Roberts v. Commissioner of Social Security Administration
Filing
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MEMORANDUM OPINION AND ORDER. The court reverses and remands the Commissioner's decision. Signed by Magistrate Judge Suzanne Mitchell on 5/9/18. (lb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TAMMY IRENE ROBERTS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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Case No. CIV-17-932-SM
MEMORANDUM OPINION AND ORDER
Tammy Irene Roberts (Plaintiff) brings this action for judicial review of
the Commissioner of Social Security’s (Commissioner) final decision that she
was not “disabled” under the terms of the Social Security Act. See 42 U.S.C.
§§ 405(g), 423(d)(1)(A). The parties have consented under 28 U.S.C. § 636(c) to
proceed before a United States Magistrate Judge. Docs. 11, 13.
After a careful review of the record (AR), the parties’ briefs, and the
relevant authority, the undersigned reverses and remands the Commissioner’s
final decision.1 See 42 U.S.C. § 405(g).
For the parties’ briefs, the undersigned’s page citations refer to this
Court’s CM/ECF pagination. Page citations to the AR refer to that record’s
original pagination.
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I.
Administrative determination.
A.
Disability standard.
The Social Security Act defines “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration
requirement applies to the claimant’s inability to engage in any substantial
gainful activity, and not just his underlying impairment.” Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 21819 (2002)).
B.
Burden of proof.
Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that [s]he can no longer engage in [her] prior work
activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff
makes that prima facie showing, the burden of proof then shifts to the
Commissioner to show Plaintiff retains the capacity to perform a different type
of work and that such a specific type of job exists in the national economy. Id.
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C.
Relevant findings.
1.
Administrative Law Judge (ALJ) findings.
The ALJ assigned to Plaintiff’s case applied the standard regulatory
analysis in order to decide whether Plaintiff was disabled during the relevant
time period. AR 13-24; see 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4); see also
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step
process). Specifically, the ALJ found Plaintiff:
(1)
was severely impaired first, by osteoarthritis of the left hip;
second, by osteoarthritis of the right hip; third, by
osteoarthritis of the left shoulder; fourth, by osteoarthritis of
the right shoulder; fifth, by osteoarthritis of the left foot; and
sixth, by obesity;
(2)
had no impairment or combination of impairments that met
or medically equaled the severity of a listed impairment;
(3)
had the residual functional capacity2 (RFC) for light work
with some limitations;
(4)
was unable to perform any past relevant work;
(5)
could perform jobs that exist in significant numbers in the
national economy, such as food and beverage order clerk,
call-out operator, and document preparer; and, so
(6)
had not been under a disability as defined by the Social
Security Act since August 1, 2009, through the date of the
ALJ’s decision, July 13, 2016.
AR 13-24.
Residual functional capacity “is the most [a claimant] can still do despite
[a claimant’s] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
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2.
Appeals Council action.
The Social Security Administration’s Appeals Council found no reason to
review that decision, so the ALJ’s decision is the Commissioner’s final decision
in this case. Id. at 1-5; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir.
2011).
II.
Judicial review of the Commissioner’s final decision.
A.
Review standard.
The court reviews the Commissioner’s final decision to determine
“whether substantial evidence supports the factual findings and whether the
ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326,
1330 (10th Cir. 2016). Substantial evidence is “more than a scintilla, but less
than a preponderance.” Lax, 489 F.3d at 1084. A decision is not based on
substantial evidence “if it is overwhelmed by other evidence in the record.”
Wall, 561 F.3d at 1052 (internal quotation marks omitted). The court will
“neither reweigh the evidence nor substitute [its] judgment for that of the
agency.” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (internal
quotation marks omitted).
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B.
Issues for judicial review.
Plaintiff contends (1) the ALJ violated the treating-physician rule;
(2) the ALJ erred in his application of SSR 96-6p3 to the state-agency medical
consultants’ opinions; and (3) erred in his credibility analysis. Doc. 16, at 1.
C.
Analysis.
1.
Whether the ALJ erred in (a) applying the treatingphysician rule and (b) heeding SSR 96-6p.
Through its governing regulations, the SSA tells claimants that,
“[g]enerally, we give more weight to opinions from your treating sources. . . .”
20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2). It explains this is so “since these
sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations
such as consultative examinations or brief hospitalizations.” Id.
Binding court precedent underscores the significance of treating source
opinion evidence, holding that when an ALJ “evaluat[es] the medical opinions
of a claimant’s treating physician, the ALJ must complete a sequential twostep inquiry, each step of which is analytically distinct.” Krauser, 638 F.3d at
1330.
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At the first step, the ALJ must determine if the opinion “is well-
1996 WL 374180, at *2 (July 2, 1996).
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supported by medically acceptable clinical or laboratory diagnostic techniques
and is not inconsistent with other substantial evidence in the record.” Id. “If
the opinion is deficient in either of these respects, it is not to be given
controlling weight.”
Id.
If the ALJ finds the opinion is not entitled to
controlling weight, he must then proceed to the second step of the inquiry to
“make clear how much weight the opinion is being given (including whether it
is being rejected outright) and give good reasons, tied to the factors specified
in the cited regulations for this particular purpose, for the weight assigned.”
Id.
These factors are:
(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 (quotation omitted).
So long as the ALJ provides a well-reasoned discussion, his failure to
“explicitly discuss” all the factors “does not prevent [the] court from according
his decision meaningful review.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th
Cir. 2007).
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2.
The treating physician’s
consultants’ opinions.
and
state
medical
As the Commissioner frames it, treating physician Dr. Charles R.
Shields opined in 2011 that Plaintiff “could not walk 200 feet without stopping
to rest, could not walk without an assistive device, and was severely limited in
her ability to walk (Tr. 874).” Doc. 20, at 7. Consultative physician Dr. Sidney
Williams, who examined Plaintiff, “opined in 2011 that Plaintiff required a
cane to walk (Tr. 734).” Id. And in 2013, State Agency Medical Consultant Dr.
S.A. Chaudry, who also examined Plaintiff, determined Plaintiff “could
perform . . . sedentary work with sitting, standing, walking, manipulative,
postural, and environmental limitations, and that she needed to use a cane.
(Tr. 1269-74).” Id. at 8.
Two state-agency reviewing physicians (Drs. Kenneth Wainner and
Walter Bell) “opined in 2011 that [Plaintiff] could perform light work with
postural limitations (Tr. 743-49, 873).” Id. Finally, “[m]edical [e]xpert Dr.
[Ollie] Raulston opined in 2014 that she could perform light work with
standing, postural, reaching, and environmental limitations, and that she did
not need a cane (Tr. 54, 56).” Id.
The ALJ concluded Dr. Shields’ opinion, which formed part of a
handicapped parking placard application, contained limitations “not wholly
consistent with the claimant’s own report and are given little weight.” AR 22.
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Apart from this sentence, the ALJ made no reference to the Krauser factors.
Elsewhere, the ALJ noted he considered the entire record, and he reviewed Dr.
Shields’ treatment of Plaintiff. Id. at16, 1122.
Dr. Shields treated Plaintiff from September 2011 until early July 2012.
Do. 16, at 8 (citing AR 1117-23). Dr. Shields diagnosed Plaintiff with chronic
pain syndrome with both somatoform and organic components; low back and
bilateral lower extremity pain, which appears to have been a combination of
spondylotic pain and secondary myofascial pain in the left greater than the
right gluteus minimus anterior, and to the lesser extent gluteus minimus
posterior; possible old left S1 radiculopathy that is producing only a decreased
ankle reflex and sensory deficit in the lateral foot in the last two digits;
bilateral knee pain, which sounds like osteoarthritis; morbid obesity, which
she has had since a teenager. AR 1122.
The Commissioner also argues Plaintiff’s own reports contradict Dr.
Shields’ opinion, noting she “exercised by walking three blocks a day,” and did
not always use an assistive device. Doc. 20, at 9. Elsewhere in the opinion the
ALJ summarized Plaintiff’s Function Report:
In the Function Report-Adult, dated March 10, 2011, the claimant
reported that she cared for her children, doing whatever was
needed, without any help. The claimant stated that she had no
problems dressing, caring for her hair or feeding. She stated that
she had some difficulty bathing, difficulty shaving her legs, and
getting up and down from the toilet. She stated that she did not
need any special reminders to take care of personal needs or
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grooming, or to take medicine. She stated that she prepared meals
daily. The claimant did no outside chores, but she did laundry,
vacuumed and she washed dishes (Exhibit 3E).
[T]he claimant reported that she went outside two to three
times per day. She stated that she was able to drive a car and go
out alone. She stated that she shopped in stores for groceries, but
she used the electric carts to get around. The claimant stated that
she spent time with others on the telephone daily. She stated that
she regularly took her children to school. She stated that she did
not need to be reminded to go places (Exhibit 3E).
AR 14. Although not noted by the ALJ, the report also indicates her conditions
restrict her ability to lift, bend, walk, and stand. Id. at 393-94, 400. She also
reported she uses a cane or brace “when she has to walk to[o] far.” Id. at 399.
She testified she can “walk from the door to the car . . . . Any further than that,
[she has] to sit down.” Id. at 82. She testified Dr. Shields prescribed two canes
for her in early 2012, and that she uses them “[e]very day.” Id. at 81. She
testified she uses electric carts while shopping and when cooking she sits at
the stove with a chair. Id. at 84-85. In February 2011, she reported she “tries
to exercise by walking about three blocks” a day. Id. at 666. Though the ALJ
discounted Plaintiff’s credibility, he relied on certain statements in her report
to discount Dr. Shields’ opinion.
3.
The ALJ’s application of the treating-physician rule.
Undoubtedly, the ALJ neglected to state whether Dr. Shields’ opinion
was entitled to controlling weight before assigning it a relative weight. It
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appears the ALJ simply jumped to the assessment of relative weight. Doing
so constitutes legal error, but if the reasons articulated by the ALJ are
sufficient for determining that Dr. Shields’ opinion should not be given
controlling weight, then the error is harmless. Mays v. Colvin, 739 F.3d 569,
575 (10th Cir. 2014) (“[T]he ALJ implicitly declined to give the [treatingphysician’s] opinion controlling weight. Because we can tell from the decision
that the ALJ declined to give controlling weight to [the treating physician’s]
opinion, we will not reverse on this ground.”); see also Andersen v. Astrue, 319
F. App’x 712, 721 (10th Cir. 2009) (“It is apparent that the ALJ concluded that
these opinions were not entitled to controlling weight. Although ordinarily the
ALJ should have made explicit findings to this effect . . . we are not troubled
by the substance of the ALJ’s determination.”). The court will accordingly not
reverse the ALJ for failing to discuss whether Dr. Shields’ opinion was entitled
to controlling weight, as his decision to ascribe the opinion “little weight” shows
that he implicitly declined to give it controlling weight.
The court agrees the ALJ may discount medical evidence “if it is
internally inconsistent or inconsistent with other evidence.”
Pisciotta v.
Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007) (quoting Knight v. Chater, 55 F.3d
309, 314 (7th Cir. 1995)); see also 20 C.F.R. §§ 404.1527(c)(3) (“[M]ore weight”
will be given to medical source opinions that are supported by relevant
evidence.); & 416.927(c)(3) (same).
The ALJ here noted no internal
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inconsistency between Dr. Shields’ assessment and the record as a whole—he
merely pointed to an inconsistency with Plaintiff’s “own report.” AR 22; see
Pisciotta, 1074 F.3d at 1078; 20 C.F.R. §§ 404.1527(c)(4) (“Generally, the more
consistent a medical opinion is with the record as a whole, the more weight we
will give to that medical opinion.”); & 416.927(c)(4) (same); cf. Armijo v. Astrue,
385 F. App’x 789, 795 (10th Cir. 2010) (holding that ALJ’s implicit
determination that treating physician’s opinion was not entitled to controlling
weight was supported by substantial evidence, noting the ALJ pointed out
“particular conflicts” between the opinion and “specific record evidence” and
“internal inconsistencies” in the opinion); Tarpley v. Colvin, 601 F. App’x 641,
643-44 (10th Cir. 2015) (affirming the ALJ’s decision where the ALJ failed to
state whether he gave treating physician’s opinion controlling weight, holding
“any imaginable oversight on this score is clearly harmless because the ALJ’s
ruling unambiguously demonstrates that he declined to give the opinions
controlling weight and . . . he had substantial evidence to support that
decision”).
In discounting Dr. Shields’ opinion, the ALJ did not mention Dr.
Chaudry’s or Dr. Williams’ statements that Plaintiff needed to use a cane.
Though he gave great weight to Dr. Wainner’s and Dr. Raulston’s opinions,
citing SSR 96-6p’s mandate that ALJs must “explain the weight given to these
opinions in their decisions,” AR 21 (quoting SSR 96-6p), the ALJ failed to report
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the weight he gave to either Dr. Chaudry’s or Dr. Williams’ opinions. He
identified no “specific, legitimate reasons” for having rejected Dr. Shields’
opinion completely, and erred in not assigning weight to the remaining
opinions. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). The
ALJ’s conclusion is not supported by substantial evidence.
The court evaluates the ALJ’s decision “based solely on the reasons
stated in the decision.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir.
2004). As the Plaintiff points out, the Commissioner’s arguments provide posthoc rationales for the ALJ’s decision. Doc. 21, at 2; see, e.g., Allen v. Barnhart,
357 F.3d 1140, 1142, 1145 (10th Cir. 2004) (holding that district court’s “post
hoc effort to salvage the ALJ’s decision would require us to overstep our
institutional role and usurp essential functions committed in the first instance
to the administrative process”).
The court cannot treat the above treating-physician error as harmless
because to do so would ignore the ALJ’s duties not only to determine whether
to assign a treating-physician’s opinion controlling weight, but also to give
deference to a treating-physician’s opinion even if he does not assign it
controlling weight. See SSR 96-2p, 1996 WL 374188, at *1 (July 2, 1996). The
exercise of such deference might have changed the relative weight assigned to
all the medical opinions, including the non-examining consultants to whose
opinion the ALJ assigned great weight. See AR 21-22. The ALJ’s failure to
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abide by SSR 96-6p further compounds the treating-physician error. See Tiger
v. Apfel, No. 97-5134, 1998 WL 166246, at *2 (10th Cir. 1998) (The ALJ’s failure
to discuss and weigh state agency physician’s opinions “violated the
requirements of [SSR] 96-6p and undermined the ALJ’s ultimate conclusions
regarding claimant’s alleged [physical] impairments.”).4 The ALJ’s decision is
not supported by substantial evidence.
III.
Conclusion.
The court REVERSES and REMANDS the Commissioner’s decision.
ENTERED this 9th day of May, 2018.
Because these errors may affect the ALJ’s credibility determination, the
court does not address Plaintiff’s credibility challenge. Watkins, 350 F.3d at
1299.
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