Moses 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 Commissioner's decision. Signed by Magistrate Judge Shon T. Erwin on 1/10/19. (mc)

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

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-18-561-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
applications 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

applications for benefits. Following an administrative hearing, an Administrative Law
Judge (ALJ) issued an unfavorable decision. (TR. 14-27). 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.
§§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged
in substantial gainful activity since January 1, 2015, his alleged onset date. (TR. 16). At
step two, the ALJ determined that Mr. Moses had the following severe impairments:
Diabetes Type II with Polyneuropathy; Morbid Obesity; Spigellian [sic] Ventral Hernia;
Lumbar and Cervical Degenerative Disc Disease and Degenerative Joint Disease;
Osteoarthritis in the bilateral knees and left shoulder; Tobacco use; Thoracic Spine Pain;
and Left Hip Pain. (TR. 17). 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. 17).
At step four, the ALJ concluded that Mr. Moses was unable to perform any past
relevant work. (TR. 25). Even so, the ALJ concluded that Mr. Moses had retained the
residual functional capacity (RFC) to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except with the following limitations. He could lift and/or carry five pounds
frequently and ten pounds occasionally. He could stand or walk for two
hours in an eight-hour workday, and sit for six hours in an eight-hour
workday. He could stand and/or walk up to 15 minutes at any one time. He
could sit up to 120 minutes at any one time. He requires the ability to shift
at will while seated, and can remain on task while shifting. He requires a
stretch break of up to two minutes every 60 minutes, defined as an
opportunity to stand and stretch. Pushing or pulling levers with the left
upper extremity cannot be performed. There is no use of foot controls
2

operations bilaterally. He could not climb ladders, ropes, and scaffolds.
Climbing ramps or stairs is limited to 15% of the workday. Stooping is
limited to 15% of the workday. Crouching and squatting are limited to 15%
of the workday. He could not kneel or crawl. Reaching bilaterally is limited
to frequent, with the following additional reaching limitations: With the left
upper extremity, reaching above the shoulder level is limited to 15% of the
workday. Manipulative limitations bilaterally are limited to frequent. This
individual must avoid all exposure to extreme heat and cold. He must avoid
exposure to working on vibrating surfaces. He cannot use air or vibrating
tools. He must avoid hazardous conditions or moving machinery, including
motor vehicles. Moving machinery is defined machinery that does not have
a fixed permanent base. He must avoid exposure to unprotected heights.
He requires a cane to walk, but not to stand. He can perform work that is
limited to simple routine repetitive tasks and simple decision-making. There
could be no more than occasional interaction with the public, coworkers,
and supervisors.
(TR. 18-19).
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. 45-47). Given the limitations, the VE identified three jobs
from the Dictionary of Occupational Titles that Mr. Moses could perform. (TR. 47-48). At
step five, the ALJ adopted the testimony of the VE and concluded that Mr. Moses was not
disabled based on his ability to perform the identified jobs. (TR. 27).
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).

3

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.

ISSUE PRESENTED
On appeal, Plaintiff alleges the ALJ committed legal error in failing to discuss an

opinion from his treating physician, Malti Dave, M.D.
V.

ERROR IN THE CONSIDERATION OF DR. DAVE’S OPINION
For approximately four months, Dr. Dave treated Plaintiff for pain management,

with visits documented on September 9, 2015; November 18, 2015; December 16, 2015;
and January 20, 2016. (TR. 454-461). During the visits, Dr. Dave diagnosed Plaintiff with
lumbar disc degeneration; diabetes mellitus with diabetic neuropathy; morbid obesity;
chronic pain in multiple joints; osteoarthritis; and tobacco use disorder. (TR. 455, 457,
459, 461). As part of the December 16, 2015 visit, Dr. Dave also noted that due to
Plaintiff’s chronic pain, “[h]e can not go back to work yet.” (TR. 457). Plaintiff argues that
the ALJ committed legal error by ignoring Dr. Dave’s opinion regarding Plaintiff’s ability
to return to work and did not otherwise explain the effect of the opinion on the ALJ’s
findings. (ECF No. 13:4-8).
In his brief, Mr. Moses outlines the legal framework for analyzing a medical opinion
offered by a treating source, implying that the ALJ failed to follow the two-part analysis
required by Tenth Circuit precedent. See ECF No. 4, 7-8; see also Langley v. Barnhart,
373 F.3d 1116, 1119 (10th Cir. 2004) (noting that in evaluating a treating physician’s

4

opinion, the ALJ must first determine and explain whether the opinion is entitled to
controlling weight, and second, if no controlling weight is afforded, the ALJ must still
assess the opinion utilizing a variety of factors). But Tenth Circuit precedent and the
Social Security regulations clarify that this two-part analysis is reserved only to “medical
opinions,” which are defined as statements which reflect “judgments about the nature
and severity of a claimant’s impairment(s), including his symptoms, diagnosis and
prognosis, what he can still do despite impairment(s), and his physical and mental
restrictions.” Lackey v. Barnhart, 127 F. App’x 455, 457 (10th Cir. 2005) (alterations and
internal quotation marks omitted); accord 20 C.F.R. §§ 404.1527(a)(1); 416.927(a)(1).
The Commissioner contends that Dr. Dave’s opinion regarding Plaintiff’s inability
to work would not be considered a “medical opinion.” See ECF No. 16-8-9.1 The Court
agrees. Instead, the opinion involved an issue reserved to the Commissioner. See 20
C.F.R. §§ 404.1527(d)(1); 416.927(d)(1) (stating that an opinion that the claimant was
“unable to work” is reserved to the Commissioner; see also Social Security Ruling (SSR)
96–5p, 1996 WL 374183, Westlaw op. at *2 (July 2, 1996) (stating that the issue involving
the existence of a “disability,” under the Social Security Act, is reserved to the
Commissioner). However, “opinions from any medical source on issues reserved to the
Commissioner must never be ignored.” SSR 96-5p, 1996 WL 374183, at *3 (July 2, 1996).
Rather, “the ALJ must evaluate all evidence in the case record that may have a bearing
on the determination or decision of disability, including opinions from medical sources

Mr. Moses argues only that the ALJ failed to evaluate Dr. Dave’s opinion regarding Plaintiff’s
inability to work. (ECF No. 13:4-8). Thus, the Court need not decide whether the evidence from
Dr. Dave had contained any “medical opinions,” as that term is defined.
1

5

about issues reserved to the Commissioner.” Lackey, 127 F. App’x at 457-58 (internal
quotation marks omitted).
Defendant does not acknowledge the ALJ’s duty to evaluate opinions on issues
reserved to the Commissioner. See ECF No. 16. Instead, Ms. Berryhill states: “[T]he real
question before this Court is whether the ALJ’s RFC finding was reasonable and supported
by substantial evidence.” (ECF No. 16:9). The Court agrees with Defendant that judicial
review involves a determination of “whether the factual findings are supported by
substantial evidence in the record.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). However, the Court’s review also involves determining “whether the correct legal
standards were applied.” Id. Here, the ALJ committed legal error in failing to mention Dr.
Dave’s opinion regarding Plaintiff’s inability to return to work. See supra. The Court
reverses and remands based on this legal error, obviating the need to discuss whether
the decision had been otherwise supported by substantial evidence.
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 January 10, 2019.

6