Leake v. Commissioner of Social Security

Filing 24

MEMORANDUM OPINION AND ORDER -- The Court 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 REVERSES the Commissioner's decision and REMANDS the matter for further administrative findings. See order as more fully set out. Signed by Magistrate Judge Shon T. Erwin on 12/29/16. (mc)

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

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Case No. CIV-16-379-STE

MEMORANDUM OPINION AND ORDER
Plaintiff 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 applications for 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
development.

I.

PROCEDURAL BACKGROUND
Plaintiff’s application for supplemental security income was denied initially and on

reconsideration.1 Following two hearings,2 an Administrative Law Judge (ALJ) issued an
unfavorable decision. (TR. 19-35). The Appeals Council denied Plaintiff’s request for
review. (TR. 1-4). 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.
§ 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since August 29, 2011, the application date. (TR. 21). At step two, the
ALJ determined that Ms. Leake had the following severe impairments: degenerative disc
disease, osteoarthritis, obesity and hypertension. (TR. 22). 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. 28).
At step four, the ALJ found that Plaintiff had no past relevant work. (TR. 33). The
ALJ further found Plaintiff had the residual functional capacity (RFC) to:
[P]erform sedentary work as defined in 20 CFR 416.967(a) except
occasional ramps and stairs and occasional hazards.
(TR. 30).
1

Ms. Leake had originally filed applications for supplemental security income and disability
insurance benefits, but at an administrative hearing on February 6, 2014, she amended her
onset date to August 29, 2011 and withdrew the request for disability benefits. See TR. 52, 54.
2

The first hearing was held on February 6, 2014. (TR. 48-63). The second hearing was held on
July 22, 2014 to allow additional evidence. (TR. 64-73).

2

Because the ALJ concluded that Plaintiff had no past relevant work, he
proceeded to step five. There, he presented the limitations from the RFC to a vocational
expert (VE) to determine whether there were other jobs Plaintiff could perform. (TR.
70-71). Given the limitations, the VE identified three jobs from the Dictionary of
Occupational Titles (DOT). (TR. 71). The ALJ adopted the testimony of the VE and
concluded that Ms. Leake was not disabled based on her ability to perform the
identified jobs. (TR. 34-35).
III.

ISSUES PRESENTED
On appeal, Plaintiff alleges: (1) error in the consideration of an opinion from a

consultative examiner and (2) an erroneous RFC.
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).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court will “neither reweigh
the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805
F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

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V.

ERROR IN THE CONSIDERATION OF DR. CHAUDRY’S OPINION
On March 12, 2014, S.A. Chaudry, M.D., performed a consultative examination of

Ms. Leake. (TR. 496-508). Dr. Chaudry opined that Ms. Leake could:


Sit for 20 minutes at one time,



Stand for 20 minutes at one time,



Walk for 10 minutes at a time assisted with a cane, and walk 5 minutes at
a time unassisted,



Frequently reach with either hand,



Frequently use foot controls,



Occasionally balance, and



Never climb ladders, scaffolds, stoop, kneel, crouch, or crawl.

(TR. 496, 500, 501, 502, 504). Dr. Chaudry also stated that Ms. Leake had required a
cane to ambulate for the past two weeks and that in his opinion, a cane was “medically
necessary.” (TR. 500). Finally, Dr. Chaudry stated that Ms. Leake’s lower back pain
“interfere[d] [with] all activities” and had existed for four years. (TR. 504).
The ALJ recited these opinions in the decision and stated: “The undersigned
gives great weight to Dr. Chaudry’s opinion at Exhibit 17F, as is supported by the
objective evidence.” (TR. 26, 33). Ms. Leake contends the ALJ erred in failing to explain
why he appeared to have adopted a portion of Dr. Chaudry’s opinion, while rejecting
other limitations which conflicted with the RFC. The Court agrees.
The RFC determination allows for Ms. Leake to perform “sedentary work as
defined in 20 CFR 416.967(a) except occasional ramps and stairs and occasional
hazards.” (TR. 30). Sedentary work requires the ability to sit for at least 6 hours during
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an 8-hour workday and “occasional” walking and standing. 20 C.F.R. §416.967(a); SSR
96–9p, 1996 WL 374185, at *6 (1996). “Occasional” has been defined as “occurring
from very little up to one-third of the time, and would generally total no more than
about 2 hours of an 8-hour workday.” SSR 96–9p, 1996 WL 374185, at *3 (1996). Dr.
Chaudry opined that Ms. Leake could walk and stand for approximately two hours in an
8-hour workday, and sit for approximately six hours during an 8-hour workday. (TR.
496, 500). These opinions are consistent with the RFC determination for “sedentary”
work, but the ALJ ignores Dr. Chaudry’s additional limitations which state that Ms.
Leake could only walk for 10 minutes at one time, stand for only 20 minutes at one
time, and sit for only 20 minutes at one time. (TR. 496, 500). These additional
restrictions imply that Ms. Leake would need to alternate positions after the allotted
time had expired, which could have impacted her ability to perform sedentary work.
The SSA explains:
An individual may need to alternate the required sitting of sedentary work
by standing (and, possibly, walking) periodically. Where this need cannot
be accommodated by scheduled breaks and a lunch period, the
occupational base for a full range of unskilled sedentary work will be
eroded. The extent of the erosion will depend on the facts in the case
record, such as the frequency of the need to alternate sitting and standing
and the length of time needed to stand. The RFC assessment must be
specific as to the frequency of the individual's need to alternate sitting and
standing. It may be especially useful in these situations to consult a
vocational resource in order to determine whether the individual is able to
make an adjustment to other work.
SSR 96-9p, at *7. Here, the ALJ acknowledged Dr. Chaudry’s opinion and gave it “great
weight.” (TR. 33). But the ALJ ignored critical portions of Dr. Chaudry’s opinion
regarding Plaintiff’s limited ability to sit, stand, and walk at one time which could have

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affected her ability to perform the sedentary jobs identified by the VE. The Tenth Circuit
Court of Appeals has repeatedly held that this type of selective review is improper:
[T]he ALJ fully discounted the bulk of [a physician’s] mental RFC
limitations with no explanation at all as to why one part of his opinion was
creditable and the rest was not. That is error under this circuit’s case law.
We have repeatedly held that [a]n ALJ is not entitled to pick and choose
through an uncontradicted medical opinion, taking only the parts that are
favorable to a finding of nondisability.

Chapo v. Astrue, 682 F.3d 1285, 1292 (10th Cir. 2012) (citing Haga v. Astrue, 482 F.3d
1205, 1208 (10th Cir. 2007); Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.
2004), and Hamlin v. Barnhart, 365 F.3d 1208, 1219 (10th Cir. 2004)) (internal
quotation marks omitted).
Ms. Leake also urges error in the consideration of Dr. Chaudry’s opinions that
Plaintiff required a cane to ambulate and that the device was medically necessary. The
Court rejects this portion of Plaintiff’s claim, because the ALJ discussed, and then
discounted, Plaintiff’s need for a cane, stating:
The claimant used a cane when going for a consultative examination and
when she came to the hearings; however, there is no evidence in the
record that a cane has been prescribed. At consultative exam in March
2012, her gait was normal and adequate for speed, safety and stability.
There was no evidence of any limp or need for assistive device.
(TR. 32-33).
Finally, Plaintiff alleges that the ALJ failed to account for Dr. Chaudry’s opinions
regarding: (1) the ability to frequently reach and use foot controls, (2) the ability to
occasionally balance, (3) the inability to climb ladders, scaffolds, stoop, kneel, crouch,
and crawl, and (4) Plaintiff’s low back pain interfering with “all activities.” Plaintiff is
correct regarding the ALJ’s failure to discuss the opinions regarding nonexertional and
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manipulative limitations. But any error in failing to discuss the particular limitations was
harmless because the very nature of sedentary jobs, and in particular, the jobs
identified by the VE, do not require abilities which are inconsistent with Dr. Chaudry’s
opinions. The Tenth Circuit Court of Appeals has explained:
For the sake of argument, we may assume that the ALJ failed to
weigh the state agency medical consultants’ opinions. Still, Ms. Mays does
not identify any resulting prejudice. She cites one consultant's conclusions
that she could only occasionally climb, balance, stoop, kneel, crouch, and
crawl. But she fails to explain why these limitations would conflict with
sedentary jobs, for “[p]ostural limitations or restrictions related to such
activities as climbing ladders, ropes, or scaffolds, balancing, kneeling,
crouching, or crawling would not usually erode the occupational base for a
full range of unskilled sedentary work significantly because those activities
are not usually required in sedentary work.” SSR 96–9p, 1996 WL 374185,
at *7.
Social Security Ruling 83–10 states that “[b]y its very nature, work
performed primarily in a seated position entails no significant stooping.”
SSR 83–10, 1983 WL 31251, at *5; see SSR 85–15, 1985 WL 56857, at *7
(“If a person can stoop occasionally ... in order to lift objects, the
sedentary and light occupational base is virtually intact.”).
Similarly, crouching is rarely needed for sedentary work. See SSR
83–14, 1983 WL 31254, at *2 (noting that to perform substantially all of
the exertional requirements of most sedentary jobs, a person would not
need to crouch); see also Robinson v. Sullivan, 956 F.2d 836, 841 (8th
Cir.1992) (stating that the ability to crouch is not needed for substantially
all sedentary and light jobs).
Like limitations on crouching, limitations on crawling, kneeling, or
balancing would generally prove inconsequential on the ability to perform
sedentary jobs. See SSR 85–15, 1985 WL 56857, at *7 (stating that an
inability to kneel or crawl is “of little significance in the broad world of
work”); SSR 96–9p, 1996 WL 374185, at *7 (postural limitations on
balancing would not erode the occupational base for a full range of
sedentary work).

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As a result, the agency consultants’ opinions proved
inconsequential when the ALJ limited Ms. Mays to sedentary work. In
these circumstances, the alleged failure to discuss the consultants’
opinions would constitute harmless error.

Mays v. Colvin, 739 F.3d 569 (10th Cir. 2014).
As in Mays, the ALJ’s failure to specifically discuss Dr. Chaudry’s opinions
regarding Plaintiff’s abilities to reach, use foot controls, balance, climb ladders and
scaffolds, stoop, kneel, crouch, and crawl was harmless, especially in light of the fact
that the jobs identified by the VE did not conflict with Dr. Chaudry’s opinions. Compare
TR. 501, 502 with DOT # 237.367-046, # 209.567-014, and # 249.587-014.
Finally, Plaintiff questions the ALJ’s failure to specifically discuss Dr. Chaudry’s
opinion that Ms. Leake’s lower back pain interferes with all activities and had existed for
4 years. The Court rejects Plaintiff’s contention, as the ALJ acknowledged the opinion
and limited Plaintiff to sedentary work. See Tr. 26, 30.
In a separate point of error, Plaintiff argues “The ALJ erred when he found a
limited range of sedentary work.” (ECF No. 17:4). But the Court need not address this
allegation, as the RFC will be affected on remand following further review of Dr.
Chaudry’s opinion. See Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004)
(“We will not reach the remaining issues raised by claimant because they may be
affected by the ALJ’s resolution of this case on remand.”).
ORDER
The Court 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. Here, the ALJ did precisely what the Tenth Circuit has prohibited—he
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completely ignored portions of Dr. Chaudry’s opinion which concerned Plaintiff’s ability
to walk, sit, and stand. The omission was critical, as the findings could have affected
the RFC determination and Ms. Leake’s ability to work. As a result, the Court
REVERSES the Commissioner’s decision and REMANDS the matter for further
administrative findings regarding Dr. Chaudry’s opinion. See Haga v. Astrue, 482 F.3d
1205, 1208 (10th Cir. 2007) (reversing and remanding because the ALJ should have
explained why he had rejected some of the consulting doctor’s restrictions in the RFC,
“while appearing to adopt the others.”).
ENTERED on December 29, 2016.

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