Driehorst v. Commissioner of Social Security Administration

Filing 23

OPINION AND ORDER. The decision of the Commissioner is REVERSED and REMANDED in accordance with sentence four of 42 U.S.C. § 405(g). Signed by Honorable Charles Goodwin on 09/23/2019. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DANIEL JAMES DRIEHORST,

)
)
Plaintiff,
)
)
v.
)
Case No. CIV-18-433-G
)
ANDREW SAUL,
)
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Commissioner of Social Security,
)
)
Defendant.
)
OPINION AND ORDER
Plaintiff Daniel James Driehorst 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 (“SSA”) denying Plaintiff’s application for disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Having reviewed the
administrative record (Doc. No. 13, hereinafter “R. _”),2 and the arguments and authorities
submitted by the parties, the Court reverses the Commissioner’s decision and remands the
matter for further proceedings.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed his DIB application on March 24, 2015, alleging a
disability-onset date of April 10, 2010. R. 12, 191-97. After his request was denied
initially and on reconsideration, R. 12, 97-123, 128-32, a hearing was held before an

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The current Commissioner is hereby substituted as Defendant pursuant to Federal Rule
of Civil Procedure 25(d).
With the exception of the administrative record, references to the parties’ filings use the
page numbers assigned by the Court’s electronic filing system.
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administrative law judge (“ALJ”). R. 30-96. The ALJ issued an unfavorable decision on
May 16, 2017. R. 12-24.
The ALJ followed the five-step sequential evaluation process in determining
Plaintiff was not entitled to disability benefits. See Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009); 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity from July 23, 2011 (the day after denial of a previous
DIB application filed by Plaintiff) through December 31, 2015 (the date Plaintiff’s insured
status expired). R. 14; see Hodges v. Colvin, 568 F. App’x 639, 640 n.1 (10th Cir. 2014)
(noting that “the relevant period for assessing disability” commenced “the day after the
adjudication on the prior application” and ended on the date the claimant “was last insured
for disability purposes”). At step two, the ALJ determined that Plaintiff had the severe
impairments of: degenerative disc disease and degenerative joint disease of the shoulders,
knees, and right hip; and status-post right-hip replacement and left-knee meniscus repair.
R. 14-17.
At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of any of the
presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
R. 17-18.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) during the
relevant period, based on all of his medically determinable impairments, and found that
during the relevant disability period:

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[Plaintiff] had the [RFC] to perform light exertion work as defined in 20
CFR 404.1567(b), except with his left upper extremity [Plaintiff] could
occasionally reach overhead; with his left upper extremity [Plaintiff] could
perform unlimited reaching in all other directions (except overhead); with his
right upper extremity, [Plaintiff] could perform unlimited reaching in all
directions (including overhead reaching); [Plaintiff] had no other physical
limitations or restrictions; [Plaintiff] had no mental limitations or restrictions.
R. 18-23.
At step four, the ALJ considered the hearing testimony of a vocational expert and
found that Plaintiff could perform his past relevant work as a furniture salesperson and as
a household-appliances salesperson, as those jobs are generally performed in the national
economy. R. 23-24. Thus, the ALJ determined that Plaintiff had not been disabled within
the meaning of the Social Security Act during the relevant period. R. 24. The SSA Appeals
Council denied review, R. 1-5, and the ALJ’s unfavorable determination stands as the
Commissioner’s final decision. See 20 C.F.R. § 404.981.
STANDARD OF REVIEW
This Court’s judicial review of the Commissioner’s final decision is limited to
determining whether factual findings are supported by substantial evidence in the record
as a whole and whether correct legal standards were applied. 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) (internal quotation marks 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) (internal quotation marks omitted).

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The court “meticulously

examine[s] the record as a whole,” including any evidence “that may undercut or detract
from the ALJ’s findings,” in determining whether the ALJ’s decision is supported by
substantial evidence. Wall, 561 F.3d at 1052 (internal quotation marks omitted). Though
a reviewing court considers whether the Commissioner followed 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).
ANALYSIS
A. The ALJ’s Evaluation of Plaintiff’s Mental Impairments
Plaintiff objects that the ALJ’s failure to impose any mental limitations in the RFC,
as well as the resulting finding that Plaintiff was able to return to his past relevant work in
semiskilled or skilled positions, was predicated upon an overly selective review of the
evidence in the record. See Pl.’s Br. (Doc. No. 18) at 7-13.3 The Court agrees.
As noted, the ALJ assessed an RFC with “no mental limitations or restrictions.” R.
18. In reaching his conclusion as to Plaintiff’s RFC, the ALJ addressed Plaintiff’s hearing

As part of his determination at step two that Plaintiff’s anxiety and depression were
nonsevere—i.e., that they “did not cause more than minimal limitation” in Plaintiff’s ability
to perform basic work activities, R. 15—the ALJ found that Plaintiff had only mild
limitations in four functional areas. R. 15-17; see 20 C.F.R. § 404.1520a(d)(1). Although
Plaintiff’s Brief refers to the ALJ’s errors’ effect on the step-two determination, it does not
present a developed challenge to that determination, and the Court “will not speculate on
[his] behalf.” Threet v. Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003); see Pl.’s Br. at
12. In any event, a failure to find these impairments severe at step two typically would not
warrant reversal where, as here, the ALJ found at least one other impairment is severe and
proceeded to the next step of the sequential evaluation. See Allman v. Colvin, 813 F.3d
1326, 1330 (10th Cir. 2016).
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testimony, as well as certain of Plaintiff’s mental-health treatment records for the period
from July 23, 2011, through December 31, 2015. R. 19, 20-21 (citing R. 615-42 (Ex. 14F
(treatment records from March 2015)); R. 643-54 (Ex. 15F (treatment records from
January-April 2015)); R. 687-746 (Ex. 19F (treatment records from January-August
2015))). The ALJ also discussed and weighed the opinions of several state-agency
psychologists who reviewed the evidence of record and issued Psychiatric Review
Technique (“PRT”) forms and other findings to the effect that Plaintiff’s mental
impairments were nonsevere in nature. R. 21 (citing R. 103-04 (Ex. 2A (PRT of June 18,
2015)); R. 118-19 (Ex. 4A (PRT of Aug. 20, 2015)); R. 116-17 (Ex. 4A (case analysis of
Oct. 16, 2015))); see also R. 15-17, 23.
But the record contains important items of evidence from other mental-health
professionals. For example, on July 7, 2011, state-agency reviewing psychologist Ruth
Ann Mertens, PhD, issued both a PRT (Ex. 2F (R. 348-61) and a Mental RFC Assessment
(Ex. 8F (R. 466-69)). Included among her opinions were findings that Plaintiff had
moderate limitations regarding: maintaining social functioning; maintaining concentration,
persistence, or pace; understanding, remembering, and carrying out detailed instructions;
and interacting appropriately with the general public. R. 358, 466-67. Dr. Mertens also
found that while Plaintiff “can adapt to a work situation,” he can perform only “simple and
some complex tasks” and can relate to others only “on a superficial work basis.” R. 468.
And on June 15, 2011, J. Ronald Cruse, PhD, examined Plaintiff in person and issued a
Mental Status Exam (Ex. 7F (R. 460-63)). Among Dr Cruse’s findings are that Plaintiff’s:

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• Behavior was observed to be somewhat tense.
• Cognitive problems include impairment in recall and concentration.
• Occupational functioning has been severely impaired for 1 year.
• Interpersonal functioning has been moderately impaired.
• Personal functioning, as reflected in activities of daily living, is limited to a
moderate degree.
R. 460-63.
The written decision nowhere mentions or weighs any of these 2011 opinions or
findings. “There is obviously no requirement that the ALJ reference everything in the
administrative record.” Wilson v. Astrue, 602 F.3d 1136, 1148 (10th Cir. 2010). Because
these opinions are “significantly probative,” however, the ALJ erred in ignoring them
without offering any explanation. Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996)
(prescribing that an ALJ “must discuss the uncontroverted evidence he chooses not to rely
upon, as well as significantly probative evidence he rejects”).
The ALJ’s repeated references to “July 23, 2011” (the day following the denial of
Plaintiff’s prior DIB application), together with a lack of discussion of Plaintiff’s alleged
onset date of April 10, 2010, indicate that he possibly believed evidence preceding the first
denial date was not properly before him or irrelevant to the current DIB application. See
R. 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24. Defendant endorses this view, arguing that
the ALJ did not err because this evidence was “already considered by the Commissioner”
in connection with Plaintiff’s prior claim. Def.’s Br. (Doc. No. 22) at 7, 12 (emphasis
omitted). The Court rejects Defendant’s argument, which is inconsistent with Tenth
Circuit authority. While the relevant period for assessing disability on the current

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application may have begun on July 23, 2011, “a doctor’s medical observations regarding
a claimant’s allegations of disability” that “date from earlier, previously adjudicated
periods” “are nevertheless relevant to the claimant’s medical history and should be
considered by the ALJ.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004); cf. 20
C.F.R. § 404.1520(a)(3) (“We will consider all evidence in your case record when we make
a . . . decision whether you are disabled.”). Relatedly, an ALJ may not “pick and choose
among medical reports, using portions of evidence favorable to his position while ignoring
other evidence.” Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004).
The ALJ’s implied rejection of Dr. Mertens’ opinions fails to account for the
discrepancies between those opinions and those of the later reviewing psychologists. See
SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996) (“The adjudicator must also explain
how any material inconsistencies or ambiguities in the evidence in the case record were
considered and resolved.”).

And the ALJ’s failure to discuss Dr. Cruse’s opinion

essentially ignores that psychologist’s firsthand observations in favor of findings made by
others who reviewed the record but did not interact with Plaintiff personally. Absent
adequate explanation, such treatment is not permissible under 20 C.F.R. § 404.1527(c)(1)
(“Generally, we give more weight to the medical opinion of a source who has examined
you than to the medical opinion of a medical source who has not examined you.”).
Moreover, the Court’s inability to discern the ALJ’s reasoning in this respect renders
the Court unable to find that he “considered all of the evidence” or “applied the correct
legal standards” to arrive at the RFC determination and the conclusion that Plaintiff could
return to his prior sales jobs. Clifton, 79 F.3d at 1009; see also Washington v. Shalala, 37
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F.3d 1437, 1439 (10th Cir. 1994) (“Failure to apply the correct legal standard or to provide
this court with a sufficient basis to determine that appropriate legal principles have been
followed is grounds for reversal.” (internal quotation marks omitted)). Compare R. 46667 (Dr. Mertens finding that Plaintiff was moderately limited in understanding,
remembering, and carrying out detailed instructions and in interacting appropriately with
the general public), with Dictionary of Occupational Titles (“DOT”) 270.357-030, 1991
WL 672448 (4th rev. ed. 1991) (“Salesperson, Furniture”) (requiring “[s]ignificant”
“[p]ersuading” of people and “[s]peak[ing] before an audience with poise, voice control,
and confidence”), and DOT 270.357-034, 1991 WL 672449 (“Salesperson, Household
Appliances”) (requiring “[i]nterpret[ation] [of] a variety of instructions” furnished in
various forms and the ability to “[s]peak extemporaneously on a variety of subjects”).
B. The ALJ’s Evaluation of Plaintiff’s Physical Impairments
Plaintiff similarly contends that the ALJ erred in determining Plaintiff’s RFC “by
failing to discuss uncontroverted and/or significantly probative medical evidence,”
including evidence generated prior to July 23, 2011, that would be consistent with greater
physical limitations than those imposed by the ALJ. Pl.’s Br. at 7-10. The Court does not
reach this point of error because it “may be affected by the ALJ’s treatment of this case on
remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
CONCLUSION
Based on the foregoing analysis, the decision of the Commissioner is REVERSED
and REMANDED in accordance with sentence four of 42 U.S.C. § 405(g). Judgment will
issue accordingly.
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IT IS SO ORDERED this 23rd day of September, 2019.

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