Rogers v. Berryhill
Filing
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MEMORANDUM OPINION AND ORDER: The hearing decision is reversed and this case is remanded to the Commissioner of Social Security for further proceedings consistent with this opinion. (Ordered by Magistrate Judge David L. Horan on 8/27/2018) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHARLES R.
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Plaintiff,
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V.
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security, §
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Defendant.
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No. 3:17-cv-721-BN
MEMORANDUM OPINION AND ORDER
Plaintiff Charles R. seeks judicial review of a final adverse decision of the
Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). For the reasons
explained below, the hearing decision is reversed.
Background
Plaintiff alleges that he is disabled as a result of osteoarthritis of both knees and
coronary artery disease. After his applications for disability insurance benefits and
supplemental security income (“SSI”) benefits were denied initially and on
reconsideration, Plaintiff requested a hearing before an administrative law judge
(“ALJ”). That hearing was held on October 22, 2015. See Dkt. No. 9 (Administrative
Record [“Tr.”] at 33-63 (Hearing Transcript)). At the time of the hearing, Plaintiff was
47 years old. He has a high school equivalency diploma and past work experience as
a customer service clerks supervisor, security guard, and realtor. Plaintiff has not
engaged in substantial gainful activity since June 1, 2010.
The ALJ found that Plaintiff was not disabled and therefore not entitled to
disability or SSI benefits. See id. at 14-23 (ALJ’s Decision). Although the medical
evidence established that Plaintiff suffered from morbid obesity, hypertensive
cardiovascular disease, degenerative joint disease of the bilateral knees, and lumbar
myofascitis, the ALJ concluded that the severity of those impairments did not meet or
equal any impairment listed in the social security regulations. The ALJ further
determined that Plaintiff had the residual functional capacity to perform his past
relevant work as a customer service clerks supervisor. Alternatively, relying on a
vocational expert’s testimony, the ALJ found that Plaintiff was capable of working as
an order clerk (food and beverage) and a dowel inspector – jobs that exist in significant
numbers in the national economy.
Plaintiff appealed that decision to the Appeals Council. The Council affirmed.
Plaintiff then filed this action in federal district court. In multiple grounds,
Plaintiff argues that the ALJ committed reversible error by failing to resolve an
internal contradiction in the ALJ’s Decision, improperly rejecting the opinions of his
treating physicians, and failing to consider new and material evidence of his disability.
The Court determines that the hearing decision must be reversed and this case
remanded to the Commissioner of Social Security for further proceedings consistent
with this opinion.
Legal Standards
Judicial review in social security cases is limited to determining whether the
Commissioner’s decision is supported by substantial evidence on the record as a whole
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and whether Commissioner applied the proper legal standards to evaluate the
evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014);
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “more than
a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
accord Copeland, 771 F.3d at 923. The Commissioner, rather than the courts, must
resolve conflicts in the evidence, including weighing conflicting testimony and
determining witnesses’ credibility, and the Court does not try the issues de novo. See
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994). This Court may not reweigh the evidence or substitute its
judgment for the Commissioner’s but must scrutinize the entire record to ascertain
whether substantial evidence supports the hearing decision. See Copeland, 771 F.3d
at 923; Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). The Court “may affirm
only on the grounds that the Commissioner stated for [the] decision.” Copeland, 771
F.3d at 923.
“In order to qualify for disability insurance benefits or [supplemental security
income], a claimant must suffer from a disability.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
A disabled worker is entitled to monthly social security benefits if certain conditions
are met. See 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage
in substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or last for a continued
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period of 12 months. See id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923; Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985).
“In evaluating a disability claim, the Commissioner conducts a five-step
sequential analysis to determine whether (1) the claimant is presently working; (2) the
claimant has a severe impairment; (3) the impairment meets or equals an impairment
listed in appendix 1 of the social security regulations; (4) the impairment prevents the
claimant from doing past relevant work; and (5) the impairment prevents the claimant
from doing any other substantial gainful activity.” Audler v. Astrue, 501 F.3d 446, 44748 (5th Cir. 2007).
The claimant bears the initial burden of establishing a disability through the
first four steps of the analysis; on the fifth, the burden shifts to the Commissioner to
show that there is other substantial work in the national economy that the claimant
can perform. See Copeland, 771 F.3d at 923; Audler, 501 F.3d at 448. A finding that the
claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. See Copeland, 771 F.3d at 923; Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four elements
to determine whether there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) subjective
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evidence of pain and disability; and (4) the claimant’s age, education, and work history.
See Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the
resulting decision is not substantially justified. See id. However, the Court does not
hold the ALJ to procedural perfection and will reverse the ALJ’s decision as not
supported by substantial evidence where the claimant shows that the ALJ failed to
fulfill the duty to adequately develop the record only if that failure prejudiced Plaintiff,
see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) – that is, only if Plaintiff’s
substantial rights have been affected, see Audler, 501 F.3d at 448. “Prejudice can be
established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a
different decision.” Ripley, 67 F.3d at 557 n.22. Put another way, Plaintiff “must show
that he could and would have adduced evidence that might have altered the result.”
Brock v. Chater, 84 F.3d 726, 728-29 (5th Cir. 1996).
Analysis
Among the arguments Plaintiff makes is a single ground that compels remand.1
Plaintiff argues that the ALJ’s single reason for discounting the most important
treating-source opinion in the record implies the existence of work-related limitations
that the residual functional capacity (“RFC”) finding omits and that the resulting
By remanding this case for further administrative proceedings, the Court does
not suggest that Plaintiff is or should be found disabled.
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internal contradiction in the ALJ’s Decision necessitates remand for clarification under
the Chenery doctrine.
Mark A. Rodgers, M.D., an internal medicine specialist, has been Plaintiff’s
treating physician since 2014. Plaintiff contends that the record contains two medical
opinions prepared by Dr. Rodgers and that the ALJ weighed both of them. According
to Plaintiff, the most important of these medical opinions is a questionnaire focused on
work-related functioning that was completed on September 3, 2015. See Tr. at 437-41.
Dr. Rodgers considered the functional limitations that would affect Plaintiff if
he were to try to work full-time and concluded:
Plaintiff can perform a job in a seated positions for one hour.
It is medically necessary for Plaintiff to avoid continuous sitting. He must
get up from a seated position to move around every thirty minutes. After
that he should not return to a seated position for at least three hours.
Plaintiff can perform a job standing and/or walking for less than one
hour.
Plaintiff requires unscheduled breaks to rest at unpredictable intervals
approximately once per hour. Before returning to work, Plaintiff needs to
rest for two to three hours.
Plaintiff is likely to absent from work as a result of his impairments or
treatment more than three times a month.
Tr. at 439-41. The questionnaire is dated after Plaintiff’s insured eligibility expired,
but Dr. Rodgers made clear that his answers apply retroactively back to June 1, 2010.
See id. at 441 (stating that in his “best medical opinion,” Plaintiff’s “symptoms and
related limitations as detailed in this questionnaire apply as far back as 06/01/2010”).
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Dr. Rodgers made the additional comment that “Pt. has been unable to have any
gainful employment since 06/01/2010 due to the severe knee pain.” Id.
In making the RFC determination, the ALJ considered the opinions of two
treating physicians. The ALJ “considered Dr. Rodgers’s opinion that the claimant is
limited to a residual functional capacity for less than sedentary exertion. Dr. Rodgers
noted the claimant had been unable to engage in any gainful employment since June
1, 2010 due to severe knee pain.” Id. at 20 (referencing id. at 441). The ALJ also
“considered the letter received from Kwan K. Oie, M.D., dated September 6, 2012. It
was Dr. Oie’s opinion that the claimant was disabled because of osteoarthritis of both
knee[s] and severe morbid obesity.” Id. (referencing id. at 344). The ALJ found that
“the opinions of Dr. Rodgers and Dr. Oei that the claimant is disabled and unable to
engage in any gainful employment is supported only to the extent that past repetitive
use types of work reasonably are prohibited.” Id. Based on that finding, the ALJ gave
the treating physicians’ opinions little weight. See id.
The ALJ found that Plaintiff has the RFC to perform sedentary work, with the
limitations that Plaintiff can occasionally climb ramps and stairs, occasionally balance
and stoop, never kneel or crawl, and never claim ladders, ropes and scaffolds.
Furthermore, Plaintiff must be allowed to use a hand-held assistive device, such as a
cane, for ambulation. See id. at 18. The RFC for sedentary work requires Plaintiff to
engage in six hours of sitting each day and two hours of standing or walking. See SSR
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96-9p, 1996 WL 374185, at *2. It makes no allowance for unscheduled breaks, permits
no work absences, and does not prohibit repetitive types of work.
Plaintiff contends that the absence from the RFC finding of a restriction on
“repetitive use types of work” contradicts the ALJ’s comments when weighing the
opinions of the two doctors that they were correct in prohibiting Plaintiff from that
kind of work activity. Plaintiff asserts that this inconsistency on the face of the ALJ’s
decision makes the decision too unclear to be meaningfully reviewed.
“The ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s
decision, as adopted by the Appeals Council.” Newton v. Apfel, 209 F.3d 448, 455 (5th
Cir. 2000). “Reviewing courts do not consider rationales supporting an ALJ’s decision
that are not invoked by the ALJ.” Bragg v. Comm’r of Soc. Sec. Admin., 567 F. Supp.
2d 893, 907 (N.D. Tex. 2008). “If those grounds are inadequate or improper, the court
is powerless to affirm the administrative action by substituting what it considers to be
a more adequate or proper basis.” SEC v. Chenery, 332 U.S. 194, 196-97 (1947).
The Court finds that the final decision of the Commissioner is not supported by
substantial evidence. As argued by Plaintiff, there is an internal inconsistency between
the ALJ’s RFC finding, which is less protective of Plaintiff than Dr. Rodgers’s opinion,
and the ALJ’s rejection of Dr. Rodgers’s opinion except “to the extent that past
repetitive use types of work reasonably are prohibited.”
This ambiguity warrants remand for clarification, because it precludes the Court
from conducting meaningful review. See Chenery, 332 U.S. at 196-97 (“[W]e must know
what a decision means before the duty becomes ours to say whether it is right or
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wrong.”); Williams v. Colvin, No. 3:15-cv-1110-BF, 2016 WL 4800441, at *3 (N.D. Tex.
Sept. 13, 2016) (holding that the Chenery doctrine required remand for clarification due
to an apparent inconsistency between the RFC finding and the ALJ’s reasons for
rejecting a particular medical opinion); Martinez v. Astrue, No. 2:10-cv-102, 2011 WL
4128837, at *7 (N.D. Tex. Sept. 9, 2011) (remanding where the ALJ’s finding that the
plaintiff had a “severe’ impairment as a result of surgical reattachment of fingers was
facially at odds with his RFC finding that included no manipulative limitations);
Bagwell v. Barnhart, 338 F. Supp. 2d 723, 735 (S.D. Tex. 2004) (holding that the court
can “scarcely perform its assigned review function” when the ALJ fails to reconcile
apparent inconsistencies in the decision that may affect the RFC finding).
Conclusion
The hearing decision is reversed and this case is remanded to the Commissioner
of Social Security for further proceedings consistent with this opinion.
SO ORDERED.
DATED: August 27, 2018
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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