Greenwalt v. Commissioner of Social Security

Filing 28

MEMORANDUM OPINION AND ORDER -- Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge REVERSES the Commissioner's decision and REMANDS the matter for further administrative development. Signed by Magistrate Judge Shon T. Erwin on 2/9/16. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KENNETH GALEN GREENWALT,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. CIV-14-1177-STE

MEMORANDUM OPINION AND ORDER
Kenneth Greenwalt brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of the Social Security Administration
denying Plaintiff’s application for disability insurance benefits under the Social Security
Act. The Commissioner has answered and filed a transcript of the administrative record
(hereinafter TR. ____). The parties have consented to jurisdiction over this matter by a
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties have briefed
their positions, and the matter is now at issue. Based on the Court’s review of the
record and the issues presented, the Court REVERSES the Commissioner’s decision
and REMANDS the matter for further administrative proceedings.
I.

PROCEDURAL BACKGROUND
Plaintiff’s application for disability insurance benefits was denied initially and on

reconsideration. Following a hearing, an Administrative Law Judge (ALJ) issued an
unfavorable decision. (TR. 22-28). The Appeals Council denied Plaintiff’s request for

review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the
Commissioner.
II.

THE ADMINISTRATIVE DECISION
The ALJ followed the five-step 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. At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since October 31, 2010, the alleged disability onset date.
(TR. 24). At step two, the ALJ determined that Plaintiff had severe impairments of
coronary artery disease, status post coronary artery bypass graft, high blood pressure,
obstructive sleep apnea, left knee arthritis, and obesity. (TR. 24). At step three, the ALJ
found that Plaintiff’s impairments did not meet or medically equal any of the
presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1
(TR. 24).
At step four, the ALJ found Plaintiff had the residual functional capacity (RFC) to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) except lift
and carry up to 10 pounds occasionally and less than 10 pounds
frequently; sit up to 6 hours in an 8 hour workday with appropriate
breaks; stand and/or walk 2 hours in an 8 hour workday; push/pull
otherwise unlimited; no ladders, ropes or scaffolds; occasional ramps and
stairs; occasional postural activities; no manipulative limitations; avoid
concentrated exposure to heights, fumes, odors, gases, poor ventilation
and exposure to extremes of temperature.
(TR. 25).
A vocational expert (VE) consulted the Dictionary of Occupational Titles (DOT)
and testified regarding Mr. Greenwalt’s past relevant work as a personnel manager and

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education specialist. (TR. 57-62). The VE provided the DOT codes for each position and
testified that they were both considered sedentary, skilled jobs, with a specific
vocational preparation (SVP) level of 8. (TR. 60-61). The ALJ asked the VE if an
individual with the RFC restrictions could perform Mr. Greenwalt’s past work. (TR. 61).
The VE replied affirmatively, but noted that the hypothetical individual could only do the
work as described in the DOT, and not as Mr. Greenwalt had actually performed the
jobs. (TR. 61). The ALJ adopted the testimony of the VE and concluded that Mr.
Greenwalt was not disabled at step four based on his ability to perform his past relevant
work. (TR. 28).
III.

ISSUES PRESENTED
On appeal, Plaintiff alleges errors in all three phases of the ALJ’s step four

analysis. The Court concludes the ALJ erred in his evaluation of a treating physician’s
opinions which affected the RFC finding at phase one of step four. Remand for further
analysis obviates the need for a discussion of Plaintiff’s remaining allegations of error at
phases two and three as they will likely be affected on remand.
IV.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final decision “to determin[e] whether the

factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quotation omitted).

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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).
V.

ERROR AT PHASE ONE STEP FOUR
At phase one of step four, the administrative law judge must evaluate the

claimant’s RFC. See Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). As alleged
by Mr. Greenwalt, the ALJ erred at this phase by improperly evaluating the opinion of
treating physician Dr. Prashant Phatek.
A.

ALJ’s Duty in Evaluating a Treating Physician’s Opinion

An ALJ must follow a two-pronged analysis in evaluating of a treating physician’s
opinion. First, the ALJ must determine whether a treating physician’s opinion is entitled to
“controlling weight.” Krausner v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). This
deference must be given if the opinion is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques” and is not “inconsistent with the other substantial
evidence in the case record.” Id.; Policy Interpretation Ruling Titles II and XVI: Giving
Controlling Weight to Treating Source Medical Opinions, 1996 WL 374188 (July 2, 1996)
(SSR 96-2p).
Second, if the ALJ declines to give the treating physician’s opinion “controlling
weight,” the ALJ must examine particular factors and explain the amount of weight
assigned. These factors include: (1) the length of the treatment relationship and the
frequency of examination; (2) the nature and extent of the treatment relationship,
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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.

Krausner v. Astrue, 638 F.3d at 1330, 20 C.F.R §§ 404.1527. Although the ALJ need not
explicitly discuss each factor, the reasons stated must be “sufficiently specific” to permit
meaningful appellate review. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.
2007); SSR 96-2p 1996 WL 374188, Westlaw op. at 5.
If the ALJ rejects the opinion completely, he must give “specific, legitimate
reasons” for doing so. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)
(internal citations omitted). An ALJ may reject a physician’s opinion outright only on the
basis of contradictory medical evidence and not due to his own credibility judgment,
speculation, or lay opinion. McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002).
B.

Dr. Phatek’s Opinions

Dr. Phatek treated Mr. Greenwalt from July 2009 through January 2013. (TR. 377473, 476-563, 581-669, 678-682). In February 2010, Dr. Phatek referred Mr. Greenwalt
for an echocardiogram based on his diagnoses of coronary artery disease, atrial
fibrillation, and congestive heart failure. (TR. 460-461). The results showed a mildly
dilated left atrium, mildly thickened aortic valve leaflets, and physiological tricuspid
regurgitation. (TR. 460-61). In August 2010, an x-ray of Plaintiff’s left knee showed an
enthesophyte, mild to moderate joint space narrowing, osteophytosis, and ossifications
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present. (TR. 469). In December 2010, a chest x-ray showed mild cardiomegaly with
mild pulmonary vascular congestion. (TR. 468).
In July 2011, Mr. Greenwalt reported that he had been experiencing shortness of
breath which became worse on exertion, and that he could only walk one-quarter mile
before resting. (TR. 456). In August 2011, Mr. Greenwalt was admitted to the hospital
due to the shortness of breath, low blood pressure, dizziness, and vertigo. (TR. 439,
442, 445, 456, 514, 515, 535, 543). At that time, Mr. Greenwalt was referred for a
walker because he needed assistance for walking over 50 feet. (TR. 413). Plaintiff
initially resisted the walker, but he eventually agreed for safety purposes, and received
the walker two months later. (TR. 412, 507). At the hearing, Plaintiff testified that he
used the walker 4-5 times a week. (TR. 50).
On January 7, 2013, Dr. Phatek authored a “Physical Residual Functional
Capacity Form” where he outlined his diagnoses and opinions regarding Mr. Greenwalt’s
specific work-related abilities. (TR. 678-82). Dr. Phatek stated that he had treated
Plaintiff for: (1) coronary artery disease, (2) status post myocardial infarction and
coronary artery bypass graft, (3) congestive heart failure, (4) atrial fibrillation, (5)
diabetes mellitus, (6) hypertension, (7) obstructive sleep apnea, (8) degenerative disc
disease in his left knee, and (9) edema with inactivity in both lower extremities. (TR.
678).
Dr. Phatek described Plaintiff’s symptoms as: (1) labored breathing after walking
50 yards, (2) infrequent dizziness, (3) chronic fatigue, (4) back pain at an “8/10” with
prolonged sitting over one hour, (5) limp with walking over 50 yards despite the use of
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a walker and knee brace, and (6) edema in both lower extremities. (TR. 678). To treat
the conditions, Dr. Phatek prescribed Lisinopril, Metoprolol, Rosuvastatin, Warfarin, and
Furosemide. (TR. 679).
Regarding work-related functional limitations relevant to the appeal, Dr. Phatek
stated that Plaintiff could: (1) only sit for 45 minutes, before breaking to walk for 5
minutes, (2) stand for only 15 minutes at a time, (3) sit and stand for only 2 hours total
during an 8-hour workday, and (4) occasionally lift and/or carry less than 10 pounds.
(TR. 680-681). The physician also stated that Plaintiff would need a job which allowed:
(1) unscheduled breaks throughout the workday, (2) an “at will” sit-stand option, and
(3) elevation of his legs for 25% of the day. (TR. 680-81). The physician also opined
that Mr. Greenwalt’s pain was so severe that it would frequently interfere with his
attention and concentration, and that Plaintiff was moderately limited in his ability to
deal with work stress. (TR. 679-680). Finally, Dr. Phatek stated that Plaintiff’s
impairments would likely cause him to miss work about twice a month. (TR. 682).
C.

Error in the Analysis of Dr. Phatek’s Opinion

As stated, the ALJ’s analysis of a treating physician’s opinion is two-fold: whether
the opinion is entitled to “controlling weight” and if not, what “lesser weight” the opinion
should be given. Krausner v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). Plaintiff does
not does not challenge the ALJ’s decision to decline “controlling weight” to Dr. Phatek’s
opinions. Thus, the issue is whether the ALJ properly accorded Dr. Phatek’s opinions
“lesser weight” and/or provided specific, legitimate reasons for rejecting any of the

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physician’s findings. The Court answers the question negatively and concludes that the
ALJ’s error warrants remand for further consideration of Dr. Phatek’s opinions.
At issue are the limitations that Dr. Phatek set forth in his Physical RFC form.
(TR. 678-682). In the decision, the ALJ acknowledged the form and gave the opinions
“limited weight” stating:
The opinions of Dr. Phatal [sic] are given limited weight because they lack
objective support and instead appear to rely on the claimant’s subjective
complaints. The claimant’s allegations, without clinical support for his
subjective complaints, are insufficient to establish his impairments and
limitations. The claimant testified that his doctor knows that he does not
feel up to working so he does not recommend the claimant work. This
statement along with opinions that are unsupported by objective findings,
including limitations on sitting, establishes that the limitations opined are
based upon the claimant’s subjective complaints. Dr. Weingarten reviewed
the opinions of Dr. Phatal [sic] and opined that the sitting restrictions are
not supported by the claimant’s examination findings. The claimant
testified he is limited in his ability to sit because it causes pain in his low
back. The claimant testified that he has been told to lose weight and MRIs
and x-rays of his back have not been recommended. This lack of testing is
inconsistent with the degree of pain and limitations the claimant attributes
to his back and that Dr. Phatal [sic] asserts limits the claimant’s ability to
sit.
(TR. 27).
The ALJ’s analysis was limited to a discussion of Dr. Phatek’s limitations on
Plaintiff’s ability to sit. (TR. 27). He omitted any discussion, however, of Dr. Phatek’s
opinions regarding Mr. Greenwalt’s standing and lifting limitations, as well as his
difficulty with attention, concentration, and work stress, the need to elevate his legs,
take unscheduled breaks, and change from sitting to standing at will. Compare TR. 27

to TR. 680-681.

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1. Sitting Limitations
Mr. Greenwalt testified that when he sits for longer than 15-20 minutes, he
experiences an increase in back pain. (TR. 47-48). This testimony correlates with Dr.
Phatek’s limitations on Plaintiff’s ability to sit. (TR. 678, 680). Plaintiff confirmed that no
back x-rays or MRIs had been ordered, but that doctors have advised him to lose
weight. (TR. 47). The ALJ discounted the opinions because: (1) according to the ALJ, at
the hearing, the medical expert stated that the sitting restrictions “[we]re not supported
by the claimant’s examination findings,” (2) the ALJ believed that the allegations of pain
were based solely on Mr. Greenwalt’s subjective allegations and (3) a lack of MRIs or xrays to support the allegations. None of the rationales are sufficient.
First, the ALJ stated that “Dr. Weingarten reviewed the opinions of Dr. Phatal
[sic] and opined that the sitting restrictions are not supported by the claimant’s
examination findings at the hearing.” (TR. 27). The ALJ may consider the opinion of a
medical expert when considering a treating physician’s opinion. 20 C.F.R. §404.1527(e).
But in the instant case, the ALJ’s decision completely misrepresented Dr. Weingarten’s
testimony. At the hearing, the following exchange occurred:
ALJ:

Fattoch [sic] indicated that he felt that, with
everything, the claimant would be unable to sit more
than two hours in an eight-hour day, and the Counsel
wants to know if you felt that that was appropriate or
reasonable.

Dr. Weingarten:

No. I don’t know why he can’t sit.

Plaintiff’s Attorney: I have no further questions for this doctor.
(TR. 46).
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According to the transcript, the medical expert did not state that Dr. Phatek’s
opinions “are not supported by the claimant’s examination findings.” Instead, he simply
stated that he did not know why the Plaintiff could not sit. The ALJ’s misrepresentation
of Dr. Weingarten’s testimony undermines his first rationale for discounting Dr. Phatek’s
opinions.
The ALJ’s second and third rationales also fail. According to the ALJ:
The claimant testified that his doctor knows that he does not feel up to
working so he does not recommend the claimant work. This statement
along with opinions that are unsupported by objective findings, including
limitations on sitting, establishes that the limitations opined are based
upon the claimant’s subjective complaints. . . . [and] [t]he claimant
testified that he has been told to lose weight and MRIs and x-rays of his
back have not been recommended. This lack of testing is inconsistent with
the degree of pain and limitations the claimant attributes to his back and
that Dr. Phatal [sic] asserts limits the claimant’s ability to sit.
(TR. 27). The ALJ discounted the sitting limitations because he believed that the
allegations of pain associated with prolonged sitting were: (1) based solely on Mr.
Greenwalt’s subjective allegations and (2) not corroborated by x-ray or MRI evidence.
The Tenth Circuit Court of Appeals rejected similar rationales in Langley v.

Barnhart, 373 F.3d 1116 (10th Cir. 2004). In Langley, The ALJ stated that “[the treating
physician’s] assessment [wa]s clearly based upon the claimant’s subjective complaints”
and “his account of the claimant’s limitations [was] more an act of courtesy to a
patient, rather than a genuine medical assessment . . . .” Langley v. Barnhart, 373 F. 3d
at 1120 (internal quotation marks and citations omitted). The Tenth Circuit disallowed
the ALJ’s rejection of the treating physician’s opinion, stating:

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The ALJ also improperly rejected [the treating physician’s] opinion based
upon his own speculative conclusion that the report was based only on
claimant’s subjective complaints and was “an act of courtesy to a patient.”
The ALJ had no legal nor evidentiary basis for either of these findings.
Nothing in [the treating physician’s] reports indicates he relied only on
claimant’s subjective complaints or that his report was merely an act of
courtesy. In choosing to reject the treating physician’s assessment, an ALJ
may not make speculative inferences from medical reports and may reject
a treating physician’s opinion outright only on the basis of contradictory
medical evidence and not due to his or her own credibility judgments,

speculation or lay opinion.

Id. (internal quotation marks and citations omitted) (emphasis in original). Langley v.
Barnhart is controlling.
First, Dr. Phatek never stated that his opinions were based solely on Plaintiff’s
subjective complaints or because Plaintiff had stated that he did not feel up to working.
(TR. 678-82). In fact, the record is replete with over three years of Dr. Phatek’s progress
notes, various tests, and medications which would indicate otherwise. (TR. 377-473, 476563, 581-669, 678-682).
Second, the absence of x-rays or MRIs is based upon the ALJ’s own speculation
that such tests were needed to corroborate Plaintiff’s pain. But at the hearing, Plaintiff
indicated that his obesity had caused the back pain with prolonged sitting and that in lieu
of x-rays or MRIs, his doctors had advised him to lose weight. (TR. 47-48). The Social
Security Administration has recognized obesity as a medically determinable impairment
which can cause limitations in an individual’s ability to sit. Social Security Ruling 02-1p,
Titles II and XVI: Evaluation of Obesity, 2002 WL 34686281, Westlaw op. at 6 (Sept. 12,
2002) (SSR 02-1p). This ruling suggests that Plaintiff’s back pain upon sitting could
have been linked to his obesity, which would not have been objectively confirmed
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through x-rays or MRIs. The Court is not stating that the link existed, only that the ALJ
should not have speculated that objective tests were required to prove the allegations.
The ALJ provided three invalid reasons for discounting Dr. Phatek’s limitations on
Mr. Greenwalt’s ability to sit. The absence of specific, legitimate reasons for discounting
the opinions warrants remand.
2. Dr. Phatek’s Remaining Limitations
In addition to Dr. Phatek’s limitations on Plaintiff’s ability to sit, the doctor also
stated that Mr. Greenwalt could: (1) only stand for only 15 minutes at a time, for 2
hours total during an 8-hour workday and (2) occasionally lift and/or carry less than 10
pounds. (TR. 680-681). The physician also stated that Plaintiff would need a job which
allowed: (1) unscheduled breaks, (2) an “at will” sit-stand option, and (3) elevation of
his legs for 25% of the day. (TR. 681). The physician also opined that Mr. Greenwalt’s
pain was so severe that it would frequently interfere with his attention and
concentration, and that Plaintiff was moderately limited in his ability to deal with work
stress. (TR. 679-680). Finally, Dr. Phatek stated that Plaintiff’s impairments would likely
cause him to miss work about twice a month. (TR. 682).
The ALJ apparently rejected these opinions from Dr. Phatek as evidenced by the
conflict in the RFC with the Plaintiff’s ability to lift, carry and stand, and a complete
omission of the remaining opinions. (TR. 25). The ALJ does not provide specific,
legitimate reasons for rejecting the opinions, as he is required to do, and the legal error
warrants remand. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).

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VI.

ALLEGED ERRORS AT PHASES TWO AND THREE OF STEP FOUR
Mr. Greenwalt also alleges errors at phases two and three of step four. But the

Court declines discussion of these allegations as they will likely be affected on remand
based upon the error at phase one. See Watkins v. Barnhart, 350 F.3d 1297, 1299
(10th Cir. 2003) (“We will not reach the remaining issues raised by appellant because
they may be affected by the ALJ's treatment of this case on remand.)
ORDER
The undersigned magistrate judge has reviewed the medical evidence of record,
the transcript of the administrative hearing, the decision of the ALJ, and the pleadings
and briefs of the parties. The Court concludes that the ALJ did not follow the correct
legal standards in considering Dr. Phatek’s opinion, nor are the ALJ's reasons for
completely rejecting his opinion supported by substantial evidence. Accordingly, the
Court

REVERSES

the

Commissioner’s

decision

administrative development.
ENTERED on February 9, 2016.

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and

REMANDS

for

further