Opinion
Case No. CIV-18-660-F
03-12-2019
JAMES MOODY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
James Moody (Plaintiff) brings this action for judicial review of the Defendant Commissioner of Social Security's final decision he was not "disabled" under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Stephen P. Friot has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed. R. Civ. P. 72(b). Following a careful review of the parties' briefs, the administrative record (AR) and the relevant authority, the undersigned recommends the court affirm the Commissioner's decision.
For the parties' briefs, the undersigned's page citations refer to this Court's CM/ECF pagination. Page citations to the AR refer to that record's original pagination.
I. Administrative determination.
A. Disability standard.
The Social Security Act defines "disability" as the "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). "This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff "bears the burden of establishing a disability" and of "ma[king] a prima facie showing that he can no longer engage in his prior work activity." Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. Administrative Law Judge's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 11-22; see 20 C.F.R. § 404.1520(a)(4), see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found Plaintiff:
(1) had not engaged in substantial gainful activity since his alleged onset date of June 14, 2012;AR 14-22.
(2) had the severe impairments of gout; arthritis; schizophrenia, undifferentiated; major depressive disorder, recurrent, severe, without psychotic features; and cannabis abuse, unspecified;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he can lift/carry/push and pull 20 pounds occasionally and 10 pounds frequently; he never can climb ladders, ropes or scaffolds or crawl; he can push or pull occasionally with the upper extremities and occasionally can reach overhead; and he can understand, remember, and carry out simple and detailed instructions;
(5) could perform his past relevant work as a laundry worker and a fast food worker;
(6) was not disabled.
Residual functional capacity "is the most [a claimant] can still do despite [a claimant's] limitations." 20 C.F.R. § 404.1545(a)(1).
2. Appeals Council's findings.
The SSA's Appeals Council denied Plaintiff's request for review on May 9, 2018, so the ALJ's unfavorable decision is the Commissioner's final decision in this case. AR 1-5; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's final decision.
A. Review standard.
The court reviews the Commissioner's final decision to determine "whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards." Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). In applying that standard, the court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (internal quotation marks omitted).
B. Issues for judicial review.
Plaintiff contends that the ALJ (1) failed to properly weigh the opinion of Lonnie Litchfield, MD, and (2) relied upon "stale" evidence when formulating the RFC. Doc. 17, at 3-9.
1. ALJ's evaluation of Dr. Litchfield's examination.
Plaintiff argues that the ALJ erred by failing to assign weight to the April 2015 examination of Dr. Litchfield and contends that Dr. Litchfield's report contained additional functional limitations concerning Plaintiff's neck and shoulders that the ALJ should have considered when assessing the RFC. Id. at 3-5. Plaintiff argues that given the findings contained in Dr. Litchfield's report, the ALJ should have found that Plaintiff would "necessarily have difficulty looking up, down, and side-to-side, and made provisions in the RFC to address this difficulty." Id. at 5-6.
Dr. Litchfield examined Plaintiff on two occasions, once in December 2014 and again in April 2015. AR 449-53, 462-65. Dr. Litchfield's findings during the second examination are at issue here. After examining Plaintiff's neck, Dr. Litchfield noted that
Physical examination of the cervical spine reveals muscle spasms are palpable in the bilateral paraspinal musculature from C3 through C7. Cervical range of motion is restricted in all planes. Weakness against resistance is demonstrated in the cervical flexors and extensors. Decreased sensation is noted in the CS and C6 dermatomes of the bilateral upper extremities, worse on the right. The Foraminal Compression test is positive for pain into his bilateral arms, again worse on the right.Id. at 464. After examining Plaintiff's right and left shoulders, Dr. Litchfield found that
Physical examination of the right shoulder reveals that tenderness to palpation is present in the anterior and posterior shoulder girdle. Range of motion is restricted in all planes. Significant weakness against resistance is demonstrated in all in all planes, especially flexion, abduction, and internal rotation. Crepitation is palpable throughout active and passive range of motion. Significant
posterior instability is exhibited. Supraspinatus Press test is positive. Impingement sign is positive. There are well healed surgical incisions on the right shoulder due to the three separate surgical procedures.Id. In assessing the extent of Plaintiff's musculoskeletal impairments, Dr. Litchfield found that Plaintiff had
Physical examination of the left shoulder reveals that tenderness to palpation is present in the anterior and posterior shoulder girdle. Range of motion is restricted in all planes. Weakness against resistance is demonstrated in all planes, especially flexion, abduction, and internal rotation. Crepitation is palpable throughout active and passive range of motion. Posterior instability is exhibited, Supraspinatus Press test is positive. Impingement sign is positive.
1. Cumulative injury to the right shoulder resulting in anatomical abnormalities consistent with AC joint arthritis, rotator cuff tendonitis, and a supraspinatus tear per the MRI scan.Id. at 464-65. Dr. Litchfield found that Plaintiff was "temporarily totally disabled" and that Plaintiff would "remain temporarily disabled for an undetermined amount of time pending further medical evaluation and treatment." Id. at 465.
2. Post-status three surgical procedures to the right shoulder.
3. Exacerbation of pre-existing cumulative injury to the right shoulder resulting in anatomical abnormalities consistent with AC joint arthritis, rotator cuff tendonitis, and/or a re-current supraspinatus tear.
4. Cumulative injury to the left shoulder resulting in anatomical abnormalities consistent with a full-thickness rotator cuff tear per the MRI scan with worsening symptoms.
5. Cumulative injury to the cervical spine resulting in anatomical abnormalities due to probable disc bulges resulting clinically in C5 and C6 neuropathy.
Dr. Litchfield reached similar conclusions following his examination of Plaintiff in December 2014. Utilizing worker's compensation guidelines, Dr. Litchfield found that Plaintiff had a 64 percent "permanent partial impairment to his right shoulder," and a 47 percent "permanent partial impairment to his left shoulder." AR 452.
The ALJ briefly noted that she considered the exhibits containing Dr. Litchfield's assessments, but did not discuss either of Dr. Litchfield's examinations in the body of the hearing decision and did not specifically include Plaintiff's shoulder or cervical impairments among Plaintiff's severe impairments, instead classifying Plaintiff's musculoskeletal impairments as gout and arthritis. Id. at 14, 18.
In assessing the functional impact of Plaintiff's impairments, the ALJ instead relied heavily on the hearing testimony of independent medical expert Charles Murphy, MD, who testified that he had reviewed the bulk of the medical record, including the examinations conducted by Dr. Litchfield. Id. at 14, 35-37. During his hearing testimony, Dr. Murphy discussed Plaintiff's shoulder and cervical impairments, noting that Plaintiff's impairments included
shoulder impairments, a work-related injury, and both shoulders appear to be involved, but the right shoulder has been the main source of attention. The MRI scans back in 2012 showed some basic degenerative arthritis and rotator cuff tear bilaterally. [Plaintiff] has had, it appears, three surgeries on the right and one was September of '12. And then we have March of '14 and July of '14. [Plaintiff], following this, had MRIs -- well, there was -- the MRIs were earlier. Let's see. Yeah. Anyway, there was also an impairment of some cervical degenerative joint disease. Now, the Claimant had an FCE for medium work in November of 2014. And now the treating doctor agreed with that. [Plaintiff] then in April of 2015 developed some worsening symptoms of the right shoulder. And that really is - that's about the last record I have for -- with regard to the shoulder, I don't think we have anything recent.Id. at 36. When asked by the ALJ to formulate an RFC based on his review of the medical record, Dr. Murphy assessed a physical RFC identical to the one ultimately adopted by the ALJ. Id. at 16-17, 37. The ALJ considered Dr. Murphy's testimony when assessing the RFC and assigned more weight to his opinion than to the opinions of the state agency consultants. Id. at 20. The ALJ reasoned that Dr. Murphy's opinion took into consideration Plaintiff's postural and manipulative limitations, and was supported by the medical record, including additional evidence received at the hearing level. Id. The ALJ further reasoned that Dr. Murphy offered "detailed testimony" that showed he had "reviewed the evidence carefully and his orthopedic specialty is unmatched in the record and entitled to additional weight given the particular impairments in this case." Id.; see id. at 14.
Assessing the validity of the medical expert's testimony, and the consistency of that testimony with the evidence, is reserved for the ALJ. See Allman v. Colvin, 813 F.3d 1326, 1333 (10th Cir. 2016) ("The ALJ was entitled to resolve such evidentiary conflicts and did so.") (citing Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (noting that "the ALJ is entitled to resolve any conflicts in the record")). While the ALJ did not offer an independent assessment of Dr. Litchfield's examinations, she properly relied upon the testimony of the medical expert, who did consider Dr. Litchfield's examinations and the impact of Plaintiff's cervical and shoulder impairments.
An ALJ must "give consideration to all the medical opinions in the record [and] discuss the weight he assigns to such opinions." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted). "When assessing a medical opinion, the ALJ must consider the factors listed in 20 C.F.R. § 404.1527(c) and give good reasons for the weight he assigns to the opinion." See Vigil v. Colvin, 805 F.3d 1199, 1202 (10th Cir. 2015); 20 C.F.R. § 404.1527(c)(2).
In this case, Plaintiff argues that the ALJ erred by not assigning weight to the findings in Dr. Litchfield's April 2015 examination report. Doc. 17, at 5. Plaintiff's argument fails because Dr. Litchfield's examination report does not contain a "medical opinion" as defined by Social Security regulations. Social Security regulations define "medical opinions" as "statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1). For an ALJ to evaluate and assign weight to a medical opinion, a physician must provide a "judgment" about the nature and severity of a claimant's limitations or "information" about the activities he or she could still perform despite these limitations. Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir. 2008) (noting that without "judgment about the nature and severity of [Plaintiff's] physical limitations," the statement of a doctor was not a "true medical opinion").
Dr. Litchfield's report includes the results of his physical examination of Plaintiff, a finding that Plaintiff required additional evaluation with respect to his shoulder and neck impairments, and a conclusion that Plaintiff sustained his neck and shoulder injuries while at work. AR 464-65. However, Dr. Litchfield's report does not offer an opinion concerning what, if any, functional limitations would result from Plaintiff's physical impairments. The only disability related finding in Dr. Litchfield's report is his conclusion that Plaintiff was "temporarily totally disabled." Id. at 465.
A conclusion that an individual is "temporarily totally disabled", rendered under workers' compensation guidelines, is not binding on an ALJ applying Social Security disability regulations. See Freeman v. Astrue, 441 F. App'x 571, 574 (10th Cir. 2011) ("[T]he fact that two doctors, retained for workers'-compensation purposes, found [Plaintiff] to be totally temporarily disabled is not a conclusion binding on the ALJ."). Further, under Social Security regulations, the finding that an individual is "disabled" is a matter reserved for the Commissioner of Social Security. 20 C.F.R. § 404.1527(d)(1) ("[The SSA is] responsible for making the determination or decision about whether you meet the statutory definition of disability. In so doing, we review all of the medical findings and other evidence that support a medical source's statement that you are disabled. A statement by a medical source that you are "disabled" or "unable to work" does not mean that we will determine that you are disabled.").
2. ALJ's reliance on "stale" evidence.
Plaintiff contends that by relying on Dr. Murphy's hearing testimony, the ALJ erred by relying upon "stale" evidence. Specifically, Plaintiff cites Dr. Murphy's statement that the last available evidence concerning Plaintiff's shoulder impairment appeared to be from April 2015. Doc. 17, at 6-7; AR 36. Plaintiff argues that Dr. Murphy's statement constitutes an acknowledgement that the medical record ended with a worsening of Plaintiff's condition and did not contain "more recent medical records to indicate that [Plaintiff's condition] either stopped degrading, or improved." Doc. 17 at 7. Plaintiff notes that despite Dr. Litchfield's recommendation, no additional evaluations of Plaintiff's cervical spine and shoulder were conducted after April 2015 (apart from January 2017 x-rays). Id. at 8.
Dr. Murphy testified at the administrative hearing on January 23, 2017. AR 11. At that hearing, Dr. Murphy had access to exhibits 1F through 15F. Id. at 35. Additional information, constituting exhibits 16F through 21F, was entered into the record after the hearing. Id. at 11, 517-546. Much of this evidence contains no additional information about Plaintiff's physical impairments.
Exhibit 16F is a copy of Dr. Murphy's curriculum vitae. AR 517-20. Exhibit 18F is a blank interrogatory form intended for Daniel Lonowski, PhD. Id. at 536-37. Exhibit 19F contains a list of Dr. Lonowski's professional qualifications. Id. at 538. Exhibit 20F contains treatment notes related to Plaintiff's mental impairments. Id. at 539-43. Exhibit 21F contains the same interrogatory form included in Exhibit 18F but contains Dr. Lonowski's responses to the interrogatories. Id. at 544-46. --------
Plaintiff draws the Court's attention to Exhibit 17F, specifically a series of x-ray of Plaintiff's spine and right shoulder taken on January 20, 2017 following an automobile accident. Doc. 17 at 8. The x-ray of Plaintiff's right shoulder revealed no acute osseous abnormalities. AR 532. X-rays of Plaintiff's lumbar and thoracic spine revealed no compression deformities or subluxation. Id. at 533-34. An x-ray of Plaintiff's cervical spine similarly revealed no acute compression deformity or subluxation, but also indicated that Plaintiff had a straightening of the normal lordosis which could be seen with muscle spasm/splinting following Plaintiff's injury. AR 535. In evaluating this evidence, the ALJ concluded that following Plaintiff's injury
there is no indication that [Plaintiff] returned consistently, as there is only one subsequent visit following this consultation (Exhibit 17F, p. 10). This likely shows that his symptoms were acute in nature and resolved in whole or in large part following his initial presentation.Id. at 19. Plaintiff contends that the ALJ erred by assuming that Plaintiff's symptoms resolved given that only three days passed between Plaintiff's x-rays on January 20, 2017 and the administrative hearing on January 23, 2017. Doc. 17, at 8-9. Plaintiff further argues that the scarcity of more recent evidence relating to Plaintiff's shoulder and cervical impairments "should have triggered" the ALJ's duty to develop the record further. Id. at 9-10.
Following Plaintiff's accident, Plaintiff's physician treated his injuries with medication, hot/cold gel packs, physiotherapy, and a memory foam pillow. AR 531. In reaching the conclusion that Plaintiff's symptoms "resolved in whole or in large part following his initial presentation," the ALJ appears to have relied upon Plaintiff's relatively unremarkable x-ray results and the conservative treatment plan outlined by Plaintiff's physicians. Id. at 19. The record is unclear as to whether the injuries Plaintiff sustained in his automobile accident would result in any long-term functional limitations. The ALJ's reasoning about Plaintiff's recovery may or may not be accurate, but it is based on the evidence available, and Plaintiff did not submit any additional evidence to the ALJ or to the Appeals Council to indicate that his condition worsened.
While an ALJ has a duty to ensure that the record is adequately developed, an ALJ does not need to further develop the record where there exists sufficient information on which to base a disability determination. See Cowan, 552 F.3d at 1187 (holding that "there was no need to further develop the record because sufficient information existed for the ALJ to make her disability decision"); 20 C.F.R. § 404.1512(e). Here, there was sufficient evidence for the ALJ to make such a determination. The ALJ had access to the entire treatment record, the opinions of two state agency consultants, the opinion of a medical expert who reviewed the evidence, and the opinion of a vocational expert. Further, when a claimant is represented by counsel at an administrative hearing, the ALJ should ordinarily be entitled to rely on the claimant's counsel to structure and present claimant's case in a way that the claimant's claims are adequately explored. Hawkins v. Chater, 113 F.3d 1162, 1167-68 (10th Cir. 1997) (holding that the court "in a counseled case, an ALJ may ordinarily require counsel to identify the issue or issues requiring further development . . . [and] in absence of such a request by counsel" no duty will be imposed on the ALJ to order examination). Here, Plaintiff's attorney submitted additional exhibits after the hearing, which the ALJ reviewed, but did not request any additional development related to Plaintiff's impairments.
III. Recommendation and notice of right to object.
For the reasons discussed above, the undersigned recommends the entry of judgment affirming the Commissioner's final decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by April 2, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.
ENTERED this 12th day of March, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE