Bryant v. Social Security Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

SCOTT A. B., )

)

Plaintiff, )

)

v. ) Case No. 21-CV-558-CDL

)

KILOLO KIJAKAZI, )

Acting Commissioner of the )

Social Security Administration, )

)

Defendant. )

OPINION AND ORDER

Plaintiff seeks judicial review of a decision of the Commissioner of the Social

Security Administration (Commissioner) denying Social Security disability benefits. The

parties have consented to proceed before a United States Magistrate Judge in accordance

with 28 U.S.C. § 636(c)(1), (2). For the reasons set forth below, the Court reverses the

Commissioner’s decision denying benefits and remands the case for further proceedings.

I. Standard of Review

The Social Security Act (the Act) provides disability insurance benefits to

qualifying individuals who have a physical or mental disability. See 42 U.S.C. § 423. The

Act defines “disability” as an “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.” See 42 U.S.C. § 423(d)(1)(A).

Judicial review of a Commissioner’s disability determination “‘is limited to

determining whether the Commissioner applied the correct legal standards and whether the

agency’s factual findings are supported by substantial evidence.’” Noreja v. Soc. Sec.

Comm’r, 952 F.3d 1172, 1177 (10th Cir. 2020) (citing Knight ex rel. P.K. v. Colvin, 756

F.3d 1171, 1175 (10th Cir. 2014)). “Substantial evidence is more than a mere scintilla and

is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. at 1178 (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.

2005)); see also Biestek v. Berryhill, --- U.S. ---, 139 S. Ct. 1148, 1154 (2019). “Evidence

is not substantial if it is overwhelmed by other evidence in the record or constitutes mere

conclusion.” Noreja, 952 F.3d at 1178 (quoting Grogan, 399 F.3d at 1261-62).

So long as supported by substantial evidence, the agency’s factual findings are

“conclusive.” Biestek, 139 S. Ct. at 1152 (quoting 42 U.S.C. § 405(g)). Thus, the court may

not reweigh the evidence or substitute its judgment for that of the agency. Noreja, 952 F.3d

at 1178.

II. Background and Procedural History

The plaintiff filed a Title II application for disability insurance benefits on January

25, 2019 and a Title XVI application for supplemental security income on September 11,

2019. (R. 13). He alleged a disability onset date of January 25, 2019. See id. The plaintiff

alleged disability due to type 1 diabetes; neuropathy in the legs, feet, and hands; congestive

heart failure; kidney disease; severe edema; and degenerative bone disease. (R. 57-58). He

was 43 years old on the alleged onset date. (R. 57). The plaintiff has past work at a heavy

exertion level as an apartment maintenance worker. (R. 71).

The plaintiff’s application was denied on initial review. (See R. 57-76). On

reconsideration, the Commissioner found the plaintiff was eligible for benefits under both

Title II and Title XVI as of February 23, 2020. (R. 13; see R. 80-115). However, the agency

denied benefits with respect to the period from January 25, 2019 to February 22, 2020. The

plaintiff requested review of the agency’s decision regarding the earlier period. (See R. 39,

139). An Administrative Law Judge (ALJ) held a hearing via telephone on April 19, 2021.

(R. 13). The plaintiff and a vocational expert (VE) provided testimony. (R. 35-52). In a

decision dated May 5, 2021, the ALJ found the plaintiff was disabled beginning on

February 23, 2020, but not before then. (R. 24-25). The Appeals Council issued a decision

on October 20, 2021 denying the plaintiff’s request for review of the ALJ’s decision. (R.

1-6). Following the Appeals Council’s denial, the plaintiff timely filed a Complaint in this

Court. (See Doc. 2). Accordingly, the Court has jurisdiction to review the ALJ’s May 5,

2021 decision under 42 U.S.C. § 405(g).

III. The ALJ’s Decision

The Commissioner uses a five-step, sequential process to determine whether a

claimant is disabled and, therefore, entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(i)-

(v). A finding that the claimant is disabled or is not disabled at any step ends the analysis.

See id.; see also Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Williams v.

Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). The claimant bears the burden on steps one

through four. Lax, 489 F.3d at 1084.

At step one, the claimant must demonstrate that he is not engaged in any substantial

gainful activity. See Lax, 489 F.3d at 1084. Here, the ALJ determined the plaintiff has not

engaged in substantial gainful activity since the alleged onset date of January 25, 2019. (R.

15-16).

At step two, the claimant must establish an impairment or combination of impairments

that is severe. See Lax, 489 F.3d at 1084. Here, the ALJ determined that since the alleged

onset date of January 25, 2019, the plaintiff has severe impairments of chronic kidney

disease, diabetes mellitus, degenerative disc disease, congestive heart failure, and

hypertension. (R. 16).

At step three, the ALJ determines whether the claimant’s severe impairment or

impairments is equivalent to one that is listed in Appendix 1 of the regulation, which the

Commissioner “acknowledges are so severe as to preclude substantial gainful activity.”

Williams, 844 F.2d at 751 (internal quotation and citation omitted); see 20 C.F.R. §§

404.1520(d); 20 C.F.R. Part 404, subpt. P, app’x 1 (Listings). Here, the ALJ found that,

prior to February 23, 2020, the plaintiff’s physical and mental impairments did not meet or

equal the criteria for any Listing, specifically noting Listings under Sections 1.00

(musculoskeletal system), 4.00 (cardiovascular system), 6.00 (genitourinary disorders),

and 11.00 (neurological disorders). (R. 16).

However, beginning on February 23, 2020, the severity of the plaintiff’s

impairments met the criteria of Listing 6.03 (pertaining to chronic kidney disease, with

chronic hemodialysis or peritoneal dialysis). (R. 25). The ALJ found persuasive the opinion

on reconsideration by state agency medical consultant Evette Budrich, M.D., and Dr.

Budrich’s finding that the evidence established end-stage renal disease requiring dialysis

as of February 23, 2020. (R. 25-26).

At step four, the claimant must show that his impairment or combination of

impairments prevents him from performing work he has performed in the past. The ALJ

first determines the claimant’s residual functional capacity (RFC) based on all the relevant

medical and other evidence. 20 C.F.R. § 404.1520(e); see also Winfrey v. Chater, 92 F.3d

1017, 1023 (10th Cir. 1996). The ALJ next determines the physical and mental demands

of the claimant’s past relevant work. Winfrey, 92 F.3d at 1023. Finally, the ALJ determines

whether the RFC from phase one allows the claimant to meet the job demands found in

phase two. Id.

Here, the ALJ determined that prior to February 23, 2020, the plaintiff had the RFC

to lift or carry, push or pull twenty pounds occasionally and ten

pounds frequently. The [plaintiff] could sit for six hours out of an

eight hour day, and stand or walk a combined total of two hours out

of an eight-hour day. The [plaintiff] could occasionally climb ramps

or stairs, but should have avoided climbing ladders, ropes, or

scaffolds. The [plaintiff] could occasionally balance, kneel, stoop,

crouch, and crawl.

(R. 14-15). In explaining the RFC determination, the ALJ noted subjective statements in

the record, objective medical evidence, and the Commissioner’s administrative findings on

initial review and reconsideration.

Citing the VE’s testimony, the ALJ found that the plaintiff could not perform his

past relevant work. (R. 23-24). However, the ALJ found that, prior to February 23, 2020,

the plaintiff could perform alternative jobs existing in significant numbers in the national

economy, including clerical mailer (sedentary exertion, unskilled, specific vocational

preparation (SVP) level 2, DOT # 209.587-010, 16,000 jobs nationally); nut sorter

(sedentary, unskilled, SVP 2, DOT # 521.687-086, 10,700 jobs nationally); and document

preparer (sedentary, unskilled, SVP 2, DOT # 249.587-018, 19,000 jobs nationally). (R.

24-25). As such, the ALJ found at step five that the plaintiff was not disabled during the

period from January 25, 2019 until February 23, 2020.

IV. Discussion

As noted supra, the Commissioner assessed the plaintiff as meeting Listing 6.03 as

of February 23, 2020, when he began receiving kidney dialysis. However, the ALJ found

that from his alleged onset date of January 25, 2019 until then, the plaintiff retained an

RFC for sedentary work with certain postural limitations.

The plaintiff points to record evidence that he was hospitalized for various

impairments throughout that time period. The plaintiff testified that he was fired as a result

of his hospitalizations and limitations from his impairments. He contends that the ALJ

failed to apply the proper legal framework in reaching the RFC determination for the period

prior to February 23, 2020 and in finding that the plaintiff could have performed substantial

gainful activity during that period.

The record contains evidence of multiple periods of hospitalization, many lasting

several days, throughout the period in question. Indeed, the ALJ’s decision recounts

evidence of at least half a dozen hospitalizations and/or periods of in-patient acute care

treatment throughout 2019. As set forth in the ALJ’s decision, on January 25, 2019, the

plaintiff was admitted to St. Francis Hospital with “an acute kidney injury and

hyperglycemic crisis.” (R. 18). Chest imaging showed “multiple irregular masses . . . in

addition to pleural effusion,” and transudate fluid was observed. Id. Lab work revealed

infective endocarditis, and the plaintiff was transferred to a long-term acute care facility

for intravenous antibiotics.

After a period of hospitalization and in-patient acute care treatment, the plaintiff

tried to return to work, according to his hearing testimony. However, the plaintiff testified

that shortly thereafter, he was let go as a result of limitations arising from his impairments.

(R. 45; see R. 20). Following a course of in-patient treatment that ended in March 2019,

the plaintiff attended follow-up appointments with his primary care physician and

established treatment with a cardiologist. (R. 19).

In July 2019, the plaintiff was admitted to a hospital for “acute kidney injury,

chronic kidney disease stage III, hypertension and history of chronic diastolic congestive

heart failure.” Id. His treating providers further noted “severe protein-calorie malnutrition

related to unintentional weight loss evidenced by an 8.4 percent weight loss in one month,

moderate muscle wasting[,] and decreased functional status.” Id. After being discharged,

the plaintiff continued to attend follow-up appointments with his primary care physician

and cardiologist. (R. 20).

In August 2019, the plaintiff presented to the emergency room with edema and fluid

overload. He was treated in-patient for eight days until his swelling and his acute kidney

injury improved and he felt stronger. (R. 791). His treating providers noted that he had

“generalized malaise[,] probably due to kidney disease.” (R. 20).

A few days later, the plaintiff returned to the hospital with nausea, vomiting, and

diarrhea, potentially related to recent medication changes. He “appeared chronically ill but

nontoxic” on admission. Id. The plaintiff reported compliance with his medication,

although “he later admitted taking diuretics once a day instead of twice a day.” Id. After

reviewing lab test results, a clinician noted “evidence of improved congestive heart failure,

suggesting he no longer needed diuretics.” Id. The ALJ found no evidence that the plaintiff

followed up with a cardiologist as instructed during his August 2019 hospitalization. (R.

22).

In November 2019, the plaintiff returned to the hospital “in acute renal failure,

hyperglycemic and in mild ketoacidosis.” Id. According to the ALJ’s decision, “[e]vidence

suggested non-compliance with hypertension and diabetes medication.” Id. The plaintiff

was given an intravenous calcium channel blocker for uncontrolled hypertension. Id. After

lab work revealed an elevated A1C of 11.2, he was provided with “extensive education on

diet and management of diabetes.” Id.

He followed up with his primary care provider the following week, who noted

elevated blood pressure but otherwise unremarkable findings. Id. However, later in

November, the plaintiff was again admitted for stroke-like symptoms, including

hypertensive urgency, nausea, headache, and vomiting. (R. 21). He was observed to be

“obviously uncomfortable” in the emergency room and had trace weakness of the left arm

on grip strength and elbow extension. Id. The plaintiff was discharged, but was noted to be

at “a high risk for readmission.” Id.

In December 2019, the plaintiff was again hospitalized for hypertensive urgency

and other symptoms. Id. His systolic blood pressure was over 200, and he was put on an

intravenous calcium channel blocker and began oral medications. The plaintiff was

discharged after two days with improved blood pressure and assessment of stage IV chronic

kidney disease. Id.

In assessing the intensity and persistence of a claimant’s pain, an ALJ must

consider: “(1) whether the claimant established a pain-producing impairment by objective

medical evidence; (2) if so, whether the impairment is reasonably expected to produce

some pain of the sort alleged (what we term a ‘loose nexus’); and (3) if so, whether

considering all the evidence, both objective and subjective, the claimant’s pain was in fact

disabling.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012) (citing Luna

v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987)).1

1 While the Commissioner now describes the analysis as involving a two-step

process, the current regulatory policy generally comports with the approach as outlined in

previous cases, including Luna and Keyes-Zachary. See Paulek v. Colvin, 662 F. App’x

588, 593-94 (10th Cir. 2016) (unpublished). (Under 10th Cir. R. 32.1(A), “[u]npublished

decisions are not precedential, but may be cited for their persuasive value.”).

In evaluating pain, the Commissioner considers factors including:

(i) [The claimant’s] daily activities;

(ii) The location, duration, frequency, and intensity of . . . pain or other

symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any

medication [the claimant] take[s] or ha[s] taken to alleviate . . . pain

or other symptoms;

(v) Treatment, other than medication, [the claimant] receive[s] or

ha[s] received for relief of . . . pain or other symptoms;

(vi) Any measures [the claimant] use[s] or ha[s] used to relieve . . .

pain or other symptoms (e.g., lying flat on your back, standing for 15

to 20 minutes every hour, sleeping on a board, etc.); and

(vii) Other factors concerning [the claimant’s] functional limitations

and restrictions due to pain or other symptoms.

20 C.F.R. §§ 404.1529(c), 416.929(c); see also Keyes-Zachary, 695 F.3d at 1167; Branum

v. Barnhart, 385 F.3d 1268, 1273-74 (10th Cir. 2004) (quoting Hargis v. Sullivan, 945 F.2d

1482, 1489 (10th Cir. 1991)) (describing several similar factors which should be analyzed).

Consistency determinations “are peculiarly the province of the finder of fact.”

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995); see also White v. Barnhart, 287 F.3d

903, 910 (10th Cir. 2001) (ALJ’s evaluation of symptom allegations “warrant particular

deference”). However, the ALJ must explain “the link between the evidence and”

consistency determination. Kepler, 68 F.3d at 391; see also 20 C.F.R. § 404.1529 (ALJ

must provide “specific reasons . . . supported by the evidence in the case record”).

Here, the ALJ’s decision acknowledged that,

[a]s of January 2019, [the plaintiff] described difficulty with

activities of daily living. Swelling in his legs made it difficult to walk

and impossible to go down stairs. He could get up and brush his

teeth, but could not do much else.

. . .

[The plaintiff] testified that he had not driven in five weeks due to

an injury to his leg and back. Previously, he denied driving in 2019.

He was living with family. He used to enjoy working with plastic

models but the neuropathy in his hands prevented that activity

(R. 18). The ALJ’s decision noted evidence that, on various occasions, the plaintiff did not

fully follow his prescribed treatment, which included prescription medications, weight

monitoring, and diet. The decision stated that,

[w]hile the record reveals a history of lumbar degenerative disc

disease and multiple inpatient hospitalizations for serious illnesses

related to the claimant’s diabetes, kidney disease, hypertension and

congestive heart failure, the record also contains evidence of non-

compliance.

(R. 18). The ALJ’s decision concluded that the plaintiff’s subjective complaints were not

fully supported by the record for the period prior to February 23, 2020. Id.

The decision also noted that evidence indicated amphetamines and cannabis usage

when the plaintiff was admitted to the hospital in January 2019, and that prior records from

pain management showed that he had tested positive for amphetamines in August 2018.

(R. 21). Discounting the plaintiff’s testimony that his congestive heart failure caused

swelling in his feet and fatigue requiring him to lie down about half the day, the ALJ noted

instances of non-compliance with treatment recommendations, noting that a “recent urine

drug screen was negative [for] amphetamines,” but that the plaintiff “was found with a

substance, which [he] apparently was going to sniff.” (R. 22).

Under Social Security Ruling (SSR) 16-3p, the ALJ may consider a claimant’s

failure to follow prescribed treatment, among other factors, in evaluating the consistency

of complaints. However, the ruling provides that the Commissioner “will not find an

individual’s symptoms inconsistent with the evidence in the record on this basis without

considering possible reasons he or she may not comply with treatment or seek treatment

consistent with the degree of his or her complaints.” SSR 16-3p.2 Toward that end, the

Commissioner “may need to contact the individual regarding the lack of treatment or, at an

administrative proceeding, ask why he or she has not complied with or sought treatment in

a manner consistent with his or her complaints.” Id. Possible reasons an ALJ should

2 The plaintiff’s briefing argues that the ALJ was required to follow SSR 18-3p. As

the Commissioner correctly notes in its response, SSR 18-3p applies only when an ALJ

has determined a claimant has a disabling impairment but finds that benefits should be

denied because the claimant has refused to follow prescribed treatment. As such, SSR 18-

3p does not govern the ALJ’s decision here. Nonetheless, the Court finds that plaintiff has

not waived the issues discussed herein, as the plaintiff’s briefing argued that the ALJ failed

to assess whether the plaintiff had good cause for not following the prescribed treatment.

consider include, for example, that the claimant cannot afford treatment and lack access to

free or low-cost medical services, the claimant experiences side effects that are less

tolerable than the symptoms being treated with medication, or due to mental limitations,

the claimant may not understand the need for consistent treatment. Id.

Here, while the ALJ’s decision focused extensively on evidence of noncompliance

with various treatment recommendations, the decision utterly failed to address the

plaintiff’s reasons for any alleged non-compliance. Nor did the ALJ attempt to develop the

record by inquiring as to the plaintiff’s reasons, despite having the opportunity to take the

plaintiff’s testimony at the hearing. Moreover, the ALJ’s decision did not explain why

evidence of some instances of non-compliance outweighed evidence that, in other

instances, the plaintiff attended recommended follow-up and specialized medical

appointments and/or was compliant with his prescribed medications. See SSR 16-3p, at *9

(“Persistent attempts to obtain relief of symptoms, such as increasing dosages and changing

medications, trying a variety of treatments, referrals to specialists, or changing treatment

sources may be an indication that an individual’s symptoms are a source of distress and

may show that they are intense and persistent.”).

As such, the decision did not adequately explain why the ALJ discounted the

plaintiff’s subjective statements. Rather, the ALJ’s consistency determination appears to

be an improper “conclusion in the guise of findings.” Wilson v. Astrue, 602 F.3d 1136,

1144 (10th Cir. 2010) (quotation omitted). This error warrants remand for the ALJ to

reconsider his consistency determination and provide “specific reasons for the weight given

to the [plaintiff’s] symptoms” that are “consistent with and supported by the evidence, and

... Clearly articulated so the individual and any subsequent reviewer can assess how the

adjudicator evaluated the individual’s symptoms.” SSR 16-3p at *10; see also White v.

Barnhart, 287 F.3d 903, 908 (10th Cir. 2001); Kepler v. Chater, 68 F.3d 387, 390-91 (10th

Cir. 1995).

On remand, the ALJ should specifically consider evidence of the plaintiff's alleged

reasons for not following or only partially following all of his treatment regimen

throughout the period in question. The ALJ should develop the record further as to these

reasons, if appropriate, and should review and re-evaluate the entire record in light of such

reasons. Finally, consistent with SSR 16-3p, must adequately “explain how [he] considered

the [claimant’s] reasons in [his] evaluation of... symptoms,” considering the record as a

whole. /d.

V. Conclusion

For the reasons set forth above, the Court finds the ALJ’s RFC determination is

legally erroneous and is not supported by substantial evidence. Therefore, the decision of

the Commissioner finding Plaintiff not disabled for the relevant period is reversed and

remanded for further proceedings consistent with this opinion.

ORDERED this 30th day of March, 2023.

Unrietee 2 tiklee

Christine D. Little

United States Magistrate Judge

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