Didway v. Social Security Administration, No. 6:2011cv00067 - Document 22 (E.D. Okla. 2012)
Court Description: OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA CAROLE F. DIDWAY, Plaintiff, v. Case No. CIV-11-067-KEW MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant. OPINION AND ORDER Plaintiff Carole F. Didway (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 discussed below, Claimant it is was the not disabled. finding of this For the Court reasons that the Commissioner's decision should be and is REVERSED and 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). Security Act "only if A claimant is disabled under the Social 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, work which engage in any other kind of substantial gainful exists §423(d) (2) (A). in the national economy. " 42 u.s.c. Social Security regulations implement a five-step sequential process to evaluate a disability claim. See, 20 C.F.R. §§ 404.1520, 416.920. 1 Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g). This Court's review is limited to 1 Step one requires the claimant to establish that he is not engaged in substantial gainful activity, as defined by 20 C. F. R. §§ 404.1510, 416.910. Step two requires that the claimant establish that he has a medically severe impairment or combination of impairments that significantly lim'it his ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921. If the claimant is engaged in substantial gainful activity (step one) or if the claimant's impairment is not medically severe (step two), disability benefits are denied. At step three, the claimant's impairment is compared with certain impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed impairment or impairments "medically equivalent" to a listed impairment is determined to be disabled without further inquiry. If not, the evaluation proceeds to step four, where claimant must establish that he does not retain the residual functional capacity ("RFC") to perform his past relevant work. If the claimant's step four burden is met, the burden shifts to the Commissioner to establish at step five that work exists in significant numbers in the national economy which the claimant - taking into account his age, education, work experience, and RFC - can perform. Disability benefits are denied if the Commissioner shows that the impairment which precluded the performance of past relevant work does not preclude alternative work. See generally, Williams v. Bowen, 844 F.2d 748, 750-51 (lOth Cir. 1988). 2 two inquiries: substantial first, evidence; and, standards were applied. (lOth Cir. whether the second, decision was whether Hawkins v. Chater, 1997) (citation the correct legal 113 F.3d 1162, 1164 The omitted). supported by term "substantial evidence" has been interpreted by the United States Supreme Court to require "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (quoting Richardson v. Consolidated (1938)). Perales, Edison Co. v. 402 U.S. NLRB, 305 401 U.S. {1971) 197, 229 The court may not re-weigh the evidence nor substitute its discretion for that of the agency. Health 389, & Human Servs., 933 F.2d 799, Casias v. 800 Secretary of {lOth Cir. 1991). Nevertheless, the court must review the record as a whole, and the "substantiality of the 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 Claimant was born on October 16, 1952 and was 56 years old at the time of the ALJ's decision. Claimant completed her high school education and took some college courses. Claimant worked in the past as a janitor, housekeeper, and assembly line worker. 3 Claimant alleges an inability to work beginning March 6, 2006 due to limitations resulting from depression, bipolar disorder, and back and thyroid problems. Procedural History On July 25, 2006, Claimant protectively filed for disability insurance benefits under 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. Claimant's applications were denied initially and upon reconsideration. On September 8, 2008, an administrative hearing was held before ALJ Lantz McClain in Tulsa, Oklahoma. issued an unfavorable decision. On August 3, 2009, the ALJ On December 29, 2010, the Appeals Council denied review of the ALJ's decision. As a result, the decision of the ALJ represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981, 416.1481. Decision of the Administrative Law Judge The ALJ made his decision at step four of the sequential evaluation. He determined that while Claimant suffered from severe impairments, she did not meet a listing and retained the residual functional capacity (uRFC") to perform her past relevant work. Errors Alleged for Review Claimant asserts the ALJ committed error in 4 (1) failing to perform a proper step four analysis; the medical opinion evidence; credibility analysis; and (3) (4) (2) failing to properly weigh failing failing to perform a to properly proper apply the regulations regarding drug and alcohol abuse. Step Four Analysis Claimant contends the ALJ failed to perform a proper step four evaluation. In his decision, the ALJ determined Claimant suffered from the severe impairment of bipolar disorder. (Tr. 13). He concluded Claimant could perform medium work except that she could only occasionally lift and/or carry 50 pounds, lift and frequently carry 2 5 pounds, stand and/ or walk 6 hours out of an 8 hour workday, sit at least 6 hours in an 8 hour workday, perform simple repetitive tasks and handle incidental contact with the public. (Tr. 14-15). Based upon this RFC, the ALJ found Claimant could perform her past relevant work of janitorial work, and assembly line work. On October 28, 2006, housekeeping, (Tr. 18) . Dr. Theresa Horton performed a mental status examination on Claimant. Claimant demonstrated rapid speech with a friendly attitude and appropriate level of cooperation. thought processes were quite tangential although she Her became organized and goal directed with prompted and had flight of ideas at times. Her mood was predominately anxious, 5 hypomanic, and depressed. Claimant was oriented as to person, place, time, and situation. Her recall and memory were intact. was poor and she was easily distracted. Her concentration Claimant appeared to have an adequate fund of information and was of average intelligence. She was able to complete serial sevens to the number 72 and was able to count to 30 by threes, insight was poor. Disorder, Type dependence. Dr. Her Horton diagnosed Claimant with Bipolar Mixed II, with prompting after 15. (predominately hypomanic) and alcohol (Tr. 234-40). On January 10, 2007, Dr. Karen Kendall completed a Mental Residual Functional Capacity Assessment on Claimant. Dr. Kendall found Claimant was moderately limited in the areas of the ability to understand and remember detailed instructions, the ability to carry out detailed instructions, the ability to maintain attention and concentration for extended periods, the ability to interact appropriately with the general public, and the ability to respond appropriately concluded that to changes Claimant in "is the work able to setting. perform Dr. simple repetitive more complex tasks under ordinary supervision. Kendall and Clmt is able to interact appropriately for incidental work purposes. is able to adapt to some work change." some Clmt (Tr. 256-58). Dr. Kendall also completed a Psychiatric Review Technique form on Claimant of the same date. She found Claimant suffered from an 6 affective disorder - bipolar disorder. She determined Claimant suffered from sleep disturbance, decreased energy, and difficulty concentrating or thinking. Dr. Kendall suffered from alcohol dependence, active. also found Claimant She found under the ~B" Criteria of the listings that Claimant was moderately limited in the areas of restriction of activities of difficulties in maintaining social functioning, daily living, difficulties in maintaining concentration, persistence, or pace, and suffered on or two episodes of decompensation of extended duration. In her consultant's notes, Dr. Kendall stated Claimant's bipolar disorder caused depression, poor concentration, and motivation. was noted to drink heavily on a daily basis. Kendall to be depressed, intact. at alert, oriented, Claimant She appeared to Dr. logical, with memory She was logical and appropriate but her speech was rapid Dr. times. Kendall noted Claimant was tangential and occasionally experience flight of ideas but became organized when directed. Claimant was easily distracted but able to perform serial sevens, had intact memory, and was able to abstract. Dr. Kendall stated Claimant had medications and care available that improved her condition in the past but that she chooses not to be compliant with care. Claimant first {Tr. 242-51). contends the ALJ failed in his step four analysis by not including all of Claimant's impairments in his 7 hypothetical questioning of the vocational expert. Specifically, Claimant asserts the ALJ failed to include a moderate limitation in her ability setting. to respond appropriately to changes in the work Dr. Kendall's report is somewhat internally inconsistent. On the form, she included a moderate restriction in the ability to adapt but then stated in her narrative that Claimant could adapt to some work changes. Given this conflict, this Court cannot conclude it was error for the ALJ to not include this limitation in the hypothetical questioning. Claimant next contends that the ALJ "failed to note that his reviewing expert did not fully capture the essence of the mental CE' s report." ability to Claimant's The complete essence serial interpretation of the sevens of report and further included counting Claimant's by limitation threes. from her performance before the examiner is mere speculation and did not need to be included in the ALJ's assessment. Claimant also states the ALJ should have included a limitation for her inability to get along with her supervisors, contending her mental health therapist recorded such a limitation. In fact, the therapist merely regurgitated Claimant's statements and did not make a medical finding of such a limitation. (Tr. 197). Claimant contends the ALJ improperly found no evidence was presented in the medical record to indicate Claimant experienced 8 episodes of decompensation. (Tr. 14). This Court must agree with Claimant that Dr. Kendall did indicate Claimant had experienced two or more such episodes. more applicable to a (Tr. 252). Although this is an argument finding of whether Claimant met a listing rather than a step four argument, 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." v. Astrue, 482 F. 3d 1205, 1208 {lOth Cir. 2007}. Haga Certainly, it is well-recognized in this Circuit that an ALJ is not required to discuss every piece of evidence. 1009-10 (lOth Cir. 1996). Clifton v. Chater, 79 F.3d 1007, However, he is required to discuss uncontroverted evidence not relied upon and significantly probative evidence that is rejected. Id. at 1010. On remand, the ALJ shall consider Dr. Kendall's finding on episodes of decompensation. Claimant contends the ALJ failed to engage in the three phase analysis required at step four. In analyzing Claimant's ability to engage in his past work, the ALJ must assess three phases. first phase, In the the ALJ must first determine the claimant's RFC. Winfrey v. Chater, 92 F.3d 1017, 1023 (lOth Cir. 1996). The ALJ's RFC involving did not include all of Claimant's limitations episodes of decompensation. In the second phase, the ALJ must determine the demands of the claimant's past relevant work. Id. 9 In making this determination, the ALJ may rely upon the testimony of the vocational expert. Doyal v. Barnhart, 331 F. 3d 758, 761 {lOth Cir. 2003). The ALJ in this case inquired of the vocational expert as to the exertional level of Claimant's past relevant work. The ALJ did not inquire as to the mental demands of the past work. failed to adequately ascertain and As a result, consider the the ALJ demands of Claimant's past relevant work at the second phase. The third and final phase requires an analysis as to whether the claimant has the ability to meet the job demands found in phase two despite the limitations found in phase one. at 1023. Winfrey, 92 F.3d Since the ALJ did not accurately ascertain or consider the demands of Claimant's past relevant work, he did not properly consider whether limitations. Claimant could meet those demands given his On remand, the ALJ shall reconsider and reevaluate his step four analysis. Evaluation of Medical Opinion Evidence Claimant contends the ALJ improperly failed to give controlling weight to his treating physician, Dr. Donald M. Elgin. In a letter dated September 5, 2008, Dr. Elgin found Claimant had been diagnosed with alcoholism, hallucinations, failure, history of paroxysmal atrial congestive heart fibrillation with atrial tachycardia, folic acid deficiency, abnormal liver enzymes, urinary 10 tract infection, thrombocytopenia and cholelithiasis, low magnesium, chronic microvascular changes in the white matter of her brain, and hypertension. Dr. Elgin requested that the agency nconsider this lady for disability due to her record of medical disabilities." In his (Tr. 261). decision, the ALJ gave Dr. Elgin's opinion nsignificantly reduced weight" because the medical record did not support his findings. The ALJ specifically found Claimant was not under treatment for any heart conditions. contends Dr. metaprolol, Elgin's records spironolactone, indicate and characterizes as heart medications. ( Tr. 17) . Claimant furosemide, (Tr. 192). Claimant was which taking Claimant While these drugs are indicated in the medical record to be prescribed to treat Claimant's high blood pressure, these drugs may also be utilized to treat heart failure. conditions, See, United www.ncbi.nlm.nih.gov. opinions of Dr. including States angina Nat'l and to treat heart Library of Medicine at On remand, the ALJ should re-evaluate the Elgin regarding Claimant's heart condition and engage in analysis of the factors stated in Watkins v. Barnhart, 350 F.3d 1297, 1300 (lOth Cir. 2003) in affording the appropriate weight to the opinion. Credibility Analysis 11 The suspect. ALJ' s evaluation of Claimant's testimony is somewhat He questions Claimant's credibility wherein she testified that she still suffers from peripheral neuropathy when she had only be diagnosed with the condition on one occasion. The number of diagnoses a of credibility. for her a does not bear upon claimant's He also finds Claimant would have sought treatment mental indicates. condition condition if it were as severe as Claimant Given the nature of mental conditions and a claimant's ability to determine whether they need treatment because of the existence of the condition, the ALJ was obligated to determine further Claimant's reason for not seeking treatment before the wholesale rejection of her testimony. On remand, the ALJ shall reconsider his findings on credibility after further inquiry. Application of the Drug and Alcohol Abuse Regulations The ALJ determined that Claimant would be unable to work due to her alcoholism but that she may not be found "disabled" due to the effects of alcoholism and "factored out" those effects from his analysis. (Tr. 17). The Social Security Act provides that an individual would not be considered disabled if alcoholism or drug addiction were a "contributing factor material to the Commissioner's determination that the individual is disabled." Salazar v. Barnhart, 468 F.3d 615, 12 622-23 (lOth Cir. 2006). To that end, the Commissioner must determine whether the individual would still alcohol. 2001) . disabled Drapeau v. Careful abstinence. if he or Massanari, consideration supra Salazar, impairments abuse, be cannot be she stopped using drugs 255 F.3d 1211, is at to be 623. given If separated from the 1214 a to or (lOth Cir. periods of claimant's mental effects of substance then the claimant's drug and alcohol addiction is not a contributing factor material to the disability determination. at 624. Id. Additionally, in accordance with an explanatory teletype ~where issued by Defendant, the record is devoid of any medical or psychological report, opinion, or projection as to the claimant's remaining limitations if she stopped using drugs or alcohol, an ALJ should 'find that DAA is not a contributing factor material to the determination of disability.u eliminating Claimant's Id. at 623. alcoholism from The ALJ did not err in his analysis. Indeed, Claimant's argument that he should have included the condition in his hypotheticals is contrary to the current state of the law. Conclusion The decision substantial applied. fourth of the Commissioner evidence and the Therefore, sentence of correct this Court 42 U.S.C. 13 legal finds, § is not supported standards by were not in accordance with the 405(g), the ruling of the Commissioner of Social Security Administration should be and is REVERSED and the matter REMANDED for further proceedings consistent with this Opinion and Order. IT IS SO ORDERED this ~L}~ay of July, 2012. ~(~ UNITED STATES MAGISTRATE JUDGE 14
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