with a
See 20 C.F.R., pt. 404, subpt. P, App. 1, § 12.00(C)(5).
As Defendant notes, the ALJ cited to portions of Dr. Woltersdorf’s neuropsychological
evaluations. See AR 94. The ALJ did not, however, reference the IQ scores.
new neuropsychological evaluation would be helpful in identifying progress or deterioration in
cognitive functioning since her injury.” AR 321.
Prior to the hearing, Plaintiff’s counsel sought further development of the record by way
of “neuropsychiatric evaluation to determine the nature and extent of her Traumatic Brain Injury.”
AR 306. At the hearing, Plaintiff’s counsel repeated his request that the ALJ send Plaintiff for a
neuropsychological evaluation “to better define the cognitive deficits that she has as a result of her
traumatic brain injury.” AR 123. She contends the ALJ’s failure to grant the request is reversible
B. The ALJ Failed to Develop the Record
Although “the burden to prove disability in a social security case is on the claimant,” the
“hearing is nonadversarial . . . and the ALJ bears responsibility for ensuring that an adequate record
is developed during the disability hearing consistent with the issues raised.” Branum, 385 F.3d at
1271 (quotation omitted). “The ALJ’s duty to further develop the record is triggered by conflicts,
inconsistencies or inconclusive findings in the medical record requiring further investigation.”
Maestas v. Colvin, 618 F. App’x 358, 361 (10th Cir. 2015) (citing Hawkins v. Chater, 113 F.3d
1162, 1166-67 (10th Cir. 1997)); see also 20 C.F.R. § 404.1519a (“We may purchase a consultative
examination to try to resolve an inconsistency in the evidence, or when the evidence as a whole is
insufficient to allow us to make a determination or decision on your claim.”).6
Plaintiff cited 20 C.F.R. § 404.1519a, listing situations which “normally require a consultative
examination.” Pl.’s Br. 7. The “normally require” language is contained in a version of 20 C.F.R.
§ 404.1519a that was superseded in 2012—before the decision in this matter. Defendant highlights
the new language of the regulation which discusses situations that “may” require a consultative
examination. See Def.’s Br. [Doc. No. 21], 6. Nevertheless, courts have always analyzed the need
for a consultative examination under a framework giving the ALJ discretion. See Hawkins, 113
F.3d at 1166 (“The [Commissioner] has broad latitude in ordering consultative examinations.”).
And despite the change in regulatory language, courts have found the absence of a consultative
examination resulted in reversible error. See Williams v. Berryhill, -- Fed. App’x --, 2017 WL
Plaintiff last underwent a neuropsychological evaluation in 1998. As stated above, that
evaluation revealed modest recovery in some areas from her 1997 evalutation, but Dr. Woltersdorf
expected permanent deficits in others. AR 390. Plaintiff contends Dr. Simmons’ statement in the
more-recent psychological evaluation that obtaining a “new neuropsychological evaluation would
be helpful in identifying progress or deterioration in cognitive functioning since [Plaintiff’s]
injury” should have prompted the ALJ to order a new consultative neuropsychological evaluation.
Defendant, however, suggests that the consultative psychological evaluation with Dr. Simmons
was sufficient to decide the case.7 Def.’s Br. 6-7. Defendant’s argument is not convincing because
Dr. Simmons suggested her evaluation was insufficient with regard to evaluating Plaintiff’s
permanent cognitive function. AR 321.
This matter is similar to a case decided by the United States District Court for the Eastern
District of Oklahoma, where a doctor performed a psychological evaluation of the claimant and
recommended a neuropsychological evaluation to assess possible cognitive disorder and memory
loss. Schlosser v. Colvin, No. CIV-15-059-JHP-KEW, 2016 WL 1239865, at *3 (E.D. Okla. Mar.
14, 2016), report and recommendation adopted, No. CIV-15-059-JHP-KEW, 2016 WL 1240736
(E.D. Okla. Mar. 29, 2016). Like here, the claimant’s attorney requested the neuropsychological
evaluation at the administrative hearing. Id. There, the ALJ denied the request for the evaluation
1032570, at *2 (10th Cir. Mar. 17, 2017) (reversing and requiring ALJ to order a consultative
examination when “the existing evidence [was] not sufficient to make a determination of [the]
claim”); Kleiman v. Colvin, No. 15-CV-00399-MEH, 2016 WL 1637578, at *12 (D. Colo. Apr.
26, 2016) (remanding and instructing the ALJ “to either further develop the record or elaborate on
its decision to not address the potential need for [a test]” that would have allowed the ALJ to
determine whether Plaintiff equaled or exceeded a listing).
Defendant also contends Dr. Brad Liston, D.O., who performed a consultative physical
examination, also assessed Plaintiff’s neurological functioning. Dr. Liston did not, however,
address Plaintiff’s cognitive functioning. See AR 312.
based on a lack of evidence.
The court, however, found that the doctor preforming the
psychological evaluation’s suggestion was “persuasive even though the ALJ gave his opinion
limited weight.” Id. Ultimately, the Court found:
The record does not contain such testing and, given Claimant's
limitations in other cognitive areas such as literacy, the testing
should be done to clearly and appropriately ascertain the state of
Claimant's mental abilities. On remand, the ALJ shall obtain a
neuropsychological evaluation in order to insure a full picture of
Claimant's mental status is ascertained.
Here too, the consulting doctor performing the psychological evaluation suggested a
neuropsychological evaluation for purposes of assessing the claimant’s cognitive functioning.
Therefore, it is similarly appropriate for the matter to be remanded so that the ALJ can obtain a
Further bolstering Plaintiff’s argument is the fact that an updated neuropsychological
evaluation may be relevant to the ALJ’s step-three findings. Plaintiff contends a further evaluation
was necessary to determine if Plaintiff met the criteria of Listing 12.05(C). 20 C.F.R., pt. 404,
subpt. P, App. 1, § 12.05.8 Listing 12.05 contains a “capsule definition” or “diagnostic description”
of intellectual disability:
Intellectual disability refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before age 22.
Plaintiff also argued that an evaluation would assist in determining whether Plaintiff met the
criteria of Listing 12.02(A)(7). The Court finds this argument unpersuasive because the ALJ found
Plaintiff met neither the paragraph B nor paragraph C criteria of Listing 12.02. AR 92-93. A
claimant must meet either the paragraph B or paragraph C criteria (along with the criteria of
Paragraph A) in order to establish disability pursuant to Listing 12.02. 20 C.F.R., pt. 404, subpt.
P, App. 1, § 12.00(A). Thus, it is irrelevant whether Plaintiff could establish Paragraph A. On
remand, however, the ALJ should consider the neuropsychological evaluation in considering
20 C.F.R., pt. 404, subpt. P, App. 1, § 12.05. The Listing also contains four sets of criteria
describing listing-level severity. Id., § 12.05(A)-(D). A claimant bears the burden of satisfying
both the capsule definition and one of the four severity prongs to establish that she meets the
Lax v. Astrue, 489 F.3d 1080, 1085 (10th Cir. 2007).
Plaintiff contends a
neuropsychological evaluation will show Plaintiff satisfies the requirements in paragraph
12.05(C): “[a] valid verbal, performance or full scale IQ of 60 through 70 and a physical or other
mental impairment imposing an additional and significant work-related limitation of function.”
The ALJ did not address Listing 12.05 in the decision despite the fact that Dr. Woltersdorf’s
neuropsychological evaluations from 1997 and 1998 included performance-scale IQ scores of 65
or lower for Plaintiff. AR 386, 390. These scores, along with Plaintiff’s mood disorder, seemingly
satisfy the severity prong in paragraph 12.05(C). While it is possible that the ALJ did not consider
Listing 12.05 because he did not believe Plaintiff satisfied the capsule definition or because he did
not consider the IQ scores to be valid, the Court cannot be certain because the ALJ did not discuss
the listing or explain why he did not grant Plaintiff’s request for a neuropsychological evaluation.9
On remand the ALJ should obtain a neuropsychological evalaution and consider its
findings—in conjunction with Listing 12.05, any other relevant listing, and at all other appropriate
steps in the decision.
Defendant argues “the ALJ noted significant activity inconsistent with the low score in the years
after Plaintiff’s injury, including Plaintiff’s successful past skilled and semi-skilled work, and
primary and independent child care.” Def.’s Br. 9-10. Plaintiff’s past work, however, was not
referenced in relation to the analysis of the listings, but instead only with regard to Plaintiff’s
inability to perform her past work. See AR 96. Although Defendant cites Keyes-Zachary v. Astrue,
695 F.3d 1156, 1172 (10th Cir. 2012) in support of this proposition, in that case the individual’s
full scale IQ score was 84—in borderline mental retardation range—and there was no indication
that the claimant had a score that could meet the severity criteria of one of the paragraphs in Listing
12.05. Id. at 1172-73.
C. The Court Does Not Reach the Merits of Plaintiff’s Second Point of Error
Plaintiff’s other contention of error is that the ALJ erred by ignoring probative medical
evidence which contradicted his findings. Because the ALJ must further develop the record on
remand, the Court does not reach the merits of Plaintiff’s remaining claim as it “may be affected
by the ALJ’s treatment of the case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th
Cir. 2003). The ALJ, however, is reminded that the decision “must discuss the uncontroverted
evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.”
Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996).
For the reasons set forth, the Court reverses the decision of the Commissioner and remands
the matter for further proceedings consistent with this Memorandum Opinion and Order.
ENTERED this 26th day of July, 2017.
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