Inzunza v. Social Security Administration

Filing 19

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
JAVIER A. ROJO INZUNZA,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,1
Defendant.

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Case No. CIV-12-197-SPS

OPINION AND ORDER
The claimant Javier A. Rojo Inzunza requests judicial review pursuant to 42
U.S.C. § 405(g) of the decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying his applications for benefits under the Social
Security Act. The claimant appeals the decision of the Commissioner and asserts that the
Administrative Law Judge (“ALJ”) erred in determining that he was not disabled. For
the reasons discussed below, the Commissioner’s decision is REVERSED and the case
REMANDED to 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
1

On February 14, 2013, Carolyn Colvin became the Acting Commissioner of Social Security. In
accordance with Fed. R. Civ. P. 25(d), Ms. Colvin is substituted for Michael J. Astrue as the
Defendant in this action.

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, 416.920.2
Judicial review of the Commissioner’s determination is limited in scope by 42
U.S.C. § 405(g). This Court’s review is limited to two inquiries: first, whether the
decision was supported by substantial evidence; and, second, whether the correct legal
standards were applied. Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997)
[citation omitted]. The term substantial evidence has been interpreted by the United
States Supreme Court to require “‘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.

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Step one requires the claimant to establish that he is not engaged in substantial gainful activity,
as defined by 20 C.F.R. §§ 404.1510, 416.910. 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. Id. §§ 404.1521, 416.921. If the claimant is engaged in
substantial gainful activity, or if his impairment is not medically severe, disability benefits are
denied. At step three, the claimant’s impairment is compared with certain impairments listed in
20 C.F.R. pt. 404, subpt. P, app. 1. If the claimant suffers from a listed impairment (or
impairments “medically equivalent” to one), he is deemed to be disabled without further inquiry.
Otherwise, the evaluation proceeds to step four, where the claimant must establish that he lacks
the residual functional capacity (RFC) to return to his past relevant work. The burden then shifts
to the Commissioner to establish at step five that there is work existing in significant numbers in
the national economy that the claimant can perform, taking into account his age, education, work
experience and RFC. Disability benefits are denied if the Commissioner shows that the
claimant’s impairment does not preclude alternative work. See generally Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).

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NLRB, 305 U.S. 197, 229 (1938). The Court may not reweigh the evidence nor substitute
its discretion for that of the agency. Casias v. Secretary of Health & Human Services, 933
F.2d 799, 800 (10th Cir. 1991). Nevertheless, 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 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 May 7, 1967, and was forty-three years old at the time
of the administrative hearing (Tr. 28). He has a sixth grade education and past relevant
work as a production helper, welder, rotor driller helper, sanitation truck driver, and
sanitation collector (Tr. 32, 36-37). The claimant alleges that he has been unable to work
since December 25, 2007 because of a broken ankle (Tr. 166).
Procedural History
The claimant applied for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 481-85, and for supplemental security income payments under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85, on June 26, 2009. His
applications were denied. ALJ Trace Baldwin conducted an administrative hearing and
found that the claimant was not disabled in a written opinion dated September 20, 2010.
The Appeals Council denied review, so the ALJ’s written opinion is the Commissioner’s
final decision for purposes of this appeal. See 20 C.F.R. §§ 404.981; 416.1481.

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Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant had the residual functional capacity (“RFC”) to perform sedentary work, 20
C.F.R. §§ 404.1567(a); 416.967(a), but could only occasionally climb ramps, stairs,
ladders, ropes and scaffolds, balance, stoop, kneel, crouch and crawl and never operate
foot controls (Tr. 15). The ALJ concluded that although the claimant could not return to
any of his past relevant work, he was nevertheless not disabled because there was other
work he could perform, i. e., final assembler (Tr. 19).
Review
The claimant’s sole contention of error is that the ALJ failed to properly analyze
opinion of his treating physician, Dr. Ricardo Valbuena, M.D. The Court finds that the
ALJ did err analyzing Dr. Valbuena’s opinion, and that the decision of the Commissioner
should therefore be reversed.
On December 25, 2007, the claimant was injured at work when casing pipes fell
on his leg (Tr. 297). On January 8, 2008, he underwent a revision of open reduction and
internal fixation of the left medial malleolus fracture (Tr. 308). The claimant presented to
Dr. Michael Kiehn in June 2008 for a worker’s compensation evaluation on his left knee
(Tr. 253). Dr. Kiehn noted that the claimant had tenderness to palpation in the front
medial and lateral aspects of the knee and increased quadriceps girth grossly when
comparing the left to the right (Tr. 253). Dr. Kiehn noted that a February 2008 MRI
revealed that the claimant had a small lateral meniscal tear, some swelling in the knee, a

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possible strain of the lateral collateral ligament, and mild degenerative changes in the
lateral compartment and patellofemoral compartment (Tr. 252). Dr. Kiehn recommended
an aggressive quadriceps and hamstring strengthening program to work on weight
bearing and get him off of his crutches (Tr. 252). Dr. Kiehn wrote that the claimant could
return to work with restrictions including no climbing, kneeling, crawling, bending,
stooping, or squatting, and that the claimant would have to be able to change positions as
needed and ice and elevate his knee every two hours (Tr. 252). By July 22, 2008, Dr.
Kiehn thought that the claimant could return to work activities as tolerated (Tr. 255).
On March 31, 2009, the claimant’s physical therapist David Ball completed a
Functional Capacity Evaluation in which he determined that the claimant could perform
sedentary work (per the United States Department of Labor Work Classification Levels)
because he could only occasionally tolerate standing and walking (Tr. 268). Mr. Ball
found that the claimant could occasionally, stand, walk, climb stairs, climb ladders,
balance, and kneel (Tr. 269). Upon examination, Mr. Ball found that the claimant had a
marked left lower extremity antalgia and biased his weight bearing to the right leg (Tr.
271). The claimant exhibited marked tenderness of the medial aspect of his left ankle,
moderate tenderness of the lateral left ankle, and moderate tenderness of the left knee at
the medial and lateral patella and medial and lateral joint lines (Tr. 271). Finally, Mr.
Ball noted that the claimant was positive for left knee patello-femoral crepitus and
positive patella-femoral compression sign (Tr. 271).

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State agency physician Dr. Ronald Schaztman, M.D. performed a consultative
examination of the claimant. He found atrophy of the claimant’s left quadriceps and left
lower extremities (Tr. 324), and noted that the claimant’s effort was minimal due to pain
with respect to testing the range of motion in his left ankle, and that he had weak heel and
toe walking in his left leg (Tr. 324-25). Dr. Schaztman also noted that the claimant
walked with a severe limp (Tr. 325).
State agency physician Dr. Thurma Fiegel, M.D. completed a Physical Residual
Functional Capacity Assessment. She found that the claimant could lift and/or carry up
to ten pounds occasionally, and less than ten pounds frequently; and stand and/or walk at
least two hours, and sit for about six hours, in an eight-hour workday (Tr. 331). She also
found that the claimant could climb ramps, stairs, ladders, ropes, and scaffolds, balance,
stoop, kneel, crouch, and crawl only occasionally (Tr. 332).
On December 2, 2009, Dr. Valbuena submitted a letter indicating that he had been
treating the claimant since July 20, 2009 for left ankle and left knee pain (Tr. 385). He
noted that the claimant continued to have “swelling and pain relieved by prescription pain
medications” and diagnosed post-traumatic arthritis in the left ankle and a torn left lateral
meniscus (Tr. 385). Dr. Valbuena opined in the letter that the claimant was unable to
work (Tr. 385). On January 21, 2010, Dr. Valbuena completed a Physical Residual
Functional Capacity Questionnaire (Tr. 402-06), in which he noted that the claimant’s
prognosis was fair, and that his symptoms consisted of constant pain and swelling of the
left knee and ankle (Tr. 402). Dr. Valbuena cited swelling, tenderness and the fact that

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the claimant walked with a limp on his left leg as the bases for his opinion (Tr. 402). He
opined that pain and discomfort would constantly interfere with the claimant’s attention
and concentration, and that the claimant could sit or stand for only fifteen minutes at a
time, and sit or stand for less than two hours in an eight hour workday (Tr. 404). Dr.
Valbuena also felt the claimant would need a job that would allow him to shift positions
at will from sitting, standing, and walking, and he would need to take unscheduled
fifteen-minute breaks every thirty minutes (Tr. 404).

Dr. Valbuena found that the

claimant could occasionally lift and carry less than ten pounds, twist and stoop, rarely
climb stairs, and never crouch, squat, or climb ladders (Tr. 405). Dr. Valbuena also noted
that the claimant would likely be absent from work more than four days per month (Tr.
405).
The claimant presented to Dr. A. J. Bisson, M.D. for a worker’s comp evaluation
on July 7, 2010. Dr. Bisson reviewed the claimant’s medical evidence and performed his
own examination of claimant (Tr. 431). The claimant had complaints of increased pain in
his left lower extremity with weight bearing activities, and the claimant used a cane to
walk (Tr. 431). Dr. Bisson, too, noted that the claimant had muscle wasting in the left
quadriceps and calf (Tr. 432). With regard to work activities, Dr. Bisson thought that the
claimant was at a level of temporary total disability, and noted that the claimant was
unable to partake in work activities due to his pain symptoms (Tr. 433).
The claimant contends that the ALJ failed to properly analyze the opinion of his
treating physician Dr. Valbuena. Medical opinions from a treating physician such as Dr.

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Valbuena are entitled to controlling weight if “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). But even if such
opinions are not entitled to controlling weight, an ALJ must determine the proper weight
to give them by analyzing the factors set forth in 20 C.F.R. §§ 404.1527; 416.927. 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 § [416.927].’”), quoting Watkins, 350 F.3d at 1300.
Those 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
1300-01, citing Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) [quotation
omitted]. Finally, if the ALJ decides to reject a treating physician’s opinions 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

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to the treating source’s medical opinion and the reasons for that weight.” Id. at 1300
[quotation omitted].
The ALJ rejected Dr. Valbuena’s opinions as to the claimant’s physical limitations
in favor of other medical opinions in the record (Tr. 17), but wholly failed to analyze any
of those opinions (treating physician or otherwise) under the proper standards. See, e. g.,
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (“An ALJ must evaluate every
medical opinion in the record, see 20 C.F.R. §[§] 404.1527(d), [416.927(d)], although the
weight given each opinion will vary according to the relationship between the disability
claimant and the medical professional . . . An ALJ must also consider a series of specific
factors in determining what weight to give any medical opinion.”) [emphasis added],
citing Goatcher v. Department of Health & Human Services, 52 F.3d 288, 290 (10th Cir.
1995). Nor did the ALJ explain why he found those other medical opinions (which came
from physicians who did not treat the claimant) more persuasive. See, e. g., Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (“The opinion of an examining physician
is generally entitled to less weight than that of a treating physician, and the opinion of an
agency physician who has never seen the claimant is entitled to the least weight of all.
Thus, the ALJ erred in rejecting the treating-physician opinion of Dr. Baca in favor of the
non-examining, consulting-physician opinion of Dr. Walker absent a legally sufficient
explanation for doing so.”), citing 20 C.F.R. §§ 404.1527(d)(1) & (2); 416.927(1) & (2);
Soc. Sec. Rul. 96-6p, 1996 WL 374180, at *2. And while the ALJ did note that Dr.
Valbuena opined on an issue reserved to the Commissioner, i. e., that the claimant was

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totally disabled (Tr. 17), the ALJ was not allowed to wholly disregard even this opinion.
See Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *5 (“[O]pinions from any medical source
on issues reserved to the Commissioner must never be ignored. The 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. If the case record contains an opinion from a
medical source on an issue reserved to the Commissioner, the adjudicator must evaluate
all the evidence in the case record to determine the extent to which the opinion is
supported by the record.”) [emphasis added].
Because the ALJ failed to properly analyze the opinions of treating physician Dr.
Valbuena (or any other physician opinion), the decision of the Commissioner must be
reversed and the case remanded for further analysis. If such analysis 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
In summary, the Court finds that correct legal standards were not applied by the
ALJ, and that the decision of the Commissioner is therefore 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 30th day of September, 2013.

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