Williams v. Commissioner of Social Security Administration

Filing 25

MEMORANDUM OPINION AND ORDER ~ 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 8/25/2017. (dwl)

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

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Case No. CIV-17-8-BMJ

MEMORANDUM OPINION AND ORDER
Plaintiff, Karen Williams, 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), and both parties have briefed their respective positions.1 For the
reasons stated below, the Court reverses the Commissioner’s decision and remands the matter for
further proceedings.
I.

Procedural Background
Plaintiff filed applications for disability insurance benefits (DIB) and supplemental

security income (SSI), alleging disability beginning November 2017. AR 191-99. Following an
administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision dated
June 25, 2015. AR 17-29. The Appeals Council denied Plaintiff’s request for review on November
22, 2016.

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AR 1-7.

Therefore, the ALJ’s decision constitutes the final decision of the

Citations to the parties’ submissions reference the Court’s ECF pagination.

Commissioner. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff timely
commenced this action for judicial review. See Compl. [Doc. No. 1] (filed Jan. 4, 2017).
II.

The ALJ’s 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) (explaining
process); see also 20 C.F.R. §§ 404.1520, 416.920. The ALJ first determined that Plaintiff meets
the insured status requirements of the Act through December 31, 2016, and has not engaged in
substantial gainful activity since the alleged onset date, November 17, 2012. AR 19.
At step two, the ALJ determined that Plaintiff has the following severe impairments:
degenerative disc disease of the lumbar spine; gout; diabetes mellitus; and affective disorder. Id.
At step three, the ALJ found that Plaintiff’s impairments do not meet or medically equal any of
the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. AR 20-22.
The ALJ next determined Plaintiff’s residual functional capacity (RFC).

The ALJ

concluded Plaintiff could perform light work with additional physical and mental limitations. AR
22.2
At step four, the ALJ found that Plaintiff could not perform her past relevant work as a
Dietary Assistant; Dishwasher; Kitchen Helper; or Cafeteria Cook because that work requires an
exertional level greater than the ALJ’s RFC determination. AR 27-28. At step five, relying on the
testimony of a vocational expert (VE), the ALJ concluded that Plaintiff can perform other work
that exists in significant numbers in the national economy. AR 28-29. The ALJ identified Bottling
Line Attendant; Electrode Cleaner, Production Help; and Bakery Worker as representative

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See 20 C.F.R. §§ 404.1567(b), 416.967(b) (setting forth requirements for light work).
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occupations. AR 28-29. The ALJ concluded, therefore, that Plaintiff was not disabled under the
terms of the Social Security Act. AR 29.
III.

Issue Presented for Judicial Review
Plaintiff seeks judicial review raising two claims of error: (1) the ALJ failed to properly

consider medical source opinions; and (2) the ALJ’s findings regarding Plaintiff’s allegations
about her symptoms is legally flawed and not supported by substantial evidence.3
IV.

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

Plaintiff’s second claim of error, though framed in terms of findings about her “symptoms” is a
challenge to the “credibility” findings set forth in the ALJ’s decision. As the Tenth Circuit has
noted, subsequent to the ALJ’s decision in this case, “the Commissioner eliminated use of the term
‘credibility’ from its sub-regulatory policy.” Kellams v. Berryhill, No. 16-1338, 2017 WL
3432373 at *6, n. 4 (10th Cir. Aug. 10, 2017) (unpublished op.) (citing Soc. Sec. Rul. 16-3p, 2016
WL 1119029 at *1 (Mar. 16, 2016)). Although Plaintiff cites SSR 16-3p in addressing her
challenge to the ALJ’s credibility findings, the change in sub-regulatory policy is not outcome
determinative in this case. As discussed infra, the Court remands this matter finding reversible
error as to Plaintiff’s first claim of error and, therefore, deems it unnecessary to address the second
claim of error which might be affected by proceedings on remand.
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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 bears the burden of proof at steps one through four of the sequential evaluation
process to establish a prima facie case of disability. Wells v. Colvin, 727 F.3d 1061, 1064 n. 1
(10th Cir. 2013). If Plaintiff meets this burden, the burden of proof shifts to the Commissioner at
step five to show that Plaintiff retains a sufficient RFC to perform other work that exists in
significant numbers in the national economy. Id.
V.

Analysis
A.

The ALJ’s Weighing of the Medical Opinion Evidence4

The ALJ gave great weight to the opinion of the consultative examiner, Julie Wiley, M.D.,
based on her examination of Plaintiff in May 2013. AR 25. The ALJ deemed Dr. Wiley’s opinion
“consistent with the record as a whole” but did not specifically reference the other evidence relied
upon. Id.
The ALJ gave little weight to the opinion of Jen Fosdick, APRN-CNP. Specifically, Ms.
Fosdick opined that Plaintiff’s employment opportunities were limited as a result of her conditions.
AR 531. The ALJ found this opinion “is not supported with explanation and not consistent with

Defendant attempts to recast Plaintiff’s first claim of error as a challenge to the ALJ’s RFC
assessment and an impermissible request to reweigh the evidence supporting the ALJ’s RFC
assessment. See Def.’s Brf. at p. 8. To the contrary, Plaintiff’s claim focuses on the ALJ’s failure
to follow the governing regulations and law with respect to the analysis of medical and other source
opinion evidence. Plaintiff specifically faults the ALJ for failing to address this evidence in his
decision and to provide specific reasons for finding certain opinion evidence inconsistent with
other evidence of record.
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the record as a whole.” AR 26. Again, however, the ALJ did not specifically identify any evidence
that was inconsistent with Ms. Fosdick’s opinion.5
Plaintiff contends the ALJ erred because he failed to discuss two other opinions that are
consistent with Ms. Fosdick’s opinion.6 First, Plaintiff cites a medical record from Janson P.
Varghese, ARPN, C-NP. In July 2014, Mr. Varghese completed an application for a handicap
parking permit on Plaintiff’s behalf. AR 490. Mr. Varghese recommended a five-year permit on
grounds Plaintiff was “severely limited . . . in her ability to walk due to an arthritic, neurological
or orthopedic condition.” Id. Mr. Varghese completed this application following an examination
of Plaintiff on the same date. AR 510-512.
Second, Plaintiff cites a “Medical Source Opinion of Residual Functional Capacity”
completed by Mikel Cooley, ARPN in March 2016. Ms. Cooley opines that Plaintiff can
stand/walk less than 2 hours in an 8-hour work day and frequently lift or carry less than 10 pounds.
She also opines that Plaintiff is unable to walk without a cane and cannot walk long distances

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To the extent Ms. Fosdick offers an opinion on the ultimate issue of disability, Defendant is
correct that the ALJ was not required to adopt that opinion. See Castellano v. Sec’y of Health &
Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (“[F]inal responsibility for determining the
ultimate issue of disability is reserved to the [Commissioner].”); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2). The error claimed by Plaintiff, however, is the ALJ’s failure to adequately explain
why Ms. Fosdick’s opinion was inconsistent with the other evidence of record or, conversely, why
he rejected aspects of Dr. Wiley’s opinion while stating he was giving that opinion great weight.
The record is not limited to Ms. Fosdick’s opinion evidence, but includes a treatment history with
Plaintiff by Ms. Fosdick. See, e.g., AR 504-531.
The Court recognizes that all of the opinion evidence relied upon by Plaintiff is from an “other
source” and not from “an acceptable medical source.” See 20 C.F.R. §§ 404.1502(a), 416.902(a).
Nonetheless, these opinions “should be evaluated on key issues such as impairment severity and
functional effects.” Bowman, 511 F.3d at 1274-75; see also Nichols v. Astrue, 341 F. App’x 450,
453 (10th Cir. 2009) (assuming, without deciding, that the factors set forth in §§ 404.1527(d) and
416.927(d) should be considered in evaluating such other source opinion evidence).
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without having to stop.

She attributes these limitations to Plaintiff’s medical impairments

associated with her cervical and lumbosacral spine and her scoliosis. AR 11.
Plaintiff further points to Dr. Wiley’s consultative examination, in which she addressed
Plaintiff’s “guarded antalgic gain, with the use of an assistive device.” See Pl.’s Brf. at p. 9 (citing
AR 426). This medical evidence also supports limitations on Plaintiff’s ability to stand and walk.7
Plaintiff argues that although the ALJ gave “great weight” to Dr. Wiley’s report, the ALJ did not
reconcile his RFC finding that Plaintiff has no limitations in her ability to stand and walk with the
statement in Dr. Wiley’s report regarding Plaintiff’s use of an assistive device. Id.
The Court agrees and finds Plaintiff’s first claim of error has merit. The ALJ failed to
provide any reasons why he deemed Dr. Wiley’s opinion consistent with the record as a whole but
rejected Ms. Fosdick’s opinion as inconsistent. See Kellams, 2017 WL 3422373 at *7 (finding
reversible error where ALJ did not explain how any of the findings of the consultative examiner
were inconsistent with the claimant’s treatment history or the findings of other medical providers);
cf. Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004) (finding remand required where
“the ALJ failed to explain or identify what the claimed inconsistencies were between [the treating
physician’s] opinion and the other substantial evidence in the record,” and concluding that the
ALJ’s reasoning was not “sufficiently specific to enable this court to meaningfully review his
findings”) (quotation omitted). Here, as in Langley, upon an independent review of the record, the

Dr. Wiley included multiple findings that indicate limitations on Plaintiff’s ability to stand and/or
walk. In addition to noting Plaintiff’s use of an assistive device, Dr. Wiley found “[m]uscle
strength in the lower extremities is decreased at 3/5”; “pain with passive range of motion testing
of the left knee and tenderness to palpation in this joint as well”; “limited range of motion of the
lumbosacral spine at 45/90 in flexion, 20/25 in extension”; “tender with intermittent left side
bending”; “tenderness to palpation throughout the lumbar region”; “positive straight leg raise
bilaterally in the supine position”; and pain with heel and toe walking. AR 425-26. The ALJ
recited this evidence and concluded he was giving it great weight because it was “consistent with
the record as a whole.” AR 25.
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Court is unable to identify any obvious inconsistencies to which the ALJ might have been referring.
Id. at 1122–23.
Nor does the ALJ explain why he gave great weight to Dr. Wiley’s findings, but then
omitted any limitations related to Plaintiff’s ability to stand and/or walk. See Hardman v.
Barnhart, 362 F.3d 676, 681 (10th Cir. 2004) (An ALJ may not “pick and choose among medical
reports, using portions of evidence favorable to his position while ignoring other evidence.”); see
also Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (An ALJ need not “discuss every
piece of evidence” but “must discuss the uncontroverted evidence he chooses not to rely on as well
as significantly probative evidence he rejects.”).
Notable is Defendant’s wholly cursory response to Plaintiff’s claim of error:
Ms. Fosdick’s opinion was not necessarily inconsistent with the ALJ’s ultimate
RFC finding. The ALJ found Plaintiff was limited to a range of light work, which
clearly limits her employment opportunities to only certain unskilled jobs.
Def.’s Brf. at p. 11 (emphasis added). In making this argument, Defendant necessarily concedes
that the ALJ’s opinion lacks adequate explanation for finding Ms. Fosdick’s opinion inconsistent
and impermissibly invites post-hoc justifications for the ALJ’s findings. See Haga v. Astrue, 482
F.3d 1205, 1207-08 (10th Cir. 2007) (“[C]ourt[s] may not create or adopt post-hoc rationalizations
to support the ALJ’s decision that are not apparent from the ALJ’s decision itself.”).
In a similar vein, Defendant admits that the ALJ “did not explicitly refer to the form
completed by Mr. Varghese . . . stating Plaintiff was severely limited in her ability to walk” but
nonetheless contends “it is apparent that the ALJ considered Mr. Varghese’s statement and
implicitly determined to give it no weight.” Id. at p. 12. The Court disagrees. Without express
analysis by the ALJ, it is not possible to know what weight he might have given the opinion or
whether he considered it at all. As the Tenth Circuit has long held, where an ALJ wholly fails to

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address evidence, the court cannot conduct a meaningful review of the ALJ’s decision. See
Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) (“[W]hen . . . an ALJ does not
provide any explanation for rejecting medical evidence, we cannot meaningfully review the ALJ’s
determination.”). Defendant’s disingenuous argument that the ALJ implicitly considered Mr.
Varghese’s opinion but gave it no weight must be rejected.
Finally, the ALJ gave great weight to the opinion of the state agency consultant on
reconsideration, Emily Eisenhauer, M.D. AR 26-27. The ALJ found her opinion was “consistent
with the record as a whole.” AR 27. Once again, however, the ALJ did not identify what evidence
he relied upon or explain how the opinion of Dr. Eisenhauer was consistent with the other evidence
of record. As a non-examining consultant, “[Dr. Eisenhauer’s] review of the record was not itself
a proper basis for according [her] opinion[s] greater weight than those of the other examining
sources.” Kellams, 2017 WL 3432373 at *9 (citing Chapo v. Astrue, 682 F.3d 1285, 1291 (10th
Cir. 2012)). Dr. Eisenhauer referenced the findings of Dr. Wiley, but failed to address how those
findings supported her conclusion that Plaintiff could perform light work. AR 122-23.8
Additionally, as Plaintiff points out, Dr. Eisenhauer gave her opinion on August 2, 2013,
and that opinion was based on a review of a then-incomplete medical record. The latest medical
record identified in Dr. Eisenhauer’s review is from August 2013. AR 114.
The ALJ cited significant medical evidence from October 2013 through February 2015
which is consistent with the opinion evidence from Ms. Fosdick and Mr. Varghese and the findings
of Dr. Wiley. For example, in October 2013, Solomon M. Pearce, D.O., examined Plaintiff due to

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Dr. Eisenhauer states that she reviewed an independent consultative examination conducted on
May 22, 2013 by James W. Stephens, D.O. AR 122. But there is no medical record from Dr.
Stephens. The error appears to be an erroneous, but inadvertent, misidentification of the
consultative examiner, as Dr. Eisenhauer’s summary of the consultative examination otherwise
tracks the findings of Dr. Wiley made during her consultative examination on May 22, 2013.
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complaints of left leg pain. AR 481-482. He noted “decreased range of motion in all four
extremities with positive slump and positive seated straight leg raise on the left.” AR 481. He
further noted that Plaintiff’s “[r]ight upper extremity appears worse than left with C5-6-7
distribution of numbness and tingling, positive Tinel’s and Phalen’s tests, right greater than left.”
Id. Dr. Pearce further noted that Plaintiff “has exquisite tenderness to palpation in her left gluteal
maximus region and his reproduces symptoms shooting to her spine and down her legs, as well.”
AR 482. Dr. Pearce administered a trigger point injection to alleviate Plaintiff’s pain. Id.9
Plaintiff is correct that proper consideration of this medical source opinion evidence could
affect the ALJ’s RFC findings and the ultimate determination of whether Plaintiff is disabled.10
The ALJ, therefore, committed reversible legal error and a remand is required.11

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Approximately one month after Dr. Solomon administered the trigger point injection, Plaintiff
received a lumbar epidural steroid block. AR 492. Within a week, Plaintiff reported the block
alleviated her pain up to 70%. AR 494. But thereafter, Plaintiff continued to report pain, with
only slight improvement, and continued to take pain medications. AR 521, 526, 528.
For example, the VE testified that with Plaintiff’s other limitations, if she could perform work
only at the sedentary level, Plaintiff would not have any transferrable skills. AR 74-75. If Plaintiff
were limited to sedentary work, her age and lack of transferable skills would support a finding of
disability. See 20 C.F.R., Pt. 404, Subpt. P. App. 2, § 201.14.
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As set forth above, Plaintiff also relies on opinion evidence of Ms. Cooley to support her claim
of error. AR 11. But Ms. Cooley’s opinion, dated March 30, 2016, post-dates the ALJ’s June
2015 decision. Thus, the ALJ could not have considered that opinion evidence. The Appeals
Council deemed the evidence not relevant to the period under review. AR 2. The Appeals Council
stated:
We also looked at the medical evidence dated March 30, 2016 from Mikel Cooley,
A.P.R.N.-C.N.P. (2 pages). The Administrative Law Judge decided your case
through June 25, 2015. This new information is about a later time. Therefore, it
does not affect the decision about whether you were disabled beginning on or before
June 25, 2015.
Id. Plaintiff does not challenge the findings of the Appeals Council. Nonetheless, this matter is
being remanded, and the record on remand will include Ms. Cooley’s opinion. Therefore, the ALJ

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B.

The ALJ’s Evaluation of Plaintiff’s Symptoms

Plaintiff also claims the ALJ failed to properly evaluate her symptom testimony (i.e., her
credibility) and that the ALJ’s findings related thereto are not supported by substantial evidence.
As set forth, the Court finds a remand is required so that the ALJ may properly assess the opinion
evidence. The ALJ’s treatment of the opinion evidence on remand may impact the analysis of
Plaintiff’s symptoms. Accordingly, the Court finds it unnecessary to address this additional claim
or error. Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003); see also Chrismon v. Colvin,
531 F. App’x 893, 902 (10th Cir. 2013) (declining to address claimant’s credibility challenge
where proper analysis of claimant’s credibility may be affected by proceedings on remand
necessitated by the ALJ’s rejection of medical opinion evidence); Armstrong v. Astrue, 495 F.
App’x 891, 894 (10th Cir. 2012) (remanding because ALJ’s decision “does not weigh the evidence
as required by the applicable legal standards” and finding it unnecessary to reach the plaintiff’s
“additional arguments that the ALJ erred in assessing her credibility and in accepting certain
vocational expert testimony; those issues may be affected by the ALJ’s treatment of the case on
remand”).
VI.

Conclusion
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.

will have the opportunity to consider Ms. Cooley’s opinion, determine whether it is relevant to the
period of disability under review and if so, what weight should be afforded that opinion. The Court
notes that at the time of the hearing before the ALJ, Plaintiff stated that she was being treated by
Ms. Cooley for pain management. AR 49.
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ENTERED this 25th day of August, 2017.

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