Boswell v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CATHY D. BOSWELL, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-22-292-JAR
)
COMMISSIONER OF THE SOCIAL 	)
SECURITY ADMINISTRATION, 	)
)
Defendant. 	)
OPINION AND ORDER
Plaintiff Cathy D. Boswell (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 ordered that the Commissioner’s decision be
REVERSED and the case 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). 	A claimant is disabled under the Social
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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
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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supported 	by 	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 60 years old at the time of the ALJ’s decision.
Claimant obtained a GED. 	Claimant worked in the past as an office
manager. 	Claimant 	alleges 	an 	inability 	to 	work 	beginning 	March
20, 	2020 	due 	to 	limitations 	resulting 	from 	degenerative 	discv
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disease, 	anxiety, 	depression, 	insomnia, 	diabetes, 	neuropathy 	in
both legs, heart disease, and muscular degeneration.
Procedural History
On 	August 	20, 	2020, 	Claimant 	protectively 	filed 	for
disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) 	of 	the 	Social 	Security 	Act. 	Claimant’s 	application 	was
denied 	initially 	and 	upon 	reconsideration. 	On 	January 	6, 	2022,
Administrative 	Law 	Judge 	(“ALJ”) 	Pearline 	Hardy 	conducted 	an
administrative 	hearing 	by 	telephone 	due 	to 	the 	extraordinary
circumstances 	posed 	by 	the 	COVID-19 	pandemic. 	On 	January 	19,
2022, the ALJ issued an unfavorable decision. 	On August 10, 2022,
the 	Appeals 	Council 	denied 	review. 	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 	her 	decision 	at 	step 	four 	of 	the 	sequential
evaluation. 	She 	determined 	that, 	while 	Claimant 	suffered 	from
severe impairments, she retained the residual functional capacity
(“RFC”) to perform a range of light work.
Error Alleged for Review
Claimant 	asserts 	the 	ALJ 	erred 	in 	(1) 	improperly 	rejecting
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the 	opinion 	of 	Claimant’s 	treating 	physician; 	and 	(2) 	failing 	to
find 	that 	Claimant’s 	vision 	limitations 	would 	preclude 	her 	from
performing her past relevant work.
Evaluation of Medical Opinion Evidence
In 	her 	decision, 	the 	ALJ 	determined 	Claimant 	suffered 	from
the 	severe 	impairments 	of 	coronary 	artery 	disease, 	status 	post-
coronary 	artery 	bypass 	grafts; 	type 	2 	diabetes 	mellitus 	with
neuropathy and retinopathy; macular edema; chronic pain syndrome;
degenerative disc disease of the lumbar spine; and obesity. 	(Tr.
17). 	The 	ALJ 	found 	none 	of 	Claimant’s 	conditions 	met 	a 	listing.
(Tr. 	19). 	As 	a 	result 	of 	the 	limitations 	caused 	by 	her 	severe
impairments, Claimant was found to retain the residual functional
capacity to perform a range of light work. 	Id. 	In so doing, the
ALJ 	determined 	that 	Claimant 	could 	lift 	up 	to 	20 	pounds
occasionally and ten pounds frequently, could stand and walk with
normal 	breaks 	for 	about 	six 	hours 	in 	an 	eight 	hour 	workday 	with
the option to sit for ten minutes after every one hour of standing
as 	long 	as 	she 	is 	not 	off 	task 	or 	away 	from 	the 	workstation 	and
could sit with normal breaks for about six hours in an eight hour
workday. 	Claimant could never climb ladders, ropes, or scaffolds,
could occasionally climb ramps and stairs, and could occasionally
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stoop, 	kneel, 	crouch, 	and 	crawl. 	Claimant 	could 	occasionally
push/pull 	with 	the 	bilateral 	lower 	extremities 	and 	could
occasionally 	bilaterally 	operate 	foot 	controls. 	She 	could 	not
work at unprotected heights or around dangerous machinery and could
have occasional exposure to extreme cold, extreme heat, humidity,
and 	vibration. 	Claimant 	could 	have 	no 	work 	with 	small 	objects
(e.g. smaller than a half-dollar) and no requirement to read small
print (e.g. smaller than 12-point font). 	Claimant required a job
that would permit her to be off-task ten percent of the time during
an eight hour workday due to symptoms of pain and medication side
effects, and that would permit her to be absent from work one day
per 	month, 	including 	late 	arrivals 	and 	leaving 	early 	on 	a
consistent basis. 	(Tr. 19-20).
After 	consultation 	with 	a 	vocational 	expert, 	the 	ALJ
determined 	that 	Claimant 	could 	perform 	her 	past 	relevant 	work 	as
an 	office 	manager. 	(Tr. 	28). 	Consequently, 	the 	ALJ 	found 	that
Claimant 	had 	not 	been 	under 	a 	disability 	from 	March 	20, 	2020
through the date of the decision. 	Id.
Claimant 	first 	contends 	the 	ALJ 	improperly 	rejected 	the
opinion 	of 	Dr. 	Valerie 	Pack, 	Claimant’s 	treating 	physician. 	Dr.
Pack authored an Attending Physician’s Statement dated October 27,
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2020. 	Dr. 	Pack 	diagnosed 	Claimant 	with 	retina 	hemorrhages,
chronic 	pain, 	degenerative 	disc 	disease 	of 	the 	lumbar 	spine,
diabetes, 	diabetic 	neuropathy, 	and 	coronary 	artery 	disease.
Current treatment included pain medication and relaxation skills.
Dr. 	Pack 	indicated 	Claimant 	was 	“disabled 	for 	any 	occupation”
beginning March 20, 2020. 	Claimant was not released to return to
work. 	Dr. 	Pack 	indicated 	Claimant 	had 	a 	“severe 	limitation 	of
functional capacity; incapable of minimum sedentary activity” for
a period “greater than 12 months.” 	Dr. Pack wrote in a narrative
statement 	that 	“pt. 	unable 	to 	sit 	or 	stand 	for 	long 	periods 	of
time, 	cannot 	maintain 	attention 	or 	concentration.” 	She 	did 	not
expect any improvement in functional status. 	(Tr. 717).
Dr. 	Pack 	completed 	a 	second 	Attending 	Physician’s 	Statement
on March 16, 2021. 	She added to the treatment section, indicating
that Claimant was currently treated with pain medication, diabetic
medication 	(weekly 	and 	daily 	injections), 	high 	dose 	Aflibercept
for 	the 	retina 	issues, 	and 	relaxation 	skills. 	The 	remainder 	of
the statement mirrors the prior statement. 	(Tr. 718).
On September 14, 2021, Dr. Jeremy Ross completed am Attending
Physician’s 	Statement 	on 	Claimant’s 	condition 	after 	Dr. 	Pack
apparently moved. 	He stated Claimant was being treated with pain
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medication and relaxation skills. 	The remainder of the statement
mirrors the prior two statements. 	(Tr. 719).
The 	ALJ 	rejected 	all 	three 	statements 	on 	the 	basis 	that 	the
opinions 	reflected 	in 	the 	statements 	were 	not 	supported 	by 	the
treating 	physicians’ 	treatment 	records. 	Dr. 	Pack’s 	treatment
notes of April 7, 2020 indicate that Claimant experienced left leg
weakness with decreased range of motion, abnormal spine with loss
of 	lumbar 	lordosis 	and 	tenderness, 	abnormal 	head/neck 	with
decreased 	range 	of 	motion 	and 	paraspinal 	muscle 	tightness.
Claimant 	complained 	of 	burning, 	aching, 	throbbing 	pain 	with
increased 	activity 	making 	it 	worse. 	She 	stated 	that 	it 	limited
her 	ambulation 	and 	interfered 	with 	her 	daily 	life. 	She 	was
prescribed pain medication. 	(Tr. 497-99).
Notes 	from 	a 	May 	7, 	2020 	visit 	shows 	the 	pain 	and 	findings
continued. 	Clamant 	complained 	of 	pain 	in 	her 	lower 	back 	and
sometimes 	her 	left 	leg 	with 	numbness 	in 	her 	feet. 	Medications
were helping with the pain. 	(Tr. 502-03).
In 	a 	July 	9, 	2020 	visit, 	Claimant 	stated 	she 	fell 	and
experienced 	a 	new 	weakness 	in 	her 	left 	leg. 	Dr. 	Pack 	noted
decreased 	range 	of 	motion 	bilaterally 	in 	the 	lower 	extremities.
Pain medication continued to help. 	(Tr. 492-93).
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On August 4, 2020, Claimant reported that the medication was
not working long enough and she was having more pain. 	(Tr. 481).
Her 	medications 	made 	her 	feel 	bad. 	The 	diagnoses 	of 	abnormal
findings 	in 	the 	spine 	and 	lower 	extremities 	continued 	with
decreased range of motion. 	(Tr. 482).
In a September 29, 2020 visit, Claimant reported new pain in
her 	groin 	and 	buttocks. 	The 	abnormal 	findings 	were 	again 	noted
in her spine and legs with decreased range of motion. 	(Tr. 489).
In 	an 	October 	27, 	2020 	visit, 	Claimant’s 	pain, 	tenderness,
and 	decreased 	range 	of 	motion 	continued. 	She 	needed 	assistance
walking for stability. 	Her numbness down both legs and feet were
noted with worsening groin pain. 	(Tr. 485-87, 501).
Similar findings were made by Talisha Nichols, APRN employed
by the Social Security Administration to examine Claimant. 	Range
of 	motion 	studies 	indicated 	several 	areas 	of 	decreased 	mobility.
(Tr. 517-20). 	Claimant was noted to have lumbar spinal pain with
paraesthesia, left hip pain with decreased mobility, fatigue, and
decreased endurance. 	(Tr. 516).
Because 	Claimant 	filed 	her 	claim 	after 	March 	27, 	2017, 	the
medical 	opinion 	evidence 	in 	the 	case 	is 	subject 	to 	evaluation
pursuant 	to 	20 	C.F.R. 	§§ 	404.1520c, 	416.920c. 	Under 	the 	revised
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regulations, 	the 	ALJ 	does 	not 	“defer 	or 	give 	any 	specific
evidentiary 	weight, 	including 	controlling 	weight, 	to 	any 	medical
opinion(s)[.]” 	20 C.F.R. §§ 404.1520c(a), 416.920c(a). 	Instead,
he must “articulate” in his decision “how persuasive [he] find[s]
all 	of 	the 	medical 	opinions 	and 	all 	of 	the 	prior 	administrative
medical 	findings 	in 	[the] 	case 	record” 	by 	considering 	a 	list 	of
factors. 	20 	C.F.R. 	§§ 	404.1520c(b), 	416.920c(b). 	The 	factors
include: (i) supportability, (ii) consistency, (iii) relationship
with 	the 	claimant 	(including 	length 	of 	treatment 	relationship,
frequency 	of 	examinations, 	purpose 	and 	extent 	of 	treatment
relationship, 	and 	examining 	relationship), 	(iv) 	specialization,
and (v) other factors that tend to support or contradict a medical
opinion 	or 	prior 	administrative 	finding 	(including, 	but 	not
limited 	to, 	“evidence 	showing 	a 	medical 	source 	has 	familiarity
with 	the 	other 	evidence 	in 	the 	claim 	or 	an 	understanding 	of 	our
disability program’s policies and evidentiary requirements.”). 	20
C.F.R. §§ 404.1520c(c), 416.920c(c).
The 	most 	important 	factors 	are 	supportability 	and
consistency, 	and 	the 	ALJ 	must 	explain 	how 	both 	factors 	were
considered. 	See 	20 	C.F.R. 	§§ 	404.1520c(b)(2), 	416.920c(b)(2).
Generally, the ALJ is not required to explain how the other factors
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were considered. 	Id. 	However, if the ALJ finds “that two or more
medical 	opinions 	or 	prior 	administrative 	findings 	about 	the 	same
issue 	are 	both 	equally 	well-supported 	. 	. 	. 	and 	consistent 	with
the record . . . but are not exactly the same, [he] will articulate
how [he] considered the other most persuasive factors in paragraphs
(c)(3) 	through 	(c)(5)[.]” 	20 	C.F.R. 	§§ 	404.1520c(b)(3),
416.920c(b)(3).
An 	ALJ 	continues 	to 	have 	the 	duty 	to 	evaluate 	every 	medical
opinion 	in 	the 	record 	regardless 	of 	its 	source. 	Hamlin 	v.
Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004). 	He may not “pick
and 	choose 	among 	medical 	reports, 	using 	portions 	of 	evidence
favorable to his position while ignoring other evidence.” 	Hardman
v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004); see also Haga v.
Astrue, 	482 	F.3d 	1205, 	1208 	(10th 	Cir. 	2007) 	(finding 	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”).
The 	ALJ 	found 	that 	the 	medical 	records 	of 	Dr. 	Pack 	and 	Dr.
Ross 	did 	not 	support 	their 	findings 	in 	the 	Attending 	Physician’s
Statement. 	Though they do not track word-for-word and holding the
statements 	on 	work-related 	disability 	aside, 	the 	findings 	of
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limitation 	in 	the 	medical 	records 	largely 	mirror 	the 	findings 	in
the 	statements. 	Moreover, 	the 	limited 	medical 	record 	from 	other
physicians 	do 	not 	diminish 	the 	consistency 	of 	the 	findings. 	The
ALJ must re-examine her findings on supportability and consistency
and 	expressly 	state 	the 	evidence 	in 	the 	medical 	record 	which 	run
contrary to the opinions in the statements.
Claimant 	also 	contends 	her 	limitations 	in 	her 	vision 	would
preclude 	her 	from 	using 	a 	computer 	which 	is 	a 	necessary 	function
of 	her 	past 	relevant 	work 	as 	an 	office 	manager. 	While 	the 	ALJ
limited Claimant to viewing items larger than a half-dollar, this
Court 	is 	somewhat 	confused 	how 	this 	limitation 	can 	be 	projected
onto 	a 	computer, 	which 	would 	seem 	to 	be 	a 	required 	instrument 	in
Claimant’s past occupation. 	On remand, the ALJ shall explore this
limitation with a vocational expert.
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 	case 	is 	REMANDED 	to 	Defendant 	for 	further
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proceedings.
IT IS SO ORDERED this 30 th day of March, 2024.
______________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
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