Rodriguez v. Commissioner of Social Security Administration
Filing
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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 Commissioner's decision. Signed by Magistrate Judge Shon T. Erwin on 12/28/18. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
STEPHANIE RODRIGUEZ,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
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Case No. CIV-18-425-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 supplemental security income 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. 18-38). The Appeals Council denied Plaintiff’s
request for review. (TR. 5-8). 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.
§ 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since her application date of May 19, 2015. (TR. 20). At step two, the ALJ
determined Ms. Rodriguez had the following severe impairments: major depression,
agoraphobia, anxiety, panic attacks, morbid obesity, and a severely impaired left knee.
(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. 28).
At step four, the ALJ concluded that Ms. Rodriguez had no past relevant work, but
had retained the residual functional capacity (RFC) to:
[P]erform sedentary work as defined in 20 CFR 416.967(a) except can
perform simple and some complex tasks with little or no complex or
independent planning or goal setting involving no interaction with the
general public. This person will do best working with things and data rather
than people.
(TR. 30, 36). At the administrative hearing, the ALJ presented the RFC limitations to a
vocational expert (VE) to determine whether there were other jobs in the national
economy that Plaintiff could perform. (TR. 78). Given the limitations, the VE identified
three jobs from the Dictionary of Occupational Titles (DOT). (TR. 79). At step five, the
ALJ adopted the testimony of the VE and concluded that Ms. Rodriguez was not disabled
based on her ability to perform the identified jobs. (TR. 37).
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III.
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).
IV.
ISSUES PRESENTED
On appeal, Plaintiff alleges: (1) the ALJ erred in evaluating the opinion from a
consultative physician; (2) the ALJ erred in evaluating the opinion from a treating
physician; and (3) lack of substantial evidence to support the RFC.
V.
DR. WALLACE’S OPINION
On September 14, 2015, Dr. Julie Wallace performed a consultative mental status
examination of Ms. Rodriguez. (TR. 304-307). Dr. Wallace diagnosed Plaintiff with
chronic, moderate major depressive disorder; and anxiety disorder with panic attacks and
agoraphobia. (TR. 307). As part of her findings, Dr. Wallace stated: “It is recommended
that [Plaintiff] seek counseling but it is also understood that she is unlikely to go because
of her Agoraphobia. She is currently unable to be consistent in work related activities
because of her intense fear of leaving home and panic attacks.” (TR. 307).
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At step four, the ALJ noted Dr. Wallace’s recommendation that Ms. Rodriguez seek
counseling, but stated that Dr. Wallace “had determined that claimant was unlikely to go
due to agoraphobia (considered as intense fear of leaving her house and panic
attacks[)].” (TR. 36). The ALJ failed to mention, however, that Dr. Wallace’s discussion
of Plaintiff’s agoraphobia not only concerned her ability to attend counseling, but also
directly impacted her ability to perform work-related activities. See TR. 307 (Dr. Wallace’s
findings that Plaintiff was “unable to be consistent in work related activities because of
her intense fear of leaving home and panic attacks.”).
At step five, the ALJ determined that Plaintiff was capable of performing three jobs
available in the national economy. (ECF No. 37). This determination directly conflicts with
Dr. Wallace’s opinion which states that Plaintiff cannot sustain any work-related activities
in any job due to her agoraphobia and panic attacks. (TR. 307). But the ALJ neither: (1)
acknowledged the conflict, nor (2) explained why she apparently rejected a portion of Dr.
Wallace’s opinions. These failures constitute legal error for two reasons. First, the ALJ’s
treatment of Dr. Wallace’s opinion constitutes an impermissible selective review of the
evidence. See Chapo v. Astrue, 682 F.3d 1285, 1292 (10th Cir. 2012) (noting that the
ALJ may not selectively review a medical opinion, “taking only the parts that are favorable
to a finding of nondisability.”) Second, although the ALJ may have had a basis for
rejecting Dr. Wallace’s opinion, she failed to explain her reasoning in the decision. See
Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (noting that the ALJ’s reasons
stated in evaluating medical opinions must allow for meaningful appellate review); Haga
v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (remanding because the ALJ had failed
to explain his apparent rejection of consulting examiner’s opinion). The errors are not
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harmless because they directly impact the RFC and step five findings, as discussed. See
supra.
Plaintiff also argues that the RFC lacks substantial evidence based, in part, on the
ALJ’s error in evaluating Dr. Wallace’s opinion. See ECF No. 17:11-12. The Court need
not address this issue in light of the remand for reconsideration of Dr. Wallace’s opinion.
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.”).
VI.
DR. FARIS’ OPINION
Dr. Kevin Faris opined that Plaintiff suffered from various physical limitations. (TR.
417-423). Plaintiff alleges the ALJ committed legal error in his evaluation of Dr. Faris’
opinions and that the RFC lacked in substantial evidence. (ECF No. 17:7-11). The Court
rejects Plaintiff’s allegations of legal errors, but finds that the RFC indeed lacks substantial
evidence. On this basis, remand is warranted.
A.
The ALJ’s Duties in Evaluating Medical Opinions
Regardless of its source, the ALJ has a duty to evaluate every medical opinion in
the record. Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004); 20 C.F.R. §
404.1527(c). The weight given each opinion will vary according to the relationship
between the claimant and medical professional. Hamlin, 365 F.3d at 1215. For example,
in evaluating a treating physician’s opinion, the ALJ must follow a two-pronged analysis.
First, the ALJ must determine, then explain, whether the opinion is entitled to controlling
weight. Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).
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This analysis, in turn, consists of two phases. First, an ALJ must consider whether
the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and consistent with other substantial evidence in the record. Policy
Interpretation Ruling Titles II and XVI: Giving Controlling Weight to Treating Source
Medical Opinions, 1996 WL 374188, at 2 (July 2, 1996) (SSR 96-2p) (internal quotations
omitted). If controlling weight is declined, the ALJ must assess the opinion under a series
of factors which are considered when assessing any medical opinion, regardless of its
source. These factors 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.
Krausner v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011); 20 C.F.R § 416.927(c).
Although the ALJ need not explicitly discuss each factor, the reasons stated must
be “sufficiently specific” to permit meaningful appellate review. See Oldham v. Astrue,
509 F.3d 1254, 1258 (10th Cir. 2007). 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).
Additionally, the ALJ bears responsibility for ensuring that “an adequate record is
developed during the disability hearing consistent with the issues raised.” Henrie v. United
States Dep't of Health & Human Servs., 13 F.3d 359, 360–61 (10th Cir. 1993). An ALJ’s
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duty to recontact Plaintiff’s physicians or otherwise seek additional medical evidence may
be triggered if the medical evidence is insufficient to determine disability. 20 C.F.R. §
404.1520b(c); Giuliano v. Colvin, 577 F. App’x 859, 862, n.3 (10th Cir. 2014) (“[T]he duty
to recontact a doctor is triggered when the evidence is insufficient to make a proper
disability determination.”) (citing White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001)).
B.
Dr. Faris’ Opinions and the ALJ’s Related Findings
On August 18, 2016, Kevin Faris, M.D., completed a Medical Source Statement
(MSS) regarding Plaintiff’s physical abilities and limitations. (ECF No. 417-423). In the
MSS, Dr. Faris said he had treated Plaintiff since February 2010. (TR. 417). Dr. Faris
diagnosed Ms. Rodriguez with morbid obesity, low back pain, right foot plantar fasciitis,
right ankle pain, and sleep apnea. (TR. 417). Dr. Faris also stated that Plaintiff tested
positive on a straight-leg raising test; suffered from depression, impaired sleep, muscle
weakness, reduced range of motion; and was prescribed a cane. (TR. 417). Regarding
specific work-related limitations, Dr. Faris stated that Plaintiff could:
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Occasionally lift or carry up to 10 pounds;
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Sit for 30 minutes at a time, for 90 minutes total in an 8-hour workday;
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Stand and walk for 15 minutes at a time, for a total of 45 minutes in an 8hour workday, but could only ambulate 10 feet without the use of a cane;
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Occasionally reach, handle, finger, and feel;
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Never push or pull;
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Occasionally operate foot controls;
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Never climb stairs, ramps, or scaffolds; or balance, stoop, kneel, crouch, or
crawl;
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Occasionally operate a motor vehicle;
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Never work around unprotected heights, moving mechanical parts, humidity
and wetness, dust, odors, fumes, and pulmonary irritants, extreme heat or
cold, or vibrations;
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Tolerate moderate office noise;
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Travel without a companion for assistance; ambulate without using a
wheelchair, walker, or two assistive devices;
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Not walk a block at a reasonable pace on rough or uneven surfaces;
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Not use standard public transportation;
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Care for personal hygiene, prepare simple meals, and sort or handle paper
files for a limited time.
(TR. 418-423).
In the administrative decision, the ALJ recited Dr. Faris’ opinions, practically
verbatim,1 then effectively rejected the opinions with this single statement: “The medical
report dated August 18, 2016 by Kevin Faris, M.D., did not have any corresponding
physical examination of around the same date.” (TR. 35). Ms. Rodriguez argues the ALJ:
(1) failed to explain the basis for rejecting the opinions, (2) erred in failing to include Dr.
Faris’ opinions in the RFC and (3) should have re-contacted Dr. Faris to obtain additional
evidence in support of his opinions. (ECF No. 17:7-11). Ms. Rodriguez also argues that
the physical RFC lacks substantial evidence. (ECF No. 17:10-11). The Court rejects
Plaintiff’s allegations of legal error, but finds the physical RFC lacking in substantial
evidence.
First, Plaintiff argues that the ALJ failed to provide a proper explanation for
rejecting Dr. Faris’ MSS. (ECF No. 17:12). The Court disagrees. In evaluating any medical
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(TR. 27-28).
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opinion, the ALJ is required to examine various factors. See supra; Krausner v. Astrue,
638 F.3d 1324, 1330 (10th Cir. 2011); 20 C.F.R § 416.927(c). Additionally, “[t]he ALJ is
not required to mechanically apply all of [the regulatory] factors in a given case.” Ringgold
v. Colvin, 644 F. App’x 841, 843 (10th Cir. 2016). The key, however, is that the reason(s)
must be “sufficiently specific” to permit meaningful appellate review. See Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). And finally, 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).
Here, the ALJ rejected Dr. Faris’ MSS because it lacked any corresponding physical
examination records in support. (TR. 35). Supportability is a factor that the ALJ properly
considered when assessing Dr. Faris’ opinions. See 20 C.F.R. § 416.927(c)(3). And the
Court finds this reason a legitimate basis to support the ALJ’s rejection of the MSS. See
Kester v. Barnhart, 71 F. App'x 21, 23 (10th Cir. 2003) (noting that the ALJ properly
“discounted the treating physician’s opinion of claimant’s physical limitations because that
opinion was not supported with medical evidence in the record.”).
Second, Ms. Rodriguez argues that the ALJ erred in failing to include Dr. Faris’
opinions regarding Plaintiff’s specific limitations in the RFC. (ECF No. 17:10-11). But
because the ALJ had properly rejected Dr. Faris’ opinions, the ALJ had no duty to include
the limitations in the RFC. See Miller v. Comm'r of Soc. Sec. Admin., No. CIV-16-919-M,
2017 WL 2389643, at *6 (W.D. Okla. May 3, 2017), report and recommendation adopted
sub nom. Miller v. Berryhill, No. CIV-16-919-M, 2017 WL 2389716 (W.D. Okla. June 1,
2017) (noting that because “the ALJ properly rejected the treating physician’s opinion
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regarding Plaintiff’s functional limitations . . . the ALJ’s failure to include RFC limitations
based on that opinion is not reversible error.”)
Third, citing 20 C.F.R. § 416.912(e)(1),2 Plaintiff argues that “the ALJ should have
re-contacted [Dr. Faris] to obtain any corresponding medical records since he thought
this evidence alone was inadequate[.]” (ECF No. 17:9). The Court disagrees. As
Defendant points out, the current, relevant provision is 20 C.F.R. §416.920b, not 20 C.F.R.
§ 416.912(e)(1). See ECF No. 21:12, n.7. Under the former regulation, cited by Ms.
Rodriguez, the Court was required to seek additional evidence to clarify the extent of a
disability if the record was inadequate to determine the extent of a disability. See 20
C.F.R. § 416.912(e)(1) (2011). But under the current regulations, effective March 26,
2012, the duty to re-contact is discretionary, rather than mandatory. See 20 C.F.R. §
416.920b(c) (if the evidence is insufficient to determine disability, an ALJ “may recontact
[a] treating physician, psychologist, or other medical source.”) (emphasis added). The
SSA considers evidence “insufficient” when “it does not contain all the information we
need to make our determination or decision.” 20 C.F.R. 416.920b. Here, the ALJ obviously
deemed the evidence sufficient to render a decision. Because the regulations are
discretionary, rather than mandatory, the Court finds no error in the ALJ failing to recontact Dr. Faris.
Finally, Ms. Rodriguez argues that the RFC lacks substantial evidence in light of
the ALJ’s rejection of Dr. Faris’ opinions. (ECF No. 17:10-11). The Court agrees. As stated,
the ALJ properly rejected Dr. Faris’ opinions, and owed no duty to recontact the physician
Plaintiff also cites 20 C.F.R. § 404.1512(e)(1), but that provision is irrelevant to Ms. Rodriguez’
application for supplemental security income.
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for additional evidence. See supra. But with the rejection of Dr. Faris’ opinions, and the
ALJ’s treatment of the remaining evidence, the Court cannot follow the ALJ’s reasoning
to determine how he had concluded that Ms. Rodriguez was able to perform sedentary
work. In evaluating the evidence, the ALJ:
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Discussed evidence from Dr. Megan Meier, a physician at the Oklahoma
Sports and Orthopedics Institute, but did not state whether he accepted or
rejected the evidence;
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Rejected Dr. Faris’ opinions;
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Discussed the opinion from consulting physician, Dr. Raymond Azadgoli, but
did not state whether he accepted or rejected the evidence;
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Rejected a statement from Licensed Clinical Social Worker, M. Rachelle
Hardin-Moniz, who offered opinions regarding Plaintiff’s mental and physical
health; and
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Rejected the opinions from two state agency non-examining physicians.
(TR. 36-37). Although the ALJ rejected the state agency physicians’ opinions that Ms.
Rodriguez could perform light work, in lieu of a more restrictive RFC for sedentary work,
he did so, owing to the fact that Plaintiff needed a cane for ambulation. See TR. 35 (“The
undersigned finds claimant is limited to sedentary exertion considering her obesity (uses
cane for ambulation)”). But the RFC itself did not accommodate Plaintiff’s use of a cane,3
which is particularly troublesome in light of SSR 96–9p, which states that “the [sedentary]
occupational base for an individual who must use [an assistive] device for balance . . .
may be significantly eroded. . . . [and] it may be especially useful to consult a vocational
resource in order to make a judgment regarding the individual’s ability to make an
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(TR. 30).
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adjustment to other work.” Social Security Ruling 96-9p, 1996 WL 3741850, at *7 (July
2, 1996).
Because the ALJ rejected or failed to comment on the opinions which discussed
Ms. Rodriguez’ physical limitations, the Court cannot discern the ALJ’s basis for
determining Plaintiff’s RFC and ultimate ability to work.
Accordingly, the Court concludes that the RFC lacks substantial evidence and on
this basis remand is warranted.
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.
ENTERED on December 28, 2018.
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