Downey v. Commissioner of the Social Security Administration

Filing 21

MEMORANDUM OPINION AND ORDER. The Court reverses the Commissioner's decision and remands for further proceedings. Signed by Magistrate Judge Suzanne Mitchell on 10/4/21. (lb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
AMEE D. DOWNEY,
Plaintiff,
v.
KILOLO KIJAKAZI,
ACTING COMMISSIONER OF
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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Case No. CIV-20-1040-SM

MEMORANDUM OPINION AND ORDER
Amee D. Downey (Plaintiff) brings this action for judicial review of the
Commissioner of Social Security’s final decision that she was not “disabled”
under Title XVI of the Social Security Act. Doc. 1.1 See 42 U.S.C. § 405(g).2 The

Citations to the parties’ pleadings and attached exhibits will refer to this
Court’s CM/ECF pagination. Citations to the administrative record (AR) will
refer to its original pagination.

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The Administrative Law Judge (ALJ) assigned to Plaintiff’s case
determined Plaintiff was not eligible for disability insurance benefits because
her alleged disability onset date of May 17, 2018, fell after June 30, 2016, which
was the date she was last insured for Title II benefits. AR 16. Plaintiff does not
dispute this determination. Doc. 19, at 1. Thus, only her request for review of
the denial of her supplemental security income benefits claim remains. But the
“regulations that govern the two programs are . . . equivalent.” Smith v.
Berryhill, 139 S. Ct. 1765, 1772 (2019) (“Title XVI provides supplemental
security income benefits ‘to financially needy individuals who are aged, blind,
or disabled regardless of their insured status.’”). And “§ 405(g) sets the terms
of judicial review for each.” Id.
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parties have consented to the undersigned for proceedings consistent with 28
U.S.C. § 636(c). See Docs. 9, 18.
Plaintiff asks this Court to reverse the Commissioner’s decision and to
remand the case for further proceedings, arguing the ALJ erred in (1) her
consideration of Dr. Patrick Herd’s Mental Medical Source Statement (MMSS)
when formulating Plaintiff’s residential functional capacity3 (RFC); and (2) her
consideration of Plaintiff’s consistency. Doc. 19, at 10, 23. After a careful review
of the AR, the parties’ briefs, and the relevant authority, the Court reverses
the Commissioner’s decision and remands the case for further consideration
consistent with this order. See 42 U.S.C. § 405(g).
I.

Administrative determination.
A.

Disability standard.

The Social Security Act defines a disabled individual as a person who is
“unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period
of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). “This twelve-month

Residual functional capacity “is the most [a claimant] can still do despite
[a claimant’s] limitations.” 20 C.F.R. § 416.945(a)(1).

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duration requirement applies to the claimant’s inability to engage in any
substantial gainful activity, and not just [the claimant’s] underlying
impairment.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing
Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B.

Burden of proof.

Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that [s]he can no longer engage in h[er] prior work
activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff
makes that prima facie showing, the burden of proof then shifts to the
Commissioner to show Plaintiff retains the capacity to perform a different type
of work and that such a specific type of job exists in the national economy. Id.
C.

Relevant findings.
1.

Administrative Law Judge’s findings.

The ALJ assigned to Plaintiff’s case applied the standard regulatory
analysis to decide whether Plaintiff was disabled during the relevant
timeframe. AR 17-27; see 20 C.F.R. § 416.920(a)(4); see also Wall v. Astrue, 561
F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ
found Plaintiff:
(1)

had not engaged in substantial gainful activity since her
alleged onset date of May 17, 2018;

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(2)

had the following severe impairments: depressive disorder
and anxiety disorder;

(3)

had no impairment or combination of impairments that met
or medically equaled the severity of a listed impairment;

(4)

had the (RFC to perform a full range of work at all exertional
levels but with the non-exertional limitations that her work
must be limited to simple, routine, and repetitive tasks,
occasional interaction with co-workers, supervisors, and
public, and free of production rate pace;

(5)

was not able to perform her past relevant work;

(6)

was able to perform unskilled jobs that exist in the national
economy, such as marker, copy machine operator, and
laundry worker; and so,

(7)

had not been under a disability from May 17, 2018, through
March 19, 2020.

See AR 17-27.
2.

Appeals Council’s findings.

The Social Security Administration’s Appeals Council denied Plaintiff’s
request for review, see id. at 1-7, making the ALJ’s decision “the
Commissioner’s final decision for [judicial] review.” Krauser v. Astrue, 638 F.3d
1324, 1327 (10th Cir. 2011).
II.

Judicial review of the Commissioner’s final decision.
A.

Review standard.

The Court reviews the Commissioner’s final decision to determine
“whether substantial evidence supports the factual findings and whether the
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ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326,
1330 (10th Cir. 2016). Substantial evidence is “more than a scintilla, but less
than a preponderance.” Lax, 489 F.3d at 1084; see also Biestek v. Berryhill, 139
S. Ct. 1148, 1154 (2019) (“It means—and means only—such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”)
(internal quotation marks and citation omitted). A decision is not based on
substantial evidence “if it is overwhelmed by other evidence in the record.”
Wall, 561 F.3d at 1052 (citation omitted). The Court will “neither reweigh the
evidence nor substitute [its] judgment for that of the agency.” Newbold v.
Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).
B.

Issues for judicial review.

Plaintiff asserts the ALJ gave insufficient reasons for finding Dr. Herd’s
MMSS only “partially persuasive” and for ignoring his letter stating that
Plaintiff’s therapy dog was “therapeutic” for her condition. Doc. 19, at 10-22.
Because of this alleged improper evaluation, Plaintiff argues the ALJ did not
properly assess her RFC. Id. Plaintiff also argues the ALJ did not properly
assess the consistency of her statements. Id. at 23-30. The Court agrees the
ALJ’s unexplained partial rejection of Dr. Herd’s opinion requires remand.

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III.

The ALJ must properly articulate her evaluation of the medical
opinions to facilitate review.
The ALJ’s duty is to evaluate every medical opinion in the record and

articulate how persuasive she finds the opinion. Hamlin v. Barnhart, 365 F.3d
1208, 1215 (10th Cir. 2004); 20 C.F.R. § 416.920c(a). The ALJ determines an
opinion’s persuasiveness by evaluating its supportability and consistency and
then

“articulating”

how

she

considered

those

factors.

20

C.F.R.

§ 416.920c(b)(2). An ALJ may also, but need not, discuss other considerations
that may bear on the persuasiveness of a medical opinion, such as the
relationship of the source to the claimant, the source’s area of specialization,
and other factors such as the source’s familiarity with the disability program’s
policies and evidentiary requirements. Id.; id. § 416.920c(c)(3-5). The ALJ’s
rationale must be “sufficiently specific” to permit meaningful appellate review.
See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
A.

The ALJ failed to explain what inconsistencies in the
record supported her partially discounting Dr. Herd’s
opinions.

In his October 9, 2019 MMSS, Dr. Herd stated that he had been actively
treating Plaintiff for her mental health issues since July 2017. AR 675. He had
examined her every one-to-three-months during that time and had diagnosed
her with recurrent major depression, anxiety disorder, and borderline
intellectual function. Id. He stated Plaintiff had shown a “limited response” to
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medication but had slightly improved since her hysterectomy. Id. His prognosis
for Plaintiff was “guarded.” Id. In his opinion, Plaintiff “look[ed] anxious and
ready to run away” during his examination. Id. He explained she was
“avoidant” and needed her dog or boyfriend to go outside her home. Id.
Dr. Herd identified some of Plaintiff’s “signs and symptoms” as
depressed mood, panic attacks, delusions or hallucinations, frequent
distractibility, difficulty sustaining attention, difficulty organizing tasks,
detachment from social relationships, distrust and suspiciousness of others,
and significant difficulties learning and using academic skills. Id. at 676. He
opined that because she had “poor concentration” and was “easily
overwhelmed” she would be “unable to meet competitive standards” for
unskilled work in the areas of maintaining attention for a two-hour span,
working in coordination with or proximity to others without being unduly
distracted, completing a normal workday and workweek without interruptions
from psychologically based symptoms, performing at a consistent pace without
an unreasonable number and length of rest periods, accepting instructions and
responding appropriately to criticism from supervisors, getting along with coworkers or peers without unduly distracting them or exhibiting behavioral
extremes, and dealing with normal work stress. Id. at 677. She was also
seriously limited in her ability to “remember work-like procedures,”
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“understand and remember very short and simple instructions,” “carry out
very short and simple instructions,” “sustain an ordinary routine without
special supervision,” “make simple work-related decisions,” “ask simple
questions and request assistance,” and “respond appropriately to changes in a
routine work setting.” Id. And because in his opinion she would “need
supervision and accommodations,” she would be unable to meet competitive
standards in understanding, remembering, and carrying out detailed
instructions, setting realistic goals or making plans independently of others,
and dealing with the stress of either skilled or semi-skilled work. Id. at 678.
She would also be “seriously limited” in her ability to travel in unfamiliar
places or use public transportation because she “needs [her] husband to
navigate [the] world.” Id.
Dr. Herd also opined that Plaintiff’s psychiatric-related stress
exacerbated her “chronic pain headaches” and work-related stress would
hinder her ability to, among other things, work within a schedule, make
decisions, complete tasks, and work with other people—including her
supervisors and the public. Id. Dr. Herd opined that Plaintiff’s impairments,
which had lasted or were expected to last at least twelve months, would cause
her to miss work more than four days per month. Id. at 679. Finally, Dr. Herd
opined that Plaintiff could not manage benefits in her own best interest. Id.
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The ALJ recited all the above findings and more but found Dr. Herd’s
opinion was only “partially persuasive” because it was “not supported by other
objective evidence in the record.” AR 23-25. The ALJ did not then explain what
portions of the record she found either supported or did not support Dr. Herd’s
opinion in the MMSS. See 20 C.F.R. § 416.920c(b)(2) (stating the ALJ “will
explain how [she] considered the supportability and consistency factors for a
medical source’s medical opinions”). The ALJ also completely failed to explain
how consistent she found Dr. Herd’s opinion by comparing it “with the evidence
from other medical sources and nonmedical sources in the claim,” as she was
required to do. Id. § 416.920c(c)(2). This was error. See, e.g., Chapo v. Astrue,
682 F.3d 1285, 1292 (10th Cir. 2012) (“We have repeatedly held that [a]n ALJ
is not entitled to pick and choose through an uncontradicted medical opinion,
taking only the parts that are favorable to a finding of nondisability.”).
B.

The Court cannot adequately review the basis for the ALJ’s
RFC determination.

Defendant asserts this Court should not “reweigh the evidence” because
“the ALJ considered the record as a whole and properly found that the
limitations Dr. Herd assessed were unsupported.” Doc. 20, at 5, 6. Defendant
questions the ALJ’s check-box conclusions and reliance on “medical findings”
that Plaintiff “needs husband to navigate the world.” Id. at 5. Thus, Defendant
argues, neither the vocational expert (VE), through a hypothetical question,
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nor the ALJ needed to consider those limitations when crafting the RFC. Id. at
6. But the Court cannot consider these post-hoc rationalizations to justify the
ALJ’s failure to articulate her reasons for partially rejecting Dr. Herd’s
opinion. See, e.g., Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007)
(“[C]ourt may not create or adopt post-hoc rationalizations to support the ALJ’s
decision that are not apparent from the ALJ’s decision itself.”).
Defendant also contends that “[p]rior to discussing Dr. Herd’s opinion,
the ALJ also discussed the medical evidence she considered while assessing
Plaintiff’s RFC . . . .” Doc. 20, at 6. The record reflects the ALJ’s recitation of
certain medical evidence in her decision. AR 20-23.4 It also reflects the ALJ’s
reliance on Dr. Bruce Lochner’s opinion as to Plaintiff’s mental RFC on
November 16, 2018. Id. at 25.5 The Court’s concern is that Dr. Lochner’s

Of the many records from the Jim Taliaferro Clinic where Plaintiff had
been a patient since 2017, the ALJ cited to only three medical records in
addition to Dr. Herd’s MMSS. AR 22. The ALJ referenced only one medical
record by Dr. Herd in which he stated Plaintiff reported she “was doing fine”
and “[was] medication compliant.” Id.
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Dr. Lochner opined Plaintiff was markedly limited in her ability to
understand, remember, and carry out detailed instructions and her ability to
interact appropriately with the general public. AR 132. He found Plaintiff was
moderately limited in her ability to carry out very short and simple
instructions, her ability to complete a normal workday without interruptions
from her psychologically based symptoms and to perform at a consistent pace,
and her ability get along with her coworkers and peers. Id. at 132-33. He
concluded that, for the prior twelve months, Plaintiff’s mental impairments
had not precluded her from “[p]erforming mental operations necessary for 1-3
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opinion, which the ALJ relied on to craft Plaintiff’s mental RFC, only
considered records up to Dr. Eddie Scott’s November 14, 2018 findings after
his consultative examination of Plaintiff. Id. at 129-133, 503-510.6
Dr. Lochner’s assessment predated Dr. Herd’s October 2019 MMSS. And
although the ALJ considered the “entire record,” id. at 20, her decision relies
on no medical evidence dated after November 2018. from Dr. Herd. The
objective evidence after November 2018 shows the occurrence of another
stress-related seizure, her daily marijuana use, and the continuation of her
“persistent mood disorder” and anxiety with little to no improvement. Id. at

step tasks that require minimal social interaction,” “[m]aintaining adequate
[concentration, persistence and pace] sufficient for employment,”
“[m]aintaining adequate interpersonal relationships to interact and relate well
enough to accept directions and feedback from supervisors and peers that are
typical of work life, but not for relating in the public sphere,” and “[a]dapting
to the mental demands of a work situation subject to the restrictions” stated.
Id. at 133.
Dr. Scott reported that Plaintiff scored an eighteen out of a possible
thirty points on the Montreal Cognitive Assessment and that this score
“suggest[ed] the possibility of cognitive impairment.” AR 508. During the
examination, Plaintiff had difficulty with “concentration, processing
information, and the development of new memories.” Id. Dr. Scott diagnosed
Plaintiff with anxiety disorder, with agoraphobia and panic, posttraumatic
stress disorder, and moderate to severe depressive disorder. Id. Dr. Scott did
not expect Plaintiff’s condition to change or improve significantly over the next
twelve months. Id. Dr. Scott noted Plaintiff exhibited no signs of “exaggeration
or malingering.” Id. at 509. He rated as fair her “ability to understand,
remember and carry out simple and complex instructions in a work related
environment.” Id.
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680-82, 684, 687, 708-09, 712-13, 720-21, 723-227, 730. Dr. Herd’s numerous
examinations of Plaintiff led him to conclude she would be absent from work
more than four days per month, would be seriously limited in her ability to
travel to unfamiliar places or use public transportation and would need either
her service dog or her husband with her when she left her home. Id. at 675,
679.7 Yet, the ALJ did not account for or discount these limitations when
assessing her RFC.
While “an ALJ is not required to discuss every piece of evidence,” she
must “discuss the uncontroverted evidence [she] chooses not to rely upon, as
well as significantly probative evidence [she] rejects.” Clifton v. Chater, 79 F.3d
1007, 1009-10 (10th Cir. 1996); see also 20 C.F.R. § 416.920(a)(3) (“We will
consider all evidence in your case record . . .”). Because the ALJ failed to
properly evaluate Dr. Herd’s opinion along with the other medical evidence,
this Court is unable to adequately review her decision. Cf. Guice v. Comm’r,
785 F. App’x 565, 575 (10th Cir. 2019) (“Without this explanation, we cannot
meaningfully review the ALJ’s weighing of these medical opinions to determine

When the ALJ included the four days absent per month limitation in her
hypothetical question to the VE at Plaintiff’s hearing, the VE testified it would
“eliminate past work as well as competitive employment.” AR 61. And when
Plaintiff’s counsel asked about Plaintiff’s use of a service dog, the VE testified
it would be considered an “accommodation” which would “eliminate
competitive employment.” Id. at 61-62.
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if her reasons for rejecting the opinions of [claimant’s] treating psychiatrists
and adopting the state-agency psychologists’ opinions are supported by
substantial evidence and whether she applied the correct legal standards in
arriving at these conclusions.”); see also Cira v. Colvin, 67 F. Supp. 3d 1206,
1209-10 (D. Colo. 2014) (holding that the Court “is neither required—nor,
indeed, empowered—to parse through the record to find specific support for
the ALJ’s decision. Such generalized, global references to the record make the
ALJ’s opinion nearly impossible to review, and certainly do not constitute
substantial

evidence

in

support

of

the

Commissioner’s

disability

determination”).
The Court declines to address Plaintiff’s remaining objections to the
ALJ’s decision because they may be affected by the ALJ’s treatment of the case
on remand. 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”). On remand, the ALJ
shall consider Dr. Herd’s opinion along with all the medical evidence.
IV.

Conclusion.
Based on the above, the Court reverses the Commissioner’s decision and

remands for further proceedings.

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ENTERED this 4th day of October, 2021.

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