Swift v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

BRANDON KEITH SWIFT, )

)

Plaintiff, )

v. ) Case No. CIV–22–128–JAR

)

KILO KIJAKAZI, )

Acting Commissioner of the )

Social Security Administration, )

)

Defendant. )

OPINION AND ORDER

Plaintiff Brandon Keith Swift (the “Claimant”) requests judicial review of

the decision of the Commissioner of the Social Security Administration (the

“Commissioner”) denying Claimant’s 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 Claimant 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

impairment or 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

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

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

gainful activity. Step two requires the claimant to establish that he has a

medically severe impairment (or combination of impairments) that significantly

limits his ability to do basic work activities. If the claimant is engaged in

substantial gainful activity, or his impairment is not medically severe, disability

benefits are denied. If he 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, he is

regarded as disabled and awarded benefits without further inquiry. Otherwise,

the evaluation proceeds to step four, where the claimant must show that he lacks

the residual functional capacity (“RFC”) to return to his 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 his age, education,

work experience, and RFC. Disability benefits are denied if the claimant can

return to any of his past relevant work or if his RFC does not preclude alternative

work. See generally Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).

Court may not reweigh the evidence or substitute its discretion for the

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 fifty-one years old at the time of the administrative

hearing. (Tr. 48). He possesses at least a high school education. (Tr. 18). He has

worked as a janitor (Tr. 18). Claimant alleges that he has been unable to work

since August 4, 2019,2 due to limitations resulting from heart disease, right hand

joint issues, possible stroke, back problems, and right knee issues. (Tr. 108).

Procedural History

On August 28, 2019, Claimant protectively filed for disability insurance

benefits pursuant to Title II (42 U.S.C. § 401, et seq.) and for supplemental

security income pursuant to Title XVI (42 U.S.C. § 1381, et seq.) of the Social

Security Act. After an administrative hearing, Administrative Law Eric Weiss

(“ALJ”) issued an unfavorable decision on July 14, 2021. Appeals Council denied

2 Although Claimant alleged a October 1, 2018 date of disability in his initial

application, at the hearing he amended his alleged disability onset date to

August 4, 2019. (Tr. 10).

review, so the ALJ’s written opinion is the Commissioner’s final decision for

purposes of this appeal. See 20 C.F.R. § 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, he retained

the residual functional capacity (“RFC”) to perform light work with limitations.

Error Alleged for Review

Claimant asserts the ALJ committed error in improperly evaluating the

medical opinion evidence of Dr. DeLaughter.

Consideration of Medical Evidence

In his decision, the ALJ determined Claimant suffered from the severe

impairments of hypertensive heart disease, pleurisy, tachycardia, osteoarthritis,

major depressive disorder, and anxiety disorder. (Tr. 13). The ALJ concluded that

Claimant retained the RFC to perform light work. Specifically, the ALJ found that

Claimant can lift, push, and pull twenty pounds occasionally. However, he

frequently can lift and carry as well as push and pull ten pounds. Claimant can

walk and stand or sit for six hours out of an eight-hour workday with normally

scheduled breaks. The ALJ also found that Claimant can frequently stoop,

crouch, kneel, crawl, and climb ramps or stairs, but never can climb ladders,

ropes, or scaffolds. He can occasionally handle and finger with the right

dominant upper extremity. Claimant must avoid concentrated exposure to

extreme cold. The ALJ opined that Claimant can understand, remember, and

carry out detailed but not complex instructions; make commensurate work-

related decisions; and adjust to routine workplace changes. He can also

occasionally interact with supervisors, co-workers, and the public. Claimant can

maintain concentration, persistence, and pace for two hours out of an eight-hour

workday with normally scheduled breaks. (Tr 15).

After consultation with a vocational expert, the ALJ found that Claimant

could perform the representative jobs of school bus monitor, furniture rental

clerk, and counter clerk. (Tr. 19). As a result, the ALJ found Claimant has not

been under a disability from, August 14, 2019, through the date of the decision,

July 14, 2021. (Tr. 19).

Claimant contends that the ALJ did not properly consider and discuss the

medical evidence presented by consultative physician Dr. Harold DeLaughter.

For claims filed on or after March 27, 2017, medical opinions are evaluated

pursuant to 20 C.F.R. §§ 404.1520c and 416.920c. Under these rules, the ALJ

does not “defer or give any specific evidentiary weight, including controlling

weight, to any medical opinion(s)[.]” 20 C.F.R. §§ 404.1520c(a), 416.920c(a).

Instead, the ALJ evaluates the persuasiveness of all medical opinions and prior

administrative medical findings by considering a list of factors. See 20 C.F.R. §§

404.1520c(b), 416.920c(b). The factors are: (i) supportability, (ii) consistency,

(iii) relationship with the claimant (including length of treatment relationship,

frequency of examinations, purpose and extent of treatment relationship, and

examining relationship), (iv) specialization, and (v) other factors that tend to

support or contradict a medical opinion or prior administrative finding

(including, but not limited to, “evidence showing a medical source has familiarity

with the other evidence in the claim or an understanding of our disability

program’s policies and evidentiary requirements.” 20 C.F.R. §§ 404.1520c(c),

416.920c(c). Generally, the ALJ is not required to explain how the other factors

were considered. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). However,

when the ALJ finds that two or more medical opinions or prior administrative

findings on the same issue are equally well-supported and consistent with the

record but are not exactly the same, the ALJ must explain how “the other most

persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R.

§§ 404.1520c(b)(3), 416.920c(b)(3).

Supportability and consistency are the most important factors in

evaluating the persuasiveness of a medical opinion and the ALJ must explain

how both factors were considered. See 20 C.F.R. §§ 404.1520c(b)(2),

416.920c(b)(2). The supportability factor examines how well a medical source

supported their own opinion with “objective medical evidence” and “supporting

explanations.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). The consistency

factor calls for a comparison between the medical opinion and “the evidence from

other medical sources and nonmedical sources” in the record. 20 C.F.R. §§

404.1520c(c)(2), 416.920c(c)(2).

An ALJ continues to have the duty to evaluate every medical opinion in

the record regardless of its source. Hamlin v. Barnhart, 365 F.3d 1208, 1215

(10th Cir. 2004). He may not “pick and choose among medical reports, using

portions of evidence favorable to his position while ignoring other evidence.”

Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004); see also 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”). If he rejects an opinion

completely, the ALJ must give “specific, legitimate reasons” for doing so. Watkins

v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal citations omitted).

Here, the ALJ found the opinion of consultative physician, Dr. Harold

DeLaughter to have “limited persuasiveness because the examination and the

generally normal examination throughout the record during the period at issue

do not support the extent of the limitations.” (Tr. 17). Specifically, the ALJ

disagreed with Dr. DeLaughter’s finding that Claimant is only able to stand or

walk for only twenty minutes at a time and to stand or walk for a total of one

hour out of an eight-hour workday. The ALJ stated that “[t]he examination was

generally normal except for an antalgic gait but the claimant was able to

ambulate with a stable gait without an assistive device.” (Tr. 17). In the ALJ’s

preceding summary of the medical evidence the ALJ stated that Dr. DeLaughter’s

examination “confirmed that the claimant had normal strength in all four

extremities.”

However, both of these assertions ignore other findings within Dr.

DeLaughter’s report. The ALJ ignored Dr. DeLaughter’s adverse findings and

instead picked his way through Dr. DeLaughter’s report in order to make a

finding of nondisability. Dr. DeLaughter specifically found that Claimant had

weak heel walking in his right leg and limited flexion in his right knee. (Tr. 632,

635). This evidence was the basis for which Dr. DeLaughter concluded Claimant

had major limitations on his ability to walk and stand. But, without addressing

this evidence, the ALJ generalized Dr. DeLaughter’s report as “generally normal”

and used the sole finding that Claimant did not require a cane as his basis for

rejecting Dr. Delaughter’s walking limitations.

In an effort to discredit Dr. DeLaughter’s opinion evidence, the ALJ cited

to a broad number of records that did not relate to Claimant’s orthopedic

problems but rather records pertaining to Claimant’s other impairments. Despite

the ALJ’s failure to point out any records that contradicted Dr. DeLaughter’s

consultative evaluation, he nonetheless characterized Dr. DeLaughter’s opinion

as having “limited persuasiveness.”

Given the ALJ’s extremely vague summary of Claimant’s expansive

medical history, this Court cannot be assured that the ALJ’s decision was guided

by the objective medical evidence rather than his own personal opinion and

medical knowledge. Clearly, an ALJ cannot substitute his own medical opinion

for that of a medical professional. Miller v. Chater, 99 F.3d 972, 977 (10th Cir.

1996). In rejecting Dr. DeLaughter’s conclusions it is clear to this Court that the

ALJ substituted is own medical opinion for that of a qualified medical

professional. On remand, the ALJ shall provide specific, legitimate reasons for

rejecting Dr. DeLaughter’s medical opinion evidence.

Conclusion

The decision of the Commissioner is not supported by substantial evidence

and the correct legal standards were not applied. Therefore, the Magistrate Judge

finds for the above and foregoing reasons, the ruling of the Commissioner of

Social Security Administration should be and is REVERSED and the case be

REMANDED for further proceedings.

DATED this 20th day of September, 2023.

________________________________________

JASON A. ROBERTSON

UNITED STATES MAGISTRATE JUDGE