Peters v. Astrue

Filing 16

MEMORANDUM OPINION AND ORDER. Signed by Honorable Wallace Capel, Jr on 6/8/2010. Copy also mailed to SSA Chief Judge and SSA Office of Hearings and Appeals.(wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION M A R V IN J. PETERS, P l a in tif f , v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:09cv680-WC

MEMORANDUM OPINION AND ORDER I. INTRODUCTION P la in tif f Marvin J. Peters applied for disability insurance benefits under Title II of the S o c ia l Security Act ("the Act"), 42 U.S.C. § 401 et seq. His application was denied at the in itia l administrative level. Plaintiff then requested and received a hearing before an A d m in i str a tiv e Law Judge (ALJ). Following the hearing, the ALJ also denied the claims. (T r. 10-17). The Appeals Council rejected a subsequent request for review. The ALJ's d e c isio n consequently became the final decision of the Commissioner of Social Security (C o m m issio n er).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is n o w before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), b o th parties have consented to the conduct of all proceedings and entry of a final judgment

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.

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b y the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #9); D e f .'s Consent to Jurisdiction (Doc. #8). Based on the Court's review of the record and the b rief s of the parties, the Court REVERSES the decision of the Commissioner. II. STANDARD OF REVIEW U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period o f not less than 12 months. 4 2 U.S.C. § 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920 (2006). (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? (3 ) Does the person's impairment meet or equal one of the specific im p a i r m e n t s set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next q u e sti o n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ."

A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 2

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M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f jobs in the national economy the claimant can perform. Id. To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines 4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or lig h t work, inability to speak English, educational deficiencies, and lack of job experience. E a c h factor can independently limit the number of jobs realistically available to an
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McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).
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See 20 C.F.R. pt. 404 subpt. P, app. 2. 3

in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must f in d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U .S .C . § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m is s io n e r 's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

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III.

ADMINISTRATIVE PROCEEDINGS P la in tif f was fifty-three years old at the time of the hearing before the ALJ. Tr. 23.

P lain tiff completed his high school education. Tr. 25. Plaintiff's past relevant work e x p e rie n c e includes work as a "winding machine operator." Tr. 15, 27, 33. Following the a d m in is tra tiv e hearing, and employing the five-step process, the ALJ found Plaintiff had not e n g a g e d in substantial gainful activity since June 2, 2006, the alleged onset date of his d is a b ility (Step 1). Tr. 43. At Step 2, the ALJ found that Plaintiff suffers from the following se v e re impairments: "left rotator cuff tear requiring surgical correction times four and mild s u b lu x a ti o n of both hands." Tr. 12. The ALJ then found that Plaintiff "does not have an im p a irm e n t or combination of impairments that meets or medically equals one of the listed im p a i rm e n t s . . . ." (Step 3) Tr. 13. Next, the ALJ found that Plaintiff has the RFC to " p e rf o rm light work . . . except he cannot work in tasks requiring him to perform overhead re a ch in g , reaching/pushing/pulling anything in excess of 20 pounds occasionally and 10 p o u n d s frequently. He cannot climb ropes, ladders or scaffolds, and cannot work around h a z a r d o u s moving equipment. He can perform bilateral gross manipulation only

o cc asio n ally." Tr. 13. Given this RFC, the ALJ determined that Plaintiff can not perform a n y past relevant work (Step 4). Tr. 15. Next, the ALJ found that, given Plaintiff's age, ed u ca tio n , work experience, and RFC, and after consulting with a vocational expert, "there a re jobs that exist in significant numbers in the national economy" which Plaintiff can p e rf o rm . (Step 5) Tr. 15. The ALJ found that such occupations include: "Counter Clerk,"

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" S e c u rity Guard," and "Information Clerk." Tr. 16. Accordingly, the ALJ determined that P la in tif f "has not been under a disability, as defined in the Social Security Act, from June 2, 2 0 0 6 , through the date of this decision." Tr. 16. IV . P L A I N T I F F 'S CLAIMS P la in tif f alleges three errors requiring reversal of the ALJ's decision: (1) "the ALJ e rre d by failing to properly evaluate the opinion of Dr. Norwood;" (2) "the ALJ erred in f in d in g that [Plaintiff] retained the residual functional capacity to perform light work;" and (3) "the ALJ erred by failing to pose a complete hypothetical to the Vocational Expert." Pl.'s B rie f (Doc. #13) at 1. V. DISCUSSION A. T h e ALJ's treatment of Plaintiff's treating source opinion.

P lain tiff claims that, "while the ALJ gave substantial weight to the opinion of Dr. N o rw o o d [Plaintiff's treating physician with respect to his shoulder], she selectively quoted f ro m Dr. Norwood's opinion to find that [Plaintiff] retained the [RFC] to perform light w o r k ." Pl.'s Brief (Doc. #13) at 8. Plaintiff faults the ALJ for, essentially, failing to address D r. Norwood's opinion, rendered in February, 2008, that Plaintiff is unable to do certain a c tiv itie s which are encompassed by the RFC later-announced by the ALJ. Pl.'s Brief (Doc. # 1 3 ) at 8. Defendant appears to contend that the ALJ properly considered Dr. Norwood's o p i n i o n and - apparently by implication - resolved any conflict between that opinion and

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o th e r evidence in the record. Def.'s Brief (Doc. #14) at 12-13. The record establishes that Dr. Norwood has been Plaintiff's treating physician re sp e c tin g his shoulder for a number of years. Dr. Norwood placed Plaintiff at maximum m e d ic a l improvement, with respect to his left shoulder, in December, 2006, and hence re c o m m e n d e d a functional capacity evaluation (FCE). Tr. 206. The evaluation took place in January, 2007. Tr. 177-199. Dr. Norwood had a follow-up visit with Plaintiff after the e v a lu a tio n . The treatment notes from this evaluation reflect Dr. Norwood's opinion that, as o f January 12, 2007, Plaintiff could "work within the restrictions of his FCE." Tr. 203. In a n o th e r follow-up visit, in March of 2007, Dr. Norwood again confirmed that Plaintiff could " w o rk within the restrictions of his FCE." Tr. 327. In February, 2008, Dr. Norwood saw P lain tiff on a follow-up visit almost one year after his last visit and approximately twenty m o n th s after his fourth shoulder surgery. Tr. 335. During this visit, Dr. Norwood noted a p p a re n t deterioration in Plaintiff's condition and abilities, including significant restriction o f his range of motion. Dr. Norwood attributed this more severe restriction to "scar tissue in the joint tightening up." Tr. 335. Dr. Norwood further stated as follows: S in c e he was seen last time, his range of motion has decreased and his s ym p to m s have increased due to his decreased range of motion. He can do le ss things with his shoulder than he could. So, basically without doing a n yth in g more substantial to his shoulder, he cannot do overhead lifting. He c a n n o t climb. He cannot do repetitive pushing or pulling activities. He cannot d o any lifting with his left arm. I would think that would significantly limit his a b ilitie s. The synopsis of this is that he has not improved, and if anything, he is worse than he was. . . . Hopefully this helps him with his situation as far as w o r k and understanding his current status. 7

T r. 335. This report marks the last evidence of Dr. Norwood's observation of Plaintiff in the re c o rd . Hence, by any objective measure, the most recent opinion by Plaintiff's treating p h ysic ian about Plaintiff's ability to perform certain functional movements involving his sh o u lder is both extremely restrictive and pessimistic about the prospect of Plaintiff's c o n d itio n improving. D e sp ite Dr. Norwood's opinion, the ALJ determined that Plaintiff retains the RFC to " p e rf o rm light work . . . except he cannot work in tasks requiring him to perform overhead re a ch in g , reaching/pushing/pulling anything in excess of 20 pounds occasionally and 10 p o u n d s frequently." Tr. 13. According to the Agency, L ig h t work involves lifting no more than 20 pounds at a time with frequent lif tin g or carrying of objects weighing up to 10 pounds. Even though the w e ig h t lifted may be very little, a job is in this category when it requires a good d e a l of walking or standing, or when it involves sitting most of the time with s o m e pushing and pulling of arm or leg controls. To be considered capable of p e rf o rm in g a full or wide range of light work, you must have the ability to do s u b s ta n tia lly all of these activities. 20 C.F.R. § 404.1567(b). The additional restrictions incorporated by the ALJ into Plaintiff's R F C , pertaining to "overhead reaching, reaching/pushing/pulling anything in excess of 20 p o u n d s occasionally and 10 pounds frequently," do not fully account for Dr. Norwood's o p in io n that Plaintiff "cannot do repetitive pushing or pulling activities" or "any lifting with h is left arm." Tr. 335. Accordingly, Dr. Norwood's opinion appears at odds with both the d e f in itio n of light work and the ALJ's ultimate rendering of Plaintiff's RFC.

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W h e n confronted with the opinion of a claimant's treating physician, the ALJ must a f f o rd it substantial and considerable weight unless "good cause" is shown to the contrary. C r a w fo r d v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004). See also Bliss v. C o m m 'r of Soc. Sec., 254 F. App'x 757, 758 (11th Cir. 2007) ("An ALJ may reject the o p in io n of a treating physician, which ordinarily receives substantial weight, where `good c a u se ' is established."). "`[G]ood cause' exists when the: (1) treating physician's opinion w a s not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating p h ys ic ia n 's opinion was conclusory or inconsistent with the doctor's own medical records." P h i llip s v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). "The ALJ must clearly a rtic u la te the reasons for giving less weight to the opinion of a treating physician, and the f a ilu re to do so is reversible error." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1 9 9 7 ). See also MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (holding the A L J "must specify what weight is given to a treating physician's opinion and any reason for g iv in g it no weight"). "Where the ALJ articulated specific reasons for failing to give the o p in io n of a treating physician controlling weight, and those reasons are supported by s u b s ta n tia l evidence," a reviewing court may not "disturb the ALJ's refusal to give the o p in io n controlling weight." Carson v. Comm'r of Soc. Sec., 300 F. App'x 741, 743 (11th C ir. 2008). In her opinion, the ALJ reviewed the medical evidence, including the treatment notes o f Dr. Norwood. However, in twice alluding to Dr. Norwood's February, 2008,

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o b s e rv a tio n s , the ALJ only states that "a physical exam revealed that scar tissue in his joint w a s tightening up and had restricted his motion," Tr. 13, and that Plaintiff's "range of motion h a d subsequently decreased and his symptoms increased, when seen [by Dr. Norwood] on F e b ru a ry 4, 2008." Tr. 15. Thus, the ALJ wholly failed to address Dr. Norwood's opinion a b o u t Plaintiff's inability to do "repetitive pushing or pulling activities" or "any lifting with h is left arm." The ALJ's omission of these aspects of Dr. Norwood's opinion, and a c o rre sp o n d in g reconciliation of his opinion with the RFC found by the ALJ, is given a d d itio n a l context by the ALJ's apparent erroneous attribution of Dr. Rehak's May 5, 2008, o b s e rv a tio n s and opinions to Dr. Norwood. Twice in her opinion, see Tr. 13 & 14, the ALJ states that Dr. Norwood saw Plaintiff in May 2008 to examine his wrist. However, Dr. N o rw o o d was involved in the treatment of Plaintiff's shoulder, while Drs. Gudger and Rehak w e re involved with Plaintiff's wrists. Tr. 329-334. It was Dr. Rehak who examined P lain tiff 's wrist in May, 2008, and, according to the ALJ, "released [Plaintiff] to return to w o r k with restrictions noted earlier in the functional assessment." Tr. 15. Dr. Norwood is s u e d no such opinion in May of 2008 which is included in the record before the Court. The A L J 's erroneous attribution of such opinion to Dr. Norwood, occurring chronologically after D r. Norwood's highly restrictive February, 2008, opinion, suggests an explanation for the A L J 's failure to lend more attention and credence to Dr. Norwood's February, 2008, opinion. In this case, the ALJ did not expressly discount the opinion of Plaintiff's treating p h ys ic ia n , Dr. Norwood. Indeed, the ALJ purported to give "substantial weight" to the

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o p in i o n of Dr. Norwood. Tr. 15. However, as demonstrated above, the ALJ failed to address s ig n if ic a n t aspects of Dr. Norwood's most recent opinion and compounded this omission by a ttrib u tin g other physician opinion - which superficially could be thought to negate the earlier o p in io n 5 - to Dr. Norwood. It is possible that the ALJ considered Dr. Norwood's opinion d e sp ite failing to address it in her opinion - but determined that other evidence, including e v id e n c e of Plaintiff's daily activities, the ALJ's credibility determination, and the erroneous b elief that, in May of 2008, Dr. Norwood again cleared Plaintiff to work, did not support s u c h opinion. However, to the extent the ALJ may have intended her opinion to reflect some re jec tio n of Dr. Norwood's opinion about Plaintiff's limitations in February, 2008, it is p lain ly insufficient pursuant to the standards discussed above. In failing to address the more s a lie n t aspects of Dr. Norwood's opinion, the ALJ failed to articulate any reason why she m a y have afforded such opinion less weight. It is more likely that the ALJ intended no rejection of any aspect of Dr. Norwood's o p in io n and simply failed to properly consider the significance of all aspects of Dr. N o rw o o d 's February, 2008, opinion.6 This to, however, would be an error which requires re m a n d . Without an explanation of the weight afforded specifically to the more restrictive

It is important to remember that, while Dr. Rehak did indeed find that Plaintiff could "return to work with restrictions noted earlier in the functional assessment," Tr. 15, Dr. Rehak was rendering such opinion based upon his examination of Plaintiff's wrists. Dr. Norwood's February, 2008, opinion remains the most recent medical opinion about Plaintiff's functional capacity limitations owing to his shoulder.
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The ALJ's erroneous attribution of Dr. Rehak's opinion to Dr. Norwood supports 11

this premise.

o p in io n articulated by Dr. Norwood, "it is impossible to determine whether it was even co n side red " and "the undersigned is unable to conduct a meaningful review of the ALJ's e v a lu a tio n " of the opinion. Tolbert v. Astrue, 2010 WL 962714 at *16 (M.D. Fla. Mar. 16, 2 0 1 0 ) (remanding to the ALJ for reconsideration of narrow aspect of medical source opinion w h e re "`the ALJ gave significant weight' [to that source's opinions] generally"). See also F o r te s v. Astrue, 2009 WL 734161 at *3 (S.D. Cal. Mar. 18, 2009) (remanding where ALJ re lie d on some aspects of medical source opinion but "did not discuss" other aspects of the o p in io n relevant to RFC). Accordingly, this matter is due to be remanded so that the ALJ m a y properly evaluate the opinion of Dr. Norwood to the extent it contrasts with the d e f in itio n of light work and the RFC articulated by the ALJ. VI. C O N C L U SIO N T h e Court has carefully and independently reviewed the record and concludes the d e c is i o n of the Commissioner is supported by substantial evidence and is, therefore, R E V E R S E D . A separate judgment will issue. D O N E this 8th day of June, 2010.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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