Lopez v. Berryhill
Filing
22
MEMORANDUM OPINION AND ORDER. Signed by Judge Miguel A. Torres. (jg1)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
FELIX ALEX LOPEZ,
§
§
Plaintiff,
§
§
v.
NO. EP- 1 7-CV-367-MAT
§
§
NANCY A. BERRYHILL,
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§
MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision pursuant to
42 U.S.C.
§
405(g). Plaintiff Felix Alex Lopez ("Plaintiff') appeals from the decision of the
Commissioner of the Social Security Administration ("Commissioner") denying his applications
for a period of disability and disability insurance benefits ("DIB") under Title II of the Social
Security Act. (P1.'s Compl., ECF No.
1, at 1).
The parties consented to the transfer of the case to
this Court for determination and entry ofjudgment.
See
28
u.s.c. §
63 6(c); Local Court Rule cv-
72. For the reasons set forth below, the Commissioner's decision will be REVERSED and the
action REMANDED.
I.
PROCEDURAL HISTORY
Plaintiff was thirty-nine years old at the time of the decision of the Administrative Law
Judge ("AU"), dated September 16, 2016. (R. 38, 169).' His past relevant work included work for
the United States Department of Homeland Security as a Border Patrol Agent and a driving
Reference to the record of administrative proceedings is designated by (R. [page number(s)]).
1
instructor. (R. 36; Hrg. Tr. 18-1 9)2 On March 18, 2014, Plaintiff filed an application for a period
of disability and DIB, in which he alleged disability beginning on January 21, 2014, due to back
and left leg issues. (R. 169, 230). After his application was denied initially and upon
reconsideration, Plaintiff requested a hearing by an AL (R. 49-57, 58-68, 82-83).
On August 8, 2016, a hearing was conducted before the AU. (Hrg. Tr. 1). On September
16, 2016, the AU issued a written decision denying benefits at step five of the five-step evaluation
process on the basis that Plaintiff was capable of adjusting to other work that exists in significant
numbers in the national economy. (R. 36-3 8). On October 6, 2017, the Appeals Council denied
Plaintiffs request for review, thereby making the AU's decision the Commissioner's final
administrative decision. (R. 1-7).
In her written decision, the AU found that Plaintiff had the following severe impairments:
degenerative disc disease, dysfunction major joint, and obesity. (R. 29). However, the AU also
found that these impairments or combination of impairments do not meet or medically equal the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 30).
The AU determined that Plaintiff had the residual functional capacity ("RFC") to perform "less
than a full range of sedentary work as defmed in [20 C.F.R.
§
404.1567(a)]." (R. 31). The AU
assessed Plaintiffs RFC as:
able to lift, carry, push or pull up to 5 pounds frequently and 10
pounds occasionally. He is able to sit for up to 6 hours in an 8-hour
workday and stand and/or walk up to 2 hours in an 8-hour workday.
He is able to occasionally climb ramps or stairs, balance or stoop but
should never climb ladders, ropes or scaffolds, kneel, crouch or
crawl. He can frequently reach. He will require the use of a single
point cane in order to balance, stand or ambulate.
(R. 31).
2The transcript of the hearing before the AU was inadvertently omitted from the administrative record filed into the
record in this case. It was subsequently filed at ECF No. 14. Reference to the transcript of the hearing is designated
by (Hrg. Tr. [page number(s)]).
In this appeal, Plaintiff argues: (1) that his lumbar spine impairment meets the requirements
of Listing 1.04(A) of the Social Security Administration Regulations (the "Regulations") and (2)
that the AU's RFC finding is not supported by substantial evidence. (Pl.'s Br., ECF No. 20, at 6).
II.
DISCUSSION
A. STANDARD OF REVIEW
The Court's review is limited to a determination of whether the Commissioner's final
decision is supported by substantial evidence on the record as a whole, and whether the
Commissioner applied the proper legal standards. Myers
2001) (citing Greenspan
v.
v.
Apfel, 238 F.3d 617, 619 (5th Cir.
Shalala, 38 F.3d 232, 236 (5th Cir. 1994)) (internal quotation marks
omitted). Substantial evidence "is such relevant evidence as a reasonable mind might accept to
support a conclusion" and is more than a scintilla, but less than a preponderance. Ripley v. Chater,
67 F.3d 552, 555 (5th Cir. 1995) (quoting Greenspan, 38 F.3d at 236; Speliman
v.
Shalala,
1
F.3d
357, 360 (5th Cir. 1993)). A finding of"no substantial evidence" will be made only where there is
a "conspicuous absence of credible choices" or "no contrary medical evidence." Abshire v. Bowen,
848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983))
(internal quotation marks omitted).
In determining whether there is substantial evidence to support the findings of the
Commissioner, the Court may not reweigh the evidence or try the issues de novo. Newton
v.
Apfel,
209 F.3d 448, 452 (5th Cir. 2000). The Court may not substitute its own judgment "even if the
evidence preponderates against the [Commissioner's] decision." Harrell
v.
Bowen, 862 F.2d 471,
475 (5th Cir. 1988) (citation omitted). "Conflicts in evidence are for the [Commissioner] and not
the courts to resolve." Spellman,
1
F.3d at 360 (quoting Selders
Cir. 1990)) (internal quotation marks omitted).
v.
Sullivan, 914 F.2d 614, 617 (5th
If the Commissioner's findings are supported by
3
substantial evidence, "they are conclusive and must be affirmed." Id. However, "[t]he
decision must stand or fall with the reasons set forth in the
AU's decision,
AU's
as adopted by the
Appeals Council." Newton, 209 F.3d at 455.
B. THE AU
DID NOT ERR AT STEP THREE AND HER FINDING THAT PLAINTIFF'S
DEGENERATIVE
DIsc
DISEASE IMPAIRMENT DOES NOT MEET THE REQUIREMENTS OF
LISTING 1.04(A) IS SUPPORTED BY SUBSTANTIAL EVIDENCE
Plaintiff argues that his degenerative disc disease impairment meets each of the
requirements of Listing 1.04(A) of 20 C.F.R. Part 404, Subpart P, Appendix
spine. (P1.'s Br., ECF No. 20, at 7-10). Plaintiff asserts that: (1) the
1
for disorders of the
AU's finding that
his
impairment does not meet Listing 1.04(A) results from legal error because she does not explain
her finding; (2) the AU's finding is not supported by substantial evidence; and (3) "the physical
examinations were cursory and incomplete," and therefore, the AU should have ordered further
review or consultation in order to fully develop the record. Id. at 9. In response, the Commissioner
argues that Plaintiff has "failed to provide objective medical evidence showing that he met or
medically equaled all of the specific criteria Listing 1.04A requires." (Comm'r's Br., ECF No. 21,
at 4). The Commissioner further asserts that the AU did not err in finding that Plaintiff's
impairment does not meet or medically equal Listing 1.04(A) because she identified the listing and
discussed the evidence she considered later in her written decision. Id. at 6-7.
i.
The ALl Did Not Err in Her Explanation for Finding that Plaintff's Impairment
Does Not Meet the Criteria ofListing 1.04(A)
Plaintiff argues that the AU's explanation for finding that his impairment does not meet
the requirements for Listing 1.04(A) is insufficient and is, therefore, legal error. (P1's. Br., ECF
No. 20, at 9).
When determining whether a claimant is disabled under the Regulations, the AU conducts
a "five-step sequential evaluation process." 20 C.F.R.
ru
§
404.1 520(a)(4). At the third step, the AU
determines whether the claimant has an impairment "that meets or equals one of [the] listings in
appendix 1 of this subpart and meets the duration requirement.
.. ."
Id. at
§
404.1 520(a)(4)(iii).
If
so, the claimant will be found to be disabled. Id.
Listing 1.04 governs disorders of the spine, resulting in compromise of a nerve root or the
spinal cord. Id. at Part 404, Subpart P, Appendix 1, Listing 1.04. To be found disabled under this
listing, the plaintiff is required to demonstrate the criteria of Listing 1.04 as well as those of one
of three subsections. The subsection at issue in this appeal, Subsection A, requires "[e]vidence of
nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine)." Id. at Part 404, Subpart P, Appendix
1,
Listing
1.04(A).
In finding that Plaintiff's degenerative disc disease does not meet Listing 1.04(A), the AU
listed each element of Subsection A without further specificity as to why Plaintiff does not meet
this listing. (R. 31). Plaintiff argues that this explanation is insufficient, constituting a "bare
conclusion [that] is beyond meaningful judicial review," relying on the Fifth Circuit's opinion in
Audler v. Astrue. (P1's. Br., ECF No. 20, at 7 (citing Audler v. Astrue, 501 F.3d 446, 448 (5th Cir.
2007)).
In Audler, the Fifth Circuit reviewed the
AU's decision at step three where the AU "did
not identifi the listed impairment for which Audler's symptoms fail to qualify, nor did she provide
any explanation as to how she reached the conclusion that Audler's symptoms are insufficiently
severe to meet any listed impairment." Audler, 501 F.3d at 448. The Fifth Circuit found this "bare
5
conclusion
[ ]
beyond meaningful judicial review." Id. (quoting Clflon
v.
1009 (10th Cir. 1996)). The Fifth Circuit stated that, pursuant to 42 U.S.C.
Chater, 79 F.3d 1007,
§
405(b)(1):
the AU was required to discuss the evidence offered in support of
Audler' s claim for disability and to explain why she found Audler
not to be disabled at that step. Although the AU is not always
required to do an exhaustive point-by-point discussion, in this case,
the AU offered nothing to support her conclusion at this step and
because she did not, "we, as a reviewing court, simply cannot tell
whether her decision is based on substantial evidence or not."
Id. (quoting Cook
v.
Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)).
In contrast to the
AU's decision
in Audler, the AU
in the instant case specifically
identified Listing 1.04(A) and stated that Plaintiff's degenerative disc disease did not meet this
listing. (R. 31). The AU could have been more specific in explaining her decision by, for example,
referring to a particular element within that subsection that was unsupported by the medical
evidence. However, by identifying a specific listing, the AU provides more than a bare conclusion
and allows for meaningful judicial review. In her subsequent discussion of the medical evidence
supporting her RFC assessment, the AU notes findings of negative straight-leg raise tests and no
motor loss, two elements specifically required by Listing 1.04(A). (R.
3 3-34).
While not
specifically incorporating her discussion of the evidence made during her RFC assessment, it is
clear from that discussion and analysis that the AU considered and noted evidence that supports
a finding that Plaintiffs impairment does not meet Listing 1.04(A). Accordingly, the Court finds
that the AU sufficiently explained the reason for her finding that Listing 1.04(A) was not met or
equaled, and, therefore, did not err. However, even if the
AU's explanation did constitute error,
as discussed infra, such error is harmless because her decision is supported by substantial evidence.
ii.
The AU's Finding Is Supported by Substantial Evidence
Plaintiff argues that the existence of each individual requirement of Listing 1.04(A) is
supported by medical evidence in the record. (Pl.'s Br., ECF No. 20, at 8-9). The Commissioner,
in her response, claims that Plaintiff has not shown "lack
of range of motion, motor loss with
accompanying reflex or sensory loss, or difficulty ambulating.
. .
." (Comm'r's Br., ECF No. 21,
at 5). The Commissioner also asserts that treatment records reflect an absence
of positive straight-
leg raising tests and neuro-anatomic distribution of pain. Id. at 5-6.
"The term 'disability' means
[] 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). When determining whether a claimant is disabled at
the third step of the sequential evaluation process, the AU determines whether the medical
evidence meets or equals the criteria of a listed impairment in Appendix
of the Regulations and meets the duration requirement. 20 C.F.R.
§
1
to Subpart P of Part 404
404.1520(a)(4)(iii). To meet
the duration requirement, the impairment must have lasted or must be expected to last for a
continuous period of at least twelve months, unless it is expected to result in death. 20 C.F.R.
§
404.1509.
"A physical or mental impairment must be established by medical evidence consisting of
signs, symptoms, and laboratory findings, not only by your statement of symptom.
§
. .
." 20 C.F.R.
404.1508 (1991 )3 Evidence to establish an impairment must be provided by "acceptable medical
sources:" licensed physicians, licensed or certified psychologists, licensed optometrists, licensed
March 27, 2017, this regulation was removed. The AU's decision was issued prior to March 27, 2017. (R
38). Accordingly, where the previous and current regulations differ, the Court considers the regulations that were in
effect at the time of the AU's decision. See Youngv. Berryhill, 689 F. App'x 819, 821 n.3 (5th Cir. 2017).
7
podiatrists, and qualified speech-language pathologists (the latter four for establishing limited
impairments within the fields of their specialties). Id. at § 404.1513(a) (201 3)4 Other sources, such
as therapists, may provide evidence tending to show the severity
§
of an impairment. Id.
at
404.1513(d) (20l3).
The Listing of Impairments in Appendix
1
describes conditions and impairments that are
sufficiently severe to prevent an individual from engaging in any gainful activity, not just
"substantial gainful activity," regardless of age, education or work experience. 20 C.F.R.
§
404.1525(a);
Sullivan
v.
Zebley,
493 U.S. 521, 532 (1990). Thus, a claimant is automatically
entitled to benefits if his impairment meets the duration requirement and meets or equals the
criteria of one of the listed impairments. 20 C.F.R.
§
404.1520(d). Because the Listings "were
designed to operate as a presumption of disability that makes further inquiry unnecessary," the
medical criteria of the Listings are set at "a higher level of severity" than the statutory disability
standard.
Zebley,
493 U.S. at 532.
The Court has painstakingly reviewed the medical evidence that Plaintiff asserts supports
a finding that his impairment meets Listing 1.04(A) and the durational
requirement.6
As to the
footnote 3, supra.
See
footnote 3, supra.
Court notes that Plaintiff made no specific links between his record citations and specific elements of Listing
1.04(A) but rather provided a lengthy string citation to the record, without explanatory phrases to each of the numerous
record citations, at the end of a sentence that lists every requirement of Listing 1.04(A). (Pl.'s Br., ECF No. 20, at 89) (arguing in one sentence the existence of each element of Listing 1.04(A) followed by: "(Tr. 336-39, 340, 345, 347,
356, 357, 434-35, 465, 487, 489, 491, 492, 494, 496, 510, 512, 514-42, 553-54, 571, 573-75, 586-88, 591-98, 610,
611, 615, 640-41, 643, 670-71, 677-78, 681, 698, 700)"). The Court expects that any reference to the record,
particularly multiple references, will be accompanied by a discussion or reference of the specific issue each reference
is meant to support. To not do so, as in this instance, imposes an unwarranted burden on the Court in having to sift
through the cited record references in order to ascertain why the party making the reference found it pertinent. The
burden is particularly acute in cases such as Social Security appeals that involve voluminous and technical records.
This is not the first time that this Court has been presented with citations in this manner. However, the time has come
to curb the practice, and in the future, the Court will act accordingly to that end.
6
requirement of "motor loss (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss," the Court has found some indication of muscle weakness.
On May 5, 2014, there was a finding of weakness in Plaintiff's right lower extremity, but not
mention of the left lower extremity. (R. 491). There are also two letters written by Dr. Andrew
Palafox, dated February 25, 2014, and March 18, 2014, that indicate that Plaintiff has weakness in
the left leg. (R. 347, 356). However, these letters are during the same time period that Dr. Palafox's
treatment records reflect a finding of normal muscle tone and normal muscle bulk in the left lower
extremity at visits on February 24, 2014, and March 3, 2014. (R. 342, 345). Plaintiff also cites
physical therapy records from February 3, 2015, to March 2, 2015, reflecting mild to moderate
weakness in various abdominal, back, and hip muscles. (R. 514-542). However, as well as not
being provided by an acceptable medical source, a licensed physician made findings of intact gross
motor function in both lower extremities just before and after these physical therapy records on
January 29, 2015, and March 19, 2015. (R. 586, 591).
Critically, however, the Court has found a lengthy record of medical evidence provided by
licensed physicians with physical examination findings of normal muscle tone/bulk or normal
motor function.
See (R.
342, 345, 489) (normal muscle tone and bulk in lower left extremity
without reference to other extremities and no muscle atrophy and/or normal muscle strength/tone
in lumbosacral spine on February 24, 2014, March 3, 2014, and April 21, 2014); (R. 573) (motor
function within normal limits in upper extremities and within normal limits in lower extremities
except as to some sensory loss in left lower extremity recorded on October 9, 2014); (R. 586, 591,
596, 670-71) (motor function within normal limits in upper extremities and gross motor function
intact in both lower extremities recorded on January 29, 2015, March 19, 2015, April 9, 2015,
September 2, 2015); (R. 643, 701) (no muscle atrophy in lumbosacral spine, paraspinal muscle
strength and tone within normal limits on November 6, 2015, and January 27, 2016). Accordingly,
the Court finds there is substantial evidence in the record that Plaintiffs impairment has not met
the element of motor loss in Listing 1.04(A).
Furthermore, Listing 1.04(A) requires positive straight-leg raising test (sitting and supine)
if there
is involvement
of the lower back. 20 C.F.R. Part 404, Subpart P, Appendix
1,
Listing
1.04(A). The medical evidence reflects both negative and positive results of straight-leg raising
tests between February 24, 2014, and January 27, 2016, which demonstrates that this element has
not been met for the durational requirement of having lasted, or being expected to last, twelve
months. See (R. 342, 345, 489, 586, 591, 596, 671 (negative straight-leg raising tests on February
24, 2014, March 3, 2014, April 21, 2014, January 29, 2015, March 19, 2015, April 9, 2015,
September 2, 2015)); (R. 496, 573, 510, 611, 701 (positive straight-leg raising tests on June 26,
2014, October 9,2014, January 14, 2015, June 1,2015, January27, 2016)). Accordingly, Plaintiff
has not met his burden to demonstrate that he meets this element of Listing 1.04(A).
Because the record does not show that Plaintiff has experienced the elements of motor loss
or positive straight-leg raising tests as required by Listing 1.04(A) and the twelve-month duration
requirement, the Court finds that the AU's determination that Plaintiff does not meet this listing
is supported by substantial evidence.
iii.
The ALJDid Not Err by Not Ordering Review or Consultation to Further Develop
the Record
Plaintiff argues that the physical examinations were "cursory and incomplete," and,
therefore, the AU had a duty to more fully develop the record either by submitting the record to a
medical expert or by sending Plaintiff for a consultative examination. (Pl.'s Br., ECF No. 20, at
9). According to Plaintiff, if an AU does not fulfill this duty, her decision is not substantially
justified. Id. (citing Newton, 209 F.3d at 458).
10
The Court is not persuaded by Plaintiffs arguments. Plaintiffs assignment of error in this
respect is itself cursory as well as conclusory, arguing only that "on review it appears that the
physical examinations were cursory and incomplete." Id. Plaintiff makes this argument after citing
the record extensively to support his argument that the medical record reflects that he meets the
requirements of Listing 1.04(A).
See
Id.
at 8-9. Further, the case cited in support by Plaintiff
involved the AU's failure to obtain supplemental information when she "was faced with what she
deemed an incomplete medical history" and "expressed doubts about [the treating physician's]
opinions
.
.
.
but did not request additional information to eliminate those doubts before rejecting
the opinion of the treating physician."
Newton, 209
F.3d at 458. In the instant case, there is no
indication from the AU's decision, from Plaintiffs thorough citation to the record, or from
Plaintiffs general conclusion, that the medical history is incomplete nor are assessments of
medical opinions made at this step of the evaluation process. To the contrary, the medical record
spans more than two years with numerous instances of specific findings related to the elements of
Listing 1.04(A), as detailed supra. Accordingly, the Court finds that the AU did not err by not
submitting the complete medical record to a medical expert or by not sending Plaintiff for a
consultative examination to make her determination at step three.
C. THE AU ERRED IN HER CONSIDERATION OF TREATING PHYSIC]AN MEDICAL OPINIoNs AND
THE ERROR Is NOT HARMLESS
Plaintiff argues that the AU's RFC assessment is not supported by substantial evidence
because the evidence of record and the opinions of Plaintiffs treating physician, Dr. Andrew
Palafox, support an RFC finding that is "significantly more limited than the
AU's finding." (P1.'s
Br., ECF No. 20, at 10-11). Plaintiff claims that the AU erroneously disregarded Dr. Palafox's
opinion even though there was no competing first-hand medical evidence or contrary medical
opinions of other physicians who have treated or examined Plaintiff. Id. at 19. Plaintiff asserts that
11
the AU's reasoning for disregarding Dr. Palafox's opinions was not in accord with Social Security
Ruling
96-2p,7
which provides guidance on when a medical opinion is "well-supported by
medically acceptable clinical and laboratory diagnostic techniques." Id. at 20. Plaintiff also
suggests that the AU could have requested clarification or supplementation from Dr. Palafox. Id.
In response, the Commissioner claims that the RFC is an administrative assessment
supported by substantial evidence, and Plaintiff has not met his burden to show that his limitations
were greater than the
AU's
RFC assessment. (Comm'r's Br., ECF No. 21, at 7). The
Commissioner asserts that the AU was justified in her assessment of Dr. Palafox' s opinion,
particularly because his opinions on Plaintiffs manipulative limitations (i.e. reaching, handling,
fmgering, and feeling) were not explained and were contradicted by other evidence. Id. at 8.
Between steps three and four of the sequential evaluation process, the AU makes a finding
about the claimant's RFC "based on all the relevant medical and other evidence in [the] case record
." 20 C.F.R.
§
404.1520(e). The RFC is the most an individual can do in a work setting despite
his physical and mental limitations related to his impairments. Id. at
§
404.1545(a). "A limited
ability to perform certain physical demands of work activity, such as sitting, standing, walking,
lifting, carrying, pushing, pulling, or other physical functions, may reduce a claimant's ability to
do past work and other work." Id. at
§
404.1545(b).
When determining disability, the AU will consider medical opinions from acceptable
medical sources, including treating physicians, together with the rest of the relevant evidence in
the record. 20 C.F.R.
§
404.1 527(a)(b). A treating source's medical opinion on the issue(s)
of the
nature and severity of a claimant's impairment(s) will be given controlling weight if the AU finds
that it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques
7Rescinded, effective March 27, 2017, 2017 WL 3928297, but in effect at the time of the
3, supra.
12
AU's decision.
See
footnote
and is not inconsistent with the other substantial evidence in [the] case record." Id. at
§
404.1 527(c)(2). "The judgment whether a treating source's medical opinion is well-supported
and not inconsistent with the other substantial evidence in the case record requires an
understanding of the clinical signs and laboratory findings and what they signify." SSR 96-2p,
1996 WL 374188.8 Where a treating source provides opinions on several issues, "one or more
of
the opinions may be controlling while others may not." Id.
When a treating source's medical opinion is not given controlling weight, the AU applies
the factors listed in paragraphs (c)(2)(i)(ii) and (c)(3)(c)(6) of § 404.1527 in determining what
weight to give the opinions and provides "good reasons" for the weight given. 20 C.F.R.
§
404.1 527(c)(2). "[A]bsent reliable medical evidence from a treating or examining physician
controverting the claimant's treating specialist, an AU may reject the opinion of the treating
physician
only
if the AU performs a detailed analysis of the treating physician's views, under the
criteria set forth in 20 C.F.R.
§ 404.1527(d)(2)."9 Newton,
209 F.3d at 453 (emphasis in original).
These factors include, inter alia, the length, frequency, nature, and extent of the treatment
relationship, the supportability of the opinion, the consistency of the opinion with the record as a
whole, and other factors, such as the medical source's understanding of disability programs and
evidentiary requirements and the extent to which the medical source is familiar with the other
information in the claimant's case record. Id. at § 404.1527(c). Still, at the administrative law judge
level, the AU is responsible for assessing the RFC, an administrative finding that is reserved to
the Commissioner and not a medical source. 20 C.F.R.
§
404.1527(d).
Social Security rulings are not binding on the Court, "but they may be consulted when the statute at issue provides
little guidance." Myers, 238 F.3d at 620. See also, Newton, 209 F.3d at 458 (relying on SSR 96-2p).
8
criteria that the Fifth Circuit references at subsection (d)(2) in Newton are currently located at subsection (c)(2)
of 404.1527. Compare 20 C.F.R. § 404.1527 (effective to July 31, 2006) with 20 C.F.R. § 404.1527 (effective Aug.
24, 2012 to Mar. 26, 2017) and 20 C.F.R. § 404.1527 (effective Mar. 27, 2017).
13
Here, the AU considered opinions on Plaintiff's physical limitations from two physicians,
Dr. Palafox and Dr. Shabnam Rehman, a non-examining State Agency medical consultant. (R. 35).
Therefore, the only medical opinion by a treating or examining physician on Plaintiff's physical
limitations considered by the AU was that of Dr. Palafox.
Dr. Palafox submitted a medical source statement on a standard form in which he opined
on Plaintiff's exertional, postural, manipulative, visuallcommunicative, and environmental
limitations. (R. 498-501). As to exertional limitations, Dr. Palafox opined that Plaintiff was limited
to occasionally lifting ten pounds; frequently lifting ten pounds; standing and/or walking less than
two hours in an eight-hour workday; and sitting less than six hours in an eight-hour workday. (R.
498-99). Dr. Palafox also opined that Plaintiff had limitations pushing and/or pulling in both the
upper and lower extremities. (R. 499). Dr. Palafox stated that these limitations were due to
Plaintiff's "failed surgical back syndrome[,] herniated disc[, and] lumbar radiculopathy." Id.
Dr. Palafox also opined that Plaintiff had postural limitations of balancing occasionally and
never climbing (ramps, stairs, ladder, rope, or scaffold), kneeling, crouching, crawling, or
stooping. Id. However, Dr. Palafox did not explain his reasons for these opinions. Id. As for
manipulative limitations, Dr. Palafox opined that Plaintiff was limited to occasionally reaching,
handling, and fingering. (R. 500). Dr. Palafox also opined, contradictorily, both that Plaintiff had
no limitations in feeling but also that Plaintiff could only occasionally feel. Id. Again, Dr. Palafox
did not provide an explanation for these limitations. Id. Dr. Palafox opined that Plaintiff had no
visual or communicative limitations. Id. However, without supporting reasons, Dr. Palafox opined
that Plaintiff had environmental limitations for temperature extremes, noise, dust, vibration,
humidity/wetness, hazards, and fumes, odors, chemicals, and gases. (R. 501).
14
The AU gave Dr. Palafox's opinions partial weight because "[h]is limitations are not
explained or clarified.
.
.
and are contrary to other medical evidence and his own medical records."
(R. 35). Specifically, as examples, the AU stated that Dr. Palafox did not explain or clarify
"how
long [Plaintiff] can stand/walk; [his] postural limitations; [and his] manipulative limitations." Id.
The AU noted the contradiction of Dr. Palafox's two opinions on Plaintiffs manipulative
limitation relating to feeling. Id. The AU also stated that Dr. Palafox "did not explain why all
postural but balance would be 'never' or why all environmental limitations would be 'limited' or
the degree of the limitation." Id.
The AU stated that she included in the RFC the limitations that Dr. Palafox opined where
his opinions and the treatment records are consistent. Id. As an example, the AU stated that she
did not include the manipulative limitations that Plaintiff could only occasionally handle or finger
because "there is nothing in the medical evidence" to support those limitations. Id. In her RFC
assessment, the AU did not include the opinions of Dr. Palafox that Plaintiff was limited to: (1)
standing/walking less than two hours in an eight-hour workday; (2) sitting less than about six hours
in an eight-hour workday; (3) never climbing ramps or stairs and never stooping; (4) occasionally
reaching, handling, fingering, or feeling; and (5) working with the environmental limitations
indicated. See (R. 31). It is, thus, clear that the AU did not give Dr. Palafox's opinions controlling
weight and, in fact, rejected some of his opinions.
The AU, however, did not perform "a detailed analysis
applying the factors set forth in 20 C.F.R.
§
of the treating physician's views"
404.1 527(c)(2), as required when there is no "reliable
medical evidence from a treating or examining physician" controverting those opinions.
Newton,
209 F.3d at 453. The AU did not specifically identify any such controverting evidence in her
written decision, and this Court has not found any obviously controverting evidence. Accordingly,
15
the Court finds that the AU erred by rejecting some of Dr. Palafox's opinions without performing
the detailed analysis required by2O C.F.R.
§
404.1527(c)(2).
Remand, however, is not required unless Plaintiff can show prejudice from this error.
Newton,
209 F.3d at 458. Plaintiffs assignment of error appears to focus solely on the exclusion
of the exertional and postural limitations: standing/walking less than two hours in an eight-hour
workday, sitting less than six hours in an eight-hour workday, never climbing ramps or stairs, and
never stooping. See (Pl.'s Br., ECF No. 20, at 21) (referencing vocational expert's testimony that
an individual would not be able to perform any work in the national economy if these limitations
were added to the RFC). Accordingly, the Court focuses on these limitations.
Based on the
AU's written reasoning, the Court infers that the
AU determined that the
treatment records do not support a finding that Plaintiff is limited to standing/walking less than
two hours, and sitting less than about six hours, in an eight-hour workday and that Plaintiff can
never climb ramps or stairs and can never stoop. Both Plaintiff, in his brief, and the AU, in her
written decision, extensively cite medical evidence provided by four physicians and spanning three
years, demonstrating Plaintiff's several back procedures, back scans, and diagnoses, including
lumbar spinal stenosis, lumbar radiculopathy, bulging discs, and chronic pain syndrome. (P1.'s'
Br., ECF No. 20, at 10-19; R. 32-34). Moreover, the medical evidence reflects consistent findings
of a limited range of motion in Plaintiffs back.
See
(R. 336, 337, 338, 339, 345, 489, 494, 496,
510, 586, 591, 596, 610, 611, 615, 670);but see (R. 643, 701).TheCourthasnotfoundanyobvious
differences of diagnoses or grossly variant findings on physical examination by Plaintiffs treating
physicians. 10
'° The Court also finds it curious, without
explanation by the AU, that the RFC includes a limitation that Plaintiff
requires the use of a single point cane in order to balance, stand or ambulate but that he can occasionally climb stairs
and stoop. See (R. 31).
16
Accordingly, had the AU performed a detailed analysis under 20 C.F.R.
§
404.1 527(c)(2)
or requested clarification from Dr. Palafox, the Court finds it possible she would have afforded
more weight to Dr. Palafox's opinions, which may have resulted in a more limited RFC.
Furthermore, in finding Plaintiff not disabled at step five, the AU relied on the vocational expert's
testimony that jobs exist in the national economy that could be performed by an individual with
Plaintiff's age, education, work experience, and RFC. (R. 37). Accordingly, if the RFC were more
limited, then the
AU's disability determination would not be based on substantial evidence.
Therefore, such error is not harmless, and this action must be remanded for further administrative
proceedings.
The Court also notes that the AU found that Dr. Palafox failed to explain or clarify his
opinions. (R. 35). On remand, the Court urges the Commissioner to seek clarification from Dr.
Palafox regarding his opinions or to consult a medical expert to help clarify the limitations
indicated by the medical evidence, if she believes it would assist in the consideration of Plaintiff's
claims.
III.
CONCLUSION
IT IS ORDERED that the decision of the Commissioner will be REVERSED and the
action REMANDED pursuant to the fourth sentence of 42 U.S.C.
§
405(g) for further
administrative proceedings.
SIGNED and ENTERED this
9ff*
.
day of March, 2019.
MIGUEL . TORRES
UNITED STATES MAGISTRATE JUDGE
17
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