Brown v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

STARLA JEAN BROWN, )

)

Plaintiff, )

)

) Case No. CIV-19-095-KEW

)

COMMISSIONER OF THE SOCIAL )

SECURITY ADMINISTRATION, )

)

Defendant. )

OPINION AND ORDER

Plaintiff Starla Jean Brown (the “Claimant”) requests

judicial review of the decision of the Commissioner of the Social

Security Administration (the “Commissioner”) denying her

application for disability benefits under the Social Security Act.

Claimant appeals the decision of the Administrative Law Judge

(“ALJ”) and asserts that the Commissioner erred because the ALJ

incorrectly determined that she was not disabled. For the reasons

discussed below, it is the finding of this Court that the

Commissioner’s decision should be and is REVERSED and the case is

REMANDED 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 his physical or mental impairments are of

such severity that 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. . .” 42 U.S.C. § 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, 416.920.1

Judicial review of the Commissioner’s determination is

limited in scope by 42 U.S.C. § 405(g). This Court’s review is

limited to two inquiries: first, whether the decision was

supported by substantial evidence; and, second, whether the

correct legal standards were applied. Hawkins v. Chater, 113 F.3d

1162, 1164 (10th Cir. 1997) (citation omitted). The term

“substantial evidence” has been interpreted by the United States

1   Step one requires the claimant to establish that he is not

engaged in substantial gainful activity, as defined by 20 C.F.R. §§

404.1510, 416.910. Step two requires that the claimant establish that

he has a medically severe impairment or combination of impairments that

significantly limit his ability to do basic work activities. 20 C.F.R.

§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful

activity (step one) or if the claimant’s impairment is not medically

severe (step two), disability benefits are denied. At step three, the

claimant’s impairment is compared with certain impairments listed in 20

C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed

impairment or impairments “medically equivalent” to a listed impairment

is determined to be disabled without further inquiry. If not, the

evaluation proceeds to step four, where claimant must establish that he

does not retain the residual functional capacity (“RFC”) to perform his

past relevant work. If the claimant’s step four burden is met, the burden

shifts to the Commissioner to establish at step five that work exists in

significant numbers in the national economy which the claimant – taking

into account his age, education, work experience, and RFC – can perform.

Disability benefits are denied if the Commissioner shows that the

impairment which precluded the performance of past relevant work does not

preclude alternative work. See generally, Williams v. Bowen, 844 F.2d

748, 750-51 (10th Cir. 1988).

Supreme Court to require “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). The court may not re-weigh the evidence nor

substitute its discretion for that of the agency. Casias v.

Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.

1991). Nevertheless, the court must review the record as a whole,

and the “substantiality of the 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

Claimant was 54 years old at the time of the ALJ’s decision.

She has a high school education and worked in the past as a billing

clerk. Claimant alleges an inability to work beginning on March 1,

2014, due to limitations resulting from persistent headaches with

vomiting and weakness, general muscle weakness, problems with

balance resulting in falls, depression, and complications from

methicillin-resistant staphylococcus aureus (MRSA).

Procedural History

On November 4, 2016, Claimant protectively filed an

application for a period of disability and disability insurance

benefits under Title II (42 U.S.C. § 401, et seq.) of the Social

Security Act. Claimant’s application was denied initially and upon

reconsideration. On January 23, 2018, ALJ Ralph F. Shilling

conducted a video hearing from Dallas, Texas. Claimant

participated from Paris, Texas. On April 12, 2018, the ALJ entered

an unfavorable decision. Claimant requested review by the Appeals

Council, and on January 19, 2019, it denied review. As a result,

the decision of the ALJ represents the Commissioner’s final

decision for purposes of further appeal. 20 C.F.R. §§ 404.981,

416.1481.

Decision of the Administrative Law Judge

The ALJ made his decision at step five of the sequential

evaluation. He determined that while Claimant suffered from severe

impairments, she did not meet a listing and retained the residual

functional capacity (“RFC”) to perform light work with additional

limitations.

Errors Alleged for Review

Claimant asserts the ALJ committed error for: 1) failing to

properly assess medical source opinions; 2) failing to properly

assess the consistency of Claimant’s complaints with the evidence

of record; and 3) failing to perform a proper step-five evaluation.

Evaluation of Opinion Evidence

In his decision, the ALJ found Claimant suffered from severe

impairments of status post-hernia repair, MRSA complications,

headaches, obesity, and depression. (Tr. 48). He determined

Claimant could perform light work with additional limitations. In

so doing, the ALJ found Claimant could lift and/or carry twenty

pounds occasionally and ten pounds frequently; stand and/or walk,

in combination, for six hours in an eight-hour workday; and sit

for six hours in an eight-hour workday. Claimant could not crawl

or climb, or use ladders, ropes, or scaffolds. She could

occasionally balance, stoop, bend, squat, kneel, or crouch.

Claimant was to avoid hazards, hazardous machinery, extreme heat

and cold, dust, fumes, odors, and concentrated exposure to

vibration. She retained the ability to understand, remember, and

carry out short and simple tasks and instructions, and work

activity should be routine and repetitive. Claimant retained the

ability to ask simple questions and request assistance. She could

occasionally appropriately interact with supervisors, co-workers,

and the public. (Tr. 53-54).

After consultation with a vocational expert (“VE”), the ALJ

determined Claimant could perform the representative jobs of copy

clerk, mailroom clerk, and food inspector, all of which he found

existed in sufficient numbers in the national economy. (Tr. 59).

As a result, the ALJ concluded Claimant was not under a disability

from March 1, 2014, through the date of the decision. Id.

Claimant contends the ALJ improperly considered the medical

opinion evidence from her treating physician, Royce G. Martens,

D.O. Treatment records show Dr. Martens provided treatment and

medication to Claimant over several years. (Tr. 1187-1277, 1340-

54, 1364-85). On November 3, 2015, he completed an RFC capacity

questionnaire regarding Claimant’s physical impairments. He stated

he began treating Claimant in 2009. He deemed Claimant’s prognosis

as fair, identified symptoms of pain, drowsiness, fatigue, and

headaches, and indicated her impairments frequently were severe

enough to interfere with the attention and concentration required

to perform simple work-related tasks. Side effects from medication

included drowsiness and muscle relaxants. Dr. Martens responded

“yes” to the question that Claimant would need to recline or lie

down during an eight-hour workday in excess of the typical 15-

minute break in the morning, the 30-60 minute lunch, and the

typical 15-minute break in the afternoon. He estimated Claimant

could walk one city block without rest or significant pain, could

sit for one hour at one time, could stand/walk for 15 minutes at

one time, could sit for 7-8 hours total in an eight-hour workday,

and could stand/walk for 1 hour total in an eight-hour workday.

Claimant needed a job that would permit her to shift positions at

will from sitting, standing, or walking. She would not need to

take unscheduled breaks during the workday. Claimant could

frequently lift and/or carry ten pounds or less than ten pounds,

occasionally lift and/or carry twenty pounds, but she could never

lift and/or carry fifty pounds. She had limitations with repetitive

reaching, handling, and fingering, including only being able to

use her hands to grasp, turn, or twist objects 20 percent of the

time with her right hand and 30 percent with her left hand, only

being able to use her fingers for fine manipulation 30 percent of

the time with her right fingers and 35 percent with her left

fingers, and only being able to use her arms for reaching 30

percent of the time with her right arm and 25 percent with her

left arm. Dr. Martens estimated Claimant would be absent from work

once or twice a month as a result of her impairments or treatments.

He indicated Claimant was not a malingerer and it would depend on

the job whether she was physically capable of working an eight-

hour day for five days a week. (Tr. 1266-67).

On the same date, Dr. Martens completed a mental capacity

assessment for Claimant. He found she had a moderate limitation

(defined as intermittent difficulty performing in an area, but

individual can generally perform satisfactorily but not always) in

the areas of understanding and remembering detailed instructions,

carrying out detailed instructions, maintaining attention and

concentration for extended periods, performing activities within

a schedule, maintaining regular attendance, and being punctual

within customary tolerances, completing a normal workday without

interruptions from psychologically based symptoms, performing at

a consistent pace with a standard number and length of rest

periods, and accepting instructions and responding appropriately

to criticism from supervisors. He also determined Claimant had a

marked limitation (defined as a serious limitation in area, and

individual generally cannot perform satisfactorily in the area) in

the area of setting realistic goals or making plans independently

of others. Dr. Martens estimated Claimant likely would have two

absences in an average month. She could manage her own benefits.

(Tr. 1268-70).

The ALJ is required to consider all medical opinions, whether

they come from a treating physician or non-treating source. Doyal

v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003). He must provide

specific, legitimate reasons for rejecting any such opinion, and

also must give consideration to several factors in weighing a

medical opinion. Id. Moreover, “an ALJ must give good reasons for

the weight assigned to a treating physician’s opinion, that are

sufficiently specific to make clear to any subsequent reviewers

the weight the adjudicator gave to the treating source’s medical

opinion and the reason for that weight.” Langley v. Barnhart, 373

F.3d 1116, 1119 (10th Cir. 2004). “As long as the ALJ provides

‘good reasons in his decision for the weight he gave to the . . .

opinion[], [n]othing more [is] required[.]’” Mounts v. Astrue, 479

F. App’x 860, 865 (10th Cir. 2012), quoting Oldham v. Astrue, 509

F.3d 1254, 1258 (10th Cir. 2007).

The ALJ briefly referenced Dr. Martens’ treatment records by

exhibit when determining which of Claimant’s medically

determinable impairments were severe. (Tr. 48-50). Although

initially stating in his decision that there was no opinion from

a treating source, later in his decision, the ALJ referenced Dr.

Martens as Claimant’s treating physician and discussed some of his

findings from the physical RFC questionnaire. The ALJ noted Dr.

Martens found Claimant could sit up to eight hours in a workday

and stand/walk up to one hour in a workday. She could occasionally

lift up to twenty pounds, but never up to fifty pounds. The ALJ

mentioned Dr. Martens’ opinion Claimant could be expected to be

absent one or two times per month.

The ALJ also referenced Dr. Martens’ completion of a mental

RFC assessment, noting Dr. Martens found Claimant had a marked

limitation in her ability to set goals or make plans, but she would

have no more than moderate restrictions in all the other areas of

mental functioning. He then stated that “I find Dr. Martens’

opinion generally, but not wholly, consistent with the

longitudinal record.” Specific to the mental evaluation, he noted

“[C]laimant’s minimal psychiatric treatment and the fact that this

is not Dr. Martens’ specialty area.” The ALJ then determined “I

assign his opinion no more than partial weight. I have accommodated

the [C]laimant’s condition by limiting her to light work activity

with additional mental restrictions.” (Tr. 57).

Regarding the opinions expressed by Dr. Martens on the

physical and mental RFC questionnaire, the ALJ noted Dr. Martens’

opinions were “generally, but not wholly, consistent with the

longitudinal record.” He further discounted his mental opinions

because the opinions were outside Dr. Martens’ area of specialty.

He then assigned “partial” weight to Dr. Martens’ opinions. This

Court finds no error regarding the ALJ’s treatment of Dr. Martens’

mental opinions, as the ALJ provided a “good reason” for assigning

only partial weight to the opinions.

However, by assigning “partial” weight to his opinions

regarding Claimant’s physical limitations, the ALJ’s analysis is

not specific enough for the Court to determine which portions of

Dr. Martens’ opinions were given some weight and which portions

were given little if any weight. See Haga v. Astrue, 482 F.3d 1205,

1208 (10th Cir. 2007) (finding 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”). Although

some of Dr. Martens’ opinions are consistent with the ALJ’s RFC,

several of his limitations are not even mentioned in the ALJ’s

decision, e.g., limitations on Claimant’s use of her hands, arms,

and fingers, Claimant’s need to recline or lie down during the

workday, and her need to shift between positions during the

workday. Here, although it appears the ALJ rejected certain of Dr.

Martens’ opinions outright, the Court will not make this

determination for the ALJ. See Allen v. Barnhart, 357 F.3d 1140,

1142 (10th Cir. 2004) (“Affirming this post hoc effort to salvage

the ALJ’s decision would require us to overstep our institutional

role and usurp essential functions committed in the first instance

to the administrative process.”).

Although the Commissioner is correct that an ALJ is not

required to conduct a factor-by-factor analysis of a treating

physician’s opinion, an ALJ is required to provide “‘good reasons

in his decision for the weight he gave to the . . . opinion[.]’”

Mounts, 479 F. App’x at 865, quoting Oldham v. Astrue, 509 F.3d at

1258. On remand, the ALJ should re-evaluate Dr. Martens’ opinions

and specifically set forth those portions that are given weight

and those portions that are not supported. Because the ALJ’s re-

evaluation of Dr. Martens’ opinions may result in further

limitations in the RFC, the ALJ should reassess his findings at

steps four and five of the sequential process if necessary.

Evaluation of Complaints and Symptoms

Claimant also asserts the ALJ failed to properly evaluate the

consistency of her complaints when determining the RFC. However,

because the ALJ must re-evaluate Dr. Martens’ opinion, and this

may result in changes to the RFC, the Court declines to address

the ALJ’s evaluation of Claimant’s complaints and symptoms at this

time. See Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009)

(“Since the purpose of the [symptom] evaluation is to help the ALJ

access a claimant’s RFC, the ALJ’s [symptom evaluation] and RFC

determinations are inherently intertwined.”).

Step Five Determination

Claimant further argues the ALJ erred in his step-five

determination by relying on the wrong DOT number for the job of

mailroom clerk, as provided by the VE, and then determining that

there were a significant number of jobs in the national economy

based upon the two remaining jobs from the VE. Again, however,

because the Court has determined the ALJ must re-evaluate the

opinions from Dr. Martens, and this may result in a different RFC,

it is also possible the ALJ’s step-five findings may change.

Conclusion

The decision of the Commissioner is not supported by

substantial evidence and the correct legal standards were not

applied. Therefore, this Court finds, in accordance with the fourth

sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of

Social Security Administration should be and is REVERSED and the

case is REMANDED for further proceedings consistent with the

Opinion and Order.

IT IS SO ORDERED this 28th day of September, 2020.

KIMBERLY E. WEST

UNITED STATES MAGISTRATE JUDGE