Williams v. Commissioner of Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

SHAWN WILLIAMS )

)

Plaintiff, )

)

v. ) Case No. CIV-19-152-STE

)

ANDREW M. SAUL, )

Commissioner of the Social Security )

Administration,1 )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Shawn Williams brings this action pursuant to 42 U.S.C. § 405(g) for

judicial review of the Social Security Administration’s (SSA) denial of disability benefits.

The SSA Commissioner has answered and filed the administrative record (hereinafter TR.

____). The parties have consented to jurisdiction over this matter by a United States

magistrate judge pursuant to 28 U.S.C. § 636(c).

The parties have briefed their positions, and the matter is now at issue. Based on

the Court’s review of the record and the issues presented, the Court REVERSES AND

REMANDS the Commissioner’s decision.

I. PROCEDURAL BACKGROUND

Initially and on reconsideration, the SSA denied Plaintiff’s application for benefits.

Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision.

1 On June 17, 2019, Andrew M. Saul was sworn in as the Commissioner of Social Security and

he is substituted as the proper Defendant. Fed. R. Civ. P. 25(d).

(TR. 13-25). The Appeals Council denied Plaintiff’s request for review, making the ALJ’s

decision the final decision of the Commissioner. (TR. 1-3).

II. THE ADMINISTRATIVE DECISION

The ALJ followed the five-step sequential evaluation process required by agency

regulations. , 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.

§ 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial

gainful activity since January 3, 2016, the application date. (TR. 15). At step two, the ALJ

determined that Mr. Williams had the following severe impairments: diabetes mellitus;

seizure disorder; residual of February 2016 comminuted fracture of left arm/shoulder;

depression; anxiety; and borderline intellectual functioning. (TR. 16). At step three, the

ALJ found that Plaintiff’s impairments did not meet or medically equal any of the

presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1

(TR. 16).

At step four, the ALJ concluded that Mr. Williams had no past relevant work, but

retained the residual functional capacity (RFC) to:

[P]erform medium work as defined in 20 CFR 404.1567(a) except he can is

limited to no more than frequent reaching with the left upper extremity and

no overhead reaching with the left upper extremity. He must avoid climbing

ladders, ropes, and scaffolds and have no more than occasional exposure

to hazards. Further, he is limited to simple, routine, repetitive tasks with no

strict production requirements.

(TR. 19, 24). Based on the finding that Mr. Williams had no past relevant work, the ALJ

proceeded to step five. There, the ALJ presented the RFC limitations to a vocational expert

(VE) to determine whether there were other jobs in the national economy that Plaintiff

could perform. (TR. 50-51). Given the limitations, the VE identified three jobs from the

Dictionary of Occupational Titles. (TR. 51). The ALJ adopted the testimony of the VE and

concluded that Mr. Williams was not disabled based on his ability to perform the identified

jobs. (TR. 25).

III. STANDARD OF REVIEW

This Court reviews the Commissioner’s final decision “to determin[e] whether the

factual findings are supported by substantial evidence in the record and whether the

correct legal standards were applied.” , 602 F.3d 1136, 1140 (10th Cir.

2010). Under the “substantial evidence” standard, a court looks to an existing

administrative record and asks whether it contains “sufficien[t] evidence” to support the

agency’s factual determinations. , 139 S. Ct. 1148, 1154 (2019).

“Substantial evidence … is more than a mere scintilla … and means only—such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

, 139 S. Ct. at 1154 (internal citations and quotation marks omitted).

While the court considers whether the ALJ followed the applicable rules of law in

weighing particular types of evidence in disability cases, the court will “neither reweigh

the evidence nor substitute [its] judgment for that of the agency.” , 805

F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

IV. ISSUES PRESENTED

Mr. Williams alleges the ALJ erred: (1) in considering evidence from two licensed

professional counselors and (2) at step five. (ECF No. 14:4-10).

V. ERROR IN THE CONSIDERATION OF “OTHER SOURCE” EVIDENCE

Plaintiff alleges error in the evaluation of opinions from two licensed professional

counselors—Rebecca Kroeker and Jeannette Redman. (ECF No. 14:4-8). According to Mr.

Williams, the ALJ ignored significantly probative evidence offered by Ms. Kroeker and Ms.

Redman without explanation. (ECF No. 14:4-8). The Court disagrees as to Ms. Kroeker’s

opinion, but agrees that the ALJ erred in evaluating evidence from Ms. Redman.

A. ALJ’s Duty to Consider Evidence from “Other Sources”

Tenth Circuit law and Social Security Ruling 06-3p state that the ALJ must consider

evidence from “other sources,” who do not qualify as “acceptable medical sources.”

, 466 F.3d 903, 914-15 (10th Cir. 2006); Titles II and XVI: Considering

Opinions and Other Evidence from Sources Who are not “Acceptable Medical Sources” in

Disability Claims; Considering Decisions on Disability by Other Governmental and

Nongovernmental Agencies, 2006 WL 2329939, at *4, *6 (SSR 06-3p).2 “Medical sources

who are ‘not acceptable medical sources,’ [include] … rehabilitation counselors … [and]

professional … counselors.” SSR 06-03-p, at *2, *4.

Opinions from these “non-medical sources” who have seen the claimant in an

official capacity should be evaluated using the following factors: (1) the length and

frequency of the treatment; (2) consistency of the opinion with other evidence; (3) the

degree to which the source presents relevant evidence in support; (4) how well the source

2 SSR 06-03p was rescinded effective March 27, 2017—but the regulation applies to claims, like

Mr. Williams’, which were filed before that date. 82 Fed. Reg. 15263-01, 15263 (Mar. 27,

2017).

explains the opinion; (5) the level of the source’s expertise; and (6) any other relevant

factors. at *5. In evaluating “other source” evidence, not every factor will apply in

every case. . However, the ALJ should explain the weight given to the “other source,”

ensuring that the decision allows a reviewing party to follow the adjudicator’s reasoning.

. at *5-6.

B. “Other Source” Evidence

The record contains evidence from two non-medical “other sources.” On June 2,

2016, Ms. Kroeker wrote a letter which stated that Plaintiff was being seen for outpatient

counseling at her agency. (TR. 395). In the letter, Ms. Kroeker stated that Plaintiff

presented with anxiety, depression, and distorted thought processes and that he had

cognitive impairments including learning problems and low IQ. (TR. 395).

The record also contains evidence from the Oklahoma Department of

Rehabilitation Services (ODRS) where Mr. Williams was seen for vocational rehabilitation

services. (TR. 404-469). As part of his treatment at ODRS, on October 28, 2016, Ms.

Redman completed a report comprised of four parts: report which set forth: (1)

“Determination,” (2) “Disabilities,” (3) “Impediment[s] to Employment,” and (4)

“Documentation.” (TR. 444-446).

In the initial “Determination” Section, Mr. Williams was assessed into “Priority

Group 1” with the following “Functional Limitations:”

• Communication—severe restriction;

• Interpersonal skills—severe restriction;

• Mobility;

• Self-direction;

• Work skills—severe restriction;

• Work tolerance;

• Requires extended period of time for vocational rehabilitation services; and

• Requires multiple vocational rehabilitation services.

(TR. 443, 444).

Next, the report listed Plaintiff’s “Disabilities” as: Major Depressive Disorder,

Borderline Intellectual Functioning, Adult Antisocial Behavior, and Insomnia. (TR. 444).

Third, the report stated Plaintiff’s “Impediment[s] to Employment” were:

• Communication: Expressive (speaking clearly, writing ability—physical or

mental capacity);

• Communication: Receptive (hearing, reading, attention span, processing

information);

• Interpersonal Skills: Establish/maintain relationships/social interaction;

• Interpersonal Skills: Understand obvious social cues;

• Mobility: Transportation issues (public, driver’s license);

• Self-Direction: Understand consequences of behavior;

• Self-Direction: Work independently/complete tasks/manage time;

• Work Skills: Achieve expected productivity/meet deadlines;

• Work Skills: Maintain concentration and attention;

• Work Skills: Reading, spelling, or math skills;

• Work Skills: Unable to begin and/or complete task without support;

• Work Tolerance: Miss work for medical treatment/problems; and

• Work Tolerance: Work for an 8-hour day.

(ECF No. 444-445).

Finally, in the “Documentation” section, the report provided a narrative regarding

Mr. Williams’ eligibility for services and outlined his specific needs. (TR. 445-446). This

section stated that Plaintiff had:

• a full-scale IQ of 79 which confirmed his diagnosis of Borderline Intellectual

Functioning and which affected his communication skills in the areas of

mental capacity, attention span and the ability to process information;

• limited interpersonal skills which: (1) rendered him unable to understand

obvious social cues and (2) resulted in difficulty with relationships due to

poor boundaries and crossing over into socially unacceptable behaviors;

• limited work skills which: (1) rendered him unable to begin and complete

tasks without support and (2) resulted in difficulty with reading, spelling,

and math skills;

• limited self-direction due to his inability to understand the consequences of

his behavior; and

• work tolerance limitations including the inability to work an 8-hour day due

to insomnia, never working before in his life, and missing work for medical

appointments.

(TR. 445-446). The narrative then stated that Plaintiff was “eligible in [Priority Group 1]

as he needs multiple services over an extended period of time and has 3 severe

limitations.” (TR. 446).

Finally, Ms. Redman stated that Mr. Williams had “a disability that impede[d]

employment[.]” (TR. 440).

C. The ALJ’s Consideration of the “Other Source” Evidence

In the decision, the ALJ stated:

Although in June 2016, a licensed counselor reported that the claimant has

experienced psychiatric disorders and learning disorder/low I.Q. since

childhood, the evidence of record shows that he did not initiate ongoing

outpatient psychiatric treatments until August 2016…. In October 2016,

psychological testing as part of a vocational rehabilitation assessment

yielded a Full Scale IQ score of 79, consistent with a diagnosis of borderline

intellectual functioning.

(TR. 22, 23). Plaintiff alleges error in the ALJ’s consideration of opinions from both Ms.

Kroeker and Ms. Redman. (ECF No. 14:4-8). The Court agrees, but only with respect to

Ms. Redman’s opinions.

1. Ms. Kroeker

Plaintiff alleges that the ALJ failed to: (1) assess his “distorted thought processes”

as severe at step two based on Ms. Kroeker’s opinion and (2) assess the impact of the

“distorted thought processes” on [the] RFC. Neither argument is persuasive.

First, according to Plaintiff, the “distorted thought processes” were interwoven with

his depression. ECF No. 14:6 (“This is the chicken/egg analysis. It is the “distorted

thought that is the chicken the egg is the depression.”). Thus, the ALJ’s finding of

depression as a severe impairment at step two undermines Plaintiff’s argument.

Second, the ALJ clearly discounted Ms. Kroeker’s opinion based on the timing of

her letter in relation to when Plaintiff began outpatient psychiatric treatments. (TR. 22).

This discussion, albeit brief, was sufficient under SSR 06-3p for the Court to “follow the

adjudicator’s reasoning.” SSR 06-3p at *5-6. That was all the ALJ was required to do.

And because the ALJ discounted Ms. Kroeker’s opinion, she was not required to thereafter

include any related limitations in the RFC. , No.

CIV-16-919-M, 2017 WL 2389643, at *6 (W.D. Okla. May 3, 2017),

, No. CIV-16-919-M, 2017 WL

2389716 (W.D. Okla. June 1, 2017) (noting that because “the ALJ properly rejected the

treating physician’s opinion regarding Plaintiff’s functional limitations … the ALJ’s failure

to include RFC limitations based on that opinion is not reversible error.”).

2. Ms. Redman

Plaintiff alleges that the ALJ: (1) failed to consider the “Functional Limitations”

noted by Ms. Redman and her opinion that Plaintiff’s disability “impede[d] employment”

and (2) “never weighed the Redman opinion at all.” (ECF No. 14:4-5). The Court agrees.

The only mention of Ms. Redman’s opinion is the ALJ’s statement that: “in October

2016, psychological testing as part of a vocational rehabilitation assessment yielded a Full

Scale IQ score of 79, consistent with a diagnosis of borderline intellectual functioning.”

(TR. 22-23). But the ALJ made no reference to Ms. Redman’s opinions regarding: (1) her

belief that Plaintiff’s disability impeded his employment or (2) Plaintiff’s specific

“Functional Limitations,” which were further clarified in the “Impediment[s] to

Employment,” section of the report and the supporting narrative. TR. 13-25.

Ms. Redman’s Statement that

Plaintiff’s Disability Impeded Employment

As alleged by Mr. Williams, the ALJ erred when she failed to comment on Ms.

Redman’s statement that Plaintiff’s disability impeded his employment. The Court

recognizes that this comment involved an issue reserved to the Commissioner, and

therefore, was not entitled to “any special significance.” SSR 96-5P, 1996 WL 374183,

at *3 (July 2, 1996). Even so, “opinions from on issues reserved to

the Commissioner must never be ignored.” SSR 96-5P, 1996 WL 374183, at *3 (July 2,

1996) (emphasis added). Rather, “the ALJ must evaluate all evidence in the case record

that may have a bearing on the determination or decision of disability, including opinions

from medical sources about issues reserved to the Commissioner.” ,

127 F. App’x 455, 457-458 (10th Cir. 2005). Here, the ALJ completely omitted any

discussion of Ms. Redman’s statement that Plaintiff’s disability impeded employment.

TR. 13-25. Such inaction constitutes reversible error. , 121 F. App’x

819, 825 (10th Cir. 2005) ALJ’s failure to mention treating source’s opinion on issue

reserved to the Commissioner was “of course, clear legal error.”

Ms. Redman’s Statements

Regarding Plaintiff’s Functional Limitations

The ALJ also erred in her evaluation of Plaintiff’s functional limitations as opined

by Ms. Redman.

As stated, the decision makes no reference to the “Functional Limitations” as

outlined in Ms. Redman’s opinion. . The Commissioner’s attempts to defend the

omission by stating: “While Plaintiff argues this is an opinion as to functional limitations,

such appears to be more of a description of vocational skills needing improvement, not

necessarily functional limitations caused by medical impairments.” (ECF No. 18:9). The

Court disagrees. Read in its entirety, the report states that Plaintiff’s “Disabilities,” i.e. his

“medical impairments” involve Major Depressive Disorder, Borderline Intellectual

Functioning, Adult Antisocial Behavior, and Insomnia. (TR. 444). And the narrative, which

states that Mr. Williams “has 3 severe limitations” correlates with the first section of the

report which, lists “Functional Limitations” as “severe” in the areas of Communication,

Interpersonal Skills, and Work Skills. TR. 444-446. These “severe” findings were

further explained in the narrative when Ms. Redman stated Plaintiff had:

• a full-scale IQ of 79 which confirmed his diagnosis of Borderline Intellectual

Functioning and which affected his communication skills in the areas of

mental capacity, attention span and the ability to process information;

• limited interpersonal skills which: (1) rendered him unable to understand

obvious social cues and (2) caused him to have difficulty with relationships

due to poor boundaries and crossing over into socially unacceptable

behaviors; and

• limited work skills which: (1) rendered him unable to begin and complete

tasks without support and (1) caused him to have difficulty with reading,

spelling, and math skills.

(TR. 445-446).

As stated, the ALJ did not specifically discuss these “Functional Limitations” in the

decision. However, in discussing the evidence supporting the RFC, the ALJ stated:

I have … incorporated the restriction to simple work in a low stress setting

in recognition of [Plaintiff’s] functional deficits due to mental impairment,

including the psychiatric evaluation noting a borderline IQ score, [and]

counseling records noting learning difficulties[.]

(TR. 23). The question then, is whether the ALJ’s references to “functional deficits due to

mental impairment” and “counseling records noting learning difficulties” constitute an

adequate discussion of Ms. Redman’s opinions. The Court answers this question

negatively for two reasons.

First, the lack of express analysis could be excused if the RFC was consistent with

Ms. Redman’s opinion. , 379 F.3d 945, 947 (10th Cir. 2004) (“in

this case none of the record medical evidence conflicts with the ALJ’s conclusion that

claimant can perform light work, . . . [thus] the need for express analysis is weakened.”).

But the RFC for “simple work in a low stress setting” does not account for Plaintiff’s severe

limitations in the areas of communication (attention span and the ability to process

information); interpersonal skills (inability to understand obvious social cues and difficulty

with relationships); and work skills (inability to begin and complete tasks without

support). , 271 F. App’x 731, 733 (10th Cir. 2008) (hypothetical

for “simple work that was low in stress” did not sufficiently account for opinion that

claimant was “seriously impaired in her ability to … pay attention).

Second, the ALJ recognized Ms. Redman’s “Full Scale IQ score of 79, consistent

with a diagnosis of borderline intellectual functioning” which is arguably consistent with

the ALJ’s statement regarding Plaintiff’s “borderline IQ score, [and] counseling records

noting learning difficulties,” but this explanation fails to account for the specific functional

limitations outlined in Ms. Redman’s report. Because of: (1) the ALJ’s failure to discuss

Ms. Redman’s specific opinions regarding Plaintiff’s functional limitations and (2) the

vague explanation which failed to account for the entirety of the opinion, remand is

warranted for a proper consideration of Ms. Redman’s opinions in accordance with SSR

06-03p.

VI. PLAINTIFF’S REMAINING ALLEGATION OF ERROR

Plaintiff also argues error at step five. (ECF No. 14:8-10). But at this point, any

findings at step five would be premature pending the remand for reconsideration of Ms.

Redman’s opinions, as discussed. See Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th

Cir. 2004) (“We will not reach the remaining issues raised by claimant because they may

be affected by the ALJ's resolution of this case on remand.”).

ORDER

The Court has reviewed the medical evidence of record, the transcript of the

administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties.

Based on the forgoing analysis, the Court REVERSES AND REMANDS the

Commissioner’s decision.

ENTERED on October 4, 2019.

SHON T. ERWIN

UNITED STATES MAGISTRATE JUDGE

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