Owens v. Commissioner of Social Security Administration

Filing 28

MEMORANDUM OPINION AND ORDER. The court REVERSES and REMANDS the Commissioner's decision. Signed by Magistrate Judge Suzanne Mitchell on 1/17/19. (lb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

RANDALL OWENS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Case No. CIV-18-00626-SM

MEMORANDUM OPINION AND ORDER
Randall Owens (Plaintiff) brings this action for judicial review of the
Defendant Acting Commissioner of Social Security’s final decision he 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. 15, 17.1 Following a careful
review of the parties’ briefs, the administrative record (AR), and the relevant
authority, the court reverses the Commissioner’s decision and remands for
further proceedings.

Citations to the parties’ pleadings and attached exhibits will refer to this
Court’s CM/ECF pagination. Citations to the Administrative Record will refer
to the 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 he can no longer engage in his 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 that 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 findings.

The ALJ assigned to Plaintiff’s case applied the standard regulatory
analysis to decide whether Plaintiff was disabled during the relevant
timeframe. See AR 16-29; see also 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4);
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step
process). Specifically, the ALJ found Plaintiff:
(1)

had not engaged in substantial gainful activity since his
alleged onset date of June 1, 2012;

(2)

had the severe impairments of first, degenerative disc
disease of the back with fibrosis along right side and second,
hypertension;

(3)

had no impairment or combination of impairments that met
or medically equaled the severity of a listed impairment;

(4)

had the residual functional capacity2 to perform medium
work as defined in 20 C.F.R. § 404.1567(c) and § 416.967(c)
except with nonexertional limitations;

(5)

could not perform his past relevant work;

(6)

could perform jobs that exist in significant numbers in the
national economy, such as kitchen helper, warehouse
worker, and hand packager; and so,

(7)

was not disabled.

AR 17-29.

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 findings.

The SSA’s Appeals Council denied Plaintiff’s request for review, so the
ALJ’s unfavorable decision is the Commissioner’s final decision in this case.
Id. at 1-6; 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). In applying that standard, 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) (citation omitted).
The ALJ’s decision must be evaluated “based solely on the reasons stated
in the decision.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
A “post hoc rationale is improper because it usurps the agency’s function of
weighing and balancing the evidence in the first instance.”

Carpenter v.

Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008).
B.

Issue for judicial review.

Plaintiff contends that the ALJ “relied heavily on a medical expert that
had a standard different than that of the Commissioner of how pain can
influence an individual’s ability to perform work activities,” and so, substantial
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evidence does not support the RFC that “the ALJ based on that testimony.”
Doc. 23, at 1, 8. Plaintiff argues the “ALJ’s error was not harmless because a
finding that pain symptoms allowed [Plaintiff] to perform only light or
sedentary work would have directed the ALJ to find [Plaintiff] disabled.” Id.
at 10.
Specifically, Plaintiff argues that while the Commissioner has
recognized that “pain can result in an exertional limitation if it limits an
individual’s ability to perform one of the strength activities (e.g., lifting),” Dr.
Sklaroff testified that severe pain would never interfere with a person’s ability
to lift. See id.; SSR 96-4p, 1996 WL 374187, at *2 (July 2, 1996); AR 96. Dr.
Sklaroff testified that pain does “not impair[ ] the ability to lift” because lifting
is “a muscular function,” and opined that the “experience of pain would be
mutually exclusive of whether or not there is lifting or not lifting occurring
concomitantly.” AR 98.
Plaintiff points out that though Dr. Sklaroff agreed there is “objective
medical evidence supporting that [Plaintiff] could be suffering from severe pain
at least intermittently,” he still maintained that “pain really has no play in
determining the amount a person could lift or their endurance of lifting
throughout the day.” Id. at 99. Dr. Sklaroff agreed that Plaintiff “has physical
findings that would support his allegations of pain, id. at 95-96, “needs

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analgesics for his back pain, id. at 89, his “condition does, in fact, cause pain,”
id. at 92.
Dr. Sklaroff opined that Plaintiff’s RFC demonstrates that Plaintiff:
should be able to stand, sit, or walk, any one of them
up to six hours during a normal eight-hour day with
normal breaks. He should be able to go through
whatever postural manipulations, stand, sit, walk,
reach et cetera without problem. He needs analgesics
for his back pain, that’s fine. He should be able to lift
50 pounds occasionally, 25 pounds frequently. If he
were to get a more recent MRI and show remediable
lesion . . . that would be great for follow-up surgery
number three . . . And he could also get nerve blocks,
et cetera if the pain is problematic and the only
impediment to working. There is no other impairment
that affects the assessment in the eyes, ears, special
senses, hands, and feet.
And in terms of the
environment because of psych issues, no heights,
ropes, scaffolds, ladders, or hazardous machinery.
Id. at 89.

Dr. Sklaroff clarified that Plaintiff could, “in an 8-hour time

period . . . lift 50 pounds 20 minutes out of every hour, 8 hours in a row . . . .”
Id. at 92.
C.

The ALJ’s consideration of Dr. Robert Sklaroff’s testimony.

The ALJ gave “great weight” to Dr. Sklaroff’s opinion, finding his
“opinion is consistent with the substantial evidence and supported by
explanation.” Id. at 25. The ALJ provided a detailed summary of Dr. Sklaroff’s
assessment. See id. at 25-26.

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The ALJ considered and agreed with Dr. Sklaroff’s review of the medical
records from Plaintiff’s two back surgeries. Id. at 25. Dr. Sklaroff noted
Plaintiff was taking blood pressure medication, has a half-pack per day
smoking habit, and drinks a six-pack of beer daily, a not-recent history of
methamphetamine use, and a history of depression. Id.
Dr. Sklaroff noted the lack of any interventional pain management, id.
at 27, and the ALJ noted only one April 2014 note from a pain-management
clinic, id. at 25, 529-33. The ALJ noted that in August 2015, a primary care
physician stated Plaintiff was “fired from the clinic reportedly due to
marijuana use.” Id. at 25.
The ALJ noted Dr. Sklaroff’s testimony in response to Plaintiff’s 2014
pain management assessment. Dr. Sklaroff considered Plaintiff’s “reported
subjective symptoms at that time” which included “pain extend[ing] to the
right thigh and leg,” “numb sensation . . . in the middle toes,” “[a]ll lumbar
spine movement increases the pain and resting decreases the pain,” “[p]rior
use of tramadol by itself was of no benefit for pain control.” Id. The ALJ noted
that Dr. Sklaroff stated the objective musculoskeletal examination findings,
“despite those subjective symptoms,” were “within normal limits, except as
noted.” Id. The ALJ noted that Dr. Sklaroff testified that the “noted signs did
not include any decreased strength.” Id.

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Importantly, the ALJ stated “Dr. Sklaroff noted that [Plaintiff’s]
condition does cause pain. Dr. Sklaroff did not consider pain or decreased
sensation as bearing on the ability to lift. The ability to lift is based on the
muscle evaluation which was normal. Dr. Sklaroff testified that the evidence
supporting his RFC is the totality of the record and the fact that there is no
motor weakness.” Id. at 26-27. The ALJ summarized Dr. Sklaroff’s RFC
assessment, and stated he “concurs with that assessment and it is the basis for
the medication residual functional capacity set forth above.” Id. at 26. In
giving “little weight” to the opinion of Dr. Linsenmeyer, the ALJ stated he
“gives greater weight to Dr. Sklaroff’s opinion because it is supported with
explanation (no evidence of motor loss) and is consistent with the overall
treatment history here.” Id. at 27.
D.

The ALJ’s consideration of Plaintiff’s pain.

A plaintiff’s subjective allegation of pain is not sufficient in itself to
establish disability. Gatson v. Bowen, 838 F.2d 442, 447 (10th Cir. 1988).
Before the ALJ need even consider any subjective evidence of pain, the
claimant must first prove by objective medical evidence the existence of a painproducing impairment, that could reasonably be expected to produce the
alleged disabling pain. Luna v. Bowen, 834 F.2d 161, 163 (10th Cir. 1987); 42
U.S.C. § 423(d)(5)(A).

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The framework for the proper analysis of [Plaintiff’s]
evidence of pain is set out in Luna v. Bowen, 834 F.2d
161 (10th Cir. 1987). We must consider (1) whether
[Plaintiff] established a pain-producing impairment by
objective medical evidence; (2) if so, whether there is a
“loose nexus” between the proven impairment and the
[Plaintiff’s] subjective allegations of pain; and (3) if so,
whether, considering all the evidence, both objective
and subjective, [Plaintiff’s] pain is in fact disabling.
Musgrave v. Sullivan, 966 F.2d 1371, 1375-76 (10th Cir. 1992).
“Objective” evidence is any evidence, whether physiological or
psychological, that can be discovered and substantiated by external testing.
Luna, 834 F.2d at 162. “Subjective” evidence, on the other hand, consists of
statements by a Plaintiff or other witnesses that can be evaluated only on the
basis of credibility. Id. at 162 n.2.
The ALJ has failed to make required findings pursuant to the three-step
process set out in Luna. Plaintiff established a pain-producing impairment—
degenerative disc disease of the back with fibrosis along right side. The ALJ
found this to be a severe impairment. AR 18. There is at least a “loose nexus”
between this impairment and Plaintiff’s subjective allegations of pain.
Therefore, the ALJ was required to consider his assertions of pain and decide
whether he believed them. Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th
Cir. 1993).

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The undersigned agrees with Plaintiff that the ALJ inappropriately
adopted Dr. Sklaroff’s assessment of the relationship between Plaintiff’s
subjective symptoms and the objective findings. When discussing Plaintiff’s
April 2014 pain management assessment, the ALJ summarized Plaintiff’s
subjective symptoms at the time and noted that Dr. Sklaroff stated the
objective musculoskeletal examination findings, “despite those subjective
symptoms,” were “within normal limits, except as noted.” AR 26 (emphasis
added). The ALJ noted that Dr. Sklaroff testified that the “noted signs did not
include any decreased strength.” Id. The ALJ stated “Dr. Sklaroff noted that
[Plaintiff’s] condition does cause pain. Dr. Sklaroff did not consider pain or
decreased sensation as bearing on the ability to lift. The ability to lift is based
on the muscle evaluation which was normal.” Id. The ALJ does not provide
his own analysis of these subjective pain symptoms, nor does he explain
whether he considered “decreased sensation” and Plaintiff’s other symptoms to
have an effect on Plaintiff’s ability to lift. Instead, the ALJ improperly adopted
Dr. Sklaroff’s reasoning in full, which erroneously excludes pain entirely from
Plaintiff’s RFC assessment.
Further, the court evaluates the ALJ’s decision “based solely on the
reasons stated in the decision.”

Robinson, 366 F.3d at 1084.

The

Commissioner argues that “contrary to Plaintiff’s assertions that the ALJ did
not resolve conflicts between the medical opinions at issue as to the effect of
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Plaintiff’s symptoms on his RFC and the Commissioner’s guidance in this
regard . . . the ALJ reasonably did so.” Doc. 26, at 11. The Commissioner then
outlines the ALJ’s separate assessments of the medical evidence of record,
Plaintiff’s subjective symptoms, and Plaintiff’s activities of daily living. See id.
at 12-14. However, the Commissioner does not point to anything in the ALJ’s
opinion that shows the ALJ acknowledged and resolved this conflict between
Dr. Sklaroff’s opinions and SSA guidelines. The Commissioner’s argument
simply provides post-hoc rationales for the ALJ’s decision. 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 ALJ’s error is not harmless. Harmless error may apply “in the right
exceptional circumstance, i.e., where, based on material the ALJ did at least
consider (just not properly), [the court] could confidently say that no reasonable
administrative factfinder, following the correct analysis, could have resolved
the factual matter any other way.” Allen, 357 F.3d at 1145. That exceptional
circumstance does not exist here. As Plaintiff underscores, it is the ALJ, not a
medical expert, who is charged with determining Plaintiff’s RFC based upon
the medical record. Doc. 23, at 12; see SSR 96-5p, 1996 WL 374183, at *2, *5
(July 2, 1996).

Here, the ALJ ignored a clear discrepancy between SSA
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guidelines and the reasoning underlying Dr. Sklaroff’s medical opinion—which
was given “great weight” and, in the ALJ’s words, provided the “basis for the
medication residual functional capacity.” See AR 26. The ALJ’s RFC is not
supported by substantial evidence, and the ALJ’s incomplete analysis of the
effect of Plaintiff’s pain on his ability to perform work requires reversal of the
Commissioner’s decision and remand for further proceedings.
III.

Conclusion.
The court REVERSES and REMANDS the Commissioner’s decision.
ENTERED this 17th day of January, 2019.

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