Roxanna L. H. v. Berryhill
| Decision Date | 07 March 2019 |
| Docket Number | Case No. 17-CV-322-JFJ |
| Parties | ROXANNA L. H., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of Oklahoma |
Plaintiff Roxanna L. H. seeks judicial review of the decision of the Commissioner of the Social Security Administration denying her claim for disability insurance benefits under Titles II and XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 416(i), 423, and 1382c(a)(3). In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a United States Magistrate Judge.
For reasons explained below, the Court reverses the Commissioner's decision denying benefits and remands for further proceedings based on the inadequacy of the ALJ's consistency analysis. Any appeal of this decision will be directly to the Tenth Circuit Court of Appeals.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). "Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (citing Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994)). "A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004). The 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, 399 F.3d at 1261 (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). The Court may neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, the Commissioner's decision stands so long as it is supported by substantial evidence. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).
Plaintiff, then a 49-year-old female, applied for Title II benefits on September 24, 2014, and protectively filed for Title XVI benefits on September 23, 2014. In both applications, Plaintiff alleged a disability onset date of April 1, 2013. R. 171-178. Plaintiff claimed she was unable to work due to stage one breast cancer, severe lymphedema, depression, hypertension, pain, and fluid retention. R. 192. Plaintiff's claims for benefits were denied initially on November 12, 2014, and on reconsideration on March 6, 2015. R. 63-86; 86-112. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"), and the ALJ held the hearing on April 15, 2016. R. 33-49. The ALJ found that Plaintiff was not disabled, the Appeals Council denied review, and Plaintiff appealed. R. 1-7; ECF No. 2.
During the hearing before the ALJ, Plaintiff testified that her breast cancer was in remission but that she had edema as a result of surgical removal of her lymph nodes. Plaintiff testified that she had pain and swelling in her right arm and breast; that she could not pick anything up with her right arm; that her arm swells up every three to four days; that she could not pick up a jug of milk without having swelling and pain; that she could not grip; that she lacked feeling from the shoulder to the elbow; and that she could not type with her right hand. R. 40-41. Plaintiff also testified that she suffers from depression during episodes of severe pain and swelling. R. 42. Plaintiff submitted function reports indicating she could not lift any weight or reach, without causing pain and swelling in her right arm. R. 206, 248.
During the hearing, the vocational expert ("VE") classified Plaintiff's past relevant work as "office clerk, 209.562-010, light, SVP 3" and "ward clerk, 245.362-014, also light, SVP 3" and answered that an individual with the limitations described by the ALJ could perform those jobs. The VE also testified that an individual with the limitations described by the ALJ could perform the unskilled jobs of "office helper, 239.567-010, light, SVP 2" and "cashier II, 211.462-010[;] light SVP 2." R. 45-46. When questioned as to whether Plaintiff had skills that were transferable to the sedentary level of exertion, the VE answered yes, listing the transferable skills of filing, use of a computer in a work setting, use of telephones, and customer service. The VE then gave examples of available jobs in the national economy as "front desk receptionist, 237.367-010, sedentary, SVP 3" and "telephone operator, 235.662-022, sedentary, SVP 3." R. 46-47. When questioned by Plaintiff's counsel as to whether any of those jobs would be available to an individual who had use of only one hand, the VE testified that such jobs would not be available. R. 48.
In his written decision, the ALJ found Plaintiff had severe impairments of "borderline obesity; history of breast cancer with residuals of lymphedema right upper extremity and neuropathy." R. 22. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled any listed impairment. R. 24. See 20 C.F.R. Part 404, Subpart P, Appendix 1 (listings of impairments). The ALJ made the following residual functional capacity ("RFC") determination:
[T]he claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), that is, she can occasionally lift and/or carry 20 pounds and frequently 10 pounds, stand and/or walk at least 6 hours in an 8-hour workday, and sit at least 6 hours in an 8-hour workday.
R. 24.1 In determining Plaintiff's RFC, the ALJ cited three medical records dated June 19, 2013, July 9, 2014, and September 8, 2015; the state agency physicians' opinions dated November 10, 2014 and March 6, 2015; and two third-party function reports supplied by Plaintiff's mother on October 10, 2014 and January 4, 2015. The state agency physicians both opined that Plaintiff retained the RFC to perform light work, and the ALJ gave "great weight" to their opinions because both were "consistent with the totality of the objective medical evidence of record." R. 25-26. The ALJ noted that Plaintiff's breast cancer and resulting side effects would have been disabling for a period of time, but those effects did not last twelve consecutive months. R. 26. At step four, the ALJ found Plaintiff was able to perform her past relevant work as an Office Clerk and Ward Clerk, which are light exertion, semi-skilled jobs. R. 26-27. The ALJ proceeded to step five and made alternative findings that Plaintiff should be able to perform other sedentary, semiskilled jobs and light, unskilled jobs that were available in the national economy. R. 27-28.
Plaintiff raised two points of error on appeal: (1) the ALJ erred in his mental RFC analysis; and (2) the ALJ erred in his consistency analysis with respect to both physical and mental impairments. ECF No. 15 at 3.2 The Court finds that the ALJ committed reversible error based on his failure to conduct a consistency analysis regarding Plaintiff's subjective complaints of physical pain and swelling in her right arm. The Court does not reach the first alleged error or any other errors related to Plaintiff's mental impairments.
Effective March 26, 2016, the Social Security Administration issued a new policy interpretation ruling governing the evaluation of symptoms in disability claims. Soc. Sec. Ruling ("SSR") 16-3p, Titles II & XVI: Evaluation of Symptoms in Disability Claims, 2016 WL 1119029 (Mar. 16, 2016) (superseding SSR 96-7p, Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements, 1996 WL 374186 (July 2, 1996)). The new policy was in effect at the time of the ALJ's decision and applies to the ALJ's analysis.
The purpose of the new policy is to "eliminat[e] the use of the term 'credibility' from [the] sub-regulatory policy" and "clarify that subjective symptom evaluation is not an examination of an individual's character." SSR 16-3p at *1; see also Sonnenfeld v. Comm'r, Soc. Sec. Admin., No. 16-CV-02817-MSK, 2018 WL 1556262, at *5 (D. Colo. Mar. 30, 2018) (). In place of "credibility," the SSA now utilizes the term "consistency." Specifically, the policy provides that "if an individual's statements about the intensity, persistence, and limiting effects of symptoms are consistent with the objective medical evidence and other evidence of record, we will determine that the individual's symptoms are more likely to reduce his or her capacities to perform work-related activities." SSR 16-3p at *7. Conversely, if the individual's "statements about his symptoms are inconsistent with the objective medical evidence and other evidence, we will determine that the individual's symptoms are less likely to reduce his or her capacities to perform work-related activities." Id.; see also Sonnenfeld, 2018 WL 1556262, at *5 ().
Under the new policy, the SSA continues to evaluate a disability claimant's symptoms using a two-step process:
First, we must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an...
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