Mitchell v. Commissioner of Social Security Administration

Filing 24

OPINION AND ORDER. The decision of the Commissioner is REVERSED and REMANDED in accordance with sentence four of 42 U.S.C. § 405(g). Signed by Honorable Charles Goodwin on 03/14/2019. (jb)

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

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-17-889-G

OPINION AND ORDER
Plaintiff Dawn Mitchell 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.

Upon review of the

administrative record (Doc. No. 15, hereinafter “R. _”) and the arguments and authorities
submitted by the parties, the Court reverses the Commissioner’s decision and remands the
matter for further proceedings.1
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed her application for DIB on February 12, 2014, alleging a
disability onset date of January 1, 2014, as amended. R. 19, 204-12, 230, 231-33, 242-55.
Following denial of Plaintiff’s application initially and on reconsideration, an

1

With the exception of the administrative record, references to the parties’ filings use the
page numbers assigned by the Court’s electronic filing system.

administrative law judge (“ALJ”) held a hearing. R. 46-85, 114-18, 123-25. The ALJ
issued an unfavorable decision on July 28, 2016. R. 19-39.
The Commissioner uses a five-step sequential evaluation process to determine
eligibility for disability benefits. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20
C.F.R. § 404.1520, .1520(a)(4). At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity during the period from her alleged onset date of January 1,
2014, through her date last insured of December 31, 2014. R. 21. At step two, the ALJ
determined that Plaintiff had the severe impairments of: degenerative disc disease; post
2008 lumbar fusion; osteoarthritis; degenerative joint disease in hip; and asthma. R. 2124. At step three, the ALJ determined that Plaintiff’s impairments did not meet or equal
any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. R. 24-25.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all
of her impairments. R. 25-38. The ALJ found that Plaintiff had the RFC to perform
sedentary work subject to the additional limitations that Plaintiff can:
never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs;
frequently balance; occasionally stoop, kneel, crouch, or crawl; tolerate
occasional exposure to environmental irritants such as fumes, odors, dusts
and gases.
R. 25; see 20 C.F.R. § 404.1567(a) (defining “sedentary work”). At step four, the ALJ
found that Plaintiff was unable to perform any past relevant work and that transferability
of job skills was not a material issue. R. 38.

2

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. Taking into consideration the hearing testimony of
a vocational expert regarding the degree of erosion to the unskilled sedentary occupational
base caused by Plaintiff’s additional limitations, the ALJ concluded that Plaintiff could
perform occupations such as telephone information clerk, document preparer, and foodand-beverage order clerk, all of which offer jobs that exist in significant numbers in the
national economy. R. 38-39. On this basis, the ALJ concluded that Plaintiff had not been
under a disability, as defined in the Social Security Act, from January 1, 2014, the alleged
onset date, through December 31, 2014, the date last insured. R. 39. The SSA Appeals
Council denied Plaintiff’s request for review, making the ALJ’s unfavorable decision the
final decision of the Commissioner. R. 1-6; see also 20 C.F.R. § 404.981. This action for
judicial review followed.
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)

3

(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).
ANALYSIS
In this action, Plaintiff alleges that the ALJ failed to properly consider various
medical opinions, resulting in the improper omission of certain restrictions from the RFC
assessment. See Pl.’s Br. (Doc. No. 18) at 6-20. The Court agrees.
A. Whether the RFC should have included restrictions on overhead reaching
Among Plaintiff’s first arguments is the assertion that the ALJ failed to properly
consider the opinion of her treating orthopedic surgeon Michael H. Wright, MD. See id.
at 2. Dr. Wright treated Plaintiff in 2007, performed her spinal surgery in 2008, and
continued to treat her through May of 2009. See, e.g., R. 340-42, 389, 392, 498. On March
5, 2009, Dr. Wright released Plaintiff to “light [work] duty with 10 pounds lifting, 10
pounds pushing and pulling, sedentary work.” R. 509. The ALJ gave this opinion great
weight. R. 29. Subsequently, on May 21, 2009, Dr. Wright released Plaintiff to work with
“permanent restrictions of no lifting more than 25 pounds, no pushing or pulling more than
40 pounds, occasional bending and stooping, limited overhead work.” R. 498 (finding that

4

Plaintiff had “achieved a point of maximum medical improvement from conservative
care”). The ALJ did not discuss this opinion. See R. 27-36.
Plaintiff contends that it was error the ALJ to rely upon the March 5, 2009 temporary
restrictions rather than the May 21, 2009 permanent restrictions. The Court agrees that
permanent, later-issued restrictions are generally more probative of a claimant’s abilities
than are temporary restrictions. The ALJ’s written decision does not reflect that the ALJ
properly considered or was even aware of Dr. Wright’s final opinion. Moreover, the ALJ’s
RFC determination does not include a limitation on overhead work; nor does the written
decision address that omission.
An ALJ may reject the opinion of a treating physician, but only upon supplying
“specific, legitimate reasons” for doing so. Drapeau v. Massanari, 255 F.3d 1211, 1213
(10th Cir. 2001). The ALJ’s rejection of Dr. Wright’s later opinion fails to comply with
this legal standard as it fails to adequately explain the ALJ’s basis for omitting overhead
limitations from the RFC. See Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003); 20
C.F.R. § 404.1527(c); see also SSR 96-8p, 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 . . . significantly probative evidence he rejects.”);
Lately v. Colvin, 560 F. App’x 751, 754 (10th Cir. 2014) (“[W]hen an ALJ fails to explain
the reasons for not crediting a medical source opinion we cannot meaningfully review the
ALJ’s determination . . . .” (citation and internal quotation marks omitted)).

5

Plaintiff also asserts that the ALJ failed to properly consider the opinion of treating
neurosurgeon Robert L. Remondino, MD. See Pl.’s Br. at 6. Dr. Remondino treated
Plaintiff in 2009 and, as the ALJ acknowledged, limited Plaintiff to “a 20-pound weight
limit and restricted overhead work.” See R. 476, 482, 495; see also R. 30. The ALJ gave
moderate weight to Dr. Remondino’s opinion, stating that “the evidence documents [Dr.
Remondino’s] impression of work related injury resulting in pain to the neck, left shoulder,
back, and left leg.” R. 30. But as noted the ALJ did not adopt any overhead-work
restrictions in the RFC and did not explain why she omitted them. Thus, the ALJ’s
rejection of Dr. Remondino’s opinion regarding overhead reaching likewise fails to comply
with the legal standards set forth above.

2

Defendant points out that the ALJ ultimately found that Plaintiff was more limited
in her lifting, pushing, and pulling abilities then was reflected in Dr. Wright’s permanent
restrictions or Dr. Remondino’s restrictions. See Def.’s Br. (Doc. No. 22) at 7. As such,
Defendant argues, Plaintiff cannot establish error because giving greater weight to either
of those opinions would not have helped her. Se id. The ALJ’s RFC did not include

2

With respect to Dr. Wright’s opinion, Plaintiff also argues that the ALJ erred in failing to
include in the RFC limitations for occasional bending or stooping. See Pl.’s Br. at 6.
Alternatively, Plaintiff argues that the ALJ should not have considered Dr. Wright’s or Dr.
Remondino’s opinions at all because they are “stale.” Id. at 6-7. Based on the
recommendation of remand, the Court need not address these claims. See Watkins v.
Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the remaining issues
raised by appellant because they may be affected by the ALJ’s treatment of this case on
remand.”).
6

limitations on overhead reaching, however, and thus was not more limited than the
physicians’ opinions in that regard.
Defendant also argues that the ALJ’s limitation to sedentary work “adequately
accounts for Plaintiff’s physical limitations.” Id. at 8 (citing R. 25; 20 C.F.R. § 1567(a)).
Neither the regulatory definition of sedentary work nor the ALJ’s description of sedentary
work addresses reaching, however. See 20 C.F.R. § 1567(a); R. 25; cf. Saiz v. Barnhart,
392 F.3d 397, 400 (10th Cir. 2004) (stressing the importance of considering limitations in
a plaintiff’s ability to reach in conjunction with a sedentary RFC); SSR 85-15, 1985 WL
56857, at *7 (Jan. 1, 1985) (noting that reaching is “required in almost all jobs” such that
“[s]ignificant limitations of reaching . . . may eliminate a large number of occupations a
person could otherwise do”).
Finally, Defendant argues that Plaintiff “does not attempt to establish conflicts with
the tasks required of a telephone information clerk, document preparer, or food and
beverage clerk—the jobs that the ALJ ultimately found she could perform.” Def.’s Br. at
8 n.10.

All of those jobs, however, require frequent reaching.

See Dictionary of

Occupational Titles (4th rev. ed. 1991) 237.367-046 (telephone information clerk), 1991
WL 672194; id. 249.587-018 (document preparer), 1991 WL 672349; id. 209.567-014
(food and beverage order clerk), 1991 WL 671794. Defendant’s arguments are unavailing.
B. Whether the ALJ should have included restrictions related to Plaintiff’s mental
health
Plaintiff additionally argues that the ALJ should have included in the RFC
limitations related to Plaintiff’s mental health. See Pl.’s Br. at 18-21. Relying on the

7

opinions of the state-agency reviewing psychological consultants Joseph Tramontana,
PhD, and Burnard Pearce, PhD, whose opinions the ALJ gave “great weight,” the ALJ
found that Plaintiff’s medically determinable mental impairment of anxiety was nonsevere.
R. 22-23.
The ALJ was required to consider the effects of Plaintiff’s mental impairment
whether found to be severe or nonsevere. See Wells v. Colvin, 727 F.3d 1061, 1065 (10th
Cir. 2013) (“[T]he ALJ must consider the combined effect of all of the claimant’s medically
determinable impairments, whether severe or not severe.”). The ALJ’s decision does not
reflect that she did so.
Upon initial consideration of Plaintiff’s DIB application, Dr. Tramontana found that
Plaintiff’s medically determinable mental impairments were nonsevere.

R. 91-92

(diagnosing anxiety disorders and affective disorders). Dr. Tramontana did not complete
a Mental Residual Functional Capacity Assessment (“MRFC”) and did not find any mental
restrictions or limitations were present. See R. 91-93. Upon reconsideration, however, Dr.
Pearce completed an MRFC and found that Plaintiff was: moderately limited in her ability
to understand and remember detailed instructions; moderately limited in her ability to carry
out detailed instructions; and moderately limited in her ability to interact appropriately with
the general public. R. 110-11. In the narrative section of the MRFC, Dr. Pearce noted that
Plaintiff “can perform simple and some complex tasks,” “can relate to others on a
superficial work basis,” and “can adapt to a work situation.” R 112; see also Carver v.
Colvin, 600 F. App’x 616, 618-19 (10th Cir. 2015) (explaining that the narrative section of
the MRFC should be considered in the RFC assessment). Though the ALJ assigned great
8

weight to Dr. Pearce’s opinion, none of these restrictions is included in the RFC. See R.
22-24, 25. Nor does the written decision address that omission. The ALJ’s rejection of
Dr. Pearce’s findings therefore fails to comply with the relevant legal standards, as it fails
to show that the ALJ adequately considered Plaintiff’s mental impairment in formulating
the RFC and fails to adequately explain the lack of any mental limitations in the RFC
determination. See Wells, 727 F.3d at 1065; Carnline v. Colvin, No. CIV-15-0167-HE,
2016 WL 740304 at *2, *6 (W.D. Okla. Feb. 24, 2016) (remanding when ALJ concurred
with the findings of state-agency psychologists but did not adopt or explain the rejection
of limitations found by the psychologists); see also SSR 96-8p, 1996 WL 374184, at *7;
3

Clifton, 79 F.3d at 1010.

C. Whether the ALJ’s decision otherwise contains reversible error
Based on the necessity to remand this case, the Court need not address the remaining
claims of error raised by Plaintiff. See Watkins, 350 F.3d at 1299.
CONCLUSION
Based on the foregoing analysis, the decision of the Commissioner is REVERSED
and REMANDED in accordance with sentence four of 42 U.S.C. § 405(g). Judgment will
issue accordingly.

3

Defendant argues that, because all of the jobs that the ALJ found Plaintiff could perform
are “unskilled,” Plaintiff has not shown reversible error. Def.’s Br. at 15. However, the
ALJ did not explicitly limit the RFC to unskilled work. See R. 25. As such, acceptance of
this harmless-error argument “would require the reviewing court to both insert a specific
restriction to unskilled work and provide the factual and logical basis to justify the
restriction.” Carnline, 2016 WL 740304, at *2 (citing Groberg v. Astrue, 505 F. App’x
763, 770 (10th Cir. 2012)).
9

IT IS SO ORDERED this 14th day of March, 2019.

10