Standeford v. Social Security Administration

Filing 19

OPINION AND ORDER by Magistrate Judge Frank H McCarthy, remanding case (terminates case) (Re: 2 Social Security Complaint ) (jcm, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
JOANNA STANDEFORD,
Plaintiff,
vs.

Case No. 11-CV-769-FHM

MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
OPINION AND ORDER
Plaintiff, Joanna Standeford, seeks judicial review of a decision of the Commissioner
of the Social Security Administration denying Social Security disability benefits.1 In
accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before
a United States Magistrate Judge.
Standard of Review
The role of the court in reviewing the decision of the Commissioner under 42 U.S.C.
§ 405(g) is limited to a determination of whether the record as a whole contains substantial
evidence to support the decision and whether the correct legal standards were applied.
See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v.
Chater, 92 F.3d 1017 (10th Cir. 1996); Castellano v. Secretary of Health & Human Servs.,
26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is more than a scintilla, less
than a preponderance, and is such relevant evidence as a reasonable mind might accept

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Plaintiff's June 3, 2008, application for disability benefits was denied initially and on reconsideration.
A hearing before Adm inistrative Law Judge ("ALJ") Charles Headrick was held Novem ber 18, 2009. By
decision dated Decem ber 18, 2009, the ALJ entered the findings that are the subject of this appeal. The
Appeals Council denied Plaintiff’s request for review on October 11, 2011. The decision of the Appeals
Council represents the Com m issioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981,
416.1481.

as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427, 28 L. Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). The court may neither reweigh the evidence nor substitute its judgment
for that of the Commissioner. Casias v. Secretary of Health & Human Servs., 933 F.2d
799, 800 (10th Cir. 1991). Even if the court would have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s decision stands. Hamilton v.
Secretary of Health & Human Servs., 961 F.2d 1495 (10th Cir. 1992).
Background
Plaintiff was 35 on the date of alleged onset of disability and 38 at the time of the
ALJ’s denial decision. She has a high school education and formerly worked as fast food
worker. She claims to have been unable to work since August 2, 2007 as a result of pain
related to herniated disks in the cervical and lumbar spine.
The ALJ’s Decision
The ALJ determined that Plaintiff has the following residual functional capacity:
perform light work as defined in 20 C.F.R. § 404.1567(b) and
416.967(b) except lift more than 20 pounds occasionally and
10 pounds frequently; stand and/or walk for a total of about six
hours in an eight-hour workday; sit for a total of about six hours
in an eight-hour workday; push and/or pull unlimited other than
as shown for lift and/or carry; no balancing; and no
concentrated exposure to vibration.
[R. 21]. The ALJ found that with these limitation, Plaintiff is capable of returning to her past
relevant work as a fast food worker and waitress. In addition, based on the testimony of
a vocational expert, the ALJ determined that there are a significant number of jobs in the
national economy that Plaintiff could perform with these limitations. The case was thus

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decided at step four of the five-step evaluative sequence for determining whether a
claimant is disabled with an alternative step five finding. See Williams v. Bowen, 844 F.2d
748, 750-52 (10th Cir. 1988) (discussing five steps in detail).
Plaintiff’s Allegations
Plaintiff asserts that the ALJ failed to properly consider Dr. Lee’s opinion and failed
to properly consider her credibility.
Analysis
Plaintiff injured her back in a car accident in August 2005. She had back surgery
in 2006 and, on May 21, 2007 had another car accident after which she complained of
back pain, numbness and weakness. Plaintiff underwent physical therapy and extensive
testing following the May 2007 accident. Testing revealed no abnormalities to explain
Plaintiff’s symptoms. In December 2007 Plaintiff underwent surgery for removal of the
hardware placed in the 2006 back surgery. The record before the ALJ contained the
treatment records of Dr. Gary Lee’s treatment of Plaintiff from July 5, 2007 through
September 2009. [R. 306-318, 340-349, 355-365, 367-385]. Dr. Lee completed form
dated October 16, 2008 in which he stated that as of 9/30/07 Plaintiff could frequently lift
and carry less than ten pounds, is limited to sitting less than 2 hours in an eight hour
workday, and is limited to standing and walking less than 2 hours. [R. 320].
The ALJ gave Dr. Lee’s opinion no significant weight for the following reasons:
The medical opinions concerning the claimant’s ability to
perform work-related activities authored by Dr. Lee are given
a significantly reduced weight because there [sic] are contrary
to the objective medical evidence and the statement in Dr.
Lee’s May 6, 2009 that there was no significant lesion makes
it clear that Dr. Lee’s RFC is inconsistent with the objective
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medical evidence, including his own statements, and is not
entitled to any significant weight.
[R. 22]. The ALJ also said: “As for the opinion evidence, the September 10, 2009 RFC
completed by Dr. Lee is given minimal weight because it is inconsistent with his own
medical records and the remainder of the objective medical evidence.” [R. 23].
Plaintiff argues that Dr. Lee’s statement that there was no significant lesion is not
a legitimate reasons for rejecting Dr. Lee’s opinion. Plaintiff asserts that the ALJ erred in
requiring test results to confirm the existence of her pain.2 Plaintiff points to a letter written
by Dr. Lee which explains the reason for his opinion about Plaintiff’s limitations. According
to Dr. Lee, Plaintiff suffers from failed back syndrome where the symptom of pain does not
correlate with x-rays and MRI results. [R. 391]. Plaintiff also points to objective findings
related to pain: positive straight leg raising, tenderness, and muscle spasms.
Dr. Lee’s explanatory letter was not before the ALJ, it was submitted to the Appeals
Council as permitted by the regulations. 20 C.F.R. § 404.970(b). Although Dr. Lee’s letter
was not before the ALJ, the Tenth Circuit has ruled that "new evidence [submitted to the
Appeals Council] becomes part of the administrative record to be considered when
evaluating the Secretary's decision for substantial evidence." O'Dell v. Shalala, 44 F.3d
855, 859 (10th Cir. 1994). Accordingly, even though the Court may not reweigh the
evidence or substitute its judgment for that of the Commissioner, O’Dell requires the Court

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Plaintiff is correct that m edical test results are not necessary to confirm the existence of pain. The
Com m issioner’s regulations acknowledge that “sym ptom s som etim es suggest a greater severity of
im pairm ent than can be shown by m edical evidence alone[.]” 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
This is nothing new. It has been 25 years since the Tenth Circuit issued Luna v. Bowen, 834 F.2d 161 (10th
Cir. 1987) and since the Com m issioner issued Social Security Ruling 88-13 which reiterate that the degree
of pain experienced m ay exceed what m edial testing shows and address the analysis to be undertaken in
such cases.

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to review the new evidence to determine whether, even considering this new evidence, the
ALJ’s decision is supported by substantial evidence.
The court finds that consideration of Dr. Lee’s explanation may have changed the
ALJ’s decision concerning the weight to give Dr. Lee’s opinion. As a result, the case must
be remanded for the ALJ to consider that additional evidence.
Credibility Analysis
The court agrees with Plaintiff that the ALJ failed to properly consider her credibility.
The ALJ listed the factors which bear on the credibility determination as outlined in Social
Security Ruling (SSR) 96-7p, 1996 WL 374186. The ALJ also identified information in the
record that relates to those factors. The ALJ did not, however, state how the information
impacted Plaintiff’s credibility. Several factors listed appear to support credibility, for
instance, the factor “the individual’s daily activities” has this information: “[t]he claimant
limits her daily activities very significantly and she can perform some of the simple activities
of her daily living.” [R. 22]. The ALJ identified “[f]actors that precipitate and aggravate the
symptoms,” as follows:

“[p]hysical activity exacerbates her symptoms and causes

problems so that she cannot perform any physical activity on a sustained basis.” [R. 23].
Concerning Plaintiff’s medications, their effectiveness, and side effects, the ALJ listed
exhibit numbers. Id. Those exhibits reflect that Plaintiff takes narcotic medications on a
regular basis, including flexeril, oxycodone, and lortab. [R. 23, 333, 338, 356, 360]. In
response to the factor pertaining to treatment other than medication, the ALJ noted that
Plaintiff ‘has received epidural injections which did not provide lasting relief.” [R. 23]. For

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other measures to relieve pain, the ALJ noted “[s]he performs her physical activities to the
limits of her tolerance and then she rests.” Id.
The court finds that the ALJ failed to explain why the specific evidence relevant to
each factor he listed lead him to conclude that the claimant’s subjective complaints were
not credible. See Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004), Kepler v.
Chater, 68 F.3d 387, 391 (10th Cir. 1995). On remand the ALJ’s credibility findings should
be “closely and affirmatively linked to substantial evidence.” Hardman, 362 F.3d at 678-79.
Conclusion
The Commissioner’s decision is REVERSED and the case REMANDED for further
proceedings in accordance with this Opinion and Order.
SO ORDERED this 4th day of February, 2013.

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