Opinion
Case No. CIV-18-209-R
10-15-2018
JANET BROWN, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Janet Brown, seeks judicial review of the Social Security Administration's (SSA) denial of her application for supplemental security income (SSI). United States District Judge David L. Russell has referred the matter for proposed findings and recommendations. See 28 U.S.C. §§ 636(b)(1)(B), 636(B)(3); Fed. R. Civ. P. 72(b). The Commissioner has filed the Administrative Record (AR) [Doc. No. 10], and both parties have briefed their 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 23, 2016, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to SSI. AR 20-32. The Appeals Council denied Plaintiff's request for review. Id. at 3-8. Accordingly, the ALJ's decision constitutes the Commissioner's final decision. See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff timely commenced this action for judicial review.
II. The ALJ's Decision
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (explaining process); see also 20 C.F.R. § 416.920. Following this process, the ALJ first determined that Plaintiff had not engaged in substantial gainful activity since January 25, 2014, her application date. AR 22.
At step two, the ALJ determined Plaintiff suffers from the following severe impairments: fibromyalgia, degenerative disc disease, degenerative joint disease, obesity, affective disorder, anxiety disorder, and chronic pain disorder. Id. at 22. At step three, the ALJ found that Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1 (Listings). Id. at 23-25.
The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding that Plaintiff could perform light work as defined in 20 C.F.R. § 416.967(b) with the following additional restrictions that Plaintiff:
can occasionally reach overhead with the bilateral upper extremities; can understand, remember, and carry out simple instructions with routine supervision; can relate to supervision and a limited number of coworkers on a superficial work basis, but relate to the general public only on an incidental, cursory basis; can adapt to a work environment.Id. at 25-30.
At step four, the ALJ determined Plaintiff is capable of performing her past relevant work in housekeeping and that transferability of job skills is not a material issue. Id. at 30. The ALJ then proceeded to step five to make alternative findings. Relying on the testimony of a vocational expert, the ALJ found Plaintiff can perform work existing in significant numbers in the national economy. Id. at 31. Specifically, the ALJ found Plaintiff can perform the requirements of representative jobs such as small product assembler, inspector packer, and poultry processor. Id. Therefore, the ALJ concluded that Plaintiff is not disabled for purposes of the Social Security Act. Id. at 32.
III. Claims Presented for Judicial Review
Plaintiff alleges the ALJ erred in making step-four and step-five findings that were not supported by substantial evidence. Pl.'s Br. [Doc. No. 15] at 3-12. Specifically, Plaintiff alleges that the ALJ failed to properly consider the opinion of the state-agency consultative examiner and Plaintiff's fibromyalgia. Id. Within those allegations, Plaintiff also contends that the ALJ failed to fully develop the record, did not consider the combined effect of Plaintiff's impairments, and did not adequately explain why he found that Plaintiff's complaints of subjective symptoms were not supported by the record. Id. The undersigned agrees that the ALJ did not adequately explain the inconsistency between the RFC and the opinion of the state-agency consultative examiner and, thus, the ALJ's findings at step four and step five were not supported by substantial evidence. As such, remand is warranted. Because Plaintiff's other assertions of error may be affected by the ALJ's treatment of the case on remand, the undersigned does not reach those arguments.
IV. 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); see also Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (holding that the court only reviews an ALJ's decision "to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied" and in that review, "we neither reweigh the evidence nor substitute our judgment for that of the agency" (citations and internal quotation marks omitted)). Under such review, "common sense, not technical perfection, is [the Court's] guide." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012).
V. Analysis
A. Consideration of the opinion of the state-agency consultative examiner
Plaintiff objects that the ALJ did not discuss the weight assigned to or adequately consider the opinion of Stefani Madison, M.D., a state-agency consultative examiner who saw Plaintiff on January 17, 2015. Pl.'s Br. at 3-6; see AR 322-28. Though Plaintiff initially characterized Dr. Madison's opinion as that of a "treating-source," as Plaintiff recognized in the supplemental filing of October 3, 2018 [Doc. No. 20], Dr. Madison was not Plaintiff's treating physician. See Pl.'s Br. at 3-4; Pl.'s Amd. at 2; AR 322.
However, even though Dr. Madison was a consultative examiner and not a treating physician, "[i]t is the ALJ's duty to give consideration to all the medical opinions in the record. He must also discuss the weight he assigns to such opinions, including the opinions of state agency medical consultants." Mays v. Colvin, 739 F.3d 569, 578 (10th Cir. 2014) (internal quotation marks omitted). Here, the ALJ did not do so. The ALJ discussed Dr. Madison's opinion, including her opinion that Plaintiff could not grasp tools on bad days. AR 27. But the ALJ did not weigh Dr. Madison's opinion or give any insight into his consideration of Dr. Madison's findings regarding Plaintiff's periodic inability to grasp. See AR 27 (discussing Dr. Madison's exam notes), 28-30 (discussing weight given to medical opinions, but not weighing Dr. Madison's opinion).
Though "an ALJ's failure to weigh a medical opinion involves harmless error if there is no inconsistency between the opinion and the ALJ's assessment of residual functional capacity," see Mays, 739 F.3d at 578-79, here there is inconsistency. Dr. Madison found that Plaintiff is unable to grasp tools "on bad days," AR 327, but the RFC contains no limitations for handling and fingering. Cf. Brower v. Colvin, No. CIV-14-792-HE, 2015 WL 4633499, at *3 (W.D. Okla. July 2, 2015) (R&R), adopted 2015 WL 4637476 (W.D. Okla. Aug. 3, 2015) (recognizing that the ability to grasp tools such as a hammer impacts the ability to do handling and fingering). And the ALJ did not explain why he rejected Dr. Madison's opinion, which was error. See SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996) ("If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted."); see also Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (holding that an ALJ must discuss "significantly probative evidence" that he or she rejects).
Moreover, the inconsistency between Dr. Madison's opinion and the RFC cannot be considered insignificant as the jobs relied upon by the ALJ at both step four and step five require handling and fingering. The Dictionary of Occupational Titles (DOT) describes the job of housekeeping as requiring handling 1/3 to 2/3 of the time, and fingering up to 1/3 of the time. DOT 323.687-014. The DOT describes the jobs of small product assembler and inspector packer as requiring both handling and fingering 1/3 to 2/3 of the time, while it describes the job of poultry processor as not requiring fingering, but requiring handling 2/3 or more of the time. DOT 706.684-022 (small product assembler); DOT 559.687-074 (inspector packer); DOT 525.687-070 (poultry processor).
Because these occupations all require fingering and/or handling, medical opinion evidence indicating that Plaintiff could not meet those requirements is material to the disability determination. The undersigned notes that Dr. Madison's opinion regarding Plaintiff's difficulties in grasping is consistent with the opinion of Ron Brown, DC, who opined that Plaintiff would have "significant limitation in doing repetitive reaching, handling or fingering." AR 352. The ALJ gave Dr. Brown's opinion "no weight," which Plaintiff does not challenge. AR 29. However, the reasons cited by the ALJ for rejecting Dr. Brown's opinion do not appear to relate to Dr. Brown's opinion regarding handling and fingering. See id. ("[Dr.] Brown's opinion is internally inconsistent in that he opined [Plaintiff] could stand and sit for 4 hours a day and then he opined that she could sit, stand, and walk for less than 2 hours per day.").
The undersigned notes that a chiropractor such as Dr. Brown is not an "acceptable medical source." In the category of "other medical sources," the regulations in effect at the time of the ALJ's decision include, but are not limited to, nurse practitioners, physicians' assistants, naturopaths, chiropractors, audiologists, and therapists. 20 C.F.R. § 416.913(d)(1) (2016). Opinions from such sources cannot be given controlling weight. Nevertheless, these sources, as well as the other non-medical sources, may provide evidence "to show the severity of [a claimant's] impairment(s) and how it affects [a claimant's] ability to work." 20 C.F.R. § 416.913(d).
Additionally, in rejecting Dr. Brown's opinion, the ALJ cited inconsistencies with the medical evidence of record, including Dr. Madison's opinion. Id. However, the ALJ failed to consider that Plaintiff sought treatment from Dr. Brown due to a car accident that occurred six months after she saw Dr. Madison, and Dr. Brown clearly stated that Plaintiff's condition had deteriorated due to the accident. See AR 352. The other evidence cited by the ALJ as inconsistent with Dr. Brown's opinion was a medical record dated May 17, 2016, in which the ALJ claims that Plaintiff "reported her pain was 0 on a scale of 1 to 10" and "reported no functional limitations." AR 29 (citing AR 368). This medical note, however, regards an appointment to remove a mass in Plaintiff's neck; it did not relate to either Plaintiff's fibromyalgia or her back pain. See AR 366-77. It is also reasonable to conclude that Plaintiff's reported lack of pain was specific to the mass. See AR 373 ("Denied any sore throat, but said the mass was tender to touch at times."). Finally, the record does not actually reflect that Plaintiff "reported no functional limitations"; instead the question presented was whether Plaintiff's "ability to perform [certain listed] activities has declined in the past seven days." AR 368. As such, the undersigned cannot confidently say that substantial evidence supports the ALJ's determination that Dr. Brown's opinion was "inconsistent with substantial evidence in the file." See AR 29; cf. Garcia v. Colvin, No. CIV-14-363-CG, 2015 WL 5730395, at *6 (W.D. Okla. Sept. 30, 2015) (finding lack of substantial evidence "based on the volume of errors and contradictions at issue" in ALJ's decision); see Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (discussing harmless error in social security appeals and holding that such a principle applies only where the court can "confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way").
The ALJ incorrectly stated that Dr. Brown reported that he had treated Plaintiff since January 24, 2015; in fact, Dr. Brown reported that he had begun treatment July 24, 2015. Compare AR 29, with AR 351; see also AR 348 (stating that motor vehicle accident occurred June 24, 2015). --------
The ALJ neither included in the RFC any limitation for Plaintiff's inability to handle or finger, nor adequately explained why he disagreed with record evidence indicating that such limitations were required. Accordingly, the RFC assessment is not supported by substantial evidence and the matter should be remanded for further consideration of Plaintiff's limitations and their effect on Plaintiff's ability to work. See SSR 96-8p, 1996 WL 374184, at *7; Clifton, 79 F.3d at 1009-10.
B. Plaintiff's remaining points of error
The undersigned does not address Plaintiff's other allegations as they "may be affected by the ALJ's treatment of the case on remand." See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
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 October 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. See 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 October, 2018.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE