Fulton 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
LINDA C. FULTON,

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

Case No. CIV-16-300-SPS

OPINION AND ORDER
The claimant Linda C. Fulton requests judicial review of a denial of benefits by
the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g).
She appeals the Commissioner’s decision and asserts that the Administrative Law Judge
(“ALJ”) erred in determining she was not disabled. For the reasons discussed below, the
Commissioner’s decision is hereby REVERSED and the case is 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
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.

Security Act “only if h[er] physical or mental impairment or impairments are of such
severity that [s]he is not only unable to do h[er] previous work but cannot, considering
h[er] 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

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Step one requires the claimant to establish that she 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 she has a medically severe impairment (or combination of impairments) that
significantly limits her ability to do basic work activities. Id. §§ 404.1521, 416.921. If the
claimant is engaged in substantial gainful activity, or if her 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), she is determined to be disabled
without further inquiry. Otherwise, the evaluation proceeds to step four, where the claimant must
establish that she 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
her 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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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
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 August 20, 1955, and was fifty-nine years old at the
time of the administrative hearing (Tr. 42). She has a high school equivalent education,
and has worked as a security guard (Tr. 43, 53). The claimant alleges that she has been
unable to work since February 26, 2012, due to depression, H. pylori, ulcers, leg cramps,
and pain in her hips, back, neck, legs and arms (Tr. 47, 217).
Procedural History
On August 2, 2012, the claimant applied for disability insurance benefits and
disabled widow’s benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434
(Tr. 185-92).

Her applications were denied.

ALJ Doug Gabbard, II conducted an

administrative hearing and found that the claimant was not disabled in a written opinion
dated January 30, 2015 (Tr. 16-30). 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.
Decision of the Administrative Law Judge
The ALJ made his decision at step four of the sequential evaluation. He found that
the claimant had the residual functional capacity (“RFC”) to perform the full range of
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light work as defined in 20 C.F.R. § 404.1567(b) (Tr. 24). The ALJ then concluded that
the claimant was not disabled because she could return to her past relevant work as a
security guard (Tr. 30).
Review
The claimant contends that the ALJ erred by failing to properly: (i) consider her
non-severe affective disorder, and (ii) analyze the opinions of treating physician Dr. Rick
Robbins. The Court agrees with the claimant’s second contention, 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 degenerative disc disease of the back and
osteoarthritis were severe impairments, but that her weight loss, hypertension, H. pylori,
bilateral carpal tunnel release, cervical fusion surgeries, headaches, leg cramps, and
affective disorder were non-severe (Tr. 20-22). The medical evidence relevant to this
appeal reveals that Dr. Robbins regularly treated the claimant between February 2013 and
August 2014 (Tr. 479-515). Physical, neurological, and neuropsychiatric examinations at
these appointments were consistently normal, and the claimant’s diagnoses included,
inter alia, back pain, hip pain, arthralgia, hypertension, cephalgia, degenerative joint
disease, dizziness, tension headache, leg cramps, gastroesophageal reflux disease, and
depression (Tr. 479-515). February 2013 x-rays of the claimant’s lumbar spine revealed
mild degenerative disc disease at T12 through L2, and retrolisthesis of L1 on L2, L2 on
L3, and L3 on L4 (Tr. 482).

X-rays of the claimant’s cervical spine revealed

degenerative disc space narrowing at C4-5 and C5-6, anterior and posterior osteophytosis
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at C5-6, fusion of the C6-7 vertebral body, and unremarkable prevertebral soft tissues
(Tr. 484). The claimant’s hip x-rays were normal (Tr. 483, 485).
On June 24, 2013, Dr. Robbins completed a Medical Source Statement-Physical
(“MSSP”) wherein he opined that the claimant could occasionally lift/carry less than ten
pounds; stand/walk less than two hours out of an eight-hour workday for fifteen to thirty
minutes continuously; sit less than two hours out of an eight-hour workday for thirty
minutes continuously; needed to lie down during the normal workday to manage pain and
other symptoms; and could never climb, balance, stoop, kneel, crouch, crawl, reach,
handle, finger, or feel (Tr. 498-99). Dr. Robbins also indicated the claimant was limited
in her ability to push/pull, and had environmental restrictions, but these descriptions are
illegible (Tr. 499). As support for his opinion, Dr. Robbins referenced the claimant’s
headaches, degenerative disc disease, and shoulder, back, and hip pain (Tr. 499). Dr.
Robbins indicated his descriptions of the claimant’s limitations were applicable from
February 7, 2013, through June 24, 2013 (Tr. 499). Additionally, the record contains an
undated MSSP from Dr. Robbins which is similar to his June 2013 MSSP and applicable
from “2013 to present.” (Tr. 506).
Dr. Robbins also completed a Mental Functional Assessment Questionnaire on
June 24, 2013, wherein he indicated the claimant’s inability to be around children and fall
asleep, as well as the fact that she “wakes up a lot in the night,” led to her diagnosis of
depression with tension headache (Tr. 492).

Dr. Robbins described the claimant’s

functional limitations related to her mental impairments as “can’t follow instructions,
forgets easily, can’t finish tasks.” (Tr. 492).
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Medical opinions of a treating physician such as Dr. Robbins 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). Even if a treating physician’s opinions
are not entitled to controlling weight, the ALJ must nevertheless determine the proper
weight to give them by analyzing the factors set forth in 20 C.F.R. § 404.1527. 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 § 404.1527.’”), quoting Watkins, 350 F.3d at 1300.
The 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). Finally, if
the ALJ decides to reject a treating physician’s opinion entirely, “he must . . . give
specific, legitimate reasons for doing so[,]” id. at 1301, so it is “clear to any subsequent
reviewers the weight [he] gave to the treating source’s medical opinion and the reasons
for that weight,” id. at 1300.
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The ALJ gave little weight to Dr. Robbins’ opinions concerning the claimant’s
work-related limitations for the following reasons: (i) his treatment notes did not reflect
treatment for the claimant’s for mental impairments; (ii) his opinions were inconsistent
with his own treatment notes, other treating physicians’ reports, the medically acceptable
clinical and laboratory diagnostic techniques and tests, other substantial evidence, the
claimant’s admissions and testimony, and the record as a whole; (iii) he treated the
claimant for little more than a year; (iv) he is not a mental health specialist, neurologist,
or orthopedist; (v) his conservative treatment was inconsistent with what would be
expected if the claimant were truly disabled; and (vi) it was probable that Dr. Robbins’
opinions were based on sympathy or made in an effort to satisfy the claimant’s demands
and avoid doctor/patient tension (Tr. 26-28). The ALJ’s analysis is legally deficient for
several reasons.
First, although the ALJ referred to specific evidence when discussing the
inconsistencies between Dr. Robbins’ opinion and the evidence of record, he minimized
or mischaracterized much of it. For example, the ALJ stated that Dr. Robbins’ treatment
notes did not reflect treatment for the claimant’s mental impairments, but several notes do
show an active prescription for anti-depressant medication, and one note specifically
includes a diagnosis of depression (Tr. 501, 507, 509, 511-12). Similarly, the ALJ stated
that the claimant’s February 2013 lumbar x-ray showed only mild degenerative disease,
when it also showed retrolisthesis at several levels, and he stated that her cervical x-ray
showed degenerative discs and fusion, when it also showed anterior and posterior
osteophytosis at C5-6 (Tr. 27, 482, 484). Lastly, in discussing Dr. Robbins’ course of
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treatment, the ALJ stated Dr. Robbins never recommended injections, but treatment notes
dated March 2014 and June 2014 reflect that steroid injections were in fact administered
(Tr. 510, 515). This is improper picking and choosing. See, e. g., 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). See also Briggs ex rel.
Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001) (“Although the ALJ need not
discuss all of the evidence in the record, he may not ignore evidence that does not support
his decision, especially when that evidence is ‘significantly probative.’”).
Next, the ALJ substituted his own medical opinion for that of Dr. Robbins when
he stated that Dr. Robbins did not recommend the types of medical treatments one would
expect if the claimant were truly disabled (Tr. 27). See Miller v. Chater, 99 F.3d 972,
977 (10th Cir. 1996) (“The ALJ may not substitute his own opinion for that of claimant's
doctor.”), citing Sisco v. United States Department of Health & Human Services, 10 F.3d
739, 743 (10th Cir. 1993) and Kemp v. Bowen, 816 F.2d 1469, 1475 (10th Cir. 1987).
Finally, it was clearly improper for the ALJ to reject Dr. Robbins’ opinions upon
speculation that he sympathized with the claimant “for one reason or another,” or
provided his opinion to satisfy the claimant’s requests and avoid doctor/patient tension
(Tr. 28). 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
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. . . these findings. Nothing in [the treating physician's] reports 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 the claimant’s treating
physician, the decision of the Commissioner must be reversed and the case remanded to
the ALJ for a proper analysis. On remand, the ALJ should evaluate Dr. Robbins’ opinion
in accordance with the appropriate standards and determine what impact such evaluation
has on the claimant’s RFC and ultimately whether she 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.
Accordingly, the decision of the Commissioner is hereby REVERSED, and the case is
REMANDED for further proceedings consistent herewith.
DATED this 25th day of September, 2017.

_________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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