Glasby v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge T Lane Wilson (Re: 2 Social Security Complaint ) (kah, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
MICHAEL W. GLASBY,
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Plaintiff,
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vs.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security, )
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Defendant.
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Case No. 15-cv-355-TLW
OPINION AND ORDER
Plaintiff Michael W. Glasby seeks judicial review of the decision of the Commissioner of
the Social Security Administration denying his claim for disability insurance benefits under Title
II of the Social Security Act (“SSA”), 42 U.S.C. §§ 416(i), 423, and 1382c(a)(3). In accordance
with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a United States
Magistrate Judge. (Dkt. 8). Any appeal of this decision will be directly to the Tenth Circuit Court
of Appeals.
INTRODUCTION
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported by
substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). Substantial
evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. See id. The Court’s review is
based on the record, and the Court will “meticulously examine the record as a whole, including
anything that may undercut or detract from the ALJ’s findings in order to determine if the
substantiality test has been met.” Id. The Court may neither re-weigh the evidence nor substitute
its judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th
Cir. 2005). Even if the Court might have reached a different conclusion, if supported by substantial
evidence, the Commissioner’s decision stands. See White v. Barnhart, 287 F.3d 903, 908 (10th
Cir. 2002).
ISSUE
On appeal, plaintiff raises one issue: whether the ALJ improperly rejected the opinions (the
Physicial Medical Source Statements) of his treating physicians. (Dkt. 17).
DISCUSSION
Plaintiff develops two arguments in his opening brief: (1) that “the ALJ’s decision is legally
deficient because he never stated whether or not the opinion[s of his treating physicians were]
supported by medically acceptable clinical and laboratory diagnostic techniques”; and (2) that “the
ALJ did not give the opinion[s] of his treating physicians, Dr. Okada and Dr. Karpman,] deference
nor did he provide specific legitimate reasons for rejecting th[eir] opinion[s].” (Dkt. 17 at 6, 8).
Ordinarily, a treating physician’s opinion is entitled to controlling weight when it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2);
see also Hackett v. Barnhart, 395 F.3d at 1173-74 (citing Watkins v. Barnhart, 350 F.3d 1297,
1300-01 (10th Cir. 2003)). If the ALJ discounts or rejects a treating physician opinion, he is
required to explain his reasoning for so doing. See Frey v. Bowen, 816 F.2d 508, 513 (10th Cir.
1987) (stating that an ALJ must give specific, legitimate reasons for disregarding a treating
physician’s opinion); Thomas v. Barnhart, 147 F. App’x 755, 760 (10th Cir. 2005) (holding that
an ALJ must give “adequate reasons” for rejecting an examining physician’s opinion and adopting
a non-examining physician’s opinion).
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The analysis of a treating physician’s opinion is sequential. First, the ALJ must determine
whether the opinion qualifies for “controlling weight,” by determining whether it is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and whether it is consistent
with the other substantial evidence in the administrative record. Watkins, 350 F.3d at 1300. If the
answer is “no” to the first part of the inquiry, then the analysis is complete. If the ALJ finds that
the opinion is well-supported, he must then confirm that the opinion is consistent with other
substantial evidence in the record. Id. “[I]f the opinion is deficient in either of these respects, then
it is not entitled to controlling weight.” Id. (emphasis added).
Plaintiff only argues that the ALJ failed to consider whether the Physical Medical Source
Statements of Dr. Okada and Dr. Karpman are well-supported by medically acceptable clinical
and laboratory diagnostic techniques. In this respect, plaintiff is correct. The ALJ does not address
this factor in his decision. However, plaintiff does not assert that the ALJ improperly concluded
that the Physical Medical Source Statements are inconsistent with other substantial evidence in the
record. Since the failure of a treating physician opinion to satisfy either factor means that the
opinion is not entitled to controlling weight, an ALJ need only consider one if the factor the ALJ
considers is deficient. Thus, once an ALJ makes the determination that the opinions of a treating
physician are inconsistent with other substantial evidence in the record, those opinions are not
entitled to controlling weight, irrespective of whether they are well-supported by acceptable
clinical and laboratory diagnostic techniques. That is precisely what occurred here.1
Even had plaintiff made this argument, it would not have been persuasive. The Court has
reviewed this aspect of the ALJ’s decision and determined that the ALJ did not err in determining
that there is substantial evidence in the record which is inconsistent with the Physical Medical
Source Statements of plaintiff’s treating physicians.
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However, even if the ALJ finds the treating physician’s opinion is not well-supported by
medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other
substantial evidence in the record, treating physician opinions are still entitled to deference and
must be evaluated in reference to the factors enumerated in 20 C.F.R. § 404.1527. Those factors
are as follows:
(1) the length of the treating relationship and the frequency of examination, (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed, (3) the degree to
which the physician’s opinion is supported by relevant evidence, (4) consistency
between the opinion and the record as a whole, (5) whether or not the physician
is a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.
Watkins, 350 F.3d at 1301 (citing Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001)).
The ALJ must give good reasons in his decision for the weight he ultimately assigns the opinion.
Id. (citing 20 C.F.R. § 404.1527(d)(2)). The reasons must be of sufficient specificity to make clear
to any subsequent reviewers the weight the adjudicator gave to the treating physician’s opinion
and the reasons for that weight. See Andersen v. Astrue, 319 F. App’x 712, 717 (10th Cir. 2009)
(unpublished).2
The ALJ gave the Physical Medical Source Statements of Dr. Okada and Dr. Karpman
“little weight,”
I give little weight to the Physical Medical Source Statements completed by Dr.
Okada on February 27, 2013, and Dr. Karpman on March 19, 2013. (Exhibit
33F/35F), as Mr. Glasby’s actual activities demonstrate his ability to work more
than set forth in their Physical Medical Source Statements and, as previously
stated, their statements appear to be inconsistent with their own treatment notes.
In fact, when seen at St. Francis Hospital on June 14, 2011, Mr. Glasby’s heart
medications were adjusted and Mr. Glasby admitted he had “not seen his
cardiologist in around two years.” At that time, the physician stated, Mr. Glasby
has been noncompliant with taking his medications and seeing his physicians, as
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10th Cir. R. 32.1 provides that “[u]npublished opinions are not precedential, but may be cited for
their persuasive value.”
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an outpatient. (Exhibit 3F, pages 3-8). Also, as previously stated, when seen by
Dr. Okada on July 25, 2011, he noted medical noncompliance, stating Mr.
Glasby has “stopped medication, been a no show, and has not had his device
checked.” (Exhibit 6F, pages 3-6).
(R. 169).3 These reasons are certainly specific enough “to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating physician’s opinion and the reasons for that weight.”
Andersen, 319 F. App’x at 717. In addition, earlier in his decision, the ALJ thoroughly reviewed
plaintiff’s longitudinal medical history and noted a number of findings which are inconsistent with
the Physical Medical Source Statements of Dr. Okada and Dr. Karpman.
The ALJ’s analysis, however, is not entirely supported by the evidence. The ALJ relies
heavily on plaintiff’s non-compliance as proof that plaintiff was able to do more than the Medical
Source Statements indicated. (R. 169). As plaintiff points out in his initial brief, however, these
instances of non-compliance occurred prior to plaintiff’s amended disability onset date of January
1, 2012.4 (Dkt. 17; R. 151, 169).
The ALJ’s second reason for giving little weight to the Medical Source Statements was
that the opinions were inconsistent with the doctors’ treatment notes. (R. 169). Dr. Okada treated
plaintiff sporadically from June 2011 through August 2012. (R. 467-79, 538-74, 915-86). Part of
that treatment relationship occurred prior to plaintiff’s amended onset date, including a
transthoracic echocardiogram performed at St. Francis Hospital in June 2011 that showed “an
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Exhibit 3F contains the treatment notes of Dr. Christopher J. Pitcock. Those notes state, “The
patient was known to be noncompliant with taking his medications at home as well as seeing his
physicians as an outpatient. . . . The patient did admit to not seeing his cardiologist probably for
around 2 years. . . . By the time he was discharged out of the hospital, he was in normal sinus
rhythm. He had no active chest pain or shortness of breath. His weakness was improving as he
ambulated around the halls with physical therapy. He was tolerating his new medications relatively
well.” (R. 469-70). Exhibit 6F contains treatment notes from Dr. Okada, “Medical non compliance.
He has stopped medication, been a no show, and has not had his device checked.” (R. 542).
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The hearing transcript indicates that plaintiff amended his onset date to November 1, 2011. (R.
180). However, for purposes of the analysis, this error in the onset date is not dispositive.
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ejection fraction calculated to be around 20 to 25%.” (R. 469). That test was provided to Dr. Okada,
who saw plaintiff for follow-up treatment in July 2011. (R. 470, 538-43). At the July 2011
appointment, Dr. Okada noted that plaintiff was non-compliant because he had “stopped
medication, been a no show, and has not had his device checked.” (R. 542). Dr. Okada modified
plaintiff’s medication and scheduled him for a three-month check of his Implantable Cardioverter
Defibrillator (“pacemaker”). (R. 541). Plaintiff kept that appointment in September 2011. (R. 54467). Thereafter, plaintiff had his pacemaker checked in March 2012 and then returned to see Dr.
Okada in July 2012. (R. 915-86). Thereafter, plaintiff had an electrocardiogram test and limited
echocardiogram in August 2012 with Dr. Okada. (R. 937, 940-42). The electrocardiogram was
abnormal (R. 937), but the limited echocardiogram revealed an ejection fraction of 50%, which
indicated “low normal” function of the left ventricle. (R. 940). Plaintiff last saw Dr. Okada for a
pacemaker check in October 2012. (R. 915).
Dr. Okada then completed his Medical Source Statement in February 2013. (R. 1004-05).
In it, Dr. Okada relied only on the June 2011 echocardiogram which showed ejection fraction of
20-25%. (R. 1005). Dr. Okada did not reference the results of the multiple pacemaker checks or
the limited echocardiogram from August 2012 which showed an ejection fraction of 50%.
Accordingly, the ALJ finding that Dr. Okada’s Medical Source Statement was inconsistent with
his treatment notes is supported by substantial evidence.
Plaintiff subsequently sought treatment at OSU Physicians beginning January 2013 after
being hospitalized with leg pain in December 2012. (R. 995, 997-1003). At that time, Dr. Karpman
became plaintiff’s cardiologist. (R. 1014). In January 2013, Dr. Karpman examined plaintiff and
determined that his “ejection fraction is 35% or less” but plaintiff showed “[n]o congestive heart
failure manifestations.” (R. 1020). Dr. Karpman wanted to perform another echocardiogram, but
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plaintiff did not “want to pay for it.” Id. Dr. Karpman opined that plaintiff’s “[l]ong term prognosis
[was] poor” and stated that he would eventually refer plaintiff to Oklahoma City for a heart
transplant evaluation. Id.
In February 2013, plaintiff reported that his complaints of daily dizziness and chest pain
remained unchanged, but he was experiencing shortness of breath as a new symptom. (R. 1006).
At the time of the examination, plaintiff was not experiencing dizziness, chest pain or shortness of
breath. (R. 1007-09). The examination also revealed no signs of edema. (R. 1008). The following
month, however, plaintiff stated that his health had declined significantly. (R. 1014). He reported
shortness of breath after walking 10-15 feet and feeling that his legs were “shaky.” Id. Plaintiff’s
examination was positive for chest pain, edema, and joint pain. (R. 1015). Dr. Karpman also
detected “II/VI systolic ejection murmur heard at the base” when listening to plaintiff’s heart. Id.
He concluded that plaintiff’s “ejection fraction is 35% or less” and that plaintiff’s condition was
worsening. (R. 1016). Plaintiff again refused an echocardiogram or additional testing because he
could not afford it. Id. Because plaintiff was unable to tolerate Lasix, Dr. Karpman could not
increase plaintiff’s medication to control his symptoms. Id. At that time, Dr. Karpman concluded
that it was necessary to refer plaintiff to Oklahoma City for a heart transplant evaluation. Id. Dr.
Karpman completed the Medical Source Statement at this time. (R. 1012-13).
Unlike Dr. Okada’s treatment notes, which show relative stability of plaintiff’s congestive
heart failure, Dr. Karpman’s treatment notes indicate a rapid and steep decline in plaintiff’s health
between January and March 2013. Therefore, the ALJ’s finding that Dr. Karpman’s treatment
notes are inconsistent with his Medical Source Statement is not supported by substantial evidence.
Overall, the ALJ’s analysis of the medical evidence is proper, and it is apparent that
plaintiff was able to manage his heart conditions – congestive heart failure, atrial fibrillation, and
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hypertension – for most of the relevant time period. However, the ALJ’s analysis appears to
conflate these different heart conditions and does not take into account plaintiff’s deteriorating
condition beginning in early 2013. This is not a case in which a treating physician treats a chronic
condition conservatively and then submits a medical source statement outlining limitations far in
excess of what is reasonable in light of that conservative treatment. Instead, the medical records
present a longitudinal view of plaintiff’s health. The increase in symptoms is consistent with the
progressive nature of his diagnosis, and for that reason, the Court cannot conclude that the ALJ’s
analysis of Dr. Karpman’s opinion is consistent with the medical evidence or, more importantly,
supported by substantial evidence. The ALJ’s error in this case appears to be a failure to recognize
the decline, so while the Court agrees that plaintiff was not disabled on his alleged onset date, it
appears that he may have become disabled or at least more limited in his RFC in the months just
before the ALJ held a hearing and issued a decision.
CONCLUSION
Accordingly, the ALJ’s decision finding plaintiff not disabled is hereby REVERSED
AND REMANDED for additional proceedings. On remand, the ALJ should re-evaluate Dr.
Karpman’s opinion to determine whether plaintiff retained the RFC to perform a limited range of
sedentary work or whether his worsening symptoms eliminated his ability to perform competitive
work at some point during the relevant time period.
Additionally, because the Court finds that the ALJ correctly evaluated the evidence for
most of the relevant time period and that a reasonable advocate could view the ALJ’s analysis of
even Dr. Karpman’s opinion as supported by substantial evidence, the Court also finds that the
Commissioner’s position in defending the ALJ’s decision was substantially justified.
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SO ORDERED this 30th day of September, 2016.
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