Reed v. Social Security Administration
Filing
25
OPINION AND ORDER by Judge Claire V Eagan ; remanding case (terminates case) ; rejecting 22 Report and Recommendation (Re: 2 Social Security Complaint ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
ANITA KAY REED,
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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner, Social Security
Administration,
Defendant.
Case No. 14-CV-0014-CVE-FHM
OPINION AND ORDER
Before the Court is the report and recommendation (Dkt. # 22) of Magistrate Judge Frank
H. McCarthy recommending that the Court affirm the decision of the Commissioner of the Social
Security Administration (the agency) to deny plaintiff’s claim for disability benefits. Plaintiff has
filed an objection (Dkt. # 23) to the report and recommendation, and she seeks an award of benefits
or, alternatively, remand for further proceedings. Defendant has filed a response. Dkt. # 24.
I.
Plaintiff applied for disability benefits on April 13, 2011, alleging that she became disabled
on January 31, 2007. Dkt. # 11-5, at 2. She was forty-two years old when she applied for benefits.
Id. Plaintiff alleged disability stemming from a wide range of physical and mental conditions,
including fibromyalgia, degenerative disc disease, sleep apnea, neuropathy, gastrointestinal pain,
depression, and migraines. Dkt. # 11-6, at 30. The claim was denied initially and upon
reconsideration, after which plaintiff sought a hearing before an administrative law judge (ALJ).
Dkt. # 11-4, at 13. The hearing was held on June 28, 2012. Dkt. # 11-2, at 37.
The plaintiff and a vocational expert (VE) A. Glen Marlowe, M.S. in Rehabilitation
Psychology, testified at the hearing. See Dkt. # 11-4, at 18. Plaintiff testified that she last worked
in January 2007, when she was employed as an accountant for an architectural company. Dkt. # 112, at 43. By that point, plaintiff said, her disabling conditions and pain allowed her to work part-time
only, and she spent her time away from work recovering sufficiently to return. Id. Plaintiff described
debilitating pain in her eye, neck, right shoulder, and back, as well as migraine headaches. Id. at 4647. She also testified to having great difficulty sleeping. Id. at 50-51. For relief from her pain,
plaintiff has tried injections, various medications, and a spine stimulator, although no treatment
eliminated her symptoms. Id. at 49. When asked about side effects from her medication, plaintiff
stated that some caused weight gain and drowsiness. Id. at 53. Plaintiff testified that she had worked
while taking medication without experiencing side effects, but she then stated that she was taking
different and less medication at that time. Id. at 53-54.
The ALJ then questioned the VE, presenting a hypothetical person with physical restrictions
commensurate with light work.1 Id. at 58-59. The ALJ included that the hypothetical person
experiences “mild to moderate to occasional chronic pain” but takes medication, and the
“appropriate use of that medication would not preclude her from remaining reasonably alert to
perform required functions presented in a work setting.” Id. at 59. The VE testified that the
hypothetical person could return to plaintiff’s past work, but she could also perform other work
existing in the national economy. Id. at 60. The ALJ then asked the VE about a hypothetical person
1
Light work “involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). Additionally, it
may involve “a good deal of walking or standing, or when it involves sitting most of the time
. . . some pushing and pulling of arm or leg controls.” Id. Light work includes all sedentary
work, absent other limiting factors. Id.
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with the symptoms plaintiff described in her testimony; the VE stated that such a person would
neither be able to return to plaintiff’s past work nor perform other work. Id. at 61.
The ALJ issued his decision on July 23, 2012. Id. at 20. He found that plaintiff had four
severe impairments--status post cervical fusion, fibromyalgia, headaches, and hypertension--but that
these impairments did not meet or exceed any of the listed impairments in the regulations. Id. at 13.
He then made his residual functional capacity (RFC) assessment, and he determined that plaintiff
could perform the full range of light work. The RFC assessment included the following: “[Plaintiff]
does take medication for relief of some of her symptomatology, but the appropriate use of that
medication would not preclude her from remaining reasonably alert to perform required functions
presented in a work setting.” Id. at 15. In making his determination, the ALJ found plaintiff’s
testimony not credible to the extent it conflicted with the RFC. Id. at 16.
The ALJ summarized the medical evidence in the record. Records from Lawrence Jacobs,
M.D., showed that plaintiff began developing neck pain in 2002. Id. As part of plaintiff’s treatment,
Dr. Jacobs prescribed various medications, including Flexeril, Lortab, and Neurontin. Id. The ALJ
discussed the February 1, 2007 progress note of Bhadresh Bhakta, M.D., who was plaintiff’s pain
management specialist. Id. at 17. At that time, Dr. Bhakta diagnosed plaintiff with pain in a variety
of areas, but he stressed to her the “importance of staying functional.” Id. He also made changes in
dosing to her then-current prescriptions for Fentanyl and methadone. Id. The ALJ made no mention
of Dr. Bhakta’s April 21, 2011 progress note, in which he stated that he had a “long discussion” with
plaintiff about the use and effects of her narcotic medications, including the risks of various side
effects and “the fact that she is considered to be under the influence.” Dkt. # 11-7, at 626.
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The ALJ next discussed a number of progress notes, spanning June 16, 2009 to January 5,
2011, from Baptiste Shunatona, M.D., plaintiff’s primary care physician. Dkt. # 11-2, at 17. These
notes described several normal test results, as well as Dr. Shunatona’s belief that “claimant’s
depression and hypertension were well controlled.” Id. On plaintiff’s April 10, 2007 progress note,
which the ALJ did not discuss, Dr. Shunatona wrote, “I endorsed the idea of disability last visit,
12/06.”2 Dkt. # 11-7, at 222. Walter Bell, M.D., completed a physical RFC assessment, placing
restrictions on plaintiff’s ability to work commensurate with the ability to do medium work,3
although Dr. Bell did not explicitly find plaintiff capable of medium work. Id. at 18. Dr. Bell’s
assessment did not mention plaintiff’s medication or discuss possible side effects. See Dkt. # 11-7,
at 514-15. The ALJ gave Dr. Bell’s opinion some weight, but the ALJ found that plaintiff’s pain
resulted in greater limitations than Dr. Bell found. Dkt. # 11-2, at 18.
Relying on plaintiff’s RFC assessment and the VE’s testimony, the ALJ found that plaintiff
could perform her past work as an accountant. Id. at 19. The ALJ also determined that, based on the
RFC assessment, Medical-Vocational Rule 202.21 directed a finding of not disabled. Id. Based on
these findings, the ALJ issued a determination of not disabled. Id. The Appeals Council denied
plaintiff’s request for review, making the ALJ’s decision the agency’s final decision for purposes
of appeal. Id. at 2. Plaintiff sought judicial review, Dkt. # 2, and the matter was referred to the
magistrate judge for a report and recommendation. The magistrate judge recommended that this
2
The Court notes that this endorsement is not mentioned in any of Dr. Shunatona’s progress
notes from December 2006. See Dkt. # 11-7, at 229-232.
3
The regulations define medium work as involving “lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do
medium work, we determine that he or she can also do sedentary and light work.” 20 C.F.R.
§ 404.1567(c).
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Court affirm the ruling of the ALJ. Dkt. # 22, at 9. Plaintiff has timely filed an objection to the report
and recommendation. Dkt. # 23. Defendant has filed a timely response to plaintiff’s objection. Dkt.
# 24.
II.
Without consent of the parties, the Court may refer any pretrial matter dispositive of a claim
to a magistrate judge for a report and recommendation. FED. R. CIV. P. 72(b). However, the parties
may object to the magistrate judge’s recommendation within fourteen days of service of the
recommendation. Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega
v. Suthers, 195 F.3d 573, 579 (10th Cir. 1999). The Court “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which objection
is made.” 28 U.S.C. § 636(b)(1). The Court may accept, reject, or modify the report and
recommendation of the magistrate judge in whole or in part. FED. R. CIV. P. 72(b).
III.
The agency has established a five-step process to review claims for disability benefits. See
20 C.F.R. § 404.1520. The Tenth Circuit has outlined the five step process:
Step one requires the agency to determine whether a claimant is “presently engaged in
substantial gainful activity.” [Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004)]. If
not, the agency proceeds to consider, at step two, whether a claimant has “a medically severe
impairment or impairments.” Id. An impairment is severe under the applicable regulations
if it significantly limits a claimant’s physical or mental ability to perform basic work
activities. See 20 C.F.R. § 404.1521. At step three, the ALJ considers whether a claimant’s
medically severe impairments are equivalent to a condition “listed in the appendix of the
relevant disability regulation.” Allen, 357 F.3d at 1142. If a claimant’s impairments are not
equivalent to a listed impairment, the ALJ must consider, at step four, whether a claimant’s
impairments prevent her from performing her past relevant work. See id. Even if a claimant
is so impaired, the agency considers, at step five, whether she possesses the sufficient
residual functional capability to perform other work in the national economy. See id.
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
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The Court may not reweigh the evidence or substitute its judgment for that of the ALJ but,
instead, reviews the record to determine if the ALJ applied the correct legal standard and if his
decision is supported by substantial evidence. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir.
2008). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994). “A decision
is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there
is a mere scintilla of evidence supporting it.” Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004). The Court must meticulously examine the record as a whole and consider any evidence that
detracts from the Commissioner’s decision. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.
1994).
The ALJ decided plaintiff’s case at step four, concluding that she could perform her past
relevant work as an accountant. Dkt. # 11-2, at 18. The ALJ made the alternate step five finding that,
based on plaintiff’s RFC for the full range of light work, Medical-Vocational Rule 202.21 directed
a finding of not disabled. Id. at 19. The magistrate judge recommended that the ALJ’s decision be
affirmed. Dkt. # 22, at 9. Plaintiff sets forth three objections to the magistrate judge’s report and
recommendation: that the ALJ impermissibly disregarded the opinions of Dr. Shunatona and Dr.
Bhakta; that the ALJ did not properly consider contradictory evidence regarding the side effects of
plaintiff’s medications; and that there was a lack of explanation for how the evidence supported the
ALJ’s conclusions. Dkt. # 23. Defendant responds that the findings of Dr. Shunatona and Dr. Bhakta
are not inconsistent with the ALJ’s findings, that there is no evidence of side effects from plaintiff’s
medications, and that the ALJ adequately explained his RFC determination. Dkt. # 24. As the Court
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finds that this case should be remanded for further consideration of Dr. Bhakta’s progress notes, the
Court does not address plaintiff’s other arguments.
Plaintiff argues that the ALJ erred by failing to consider and discuss the medical opinions
of Dr. Shunatona and Dr. Bhakta. Dkt. # 23. The magistrate judge found that the ALJ’s decision not
to mention certain statements made by the physicians in their progress notes was not error because
the statements were not the physicians’ opinions, merely comments. Dkt. # 22, at 4. Plaintiff
responds that, even if these statements were not medical opinions, the ALJ should have evaluated
them as “opinions from any medical source regarding issues reserved to the Commissioner.” Dkt.
# 23, at 3. Defendant argues that the statements were not probative of plaintiff’s functional
limitations, and as such the ALJ was not required to discuss them. Dkt. # 24, at 2.
Medical opinions are “statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of your impairment(s),
including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and
your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Social Security Ruling (SSR) 965p provides that statements from a medical source that amount to “administrative findings that are
dispositive of the case” are not entitled to the same weight as medical opinions from that same
source. SSR 96-5p, 1996 WL 374183, at *2 (July 2, 1996). Examples of such findings include
“[w]hether an individual’s RFC prevents him or her from doing past relevant work” and “[w]hether
an individual is ‘disabled’ under the Act.” Id. However, although not entitled to the same weight as
a medical opinion, “adjudicators must always carefully consider medical source opinions about any
issue, including opinions about issues that are reserved to the Commissioner.” Id. “The record must
demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every
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piece of evidence. Rather, in addition to discussing the evidence supporting his decision, the ALJ
also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (citing Vincent ex rel.
Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)).
On plaintiff’s April 10, 2007 progress note, Dr. Shunatona wrote, “I endorsed the idea of
disability last visit, 12/06.” Dkt. # 11-7, at 222. Plaintiff argues that, pursuant to SSR 96-5p, the ALJ
should have discussed Dr. Shunatona’s statement in his decision, and the failure to do so is
reversible error. Dkt. # 23, at 2. As the magistrate judge found, it is clear that Dr. Shunatona’s
statement is not a medical opinion. See Dkt. # 22, at 4. Rather, it is what SSR 96-5p classified as an
“administrative finding[]” addressing “[w]hether an individual is ‘disabled’ under the Act.” SSR 965p, at *2. As such, it need not be given the same weight as a medical opinion, even though it comes
from a medical source. Id. Moreover, and contrary to plaintiff’s argument, SSR 96-5p does not
require the ALJ to discuss such administrative findings; rather, the ALJ must “carefully consider”
them. Id. The ALJ’s decision recites findings from many of Dr. Shunatona’s progress notes,
including those of: June 16, 2009; June 18, 2010; July 21, 2010; and January 5, 2011. Although the
ALJ does not mention the progress note from April 10, 2007, the ALJ’s decision demonstrates that
he considered Dr. Shunatona’s progress notes when making his decision. See Clifton, 79 F.3d at
1009-10. The Court finds no error in the ALJ’s decision not to discuss Dr. Shunatona’s statement
that he “endorsed the idea of disability.”
However, the same is not true of Dr. Bhakta’s statement that plaintiff “was considered to be
under the influence” while taking her prescribed narcotic medications. Dkt. # 11-7, at 626. Unlike
Dr. Shunatona’s statement, Dr. Bhakta’s statement appears to be a medical opinion, as it goes
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directly to plaintiff’s “physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Defendant argues
that Dr. Bhakta’s statement “could be considered an ‘opinion’ in the loosest terms, [but] it does not
identify functional limitations inconstant [sic] with the ALJ’s residual functional capacity finding.”
Dkt. # 24, at 4. While it is true that the statement does not explicitly identify any functional
limitation, a medical opinion is not required to contain such. Rather, a medical opinion need only
reflect the physician’s judgment about “the nature and severity of your impairments.” 20 C.F.R. §
404.1527(a)(2). Stating that plaintiff could be considered “under the influence” certainly reflects Dr.
Bhakta’s judgment about both the nature and the severity of plaintiff’s medication regimen, and the
extent to which that regimen impaired plaintiff. Thus, the ALJ erred in not discussing Dr. Bhakta’s
statement. SSR 96-5p, at *2; cf. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (“[T]he
notice of determination or decision ‘must be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons
for that weight.’” (quoting SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996)).
Even were it not a medical opinion, the ALJ’s decision does not demonstrate that the ALJ
ever “carefully considered” the statement, as is required SSR 96-5p. In his decision, the ALJ
extensively discussed a single progress note, dated February 1, 2007, that detailed Dr. Bhakta’s
conclusions on that day. See Dkt. # 11-2, at 16-17. That progress note is Exhibit 2F in the record,
and it comprises the entirety of Exhibit 2F. However, the record contains an wealth of additional
progress notes from Dr. Bhakta in Exhibits 16F, 17F, and 20F, which cover the time between May
10, 2008 and June 12, 2012. See Dkt. # 11-7, 572-643. This is unlike, for example, Dr. Shunatona’s
progress notes, which are contained entirely in Exhibit 8F of the record. See id. at 371-498. At no
point does the ALJ discuss any of Dr. Bhakta’s progress notes from these later exhibits, one of
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which is the April 21, 2011 note that includes Dr. Bhakta’s statement that he told plaintiff that she
“was considered to be under the influence.” Dkt. # 11-7, at 626. Dr. Bhakta’s progress notes are of
particular importance in this case; he was plaintiff’s pain management specialist, and plaintiff
complained primarily of debilitating pain. For the ALJ not to have considered them, particularly the
April 21, 2011 progress note, is error. Clifton, 79 F.3d at 1009-10; SSR 96-5p, at *2.
Defendant argues that plaintiff is not precluded from returning to her past work, despite Dr.
Bhakta’s statement, because she “worked for many years taking very strong narcotic pain relievers
such as methadone and fentanyl.” Dkt. # 24, at 4. However, plaintiff’s past history of working while
medicated does not under undercut the need for the ALJ to consider all of the evidence in the record,
including Dr. Bhakta’s progress notes, and to “carefully consider” his statement that plaintiff “was
considered to be under the influence.” See Clifton, 79 F.3d at 1009-10; SSR 96-5p, at *2. Defendant
also contends that Dr. Bhakta’s statement is contradicted by Dr. Shunatona’s opinion in 2008, in
which Dr. Shunatona “opined . . . that Plaintiff could return to her job as an accountant.” Dkt. # 24,
at 4 (citing Dkt. # 11-7, at 208). This Court cannot simply determine that some evidence is of greater
weight than other, contradictory evidence; that is clearly and firmly the duty of the ALJ. GardnerRenfro v. Apfel, 242 F.3d 388, at *4 (10th Cir. 2000) (unpublished). Moreover, Dr. Shunatona’s
opinion was given three years before Dr. Bhakta’s. The Court finds defendant’s arguments on this
point unpersuasive.
Thus, the Court finds that the ALJ has not demonstrated that he considered all of the
evidence to the degree required by Clifton and SSR 96-5p. This matter must be remanded to allow
the ALJ to correct this error.
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IT IS THEREFORE ORDERED that the report and recommendation (Dkt. # 18) is
rejected, and the Commissioner’s decision is reversed and remanded for further proceedings. A
separate judgment is entered herewith.
DATED this 5th day of March, 2015.
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