Morris v. Social Security Administration
Filing
29
MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen B. Molzen granting 25 Plaintiff's Motion to Remand to Agency. (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NORMA MORRIS,
Plaintiff,
v.
CIV 18-0164 KBM
ANDREW M. SAUL 1,
Commissioner of Social
Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and/or
Remand (Doc. 25), filed November 27, 2018. Pursuant to 28 U.S.C. § 636(c) and Fed.
R. Civ. P. 73(b), the parties have consented to me serving as the presiding judge and
entering final judgment. See Docs. 9, 18, 19. Having considered the record,
submissions of counsel, and relevant law, the Court finds Plaintiff’s motion is well-taken
and will be granted.
I.
Procedural History
On June 25, 2014, Ms. Norma Morris (“Plaintiff”) filed an application with the
Social Security Administration for a period of disability and disability insurance benefits
under Title II of the Social Security Act (SSA). Administrative Record 2 (AR) at 62, 13238. Plaintiff initially alleged a disability onset date of April 1, 2010, but later amended
Andrew Saul was confirmed as Commissioner of Social Security on June 17, 2019 and is
automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d).
1
2
Document 15-1 contains the sealed Administrative Record. See Doc. 15-1. The Court cites the
Administrative Record’s internal pagination, rather than the CM/ECF document number and page.
that date to November 6, 2014. AR at 33, 132. Plaintiff’s date last insured was
December 31, 2014. AR at 17. Thus, the relevant period for purposes of her disability
determination was November 6, 2014, to December 31, 2014. Disability Determination
Services (“DDS”) determined that Plaintiff was not disabled both initially (AR at 70) and
on reconsideration (AR at 82). Plaintiff requested a hearing with an Administrative Law
Judge (“ALJ”) on the merits of her applications. AR at 128.
Both Plaintiff and a vocational expert (“VE”) testified during the de novo hearing
before the ALJ. See AR at 28-60. ALJ Doug Gabbard, II issued an unfavorable decision
on April 13, 2017. AR at 15-23. Plaintiff submitted a Request for Review of Hearing
Decision/Order to the Appeals Council (AR at 7-8), which the Council denied on
January 17, 2018 (AR at 1-3). Consequently, the ALJ’s decision became the final
decision of the Commissioner. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.
2003).
II.
Applicable Law and the ALJ’s Findings
A claimant seeking disability benefits must establish that she 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 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); see also 20 C.F.R. §§ 404.1505(a). The Commissioner must use
a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R.
§ 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
The claimant has the burden at the first four steps of the process to show: (1) she
is not engaged in “substantial gainful activity”; (2) she has a “severe medically
2
determinable . . . impairment . . . or a combination of impairments” that has lasted or is
expected to last for at least one year; and (3) her impairment(s) meet or equal one of the
listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the assessment
of the claimant’s residual functional capacity (“RFC”), she is unable to perform her past
relevant work. 20 C.F.R § 404.1520(a)(4)(i-iv); see also Grogan v. Barnhart, 399 F.3d
1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a multidimensional description of
the work-related abilities [a claimant] retain[s] in spite of her medical impairments.” Ryan
v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2 (D.N.M. Sept. 29, 2016) (citing 20
C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R. § 404.1545(a)(1)). If the claimant
meets “the burden of establishing a prima facie case of disability[,] . . . the burden of
proof shifts to the Commissioner at step five to show that” Plaintiff retains sufficient RFC
“to perform work in the national economy, given [her] age, education, and work
experience.” Grogan, 399 F.3d at 1261 (citing Williams v. Bowen, 844 F.2d 748, 751 &
n.2 (10th Cir. 1988)); see also 20 C.F.R. § 404.1520(a)(4)(v).
At Step One of the process, ALJ Gabbard found that Plaintiff “last met the
insured status requirements of the Social Security Act on December 31, 2014.” AR at
17. He also determined that she “did not engage in substantial gainful activity during the
period from her [initial] alleged onset date of April 1, 2010 through her date last insured
of December 31, 2014.” AR at 17 (citing 20 C.F.R. § 404.1571-1576). At Step Two, the
ALJ concluded that Plaintiff had the following severe impairments: obesity, degenerative
disc disease of lumbar spine, carpal tunnel syndrome of right hand, and degenerative
joint disease of bilateral knee. AR at 17 (citing 20 C.F.R. § 404.1520(c)). The ALJ
indicated that Plaintiff had the following non-severe impairments: foot callous, left hand
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carpal tunnel syndrome, migraines, and hypertension. AR at 18. Finally, the ALJ noted
Plaintiff’s allegations of sinusitis, joint dysfunction, chronic pain, lump in neck, and
dizziness but determined that there was “insufficient evidence to establish medically
determinable impairments” as to those allegations. AR at 17-18.
At Step Three, the ALJ found that Plaintiff “did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 18 (citing 20
C.F.R. §§ 404.1520(d), 404.1525, 404.1526). At Step Four, the ALJ found that while
Plaintiff’s “medically determinable impairments could reasonably be expected to cause
the alleged symptoms,” Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of these symptoms [were] not entirely consistent with the medical
evidence and other evidence in the record . . . .” AR at 21. The ALJ considered the
evidence of record and found as follows:
[T]hrough the date last insured, [Plaintiff] had the [RFC] to perform light work
as defined in 20 [C.F.R.] 404.1567(b) except with occasional climbing of
ramps/stairs; no climbing of ladders/ropes/scaffolds; occasional balancing,
stooping, kneeling, crouching and crawling; no walking on uneven surfaces;
occasional grasping, fingering and feeling with her right dominant hand; and
she must be allowed to alternately sit and stand every 10 minutes
throughout the workday for the purpose of changing positions, but without
leaving the workstation.
AR at 19. The ALJ went on to find that Plaintiff “was unable to perform any past relevant
work.” AR at 21 (citing 20 C.F.R. § 404.1565). But at Step Five, he found that
“[c]onsidering [Plaintiff’s] age, education, work experience, and [RFC], [she] had
acquired work skills from past relevant work that were transferable to other occupations
with jobs existing in significant numbers in the national economy.” AR at 22 (citing 20
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C.F.R. §§ 404.1569, 404.1569(a), 404.1568(d)). More particularly, the ALJ found
Plaintiff able to perform the positions of Conveyor line baker worker (DOT
#524.687.022) and Counter clerk (DOT #249.366.010). Consequently, he determined
that Plaintiff had not been under a disability from April 1, 2010, Plaintiff’s initial alleged
onset date, through December 31, 2014, her date last insured. AR at 23 (citing 20
C.F.R. § 404.1520(g)).
III.
Legal Standard
The Court must “review the Commissioner’s decision to determine whether the
factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)). A deficiency
in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161,
1166 (10th Cir. 2012) (citation omitted). “Substantial evidence is ‘such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” Lax, 489
F.3d at 1084 (quoting Hackett, 395 F.3d at 1172 (internal quotation omitted)). “It
requires more than a scintilla, but less than a preponderance.” Id. (quoting Zoltanski v.
F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (alteration in original)). The Court will
“consider whether the ALJ followed the specific rules of law that must be followed in
weighing particular types of evidence in disability cases, but [it] will not reweigh the
evidence or substitute [its] judgment for the Commissioner’s.” Id. (quoting Hackett, 395
F.3d at 1172).
“The possibility of drawing two inconsistent conclusions from the evidence does
not prevent an administrative agency’s findings from being supported by substantial
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evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200). The Court “may not ‘displace the
agenc[y’s] choice between two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been before it de novo.’” Id.
(quoting Zoltanski, 372 F.3d at 1200).
IV.
Discussion
Plaintiff raises four issues in her motion. She argues that the ALJ failed: (1) to
consider the opinions of her two treating physician assistants without explanation; (2) to
explain his finding that her knee condition and obesity did not meet or equal Listing
1.02; (3) to explain how her obesity affected her functioning at Step Four; and (4) to
conduct a function-by-function assessment of her exertional limitations. Doc. 25 at 2.
A.
The ALJ committed reversible error by failing to discuss the
opinions of Ms. Burks and Ms. Sheffler.
Plaintiff argues that because the ALJ made no mention of the opinions of Pamela
Burks, P.A. and Han Vu Sheffler, P.A., remand is warranted. Doc. 25 at 15. While the
Commissioner concedes that it “may have been preferable for the ALJ to have explicitly
addressed the opinions of Ms. Sheffler and Ms. Burks,” he insists that the ALJ did not
commit reversible error. Doc. 26 at 18.
Plaintiff first saw Ms. Burks in November 2014, within the relevant period, for
severe pain in her right knee, which Plaintiff rated as a “10.” AR at 298. She reported to
Ms. Burks that her right knee pain had been ongoing since 2009 and denied any recent
trauma or injury. AR at 298-99. Plaintiff reported that she experienced knee pain when
standing and walking and that she also experienced “give way” of the same knee. AR at
299. Ms. Burks reported that Plaintiff had “some pain over the lateral aspect and just
inferior to the knee” as well as “pain with straight leg raise both in the sitting and supine
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position.” AR at 299. However, she observed no swelling, erythema, ecchymosis, or
joint effusion. AR at 299. Ms. Burks noted that x-rays taken of Plaintiff’s right knee
earlier that month showed “moderate osteoarthritis of all 3 compartments.” AR at 299.
Additionally, x-rays of her lumbar spine showed “early degenerative joint and disk
disease at L4-5 and L5-S1,” and Ms. Burks assessed “[l]ow back pain and right leg
radicular symptoms.” AR at 299. Ms. Burks administered a Kenalog injection in
Plaintiff’s knee at this November 2014 visit. AR at 300.
Plaintiff saw Ms. Burks again in early December 2014, also within the relevant
period, when she requested another injection in her knee. AR at 297. At that time,
Plaintiff reported that the previous knee injection had not alleviated her pain and that,
earlier that month, her knee “locked out,” with several hours passing before she could
resume bending her knee. AR at 297. Ms. Burks found tenderness over Plaintiff’s
medial joint line and posterior medial joint line. AR at 297. She also noted weakness in
Plaintiff’s right hamstring and quad. AR at 297. She assessed “[r]ight knee pain with
probable meniscal injury” and referred Plaintiff for an MRI. AR at 298.
In February 2015, just after Plaintiff’s date last insured, Plaintiff saw Ms. Burks for
a follow-up appointment. AR at 292. She reported that her “right knee [had] been
locking” and that she was having back pain as well as pain in her left knee. AR at 292.
According to Ms. Burks’ treatment notes, an MRI showed “moderate to advanced
osteoarthritis with asymmetric joint space narrowing most pronounced in the anterior
lateral aspect of the joint.” AR at 292. Additionally, there were “large osteophytes seen
and associated with cystic changes [and] several loose bodies intraarticularly, largest
ones adjacent to the tibial spines.” AR at 292-93. There was “architectural distortion
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involving the ACL and MCL and a diffuse surface tear of the lateral meniscus anterior
horn and body junction.” AR at 293. The MRI also showed “advanced maceration,
degeneration and tearing of the lateral meniscus,” and, finally, the patellafemoral joint
showed “advanced denudation of the articular cartilage over the crescent adjacent to
the facets indicative of a grade IV chondromalacia patella and small effusion and
findings that can be seen with synovitis as manifested by hypertrophy of the synovium.”
AR at 293. Ms. Burks assessed Plaintiff with “[m]oderate to severe osteoarthritis of the
right knee.” AR at 293. Additionally, she noted that x-rays of Plaintiff’s lumbar spine
showed “grade I spondylolisthesis of L4 and L5 with moderate narrowing of the L4-5
interspace.” AR at 293.
In his decision, the ALJ related certain of these MRI findings from Ms. Burks’
February 2015 treatment notes without attributing them to Ms. Burks. See AR at 20. He
noted, for instance, that Plaintiff was diagnosed with “moderate to advanced
osteoarthritis” and that there were “large osteophytes seen and associated with cystic
changes.” AR at 209. He did not, however, mention Ms. Burks’ August 31, 2016 letter,
which she wrote on Plaintiff’s behalf, or the opinions expressed therein.
In her August 31, 2016 letter, Ms. Burks stated that she had seen Plaintiff for “low
back pain with bilateral leg pain and substantial weakness for the last 6 years.” Id. She
explained that the results of Plaintiff’s recent lumbar MRI showed Grade I
spondylolisthesis at L4-5, opining that this condition “makes it difficult for [Plaintiff] to
stand or sit or walk for any period of time.” Id. Finally, she stated that Plaintiff’s severe
pain “makes it difficult to do her ADL’s as well as any physical activity or to work.” Id.
Apart from his brief mention of the February 2015 MRI findings, the ALJ did not discuss
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any of Plaintiff’s visits with Ms. Burks, any of her findings during the relevant period, or
any of her opinions. In fact, the ALJ never mentioned Ms. Burks by name.
Likewise, the ALJ failed to mention Ms. Sheffler or her opinions. As the
Commissioner notes, Plaintiff did not see Ms. Sheffler during the relevant period, seeing
her for the first time in April and June of 2016, for chronic pain. AR at 361-67, 418-20.
And Ms. Sheffler did not include any physical examination findings in her treatment
notes for these visits. AR at 361-67, 418-20. Her treatment notes merely indicated that
Plaintiff received injections of Kenalog and Toradol and that an “arthritis profile 2” was
performed. AR at 361, 419. Like Ms. Burks, Ms. Sheffler wrote a letter on Plaintiff’s
behalf, hers dated July 8, 2016. AR at 400. Ms. Sheffler explained therein that Plaintiff
“is in excruciating pain on a daily basis” and offered her opinion that Plaintiff “would not
be able to perform any work duties.” AR at 400. Ms. Sheffler further indicated that
Plaintiff was, at that time, being treated and attending regular follow-up appointments for
“severe migraines, . . . lost [sic] of strength, flexibility, and usage in her arms, hands,
fingers, wrists, knees, legs, feet, shoulders, hips, and back.” AR at 400.
Following her July 8, 2016 letter, Plaintiff saw Ms. Sheffler again, this time on
September 27, 2016, for joint pain, headaches, dizziness, and nausea. AR at 427-31.
Ms. Sheffler assessed Plaintiff with arthralgia (i.e., joint pain) and myalgia (i.e., muscle
pain). AR at 428. She recorded in her treatment notes that Plaintiff’s joint pain was a
“chronic problem,” that the medication she was taking was not helping, and that “[t]he
pain is all over and . . . hurts with any movement.” AR at 427. Next, Plaintiff followed up
again with Ms. Sheffler on October 26, 2016. AR at 430. Ms. Sheffler assessed Plaintiff
with fibromyalgia and indicated that she would attempt to obtain a prior authorization for
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Cymbalta and that if Plaintiff was “denied again,” she would prescribe an alternate
medication. AR at 431.
According to Plaintiff, the ALJ’s failure to explain the weight, if any, that he gave
to the opinions of Ms. Burks and Ms. Sheffler constitutes reversible error. Doc. 25 at 1315. Plaintiff insists that the limitations opined by Ms. Burks and Ms. Sheffler exceed
those contained within the ALJ’s RFC and were, thus, not accounted for by the RFC.
Doc. 25 at 15. The Commissioner responds first by noting that Ms. Burks and Ms.
Sheffler were not “acceptable medical sources” under the regulations in effect at the
time of the ALJ’s decision. Doc. 26 at 16.
As physician assistants, it is true that, pursuant to the applicable version of 20
C.F.R. § 1513(a), 3 Ms. Burks and Ms. Sheffler were not “acceptable medical sources.”
At the time of Plaintiff’s application, “acceptable medical sources” included physicians,
psychologists, certain optometrists and podiatrists, and certain speech-language
pathologists. 20 C.F.R. § 1513(a). Physician assistants, along with nurse practitioners,
naturopaths, chiropractors, audiologists, and therapists, in contrast, were categorized as
“other medical sources.” See Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir.
2007) (citing 20 C.F.R. §§ 404.1502, 404.1513). The applicable regulations required
3
Because Plaintiff filed her initial claims for Social Security benefits before March 27, 2017, the
pre-2017 regulations apply here. See Revisions to Rules Regarding the Evaluation of Medical
Evidence, 82 Fed. Reg. 5844, 5855-01 (2017) (explaining the difference in treatment of medical
sources between claims filed before March 27, 2017, and those filed on or after March 27, 2017).
Where the pre-2017 regulation makes a distinction between “acceptable” medical sources and
“other” medical sources, the post-2017 regulations remove this distinction. Compare 20 C.F.R.
§ 404.1527 (“Evaluating opinion evidence for claims filed before March 27, 2017”) with 20 C.F.R.
§ 404.1520c (“How we consider and articulate medical opinions and prior administrative medical
findings for claims filed on or after March 27, 2017”).
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certain distinctions to be made between “acceptable medical sources” and those
providers that were not “acceptable medical sources.” See SSR 06-03p, 2006 WL
2329939 at *2 (Aug. 9, 2006). These distinctions were “necessary” because only
“acceptable medical sources” could “establish the existence of a medically determinable
impairment,” give “medical opinions” and be considered “treating sources . . . whose
medical opinions may be entitled to controlling weight.” Id. (citations omitted). While
information from “other sources” could not “establish the existence of a medically
determinable impairment[,] . . . information from such ‘other sources’ [could] be based
on special knowledge of the individual and [could] provide insight into the severity of the
impairment(s) and how it affect[ed] the individual’s ability to function.” SSR 06-03p,
2006 WL 2329939 at *2; see also Carpenter v. Astrue, 537 F.3d 1264, 1267-68 (10th
Cir. 2008) (explaining that while “other source[s]” cannot diagnose an impairment, their
opinions are relevant to “the questions of severity and functionality”) (citing Frantz, 509
F.3d at 1301-02). As such, opinions from “other medical sources,” even at the time of
Plaintiff’s application, were “important and should be evaluated on key issues such as
impairment severity and functional effects, along with the other relevant evidence in the
file.” SSR 06-03p, 2006 WL 2329939, at *3.
Social Security Ruling 06-03p, since rescinded but still in effect when Plaintiff
filed her application, clarified that the factors used in weighing medical opinions of
acceptable medical sources “set out in 20 C.F.R. § 404.1527(d) appl[ied] equally to ‘all
opinions from medical sources who are not acceptable medical sources as well as from
other [non-medical] sources.’” Frantz, 509 F.3d at 1302 (quoting SSR 06-03p, 2006 WL
2329939 at *4). These factors include: (1) the examining relationship; (2) the treatment
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relationship; (3) supportability of the opinion; (4) consistency of the medical opinion with
the record as a whole; (5) specialization; and, (6) any “other factors” “which tend to
support or contradict the medical opinion.” 20 C.F.R. § 404.1527(c)(1)-(6). That said,
“not every factor for weighing opinion evidence will apply in every case because the
evaluation of an opinion from a medical source who is not an acceptable medical source
. . . depends on the particular facts in each case.” 20 C.F.R. § 404.1527(f)(1). Indeed,
depending on the facts of the case, an opinion from a medical source that is not
“acceptable” under the regulations could sometimes outweigh one offered by an
“acceptable” medical source. 20 C.F.R. § 404.1527(f)(1); SSR 06-03p, 2006 WL
2329939 at *5. Adjudicators were instructed to “explain the weight given to opinions
from these sources or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome of the
case.” 20 C.F.R. § 404.1527(f)(2); SSR 06-03p, 2006 WL 2329939 at *6-7
Here, the Court begins with the premise that the ALJ must evaluate every
medical opinion in the record, including those offered by sources who are not
considered “acceptable medical sources.” Critically, the ALJ offered no explanation for
his failure to discuss the opinions of Ms. Burks and Ms. Sheffler and, instead, simply
glossed over them without remark. The status of the providers as “other” medical
sources does not justify his failure to weigh or discuss their opinions.
The Commissioner suggests that this failure is justified on other grounds,
however. He maintains that neither Ms. Burks nor Ms. Sheffler’s opinions “had an effect
on the outcome of the case because both opinions were written over a year and a half
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after Plaintiff’s date last insured and involved consideration of new impairments.” Doc.
26 at 16-17. But the issuance of a medical opinion after the date last insured does not
necessarily render it irrelevant to an ALJ’s disability determination. In fact, medical
opinions authored after the date last insured do sometimes bear on the nature and
severity of a claimant’s condition within the relevant period. See, e.g., Hamlin v.
Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004) (holding that the ALJ erred by
neglecting to discuss an RFC evaluation authored by a treating source after the
claimant’s date last insured, where the evaluation covered the relevant period); Baca v.
Dep't of Health & Human Servs., 5 F.3d 476, 479 (10th Cir.1993) (reasoning that
evidence that bears upon a plaintiff’s condition after his date last insured is “pertinent
evidence” which may “disclose the severity and continuity of impairments existing
before the earning requirement date or may identify additional impairments which could
reasonably be presumed to have been present and to have imposed limitations as of
the earning requirement date”).
Here, the ALJ himself recognized that post-date-last-insured evidence is
sometimes relevant to disability decisions. That is, he mentioned findings from an MRI
taken outside the relevant period. AR at 20. Noting that “it was not until almost two
months after the [date last insured] that a MRI [of Plaintiff’s right knee] was performed,”
the ALJ nevertheless concluded that Plaintiff “had an impairment related to her knees
prior to the [date last insured].” AR at 20. Unfortunately, the ALJ did not go on to discuss
the opinions of Plaintiff’s treating physician assistants, even as they related to her right
knee impairment.
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The Commissioner asks the Court to excuse the ALJ’s failure to discuss Ms.
Sheffler’s opinion by emphasizing that Plaintiff did not even see her until April 2016, well
after her date last insured. The Court agrees with the general notion that visits with a
medical provider that take place beyond the relevant period are typically less probative
than those within the relevant period. Still, the timing of Ms. Sheffler’s opinion did not
preclude its relevance. The relevance of Ms. Sheffler’s opinions and her treatment notes
was for the ALJ to determine in the first instance. As for Ms. Burks’ opinions, the Court
notes that they are more likely probative of Plaintiff’s disability, given their temporal
proximity to the relevant period. Ms. Burks treated Plaintiff on at least two occasions
during the relevant period and on one occasion shortly thereafter. See AR at 293.
Ultimately, the Court cannot agree with the Commissioner that the opinions of
either Ms. Burks or Ms. Sheffler necessarily have “no effect on the outcome of the
case,” simply because they were authored more than a year and a half after Plaintiff’s
date last insured. See Harris v. Astrue, 646 F. Supp. 2d 979, 999-1000 (N.D. Ill.
2009) (concluding that the ALJ erred by failing to analyze or address the opinions of the
claimant’s treating physician, even though the physician became the claimant’s primary
care physician two months after the claimant’s date last insured and presented no
evidence suggesting that her findings were illustrative of the claimant’s prior condition).
Next, the Commissioner submits that it was proper for the ALJ to omit any
discussion of Ms. Sheffler’s opinions, because she “did not include specific limitations on
Plaintiff’s functioning, but instead simply concluded that [she] could not work.” Doc. 26 at
17. He characterizes such an opinion as one “reserved for the Commissioner.” Id. Ms.
Burks, too, opined that it would be “difficult” for Plaintiff to work. AR at 402.
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An opinion by a medical source that a claimant is “unable to work” is an opinion
on an issue reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(1) (effective
through March 27, 2017). Such a statement by a medical source “does not mean that
[the ALJ] will determine that [the claimant is] disabled.” Id. Nevertheless, such opinions
may not be altogether disregarded. SSR 96-5p, 1996 WL 374183, at *1-2, 5 (July 2,
1996) (explaining that “adjudicators must always carefully consider medical source
opinions about any issue, include opinions about issues that are reserved to the
Commissioner”). Social Security Ruling 96-5p, which was effective at the time Plaintiff
filed her application, is quite clear: “[t]he adjudicator is required to evaluate all evidence
in the case record that may have a bearing on the determination or decision of disability,
including opinions from medical sources about issues reserved to the Commissioner.”
Id. at *3. Thus, if the opinions of Ms. Burks and Ms. Sheffler would have any bearing on
a determination or decision of disability, even their opinions as to whether Plaintiff was
capable of working, the ALJ was required to evaluate them. There is no indication in his
decision that the ALJ did so here.
The Commissioner also notes that Ms. Burks and Ms. Sheffler’s opinions
reference new impairments, impairments not present prior to her date last insured.
Doc. 26 at 17. Among these purportedly new impairments are the following: migraines
and problems with her arms, hands, fingers, wrists, feet, and shoulders. Id. The
incorporation of new post-date-last-insured impairments may or may not be an adequate
justification for an ALJ to discount a medical opinion, depending on the circumstances of
a given case. In some cases, for example, courts have determined that the inclusion of
post-date-last-insured impairments within an assessment was not a legitimate reason for
15
discounting a provider’s opinion. See e.g., Miocic v. Astrue, 890 F. Supp. 2d 1046, 1056
(N.D. Ill. 2012) (concluding that the ALJ failed to give good reasons for rejecting the
opinions of the claimant’s treating physician and concluding that the physician’s “findings
very likely refer[] to claimant’s condition before her insured status expired,” even though
the physician offered opinions and findings after the date last insured and considered
limitations that began after the date last insured). Again, the ALJ here did not actually
offer the inclusion of post-date-last-insured impairments as a justification for his rejection
of Ms. Burks and Ms. Sheffler’s opinions. The Court rejects the Commissioner’s attempt
to supply this post hoc justification on the ALJ’s behalf.
In Case v. Astrue, No. 09–2058–KHV/GBC, 2009 WL 5210844 (D. Kan. Dec. 23,
2009), the District of Kansas addressed arguments similar to those advanced by
Plaintiff and the Commissioner in this case, and the Court finds the District of Kansas’
conclusion and rationale in in that case persuasive. There, the plaintiff argued that the
ALJ erred by not considering the opinion of her nurse practitioner. That opinion was
formulated two and one-half years after the plaintiff’s date last insured and relied heavily
upon an impairment that was not diagnosed until more than a year after the plaintiff’s
date last insured. Id. at *2. The Commissioner acknowledged that the ALJ’s decision did
not mention the nurse practitioner’s opinion but maintained that “the decision in context
makes clear that the ALJ found [the] opinion was not relevant to the determination of
[the] plaintiff's condition before [the] plaintiff's date last insured.” Id. at *2.
Admitting that there was “surface appeal” to the Commissioner’s position, the
District of Kansas ultimately reasoned that, even if the nurse practitioner’s opinion was
“based heavily” upon the diagnosis of a post-date-last-insured impairment, it was,
16
conversely, not based exclusively upon that impairment. Id. at *2-3. Accordingly, the
court characterized the nurse practitioner’s opinion as “some medical evidence of
limitations which were the result of [impairments] . . . which might have limited plaintiff’s
abilities before her date last insured.” Id. at *3. Even though the court noted that the
nurse practitioner was not an “acceptable medical source,” it determined that the ALJ
was still required to explain the weight accorded to her opinion or otherwise ensure that
the reviewing court could follow his reasoning. Id. at *3. Finding that the opinion was “at
least potentially relevant to the period before plaintiff's date last insured,” the court
determined that the ALJ’s failure to explain his dismissal of the opinion constituted
reversible error. Id. at *3.
Here, too, Ms. Burks and Ms. Sheffler, two medical sources who were not
“acceptable medical sources” at the time of Plaintiff’s application, mentioned both predate-last-insured impairments and post-date-last-insured impairments in their opinions.
Following the rationale in Case, the Court concludes that these opinions are at least
potentially relevant to the period before Plaintiff’s date last insured. While the
Commissioner’s arguments may ultimately constitute grounds to discount, or even
reject, these opinions, the ALJ here did not explicitly discount or reject them in his
decision. He did not even discuss them. The Court is constrained to evaluate the ALJ’s
decision based solely upon the rationale provided in his decision.
Finally, the Court does not agree with the Commissioner that the ALJ’s RFC
accounted for the limitations found by Ms. Burks and Ms. Sheffler. Again, Ms. Burks
opined that it would be “difficult for [Plaintiff] to stand or sit or walk for any period of
time” and that Plaintiff’s limitations would “make[] it difficult to do her ADL’s as well as
17
any physical activity or to work.” AR at 402 (emphasis added). Ms. Sheffler, in turn,
opined that Plaintiff “would not be able to perform any work duties.” AR at 401. The
ALJ’s RFC, in contrast, permitted light work with certain limitations, including the ability
to “alternately sit and stand every 10 minutes throughout the workday for the purpose of
changing positions, but without leaving the workstation.” AR at 19. The ALJ’s RFC is at
odds with and less restrictive than the opinions of Ms. Burks and Ms. Sheffler.
Ultimately, because the ALJ failed to explain the weight accorded to the opinions
of Ms. Burks and Ms. Sheffler and neglected to provide sufficient rationale for the Court
to determine how these opinions were treated, remand is necessary. On remand, the
ALJ need not necessarily accord substantial weight to these opinions or even find that
they relate to the relevant period. Rather, he must properly evaluate them and explain
the weight given to them, supporting his rationale with substantial evidence in the record
as a whole. The Court will grant Plaintiff’s motion on this issue.
B.
Remaining Claims
The Court declines to address Plaintiff’s remaining claims of error because they
may be affected by the ALJ’s treatment of this case on remand. Wilson v. Barnhart, 350
F.3d 1297, 1299 (10th Cir. 2003).
V.
Conclusion
In sum, the Court concludes that the ALJ committed reversible error by failing to
discuss the opinions of Ms. Burks and Ms. Sheffler. Plaintiff’s motion is granted on this
ground.
Wherefore,
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IT IS ORDERED that Plaintiff’s Motion to Reverse and/or Remand (Doc. 25), filed
November 27, 2018, is GRANTED. A final order pursuant to Rule 58 of the Federal
Rules of Civil Procedure will enter concurrently herewith.
________________________________________
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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