Rowden v. Commissioner of Social Security Administration

Filing 21

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). Signed by Magistrate Judge Charles B Goodwin on 08/14/2018. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SHERRI CHIFFON ROWDEN,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. CIV-17-325-CG

OPINION AND ORDER
Plaintiff Sherri Chiffon Rowden 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”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The parties have
consented to the jurisdiction of a United States Magistrate Judge. Upon review of the
administrative record (Doc. No. 9, hereinafter “R. _”),1 and the arguments and authorities
submitted by the parties, the Court reverses the Commissioner’s decision and remands the
matter for further proceedings.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff initially filed a DIB application on July 30, 2012, alleging a disability-onset
date of March 20, 2012. R. 9. The SSA denied Plaintiff’s application on December 3,

With the exception of the administrative record, references to the parties’ filings use the
page numbers assigned by the Court’s electronic filing system.
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2012. R. 9. Plaintiff did not appeal this determination.2 R. 9. On July 19, 2013, Plaintiff
protectively filed a new DIB application, this time alleging a disability-onset date of March
22, 2012. R. 9, 168-174, 215, 242, 262. Following a denial of her application initially and
on reconsideration, a hearing was held before an Administrative Law Judge (“ALJ”) on
May 20, 2015. R. 29-71, 99-102, 106-08. In addition to Plaintiff, a vocational expert
(“VE”) testified at the hearing. R. 63-69. The ALJ issued an unfavorable decision on
October 8, 2015. R. 6-24.
The Commissioner of Social Security 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. At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since December 4, 2012. R. 11-12. At step two, the ALJ
determined that Plaintiff had the severe medically determinable impairments of fibromyalgia,
undifferentiated and mixed connective tissue disorder, hypertension, hepatitis C, asthma,
dysfunction of major joints, obesity, an affective disorder, an anxiety-related disorder, and a
somatoform disorder. R. 12. At step three, the ALJ found 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. R. 12-15.

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The ALJ, applying principles of res judicata and administrative finality, found no reason
to reopen Plaintiff’s initial application or the resulting SSA determination, and he further
determined that the relevant period for adjudicating Plaintiff’s present claim began on
December 4, 2012. R. 9.
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The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all
her medically determinable impairments. R. 15-23. The ALJ found that Plaintiff had the
residual functional capacity to
perform light exertion work as defined in 20 CFR [§] 404.1567(b) with the
following abilities and limitations: [Plaintiff] can occasionally lift and/or
carry (including upward pulling) 20 pounds; frequently lift and/or carry
(including upward pulling) 10 pounds; stand and/or walk (with normal
breaks) for a total of six hours in an eight-hour work day; sit (with normal
breaks) for a total of six hours in an eight-hour work day; [Plaintiff’s] ability
to push and/or pull (including operation of hand and/or foot controls) is
unlimited, other than as shown above for lift and/or carry above; [Plaintiff]
can never climb a ladder, rope, or scaffold; [Plaintiff] can occasionally
balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; [Plaintiff]
can perform simple tasks, detailed tasks, and some complex tasks; [Plaintiff]
can relate to others on a superficial work basis; and [Plaintiff] can adapt to a
work situation. [Plaintiff] has no other physical or mental limitations or
restrictions of any kind.
R. 15. Rather than making a step-four determination, the ALJ proceeded to step five of the
sequential evaluation process. R. 23.
At step five, the ALJ considered whether there are jobs existing in significant numbers
in the national economy that Plaintiff—in view of her age, education, work experience, and
RFC—could perform. R. 23-24. Relying upon the VE’s testimony, the ALJ found that
Plaintiff could perform light, unskilled occupations such as sales attendant, fast-food worker,
and blood-donor-unit assistant, and that such occupations offer jobs that exist in significant
numbers in the national economy. R. 24; see also R. 65-66. Therefore, the ALJ determined
that Plaintiff had not been disabled within the meaning of the Social Security Act during the
relevant period. R. 24.

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Plaintiff’s request for review by the SSA Appeals Council was denied on January 31,
2017, and the unfavorable determination of the ALJ stands as the Commissioner’s final
decision. See R. 1-3; 20 C.F.R. § 404.981.
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] 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, 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).

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ANALYSIS
In this action, Plaintiff argues that the ALJ erred by rejecting portions of, and not
providing “sufficient explanation” for his assignment of weight to, the opinion of Plaintiff’s
treating physician, Stanley Shadid, MD. See Pl.’s Br. (Doc. No. 16) at 10-13.
A. The Treating-Physician Rule
Specific SSA regulations govern the consideration of opinions by “acceptable
medical sources.” See 20 C.F.R. § 404.1502(a) (2015). The Commissioner generally gives
the highest weight to the medical opinions of a “treating source,” which includes a
physician who has provided the claimant “with medical treatment or evaluation” during a
current or past “ongoing treatment relationship” with the claimant. Id. § 404.1527(a)(2),
(c)(2); 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
matter to which it relates. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003);
see also 20 C.F.R. § 404.1527(c)(2). The opinion of a treating physician is given such
weight if it is both “‘well-supported by medically acceptable clinical and laboratory
diagnostic techniques’” and not inconsistent with the other substantial evidence in the
record. Watkins, 350 F.3d at 1300 (quoting SSR 96-2p, 1996 WL 374188, at *2 (July 2,
1996));3 20 C.F.R. § 404.1527(c)(2).

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Social Security Ruling 96-2p has been rescinded for claims filed on or after March 27,
2017. See Rescission of Social Security Rulings 96-2p, 96-5p, and 06-3p, 82 Fed. Reg.
15263-01 (Mar. 27, 2017).
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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).
B. Opinion of Dr. Stanley Shadid
The record reflects that Plaintiff received treatment from Dr. Shadid and his
colleagues at OU Physicians Family Medicine in September and October 2013. R. 303-31
(Ex. 4F) (records reflecting office visits and testing). On June 16, 2015, Dr. Shadid
completed a physical residual functional capacity questionnaire (the “PRFC”). R. 365-69
(Ex. 8F). Dr. Shadid assessed Plaintiff as having moderate limitation in her ability to deal
with work stress and found that Plaintiff’s symptoms would “frequently” interfere with her

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attention and concentration. R. 366. Dr. Shadid found that Plaintiff would need to walk
for periods of an eight-hour workday, but he did not specify how often or how long. R.
367. Dr. Shadid opined that Plaintiff would need the option to sit, stand, or walk “at will”
and the option to take unscheduled breaks; however, Dr. Shadid found that Plaintiff would
need to be absent from work less than once a month due to her impairments. R. 367, 369.
Dr. Shadid also stated that Plaintiff would not require an assistive device to ambulate,
would not need to elevate her feet during prolonged sitting, and would not have any
significant limitations with respect to repetitive reaching, handling, or fingering. R. 368.
Dr. Shadid left several questions on the form unanswered and wrote question marks next
to certain questions regarding Plaintiff’s exertional and postural capabilities. R. 365-69.
C. Discussion
In the written decision, the ALJ summarized Plaintiff’s treatment records from OU
Physicians Family Medicine and considered Dr. Shadid’s PRFC in detail. R. 17, 21.
Dr. Shadid opines [Plaintiff’s] experience of pain or other symptoms is
severe enough to “frequently” interfere with attention and concentration.
The undersigned finds that [Plaintiff’s] [RFC] fully and fairly satisfies such
opinion. Dr. Shadid also opines [Plaintiff] has a “moderate limitation” in her
ability to deal with work “stress.” However, Dr. Shadid did not define what
he meant by the term “moderate limitation[”;] nor did he define what he
meant by the term “stress.” If Dr. Shadid defines “moderate limitation” the
same as the Commissioner, then “moderate limitation” mean “there is more
than a slight limitation in this area, but the individual is still able to function
satisfactorily” (Medical Source Statement (Mental), definition of “moderate”
limitation, SSA Form HA-1152-U2). Concerning work “stress,” Dr. Shadid
did not identify any particular “stressor,” or any environment that would
relieve such “stressor.” The undersigned finds that [Plaintiff’s] [RFC] fully
and fairly satisfies such opinion. Thus, the undersigned gives some weight
to these statements by Dr. Shadid.

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The remainder of the doctor’s opinion is given little weight, as it is not a true
medical opinion. The opinion does not address [Plaintiff]’s maximum
remaining abilities, due to Dr. Shadid’s failure to render opinions on
exertional or other limitations. Also, Dr. Shadid declined to opine whether
[Plaintiff] can walk “less than ½ a block” without rest; declined to opine how
long [Plaintiff] can continuously sit or stand; declined to opine how many
hours total [Plaintiff] can sit in an eight-hour work day; declined to opine
how many total hours [Plaintiff] can stand/walk in an eight-hour work day;
did opine that [Plaintiff] needs periods of walking around during the eighthour work day, but declined to opine how often [Plaintiff] must walk or for
how long [Plaintiff] must walk each time; opined [Plaintiff] needs a job
which permits shifting positions at will from sitting, standing, or walking,
but the undersigned finds such opinion is entitled to very little weight; opined
[Plaintiff] must take unscheduled breaks during the eight-hour workday, but
declined to opine how often this will happen or for how long [Plaintiff] must
rest before returning to work; opined [Plaintiff] should not elevate her legs
with prolonged sitting; opined [Plaintiff] does not use a cane or other
assistive device while engaging in occasional standing/walking; declined to
opine how many pounds [Plaintiff] can lift and carry; opined [Plaintiff] has
no significant limitations in performing “repetitive” reaching, handling, or
fingering; declined to opine whether [Plaintiff] is likely to have “good days”
and “bad days”; opined [Plaintiff’s] impairments or treatment would cause
[Plaintiff] to be absent from work “less than once a month”; declined to
identify any other limitation; and declined to opine the earliest date of
limitations (Exhibit 8F).
R. 21-22.4
In evaluating this opinion, the ALJ stated that “it is not clear whether ‘Dr. Stanley Shadid’
is the same person as ‘Dr. Chris Shadid,’ and Dr. Chris Shadid, M.D., signed the [PRFC]
form.” R. 21. The relevant records indicate that these are the same person. For example,
the facility address on the treatment records matched the facility address on the PRFC, the
PRFC questions were addressed to “Dr. Stanley Shadid,” and Plaintiff’s attorney identified
the author of the PRFC as “claimant’s treating physician Dr. Stanley Shadid” when the
opinion was submitted to the ALJ. See R. 303, 308, 315, 365, 369. For the purpose of the
Court’s analysis, it is assumed that the ALJ considered the author of the PRFC to be a
treating physician—a point not clearly stated in the written decision. On remand, the ALJ
should either make that determination explicitly or state what medical relationship he
concludes the author of the PRFC did have with Plaintiff. See 20 C.F.R. § 404.1527(c)(1)(2); see also Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (noting that reversal
is required if the ALJ fails “to apply correct legal standards” or to show the court that he
or she has done so).
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A medical opinion is a “statement[] from [an] acceptable medical source[] that
reflect[s] judgments about the nature and severity” of a claimant’s impairments, including
“symptoms, diagnosis and prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant’s] physical or mental restrictions.”
404.1527(a)(1).

20 C.F.R. §

Dr. Shadid’s responses on the PRFC directly addressed Plaintiff’s

physical and mental conditions, prognosis, symptoms, capabilities, and work-related
limitations. R. 365-69. The ALJ, however, disregarded much of the PRFC as “not a true
medical opinion” because its statements as to what Plaintiff was still able to do were
accompanied by some questions on the preprinted form that Dr. Shadid declined to answer.
R. 21-22.
Defendant cites no authority to support this approach. The Court concludes that the
rationale given by the ALJ does not constitute a “legitimate reason[]” to reject the PRFC’s
specific statements as to Plaintiff’s restrictions and abilities. Drapeau v. Massanari, 255
F.3d 1211, 1213 (10th Cir. 2001) (internal quotation marks omitted); cf. Robinson v.
Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (“In choosing to reject the treating
physician’s assessment, an ALJ may not make speculative inferences from medical reports
. . . .” (internal quotation marks omitted)). The ALJ was obligated to treat those opinions
set forth by Dr. Shadid in the PRFC as treating-physician opinions. See Watkins, 350 F.3d
at 1300. When a physician answers some questions but not others on a standard form, the
absence of information on one point may affect the weight to be assigned an opinion
rendered on a factually related point. But a mere failure to answer all the questions on the

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form does not permit the ALJ to treat the answers given as something other than medicalsource opinions.
Accordingly, it cannot be said that the ALJ properly evaluated Dr. Shadid’s medical
opinion, and remand is warranted. See Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir.
2011).
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 14th day of August, 2018.

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