Bolton v. Commissioner of Social Security Administration

Filing 19

MEMORANDUM OPINION AND ORDER -- The Court has 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. Based on the forgoing analysis, the Court REVERSES AND REMANDS the Commissioner's decision for further administrative development. Signed by Magistrate Judge Shon T. Erwin on 4/6/18. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ROBERT F. BOLTON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner of the
Social Security Administration,
Defendant.

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Case No. CIV-17-706-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 supplemental security income 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 for further administrative development.
I.

PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff’s

applications for benefits. Following an administrative hearing, an Administrative Law
Judge (ALJ) issued an unfavorable decision. (TR. 15-30). The Appeals Council denied
Plaintiff’s request for review. (TR. 1-5). Thus, the decision of the ALJ became the final

decision of the Commissioner. See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir.
2011).
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.
§ 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since his application date of October 5, 2012. (TR. 17). At step two, the
ALJ determined that Mr. Bolton had the following severe impairments: schizophrenia;
major depressive disorder; anxiety disorder; personality disorder; pain disorder; and
obesity. (TR. 17). 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. 17). At step four, the ALJ concluded that Mr. Bolton
retained the residual functional capacity (RFC) to:
[P]erform less than a full range of light work as defined in 20 CFR
416.967(b) except he can occasionally lift and carry 20 pounds and
frequently lift and carry 10 pounds; stand and/or walk for 6 hours total of
8 hours; and sit for 6 hours total of 8 hours. He can occasionally push/pull
including the operation of hand and foot controls; can occasionally climb
ramps and stairs; never climb ladders, ropes or scaffolding; can frequently
balance; can occasionally stoop, kneel, crouch and crawl. He has no
manipulative, visual, communicative limitations. He must not work around
unprotected heights, around dangerous moving equipment or machinery or
on uneven or unstable working surfaces. He can understand, remember,
comprehend and carry out simple work-related instructions and tasks. He
can work with supervisors and coworkers on a superficial working basis.
He cannot work with the general public. He can adapt to routine changes
in the working environment.
(TR. 19). The ALJ relied on vocational expert (VE) testimony to find that Plaintiff had no
past relevant work. (TR. 28, 70-71). As a result, the ALJ made additional findings at step
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five. There, the ALJ presented several limitations to a vocational expert (VE) to determine
whether there were other jobs in the national economy that Plaintiff could perform with
his RFC. (TR. 72-75). Given the limitations, the VE identified three “light” and three
“sedentary” jobs from the Dictionary of Occupational Titles (DOT) that Plaintiff could
perform. (TR. 72-75). The ALJ adopted the testimony of the VE and concluded that
Plaintiff was not disabled. (TR. 29).
III.

ISSUES PRESENTED
On appeal, Plaintiff alleges the ALJ: (1) failed to explain his rejection of certain

limitations outlined in a consultative physician’s opinion and (2) erred in evaluating
Plaintiff’s subjective statements.
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).

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V.

DR. CHAUDRY’S OPINION
On March 12, 2014, Dr. S.A. Chaudry performed a consultative examination of Mr.

Bolton. (TR. 496-508). As part of that examination, Dr. Chaudry completed a “Medical
Source Statement” (MSS) (TR. 503-508). In the MSS, Dr. Chaudry opined, in part, that
Mr. Bolton could:


Sit for 3 hours at one time, for a total of 4 hours in an 8-hour workday;



Stand for 30 minutes at one time, for a total of 2 hours during an 8-hourworkday; and



Walk for 30 minutes at one time, for a total of 2 hours during an 8-hour
workday;

(TR. 504).
The ALJ recited these opinions in decision and stated: “I afford great weight to the
opinion of [Dr. Chaudry] that is well supported by medically acceptable clinical and
laboratory findings, and is consistent with the record when viewed in its entirety.” (TR.
27). Mr. Bolton contends the ALJ erred in failing to explain why he appeared to have
afforded “great weight” to and adopted a portion of Dr. Chaudry’s MSS, while rejecting
other limitations the physician had opined which conflicted with the RFC and the jobs
identified at step five. (ECF No. 14:4-9).
The RFC determination allows Mr. Bolton to “stand and/or walk for 6 hours total
of 8 hours; and sit for 6 hours total of 8 hours.” (TR. 19). With this RFC, a VE identified
three “light” and three “sedentary” jobs Mr. Bolton could perform. (TR. 72-74). The ALJ
adopted the VE’s opinion and relied on the six jobs at step five. (TR. 29). But each job

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conflicts with Dr. Chaudry’s opinion and the ALJ did not explain why he seemed to have
ignored the portion of Dr. Chaudry’s opinion which conflicted with the jobs.
For example, the “light” jobs would require “standing or walking, off and on, for a
total of approximately 6 hours of an 8-hour workday.” SSR 83-10, 1983 WL 31251, at *6
(1983). But according to Dr. Chaudry, Plaintiff could only stand and/or walk for 30
minutes at a time, for a total of 2 hours during an 8-hour workday (TR. 504). And the
“sedentary” jobs would require the ability to sit for at least 6 hours during an 8-hour
workday. 20 C.F.R. §416.967(a); SSR 96–9p, 1996 WL 374185, at *6 (1996). But
according to Dr. Chaudry, Plaintiff was only capable of sitting for 3 hours at a time, for a
total of 4 hours during an 8-hour workday. (TR. 503). Although the ALJ stated that he
gave “great weight” to Dr. Chaudry’s opinion, he clearly did not adopt the limitations
related to Plaintiff’s ability to sit, stand, or walk.
The ALJ neither: (1) acknowledged the obvious inconsistency between Dr.
Chaudry’s limitations related to Plaintiff’s ability to sit, stand, and walk and the RFC and
jobs the ALJ relied on at step five, nor (2) explained why he apparently rejected a portion
of Dr. Chaudry’s opinions. These failures constitute legal error for two reasons. First, the
ALJ’s treatment of Dr. Chaudry’s opinion constitutes an impermissible selective review of
the evidence. See Chapo v. Astrue, 682 F.3d 1285, 1292 (10th Cir. 2012) (noting that the
ALJ may not selectively review a medical opinion, “taking only the parts that are favorable
to a finding of nondisability.”) Second, although the ALJ may have had a reason for
rejecting Dr. Chaudry’s opinion, he failed to explain his reasoning in the decision. See

Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (noting that the ALJ’s reasons

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stated in evaluating medical opinions must allow for meaningful appellate review). The
errors are not harmless because they directly impact the ALJ’s step five findings, as
discussed. See supra.
VI.

THE ALJ’S EVALUATION OF PLAINTIFF’S SUBJECTIVE STATEMENTS
Plaintiff alleges that the ALJ erred in evaluating Plaintiff’s subjective symptoms

under the regulatory framework of SSR 16-3p, 2016 WL 1119029 (Mar. 28, 2016) and

Luna v. Bowen, 834 F.2d. 161 (10th Cir. 1987). (ECF No. 14:9-14). According to Mr.
Bolton, the ALJ: (1) offered only boilerplate language in support of his findings, (2) failed
to determine whether a “loose nexus” existed between Plaintiff’s severe mental
impairments and his subjective allegations of limitations relating to those impairments,
and (3) mischaracterized and improperly relied only on Plaintiff’s daily activities in
assessing the consistency of his allegations with the evidence, to the exclusion of the
other factors contained in 20 C.F.R. § 416.929(C)(3). (ECF No. 14:9-14).
Mr. Bolton has identified the correct standards an ALJ should employ when
evaluating a claimant’s subjective allegations.1 SSR 16-3p directs the ALJ to consider an
individual’s statements about the intensity, persistence, and limiting effects of symptoms.
SSR 16-3p, at *4. SSR 16-3p also directs the ALJ to apply the same seven regulatory
factors in evaluating the intensity, persistence, and limiting effects of the claimant's

SSR 16-3p became effective March 28, 2016, and was therefore, controlling at the time of the
ALJ’s decision on April 22, 2016. SSR 16-3p superseded SSR 96-7p, 1996 WL 374186 (July 2,
1996). See SSR 16-3p, 2017 WL 5180304, at *1. The new ruling “eliminat[es] the use of the term
‘credibility’ [and] clarif[ies] that subjective symptom evaluation is not an examination of a
[claimant]’s character.” Id. at *2.
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symptoms. Id., at *7.2 Finally, SSR 16-3p directs the ALJ to determine the consistency of
the individual's statements as compared to other evidence in the record. Id., at *4-10.
On remand and following a reconsideration of Dr. Chaudry’s opinion, the ALJ will
need to readdress Mr. Bolton’s credibility utilizing the framework as set forth above. At
this time, the Court need not address Mr. Bolton’s challenges to the ALJ’s evaluation of
Plaintiff’s subjective statements. See Tracy v. Astrue, 518 F. Supp. 2d 1291, 1295 (D.
Kan. 2007) (declining consideration of Plaintiff’s challenges involving the ALJ’s credibility
analysis in light of the court’s remand for a reexamination of the medical evidence).
ORDER
The Court has 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.
Based on the forgoing analysis, the Court REVERSES AND REMANDS the
Commissioner’s decision for further administrative development.
ENTERED on April 6, 2018.

See 20 C.F.R. § 416.929(c)(3)(i)-(vii); SSR 16-3p, 2016 WL 1119029, at *7; Brownrigg v.
Berryhill, 688 F. App’x 542, 545-46 (10th Cir. 2017) (noting that the factors to consider in the
Luna analysis are “similar” to those listed in Social Security Ruling 16-3p).
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