Perosi v. Astrue
Filing
24
MEMORANDUM OPINION and ORDER The decision of the Commissioner is reversed and the cause is remanded for further proceedings consistent with this Memorandum Opinion and Order.. Signed by Magistrate Judge Valerie K. Couch on 6/10/2011. (sr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
VICKIE PEROSI,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No. CIV-10-590-CH
MEMORANDUM OPINION AND ORDER
Plaintiff appears in this matter as the substituted party for her deceased husband,
Robert D. Perosi. Plaintiff seeks judicial review of a denial of disability insurance benefits
(DIB) by the Social Security Administration. Pursuant to 28 U.S.C. § 636(c), the parties
have consented to the exercise of jurisdiction over this matter by a United States Magistrate
Judge. Based on the Court’s review of the record and issues presented, the Court reverses
the Commissioner’s decision and remands this case for further administrative proceedings
consistent with this Memorandum Opinion and Order.
I.
Procedural Background
Mr. Perosi filed applications for DIB and supplemental security income (SSI) in
October 2004, alleging a disability onset date of April 1, 1999. See Administrative Record
[Doc. #13] (AR) 72-74. The Social Security Administration denied his applications initially
and on reconsideration. AR 43-44. On September 6, 2007, an Administrative Law Judge
(ALJ) conducted an administrative hearing. On October 2, 2007, the ALJ issued an
unfavorable decision. AR 26-34. Thereafter, on August 19, 2009, Mr. Perosi died. AR 12.
On April 1, 2010, the Appeals Council denied Mr. Perosi’s request for review and dismissed
his claim for SSI. AR 2-8. This appeal followed.
II.
The ALJ’s Decision
The ALJ followed the sequential evaluation process required by agency regulations.
See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§ 404.1520;
416.920. The ALJ first determined that Mr. Perosi had not engaged in substantial gainful
activity since the alleged onset date. AR 28. At step two, the ALJ determined that Mr.
Perosi has the following severe impairment: degenerative disc disease. AR 28. At step three,
the ALJ found that Mr. Perosi’s impairment does not meet or medically equal any of the
impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 30.
The ALJ next determined Mr. Perosi’s residual functional capacity (RFC) finding he
had the capacity to perform the full range of medium work. AR 30. At step four, the ALJ
concluded that Mr. Perosi can perform his past relevant work as a machinist, maintenance
mechanic, and welder’s helper. AR 33. The ALJ made an alternative finding at step five that
Mr. Perosi could perform other work, to the extent the full range of medium work “has been
impeded by additional limitations” and that this other work exists in significant numbers in
the national economy. AR 33-34. The ALJ concluded, therefore, that Mr. Perosi is not
disabled.
2
III.
Standard of Review
Judicial review of the Commissioner’s final decision is limited to determining whether
the factual findings are supported by substantial evidence in the record as a whole and
whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169
(10th Cir. 2009). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir.
2003) (quotation omitted).
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. Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). The court
“meticulously examine[s] the record as a whole, including anything that may undercut or
detract from the [administrative law judge’s] findings in order to determine if the
substantiality test has been met.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)
(citations omitted). While the court considers whether the ALJ followed the applicable rules
of law in weighing particular types of evidence in disability cases, the court does not reweigh
the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue,
511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
IV.
Claims Raised on Appeal
Plaintiff raises two claims on appeal: (1) the ALJ erred as a matter of law in failing
to properly evaluate the medical opinion evidence; and (2) the ALJ’s RFC determination is
legally flawed and not supported by substantial evidence.
3
V.
Analysis
A.
Claim One: The ALJ’s Evaluation of the Medical Opinion Evidence
As her first claim of error, Plaintiff contends the ALJ failed to properly evaluate the
medical opinion evidence. Specifically, Plaintiff contends the ALJ did not address the
opinions of two state agency consultants, Dr. Swink and Dr. Shadid, regarding Mr. Perosi’s
mental limitations and further the ALJ did not address the opinion of the medical expert, Dr.
Krishnamurthi, regarding Mr. Perosi’s physical limitations.
As a preliminary matter, however, Plaintiff contends any attempt by the Appeals
Council to negate the ALJ’s errors is of no legal consequence.1 Plaintiff is correct. When
1
The Appeals Council made the following statement in denying Mr. Perosi’s request for
review:
In looking at your case, we considered the reasons you disagree with the decision.
We found that this information does not provide a basis for changing the
Administrative Law Judge’s decision.
The decision adequately addressed Dr. Meyers’ opinion. Dr. Swink provided the
residual functional capacity at Part III and not Part II as noted by counsel. The
medical expert’s (ME) evaluation occurred in 2007 which was after the deceased’s
date last insured (DLI). The ME referred to certain impairments prior to the DLI but
they were considered by the state agency in their assessment that covered the period
through the DLI and was supported by extensive rationale that was missing from the
ME report. Therefore, it was appropriate for the decision to assign more weight to
the state agency.
The Council notes that the ME limited the deceased to a range of sedentary work.
Such assessment does not necessarily lead to a conclusion for disability for the
period through the DLI. At the time of the DLI, the deceased was still considered
in the younger person age category. Even if limited to sedentary work, medical
vocational rule 201.28 provides a framework for decision making that the deceased
was not disabled. In any event, the ME opinion is not supported for the period
(continued...)
4
a claimant seeks review by the Appeals Council, the Council first must either grant or deny
review. If the Appeals Council denies review, the denial renders final the decision of the
ALJ. See 20 C.F.R. §§ 404.981; see also Sims v. Apfel, 530 U.S. 103, 107 (2000) (“[I]f, as
here, the Council denies the request for review, the ALJ’s opinion becomes the final
decision.”). As the Seventh Circuit explained in Damato v. Sullivan, 945 F.2d 982 (7th Cir.
1991):
When the Appeals Council denies review in accordance with its discretion
under 20 C.F.R. § 416.1467, the rationale for requiring articulation of its
reasoning is absent, since the denial is not subject to judicial review – if the
Appeals Council denies a request for review, the ALJ’s decision becomes the
final decision of the Secretary . . . , and judicial review is available only for
final decisions of the Secretary.
Id. at 988 (citations omitted). See also Bowles v. Barnhart 392 F.Supp.2d 738, 742
(W.D.Va. 2005) (“It is the decision of the ALJ, and not the procedural decision of the
Appeals Council to deny review, that is subject to judicial scrutiny.”) (citing 20 C.F.R.
§§ 404.967-981, 416.1467-1481 (2004)). The Court’s review, therefore, is limited to the
reasons set forth in the ALJ’s administrative decision, not any additional rationale supplied
in the Appeals Council’s denial of Mr. Perosi’s request for review.
Turning now to the ALJ’s decision and his treatment of the medical opinion evidence,
the Court finds a remand is required. It is well-established under the Commissioner’s
1
(...continued)
through the DLI, including the evidence regarding hepatitis and cervical disc
degeneration as discussed in the decision.
AR 3.
5
regulations that every medical opinion in the record must be evaluated. Salazar v. Barnhart,
468 F.3d 615, 625-626 (10th Cir. 2006); 20 C.F.R. §§ 404.1527(d), 416.927(d) (“Regardless
of its source, we will evaluate every medical opinion we receive.”). Moreover, unless the
opinion of a treating physician is given controlling weight, the ALJ must consider several
factors in deciding the weight that should be given to any medical opinion. See id.
The ALJ considered the opinion of Mr. Perosi’s treating physician, Dr. Myers, and
expressly found “it cannot be given controlling weight because it is in conflict with Dr.
Myers’ own treatment records and inconsistent with the other substantial evidence as noted
above.” AR 32. Because the ALJ did not give Dr. Myers’ opinion controlling weight, he
was required to evaluate the other medical opinions in the record and consider the following
factors in determining what weight to afford these opinions: “(1) the examining relationship;
(2) the treatment relationship; (3) the length of the treatment relationship and the frequency
of examinations; (4) the nature and extent of the treatment relationship: (5) how well the
opinion is supported; (6) its consistency with other evidence; and (7) whether the opinion is
from a specialist.” Salazar, 468 F.3d at 626 (citing 20 C.F.R. § 416.927(d)(1) - (6)); Hamlin
v. Barnhart, 365 F. 3d 1208, 1215 (10th Cir. 2004)). For the reasons discussed below, the
ALJ failed to properly evaluate the opinions of Dr. Swink, Dr. Shadid and Dr. Krishnamurthi,
requiring a remand. In making this determination the Court rejects the Commissioner’s posthoc justifications for the ALJ’s inadequate analysis. See Robinson v. Barnhart, 366 F.3d
1078, 1084 (10th Cir. 2004) (the decision of the ALJ is “evaluated based solely on the reasons
stated in the decision,” without engaging in a post-hoc effort to salvage it); see also Grogan
6
v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005) (“[T]he district court may not create posthoc rationalizations to explain the Commissioner’s treatment of evidence when that treatment
is not apparent from the Commissioner’s decision itself.”).
1.
Consultative Examiner Dr. Swink
In April 2007, Richard Swink, Ph.D., performed psychological testing of Mr. Perosi.
AR 171-174. Dr. Swink reached the following conclusions from that testing:
In conclusion, Mr. Persi [sic] responded appropriately to this
examination, other than in terms of appearing fatigued, forlorn, and physically
haggard from his physical conditions, and indications of malingering. He was
able to think logically, focus attention and carry out basic instructions. He
evidences low average intellectual ability and similarly developed academic
skills. His response to self-report inventories gives a malingering profile,
although he is being treated for anxiety and depression. History is strong for
anti-social behavior, and polysubstance addiction in alledged [sic] sustained
long-term remission. His MMPI-2 is invalid with strong indications of
malingering.
AR 174. Dr. Swink then provided the following diagnostic impression: antisocial personality
disorder; polysubstance dependence, alleged sustained full remission; and rule out
malingering. Id. He further concluded that Mr. Perosi’s “conditions appear chronic, and
likely to continue for the next 12 months.” Id.
Dr. Swink also completed a form checklist and found Mr. Perosi moderately limited
in the ability to perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances. AR 176. In addition, he found Mr. Perosi moderately
limited in the ability to complete a normal workday and workweek without interruptions
7
from psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods. Id.
The ALJ makes two references to Dr. Swink’s opinion. First, as part of the findings
at step two of the sequential evaluation process, the ALJ concluded Mr. Perosi’s depression
“is mild and would have only a minimal affect [sic] on his ability to perform substantial
gainful activity.” AR 29. In support of this finding, the ALJ referenced Dr. Swink’s testing
and concluded that testing “showed the claimant was malingering with extreme exaggeration
of psychopathology.” AR 29. The ALJ next references Dr. Swink’s opinion in the context
of making his RFC determination. There, the ALJ essentially repeats his finding at step two
when he states: “Testing on April 23, 2007, showed the claimant was malingering with
extreme exaggeration of psychopathology.” AR 32.
However, in relying exclusively on Dr. Swink’s statements about malingering (which,
it is important to note, Dr. Swink opined was a rule out diagnosis, see AR 174), the ALJ did
not address other aspects of Dr. Swink’s opinion. Significantly, as Plaintiff contends, even
with the evidence of malingering, Dr. Swink opined Mr. Perosi had moderate limitations in
certain mental functional areas. The ALJ did not address this evidence at all. And, the ALJ
did not include any mental functional limitations in the RFC but found Plaintiff could
perform the full range of medium work. AR 30.
The ALJ erred in addressing only certain aspects of Dr. Swink’s opinion. “The ALJ
is not entitled to pick and choose from a medical opinion, using only those parts that are
favorable to a finding of nondisability.” Robinson v. Barnhart, 366 F.3d at 1083. While the
8
ALJ cited Dr. Swink’s statements about Mr. Perosi’s malingering, he did not put those
statements in context, nor did he specify what weight he was providing Dr. Swink’s opinion.
The ALJ’s failure to fully and properly discuss Dr. Swink’s opinion requires a remand.
2.
Consultative Examiner Dr. Shadid
In December 2005, consultative examiner Tom F. Shadid, Ph.D., completed a mental
residual functional capacity assessment. AR 188-190. Dr. Shadid opined Mr. Perosi was
moderately limited in his ability to carry out detailed instructions and the ability to interact
appropriately with the general public. AR 188, 189.
The ALJ’s opinion contains no
reference to Dr. Shadid’s opinion. The Commissioner provides a litany of reasons why Dr.
Shadid’s opinion was not entitled to any weight. As set forth above, such post-hoc rationale
is prohibited. The weight, if any, to be given Dr. Shadid’s opinion is a determination the ALJ
must make with specific rationale supporting that determination. On remand, the ALJ must
properly address Dr. Shadid’s opinion.
3.
Medical Expert Dr. Krishnamurthi
In January 2007, Dr. Krishnamurthi provided an expert opinion and completed a
Physical Medical Source Statement. AR 165-170. Dr. Krishnamurthi opined that in an 8hour workday, Mr. Perosi can sit 1 hour at a time, stand 10-30 minutes and walk 10-30
minutes. He further opined Mr. Perosi can sit a total of 6 hours in an 8-hour workday, stand
1 hour and walk 1 hour. AR 168. In addition, Mr. Perosi could never lift or carry more than
10 pounds. Id. Dr. Krishnamurthi further opined Mr. Perosi could occasionally bend, squat,
9
crawl, climb and reach. AR 169. Dr. Krishnamurthi cited objective medical evidence in
support of his findings. AR 169-170.
The ALJ’s opinion contains no reference to Dr. Krishnamurthi’s opinion. The
functional limitations found by Dr. Krishnamurthi’s are at odds with the ALJ’s RFC
determination that Mr. Perosi can perform the full range of medium work.2 Although the
Commissioner argues that Dr. Krishnamurthi’s opinions are not entitled to any weight, that
determination must be made, in the first instance, by the ALJ. The post-hoc justifications
offered by the Commissioner, therefore, are rejected. On remand, the ALJ must conduct a
proper analysis which provides specific reasons for the weight, if any, provided to Dr.
Krishnamurthi’s opinion.
B.
Claim Two: The ALJ’s RFC Determination
As her second claim of error, Plaintiff contends the ALJ’s RFC determination is
legally flawed and not supported by substantial evidence. Specifically, Plaintiff claims the
RFC should have included mental and physical limitations as supported by the evidentiary
record and specifically references the medical opinions of the physicians set forth above.
In light of the recommended disposition of the issues raised in Plaintiff’s first claim
for relief, the Court will not consider Plaintiff’s additional challenge to the ALJ’s RFC
assessment as raised in claim two. The ALJ’s RFC determination may be affected by the
2
See 20 C.F.R. §§ 404.1567(c), 416.967(c); see also Soc. Sec. Rul. 83-10, 1983 WL 31251
at *6.
10
ALJ’s treatment of the medical opinions on remand. See Watkins v. Barnhart, 350 F.3d
1297, 1299 (10th Cir. 2003).
VI.
Conclusion
The decision of the Commissioner is reversed and the cause is remanded for further
proceedings consistent with this Memorandum Opinion and Order.
ENTERED this
10th day of June, 2011.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?