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IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

LESLIE R. GANDY,

Plaintiff,

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

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Case No. CIV-12-115-KEW

OPINION AND ORDER

Plaintiff Leslie R. Gandy (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 Claimant was not disabled. For the reasons
discussed below, it is the finding of this Court 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. . .”

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42 U.S.C. § 423(d)(1)(A). A claimant 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. 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
two inquiries: first, whether the decision was supported by

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 limit 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 (10th Cir. 1988).

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substantial evidence; and, second, whether the correct legal
standards were applied. Hawkins v. Chater, 113 F.3d 1162, 1164
(10th Cir. 1997)(citation omitted). The 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.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The
court may not re-weigh the evidence nor substitute its discretion
for that of the agency. Casias v. Secretary of Health & Human
Servs., 933 F.2d 799, 800 (10th 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 June 21, 1963 and was 47 years old at the
time of the ALJ’s decision. Claimant completed her high school
education. Claimant worked in the past as a deli clerk and assembly
press operator. Claimant alleges an inability to work beginning
August 21, 2006 due to limitations resulting from neck pain,
bursitis in her shoulders, carpel tunnel syndrome, trigger thumb,

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back problems, hip problems, gastritis, sleep problems, fatigue,
PTSD, anxiety, and depression.

Procedural History

On September 26, 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. After
an administrative hearing, ALJ John W. Belcher issued an unfavorable
decision on March 4, 2009. On July 3, 2010, the Appeals Council
remanded the case to a different ALJ for further evaluation. On
November 4, 2010, a second administrative hearing was held before
ALJ Michael Kirkpatrick. On December 14, 2010, the ALJ issued an
unfavorable decision. On February 15, 2012, 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 (“RFC”) to perform her past relevant work as an

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assembly press operator.

Errors Alleged for Review

Claimant asserts the ALJ committed error in failing to consider
the opinions of state agency physicians regarding Claimant’s mental
functioning limitations.

Consideration of Opinion Evidence

In his decision, the ALJ found Claimant suffered from the
severe impairments of degenerative disc disease of the lumbar spine,
status post carpel tunnel syndrome release surgery, bursitis of the
right shoulder, major depressive disorder, anxiety, panic disorder
without agoraphobia, dysthymia, and history of polysubstance abuse.
(Tr. 17). The ALJ determined Claimant retained the RFC to
lift/carry 20 pounds occasionally and 10 pounds frequently,
stand/walk 6 hours in an 8 hour workday, and sit 6 hours in an 8
hour workday. He also found Claimant could perform both simple,
unskilled tasks, and also detailed, semiskilled tasks, but not
complex, skilled tasks. (Tr. 20). After consultation with a
vocational expert, the ALJ determined Claimant could perform her
past relevant work as an assembly press operator. (Tr. 28).

Claimant contends the ALJ failed to properly evaluate the
opinions of state agency physicians regarding her mental functional
limitations. On February 8, 2007, Dr. Sally Varghese completed a

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Mental RFC Assessment form on Claimant. She determined Claimant was
moderately limited in the areas of the ability to understand and
remember detailed instructions, the ability to carry out detailed
instructions, and the ability to interact appropriately with the
general public. She concluded in her narrative statement that
Claimant could perform simple and some complex tasks with normal
supervision, could relate to coworkers and supervisors on a
superficial basis, and could not tolerate contact with the general
public. (Tr. 501-03).

Dr. Varghese also completed a Psychiatric Review Technique on
Claimant of the same date. She found Claimant suffered from a
depressive syndrome characterized by psychomotor agitation or
retardation, decreased energy, or difficulty concentrating or
thinking. (Tr. 508). In regard to functional limitations, Dr.
Varghese found Claimant was markedly limited in the area of
difficulties in maintaining concentration, persistence, or pace and
moderately limited in the area of difficulties in maintaining social
functioning. (Tr. 515). In her notes, Dr. Varghese found Claimant
had impulse control problems, with a history of drug abuse, anger
problems, impaired judgment and insight. She found Claimant’s
affect was normal, mood was anxious, thought processes were logical,
and denied suicidal ideation. Her activities of daily living
included doing light house work cooking, shopping, driving, taking

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care of her personal needs, puzzles, going fishing and playing
cards. She has a history of depression and alcohol abuse and has
difficulty dealing with stressful situations. Her alcohol and drug
abuse was not material. (Tr. 517).

On October 19, 2009, Dr. Cynthia Kampschaefer completed a
Mental RFC Assessment form for Claimant. Dr. Kampschaefer found
Claimant to be moderately limited in her ability to understand and
remember detailed instructions and ability to carry out detailed
instructions. (Tr. 595). Her notes conclude Claimant could
understand, remember, and carry out simple tasks and some complex
tasks, could interact appropriately with others at a superficial
level and could adapt to a work situation. (Tr. 597).

Dr. Kampschaefer also completed a Psychiatric Review Technique
form. She found Claimant to be suffering from a depressive syndrome
characterized by sleep disturbance and decreased energy. She also
found Claimant to suffer from dysthymia as well as panic disorder
without agoraphobia, and a history of polysubstance dependence
reportedly in remission. (Tr. 602, 604, 607). Dr. Kampschaefer
concluded Claimant was moderately limited in the area of
difficulties in maintaining social functioning. (Tr. 609). In her
notes, Dr. Kampschaefer found Claimant’s thoughts were logical and
goal directed. Her mood was slightly anxious and affect was
consistent with her mood. She had not suicidal ideations,

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delusions, or hallucinations. Her concentration, memory, and
cognitive ability were intact. She had trouble with serial 3's.
Her intelligence was average to low average. Her GAF was estimated
at 55 to 60. (Tr. 611).

The ALJ stated that he
considered the assessments made by the state agency
medical and psychological consultants (Exhibits 18F &
21F) and find them consistent with the record evidence.
I am therefore adopting the Functional Capacity
Assessment (Exhibit 18F) that claimant can perform both
simple, unskilled tasks, and also detailed, semi-skilled
tasks but not complex, skilled tasks which I find to be
supported by the evidence.
(Tr. 28).
Exhibit 18F is the Mental RFC Assessment of Dr. Kampschaefer
while Exhibit 21F is the Physical RFC Assessment of Dr. J. Marks-
Snelling. The ALJ must evaluate every medical opinion in the
record. Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).
The ALJ must also explain in the decision the weight given to the
medical opinions. Soc. Sec. R. 96-6p, 1996 WL 374180. 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.” Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.
2007).

In this instance, the ALJ ignored Dr. Kampschaefer’s opinion
that Claimant could only interact appropriately with others at a

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superficial level or explain the reasons he rejected such a
restriction. Instead, he appears to have wholeheartedly adopted Dr.
Kampschaefer’s opinion on limitations while omitting one of her
restrictions. Moreover, the ALJ did not address Dr. Varghese’s
mental limitations including her limitation that she relate to
coworkers and supervisors on a superficial basis and that she could
not interact with the general public. On remand, the ALJ shall
address these opinions, providing the weight given to each, the
basis for doing so, and the basis for rejecting their findings of
limitations omitted from his decision.
Conclusion

The decision of the Commissioner is not supported by
substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, in accordance with the fourth
sentence of 42 U.S.C. § 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 19th day of September, 2013.

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