# Knight v. Social Security Administration

> District Court, E.D. Oklahoma · September 12, 2019

URL: https://www.frixlaw.com/law-library/cases/10384841

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** September 12, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10384841

## How later opinions describe it (automated extraction)

- noting that the ALJ may not “pick and choose among medical reports, using portions of evidence favorable to his position while ignoring other evidence.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

RIKKI D. KNIGHT, )
)
Plaintiff, )
v. ) Case No. CIV-18-12-SPS
)
ANDREW M. SAUL, )
Commissioner of the Social )
Security Administration, 1 )
)
Defendant. )

OPINION AND ORDER
The claimant Rikki D. Knight requests judicial review of a denial of benefits by the
Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). She
appeals the Commissioner’s decision and asserts the Administrative Law Judge (“ALJ”)
erred in determining she was not disabled. For the reasons set forth below, the
Commissioner’s decision is REVERSED and the case REMANDED to the ALJ for further
proceedings.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment[.]” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social Security
Act “only if h[er] physical or mental impairment or impairments are of such severity that

1 On June 4, 2019, Andrew M. Saul became the Commissioner of Social Security. In accordance
with Fed. R. Civ. P. 25(d), Mr. Saul is substituted for Nancy A. Berryhill as the Defendant in this
action.
[s]he is not only unable to do h[er] previous work but cannot, considering h[er] age,
education, and work experience, engage in any other kind of substantial gainful work which

exists in the national economy[.]” Id. § 423 (d)(2)(A). Social security regulations
implement a five-step sequential process to evaluate a disability claim. See 20 C.F.R.
§§ 404.1520, 416.920.2
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th

Cir. 1997). Substantial evidence is “‘more than a mere scintilla. It means 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.
NLRB, 305 U.S. 197, 229 (1938); see also Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir.
1996). The Court may not reweigh the evidence or substitute its discretion for the

2 Step one requires the claimant to establish that she is not engaged in substantial gainful activity.
Step two requires the claimant to establish that she has a medically severe impairment (or
combination of impairments) that significantly limits her ability to do basic work activities. If the
claimant is engaged in substantial gainful activity, or her impairment is not medically severe,
disability benefits are denied. If she does have a medically severe impairment, it is measured at
step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant
has a listed (or “medically equivalent”) impairment, she is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that she lacks the residual functional capacity (RFC) to return to her past
relevant work. At step five, the burden shifts to the Commissioner to show there is significant work
in the national economy that the claimant can perform, given her age, education, work experience
and RFC. Disability benefits are denied if the claimant can return to any of her past relevant work
or if her RFC does not preclude alternative work. See generally Williams v. Bowen, 844 F.2d 748,
750-51 (10th Cir. 1988).
Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d 799, 800
(10th Cir. 1991). But the Court must review the record as a whole, and “[t]he substantiality

of evidence must take into account whatever in the record fairly detracts from its weight.”
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also Casias, 933 F.2d at
800-01.
Claimant’s Background
The claimant was forty-seven years old at the time of the administrative hearing
(Tr. 40). She completed high school, vocational training in nursing, and two years of

college and has worked as a licensed practical nurse and nursing home administrator
(Tr. 47, 64, 213). The claimant alleges that she has been unable to work since June 21,
2013, due to a herniated, ruptured, and bulging disc; lumbar disc compression; diabetes;
hypertension; bipolar disorder with anxiety and panic attacks; psoriatic arthritis;
rheumatoid arthritis; right hip sciatica; psoriasis; and fibromyalgia (Tr. 39, 212).

Procedural History
In December 2014, the claimant applied for disability insurance benefits under Title
II of the Social Security Act, 42 U.S.C. §§ 401-434 (Tr. 191-94). Her application was
denied. ALJ B.D. Crutchfield conducted an administrative hearing and determined that the
claimant was not disabled from her alleged onset date of January 21, 2013, through her

date last insured of December 31, 2014, in a written opinion dated January 13, 2017 (Tr. 15-
29). The Appeals Council denied review, so the ALJ’s written opinion is the
Commissioner’s final decision for purposes of this appeal. See 20 C.F.R. § 404.981.
Decision of the Administrative Law Judge
The ALJ made her decision at step five of the sequential evaluation. She found the

claimant retained the residual functional capacity (“RFC”) to perform a limited range of
light work as defined in 20 C.F.R. § 404.1567(b), i. e., she could lift/carry/push/pull twenty
pounds occasionally and ten pounds frequently; sit, stand, or walk six hours out of an eight-
hour workday with normal breaks; frequently climb ramps or stairs, balance, kneel, crouch,
and crawl; and occasionally stoop; but could not climb ladders, ropes, or scaffolds (Tr. 21).
Due to psychologically-based limitations, the ALJ found the claimant could perform

simple and some complex (defined during the hearing as semi-skilled) tasks with routine
supervision; could relate to supervisors, co-workers, and the general public on a superficial
work-type basis only; and could adapt to a work setting and some forewarned changes in a
usually stable work setting (Tr. 21). The ALJ then concluded that although the claimant
could not return to her past relevant work, she was nevertheless not disabled because there

was work she could perform in the national economy, e. g., small product assembler,
poultry processor, and inspector packer (Tr. 27-29).
Review
The claimant contends that the ALJ erred by failing to properly evaluate the opinion
of treating physician Dr. Douglas Brown, and the Court agrees.

The ALJ found that the claimant had the severe impairments of degenerative disc
disease and affective disorder, but that her diabetes, hypertension, psoriatic arthritis,
rheumatoid arthritis, right hip sciatica, psoriasis, and fibromyalgia were nonsevere (Tr. 18-
19). The relevant medical records reveal that Dr. Nelson Onaro treated the claimant for,
inter alia, anxiety, low back pain, diabetes, and hypertension, from July 2013 through
October 2013 (Tr. 330-45). Dr. Onaro performed one physical examination during this

and it was normal (Tr. 337-38). Dr. Brown then treated the claimant for, inter alia, low
back pain, anxiety, diabetes, hypertension, and hyperlipidemia from November 2013
through October 2016 (Tr. 346-418, 461-571, 660-96).3 Dr. Brown’s physical
examinations were normal through July 2014 (Tr. 346-93, 400-04). Beginning in
September 2014 and continuing through October 2016, Dr. Brown consistently found
moderate pain with range of motion testing in the claimant’s lumbar spine, but the pain

was severe in July 2015 and April 2016 (Tr. 394-99, 405-18, 461-571, 660-96).
Additionally, Dr. Brown found tenderness in the claimant’s lumbar spine in September
2014 and muscles spasms in her lumbar spine in October 2014, November 2014, and
January 2016 (Tr. 398, 408, 413, 418, 560). Beginning in December 2015, the claimant
consistently reported that her back pain was relieved by pain medication (Tr. 532-71, 660-

96). As to Dr. Brown’s mental status examinations, they were largely normal with
observations that the claimant was anxious in June 2014, September 2014, and March 2016
(Tr. 387, 398, 545).
Dr. John Marlar performed a consultative physical examination of the claimant on
April 29, 2015 (Tr. 428-37). Dr. Marlar found the claimant’s lumbar spine was mildly

tender to palpation with decreased flexion, but she had otherwise normal range of motion

3 Dr. Brown’s specific diagnoses for the claimant’s low back pain included lumbago, sciatica
due to displacement of lumbar disc, and intervertebral disc disorders with radiculopathy of lumbar
region.
(Tr. 428-431, 436). Dr. Marlar noted the claimant had a safe and stable gait with
appropriate speed, normal heel/toe walking and tandem gait, and indicated that a walking

aid was not required (Tr. 436). Dr. Marlar assessed the claimant with low back pain,
psoriasis, and diabetes (Tr. 436).
State agency physician Dr. Karl Boatman completed a physical RFC assessment on
May 18, 2015 and found that the claimant could perform light work with frequent climbing
ramps and stairs, balancing, kneeling, crouching, and crawling; occasional stooping; and
never climbing ladders, ropes, or scaffolds (Tr. 104-07). His findings were affirmed on

review (Tr. 122-24).
The record does not contain any imaging during the relevant period, but an October
2015 lumbar spine x-ray revealed mild degenerative changes (Tr. 600).
On October 4, 2016, Dr. Brown completed a physical RFC assessment as well as
forms regarding unskilled work requirements, sedentary work requirements, absences from

work, and a clinical assessment of pain (Tr. 643-51). He indicated on the sedentary work
requirement form, inter alia, that the claimant could not stand/walk up to two hours in an
eight-hour workday, sit up to six hours, lift/carry ten pounds, lift/carry five pounds
repetitively, utilize both hands for manipulation, sustain activity at a pace and with the
attention to task as would be required in the competitive workplace, or attend any

employment on a sustained basis (Tr. 646). On the unskilled work requirements form, Dr.
Brown stated, inter alia, that in a routine work setting, the claimant could not understand,
remember, and carry out simple instructions; make simple work-related decisions, respond
appropriately to supervision, co-workers, and work situations; or deal with changes
(Tr. 645). He indicated that basic physical work activities would increase the claimant’s
pain to such an extent that rest and/or medication would be necessary, that her pain would

reduce her basic mental work activities to such a degree that rest and/or medication would
be necessary, and that such medication would render her unable to function at a productive
level of work (Tr. 644). On the RFC questionnaire, Dr. Brown indicated that the claimant
could sit for twenty minutes at a time for less than hours total in an eight-hour workday,
could stand for ten minutes at a time for less than two hours total in an eight-hour workday,
and required a fifteen-minute period of walking every twenty minutes (Tr. 648-49). He

also indicated the claimant would need unscheduled breaks every fifteen or twenty minutes
lasting ten or fifteen minutes each (Tr. 649). Dr. Brown found that the claimant could
rarely lift/carry less than ten pounds and could never lift/carry anything above twenty
pounds (Tr. 649). Dr. Brown also found that the clamant could rarely crouch/squat, and
could never twist, stoop, or climb ladders or stairs (Tr. 650). As to manipulative

limitations, Dr. Brown found the claimant could use her hands to grasp, turn, and twist
objects five percent of an eight-hour workday; use her fingers for fine manipulations three
percent of an eight-hour work day; and could never reach (Tr. 650). He opined that the
claimant would be absent from work more than four days per month (Tr. 650). Dr. Brown
indicated that the limitations he found had been applicable since July 30, 2013 (Tr 651).

At the administrative hearing, the claimant testified that she injured her back several
years ago when a patient fell on her at work (Tr. 41). She further testified that she was
unable to work because she could not stay in the same position for very long without pain,
and because she takes pain medication (Tr. 59). The side effects of her pain medication
include drowsiness, dizziness, and nightmares, and her medications improve her pain, but
do not completely alleviate it (Tr. 60-61). The claimant further testified that in 2013, she

spent most of her day in a recliner or in bed due to the pain she experienced when sitting,
standing, or walking (Tr. 51). She further stated she could walk for twenty minutes before
needing to rest or sit down but could not lift a gallon of milk (Tr. 51-52, 55). The claimant
rated her pain at seven with medication and at eight or nine without medication on a ten-
point scale (Tr. 55). She stated that she was able to grocery shop but must lean on a cart
and take breaks every ten or fifteen minutes (Tr. 56). The claimant indicated that she uses

a cane four or five times per month, but that such use was not prescribed by a doctor
(Tr. 59). As to her panic attacks, the claimant testified that she experiences them two or
three times per month, they last ten or fifteen minutes, and she loses her breath, cries,
shakes, and has trouble focusing during them (Tr. 57).
In her written opinion, the ALJ summarized the claimant’s testimony and the

medical record. In discussing the opinion evidence, the ALJ summarized the state agency
physicians’ opinions as well as Dr. Marlar’s consultative opinion and then assigned them
great weight without analysis (Tr. 26-27). She then gave little weight to Dr. Brown’s
opinions because: (i) the claimant testified that she supplied the answers to some of the
forms, but could not remember which ones; (ii) there were no objective medical records to

support his opinions; (iii) he did not define basic unskilled work requirements; (iv) he was
not qualified to render an opinion as to the claimant’s ability to perform unskilled work;
(v) his opinion that the claimant could manage funds was contradictory to his unskilled
work requirements form; (vi) he did not define sedentary work requirements; (viii) his
handling, fingering, and reaching limitations were not “remotely” supported by the record;
and (ix) the use of a cane was not prescribed in the medical records (Tr. 27).

Medical opinions of a treating physician such as Dr. Brown are entitled to
controlling weight if “‘well-supported by medically acceptable clinical and laboratory
diagnostic techniques [and] consistent with other substantial evidence in the record.’” See
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004), quoting Watkins v. Barnhart,
350 F.3d 1297, 1300 (10th Cir. 2003). Even if a treating physician’s opinions are not
entitled to controlling weight, the ALJ must nevertheless determine the proper weight to

give them by analyzing the factors set forth in 20 C.F.R. § 404.1527. Id. at 1119. The
factors are: (i) the length of the treatment relationship and the frequency of examination;
(ii) the nature and extent of the treatment relationship, including the treatment provided
and the kind of examination or testing performed; (iii) the degree to which the physician’s
opinion is supported by relevant evidence; (iv) consistency between the opinion and the

record as a whole; (v) whether or not the physician is a specialist in the area upon which
an opinion is rendered; and (vi) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion. Watkins, 350 F.3d at 1300-01, citing Drapeau v.
Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001). If the ALJ rejects a treating physician's
opinion entirely, he must “give specific, legitimate reasons for doing so.” Id. at 1301. In

sum, it must be “clear to any subsequent reviewers the weight the [ALJ] gave to the treating
source's medical opinion and the reasons for that weight.” Id. at 1300, citing Soc. Sec. Rul.
96-2p, 1996 WL 374188, at *5 (July 2, 1996).
In this case, the ALJ adopted Dr. Brown’s findings as to the claimant’s inability to
climb ladders and stairs, but rejected without explanation his limitations regarding the

claimant’s ability to sit, stand, walk, lift/carry, twist, stoop, and crouch/squat, as well as
the claimant’s need for unscheduled breaks, her anticipated work absences, her
manipulative limitations, and all of her mental limitations (Tr. 643-51). It was error for the
ALJ to “pick and choose” in this way, i. e., to cite findings supportive of her own
determination while disregarding unsupportive findings. See, e. g., Hardman v. Barnhart,
362 F.3d 676, 681 (10th Cir. 2004) (noting that the ALJ may not “pick and choose among

medical reports, using portions of evidence favorable to his position while ignoring other
evidence.”). In addition to evaluating Dr. Brown’s findings according to the appropriate
standards, the ALJ should have explained why she found certain aspects of Dr. Brown’s
findings persuasive but not others. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.
2007) (“[T]he ALJ should have explained why he rejected four of the moderate restrictions

on Dr. Rawlings' RFC assessment while appearing to adopt the others. An 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. . . . [T]he ALJ did not state that any
evidence conflicted with Dr. Rawlings' opinion or mental RFC assessment. So it is simply
unexplained why the ALJ adopted some of Dr. Rawlings' restrictions but not others.”).

Additionally, the ALJ rejected Dr. Brown’s opinions in large part because they were
not supported by the objective medical records. Although the ALJ did specify the
inconsistencies between the medical record and Dr. Brown’s opinion as to the claimant’s
need for an assistive device, she did not specify any inconsistencies between the medical
record and Dr. Brown’s other opinions as to the claimant’s physical impairments and
limitations or any of the claimant’s mental impairments and limitations. Without an

analysis specifically tied to evidence in the record, the ALJ’s rejection of Dr. Brown’s
opinions is merely a conclusion in the guise of a finding and does not constitute substantial
evidence in support of her decision. See, e.g., Langley, 373 F.3d at 1123 (“Because the
ALJ failed to explain or identify what the claimed inconsistencies were between Dr.
Williams's opinion and the other substantial evidence in the record, his reasons for rejecting
that opinion are not ‘sufficiently specific’ to enable this court to meaningfully review his

findings.”), quoting Watkins, 350 F.3d at 1300. See also Wise v. Barnhart, 129 Fed. Appx.
443, 447 (10th Cir. 2005) (“The ALJ also concluded that Dr. Houston's opinion was
‘inconsistent with the credible evidence of record,’ but he fails to explain what those
inconsistencies are.”) [citation omitted].
Additionally, it was clearly improper for the ALJ to reject Dr. Brown’s opinions

upon speculation that he relied solely on the claimant’s subjective statements in preparing
some of his opinions. See, e. g., Langley, 373 F.3d at 1121 (“The ALJ also improperly
rejected [the treating physician’s] opinion based upon his own speculative conclusion that
the report . . . was ‘an act of courtesy to a patient.’ The ALJ had no legal nor evidentiary
basis for ... these findings. Nothing in [the treating physician’s] reports indicates ... that his

report was merely an act of courtesy. ‘In choosing to reject the treating physician’s
assessment, an ALJ may not make speculative inferences from medical reports and may
reject a treating physician’s opinion outright only on the basis of contradictory medical
evidence and not due to his or her own credibility judgments, speculation or lay
opinion.’”), quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) [emphasis
in original].

Because the ALJ failed to properly evaluate the medical evidence, the decision of
the Commissioner must be reversed and the case remanded to the ALJ for further analysis.
If such analysis results in any adjustment to the claimant’s RFC, the ALJ should then re-
determine what work, if any, the claimant can perform and ultimately whether she is
disabled.
Conclusion

In summary, the Court finds that correct legal standards were not applied by the
ALJ, and the Commissioner’s decision is therefore not supported by substantial evidence.
Accordingly, the decision of the Commissioner is hereby REVERSED, and the case is
REMANDED for further proceedings consistent with this Opinion and Order.
DATED this 12th day of September, 2019.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10384841. Public record. Not legal advice.