Scott v. Commissioner of Social Security Administration

Filing 15

OPINION AND ORDER. The decision of the Commissioner is reversed and the case remanded for further proceedings pursuant to the fourth sentence 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
CHERYL SCOTT,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of Social Security,1
Defendant.

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Case No. CIV-18-493-G

OPINION AND ORDER
Plaintiff Cheryl Scott 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 applications for disability insurance benefits (“DIB”) under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434.

Upon review of the

administrative record (Doc. No. 10, hereinafter “R. _”),2 and the arguments and authorities
submitted by the parties, the Court reverses the Commissioner’s decision and remands for
further proceedings.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed her DIB application on June 26, 2015, alleging disability
beginning December 18, 2014. R. 48, 185-86. The SSA denied her application initially

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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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and on reconsideration. R. 84-109. At Plaintiff’s request, an administrative law judge
(“ALJ”) held a hearing on December 21, 2016, after which the ALJ issued an unfavorable
decision on June 1, 2017. R. 45-64, 68-81.
The Commissioner uses a five-step sequential evaluation process to determine
entitlement 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 since December 18, 2014, the alleged disability-onset date. R.
50.

At step two, the ALJ determined that Plaintiff had the severe impairments of

fibromyalgia, obesity, and diabetes mellitus onset September 2014. R. 50-54. The ALJ
also found that Plaintiff’s mental impairments of anxiety and depression were nonsevere
in nature. R. 54-56. At step three, the ALJ found that Plaintiff’s condition did not meet or
equal any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1. R. 57.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all
her medically determinable impairments. R. 58-59. The ALJ found:
[Plaintiff] has the [RFC] to perform light work as defined in 20 CFR
404.1567(b) except with nonexertional limitations. [Plaintiff] can: lift/carry
20 pounds occasionally and 10 pounds frequently; walk/stand up to 6 of 8
hours with normal breaks; and sit for up to 6 of 8 hours. [Plaintiff] can never
climb ladders, ropes or scaffolds and can only occasionally climb
ramps/stairs. She can occasionally balance, stoop, kneel, crouch, and crawl.
She can do no more than frequent handling bilaterally.
R. 58.
At step four, the ALJ considered the hearing testimony of a vocational expert
(“VE”) and found that Plaintiff was able to perform her past relevant work as a vocational
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instructor. R. 60. The ALJ therefore determined that Plaintiff had not been disabled within
the meaning of the Social Security Act during the relevant time period. R. 60; see 20 C.F.R.
§§ 404.1520(a)(4)(iv), (f), .1560(b)(3). Plaintiff’s request for review by the SSA Appeals
Council was denied, and the unfavorable determination of the ALJ stands as the
Commissioner’s final decision. R. 1-6; see 20 C.F.R. § 404.981.
STANDARD OF REVIEW
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). The court “meticulously examine[s] the record as a
whole,” including any evidence “that may undercut or detract from the ALJ’s findings,”
“to determine if the substantiality test has been met.” Wall, 561 F.3d at 1052 (internal
quotation marks omitted). While 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).

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ANALYSIS
In this action, Plaintiff complains that the ALJ failed to properly evaluate a medical
opinion regarding Plaintiff’s mental limitations and that this failure resulted in an RFC
determination and a step-four finding that are not supported by substantial evidence. See
Pl.’s Br. (Doc. No. 13) at 3-9. The Court agrees.
A. The Relevant Record
In August 2015, Plaintiff complained to her physician of stress, along with her
ongoing physical complaints related to fibromyalgia and diabetes mellitus, and was
prescribed an antidepressant medication. R. 335-37.
On October 15, 2015, Plaintiff was examined by Stephanie Crall, PhD. Dr. Crall
then issued a consultative examination report (“CE Report”). R. 495-98 (Ex. 6F). In this
report, Dr. Crall noted multiple normal findings but also diagnosed Plaintiff with Major
Depressive Disorder, Moderate, and Generalized Anxiety Disorder. R. 495-97. Dr. Crall
stated:
In the opinion of this evaluator, [Plaintiff’s] ability to engage in work-related
mental activities, such as sustaining attention, understanding, and remember
and to persist at such activities was likely adequate for simple and some
complex tasks. In the opinion of this evaluator, depression and anxiety likely
interfered with her ability to adapt to a competitive work environment,
however.
R. 497.
In late 2015 and 2016, Plaintiff’s depression was noted—though not consistently—
by her treating physician, and she was prescribed an antianxiety medication. R. 524-26,
532, 537, 539, 541, 599, 601-02, 604, 605.

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The state-agency psychologists who reviewed the medical evidence both discussed
Dr. Crall’s CE Report, specifically noting Dr. Crall’s opinion that Plaintiff’s ability to
engage in and sustain work-like mental activities was “likely adequate for simple and some
complex tasks” and that Plaintiff’s “depression and anxiety likely interfered with her ability
to adapt to a competitive work environment.” R. 497; see R. 90 (Jason Gunter, PhD), 103
(Joy Kelley, PhD). Both reviewing psychologists additionally stated:
[The medical evidence of record] establishes [medically determinable
impairments] that produce no more than mild functional limitations.
[Plaintiff] does not allege a mental condition but [the medical evidence of
record] shows that she has carried these diagnoses for approximately the past
year, with her recently initiating medication for them. Her history suggest[s]
the symptoms are exacerbated by situational stress but do not provide
continual functional impairment. The mental CE makes a vague statement
about the potential of some limitations but the whole of the evidence
support[s] her depression and anxiety being nonsevere.
R. 90, 103.
B. The Written Decision
In her written decision, the ALJ summarized Dr. Crall’s CE Report in the course of
determining Plaintiff’s medically determinable impairments at step two. R. 54-55. In
finding that Plaintiff’s mental impairments were nonsevere, the ALJ cited certain findings
of the CE Report but did not assign specific weight to any of Dr. Crall’s opinions. R, 5556. The ALJ also stated that she gave “great weight” to the opinions of the state-agency
reviewing psychologists, Dr. Gunter and Dr. Kelley. R. 56.
In the RFC determination, the ALJ did not discuss Plaintiff’s mental impairments
or any evidence related thereto, other than noting Plaintiff’s testimony that her depression
was one reason she was unable to return to work. R. 58. The ALJ’s RFC determination
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did not impose any mental limitations upon Plaintiff, and the step-four finding was that
Plaintiff could perform the “skilled” work of a vocational instructor. R. 60.
C. Discussion
Plaintiff alleges that in failing to address Dr. Crall’s medical opinion in determining
the RFC, the ALJ failed to comply with Social Security Ruling 96-8p, which requires that
“if the RFC assessment conflicts with an opinion from a medical source, the adjudicator
must explain why the opinion was not adopted.” SSR 96-8p, 1996 WL 374184, at *7 (July
2, 1996). Dr. Crall issued a medical-source opinion that Plaintiff’s mental impairments
would interfere with her ability to work and that she was suited for “simple and some
complex tasks.” R. 497. Because this opinion is in conflict with the RFC, Ruling 96-8p
required the ALJ to explain why it was not adopted.
As noted, the ALJ did not assign a weight to Dr. Crall’s opinions and, in assessing
Plaintiff’s RFC, did not discuss the limitations caused by any severe or nonsevere mental
health impairment. Defendant still argues that the ALJ’s discussion of Dr. Crall’s opinions
at step two was adequate, citing the state-agency psychologists’ criticism of Dr. Crall’s
opinions as “vague” and alleging that the reasoning for the ALJ’s omission of any mental
limitations from the RFC is “reasonably discernable” from the remainder of the written
decision. See Def.’s Br. (Doc. No. 14) at 8-9.
This argument is not persuasive. The ALJ assigned great weight to Dr. Gunter’s
and Dr. Kelley’s opinion in the context of finding that Plaintiff’s mental impairments were
not severe, R. 56, but did not discuss them at all in finding that those impairments supported
no related functional limitations. And the Court is not permitted to “discern[]” the rationale
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of an ALJ’s decision or to supply reasoning where none exists. See Grogan v. Barnhart,
399 F.3d 1257, 1263 (10th Cir. 2005); see also Clifton v. Chater, 79 F.3d 1007, 1010 (10th
Cir. 1996) (noting that the ALJ must discuss “significantly probative evidence he rejects”);
Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (noting that an examining-source
opinion is presumed to be entitled to more weight than a reviewing-source opinion and that
an ALJ must provide “specific, legitimate reasons” for rejecting the former).
In assessing a claimant’s RFC, an ALJ must “consider the combined effect of all of
the claimant’s medically determinable impairments, whether severe or not severe.” Wells
v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013); see 20 C.F.R. § 404.1545(a)(2). The ALJ
did explicitly acknowledge at step two that the limitations identified in the “paragraph B”
criteria as to mental impairments “are not a residual functional capacity assessment” and
that the RFC assessment used at step four “requires a more detailed assessment by
itemizing various functions contained in the broad categories found in paragraph B of the
adult mental disorders listings in 12.00 of the Listing of Impairments (SSR 96-8p).” R. 56
(noting that revised paragraph B criteria had taken effect by the time the written decision
was issued). The ALJ failed to present this “more detailed assessment” in the RFC
analysis, however. “In fact, the ALJ failed to engage in any analysis of mental functions
or [Plaintiff’s] nonsevere mental impairment[s] in [her] RFC discussion, limiting the
discussion, instead, solely to [Plaintiff’s] severe [physical] impairments.” Walling v.
Berryhill, 370 F. Supp. 3d 1306, 1312 (W.D. Okla. 2019); see R. 57-59. This was error.
The resulting question is whether the error may be viewed as harmless. When an
ALJ disregards nonsevere mental impairments when assessing a claimant’s RFC, such
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error does not necessarily warrant remand if “the evidence in [the] case does not support
assessing any functional limitations from mental impairments.” Alvey v. Colvin, 536 F.
App’x 792, 794 (10th Cir. 2013); see Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.
2004) (explaining that the application of harmless error is appropriate only under
“exceptional circumstance[s],” where “based on material the ALJ did at least consider (just
not properly), we could confidently say that no reasonable administrative factfinder,
following the correct analysis, could have resolved the factual matter in any other way”).
But even if the ALJ’s discussion of Dr. Crall’s CE Report at step two is seen as a
sufficient criticism of Dr. Crall’s opinion regarding Plaintiff’s ability to adapt to a work
environment, see R. 56, the ALJ fails to address that Dr. Crall limited Plaintiff to “simple
and some complex” work tasks. R. 497. Such a limitation, if adopted, would preclude
Plaintiff from performing the only job that was identified at step four. R. 60 (identifying
the job of vocational instructor as “skilled” with an SVP of 7); see Dictionary of
Occupational Titles 097.221-010, 1991 WL 646924 (4th rev. ed. 1991) (Instructor,
Vocational Training).

And such a limitation is reasonably supported by the record

evidence: Plaintiff had received treatment and medications for her depression and anxiety,
and Defendant points to no medical opinion from an examining or treating physician that
differs from or conflicts with Dr. Crall’s.
Accordingly, the Court finds that the ALJ erred in failing to consider Dr. Crall’s CE
Report in the RFC analysis, that the harmlessness of this error is “fairly debatable,” and
that remand is, therefore, required. Alvey, 536 F. App’x at 794; see Allen, 357 F.3d at
1145; Walling, 370 F. Supp. 3d at 1311-14; see also Washington v. Shalala, 37 F.3d 1437,
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1439 (10th Cir. 1994) (“Failure . . . 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)).
CONCLUSION
The decision of the Commissioner is reversed and the case remanded for further
proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). A separate judgment
shall be entered.
IT IS SO ORDERED this 23rd day of September, 2019.

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