Jones v. Social Security Administration

Filing 20

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

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
JULIA JONES,
Plaintiff,
vs.

Case No. 12-CV-541-FHM

CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,
Defendant.
OPINION AND ORDER
Plaintiff, Julia Jones, 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 May 24, 2010, application for disability benefits was denied initially and on reconsideration.
A hearing before Adm inistrative Law Judge ("ALJ") Charles Headrick was held August 27, 2011. By decision
dated Septem ber 16, 2011, the ALJ entered the findings that are the subject of this appeal. The Appeals
Council denied Plaintiff’s request for review on August 2, 2012. 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 nearly 20 years old on the alleged date of onset of disability and 21 at
the time of the ALJ’s denial decision. She is a high school graduate and earned an
associate’s degree. She formerly worked as child care worker and cashier. She claims
to have been unable to work since March 10, 2010 as a result of back pain and dysfunction
due to cervical and lumbar strain, and thoracic disc herniations that compress her spinal
cord.
The ALJ’s Decision
The ALJ determined that Plaintiff has the residual functional capacity to perform light
work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b). She is limited to occasional
climbing of ramps, stairs, ladders, ropes, and scaffolds and is able to occasionally balance,
stoop, crouch, and crawl. She is able to kneel frequently. [R. 17]. The ALJ found that with
these limitations Plaintiff is capable of performing her past relevant work as a cashier. [R.
22]. 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

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with these limitations. [R. 22-23]. The case was thus 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 the treating source opinions
and failed to perform a proper credibility analysis.
Analysis
Consideration of Treating Source Opinions
Plaintiff was injured in a motor vehicle accident on March 10, 2010. She has been
treated by Richard Hastings, D.O. and James Mayoza, M.D. Both of these doctors
completed forms which contained their opinions that Plaintiff cannot sit for six hours a day
and cannot stand or walk for two hours per day as a result of thoracic disc herniation,
cervical disc injury, and lumbar myofacial injury received in the accident. The ALJ gave the
opinions of these treating physicians little weight. [R. 20, 21]. Instead, the ALJ credited
the opinion of the state Disability Determination Service (DDS) reviewing expert at Exhibit
5F. [R. 22, 259-266].
Plaintiff argues that the ALJ rejected the opinions of the treating physicians in favor
of his own interpretation of the severity of Plaintiff’s condition based on MRI findings.
Plaintiff notes that the ALJ’s statement that Dr. Hastings’ opinion was based on Plaintiff’s
subjective complaints is contradicted by the contents of the opinion which identified the
objective findings that support the opinion. The ALJ stated that the physical therapy

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records were consistent with his RFC findings, but Plaintiff asserts that the content of those
records does not support the RFC. With regard to the ALJ’s rejection of Dr. Mayoza’s
opinion, Plaintiff notes that the ALJ supposed that if Plaintiff had disabling low back pain,
she would have positive straight leg raising (SLR) tests, atrophy, and a limited range of
motion. Plaintiff argues that it was improper for the ALJ to reject Dr. Mayoza’s opinion
based on what the ALJ thinks the medical record should contain. Plaintiff asserts that the
ALJ’s rejection of her treating physician’s opinions was based on the ALJ’s own lay opinion
of the evidence and was therefore error.
An ALJ is required to give controlling weight to a treating physician’s opinion if the
opinion is both:

(1) well supported by medically acceptable clinical and laboratory

diagnostic techniques; and (2) consistent with other substantial evidence in the record.
Branum v. Barnhart, 385 F.3d 1268, 1275 (10th Cir. 2004). If the ALJ rejects the opinion
completely, he must give specific legitimate reasons for doing so. Miller v. Chater, 99 F.3d
972, 976 (10th Cir. 1996), Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987). The court
finds that the reasons the ALJ gave for rejecting the treating physician’s opinions were not
legitimate ones in that the reasons the ALJ gave for rejecting the opinions are not
supported by substantial evidence.
The ALJ’s rendition of the medical record gives a skewed and therefore inaccurate
account. The ALJ spent much time recounting the observations made during Plaintiff’s
emergency room visit directly following her car accident when she was diagnosed with a
back sprain. [R. 19-20]. The ALJ noted Plaintiff had normal range of motion of the
extremities and that a cervical x-ray showed normal alignment and disc spaces with no
fractures seen. He concluded:
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It is reasonable to assume that someone with pain would also
have limited range of motion associated with the pain. It was
also stated in the record that the claimant had, “No Serious
Injury.” (Emphasis added). (Exhibit 1F). These findings are
not consistent with allegations of severe disabling pain
associated with numbness and tingling.
[R. 20] [emphasis and capitalization in ALJ’s decision]. The ALJ’s emphasis on the
emergency room notation that Plaintiff had “no serious injury” together with his conclusion
that the findings were not consistent with allegations of severe disabling pain associated
with numbness and tingling is troublesome since Plaintiff was not complaining of numbness
and tingling at the time of that emergency room visit and her injury did not appear serious
immediately following the accident. The record reflects that following the accident Plaintiff
repeatedly sought care for back and neck pain.
While an ALJ is not required to address every entry or finding, the summary of the
medical record should present a fair representation of the overall picture. The summary
in this case does not. The ALJ discussed Plaintiff’s attendance at physical therapy from
May 25, to July 28, 2010. the ALJ noted that on initial evaluation that Plaintiff was able to
toe walk and heel walk, which he stated was “not necessarily consistent with disabling back
pain.” [R. 20]. The ALJ recounted instances in the physical therapy notes where it was
recorded that Plaintiff tolerated exercises without aggravation of her symptoms. The ALJ
did not, however, acknowledge that exercises were modified due to pain, [R. 281], that
Plaintiff reported improved neck mobility, but increased pain aggravated by activity, [R.
287], or the therapists remarks that despite therapy complaints of pain and paraspinal
muscle spasms were unchanged, [R. 288].

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In discussing the Plaintiff’s MRI results, the ALJ emphasized by italic typeface the
words “small,” “mild,” and “tiny” as they were used in the MRI report to describe the disc
protrusions or herniations at three levels in Plaintiff’s thoracic spine which the report also
noted contacted her spinal cord. [R. 20, 271]. The ALJ found that the statement made by
plaintiff’s treating physician, Dr. Hastings, that Plaintiff had severe disc herniation injuries
in the thoracic spine was inconsistent with the objective findings in the MRI of the thoracic
spine which used the words “slightly” and “tiny” to describe the injuries. [R. 20]. The ALJ
also stated that Dr. Hastings’ opinion seemed to be based on Plaintiff’s subjective
complains, rather than the objective medical findings such as MRIs and x-rays which the
ALJ found were at odds with Dr. Hastings’ opinion.
The court finds that the reasons the ALJ gave for according Dr. Hastings’ opinion
little weight are not supported by substantial evidence. Dr. Hastings explained that his
opinion was based on “thoracic disc herniations with thoracic spinal cord compression,”
MRI, clinical exams, and spine surgery consultative findings. [R. 291, 292, 293]. The MRI
report confirms small disc protrusions at three levels of the thoracic spine (T5-T6, T6-T7,
T7-T8) that contact or may slightly flatten the spinal cord. [R. 271]. The ALJ’s focus on
the MRI report’s use of the words small and tiny which described the size of the herniations
miss the point of Dr. Hastings’ opinion, which was that the herniations compressed the
spinal cord and produced “recurrent episodes of excruciating pain with almost any
movement.” [R. 293].
The ALJ also rejected the opinion of Dr. Mayoza, the orthopaedic surgeon who saw
Plaintiff several times from July 15, 2010 to June 2011 on the basis that Dr. Mayoza’s
opinion was inconsistent with his findings throughout his treatment and are inconsistent
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with the objective findings in the MRI report from May 10, 2010. [R. 21, 316-326]. The
findings in the ALJ’s decision which are attributed to Dr. Mayoza and are employed as
reasons to discount his opinion do appear in Dr. Mayoza’s reports. However, the findings
are largely taken out of context and therefore do not support the rejection of Dr. Mayoza’s
opinion.
The ALJ contrasted Dr. Mayoza’s rendition of Plaintiff’s history in his initial
evaluation with the medical record of Plaintiff’s initial emergency room visit following the
car accident. The ALJ pointed out that Dr. Mayoza said Plaintiff reported that immediately
after the accident she was placed in a cervical collar, and suffered nausea and headache.
The emergency room records reflect that Plaintiff was not placed in a cervical collar until
two days after the accident when she returned to the emergency room with complaints of
headaches and nausea. [R. 21, 18-185; 192-193]. The court views this inconsistency as
insignificant in regard to the weight to be accorded Dr. Mayoza’s opinion.
The ALJ also pointed out the Dr. Mayoza reported Plaintiff did not receive any relief
from physical therapy, but the physical therapy records reflect she felt better and was
getting relief. [R. 21]. The court has already discussed that a similar reference to
improvement with physical therapy do not accurately present the full picture.
The ALJ recounted Dr. Mayoza’s study of the MRI of May 10, 2010. Again, the ALJ
used italicized type to emphasize the words used to describe the size of the herniated disc.
The ALJ also emphasized a portion of Dr. Mayoza’s November 18, 2010 report that stated
Plaintiff “had real and significant improvement” in sacroiliac joint pain following an injection.
[R. 21, 318]. (Emphasis added by ALJ). The ALJ did not mention Dr. Mayoza’s further
comment that if some temporary relief were to occur with recurrence of the pain to a severe
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degree, that might be an indication for arthrodesis (surgical fixation) of the sacroiliac joint.
[R. 318]. Dr. Mayoza’s report on May 10, 2011 recorded that the first injection gave
Plaintiff “some temporary relief” but that attempts to inject the joint a second time were not
successful. [R. 316]. Dr. Mayoza noted continued tenderness and normal range of motion
and the absence of atrophy, motor, or sensory changes. [R. 316]. In spite of these
findings, in making treatment recommendations Dr. Mayoza expressed concern that
Plaintiff was “so absolutely non-responsive” to sacroiliac joint injections and that sacroiliac
joint fusion may be necessary. Id. In view of Dr. Mayoza’s concern that, even in the
absence of atrophy and sensory or motor changes, joint fusions may be necessary to
alleviate Plaintiff’s pain, the ALJ’s comment that “[i]t is reasonable to assume someone
with disabling low back pain would not only have positive straight leg raise tests, but that
there would also be some degree of atrophy and limited range of motion,” [R. 21], are
viewed as conjecture without any basis in the medical record.
Based on the foregoing, the court finds that some of the reasons the ALJ specified
for the rejection of the opinions of Plaintiff’s treating physicians are not supported by
substantial evidence. The ALJ’s rendition of some aspects of the medical record are taken
out of context to an extent that the entirety of the ALJ’s rejection of the treating physicians’
opinions is not supported by substantial evidence. However, this finding should not be
viewed as a determination that those opinions must necessarily be granted controlling
weight.
The ALJ accepted the RFC findings of the State Disability Determination Service
(DDS) reviewing physician found at Exhibit 5F in the record. [R. 22, 259-266]. The ALJ
also used that exhibit in formulating the hypothetical question to the vocational expert. [R.
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50-51]. The ALJ’s acceptance of the DDS opinion over the opinions of the treating
physicians is not reasonable. The DDS opinion, dated June 28, 2010, does not appear to
take into account the spinal cord compression revealed in the MRI. [R. 260-261]. And,
because of the date of the DDS opinion, Plaintiff’s continued efforts to obtain pain relief are
not taken into account. Further, the DDS reviewer acknowledged that Plaintiff had some
limitation to reaching with her right arm due to pain, but stated any limitation should resolve
in 12 months. [R. 262]. The doctors’ opinions and their medical records, which cover more
than a year, suggest that the effects of Plaintiff’s thoracic disc herniation did not resolve
as the DDS reviewer expected. [R. 324-326]. Further, the year time frame had passed at
the time of the ALJ’s decision.
The ALJ’s decision is reversed and the case is remanded for proper evaluation and
discussion of the treating physician’s opinions and re-evaluation of the weight accorded to
the DDS physician’s opinion. See Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir.
2003)(discussing criteria for weighing medical opinions); 20 C.F.R. § 404.1527(d).
Credibility Analysis
The ALJ’s credibility analysis consisted of a single paragraph which did not discuss
the basis for discounting Plaintiff’s testimony. Since the credibility analysis was conclusory
and was not closely and affirmatively linked to substantial evidence, Plaintiff’s credibility
must be properly addressed on remand.
Conclusion
The ALJ’s decision is REVERSED and the case is REMANDED for further
proceedings.

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SO ORDERED this 10th day of September, 2013.

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