Murphy v. Commissioner of Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

DONNY A. MURPHY, )

)

Plaintiff, )

)

v. ) Case No. CIV-24-318-JD

)

MARTIN O’MALLEY, )

Commissioner of the Social )

Security Administration, )

)

Defendant. )

REPORT AND RECOMMENDATION

Donny A. Murphy (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) for

judicial review of the final decision of the Commissioner of the Social Security

Administration (“SSA”) denying his applications for disability insurance benefits (“DIB”)

under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and supplemental security

income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83f. (Doc.

1). The Commissioner has filed the Administrative Record (“AR”) (Doc. 6), and the parties

have fully briefed the issues (Docs. 11, 15, 16).1 United States District Judge Jodi Dishman

referred this matter to the undersigned Magistrate Judge for initial proceedings consistent

with 28 U.S.C. § 636(b)(1)(B), (C) and Federal Rule of Civil Procedure 72(b). (Doc. 10).

For the reasons set forth below, the undersigned recommends the Court REVERSE the

Commissioner’s decision and REMAND the matter for further proceedings.

1 Citations to the parties’ briefs refer to the Court’s CM/ECF pagination. Citations to the

Administrative Record refer to its original pagination.

I. Procedural History

Plaintiff previously applied for both DIB and SSI on August 1, 2019, alleging

disability since April 24, 2018. (See AR, at 127). The SSA denied the claims initially, on

reconsideration, and following an administrative hearing before an Administrative Law

Judge (“ALJ”). (See id. at 124-39). Plaintiff filed second applications for DIB and SSI on

December 21, 2020, alleging a disability onset date of October 15, 2020. (Id. at 415-21,

422-23, 460). The SSA denied the applications initially and on reconsideration. (Id. at

257-60, 261-63, 271-76, 277-81). An administrative hearing was held on July 19, 2022.

(Id. at 103-23). On August 11, 2022, the ALJ issued a decision finding Plaintiff was not

disabled. (Id. at 224-38). Afterward, the Appeals Council granted Plaintiff’s request for

review and remanded the matter back to the ALJ. (Id. at 244-47).

A second administrative hearing was held on September 20, 2023. (Id. at 86-102).

Afterward, the ALJ issued a second unfavorable decision. (Id. at 8-21). The Appeals

Council subsequently denied Plaintiff’s request for review. (Id. at 1-5). Thus, the ALJ’s

decision became the final decision of the Commissioner. Wall v. Astrue, 561 F.3d 1048,

1051 (10th Cir. 2009); 20 C.F.R. § 404.981.

II. Administrative Decision

At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful

activity since October 15, 2020, the alleged disability onset date. (AR, at 13). At Step

Two, the ALJ found that Plaintiff had severe impairments of disorders of the spine,

peripheral edema, diabetes, obesity, and neurocognitive disorders. (Id. at 14). At Step

Three, the ALJ found Plaintiff had no impairment or combination of impairments that met

or medically equaled the severity of one of the listed impairments. (Id.) The ALJ then

determined Plaintiff had the RFC to perform light work except that he can only

occasionally bend, stoop, and kneel and is limited to “routine, repetitive work,” with

“simple and detailed but not complex instructions.” (Id. at 16). Then, at Step Four, the

ALJ found Plaintiff could perform his past relevant work as an inserter. (Id. at 19).2 At

Step Five, the ALJ also determined Plaintiff could perform work as a cutter machine

operator, final inspector, and power screwdriver operator. (Id. at 20-21). Thus, the ALJ

found Plaintiff had not been under a disability from October 15, 2020, through the date of

the decision. (Id. at 21).

III. Claims Presented for Judicial Review

Plaintiff contends the Appeals Council erred by failing to properly consider new and

material medical evidence dated around the hearing date and up to a few days before the

ALJ’s decision. (Doc. 11, at 8-12). Next, Plaintiff argues the ALJ did not perform a proper

consistency analysis regarding his subjective reports of pain and limitations. (Id. at 12-

19). Third, Plaintiff asserts the ALJ erred in his analysis of the SSA consultative

2 In his Opening Brief, Plaintiff notes that during the administrative hearing, the ALJ

recognized that he never performed the job of inserter at a level that qualified as substantial

gainful activity (“SGA”). (Doc. 11, 30-31 (citing AR, at 107-08 (acknowledging during

administrative hearing that Plaintiff’s work as inserter “doesn’t approach SGA”)); see also

20 C.F.R. §§ 404.1560(b)(1), 416.960(b)(1), 404.1565(a), 416.965(a), 404.1571–76,

416.971–76 (defining term “past relevant work” as work that rose to the level of SGA and

establishing earnings and other criteria for determining at Step Four whether a claimant

has engaged in prior SGA). The Commissioner did not address this issue in his Response

(Doc. 15) and has thus waived any argument in opposition. See, cf, Frenchman v. Saul,

2020 WL 2732396, at *2 (E.D. Okla. May 26, 2020) (citing Marshall v. Chater, 75 F.3d

1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate

judge’s recommendation are deemed waived.”)).

examiner’s (“CE”) opinion. (Id. at 19-22). Fourth, Plaintiff contends the ALJ erroneously

limited his RFC determination to consideration of early medical records. (Id. at 23-26).

Finally, Plaintiff contends the ALJ did not properly evaluate Plaintiff’s mental

impairments. (Id. at 26-31).

The Commissioner contends that the record, including evidence submitted to the

Appeals Council, provides substantial support for the ALJ’s decision. (Doc. 15, at 12-14).

He further argues the ALJ appropriately evaluated Plaintiff’s subjective reports with the

medical record. (Id. at 15-16). Next, the Commissioner argues the ALJ properly assessed

the RFC, including his consideration of the CE’s opinions. (Id. at 17-21). Finally, the

Commissioner contends the ALJ properly evaluated Plaintiff’s mental impairments. (Id.

at 21-24).

IV. The Disability Standard and Standard of Review

The Social Security Act defines “disability” as the “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.” 42 U.S.C. § 423(d)(1)(A). A

physical or mental impairment is an impairment “that results from anatomical,

physiological, or psychological abnormalities which are demonstrable by medically

acceptable clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). A medically

determinable impairment must be established by “objective medical evidence” from an

“acceptable medical source,” such as a licensed physician or a licensed and certified

psychologist; whereas the claimant’s own “statement of symptoms, a diagnosis, or a

medical opinion” is not sufficient to establish the existence of an impairment. 20 C.F.R.

§§ 404.1521, 416.921; see id. §§ 404.1502(a), 404.1513(a), 416.902(a), 416.913(a). A

plaintiff 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. 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 750-

51 (10th Cir. 1988) (explaining five steps and burden-shifting process). To determine

whether a claimant is disabled, the Commissioner inquires: (1) whether the claimant is

engaged in any substantial gainful activity; (2) whether the claimant suffers from a severe

impairment or combination of impairments; (3) whether the impairment meets an

impairment listed in Appendix 1 of the relevant regulation; (4) considering the

Commissioner’s assessment of the claimant’s residual functional capacity (“RFC,”)3

whether the impairment prevents the claimant from continuing claimant’s past relevant

work; and (5) considering assessment of the RFC and other factors, whether the claimant

can perform other types of work existing in significant numbers in the national economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). Plaintiff bears the “burden of

establishing a prima facie case of disability under steps one, two, and four” of the SSA’s

3 RFC is “the most [a claimant] can still do despite [a claimant’s] limitations.” 20 C.F.R.

§§ 404.1545(a)(1), 416.945(a)(1).

five-step procedure. Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). If the

plaintiff makes this prima facie showing, “the burden shifts to the Commissioner to show

the claimant has the [RFC] to perform other work in the national economy in view of

[claimant’s] age, education, and work experience.” Id. “The claimant is entitled to

disability benefits only if he [or she] is not able to perform other work.” Bowen v. Yuckert,

482 U.S. 137, 142 (1987).

This Court’s review of the Commissioner’s final decision is limited “to

determin[ing] whether the Commissioner applied the correct legal standards and whether

the agency’s factual findings are supported by substantial evidence.” Noreja v. Comm’r,

SSA, 952 F.3d. 1172, 1177 (10th Cir. 2020) (citation omitted). “Substantial evidence is

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

conclusion.” Staheli v. Comm’r, SSA, 84 F.4th 901, 905 (10th Cir. 2023) (quoting Wilson

v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)); see also Lax v. Astrue, 489 F.3d 1080,

1084 (10th Cir. 2007) (defining substantial evidence as “more than a scintilla, but less than

a preponderance”). A court’s review is based on the administrative record, and a court

must “meticulously examine the record as a whole, including anything that may undercut

or detract from the ALJ’s findings in order to determine if the substantiality test has been

met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). 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.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir.

2015) (internal quotation marks omitted). Even if a court might have reached a different

conclusion, the Commissioner’s decision stands if it is supported by substantial evidence.

See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002). But “[a]n agency decision that

either applies an incorrect legal standard or is unsupported by substantial evidence is

subject to reversal.” Staheli, 84 F.4th at 905.

V. The ALJ Erred in His Consideration of Dr. Laura Eckert’s Findings and

Opinion.

Dr. Eckert, a reviewing psychologist for the SSA, completed a Mental Residual

Functional Capacity Assessment (MRFCA) following her review of Plaintiff’s medical

records. (AR, at 217-20). Section I of the MRFCA is “merely a worksheet to aid in

deciding the presence and degree of functional limitations and the adequacy of

documentation and does not constitute the RFC assessment.” SSA Program Operations

Manual System Disability Insurance (POMS DI) 24510.060 B.2.a. The POMS provides

that Section III of the MRFCA, not Section I, is for recording a medical consultant’s “actual

mental RFC assessment” and that adjudicators are to use the Section III narrative as the

RFC assessment. POMS DI 24510.060 B.4.a, 25020.010 B.1.Note. However, the Tenth

Circuit has cautioned that “this does not mean that an ALJ can turn a blind eye to [] Section

I limitations . . . .” Carver v. Colvin, 600 F. App’x 616, 619 (10th Cir. 2015). As the court

explained,

[I]f a consultant’s Section III narrative fails to describe the effect that each

of the Section I [] limitations would have on the claimant’s ability, or if it

contradicts limitations marked in Section I, the MRFCA cannot properly be

considered part of the substantial evidence supporting an ALJ’s RFC finding.

Id.

In Section I, Dr. Eckert found Plaintiff can understand, remember and carry out

“very short and simple instructions,” but has marked limitations in those abilities with

regard to “detailed instructions.” (AR, at 218). In her Section III narrative, she stated that

Plaintiff can “understand, recall and perform simple repetitive tasks.” (Id. at 220). At first

glance, it may appear as though the Section III narrative reflects Plaintiff’s abilities and

limitations as set forth in Section I. But based on previous Tenth Circuit rulings, this Court

has generally drawn a distinction between simple tasks and simple instructions when

analyzing a potential conflict with jobs requiring level two reasoning, such as those

identified at Step Five in the present case. See Calvin v. Kijakazi, Case No. CIV-21-1046-

SM, 2022 WL 3268745, at *4 (W.D. Okla. Aug. 10, 2022) (“Although a limitation to

simple tasks is consistent with a reasoning level of two, that is not the case for a limitation

to simple instructions.”) (citing C.H.C. v. Comm’r, Soc. Sec. Admin., 2022 WL 950433, at

*7 (D. Colo. March 29, 2022) (explaining that “Hackett [v. Barnhart, 395 F.3d 1168 (10th

Cir. 2005)] concerned work tasks, not instructions, and the Court has found no legal

authority equating the two for purposes of legal analyses”)); Rodgers v. Kijakazi, Case No.

CIV-21-12-STE, 2022 WL 801560, at *4-5 (W.D. Okla. March 15, 2022) (finding an

unresolved conflict between an RFC limitation to understanding, remembering, and

carrying out simple instructions and reasoning level two, stating, “Although the statement

regarding simple instructions was dictum in Paulek [v. Colvin, 662 F. App’x 588, 594 (10th

Cir. 2016)], the fact remains that [the] Tenth Circuit has not definitively determined

whether level two reasoning is consistent with RFC limitations of ‘simple instructions,’ but

it has affirmatively cited the Eighth Circuit in this regard.”).

Thus, Dr. Eckert’s failure in Section III to discuss Plaintiff’s ability to understand,

remember, and carry out “very short and simple instructions” and his marked limitations

regarding detailed instructions is significant. As a result, the ALJ was required to consider

Dr. Eckert’s Section I findings as to this area of Plaintiff’s limitations. Carver, 600 F.

App’x at 619. He failed to do so. Most significantly, as established, the difference in

limitations could affect the analysis of the jobs Plaintiff can perform at Step Five and thus

cannot be considered harmless.

Additionally, the ALJ found Dr. Eckert’s opinion persuasive (AR, at 18), but clearly

rejected a portion of her findings. The ALJ’s RFC limiting Plaintiff to “routine, repetitive

work” may incorporate Dr. Eckert’s Section III narrative regarding “simple repetitive

tasks,” but he goes further to conclude Plaintiff can “adhere to simple and detailed but not

complex instructions.” (Id. at 16) (emphasis added). This directly contradicts Dr. Eckert’s

Section I finding that Plaintiff is markedly limited in his ability to understand, remember,

and carry out detailed instructions. At no point did she indicate Plaintiff could adequately

understand, remember, and carry out detailed instructions so long as they are not complex.

Thus, the ALJ rejected this portion of Dr. Eckert’s opinion. “Although exact

correspondence between a medical opinion and the mental RFC is not required[,] the ALJ

must explain the basis for rejecting certain limitations in an opinion he finds persuasive, or

the decision must sufficiently include the reasoning for doing so.” V. v. O’Malley, 2024

WL 1008567, at *4 (N.D. Okla. March 8, 2024) (quoting Wells v. Colvin, 727 F.3d 1061,

1071 (10th Cir. 2013)). See also Phan v. Kijakazi, No. CIV-23-0093-P, 2023 WL 6294191,

at *4 (W.D. Okla. Sept. 27, 2023) (“An ALJ is not required to adopt every limitation in a

medical opinion that he finds persuasive. However, the ALJ must explain the basis for

rejecting certain limitations in an opinion he finds persuasive, or the decision must

sufficiently include the reasoning for doing so.”) (internal citation omitted); Benavidez v.

Colvin, 650 F. App’x 619, 621 (10th Cir. 2016) (“[A]n ALJ cannot, without explanation,

adopt some restrictions assessed by a physician and reject others that the physician also

assessed.”). Although the ALJ found Dr. Eckert’s opinion persuasive, he did not explain

or provide any reasoning as to why he rejected Dr. Eckert’s opinion regarding detailed

instructions. As this aspect of her findings could affect whether Plaintiff can perform the

Step Five jobs the ALJ identified, this error cannot be considered harmless.

Accordingly, on remand, the ALJ must consider and discuss Dr. Eckert’s findings

regarding Plaintiff’s limitations in understanding, remembering, and carrying out simple

and detailed instructions, the effect of this analysis on Plaintiff’s RFC, and potentially

question the VE accordingly. The analysis on remand may be affected by the ALJ’s

consideration of these issues. Thus, the undersigned does not address Plaintiff’s remaining

arguments. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not

reach the remaining issues raised by appellant because they may be affected by the ALJ’s

treatment of this case on remand.”).

VI. Recommendation and Notice of Right to Object

Having 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, the undersigned

recommends the Court REVERSE the Commissioner’s decision and REMAND the

matter for further proceedings.

The parties are advised of their right to file written objections to this Report and

Recommendation in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure

72. Any such objections must be filed with the Clerk of this Court by November 27,

2024. The parties are further advised that failure to timely object to this Report and

Recommendation waives the right to appellate review of the factual and legal issues

addressed herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

This Report and Recommendation disposes of all issues and terminates the referral

to the undersigned Magistrate Judge in this case unless and until the matter is re-referred.

SO ORDERED this 13" day of November, 2024.

UNITED STATES MAGISTRATE JUDGE

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