Bryant v. Commissioner of Social Security
Filing
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OPINION AND ORDER. The decision of the Commissioner is reversed and the case remanded for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). A separate judgment shall be entered. Signed by Magistrate Judge Charles B Goodwin on 8/24/16. (lb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JOHN H. BRYANT JR.,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant.
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Case No. CIV-15-245-CG
OPINION AND ORDER
Plaintiff John H. Bryant Jr. 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 (“SSA”) denying Plaintiff’s applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”) under the Social Security Act, 42
U.S.C. §§ 401-434, 1381-1383f. The parties have consented to the jurisdiction of a
United States Magistrate Judge. Upon review of the administrative record (Doc. No. 11,
hereinafter “R. _”), and the arguments and authorities submitted by the parties, the Court
reverses the Commissioner’s decision and remands the case for further proceedings.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff filed his applications for DIB and SSI in June and July of 2011, alleging
disability beginning on June 16, 2011. R. 15, 120-34, 142. Following denial of his
applications initially and on reconsideration, a hearing was held before an administrative
law judge (“ALJ”) on September 12, 2013. R. 28-69, 74-79. In addition to Plaintiff, a
vocational expert testified at the hearing. R. 28-55. The ALJ issued an unfavorable
decision on October 25, 2013. R. 15-27.
The Commissioner uses a five-step sequential evaluation process to determine
entitlement to disability benefits. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009); 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since June 16, 2011. R. 17. At step two, the ALJ
determined that Plaintiff had the severe impairments of: degenerative disc disease of the
cervical spine; status post lumbar fusion; and obesity. R. 17-18. At step three, the ALJ
determined that Plaintiff’s condition did not meet or equal any of the presumptively
disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”).
R. 18.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all
of his impairments. R. 18-25. The ALJ found that Plaintiff had the RFC to perform
sedentary work subject to certain limitations:
[Plaintiff] is able to occasionally lift and/or carry twenty pounds, and
frequently lift and/or carry ten pounds. [Plaintiff] is able to stand and/or walk
thirty to forty-five minutes continuously, and for less than six hours in an
eight-hour workday. The claimant is able to sit thirty to forty-five minutes
continuously, and for at least six hours in an eight-hour workday. He is able
to push and/or pull no more than from ten to fifteen pounds, he is no more
than occasionally able to climb, balance, stoop or kneel, and he is never able
to crouch and never crawl. This is all with normal breaks.
R. 18-19. The ALJ determined at step four that Plaintiff was unable to perform any past
relevant work. R. 25.
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At step five, the ALJ considered whether there are jobs existing in significant
numbers in the national economy that Plaintiff—in view of his age, education, work
experience, and RFC—could perform. R. 25-26. Relying upon the vocational expert’s
testimony regarding the degree of erosion to the unskilled sedentary occupational base
caused by Plaintiff’s additional limitations, the ALJ concluded that Plaintiff could perform
unskilled, sedentary occupations such as optical goods assembler, touch-up screener, and
clerical mailer, and that such occupations offer jobs that exist in significant numbers in the
national economy. R. 26. Therefore, the ALJ concluded that Plaintiff had not been disabled
within the meaning of the Social Security Act during the relevant time period. R. 26.
Plaintiff’s request for review by the Appeals Council was denied. R. 1-4. The
unfavorable determination of the ALJ stands as the Commissioner’s final decision. See 20
C.F.R. §§ 404.981, 416.1481.
STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is limited to determining
whether factual findings are supported by substantial evidence in the record as a whole
and whether correct legal standards were applied. 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) (internal quotation marks 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) (internal quotation marks omitted). The court “meticulously examine[s]
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the record as a whole,” including any evidence “that may undercut or detract from the
ALJ’s findings,” “to determine if the substantiality test has been met.” Wall, 561 F.3d at
1052 (internal quotation marks omitted). While a reviewing court considers whether the
Commissioner followed applicable rules of law in weighing particular types of evidence
in disability cases, it may not itself reweigh the evidence or substitute its judgment for
that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
ANALYSIS
On appeal, Plaintiff raises several challenges to the denial of benefits. Because
remand is warranted based upon the ALJ’s failure to properly evaluate the medical opinion
of Plaintiff’s treating physician, the Court does not reach Plaintiff’s additional propositions
of error, which “may be affected by the ALJ’s treatment of this case on remand.” See Pl.’s
Br. (Doc. No. 16) at 8-29;1 Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
A. The Relevant Record
Plaintiff’s medical record reflects that he received treatment for his back condition
from neuroscience specialist Brent Hisey, MD, multiple times during the relevant
disability period. See R. 274-313, 318-40, 356-68. Plaintiff was first referred to Dr.
Hisey in February 2012. At that time Dr. Hisey reviewed Plaintiff’s history and older
MRI reports of Plaintiff’s lumbar and cervical spine and stated that he planned to proceed
with lumbar discography “to clarify his pain generating mechanism and then decide if
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With the exception of the administrative record, references to documents electronically
filed by the parties use the page numbers assigned by the Court’s ECF system.
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there is something we can do for him from the surgical stand point.” R. 275-76; see also
R. 277-79, 292-95.
On March 1, 2012, Dr. Hisey performed a dye-injection discography on Plaintiff’s
L3-4 and L4-5; an injection at L5-S1 “could not be accomplished due to collapse of the
dis[c] space.” R. 274, 289-91, 299-300, 304. A CT scan revealed “[a]nomolous L5-S1
articulation with Bertolotti syndrome and pseudarthroses between the transverse
processes of L5 and the sacrum, worse on the left than right.” R. 289-91. Dr. Hisey
opined that “[f]rom a surgical stand point” Plaintiff “require[d]” an L5-S1 360° disc
fusion surgery. R. 274.
Following further testing, Dr. Hisey performed the recommended lumbar fusion
surgery on April 19, 2012. See R. 284-88, 304-12, 359-68. Both prior to and after the
surgery Plaintiff was diagnosed with degenerative lumbar disc disease at L5-S1. R. 306.
Dr. Hisey reported on May 9, 2012, that Plaintiff was “doing well” “overall” post-surgery
and that his incisions were healing well. R. 318. X-rays taken on that date reflected that
the fusion alignment at L5-S1 was straight and that the other vertebrae had straight
alignment and intact spacing. R. 330. On July 17, 2012, x-rays showed solid fusion at
L5-S1, with “no indication of loss of integrity to the fusion,” the disc spacer “solidly
incorporated into the opposing vertebral endplates,” and “no visible compromise of the
spinal canal.” R. 329.
On June 17, 2013, Dr. Hisey completed a medical source statement (“MSS”)
regarding what Plaintiff was still able to do despite his impairment. See R. 353-54.
There is no indication in the record that Dr. Hisey examined Plaintiff specifically for this
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MSS or otherwise had seen Plaintiff since July 2012. In the MSS, Dr. Hisey opined that
Plaintiff retained the “MAXIMUM CAPACIT[Y]” to:
5.
SIT in a typical 8 hour workday with usual breaks, TOTAL hours
of:
[ ] About 6 hours out of an 8 hour workday
[ ] Less than 2 hours out of an 8 hour workday
[X] Less than 6 hours out of an 8 hour workday
R. 353.
Dr. Hisey additionally opined:
7.
Is this patient required to LIE DOWN during the normal workday
TO MANAGE PAIN or other symptoms?
___X___ Yes
_______ No
R. 354.
B. The Treating Physician Rule
Specific SSA regulations govern the consideration of opinions by “acceptable
medical sources.”
See 20 C.F.R. §§ 404.1502, .1513(a), 416.902, .913(a).
The
Commissioner generally gives the highest weight to the medical opinions of a “treating
source,” which includes a physician or psychologist who has “provided [the claimant] with
medical treatment or evaluation” during a current or past “ongoing treatment relationship”
with the claimant. Id. §§ 404.1502, .1527(c), 416.902, .927(c); Langley v. Barnhart, 373
F.3d 1116, 1119 (10th Cir. 2004).
When considering the medical opinion of a claimant’s treating physician, the ALJ
must first determine whether the opinion should be given “controlling weight” on the
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matter to which it relates. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.
2003); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The opinion of a treating physician is
given such weight if it is both well-supported by medically acceptable clinical or
laboratory diagnostic techniques and not inconsistent with other substantial evidence in
the record. Watkins, 350 F.3d at 1300 (applying SSR 96-2p, 1996 WL 374188, at *2
(July 2, 1996)); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
A treating physician opinion not afforded controlling weight is still entitled to
deference. See Watkins, 350 F.3d at 1300; SSR 96-2p, 1996 WL 374188, at *4. “In
many cases, a treating source’s medical opinion will be entitled to the greatest weight and
should be adopted, even if it does not meet the test for controlling weight.” SSR 96-2p,
1996 WL 374188, at *4. That an opinion is not given controlling weight does not resolve
the second, distinct assessment—i.e., what lesser weight should be afforded the opinion
and why. See Watkins, 350 F.3d at 1300-01. In this second inquiry, the ALJ weighs the
relevant medical opinion using a prescribed set of regulatory factors:
(1) the length of the treatment 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 (internal quotation marks omitted); 20 C.F.R. §§ 404.1527(c)(2)(6), 416.927(c)(2)-(6).
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The ALJ’s 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.’” Watkins, 350 F.3d at 1300 (quoting SSR 96-2p, 1996 WL
374188, at *5).
C. Discussion
In reaching his determination of Plaintiff’s RFC, the ALJ briefly summarized Dr.
Hisey’s 2012 treatment records. R. 21. The ALJ also described the June 17, 2013 MSS in
detail, including the sitting limitations and lying-down requirement quoted above. R. 23;
see R. 353, 354. After outlining the relevant requirements for evaluation of a treating
physician’s medical opinion, the ALJ stated:
The undersigned accords Dr. Hisey’s opinion significant, but not controlling
weight. Neuroscience specialist, Dr. Hisey treated the claimant beginning
February 15, 2012. His treatment notes support his opinion. Dr. Hisey
reviewed different modes of imaging, examined the claimant, and performed
back surgery on the claimant. He treated the claimant post-operatively. The
back surgery occurred on April 19, 2012; however, Dr. Hisey recorded the
only note of postoperative treatment after discharge from the hospital, shortly
after surgery on May 9, 2012. That note indicates that the claimant was
overall doing well from L5-S1 360 fusion performed on April 19, 2012. Dr.
Hisey’s May 9, 2012 letter is consistent with July 17, 2012 x-rays that showed
solid fusion at L5-S1 with no indication of loss of integrity of the fusion and
the other disc levels were normal.
Again, the undersigned accords significant weight to Dr. Hisey’s opinion and
adopts the opinion but finds that the claimant is able to sit for at least six
hours in an eight-hour day. Dr. Hisey indicated that the claimant was doing
well and healing after surgery and an individual who recovers well from
spinal surgery should be able to sit through a normal workday, given x-rays
showed the fusion solid and other disc levels normal in July 2012. Dr. Hisey
further noted that the claimant would be required to lie down during the
normal workday to manage pain or other symptoms; however, the record of
treatment with Dr. Hisey ended on May 9, 2012 and then does not support
this limitation. Again, the claimant was recovering and from his testimony,
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he is taking pain medications. Dr. Hisey does not specify how often the
claimant needs to lie down, but normal work breaks should cover this
limitation. The undersigned has incorporated Dr. Hisey’s medical opinion
into the claimant’s residual functional capacity, with exception as indicated.
R. 24 (citing R. 203, 318, 329-30).
Plaintiff objects that the ALJ erred in (i) his rejection of Dr. Hisey’s opinion that
Plaintiff is able to sit less than 6 hours total in an 8-hour workday; and (ii) his conclusion
that no more than normal work breaks are needed to address Dr. Hisey’s opinion that
Plaintiff is required to lie down during the workday to manage pain or other symptoms. See
Pl.’s Br. at 12-18.
Sitting Restriction
As detailed above, the ALJ indicated that he rejected the sitting restriction in the June
2013 MSS because he did not believe that Dr. Hisey accounted for improvement in
Plaintiff’s functioning that the ALJ expected to have occurred upon Plaintiff healing from
the April 2012 spinal fusion surgery. The ALJ noted that the spinal surgery appeared to
have been successful, as indicated by Dr. Hisey’s May 2012 observation that Plaintiff “was
doing well and healing,” and x-rays taken in July 2012 that “showed the fusion solid and
other disc levels normal.” R. 24; see R. 318, 329, 330. Noting that Dr. Hisey had not
examined Plaintiff between the postoperative examination in May 2012 and the MSS in
June 2013, the ALJ discounted the MSS’s sitting restriction because “an individual who
recovers well from spinal surgery should be able to sit through a normal workday.” R. 24.
While it was appropriate for the ALJ to question whether the MSS was based only
on immediate postsurgery observations, the question must be resolved not through
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speculation but through medical evidence in the record. “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 own credibility judgments, speculation or lay opinion.”
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (emphasis and internal
quotation marks omitted); accord Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.
2004); see also Watkins, 350 F.3d at 1301 (explaining that if an ALJ rejects a treating
source opinion, he or she “must then give specific, legitimate reasons for doing so” (internal
quotation marks omitted)). The fact that Plaintiff was recovering well soon after surgery
does not by itself disprove or discredit his treating physician’s specific opinion that Plaintiff
was only able to sit for less than six hours per day approximately one year later. Thus, the
ALJ’s opinion expressly—and improperly—is based on his own speculation about how “an
individual” who has had successful spinal fusion surgery “should” be able to function a year
later. R. 24; see McGoffin, 288 F.3d at 1252.
Moreover, this speculation is not just a basis for the ALJ’s rejection of the MSS’s
sitting restriction but the exclusive one. The ALJ references opinions by two state agency
consultants, both of whom reviewed Plaintiff’s medical records and found that Plaintiff
could sit “about 6 hours in an 8-hour workday.” R. 24, 226, 273. But the consultants issued
their reports in August 2011 and January 2012, respectively—prior to Plaintiff’s spinal
fusion surgery. See R. 232, 273. These opinions do not provide the “contradictory medical
evidence” that would properly allow rejection of the sitting restriction in the MSS.
McGoffin, 288 F.3d at 1252. And neither the ALJ in his decision, nor the Commissioner in
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her brief, points to any other such evidence. The ALJ erred by rejecting the sitting
limitation in Dr. Hisey’s MSS on the basis of speculation rather than medical evidence.
The Commissioner argues that any error by the ALJ as to the sitting restriction was
harmless because the vocational expert (“VE”) “testified that someone even with Dr.
Hisey’s limitation to sitting ‘less than’ six hours could still perform the jobs at issue given
the sit-stand option the ALJ also included.” Def.’s Br. (Doc. No. 20) at 13 (emphasis and
citations omitted). However, the hearing testimony on this point is ambiguous. See R. 5153; Pl.’s Br. at 18 (Plaintiff citing the same testimony to support his argument that the ALJ’s
error is not harmless). While the VE did mention a “sit-stand” opinion in the course of his
exchange with the ALJ, the hypothetical posed (and ultimately relied on) by the ALJ
included, in relevant part, not a sit-stand option but a limitation where the claimant could
“sit [c]ontinuously 30 to 45 minutes at least six hours in an eight hour workday.” R. 51.
The ALJ then posed a second hypothetical in which the aspect of that limitation requiring a
total of six hours sitting was removed, but that hypothetical was never squarely answered by
the VE. See R. 52-53. The ALJ’s improper evaluation of Dr. Hisey’s sitting restriction
cannot be said to be harmless based on this testimony. See Keyes-Zachary v. Astrue, 695
F.3d 1156, 1163 (10th Cir. 2012) (noting that a finding of harmless error may be appropriate
when, “based on material the ALJ did at least consider (just not properly), we could
confidently say that no reasonable administrative factfinder, following the correct analysis,
could have resolved the factual matter in any other way” (internal quotation marks omitted);
cf. Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (“Testimony elicited by
hypothetical questions that do not relate with precision all of a claimant’s impairments
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cannot constitute substantial evidence to support the Secretary’s decision.” (alteration and
internal quotation marks omitted)).
Lying-Down Requirement
The ALJ likewise failed to properly evaluate Dr. Hisey’s opinion that Plaintiff
needed to lie down during the workday to manage his pain or other symptoms. See R. 24,
354. Although the ALJ initially indicates that he is rejecting this limitation, see R. 24, he
then appears to adopt it and states that the limitation could be accommodated through
“normal work breaks.” R. 24; see also R. 19 (ALJ specifying in RFC: “This is all with
normal breaks.”).
There may have been a proper basis in the record for the ALJ to reject Dr. Hisey’s
opinion to the extent it called for more than normal work breaks. But the approach taken—
construing Dr. Hisey’s opinion as requiring no more than normal work breaks—is not a
reasonable interpretation of Dr. Hisey’s express limitation and cannot be upheld without the
Court improperly supplying “post-hoc rationalizations” “that are not apparent from the
ALJ’s decision itself.” Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007). Because
the ALJ cites no support for his determination that normal work breaks would “cover” the
lying-down requirement imposed by Dr. Hisey, this finding is a “mere conclusion” and
unsupported by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th
Cir. 2005) (internal quotation marks omitted). The ALJ’s error cannot be held harmless, as
a reasonable factfinder could find that the necessity for Plaintiff to lie down as contemplated
by Dr. Hisey would require an accommodation beyond “normal breaks,” and the VE
testified that there would be no jobs available to a person who had to take breaks at irregular
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times to manage pain or other circumstances. See R. 54, 354; Keyes-Zachary, 695 F.3d at
1163.
CONCLUSION
The decision of the Commissioner is reversed and the case remanded for further
proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). A separate judgment
shall be entered.
ENTERED this 24th day of August, 2016.
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