Murphy v. Commissioner of Social Security
Filing
20
MEMORANDUM OPINION and ORDER: The decision of the ALJ is reversed and this case is remanded to the Commissioner for further proceedings: See text of Order for further information. Signed by Magistrate Judge Leonard T Strand on 03/26/14. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
DEANNA LOUISE MURPHY,
Plaintiff,
No. C13-3011-LTS
vs.
MEMORANDUM OPINION
AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
____________________
Plaintiff Deanna Louise Murphy seeks judicial review of a final decision of the
Commissioner of Social Security (the Commissioner) denying her application for Social
Security Disability benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §
401 et seq. (Act). Murphy contends that the administrative record (AR) does not contain
substantial evidence to support the Commissioner’s decision that she was not disabled
during the relevant period of time. For the reasons that follow, the Commissioner’s
decision will be reversed and remanded for further proceedings.
I.
BACKGROUND
Murphy was born in 1960 and previously worked as a cashier and cake decorator.
AR 102, 226.
She protectively filed for DIB on June 12, 2010, alleging a disability
onset date of April 30, 2009.
AR 10.
Murphy claims disability due to migraine
headaches, back pain and nerve damage to her spine. AR 13. Her claim was denied
initially and on reconsideration.
AR 10.
She then requested a hearing before an
Administrative Law Judge (ALJ) and on January 19, 2012, ALJ Thomas Donahue held
a hearing during which Murphy and a vocational expert (VE) testified. AR 24-44.
On March 21, 2012, the ALJ issued a decision finding that Murphy was not
disabled from April 30, 2009, through the date of his decision. AR 10-18. Murphy
sought review of this decision by the Appeals Council, which denied review on January
14, 2013.
AR 1-3.
The ALJ’s decision thus became the final decision of the
Commissioner. AR 1; 20 C.F.R. § 404.981.
On March 14, 2013, Murphy filed a complaint (Doc. No. 3) in this court seeking
review of the Commissioner’s decision. On September 18, 2013, with the parties’
consent (Doc. No. 8), the Honorable Mark W. Bennett transferred this case to me for
final disposition and entry of judgment. The parties have briefed the issues and the matter
is now fully submitted.
II.
DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
A 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 that 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), 1382c(a)(3)(A); 20
C.F.R. § 404.1505. A claimant has a disability when the claimant 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 significant
numbers either in the region where such individual lives or in several regions of the
country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined
in the regulations. 20 C.F.R. § 404.1520; see Kirby v. Astrue, 500 F.3d 705, 707 (8th
Cir. 2007). First, the Commissioner will consider a claimant’s work activity. If the
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claimant is engaged in substantial gainful activity, then the claimant is not disabled. 20
C.F.R. § 404.1520(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner looks to see “whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
activities.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment is
not severe if it amounts only to a slight abnormality that would not significantly limit the
claimant’s physical or mental ability to do basic work activities.” Kirby, 500 F.3d at
707; see 20 C.F.R. §§ 404.1520(c), 404.1521(a).
The ability to do basic work activities is defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. § 404.1521(b). These abilities and aptitudes
include (1) physical functions such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3)
understanding, carrying out, and remembering simple instructions; (4) use of judgment;
(5) responding appropriately to supervision, co-workers, and usual work situations; and
(6) dealing with changes in a routine work setting. Id. § 404.1521(b)(1)-(6); see Bowen
v. Yuckert, 482 U.S. 137, 141, 107 S. Ct. 2287, 2291 (1987). “The sequential evaluation
process may be terminated at step two only when the claimant’s impairment or
combination of impairments would have no more than a minimal impact on her ability to
work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks
omitted).
Third, if the claimant has a severe impairment, then the Commissioner will
consider the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled, regardless of age, education, and work experience. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 404.1520(d); see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir.
1998).
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Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) to determine the claimant’s “ability to meet
the physical, mental, sensory, and other requirements” of the claimant’s past relevant
work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4). “RFC is a medical question
defined wholly in terms of the claimant’s physical ability to perform exertional tasks or,
in other words, what the claimant can still do despite his or her physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation
marks omitted); see 20 C.F.R. § 404.1545(a)(1).
The claimant is responsible for
providing evidence the Commissioner will use to make a finding as to the claimant’s
RFC, but the Commissioner is responsible for developing the claimant’s “complete
medical history, including arranging for a consultative examination(s) if necessary, and
making every reasonable effort to help [the claimant] get medical reports from [the
claimant’s] own medical sources.” 20 C.F.R. § 404.1545(a)(3). The Commissioner also
will consider certain non-medical evidence and other evidence listed in the regulations.
See id. If a claimant retains the RFC to perform past relevant work, then the claimant is
not disabled. Id. § 404.1520(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant
to perform past relevant work, then the burden shifts to the Commissioner to prove that
there is other work that the claimant can do, given the claimant’s RFC as determined at
Step Four, and his or her age, education, and work experience. See Bladow v. Apfel,
205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must prove not only that
the claimant’s RFC will allow the claimant to make an adjustment to other work, but also
that the other work exists in significant numbers in the national economy. Eichelberger
v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. § 404.1520(a)(4)(v). If the
claimant can make an adjustment to other work that exists in significant numbers in the
national economy, then the Commissioner will find the claimant is not disabled. If the
claimant cannot make an adjustment to other work, then the Commissioner will find that
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the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(v). At Step Five, even though the
burden of production shifts to the Commissioner, the burden of persuasion to prove
disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
2004).
III.
ALJ’S FINDINGS
The ALJ made the following findings:
(1)
The claimant meets the insured status requirements of
the Social Security Act through December 31, 2014.
(2)
The claimant has not engaged in substantial gainful
activity since April 30, 2009, the alleged onset date (20
CFR 404.1571 et seq.).
(3)
The claimant has the following severe impairment,
which causes her more than minimal work-related
limitations: mild degenerative disc disease of the
lumbar spine status post remote spinal surgery (20
CFR 404.1520(c)).
(4)
The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526).
(5)
After careful consideration of the entire record, the
undersigned finds that the claimant has the following
residual functional capacity: she can lift ten pounds
frequently and twenty pounds occasionally; she can sit
for two hours at a time and for a total of six hours in
an eight-hour day; she can stand for two hours at a time
and for a total of six hours in an eight-hour day; she
can walk three blocks at a time; she should never climb
ladders, ropes, or scaffolds; and she should only
occasionally balance, stoop, kneel, crouch, crawl,
bend, or climb stairs and ramps.
(6)
The claimant is capable of performing past relevant
work as a cashier (DOT: 211.462-010; unskilled work
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with an SVP of 2 at the light exertional level) and as a
cake decorator (DOT: 524.381-010; skilled work with
an SVP of 6 at the light exertional level[)]. This work
does not require the performance of work-related
activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565).
(7)
The claimant has not been under a disability, as defined
in the Social Security Act, from April 30, 2009,
through the date of this decision (20 CFR
404.1520(g)).
AR 12-18.
IV.
THE SUBSTANTIAL EVIDENCE STANDARD
The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . . .”). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept
as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The Eighth Circuit
explains the standard as “something less than the weight of the evidence and [that] allows
for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of
choice within which the [Commissioner] may decide to grant or deny benefits without
being subject to reversal on appeal.” Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir.
1994).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence which supports the Commissioner’s decision and evidence that detracts
from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search
the record for evidence contradicting the [Commissioner’s] decision and give that
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evidence appropriate weight when determining whether the overall evidence in support
is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (“[A]n administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion.”).
V.
DISCUSSION
Murphy argues the ALJ’s decision is not supported by substantial evidence for the
following reasons:
I.
The ALJ erred in finding that Murphy has past relevant
work.
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II.
The ALJ did not give appropriate weight to the opinion
of Murphy’s treating physician.1
III.
The ALJ gave too much weight to the fact that Murphy
collected unemployment benefits during part of her
period of alleged disability.
I will discuss these arguments separately below.
A.
Past Relevant Work
After determining Murphy’s RFC, the ALJ found that her “work as a cashier and
as a cake decorator meets the durational, earnings, and recency requirements of
substantial gainful activity.” AR 16. The ALJ then found, based on the VE’s testimony,
that Murphy’s RFC does not preclude her from performing either of those jobs. Id. In
light of this finding, the ALJ concluded that Murphy is not disabled. Id. The ALJ then
made alternative findings at Step Five, determining that Murphy could also perform other
jobs that exist in significant numbers in the national economy and that a finding of “not
disabled” is appropriate under the Medical-Vocational guidelines. AR 17-18.
Murphy contends that the ALJ erred in finding that she has past relevant work.
She notes that in November 2010, the state agency consultant found that she “does not
have any PRW [past relevant work] that she could return to.” AR 193. Murphy further
contends that neither the VE’s testimony nor any other evidence in the record supports
the ALJ’s finding that she has past relevant work.
The Commissioner disagrees,
contending that the evidence supports the ALJ’s finding of past relevant work. The
Commissioner further argues that even if the ALJ was wrong, the error was harmless
because the record supports the ALJ’s alternative findings, at Step Five, that also result
in a finding of no disability.
1
While the argument heading refers only to the treating physician, the argument itself also
addresses the ALJ’s weighting of other medical opinions.
8
The Commissioner’s regulations define “past relevant work” as “work that you
have done within the past 15 years, that was substantial gainful activity, and that lasted
long enough for you to learn to do it.” 20 C.F.R. § 404.1560(b)(1). The regulations
further state that “[s]ubstantial gainful activity is work activity that is both substantial and
gainful,” as follows:
(a) Substantial work activity. Substantial work activity is work activity that
involves doing significant physical or mental activities. Your work may be
substantial even if it is done on a part-time basis or if you do less, get paid
less, or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you do
for pay or profit. Work activity is gainful if it is the kind of work usually
done for pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like taking
care of yourself, household tasks, hobbies, therapy, school attendance, club
activities, or social programs to be substantial gainful activity.
20 C.F.R. § 404.1572. In determining whether work constitutes “substantial gainful
activity,” the Commissioner must consider the “amount of pay, length of time worked,
and whether the work was conducted in a special work area or with special assistance.”
Thompson v. Sullivan, 878 F.2d 1108, 1110 (8th Cir. 1989) (citing 20 C.F.R. §
404.1574). Moreover, the Commissioner has established a minimum dollar amount that
a claimant must earn each month before being found to have engaged in substantial gainful
activity. See, e.g., http://www.socialsecurity.gov/oact/COLA/sga.html. The amounts
for 2007, 2008 and 2009, respectively, were $900, $940 and $980. Id.
Here, Murphy is correct that the ALJ’s decision contains no analysis of the
relevant factors to determine whether her prior jobs met the requirements to be considered
as past relevant work. Instead, the ALJ simply stated a finding to that effect. AR 16.
The Commissioner argues, however, that the record supports the ALJ’s finding – at least
with regard to the cake decorator position. Murphy testified that she performed the cake
decorator position at Wal-Mart. AR 27. She was employed by Wal-Mart from April
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2007 to April 2009. AR 27, 145, 157. Her earnings from Wal-Mart for 2007, 2008 and
2009 were, respectively, $11,502.81, $14,962.29 and $6,655.69. AR 109-10, 114.
Given the number of months Murphy worked at Wal-Mart during each of those years,
her earnings were above the SGA level.2 In light of the length of Murphy’s employment,
the amount of her earnings and her own testimony, substantial evidence supports the
ALJ’s finding that she had past relevant work as a cake decorator.
The Commissioner also argues that any error on this issue would not require
remand, as the ALJ also proceeded to Step Five and, again, found that Murphy was not
disabled. AR 16-17. He made this finding based on (a) the VE’s testimony that a person
of Murphy’s age, education, work experience and RFC can perform other jobs that exist
in the national economy and (b) the Commissioner’s Medical-Vocational guidelines. Id.
Having carefully reviewed the VE’s testimony, and the ALJ’s findings at Step Five, I
find that the ALJ’s alternative, Step Five findings are supported by substantial evidence
in the record as a whole. Thus, I agree with the Commissioner that any error at Step
Four would be harmless error. Even if Murphy had no past work that qualifies as “past
relevant work,” there would be no need to remand this case for a Step Five determination
because the ALJ has already made that determination. Reversal and remand is not
required with regard to an error by the ALJ that does not affect the outcome of the claim.
See, e.g., Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008).
B.
Weight Of Medical Opinions
1.
Applicable Standards
In evaluating a claim for DIB, the ALJ is required to consider all relevant
evidence, including medical records and medical opinions. See 20 C.F.R. §§ 404.1513,
2
2007 – 9 months worked, $1278 per month (SGA level = $900)
2008 – 12 months worked, $1246 per month (SGA level = $940)
2009 – 4 months worked, $1663 per month (SGA level = $980)
10
404.1520, 404.1520b, 404.1527. With regard to medical opinions, the Commissioner’s
regulations give great deference to those provided by treating health care providers:
Treatment relationship. Generally, we give more weight to opinions
from your treating sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of your
medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone
or from reports of individual examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating source's
opinion on the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in your
case record, we will give it controlling weight. When we do not give the
treating source's opinion controlling weight, we apply the factors listed in
paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in
paragraphs (c)(3) through (c)(6) of this section in determining the weight to
give the opinion. We will always give good reasons in our notice of
determination or decision for the weight we give your treating source's
opinion.
20 C.F.R. § 404.1527(c)(2) [emphasis added]. This means a treating physician's opinion
is generally given controlling weight, but is not inherently entitled to it. Hacker v.
Barnhart, 459 F.3d 934, 937 (8th Cir. 2006). A treating physician's opinion “does not
automatically control or obviate the need to evaluate the record as a whole.” Leckenby v.
Astrue, 487 F.3d 626, 632 (8th Cir. 2007). But that opinion will be given controlling
weight if it is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in the case record.
Hacker, 459 F.3d at 937. The ALJ must “always give good reasons” for the weight
given to a treating physician's evaluation. 20 C.F.R. § 404.1527(c)(2); see also Davidson
v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007).
When a treating provider’s opinion is entitled to controlling weight, the ALJ must
defer to the physician's medical opinions about the nature and severity of an applicant's
impairments, including symptoms, diagnosis and prognosis, what an applicant is capable
of doing despite the impairments, and the resulting restrictions.
11
20 C.F.R. §
404.1527(a)(2); Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir. 2005). However, an
opinion that an applicant is “disabled” or “unable to work” addresses an issue that is
reserved for the Commissioner and therefore is not a “medical opinion” that must be
given controlling weight. Ellis, 392 F.3d at 994.
2.
Analysis
The record includes a written opinion signed by Dr. Shamini Suriar on August 12,
2011. AR 297-98. Dr. Suriar listed diagnoses of chronic backache, chronic pain
syndrome and female stress incontinence. AR 298. She checked boxes indicating that
Murphy’s conditions were both temporary and permanent, stated that she was being
treated with pain medication and noted that she had declined “spinal needles.” Id. Dr.
Suriar then checked a box indicating that Murphy cannot return to her usual employment
and wrote that she will “never” be able to return to her usual duties. Id. Finally, Dr.
Suriar responded affirmatively to a question as to whether Murphy should apply for longterm disability benefits. Id.
There is no dispute that Dr. Suriar is a treating physician. However, the ALJ
determined that her opinion is entitled to “very little weight,” finding it to be inconsistent
with the weight of the evidence and Dr. Suriar’s own treatment records.
AR 15.
Moreover, the ALJ found that Dr. Suriar’s opinion improperly addresses an issue
reserved for the Commissioner, as it essentially states that Murphy is “disabled.” Id.
Murphy argues that the ALJ erred in failing to give more weight to Dr. Suriar’s
opinion. She points out that the ALJ did not explain, or offer examples of, how Dr.
Suriar’s opinion is inconsistent with her treatment notes. Murphy points out that she saw
Dr. Suriar ten times from February 2009 through August 2011, with pain management
being the primary focus of treatment. She further notes that Dr. Suriar directed her to
take Oxycontin, a narcotic medication designed to manage moderate to severe pain, every
twelve hours. AR 239, 231. She contends that nothing about Dr. Suriar’s treatment
notes is inconsistent with her written opinion.
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Murphy also takes issue with the ALJ’s statement that Dr. Suriar’s opinion is
inconsistent with the weight of other medical evidence. Among other things, Murphy
references an opinion provided by Dr. Alan Scher in July 2010, based on a consultative
examination.
Dr. Scher found that Murphy had “[c]hronic, progressive, limiting
localized back pain requiring narcotic analgesia.” AR 267. He noted that the pain is
non-radiating. Id. He further observed that Murphy had some discomfort after being
seated for about 20 minutes, difficulty putting on her shoes, and could not bend to pick
items up from the floor.
AR 265.
Dr. Scher’s range of motion testing reflected
limitations with respect to Murphy’s (a) shoulder abduction and right-sided forward
elevation, (b) external shoulder rotation, (c) knee flexion, (d) hip flexion, (e) hip
abduction, (f) hip external rotation and (g) lumbar flexibility. AR 268-69. Murphy
contends that Dr. Scher’s consultative findings are consistent with Dr. Suriar’s opinion.
Finally, Murphy contends that it was improper for the ALJ to reject Dr. Suriar’s
opinion simply because it includes an opinion on an issue (disability) that is reserved for
the Commissioner. She notes that Dr. Suriar did not prepare the opinion for the Social
Security Administration and that it does not purport to declare that Murphy is disabled
within the meaning of the Act. According to Murphy, the fact that part of the opinion
may appear to address an issue that is reserved for the Commissioner does not justify
discrediting the entire opinion.
The Commissioner argues that the ALJ properly evaluated Dr. Suriar’s opinion
and provided good reasons for giving it little weight.
Having reviewed the
Commissioner’s argument carefully, however, I find it to be an admirable but
unsuccessful effort to rehabilitate the ALJ’s superficial analysis of the medical opinions
in the record. As for Dr. Suriar, Murphy is correct that the ALJ offered no explanation
or examples of how her opinion is inconsistent with her own treatment records. Those
records reflect numerous visits over a period of more than a year. Dr. Suriar diagnosed
backache and chronic pain syndrome and repeatedly directed Murphy to continue taking
Oxycontin. AR 231-43, 293-95. Dr. Suriar’s treatment records are not so obviously
13
contrary to her opinion as to justify the ALJ’s failure to provide an explanation for his
conclusory finding of such inconsistency.
As for the contention that Dr. Suriar’s opinion is contrary to other evidence in the
record, I am particularly troubled by the ALJ’s analysis of Dr. Scher’s findings. As
noted above, Dr. Scher conducted a consultative examination in July 2010 for the specific
purpose of providing evidence relevant to Murphy’s application for DIB. AR 263. The
ALJ discussed some of Dr. Scher’s findings but never stated what weight he was giving
to Dr. Scher’s opinion. AR 14. Of course, because the ALJ did not expressly assign
any particular weight to Dr. Scher’s opinion, he had no occasion to explain the reasons
for assigning that weight.
This omission is important because at least some of Dr. Scher’s findings and
observations are inconsistent with the ALJ’s RFC assessment. For example, as noted
above, Dr. Scher noted that Murphy experienced discomfort after being seated for only
about 20 minutes. AR 265. Yet the ALJ found that Murphy can sit for two hours at a
time up to six hours during an eight-hour workday. AR 13. Moreover, Dr. Scher noted
that Murphy had difficulty putting on her shoes and that she was unable to bend in order
to pick items up from the floor. AR 265. The ALJ, however, found that Murphy can
occasionally stoop, kneel, crouch, crawl and bend. AR 13. “Occasionally,” of course,
means up to one-third of an eight-hour workday. See, e.g., AR 270. Thus, while Dr.
Scher found that Murphy cannot bend at all, the ALJ found that Murphy has the RFC to
bend for over two hours a day while working.
As noted above, Dr. Scher also found that Murphy has a decreased range of motion
in numerous respects. AR 268-69. It is far from clear that Dr. Scher’s findings are
inconsistent with Dr. Suriar’s opinion, yet the ALJ did not address the issue of whether
Dr. Scher’s opinion is entitled to any weight. Having determined (properly, I believe)
that the opinion of a consultative examiner would be useful, the ALJ failed to explain
what use, if any, he was making of the opinion.
14
The ALJ did, however, expressly find that an opinion provided in August 2010 by
Dr. Tracy Larrison, a non-examining consultant, was entitled to “very substantial
weight.” AR 14. Dr. Larrison prepared a physical RFC assessment based on her review
of records. AR 14, 270-77. Those records included Dr. Scher’s report. AR 277. Dr.
Larrison discredited that report because of “internal inconsistencies” but offered little
explanation of those alleged inconsistencies. AR 276-77. Her resulting RFC assessment
was largely adopted by the ALJ. AR 13, 271-72.
In short, three physicians provided opinions concerning Murphy’s claim. The
ALJ gave “very little weight” to the opinion of one (a treating source) and made no
finding concerning the weight to be given to the opinion of the other (a consultative
examiner). Meanwhile, the ALJ afforded “very substantial weight” to the opinion of a
physician who never examined Murphy and adopted that opinion as establishing
Murphy’s RFC. While that conclusion is not necessarily wrong, the analysis that led to
the conclusion is deeply flawed. The ALJ failed to provide good reasons, supported by
substantial evidence in the record, for discrediting the opinion of Murphy’s treating
physician. The ALJ also failed to explain what weight, if any, he was giving to the
opinion of the physician who examined Murphy for the express purpose of providing
evidence concerning her disability claim.
Under these circumstances, I cannot affirm the ALJ’s conclusions concerning the
medical evidence, or his resulting RFC assessment. Remand is necessary for the ALJ to
properly, and thoroughly, analyze all of the medical opinions of record. If the ALJ again
determines that Dr. Suriar’s opinion is entitled to little weight, the ALJ shall provide
good reasons, supported by substantial evidence, for that determination. The ALJ shall
also determine, and explain, the weight to be given to Dr. Scher’s opinion. If the ALJ
deems it appropriate, he may order a new consultative examination to provide additional
evidence concerning the nature and severity of Murphy’s impairments, including
symptoms, diagnosis and prognosis, what she is capable of doing despite the impairments,
and the resulting restrictions.
15
C.
Murphy’s Unemployment Benefits
While Murphy alleges that she has been disabled since April 30, 2009, the ALJ
found that she collected unemployment benefits during the entire year of 2010 and at least
the first quarter of 2011. AR 16. The ALJ noted that a claimant may not receive
unemployment benefits without representing that he or she is willing and able to work.
Id. The ALJ discussed Murphy’s receipt of unemployment benefits while addressing her
credibility and her motivation for seeking DIB. Id.
Murphy does not deny that she received the unemployment benefits referenced by
the ALJ, but appears to contend that the ALJ overemphasized this fact in finding that
Murphy is not disabled. Murphy argues that it is error for an ALJ to rely on a claimant’s
receipt of unemployment benefits as the sole reason to discredit that claimant’s credibility
and deny benefits.
Murphy is correct that the receipt of unemployment benefits, alone, does not
conclusively direct a finding of “not disabled.” See, e.g., Johnson v. Chater, 108 F.3d
178, 180–81 (8th Cir. 1997) (“Applying for unemployment benefits ‘may be some
evidence, though not conclusive, to negate’ a claim of disability.”) (quoting Jernigan v.
Sullivan, 948 F.2d 1070, 1074 (8th Cir. 1991)). Thus, had the ALJ started and ended
his analysis with Murphy’s receipt of unemployment benefits, Murphy would have a
strong argument. Because that not is what happened, however, I do not know what
Murphy is actually arguing.
The ALJ cited Murphy’s unemployment benefits as one of several reasons for his
ultimate finding that she is not disabled within the meaning of the Act. If Murphy seeks
to argue that unemployment benefits are entirely irrelevant, she is wrong. See, e.g.,
Johnson, 108 F.3d at 180 (“Finally, the Commissioner's decision to deny Johnson
disability benefits is bolstered by the fact that Johnson received unemployment
compensation during the time she claims to have been disabled.”). It was entirely
appropriate for the ALJ to consider the fact that Murphy obtained unemployment benefits
16
during the period of time she claims to have been disabled. Because the ALJ did not base
his adverse decision entirely on that fact, Murphy’s argument has no merit.
CONCLUSION
For the reasons set forth herein, the Commissioner’s determination that Murphy
was not disabled is reversed and this case is remanded to the Commissioner for further
proceedings. Judgment shall enter in favor of the plaintiff and against the defendant.
On remand, the ALJ shall thoroughly re-analyze all of the medical opinions of
record. If the ALJ again determines that Dr. Suriar’s opinion is entitled to little weight,
the ALJ shall provide good reasons, supported by substantial evidence, for that
determination. The ALJ shall also determine, and explain, the weight to be given to Dr.
Scher’s opinion. If the ALJ deems it appropriate, he may order a new consultative
examination to provide additional evidence. The ALJ shall then determine whether it is
necessary to amend his prior assessment of Murphy’s RFC and, if so, whether additional
VE testimony is required in light of the revised RFC.
IT IS SO ORDERED.
DATED this 26th day of March, 2014.
________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
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