Preckajlo v. Astrue

Filing 26

MEMORANDUM OPINION. Signed by District Judge Glen E. Conrad on 12/21/2012. (ssm)

CLERK'S OFFICE U.S. DIST. COURT

AT R.OANOKE. VA

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
ALETA JO PRECKAJLO,
Plaintiff,

v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.

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DEC 2 1 2012
JULlA.~D
DLEY~K

BY:

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t:

Civil Action No. 7:12CV00173

MEMORANDUM OPINION

By:

Hon. Glen E. Conrad
Chief United States District Judge

Plaintiff has filed this action challenging the final decision of the Commissioner of Social
Security denying plaintiiTs claim for disabled widow's insurance benefits under Title II ofthe Social
Security Act, 42 U.S.C. § 402(e). Jurisdiction of this court is pursuant to 42 U.S.c. § 405(g). As
reflected by the memoranda and argument submitted by the parties, the issues before this court are
whether the Commissioner's final decision is supported by substantial evidence, and if it is not,
whether plaintiffhas met the burden ofproof as prescribed by and pursuant to the Act in establishing
entitlement to benefits. Stated briefly, substantial evidence has been defined as such relevant
evidence, considering the record as a whole, as might be found adequate to support a conclusion by
a reasonable mind. Richardson v. Perales, 402 U.S. 389,400 (1971).
The plaintiff, Aleta Jo Preckajlo, was born on November 20, 1956, and eventually reached
the twelfth grade in school. Plaintiff has worked as a vehicle flagger and escort vehicle driver. She
last worked on a regular basis in 2003. On March 24,2008, Mrs. Preckajlo filed an application for
disabled widow's insurance benefits. She alleged that she became disabled for all forms of
substantial gainful employment on May 1, 2003 due to problems in her back, neck, and legs; high
blood pressure, and restless leg syndrome. Plaintiff now maintains that she has remained disabled
to the present time. The record reveals that, in order to qualifY for disabled widow's insurance

benefits, Mrs. Preckajlo must establish that she became disabled at some point between her alleged
disability onset date and May 31, 2012, the end of the seventh year following the month in which
her husband died. See 42 U.S.C. § 402(e)(4); 20 C.F.R. § 404.335(c).
Mrs. Preckajlo's claim was denied upon initial consideration and reconsideration. She then
requested and received a de novo hearing and review before an Administrative Law Judge. In an
opinion dated April 28, 20 I 0, the Law Judge also determined that plaintiff is not disabled. The Law
Judge found that Mrs. Preckajlo experiences severe impairments on the bases of degenerative disc
disease of the lumbosacral and cervical spine; facet joint arthrosis from L2-S I; chronic ischemic
heart disease; aortic aneurysm; and chronic obstructive pulmonary disease. Because of these
impairments, the Law Judge ruled that plaintiff is disabled for her past relevant work roles.
However, the Law Judge determined that Mrs. Preckajlo retains sufficient functional capacity to
perform a limited range of light work activity. The Law Judge assessed plaintiff's residual
functional capacity as follows:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform a limited range oflight work as defined in 20
CFR 404. I 567(b ). Specifically, the claimant can sit, stand, or walk for two hours
at a time without interruption; can sit for six hours in an eight-hour work day; can
stand and walk for three hours each (for a combined total of six hours) in an eight­
hour workday; can never reach overhead; can occasionally reach elsewhere, handle,
fmger, feel, and push/pull; can frequently operate foot controls; can occasionally
climb stairs and ramps, balance, stoop, kneel, and crouch; can never crawl or climb
ladders or scaffolds; can never be exposed to unprotected heights, dust, odors, fumes,
and pulmonary irritants; can occasionally be exposed to moving mechanical parts,
operating a motor vehicle, vibrations, humidity and wetness, and extreme cold and!or
heat; can tolerate moderate noise; and will be off-task up to 10 times per hour for
eight to 10 seconds each time.
(TR 17). Given such a residual functional capacity, and after considering plaintiff's age, education,
and prior work experience, as well as testimony from a vocational expert, the Law Judge determined
that Mrs. Preckaj 10 retained sufficient functional capacity to perform several specific light work roles
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existing in significant number in the national economy at all relevant times. Accordingly, the Law
Judge ultimately concluded that Mrs. Preckajlo was not disabled, and that she is not entitled to
disabled widow's insurance benefits. See gen., 20 C.F.R. § 404.1 520(g). The Law Judge's opinion
was adopted as the final decision of the Commissioner by the Social Security Administration's
Appeals Council. Having exhausted all available administrative remedies, Mrs. Preckajlo has now
appealed to this court.
While plaintiff may be disabled for certain forms of employment, the crucial factual
determination is whether plaintiff was disabled for all forms ofsubstantial gainful employment. See
42 U.S.C. § 423(d)(2). There are four elements of proof which must be considered in making such
an analysis. These elements are summarized as follows: (1) objective medical facts and clinical
findings; (2) the opinions and conclusions oftreating physicians; (3) subjective evidence ofphysical
manifestations of impairments, as described through a claimant's testimony; and (4) the claimant's
education, vocational history, residual skills, and age. Vitek v. Finch, 438 F.2d 1157, 1159-60 (4th
Cir. 1971); Underwood v. Ribicoff, 298 F.2d 850,851 (4th Cir. 1962).
After a review of the record in this case, the court is unable to conclude that the
Commissioner's final decision is supported by substantial evidence. As noted by the Administrative
Law Judge, Mrs. Preckajlo suffers from a variety of physical difficulties. However, it is clear that
her musculoskeletal problems, including degenerative disc disease ofthe lumbosacral and cervical
spine and facet joint arthrosis, carry the most significant work-related implications. Plaintiffs
treating physician, Dr. James M. Lovelace, who is a board certified orthopaedic surgeon, has
submitted a number ofreports which indicate that Mrs. Preckajlo is severely impaired. On October
19, 2009, Dr. Lovelace completed a medical assessment of plaintiffs physical ability for work­

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related activities. (TR 434-36). As confirmed by the vocational expert at the administrative hearing,
Dr. Lovelace's findings as to plaintiff's residual functional capacity indicate that she is limited to
sedentary levels ofwork. (TR 41-42). Considering Dr. Lovelace's assessment, the vocational expert
opined that Mrs. Preckajlo is totally disabled. l (TR 43). The Administrative Law Judge determined
not to credit Dr. Lovelace's fmdings, and relied instead on a medical source statement of physical
ability to do work-related activities completed by Dr. Ward W. Stevens, a board certified
neurosurgeon. It is undisputed that Dr. Stevens has neither treated nor examined Mrs. Preckajlo.
The vocational expert interpreted Dr. Stevens' findings as indicative ofresidual functional capacity
for a limited range of light exertion. (TR 43-44). When asked to consider the work-related
limitations identified by Dr. Stevens, the vocational expert opined that plaintiff could be expected
to perform several specific light work roles. (TR 58-59). Relying on the report from Dr. Stevens,
as interpreted by the vocational expert, the Administrative Law Judge ultimately concluded that Mrs.
Preckajlo is not disabled. However, the court believes that the Administrative Law Judge's
assessment is inconsistent with the administrative regulations, the applicable caselaw, and the
specific facts of plaintiffs case.
The medical record reveals that Dr. Lovelace has treated Mrs. Preckajlo at least since
December of2003. (TR 263). The record documents multiple clinical examinations. In the course
ofhis treatment, Dr. Lovelace has ordered and considered x -ray studies. Over the years, his working
diagnosis has progressed from mild degenerative change to lumbar disc disease and cervical disc
disease by radiographic reports. (TR 435). Based on the objective studies and his own clinical

I The court notes that, assuming a residual functional capacity for no more than sedentary exertion, the
medical vocational guidelines also direct a determination of disabled in plaintiffsease. See Rules 201.12
and 201.14 of Appendix 2 to Subpart P of the Administrative Regulations Part 404.

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examination and observation, Dr. Lovelace opined in his medical assessment of October 19, 2009
that Mrs. Preckajlo is limited to sedentary exertion, though with some standing and walking, and that
she may miss work "about three times a month" because of her symptomatology. (TR 434-36).
In contrast, Dr. Stevens has not treated Mrs. Preckajlo. There is no indication that Dr.
Stevens has seen plaintiff on any occasion. His consideration of plaintiff s case was based on a
review of the medical records. Dr. Stevens did not offer any narrative evaluation or description of
plaintiffs condition. Instead, his input was limited to checking boxes on an assessment form
provided by the Social Security Administration. While Dr. Stevens opined that plaintiff does not
suffer from any impairments which meet or equal a listed impairment under Appendix 1 to Subpart
P of the Administrative Regulations Part 404, he did not suggest in his assessment that Mrs.
Preckajlo can actually perform a light job on a regular and sustained basis. 2
It is well settled that, while not controlling or binding upon the Commissioner, the reports

and opinions from treating physicians should be accorded greater weight in a disability evaluation
than those of non-examining physicians, unless the treating physician's reports are bereft of any
additional supporting evidence. Hunter v. Sullivan, 993 F.2d 31,35 (4th Cir. 1992); Campbell v.
Bowen, 800 F.2d 1247, 1250 (4th Cir. 1986). This same principle is embodied in the governing
administrative regulations. Under 20 C.F.R. § 404.1527(d)(1), it is explicitly provided that,
generally, more weight will be given to the opinion of a medical source who has actually examined
the claimant. Moreover, 20 C.F.R. § 404. 1527(d)(2) directs that, generally, more weight is given
to the opinions from treating sources, since such professionals are more likely to provide a detailed,

2 In fairness, Dr. Stevens did suggest that plaintiff could perform a variety of activities on a regular and
sustained basis. As noted above, it was the vocational expert who opined that, given such capacity, plaintiff
could engage in several specific light work roles.

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longitudinal picture ofthe claimant's medical impainnents and limitations. Finally, under 20 C.F.R.

§ 404.1527 (d)(5), it is noted that more weight is accorded to the opinion ofa specialist about medical
issues related to the area of speciality.
In the instant case, it is clear that Dr. Lovelace qualifies as a treating physician. Dr. Lovelace
has seen and examined Mrs. Preckajlo on numerous occasions, and he has ordered objective studies
to assist in the diagnosis of her condition. Indeed, Dr. Lovelace arranged for several of the
roentgenographic studies which Dr. Stevens considered in his evaluation. In such circumstances,
the court does not believe that the Law Judge's reliance on the report from non-examining medical
sources can be deemed to be supported by substantial evidence.
In his opinion, the Administrative Law Judge addressed the conflicts in the medical record
as follows:
I have considered the assessments discussed above. Unlike the other opinion­
providing doctors, Dr. Lovelace did not have the benefit of reviewing the other
medical reports contained in the record. Additionally, the course oftreatment pursued
by Dr. Lovelace (pain medication and recommendations for a walking program) has
not been consistent with what one would expect ifthe claimant were truly disabled.
Further, the doctor's own treatment notes fail to reveal the type ofsignificant clinical
and laboratory abnonnalities one would expect ifthe claimant were in fact disabled,
and the doctor did not specifically address this weakness. Because of these factors,
I accord Dr. Lovelace's opinion little weight.
(TR 23). The court finds that many ofthe Law Judge's observations and conclusions simply are not
supported by the evidence of record. Other than for the reports ofthe non-examining physicians, it
appears to the court that Dr. Lovelace did have access to almost all of the medical evidence
developed in conjunction with the diagnosis and treatment of Mrs. Preckajlo's musculoskeletal
disorders. Indeed, as noted above, Dr. Lovelace explicitly relied on x-ray studies in assessing the
functional limitations caused by plainti:frs disc disease. (TR 435). Moreover, despite the Law

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Judge's suggestions to the contrary, the medical record indicates that Dr. Lovelace prescribed
rigorous treatment measures, including regular use ofnarcotic painkillers. In this context, the court
notes that Dr. Sam Koja, a treating, board certified neurosurgeon, also diagnosed degenerative disc
disease based on MRI studies, and prescribed aggressive treatment measures, including cervical
traction and possible epidural steroid injection. (TR 488-89).
More fundamentally, the court believes that the Administrative Law Judge simply misread
Dr. Lovelace's reports and physical assessment. In his opinion, the Law Judge discredits Dr.
Lovelace's report because he believes that the physician's course oftreatment and clinical findings
are not such as the Law Judge feels would be present if the claimant "were in fact disabled." (TR
23). The simple fact is that Dr. Lovelace did not opine that Mrs. Preckajlo is totally disabled.
Indeed, under Dr. Lovelace's assessment, plaintiff could be expected to perfonn all of the functions
of sedentary work activity, with some capacity for standing and walking. It was the vocational
expert who opined that plaintiff would be disabled under Dr. Lovelace's findings, given her rate of
absenteeism. Absent this factor, the vocational expert clearly testified that Dr. Lovelace's physical
assessment stood for the proposition that Mrs. Preckajlo can engage in sedentary work. (TR 42).
The Law Judge overlooked the fact that, given a residual functional capacity for no more than
sedentary work, and based on her age, education, and lack of transferable work skills, the medical
vocational guidelines direct a detennination of disabled in plaintiffs case. See Rules 201.12 and
201.14 of Appendix 2 to Subpart P of the Administrative Regulations Part 404. In the court's
opinion, it is the operation of this administrative rule, rather than the opinion of Dr. Lovelace, that
establishes that Mrs. Preckajlo is disabled within the meaning of the Act.

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Given Dr. Lovelace's finding of residual functional capacity for no more than sedentary
levels ofexertion, which the court believes is consistent with the evaluations and assessments of all
the other physicians who actually examined the plaintiff and assessed the severity of her
musculoskeletal disease, and based on the operation ofthe medical vocational guidelines, the court
concludes that plaintiff has met the burden in establishing total disability for all forms ofsubstantial
gainful employment. Based on the circumstances and evidence as developed in this particular case,
the court finds no basis for overturning the preference established under the administrative
regulations for opinions and assessments provided by a physician who actually saw and treated the
plaintiff over a substantial period of time.
In passing, the court notes that if the Commissioner had reason to doubt the accuracy or

consistency of the physical assessment provided by Dr. Lovelace, the Commissioner had full
authority to require Mrs. Preckajlo to appear for a consultative evaluation by an independent medical
specialist designated by the state agency. See 20 C.F.R. §§ 404.1517 and 404.1518. No such
consultative examination was commissioned by the state disability agency, and, as it now stands, the
finding of residual functional capacity for no more than sedentary levels of exertion is essentially
undisputed by any examining or treating source. Inasmuch as the medical vocational guidelines
direct a determination of disabled upon a showing of incapacity for anything more than sedentary
levels ofexertion, the court concludes that plaintiff has met the burden ofproof in establishing total
disability for all forms of substantial gainful employment.
For the reasons stated, the court is constrained to conclude that the Commissioner's final
decision is not supported by substantial evidence. Defendant's motion for summary judgment must
be denied. Upon the finding that the plaintiff has met the burden of proof as prescribed by and

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pursuant to the Act, judgment will be entered for plaintiff. The final decision ofthe Commissioner
will be reversed and the case recommitted to the Commissioner for computation and award of
appropriate benefits. A judgment and order in conformity will be entered this day.
The Clerk is directed to send certified copies ofthis Memorandum Opinion to all counsel of
record.
DATED: This

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day of December, 2012.

Chief United States District Judge

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