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Collins v. Berryhill

United States District Court, W.D. Oklahoma

September 25, 2017

BENJAMIN COLLINS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE

         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 denying Plaintiff's applications for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of 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

         The Social Security Administration denied Plaintiff's applications for disability insurance benefits and supplemental security income initially and on reconsideration. An administrative hearing was held and an Administrative Law Judge (ALJ) issued a favorable decision. (TR. 124-130). On its own motion, the Appeals Council reviewed the administrative decision and concluded that it lacked substantial evidence and contained legal error. (TR. 208-212). As a result, the Appeals Council remanded the case for additional administrative findings. (TR. 132-135). A second administrative hearing was held and the same ALJ issued an unfavorable decision. (TR. 12-29). Following the second decision, the Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner.

         II. THE FIRST ADMINISTRATIVE DECISION

         The first administrative decision was dated June 2, 2014. (TR. 124-130). In the decision, the ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since April 30, 2011, the alleged disability onset date. (TR. 126). At step two, the ALJ determined Mr. Collins had the following severe impairments: chronic back pain; dysthymic disorder; generalized anxiety disorder; and personality disorder. (TR. 126). 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. 127).

         At step four, the ALJ concluded that Mr. Collins had the residual functional capacity (RFC) to:

[P]erform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). The claimant can occasionally stoop, kneel, and crouch. He can follow simple and detailed instruction but not complex.

(TR. 128). Based on this RFC, the ALJ concluded that Mr. Collins had no ability to perform his past relevant work. (TR. 129). Finally, based on Plaintiff's RFC, advanced age, limited education, and lack of transferrable skills, the ALJ concluded that Plaintiff was disabled because there were no jobs he could perform. (TR. 129).

         III. THE APPEALS COUNCIL'S REMAND

         On its own initiative, the Appeals Council reviewed the June 2, 2014 decision and concluded that it lacked substantial evidence and contained legal error. (TR. 208-212). Specifically, the Appeals Council concluded:

• the ALJ failed to provide the required rationale citing evidence supporting the RFC limitations,
• the onset date of April 30, 2011 was not supported by the record, and
• the ALJ failed to provide a rationale to support the credibility determination. (TR. 132-133). Accordingly, upon remand, the Appeals Council ordered the ALJ to:
• obtain additional evidence concerning the impairments the ALJ had deemed severe, including, if warranted, a consultative examination and medical source statements about what the claimant can still do despite his impairments,
• if necessary, obtain evidence from a medical expert (ME) to clarify the nature, severity and onset date of the impairments,
• further evaluate Plaintiff's credibility, providing rationale in support,
• further consider Plaintiff's maximum RFC and provide appropriate rationale with specific references to evidence of record in support of the RFC limitations, and . if warranted, obtain evidence from a vocational expert (VE) to clarify the effect of the assessed limitations on Mr. Collins' occupational base.

(TR. 133-134).

         IV. THE SECOND ADMINISTRATIVE DECISION

         On March 1, 2016, a second administrative hearing was held and on April 1, 2016, the ALJ issued an unfavorable decision. (TR. 12-29). In doing so, The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since June 7, 2011, the alleged disability onset date. (TR. 15).[1] At step two, the ALJ determined Mr. Collins had the following severe impairments: arthritis in the back; multilevel spondylosis; dysthymic disorder; generalized anxiety disorder; and a personality disorder. (TR. 15). 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. Collins had the residual functional capacity (RFC) to:

[P]erform medium work as defined in 20 CFR 404.1567(c) and 416.967(c). Specifically, the claimant can lift and carry up to 50 lbs. occasionally and 25 lbs. frequently; stand and walk up to six hours in an eight-hour workday; and sit up to six hours in an eight-hour workday. With regard to postural activities, the claimant can occasionally stoop, kneel, and crouch. Mentally, the claimant can understand and remember simple instructions and have only occasional interaction with the public.

(TR. 18-19).

         With this RFC, the ALJ found that Plaintiff was capable of performing his past relevant work as a maintenance man. (TR. 27). Even so, the ALJ made alternate findings at step five. At the March 1, 2016 hearing, the ALJ presented the limitations set forth in the RFC, as outlined above, to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 46). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles. (TR. 46-47). The ALJ adopted the testimony of the VE and concluded at step five that Mr. Collins was not disabled based on his ability to perform the identified jobs. (TR. 29).

         V. ISSUES PRESENTED

         On appeal, Plaintiff alleges the ALJ erred in: (1) his duty to develop the record, instead improperly relying on stale evidence; (2) his evaluation of opinion evidence from a medical expert (ME), consulting physicians, state agency physicians, and treating physicians; (3) his evaluation of Plaintiff's mental impairment; and (4) his evaluation of Plaintiff's RFC.

         VI. 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.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation 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.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

         VII. DUTY TO DEVELOP THE RECORD/USE OF STALE EVIDENCE

         As stated, two administrative hearings took place in this case approximately two years apart-on April 21, 2014 and March 1, 2016. (TR. 36-68). In his first proposition, entitled: “Short Shrift Hearing, ” Plaintiff argues that the ALJ failed to develop the record by: (1) limiting his inquiry of Plaintiff at the second hearing to his age and level of education and (2) relying on “stale” information and testimony from the April 2014 hearing “as the foundation of his decision.” (ECF No. 20:4). The Court agrees.

         “It is well established that a Social Security disability hearing is a nonadversarial proceeding, in which the ALJ has a basic duty of inquiry, to inform himself about facts relevant to his decision and to learn the claimant's own version of those facts.” Thompson v. Sullivan, 987 F.2d 1482, 1492 (10th Cir. 1993) (internal quotation marks and citations omitted). In Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992), the court noted that in a case where the claimant is unrepresented, the ALJ's duty is “heightened” and that “[t]he length, or brevity, of a benefits hearing is not dispositive” of whether or not the ALJ had met his duty to develop the record. Id. at 1374. Instead, “the more important inquiry is whether the ALJ asked sufficient questions to ascertain (1) the nature of a claimant's alleged impairments, (2) what on-going treatment and medication the claimant is receiving, and (3) the impact of the alleged impairment on a claimant's daily routine and activities.” Id. at 1375.

         In Thompson, the plaintiff argued that the ALJ erred in his duty to develop the record due to the brevity of the hearing and the ALJ's failure to ask certain questions. Thompson, 987 F.2d at 1492. The Circuit Court agreed, noting that although the plaintiff was represented by counsel, the ALJ still had a duty to develop the record, and the scope of questioning was dictated by the three-part inquiry outlined in Musgrave. See id.

         Musgrave and Thompson are controlling in the instant case. As discussed, on its own initiative, the Appeals Council examined the first decision and ultimately concluded that it lacked substantial evidence and the ALJ had committed legal error. (TR. 208-212). As a result, the Appeals Council specifically instructed the ALJ to: “further evaluate Plaintiff's credibility, providing rationale in support.” (TR. 134).

         In the second decision, the ALJ evaluated Plaintiff's credibility in conjunction with the medical evidence. (TR. 19-27). First, the ALJ evaluated Plaintiff's allegations concerning his physical impairment, citing Mr. Collins' testimony from the April 2014 hearing regarding the nature and location of Plaintiff's pain, Plaintiff's medication, daily activities, and limitations on his abilities to sit, stand, walk, and lift. (TR. 18). Ultimately, the ALJ discounted Mr. Collins' credibility based on “new evidence” including testimony from an ME, and records from a consultative examination. (TR. 20). The ALJ underwent a similar analysis in evaluating Plaintiff's credibility concerning his mental impairments- first summarizing Plaintiff's testimony from the 2014 hearing and ultimately, concluding that Mr. Collins was “only somewhat credible.” (TR. 24, 27). In support of his findings, the ALJ cited the 2014 hearing testimony as well as evidence which pre- and post-dated the second hearing. (TR. 27).

         The ALJ technically complied with the Appeals Council's directive to further evaluate Mr. Collins' credibility. But under Musgrave, the ALJ should have asked sufficient questions at the second hearing “to ascertain (1) the nature of [Mr. Collins'] alleged impairments, (2) what on-going treatment and medication [Mr. Collins] [wa]s receiving, and (3) the impact of the alleged impairment on [Mr. Collins'] daily routine and activities.” Musgrave, 966 F.2d at 1375. But instead, the ALJ's inquiry at the second hearing was limited to asking Plaintiff his age and level of education. (TR. 29). The limited inquiry, combined with the ALJ's reliance on testimony from 2014 constitutes reversible error. See Thompson, 987 F.2d at 1492 (finding reversible error based on the ALJ's failure to develop the record, stating: “[i]t matters that Ms. Thompson was not asked enough questions or the right questions at the hearing because her answers were needed by the ALJ as evidence to support his determination of her credibility.”).

         VIII. THE ALJ'S EVALUATION OF ...


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