Murry v. Social Security Administration

Filing 14

OPINION AND ORDER by Magistrate Judge Frank H McCarthy reversing and, remanding case (terminates case) (tjc, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
ERIC FRANCES MURRY,
PLAINTIFF,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
DEFENDANT.

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CASE NO. 12-CV-515-FHM

OPINION AND ORDER
Plaintiff, Eric Frances Murry, 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 decision is supported by substantial
evidence and whether the decision contains a sufficient basis to determine that the
Commissioner has applied the correct legal standards. See Briggs ex rel. Briggs v.
Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th

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Plaintiff Eric Frances Murry’s application was denied initially and upon reconsideration. A
hearing before an Administrative Law Judge (ALJ) Richard J. Kallsnick was held October 6, 2010. By
decision dated December 28, 2010, the ALJ entered the findings which are the subject of this appeal.
The Appeals Council denied Plaintiff’s request for review on July 19, 2012. The decision of the Appeals
Council represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R. §§
404.981, 416.1481.

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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 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., 993 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 36 years old on the alleged date of onset of disability and 39 years old
on the date of the denial decision. He has a high school education and he previously
worked as a used car salesman. Plaintiff claims to have been unable to work since
February 1, 2008, due to diverticulitis and nerve damage to his legs. [R. 167].
The ALJ’s Decision
The ALJ determined that the Plaintiff has severe impairments relating to
gastrointestinal problems. [R. 11]. The ALJ found that the Plaintiff has the residual
functional capacity (RFC) to perform the full range of light exertional work2 as defined in

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Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of these activities. If someone can do light work, we
determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss
of fine dexterity or inability to sit for long periods of time.

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20 CFR 404.1567(b). The ALJ determined at step four, based upon the testimony of the
vocational expert, that Plaintiff was able to perform his past relevant work as a used car
salesman as it is customarily performed. The ALJ made an alternative finding at step five
that there are a significant number of jobs in the national economy that Plaintiff could
perform. [R. 28]. Accordingly, the ALJ found Plaintiff was not disabled. The case was thus
decided at step four with an alternative finding at step five of the five-step evaluative
sequence for determining a claimant is disabled. 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: 1) failed to discuss the October 2009 hospitalization;
2) failed to properly evaluate the medical source evidence; 3) failed to properly evaluate
Plaintiff’s mental impairments; and 4) failed to perform proper step four and step five
determinations.
Analysis
The ALJ concluded that Plaintiff’s allegations of leg pain and dysfunction were
unsupported. However, there are numerous objective medical findings contained in the
records of Plaintiff’s hospitalization at Integris Grove General Hospital in October 2009
which support Plaintiff’s allegations of leg pain and dysfunction. For instance, the objective
medical evidence3 contained within the hospital records document: marked weakness in
his right lower extremity; inability to do heel-shin movement with his right leg; inability to lie
back down without using his left leg to push his right leg up; inability to raise his right leg

3
Objective evidence are medical signs and laboratory findings as defined in C.F.R. §
404.1528(b) and (c).

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up to touch the doctor’s hand; decreased sensory perception; weakness of the right foot
and leg starting at the thigh; hard, moveable nodule on right flexor tendon of the right foot
lateral dorsal surface measuring approximately 1.5 cm; and a 14 point review of systems
is positive for right leg weakness and tingling. [Dkt. 11, p. 2-3; R. 386-405]. The ALJ did
not mention any of these objective findings.
In the written decision, the ALJ said the following about Plaintiff’s hospital stay:
The claimant was seen from October 4, to 5, 2009, in a
hospital based on complaints of leg pain and weakness. No
definitive diagnosis was made and he was referred to a
neurologist. Exhibit 10F.
***
. . . The October 2009 hospital visit did not result in a definitive
diagnosis related to the claimant’s complaint and there were no
more diagnosis of any medical condition related to the basis for
claimant’s spasms.
[R. 13].

The foregoing leaves the impression that there was no evidence of the leg

problems that Plaintiff complained of during his hospital stay. The court finds that the
ALJ’s reliance on a lack of diagnosis failed to take into account the objective findings that
confirmed Plaintiff’s complaints. Furthermore, the lack of a diagnosis is not an acceptable
basis for the ALJ’s rejection of the objective medical evidence.
The focus of a disability determination is on the functional consequences of a
condition, not the mere diagnosis. See e.g. Coleman v. Chater, 58 F.3d 577, 579 (10th Cir.
1995)(the mere presence of alcoholism is not necessarily disabling, the impairment must
render the claimant unable to engage in any substantial gainful employment.), Higgs v.
Bowen,880 F.2d 860, 863 (6th Cir. 1988)(the mere diagnosis of arthritis says nothing about
the severity of the condition), Madrid v. Astrue, 243 Fed.Appx. 387, 392 (10th Cir.
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2007)(diagnosis of a condition does not establish disability, the question is whether an
impairment significantly limits the ability to work), Scull v. Apfel, 221 F.3d 1352 (10th Cir.
2000)(unpublished), 2000 WL 1028250 *1 (disability determinations turn on the functional
consequences, not the causes of a claimant’s condition). Regardless of the existence of
a diagnosis, the evidence in this case suggests functional limitations. The medical records
corroborate Plaintiff’s complaints of leg pain, muscle weakness, and tingling. The ALJ’s
failure to mention this evidence on the basis that there was no diagnosis is reversible error.
The objective findings from a post-hearing consultative examination on November
18, 2010, further suggests the existence of functional limitations.

The consultative

examiner, Dr. Magness, found Plaintiff had limited range of motion of the right ankle, pes
planus on his right, muscle spasms in right hip and thigh, positive straight leg raising on the
right, positive and negative neurological reflexes in the right patellar and left Achilles,
completely absent neurological reflexes in the right Achilles, as well as muscle weakness
in the right thigh (grade 3 out of 5) and decreasing. Dr. Magness diagnosed Plaintiff as
suffering from parethesia/paresis and completed a Medical Source Statement of Ability to
Do Work (Physical) opining that in an 8 hour workday Plaintiff could sit for a total of 4 hours
for 2 hours at a time, stand for a total of 4 hours at 30 minute intervals, and walk for a total
of 4 hours at 30 minute intervals. [R. 417]. The ALJ’s discussion of the medical evidence
rendered from the consultative examination consists of two partial paragraphs in his eight
page decision. He summarized:
[E]xamination showed a weakness in the muscle in the right
thigh with paresthesias.
The diagnosis was right hip
paresthesia/paresis. Exhibit 13F.

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Dr. Magness does diagnose pareathesia (sic) and paresis but
the attached residual functional capacity does not show the
complete inability to perform work-related activities but shows
that the claimant can perform light work. Dr. Magness’ medical
opinions are given a reduced weight because he is a one-time
examiner and he did not see the claimant on more than one
occasion.
[R. 13]. It is a mis-reading of Dr. Magness’s opinion to say that it supports the ALJ’s finding
that Plaintiff can perform a full range of light work. Dr. Magness’s opinion that Plaintiff
could stand or walk only 30 minutes at a time is a significant limitation on the ability to
perform the “full range” of light work. Further, in light of the ALJ’s failure to discuss the
2009 objective evidence of the same problems Dr. Magness identified, giving his opinion
reduced weight on the basis it was the result of a one-time examination, was not
reasonable.
The ALJ’s decision is being reversed and the case remanded for the ALJ to discuss
the functional limitations, if any resulting from the objective findings from the hospitalization
at Integris Grove General Hospital in October 2009 in conjunction with the findings of the
physical consultative examiner’s examination as they relate to Plaintiff’s specific allegations
of pain, numbness, and dysfunction of his legs. The ALJ’s credibility determination and
RFC findings were colored by the failure to discuss relevant objective medical findings. On
remand, consideration of these findings will require a new credibility analysis and RFC
findings.
Although Plaintiff did not allege a mental impairment in his application, a posthearing mental consultative examination was performed on October 28, 2010. The ALJ
mentioned that the examination occurred, but did not discuss the findings of the mental
RFC, [R. 13], nor did the ALJ perform the psychiatric review technique as required when
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there is evidence of a mental impairment. 20 C.F.R. §§ 404.1520a(e), 416.920a(e). On
remand, the ALJ is required to follow the prescribed procedure for evaluating mental
impairments.
Conclusion
For the reasons expressed herein, the ALJ’s decision is REVERSED and the case
is REMANDED for the ALJ to reconsider the RFC, credibility finding, and weight of the
consultative examiner’s opinion in light of the objective findings of leg pain and dysfunction
in the medical record, for consideration of the mental RFC, and completion of the
psychiatric review technique.
SO ORDERED this 18th day of September, 2013.

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