Latham v. Social Security Administration

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OKLAHOMA

JACQUELINE M. L. )

)

Plaintiff, )

)

v. ) Case No. 21-CV-400-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. Procedural History

The plaintiff filed an application for social security disability benefits and

supplemental social security income on June 24, 2019. (R. 59). The plaintiff alleged

disability due to bipolar disorder and an “alternate [sense] of reality.” (R. 60). She was

thirty-eight years old on the alleged onset date of June 1, 2019. The plaintiff has a ninth-

grade education and has past work as a housekeeper and an inventory counter. (R. 62, 84).

The Commissioner denied the plaintiff’s application on initial review and on

reconsideration. The plaintiff then requested a hearing before an Administrative Law Judge

(ALJ). The ALJ held a telephone hearing on November 30, 2020. Testimony was given by

the plaintiff and a Vocational Expert (VE). On December 14, 2020, the ALJ issued a

decision denying disability benefits. (R. 22). On July 27, 2021, the Appeals Council denied

the plaintiff’s request for review, which rendered the ALJ’s decision the agency’s final

decision. (R. 1). Accordingly, the Court has jurisdiction to review the ALJ’s December 14,

2020 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. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step

one, the ALJ determines whether the claimant is engaged in substantial gainful activity. At

step two, the ALJ determines whether the claimant has an impairment or a combination of

impairments that is severe. At step three, the ALJ determines whether the claimant’s severe

impairment or combination of impairments is equivalent to one that is listed in the

applicable regulation, which the Commissioner “acknowledges are so severe as to preclude

substantial gainful activity.” Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)

(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). At step four, the claimant must show that her impairment or

combination of impairments prevents her from performing her previous work.

The claimant bears the burden on steps one through four. Lax v. Astrue, 489 F.3d

1080, 1084. If the claimant satisfies this burden, thus establishing a prima facie case of

disability, the burden of proof shifts to the Commissioner to show at step five that the

claimant retains the capacity to perform other work available in the national economy, in

light of the claimant’s age, education, and work experience. Id.

Here, the ALJ determined at step one that the plaintiff has not engaged in substantial

gainful activity since June 24, 2019. (R. 24). At step two, the ALJ determined that the

plaintiff has the following severe impairments: bipolar disorder, generalized anxiety

disorder, degenerative disc disease, congenital fusion at C-2 and C-3, cervical

radiculopathy, and right carpal tunnel syndrome. (R. 25). At step three, the ALJ found that

the plaintiff’s physical and mental impairments do not meet or equal the criteria for any

Listing. Id. The ALJ specifically noted the plaintiff’s physical impairments in connection

with Listing 1.04 (pertaining to disorders of the spine) and Listing 11.02 (pertaining to

epilepsy). Id.

With regard to mental impairments, the ALJ found that the plaintiff’s impairments

do not meet or medically equal the criteria of Listings 12.04 (Depressive, bipolar, and

related disorders), and 12.06 (Anxiety and obsessive-compulsive disorders). Id. The ALJ

discussed application of the “paragraph B” criteria—four areas of mental functioning used

to determine whether a claimant’s mental impairments functionally equal a listing. (R. 19-

22; see 20 C.F.R. § 404 Subpt. P App’x 1). To satisfy the paragraph B criteria, a claimant’s

mental impairments must result in at least one extreme or two marked limitations in four

areas of functioning. 20 C.F.R. § 404 Subpt. P App’x 1. A marked limitation means that the

claimant’s functioning in the area independently, appropriately, effectively, and on a

sustained basis is seriously limited. Id. An extreme limitation means the inability to function

independently, appropriately, or effectively, and on a sustained basis. Id.

Here, the ALJ found that the plaintiff has a moderate limitation in each of the four

paragraph B domains: understanding, remembering, or applying information; interacting

with others; concentrating, persisting, or maintaining pace; and adapting or managing

oneself. (R. 25-26). Because the plaintiff does not have at least one extreme or two or more

marked limitations, her mental impairments do not meet or medically equal the criteria of

the Listings. (R. 26). Finally, the ALJ also addressed the “paragraph C” criteria for “serious

and persistent mental disorders,” see Listing 12.00A(2)(c), and determined that they are not

satisfied. Id. In accordance with these findings, the ALJ proceeded to step four.

At step four, the ALJ determined that the plaintiff has the RFC

to lift and/or carry 10 pounds frequently and 20 pounds

occasionally; stand and/or walk for 6 hours in an 8-hour

workday; and sit for 6 hours in an 8–hour workday (Light work

is defined in 20 CFR 416.967(b)) except no climbing ladders,

ropes, or scaffolds, or exposure to unprotected heights;

occasional stooping, kneeling, crouching, and crawling, and

climbing ramps or stairs; frequent grasping, handling and fine

motor manipulation with the right upper extremity; and no

limitation on the left. She is limited to a reasoning level of 2 as

defined by Appendix C of the DOT, which is apply

commonsense understanding to carry out detailed but

uninvolved written or oral instructions; and deal with problems

involving a few concrete variables in or from standardized

situations. She is limited to occasional contact with coworkers

and supervisors, no contact with the general public, working

with things rather than people, no strict productions[sic]

standards such as fast-paced assembly line work or poultry

processing.

Id. In making this finding, the ALJ “considered all symptoms and the extent to which these

symptoms can reasonably be accepted as consistent with the objective medical evidence

and other evidence, based on the requirements of 20 C.F.R. §§ 404.1529 and 416.929 and

SSR 16-3p.” (R. 27). The ALJ also considered “medical opinion(s) and prior

administrative medical finding(s) in accordance with the requirements of 20 C.F.R. §

404.1520c and 416.920c.” Id.

The ALJ did not consider the transferability of job skills because the plaintiff does

not have past relevant work to consider pursuant to 20 CFR 416.968. (R. 30). Accordingly,

the ALJ proceeded to step five. Based on the VE’s testimony as to a hypothetical person

with the plaintiff’s age, education, work experience, and RFC, the ALJ found that the

plaintiff can perform the requirements of representative occupations, including:

Small product assembler, SVP level 2, DOT # 706.684-022, with 95,000

jobs existing in the national economy;

Hand packer, light exertion, unskilled, SVP level 2, DOT # 559.687-074,

with 110,000 jobs existing in the national economy; and

Bakery racker, light exertion, unskilled, SVP 1, DOT # 524.687-018, with

59,419 jobs existing in the national economy.

(R. 31). Accordingly, the ALJ concluded at step five that Plaintiff is not disabled. Id.

IV. Discussion

The plaintiff argues two errors: (1) the ALJ’s physical RFC determination is

unsupported by the substantial evidence as he minimized or ignored the plaintiff’s

impairments, and (2) the ALJ erred at Step Five of the sequential evaluation process by

adopting a job that is precluded by the determined physical RFC. The Commissioner

contends that the ALJ’s RFC determination “accounted for all of the plaintiff’s limitations

and was supported by substantial evidence,” and that any error at step five was harmless.

(Commissioner’s Br., Doc. 17 at 3).

A. RFC Determination

The plaintiff argues that the ALJ selectively ignored relevant evidence in the record

concerning the plaintiff’s physical impairments. The plaintiff’s brief cites her complaints

of neck and back pain, difficulty gripping and holding things with her right hand, numbness

and tingling in her right hand, alleged seizures and tremors in her arms, headaches,

hallucinations, and mood swings.

In response, the Commissioner contends that the ALJ cited substantial evidence in

support of her RFC determination. The Commissioner’s brief points to various physical

and mental examination findings of normal strength, motor function, and mental status.

The Commissioner also argues that the ALJ reasonably relied on the plaintiff’s self-

reported activities, including that she is able to do yardwork, clean the house, care for

herself, and engage in hobbies such as puzzles and coloring.

The Court notes that the plaintiff’s brief addresses this argument largely in general,

broad terms, rather than tying her argument to specific evidence in the record. Additionally,

the plaintiff’s brief confusingly combines its discussion of the plaintiff’s physical

complaints with her mental limitations, often without clearly explaining how the plaintiff

is more limited than the physical and mental RFC determination. As such, the Court will

not attempt to guess as to the plaintiff’s grounds for objection or to “scour [the] evidentiary

record for every conceivable error.” Womack v. Astrue, No. CIV-07-167-W, 2008 WL

2486524 (W.D. Okla. June 19, 2008) (citing Malacara v. Garber, 353 F.3d 393, 405 (5th

Cir. 2003) (in turn, citing U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). However, the

Court may not “abdicate its traditional judicial function, nor escape its duty to scrutinize

the record as a whole to determine whether the conclusions reached are reasonable, and

whether the hearing examiner applied correct legal standards to the evidence.” Id. (citing

Bridges v. Gardner, 368 F.2d 86, 90 (5th Cir. 1966) and other cases).

The plaintiff does specifically challenge the RFC finding as to manipulative

limitations arising from her right carpal tunnel syndrome and cervical radiculopathy. In

assessing a claimant’s complaints of pain and other symptoms, 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;

The plaintiff complained of weakness, tingling, and numbness in her right hand.

Medical evidence in the record shows that in November 2019, the plaintiff was seen for

neck and bilateral arm pain and numbness in her right hand. On physical examination, she

had positive results on a Spurling’s test, Phalen’s test, and Tinel’s test in the right wrist.

(R. 28; see R. 322-323). Sensory deficit in the right index finger was also noted. (R. 323).

The plaintiff underwent imaging in January 2020 that revealed “a mild right carpal tunnel

syndrome (median nerve entrapment at wrist) affecting sensory components.” (R. 373). On

January 17, 2020, the plaintiff again had positive Phalen’s and Tinel’s signs, this time

bilaterally, as well as positive straight leg raising. (R. 29).

A neurologist, Jay Kevin Johnson, D.O., examined the plaintiff in January 2020. Dr.

Johnson noted that the plaintiff alleged a tremor in her arms and observed that “she

certainly has what looks like exaggerated physiologic tremor.” (R. 352). The plaintiff

reported experiencing weakness and numbness in her right hand for the last two to three

years. Dr. Johnson noted the EMG image showing “median neuropathy at the wrist, carpal

tunnel syndrome, mild, on the right,” which he believed “might explain some of her

symptoms.” (R. 352-354). He did not see “any other nerve issues.” (R. 352).

(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).

The ALJ’s decision acknowledged that the plaintiff has multilevel degenerative disc

disease, cervical radiculopathy, and right carpal tunnel syndrome. (See, e.g., R. 29). At the

hearing, the plaintiff testified that she cannot feel her right index finger, loses her grip with

her right hand, and cannot lift a gallon of milk without using both hands. (R. 27). In the

RFC determination, the ALJ assessed a limitation to frequent use of the right hand for

grasping, handling, and fine motor manipulation. However, he found that no additional

manipulative restrictions were warranted, explaining that (1) plaintiff’s EMG test

“revealed only mild right carpal tunnel syndrome,” (2) the plaintiff shortly thereafter

traveled to Ohio to visit family, (3) the plaintiff had a positive drug screen on January 14,

2020 “and admitted to the occasional use of Norco and marijuana for pain,” and (4) the

plaintiff’s treating physicians “did not place any functional restrictions on her activities

that would preclude light work activity with the [RFC] restrictions.” (R. 30).

The ALJ’s decision discussed some of the medical evidence relevant to the

plaintiff’s carpal tunnel and back and neck pain, as noted above. However, the record

includes additional evidence relevant to her alleged manipulative limitations—for

example, medical evidence relating to the treatment and prognoses for these conditions.

For example, the plaintiff told Dr. Johnson that she had tried wearing wrist splints for six

months but that it hadn’t helped. (R. 352). Dr. Johnson advised that “if indeed she’s used

[a] wrist splint without benefit[,] consideration for a carpal tunnel release could be given.”

(R. 354). Another physician related the plaintiff’s report of numbness and tingling in both

hands and that she was “following up with orthopedics for possible surgery.” (R. 362; see

also R. 367, 371).

The ALJ also appears to have discounted the plaintiff’s complaints of numbness and

weakness in the right hand. However, the ALJ’s decision failed to acknowledge evidence

in the record that supports the plaintiff’s complaints of sensory deficits in the right hand.

(See R. 373 (imaging showed mild right carpal tunnel syndrome affecting sensory

components (emphasis added); R. 352 (noting the plaintiff’s complaints of weakness and

numbness, and citing evidence of median neuropathy at the wrist); R. 370 (noting “positive

for numbness and headaches”)).2

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”). Although

an ALJ is not required to discuss every piece of evidence, he must consider the entire record

and “must discuss the uncontroverted evidence he chooses not to rely upon, as well as

significantly probative evidence he rejects.” Mays v. Colvin, 739 F.3d 569, 576 (10th Cir.

2014) (quoting Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)).

2 Although the ALJ did not discuss these portions of the record, during the hearing

the ALJ questioned whether the record includes anything “like an EMG of the upper

extremities to support the neuropathy . . . of the right arm she’s talked about?” (R. 51).

Apparently overlooking the plaintiff’s January 2020 imaging records, her attorney stated

that he “didn’t see one of those.” Id.

Because the ALJ did not address all of the relevant medical evidence relevant to the

plaintiff’s manipulative limitations, such as to possible treatments and measures taken to

alleviate her symptoms, it is not clear whether the ALJ considered the record as a whole.

As such, the ALJ’s decision also did not adequately explain why he discounted the

plaintiff’s complaints regarding manipulative limitations and pain from her physical

impairments. Remand is therefore necessary for further consideration of the record as to

the plaintiff’s manipulative limitations.3 Should the ALJ on remand determine that no

additional manipulative restrictions are needed, the ALJ’s decision should provide

explanation sufficient to enable meaningful review of his reasoning in light of the record

as a whole.

Additionally, on remand, the ALJ should provide a more balanced discussion of the

evidence relating to her mental impairments. For instance, the ALJ summarized the third-

party function reports by the plaintiff’s husband as follows:

[The plaintiff’s] husband stated the [plaintiff] cleaned house

constantly, colors in color books, did puzzles, and had no

problem with personal care. He stated the [plaintiff] baked,

cleaned house, did laundry, mowed, did dishes, went outside a

couple times a day, walked, rode in a car, rarely went shopping,

and did not pay bills. The [plaintiff’s] husband stated the

[plaintiff] did puzzles, colored, cleaned house, and did not

spend time with others. In a Third Party Function Report dated

October 24, 2019, the [plaintiff’s] husband stated the claimant

3 The Court notes that the record includes no medical opinion or administrative

findings as to the plaintiff’s physical RFC. As such, on remand, the ALJ should also

consider whether additional record development is warranted as to the plaintiff’s physical

impairments. See Henrie v. U.S. Dep’t of Health & Hum. Servs., 13 F.3d 359, 360–61 (10th

Cir. 1993) (the ALJ is responsible for ensuring that “an adequate record is developed during

the disability hearing consistent with the issues raised.”).

took care of her pet lizard, and had no problem with personal

care. He stated the [plaintiff] cooked some, did housework, did

yard work, went outside often, walked, did not shop, and did

not pay bills. The [plaintiff’s] husband stated the [plaintiff] did

puzzles, sewed, knitted, read, and did not spend time with

others. In a Function Report dated October 31, 2019, the

[plaintiff’s] husband stated the [plaintiff] woke up and colored,

did puzzles, knitted, and had no problem with personal care.

He stated the [plaintiff] vacuumed, washed dishes, mopped,

dusted, and did not cook. The [plaintiff’s] husband stated the

[plaintiff] never went outside, walked, did not drive, did not

shop, and did not pay bills. He stated the [plaintiff]colored, did

puzzles, knitted, and did not spend time with others.

(R. 29) (exhibit citations omitted).

However, a review of the husband’s reports paints a more nuanced picture. In fact,

the plaintiff’s husband described her day-to-day behavior as “manic” at times, relating that

she will sometimes do housework “compulsively . . . all day,” change clothes all day, bathe

multiple times a day, and use a hairbrush with enough force to “rip” her hair. (R. 232-234).

At other times, he reported that she is abusive and argumentative and has a “vast challenge”

interacting with others. (R. 232). He described her as “disoriented and in fairyland . . .

manic all the time about everything,” and said that she seems to have “an alternate[] sense

of reality.” (R. 203, 239). He reported that the plaintiff has “constant seizures” and

“throw[s] up a lot.” (R. 198-199). However, the ALJ’s decision reflects a selective

discussion of these reports. As such, it does not enable the Court to determine whether the

correct legal standards were applied. See Social Security Ruling 16-3p (“The adjudicator

will consider any personal observations of the individual in terms of how consistent those

observations are with the individual’s statements about his or her symptoms as well as with

all of the evidence in the file.”).

B. Step Five

The plaintiff argues that the ALJ failed to resolve a conflict between the VE’s

testimony and the DOT provisions for the position of Bakery Racker. The Commissioner

concedes that the Bakery Racker job is inconsistent with the RFC determination but

contends that the ALJ’s error was harmless because the remaining two positions represent

enough jobs to meet the Commissioner’s burden at step five. However, having found the

case should be remanded for further proceedings at step four, the Court need not resolve at

this time whether the ALJ’s step-five error is harmless. The ALJ should review the prior

step-five determinations, if necessary, on remand.

V. Conclusion

For the reasons set forth above, the Court finds the ALJ’s decision did not

adequately explain the ALJ’s RFC determination in light of the record as a whole.

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.

DATED this 30th day of March, 2023.

Unietre 2 tiklee

Christine D. Little

United States Magistrate Judge

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