Prisbrey v. Colvin
Filing
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MEMORANDUM DECISION and ORDER. Signed by Magistrate Judge Dustin B. Pead on 12/09/2014. (tls)
UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
CLARE EUGENE PRISBREY,
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
Case No. 2:13-CV-01024-DBP
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Magistrate Judge Dustin B. Pead
Defendant.
This matter came before the Court under 28 U.S.C. 636(c). (Dkt. No. 10.) Plaintiff, Clare
Eugene Prisbrey, (“Mr. Prisbrey”) appeals the Commissioner of Social Security’s decision
denying his claim for Disability Insurance Benefits under Title II of the Social Security Act (the
Act), 42 U.S.C.§§ 401–433. (Dkt. No. 2). Having considered the parties’ briefs, the
administrative record, the arguments of counsel, and the relevant law, the Court REVERSES
and REMANDS the Commissioner’s decision for further consideration.
BACKGROUND
Mr. Prisbrey filed an application for Disability and Disability Insurance Benefits (“DIB”)
on June 13, 2006. (Tr. 81–86). His claim was initially denied on June 11, 2007 (Id. at 48), and
upon reconsideration on March 31, 2007. (Id. at 49). Mr. Prisbrey timely requested a hearing
before an Administrative Law Judge (“ALJ”) on June 14, 2007. (Id. at 59).
Administrative Law Judge, Michael B. Kennett presided over a hearing on July 30, 2008,
in St. George, Utah. (Id. at 26–47). The ALJ issued a decision finding Mr. Prisbrey not disabled
on November 7, 2008. (Id. at 11–25). The Appeals Council denied Mr. Prisbrey’s request for
review on November 15, 2010. (Id. at 1–5). This Appeals Council denial constituted the Social
Security Commissioner’s final administrative decision in this case. Mr. Prisbrey commenced a
civil action by filing a complaint in the United States District Court for the District of Utah.
In an order dated September 16, 2011, and a judgment issued September 19, 2011, the
Utah District Court remanded the case to the Commissioner based on the Defendant’s
Unopposed Motion to Remand. (Tr. 666–68). In an order dated March 18, 2013, the Appeals
Council remanded the case to the Administrative Law Judge. (Id. at 676–79). Thereafter, a
remand hearing was held on August 16, 2013, in St. George, Utah before Administrative Law
Judge Norman L. Bennett. (Id. at 599–645). Judge Bennett issued his decision on October 3,
2013, again finding Mr. Prisbrey not disabled. (Id. at 573–98). On November 14, 2013, Mr.
Prisbrey brought this action to appeal the Commissioner’s decision pursuant to 24 U.S.C. §
405(g), which provides for judicial review of the defendant’s final decision.
A. Factual History
Mr. Prisbrey injured both knees in an automobile accident in 1989. (Id. at 168). Surgery
was performed on both knees. (Id. at 168). Testing performed in 1991 showed that he had
bilateral osteochondritis dissecans in his knees. (Id. at 344). Another injury in 1992 reinjured
his right knee. (Id. at 168). At that time, doctors opined that he could not return to work until
another surgery was performed in August 1992. (Id. at 170, 189). Another surgery was
performed in May 1993. (Id. at 191). An arthroscopic debridement of the right knee was
performed in December 1993. (Id. at 193). At this time, a residual functional capacity (RFC)
assessment filled out by his treating physician opined that Mr. Prisbrey could stand/walk for no
more than two hours of an eight hour workday and could lift no more than ten pounds
occasionally. (Id. at 196). He also opined that Mr. Prisbrey could not return to his previous
work. (Id. at 197).
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In June 2003, Mr. Prisbrey injured his left knee. (Tr. 227). He underwent a left knee
arthroscopy in July 2003. (Id. at 219). In January 2004, he underwent a total knee arthroplasty
on the left knee. (Id. at 231). He was diagnosed with osteoarthritic change in both knees. (Id. at
236). Imaging showed that Mr. Prisbrey had “virtually no cartilage” in the lateral joint line of
his left knee. (Id. at 239). At this point, Mr. Prisbrey had undergone six surgeries on his right
knee and two surgeries on his left knee. (Id. at 237). Imaging studies in October 2005 showed
that both Mr. Prisbrey’s right and left knees had no articular cartilage space and bone-on-bone
eburnation. (Id. at 243). Dr. David Moore opined that this left him “unhireable for any work
that involved walking or standing for more than a few steps.” (Id. at 243).
In April 2007, he underwent a second left knee arthroplasty. (Id. at 481). Following this
surgery, Mr. Prisbrey began experiencing stabbing pain, bruising, and tightness in his leg. (Id. at
486). In 2009, after hiking he said his right knee had been painful with clicking, catching, and
locking. (Id. at 539). His physician discussed treatment options, including anti-inflammatory
medications, surgical treatment, and activity modification. (Id. at 540).
Mr. Prisbrey also suffers from back pain. Mr. Prisbrey showed decreased range of
motion in his spine, tenderness to palpitation, discomfort moving from sitting to standing, and
antalgic gait. (Id. at 472, 477). In addition to his musculoskeletal issues, Mr. Prisbrey has
numerous other impairments, including gray outs, cardiac issues, rib separation, shoulder issues,
neuropathy, and mental issues. (Id. at 199, 200, 211, 427, 558, 624, 800, 836, 886).
With regard to medical opinions in the record, in December 2006, Mr. Prisbrey
underwent a consultative exam with Dr. Courtney Empey who opined that Mr. Prisbrey was
limited in his ability to walk, stand , lift, carry, bend, stoop, and squat. (Tr. 280).
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In 2007, Mr. Prisbrey was examined by Dr. Bradley Root. (Tr. 301). Dr. Root noted that
Mr. Prisbrey had mild decreased grip strength and sensation in his left hand. (Id. at 304). He
also noted reduced range of motion in Mr. Prisbrey’s cervical and lumbar spine. (Id. at 305).
MRIs of Mr. Prisbrey’s spine from March 2007 showed narrowing in the mid and lower thoracic
spine with a disc bulge at T11-T12. (Id. at 323). His cervical spine also showed disc space
narrowing with disc bulges at the C4-C5, C5-C6, and C6-C7 levels. (Id. at 324). Mr. Prisbrey
showed mild degenerative disc disease in his lumbar spine. (Id. at 334). An MRI of his sternum
showed bone marrow edema. (Id. at 336). A bone image of Mr. Prisbrey’s body showed
increased activity in this area which correlated with the MRI findings of Mr. Prisbrey’s sternum.
(Id. at 339).
In March 2007, Mr. Prisbrey’s treating physician, Dr. McKay Christian (”Dr.
Christian”), noted that Mr. Prisbrey could not sit or stand for more than five to ten minutes at a
time. (Id. at 333). In July 2008, Dr. Christian opined that Mr. Prisbrey’s pain would constantly
interfere with his ability to work and his stress would frequently interfere with his ability to
work. (Id. at 535). He opined that Mr. Prisbrey could not walk one city block, could not walk
on uneven ground, could not climb steps, would have problems with balance when ambulating,
and would need to lie down or recline up to four hours of an eight hour workday. (Id. at 536).
Dr. Christian stated Mr. Prisbrey could sit no more than one hour and stand/walk for no more
than one hour of an eight hour workday. (Id. at 536). He opined that Mr. Prisbrey would need to
use an assistive device to stand or walk and could lift no more than five pounds. (Id. at 537).
Finally Dr. Christian stated that Mr. Prisbrey would be off task more than thirty percent of the
workday due to his impairments and would miss more than six days of work each month. (Id. at
538). Dr. Christian opined that Mr. Prisbrey could not return to competitive employment. (Id.).
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On July 9, 2013, Dr. Christian provided another RFC assessment confirming that Mr.
Prisbrey would be off-task more than thirty percent of the workday due to his impairments and
would miss five or more days of work each month. (Tr. 830).
A mental health evaluation performed by Dr. Durham showed that Mr. Prisbrey was
mildly impaired in his ability to interact appropriately with others and respond to changes in a
routine work setting. (Id. at 554). A second mental evaluation from Dr. Ottesen provided that
Mr. Prisbrey’s inability to properly interact with others would preclude his performance for
fifteen percent or more of the workday. (Id. at 571–72).
B. Hearing Testimony
Mr. Prisbrey testified that both knees had been surgically replaced. (Id. at 612).
However, his right knee was already wearing down to the point that a grinding sound can be
heard when he moves it, a sound noted at the hearing. (Id. at 611). He has difficulty walking on
hills or inclines and must alternate legs when standing. (Id. at 612, 613). He has pain in his back
that causes his left foot to feel numb. (Id. at 614–15). He testified he has difficulty grasping
with his hands and has numbness in his hands. (Id. at 616–17). Mr. Prisbrey has been diagnosed
with a separated sternum. (Id. at 618). He has pain in both of his shoulders and experiences
daily headaches. (Id. at 620). Mr. Prisbrey testified he has a mood disorder that causes anger,
frustration, moodiness, and suicidal thoughts. (Id. at 624–25).
C. ALJ Opinion
In his decision, the ALJ found that Mr. Prisbrey suffered from the severe impairments of
osteoarthritis of both knees status post multiple surgeries, degenerative disc disease of the lumbar
spine, history of seizure disorder, degenerative disc disease of the cervical spine, degenerative
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disc disease of the thoracic spine, and obesity. (Tr. 579). At step three he found that Mr.
Prisbrey did not meet a listing. (Id. at 581).
The ALJ found that Mr. Prisbrey can perform sedentary work with lifting and carrying
five pounds frequently and ten pounds occasionally, standing and/or walking two hours and
sitting six hours in an eight hour workday. In addition, due to pain he was limited to simple
repetitive tasks and, due to his seizure disorder he could not work at heights or around dangerous
moving machinery. (Id. at 582). With this RFC assessment, the ALJ found Mr. Prisbrey could
not perform his past relevant work, but that there were other jobs available in the national
economy that Mr. Prisbrey could perform. (Id. at 587–588). Therefore, the ALJ found that Mr.
Prisbrey was not disabled. (Id. at 589).
STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is limited to determining whether her
findings are supported by “substantial evidence and whether the correct legal standards were
applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
(quotation omitted). The Court may neither reweigh the evidence, nor substitute its judgment for
the Commissioner’s. Id.
In its review, the Court should evaluate the record as a whole, including that evidence
before the ALJ that detracts from the weight of the ALJ’s decision. Shepherd v. Apfel, 184 F.3d
1196, 1199 (10th Cir. 1999). However, the reviewing Court should not re-weigh the evidence or
substitute its own judgment for that of the ALJ. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.
2000). Further, the Court “may not ‘displace the agenc[y]’s choice between two fairly
conflicting views, even though the Court would justifiably have made a different choice had the
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matter been before it de novo.’” Lax, 489 F.3d at 1084. Lastly,”[t]he failure to apply the correct
legal standard or to provide this Court with a sufficient basis to determine that appropriate legal
principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165
(10th Cir. 2005).
In applying these standards, the Court has considered the Administrative Record, relevant
legal authority, and the parties’ briefs and oral arguments. The Court finds as follows:
ANALYSIS
Plaintiff raises three issues on appeal: first, whether the ALJ erred by failing to follow the
instructions of the Appeals Council on remand; second, whether the ALJ erred by failing to
properly evaluate the medical opinions of record; and third, whether the ALJ erred by failing to
properly evaluate Mr. Prisbrey’s credibility. For reasons set forth below, the Court finds that the
ALJ erred in evaluating the opinions of treating physician Dr. Christian as directed by the
Appeals Council. 1 Therefore, the Court will not reach the merits of Mr. Prisbrey’s credibility.
On appeal, Mr. Prisbrey challenged the ALJ’s findings as to the medical opinions in the
record. The Appeals Council remand order dated March 18, 2013 specifically stated that upon
remand the ALJ was to “[g]ive further consideration to the treating and examining source
opinions pursuant to the provisions of 20 CFR 404.1527 and Social Security Rulings 96-2p and
96-5p, and explain the weight given to such opinion evidence.” (Tr. 678). The Commissioner
argued that the ALJ did follow the orders given by the Appeals Council on remand and
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The Court finds that that the Appeals Council’s order directed the ALJ to comply with the
applicable Agency policy. The failure to comply with Agency policy provides a sufficient basis
for the Court’s decision to remand the matter to the Commissioner. In other words, the Court
finds error, independent of the Appeals Council’s order. Consequently, the Court does not need
to address Mr. Prisbrey’s allegation that the failure to comply with the Appeals Council’s order
is reversible error standing alone.
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specifically, that the ALJ found that Dr. Christian’s opinions were based solely on subjective
evidence. (Dkt. No. 18 at 10).
In this case, Dr. Christian, Mr. Prisbrey’s treating physician, provided several opinions.
In March 2007, Dr. Christian, noted that Mr. Prisbrey had multiple medical problems and could
not sit or stand for more than five to ten minutes at a time. (Tr. 333). In July 2008, Dr. Christian
opined that Mr. Prisbrey’s pain would constantly interfere with his ability to work and his stress
would frequently interfere with his ability to work. (Id. at 535). He opined that Mr. Prisbrey
could not walk one city block, could not walk on uneven ground, could not climb steps, would
have problems with balance when ambulating, and would need to lie down or recline up to four
hours of an eight hour workday. (Id. at 536). Dr. Christian stated Mr. Prisbrey could sit no more
than one hour and stand/walk for no more than one hour of an eight hour workday. (Id.). He
opined that Mr. Prisbrey would need to use an assistive device to stand or walk and could lift no
more than five pounds. (Id. at 537).
On July 9, 2013, Dr. Christian provided another RFC assessment confirming that Mr.
Prisbrey would be off-task more than thirty percent of the workday due to his impairments and
would miss five or more days of work each month. (Id. at 830). Either of these opinions if
accepted would direct a finding of disabled; however, the ALJ rejected these opinions:
Dr. Christian’s reports were based entirely on the claimant’s subjective
complaints and were grossly inconsistent with the totality of the evidence. There
was no objective evidence elicited during any of Dr. Christian’s examinations or
in the medical evidence that supported a finding that the claimant had such
extreme limitations in sitting, standing, and/or walking. This suggested patient
advocacy and discredited Dr. Christian’s opinions.
(Tr. 586).
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The Court finds that the ALJ’s findings were not accompanied by any citations to the
record that support the ALJ’s decision despite clear direction from the Appeals Council that the
ALJ must explain the weight afforded to treating and examining source opinions, and that all
medical opinions were to be evaluated pursuant to 20 CFR § 404.1527 and Social Security
Rulings 96-2p and 96-5p. (Tr. 678). The ALJ’s decision “must contain specific reasons for the
weight given to the treating source’s medical opinion, supported by the evidence in the case
record, and must be sufficiently specific to make clear to any subsequent reviewers the weight
the adjudicator gave to the treating source’s medical opinion and the reasons for that weight.”
SSR 96-2p. This Court finds that the ALJ failed to provide clear reasons for the weight accorded
to Dr. Christian’s opinions. Furthermore, there is no explanation of why he feels Dr. Christian’s
opinions are nothing more than “patient advocacy.” When choosing “to reject the treating
physician’s assessment, an ALJ may not make speculative inferences from medical reports and
may reject a treating physician’s opinion outright only on the basis of contradictory medical
evidence and not due to his or her own credibility judgments, speculation or lay opinion.”
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004).
Therefore, in this case, the ALJ committed legal error by failing to comply with the
Appeals Council remand order by not evaluating Dr. Christian’s opinions in accordance with the
requirements of the Agency rulings and regulations. Furthermore, the ALJ did not cite to
specific evidence supporting his assertion that Dr. Christian’s reports were “grossly inconsistent
with the totality of the evidence.” Accordingly, he was not sufficiently specific to make clear to
this Court the reasons for the weight afforded to those opinions.
For these reasons, this case must be reversed and remanded for a proper evaluation of Dr.
Christian’s opinions. On remand, the ALJ must expressly state the weight that is being given to
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the medical opinions of record, particularly that of the treating physicians. The analysis of
medical opinion evidence must clearly reflect that the ALJ has considered the factors outlined in
20 CFR § 404.1527 and Social Security Rulings 96-2p and 96-5p as previously directed in the
remand order.
Although the Court is reluctant to dictate to the ALJ the manner in which he or she must
draft a decision, the Court notes that this is the second time the Court has remanded this matter
for proper evaluation of the treating physician opinions. The Court suggests that the ALJ strive
to make his or her evaluation of those opinions explicit by including citations to the applicable
regulations and rulings, and citations to specific pages of the transcript the support the ALJ’s
reasoning. For each opinion regarding the effect that Mr. Prisbrey’s limitations have upon his
ability to work, the ALJ should consider explicitly stating whether the opinion is to be accorded
controlling weight (as provided in 20 C.F.R. §404.1527(c)(2)), and if not, explain his or her
reasoning. In addition, if the opinion is not accorded controlling weight, the ALJ should
consider explicitly stating the weight to which each of these opinions is entitled, explaining
which sections of 20 C.F.R. §404.1527(c)(2)–(6) he or she applied in determining the weight to
accord the opinion, and citing to specific portions of the record supporting his or her rationale.
The Court does not express any opinion as to whether Mr. Prisbrey is or is not disabled.
That is a decision left to the Commissioner as the finder of fact.
CONCLUSION AND ORDER
For the reasons set forth above, the Court REVERSES and REMANDS this case to the
Commissioner. On remand, the Commissioner will re-evaluate the opinions of treating
physician, Dr. Christian, as outlined by 20 CFR 404.1527 and Social Security Rulings 96-2p and
96-5p. The Court expresses no opinion about whether the ALJ’s findings at any step of the
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evaluation process will change. Nonetheless, on remand, the ALJ should address the
aforementioned errors and thoroughly re-evaluate the evidence as instructed above.
DATED this 9th of December, 2014.
__________________________________
Dustin B. Pead
United States Magistrate Judge
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