Flores v. Commissioner of Social Security

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION 20 of Magistrate Judge Shon T. Erwin the decision of the Commissioner is Reversed and this case is Remanded for further administrative proceedings consistent with the Report. Signed by Honorable Joe Heaton on 08/10/2017. (Attachments: # 1 Attachment Report and Recommendation 20 )(lam)

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ROSA FLORES,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.1

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Case No. CIV-16-997-HE

REPORT AND RECOMMENDATION
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. ____). This matter has
been referred to the undersigned magistrate judge for initial proceedings consistent with
28 U.S.C. § 636(b)(1)(B)-(C). The parties have briefed their positions, and the matter is
now at issue. It is recommended that the Commissioner’s decision be REVERSED and
REMANDED for further administrative findings.
I.

PROCEDURAL BACKGROUND
Plaintiff’s applications for disability insurance benefits and supplemental security

income were denied initially and on reconsideration. Following a hearing, an

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken
to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405(g).
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Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 10-21). 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
In evaluating Plaintiff’s claims of disability, 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 & 416.920. At step
one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since
December 23, 2012, the alleged onset date. (TR. 12). At step two, the ALJ determined
that Ms. Flores had the following severe impairments: Sjogren’s Syndrome and
inflammatory arthritis. (TR. 12). 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. 13).
At step four, the ALJ found that Plaintiff could not perform her past relevant work.
(TR. 19). The ALJ further concluded that Plaintiff had the residual functional capacity
(RFC) to:
[P]erform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
limited to occasional reaching, crouching, handling, crawling, and stooping.
The claimant should avoid even mild exposure to marked temperature and
humidity changes; avoid concentrated exposure to pulmonary irritants; and
avoid concentrated vibrations.
(TR. 13).
Based on the finding that Ms. Flores could not perform her past relevant work, the
ALJ proceeded to step five. There, the ALJ presented several limitations to a vocational
expert (VE) to determine whether there were other jobs in the national economy that
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Plaintiff could perform. (TR. 56-57). Given the limitations, the VE identified three jobs
from the Dictionary of Occupational Titles (DOT). (TR. 57). The ALJ adopted the
testimony of the VE and concluded that Ms. Flores was not disabled based on her ability
to perform the identified jobs. (TR. 20-21).
III.

ISSUES PRESENTED
On appeal, Plaintiff alleges error: (1) at step three, (2) in the RFC determination,

and (3) at step five.2
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).
V.

STEP THREE
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

In her opening brief, Ms. Flores alleges an additional error in the ALJ’s credibility analysis. (ECF
No. 14:3). But the Court need not consider this as a separate point of error as she does not
develop the argument elsewhere in her brief. See Keyes–Zachary v. Astrue, 695 F.3d 1156, 1161
(10th Cir. 2012) (“We will consider and discuss only those contentions that have been adequately
briefed for review.”).
2

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P, Appendix 1. (TR. 13). Ms. Flores argues: (1) the ALJ failed to perform a proper stepthree analysis and (2) she meets or equals Listing 14.10. (ECF No. 14:3-5; 19:1-4). The
undersigned agrees with Plaintiff’s first point of error and concludes that whether a Listing
had been met shall be determined on remand, following a proper step-three analysis.
The record contains evidence documenting Dr. Fahed Hamadeh as Plaintiff’s
treating rheumatologist from June 1, 2012 through January 5, 2015. (TR. 427, 429-458,
490-553, 607-634). Dr. Hamadeh diagnosed and treated Plaintiff for Sjogren’s Syndrome,
an autoimmune disease which the physician explained as “causing undifferentiated
inflammatory arthritis” characterized by chronic pain which affected Plaintiff’s activities of
daily living and her job duties. (TR. 427, 436, 451, 492, 515, 519, 525, 526, 542, 545547, 552, 608, 612, 621, 627, 630).
At step two, the ALJ recognized the Sjogren’s Syndrome as a severe impairment.
(TR. 12). At step three, the ALJ noted Listing 14.10 for Sjogren’s Syndrome, recited the
Listing verbatim, and then stated: “The medical evidence of record does not document
the symptoms and limitations described in Listing 14.10 A or B.” (TR. 13). Plaintiff alleges
that the ALJ’s step three findings “[were] conclusory, leaving the Court with nothing to
review.” (ECF No. 14:5). Ms. Flores is correct.
In Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996), the Tenth Circuit Court
of Appeals held that “a summary conclusion that appellant’s impairments did not meet or
equal any Listed Impairment. . . [is] a bare conclusion[,] beyond meaningful judicial
review.” (internal citation omitted). In Clifton, the Court held that under 42 U.S.C. §

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405(b)(1),3 “the ALJ was required to discuss the evidence and explain why he found that
appellant was not disabled at step three.” Id. The Court explained:
In the absence of ALJ findings supported by specific weighing of the
evidence, we cannot assess whether relevant evidence adequately supports
the ALJ’s conclusion that appellant's impairments did not meet or equal any
Listed Impairment, and whether he applied the correct legal standards to
arrive at that conclusion. The record must demonstrate that the ALJ
considered all of the evidence, but an ALJ is not required to discuss every
piece of evidence. Rather, in addition to discussing the evidence supporting
his decision, the ALJ also must discuss the uncontroverted evidence he
chooses not to rely upon, as well as significantly probative evidence he
rejects.

Id. at 1009-1010. Here, the ALJ merely outlined Listing 14.10 and concluded that the
listing had not been met. (TR. 13). Under Clifton, the ALJ’s summary conclusion was
insufficient.
The Commissioner fails to address the legal deficiency—i.e. whether the ALJ had
properly explained his step-three findings—and instead argues that Plaintiff did not meet
or equal Listing 14.10 because: (1) the medical evidence supported the step three finding,
(2) “Plaintiff’s subjective complaints cannot substitute for the necessary clinical findings
[to support the Listing]” and (3) state agency reviewing physicians concluded that Plaintiff
did not meet or equal a listed impairment. (ECF No. 18:7-10). But the ALJ did not base

3

42 U.S.C. § 405(b)(1) states:
The Commissioner of Social Security is directed to make findings of fact, and
decisions as to the rights of any individual applying for a payment under this
subchapter. Any such decision by the Commissioner of Social Security which
involves a determination of disability and which is in whole or in part unfavorable
to such individual shall contain a statement of the case, in understandable
language, setting forth a discussion of the evidence, and stating the
Commissioner's determination and the reason or reasons upon which it is based.

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his step-three findings on any of the reasons cited by the Commissioner. As stated, the
ALJ failed to provide any explanation as to why he had rejected the Listing.
In reviewing Plaintiff’s subjective complaints, the ALJ recognized the proper
standard, summarized the medical evidence, and ultimately found that “the claimant’s
statements concerning the intensity, persistence and limiting effects of these symptoms
are not entirely credible for the reasons explained in this decision.” (TR. 16). In
considering Plaintiff’s subjective statements at step three, the ALJ stated:
Because a claimant’s symptoms can sometimes suggest a greater level of
severity of an impairment that can be shown by the objective medical
evidence alone, additional factors are considered in addition to the objective
medical evidence when assessing the credibility of the claimant’s
allegations. The claimant’s impairments do not meet or equal the
requirements of any impairment set forth in Appendix 1, Subpart P,
Regulations No. 4; therefore, consideration has been given to the claimant’s
subjective complaints.
(TR. 16). Although the ALJ stated that he considered Plaintiff’s subjective complaints at
step three, and he summarized the medical evidence, he never:


stated why he deemed the Plaintiff incredible or otherwise linked his
credibility findings to specific evidence of record,



cited specific evidence of record in support of his step-three findings, or



cited the agency reviewing physicians’ findings in support of his step three
findings.

(TR. 10-21). Thus, the Court should reject the Commissioner’s argument because the
Court is not permitted to supply post-hoc rationales to uphold the Commissioner’s
decision. See Haga v. Astrue, 482 F.3d 1205, 1207 (10th Cir. 2007) (“[T]his court may
not create or adopt post-hoc rationalizations to support the ALJ’s decision that are not
apparent from the ALJ’s decision itself.”); Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th
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Cir. 2005) (the Court should not “engage in an impermissible reweighing of the evidence”
or “substitute [its] judgment for that of the Commissioner.”).
In Fischer-Ross v. Barnhart, 431 F.3d 729, 734 (10th Cir. 2005), the Tenth Circuit
Court of Appeals held that an error at step three is harmless if “confirmed or unchallenged
findings made elsewhere in the ALJ’s decision confirm the step three determination under
review.” But in the instant case, the ALJ did not make other findings which would confirm
his step three decision. In fact, the ALJ’s own recitation of the evidence raises a question
as to whether the criteria for 14.10 had been met. See TR. 16-17. And, as discussed
below, the ALJ erred in the consideration of the opinion of the rheumatologist who had
treated Ms. Flores for Sjogren’s Syndrome. See infra. Accordingly, the Court should
conclude that the ALJ’s step-three error was not harmless.
Ms. Flores also argues that the evidence supports a finding that she had met or
equaled Listing 14.10. This determination will be left to the ALJ on remand who will reevaluate the evidence and properly explain the step-three findings.
VI.

THE ALJ’S EVALUATION OF THE MEDICAL EVIDENCE
Ms. Flores argues that the ALJ erred in his evaluation of an opinion from Plaintiff’s

treating rheumatologist, Dr. Hamadeh. (ECF No. 14:8-10). The Court should agree.
On January 5, 2015, Dr. Hamadeh completed a “Physical Medical Source
Statement” where the physician documented Ms. Flores’ various work-related abilities
and limitations. (TR. 632-634). There, the physician stated that Ms. Flores could:


sit for 3 hours total during an 8-hour workday,



stand for 2 hours total during an 8-hour workday,



walk for 3-4 hours during an 8-hour workday,
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

occasionally lift and/or carry between 11-20 pounds, and



occasionally bend, squat, crawl, climb, reach, and stoop.

(TR. 632-633). Dr. Hamadeh also stated that Ms. Flores had limitations in her ability to
use her hands and feet for repetitive movements, such as pushing and pulling leg
controls, grasping, and fingering. (TR. 633). Finally, Dr. Hamadeh found that Plaintiff had
mild limitations involving: (1) exposure to marked changes in temperature and humidity;
(2) exposure to dust, fumes, and gas; and (3) exposure to vibrations. (TR. 633). Dr.
Hamadeh explained all of his findings by citing pain in Plaintiff’s hands, elbows, shoulders,
hips, knees and ankles, which was worse with activity and better with rest and pain
medication. (TR. 633-634). Finally, the physician stated that due to her condition, she
would likely miss work 3-5 days per month and would need to lie down or recline at least
1 hour during the 8-hour workday. (TR. 634).
The ALJ recognized Dr. Hamadeh’s opinion and ultimately afforded it “great
weight.” (TR. 18-19). However, as alleged by Plaintiff, the ALJ:


mischaracterized the medical evidence from Dr. Hamadeh and



engaged in an improper and selective review of Dr. Hamadeh’s opinion.

(ECF No. 14:10).
A.

Mischaracterization of Dr. Hamadeh’s Opinion

As discussed, the ALJ found an RFC for Ms. Flores to engage in light work, as
defined in the regulations. (TR. 13). The ALJ explained that “light work:”
[I]nvolves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it requires a good deal of
walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of
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performing a full range of light work, you must have the ability to do
substantially all these activities.
(TR. 13) (citing 20 C.F.R. §§ 404.1567(b) & 416.967(b)). Social Security Ruling 83-10
further explains that “the full range of light work requires standing or walking, off and
on, for a total of approximately 6 hours of an 8–hour workday.” Titles II And XVI:
Determining Capability to do Other Work--The Medical-Vocational Rules of Appendix 2,
1983 WL 31251, at *6 (1983). The ALJ also concluded that Ms. Flores could occasionally
reach, crouch, handle, crawl, and stoop; and that she should avoid: even a mild exposure
to marked temperature and humidity changes; concentrated exposure to pulmonary
irritants; and concentrated vibrations. (TR. 13).
The ALJ’s RFC is consistent with Dr. Hamadeh’s findings regarding Plaintiff’s
abilities to:


occasionally lift and/or carry, reach, crouch, crawl, stoop, and



avoid exposure to pulmonary irritants, temperature changes, and
vibrations.

Compare TR. 632-633 with TR. 13. However, the RFC is not consistent with Dr.
Hamadeh’s findings regarding Plaintiff’s:


abilities to walk and stand,



ability to frequently lift and/or carry objects,



ability to handle,



ability to use her feet for repetitive movements, such as pushing and pulling
leg controls, and



likelihood of missing between 3-5 days of work per month, owing to her
condition.

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Compare TR. 632-633 with TR. 13. The ALJ concluded that Dr. Hamadeh’s opinion
regarding the possibility of Plaintiff missing work was not supported by the physician’s
treatment records. Plaintiff does not challenge this finding by pointing to records which
would contradict the ALJ’s findings. However, other findings by the ALJ indicate that his
RFC determination regarding the remaining abilities were based on a misreading and/or
mischaracterization of Dr. Hamadeh’s opinion. The ALJ stated:
Dr. Hamadeh opined the claimant can . . . use her left and right foot for
pushing and pulling leg controls[.] Dr. Hamadeh’s opinion suggest [sic] the
claimant can perform a combination of walking, standing, and sitting during
an 8 hour day. Dr. Hamadeh[] . . . reported the claimant can grasp and
finger with both hands. A great portion of Dr. Hamadeh’s opinion is
incorporated into the residual functional capacity assessment herein. A
treating source opinion can be used to establish the existence of medically
determinable impairments; the nature and severity of the impairments; and
the impact of the impairments on the claimant’s functional abilities. Thus,
great weight is given to Dr. Hamadeh’s opinion.
(TR. 18, 19).
If Dr. Hamadeh had actually made the findings credited to him by the ALJ
regarding Plaintiff’s ability to: grasp and finger with both hands, use both feet to pushing
and pull leg controls, and perform the standing and walking requirements of light work,
the physician’s opinion would provide substantial evidence in support of the RFC
determination. But the rheumatologist did not make these findings. Instead, Dr. Hamadeh
specifically found that Plaintiff had limitations in both hands in her ability to finger and
grasp, that she was limited in both feet for pushing and pulling leg controls and that she
could only stand for 2 hours during and 8-hour workday and walk for 3-4 hours during
an hour workday. See TR. 632-633.

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Because the ALJ had clearly relied on Dr. Hamadeh’s opinion in formulating the
RFC, the Court should conclude that the RFC lacks substantial evidence due to the ALJ’s
mischaracterization of the evidence.4 The Tenth Circuit Court of Appeals reached this
conclusion under similar circumstances in Talbot v. Heckler, 814 F.2d 1456 (10th Cir.
1987). In Talbot, the ALJ supported his RFC determination by relying on the opinion of
one of the claimant’s treating physicians, Dr. Byrd. Talbot v. Heckler, 814 F.3d at 1463.
The ALJ stated that Dr. Byrd’s evaluation “was generally consistent with light work which
allowed alternate sitting, standing, and walking,” findings which were consistent with the
ALJ’s RFC determination. Id. But, as noted by the Circuit Court,
[The ALJ’s] statement both mischaracterizes the evaluation and assumes
that alternately sitting, standing, and walking allows one to perform a full
range of light work. What Dr. Byrd’s evaluation [actually] concluded was
that . . . the claimant could neither sit, walk, nor stand for longer than two
hours at a time for a maximum of a six-hour work day . . . [which] precludes
the kind of extensive sitting, standing and walking contemplated by the
definition of light activity.

Id. In sum, the Court concluded that the mischaracterization of the treating physician’s
opinion rendered the RFC lacking in substantial evidence. The Court should conclude that

Talbot is persuasive and reach the same conclusion. The ALJ afforded Dr. Hamadeh’s
opinion “great weight” and clearly relied on that opinion for the RFC findings regarding
Plaintiff’s abilities to walk, stand, frequently lift and/or carry objects, and operate foot
controls. But because that determination was based on a mischaracterization of the
evidence, it cannot stand.

The RFC was also supported by opinions from state agency reviewing physicians, Dr. Charles
Clayton and Dr. James Metcalf. See TR. 63-74, 79-96. But the ALJ does not adopt those opinions
over Dr. Hamadeh’s opinion. See TR. 19 (the ALJ afforded the reviewing physician’s opinions only
“moderate weight” while affording Dr. Hamadeh’s opinion “great weight.”).
4

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B.

Selective Review of Dr. Hamadeh’s Opinion

Dr. Hamadeh also stated that Plaintiff would need to lie down or recline for at least
one hour during an 8-hour workday. (TR. 634). The ALJ never mentioned this portion of
the physician’s opinion in the RFC5 and the omission was improper. See Chapo v. Astrue,
682 F.3d 1285, 1292 (10th Cir. 2012) (noting that it “is error under this circuit’s case law
. . . for [a]n ALJ . . . to pick and choose through an uncontradicted medical opinion, taking
only the parts that are favorable to a finding of nondisability.”) (brackets in original). As
stated, the ALJ adopted the VE’s testimony that Plaintiff could perform the jobs of counter
clerk, information clerk, and record clerk. (TR. 20-21). But at the hearing, the VE testified
that these jobs would be precluded if the hypothetical individual needed to recline for at
least one hour per day, aside from regular breaks. (TR. 59). Thus, the Court should
conclude that the ALJ’s error in failing to discuss this portion of Dr. Hamadeh’s opinion
was not harmless.
VII.

STEP FIVE
Plaintiff also alleges that the step five findings lacked substantial evidence because

they were based on a hypothetical which was, in turn, based on an improper RFC. (ECF
No. 14:5-8). But the Court need not address this allegation, as the RFC will be affected
on remand following further review of Dr. Hamadeh’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.”).

5

See TR. 10-21.

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VIII. RECOMMENDATION
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 finds that the decision of the Commissioner should be
REVERSED and REMANDED for further administrative findings.
IX.

NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file specific written objections to this Report

and Recommendation. See 28 U.S.C. §636 and Fed. R. Civ. P. 72. Any such objections
should be filed with the Clerk of the District Court by June 27, 2017. The parties are
further advised that failure to make timely objection to this Report and Recommendation
waives the right to appellate review of the factual and legal issues addressed herein.

Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
X.

STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in

this matter.
ENTERED on June 13, 2017.

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