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IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

DAVID NELSON,

Plaintiff,

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

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Case No. CIV-12-284-KEW

OPINION AND ORDER

Plaintiff David Nelson (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 May 3, 1965 and was 46 years old at the
time of the ALJ’s decision. Claimant completed his education
through the eleventh grade and obtained a high school equivalency.
Claimant also completed a nine month vocational training program in
computerized accounting. Claimant worked in the past as a truck
driver. Claimant alleges an inability to work beginning July 30,

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2010 due to limitations resulting from bipolar disorder, obsessive
compulsive disorder, depression, anxiety, and explosive disorder
with panic attacks. Claimant also asserts he suffers from diabetes
with neuropathy, hearing loss, sleep problems, fatigue, back pain,
knee pain, and foot pain.

Procedural History

On July 23, 2010, 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
November 4, 2011, an administrative hearing was held before ALJ
Michael Kirkpatrick in McAlester, Oklahoma. On November 17, 2011,
the ALJ issued an unfavorable decision. On May 26, 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 five of the sequential
evaluation. He determined that while Claimant suffered from severe
impairments, he did not meet a listing and retained the residual
functional capacity (“RFC”) to perform a full range of work at all

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exertional levels but with a non-exertional limitation.

Errors Alleged for Review

Claimant asserts the ALJ committed error in (1) failing to
properly consider the opinions of two state agency physicians; and
(2) reaching an RFC which is not supported by substantial evidence.
Claimant also alleges that the Appeals Council erred in failing to
properly weigh the opinion of his treating physician as well as
other additional mental health treatment records submitted to the
Council.

Consideration of Opinion Evidence

In his decision, the ALJ found Claimant suffered from the
severe impairments of intermittent explosive disorder; bipolar
disorder, NOS; mood disorder, NOS; and polysubstance dependence.
(Tr. 21). The ALJ determined Claimant retained the RFC to perform
a full range of work at all exertional levels with the non-
exertional limitation that he perform simple, unskilled tasks. (Tr.
24). After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of a general laborer,
industrial cleaner, and inspector, food production, which he found
existed in sufficient number nationally and regionally. (Tr. 32).
He, therefore, concluded Claimant was not disabled. (Tr. 33).

Claimant first contends the ALJ failed to properly evaluate the

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opinions of the state agency physicians regarding his mental
functional limitations. On January 11, 2011, Dr. Deborah Hartley
completed a Mental RFC Assessment form on Claimant. She determined
Claimant was markedly 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. (Tr. 354-55). She concluded in her
narrative statement that Claimant was able to perform simple tasks
with routine supervision, could relate to supervisors and peers on
a superficial work basis, could not relate to the general public,
and could adapt to a work situation. (Tr. 356).

On April 15, 2011, Dr. Susan Weeks-Farnan also completed a
Mental RFC Assessment on Claimant. She concluded 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 work in coordination with or
proximity to others without being distracted by them, the ability
to interact appropriately with the general public, the ability to
accept instructions and respond appropriately to criticism from
supervisors, the ability to get along with coworkers or peers
without distracting them or exhibiting behavioral extremes, and the
ability to respond appropriately to changes in the work setting.

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(Tr. 407-08).

In the narrative section of the form, Dr. Weeks-Farnan gave a
detailed explanation of her findings. She found Claimant retained
the ability to understand and remember simple instructions. He
could be expected to function adequately and maintain focus in a
stable work environment and in a position with mostly solitary
responsibilities. She also found Claimant could function adequately
in a stable work environment in a position requiring minimal or no
contact with the public. Claimant should also be able to adjust
with encouragement in a stable work environment. (Tr. 409).

The ALJ referenced Exhibit 9F, 14F, and 15F in stating he must
consider the opinions of state agency consultants and state the
weight given to them. He also wrote that the state agency reviewing
psychologists found Claimant retained the ability to perform simple,
repetitive tasks. He gave these opinions “great weight,” finding
them “well supported by the evidence as a whole.” (Tr. 29).
Exhibit 9F is a physical assessment by Dr. Marks-Snelling. (Tr.
358). Exhibit 14F is the mental assessment by Dr. Weeks-Farnan.
(Tr. 407-10). Exhibit 15F is the physical assessment by Dr.
Wainner. (Tr. 411). It does not appear from the face of his
decision that the ALJ considered Dr. Hartley’s opinion or the
limitations she established. Additionally, the ALJ only included
the restriction to simple, repetitive tasks from Dr. Weeks-Farnan’s

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opinion and did not state the basis for rejecting the remaining
restrictions in her opinion.

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). On remand, the ALJ shall expressly consider Dr. Hartley’s
opinion and consider the totality of the limitations found by Dr.
Weeks-Farnan.

RFC Determination

Claimant contends the ALJ’s RFC assessment was flawed because
he did not consider all of the functional limitations included in
Dr. Hartley’s and Dr. Weeks-Farnan’s opinions. This Court has
determined the ALJ improperly omitted these opinions, either in part
or in whole, from his decision. On remand, the ALJ shall reassess
his RFC determination after re-evaluating these opinions and the
limitations that they found.

Appeals Council’s Failure to Weigh Medical Opinion Evidence

Claimant contends the Appeals Council failed to properly weigh

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the opinion of Dr. Theresa Farrow (referred to by the Appeals
Council as Dr. Theresa Farroy). On January 23, 2012, Dr. Farrow
provided a Mental Medical Source Statement. She found Claimant had
an “extreme limitation,” defined by the form as “unable to perform
the task 75% - 100% of the time” in the following areas: (1) the
ability to maintain attention and concentration for extended periods
in order to perform detailed tasks; (2) the ability to adhere to a
schedule and maintain regular attendance; and (3) the ability to
perform at a consistent pace without an unreasonable number or
length of rest periods. Dr. Farrow also found Claimant had a
“marked limitation,” defined by the form as “unable to perform the
task up to 66% of the time” in the following areas: (1) the ability
to maintain attention and concentration for extended periods in
order to perform simple tasks; (2) the ability to work close to
others without being distracted; (3) the ability to accept
instructions and criticism from supervisors; and (4) the ability to
work with others without causing distractions. Dr. Farrow also
found Claimant had a “moderate limitation” meaning he could not
perform the task 33% of the time in two additional function areas.
(Tr. 424-25). Under the narrative comments section of the form, Dr.
Farrow opined that Claimant was “not able to work a normal work week
due to hallucinations, depression, paranoia, & severe anxiety with
panic attacks.” (Tr. 425).

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The Appeals Council accepted the report as an exhibit, included
it in the record, and stated that it considered the additional
evidence but found no basis to change the ALJ’s decision. (Tr. 1-
2). No basis is provided for the rejection of the opinion contained
in the report. On remand, the ALJ shall consider the report of Dr.
Farrow and account for any effect this opinion has upon Claimant’s
RFC and functional limitations.

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 20th day of September, 2013.

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