Przywara v. Social Security Administration

Filing 18

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
WILLIAM JOHN PRZYWARA,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of the Social )
Security Administration, 1
)
)
Defendant.
)

Case No. CIV-16-185-SPS

OPINION AND ORDER
The claimant William John Przywara 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 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
1

On January 23, 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,
800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he
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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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 October 3, 1959, and was fifty-four years old at the time of
the administrative hearing (Tr. 63, 156). He completed two years of college, and has
worked as a landscaper (Tr. 64-65, 179). The claimant alleges he has been unable to
work since November 1, 2012, due to a left foot injury, nerve damage, left toe edema, left
foot stress fracture, and problems with his left ankle (Tr. 178).
Procedural History
On November 30, 2012, the claimant applied for disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401-434 (Tr. 156-59). His
application was denied. ALJ Bernard Porter conducted an administrative hearing and
determined that the claimant was not disabled in a written opinion dated September 22,
2014 (Tr. 44-54). 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.
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 light work as
defined in 20 C.F.R. §§ 404.1567(b), except he could occasionally climb ramps and
stairs, kneel, and use foot controls with his left foot; frequently balance, stoop, crouch,
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and handle, finger, and feel with his right dominant arm; never crawl or climb ladders,
ropes and scaffolds; should avoid exposure to hazards such as dangerous machinery and
unprotected heights; must avoid exposure to temperature extremes; and must be allowed
to alternate sitting and standing approximately every thirty minutes for a brief postural
change lasting no longer than three or four minutes at a time (Tr. 47).

The ALJ

concluded that although the claimant could not return to his past relevant work, he was
nevertheless not disabled because there was work he could perform in the regional and
national economies, e. g., mail clerk, routing clerk, and collator operator (Tr. 52-53).
Review
The claimant contends that the ALJ erred by failing to properly evaluate the
opinions of treating physicians Dr. Lisa Mogelnicki and Dr. Larry Lewis. The Court
agrees and the decision of the Commissioner must therefore be reversed and the case
remanded to the ALJ for further proceedings.
The ALJ found the claimant’s hypertension, neuropathy of the left foot, history of
tenosynovitis of the left foot, mild degenerative joint disease of the knees, and mild
peripheral artery disease of the lower extremities were severe impairments (Tr. 46). The
relevant medical evidence reveals that the claimant was diagnosed with a left foot
contusion and stress fracture of the proximal phalangeal base in his second toe in
December 2011 (Tr. 270, 352). The claimant established care with Dr. Emory Hilton, a
podiatrist, on January 11, 2012 (Tr. 270-71). At this initial appointment, Dr. Hilton noted
trace swelling and discoloration over the claimant’s second metatarsal phalangeal joint,
guarded digital range of motion, and mild hammering of the lesser digits (Tr. 270). She
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subsequently treated the claimant with pain medication, a bone stimulator, a walking
boot, crutches, and a below-knee cast, none of which were effective (Tr. 255-78). On
February 10, 2012, the claimant presented to Dr. Patrick Gannon, an orthopedist, who
noted mild swelling in his forefoot and dysesthesias with light touch, but did not see any
surgical pathology (Tr. 341).
The claimant established care with Dr. Lisa Mogelnicki, a podiatrist, on February
22, 2012 (Tr. 337-38). Between February 2012 and November 2012, Dr. Mogelnicki
treated the claimant with medications, a surgical shoe and toe splint, a walking boot, and
several injections (Tr. 293-338). The claimant sporadically reported improvement in his
pain, but his overall improvement was minimal (Tr. 293-338). On July 17, 2013, Dr.
Mogelnicki completed a Medical Source Statement (“MSS”) wherein she opined that the
claimant could not continuously stand for at least six to eight hours due to pain, but could
sit upright for at least six to eight hours, could walk four city blocks without stopping,
and did not need to lie down during the day (Tr. 461). Additionally, Dr. Mogelnicki
found the claimant could constantly reach above shoulder level, at waist level, and below
waist level; could constantly handle, finger, and feel; but she was unsure about the
claimant’s ability to lift, carry, grasp, pull, push, or do fine manipulations with his hands
(Tr. 461-62). Dr. Mogelnicki further indicated that the claimant had difficulty squatting
due to a neuroma on his foot, and was “limited in weight bearing.” (Tr. 462). She stated
that the claimant’s pain was a nerve-related issue, and that the treatments she
recommended either did not work, or were refused by the claimant (Tr. 460).

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The claimant sought treatment for foot pain from his primary care provider, Dr.
Larry Lewis, on two occasions (Tr. 330-31, 335-36). On March 6, 2012, Dr. Lewis noted
the claimant’s left foot was tender to palpation and discolored (Tr. 335). On July 26,
2013, and January 1, 2014, Dr. Lewis completed an MSS wherein he opined that the
claimant could not return to his past work because he was “not able to lift significant
weight,” and that it was “difficult” for the claimant to work due to persistent pain
(Tr. 468, 471). Specifically, Dr. Lewis found that the claimant could stand for twenty-tothirty minutes at a time on his left leg due to foot pain, could sit upright for at least six to
eight hours, could walk one city block without stopping, could frequently lift/carry less
than five pounds, and needed to lie down during the day “at times [sic] forty minute
weight bear.” (Tr. 466-67, 471).

Additionally, he found that the claimant had no

limitation in his ability to reach, handle, finger, and feel, but did have problems grasping,
pulling, pushing, or doing fine manipulations with his hands because he “may have
tremors of [sic] hands.” (Tr. 467, 471). Dr. Lewis also noted that it was painful for the
claimant to kneel and squat, and was “limited weight bearing.” (Tr. 467). Dr. Lewis did
not elaborate on the claimant’s weight bearing limitations in his July 2013 MSS, but
specified that he was “limited weight bearing – 10 minutes” in his January 2014 MSS
(Tr. 467, 471).
Dr. William Grubb performed a consultative examination of the claimant on
February 18, 2013 (Tr. 365-72). Dr. Grubb found that the claimant had minimal ability
to dorsiflex his left second toe, reduced strength in his left second toe with dorsiflexion,
and full range of motion in his ankles (Tr. 367-68). He observed “wasting of soft tissue”
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on the claimant’s left first toe, but no other evidence of trauma, wasting, or tenderness in
the claimant’s left foot (Tr. 367). Dr. Grubb diagnosed the claimant with left foot
neuropathy with pain and weakness with dorsiflexion, hypertension, prior diagnosis of
possible left foot tenosynovitis and possible stress fracture, and history of recurrent nerve
block injections for left foot discomfort (Tr. 367).
The claimant presented to Dr. Stacy Brown for an orthopedic surgery consultation
on April 2, 2013 (Tr. 376-78). Dr. Brown noted reduced motor function in the claimant’s
second and third toes, but full range of motion in his toes and ankles (Tr. 378). An x-ray
of the claimant’s left foot taken the same day revealed minimal degenerative changes,
and an x-ray of the claimant’s left ankle was unremarkable (Tr. 393-94). Dr. Brown
diagnosed the claimant with neuropathy and neuralgia to the left foot, and referred him
for an electromyography, the results of which were normal (Tr. 378, 440).
On May 29, 2013, and August 5, 2013, state reviewing physicians determined that
the claimant’s impairments were non-severe (Tr. 89-107).
At the administrative hearing, the claimant testified that he first injured his foot at
boot camp in 1978, and then reinjured it in October 2011 by tripping over a log (Tr. 6768). He further testified that the most significant limitations which prevent him from
working were chronic pain and difficulty walking, standing, and sitting (Tr. 67). He
described his pain as feeling “like a pitchfork sticking up in the bottom of my foot” and
“like it’s in a bear trap.” (Tr. 71). The claimant further stated that he experienced pain
constantly, and rated his pain (with medication) at eight on a ten-point scale (Tr. 72).
The claimant testified that his current treatment of pain management was helpful (Tr. 72).
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As to specific limitations, the claimant stated he could walk one hundred feet, stand for
fifteen minutes, sit for twenty minutes, and lift/carry no more than five pounds (Tr. 73).
In his written opinion, the ALJ summarized the claimant’s testimony and the
medical evidence. The ALJ assigned very little weight to the opinions of Dr. Mogelnicki
and Dr. Lewis, and rejected the State Agency physicians’ opinion that the claimant had
no severe impairments (Tr. 51-52). He summarized Dr. Grubb’s consultative exam
findings, but did not assign them any specific weight (Tr. 49).

In support of his

conclusions regarding Dr. Mogelnicki and Dr. Lewis, the ALJ stated that their opinions
were “not supported by the evidence of record.” (Tr. 51). The ALJ also suggested that
Dr. Mogelnicki and Dr. Lewis may have been sympathetic towards the claimant, and that
they may have prepared their opinions in order to avoid tension with him (Tr. 51).
The medical opinions of treating physicians such as Dr. Mogelnicki and Dr. Lewis
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.
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Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001). If the ALJ decides to reject a treating
physician’s opinion entirely, 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). Here, the
ALJ summarized the opinions of Dr. Mogelnicki and Dr. Lewis, but provided no analysis
at all in relation to the pertinent factors. Additionally, the ALJ rejected both opinions
partly because they were inconsistent with the medical record as a whole. This would
have been a legitimate reason for rejecting their opinions if the ALJ had specified the
inconsistencies to which he was referring. See, e.g., Langley, 373 F.3d at 1123 (“Because
the ALJ failed to explain or identify what the claimed inconsistencies were between Dr.
Williams's opinion and the other substantial evidence in the record, his reasons for
rejecting that opinion are not ‘sufficiently specific’ to enable this court to meaningfully
review his findings.”), quoting Watkins, 350 F.3d at 1300. See also Wise v. Barnhart,
129 Fed. Appx. 443, 447 (10th Cir. 2005) (“The ALJ also concluded that Dr. Houston's
opinion was ‘inconsistent with the credible evidence of record,’ but he fails to explain
what those inconsistencies are.”) [citation omitted]. Lastly, it was error for the ALJ to
reject their opinions upon speculation that they sympathized with the claimant “for one
reason or another.” (Tr. 51). See, e. g., Langley, 373 F.3d at 1121 (“The ALJ also
improperly rejected [the treating physician’s] opinion based upon his own speculative
conclusion that the report . . . was ‘an act of courtesy to a patient.’ The ALJ had no legal
nor evidentiary basis for . . . these findings. Nothing in [the treating physician’s] reports
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indicates . . . that his report was merely an act of courtesy. ‘In choosing to reject the
treating physician’s assessment, an ALJ may not make speculative inferences from
medical reports and may reject a treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own credibility judgments,
speculation or lay opinion.’”), quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th
Cir. 2002) [emphasis in original].
Because the ALJ failed to properly evaluate the opinions of treating physicians
Dr. Mogelnicki and Dr. Lewis, the decision of the Commissioner must 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.
The decision of the Commissioner decision is accordingly hereby REVERSED and the
case REMANDED for further proceedings consistent herewith.
DATED this 15th day of September, 2017.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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