Pollard v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
LUCY MARIE POLLARD, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-22-236-JAR
)
COMMISSIONER OF THE SOCIAL 	)
SECURITY ADMINISTRATION, 	)
)
Defendant. 	)
OPINION AND ORDER
Plaintiff 	Lucy 	Marie 	Pollard 	(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 	completed 	her 	high 	school 	and 	college 	education.
Claimant 	has 	worked 	in 	the 	past 	as 	a 	secondary 	school 	teacher.
Claimant alleges an inability to work beginning May 1, 2016 due to
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limitations 	resulting 	from 	post-traumatic 	stress 	disorder,
depression, and heart attack with two stents placed.
Procedural History
On March 11, 2020, Claimant protectively filed for disability
insurance benefits under Title 	II (42 U.S.C. § 	401, 	et 	seq.) and
for Supplemental Security Income under Title XVI (42 U.S.C. § 1381,
et seq.) of the Social Security Act. 	Claimant’s applications were
denied 	initially 	and 	upon 	reconsideration. 	On 	January 	11, 	2022,
Administrative 	Law 	Judge 	(“ALJ”) 	Janet 	Akers 	conducted 	an
administrative 	hearing 	by 	telephone 	due 	to 	the 	extraordinary
circumstances 	posed 	by 	the 	COVID-19 	pandemic. 	On 	February 	1,
2022, 	the 	ALJ 	issued 	an 	unfavorable 	decision. 	On 	July 	6, 	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 her past relevant work.
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Error Alleged for Review
Claimant asserts the ALJ erred in failing to properly evaluate
the medical opinion evidence. 	Claimant also suggests that the ALJ
presiding 	over 	her 	case 	demonstrated 	a 	propensity 	to 	tailor 	the
questioning 	of 	the 	vocational 	expert 	and 	consideration 	of 	the
evidence to reach a pre-determined result of denying benefits.
Evaluation of Opinion Evidence
In 	her 	decision, 	the 	ALJ 	determined 	Claimant 	suffered 	from
the 	severe 	impairments 	of 	status 	post 	coronary 	artery 	stent
placement, 	type 	2 	diabetes 	mellitus, 	mild 	major 	depressive
disorder, bipolar disorder, and methamphetamine abuse with anxiety
disorder. 	(Tr. 18). 	The ALJ found none of Claimant’s conditions
met 	a 	listing. 	(Tr. 	18-19). 	As 	a 	result 	of 	the 	limitations
caused by her severe impairments, Claimant was found to retain the
residual functional capacity to perform light work except that she
could 	not 	perform 	production 	rate 	or 	pace 	work 	such 	as 	assembly
line work. 	(Tr 20).
After 	consultation 	with 	a 	vocational 	expert, 	the 	ALJ
determined 	that 	Claimant 	could 	perform 	her 	past 	relevant 	work 	as
a 	secondary 	school 	teacher. 	(Tr. 	30). 	Consequently, 	the 	ALJ
found 	that 	Claimant 	had 	not 	been 	under 	a 	disability 	from 	May 	1,
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2015 through the date of the decision. 	Id.
The 	sole 	issue 	raised 	by 	Claimant 	in 	this 	appeal 	is 	whether
the 	ALJ 	properly 	considered 	the 	medical 	opinion 	evidence 	offered
by 	non-examining 	state 	agency 	psychological 	consultants, 	Dr.
William 	Farrell 	and 	Dr. 	Bruce 	Lochner. 	Dr. 	Farrell 	evaluated
Claimant’s 	mental 	health 	records 	and 	issued 	a 	report 	dated 	April
27, 2020. 	Dr. Lochner did the same in a report dated He determined
Claimant suffered from Depressive, Bipolar, and Related Disorders
under listing 12.04 and Anxiety and Obsessive-Compulsive Disorders
under 	listing 	12.06. 	He 	found 	she 	had 	mild 	limitations 	in
understanding, 	remembering, 	or 	applying 	information 	and 	adapting
or 	managing 	oneself. 	Dr. 	Farrell 	also 	determined 	Claimant 	had
moderate limitations in interacting with others and concentration,
persistence, 	or 	maintaining 	pace. 	(Tr. 	74). 	Dr. 	Farrell 	also
completed a Mental Residual Functional Capacity Assessment form on
Claimant, 	also 	dated 	April 	27, 	2020. 	He 	found 	Clamant 	had
limitations 	in 	understanding 	and 	memory, 	sustained 	concentration
and persistence, social interaction, and adaptation. 	(Tr. 79-82).
He also determined Claimant was moderately limited in the ability
to understand and remember detailed instructions, ability to carry
out detailed instructions, ability to interact appropriately with
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the 	general 	public, 	ability 	to 	accept 	instructions 	and 	respond
appropriately to criticism from supervisors, ability to get along
with 	co-workers 	or 	peers 	without 	distracting 	them 	or 	exhibiting
behavioral 	extremes, 	and 	ability 	to 	respond 	appropriately 	to
changes 	in 	the 	work 	setting. 	Id. 	Dr. 	Farrell 	concluded 	that
Claimant 	was 	able 	to 	perform 	both 	simple 	and 	some 	complex 	work
tasks, to relate to supervisors, co-workers, and the general public
on a superficial and 	limited work basis, and to adapt to changes
in the workplace setting. 	(Tr. 83).
Dr. 	Lochner 	issued 	his 	report 	on 	the 	same 	date. 	(Tr. 	115-
117). 	He made substantially the same findings as Dr. Farrell with
the same areas of limitations noted. 	(Tr. 121-125).
In her decision, the ALJ found Dr. Farrell’s and Dr. Lochner’s
opinions 	of 	limitation 	“not 	persuasive.” 	(Tr. 	29). 	The 	ALJ
determined 	“there 	is 	nothing 	in 	the 	file 	to 	suggest 	that 	the
claimant has an inability to interact with others.” 	She found the
record 	indicated 	Claimant 	was 	“cooperative 	and 	interacted
appropriately” during examinations. 	Id.
Because 	Claimant’s 	application 	for 	benefits 	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
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the 	revised 	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, 	she 	must 	“articulate” 	in 	her 	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
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the other factors 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).
The 	ALJ’s 	findings 	on 	supportability 	and 	consistency
pertaining to Dr. Farrell’s and Dr. Lochner’s opinions are lacking.
By declaring that there is “nothing in the file” to support these
mental health professionals’ opinions, it necessarily leads one to
look for the absence of evidence “in the file.” 	To be fair, the
medical 	record 	contains 	several 	references 	to 	Claimant 	having
“interacted 	appropriately” 	during 	examination 	visits. 	(Tr. 	696,
709, 722, 735, 747, 753, 765, 771, 784, 790). 	Claimant cites to
various admittedly problematic behaviors during examinations which
reflects 	upon 	Claimant’s 	ability 	to 	work 	but 	not 	necessarily 	her
ability 	to 	interact 	with 	others. 	(Tr. 	445)(“Incessant 	talking
with being fidgety.”), (Tr. 710, 723)(“Delusions – talks of people
living 	in 	crawl 	space 	and 	traveling 	with 	tubs 	that 	can 	get 	into
anyone’s 	apartment 	that 	they 	want.”), 	(Tr. 	760-
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61)(“Rapid/Accelerated 	Speech”, 	“Paranoid 	– 	Flight 	of 	Ideas”,
“Loose – Associations”, “Delusions”, “Distracted – Attention Span
and Concentration.”).
The 	single 	finding 	that 	the 	record 	does 	not 	support 	a
limitation for interacting with others does not address the other
restrictions found by Drs. Farrell and Lochner or support a finding
that their entire report/opinions should be rejected. 	In failing
to 	analyze 	the 	other 	findings 	by 	these 	professionals, 	the 	ALJ
failed 	to 	engage 	in 	the 	appropriate 	evaluation 	of 	the
supportability and consistency of the overall and entire opinions
provided 	– 	including 	the 	findings 	of 	moderate 	limitations 	in 	the
ability to understand and remember detailed instructions, ability
to carry out detailed instructions, ability to accept instructions
and 	respond 	appropriately 	to 	criticism 	from 	supervisors, 	ability
to get along with co-workers or peers without distracting them or
exhibiting 	behavioral 	extremes, 	and 	ability 	to 	respond
appropriately to changes in the work setting. 	On remand, the ALJ
shall provide the required supportability and consistency analysis
before 	the 	wholesale 	rejection 	of 	these 	mental 	health
professionals’ opinions.
As 	for 	the 	issue 	raised 	by 	Claimant 	concerning 	the 	ALJ’s
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propensity 	to 	move 	the 	evidence 	toward 	a 	pre-determined 	desired
result, 	this 	Court 	has 	reviewed 	the 	transcript 	of 	the
administrative 	hearing 	and 	finds 	no 	such 	propensity 	from 	the
record.
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
proceedings consistent with this decision.
IT IS SO ORDERED this 28th day of March, 2024.
______________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
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