Isiaka v. Colvin
MEMORANDUM AND ORDER Granting 24 Opposed MOTION for Summary Judgment ; Denying 27 MOTION for Summary Judgment and Response to Plaintiff's Motion for Summary Judgment (Signed by Magistrate Judge Frances H Stacy) Parties notified.(bwhite, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
DENESIA M. ISIAKA,
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF THE SOCIAL
March 07, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-2445
MEMORANDUM AND ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Before the Court2 in this social security appeal are the parties’ cross Motions for Summary
Judgment (Document Nos. 24, 27-28). Having considered the motions, each sides’ briefing and
response (Document Nos. 27-28, 30), the administrative record, the written decision of the
Administrative Law Judge, and the applicable law, the Court ORDERS, for the reasons set forth
below, that Plaintiff’s Motion for Summary Judgment (Document No. 24) is GRANTED,
Defendant’s Motion for Summary Judgment (Document No. 27) is DENIED, and this proceeding
is REMANDED to the Commissioner for further proceedings.
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, she is substituted for
Carolyn W. Colvin as the defendant in this case.
On June 29, 2016, pursuant to the parties’ consent, this case was transferred by the
District Judge to the undersigned Magistrate Judge for all further proceedings. See Document No.
Plaintiff Denesia M. Isiaka (“Isiaka”) brings this action pursuant to Section 205(g) of the
Social Security Act (“Act”), 42 U.S.C. § 405(g), seeking judicial review of an adverse final decision
of the Commissioner of the Social Security Administration (“Commissioner”) denying her
applications for disability insurance benefits (“DIB”) and Supplemental Security Insurance benefits
(“SSI”). In this appeal Isiaka contends that: (1) the Administrative Law Judge’s “RFC finding is
inconsistent with the ALJ’s assessment of the medical mental source opinions in the record;” and
(2) the Administrative Law Judge’s “finding that [she] retains the ability to perform other work
existing in significant numbers in the national economy is not supported by substantial evidence.”
The Commissioner, in contrast, argues that there is substantial evidence in the record to support the
ALJ’s RFC’s determination and his disability determination at step five, and that the decision
comports with applicable law.
On or about June 14, 2012, Isiaka applied for DIB and SSI, claiming that she has been unable
to work since May 27, 2012, as a result chronic asthma, crohn’s disease, left side blood clot, and left
side abnormal ankle size (Tr. 219-234, 243). The Social Security Administration denied the
applications at the initial and reconsideration stages. After that, Isiaka requested a hearing before
an ALJ. The Social Security Administration granted her request and the ALJ, Richard A. Gilbert,
held a hearing on December 5, 2013, at which Isiaka’s claims were considered de novo. (Tr. 40-87).
On January 30, 2014, the ALJ issued his decision finding Isiaka not disabled. (Tr. 23-33).
Isiaka sought review of the ALJ’s adverse decision with the Appeals Council. The Appeals
Council will grant a request to review an ALJ’s decision if any of the following circumstances are
present: (1) it appears that the ALJ abused his discretion; (2) the ALJ made an error of law in
reaching his conclusion; (3) substantial evidence does not support the ALJ’s actions, findings or
conclusions; or (4) a broad policy issue may affect the public interest. 20 C.F.R. § 416.1470. On
June 18, 2015, the Appeals Council found no basis for review (Tr. 1-4), and the ALJ’s decision thus
Isiaka filed a timely appeal of the ALJ’s decision. 42 U.S.C. § 405(g). Both sides have filed
a Motion for Summary Judgment, each of which has been fully briefed. The appeal is now ripe for
Standard for Review of Agency Decision
The court’s review of a denial of disability benefits is limited “to determining (1) whether
substantial evidence supports the Commissioner’s decision, and (2) whether the Commissioner’s
decision comports with relevant legal standards.” Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999).
Indeed, Title 42, Section 405(g) limits judicial review of the Commissioner’s decision: “The findings
of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive.” The Act specifically grants the district court the power to enter judgment, upon the
pleadings and transcript, “affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing” when not supported by
substantial evidence. 42 U.S.C.§ 405(g). While it is incumbent upon the court to examine the record
in its entirety to decide whether the decision is supportable, Simmons v. Harris, 602 F.2d 1233, 1236
(5th Cir. 1979), the court may not “reweigh the evidence in the record nor try the issues de novo, nor
substitute [its] judgment for that of the [Commissioner] even if the evidence preponderates against
the [Commissioner’s] decision.” Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988); Jones v.
Apfel, 174 F.3d 692, 693 (5th Cir. 1999); Cook v. Heckler, 750 F.2d 391 (5th Cir. 1985). Conflicts
in the evidence are for the Commissioner to resolve. Anthony v. Sullivan, 954 F.2d 289, 295 (5th
The United States Supreme Court has defined “substantial evidence,” as used in the Act,
to be “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co.
v. N.L.R.B., 305 U.S. 197, 229 (1938). Substantial evidence is “more than a scintilla and less than
a preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). The evidence must create
more than “a suspicion of the existence of the fact to be established, but no ‘substantial evidence’
will be found only where there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical
evidence.’” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).
Burden of Proof
An individual claiming entitlement to disability insurance benefits under the Act has the
burden of proving his disability. Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988). The Act
defines disability as the “inability 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 12 months.” 42
U.S.C. § 423(d)(1)(A). The impairment must be proven through medically accepted clinical and
laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). The impairment must be so severe as to
limit the claimant in the following manner:
he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied to work.
42 U.S.C. § 423(d)(2)(A). The mere presence of an impairment is not enough to establish that one
is suffering from a disability. Rather, a claimant is disabled only if he is “incapable of engaging in
any substantial gainful activity.” Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (quoting
Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir. 1986)).
The Commissioner applies a five-step sequential process to decide disability status:
If the claimant is presently working, a finding of “not disabled” must be
If the claimant does not have a “severe impairment” or combination of
impairments, he will not be found disabled;
If the claimant has an impairment that meets or equals an impairment listed
in Appendix 1 of the Regulations, disability is presumed and benefits are
If the claimant is capable of performing past relevant work, a finding of “not
disabled” must be made; and
If the claimant’s impairment prevents him from doing any other substantial
gainful activity, taking into consideration his age, education, past work
experience and residual functional capacity, he will be found disabled.
Anthony, 954 F.2d at 293; see also Leggett v. Chater, 67 F.3d 558, 563 n.2 (5th Cir. 1995); Wren v.
Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under this framework, the claimant bears the burden
of proof on the first four steps of the analysis to establish that a disability exists. If successful, the
burden shifts to the Commissioner, at step five, to show that the claimant can perform other work.
McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999). Once the Commissioner shows that other jobs
are available, the burden shifts, again, to the claimant to rebut this finding. Selders v. Sullivan, 914
F.2d 614, 618 (5th Cir. 1990). If, at any step in the process, the Commissioner determines that the
claimant is or is not disabled, the evaluation ends. Leggett, 67 F.3d at 563.
Here, the ALJ found at step one that Isiaka had not engaged in substantial gainful activity
since May 27, 2012, her alleged onset date. At step two, the ALJ found that Isiaka had the following
severe impairments: dysthymic disorder, history of asthma, history of ulcerative colitis, history of
deep vein thrombosis, major depressive disorder, obesity, osteoarthritis of the knee, degenerative
disc disease of the cervical spine, and tendinitis of the shoulder. At step three, the ALJ concluded
that Isiaka did not have an impairment or combination of impairments that met or medically equaled
a listed impairment, including Listings 1.02, 1.04, 3.02, 4.11, 4.12, 5.08 and 12.04. The ALJ then,
prior to consideration of steps four and five, determined that Isiaka had the residual functional
capacity (“RFC”) to perform a restricted range of sedentary work “in that she can lift and carry ten
pounds occasionally, five pounds frequently. She can stand and walk two hours in an eight-hour
workday and sit for six hours in an eight-hour workday. She can occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl, yet must never climb ladders[,] ropes or scaffolds.
Further, she is limited to occasional overhead reaching bilaterally, and work environments in which
the bathroom is readily accessible. She must avoid concentrated exposure to dusts, fumes, gases,
and poor ventilation. Furthermore, she can understand, remember, and carry [ ] out detailed, but not
complex instructions; make decisions; attend and concentrate for extended periods; accept
instructions; and respond appropriately to changes in routine work settings.” At step four, using that
RFC, and based on the testimony of a vocational expert, the ALJ determined that Isiaka could not
perform her past work as a teacher’s aide, screener, or health care provider. At step five, again using
that RFC, and relying on the testimony of a vocational expert, the ALJ concluded that there were
jobs in significant numbers in the regional and national economy that Isiaka could perform, including
order clerk, jewelry preparer, and optical goods worker, and that she was therefore not disabled.
In this appeal, Isiaka raises two claims that relate solely to her mental impairment. First, she
maintains that the ALJ erred in determining her mental RFC, and his RFC determination is, as a
result, not supported by substantial evidence, because there is no medical or opinion evidence that
she can “understand, remember and carry out detailed, but not complex instructions.” According to
Isiaka, the expert opinion evidence in the record only supports a conclusion that she can understand,
remember and carry out simple instructions. Isiaka then argues, in somewhat of a segue of her first
claim, that the ALJ’s step five determination is not supported by substantial evidence because each
of the jobs identified by the ALJ require reasoning abilities that exceed her ability to understand,
remember and carry out simple instructions.
The medical evidence in the record that relates to Isiaka’s physical impairments is extensive.
That related to her mental impairments – her dysthymic disorder and her depression – is much more
limited. But, as it is the expert opinion evidence related to Isiaka’s mental impairment(s) that
forms the basis of Isiaka’s claims in the appeal, that is where the Court will focus.3
The Commissioner, in her briefing, correctly points out that Isiaka’s focus in both her
applications and at the hearing was on her physical impairments, but that her focus in this appeal
is on her mental impairments.
In determining that Isiaka, notwithstanding her dysthymic disorder and depression, could
engage in work related activities that required the ability to understand, remember and carry out
detailed, but not complex instructions, the ALJ wrote:
. . . turning to the claimant’s allegations of mental instability, the undersigned
notes minimal to no significant lasting limitations incurred from mental limitations.
In fact, while more recent record did reveal some degree of limitations due to
depression incurred from familial and financial stressors, providers till find her [
] no more than moderately limited, as she possessed good insight, good judgment,
and good impulse control (Ex. 26F/396). This view of the claimant, the
undersigned notes, echoed that of her provider’s earlier findings, as they found her
with no mental limitations upon their examination (Ex. 21F/56). Interestingly,
while a consultative examiner found the claimant with severe limitations mentally
due to her subjective reports, her providers found her with few if any limitations
(Ex. 15F). In fact, Dr. Turner, State Agency Reviewer[,] noted the inconsistencies
between the claimant’s presentation and her allegations as, only a couple of days
before her psychological evaluation, she reported to her physical evaluator that she
had no difficulty performing light household chores, watching TV, shopping, or
cooking (Ex. 5A/8, 14F/2, 15F/2).
. . . turning to the claimant’s mental allegations, the undersigned assigns significant
weight to Dr. Oguejiofor’s and State Agency providers[’] findings that mentally the
claimant remains capable of understanding, remembering, and carrying out simple
instructions; making simple decisions; interacting adequately with co-workers and
supervisors; and responding appropriately to changes in a routine setting (Ex. 1A,
2A, 5A, 6A). In granting this weight to these reviewers[,] the undersigned finds
that the claimant’s remarkably different presentations to providers in the same
month, and her subjective reports of mental limitations made the claimant a less
than credible reporter of her limitations.
(Tr. 29, 30). Isiaka argues that the significant weight the ALJ gave to the expert medical opinions
that she can understand. remember and carry out simple instructions and make simple decisions
is inconsistent with the ALJ’s mental RFC determination that she can understand, remember and
carry out detailed instructions.
Isiaka is correct that the ALJ’s reliance on the expert medical opinions is not entirely
consistent with his mental RFC assessment. Isiaka, however, is not entirely correct that none of
the expert medical opinion evidence supports the ALJ’s determination that she can understand,
remember and carry out detailed, as opposed to simple, instructions. Isiaka underwent a
consultative mental evaluation on September 27, 2012, with Dr. Manjeshwar R. Prabhu, who
assessed her global assessment of functioning (“GAF”) at 35.4 Isiaka reported to Dr. Prabhu,
feeling hopeless, helpless, in the dumps. and having frequent tearful episodes. She
sometimes feels life is not with living, but has never harmed self. She does think
of suicide, but has no plans for self harm, and has had those thoughts in the past.
She has mood swings, racing thoughts, irritability, and anxiety. She has panic
attacks once a day that are triggered by pain, or social interaction. She prays,
watches TV, and tries to limit social interaction to decrease attacks. She has
difficulty falling an staying asleep, daytime drowsiness, and low energy. In the
past, she heard the voice of a stranger talking to her, but not commanding her to
do anything, however, she did respond verbally to the voice. She last heard the
voice about a month ago. She denied delusions. Her appetite has been increased,
and she has gained about 2lbs per week in the last month. Mr. Isiaka has been
depressed since junior high school, but got worse in June of 2012. She was not
working at the outset of her illness. She has never been in a psychiatric hospital,
and is not seeing a psychiatrist. Her illness began to affect her ability to work in
May of 2012, and she stopped working on May 31, 2012. She has made no
attempt to return to work. Her medical doctor prescribes Citalopram 20mg 1 daily
for her emotional illness, and it is not helpful, and causes her to feel tired, sleepy,
The Global Assessment of Functioning (“GAF”) is a measurement “with respect only to
psychological, social and occupational functioning.” Boyd v. Apfel, 239 F.3d 698, 708 (5th Cir.
2001) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (DSMIV), at 32). A GAF of 51-60 denotes “[m]oderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in social, occupational or school
functioning (e.g., few friends, conflicts with peers or co-workers). DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS, 4th Edition, Text Revision (DSM-IV-TR), at 34. A GAF of 41-50
denotes “[s]erious symptoms (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting)
or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to
keep a job).” Id. A GAF of 31-40 denotes “[s]ome impairment in reality testing or communication
(e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such
as work or school, family relations, judgment, thinking or mood.” Id.
numb, and more depressed. She has never used alcohol, tobacco, or street drugs.
(Tr. 656). Upon mental status examination, Dr. Prabhu noted that Isiaka’s “thought process is
marked by much blocking,” her “psychomotor activity is decreased. Her affect is sad, and mood
dysthymic,” she was “well oriented to time, place, and person. . . She could remember events
well. Recent memory is fair. . . . Immediate memory is decreased. . . Her concentration is fair.
. . Abstracting ability is good,” “[h]er judgment is fair,” and her “[f]und of knowledge is fair.”
(Tr. 657). Dr. Prabhu diagnosed Isiaka with major depressive disorder and opined that her
“prognosis is fair, if she receives treatment.” (Tr. 658). Nothing in Dr. Prabhu’s report supports
the ALJ’s determination that Isiaka can understand, remember and carry out detailed, but not
As for the agency physicians who reviewed Isiaka’s medical records and opined about her
mental impairments and limitations, while Dr. Meyer concluded in October 2012 that Isiaka could
understand, remember and carry out detailed, but not complex instructions (Tr. 99, 111), Dr.
Turner in January 2013 concluded that Isiaka was markedly limited in her ability to understand,
remember and carry out detailed instructions, but did have “the capacity to understand. remember,
and carry out simple instructions [and] make simple decisions (Tr. 126- 127; 143-2-143). The
ALJ, in his decision, stated that he was giving significant weight to the “State Agency providers
findings that mentally the claimant remains capable of understanding, remembering, and carrying
out simple instructions; making simple decisions; interacting adequately with co-workers and
supervisors; and responding appropriately to changes in a routine setting” (Tr. 30), but he did not
mention, or distinguish between the opinions of Dr. Meyer and Dr. Turner, which were not the
same with respect to Isiaka’s ability to understand, remember and carry out instructions. And,
as for the ALJ’s stated reliance on the opinion of the psychiatric expert who testified at the hearing
(incorrectly identified in the ALJ’s decision as Dr. Oguejiofor), the record shows that he did not
render any opinion on Isiaka’s ability to understand, remember and carry out instructions. All Dr.
Stuart testified and opined about at the hearing was whether Isiaka’s mental impairments met or
equaled Listing 12.04 for affective disorders.
In all, while there is some evidence in the record to support that part of the ALJ’s mental
RFC, determining that Isiaka could understand. remember and carry out detailed, but not complex
instructions, see opinion of Dr. Meyer at Tr. 99, 111, the ALJ mis-stated the evidence as having
been provided by the “State Agency providers,” and failed to explain how Dr. Meyer’s opinion
that Isiaka could understand, remember and carry out detailed, but not complex instructions was
to be credited over the opinion of Dr. Turner that Isiaka was markedly limited in her ability to
understand, remember and carry out detailed instructions. Simply put, the ALJ’s decision as it
relates to Isiaka’s mental RFC does not lend itself to the type of review required under § 405g
because it both mis-states the record evidence, and fails to distinguish between the inconsistent
expert medical opinions in the record as to Isiaka’s ability to understand. remember, and carry out
instructions. Remand is therefore warranted for further evaluation of the evidence related to
Isiaka’s mental impairments and her limitations related thereto.
Conclusion and Order
Based on the foregoing and the conclusion that there are errors in the ALJ’s RFC
determination vis-a-vis Isiaka’s mental impairment, it is
ORDERED that Plaintiff’s Motion for Summary Judgment (Document No. 24) is
GRANTED, Defendant’s Motion for Summary Judgment (Document No. 27) is DENIED, and
this matter is REMANDED to the Commissioner pursuant to sentence four, 42 U.S.C. 405g, for
further proceedings consistent with this Memorandum and Order.
Signed at Houston, Texas, this 6th day of March, 2017.
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