Opinion
CIV-21-1198-G
07-29-2022
VIOLA SHARON WARRIOR Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's applications for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR. ___). This matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The parties have briefed their positions, and the matter is now at issue. It is recommended that the Commissioner's decision be REVERSED AND REMANDED.
I. PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff's applications for benefits. Following an administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 139-149). On review, the Appeals Council remanded the case for consideration of additional evidence. (TR. 157-158). A second administrative hearing was held, which resulted in another decision unfavorable to Plaintiff. (TR. 15-46). Following the decision, the Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the second administrative decision of the ALJ became the final decision of the Commissioner for the purposes of this appeal.
(TR. 54-74).
II. THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since November 1, 2016, the alleged onset date. (TR. 17). At step two, the ALJ determined Ms. Warrior suffered from the following severe impairments: degenerative disc disease; status post left knee surgery with residuals; and obesity. (TR. 18). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 26).
At step four, the ALJ concluded that Ms. Warrior retained the residual functional capacity (RFC) to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(b) except the claimant is able to lift or carry, push or pull ten pounds occasionally and less than ten pounds frequently. The claimant can sit for six hours out of an eight-hour day and stand or walk a combined total of two hours out of an eight-hour day. The claimant can occasionally climb ramps or stairs, but should avoid climbing ladders, ropes, or scaffolds. The claimant can occasionally balance, kneel, stoop, crouch, and crawl.(TR. 28).
With this RFC, the ALJ concluded that Ms. Warrior was capable of performing her past relevant work as a gambling cashier, as that job is generally performed. (TR. 4445). Even so, the ALJ presented the RFC limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 71). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles. (TR. 71-72). At step five, the ALJ adopted the VE's testimony and concluded that in addition to being able to perform her past relevant work as generally performed, Ms. Warrior was not disabled based on her ability to perform the identified jobs existing in the national economy. (TR. 46).
III. ISSUES PRESENTED
On appeal, Ms. Warrior alleges: (1) error in the ALJ's consideration of Plaintiff's neuropathy; (2) error in the evaluation of Plaintiff's subjective allegations; (3) a failure to perform a function-by-function assessment of Plaintiff's work-related abilities; and (4) error in evaluation of medical opinions. (ECF No. 14:11-30).
IV. STANDARD OF REVIEW
This Court reviews the Commissioner's final decision “to determin[e] whether the Commissioner applied the correct legal standards and whether the agency's factual findings are supported by substantial evidence.” Noreja v. Commissioner, SSA, 952 F.3d. 1172, 1177 (10th Cir. 2020) (citation omitted). Under the “substantial evidence” standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). “Substantial evidence . . . is more than a mere scintilla . . . and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. at 1154 (internal citations and quotation marks omitted).
While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
V. ERROR IN THE ALJ'S EVALUATION OF PLAINTIFF'S SUBJECTIVE ALLEGATIONS
Ms. Warrior alleges that the ALJ erred in considering Plaintiff's subjective allegations and the consistency of her statements. (ECF No. 14:14-20). The Court should agree.
A. ALJ's Duty to Evaluate Plaintiff's Subjective Allegations
Social Security Ruling 16-3p provides a two-step framework for the ALJ to evaluate a claimant's subjective allegations. SSR 16-3p, 2016 WL 1119029, at *2 (Mar. 16, 2016). First, the ALJ must make a threshold determination regarding “whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain.” Id., at *2. Second, the ALJ will evaluate the intensity and persistence of the claimant's symptoms to determine the extent to which they limit an individual's ability to perform work-related activities. Id. At this second step, the ALJ will examine the objective medical evidence, the claimant's statements regarding his symptoms, information from medical sources, and “any other relevant evidence” in the record. Id., at *4. SSR 16-3p also directs the ALJ to consider the following seven factors in evaluating the intensity, persistence, and limiting effects of the claimant's symptoms:
• Daily activities;
• The location, duration, frequency, and intensity of pain or other symptoms;
• Factors that precipitate and aggravate the symptoms;
• The type, dosage, effectiveness, and side effects of any medication;
• Treatment, other than medication, an individual receives or has received for relief of pain or other symptoms;
• Any measures other than treatment a claimant has used to relieve pain or other symptoms; and
• Any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms.Id., at *7. Finally, in evaluating a claimant's subjective statements, the ALJ must "provide specific reasons for the weight given to the [claimant's] symptoms, [which are] consistent with and supported by the evidence, and [ ] clearly articulated” for purposes of any subsequent review. Id., at *9.
B. Plaintiff's Subjective Allegations and Testimony
In a function report dated July 22, 2018, Ms. Warrior stated that she could only stand for 30 minutes at once time before the pain started and standing any longer than that would cause her legs to swell. (TR. 380). Ms. Warrior also stated that she could lift 10-15 pounds, she could stand 30 minutes, she could not squat, she did not reach, bend, or kneel, and she could walk for approximately 30 minutes or two blocks at one time and then would need to rest for 15 minutes before resuming walking again. (TR. 385).
In a function report dated October 3, 2018, Ms. Warrior complained of back and leg pain and reported that she took pain medication including Naproxen, Hydrocodone, and Gabapentin, all of which made her sleepy. (TR. 412). Plaintiff also stated that she uses her husband's arm for support to get in and out of chairs and bed, as well as to walk. (TR. 413).
In a function report dated October 10, 2018, Plaintiff stated:
The pain in my legs are unbearable so I take pain medication. I can't sit more than an hour my legs tingle and go num[b]. My back tighten[s] up[] and start[s] to hurt so I lay down. My day is 12 hours I lay down 8 hours of the day.(TR. 15). Regarding specific abilities, Plaintiff stated she could: lift ten pounds maximum, stand for 10 minutes, reach and bend for about 10 seconds, walk a block before needing to rest for 10 minutes, and sit for 30 minutes. (TR. 420). Ms. Warrior also stated she used a walker and a prescribed brace and that her pain medications made her sleepy. (TR. 421-422).
Subsequently, in an undated disability report, Plaintiff reported that her legs were swelling more, and her back pain required her to have more assistance in getting up and sitting down and completing personal care activities. (TR. 424). Plaintiff reported receiving spinal injections for the pain and once again stated that her pain medications made her sleepy. (TR. 425, 428).
On a medical treatment form, Plaintiff stated:
• her medication was hurting her liver, so she had to do “infusions;”
• her neuropathy “is half [her] legs” but she could not afford treatment; and
• she was still receiving injections in her back for her arthritis and a bulging disc.(TR. 467). Finally, on a medications list, she listed medications for her heart, neuropathy, COPD, diabetes, rheumatoid arthritis, and that she uses a rolling walker due to her balance issues. (TR. 475-476).
At the hearing on June 24, 2021, Ms. Warrior testified that she suffered her worst pain in her lower back which caused her trouble walking. (TR. 62). Plaintiff stated that she got off balance and her legs and feet hurt. (TR. 62). Ms. Warrior also testified that her knee “gives out on her” so she used a prescribed walker which she began using two or three years prior. (TR. 63). Plaintiff stated she was able to lift five pounds, and that she needed help with household chores and personal care activities. (TR. 64-65). Plaintiff stated that her feet felt like she was stepping on needles, which contributed to her balance issues and fear of falling. (TR. 66). Finally, Ms. Warrior stated that she received pain injections and that her pain medications made her sleepy and she stayed in bed approximately 6 hours during the day. (TR. 67-68).
C. Error in the ALJ's Evaluation of Plaintiff's Subjective Allegations
In formulating the RFC, the ALJ stated that he had considered Plaintiff's symptoms and the consistency of her subjective allegations with other evidence of record. (TR. 28). The ALJ then: (1) set forth the two-step framework under SSR 16-3p, (2) summarized Plaintiff's functions reports, disability reports, medications list, and hearing testimony as listed above, and stated:
[T]he claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.(TR. 30). The ALJ then set forth an 11-page, single-spaced summary of Plaintiff's medical records which included references to Plaintiff's pain, medication, x-rays, mental health treatment, lab work, back injections, use of a walker, and physical therapy appointments. (TR. 31-41). Of particular interest, the ALJ noted:
• an August 20, 2020 examination record which noted Plaintiff had decreased range of motion in the back with muscle spasm, pain in the lower lumbar spine, positive left straight leg raising while sitting, multi-joint pain with decreased range of motion, left-sided sciatica, and received an injection in her spine to decrease lumbar radiculopathy and
• a March 23, 2021 record which showed Plaintiff demonstrated a slow and steady gait with her walker, decreased range of motion in her back with muscle spasms, pain in her lower lumbar region, positive straight leg raise on the right side, multi-joint pain with decreased range of motion and leftsided sciatica.(TR. 37, 40).
Following the lengthy discussion of medical evidence, the ALJ stated:
Therefore, based upon a preponderance of the evidence, the undersigned finds the claimant capable of sedentary work with no climbing ladders, ropes, or scaffolds; occasional climbing ramps and stairs; and occasional balancing, kneeling stooping, crouching, and crawling. The claimant is limited to standing and walking a total of two hours with no climbing ladders, ropes, or scaffolding due to her diabetes with neuropathy, degenerative disc disease, left knee arthritis, obesity, RA, COPD, chronic pain, and tachycardia. In addition, she was limited to occasional climbing ramps and stairs, balancing, kneeling, stooping, crouching, and crawling due to her obesity, left knee arthritis, neuropathy, RA, chronic pain, degenerative disc disease, and use of an assistive device.(TR. 41-42). Following this re-statement of the RFC, the ALJ discussed Plaintiff's pain and her use of a walker. (TR. 42) But the Court should conclude that the discussion was insufficient to salvage the ALJ's analysis of Plaintiff's subjective allegations.
For example, the ALJ stated that Plaintiff's “pain levels were well controlled with medication. (TR. 42). However, the ALJ then recited several reports of Plaintiff's pain, with two reports being “8/10”-which would not logically appear to reflect “well-controlled” pain. In addition, although the Plaintiff repeatedly reported that she suffered sleepiness from her pain medication, so much so that she slept up to 6 hours during the day, which the ALJ acknowledged in his recitation of the evidence, the ALJ omitted any reference to whether he believed Plaintiff's allegations in this regard or found her credible.
Next, the ALJ stated: “The claimant did not consistently use an assistive device.” (TR. 42). At first glance, this statement would appear to discount Plaintiff's use of an assistive device-namely a walker-however, the ALJ goes on to reference seven times that medical professionals documented Plaintiff's use of a walker during an office visit. See TR. 42. Following that recitation, the ALJ stated: “There were no additional findings of use of an assistive device.” But just paragraphs before, the ALJ stated that Plaintiff was “limited to occasional climbing ramps and stairs, balancing, kneeling, stooping, crouching, and crawling due to her. . . use of assistive device.” (TR. 42). This statement would appear to affirm that Plaintiff needed to use an assistive device, but in the formal RFC finding on page 28 of the decision, the ALJ does not mention that Ms. Warrior would need an assistive device, leaving the Court to speculate regarding whether the ALJ had indeed deemed the walker necessary.
The ALJ's comments on Plaintiff's pain medication and use of an assistive device are confusing at best-the undersigned simply cannot discern whether: (1) the ALJ had believed Plaintiff's allegations regarding the use of her pain medications making her sleepy or (2) Ms. Warrior required the use of an assistive device to ambulate. Although the ALJ stated “these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision,” the undersigned is hard-pressed to find that the ALJ ever provided reasons tied to his decision to find Plaintiff only partially credible. In various reports and at the hearing, Plaintiff stated that she had limitations involving her abilities to lift, carry, push, pull, sit, stand, and walk-limitations which specifically conflicted with the RFC determination. See supra. Despite the conflict, however, the ALJ never affirmatively stated whether he found Ms. Warrior to be believable on these points, or if not, why he had discounted the statements. As a result, the Court cannot discern the ALJ's specific reasons for discounting Plaintiff's subjective complaints, as required by SSR 16-3p. The ALJ did not draw contrasts with Plaintiff's testimony and evidence in the record or offer any explanation as to how the evidence supported his conclusion, either in his RFC discussion or any other part of the decision. The examination records noted by the ALJ would seem to support Plaintiff's allegations, but the ALJ apparently disagreed. He was entitled to do so, but was required to provide “specific reasons for the weight given to the [claimant's] symptoms, [which are] consistent with and supported by the evidence, and [ ] clearly articulated” for purposes of any subsequent review. SSR 16-3, at *9. This, he simply did not do.
The ALJ's recitation of the proper standard and his summary of Plaintiff's testimony and allegations is insufficient to fulfill his duties under SSR 16-3p. Although the ALJ summarized Plaintiff's testimony and allegations, he did not thereafter: (1) explain which portions of it he did not believe, (2) “closely and affirmatively” link any of the factors to his determination, or (3) provide specific reasons for that determination. See TR. 28-41; Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (explaining that ALJ is required to closely and affirmatively link credibility findings to substantial evidence in the record and to “articulate specific reasons” for such findings). Instead, the ALJ simply recited evidence from the record and did not provide any insight into how that evidence had impacted his determination of Ms. Warrior's allegations. Such conclusory findings are insufficient. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (“[T]he links between the evidence and credibility determination is missing; all we have is the ALJ's conclusion.”).
In short, the ALJ merely recited evidence, without comment or adequate explanation as to how that evidence was consistent or inconsistent with Plaintiff's subjective allegations. Under Tenth Circuit law, this constitutes reversible error based on a reviewing court's inability to conduct a meaningful review. See Brownrigg v. Berryhill, 688 Fed.Appx. 542, 546 (10th Cir. 2017) (reversing and remanding for further explanation of reasons where ALJ examined some objective medical evidence, but failed to address other factors relevant to pain analysis); Murray v. Berryhill, No. CIV-15-364-CG, 2017 WL 4010868, at *4-6 (W.D. Okla. Sept. 12, 2017) (reversing and remanding for further proceedings where ALJ provided only narrative description of daily activities and summarized some medical records but “included no meaningful discussion of how the evidence served as a basis for the conclusion”); Pruitt v. Colvin, No. CV-15-207-HE, 2016 WL 11469336, at *3 (W.D. Okla. Jan. 20, 2016), report and recommendation adopted, No. CIV-15-0207-HE, 2016 WL 1266960 (W.D. Okla. Mar. 31, 2016) (reversing and remanding where ALJ did not deliver the “promised explanation or requisite analysis” in assessing claimant's credibility). As in the above-listed cases, the ALJ's analysis in the instant case lacks substance and provides no basis for meaningful review of his conclusion. See Brownrigg, 688 Fed.Appx. at 545 (although technical perfection is not required, “the substance must be there”). As a result, the Court should conclude that remand is appropriate.
VI. PLAINTIFF'S REMAINING ALLEGATIONS OF ERROR
Ms. Warrior also alleges: (1) error in the ALJ's consideration of Plaintiff's neuropathy on the RFC; (2) a failure to perform a function-by-function assessment of Plaintiff's work-related abilities; and (3) error in evaluation of medical opinions. See supra. But the Court should decline consideration of these alleged errors because the RFC is inexorably intertwined with the analysis of a claimant's subjective allegations and may be affected following a remand on this issue. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) ("We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand.”); see also Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009) (“Since the purpose of the credibility evaluation is to help the ALJ assess a claimant's RFC, the ALJ's credibility and RFC determinations are inherently intertwined.”); Roxanna L. H. v. Berryhill, 2019 WL 1083564, at *5-6 (N.D. Okla. Mar. 7, 2019) (finding that the ALJ committed reversible error in his consistency analysis of Plaintiff's subjective complaints of pain “which resulted in error in his formulation of Plaintiff's RFC[.]”).
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge recommends that the decision of the Commissioner be REVERSED AND REMANDED.
The parties are advised of their right to file specific written objections to this Report and Recommendation. See 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Any such objections should be filed with the Clerk of the District Court by August 12, 2022. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.