Robinette v. Social Security Administration

Filing 23

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
TAMMIE ROBINETTE,
PLAINTIFF,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
DEFENDANT.

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CASE NO. 13-CV-257-FHM

OPINION AND ORDER
Plaintiff, Tammie Robinette, 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, Tammie Robinette’s applications for Disability Insurance and Supplemental Security
Income benefits were denied initially and upon reconsideration. A hearing before an Administrative Law
Judge (ALJ) Jeffrey S. Wolfe, was held November 14, 2011. By decision dated March 16, 2012, the
ALJ entered the findings which are the subject of this appeal. The Appeals Council denied Plaintiff’s
request for review on March 8, 2013. 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).
For the reasons discussed below, the Court REVERSES and REMANDS the
decision of the Commissioner.
Background
Plaintiff was 48 years old on the alleged date of onset of disability and 50 years old
on the date of the denial decision. She has a general equivalency degree and formerly
worked as a cashier, cook/dishwasher, store manager, and daycare worker. Plaintiff claims
to have been unable to work since March 2, 2010 due to pinched nerves, carpal tunnel
syndrome, arthritis, sciatic nerve problem, diabetes, and hypertension. [R. 165].
The ALJ’s Decision
The ALJ determined that the Plaintiff’s severe impairments include mild to moderate
degenerative changes of the lumbar spine, history of status/post-bilateral carpal tunnel

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surgery, type II diabetes mellitus, hypertension, sciatica, and muscle spasm of the neck.
[R. 13]. The ALJ further determined that Plaintiff has the residual functional capacity to
perform light exertional work2 with limitations of occasional handling of the left hand
(affecting gross manipulation of the left-hand only which does not affect the ability to
engage in frequent fingering). [R. 14].
Based on the testimony of a vocational expert the ALJ determined that Plaintiff is
capable of performing her past relevant work as a cashier. The case was thus decided at
step four of the five-step evaluative sequence for determining whether Plaintiff 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 fully develop the record; 2) failed to properly
consider the medical source opinions; 3) failed to perform a proper credibility determination;
and 4) failed to perform a proper Step Four determination.
Analysis
Consideration of Medical Source Information
and
Failure to Develop the Record

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Pursuant to CFR § 404.1567, 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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At the conclusion of the administrative hearing and prior to issuing his decision, the
ALJ determined additional neurological testing was necessary. A consultative examination
was performed by neurologist Michael Karathanos, M.D. Dr. Karathanos found that Plaintiff
suffered from bilateral carpal tunnel syndrome, bilateral ulnar neuropathy, chronic cervical
strain, chronic lumbosacral strain, and mild diffuse peripheral neuropathy. [R. 351-53]. He
completed a Medical Source Statement of Ability to do Work-Related Activities (Physical)
form. [R. 354-359]. On the form Dr. Karathanos indicated Plaintiff had the ability to carry
up to 10 pounds only occasionally; could sit 2 hours at a time and 6 hours total during a
workday; could stand 30 minutes at one time for up to 2 hours during a workday; could walk
30 minutes at one time3 for up to one hour in a workday; required the use of a cane; could
not use her left hand for any purpose; and could only occasionally use her right hand. Id.
Following the consultative examination and issuance of Dr. Karathanos’ opinion, a
nerve conduction study (EMG) was performed by Dr. Ashok Kache, M.D. The EMG study
revealed Plaintiff had normal nerve conduction in both upper and lower extremities without
evidence of neuropathy or entrapment syndromes. The needle EMG of bilateral upper and
lower extremities and corresponding paraspinals showed no evidence of radiculopathy in
the cervical and lumbar regions. [R. 349]. Plaintiff requested that the ALJ provide the EMG
studies to Dr. Karathanos. [R. 227]. There is no indication in the record that Plaintiff’s
request was granted. The ALJ rejected Dr. Karathanos’ opinion, finding as follows:

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Dr. Karathanos’ form contains some odd and illegible marks, the precise meaning of which
is not obvious. The court has portrayed its understanding of what is indicated. Regardless of any
misunderstanding, however, it is clear that Dr. Karathanos was of the opinion that Plaintiff was more
seriously limited than the ALJ’s RFC findings.

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Upon examination of the objective EMG testing, I give little
weight to [Dr. Karathanos’] opinion as it [is] not consistent with
objective EMG testing as performed by Dr. Kache and the
medical evidence of record, considered as a whole. It is
apparent that Dr. Karasthanos [sic] (for some reason not
otherwise explained) did not examine Dr. Kache’s EMG testing
before rendering his opinion. (See, Exhibit 14F) Dr.
Karathanos evidently based his opinion on the assumption and
diagnosis of carpal tunnel syndrome, evidently, largely on Ms.
Robinette’s reports – findings which were not objectively
demonstrated on the subsequent EMG or nerve conduction
testing.
[R. 21].
Plaintiff makes two arguments regarding the ALJ’s treatment of Dr. Karathanos’
opinion: (1) the ALJ’s failure to have Dr. Karathanos review the EMG results constitutes
a failure to fully develop the record; and (2) the ALJ’s rejection of Dr. Karathanos’ opinion
based only on the EMG report was error. The court agrees with both propositions.
The ALJ’s conclusion that the entirety of Dr. Karathanos’ findings and resulting
opinions should be disregarded on the basis of the EMG report is not supported by
substantial evidence. The ALJ’s conclusion is based on the ALJ’s apparent belief that EMG
and nerve conduction testing is definitively diagnostic for all types of neuropathy and/or
weakness and that those tests necessarily trump or override the consultative neurologist’s
direct clinical observations of Plaintiff. The record contains no support for such a belief.4
The ALJ’s conclusion, reached on the basis of his own understanding of neuropathy, EMG,
and nerve conduction studies is not supported by substantial evidence. On remand, if the
ALJ relies on the EMG and nerve conduction test results to reject Dr. Karathanos’ opinion,

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A quick internet search to determine the limits of EMG or nerve conduction studies reveals
that small fiber neuropathy and Guillian Barre Syndrome may not show up on these studies.
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2771953/

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the ALJ must develop the medical record with further medical opinion addressing those test
results.
Further, the court notes that it is a claimant’s functional limitations, rather than the
existence of a particular diagnosis that determines disability. 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. 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).

Since the focus of a disability determination is on the functional

consequences of a condition rather than the existence of a diagnosis, and the ALJ
rejected Dr. Karathanos’ opinion because his diagnosis was not supported, the case must
be remanded for further consideration of Dr. Karathanos’ findings concerning Plaintiff’s
functional limitations.
In addition, on remand, the weight given to the state agency reviewing experts
should be re-evaluated in light of Dr. Karathanos’ findings and opinions using the factors
outlined in 20 C.F.R. §§ 404.1527, 416.927. The ALJ’s decision should contain an
explanation for the acceptance of the opinions of non-examining reviewer’s opinions over
the opinion of an examining neurologist, especially since the reviewers did not have the
benefit of the neurologist’s clinical findings and opinions.
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Plaintiff also argues the ALJ failed to properly evaluate the opinion of nurse
practitioner, Robin Enders. Ms. Enders completed an application for a handicapped
parking placard for Plaintiff in which Ms. Enders checked the box on the application that
stated the applicant “[i]s severely limited in his or her ability to walk due to an arthritic
neurological, or orthopedic condition, or complications due to pregnancy.” [R. 217]. The
ALJ did not mention the application in his decision. He did, however, note that a copy of
the handicap parking sticker was in the record though there was no indication as to whom
the sticker belonged. [R. 328]. According to Plaintiff, the handicapped parking application
constitutes an opinion that the ALJ was required to consider and evaluate in accordance
with Social Security Ruling 06-03p, 2006 WL 2329939. The court finds that the checking
of a box on the application, standing alone, does not qualify as a medical opinion that the
ALJ was required to discuss. The decision demonstrates that the ALJ considered Ms.
Enders’s records.

Further, before Ms. Enders completed the application for the

handicapped placard, the ALJ noted that Plaintiff’s treating physician’s assistant Marcus
D. Sizemore refused to write a prescription for a cane or sign the application for a
handicapped parking placard. [R. 235]. The ALJ noted that Mr. Sizemore felt that it would
be counterproductive to Plaintiff as he encouraged her to stretch and walk as much as
possible. [R. 19]. To the extent the handicapped parking application can be considered
a medical opinion, the ALJ adequately considered it.

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Step Four Determination
The hypothetical question posed to the vocational expert included limitation to light
exertional work and also included limitation of gross manipulation in the left hand which
does not include any limitation in fingering. [R. 67]. The RFC in the decision was more
limited than the hypothetical posed to the vocational expert. The RFC contained the
limitation of “occasional handling of the left hand (affecting gross manipulation of the left
-hand only which does not affect the ability to engage in frequent fingering).” [R. 14].
(emphasis supplied). Since the vocational expert was not asked to consider the effect of
the more specific limitation contained in the RFC of occasional handling of the left hand,
the hypothetical question did not relate with precision all of Plaintiff’s limitations.
Accordingly, the vocational expert’s testimony cannot constitute substantial evidence to
support the Commissioner’s decision. Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.
1991).
There is the further problem that the ALJ did not perform the analysis outlined in
Social Security Ruling (SSR) 82-62, 1982 WL 31386. At step four of the sequential
evaluation process, an ALJ is required to make specific findings in three phases. Winfrey
v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). In phase one, “the ALJ should first assess
the nature and extent of [the claimant's] physical limitations,” which is the RFC finding. Id.
In phase two, the ALJ must “make findings regarding the physical and mental demands of
the claimant's past relevant work.” Id. at 1024. Finally, in phase three, the ALJ must
determine “whether the claimant has the ability to meet the job demands found in phase
two despite the mental and/or physical limitations found in phase one.” Id. These findings
are to be made on the record by the ALJ. Id. at 1025; see also, SSR 82-62, 1982 WL
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31386, at *4 (“decision must contain ... specific findings of fact” regarding each of the three
phases). It is not appropriate for an ALJ to make RFC findings and then to delegate the
remaining phases to the vocational expert. In such cases, the remainder of the step four
analysis takes place in the vocational expert’s head and there is nothing for the court to
review. Winfrey, 95 F.3d at 1025. In addition, SSR 82-62 instructs that the rationale for
a disability decision must be written so that a clear picture of the case can be obtained.
The rationale must follow an orderly pattern and show clearly how specific evidence leads
to a conclusion. 1982 WL 31386 at * 4.
The ALJ’s decision does not contain specific findings of fact concerning Plaintiff’s
past relevant work. There is no exploration of the handling requirements of the cashier job.
This information is not contained in the vocational expert’s testimony. The vocational
expert did not supply Dictionary of Occupational Titles (DOT) identification numbers for the
light cashier job so it might be argued that the information was even indirectly provided and
considered.5 The only thing the vocational expert said of Plaintiff’s past work as a cashier
is that the work was light with an SVP of 3. [R. 66]. This information is not sufficient to
satisfy step four in light of Plaintiff’s handling limitations.
Credibility Determination
“Credibility determinations are peculiarly the province of the finder of fact, and we
will not upset such determinations when supported by substantial evidence.” Hackett v.
Barnhart, 395 F.3d 1168, 1173 (10th Cir.2005) (internal quotation marks omitted). But

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Plaintiff represents that the DOT contains two light cashier jobs with an SVP of 3. [Dkt. 20, p. 13].
Those jobs clearly exceed the ALJ’s RFC finding as they require either constant or frequent handling. DOT
211.462-014, 211.462-018.

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“findings as to credibility should be closely and affirmatively linked to substantial evidence
and not just a conclusion in the guise of findings. Id. (brackets and internal quotation marks
omitted). The court finds that the ALJ performed an adequate credibility finding.
Conclusion
For the reasons expressed, the court holds that the case must be REVERSED and
REMANDED for further proceedings.
SO ORDERED this 28th day of March, 2014.

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