Loberg v. Social Security Administration

Filing 22

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
KENNETH D. LOBERG,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,1
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-13-58-SPS

OPINION AND ORDER
The claimant Kenneth D. Loberg, requests judicial review of a denial of benefits
by the Commissioner of the Social Security Administration pursuant to 42 U.S.C. §
405(g). He appeals the Commissioner’s decision and asserts the Administrative Law
Judge (“ALJ”) erred in determining he was not disabled. For the reasons set forth below,
the Commissioner’s decision is REVERSED and REMANDED 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
1

On February 14, 2013, Carolyn W. 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.

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
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
2

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).

-2-

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 January 1, 1967, and was approximately forty-four years
old at the time of the administrative hearing (Tr. 24, 122). He has a high school education
and completed vocational training as a heating and air technician, and has worked as a
maintenance mechanic, heating/air technician, and mechanic/military (Tr. 17, 36-37,
144). The claimant alleges that he has been unable to work since December 15, 2009,
due to back and knee problems, ADHD, GERD, and acid reflux (Tr. 143).
Procedural History
On May 11, 2010, the claimant applied for disability insurance benefits under Title
II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security
income payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. His
applications were denied. ALJ Jeffrey Wolfe conducted an administrative hearing and
determined that the claimant was not disabled in a written opinion dated January 20, 2012
(Tr. 10-19). The Appeals Council denied review, so the ALJ’s written opinion represents
the Commissioners’ final decision for purposes of this appeal. See 20 C.F.R. §§ 404.981,
416.1481
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. He found that
the claimant retained the residual functional capacity (RFC) to perform a limited range of
light work, i.e., he could lift/carry ten pounds frequently and twenty pounds occasionally,
-3-

and sit/stand/walk six hours in an eight-hour workday, but that he also needed a sit/stand
at will option, and could only occasionally stoop, bend, kneel, crouch, and crawl (Tr. 13).
The ALJ concluded that although the claimant could not return to his past relevant work,
he was nevertheless not disabled because there was other work he could perform in the
regional and national economies, e. g., parking lot attendant, toll booth attendant, and
order clerk (Tr. 18).
Review
The claimant’s sole contention of error on appeal is that the ALJ erred by failing
to properly evaluate the opinion of his treating physician, Dr. Sammy Helm. The Court
agrees, and the decision of the Commissioner must therefore be reversed.
The ALJ found that the claimant’s degenerative disc disease of the lumbar spine
and chronic knee pain were severe impairments, but his ADHD was non-severe (Tr. 1213). The relevant medical evidence as to physical impairments reveals that the claimant
began complaining of knee pain and a low back sprain as far back as 2002. He was rated
30% disabled for his back by the Veteran’s Administration. On June 17, 2009, the
claimant was treated for chronic low back pain without radiculopathy. At the time, he
reported using a TENS unit intermittently and back exercises three times a week, but did
not find either to be helpful. In January 2010, Dr. Helm assessed the claimant with
chronic low back pain, stable, with frequent episodes of acute pain; patellofemoral pain
syndrome, left greater than right, stable; GERD; hyperlipidemia, primarily elevated LDL;
tobacco use; and possible ADHD (Tr. 220). On May 5, 2010, Dr. Helm stated that the
claimant had chronic low back pain and that he had advised the claimant to avoid lifting
-4-

over twenty pounds, in addition to avoiding prolonged sitting or standing and activities
that require frequent bending. He stated, “These restrictions would include occupation
activities.” The claimant asked if he should seek disability, and Dr. Helm advised him to
do so (Tr. 212, 218, 257). A CT scan of the claimant’s lumbosacral spine revealed
multilevel degenerative changes predominating at the L4/L5 and L5/S1, no acute fracture
or subluxation, and a continued loss of height of the T11 thoracic vertebra (Tr. 254). A
CT of the thoracic spine was grossly unchanged since 2005, with a stable minimal
anterior wedge deformity at T11 (Tr. 279). In June 2010, the claimant again complained
of chronic low back pain and left hip pain, and was referred to neurosurgery. Range of
motion testing was normal, but with pain (Tr. 244, 248-249). He was not found to be a
surgical candidate. Imaging of the hip and pelvis revealed moderate degenerative arthritic
changes in both hips which are symmetrical (Tr. 299-300). A September 8, 2010 MRI of
the lumbar spine revealed broad-based central disc protrusion at L4-5 causing mild
central canal narrowing anteriorly and approaching the descending L5 nerves without
displacement, small central disc protrusion and annular bulge at L1-2 with mild central
canal narrowing anteriorly; mild degenerative disease to a lesser degree at L3-4 and T1112, with no compression deformity or worrisome marrow replacing lesion (Tr. 297).
On December 14, 2010, Dr. Helm completed a physical medical source statement
regarding the claimant’s abilities to perform work-related activities. He indicated that he
had seen the claimant intermittently over the past five years, but had seen him six times
in 2010 for his low back pain. He stated that the claimant’s diagnosis of chronic low
back pain had a poor prognosis. Dr. Helm indicated that the claimant could sit or stand
-5-

up to thirty minutes at a time, and that he was unable to answer how much the claimant
could sit/stand/walk in an eight-hour workday but that he would need to alternate
sit/stand/walk every ten to thirty minutes (Tr. 345). As to his ability to lift/carry, Dr.
Helm indicated that the claimant could do so up to five pounds occasionally, up to twenty
pounds infrequently, and never above twenty-one pounds, and that he could only
infrequently bend, squat, crawl, climb, and reach (Tr. 346). Further, he stated that the
claimant’s impairments would produce good and bad days, and that the claimant would
likely be absent from work more than three times a month. In support, he pointed to the
MRI revealing a broad based central disc protrusion at L4-L5 . . . with mild central canal
narrowing; he noted that a neurosurgeon had evaluated the MRI and did not recommend
surgery (Tr. 347). In March 2011, Dr. Helm noted the claimant’s diagnoses as chronic
low back pain, worse; bilateral knee pain, worse; GERD; hyperlipidemia; tobacco use;
and possible ADHD although he had stopped taking his medication (Tr. 357). The
claimant went to an orthopedic consult for his knees on April 15, 2011, and was
diagnosed with chondromalacia patella, with some degenerative changes in his knees that
was slightly more advanced than for his age, but that the chondromalacia patella was
neither unusual nor curable (Tr. 354). On June 15, 2011, the claimant was diagnosed
with chronic obstructive pulmonary disease with pleural parenchymal scarring in both
apices and a parenchymal scarring in the right upper lung field and a few tiny calcified
granulomas in lungs (Tr. 412).
At the administrative hearing, the claimant testified that the VA rated his disability
at 30% in 2002 (Tr. 35). He testified that his pain was a three or four out of ten if he
-6-

relaxed, kept on track with pain medications, and did not engage in physical activity (Tr.
41-42). He stated that he could sit around twenty minutes at a time before he had to get
up and move around due to discomfort, and that standing was better than sitting (Tr. 42,
46-47).
In his written opinion, the ALJ summarized the claimant’s testimony and found he
was not credible using boilerplate language. He gave Dr. Helm’s May 2010 opinion
“some weight” because “no more than moderate objective findings support it,” but “no
weight” to the December 2010 opinion, because the limitations were “not supported by
evidence of worsening symptoms” (Tr. 16-17). The ALJ concluded that the claimant
could perform a limited range of light and sedentary work (Tr. 17).
The medical opinions of a treating physician such as Dr. Helm 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.”
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004), quoting Watkins v. Barnhart,
350 F.3d 1297, 1300 (10th Cir. 2003). When a treating physician’s opinion is not entitled
to controlling weight, the ALJ must determine the proper weight to give it by considering
the following factors: (i) the length of the treatment and frequency of examinations, (ii)
the nature and extent of the treatment relationship, (iii) the degree of relevant evidence
supporting the opinion, (iv) the consistency of the opinion with the record as a whole, (v)
whether the physician is a specialist, and (vi) other factors supporting or contradicting the
opinion. Watkins, 350 F.3d at 1300-01, citing Drapeau v. Massanari, 255 F.3d 1211,
1213 (10th Cir. 2001). If the ALJ decides to reject a treating physician’s opinion entirely,
-7-

he is required to “give specific, legitimate reasons for doing so.” Id. at 1301. In sum, it
must be “clear to any subsequent reviewers the weight the [ALJ] gave to the treating
source’s medical opinion and the reasons for that weight.” Id. at 1300, citing Soc. Sec.
Rul. 96-2p, 1996 WL 374188, at *5 (July 2, 1996).
The ALJ was not required to give controlling weight to any opinion by Dr. Helm
to the effect that the claimant was disabled or could not work, but he was required to
evaluate for controlling weight any opinion by Dr. Helm as to the claimant’s functional
limitations.

Dr. Helm found such functional limitations in the December 2010 opinion,

but the ALJ rejected it out of hand as not “supported by evidence of worsening
symptoms.” The ALJ overlooked, however, substantial evidence in this regard, e. g.,
treatment records specifically stating that the claimant’s chronic low back pain and
bilateral knee pain were worsening. Thus, the ALJ erred by failing to discuss all of the
evidence related to the claimant’s impairments and citing only evidence favorable to his
finding of nondisability. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (“An
ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking
only the parts that are favorable to a finding of nondisability.”), citing Robinson v.
Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004) and Hamlin v. Barnhart, 365 F.3d 1208,
1219 (10th Cir. 2004). And even if Dr. Helm’s opinions about the claimant’s functional
limitations were not entitled to controlling weight the ALJ was required to determine the
proper weight to give them by applying the factors in 20 C.F.R. §§ 404.1527, 416.927.
Langley, 373 F.3d 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
-8-

must be weighed using all of the factors provided in [§] 404.1527.”), quoting Watkins,
350 F.3d at 1300. The ALJ clearly failed to do this.
Furthermore, although the ALJ was also not required to give controlling weight to
the 30% disability rating by the VA, see, e. g., 20 C.F.R. § 404.1527(d)(1) (“We are
responsible for making the determination or decision about whether you meet the
statutory definition of disability . . . A statement by a medical source that you are
‘disabled’ or ‘unable to work’ does not mean that we will determine that you are
disabled.”), he nevertheless was required to determine the proper weight to give such a
finding by applying the factors in 20 C.F.R. §§ 404.1527, 416.927. Instead, the ALJ
simply recited this fact without discussion. See Miller v. Barnhart, 43 Fed. Appx. 200,
204 (10th Cir. 2002) (“The [ALJ] 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.”); Soc. Sec. Rul. 96-5p,
1996 WL 374183, at *3 (July 2, 1996) (“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.”).
Because the ALJ failed to properly analyze the opinion of Dr. Helm and the VA
disability rating, the Commissioner’s decision must be reversed and the case remanded to
the ALJ for further analysis. If such analysis results in adjustments to the claimant’s
RFC, the ALJ should re-determine what work the claimant can perform, if any, and
ultimately whether he is disabled.
-9-

Conclusion
In summary, the Court finds that correct legal standards were not applied by the
ALJ, and the Commissioner’s decision is therefore not supported by substantial evidence.
Accordingly, the decision of the Commissioner is hereby REVERSED, and the case is
REMANDED for further proceedings consistent with this Opinion and Order.
DATED this 31st day of March, 2014.

-10-