Opinion
Case No. 01-1239-JAR
September 20, 2002
MEMORANDUM AND ORDER ADOPTING RECOMMENDATION AND REPORT
The Commissioner of Social Security denied Plaintiff's application for disability insurance benefits under § 223 of the Social Security Act ("Act"). Plaintiff sought review of the Administrative Law Judges's (ALJ) decision and the Honorable John Thomas Reid issued a Recommendation and Report (Doc. 13) which found that the decision of the Commissioner should be reversed and the case remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g). Judge Reid found that: on remand the ALJ must consider Dr. Schwartz's opinion and GAF score and explain how those factors are consistent with a finding that Plaintiff's mental impairment is not "severe" pursuant to the de minimus standard; the ALJ's determination that Plaintiff's carpal tunnel release surgery was successful has no support in the evidence and remand is necessary to allow the ALJ to consider the treating physician's opinion without the added weight of the erroneously asserted "fact;" remand is necessary for the ALJ to consider Plaintiff's allegations of disabling back pain. Regarding Plaintiff's allegations of upper extremity pain and limited use of her hands, the ALJ determined that Plaintiff's allegations were not credible because: (1) Plaintiff was released by her treating physician to return to light work on August 26, 1999; (2) Plaintiff received successful carpal tunnel surgery on her left hand; (3) Plaintiff's hearing testimony of greatly restricted activities was inconsistent with her prior statements; (4) the medical evidence does not support the degree of severity alleged by Plaintiff; and (5) Plaintiff is taking medications and experiencing no significant side effects. Judge Reid found that of the ALJ's stated reasons for discrediting Plaintiff's allegations of pain: (1) the first reason is supported by substantial evidence in the record only if on remand the ALJ may properly discredit the opinion of Plaintiff's treating physician after October 1999; (2) the second reason is supported by no evidence in the record; (3) the third reason is supported by substantial evidence in the record; (4) the fourth reason is supported by substantial evidence in the record; and (5) the fifth reason is supported by substantial evidence in the record but is not probative of whether Plaintiff's testimony is credible.
Record at 16.
Therefore, remand is necessary for the ALJ to consider the credibility of Plaintiff's allegations of disabling symptoms after the ALJ performs a new step two determination applying the proper standard and after the ALJ determines what weight to give to the opinion of Plaintiff's treating physician based upon substantial evidence in the record.
The matter is currently before the Court upon Plaintiff's Objections to Report and Recommendation of Magistrate Judge (Doc. 14). The standards this Court must employ when reviewing objections to the recommendation and report are clear. Only those portions of the recommendation and report that have been specifically identified as objectionable will be reviewed. The review of those identified portions is de novo and the Court must "consider relevant evidence of record and not merely review the magistrate judge's recommendation." Plaintiff objects to the Recommendation and Report with respect to the suggested rulings that the ALJ properly relied on inconsistencies to reject the opinion of her treating physician; properly evaluated medical tests in the analysis of Plaintiff's pain; and properly relied on allegedly inconsistent statements of Plaintiff about her activities to find that she was not credible.
See Garcia v. City of Albuquerque, 232 F.3d 760, 767 (10th Cir. 2000); Gettings v. McKune, 88 F. Supp.2d 1205, 1211 (D.Kan. 2000).
See Griego v. Padilla, 64 F.3d 580, 584 (10th Cir. 1995) (citation omitted).
Treating Physician Inconsistencies
The ALJ failed to give the treating physician's (Dr. Murati) opinion controlling weight. Plaintiff objects to Judge Reid's finding that the ALJ properly relied on inconsistencies to reject the opinion of her treating physician. Plaintiff argues that Judge Reid fashioned a rationale for rejecting Dr. Murati's opinion based on Dr. Murati's failure to connect, in his treatment notes, his changed opinion with the May 18, 2000 nerve conduction test findings of bilateral carpal tunnel and C6 radiculopathy. Plaintiff argues that the ALJ did not mention those test results anywhere in his decision. Plaintiff argues that those test results were central to Plaintiff's case and there is no way of knowing how the ALJ would have evaluated Dr. Murati's changed opinion if the ALJ had not overlooked the May 18 test results. This Court agrees with Judge Reid's finding that remand is necessary to allow the ALJ to consider the treating physician's opinion without the added weight of the erroneously asserted fact that Plaintiff's carpal tunnel surgery was successful. Judge Reid states that "[o]n remand, the ALJ may need to receive evidence regarding the effect of plaintiff's surgery, and of the surgery on her right hand, if done. The ALJ may also need to update medical records and treatment notes from Dr. Murati." Because the case is being remanded to further address the treating physician's opinion, the Court finds that the ALJ should also address the May 18, 2000 test results when reconsidering the treating physician's opinion.
Treatment of Medical Tests in Pain Analysis
Plaintiff argues that nowhere in the pain analysis did the ALJ consider the May 18, 2000 positive objective medical test results that were the medical basis for Dr. Murati's changed opinion. Plaintiff argues that his omission prejudices stage three of the ALJ's pain analysis, where he is required to consider all of the evidence in assessing Plaintiff's credibility. Because the Court has already indicated that the ALJ should address the May 18, 2000 report when considering the treating physician's opinion, the ALJ should likewise indicate whether such report changes the ALJ's stage three analysis.
Reliance on Inconsistent Statements of Plaintiff
The ALJ determined that Plaintiff's allegations of upper extremity pain and limited use of her hands were not credible. One reason for the determination was that Plaintiff's hearing testimony of greatly restricted activities was inconsistent with her prior statements. Judge Reid found that substantial evidence supports the ALJ's determination that there are inconsistencies between Plaintiff's answers on the questionnaires and her testimony at the hearing. Plaintiff has objected to this finding. The Court has conducted a de novo review, considering the relevant evidence of record, and agrees with the Magistrate Judge's findings.
Plaintiff's objections, other than those regarding the May 18, 2000 test result as set forth above, are overruled based on the Court's de novo review, considering the relevant evidence of record. The Court accepts the May 17, 2002 Recommendation and Report (Doc. 13) and adopts it as its own, with the additional requirement that the ALJ consider the May 18, 2000 test results.
IT IS THEREFORE ORDERED that Plaintiff's Objections to Report and Recommendation of Magistrate Judge (Doc. 14) shall be GRANTED IN PART AND OVERRULED IN PART.
IT IS FURTHER ORDERED that case be reversed and remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with this Memorandum and Order Adopting Recommendation and Report.
IT IS SO ORDERED.