Slover v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MARK ANTHONY SLOVER, 	)
)
Plaintiff, 	)
v. 	) 	Case No. CIV–22–79–JAR
)
KILO KIJAKAZI, 	)
Acting Commissioner of the 	)
Social Security Administration, 	)
)
Defendant. 	)
OPINION AND ORDER
Plaintiff Mark Anthony Slover (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 	the 	case 	is 	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 Security Act “only if his physical or mental
6:22-cv-00079-JAR Document 19 Filed in ED/OK on 09/21/23 Page 1 of 9

2
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
Section 405(g) limits the scope of judicial review of the Commissioner’s
decision to two inquiries: whether the decision was supported by substantial
evidence and whether correct legal standards were applied. See Hawkins v.
Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). Substantial evidence is “‘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)); see also Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). The
1 Step one requires the claimant to establish that he is not engaged in substantial
gainful activity. Step two requires the claimant to establish that he has a
medically severe impairment (or combination of impairments) that significantly
limits his ability to do basic work activities. If the claimant is engaged in
substantial gainful activity, or his impairment is not medically severe, disability
benefits are denied. If he does have a medically severe impairment, it is measured
at step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App.
1. If the claimant has a listed (or “medically equivalent”) impairment, he is
regarded as disabled and awarded benefits without further inquiry. Otherwise,
the evaluation proceeds to step four, where the claimant must show that he lacks
the residual functional capacity (“RFC”) to return to his past relevant work. At
step five, the burden shifts to the Commissioner to show there is significant work
in the national economy that the claimant can perform, given his age, education,
work experience, and RFC. 	Disability benefits are denied if the claimant can
return to any of his past relevant work or if his RFC does not preclude alternative
work. See generally Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).
6:22-cv-00079-JAR Document 19 Filed in ED/OK on 09/21/23 Page 2 of 9

3
Court 	may 	not 	reweigh 	the 	evidence 	or 	substitute 	its 	discretion 	for 	the
Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d
799, 800 (10th Cir. 1991). But the Court must review the record as a whole, and
“[t]he substantiality of 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
The claimant was fifty-four years old at the time of the administrative
hearing. (Tr. 12, 65). 	He possesses a college education. (Tr. 33–34). He has
worked as a flower salesperson and artificial inseminator. (Tr. 22). Claimant
alleges that he has been unable to work since January 1, 2016, due to limitations
resulting from an arthritic back, knees, and ankles; fluctuating blood pressure;
hypertension; hypotension; total knee replacement; and rheumatoid arthritis.
(Tr. 65–66).
Procedural History
On July 26, 2019, Claimant protectively filed for disability insurance
benefits pursuant to 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. After an administrative hearing, Administrative Law Jodi B. Levine
(“ALJ”) issued an unfavorable decision on June 18, 2021. Appeals Council denied
6:22-cv-00079-JAR Document 19 Filed in ED/OK on 09/21/23 Page 3 of 9

4
review, so the ALJ’s written opinion is the Commissioner’s final decision for
purposes of this appeal. See 20 C.F.R. § 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, he retained
the residual functional capacity (“RFC”) to perform light work with limitations.
Error Alleged for Review
Claimant asserts the ALJ committed error in: (1) failing to properly analyze
Claimant’s RFC, and (2) improperly evaluating the medical opinion evidence.
Step-Four Determination
In her decision, the ALJ determined Claimant suffered from the severe
impairments of osteoarthrosis, status post knee replacement, and hypertension.
(Tr. 15). The ALJ concluded that Claimant retained the RFC to perform light work
with limitations. Specifically, the ALJ found that Claimant can never climb
ladders, ropes, or scaffolds but can occasionally climb stairs, stoop, kneel,
crouch, and crawl. (Tr. 15).
After consultation with a vocational expert, the ALJ determined Claimant
could perform his past work of flower salesperson as he actually performed the
position and as it is generally performed. (Tr. 22). As a result, the ALJ found
6:22-cv-00079-JAR Document 19 Filed in ED/OK on 09/21/23 Page 4 of 9

5
Claimant has not been under a disability from, January 26, 2016, through the
date of the decision, June 18, 2021. (Tr. 22).
Claimant contends that the ALJ did not properly access his RFC as she
did not explain her findings in light of the medical record as a whole. Further,
Claimant 	argues 	that 	the 	ALJ 	improperly 	considered 	the 	medical 	opinion
evidence of Dr. Schipul.
“[R]esidual functional capacity consists of those activities that a claimant
can still perform on a regular and continuing basis despite his or her physical
limitations.” White v. Barnhart, 287 F.3d 903, 906 n.2 (10th Cir. 2001). A
residual functional capacity assessment “must include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical
facts . . . and nonmedical evidence.” Soc. Sec. Rul. 96-8p, 1996 WL 374184, *7
(July 2, 1996). The ALJ must also discuss the individual's ability to perform
sustained 	work 	activities 	in 	an 	ordinary 	work 	setting 	on 	a 	“regular 	and
continuing basis” and describe the maximum amount of work-related activity
the individual can perform based on evidence contained in the case record. Id.
He 	must 	“explain 	how 	any 	material 	inconsistencies 	or 	ambiguities 	in 	the
evidence in the case record were considered and resolved.” Id. However, there is
“no requirement in the regulations for a direct correspondence between an RFC
finding and a specific medical opinion on the functional capacity in question.”
Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012).
The ALJ limited Claimant to a light RFC but did not address Claimant’s
need for walking limitations due to his difficulty in walking for long periods of
6:22-cv-00079-JAR Document 19 Filed in ED/OK on 09/21/23 Page 5 of 9

6
time as was recommended by Dr. Schipul. For claims filed on or after March 27,
2017, medical opinions are evaluated pursuant to 20 C.F.R. §§ 404.1520c and
416.920c. Under these rules, 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, 	the 	ALJ 	evaluates 	the
persuasiveness of all medical opinions and prior administrative medical findings
by considering a list of factors. See 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The
factors are: (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). 	Generally, the ALJ is
not required to explain how the other factors were considered. See 20 C.F.R. §§
404.1520c(b)(2), 416.920c(b)(2). 	However, when the ALJ finds that two or more
medical opinions or prior administrative findings on the same issue are equally
well-supported and consistent with the record but are not exactly the same, the
ALJ must explain how “the other most persuasive factors in paragraphs (c)(3)
through (c)(5)” were considered. 	20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3).
Supportability 	and 	consistency 	are 	the 	most 	important 	factors 	in
evaluating the persuasiveness of a medical opinion and the ALJ must explain
6:22-cv-00079-JAR Document 19 Filed in ED/OK on 09/21/23 Page 6 of 9

7
how 	both 	factors 	were 	considered. 	See 	20 	C.F.R. 	§§ 	404.1520c(b)(2),
416.920c(b)(2). The supportability factor examines how well a medical source
supported their own opinion with “objective medical evidence” and “supporting
explanations.” 	20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). 	The consistency
factor calls for a comparison between the medical opinion and “the evidence from
other medical sources and nonmedical sources” in the record. 	20 C.F.R. §§
404.1520c(c)(2), 416.920c(c)(2).
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”). If he rejects an opinion
completely, the ALJ must give “specific, legitimate reasons” for doing so. Watkins
v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal citations omitted).
Here, the ALJ found the opinion of consultative physician, Dr. John
Schipul, to be “largely persuasive” although she found that it lacked “any
assessment of functional limitations.” (Tr. 21). The ALJ also stated that Dr.
Schipul’s opinions had some weight in her assessment of Claimant’s medically
determinable impairments and RFC. (Tr. 21) Despite these contentions, the ALJ
failed to include any explanation of why she included some of Dr. Schipul’s
6:22-cv-00079-JAR Document 19 Filed in ED/OK on 09/21/23 Page 7 of 9

8
limitations but not others. The ALJ’s only mention of reasoning for not accepting
some 	of 	Dr. 	Schipul’s 	conclusions 	occurred 	during 	her 	supportability 	and
credibility analysis of Claimant’s subjective complaints. The ALJ stated: “Dr.
Schipul described the claimant as having a slow and unsteady gait; however,
despite his complaints of joint symptomology, there was no joint swelling,
erythema, effusion, tenderness or deformity.” Both this statement and the ALJ’s
assessment of the weight assigned to Dr. Schipul’s opinion failed to address the
limitations found by Dr. Schipul that were not included in Claimant’s RFC.
In Dr. Schipul’s report, he not only concluded that Claimant had a slow
and unsteady gait, but also that he had a limited range of motion in his knees,
lower back, and ankles. (Tr. 875). Dr. Schipul even specified further that
Claimant was completely unable to walk on his heels and could walk on his toes
but with moderate difficulty. (Tr. 875). Dr. Schipul also opined as to Claimant’s
limitations, although the ALJ stated in her opinion that he did not assess
functional limitations, which included: (1) “difficulty keeling or stooping,” (2)
“difficulty bending forward to lift things,” (3) “difficulty handling things,” and (4)
“difficulty walking for a long time.” (Tr. 875). The ALJ included the first of these
limitations in Claimant’s RFC but not any other even though he deemed Dr.
Schipul’s opinion to be “largely persuasive.” It is clear the ALJ failed to apply the
proper standards in considering the medical opinion evidence of consultative
examiner Dr. Schipul. On remand, the ALJ should reconsider her evaluation of
consultative examiner, Dr. Schipul, providing specific, legitimate reasons for
rejecting the medical opinion evidence or otherwise making a clear delineation
6:22-cv-00079-JAR Document 19 Filed in ED/OK on 09/21/23 Page 8 of 9

9
between the conclusions she accepts and those she finds are unsupported. In
addition to reconsidering the medical opinion evidence, the ALJ should re-
evaluate Claimant’s RFC considering all medical evidence of record.
Conclusion
The decision of the Commissioner is not supported by substantial evidence
and the correct legal standards were not applied. Therefore, the Magistrate Judge
finds for the above and foregoing reasons, the ruling of the Commissioner of
Social Security Administration should be and is REVERSED and the case be
REMANDED for further proceedings.
DATED this 21st day of September, 2023.
________________________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
6:22-cv-00079-JAR Document 19 Filed in ED/OK on 09/21/23 Page 9 of 9