STEPHENSON v. ASTRUE
CLOSED REMANDED to Commissioner - Because of the need to re-evaluate Dr. Allmon's opinions under the treating physician's rule may impact the overall analysis of Plaintiffs RFC, the Commissioner's decision that Stephenson is not disabled and not entitled to benefits is REVERSED. This matter is REMANDED to the Commissioner for further action consistent with this opinion. Signed by Magistrate Judge William G. Hussmann, Jr on 9/30/2013.(NRN)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
(Social Security No. XXX-XX-6383),
CAROLYN W. COLVIN, Acting
Commissioner of the Social
ENTRY ON JUDICIAL REVIEW
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, pursuant to the parties’ consents and an Order of
Reference entered on May 15, 2013. (Docket No. 29). David Stephenson seeks
judicial review of the final decision of the Commissioner of the Social Security
Administration (“Commissioner”, “SSA”), which found him not disabled and not
entitled to Disability Insurance Benefits or Supplemental Security income
(collectively, “benefits”) under the Social Security Act. 42 U.S.C. § 301 et seq.
For the reasons stated below, the Commissioner’s decision must be
A. Procedural History
Stephenson protectively filed applications for benefits on August 28,
2009, alleging a disability onset date of May 1, 2006. (R. 21, 179-85). He was
46 years old on that date and has at least a high school education. (R. 30).
His applications were denied initially and upon reconsideration. (R. 82-89,
123-36). Stephenson had a hearing before an administrative law judge (“ALJ”)
on May 6, 2011, at which Stephenson and a vocational expert (“VE”) testified.
(R. 21). On August 23, 2011, the ALJ issued an opinion finding that
Stephenson was not disabled. (R. 32). The Appeals Council denied his appeal
on March 28, 2012 (R. 1-6), leaving the ALJ’s decision as the final decision of
the Commissioner. 20 C.F.R. §§ 404.955(a), 404.981. As a final decision,
jurisdiction is proper in this court. 42 U.S.C. § 405(g).
B. ALJ Findings
The ALJ’s decision included the following findings: (1) Stephenson had
not engaged in substantial gainful activity since the alleged onset date; (2) his
pancreatitis and hepatitis C qualified as severe impairments; (3) he had no
impairments that, alone or in combination, met or equaled one of the listed
impairments in 20 C.F.R. Part 404 Subpart P, Appendix 1 (“Appendix 1
listings” or “listings”) (R. 24-27); (4) Stephenson had the residual functional
capacity (“RFC”) to perform light work with the following limitations: he could
lift 20 pounds occasionally and 10 pounds frequently; he could only
occasionally balance, stoop, kneel, crouch, crawl or climb stairs; and he could
never climb ropes, ladders, or scaffolds, or work in hazardous environments
such as heights or around dangerous machinery (R. 27-30); (5) Stephenson
could not perform his past relevant work as a cook or bartender; and (6)
considering his age, education, work experience, and RFC, there existed jobs in
significant numbers in the national economy he could perform. (R. 30-31).
Based on these findings, the ALJ concluded Stephenson was not disabled.
II. Legal Standards
In order to qualify for disability benefits, Stephenson must establish that
he suffered from a “disability” as defined by the Act. “Disability” is defined as
the “inability to engage in any substantial gainful activity by reason of any
medically determinable 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 of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A).
To establish disability, the claimant must present medical evidence of an
impairment resulting “from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and
laboratory diagnostic techniques.” 20 C.F.R. §§ 416.908; 404.1508.
The Social Security regulations outline a five-step inquiry the ALJ is to
perform in order to determine whether a claimant is disabled. The ALJ must
consider whether the claimant: (1) is presently employed; (2) has a severe
impairment or combination of impairments; (3) has an impairment that meets
or equals an Appendix 1 listing for an impairment so severe it precludes
substantial gainful activity; (4) is unable to perform her past relevant work; and
(5) is unable to perform any other work existing in significant numbers in the
national economy. 20 C.F.R. § 404.1520(a)(4). The burden of proof is on
Stephenson for steps one through four; only after Stephenson has met his
evidentiary burden does the burden shift to the Commissioner at step five.
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
An ALJ’s findings are conclusive if they are supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L.
Ed. 2d 842 (1971) (internal quotation omitted); see also Perkins v. Chater, 107
F.3d 1290, 1296 (7th Cir. 1997).
III. Statement of Medical Facts
Stevenson’s Brief correctly summarizes the relevant medical evidence of
record and is adopted by the court for purposes of this opinion.
Stephenson raises three arguments on appeal: (1) the ALJ improperly
weighed and examined medical evidence; (2) the ALJ’s RFC determination was
not supported by substantial evidence; and (3) the ALJ’s credibility
determination was flawed. However, because this court finds that resolution of
the first issue requires remand, only that issue will be discussed.
Did the ALJ err in weighing and examining the medical evidence?
Stephenson asserts that the ALJ committed a number of errors in
analyzing the medical evidence, including: (1) violating the treating physician
rule by rejecting Dr. Becky Allmon’s opinion without citing any medical
evidence as grounds for his decision; (2) assigning little weight to the opinion of
the treating nurse practitioner, Melinda Clark; (3) ignoring the opinion of
Disability Determination Bureau (“DDB”) consulting physicians Drs. D. Neal
and J. Sands, despite according Dr. Neal’s opinion significant weight; and (4)
failing to address the opinion of DDB examining physician Dr. Mehmet
Akaydin. Taken together, Stephenson argues, these errors constitute
reversible error at step three.
A. Dr. Becky Allmon
On April 15, 2010, Dr. Allmon, Stephenson’s treating physician between
2006 and 2011, diagnosed Stephenson with pancreatitis, hepatitis C, renal
failure, and arthritis. (R. 408). Dr. Allmon concluded that due to Stephenson’s
difficulties using his right arm and hand, he was unable to perform his past
work as a bartender. (R. 407). The ALJ stated that because Dr. Allmon’s
opinion “is not supported by [clinical] findings or other substantial evidence of
record” and was conclusory, it was not entitled to controlling weight. (R. 29).
1. Stephenson’s Position
Stephenson argues that Dr. Allmon’s treatment history with him, her
pattern of increasing Stephenson’s medication dosage and intensity in
response to his worsening abdominal pain (R. 313-15, 338, 342, 350, 355), and
her opinion’s consistency with the opinion of Dr. Evan Fogel (R. 472-73), meant
Dr. Allmon’s opinion must be afforded controlling weight. Stephenson claims
that in erroneously dismissing Dr. Allmon’s opinion as merely a questionnaire
and not citing any record evidence in assigning it little weight, the ALJ violated
the treating physician rule. 20 C.F.R. § 404.1527(d)(2).
Stephenson further claims that had Dr. Allmon’s opinion—which
diagnosed him as being unable to work due to restricted use of his right arm
and hand (R. 55, 407)—been accorded greater weight, Stephenson would have
been found unable to perform the lifting and carrying required not only for light
work, but also for sedentary work. 20 C.F.R. § 404.1567(a-b); see also SSR 969p, 1996 WL 374185, at *8 (Jul. 2, 1996). The RFC also would have been more
restrictive due to Stephenson’s constant abdominal pain, see generally SSR 8310, 1983 WL 31251 (Jan. 1, 1983); SSR 96-8p, 1996 WL 374184 (Jul. 2, 1996),
and there would have been no jobs available. (R. 73-74).
2. Commissioner’s Position
The Commissioner rejoins that the ALJ’s explanation was sufficient to
both refuse to assign Dr. Allmon’s opinion controlling weight and to discount
the opinion. 20 C.F.R. §§ 404.1527(d)(3-4); Elder v. Astrue, 529 F.3d 408, 415
(7th Cir. 2008). In support, the Commissioner argues that Dr. Allmon’s
examinations in September and November 2006 showed only mild abdominal
distention, and his pseudocyst was stable.1 (R. 348-49). In September 2008,
Dr. Allmon noted that Stephenson’s pain was tolerable (R. 351), and
subsequent examinations revealed no abnormal abdominal findings. (R. 412,
416, 461-63). In December 2009, an examination by Dr. Akaydin revealed that
Stephenson was “a basically quite healthy, solid, vigorous and robust
appearing individual in all respects.” (R. 364).
1 However, it must be noted that these arguments were made in the Commissioner’s
brief and cannot be gleaned from the ALJ’s opinion. Therefore, the court is precluded
from considering these arguments at this time. SEC v. Chenery Corp., 318 U.S. 80,
87-88, 63 S. Ct. 454, 87 L. Ed. 626 (1943).
3. Court’s Conclusion
The treating physician rule is a two-step process that an ALJ must
undertake in assessing a claimant’s RFC if a treating physician’s opinion is in
the record. First, the ALJ must determine if the physician’s findings are
supported by the medical findings and consistent with other substantial
evidence on the record. If so, the opinion is to be given controlling weight.
Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007). If not, the ALJ must
consider several factors in deciding how much weight to give the opinion,
(i) the frequency of examination and the length, nature and extent
of the treatment relationship;
(ii) the evidence in support of the treating physician's opinion;
(iii) the consistency of the opinion with the record as a whole;
(iv) whether the opinion is from a specialist; and
(v) other factors brought to the Social Security Administration's
attention that tend to support or contradict the opinion.
Halloran v. Barnhart, 362 F.3d 28, 32 (2nd Cir. 2004); 20 C.F.R. § 404.1527(d).
The court concludes that the ALJ=s application of the treating physician
rule was incorrect in this instance. The ALJ rejected treating physician Dr.
Allmon’s opinion because the document submitted (R. 408) was a
“questionnaire” and was “conclusory.” (R. 29). However, the letter itself is not
merely a “questionnaire” in which a physician places checks in a box preprepared by the claimant’s lawyer or other person requesting the opinion.
Neither is it “conclusory” because attached to the letter are the medical notes
documenting the visits and examinations performed by the physician during
the course of treatment.
The ALJ also rejected Dr. Allmon=s opinion that Plaintiff was disabled in
this case primarily because Ait is not supported by the weight of the evidence.@
(R. 29). However, nowhere in the opinion does the ALJ identify what specific
subjective or objective medical evidence was inconsistent with Dr. Allmon=s
opinion. Finally, the ALJ rejected the opinion because the opinion is not
supported by “clinical findings established by acceptable medical techniques.”
(Id.). However, the evidence shows regular repeated visits to Dr. Allmon for
The evidence of record from Dr. Allmon explains that Stephenson was
unable to work because of constant or chronic abdominal pain. The evidence
supporting Dr. Allmon=s decision includes: Stephenson=s repeated complaints
of abdominal pain; examination findings of abdominal tenderness and
distention; and objective evidence of a pancreatic pseudocyst. (R. 310-11, 338,
339, 340, 341, 344, 348, 350, 352-55, 403). It must be noted that beginning
September 21, 2006, Plaintiff saw Dr. Allmon on a repeated basis—generally
every 90 days—with significant complaints of pain that were often confirmed on
examination. Dr. Allmon monitored this condition and regularly continued the
prescription of potent pain medications, including Methadone, throughout this
entire treatment period. (See R. 348).
Stephenson’s argument that Dr. Fogel’s opinion was consistent with Dr.
Allmon’s is also well-founded. It should be noted that Dr. Fogel opined that the
pseudocyst was probably responsible for Plaintiff=s abdominal symptoms (R.
407, 472-73), and on August 28, 2006, Dr. Fogel found Stephenson to be doing
“overall quite well.” However, this occurred within a few weeks after
Stephenson had incurred a two-week hospitalization for severe effects of
pancreatitis and well before September 21, 2006, and thereafter, when
Stephenson continued to see Dr. Allmon and others. At a later visit on March
3, 2011, Dr. Fogel documented “both epigastric and left upper quadrant
tenderness and fullness,” and he concluded that A[a] pseudocyst such as
identified in 2006 could certainly account for his abdominal pain and early
satiety.) (R. 473). This confirmation of a pseudocyst provides Dr. Allmon’s
opinion with some external validity, and absent greater explanation as to why
Dr. Allmon’s opinion should have been discounted, her opinion should have
been given greater weight as a result.
The only other piece of medical evidence that could be found to be
contradictory to Dr. Allmon=s opinion was a consultative examination
performed by Dr. Mehmet Akaydin in December 2000. (R. 364). However, that
opinion was based on a one-day visit and also without any significant medical
testing. Because the court concludes that the ALJ has failed in the application
of the treating physician rule, a remand is appropriate to review the evidence in
light of an appropriate consideration.
B. Nurse Practitioner (“NP”) Melinda Clark
On January 13, 2010, NP Clark opined that Stephenson was totally
unable to work and permanently disabled. (R. 401). The ALJ evaluated this
opinion but assigned it very limited weight for the following reasons: (1) it was
not supported by test results or other medical evidence; (2) NP Clark failed to
identify any subjective or objective medical findings supporting her conclusion
that Stephenson could not work; and (3) controlling weight could not be given
to NP Clark’s finding of disability, since this is a finding reserved to the
Commissioner. (R. 29).
1. Stephenson’s Position
Since NP Clark is not a physician, her opinion was not evaluated as a
treating medical source, but as an “other source . . . to show the severity of the
individual’s impairment(s).” (R. 29 (citing SSR 06-03p, 2006 WL 2329939, at
*1 (Aug. 9, 2006))). Stephenson claims that the ALJ failed to explain why NP
Clark’s opinion was “against the weight of the record as a whole and [the ALJ]
failed to cite specific evidence.” (Plaintiff’s Reply 3) (citing Clifford v. Apfel, 227
F.3d 863, 871 (7th Cir. 2000)). Since substantial medical evidence supported
her conclusions about the source of his abdominal pain, Stephenson claims
that NP Clark’s opinion should have been given greater weight.
2. Commissioner’s Position
The Commissioner counters that NP Clark’s status is an “other source”
as defined by SSR 06-03p. Moreover, her opinion was not only conclusory, but
unsupported by and inconsistent with other medical evidence. Thus, the ALJ’s
conclusion that her opinion was entitled to little weight satisfied the required
factors in 20 C.F.R. § 404.1527(d).2 SSR 06-03p, 2006 WL 2329939, at *4.
Also, none of NP Clark’s evidence established a finding of disability, and while
At the time the ALJ issued his decision, the treating physician rule was codified at 20
C.F.R. § 404.1527(d). Subsequently, the regulation was modified, and 20 C.F.R. §§
404.1527(d), (e), and (f) were re-codified unchanged at 20 C.F.R. §§ 404.1527(c), (d),
and (e), respectively.
Stephenson alleges the ALJ erred in calling NP Clark’s opinion a questionnaire,
he fails to say how calling it an opinion or something more formal would cause
it to properly be given greater weight. Thus, Stephenson has not demonstrated
the necessary harm for remand. Shinseki v. Sanders, 556 U.S. 396, 401, 129
S. Ct. 1696, 173 L. Ed. 2d 532 (2009).
3. Court’s Conclusion
The court does not reach a conclusion as to whether the ALJ sufficiently
discussed and appropriately discounted NP Clark’s opinion. Since NP Clark is
properly classified as an “other source” and not a treating source, her opinion
is not entitled to controlling weight and thus must be analyzed under the 20
C.F.R. § 404.1527(d) factors. 2006 WL 2329939, at *2-3, *4. Since a remand
is required to assess Dr. Allmon’s opinion, the ALJ may need to re-evaluate the
weight assigned to NP Clark’s opinion in light of any greater weight given to Dr.
C. Drs. D. Neal and J. Sands
On January 12, 2010, Dr. Neal, DDB consulting physician, conducted an
RFC evaluation for Stephenson. Dr. Neal found that Stephenson could perform
light work, 20 C.F.R. § 404.1567(b), with additional limitations. (R. 372-79).
This evaluation was affirmed by DDB consulting physician Dr. Sands on April
26, 2010. (R. 455). The ALJ assigned significant weight to both opinions,
As with Dr. Allmon’s opinion, Stephenson argues that the court is barred under
Chenery from considering the Commissioner’s post hoc arguments on why the ALJ’s
discounting of NP Clark’s opinion was well-supported. Since the court requires the
ALJ to re-evaluate NP Clark’s opinion in light of any different weight given to Dr.
Allmon’s opinion, the court does not address this argument.
finding that “there exist [sic] consistent medical evidence to reach similar
conclusions . . . and . . . their opinions are not contradicted.” (R. 29). The ALJ
also incorporated many of Dr. Neal’s findings into Stephenson’s RFC. (R. 27).
1. Stephenson’s Position
Stephenson accuses the ALJ of ignoring certain aspects of Dr. Neal’s
opinion, claiming that his discussion “convey[s] nothing specific” and fails to
mention Dr. Neal’s findings that his “traumatic arthritic symptoms were[:] a) a
severe impairment, and b) would restrict [Stephenson] from using his dominant
right hand.” (Plaintiff’s Brief 19 (citing R. 29, 375)). Stephenson argues that
this failure to create a logical bridge between assigning Drs. Neal and Sands’s
opinions significant weight, along with his failure to mention the opined severe
arthritic impairment, means the ALJ cannot rely on their opinions. (Id. (citing
Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009)).
2. Court’s Conclusion
The court finds that the ALJ’s analysis was proper, as it incorporated
those impairments and limitations he found supported by record evidence. The
ALJ did not find his right arm pain to be a severe impairment at step two,
noting that there was no evidence “showing . . . any residual and significant
work-restrictions” from a right arm fracture he suffered in 1986, and that there
were no signs or laboratory findings supporting his statement of symptoms.
(R. 26). Therefore, the ALJ’s decision not to include Dr. Neal’s opined hand
dexterity limitations was well-supported. (Id.). Also, since Dr. Neal referenced
no evidence that suggested Stephenson needed to avoid wetness (R. 373, 376),
the ALJ properly excluded those restrictions from Stephenson’s RFC. The
court finds that the ALJ built a logical bridge between his discussion and
decision to assign Drs. Neal and Sands’s opinions significant weight. Since
consulting physicians’ opinions may be substantial evidence, see e.g., Cass v.
Shalala, 8 F.3d 552, 555 (7th Cir. 1993), the ALJ was entitled to rely on those
portions he found credible as the basis for Stephenson’s RFC. Therefore, the
ALJ need not re-evaluate the opinions of Drs. Neal and Sands on remand.
D. Dr. Mehmet Akaydin
Dr. Akaydin examined Stephenson on December 4, 2009 and, despite
observing several medical impairments, opined that he could perform “most
forms of at least minimally physically strenuous type work without any overt
difficulty especially those jobs that are basically of a relatively sedentary and
‘sit-down’ type nature.” (R. 364). Stephenson claims that the ALJ failed to
evaluate Dr. Akaydin’s opinion regarding Stephenson’s RFC or using the
treating physician factors. (Plaintiff’s Brief 23 (citing 20 C.F.R. § 404.1527(d))).
Stephenson’s argument is unavailing. While the ALJ did not expressly
assign weight to his opinion or evaluate it according to the treating physician
factors, he was not required to. ALJs are only required to “consider the [nontreating] medical opinions . . . together with the rest of the relevant evidence we
receive.” 20 C.F.R. § 404.1527(b). The ALJ discussed Dr. Akaydin’s opinion
and did not find it inconsistent with the RFC of light work. (R. 28). Since Dr.
Akaydin did not expressly foreclose all non-sedentary work, the ALJ’s
interpretation was reasonable. The court finds the ALJ did not err in his
analysis, and he need not re-evaluate Dr. Akaydin’s opinion on remand.
Because of the need to re-evaluate Dr. Allmon’s opinions under the
treating physician’s rule may impact the overall analysis of Plaintiffs RFC, the
Commissioner’s decision that Stephenson is not disabled and not entitled to
benefits is REVERSED. This matter is REMANDED to the Commissioner for
further action consistent with this opinion.
IT IS SO ORDERED the 30th day of September, 2013.
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Served electronically on all ECF-registered counsel of record.
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