Pitts v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge Jodi F Jayne reversing and, remanding case (terminates case) (sdc, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
MARILYN P.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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Case No. 17-CV-635-JFJ
OPINION AND ORDER
Plaintiff Marilyn P. seeks judicial review of the decision of the Commissioner of the Social
Security Administration denying her claims for disability insurance benefits under Titles II and
XVI of the Social Security Act 9 (“Act”), 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.
For reasons explained below, the Court reverses the Commissioner’s decision denying
benefits and remands for further proceedings. Any appeal of this decision will be directly to the
Tenth Circuit Court of Appeals.
I.
Standard of Review
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner 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 mere scintilla and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (citing Glass v. Shalala, 43 F.3d 1392, 1395 (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) (quotations omitted). The Court must “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.” Grogan, 399 F.3d at 1261
(citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). The Court may neither reweigh 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, the Commissioner’s decision stands so long as it is supported by substantial evidence.
See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).
II.
Procedural History and the ALJ’s Decision
Plaintiff, then a 52-year-old female, applied for Title II benefits on August 26, 2014, and
applied for Title XVI benefits on November 4, 2015, alleging a disability onset date in both
applications of April 16, 2014. R. 280. Plaintiff claimed that she was unable to work due to
disorders including a heart attack, neck problems, and back disc problems. R. 471. Plaintiff’s
claims for benefits were denied initially on May 27, 2015, and on reconsideration on September
25, 2015. R. 358-362; 364-366. Plaintiff then requested a hearing before an Administrative Law
Judge (“ALJ”), and the ALJ conducted the hearing on August 16, 2016. R. 280, 298-325. The
ALJ issued a decision on November 10, 2016, denying benefits and finding Plaintiff not disabled
because she was able to perform her past relevant work. R. 280-291. The Appeals Council denied
review, and Plaintiff appealed. R. 1-6; ECF No. 2.
The ALJ found that Plaintiff met the insured status requirements of the Act through
December 31, 2017, and that she had not engaged in substantial gainful activity since her alleged
onset date of April 16, 2014. R. 282. The ALJ found that Plaintiff had the following severe
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impairments: cerebrovascular accident/myocardial infarction with three stents; degenerative disc
disease; asthma; obesity; general anxiety disorder; and major depressive disorder. Id. At step
three, the ALJ found that Plaintiff did not have an impairment or combination of impairments of
such severity to result in listing-level impairments. R. 283-284.
The ALJ summarized Plaintiff’s testimony as follows: Plaintiff said she cannot work due
to problems stemming from a heart attack, neck problems, and back disc problems. These
problems combined with medication side effects interfere with her ability to stand, walk, sit, lift,
perform postural movements, concentrate, and complete tasks. She experiences occasional chest
pains, angina, shortness of breath, and fatigue from her heart condition. Plaintiff stated that she
has asthma and treats it with a nebulizer, but that exercise, anxiety, and exposure to environmental
irritants exacerbates her condition. She uses a cane when walking, can lift four pounds, walk
approximately five minutes with her cane, sit for ten minutes, and stand for ten minutes. Plaintiff
said pain interferes with her sleep, requires her to lie down sixty percent of the day, and interferes
with her ability to concentrate. R. 285-286, 302-321.
With respect to the objective medical evidence, the ALJ first summarized Plaintiff’s
hospitalizations in April and September of 2014. On both occasions, Plaintiff reported chest pains
and underwent heart catheterizations and the placement of stents. The ALJ further discussed
emergency room records dated June 16, 2015, which revealed Plaintiff presented with complaints
of retrosternal tightness with nausea, sweating, and shortness of breath without palpitations,
dizziness, or weakness. Id. Nitroglycerin tablets and a dose of Ativan completely relieved
Plaintiff’s symptoms, and an EKG showed normal sinus rhythm. Id. The ALJ noted that the
remainder of Plaintiff’s cardiology examinations showed “benign results.” Id. The ALJ also
discussed Plaintiff’s reports of chronic back pain, in the spring of 2016, to Plaintiff’s treating
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physician Martin Cooper, M.D. Dr. Cooper examined Plaintiff and found trace edema, and
decreased range of motion in her lumbar spine with pain. R. 287, 944, 947.
With respect to the medical opinion evidence, the ALJ gave great weight “with one
exception” to the opinion of Plaintiff’s cardiologist, Anthony Haney, M.D. R. 287-288, see 923925.1 The ALJ gave little weight to Dr. Cooper’s opinion, which imposed more severe physical
and mental limitations than Dr. Haney’s, explaining it was inconsistent with Dr. Haney’s opinion,
and that Dr. Haney’s was “more consistent with the medical record.” R. 288. The ALJ assigned
no weight to the opinion of Plaintiff’s chiropractor, Colin Quigley, D.C., because it was
inconsistent with the record and Dr. Haney’s opinion. Id. The ALJ also gave great weight to the
opinion of consultative examiner David Wiegman, M.D., who found mostly normal range of
motion with “slightly decreased flexion, extension and rotation of [Plaintiff’s] cervical spine.” Id.
The ALJ contrasted Dr. Wiegman’s opinion with others finding a need for substantial time off task
and listed Dr. Wiegman’s opinion as further evidence to discount the opinions of Dr. Cooper and
Mr. Quigley. Id. The ALJ also afforded great weight to the state agency medical consultant
opinions, who made similar findings to Dr. Haney. R. 289. The ALJ noted that later developed
evidence, including Dr. Haney’s opinion, allowed the ALJ to “expand upon [the agency doctors’]
opinion[s] to reference the claimant’s requirement to use a cane and the limitation to occasional
postural movements.” Id. Finally, the ALJ gave little weight to the state agency psychological
consultants’ non-severe mental findings, because they did not “have the benefit of new and
material evidence or personal examination” of Plaintiff. Id.
The ALJ concluded that Plaintiff has the RFC to perform a reduced range of light work as
follows:
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This opinion is explained in more detail below in the Court’s analysis.
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No lifting or carrying more than 20 pounds occasionally and 10 pounds frequently;
stand and walk for up to six hours and sit for up to six hours in an eight-hour work
day; occasionally climb ramps and stairs but never ladders, ropes, and scaffolds;
occasionally balance, stoop, crouch, kneel and crawl; she can perform simple and
detailed tasks; no exposure to more than a normal level of gases, fumes, dusts,
noxious odors, poor ventilation, or pulmonary irritants when normal is defined as a
setting found in a typical office or commercial building; she requires a cane when
ambulating.
R. 285. The ALJ found that Plaintiff has past relevant work as an administrative clerk (light
exertion; semi-skilled; SVP 4; DOT 219.362-010). R. 290. Based on the testimony of a vocational
expert (“VE”), the ALJ found at step four that Plaintiff could perform her past relevant work as an
administrative clerk as generally performed and as she actually performed it. Id. The ALJ made
no alternative step five findings. Accordingly, the ALJ concluded Plaintiff was not disabled at any
time from April 16, 2014, the alleged onset date, through the date of his decision. R. 290-291.
III.
Issues and Analysis
Plaintiff raises two points of error on appeal: (1) the ALJ “erred by failing to include any
mental limitations in the RFC after finding [Plaintiff] to suffer severe mental impairments;” and
(2) the ALJ “erred by failing to include all of the limitations from an opinion the ALJ found to
deserve great weight.” ECF No. 23 at 7. The Court reverses based on the second allegation of
error and does not reach the first allegation of error.
A.
Relevant Law
While an ALJ is not required to discuss every piece of evidence in the record, he “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 (10th Cir.1996). Based on this
general principle, the Tenth Circuit has held that an ALJ’s failure to explain the reasons for
accepting certain restrictions or limitations in a medical opinion regarding the claimant’s RFC,
while rejecting others, constitutes error. Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)
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(holding that ALJ “should have explained why he rejected four of the moderate restrictions on
[treating doctor’s] RFC assessment while appearing to adopt the others”); see also Chapo v.
Astrue, 682 F.3d 1285, 1291–92 (10th Cir. 2012) (explaining that ALJ’s acceptance of one and
rejection of other restrictions in medical opinion “with no explanation at all as to why one part of
his opinion was creditable and the rest was not” is “error under this circuit’s case law”). Courts
have frequently remanded where an ALJ affords “great weight” to a medical opinion and adopts
some restrictions from that opinion, but then excludes other restrictions from the same opinion
without explanation. See, e.g., Sitton v. Berryhill, No. 16-CV-601-PJC, 2018 WL 534160, at *3
(N.D. Okla. Jan. 24, 2018) (holding that ALJ “committed reversible error when he seemingly
accepted [doctor’s] opinions about Plaintiff's ability to work, but failed to include [same doctor’s]
restrictions in the RFC without providing any explanation for the omission”); Wynn v. Colvin, No.
14-CV-0436-CVE-TLW, 2015 WL 6690243, at *13 (N.D. Okla. Nov. 2, 2015) (“Although the
ALJ gave ‘great weight’ to [doctor’s] opinion, he provided no explanation in his decision for not
including in his RFC determination, the moderate limitation [same doctor] had assessed in
plaintiff’s ability to deal with normal work stress.”).
B.
ALJ’s Failure to Explain Omission of “Shift Position” Limitation from RFC
In November 2015, Dr. Haney completed a medical source statement addressing Plaintiff’s
physical limitations that existed as of November 23, 2015, the date of Plaintiff’s last visit to Dr.
Haney in the record. R. 923-925. In this assessment, Dr. Haney opined that Plaintiff would need
to elevate both legs above her heart for twenty-five percent of an eight-hour day to minimize pain
(“elevation limitation”); would be “off task” five percent of an eight-hour day (“off task
limitation”); had no restriction on sitting or standing from a cardiac standpoint, but would need to
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shift positions at will from sitting, standing, or walking (“shift position limitation”);2 would not
need additional breaks than those normally provided; could lift and carry up to ten pounds
frequently and twenty pounds occasionally; could occasionally twist, stoop, balance, crouch,
crawl, and climb; and had no limitations on her ability to reach, handle, and finger with each of
her upper extremities. R. 923-925. Dr. Haney noted that his assessment was premised upon
findings during normal cardiac examinations. R. 923.
In his decision, the ALJ gave Dr. Haney’s opinion “great weight with one exception”:
As for the opinion evidence, the undersigned gives great weight with one exception
to the opinion of Anthony Haney, M.D. Dr. Haney opined that the claimant can lift
and carry up to 20 pounds occasionally and 10 pounds frequently; occasionally
perform postural movements; requires the use of a cane to prevent imbalance;
would be off task five percent of the day; capable of moderate/normal stress work;
would miss or leave work early one day per month; and must elevate her legs above
her heart for 25 percent of an eight-hour workday (Ex 16F). Dr. Haney is a
specialist in cardiology and has an extensive treating relationship with the claimant.
While the medical record supports the postural and exertional limitations
contained in Dr. Haney’s opinion, it does not document edema to the degree alleged
nor to the point that would support the requirement that she elevate her legs (See
Ex. 19F/21). As such, the undersigned gives Dr. Haney’s opinion great weight
except for the portion regarding elevating the legs.
R. 287 (emphasis added). Thus, the ALJ purported to accept and give great weight to all aspects
of Dr. Haney’s opinion, except the elevation limitation. Yet in his RFC, the ALJ did not include
a shift position limitation, or any language that permits Plaintiff to stand, sit, or walk at will as
needed during a workday. Instead, the RFC, and corresponding hypothetical statements to the VE,
provide that Plaintiff could stand and walk for up to six hours and sit for up to six hours in an
eight-hour work day, with no mention of the need to shift positions at will. The ALJ did not
provide any explanation for this discrepancy.
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Dr. Haney’s assessment provides: “Shift Positions – Does your patient need to shift positions at
will from sitting, standing, or walking? Yes.” R. 924.
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The ALJ’s reasoning for exclusion of the shift position limitation is not clear and results in
error. The ALJ gave great weight to Dr. Haney’s opinion regarding Plaintiff’s ability to work and
her work restrictions; accepted the vast majority of Dr. Haney’s restrictions; expressly stated that
medical records supported postural and exertional limitations in Dr. Haney’s opinion; used Dr.
Haney’s opinion to discount other treating physicians’ greater work limitations; but then omitted
the shift position limitation from the RFC without explanation. While the Commissioner is correct
that an ALJ may resolve conflicts in the record, the ALJ did not identify any conflict and stated
that he accepted all but one aspect of Dr. Haney’s opinions. In these circumstances, the ALJ is
required to further explain why he excluded the shift position limitation from the RFC. See Cheeks
v. Colvin, No. 15-CV-145-PJC, 2016 WL 4154440, at *5 (N.D. Okla. Aug. 5, 2016) (remanding
where “ALJ did not identify any conflict” but in fact found medical opinion containing the omitted
limitation to be “consistent with the evidence of record”); see generally Haga, 482 F.3d at 1208
(reversing where ALJ did not expressly state or imply any explanation for omission of certain
restrictions, where ALJ accepted other restrictions from same medical opinion). Contrary to the
Commissioner’s argument, the ALJ did not provide “good reasons” for omitting the shift position
limitation. See ECF No. 25 at 6. In fact, the ALJ’s discussion reveals that he did not explain this
exclusion in any manner and appeared to adopt the whole of Dr. Haney’s opinion save the elevation
limitation. It therefore “remains unexplained why the ALJ adopted some of [Dr. Haney’s]
restrictions but not others.” See Haga, 482 F.3d at 1208.
The Commissioner attempts to offer justifications from the record supporting exclusion of
the shift position limitation, including that Dr. Haney is not an orthopedic specialist and that other
doctors made findings of “primarily normal spinal ranges of motion and a normal gait” and a
“finding of the absence of back tenderness.” ECF No. 25 at 7 (citing records of Dr. Wiegman and
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Dr. Cooper). These constitute post-hoc rationales and justifications that are not clear from the
ALJ’s decision. Further, the ALJ pointed to Dr. Haney’s opinion to discredit Plaintiff’s other
treating physicians, including Dr. Cooper, and to bolster the opinions of the agency physicians.
See R. 288-289. The explanations offered by the Commissioner not only are post-hoc justifications
but also are arguably contrary to the ALJ’s stated level of acceptance and overall treatment of Dr.
Haney’s opinion. Therefore, the Commissioner’s arguments in support of omission of the shift
position limitation must fail. See Haga, 482 F.3d at 1207 (rejecting government’s attempt to
“supply some reasons that it believes would support” the ALJ’s omission of restrictions, where
others restrictions from the same medical opinion were accepted).
Finally, as Plaintiff points out, the ALJ’s error is not harmless. Harmless error doctrine
applies only in the “exceptional circumstance” where the court could confidently say that no
reasonable administrative factfinder could have resolved the factual matter in any other way. Allen
v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). To the extent any harmless-error determination
“rests on legal or evidentiary matters not considered by the ALJ, it risks violating the general rule
against post hoc justification of administrative action.” Id. Here, Dr. Haney’s opinion reflects a
shift position limitation beyond that contained in the RFC. If the ALJ were to include such
limitation, Plaintiff’s past relevant work of Administrative Clerk relied upon by the ALJ at step
four would likely be precluded. The job of Administrative Clerk, according to the DOT, requires
frequent sitting. See DOT 219.362-010, Administrative Clerk. This is at least arguably contrary
to Dr. Haney’s opinion that Plaintiff would need to alternate her postural position at will.
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IV.
Conclusion
For the foregoing reasons, the ALJ’s decision finding Plaintiff not disabled is REVERSED
and REMANDED for proceedings consistent with this Opinion and Order and so that the ALJ
can explain the evidentiary support for his RFC determination.3
SO ORDERED this 28th day of March, 2019.
J D F J Y E MA IT A EJ D E
O I .A N , G S R T U G
U IE S A E D S R C C U T
N T D T T S IT I T O R
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In the second allegation of error, Plaintiff focuses on the ALJ’s omission of the shift position
limitation; that unexplained omission is the precise ground for reversal. On remand, the ALJ may
also explain whether Dr. Haney’s off task limitation is incorporated into and consistent with the
RFC and, if not, provide an explanation for omission of this limitation.
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