Opinion
Case No. CIV-18-506-R
11-15-2018
SHALIA BILLINGS, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Shalia Billings, seeks judicial review of the Social Security Administration's denial of disability insurance benefits (DIB) and supplemental security income (SSI). This matter has been referred by United States District Judge David L. Russell for proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(B) and (C). The Commissioner has filed the Administrative Record (AR) [Doc. No. 14], and both parties have briefed their respective positions. For the reasons set forth below, it is recommended that the Commissioner's decision be reversed and remanded for further proceedings.
Citations to the parties' submissions reference the Court's CM/ECF pagination.
I. Procedural Background
On September 14, 2015, Plaintiff protectively filed an application for DIB. See AR 15. Plaintiff also protectively filed an application for SSI on September 24, 2015. See id. The Social Security Administration denied the applications initially and on reconsideration. AR 84-85, 108-109. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision dated April 4, 2017. AR 12-30. The Appeals Council denied Plaintiff's request for review. AR 1-6. Thus, the decision of the ALJ became the final decision of the Commissioner. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff seeks judicial review of this final agency decision.
II. The ALJ's Decision
The ALJ followed the sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining five-step sequential evaluation process); see also 20 C.F.R. §§ 404.1520; 416.920. The ALJ first determined Plaintiff had not engaged in substantial gainful activity since June 25, 2015, the alleged onset date. AR 17.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: migraines; degenerative disc disease; paresthesia of the hands and feet; and fibromyalgia. Id. At step three, the ALJ found Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 18-19.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding she could perform a full range of light work. AR 19-22. The ALJ then found Plaintiff could not perform any past relevant work. AR 22-23. Relying on the testimony of a vocational expert, the ALJ found there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform—counter clerk and rental clerk. AR 23-24. The ALJ concluded, therefore, that Plaintiff was not disabled for purposes of the Social Security Act. AR 24.
III. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quotation omitted). A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it. Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). The court "meticulously examine[s] the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations 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 does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
IV. Claims Presented for Judicial Review
Plaintiff asserts the ALJ failed to address certain medical findings and did not properly consider an examining medical opinion. The Court recommends reversal on the basis of Plaintiff's first claim and does not reach the merits of the second claim.
V. Analysis
A. The ALJ Improperly Engaged in Picking and Choosing Through the Evidence
Plaintiff contends the ALJ improperly ignored evidence from the medical record which, if considered, would have had an effect on the RFC. The Court finds Plaintiff's claim has merit.
1. Legal Standard
Picking and choosing from the record is an impermissible practice and one necessitating remand. See Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004) (finding an ALJ may not "pick and choose among medical reports, using portions of evidence favorable to his position while ignoring other evidence"); see also Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (holding that an ALJ need not "discuss every piece of evidence" but "must discuss the uncontroverted evidence he chooses not to rely on as well as significantly probative evidence he rejects"). However, where the court "can follow the adjudicator's reasoning in conducting our review, and can determine that correct legal standards have been applied, merely technical omissions in the ALJ's reasoning do not dictate reversal." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012).
2. The ALJ's Consideration of the Evidence
Plaintiff went to an independent consultative examination in December 2015. Pertinent to Plaintiff's assertion of error, the examining doctor found:
Neither party was able to identify the doctor, whose only identification on the report is an illegible signature. As Plaintiff notes, however, it appears the examining doctor was a D.O. based on the signature contained on the medical record. See AR 633, 635-637.
Muscle skeletal: there is tenderness to palpation in lumbar with no areas of muscle spasm on the spine. Straight leg test was positive in both supine and sitting positions bilaterally.AR 633. The doctor also listed "unsteady gait" in the "Assessment" section of his or her report. Id. The ALJ summarized the report as follows:
Gait: Ambulated unassisted with unsteady gait. Was able to climb onto the exam table with minimal difficulty, and get up from sitting position with minimal difficulty. able [sic] to stand on heels but unable to ambulate on them. Unable to stand on toes without balance assistance. Refused to attempt toe walking.
[Plaintiff] attended an independent consultative examination on December 22, 2015. The examiner noted that [Plaintiff] alleged deficits in balance, grip and gait. [Plaintiff] stated that she continued to smoke- described as a "heavy tobacco smoker". She was described as well-developed, well-nourished and in no acute distress. Upon physical exam she complained of cervical pain with range of motion testing. Her respiratory, cardiovascular and abdominal functions were within normal limits. Her musculoskeletal testing showed 5 of 5 muscle strength in all extremities. Range of motion of all joints and spinal sections were
limited. Her heel to toe walking was unsteady. Her grip strength was 4 of 5. She demonstrated no muscle spasms.AR 21.
Further, Plaintiff contends that the ALJ ignored evidence contained in the records of Dr. Darryl Jackson, D.O., who noted that Plaintiff rose slowly from a seated position and walked with a waddling gait. Pl.'s Br. 5-6 (citing AR 693, 695). The ALJ's summary of Dr. Jackson's records does not address either issue. AR 21.
Plaintiff contends the ALJ failed to address evidence related to her gait, a positive straight-leg test result, her ability to climb onto an examination table, and her ability to get up from a sitting position. Pl.'s Br. 4. She argues that this evidence shows that she would have difficulty standing or walking, which is required in the performance of light work. Id. at 4-5.
The evidence presented by Plaintiff regarding her gait amounts to significantly probative evidence rejected by the ALJ. The examining doctor specifically noted that Plaintiff ambulated with an unsteady gait and included that finding in his overall assessment of Plaintiff. AR 633. Further, Dr. Jackson addressed Plaintiff's "waddling" gait in records detailing two separate appointments. AR 693, 695. This evidence, not addressed by the ALJ in the decision, is significantly probative because the ALJ specifically found that Plaintiff "does not have findings of a loss of gait and station" in the Step Three analysis. AR 18; see also Kellams v. Berryhill, 696 F. App'x 909, 915 (10th Cir. 2017) (unpublished) ("Similarly, the ALJ determined [the claimant] had a normal gait, but Dr. Borja observed he had an antalgic gait to the left. The ALJ cited Dr. Borja's report to confirm hypertonicity, but he failed to mention her finding of an antalgic gait. . . . An ALJ may not pick and choose among medical reports, using portions of evidence favorable to his position while ignoring other evidence." (internal citations and quotations omitted)). Although the Commissioner correctly contends the ALJ is not required to recite every abnormal finding from the doctors' reports, Def.'s Br. 11, n.8 (citing Wall v. Astrue, 561 F.3d 1048, 1067 (10th Cir. 2009)), an ALJ must address significantly probative evidence, which did not occur in this case.
The ALJ also did not reference Plaintiff's positive straight-leg test result, despite finding at Step Three that Plaintiff did not have "consistent evidence of . . . positive straight-leg raising." AR 18. While a single test does not amount to "consistent evidence" of positive straight-leg raising, the ALJ cites to no other test results in the decision. On remand, the ALJ should consider the straight-leg test result.
The Commissioner also argues that a state agency physician, Dr. James Metcalf, M.D., "expressly considered all the gait-related abnormalities which Plaintiff now claims should have warranted additional RFC limitations, and nonetheless opined Plaintiff could perform a full range of light work." Def.'s Br. 12 (citing Cowan v. Astrue, 552 F.3d 1182, 1186-87, 1190). The Commissioner's reliance on Cowan is not persuasive. In Cowan, the claimant argued the ALJ failed to include limitations to account for weakness in her left arm, but the court noted that the ALJ specifically recognized the claimant's left-arm weakness. Cowan, 552 F.3d at 1189-90. In this case, however, the ALJ only acknowledged that Plaintiff "alleged" a deficit in gait. AR 21. The ALJ did not recognize any gait deficiencies, but instead noted at Step Three that Plaintiff "does not have findings of a loss of gait and station." AR 18.
The Court notes that the ALJ did not weigh the opinions of the state agency physicians, noting only: "As for the opinion evidence, the opinions of the [state agency] consultants corroborate the record they reviewed and their findings are verified by medical evidence submitted subsequently to the determination." AR 22. The ALJ clearly did not adopt the opinion of Dr. Suzanne Roberts, M.D., who found Plaintiff was capable of medium work. AR 92 (finding Plaintiff capable of lifting fifty pounds occasionally and twenty-five pounds frequently); 20 C.F.R. §§ 404.1567(c), 416.967(c) (medium work involves lifting no more than fifty pounds with frequent lifting of twenty-five pounds).
Thus, the Commissioner's claim that the ALJ "agreed that [Plaintiff] exhibited some gait-related abnormalities" is incorrect. Def.'s Br. at 11; see also id. at 12.
For the reasons set forth above, the Court finds the ALJ did not discuss all of the significantly probative evidence in this matter and recommends reversal and remand on that basis.
B. The Court Does Not Reach Plaintiff's Remaining Point of Error
The Court does not reach Plaintiff's additional point of error—that the ALJ failed to weigh the opinion evidence. The ALJ's proper consideration of the evidence may have an impact on the consideration of medical opinions. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (finding the court need not reach the merits of claims that "may be affected by the ALJ's treatment of the case on remand").
The Court notes that the Commissioner argues that the examining doctor's findings do not amount to a medical opinion. Def.'s Br. 11. The ALJ is reminded that medical opinions include statements regarding symptoms, diagnosis, and prognosis. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). --------
RECOMMENDATION
For the reasons set forth above, it is recommended that the Court reverse the Commissioner's decision and remand the matter for further proceedings consistent with this Report and Recommendation.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by November 29, 2018. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED this 15th day of November, 2018.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE