Quinton v. Social Security Administration

Filing 23

OPINION AND ORDER by Magistrate Judge Steven P. Shreder REVERSING and REMANDING the decision of the ALJ. (tmb, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
SEQUOYAH D. QUINTON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration, 1
Defendant.

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Case No. CIV-15-466-SPS

OPINION AND ORDER
The claimant Sequoyah D. Quinton 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 hereby REVERSED and the case 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
1

On January 20, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security. In
accordance with Fed. R. Civ. P. 25(d), Ms. Berryhill is substituted for Carolyn W. Colvin 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
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,
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).

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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
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 November 7, 1969, and was forty-four years old at the
time of the administrative hearing (Tr. 41). He has a high school education, some
college, and has worked as a private investigator, police officer, dispatcher, and internal
security manager (Tr. 42, 55). The claimant alleges that he has been unable to work since
October 29, 2007, due to high blood pressure, depression, anxiety, Fuch’s dystrophy, and
problems with his back, shoulder, neck, and knee (Tr. 141, 171).
Procedural History
On October 13, 2011, 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
insurance payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381
(Tr. 136-48).

The claimant’s applications were denied.

ALJ Doug Gabbard, II

conducted an administrative hearing, and in a decision dated January 24, 2014, found that
the claimant was not disabled prior to December 27, 2012, but became disabled on that
date, and continued to be disabled through the date of his decision (Tr. 17-29). 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 steps four five of the sequential evaluation. For the
period prior to December 27, 2012, the ALJ found that the claimant had the residual
functional capacity (“RFC”) to perform light work as defined in 20 C.F.R.
§§ 404.1567(b), 416.967(b) (Tr. 22-26). Beginning December 27, 2012, the ALJ found
that the claimant had the RFC to perform light work with the following limitations:
(i) occasional contact with the pubic and understanding, remembering, and completing
detailed tasks; (ii) semi-skilled work defined as, work which requires some detail skills,
but does not require doing more complex work duties; (iii) interpersonal contact with
coworkers and supervisors on a superficial work basis; (iv) ability to alternately sit and
stand every fifteen minutes throughout the workday without leaving the workstation;
(v) sitting and/or standing no more than four hours total per day, with the ability to lie
down the other four hours; and (vi) frequent unscheduled work breaks and work absences
(Tr. 26). The ALJ concluded that the claimant was not disabled before December 27,
2012, because he could return to his past relevant work as a security supervisor (Tr. 27).
The ALJ then found the claimant disabled as of December 27, 2012, because there were
no jobs in the national economy that he could perform (Tr. 28-29).
Review
The claimant appeals the ALJ’s decision as it relates to his impairments and
resulting limitations prior to December 27, 2012. The claimant contends that the ALJ’s
decision for the period prior to December 27, 2012 is against the substantial weight of the
evidence, and not based on all of the medical evidence in the record. In support of his
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first contention, the claimant asserts that Dr. Schatzman’s consultative exam supports a
more limited RFC for the period prior to December 27, 2012. The Court finds the ALJ
did err in his analysis of Dr. Schatzman’s opinion, and the decision of the Commissioner
must therefore be reversed and the case remanded to the ALJ for further proceedings.
The ALJ found that the claimant’s failed back syndrome, degenerative disc disease
of the lumbar spine, and hypertension were severe impairments, and that his right knee
injury, Fuch’s dystrophy, right shoulder injury, and depression were non-severe (Tr. 2021). The relevant medical record reveals that on October 29, 2007, the claimant was
struck by a vehicle as it was backing up, and thereafter underwent three back surgeries
(Tr. 284-304). On March 31, 2008, Dr. Donnie Hawkins removed hardware at L5 and S1
which were placed during a previous back surgery in 2002, performed decompressive
laminectomies at L4-5 and L5-S1 due to spinal stenosis, performed a discectomy at L4-5
due to a herniated disc, and performed a fusion with instrumentation at L4-5 due to
instability (Tr. 464-85). On January 26, 2009, Dr. Hawkins removed the hardware placed
in March 2008, performed decompressive laminectomies with foraminotomies at L4-5
and L5-S1 due to recurrent stenosis, excised pseudoarthritis at L4-5, and re-fused L4-5
due to non-union (Tr. 408-25). On March 24, 2010, Dr. Hawkins removed the hardware
placed in January 2009 because the claimant remained symptomatic (primarily over the
implants) despite a solid fusion above L4-5 and L5-S1, intact hardware at L4-5, full
decompression at L4-5 and L5-S1, and no evidence of psuedoarthritis, herniation, or
stenosis (Tr. 358-72).

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Dr. Ronald Schatzman performed a physical consultative examination on January
17, 2011 (Tr. 348-54). Dr. Schatzman found, inter alia, that the claimant had reduced
range of motion in his lumbosacral spine with pain and muscle spasm, but that his
cervical spine and thoracic spine were non-tender with full range of motion (Tr. 350).
Dr. Schatzman also noted the claimant’s heel and toe walking were weak, and that his
balance appeared decreased (Tr. 350). As to the claimant’s gait, Dr. Schatzman observed
the claimant was moderately unsteady, careful, and had an antalgic limp on his right leg
(Tr. 350). He observed the claimant had difficulty getting up and down from a chair, and
had pain when getting up on the exam table and bending down to put his shoes on
(Tr. 350). Dr. Schatzman opined that the claimant would be safer using a cane, and that
he was severely impaired from activities of daily living (Tr. 350).
On May 20, 2011, the claimant presented to Dr. David Nonweiler for right
shoulder pain (Tr. 539-42). On physical exam, Dr. Nonweiler found that the claimant
had reduced range of motion in his shoulder, and moderate pain and tenderness with
testing (Tr. 540-41). Dr. Nonweiler reviewed an MRI of the claimant’s right shoulder
conducted the week before, and noted it revealed acromioclavicular joint arthropathy (Tr.
541). The claimant underwent a right shoulder arthroscopy with open clavicle excision
on June 2, 2011 (Tr. 553).
The claimant presented to Dr. John Main on June 13, 2011, for an evaluation of
his back pain and right leg pain (Tr. 660-61). Dr. Main noted the claimant’s motor exam
was non-focal with no pathological reflexes or loss of sensation, and that he had good
distal pulses (Tr. 660). Dr. Main further noted the claimant had a positive straight leg
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raise on the right, but that his gait was normal (Tr. 660). He ordered a CT scan of the
claimant’s lumbar spine, the results of which revealed a stable fusion at L4-5 and L5-S1,
but severe facet degeneration at that same level (Tr. 660-61). Dr. Main recommended
facet blocks at L3-4 and right selective S1 nerve root injection, as well as continued
conservative therapy (Tr. 661).
On May 12, 2011, the claimant presented to Dr. Hugo Salguero and reported
chronic low back pain, right shoulder pain, and right knee pain (Tr. 672-74).

Dr.

Salguero noted the claimant had full strength in his lower extremities, a positive straight
leg test on the right, and muscle spasms in his lumbar spine (Tr. 673-74).

He

recommended epidural steroid injections which the claimant did undergo, and prescribed
narcotic pain medications (Tr. 666-71, 674, 742-52, 765-90).
On December 4, 2012, the claimant reported increased back pain that began the
previous month, and indicated his medications were no longer effective (Tr. 775). Dr.
Andrew Revelis ordered a lumbar spine MRI, the results of which revealed postsurgical
changes at L5 through S1 without evidence of neural compression at these levels;
moderate generalized disc bulge at L3-L4 with mild central canal and left neural
foraminal stenosis; and fatty hyperplasia at L4 through S1 (Tr. 763, 775-76). In March
2013, the claimant reported medications and steroid injections were not controlling his
pain, but in June 2013 the claimant reported the injections were once again beneficial,
although not as much as they had been previously, and he was stable on medications
(Tr. 783).

The claimant continued treating with narcotic pain medications until

September 2013, when he was admitted to Brookhaven Hospital for ten days of treatment
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for opioid dependence (Tr. 822-39). On October 3, 2013, the claimant reported his pain
had increased somewhat since stopping the pain medications, but that he wanted to
manage his pain without opiates, and wanted to continue with injection therapy due to its
significant benefit for him (Tr. 787).
At the administrative hearing, the claimant testified as to his past work history, his
impairments, and his medical treatment (Tr. 35-59). He stated his standing and walking
limitations prevented him from working (Tr. 47).

More specifically, the claimant

testified that he is unable to climb stairs; has difficulty balancing due to pain and
numbness in his leg; has not stooped, kneeled, or crawled since his accident and
subsequent surgeries; and alternates between sitting and standing throughout the day
every fifteen minutes, but usually spends fifty-five to sixty percent of his day lying down
(Tr. 47-48). As to his medications, the claimant testified that he was not taking any
prescription pain medication, but received epidural steroid injections and used over-thecounter medications (Tr. 50-51).
In his written decision, the ALJ summarized the medical evidence, including the
claimant’s hearing testimony, and a Third Party Function Report submitted by the
claimant’s father. At step two, he discussed the claimant’s impairments, explaining those
he deemed severe and those he deemed non-severe (Tr. 44).

In determining the

claimant’s right knee injury, Fuch’s dystrophy, right shoulder, and depression were nonsevere, the ALJ noted no treating, examining, or reviewing medical source indicated that
related limitations were present, and that his care had been conservative (Tr. 20). For the
period prior to December 27, 2012, the ALJ gave great weight to the state agency
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reviewing physicians’ opinions that the claimant could perform the full range of light
work because their opinions were consistent with unspecified evidence in the record. He
then gave limited weight to the Third Party Function Report because the claimant’s father
was not medically trained or a disinterested third party, and because his report was not
consistent with the preponderance of the opinions and observations by the medical
sources. The ALJ noted Dr. Schatzman’s examination findings, but did not provide any
analysis, including no explanation for disregarding his statements regarding the
claimant’s ability to get up and down, bend, balance, ambulate, and perform activities of
daily living, nor did he assign any weight to his assessment (Tr. 24-25). For the period
beginning December 27, 2012, the ALJ discussed the medical evidence, particularly
claimant’s December 2012 MRI, and noted that it showed “post-surgical changed at L5S1 without evidence of neural compression as these levels, moderate generalized disc
bulge at L3-L4 with central canal and left neural foraminal stenosis, and fatty hyperplasia
at L4-S1.” [emphasis in the original] (Tr. 26-27). He further noted Dr. Revelis found the
claimant was tender to palpation in the paraspinous muscles bilaterally with palpable
muscle spasms, and ambulated with a cane at his December 2012 exam (Tr. 27). He then
concluded that “new medical evidence supports finding that the claimant cannot sit or
stand more than four hours per day, has to lie down the other four hours, and will need
frequent work breaks and work absences.” (Tr. 27). Accordingly, the ALJ found the
claimant not disabled prior to December 27, 2012, but disabled thereafter based on the
evidence, particularly the December 2012 MRI (Tr. 27-29).

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“An ALJ must evaluate every medical opinion in the record, 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.” Hamlin v. Barnhart, 365 F.3d
1208, 1215 (10th Cir. 2004) [internal citation omitted], citing Goatcher v. United States
Department of Health & Human Services, 52 F.3d 288, 290 (10th Cir. 1995). The
pertinent factors are:

(i) the length of treatment relationship and frequency of

examination; (ii) 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 v. Barnhart, 350 F.3d
1297, 1300-01 (10th Cir. 2003), citing Drapeau v. Massanari, 255 F.3d 1211, 1213
(10th Cir. 2001). Here, the ALJ summarized Dr. Schatzman’s report, but provided no
analysis at all in relation to the pertinent factors. Additionally, the ALJ adopted Dr.
Schatzman’s findings regarding the claimant’s thoracic spine, cervical spine, and lower
extremities, but entirely ignored his opinions as to the claimant’s ability to get up and
down, bend, balance, ambulate, and perform activities of daily living (Tr. 24). It was
error for the ALJ to “pick and choose” in this way, i. e., to cite findings supportive of his
own determination while disregarding unsupportive findings. See, e. g., Hardman v.
Barnhart, 362 F.3d 676, 681 (10th Cir. 2004) (noting that the ALJ may not “pick and
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choose among medical reports, using portions of evidence favorable to his position while
ignoring other evidence.”), citing Switzer v. Heckler, 742 F.2d 382, 385–86 (7th Cir.
1984) (“Th[e] report is uncontradicted and the Secretary's attempt to use only the portions
favorable to her position, while ignoring other parts, is improper.”). In addition to
evaluating Dr. Schatzman’s findings according to the appropriate standards and
indicating what weight he was assigning to them, the ALJ should have explained why he
found certain aspects of Dr. Schatzman’s findings persuasive but not others. See Haga v.
Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (“[T]he ALJ should have explained why he
rejected four of the moderate restrictions on Dr. Rawlings' RFC assessment while
appearing to adopt the others. 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. . . . [T]he ALJ did not state that any evidence conflicted with Dr. Rawlings'
opinion or mental RFC assessment. So it is simply unexplained why the ALJ adopted
some of Dr. Rawlings' restrictions but not others.”).
Because the ALJ failed to properly evaluate Dr. Schatzman’s opinion, the decision
of the Commissioner should therefore be reversed and the case remanded to the ALJ 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 the Commissioner’s decision is therefore not supported by substantial evidence.
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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 28th day of March, 2017.

____________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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