Opinion
Civil Action No. 03-2435-CM.
October 7, 2004
MEMORANDUM AND ORDER
This case involves a claim for disability benefits under Title II and XVI of the Social Security Act. On June 24, 2003, after an administrative hearing, an administrative law judge (ALJ) found that plaintiff was not disabled. The Appeals Council of the Social Security Administration subsequently denied plaintiff's request for review of the ALJ's decision and, as such, the decision of the ALJ stands as the Commissioner's final decision.
I. Background
Plaintiff protectively filed his application for disability benefits under Title II on March 1, 2001, and for supplemental security income (SSI) under Title XVI on March 8, 2001. Plaintiff alleged he became disabled beginning September 1, 2000. At his administrative hearing on June 9, 2003, plaintiff amended the date of alleged disability onset to December 26, 2002. In his Disability Report, plaintiff alleged disability due to injuries to his back and right shoulder caused by an automobile accident.
After hearing the matter, the ALJ found the following: 1) plaintiff has not engaged in substantial gainful activity since the alleged onset; 2) plaintiff has the following "severe" impairments: status post right rotator cuff with residual right shoulder deficits, hip and low back deficits secondary to chronic pain, and a history of pancreatitis; 3) plaintiff's allegations regarding his limitations are not totally credible; 4) plaintiff's residual functional capacity (RFC) is consistent with the ability to lift and carry 20 pounds with his left upper extremity, however, in his dominant right upper extremity, claimant cannot lift or carry above shoulder level and should only lift to chest level, plaintiff is able to grip and grasp occasionally using his right hand and also is able to lift 10 pounds frequently and 20 pounds occasionally with his right upper extremity, but not above shoulder level, plaintiff should not climb ladders and requires a sit/stand option, plaintiff can walk approximately two blocks on a level surface and can bend and climb stairs occasionally, and plaintiff has no memory or concentration deficits; 5) plaintiff cannot perform any of his past relevant work; and 6) plaintiff can perform other jobs found in significant numbers in the national economy, including work as microfilm duplicator, laundry folder, and clothes sorter. The ALJ accordingly found that plaintiff was not disabled and was not under a disability, as defined by the Social Security Act. Plaintiff argues that the ALJ did not apply the correct legal standard in assessing plaintiff's RFC.
II. Plaintiff's Medical History
Plaintiff was treated in the emergency room on September 27, 2000, following a motor vehicle accident. Physical examination revealed tenderness in the neck, back and right elbow, with full range of motion and intact strength and sensation. William Anderson, M.D., diagnosed multiple contusion and strain injuries. Physical examination by Arthur Taliaferro, M.D., on September 28, 2000, revealed spastic musculature in the neck, right shoulder and low back, limitation of motion in the shoulder with pain above the shoulder level, and limitation of motion in the back. Dr. Taliaferro noted continued improvement in reported tenderness and muscle spasm in the low back and in range of motion in the right shoulder and low back throughout October 2000. A lumbar spine x-ray on October 4, 2000, was negative, and Dr. Taliaferro noted generalized stiffness and soreness. On November 3 and November 6, 2000, plaintiff had increased pain and limitation of motion in the lumbar musculature and decrease in right shoulder range of motion. By January 26, 2001, plaintiff reported he was "generally doing pretty good" and had increased his activities. Dr. Taliaferro noted tenderness and spasm in the lumbar muscles and limitation of motion.
On March 22, 2001, plaintiff reported an increase in symptoms with any activities, and Dr. Taliaferro reported tenderness in the lumbar region, limitation of motion of the hip and difficulty moving from a seated to a standing position. By March 26, 2001, Dr. Taliaferro noted plaintiff walked with a limp and was unable to perform activities requiring repeated bending and had difficulty sitting in an upright chair for more than 15 to 20 minutes. A right hip x-ray on that day revealed no abnormalities.
On May 7, 2001, plaintiff was admitted to the hospital with severe abdominal pain. Physical examination by Dr. Taliaferro revealed no tenderness or musculoskeletal abnormalities, but a history of a recent back and extremity injury. Dr. Taliaferro diagnosed pancreatitis.
A right shoulder x-ray on January 13, 2002, revealed no significant abnormality. A magnetic resonance imaging (MRI) scan of the right shoulder on April 16, 2002, demonstrated minimal edema without definite evidence of a tear. Physical examination by Dr. Taliaferro on May 6, 2002, revealed tenderness in the right shoulder and biceps area. Plaintiff began physical therapy for his right shoulder pain in May 2002, with limitation of motion and strength, and reported slight improvement by June 5, 2002.
Physical examination by Prem Parmar, M.D., on May 9, 2002, revealed limitation of motion, decreased strength, tenderness, and some crepitus in the right shoulder. Plaintiff's hands were neurovascularly intact to motor strength and sensation. An x-ray of the right shoulder revealed degenerative changes of the acromioclavicular joint.
On June 13, 2002, Dr. Parmar noted plaintiff had a positive impingement test, but no tenderness and full range of motion in the right shoulder. On July 2, 2002, Dr. Taliaferro reported plaintiff's complaints of back pain and limitation of ability to walk and stand, but no objective examination findings. Physical examination by Dr. Parmar on July 29, 2002, showed normal range of motion, no instability, normal strength and sensation in the right upper extremity. On August 2, 2002, Dr. Parmar performed arthroscopic surgery on plaintiff's right shoulder, due to right rotator cuff tendinitis and osteoarthritis of the acromioclavicular joint.
On follow-up on August 8, 2002, Dr. Parmar noted plaintiff was "doing pretty good" and plaintiff was directed to perform exercises at home. On September 6, 2002, Mark Maguire, M.D., an associate of Dr. Parmar, noted plaintiff sometimes held his arm stiffly and other times gestured and moved it freely. On September 17, 2002, a right shoulder x-ray showed no acute bony abnormality. Physical examination revealed tenderness and hypersensitivity and limitation of motion.
Physical examination by Dr. Parmar on September 30, 2002, revealed limitation of motion of the right shoulder due to pain. Plaintiff continued to resist formal physical therapy due to financial reasons. On October 17, 2002, Dr. Parmar continued to note limitation of motion and ordered plaintiff to attend formal physical therapy, as he was not performing the required exercises on his own. Plaintiff began physical therapy, and Dr. Parmar noted slight improvement in range of motion and no tenderness by November 11, 2002.
Dr. Taliaferro saw plaintiff on three occasions from October 2002 through February 2003, and noted limitation of motion in the back and right shoulder and muscle spasm in the low back. On December 9, 2002, Dr. Parmar reported plaintiff was progressing with physical therapy and examination showed tenderness in the right shoulder with improved range of motion. On January 9, 2003, Dr. Parmar noted plaintiff continued to improve with physical therapy, but still had some pain and crepitus, and plaintiff opted for a second surgical procedure.
Dr. Parmar performed an arthroscopic shoulder surgery on February 4, 2003. By February 10, 2003, Dr. Parmar noted plaintiff was "doing well," and plaintiff reported his shoulder "feels better already." An x-ray showed "what looks like to be appropriate resections." Physical examination by Dr. Parmar on March 6, 2003, revealed tenderness, mild limitation of motion, and intact sensation and motor strength.
On the same day, Dr. Parmar completed a physical medical source statement (MSS) (Tr. 360-64). Dr. Parmar stated plaintiff had no limitations in his lower extremities, and had no need to lie down or recline during an eight-hour workday. Plaintiff could lift 6 to 20 pounds occasionally and 1 to 5 pounds frequently. Dr. Parmar indicated plaintiff could reach occasionally with his right arm and constantly with his left arm and could constantly handle and finger with both hands.
At administrative hearings on February 13, 2003, and June 9, 2003, plaintiff testified he was 50 years old and had completed the seventh grade. Plaintiff reported pain in his back and right shoulder. He stated he laid down three to four times per day due to pain in his back and that he had difficulty reaching with his right arm above chest level. Plaintiff indicated he could lift about 15 pounds with his right arm, stand for approximately 15 minutes, sit for 25 to 30 minutes.
Selbert Chernoff, M.D., a board-certified specialist in internal medicine, testified at the June 2003 hearing as a medical expert. Dr. Chernoff stated plaintiff had a rotator cuff injury with surgery in August 2002, and some limitation and pain, and limitation of lifting and overhead work would be expected from that surgery. Dr. Chernoff further testified that there was some back impairment with persistent complaints and treatment, but without a clear diagnosis and that, accordingly, the record contained no medical basis for plaintiff's assertion of a need to lie down. Dr. Chernoff opined plaintiff's impairments did not meet or equal the criteria of any Listing. Dr. Chernoff stated plaintiff could lift 20 pounds occasionally and 10 pounds frequently, but could not carry items above his head or shoulders on the right side and that plaintiff would need a sit/stand option, changing position every 30 minutes, and could walk no more than a couple of blocks. Plaintiff had no limitations on the ability to squat or climb stairs, but should avoid ladders. Plaintiff could occasionally grip items with his right hand, and had no limitation of gripping with his left hand. Dr. Chernoff stated that plaintiff could occasionally stoop and bend.
George Robert McClellan testified as a vocational expert at the administrative hearing. The ALJ posed a hypothetical question to the vocational expert, which assumed an individual of plaintiff's age, education and work history. The individual could lift or carry only up to chest level and occasionally grip and grasp with the right arm, up to 10 pounds frequently and 20 pounds occasionally. The individual could occasionally bend and climb stairs, but could not climb ladders. The individual required the ability to alternate between sitting and standing at 30 to 60 minute intervals and could occasionally walk two blocks on a level surface. The vocational expert testified such an individual could perform positions as a clothes sorter, laundry folder or duplicating machine microfiche mounter.
III. Standards
Pursuant to 42 U.S.C. § 405(g), a court may render "upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." The court reviews the decision of the Commissioner to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision. Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). The Supreme Court has held that "substantial evidence" is "more than a mere scintilla" and is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389 (1971). In reviewing the record to determine whether substantial evidence supports the Commissioner's decision, the court may neither reweigh the evidence nor substitute its discretion for that of the Commissioner. Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992). Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Holloway v. Heckler, 607 F. Supp. 71, 72 (D. Kan. 1985).
The court also reviews the decision of the Commissioner to determine whether the Commissioner applied the correct legal standards. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). The Commissioner's failure to apply the proper legal standard may be sufficient grounds for reversal independent of the substantial evidence analysis. Id. The court thus reviews the decision of the Commissioner to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision and whether the correct legal standards were applied. Hamilton v. Sec'y of Health Human Servs., 961 F.2d 1495, 1497 (10th Cir. 1992).
To determine disability, the Commissioner uses a five-step sequential evaluation. The Commissioner determines: (1) whether the claimant is presently engaged in "substantial gainful activity"; (2) whether the claimant has a severe impairment, one that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work experience); (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.
IV. Discussion
In this case, the ALJ found plaintiff's severe impairments were status post right rotator cuff with residual right shoulder deficits, hip and low back deficits secondary to chronic pain, and a history of pancreatitis, but plaintiff did not have an impairment or combination of impairments listed in or medically equal to one contained in 20 C.F.R. pt. 404, subpt. P, app. 1. Because plaintiff did not retain the RFC to perform his past relevant work, the burden of production shifted to the Commissioner to produce evidence of jobs in the national economy that could be performed by a person with plaintiff's RFC and vocational skills. The ALJ found that, while plaintiff's impairments would preclude him from performing his past relevant work, they would not prevent him from performing other work existing in substantial numbers in the national economy.
The central issue in this case is the determination of plaintiff's RFC. Plaintiff argues the ALJ improperly discounted the opinion of Dr. Parmar, his treating physician, and instead credited the findings of Dr. Chernoff, a consultive doctor, who rendered a medical opinion based upon a review of the medical records.
Interestingly, the ALJ ultimately found plaintiff had more limitations than those found by Dr. Parmar in most functional areas. Based upon Dr. Chernoff's opinion, the ALJ found plaintiff had limitations of his abilities to sit, stand and walk, which were not reported by Dr. Parmar. The ALJ also limited plaintiff's ability to grip and grasp with his right hand to occasionally, while Dr. Parmar found plaintiff could constantly handle and finger with both hands. The only apparent discrepancy between Dr. Parmar's opinion and Dr. Chernoff's opinion was the difference between lifting 1 to 5 pounds frequently or 10 pounds frequently.
A treating physician's opinion is entitled to great weight because it "reflects expert judgment based on continuing observation of a patient's condition over a prolonged period of time." Williams v. Chater 923 F. Supp. 1373, 1379 (D. Kan. 1996); see also Velasquez v. Apfel, 28 F. Supp. 2d 1285, 1287 (D. Colo. 1998) (because the treating doctor had followed claimant for many years, he was in a superior position to evaluate claimant's restrictions and accordingly his opinion should have been afforded special weight). The law of the Tenth Circuit requires that the treating physician's opinion be given substantial weight unless good cause is shown to disregard it. Goatcher v. United States Dep't of Health Human Servs., 52 F.3d 288, 289-90 (10th Cir. 1995). Treating physicians' "opinions are binding upon the ALJ `unless they are contradicted by substantial weight to the contrary.'" Hintz v. Chater, 913 F. Supp. 1486, 1492 (D. Kan. 1996) (quoting Claassen v. Heckler, 600 F. Supp. 1507, 1512 (D. Kan. 1985)).
When a treating physician's opinion is inconsistent with other medical evidence, the ALJ's task is to examine the other physicians' reports to see if they outweigh the treating physician's reports. Goatcher, 52 F.3d at 289-90. Consulting and non-treating physician's opinions are of suspect reliability and, if improperly given greater weight than the opinions of the treating physician, may be grounds for reversal. See Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987) (non-treating physician's opinions are of suspect reliability). The Tenth Circuit requires the ALJ to consider the following: 1) the length of the treatment relationship and the frequency of the examination; 2) the nature and extent of the treatment relationship, including treatment provided and the kind of examination or testing performed; 3) the degree to which the physician's opinion is supported by relevant evidence; 4) consistency between the opinion and the record as a whole; 5) whether the physician is a specialist in the area upon which the opinion is rendered; and 6) other factors brought to the ALJ's attention which tend to support or contradict that opinion. Goatcher, 52 F.3d at 290 (citing 20 C.F.R. § 404.1527).
In the instant case, the final decision of the ALJ does not indicate which of these factors, if any, he considered in rejecting the opinion of Dr. Parmar, plaintiff's treating physician, on questions relating to plaintiff's lifting restrictions. This failure leads the court to conclude the ALJ failed to give Dr. Parmar's opinions the weight due under Goatcher.
In rejecting the opinion of plaintiff's treating physician, the ALJ erroneously concluded plaintiff had an RFC consistent with the ability to lift ten pounds frequently with his right upper extremity. Upon remand, the ALJ should either accord substantial weight to the opinion of plaintiff's treating physician, Dr. Parmar, or give specific, legitimate reasons for disregarding Dr. Parmar's opinion. If necessary, the ALJ should then proceed to step five of the evaluation process to determine if, given plaintiff's RFC, jobs exist within the regional or national economy that he could perform.
IT IS THEREFORE ORDERED that the judgment of the commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings not inconsistent with this memorandum and order.