Opinion
CIV-18-907-SLP
07-23-2019
ROBERT L. AVERY, Plaintiff, v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of Defendant Commissioner's decision denying his application for disability insurance benefits (DIB). Defendant has answered the Complaint and filed the administrative record (hereinafter AR___). The parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that the Commissioner's decision be reversed and remanded for further proceedings consistent with this Report and Recommendation.
I. Administrative History and Final Agency Decision
Plaintiff filed his application for DIB on December 16, 2015, alleging disability beginning December 11, 2015. AR 36. The Social Security Administration denied his application initially and on reconsideration.
Plaintiff appeared with his representative and testified at a video administrative hearing on August 8, 2017, before an Administrative Law Judge ("ALJ"). Id. at 50-72. A vocational expert ("VE") also testified at the hearing. Id. at 67-71. The ALJ issued a decision in which he found Plaintiff was not disabled within the meaning of the Social Security Act. Id. at 34-45.
Following the agency's well-established sequential evaluation procedure, the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. Id. at 38. At the second step, the ALJ found Plaintiff had one severe impairment: degenerative disc disease of the back, post-surgery. Id.
At the third step, the ALJ determined Plaintiff's spinal impairment did not meet or equal one of the presumptively disabling impairments listed at 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ considered the Listing at 1.04, Disorders of the Spine, and stated Plaintiff's spinal impairment did not meet or medically equal that Listing. Id. at 39.
At step four, the ALJ determined Plaintiff had the following residual functional capacity ("RFC"):
[T]he claimant has the residual functional capacity to perform light work . . . except he is limited to occasional climbing, balancing, and stooping. He must avoid walking on uneven surfaces. He must be allowed to alternate between sitting and standing every 20-30 minutes throughout the workday for the purpose of changing positions, but without leaving the workstation.Id.
Relying on the VE's testimony, the ALJ found Plaintiff could not perform his past relevant work as concrete truck driver or dump truck driver, jobs that require the ability to work at the medium exertional level. Id. at 43.
At step five, the ALJ again relied on the VE's testimony and concluded Plaintiff's RFC would allow him to perform jobs existing in significant numbers in the national economy including small products assembler and inspector/packer. Id. at 44. The VE testified that the numbers of both jobs would be reduced by 50% based on the required sit/stand option. Nevertheless, the ALJ determined these jobs represented a "significant number" of jobs available in the national economy. Based on this finding, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, since December 11, 2015, through the date of the decision. Id. at 44.
Plaintiff presented additional evidence to the Appeals Council, but the Appeals Council denied Plaintiff's request for review. AR 1-6. Therefore, the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).
II. Issues Raised
Plaintiff raises four issues.: (1) the Appeals Council erred by declining to review the evidence submitted after the ALJ's decision; (2) the ALJ erred in failing to find Plaintiff's mental impairments to be medically determinable; (3) the ALJ erred in failing to reconcile the internal inconsistencies in the State Agency physicians' reports; and (4) the ALJ erred, as a matter of law, in failing to discuss uncontroverted, significantly probative evidence that conflicted with his findings and tainted the evaluation of symptoms and the resulting RFC. Plaintiff's Opening Brief, (Doc. No. 20).
III. General Legal Standards Guiding Judicial Review
The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the Commissioner applied the correct legal standards. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citations and quotations omitted). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "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); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The five-step sequential evaluation is described at 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of [his] age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
IV. Analysis
This Court finds Plaintiff's assignment of errors and arguments in support persuasive and concludes the Commissioner's decision is not supported by substantial evidence. Additionally, the ALJ made reversible legal errors that cannot be deemed harmless.
A. Internal Inconsistencies in Medical Opinions
Plaintiff contends the ALJ erred in failing to reconcile internal inconsistencies in the State Agency physicians' initial disability assessment and the disability assessment on reconsideration. The ALJ gave the opinions of the two State Agency physicians "great weight because they are consistent with the records of neurosurgeon Benjamin White, M.D." AR 42. The Court finds, however, that they are both internally inconsistent and inconsistent with Dr. White's records.
It should be noted that Dr. White was only one of Plaintiff's numerous physicians. Moreover, as discussed in further detail below, the ALJ misinterpreted a critical finding in Dr. White's records.
The inconsistency of the State Agency physicians' opinions is irrefutable. In answering a series of questions requiring only one-word answers, Dr. James Metcalf, M.D., seemed to be describing limitations consistent with the ability to perform light work. But in the narrative portion of his initial disability determination, Dr. Metcalf states that his findings supported an RFC for "sed[entary] exertion." AR 84. Dr. Metcalf explained his narrative findings:
ADLS- unable to function at full potential, unable to sit longer than 15 minutes, unable to stand more than 10-15 minutes[,] unable to walk more than 150 steps[,] issues with pc care for pets, no reminders needed, doesn't prepare meals, mow with riding mower[,] drive cars and shop in stores, handle finances[,] postural checked and completing tasks affected. No mental[.]Id. On reconsideration, Dr. Janet G. Rodgers, M.D. agreed, even after considering additional evidence. In the narrative portion of her opinion, Dr. Rodgers also stated Plaintiff could perform sedentary work, despite having indicated he could do light work in the previous portion of her assessment. AR 99.
Physical findings indicate the severity the claimant describes. Claimant statements consistent with MER. Findings are considered credible and are reflected in a physical RFC for [sedentary] exertion.
The ALJ made no attempt to reconcile the internal inconsistencies in the State Agency physicians' medical opinions. Instead, the ALJ impermissibly relied on the portions of the medical opinions that supported his finding that Plaintiff was not disabled, while ignoring the portions of the opinions that were contrary to that view. In Bryant v. Comm'r, SSA, 753 F. App'x 637, 640 (10th Cir. Nov. 23, 2018), the Tenth Circuit Court of Appeals cited well-established law in reiterating the principle that an ALJ errs in failing to discuss evidence that is contrary to his findings:
[A]n ALJ is required to consider all evidence in the case record, and while the ALJ is not required to discuss all such evidence, "in addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). Thus, an ALJ "may not ignore evidence that does not support his decision, especially when that evidence is significantly probative." Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001) (internal quotation marks omitted).Id.
The Commissioner contends these physicians simply made typographical errors in the narration portion of their opinions. But the Commissioner's argument is a prohibited post-hoc rationalization, as the ALJ made no such explanation for the internal inconsistencies in his decision. Villareal v. Berryhill, No. CIV-17-1122-R, 2018 WL 5020043, at *2 (W.D. Okla. Sept. 24, 2018), report and recommendation adopted, No. CIV-17-1122-R, 2018 WL 5018479 (W.D. Okla. Oct. 16, 2018) (citing Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007) ("[T]his court may not create or adopt post-hoc rationalizations to support the ALJ's decision that are not apparent from the ALJ's decision itself.")). In both reports, the paragraphs immediately preceding the State Agency Physicians' ultimate conclusions that Plaintiff was limited to sedentary work indicate that Plaintiff could not perform all the requirements of light work. But pursuant to the relevant regulation, jobs in the light category require "a good deal of walking or standing[.]" 20 C.F.R. §404.1567(b). It seems illogical that a person who is unable to walk more than 150 steps could perform "a great deal of walking" as required by many jobs in the light category.
The State Agency physicians both agreed that Plaintiff's statements concerning his limitations were consistent with the medical evidence of record. Accordingly, even if this Court accepted the Commissioner's post-hoc rationalization, the Court would also have to accept that the whole of two paragraphs in each report consisted solely of typographical errors—a conclusion that defies logic.
As Plaintiff points out, the portions of both opinions that assess physical capabilities consistent with light work consist solely of one-word answers to questions and are quite similar to the familiar check-box forms seen in many disability cases. See AR 82, 96. The Tenth Circuit Court of Appeals has held that "such an evaluation form is insufficient to constitute substantial evidence when it stands alone and unaccompanied by thorough written reports or testimony." Hamlin v. Barnhart, 365 F.3d 1208, 1223 (10th Cir. 2004) (citing Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987) (noting "suspect reliability" of findings of nontreating physician based on limited contact and examination)). In Hamlin, the State Agency physicians provided no narrative explanation for any of the conclusions they reached. If anything, the facts in this case are even worse than those in Hamlin. In this case, the narrative explanations are directly contrary to the findings reached in the sections of the reports resembling check-list forms.
Although the Tenth Circuit has declined to adopt a categorical position that check-box forms and the like should be rejected, it has indicated that the reviewing court should consider the facts of the case, including the amount of information actually conveyed on the form and whether other materials in the record support the conclusions on the form. See Andersen v. Astrue, 319 Fed. Appx. 712, 723-24 (10th Cir. 2009). In this case, one of Plaintiff's treating physicians submitted a Physical Medical Source Statement, that indicates serious limitations. AR 437-440. Although the ALJ gave the Medical Source Statement "little weight" on the basis that the opinion was "inconsistent with [the physician's] own treatment records," AR 43, it is unclear that the ALJ considered Plaintiff's chronic pain and the amount of medication he took to control it. The ALJ mentioned Plaintiff's chronic pain, but he apparently did not consider it to be a "severe impairment." AR 38-39.
Determining whether Plaintiff can perform light work or only sedentary work is especially significant in this case because of Plaintiff's age and vocational profile. Plaintiff was 51 years old when he applied for DIB. Under the Medical Vocational Guidelines, persons aged 50-54 are classified as "approaching advanced age." 28 C.F.R. Part 404, Subpart P, App'x 2 Rule 201.00(g). "Individuals approaching advanced age (age 50-54) may be significantly limited in vocational adaptability if they are restricted to sedentary work." Id.
Here, the ALJ used the Medical Vocational Guidelines ("the grids") as a framework to determine whether Plaintiff could perform other jobs existing in the national economy. The ALJ described Plaintiff as "having at least a high school education" and being "able to communicate in English." AR 43. Although the ALJ did not decide whether Plaintiff has transferrable skills, AR 44, the VE testified that he did not. AR 68. Rule 201.12 of the grids deems an individual who has a high school education but no transferrable skills, who is limited to sedentary work and who is closely approaching advanced age, to be "disabled," even if the individual has no nonexertional limitations. An individual with the same vocational profile who is able to perform light work with no non-exertional limitations, on the other hand, would, by deemed "not disabled." Rule 202.13. So, even when the ALJ is using the grids as a framework only, the RFC of an individual of Plaintiff's age is a critical finding.
This Court concludes the ALJ erred in granting "great weight" to the internally inconsistent reports submitted by the State Agency physicians.
B. Medically Determinable Mental Impairments
Nonexertional impairments resulting in functional limitations must, of course, be considered in determining an individual's RFC. The ALJ's finding that Plaintiff's alleged depression and anxiety are "not medically determinable impairments," requires further consideration on remand.
"Medically determinable impairments" are defined as "anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 404.1521. Dr. Stout, one of Plaintiff's treating physicians, diagnosed Plaintiff with depression and anxiety, both "affective disorders." AR 438.
Additional support for finding Plaintiff's depression and anxiety to be medically determinable affective disorders may be found in Dr. Metcalf's initial disability determination—an opinion given great weight by the ALJ. Under the section of his report entitled "Affective Disorders," Dr. Metcalf stated, "A medically determinable impairment is present that does not precisely satisfy the diagnostic criteria above." AR 80.
The ALJ relied on the absence of medical records demonstrating Plaintiff had received specialized mental health care in determining his alleged mental impairments were not "medically determinable." While that fact might be relevant to the severity of Plaintiff's mental impairments, it is not relevant to deciding whether the alleged impairments are "medically determinable." Whether Plaintiff's affective disorders constituted "severe impairments" or resulted in functional limitations are separate questions. The ALJ is reminded, however, that all medically determinable impairments, even those that are not severe, must be considered in combination when assessing an individual's RFC.
C. Consideration of All Medical Records
Plaintiff points to significant medical records that the ALJ either did not consider at all, or misinterpreted. The most significant evidence the ALJ either overlooked or misstated was evidence he cited at step three when he determined Plaintiff's spinal impairments did not meet or equal a listing of the presumptively disabling impairments. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
The ALJ stated he considered Listing 1.04:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:20 C.F.R. § Pt. 404, Subpt. P, App. 1 (emphasis added).
A. Evidence 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); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.
In conclusory terms, the ALJ determined Plaintiff's spinal impairments did not meet Listing 1.04. In so doing, the ALJ rejected evidence of a compromised nerve root with "[l]umbar spinal stenosis resulting in pseudoclaudication." AR 39.
Dr. Benjamin White, M.D., performed surgical procedures in an attempt to relieve Plaintiff's pain by "decompression of spinal nerve roots." AR 416. Both his preoperative and postoperative diagnoses were "Lumbar spinal stenosis with low back pain, lumbar radiculopathy, and neurogenic claudication." Id. Plaintiff cites medical sources that explain "neurogenic claudication" is another name for "pseudoclaudication." Doc. No. 20 at 30 n. 7.
"Claudication" and "neurogenic claudication, also known as "pseudoclaudication," both cause leg cramps and pain, but by different processes. Claudication is caused by peripheral artery disease while pseudoclaudication is caused by stenosis of the spine in the lower back. See Pseudoclaudication: Is it related to claudication? This article may be accessed at https://www.mayoclinic.org (last accessed July 22, 2019).
Thus, the ALJ erred in failing to discuss and consider the resulting symptoms caused by Plaintiff's nerve root compression with spinal stenosis and resulting pseudoclaudication. Because the ALJ failed to recognize the evidence in Dr. White's operative report, the ALJ did not consider whether Plaintiff's spinal impairment resulted in inability to ambulate effectively. Although the ALJ's ultimate conclusion that Plaintiff did not meet Listing 1.04 may or may not be correct, the ALJ erred in failing to discuss and consider the resulting symptoms caused by compressed nerves with spinal stenosis and pseudoclaudication, including Plaintiff's complaints that he could not feel his feet and continued to experience chronic pain. AR 41. Evidence that Plaintiff continued to experience numbness and loss of sensation is scattered throughout the record, dated after the decompression surgery. Doc. No. 20 at 30; AR 396, 430, 438, 443.
In sum, the Commissioner's decision should be reversed and remanded for further proceedings consistent with this Report and Recommendation. On remand, the Commissioner will necessarily consider the additional evidence presented to the Appeals Council as it is now part of the record and will be relevant to any future decision, as Plaintiff is insured for DIB through December 31, 2020.
The ALJ should reconsider Plaintiff's alleged mental impairments, being careful to determine whether these impairments are medically determinable based on clinical observations. If so, the ALJ should then determine whether the impairments are severe or non-severe and, if Plaintiff does in fact have medically determinable mental impairments, even if those impairments are not severe, the ALJ should consider any resulting functional limitations when formulating Plaintiff's RFC.
Finally, the ALJ should carefully consider all medical records recording symptoms and signs of impairments, especially evidence relevant to the Listing at 1.04
RECOMMENDATION
Based on the foregoing, it is recommended that the Commissioner's decision be REVERSED AND REMANDED for further proceeding consistent with this Report and Recommendation. The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by August 12th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation results in waiver of appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 23rd day of July, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE