Ricketts v. Commissioner of Social Security Administration

Filing 18

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. Based on the forgoing analysis, the Court REVERSES AND REMANDS the Commissioners decision for further administrative development. Signed by Magistrate Judge Shon T. Erwin on 12/28/18. (mc)

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

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-17-529-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
application 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 AND
REMANDS the Commissioner’s decision.
I.

PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff’s

application for benefits. Following an administrative hearing, an Administrative Law Judge
(ALJ) issued an unfavorable decision. (TR. 18-33). 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.
§ 404.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity between his alleged onset date of February 4, 2008 through his last date
insured, June 30, 2013. (TR. 20). At step two, the ALJ determined Mr. Ricketts had the
following severe impairments: degenerative disc disease of the back; diabetes; obesity;
depressive disorder; and anxiety disorder. (TR. 20). 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. 21).
At step four, the ALJ concluded that Mr. Ricketts retained the residual functional
capacity (RFC) to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) in that the
claimant was able to lift, carry, push and/or pull ten pounds occasionally
and less than ten pounds frequently; sit for the total of six hours throughout
an eight-hour workday; and, stand and/or walk the total of two hours
throughout an eight-hour workday. The claimant was able to occasionally
kneel, crouch, crawl, stoop, and climb ramps and stairs, but was not able
to climb ladders, ropes, or scaffolds. The claimant was able to adapt to work
situations. The claimant was able to perform simple and some complex
tasks with routine supervision. The claimant was able to interact
appropriately with supervisors and co-workers and have occasional public
contact, but no customer service work.

2

(TR. 24). With this RFC, the ALJ concluded that Plaintiff was unable to perform any past
relevant work. (TR. 32). As a result, the ALJ made additional findings at 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 Plaintiff could perform. (TR. 64).
Given the limitations, the VE identified three jobs from the Dictionary of Occupational
Titles (DOT). (TR. 64-65). The ALJ adopted the testimony of the VE and concluded that
Mr. Ricketts was not disabled based on his ability to perform the identified jobs. (TR. 33).
III.

ISSUES PRESENTED
On appeal, Plaintiff alleges the ALJ erred in her consideration of a treating

physician’s opinion which, in turn, affected the RFC and step five findings.
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).

3

V.

THE ALJ’S EVALUATION OF DR. ODOR’S OPINION
Plaintiff’s treating physician, Dr. James Odor, opined that Plaintiff suffered

limitations involving “restricted” bending and twisting and that Plaintiff could not crawl or
climb. (TR. 522, 526, 528, 530). Mr. Ricketts alleges that the ALJ erred in evaluating
these opinions, by failing to weigh the opinions and include related limitations in the RFC.
(ECF No. 13:2-11). The Court agrees with Mr. Ricketts, but only finds reversible error
with respect to the limitation involving twisting.
A.

ALJ’s Duty to Assess a Treating Source’s Opinion

Specific SSA regulations govern the consideration of opinions by “acceptable
medical sources.” See 20 C.F.R. §§ 404.1502, 404.1513(a). The Commissioner generally
gives the greatest 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.” Id. §§ 404.1502, 404.1527(c);

Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).
An ALJ must follow a particular analysis in evaluating a treating source’s opinion.
First, the ALJ has to determine, then explain, whether the opinion is entitled to controlling
weight. Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004). An opinion is entitled
to controlling weight if it is “well supported by medically acceptable clinical and laboratory
diagnostic techniques and is consistent with the other substantial evidence in the record.”

Allman v. Colvin, 813 F.3d 1326, 1331 (10th Cir. 2016) (citation and internal quotation
marks omitted). “But if the ALJ decides that the treating physician’s opinion is not entitled

4

to controlling weight, the ALJ must then consider whether the opinion should be rejected
altogether or assigned some lesser weight.” Id. (internal quotation marks omitted).
In doing so, the ALJ must assess the opinion under a series of factors which include:
(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. Id. at 1331-1332 (internal quotation marks omitted);

Krausner v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011); 20 C.F.R § 404.1527.
Ultimately, an ALJ “must give good reasons for the weight assigned to a treating
physician’s opinion,” and “[t]he reasons must be sufficiently specific to make clear to any
subsequent reviewers the weight the [ALJ] gave to the treating source’s medical opinion
and the reason for that weight.” Allman, 813 F.3d at 1332. If the ALJ rejects an 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).
“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

5

own credibility judgments, speculation, or lay opinion.” Robinson v. Barnhart, 366 F.3d
1078, 1082 (10th Cir. 2004) (internal quotation marks omitted).
B.

Dr. Odor’s Opinions

Dr. Odor treated Plaintiff for back pain between February 2008 and March 2014.
(TR. 511-579). On May 13, 2013, Dr. Odor stated that Plaintiff had limitations involving
“no repetitive bending [or] twisting” and that Mr. Ricketts could not crawl or climb. (TR.
529-30). Although at that time, Dr. Odor stated that Plaintiff had achieved “maximum
medical improvement,” additional records from Dr. Odor were dated June 20, 2013,
August 26, 2013, January 13, 2014, February 20, 2014, and March 4, 2014. (TR. 517519, 521-522, 526, 528-530). In the June and August records, Dr. Odor indicated that
Plaintiff’s limitations had not changed since the May 13, 2013 opinion. (TR. 526, 528).
On January 13, 2014, Dr. Odor stated that he would send a final report regarding
Plaintiff’s “permanent restrictions” following a “functional capacities evaluation” (FCE).
(TR. 521). The FCE was performed on February 20, 2014 and stated that Mr. Ricketts
could “occasionally” climb, but that Plaintiff refused to be tested on abilities involving
axial rotation, crouching and stooping. (TR. 518). In the report and final letter dated
March 4, 2014, Dr. Odor stated:
Mr. Ricketts’ positional/agility tests indicate the position of kneeling,
crouching/squatting, stooping, axial rotation and overhead reaching were
unable to be evaluated today secondary to Mr. Ricketts voluntarily ending
his FCE. . . . This report indicated the presence of low physical effort [and]
would indicate the result of this evaluation for [Plaintiff] IS NOT a reliable
representation of his current safe functional abilities.
(TR. 518-519) (emphasis in original).

6

C.

Error in the Evaluation of Dr. Odor’s Opinions

The ALJ summarized a good deal of Dr. Odor’s treatment notes and specifically
cited Dr. Odor’s May 13, 2013 opinion involving “permanent restrictions including no
repetitive bending [or] twisting.” (TR. 26). However, the ALJ did not state whether she
believed the opinion or was according it any weight, nor did she make any comment on:
(1) Dr. Odor’s May 13, 2013 limitation involving Plaintiff’s inability to climb or crawl, or
(2) Dr. Odor’s FCE report. (TR. 25-26). The RFC allowed for “occasional” bending,1
crawling, and climbing ramps and stairs, and no climbing ladders, ropes, and scaffolds.
(TR. 24). The RFC did not discuss twisting.
Plaintiff takes issue with the ALJ’s treatment of Dr. Odor’s opinion, arguing: (1)
the ALJ failed to assign any weight to Dr. Odor’s May 13, 2013 opinions, (2) the ALJ failed
to include Dr. Odor’s May 13, 2013 limitations on crawling, climbing, bending, and twisting
in the RFC, and (3) the error in the hypothetical negatively impacted the step five findings
regarding Plaintiff’s ability to perform other jobs. (ECF No. 13:2-11).2
The Court agrees that the ALJ erred when she: (1) summarized, yet failed to
comment on, Dr. Odor’s May 13, 2013 opinions involving Plaintiff’s inability to crawl or

The actual RFC allowed for occasional stooping, crouching, and kneeling. (TR. 24). The Social
Security Administration has defined these three postural activities as “bending.” SSR 85-15, at *2
(1985).
1

Plaintiff also argues that the ALJ failed to explain why opinions from a medical expert and
agency physicians received more weight than Dr. Odor, the treating physician. (ECF No. 13:7).
but the Court need not address the argument as it may be affected following the remand and
reconsideration of Dr. Odor’s Opinion.
2

7

climb or engage in in repetitive bending and twisting and (2) failed to comment at all
regarding the FCE report, which Dr. Odor stated would reflect Mr. Ricketts’ “permanent
restrictions.” See Allman, 813 F.3d at 1332 (noting that an ALJ “must give good reasons
for the weight assigned to a treating physician’s opinion,” and “[t]he reasons must be
sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave
to the treating source’s medical opinion and the reason for that weight.”).
The next inquiry is whether the errors were harmless. An initial issue involves a
discussion of what, exactly, Dr. Odor’s opinions were on the limitations involving climbing,
crawling, bending, and twisting. Plaintiff argues that the RFC and resulting hypothetical
failed to reflect the May 13, 2013 opinions involving no climbing or crawling and no
repetitive bending or twisting. (ECF No, 13:3, 8). But Dr. Odor stated that Plaintiff’s
“permanent restrictions” would be issued following the FCE report, and that report: (1)
allowed for “occasional” climbing, (2) failed to mention crawling, and (3) made no
comment on Plaintiff’s ability to twist and/or bend due to Plaintiff’s failure to perform
those activities. (TR. 517-518).
Even though Plaintiff relies on the May 13, 2013 opinions, he admits that “since .
. . the jobs [cited by the VE and adopted by the ALJ] do not require stooping or crouching,
the failure to include the bending limitation in the RFC is, indeed, harmless error.” (ECF
No. 13:8). Plaintiff is correct. See Jones v. Berryhill, Case No. 17-1107, slip op. at 3-4
(10th Cir. Dec. 21, 2017) (concluding that “any error in the ALJ’s step-four finding was
harmless” given the ALJ’s alternative finding at step five that the plaintiff could work in a

8

job which did not require the particular abilities challenged by the plaintiff); Lara v. Colvin,
No. CIV–12–1249–L, 2014 WL 37746, at *1, *4 (W.D. Okla. Jan. 6, 2014) (holding that
the ALJ’s failure to include limitation to relating with supervisors and peers on a superficial
basis in RFC was harmless error where one of the occupations identified by the VE did
not require interaction on more than a superficial basis); cf. Chrismon v. Colvin, 531 F.
App’x. 893, 899–900 (10th Cir. 2013) (holding that ALJ’s failure to include all limitations
from RFC in hypothetical question to VE was harmless when two of the four occupations
identified by the VE were consistent with RFC); see generally Keyes–Zachary v. Astrue,
695 F.3d 1156, 1162–63 (10th Cir. 2012) (indicating that harmless-error analysis may be
appropriate where ALJ did not properly consider evidence but “no reasonable
administrative factfinder, following the correct analysis, could have resolved the factual
matter in any other way” (internal quotation marks omitted)).
This same “harmless error” analysis can also be applied to the limitations involving
crawling and climbing, regardless of whether Dr. Odor’s final opinion on these issues was
the May 13, 2013 opinion or the FCE report, because these abilities were not required in
any of the jobs relied on by the VE and adopted by the ALJ. See DOT #690.685-194
(Grinding Machine Operator); DOT #690.685-258 (Laminator I); and DOT #669.687-014
(Dowel Inspector); see TR. 33.
However, the Court reaches a different conclusion regarding the limitation on
twisting. As discussed, an initial issue involves a determination of what Dr. Odor’s opinion
was regarding Plaintiff’s ability to twist. On May 13, 2013, the physician stated that

9

Plaintiff could not engage in repetitive twisting. (TR. 529-30). However, post-dating this
opinion was the FCE report, where Dr. Odor stated that Plaintiff failed to engage in “axial
rotation” which resulted in a finding that the report was “not reliable” regarding Mr.
Rickett’s functional abilities. (TR. 517-518). Because Dr. Odor had stated that the FCE
would reflect Plaintiff’s “permanent retractions,” a reasonable person could presume that
the FCE report would override any prior opinions on the subject.
Assuming that presumption to be true, the record was ambiguous on the issue of
twisting when the Court considers Dr. Odor’s May 13, 2013 opinion (no repetitive twisting)
and an opinion from a treating physician’s assistant on June 7, 2016, that Plaintiff had
been suffering severe back pain which was “ach[ing], deep, discomforting, stabbing, and
throbbing” when he did any “twisting movement.” (TR. 650). Because evidence exists
which indicates that Plaintiff may suffer from a limitation on twisting, but the treating
physician’s final opinion on the matter was inconclusive, the ALJ should have ordered a
consultative examination to resolve the matter. See Thompson v. Sullivan, 987 F.2d 1482,
1492 (10th Cir. 1993) (“It matters that the ALJ did not order a consultative examination
or call a vocational expert because the medical evidence in the record is inconclusive[.]”);

Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) (an ALJ must order a
consultative exam when there is a “reasonable possibility of the existence of a disability
and the result of the consultative exam could reasonably be expected to be of material
assistance in resolving the issue of disability.”).

10

Without resolution of a final opinion regarding Plaintiff’s ability to twist, the Court
cannot further discuss the ALJ’s treatment of Dr. Odor’s opinion on the matter. However,
for the sake of argument, assuming that the relevant opinion was Dr. Odor’s May 13,
2013 opinion (as Plaintiff asserts) the ALJ would have erred in failing to discuss the
opinion or assign it weight, see supra, and the Court would not have deemed the error
harmless. As Plaintiff notes, testimony from a VE is required regarding whether a
particular job could be performed with a twisting limitation because that particular
limitation is not addressed by the Selected Characteristics of Occupations (SCO) which
applies to jobs outlined in the DOT. See Mehlohoff v. Colvin, 2015 WL 4666158, at *10
(N.D. Okla. 2015).3 Here, the VE did not testify regarding whether an individual with a
twisting limitation could perform the identified jobs, precluding a finding of harmlessness.
In sum, the ALJ erred in failing to explain the weight he provided to any of Dr.
Odor’s opinions. On remand, the ALJ should re-evaluate Dr. Odor’s opinion, and if

In Mehlohoff, a treating physician imposed twisting limitations on the plaintiff and the ALJ noted
the opinion and stated that the RFC was consistent with the opinion. Mehlohoff, at *9. On appeal,
the Court found that in fact, the RFC was not consistent with the opinion on twisting, and that
the error was not harmless, because “The SCO does not address the physical demand of twisting,
so the ALJ would have to rely on the testimony of a vocational expert to determine whether
plaintiff could perform other work with a limitation on twisting.” Id. at *10. Ms. Berryhill disputes
Mr. Ricketts’ reliance on Mehlohoff stating that the district court only remanded “for clarification
of a physician’s opinion that the claimant would lift, bend, or twist only 15 times an hour.” (ECF
No. 15:8, n. 6) (emphasis in original, internal citation omitted). Defendant is wrong. The district
court remanded because The ALJ misstated the actual twisting limitation and failed to explain
why it was omitted from the RFC. As a result, the district court stated that the ambiguity, not the
existence of the RFC as the ALJ had stated, should be “clarified on remand.” Mehlohoff v. Colvin,
2015 WL 4666091, at *6 (N.D. Okla. Aug. 6, 2015). Furthermore, the district court did not reject
the magistrate judge’s findings regarding the necessity of VE testimony on the issue of twisting,
as Ms. Berryhill implies.
3

11

necessary, seek a consultative examination for clarification of any issues regarding
Plaintiff’s work-related limitations. The ALJ shall explain his reasons for the weight
accorded to Dr. Odor’s opinions so that any subsequent reviewer is able to ascertain the
ALJ’s reasoning.
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.
Based on the forgoing analysis, the Court REVERSES AND REMANDS the
Commissioner’s decision for further administrative development.
ENTERED on December 28, 2017.

12