Hanaway v. Commissioner of Social Security Administration

Filing 20

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 Honorable Charles Goodwin on 09/18/2018. (jb)

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

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Case No. CIV-17-565-G

OPINION AND ORDER
Plaintiff Wendy Hanaway 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, and for
supplemental security income (“SSI”) under Title XVI of the Social Security Act, id. §§
1381-1383f. Upon review of the administrative record (Doc. No. 10, hereinafter “R. _”), 1
and the arguments and authorities submitted by the parties, the Court reverses the
Commissioner’s decision and remands for further proceedings.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed her DIB and SSI applications on June 16, 2014. Her
disability-onset date was ultimately alleged to be December 17, 2013. R. 23, 79, 194-206.
Following denial of her applications initially and on reconsideration, a hearing was held
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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before an Administrative Law Judge (“ALJ”) on November 13, 2015. R. 84-85, 107-108,
42-81. The ALJ issued an unfavorable decision on March 28, 2016. R. 20-41.
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 December 17, 2013, the alleged disability-onset date.
R. 25. At step two, the ALJ determined that Plaintiff had the severe impairments of
degenerative disc disease of the cervical and lumbar spine, osteoarthritis, status post
residuals of gunshot wound to the left leg, and sensorineural hearing loss in the left ear
with tinnitus. R. 25-27. 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. 27.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all
her medically determinable impairments. R. 27-36. The ALJ found:
[Plaintiff] has the [RFC] to perform sedentary work . . . except occasionally
climb ramps and stairs, but avoid the climbing of ladders, ropes and
scaffolds; frequently balance, occasionally stoop, kneel, crouch and crawl;
occasionally use the bilateral upper extremities for reaching overhead; avoid
no more than occasional exposure to extreme cold, vibration and workplace
hazards, such as unprotected heights and hazardous machinery. This
individual will occasionally require the use of a cane to ambulate to and from
the workstation. This individual will require a sit/stand option that allows
the person to change positions from sitting to standing every 30 minutes,
remaining at the workstation and still remain productive.
R. 27.

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At step four, the ALJ considered the hearing testimony of a vocational expert
(“VE”) and found that Plaintiff was able to perform her past relevant work as an
Administrative Assistant, Receptionist, and Claims-Services Representative. R. 36-37.
The ALJ therefore determined that Plaintiff had not been disabled within the
meaning of the Social Security Act during the relevant time period. R 37; see 20 C.F.R.
§§ 404.1520(a)(4)(iv), (f), .1560(b)(3); id. §§ 416.920(a)(4)(iv), (f), .960(b)(3). Plaintiff’s
request for review by the Appeals Council was denied, and the unfavorable determination
of the ALJ stands as the Commissioner’s final decision. R. 1-4; 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] 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
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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).
ANALYSIS
In this action, Plaintiff challenges the ALJ’s RFC determination. Specifically,
Plaintiff criticizes the ALJ’s failure to expressly adopt a limitation on movement of the
neck and spine that had been recommended by Plaintiff’s treating neurosurgeon, Michael
Hahn, MD. See Pl.’s Br. (Doc. No. 14) at 2-9, 11-13.
I.

The Relevant Record and Written Decision
Plaintiff visited Dr. Hahn a total of three times, primarily for issues regarding her

cervical spine. On September 23, 2013, Plaintiff presented with a complaint of neck pain
with arm and hand weakness following a disc-fusion surgery in 2000, a workplace neck
injury in 2011, and another disc-fusion surgery in 2012. R. 499-502. The ALJ accurately
summarized Dr. Hahn’s impressions from this visit: “[Plaintiff] did have good strength in
all major muscle groups of the upper extremities, hand grips and hand intrinsics. The
flexion and extension x-ray showed no obvious motion.” R. 30; see R. 500-01. Dr. Hahn
referred Plaintiff for a cervical-spine MRI (R. 513-14), which “showed only mild adjacent
level disease” and “no significant neurologic compression.” R. 495. At Plaintiff’s visit of
January 16, 2014, Dr. Hahn ordered a CT scan and opined that Plaintiff could “perform
light duty work with no lifting greater than twenty-five pounds and no significant pushing,
pulling, climbing, crawling or stooping.” R. 495.

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As summarized by the ALJ, at Plaintiff’s visit of March 13, 2014, Dr. Hahn reported
that Plaintiff “had improved lately and the CT scan showed a very solid fusion within the
disc spaces at the two levels of her cervical spine.” R. 36; see R. 489-92. As further noted
by the ALJ, Dr. Hahn “recommended no additional surgical intervention and released her
at maximum medical improvement from a neurosurgical standpoint. He recommended a
25-pound permanent weight lifting restriction with minimal motion of the neck and spine.”
R. 36; see also R. 31, 491.
In the written decision, the ALJ twice discussed Dr. Hahn’s opinions, including the
“minimal motion of the neck and spine” recommendation. R. 31, 36. The ALJ stated that
she “affords greater weight to the opinion” of this “treating physician,” which “is well
supported by medically acceptable clinical and laboratory findings, and is consistent with
the record when viewed in its entirety.” R. 36.
II.

Whether the ALJ’s RFC Determination Is Legally Flawed
Plaintiff argues, in essence, that the ALJ erred by giving “great[] weight” to Dr.

Hahn’s opinion but failing to expressly incorporate Dr. Hahn’s “minimal motion of the
neck and spine” limitation into the RFC determination. According to Plaintiff, this
omission constituted improper “cherry-picking” and is not adequately explained by the
written decision. Pl.’s Br. at 2-9, 11-13. Defendant agrees that the ALJ failed to adopt the
“more restrictive portions of Dr. Hahn’s opinion” but argues that this omission was proper.
Def.’s Br. (Doc. No. 15) at 2-11.
When an ALJ considers a treating-physician’s opinion, the ALJ’s decision “‘must
be sufficiently specific to make clear to any subsequent reviewers the weight the
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adjudicator gave to the treating source’s medical opinion and the reasons for that weight.’”
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting SSR 96-2p, 1996 WL
374188, at *5 (July 2, 1996)). Here, there is no such specificity: despite finding Dr. Hahn’s
opinion to be well supported and consistent with the record, R. 36, the ALJ apparently
rejected the portion of the opinion regarding movement of the neck and spine. An ALJ
“may reject a treating physician’s opinion outright only on the basis of contradictory
medical evidence” and only if he or she “give[s] specific, legitimate reasons for doing so.”
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (internal quotation marks
omitted); Watkins, 350 F.3d at 1301 (internal quotation marks omitted); see also SSR 968p, 1996 WL 374184, at *7 (July 2, 1996) (“If the RFC assessment conflicts with an
opinion from a medical source, the adjudicator must explain why the opinion was not
adopted.”); Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (“[T]he ALJ . . . must
discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects.”). The ALJ in the written decision provides no specific
reason for rejecting the limitation on movement of the neck and spine.
Defendant argues that the ALJ’s rejection of this aspect of Dr. Hahn’s opinion was
“reasonabl[e]” and that she “gave good reasons for . . . doing so.” Def.’s Br. at 6, 7.
Specifically, Defendant argues that there was other evidence cited by the ALJ elsewhere
in the decision that supports the ALJ’s RFC determination and that “Dr. Hahn’s opinion
was inconsistent with his findings of normal upper extremity functioning including
strength/hand grips.” Id. at 6, 7-8. But the ALJ’s assignment of great weight was without
reservation, and the ALJ did not in any way indicate that he was rejecting the movement
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limitation due to the inconsistency noted by Defendant. A reviewing 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.” Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007).
In sum, the ALJ’s written decision fails to show that he followed the correct legal
standards in forming the RFC determination. See Hamlin v. Barnhart, 365 F.3d 1208, 1214
(10th Cir. 2004).2
III.

Whether the ALJ’s Error Was Harmless
Defendant implies that any error by the ALJ was harmless because the descriptions

for the occupations relied on by the ALJ at step four, as set forth in the Dictionary of
Occupational Titles (“DOT”), do not require “particular positioning of the head or neck.”
Therefore, according to Defendant, there was no conflict between the three occupations’
requirements and the DOT, and “[t]he ALJ’s RFC assessment did not preclude” Plaintiff’s
performance of any of these occupations. Def.’s Br. at 15. Plaintiff, however, argues that
the ALJ’s failure to include the “minimal motion of neck and spine” limitation in the
relevant VE hypothetical renders the step-four conclusion unsupported by substantial
evidence, contending that the VE’s testimony established that the occupations3 identified

Another possible reading of the ALJ’s decision is that the ALJ did not reject Dr. Hahn’s
limitation but found a sedentary RFC determination to be consistent with such a limitation.
Plaintiff asserts the opposite, however, and Defendant agrees. Under either reading, the
decision lacks the clarity of explanation required for meaningful judicial review.
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Plaintiff erroneously states that the ALJ found Plaintiff could return to seven previous
jobs. The ALJ found that Plaintiff was capable of performing only three previous jobs.
Compare Pl.’s Br. at 12, with R. 36-37.
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by the ALJ at step four cannot be performed by someone subject to such a limitation. See
Pl.’s Br. at 10-13; R. 74-77.
The Court is constrained to agree with Plaintiff that the ALJ’s step-four conclusion
lacks sufficient supporting evidence. At the hearing, the VE relied upon the DOT listings
for Administrative Assistant, Receptionist, and Claims-Services Representative to opine
that an individual with the written decision’s RFC would be able to perform those three
occupations. R. 74-77 (citing DOT (4th rev. ed. 1991) 169.167-010, 1991 WL 647424
(Administrative Assistant); id. 237.367-038, 1991 WL 672192 (Receptionist); id. 249.362026, 1991 WL 672320 (Order Clerk or “Claims-Services Representative”). The VE was
then asked by Plaintiff’s counsel whether an individual with nearly all the same limitations
as reflected in the ALJ’s hypothetical, but with “severe neck problems that prohibited the
ability to look up and down from, say, a computer screen,” would be able to perform any
of the occupations. R. 78. The VE answered:
I don’t think so. You’re going to have to be able to look down more than up,
but the computer screen is not normally going to be higher. It’s going to be
in front of you or even lower. Not so much always to look at a computer
screen, but to look at a keyboard and the other paperwork that might be
beyond. If they cannot look forward or down, I don’t think they could
maintain those jobs. They’re going to be in a static position. Very hard to
do that kind of work.
R. 78. The Commissioner does not dispute Plaintiff’s assumption that looking up and down
from a computer screen is inconsistent with a limitation to “minimal motion of the neck
and spine.”
This testimony leaves the Court unable to find that the ALJ’s improper evaluation
of Dr. Hahn’s treating-physician opinion was harmless. Although the DOT does not
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address head and neck motion in describing the requirements of the relevant occupations,
the VE did so and affirmatively testified that such a limitation would render the cited
occupations unavailable. Compare DOT 169.167-010, 1991 WL 647424, and id. 237.367038, 1991 WL 672192, and id. 249.362-026, 1991 WL 672320, with R. 76-78. Thus, it
cannot be said that the ALJ’s RFC error did not “affect[] the outcome in this case” or render
the step-four conclusion unsupported by substantial evidence.4 Keyes-Zachary v. Astrue,
695 F.3d 1156, 1173 (10th Cir. 2012).
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 18th day of September, 2018.

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Because reversal is warranted based upon the errors outlined above, the Court need not
address Plaintiff’s remaining arguments. See Watkins, 350 F.3d at 1299.
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