Kimes v. Social Security Administration

Filing 22

ORDER by Magistrate Judge Steven C. Yarbrough granting 17 Motion to Remand to Agency (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JAMES A. KIMES,
Plaintiff,
v.

Civ. No. 16-787 SCY

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO REVERSE OR REMAND
THIS MATTER is before the Court on Plaintiff James Kimes’ Motion to Reverse and
Remand the Social Security Commissioner’s final decision denying Plaintiff disability insurance
benefits. Doc. 17. For the reasons discussed below, the Court will GRANT Plaintiff’s motion and
remand this action to the Commissioner for further proceedings consistent with this opinion.
I.

Background

Plaintiff is a sixty-two year old male. Plaintiff filed for disability on April 30, 2013,
alleging disability due to degenerative disc disease. AR 11, 72. He alleged a disability onset date
of January 16, 2011. AR 11. Plaintiff’s claim was initially denied on August 1, 2013, and upon
reconsideration on October 11, 2013. AR 11. Plaintiff filed a written request for hearing on
November 11, 2013. AR 11. The hearing was held before Administrative Law Judge (ALJ) Eric
Weiss on January 15, 2015. AR 11. On March 18, 2015, the ALJ issued his decision denying
Plaintiff’s claim. AR 18.
Because the parties are familiar with record in this case, the Court will discuss Plaintiff’s
medical history to the extent that it is relevant to the issues before the Court. Plaintiff reports a
long history of back problems. See AR 220. In July 2013, Plaintiff received a consultative
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examination by Jeffrey Glassheim, D.O. AR 220. Plaintiff reported chronic lower back pain that
was exacerbated by sitting, standing, and physical activity. AR 220. Plaintiff indicated that he
was unable to obtain treatment for these issues due to financial limitations. Dr. Glassheim found
that Plaintiff has mild limitations with sitting, standing, and walking due to degenerative disc
disease. AR 225. Dr. Glassheim further found that Plaintiff has mild limitations with lifting and
carrying weight and limitations in his ability to bend, stoop, crouch, and squat. AR 225. An xray performed that month showed “relatively advanced multilevel degenerative disc disease.”
AR 228.
In 2014, after Plaintiff obtained financial support, he was treated by Dr. Roland Sanchez.
AR 241. Plaintiff had two visits with Dr. Sanchez. Plaintiff reported many of the same issues as
he had with Dr. Glassheim. AR 241. Dr. Sanchez found that Plaintiff had good muscle
coordination and strength but diminished sensation in his fingers. AR 242. Dr. Sanchez further
found that Plaintiff’s cervical spine was tender to palpation and had restricted motion but was
otherwise normal. AR 242. Dr. Sanchez referred Plaintiff for an MRI. The MRI showed central
canal stenosis at one level with foraminal compromise, uncovertebral arthritic changes with
bilateral foraminal compromise, and degenerative discs. AR 252. At a follow up appointment a
few months later, Dr. Sanchez further recorded tenderness in Plaintiff’s lower back, shoulder,
wrists, and knees, but noted that his spine was normal at all levels. AR 246.
In June 2014, Dr. Sanchez completed a form entitled “Medical Opinion Re: Ability To
Do Work-Related Activities.” AR 253. Dr. Sanchez opined that Plaintiff’s ability to stand and
walk, as well as sit, was limited to less than two hours. AR 253. Dr. Sanchez further found that
Plaintiff was limited to carrying less than ten pounds. AR 253. Dr. Sanchez opined that Plaintiff
would need the freedom to shift at will between sitting and standing and would need to lie down

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at unpredictable times during an eight-hour work day. AR 253. Finally, Dr. Sanchez opined that
Plaintiff would, on average, be absent from work three times a month due to his limitations. AR
253. In an affidavit, Dr. Sanchez stated that
It is my opinion, based on a reasonable degree of medical certainty, that in June of
2012, [Plaintiff] (1) would not have been able to stand and walk for more than 1
hours during an 8 hour [workday], (2) would not have been able to sit for more
than 1 hours during an 8 hour [workday], (3) would have had more than 3
absences each month because of the severity and treatment of his medical
condition.
AR 254.
Ultimately, after reviewing the evidence, the ALJ gave “little weight” to Dr.
Sanchez’s opinion. AR 15. The ALJ found that Plaintiff could perform medium work, in
that he could lift and carry fifty pounds occasionally and twenty-five pounds frequently.
AR 14. The ALJ further found that Plaintiff could stand or walk six hours in an eighthour work day and sit for two hours with normal breaks. AR 14. Finally, the ALJ found
that Plaintiff could frequently climb ramps and stairs and occasionally climb ladders,
ropes, and scaffolds, as well as occasionally stoop, crouch, and crawl but frequently
kneel. AR 14. The ALJ concluded that there existed work in significant numbers that
Plaintiff could perform with these limitations. AR 18. Accordingly, the ALJ denied
Plaintiff’s claim. Plaintiff appealed the ALJ’s determination to the Appeals Council but
the Appeals Council denied his request for review. AR 7. This appeal followed.
I.

Applicable Law
A. Disability Determination Process
A claimant is considered disabled for purposes of Social Security disability insurance

benefits if that individual is unable “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
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or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Commissioner has adopted a five-step
sequential analysis to determine whether a person satisfies these statutory criteria. See 20 C.F.R.
§ 404.1520. The steps of the analysis are as follows:
(1) Claimant must establish that she is not currently engaged in “substantial gainful
activity.” If claimant is so engaged, she is not disabled and the analysis stops.
(2) Claimant must establish that she has “a severe medically determinable physical or
mental impairment . . . or combination of impairments” that has lasted for at least one
year. If claimant is not so impaired, she is not disabled and the analysis stops.
(3) If claimant can establish that her impairment(s) are equivalent to a listed impairment that
has already been determined to preclude substantial gainful activity, claimant is
presumed disabled and the analysis stops.
(4) If, however, claimant’s impairment(s) are not equivalent to a listed impairment, claimant
must establish that the impairment(s) prevent her from doing her “past relevant work.”
Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023
(10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence
and determines what is “the most [claimant] can still do despite [her physical and
mental] limitations.” 20 C.F.R. § 404.1545(a)(1). This is called the claimant’s residual
functional capacity (“RFC”). Id. § 404.1545(a)(3). Second, the ALJ determines the
physical and mental demands of claimant’s past work. Third, the ALJ determines
whether, given claimant’s RFC, claimant is capable of meeting those demands. A
claimant who is capable of returning to past relevant work is not disabled and the
analysis stops.
(5) At this point, the burden shifts to the Commissioner to show that claimant is able to
“make an adjustment to other work.” If the Commissioner is unable to make that
showing, claimant is deemed disabled. If, however, the Commissioner is able to make
the required showing, the claimant is deemed not disabled.
See 20 C.F.R. § 1520(a)(4); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).
B. Standard of Review
A court must affirm the denial of social security benefits unless (1) the decision is not
supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in
reaching the decision. 42 U.S.C. § 405(g); Casias v. Sec’y of Health & Human Serv., 933 F.2d

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799, 800-01 (10th Cir. 1991). In making these determinations, the reviewing court “neither
reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). For example, a court’s disagreement with a
decision is immaterial to the substantial evidence analysis. A decision is supported by substantial
evidence as long as it is supported by “relevant evidence . . . a reasonable mind might accept as
adequate to support [the] conclusion.” Casias, 933 F.3d at 800. While this requires more than a
mere scintilla of evidence, Casias, 933 F.3d at 800, “[t]he possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the] findings from being supported by
substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v.
F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
Similarly, even if a court agrees with a decision to deny benefits, if the ALJ’s reasons for
the decision are improper or are not articulated with sufficient particularity to allow for judicial
review, the court cannot affirm the decision as legally correct. Clifton v. Chater, 79 F.3d 1007,
1009 (10th Cir. 1996). As a baseline, the ALJ must support his or her findings with specific
weighing of the evidence and “the record must demonstrate that the ALJ considered all of the
evidence.” Id. at 1009-10. This does not mean that an ALJ must discuss every piece of evidence
in the record. But, it does require that the ALJ identify the evidence supporting the decision and
discuss any probative and contradictory evidence that the ALJ is rejecting. Id. at 1010.
II.

Analysis

Plaintiff raises a number of issues for review. Plaintiff first argues that the ALJ failed to
conduct a proper treating physician analysis in rejecting Dr. Sanchez’s opinions. Doc. 17 at 3.
Second, Plaintiff argues that the ALJ’s RFC was unsupported by the evidence because it failed to
explain how Plaintiff could perform the functions that his past work as a tractor/trailer driver

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required. Doc. 17 at 3. Third, Plaintiff contends that the vocational expert’s testimony was
unreliable because the ALJ did not include all of Plaintiff’s relevant limitations in his RFC, in
addition to failing to resolve a conflict between the vocational expert’s testimony and the
dictionary of occupational titles. Doc. 17 at 3. Because the Court agrees with Plaintiff’s first
contention, and will remand on that basis, it will not address Plaintiff’s remaining arguments.
Social Security regulations require that, in determining disability, the opinions of treating
physicians be given controlling weight when those opinions are well-supported by the medical
evidence and are consistent with the record. 20 C.F.R. 404.1527(c)(2); 416.927(c)(2). This is
known as the “treating physician rule.” Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir.
2004). The idea is that a treating physician provides 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,” and therefore, a treating physician’s opinion
merits controlling weight. Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003).
However, in order to receive controlling weight, a treating physician’s opinion must be
both supported by medical evidence and consistent with the record. If not, the opinions may not
merit controlling weight but still must be given deference and must be weighed using the
following six factors:
(1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.
Watkins v. Barnhart, 250 F.3d 1297, 1301 (10th Cir. 2003); see also 20 C.F.R. §§ 404.1527(c),
416.927(c). Not every factor is applicable in every case, nor should all six factors be seen as

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absolutely necessary. What is necessary, however, is that the ALJ give good reasons—reasons
that are “sufficiently specific to [be] clear to any subsequent reviewers”— for the weight that she
ultimately assigns to the opinions. Langley, 373 F.3d at 1119; see also 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2); Branum v. Barnhart, 385 F.3d 1268, 1275 (10th Cir. 2004).
In sum, when properly rejecting a treating physician’s opinion, an ALJ must follow two
steps. First, the ALJ must find that the opinion is (a) not supported by medical evidence and/or
(b) not consistent with the record. Second, the ALJ must still give deference to the opinion and
weigh it according to the factors listed above. Like all findings, an ALJ’s findings in these two
steps must be supported by substantial evidence.
In the present case, the ALJ accorded “little weight” to Dr. Sanchez’s opinions regarding
Plaintiff’s limitations. The ALJ stated that he gave the opinions little weight due to the fact that
Dr. Sanchez treated Plaintiff nearly two years after the relevant timeframe and he therefore
“would not have been privy to such information.” AR 15. The ALJ therefore concluded that Dr.
Sanchez’s opinion was “too speculative.” AR 15.
Upon review of the ALJ’s findings regarding Dr. Sanchez’s opinions, the Court
concludes that the ALJ failed to properly apply the treating physician rule. As for the first step
of the analysis, the ALJ neither found Dr. Sanchez’s opinion to be unsupported by the medical
evidence nor inconsistent with the record. Notably, Dr. Sanchez stated in his affidavit that he
based his opinion, in part, on his review of Plaintiff’s previous medical records that indicated
that Plaintiff had “relatively advanced multi-level degenerative disc disease.” AR 254. Thus, in
determining whether Dr. Sanchez’s opinions were entitled to controlling weight, the ALJ would
need to at least discuss why he would find Dr. Sanchez’s opinions either inconsistent with or
unsupported by Plaintiff’s medical records, scant as they were.

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Even assuming the ALJ’s finding regarding the speculative nature of Dr. Sanchez’s
opinion was sufficient to not give it controlling weight, the ALJ further failed to engage in the
second part of the treating physician analysis. Granted, the timing of Dr. Sanchez’s opinions may
be a relevant factor in determining the ultimate weight to assign them. However, the timing
itself is not dispositive. See Rogoff v. Astrue, Civ. No. 10-1041 LAM, Doc. 27 at 14 (D.N.M.
Nov. 28, 2011) (rejecting argument that treating physician’s opinion can be discounted solely on
the timing of the physician’s review of the plaintiff). Furthermore, the Court notes that
Defendant raises a number of other relevant contentions as to why the ALJ might give Dr.
Sanchez’s opinion little weight. Chief among these justifications—putting aside the possible
speculative nature of the opinions—is the short duration of the treating relationship. See
Watkins, 250 F.3d at 1301 (stating that the length of the treating relationship is a relevant factor
in determining what weight to assign a treating physician’s opinions). However, the ALJ never
discussed these issues and Defendant raises no more than post-hoc justifications for the ALJ’s
decision. See Haga v. Astrue, 482 F.3d 1205, 1207 (stating that the court “may not create or
adopt post-hoc rationalizations to support the ALJ’s decision that are not apparent from the
ALJ’s decision itself”). Accordingly, because the ALJ failed to conduct a proper treating
physician analysis, the Court will remand this case for further consideration. See Watkins, 350
F.3d at 1300. (stating that a court must remand when it “cannot meaningfully review the ALJ’s
determination absent findings explaining the weight assigned to the treating physician’s
opinion.”).
III.

CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Remand to Agency
(Doc. 17). The Court therefore reverses the Commissioner’s decision denying Plaintiff benefits

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and remands this action to the Commissioner to conduct further proceedings consistent with this
Opinion.

___________________________________
UNITED STATES MAGISTRATE JUDGE
Sitting by Consent

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