Smith v. Social Security Administration
Filing
18
OPINION AND ORDER by Magistrate Judge Kimberly E. West reversing and remanding the decision of the ALJ.(sjr, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JAMES ALLEN SMITH,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-15-047-KEW
OPINION AND ORDER
Plaintiff James Allen Smith (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.
Claimant
appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined
discussed
that
below,
Claimant
it
is
was
the
not
disabled.
finding
of
this
For
the
Court
reasons
that
the
Commissioner’s decision should be and is REVERSED and the case is
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).
Security
Act
“only
if
A claimant is disabled under the Social
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
§423(d)(2)(A).
in
the
national
economy.
.
.”
42
U.S.C.
Social Security regulations implement a five-step
sequential process to evaluate a disability claim.
See, 20 C.F.R.
§§ 404.1520, 416.920.1
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
two inquiries:
This Court’s review is limited to
first, whether the decision was supported by
1
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 that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), 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. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work.
If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).
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substantial
evidence;
and,
standards were applied.
second,
whether
the
correct
legal
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. NLRB, 305 U.S. 197, 229 (1938)).
The
court may not re-weigh the evidence nor substitute its discretion
for that of the agency.
Casias v. Secretary of Health & Human
Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the court
must review the record as a whole, and the “substantiality of the
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
Claimant was born on September 19, 1959 and was 55 years old
at the time of the ALJ’s latest decision.
high school education.
Claimant completed his
Claimant has worked in the past as a
correctional officer and hospital housekeeper. Claimant alleges an
inability to work beginning July 1, 2008 due to limitations
resulting from lower back and leg problems.
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Procedural History
On
February
26,
2010,
Claimant
protectively
filed
for
disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) of the Social Security Act.
Claimant’s application was
denied initially and upon reconsideration. On January 13, 2011, an
administrative hearing was held before ALJ Osly F. Deramus in
McAlester,
unfavorable
Oklahoma.
decision
On
on
March
18,
Claimant’s
2011,
the
ALJ
application.
issued
The
an
Appeals
Council denied review of the ALJ’s decision on May 22, 2012.
This
Court, however, reversed and remanded the decision for a reevaluation of the medical opinion evidence.
The Appeals Council
vacated the ALJ’s decision and remanded the case.
On July 22, 2014, ALJ Bernard Porter conducted a second
hearing.
On October 15, 2014, he entered an unfavorable decision.
The Appeals Council took no action to review the ALJ’s decision.
As a result, the decision of the ALJ represents the Commissioner’s
final decision for purposes of further appeal.
20 C.F.R. §§
404.984, 416.1484.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential
evaluation.
He determined that while Claimant suffered from severe
impairments, he did not meet a listing and retained the residual
4
functional capacity (“RFC”) to perform the full range of light work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
properly evaluate the opinion of Claimant’s treating physician; and
(2) failing to properly consider Claimant’s borderline age.
Treating Physician Opinion
In the latest decision, the ALJ found Claimant suffered from
the severe impairments of lumbar disc disease, residuals of a
fracture of the left lower extremity, hypertension, and obesity.
(Tr. 217).
The ALJ determined Claimant retained the RFC to perform
a full range of light work.
In so doing, the ALJ found Claimant
could lift /carry 20 pounds occasionally and ten pounds frequently;
stand/walk for six hours in an eight hour workday; sit for six hours
in an eight hour workday; and could push and pull as much as he can
lift/carry.
Claimant could occasionally use foot controls with the
left lower extremity, could occasionally climb ramps and stairs but
never climb ropes, ladders, and scaffolds or crawl.
Claimant could
frequently balance, stoop, and crouch but only occasionally kneel.
He must not work around unprotected heights, moving mechanical
pares, or temperature extremes. Time off task would be accommodated
by normal workday breaks. Claimant required a sit/stand option that
allowed for a change in position at least every 30 minutes and a
5
brief positional change for three to five minutes at a time.
221).
(Tr.
After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of cashier II,
furniture rental clerk, and arcade attendant, all of which were
found to exist in sufficient numbers in both the national and
regional economies.
(Tr. 229).
As a result, the ALJ concluded
Claimant was not disabled from July 1, 2008 through March 30, 2014,
the date last insured.
Id.
Claimant contends the ALJ erred in his evaluation of the
opinions of the treating physician, Dr. Larry Lewis.
On October
12, 2010, Dr. Lewis completed an RFC Capacity Assessment on
Claimant.
(Tr.
His primary diagnosis was low back and left leg pain.
204).
He
determined
Claimant
could
occasionally
and
frequently lift and/or carry less than 10 pounds with increased
pain and pain in the left leg, stand and/or walk for less than 2
hours
in
an
8-hour
workday,
a
requirement
that
Claimant
periodically alternate sitting and standing to relieve pain or
discomfort,
and
limited
pushing
and
pulling
in
the
lower
extremities. Dr. Lewis noted that Claimant’s pain improves for the
time when he changes position but it returns.
Claimant pain caused by movement of his feet.
He also states
(Tr. 205).
Dr. Lewis determined Claimant could never climb, balance, or
6
crouch
and
could
only
occasionally
stoop,
Claimant’s pain increased with movement.
kneel,
or
crawl.
Dr. Lewis concluded by
stating “my opinion is that [Claimant] suffers from significant
back pain & radiculopathy into [left] leg.”
(Tr. 206).
On October 2, 2013, Dr. Lewis completed a second statement.
He opined Claimant could occasionally and frequently lift/carry less
than ten pounds; stand/walk at one time less than 30 minutes and
totally less than two hours in an eight hour workday; and sit at one
time less than 30 minutes, noting he “has to get up & down
frequently” and in total less than two hours in an eight hour
workday.
(Tr. 409).
Dr. Lewis also found Claimant used a cane “most days”.
He
stated Claimant could only walk a few feet at a time without
sitting.
He set out that Claimant could not perform work on a
sustained and continuing basis because his “pain is persistent & is
unable to tolerate walking, sitting or standing for any reasonable
amount of time.” Dr. Lewis also noted that “some of the medications
cause drowsiness and difficulty concentrating.”
He estimated
Claimant would be absent from work three or more times per month due
to his conditions. The primary reason for this statement was stated
as “inability to tolerate standing, walking, or sitting for extended
times
&
medications
concentration.”
cause
drowsiness
(Tr. 410).
7
&
difficulty
[with]
The ALJ recites the appropriate legal standards for weighing
the opinions of treating physicians.
(Tr. 225).
However, he
determined that both of Dr. Lewis’ opinions were entitled to
“diminished weight.”
(Tr. 226).
The bases for rejecting providing controlling weight to the
opinions consisted of findings that (1) Claimant’s treatment visits
to Dr. Lewis were “relatively infrequent”, having visited him in
December of 2007 and October of 2010; (2) the visit in October of
2010 was to get a form filled out for disability benefits; (3) Dr.
Lewis’ treatment records indicate “off and on” back pain which was
inconsistent with his source statements; (4) Dr. Lewis’ treatment
was relatively conservative consisting of prescription medication,
instructions for back exercises, and one steroid injection; (5)
Claimant was not referred for physical therapy; (6) when Claimant
was referred to a neurologist, surgery was not discussed because
Claimant was not experiencing radiculopathy at the time. (Tr. 226).
The ALJ also rejecting affording controlling weight to the
second source statement because he found it merely “parrots back the
claimant’s subjective allegations.”
He also noted Claimant was not
seen by Dr. Lewis in 2011 and the first half of 2012. When Claimant
was seen in July of 2012, Dr. Lewis found no physical abnormalities.
The next visit in October of 2013 indicated Claimant had mild
depression with suicidal ideation but took no further action to
8
treat the condition. He also stated Claimant had very limited range
of motion in the back and legs and a “slightly” unsteady gait. (Tr.
226).
In deciding how much weight to give the opinion of a treating
physician, an ALJ must first determine whether the opinion is
entitled to “controlling weight.”
1297, 1300 (10th Cir. 2003).
Watkins v. Barnhart, 350 F.3d
An ALJ is required to give the
opinion of a treating physician controlling weight if it is both:
(1) “well-supported by medically acceptable clinical and laboratory
diagnostic techniques”; and (2) “consistent with other substantial
evidence in the record.”
Id. (quotation omitted).
“[I]f the
opinion is deficient in either of these respects, then it is not
entitled to controlling weight.”
Id.
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 20 C.F.R. § 404.1527.”
Id. (quotation omitted).
factors reference in that section are:
The
(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
9
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; and (6)
other factors brought to the ALJ's attention which tend to support
or contradict the opinion.
Id. at 1300-01 (quotation omitted).
After considering these factors, the ALJ must “give good reasons”
for the weight he ultimately assigns the opinion.
20 C.F.R. §
404.1527(d)(2); Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th
Cir.
2004)(citations
omitted).
Any
such
findings
must
be
“sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical
opinions and the reason for that weight.”
Id.
“Finally, if the
ALJ rejects the opinion completely, he must then give specific,
legitimate reasons for doing so.”
Watkins, 350 F.3d at 1301
(quotations omitted).
The
ALJ
made
considerable
improvement
analysis of Dr. Lewis’ opinions.
in
expanding
his
The treatment records of Dr.
Lewis contain limited detailed information on the check off forms
which largely comprise his records.
His records from October 2,
2013 which the ALJ read as inconsistent are, in fact, not.
While
Dr. Lewis did indicate lower back problems and that Claimant was
“very limited in back & legs”, the further finding of a slightly
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unsteady gait is not necessarily inconsistent with the finding of
limitation in range of motion.
(Tr. 413).
Further, Dr. Lewis
explained that his chronic back pain had become progressively worse
with “much difficulty walking, sitting or standing for prolonged
periods of time.”
The finding was also made that “meds provide
slight relief, but does have difficulty concentrating & sedation.”
Id.
At the very least, the ALJ should have discussed how these
conditions contained in the medical record could permit Claimant to
stand, walk, and sit for six hours in an eight hour workday as
found in the RFC.
Moreover, while the ALJ diminished the nature
of Dr. Lewis’ treatment for his pain in stating it consisted of
medication, the medication prescribed was undeniably narcotic and
not
minimal.
The
record
indicates
Claimant’s
prescriptions
included Toradol, Hydrocodone, Meloxicam, and Flexeril.
(Tr. 177,
180, 186, 412,
The ALJ also failed to acknowledge and discuss the other
evidence in the record which supported Dr. Lewis’ conclusions
contained in the two source statements which he authored.
For
instance, the MRI from November 19, 2010 indicated Claimant central
and left-sided L4-L5 disc herniation.
(Tr. 427).
While he noted
the findings by Dr. Ronald Schatzman which supported a finding of
non-disability, the ALJ failed to acknowledge the effects of Dr.
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Schatzman’s
straight
findings
leg
that
raising
Claimant
in
the
was
sitting
positive
and
in
supine
bilateral
positions,
demonstrated weak heel and toe walking, and was positive for pain
in range of motion testing.
(Tr. 190, 193).
Certainly, it is
well-recognized in this Circuit that an ALJ is not required to
discuss every piece of evidence.
1009-10 (10th Cir. 1996).
Clifton v. Chater, 79 F.3d 1007,
However, he is required to discuss
uncontroverted evidence not relied upon and significantly probative
evidence that is rejected.
Id. at 1010.
An ALJ “is not entitled
to pick and choose through an uncontradicted medical opinion,
taking
only
the
nondisability.”
2007).
parts
that
are
favorable
to
a
finding
of
Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.
The ALJ characterized Dr. Lewis’ opinions as entirely
unsupported while support was present in both Dr. Lewis’ treatment
records and Dr. Schatzman’s examination findings.
The ALJ should
explain the basis for rejecting these findings.
Finally, the ALJ rejected Dr. Lewis’ 2013 source statement,
stating
it
“parrots”
Claimant’s
subjective
statements.
The
specific limitations in the functional areas of standing, walking,
sitting,
and
lifting
appear
to
stem
from
Dr.
Lewis’
own
professional medical opinion rather than Claimant’s statements. In
short, the ALJ gave little consideration to Dr. Lewis’ opinion
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based upon a faulty or insufficiently supported premise.
On
remand, the ALJ shall consider the other evidence in the medical
record which supported or was not inconsistent with Dr. Lewis’
opinion as well as a foundation for rejecting Dr. Lewis’ opinion
supported by his treatment record.
Consideration of Borderline Age Category
Claimant contends the ALJ should have classified Claimant’s
age by evaluating the overall impact of the factors present in this
case rather than through a mechanical application of Claimant’s
chronological age. The ALJ found Claimant was “closely approaching
advanced
age”
based
upon
his
chronological
age
rather
than
“advanced age” based upon an examination of the overall impact of
all factors.
(Tr. 227-28).
55th birthday.
The
claimant’s
ALJ
age
Claimant was six months within his
(Tr. 215, 227).
is
prohibited
based
borderline situations.
from
solely
mechanically
upon
his
classifying
chronological
20 C.F.R. § 404.1563(b).
age
a
in
On remand, the
ALJ shall consider the application of the advanced age category
based upon an examination of all factors relevant to his upcoming
age rather than the age he currently attained.
Conclusion
The
decision
of
the
Commissioner
13
is
not
supported
by
substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds the ruling of the Commissioner
of Social Security Administration should be and is REVERSED and the
matter REMANDED for further proceedings consistent with this Opinion
and Order.
IT IS SO ORDERED this 8th day of September, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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