Kerr v. Commissioner of the Social Security Administration

Filing 23

MEMORANDUM OPINION AND 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 matter for further administrative findings. Signed by Magistrate Judge Shon T. Erwin on 8/30/17. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DELILAH L. KERR,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. CIV-16-1417-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 Plaintiff’s
applications for 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 AND
REMANDS the Commissioner’s decision.
I.

PROCEDURAL BACKGROUND
The Social Security Administration denied Plaintiff’s application for supplemental

security benefits and disability insurance benefits initially and on reconsideration.
Following two administrative hearings, an Administrative Law Judge (ALJ) issued an

unfavorable decision. (TR. 16-28). 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 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged
in substantial gainful activity since June 30, 2012, the alleged disability onset date. (TR.
18). At step two, the ALJ determined Ms. Kerr had the following severe impairments:
fibromyalgia, sensitivity to sunlight, and status-post lumbar surgery. (TR. 18). 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. 20).
At step four, the ALJ concluded that Ms. Kerr had the residual functional capacity
(RFC) to:
[P]erform light work as defined in 20 CFR 404.1567(b) and 416.967(b) as
follows: She can occasionally lift/carry 20 pounds, and frequently 10
pounds; stand/walk at least six hours in an eight-hour workday; sit at least
six hours out of an eight-hour workday; she should not have to climb
ladders, ropes, and scaffolds; she should not work at unprotected heights;
she can no more than frequently balance, stoop, kneel crouch or crawl; and
she should not work in intense sunlight (but can work in an indoor
environment).
(TR. 20).

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With this RFC, the ALJ found that Plaintiff was capable of performing her past
relevant work as a pharmacy technician. (TR. 26). Even so, the ALJ made alternate
findings at step five. At a hearing on September 11, 2015, the ALJ presented the
limitations set forth in the RFC, as outlined above, to a vocational expert (VE) to
determine whether there were other jobs in the national economy that Plaintiff could
perform. (TR. 67-68). Given the limitations, the VE identified two jobs from the Dictionary
of Occupational Titles—mail clerk and electrical assembler. (TR. 68). The ALJ adopted the
testimony of the VE and concluded at step five that Ms. Kerr was not disabled based on
her ability to perform the identified jobs. (TR. 27).1
III.

ISSUES PRESENTED
On appeal, Plaintiff alleges the ALJ erred in the evaluation of an opinion from a

physician’s assistant.
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.

The ALJ also adopted findings made from a VE at the first administrative hearing who had
stated that Ms. Kerr could perform the jobs of information clerk and counter clerk. (TR. 27). But
in making those findings, the VE had not considered the entirety of Plaintiff’s limitations as set
forth in the RFC which he ultimately adopted. Compare TR. 94 (hypothetical posed to VE) with
TR. 20 (Plaintiff’s RFC). Accordingly, the Court will only consider the ALJ’s adoption of the jobs of
mail clerk and electrical assembler at step five.
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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 CONSIDERATION OF “OTHER SOURCE” EVIDENCE
Plaintiff alleges error in the evaluation of an opinion from a physician’s assistant.

Ms. Kerr’s allegations have merit.
A.

ALJ’s Duty to Consider Evidence from “Other Sources”

Tenth Circuit law and Social Security Ruling 06-3p state that the ALJ must consider
evidence from “other sources,” who do not qualify as “acceptable medical sources.” Blea

v. Barnhart, 466 F.3d 903, 914-15 (10th Cir. 2006); Titles II and XVI: Considering
Opinions and Other Evidence from Sources Who are not “Acceptable Medical Sources” in
Disability Claims; Considering Decisions on Disability by Other Governmental and
Nongovernmental Agencies, 2006 WL 2329939, at *4, *6 (SSR 06-3p). “Medical sources
who are ‘not acceptable medical sources,’ [include] . . . physician assistants[.]” SSR 0603-p, at *2.
Opinions from these “non-medical sources” who have seen the claimant in an
official capacity should be evaluated using the following factors: (1) the length and
frequency of the treatment, (2) consistency of the opinion with other evidence, (3) the

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degree to which the source presents relevant evidence in support, (4) how well the source
explains the opinion, (5) the level of the source’s expertise, and (6) any other relevant
factors. Id. at *5.
In evaluating “other source” evidence, not every factor will apply in every case.

Id. However, the ALJ should explain the weight given to the “other source,” ensuring that
the decision allows a reviewing party to follow the adjudicator’s reasoning. Id. at *5-6.
B.

Treatment and Various Opinions from Ms. Braud
From June 20, 2012 to October 29, 2015, Enid Family Medicine Clinic Physician’s

Assistant Krista Braud treated Plaintiff for a variety of complaints. (TR. 555-566, 571-583,
592-594, 598-605, 609-614, 617-622, 625, 632-633, 638-641, 643-649, 654-661, 676681, 686-706, 708-709, 718-721, 723-724, 727-732, 763-767, 781, 792-794, 796, 798803, 806-810, 813-815, 828-823, 985-991, 993-1002, 1004-1013). On April 29, 2013,
Ms. Braud noted that Plaintiff was experiencing severe pain in her hips and pressure in
her low back. (TR. 764). On January 20, 2014, Ms. Braud noted: “burning” hip pain,
intermittent tingling and numbness in Plaintiff’s legs, and that Ms. Kerr “seem[ed] to fall
easily at times.” (TR. 686). Based on the examination, Ms. Braud diagnosed bilateral hip
pain and peripheral neuropathy. (TR. 689).
On April 28, 2014, Plaintiff complained of an unsteady gait, bilateral hip pain, and
she requested a walker. (TR. 658). Upon examination, Ms. Braud noted that after walking
five paces, Plaintiff’s right leg became weaker, which caused her to “kneal [sic]
downward.” (TR. 660). Following that visit, Ms. Braud prescribed a folding walker with

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wheels and a seat. (TR. 661). On May 19, 2014, Plaintiff reported continued weakness in
her legs and that “sometimes her legs [went] out while she walk[ed].” (TR. 643). At that
time, Ms. Braud diagnosed an unsteady gait and noted that Ms. Kerr was using a cane to
walk for stability. (TR. 643, 646-647). On June 10, 2014, Ms. Braud noted that Plaintiff’s
gait was unsteady and that she was still using a cane to ambulate. (TR. 612-613). One
week later, Ms. Braud again prescribed a rolling walker with a seat for Ms. Kerr due to
her unsteady gait. (TR. 600, 603, 604).
In August 2015, Ms. Kerr was still complaining of bilateral hip pain and walking
with a cane. (TR. 990-991). Although she was receiving steroid injections every three
weeks, they only provided relief for approximately one week. (TR. 990). In October 2015,
Ms. Kerr was still walking with a cane.
C.

Error in the Consideration of Ms. Braud’s Opinion

In the decision, the ALJ:


acknowledged Ms. Braud as a treatment provider;

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noted Ms. Braud’s various impressions of Ms. Kerr suffering polyarthritis,
polymorphous light eruption, GERD, headaches, bilateral hip pain,
peripheral neuropathy, hemorrhoids, and insomnia; and

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recognized that Ms. Braud had prescribed a walker with wheels in April of
2014.

(TR. 23-24).
In assessing the opinion evidence, the ALJ stated that the RFC was supported by
opinions from Dr. Alexander, DDS, Dr. Hamadeh, Dr. Cardich, Dr. Puckett, and Dr. Rao.
(TR. 26). But the ALJ made no findings regarding whether the RFC was supported by Ms.

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Braud’s opinions, and indeed it appears as though a conflict existed. As stated, the RFC
allowed for standing and walking 6 hours during an 8-hour workday and made no
accommodation for Ms. Kerr’s use of an assistive device—even though Ms. Braud had
prescribed a walker and Plaintiff was walking with a cane at the hearing, which the ALJ
acknowledged. (TR. 20, 21).
In assessing all of the opinion evidence, the ALJ stated:
As for the opinion evidence; the claimant has been treated by several
physicians. Dr. Hamadeh, Dr. Cardich, Dr. Puckett, Dr. Rao, and also by Ms.
Braud, a physician’s assistant. However, Dr. Alexander is a medical expert
who reviewed all the medical evidence in the file. His opinions appear
consistent with the objective evidence in the file such as that mentioned in
the previous paragraph. Therefore, his opinions are given great weight.
(TR. 25). Although the ALJ mentioned Ms. Braud, he omitted any discussion of her
findings that Plaintiff had suffered from an unsteady gait and required an assistive device
to ambulate. As stated, the ALJ has a duty to explain the weight given to “other source,”
evidence, to “ensure that the discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning[.]” SSR
06-3p at *6. Here, the ALJ credited the opinion from the medical expert, which he was
obligated to do. But doing so did not relieve him of his duty to explain his assessment of
Ms. Braud’s opinions, especially considering the glaring conflict between Ms. Braud’s
findings and the RFC.
The Commissioner attempts to defend the ALJ’s decision by pointing to various
opinions that allegedly provide substantial evidence in support of the RFC. (ECF No. 20:46). But the issue is not whether substantial evidence existed to support the RFC, it is

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whether the ALJ fulfilled his legal obligation to evaluate Ms. Braud’s opinion. In addition,
Ms. Berryhill relies on:


Ms. Kerr’s reports of improvement on medication,



The fact that Ms. Braud had only prescribed the walker on Plaintiff’s request,
and



A one-time notation by Ms. Braud that Plaintiff suffered from “no limp,” and



Plaintiff’s daily activities.

(ECF No. 20:7-12). The Court makes no findings on whether these explanations provide
a sufficient basis on which to reject Ms. Braud’s opinion because the ALJ himself does not
rely on these rationales. Accordingly, the Court should reject Defendant’s argument
because the Court is not permitted to supply post hoc rationales to uphold the
Commissioner’s decision. See Haga v. Astrue, 482 F.3d 1205, 1207 (10th Cir. 2007)
(“[T]his court may not create or adopt post-hoc rationalizations to support the ALJ’s
decision that are not apparent from the ALJ’s decision itself.”); Hackett v. Barnhart, 395
F.3d 1168, 1173 (10th Cir. 2005) (the Court should not “substitute [its] judgment for that
of the Commissioner.”).
In considering “other source” evidence, the ALJ must consider the evidence,
explain the weight given, and provide an adequate rationale which allows a reviewing
party to follow the adjudicator’s reasoning. The ALJ erred in this regard—he
acknowledged Ms. Braud’s treatment of Plaintiff and noted that Ms. Kerr walked with a
cane. However, the ALJ effectively rejected Ms. Braud’s opinion as evidenced by the
conflict between the opinion and the RFC. The ALJ was entitled to reject the opinion, but

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in doing so, he had to provide an explanation. The ALJ failed in this regard, as his analysis
did not allow for a proper review by the Court. As a result, remand is appropriate for
further consideration of Ms. Braud’s opinion in accordance with SSR 06-03p.
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 matter for further administrative findings.
ENTERED on August 30, 2017.

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