Klodzinski v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
FERN KLODZINSKI, 	)
)
Plaintiff, 	)
)
) 	Case No. CIV-20-229-JFH-KEW
)
COMMISSIONER OF THE SOCIAL 	)
SECURITY ADMINISTRATION, 	)
)
Defendant. 	)
REPORT AND RECOMMENDATION
Plaintiff Fern Klodzinski (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration 	(the 	“Commissioner”) 	denying 	her 	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 she was not disabled. For the reasons discussed below,
it is the recommendation of the undersigned 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
Security 	Act 	“only 	if 	his 	physical 	or 	mental 	impairments 	are 	of
such 	severity 	that 	he 	is 	not 	only 	unable 	to 	do 	his 	previous 	work
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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 	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
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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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 	54 	years 	old 	at 	the 	time 	of 	the 	decision. 	She
has 	at 	least 	a 	high 	school 	education 	and 	no 	past 	relevant 	work.
Claimant 	alleges 	an 	inability 	to 	work 	beginning 	on 	December 	28,
2015, due to panic attacks, anxiety, agoraphobia, and depression.
Procedural History
On April 28, 2016, Claimant filed her application for widow’s
insurance 	benefits 	under 	Title 	II 	(42 U.S.C. 	§ 	401, 	et 	seq.) 	of
the Social Security Act. Her application was denied initially and
upon 	reconsideration. 	On 	July 	29, 	2019, 	ALJ 	David 	W. 	Engel
conducted an administrative hearing from Tulsa, Oklahoma, at which
Claimant 	testified. 	On 	August 	26, 	2019, 	the 	ALJ 	entered 	an
unfavorable 	decision. 	Claimant 	requested 	review 	by 	the 	Appeals
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Council, 	and 	on 	May 	8, 	2000, 	it 	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 	his 	decision 	at 	step 	five 	of 	the 	sequential
evaluation. 	He determined that 	while Claimant suffered from severe
impairments, she did not meet a listing and retained the residual
functional 	capacity 	(“RFC”) 	to 	perform 	light 	and 	sedentary 	work,
with additional limitations.
Errors Alleged for Review
Claimant 	asserts 	the 	ALJ 	erred 	by 	(1) 	failing 	to 	follow
correct legal standards when evaluating medical opinion evidence;
(2) conducting an improper symptom evaluation by using her mental
health symptoms against her; and (3) the ALJ’s RFC assessment and
step-five determination are not supported by substantial evidence.
Consideration of the Consultative Opinion Evidence
In his decision, the ALJ found Claimant suffered from severe
impairments of degenerative disc disease, obesity, depression, and
anxiety. 	(Tr. 	20). 	He 	determined 	Claimant 	could 	perform 	a 	full
range 	of 	work 	at 	the 	light 	and 	sedentary 	exertional 	levels, 	with
additional limitations. Specifically, Claimant was unable to climb
ropes, 	ladders, 	and 	scaffolds 	and 	was 	unable 	to 	work 	in
environments 	exposing 	her 	to 	unprotected 	heights 	and 	dangerous
moving machinery parts. She could understand, remember, and carry
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out 	simple 	instructions 	in 	a 	work-related 	setting 	and 	could
interact 	with 	co-workers 	and 	supervisors 	under 	routine
supervision. 	She 	was 	unable 	to 	interact 	with 	the 	general 	public
more 	than 	occasionally, 	regardless 	of 	in 	person 	or 	over 	the
telephone 	contact. 	The 	ALJ 	acknowledged 	Claimant 	was 	“afflicted
with 	symptoms 	from 	a 	variety 	of 	sources 	to 	include 	moderate
intermittent pain and fatigue, and allied disorders, all variously
described, that are of sufficient severity so as to be noticeable
to her at all times, but nevertheless is able to remain attentive
and responsive in a work-setting and would be able to perform work
assignments within the above-cited limitations.” (Tr. 23).
After consultation with a vocational expert 	(“VE”), the ALJ
determined Claimant could perform the representative jobs of office
helper, 	mail 	clerk, 	and 	routing 	clerk, 	all 	of 	which 	he 	found
existed in sufficient numbers in the national economy. As a result,
the ALJ concluded Claimant was not under a disability from December
28, 2015, through the date of the decision. (Tr. 29).
Claimant 	contends 	the 	ALJ 	failed 	to 	properly 	evaluate
opinions 	from 	consulting 	psychologist, 	Larry 	Vaught, 	Ph.D. 	She
argues 	that 	the 	ALJ’s 	failure 	to 	properly 	consider 	Dr. 	Vaught’s
opinions 	regarding 	her 	mental 	limitations 	resulted 	in 	the 	ALJ’s
improper consideration of the evidence at step three when assessing
the 	“paragraph 	B” 	criteria 	and 	throughout 	the 	rest 	of 	the
sequential evaluation process. Claimant also focuses on the ALJ’s
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failure to discuss why he rejected limitations by Dr. Vaught that
she 	suffered 	from 	marked 	supervisory 	and 	co-worker 	restrictions,
as 	well 	as 	a 	marked 	limitation 	in 	her 	ability 	to 	respond
appropriately to usual work situations and changes in routine work
settings.
Claimant 	underwent 	a 	psychological 	examination 	with 	Dr.
Vaught on October 22, 2018. She reported chronic anxiety with panic
symptoms, 	which 	had 	become 	worse 	since 	the 	death 	of 	her 	husband.
She had difficulty being around others, even close relatives, and
did not like leaving her house. Claimant reported she had not taken
any 	psychotropic 	medications 	since 	2005. 	Her 	mental 	status
examination 	revealed 	speech 	that 	was 	intelligible 	and 	fluent,
logical 	thinking, 	and 	constricted 	affect. 	She 	could 	repeat 	six
digits forward and four backward and had an average I.Q. Dr. Vaught
concluded 	Claimant’s 	overall 	demeanor 	was 	anxious, 	and 	she
reported 	a 	regressed 	lifestyle. 	Her 	results 	on 	the 	Rorschach
reflected 	the 	likelihood 	of 	perceptual 	and 	emotional 	disruption
when 	overwhelmed, 	with 	indices 	of 	hyperemotionality 	and
depression. 	He 	diagnosed 	Claimant 	with 	panic 	disorder 	with
agoraphobia, 	unspecified 	depressive 	disorder, 	and 	persistent
complex bereavement disorder. (Tr. 617-21).
On 	November 	6, 	2018, 	Dr. 	Vaught 	also 	completed 	a 	mental
medical source statement of Claimant’s abilities to perform work-
related activities. Under her ability to understand, remember, and
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carry 	out 	instructions, 	he 	noted 	both 	mild 	and 	moderate
limitations. 	Specifically, 	he 	determined 	Claimant 	had 	moderate
limitations 	in 	her 	abilities 	to 	understand 	and 	remember 	complex
instructions, 	carry 	out 	complex 	instructions, 	and 	in 	her 	ability
to 	make 	judgments 	on 	complex 	work-related 	decisions. 	He 	made 	his
determinations based upon Claimant’s testing. Regarding Claimant’s
ability 	to 	interact 	appropriately 	with 	supervisors, 	co-workers,
and 	the 	public 	and 	respond 	appropriately 	to 	changes 	in 	a 	routine
work setting, Dr. Vaught determined Claimant suffered from marked
limitations 	in 	her 	abilities 	to 	interact 	appropriately 	with 	the
public, 	supervisors, 	and 	co-workers. 	She 	also 	had 	a 	marked
limitation 	in 	her 	ability 	to 	respond 	appropriately 	to 	usual 	work
situations 	and 	to 	changes 	in 	a 	routine 	work 	setting. 2 	Dr. 	Vaught
based 	the 	limitations 	on 	Claimant’s 	diagnosis 	of 	panic 	disorder
and 	depression 	and 	her 	results 	on 	the 	Rorschach. 	He 	noted 	it 	was
“unknown” 	on 	what 	date 	her 	limitations 	were 	first 	present. 	(Tr.
622-24).
The ALJ is required to consider all medical opinions, whether
they come from a treating physician or non-treating source. Doyal
v. 	Barnhart, 	331 	F.3d 	758, 	764 	(10th 	Cir. 	2003); 	20 	C.F.R. 	§§
404.1527(c), 	416.927(c). 	He 	must 	provide 	specific, 	legitimate
2 	The 	medical 	source 	statement 	form 	completed 	by 	Dr. 	Vaught
defines 	“marked” 	as 	when 	“[t]here 	is 	serious 	limitation 	in 	this 	area.
There 	is 	a 	substantial 	loss 	in 	the 	ability 	to 	effectively 	function.”
(Tr. 622).
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reasons 	for 	rejecting 	any 	such 	opinions. 	The 	ALJ 	must 	consider
several 	factors 	in 	weighing 	any 	medical 	opinions. 	Id. 	“[I]n
addition 	to 	discussing 	the 	evidence 	supporting 	his 	decision, 	the
ALJ 	also 	must 	discuss 	the 	uncontroverted 	evidence 	he 	chooses 	not
to 	rely 	upon, 	as 	well 	as 	significantly 	probative 	evidence 	he
rejects.” 	Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996),
citing Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95
(9th 	Cir. 	1984). 	The 	ALJ 	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 	discussed 	Claimant’s 	examination 	with 	Dr. 	Vaught 	in
his 	decision. 	Regarding 	her 	social 	function, 	he 	noted 	Dr. 	Vaught
observed Claimant to be “very anxious” and that her activities of
daily living included a regressed lifestyle. The ALJ discussed Dr.
Vaught’s 	testing 	of 	Claimant, 	including 	intelligence 	testing 	and
academic 	performance 	testing. 	He 	discussed 	her 	results 	on 	the
Rorschach. 	The 	ALJ 	noted 	Dr. 	Vaught’s 	diagnosis 	of 	Claimant 	with
panic disorder with agoraphobia, unspecified depressive disorder,
and persistent bereavement disorder. (Tr. 26-27).
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Regarding 	Claimant’s 	mental 	impairments, 	the 	ALJ 	discussed
the opinion evidence from the state agency reviewing psychologist
from March of 2017, wherein it was determined Claimant was capable
of 	simple, 	routine, 	repetitive 	tasks, 	superficial 	contact 	with
coworkers and the general public, and was able to adapt to simple
changes 	in 	the 	workplace 	and 	carry 	out 	simple 	goals 	and 	plans 	as
directed by supervisors. (Tr. 27, 128-29). The ALJ assigned “great
weight” 	to 	the 	opinion, 	noting, 	however, 	that 	“the 	totality 	of
evidence is more consistent with the above RFC.” (Tr. 27). Nowhere
in 	the 	decision 	did 	the 	ALJ 	specifically 	discuss 	Dr. 	Vaught’s
findings 	on 	the 	mental 	medical 	source 	statement. 	Dr. 	Vaught’s
“marked” functional limitations in Claimant’s ability to engage in
social 	interactions 	at 	work 	and 	her 	response 	to 	changes 	in 	the
work 	setting 	appear 	to 	conflict 	with 	the 	limitations 	the 	ALJ
included in the RFC. A court cannot substitute its opinion or that
of 	Defendant 	for 	the 	ALJ. 	See 	Allen 	v. 	Barnhart, 	357 	F.3d 	1140,
1142 (10th Cir. 2004) (“Affirming this post hoc effort to salvage
the ALJ’s decision would require us to overstep our institutional
role and usurp essential functions committed in the first instance
to the administrative process.”). On remand, the ALJ should discuss
Dr. Vaught’s opinions from the mental medical source statement and
give specific reasons if he chooses to reject them. 3
3 	On 	remand, 	the 	ALJ 	should 	also 	consider 	Dr. 	Vaught’s
diagnosis of Claimant with panic disorder with agoraphobia at the earlier
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Evaluation of Symptoms
Claimant 	also 	contends 	the 	ALJ 	improperly 	dismissed 	her
subjective 	symptoms 	by 	using 	her 	mental 	health 	symptoms 	against
her. Because the evaluation of Claimant’s symptoms is tied closely
to the RFC determination, after properly considering the opinions
of 	Dr. 	Vaught 	in 	conjunction 	with 	the 	other 	evidence 	of 	record,
the ALJ should reconsider his assessment of Claimant’s subjective
symptoms on remand. 	See Poppa v. Astrue, 569 F.3d 1167, 1171 (10th
Cir. 	2009) 	(“Since 	the 	purpose 	of 	the 	[symptom] 	evaluation 	is 	to
help 	the 	ALJ 	access 	a 	claimant’s 	RFC, 	the 	ALJ’s 	[symptom
evaluation] and RFC determinations are inherently intertwined.”).
Step Four and Step Five Determinations
In 	the 	RFC 	assessment, 	the 	ALJ 	determined 	Claimant 	could
understand, remember, and carry out simple instructions in a work-
related setting and interact with co-workers and supervisors under
routine 	supervision. 	Claimant, 	however, 	was 	unable 	to 	interact
steps in the sequential process. Defendant, however, is correct that the
marked 	functional 	limitations 	assessed 	by 	Dr. 	Vaught 	on 	the 	mental
medical 	source 	statement 	are 	distinct 	from 	the 	analysis 	undertaken 	by
the ALJ involving the “paragraph B” criteria at steps two and three of
the 	sequential 	evaluation 	process. 	See 	Soc. 	Sec. 	Rul. 	96-8p, 	1996 	WL
374184, 	at 	*4 	(July 	2, 	1996) 	(“The 	adjudicator 	must 	remember 	that 	the
limitations identified in the “paragraph B” and “paragraph C” criteria
are 	not 	an 	RFC 	assessment 	but 	are 	used 	to 	rate 	the 	severity 	of 	metal
impairment(s) at steps 2 and 3 of the sequential evaluation process. The
mental RFC assessment used at steps 4 and 5 of the sequential evaluation
process 	requires 	a 	more 	detailed 	assessment 	by 	itemizing 	various
functions contained in the broad categories found in paragraphs B and C
of 	the 	adult 	mental 	disorders 	listings 	in 	12.00 	of 	the 	Listing 	of
Impairments, and summarized on the PRTF.”).
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with the general public more than occasionally, regardless of the
interaction 	being 	in 	person 	or 	over 	the 	telephone. 	He 	found 	she
was “able to remain attentive and responsive in a work setting and
could perform work assignments consistent with the limitations in
the RFC. (Tr. 23). Because the ALJ’s consideration of Dr. Vaught’s
opinions may result in further limitations in the RFC, on remand,
the ALJ should reassess his findings at steps four and five of the
sequential process, including Claimant’s subjective symptoms, and
determine what work, if any, she can perform.
Conclusion
The 	decision 	of 	the 	Commissioner 	is 	not 	supported 	by
substantial 	evidence 	and 	the 	correct 	legal 	standards 	were 	not
applied. Therefore, the Magistrate Judge recommends for the above
and 	foregoing 	reasons, 	the 	ruling 	of 	the 	Commissioner 	of 	Social
Security 	Administration 	should 	be 	REVERSED 	and 	the 	case 	REMANDED
for further proceedings. 	The parties are herewith given fourteen
(14) 	days 	from 	the 	date 	of 	the 	service 	of 	this 	Report 	and
Recommendation to file with the Clerk of the court any objections,
with 	supporting 	brief. 	Failure 	to 	object 	to 	the 	Report 	and
Recommendation 	within 	fourteen 	(14) 	days 	will 	preclude 	appellate
review 	of 	this 	decision 	by 	the 	District 	Court 	based 	on 	such
findings.
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DATED this 23rd day of August, 2021.
_____
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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