Hester v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge Steven P. Shreder reversing and remanding the decision of the ALJ (dma, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
CLAYTON HESTER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
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Case No. CIV-11-120-SPS
OPINION AND ORDER
The claimant Clayton Hester requests judicial review of a denial of benefits by the
Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). The
claimant appeals the Commissioner’s decision and asserts that the Administrative Law
Judge (“ALJ”) erred in determining he was not disabled. As discussed below, the
decision of the Commissioner decision is hereby REVERSED and the case REMANDED
to the ALJ for further proceedings.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment[.]” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social
Security Act “only if his physical or mental impairment or impairments are of such
severity that he 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 the national economy[.]” Id. § 423 (d)(2)(A). Social security regulations
implement a five-step sequential process to evaluate a disability claim. See 20 C.F.R. §§
404.1520, 416.920.1
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997). Substantial evidence is “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). See also Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the
Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d 799,
800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he
substantiality of evidence must take into account whatever in the record fairly detracts
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Step one requires the claimant to establish that he is not engaged in substantial gainful
activity. Step two requires the claimant to establish that he has a medically severe impairment (or
combination of impairments) that significantly limits his ability to do basic work activities. If the
claimant is engaged in substantial gainful activity, or his impairment is not medically severe,
disability benefits are denied. If he does have a medically severe impairment, it is measured at
step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant
has a listed (or “medically equivalent”) impairment, he is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that he lacks the residual functional capacity (RFC) to return to his past
relevant work. At step five, the burden shifts to the Commissioner to show there is significant
work in the national economy that the claimant can perform, given his age, education, work
experience and RFC. Disability benefits are denied if the claimant can return to any of his past
relevant work or if his RFC does not preclude alternative work. See generally Williams v. Bowen,
844 F.2d 748, 750-51 (10th Cir. 1988).
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from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also
Casias, 933 F.2d at 800-01.
Claimant’s Background
The claimant was born on June 30, 1960 and was forty-eight years old at the time
of the administrative hearing. He has a seventh grade education and past relevant work
as a maintenance supervisor, apartment maintenance worker, apartment maintenance
supervisor, and interior painter (Tr. 23). The claimant alleges that he has been unable to
work since July 1, 2005, because of injuries and pain his back, left and right shoulders,
and neck (Tr. 133).
Procedural History
The claimant applied for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-434, on June 11, 2007. The Commissioner denied his
application. ALJ Deborah L. Rose held an administrative hearing and determined that
the claimant was not disabled in a written opinion dated September 2, 2009. The Appeals
Council denied review, so this opinion is the Commissioner’s final decision for purposes
of appeal. 20 C.F.R. § 404.981.
Decision of the Administrative Law Judge
The ALJ made her decision at step five of the sequential evaluation. She found
that the claimant had the residual functional capacity (“RFC”) to perform light work as
defined in 20 C.F.R. § 404.1567(b) with the additional physical limitations that he can
only occasionally climb, balance, stoop, kneel, crawl, and crouch and never work above
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shoulder level (Tr. 20). While the ALJ concluded that the claimant was unable to return
to his past relevant work, she found that there was work the claimant could perform in the
national economy, i. e., arcade attendant, parking lot attendant, semiconductor assembler,
and clerical mailer (Tr. 24). Thus, the ALJ concluded that the claimant was not disabled
(Tr. 24).
Review
The claimant contends that the ALJ erred by failing to properly analyze the
opinion of claimant’s treating physician Dr. James Odor, M.D. The Court agrees.
The claimant suffered a work-related injury to his back and shoulder in July 2003
when he fell off of a ladder and landed on his back (Tr. 201). One month after his injury,
the claimant presented with complaints of pain in his lower back and legs and burning in
his upper back (Tr. 213). At that time, the claimant reported that he could not do
anything for over 15 minutes without pain and that he was experiencing pain on the left
side which radiated down to his left leg (Tr. 213). In January 2005, the claimant was
evaluated by Dr. James Odor, M.D. and a written report of that examination reveals that
claimant had constant pain in his back with “intermittent stabbing pains and popping and
grinding sensations in his lower back” (Tr. 433). Dr. Odor’s initial impression was that
claimant had lumbar disc disease with ongoing lumbar radicular syndrome and a left
shoulder injury (Tr. 434). Dr. Odor recommended that claimant be restricted to no
repetitive bending, twisting or lifting greater than ten pounds (Tr. 434). Findings from a
discography shortly thereafter revealed that claimant had minimal anterolisthesis and a
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small bulge eccentric to the right with a midline annular tear resulting in minimal
narrowing of the right neural foramen at L4-5, minimal retrolisthesis at L3-4 and a small
bulge slightly indenting the ventral thecal sac and a dehydrated and narrowed
intervertebral disc at T10-11 (Tr. 427). Based on those results, Dr. Odor recommended
proceeding with a two level lumbar fusion and stabilization procedure which was
performed on April 7, 2005 (Tr. 455-59).
The claimant then began reporting for
bimonthly follow up evaluations, and Dr. Odor removed the hardware in his back that
went along with the fusion on April 6, 2006 (Tr. 446-47). In connection with his
workers’ compensation claim, the claimant underwent a functional capacities evaluation
in June 2006, which was signed and reviewed by Dr. Odor, and Dr. Odor submitted a
written report based on that evaluation to the Workers’ Compensation Court (Tr. 440). In
that written report, Dr. Odor wrote that the claimant “provided a consistent performance .
. . but also demonstrated 3 out of 5 unexpected results[,]” and Dr. Odor stated that his
permanent restrictions were that claimant should perform no repetitive bending, twisting,
or lifting greater than ten pounds, and claimant should have the ability to alternative
sitting and standing at his discretion (Tr. 440).
The claimant was examined by state physician Dr. Shelia Newcomb on October
17, 2007 (Tr. 505-10). Dr. Newcomb found that while the claimant did have tenderness
to palpation in his bilateral paravertebral musculature at T-10 to L-4, he also had normal
range of motion (Tr. 505-10). State reviewing physician Dr. Janet D. Rodgers, M.D.
completed a Residual Functional Capacity Assessment on in which she found that
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claimant could occasionally lift/carry 20 pounds, frequently lift/carry ten pounds,
stand/walk for six hours in an eight-hour workday, and sit for six hours in an eight-hour
workday (Tr. 512-517). Dr. Rodgers also opined that claimant could only occasionally
climb, balance, stoop, kneel, crouch, or crawl and never reach overhead (Tr. 513-14).
Medical opinions from the claimant’s treating physician are entitled to controlling
weight if they are “‘well-supported by medically acceptable clinical and laboratory
diagnostic techniques . . . [and] consistent with other substantial evidence in the record.’”
See Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004), quoting Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). Even if a treating physician’s opinions
are not entitled to controlling weight, the ALJ must nevertheless determine the proper
weight to give them by analyzing the factors set forth in 20 C.F.R. § 404.1527. Id. at
1119 (“Even if a treating physician’s opinion is not entitled to controlling weight,
‘[t]reating source medical opinions are still entitled to deference and must be weighed
using all of the factors provided in [§] 404.1527.’”), quoting Watkins, 350 F.3d at 1300.
The pertinent factors are: (i) the length of the treatment relationship and the frequency of
examination; (ii) the nature and extent of the treatment relationship, including the
treatment provided and the kind of examination or testing performed; (iii) the degree to
which the physician’s opinion is supported by relevant evidence; (iv) consistency
between the opinion and the record as a whole; (v) whether or not the physician is a
specialist in the area upon which an opinion is rendered; and (vi) other factors brought to
the ALJ’s attention which tend to support or contradict the opinion. Watkins, 350 F.3d at
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1300-01 [quotation marks omitted], citing Drapeau v. Massanari, 255 F.3d 1211, 1213
(10th Cir. 2001). Finally, if the ALJ decides to reject a treating physician’s opinion
entirely, “he must . . . give specific, legitimate reasons for doing so[,]” id. at 1301
[quotation marks omitted; citation omitted], so it is “clear to any subsequent reviewers
the weight [he] gave to the treating source’s medical opinion and the reasons for that
weight.” Id. at 1300 [quotation omitted].
The ALJ gave “little weight” to the evaluation of treating physician Dr. Odor. She
stated that Dr. Odor “indicated that the overall test results were unreliable because of the
claimant’s level of effort” and that the claimant had shown he “was able to frequently lift
20 pounds from floor to waist level and to occasionally lift 40 pounds” (Tr. 22). But the
ALJ’s characterization of Dr. Odor’s findings is not entirely supported by the record. Dr.
Odor did state that the claimant’s test results were unreliable, but not because of the
claimant’s level of effort, which Dr. Odor indicated was “consistent.” In fact, Dr. Odor
wrote that the test results were categorized as unreliable because three out of five of the
findings were unexpected (Tr. 440). Further, Dr. Odor accounted for that unreliability in
offering his opinion of claimant’s permanent restrictions which were that claimant could
not engage in repetitive bending, twisting, or lifting greater than ten pounds and must
have the ability to alternate sitting and standing at his discretion (Tr. 440).
Moreover, the ALJ wholly failed to apply any of the factors set forth in 20 C.F.R.
§ 404.1527 in her analysis of Dr. Odor’s opinion regarding the claimant’s restrictions.
Langley, 373 F.3d at 1119 (“Even if a treating physician’s opinion is not entitled to
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controlling weight, ‘[t]reating source medical opinions are still entitled to deference and
must be weighed using all of the factors provided in [§] 404.1527.’”), quoting Watkins,
350 F.3d at 1300, quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5. The ALJ also
failed to adequately explain why the opinion of state reviewing physician Dr. Janet D.
Rodgers deserved greater weight than the opinion of treating physician Dr. Odor. A
“treating physician’s report should be favored over that of consulting physician who
merely reviews the records.” Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir. 1987),
citing Whitney v. Schweiker, 695 F.2d 784, 769 (7th Cir. 1982).
Because the ALJ failed to properly analyze Dr. Odor’s opinion, the decision of the
Commissioner must be reversed and the case remanded for proper analysis by the ALJ.
If this results in any changes to the claimant’s RFC, the ALJ should re-determine what
work the claimant can perform, if any, and ultimately whether he is disabled.
Conclusion
The Court finds that incorrect legal standards were applied by the ALJ, and the
decision of the Commissioner is thus not supported by substantial evidence. The decision
of the Commissioner is accordingly hereby REVERSED and the case REMANDED for
further proceedings consistent herewith.
DATED this 26th day of September, 2012.
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