Pavao v. Colvin

Filing 19

ORDER granting 13 Motion to Reverse. Signed by Chief Judge Jeffrey L. Viken on 9/29/17. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
SONIA ENID PAVAO,

CIV. 16-5066-JLV

Plaintiff,
vs.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
Plaintiff Sonia Enid Pavao filed a complaint appealing the final decision
of Nancy A. Berryhill,1 the acting Commissioner of the Social Security
Administration, finding her not disabled. (Docket 1). Defendant denies
plaintiff is entitled to benefits. (Docket 9). The court issued a briefing schedule
requiring the parties to file a joint statement of material facts (“JSMF”).
(Docket 11). For the reasons stated below, plaintiff’s motion to reverse the
decision of the Commissioner (Docket 13) is granted.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 12) is incorporated by reference. Further
recitation of salient facts is incorporated in the discussion section of this order.

1Nancy

A. Berryhill became the Acting Commissioner of Social Security
on January 20, 2017. Pursuant to Fed. R. Civ. P. 25(d), Ms. Berryhill is
automatically substituted for Carolyn W. Colvin as the defendant in all pending
social security cases. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405(g).

Plaintiff filed an application for social security disability insurance
benefits alleging an onset of disability date of January 26, 2012. (Docket 12
¶ 1). The administrative law judge (“ALJ”) issued a decision finding plaintiff
was not disabled. Id. ¶ 7; see also Administrative Record at pp. 23-35
(hereinafter “AR at p. ____”). Plaintiff requested review of the ALJ’s decision
and the Appeals Council denied her request for review and affirmed the ALJ’s
decision. (Docket 10 ¶ 7). The ALJ’s decision constitutes the final decision of
the Commissioner of the Social Security Administration. It is from this
decision which plaintiff timely appeals.
The issue before the court is whether the ALJ’s decision that Ms. Pavao
was not “under a disability, as defined in the Social Security Act, at any time
from January 26, 2012, [through June 30, 2013]” is supported by the
substantial evidence in the record as a whole. (AR at p. 34) (bold omitted); see
also Howard v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001) (“By statute, the
findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive.”) (internal quotation marks and
brackets omitted) (citing 42 U.S.C. § 405(g)).
STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Howard, 255 F.3d at 580. The
court reviews the Commissioner’s decision to determine if an error of law was
committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992). “Substantial
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evidence is less than a preponderance, but is enough that a reasonable mind
would find it adequate to support the Commissioner’s conclusion.” Cox v.
Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal citation and quotation
marks omitted).
The review of a decision to deny benefits is “more than an examination of
the record for the existence of substantial evidence in support of the
Commissioner’s decision . . . [the court must also] take into account whatever
in the record fairly detracts from that decision.” Reed v. Barnhart, 399 F.3d
917, 920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th
Cir. 2001)).
It is not the role of the court to re-weigh the evidence and, even if this
court would decide the case differently, it cannot reverse the Commissioner’s
decision if that decision is supported by good reason and is based on
substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.
2005). A reviewing court may not reverse the Commissioner’s decision
“ ‘merely because substantial evidence would have supported an opposite
decision.’ ” Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54 F.3d 484,
486 (8th Cir. 1995)). Issues of law are reviewed de novo with deference given to
the Commissioner’s construction of the Social Security Act. See Smith, 982
F.2d at 311.
The Social Security Administration established a five-step sequential
evaluation process for determining whether an individual is disabled and
entitled to SSI benefits under Title XVI. 20 CFR § 416.920(a). If the ALJ
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determines a claimant is not disabled at any step of the process, the evaluation
does not proceed to the next step as the claimant is not disabled. Id. The fivestep sequential evaluation process is:
(1) whether the claimant is presently engaged in a “substantial
gainful activity”; (2) whether the claimant has a severe
impairment—one that significantly limits the claimant’s physical or
mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations (if so, the claimant is
disabled without regard to age, education, and work experience);
(4) whether the claimant has the residual functional capacity to
perform . . . past relevant work; and (5) if the claimant cannot
perform the past work, the burden shifts to the Commissioner to
prove there are other jobs in the national economy the claimant
can perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). See also Boyd v.
Sullivan, 960 F.2d 733, 735 (8th Cir. 1992) (the criteria under 20 CFR
§ 416.920 are the same under 20 CFR § 404.1520 for disability insurance
benefits). The ALJ applied the five-step sequential evaluation required by the
Social Security Administration regulations. (AR at pp. 46-54; see also Docket
10 ¶¶ 3-17).
STEP ONE
At step one, the ALJ determined plaintiff had not been engaged in
substantial gainful activity since “her alleged onset date of January 26, 2012
through her date last insured of June 30, 2013 . . . .” (AR at p. 25).
STEP TWO
“At the second step, [the agency] consider[s] the medical severity of your
impairment(s).” 20 CFR § 404.1520(a)(4)(ii). “It is the claimant’s burden to
establish that [her] impairment or combination of impairments are severe.”
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Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). A severe impairment is
defined as one which significantly limits a physical or mental ability to do basic
work activities. 20 CFR § 404.1521. An impairment is not severe, however, if
it “amounts to only a slight abnormality that would not significantly limit the
claimant’s physical or mental ability to do basic work activities.” Kirby, 500
F.3d at 707. “If the impairment would have no more than a minimal effect on
the claimant’s ability to work, then it does not satisfy the requirement of step
two.” Id. (citation omitted). Additionally, the impairment must have lasted at
least twelve months or be expected to result in death. See 20 CFR § 404.1509.
The ALJ found plaintiff suffered from the following severe impairments:
“multiple sclerosis, relapsing-remitting type; migraine headaches; and
obstructive sleep apnea.” (AR at pp. 25-26) (bold omitted).
STEP THREE
At step three, the ALJ determines whether claimant’s impairment or
combination of impairments meets or medically equals the criteria of an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (“Appendix 1”).
20 CFR §§ 404.1520(d), 404.1525, and 404.1526. If a claimant’s impairment
or combination of impairments meets or medically equals the criteria for one of
the impairments listed and meets the duration requirement of 20 CFR
§ 404.1509, the claimant is considered disabled. At that point the
Commissioner “acknowledges [the impairment or combination of impairments]
are so severe as to preclude substantial gainful activity. . . . [and] the claimant
is conclusively presumed to be disabled.” Bowen v. Yuckert, 482 U.S. 137, 141
(1987). A claimant has the burden of proving an impairment or combination of
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impairments meet or equals a listing within Appendix 1. Johnson v. Barnhart,
390 F.3d 1067, 1070 (8th Cir. 2004). If not covered by these criteria, the
analysis is not over, and the ALJ proceeds to the next step.
At this step the ALJ determined plaintiff’s severe impairments did not
meet or equal a listing under Appendix 1. (AR at p. 26). Plaintiff does not
challenge this finding.
STEP FOUR
Before considering step four of the evaluation process, the ALJ is
required to determine a claimant’s residual functional capacity (“RFC”).
20 CFR § 404.1520(e). RFC is a claimant’s ability to do physical and mental
work activities on a sustained basis despite any limitations from his
impairments. 20 CFR § 404.1545(a)(1). In making this finding, the ALJ must
consider all of the claimant’s impairments, including those which are not
severe. 20 CFR § 404.1545(e). All of the relevant medical and non-medical
evidence in the record must be considered. 20 CFR §§ 404.1520(e) and
404.1545.
“The ALJ should determine a claimant’s RFC based on all the relevant
evidence, including the medical records, observations of treating physicians
and others, and an individual’s own description of his limitations.”
Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir. 2006) (quoting Strongson v.
Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004)); see also Cox v. Astrue, 495
F.3d 614, 619 (8th Cir. 2007) (stating because RFC is a medical question, the
ALJ’s decision must be supported by some medical evidence of a claimant’s

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ability to function in the workplace, but the ALJ may consider non-medical
evidence as well); Guilliams, 393 F.3d at 803 (“RFC is a medical question, and
an ALJ’s finding must be supported by some medical evidence.”). The ALJ “still
‘bears the primary responsibility for assessing a claimant’s residual functional
capacity based on all relevant evidence.’ ” Guilliams, 393 F.3d at 803 (quoting
Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000)).
Plaintiff argues the ALJ erred in determining her RFC because he did not
properly accord weight to medical opinion evidence. (Docket 14 at pp. 6-15).
Plaintiff claims it was an error for the ALJ not to give controlling weight to the
opinion of Steven Hata, M.D., her treating physician. Id. at pp. 6-7, 15.
Setting aside whether or not Dr. Hata’s opinion deserved controlling weight,
plaintiff asserts the ALJ erred in weighing medical opinions under 20 CFR
§ 404.1527, which governs medical opinions not given controlling weight.
(Docket 14 at pp. 8-13). Defendant contends the ALJ properly evaluated the
record’s medical opinion evidence. (Docket 17 at pp. 4-13). According to
defendant, the ALJ properly denied Dr. Hata’s opinion controlling weight
because it was contrary to medical opinions of non-examining sources. Id. at
pp. 9-10.
A treating physician’s medical opinion is given controlling weight if that
opinion is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 CFR § 404.1527(c)(2); see Choate, 457 F.3d
at 869. “A treating physician’s opinions must be considered along with the
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evidence as a whole, and when a treating physician’s opinions are inconsistent
or contrary to the medical evidence as a whole, they are entitled to less weight.”
Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002) (citations omitted).
The purpose of placing greater weight on a treating source is because they are
“most able to provide a detailed, longitudinal picture of [the claimant’s] medical
impairment(s)[.]” 20 CFR § 404.1527(c)(2). “Generally, even if a consulting
physician examines a claimant once, his or her opinion is not considered
substantial evidence, especially if, as here, the treating physician contradicts
the consulting physician’s opinion.” Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir.
2001) (citing Onstead v. Sullivan, 962 F.2d 803, 805 (8th Cir. 1992)).
Because neither party disputes that Dr. Hata qualifies as a treating
physician of plaintiff, the issue is whether the ALJ’s refusal to assign
controlling weight to Dr. Hata was proper because Dr. Hata’s opinion was not
“well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the]
case record.” 20 CFR § 404.1527(c)(2); see Choate, 457 F.3d at 869. The ALJ
stated he denied controlling weight to Dr. Hata’s opinion because the ALJ
concluded the opinion was not consistent with other substantial evidence. (AR
at p. 30). The ALJ presented his reasoning and conclusion as follows:
When determining whether to assign controlling weight, I consider
only the opinions of those medical sources who have actually
treated the claimant. . . . In this case, treating sources have given
opinions about the claimant’s functional capacity, so I considered
whether I should give controlling weight to the opinions of any of
the claimant’s treating sources.

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In addressing the issue of controlling weight, I must consider
whether the regulatory requirements have been satisfied. In order
for the opinions of a treating source to receive controlling weight,
they must be “consistent” with “the other substantial evidence” in
the record. Such other evidence may include the opinions of other
treating sources as well as the opinions of non-treating medical
sources. Non-treating sources include State and Regional Agency
medical and psychological consultants, Consultative Examiners
(CE), and Medical Experts (ME).
In this case, other medical sources have indeed provided opinions
about the claimant’s functional capacity. The record includes
opinions from at least one State Agency medical consultant about
the claimant’s functional capacity. Those opinions concluded that
the claimant’s limitations would not preclude the performance of
substantial gainful activity.
In addition, the record includes
opinions from at least one Medical Expert (ME) about the
claimant’s functional capacity.
The ME opinions, given in
testimony during the hearing, concluded that the claimant’s
limitations would not preclude the performance of substantial
gainful activity.
The opinions that I have just summarized constitute the
“substantial evidence” mentioned in the regulations. In this case,
the treating source opinions are not “consistent” with “the other
substantial evidence” in the record. Consequently, I find that the
treating source opinions are not entitled to receive controlling
weight.
Id. (citations and footnotes omitted) (emphasis in original).
The “treating source opinions” the ALJ refers to are the medical
opinions of Dr. Hata. Id.; (Docket 12 ¶¶ 70-76). Although the ALJ does
not specify the non-treating sources, those sources in the record include
Howard Horsley, M.D., Tom Burkhart, M.D., and Steven Goldstein, M.D.
(Docket 12 ¶¶ 67-69). Plaintiff claims the ALJ committed error because
he violated the principle that non-examining sources “generally do not
constitute substantial evidence.” (Docket 14 at p. 15) (citing Shontos v.
Barnhart, 328 F.3d 418, 427 (8th Cir. 2003)); see also Singh v. Apfel,
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222 F.3d 448, 452 (8th Cir. 2000) (“[t]he opinion of a consulting
physician who examines a claimant once or not at all does not generally
constitute substantial evidence.”). Defendant counters by arguing the
United States Court of Appeals for the Eighth Circuit did not find error
when an ALJ did not give controlling weight to a treating physician’s
opinion in light of contrary non-examining opinions. (Docket 17 at p. 10)
(citing Ponder v. Colvin, 770 F.3d 1190, 1194-95 (8th Cir. 2014) (per
curium); Smith v. Colvin, 756 F.3d 621, 626-27 (8th Cir. 2014); Casey v.
Astrue, 503 F.3d 687, 694 (8th Cir. 2007)).
Defendant is correct in claiming the Ponder, Smith and Casey
cases involve courts affirming ALJs refusing to give controlling weight to
a treating physician’s medical opinion. See Ponder, 770 F.3d at 1194-95;
Smith, 756 F.3d at 626-27; Casey, 503 F.3d at 691-93. But in those
cases there was more than simply the existence of a non-examining
physician’s contrary opinion. In Ponder, the court concluded “[t]he
record as a whole in this case, including the ‘inconsistencies in the
evidence,’ Ponder’s ‘daily activities,’ and the ‘effectiveness [of her]
medication,’ casts significant doubt” on the medical opinion of claimant’s
treating physician. Ponder, 770 F.3d at 1194 (citation omitted). The
Smith court found no error in an ALJ’s decision to deny controlling
weight to a treating source because the non-examining sources were
“supported by better or more thorough medical evidence . . . .” Smith,
756 F.3d at 626-27. And in Casey, the court determined the treating
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physician’s opinion was not “consistent with medically acceptable clinical
or laboratory diagnostic data.” Casey, 503 F.3d at 692.
In this case, the ALJ stated he denied controlling weight to Dr.
Hata’s opinion because “the record includes” opinions from “State Agency
medical consultant[s]” and a “Medical Expert” which had findings
contrary to Dr. Hata’s opinion. (AR at p. 30). Because there was tension
between the treating and non-examining opinions, the ALJ decided “the
treating source opinions are not consistent with the other substantial
evidence in the record.” Id. Unlike Ponder, the ALJ did not delve deeper
into the record in making this determination. Ponder, 770 F.3d at 1194.
The ALJ did not ground his conclusion on the “better or more thorough
medical evidence” in the non-examining sources’ opinions. See Smith,
756 F.3d at 626-27. Neither did the ALJ find Dr. Hata’s opinion lacked
consistency “with medically acceptable clinical or laboratory diagnostic
data.” See Casey, 503 F.3d at 692. The ALJ stated the “substantial
evidence” on this point consisted of the non-examining medical opinions
only. Id.
As established in Singh, Eighth Circuit law holds “[t]he opinion of a
consulting physician who examines a claimant once or not at all does not
generally constitute substantial evidence.” Singh, 222 F.3d at 452. In
this case, the ALJ determined the fact of two consulting physicians’
opinions, which contrasted with Dr. Hata’s opinions, was “substantial
evidence . . . .” (AR at p. 30). However, the existence of a contrary
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opinion from a non-examining source is not a sufficient basis alone for
denying controlling weight to a treating physician’s opinion. See Singh,
222 F.3d at 452; see also Brewer-Kite v. Colvin, 959 F. Supp. 2d 1176,
1189 (S.D. Iowa 2013) (“It is well settled law that the opinions of
physicians who have not examined the claimant, do not constitute
substantial evidence on the record as a whole upon which to base a
denial of benefits.”). As the Singh court stated regarding non-treating
physicians’ opinions, “[t]hese assessments alone cannot be considered
substantial evince in the face of the conflicting assessment of a treating
physician.” Singh, 222 F.3d at 452 (citing Henderson v. Sullivan, 930
F.2d 19, 21 (8th Cir. 1991)). This is especially true because Dr. Hata’s
extended treating relationship with plaintiff substantiates his opinions.
(Docket 14 at p. 13) (citing Docket 12 ¶¶ 37-14, 43-44, 46-54, 56-64).
The only basis the ALJ provided for not giving controlling weight to
Dr. Hata’s opinion is the fact of contrary opinions from consulting
physicians. (AR at p. 30). The court finds this is error. See Singh, 222
F.3d at 452. “It is a well-settled principle of administrative law that a
reviewing court may not uphold an agency decision based on reasons not
articulated by the agency itself in its decision.” Mayo v. Schiltgen, 921
F.2d 177, 179 (8th Cir. 1990); see Russel v. Colvin, No. 3:14CV00154,
2015 WL 3691256, a *1 n.1 (E.D. Ark. June 12, 2015) (citing this holding
from Mayo and applying it in the Social Security context). Because the
ALJ committed error in denying controlling weight to Dr. Hata’s opinion,
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the ALJ’s RFC determination, which did not incorporate Dr. Hata’s
opinions, is not supported by substantial evidence. Singh, 222 F.3d at
452.
ORDER
Based on the above analysis, it is
ORDERED that plaintiff’s motion to reverse the decision of the
Commissioner (Docket 13) is granted.
IT IS FURTHER ORDERED that, pursuant to sentence four of 42 U.S.C.
§ 405(g), the case is remanded to the Commissioner for rehearing consistent
with the court’s analysis.
Dated September 29, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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