Rodriguez v. Commissioner of Social Security Administration

Filing 22

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 the Commissioner's decision and REMANDS the case for additional consideration consistent with this Memorandum Opinion and Order. Signed by Magistrate Judge Shon T. Erwin on 3/31/2021. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHRISTINE RODRIGUEZ,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of the Social Security
Administration,
Defendant.

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Case No. CIV-20-517-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 the
Commissioner’s decision and REMANDS the case for further consideration consistent
with this Memorandum Opinion and Order.
I.

PROCEDURAL BACKGROUND
On March 22, 2017, Ms. Rodriguez applied for disability insurance benefits and

supplemental security income, alleging a disability beginning July 15, 2016. (TR. 15).
Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision

on June 14, 2019. (TR. 15-26). The Appeals Council denied review on April 6, 2020,
making the ALJ’s decision the final decision of the Commissioner. (TR. 1-5). Thereafter,
Ms. Rodriguez timely filed this appeal.
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, even though Plaintiff had
attempted to work after her alleged onset date, that work had not risen to the level of
substantial gainful activity as defined in the regulations. (TR. 18). Thus, the ALJ
proceeded to the second step where she determined Ms. Rodriguez had severe
impairments, including degenerative disc disease, osteoarthritis, major depressive
disorder, and anxiety. (TR. 18).
At step three, the ALJ considered whether Ms. Rodriguez’s impairments were
severe enough to meet the requirements of the presumptively disabling impairments
listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listings). (TR. 18). First, the ALJ
considered the Listing at 1.04, Disorders of the Spine, and determined the medical
evidence of record did not demonstrate compromise of a nerve root or of the spinal cord
with additional findings of either nerve root compression, spinal arachnoiditis, or lumbar
spinal stenosis. (TR. 20). Additionally, the ALJ considered the Listing at 12.04 in assessing
Plaintiff’s mental limitations, finding that Plaintiff’s depression and anxiety did not meet
either the Paragraph B criteria or the Paragraph C criteria. Thus at step three, the ALJ
concluded that Ms. Rodriguez did not have an impairment or combination of impairments
that met or medically equaled the severity of one of any of the Listings. (TR. 18).
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At step four, the ALJ concluded that Ms. Rodriguez retained the residual functional
capacity (RFC) to:
[P]erform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except the claimant can lift and/or carry 10 pounds frequently and 20
pounds occasionally; she can stand and/or walk six hours in an eight-hour
workday; she can sit for six hours in an eight-hour workday; she frequently
can kneel and crouch; and, she occasionally can climb ladders, ropes,
scaffolds and stairs as well as stoop and crawl. The claimant can
understand, remember and carry out simple and detailed instructions. The
claimant occasionally and superficially can interact with the public.
(TR. 20-21).
With this RFC, the ALJ concluded, based on the testimony of the vocational expert
(VE), that Plaintiff could not perform her past relevant work. (TR. 24). But the VE testified
there were other jobs in the national economy that Plaintiff could perform. Given the
limitations identified by the ALJ in a series of hypothetical questions, the VE identified
three unskilled jobs from the Dictionary of Occupational Titles that a hypothetical person
with Plaintiff’s impairments could allegedly perform: Housekeeping Cleaner, Merchandise
Marker, and Mail Sorter. (TR. 62). At step five, the ALJ found the VE’s testimony to be
consistent with the information in the Dictionary of Occupational Titles and adopted the
VE’s testimony, concluding Plaintiff was not disabled based on her ability to perform the
identified jobs. (TR. 25).
III.

ISSUE PRESENTED
On appeal, Ms. Rodriguez contends the ALJ erred in failing to properly evaluate

the opinion evidence of her treating physician. (ECF No. 17:13-18). The Commissioner
contends that Plaintiff is simply asking this Court to reweigh the evidence. (ECF No. 21:914).
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IV.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final decision “to determin[e] whether the

Commissioner applied the correct legal standards and whether the agency’s factual
findings are supported by substantial evidence.” Noreja v. Commissioner, SSA, 952 F.3d.
1172, 1177 (10th Cir. 2020) (citation omitted). Under the “substantial evidence” standard,
a court looks to an existing administrative record and asks whether it contains “sufficien[t]
evidence” to support the agency’s factual determinations. Biestek v. Berryhill, 139 S. Ct.
1148, 1154 (2019). “Substantial evidence … is more than a mere scintilla … and means
only—such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Biestek v. Berryhill, 139 S. Ct. at 1154 (internal citations and quotation
marks 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).
V.

ANALYSIS
Because Ms. Rodriguez filed her applications before March 27, 2017, the ALJ was

required to analyze the opinion evidence, specifically that offered by Dr. Payton Flournoy,
Plaintiff’s treating physician, under 20 C.F.R. § 404.1527. This regulation, in effect at the
time Plaintiff filed her applications for DIB and SSI, requires an ALJ to give more deference
to the opinion of a treating physician than to other opinion evidence:
Treatment relationship. Generally, we give more weight to medical opinions
from your treating sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of your
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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. If we find that a treating source's
medical opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling weight.
When we do not give the treating source's medical opinion controlling
weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of
this section, as well as the factors in paragraphs (c)(3) through (c)(6) of
this section in determining the weight to give the medical opinion. We will
always give good reasons in our notice of determination or decision for the
weight we give your treating source’s medical opinion.
20 C.F.R. § 404.1527.1
This regulation requires an ALJ considering a treating physician’s opinion to “give
good reasons in the notice of determination or decision for the weight assigned to a
treating physician’s opinion.” Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)
(internal quotation marks and alteration omitted).
Thus, an ALJ must first determine whether the treating physician’s opinion
deserves controlling weight. Controlling weight must be given if the opinion is both

This regulation was replaced by 20 C.F.R. § 404.1520c. (effective March 27, 2017). The current
regulation does not differentiate between medical opinions, so long as they are supported by
evidence in the record.
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We will not defer or give any specific evidentiary weight, including controlling
weight, to any medical opinion(s) or prior administrative medical finding(s),
including those from your medical sources. When a medical source provides one
or more medical opinions or prior administrative medical findings, we will consider
those medical opinions or prior administrative medical findings from that medical
source together using the factors listed in paragraphs (c)(1) through (c)(5) of this
section, as appropriate. The most important factors we consider when we evaluate
the persuasiveness of medical opinions and prior administrative medical findings
are supportability (paragraph (c)(1) of this section) and consistency (paragraph
(c)(2) of this section). We will articulate how we considered the medical opinions
and prior administrative medical findings in your claim according to paragraph (b)
of this section.

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supported by medically acceptable clinical and laboratory diagnostic techniques and not
inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2).
If both of these conditions are met, no other factors need be considered and the inquiry
is at an end. See id.; Watkins, 350 F.3d at 1300.2
However, if one or both of these conditions is lacking, an ALJ is not free to simply
disregard the opinion or pick and choose which portions to adopt. Instead, the ALJ must
proceed to a second determination, where the ALJ must both (1) weigh the opinion “using
all of the factors provided in 20 C.F.R. § 404.1527 and 416.927” and (2) “give good
reasons in the notice of determination or decision for the weight [the ALJ] ultimately
assigns the opinion.” Watkins, 350 F.3d at 1300–01 (internal quotation marks and
alteration omitted).
If the ALJ does not afford the opinion of the treating physician controlling weight,
the ALJ must determine the weight to be given the opinion by considering such factors
as the length of the treatment relationship and the frequency of examination; the nature
and extent of the treatment relationship; supportability;3 consistency;4 specialization; and
other factors. 20 C.F.R. § 404. 1527(d)(1)-(6). Although the ALJ’s decision need not

Although the ALJ cited to the correct regulation, she failed to follow the steps the regulation
required.
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“[B]ecause nonexamining sources have no examining or treating relationship with you, the
weight we will give their medical opinions will depend on the degree to which they provide
supporting explanations for their medical opinions. We will evaluate the degree to which these
medical opinions consider all of the pertinent evidence in your claim, including medical opinions
of treating and other examining sources.”
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“[T]he more consistent a medical opinion is with the record as a whole, the more weight we
will give to that medical opinion.”
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include an explicit discussion of each factor, see Oldham v. Astrue, 509 F.3d 1254, 1258
(10th Cir. 2007), the record must reflect that the ALJ considered every factor in the weight
calculation.
Dr. Payton Flournoy, D.O., Ms. Rodriguez’s treating physician, completed and
submitted a “Treating Source Statement—Physical Conditions” (TR. 478-481) and a
“Treating Source Statement—Psychological Conditions” (TR. 482-486) containing his
summary of opinions regarding the limiting effects of Plaintiff’s physical and mental
impairments.
Ms. Rodriguez alleges legal error in the ALJ’s evaluation of these opinions. This
Court agrees. As discussed in further detail below, the ALJ erred in her analysis of Dr.
Flournoy’s opinions as well as the opinions of the consultative physicians. Her unfavorable
decision consists solely of citations to the portions of medical opinions that support her
RFC. The ALJ simply ignored all opinions that would support a finding of disability.
The forms Dr. Flournoy completed consist of check mark boxes and explanatory
statements. Dr. Flournoy stated he had treated Plaintiff every 1-2 months beginning in
January 2018. His list of diagnoses included low back pain with sciatica, anxiety, migraines
and insomnia. Dr. Flournoy indicated Plaintiff’s physical conditions would interfere with
her attention and concentration more than 25% of the time, that she would be able to
maintain attention and concentration less than 30 minutes at a time without needing a
break and that she would be absent from work more than 4 days per month because of
her impairments. (TR. 478-479). Dr. Flournoy stated Plaintiff could lift and carry less than
10 pounds frequently and 10 pounds occasionally. Dr. Flournoy attributed these
limitations to her “pain and hypertonic paraspinal musculature bilaterally along cervical
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and thoracic spine” as demonstrated by a CT scan showing degenerative changes along
the spine. Dr. Flournoy noted Plaintiff’s “diffuse lumbar paraspinal tenderness and
hypertonicity, sciatic pain with bilateral leg flexion.” He further found Plaintiff is “unable
to tolerate even gentle soft tissue procedures like massage and strengthening.” (TR. 479).
Dr. Flournoy stated Plaintiff could sit for 2 hours and stand or walk for 6 hours in an 8hour workday. But he also stated Plaintiff would have to lie down or recline “at least
hourly” for 10-15 minutes throughout the workday. (TR. 479-480). Significantly, Dr.
Flournoy stated that Ms. Rodriguez required a cane or walker to ambulate and that she
could walk only 100 feet without an assistive devise. (TR. 480).
In the statement regarding Plaintiff’s psychological conditions, Dr. Flournoy’s
diagnoses included the physical ailments along with anxiety and recurrent major
depressive disorder. (TR. 482). Although Dr. Flournoy assessed her prognosis as “good,”
he diagnosed Plaintiff with depression, characterized by anhedonia, insomnia, and
feelings of worthlessness. Further, he stated her chronic anxiety led to sleep disturbances
and interfered with her ability to function productively. (TR. 482). In assessing the
severity of Ms. Rodriguez’s symptoms, Dr. Flournoy stated they were “mild, would not
limit most work environments.” (TR. 483). Still, Dr. Flournoy was of the opinion that Ms.
Rodriguez would be “off task” 20% of the working day and would miss 1 day of work a
month because of the symptoms associated with anxiety and depression. (TR. 486).
Based on the testimony of the VE, Ms. Rodriguez contends that a person who is
“off task” 20% of the time or needs to miss even 2 days of work per month or needs
extra breaks during the work day would be unable to secure any full time employment.
(ECF No. 17:15); See (TR. 63). According to Dr. Flournoy’s opinion, Plaintiff fits all three
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of the above descriptions. Thus, according to Plaintiff, the ALJ should have included these
limitations, assessed by her treating physician, in the RFC.
The ALJ afforded minimal weight to Dr. Flournoy’s opinions regarding Plaintiff’s
physical limitations, finding his opinions were “inconsistent with the above residual
functional capacity” and “entirely unsupported by his treating records and the evidence
of record as a whole.” (TR. 23). There is no indication the ALJ took into account Plaintiff’s
need to use a cane or walker, nor did the ALJ include this limitation in her hypothetical
questions to the VE. Therefore, the VE did not consider whether the jobs she had
identified could be performed by a hypothetical person who needed to use a cane or
walker to ambulate.
On the other hand, the ALJ gave “great weight” to Dr. Flournoy’s opinions that
Plaintiff’s depression and anxiety “were mild and would not limit most work environments”
and his findings that Plaintiff had “no limitations related to her mental health.” (TR. 23).
But the ALJ does not address Dr. Flournoy’s conclusion that Plaintiff would be “off task”
20% of the time because of her mental impairments, nor does she attempt to reconcile
these diametrically opposed opinions.
The ALJ also gave “great weight” to the opinion of the consultative psychologist,
Christopher Campbell, Ph.D., who examined Plaintiff on March 16, 2018. Dr. Campbell
diagnosed Plaintiff with recurrent, mild major depressive disorder. Dr. Campbell assessed
Plaintiff’s prognosis as fair and determined her intelligence was average. He assessed
Plaintiff’s fund of knowledge as “adequate” and found her thought process to be clear,
coherent and linear. (TR. 442). The ALJ concluded Dr. Campbell’s opinion should be given

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“great weight” because “it is well supported by the medical evidence of record in its
entirety and consistent with the above residual functional capacity.” (TR. 23).
Ms. Rodriguez was also examined by consultative physician, S. A. Chaudry, M.D.
Dr. Chaudry recognized Plaintiff’s pain-producing impairment as osteoarthritis of the
lumbosacral spine. (TR. 494). The ALJ noted Dr. Chaudry’s findings that Plaintiff had
normal gait, normal range of motion of the lumbar spine and negative straight leg raising
test. (TR 22). But even though the Range of Joint Motion Evaluation Chart Dr. Chaudry
used indicated full range of motion, he also reported Plaintiff had “painful range of motion
of flexion, extension, rotation and lateral movements with bilateral paraspinous muscular
tenderness.” (TR. 494). Thus, a reasonable inference from this evidence is that, although
Plaintiff could perform movements indicating a normal range of motion, those movements
caused pain. The ALJ did not take the reported pain into account. What is more, Dr.
Chaudry’s report that Plaintiff could perform heel-toe walking and could walk unassisted,
was based solely on one examination. Such a finding does not necessarily contradict Dr.
Flournoy’s opinion that Plaintiff can walk only 100 feet unassisted.
In sum, the ALJ supported her unfavorable decision by citing only the evidence
that favors her determination of Plaintiff’s RFC. In fact, it appears she formulated her RFC
first, and then sought opinion evidence to support it. On remand, the ALJ should evaluate
the evidence using the steps listed in the applicable regulation. Moreover, the ALJ should
consider all opinion evidence and explain why she rejects any evidence supporting a
finding of disability.

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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 the Commissioner’s decision and
REMANDS the case for additional consideration consistent with this Memorandum
Opinion and Order.
ENTERED on March 31, 2021.

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