Gorelick v. Commissioner of Social Security Administration
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. Signed by Magistrate Judge Shon T. Erwin on 3/13/18. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KATLYN NICOLE GORELICK,
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Case No. CIV-17-720-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
application 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.
Ms. Gorelick received supplemental security income based on her disability as a
child. (TR. 20). Following Plaintiff’s eighteenth birthday, the Social Security Administration
determined that Ms. Gorelick was no longer disabled based on a redetermination of
disability. (TR. 23). Following an administrative hearing, an Administrative Law Judge
(ALJ) issued an unfavorable decision on the redetermination. (TR. 20-30). 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.
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. The ALJ bypassed step one, as it is not used for re-determining disability when
a claimant attains age eighteen. (TR. 21); 20 C.F.R. §416.987(b). At step two, the ALJ
determined Ms. Gorelick had severe impairments involving cerebral palsy and mild
scoliosis. (TR. 23). 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 concluded that although Ms. Gorelick had no past relevant
work, she retained the residual functional capacity (RFC) to:
[P]erform sedentary work as defined in 20 CFR 416.967(a) she can lift,
carry, push and pull 20 pounds occasionally and 10 pounds frequently. She
can stand and/or walk for a total of 2 hours in an 8-hour workday. She can
never climb ladders, ropes, or scaffolds. She can never balance. She can
frequently climb stairs. She must avoid unprotected heights.
(TR. 23, 28). At step five, 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 her RFC. (TR. 70-75). Given the limitations, the VE identified three
jobs from the Dictionary of Occupational Titles (DOT). (TR. 75-76). The ALJ adopted the
testimony of the VE and concluded that Ms. Gorelick was not disabled based on her ability
to perform the identified jobs. (TR. 29).
On appeal, Plaintiff alleges errors at steps three and four, as well as in the ALJ’s
evaluation of Ms. Gorelick’s testimony.
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).
Ms. Gorelick alleges that the ALJ erred at step three in considering whether she
met Listings 11.04(B) and/or 11.07(D). (ECF Nos. 15:9-10, 21:7-9). According to Plaintiff,
the ALJ’s step three findings were not supported by substantial evidence in light of an
opinion from examining neurologist, Dr. Yasmeen Ahmed. The Court agrees and also
rejects the Commissioner’s argument that any error at step three was harmless.
Criteria at Step Three
At step three, the ALJ must determine whether the claimant’s impairment is
“equivalent to one of a number of listed impairments that the Secretary acknowledged
as so severe as to preclude substantial gainful activity.” Clifton v. Chater, 79 F.3d 1007,
1009 (10th Cir. 1996). If this standard is met, the claimant is considered per se disabled.
Knipe v. Heckler, 755 F.2d 141, 146 (10th Cir. 1985). The question of whether a claimant
meets or equals a listed impairment is strictly a medical determination. Ellison v. Sullivan,
929 F.2d 534, 536 (10th Cir. 1990); 20 C.F.R. §§ 416.925(c)(3)-(4); 416.926(b). The
claimant has the burden at step three of demonstrating, through medical evidence, that
her impairments “meet all of the specified medical criteria” contained in a particular
listing. Sullivan v. Zebley, 493 U.S. at 530 (emphasis in original). “An impairment that
manifests only some of those criteria, no matter how severely, does not qualify.” Id.
Once the claimant has produced such evidence, the burden is on the ALJ to identify
and discuss any relevant listings. Fisher-Ross, 431 F.3d 729, 733 n. 3. In doing so, the
ALJ must weigh the evidence and make specific findings to support the step three
determination. Clifton, 79 F.3d at 1009. However, a step three error does not
automatically require remand if “confirmed or unchallenged findings made elsewhere in
the ALJ's decision” confirm the step three determination under review.” Fischer–Ross,
431 F.3d at 734. (10th Cir. 2005). If such findings “conclusively preclude Claimant's
qualification under the listings at step three” such that “no reasonable factfinder could
conclude otherwise,” then any step three error is harmless. Id. at 735. If, however, there
are no findings that “conclusively negate the possibility” that a claimant can meet a
relevant listing, remand is warranted. Murdock v. Astrue, 458 F. App’x 702, 704 (10th Cir.
Dr. Ahmed’s Opinion
On February 12, 2016, Dr. Ahmed examined Plaintiff and stated that she had
“spastic hemiplegic cerebral palsy” “with left hemiparesis affecting balance [,]
coordination [,] and fine motor tasks.” (TR. 495-496). A motor strength exam revealed
decreased strength on Plaintiff’s left side, both upper and lower extremities, and a reflex
exam revealed decreased reflexes in Plaintiff’s left ankle. (TR. 495, 497). Dr. Ahmed also
found that Plaintiff had a mildly abnormal ataxic tandem gait. (TR. 495, 497). As a result,
the neurologist stated:
[Plaintiff] qualifies under [Listing] 11.04-B, a significant and persistent
disorganization of motor function in two extremities, resulting in a sustained
disturbance of gross and dexterous movements, or gait and station. . . .
She also qualifies under 11.07D, Cerebral palsy with disorganization of
motor function as described in 11.04B. Her left side extremities do not
function like the right.
Listings 11.07 and 11.04
Listing 11.07 states that an individual is presumptively disabled if she has cerebral
palsy with “[d]isorganization of motor function as described in 11.04(B).” 20 C.F.R. Part
404, Subpart P, Appendix 1, § 11.07(D). Listing 11.04(B), in turn, requires “[s]ignificant
and persistent disorganization of motor function in two extremities, resulting in sustained
disturbance of gross or dexterous movements, or gait and station” as described in Listing
11.00(C). 20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.04(B). Listing 11.00(C), in turn,
requires “[p]ersistent disorganization of motor function in the form of paresis or paralysis,
tremor, or other involuntary movements, ataxia, and sensory disturbances . . .which occur
singly or in various combinations[.] . . .The assessment of the impairment depends upon
the degree of interference with locomotion and/or interference with the use of fingers,
hands, and arms.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.00(C).
The ALJ’s Discussion of the Relevant Listings
At step three, the ALJ stated that she had considered Listings 1.00 and
[T]here [were] no findings based on diagnostic, clinical, and/or objective
evaluations, including reports of laboratory tests and diagnostic imaging,
consistent with the level of severity that meets the criteria under the
Listings. As well, no examining or treating physician or medical provider
reported findings since the alleged onset date that meet the criteria under
the Listings. Further, the impartial medical expert, Dr. Devere, also opined
that claimant’s impairments did not meet any criteria of 11.07, including
(TR. 23). Dr. Ronald Devere was a non-examining medical expert who had reviewed Ms.
Gorelick’s medical records, including Dr. Ahmad’s opinion, after the hearing. Although Dr.
Devere stated that Plaintiff did not meet Listing 11.07, the neurologist did state that
Plaintiff has had cerebral palsy since birth involving her upper and lower left limbs, and
that she has a “mild balance problem,” and that the symptoms were likely to continue
indefinitely. (TR. 525).
Although the ALJ did not expressly discuss Dr. Ahmed’s opinion at step three, the
ALJ did so later, when discussing Plaintiff’s RFC. (TR. 27). In doing so, the ALJ recognized
that Dr. Ahmed had stated that Ms. Gorelick met Listings 11.04(B) and 11.07(D), but the
ALJ afforded the opinion “[l]ittle weight . . . for purposes of both determining whether
the claimant meets or equals any listing as well as in determining [Plaintiff’s] residual
functional capacity.” (TR. 27). The ALJ discounted Dr. Ahmad’s opinion because she: (1)
had only examined Ms. Gorelick once, (2) “did not have a longitudinal picture of [Ms.
Gorelick’s] medical condition,” and (3) “fail[ed] to indicate how [Plaintiff] meets the
criteria of either 11.04 (B) or 11.07 (D).” (TR. 27).
The ALJ’s first rationale is legitimate,1 but the second and third rationales are not.
Regarding the second rationale, the Court cannot find that it was legitimate because the
record is silent on whether Dr. Ahmad had reviewed Plaintiff’s medical history. Regarding
the third rationale, the Court finds that the neurologist adequately explained the basis for
her opinion regarding the presence of the criteria required under Listings 11.04(B) and
First, Both Listings require: “[s]ignificant and persistent disorganization of motor
function in two extremities.” 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 11.04(B) and
11.07(D). Dr. Ahmad clearly stated that Ms. Gorelick satisfied this criteria through
decreased motor strength and reflexes in her upper and lower left-side extremities. (TR.
497). Next, the Listings require that the “disorganization of motor function in two
See 20 C.F.R. §416.927(c)(2)(i).
extremities” result in a “sustained disturbance of gross or dexterous movements, or gait
and station” as described in Listing 11.00(C). 20 C.F.R. Part 404, Subpart P, Appendix 1,
§ 11.04(B). Listing 11.00(C) requires findings of “[p]ersistent disorganization of motor
function in the form of paresis or paralysis, tremor, or other involuntary movements,
ataxia, and sensory disturbances . . . which occur singly or in various combinations[.]” 20
C.F.R. Part 404, Subpart P, Appendix 1, § 11.00(C). The Court finds that Dr. Ahmad’s
opinion supports the criteria in § 11.00(C), and in turn both main listings, because the
neurologist noted that Ms. Gorelick had left-sided hemiparesis which affected Plaintiff’s
balance, coordination, and fine motor tasks and resulted in a mildly abnormal ataxic
tandem gait. (TR. 495).
Finally, the Listings state that the ultimate assessment of either Listing “depends
upon the degree of interference with locomotion and/or interference with the use of
fingers, hands, and arms.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.00(C). The
Listing does not require a specific finding regarding the “degree of interference,” but Dr.
Ahmad apparently believed that Plaintiff’s impairment met the requisite “degree” required
based on her findings: (1) that the paresis affected Plaintiff’s balance, coordination, and
fine motor skills and (2) that Ms. Gorelick had met both Listings. The ALJ also stated that
Dr. Ahmad’s description of Ms. Gorelick’s gait was “ambiguous,” but the Court disagreesDr. Ahmad clearly stated that Plaintiff’s tandem gait was mildly abnormally ataxic and
that she struggled with balance. (TR. 495, 497). At this stage, and based on medical
evidence alone,2 the Court concludes that Dr. Ahmad’s opinion provides a sufficient basis
for finding that Plaintiff had satisfied the criteria of both Listings 11.04(B) and 11.07(D).
See Ferency v. Astrue, No. 10-CV-711 FJS/VEB, 2012 WL 2885426, at *5 (N.D.N.Y. Apr.
30, 2012), report and recommendation adopted sub nom. Ferency v. Comm'r of Soc.
Sec., No. 7:10-CV-711 FJS/VEB, 2012 WL 2885492 (N.D.N.Y. July 13, 2012) (remand for
error at step three in connection with Listing 11.04 when physician’s opinion noted that
plaintiff suffered from “weakness and loss of coordination and fine motor skills on the left
Because Dr. Ahmad’s medical opinion provides sufficient evidence which
undermines the ALJ’s step three finding that Plaintiff had met either Listing 11.04(B) or
11.07(D), the issue then becomes whether the step three error was harmless. See supra.
As stated, a step three error does not automatically require remand if “confirmed or
unchallenged findings made elsewhere in the ALJ’s decision” confirm the step three
determination under review.” Fischer–Ross, 431 F.3d at 734. (10th Cir. 2005). If such
findings “conclusively preclude Claimant’s qualification under the listings at step three”
such that “no reasonable factfinder could conclude otherwise,” then any step three error
is harmless. Id. at 735. If, however, there are no findings that “conclusively negate the
Findings at step three must be made purely on the medical evidence. See Larson v. Chater,
103 F.3d 144 (10th Cir. 1996).
possibility” that a claimant can meet a relevant listing, remand is warranted. Murdock v.
Astrue, 458 F. App’x 702, 704 (10th Cir. 2012).
The Commissioner essentially argues that any error at step three should be
considered harmless, in light of the ALJ’s findings at step four, which is where the ALJ
actually considered Dr. Ahmad’s opinion. See ECF No. 16:10 (“It is of no moment that
the ALJ engaged in [analyzing Dr. Ahmad’s opinion] her RFC finding rather than her step
three finding.”). At this step, the ALJ considered Plaintiff’s testimony to conclude that she
failed to meet the requisite “degree of interference with locomotion and/or interference
with the use of the fingers, hands, or arms” as contemplated by Listing 11.00(C). In this
regard, the ALJ noted Plaintiff’s testimony that she:
“continued to handwrite her school notes and complete her school work
without significant difficulty, as she indicated she provides only occasional
assistance to her professors in this regard,”
“is able to drive as needed,” and
can grasp a cup.
(TR. 27). But at the hearing, Plaintiff actually testified that she has a tremor in her hands
which she described as occurring “quite frequently,” and which renders her handwriting
illegible3—a fact to which the ALJ himself attested. See TR. 54 (“And when you told me
that, [regarding Plaintiff’s illegible handwriting] I looked quickly to see how your signature
looked on the forms that we had you sign, and truly they’re not legible.”). Ms. Gorelick
stated that “several times” she had to interpret her handwriting to her professors who
(TR. 49-51, 54, 58).
could not read it. (TR. 54). Plaintiff confirmed that she drove, but only to school and back
two days a week,4 and contrary to the ALJ’s statement, Ms. Gorelick testified that she
had difficulty grasping a cup. (TR. 55).
Based on Ms. Gorelick’s testimony, the Court concludes that the ALJ’s rationale for
concluding that Plaintiff did not have the requisite “degree of impairment” under Listing
11.00(C) was not supported by substantial evidence. As a result, the Court cannot state
that the ALJ’s findings at step four “conclusively preclude Claimant’s qualification under
the listings at step three” such that “no reasonable factfinder could conclude otherwise.”
Fischer–Ross, 431 F.3d at 734. (10th Cir. 2005).
The error is especially critical because Dr. Ahmad’s opinion regarding Plaintiff’s
difficulty with fine motor skills could impact the jobs relied on at step five, all of which
require “frequent” handling and fingering. See TR. 29; DOT #237.367-046 (telephone
quotation clerk); 209.567-014 (food and beverage order clerk); 249.587-018 (document
PLAINTIFF’S REMAINING ALLEGATIONS OF ERROR
Ms. Gorelick also argues: (1) a lack of substantial evidence to support the RFC and
(2) error in the credibility analysis. (ECF Nos. 15:5-12, 21:1-5, 7-10). But the Court need
The Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational
Titles states that “frequently” involves an activity existing from 1/3 to 2/3 of the time, (U.S. Dept.
of Labor 1993) at C–3.
not address these allegations in light of the recommended remand at step three. See
Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the
remaining issues raised by appellant because they may be affected by the ALJ's treatment
of this case on remand.”).
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
ENTERED on March 13, 2018.
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