# Brown v. Social Security Administration

> District Court, E.D. Oklahoma · September 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10385185

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** September 28, 2020
- **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/10385185

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10385185. Public record. Not legal advice.