Foreman v. Social Security Administration, No. 6:2011cv00356 - Document 19 (E.D. Okla. 2013)
Court Description: OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA PAULA EVETTA FOREMAN, ) ) Plaintiff, ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Case No. CIV-11-356-KEW ) ) ) ) ) Defendant. OPINION AND ORDER Plaintiff Paula Evetta Foreman (the "Claimant") requests judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner//) denying Claimant s 1 application for disability benefits under the Social Security Act. Claimant ( ''ALJ") appeals the decision of the Administrative Law Judge and asserts that the Commissioner erred because the ALJ incorrectly determined that Claimant was not disabled. For the reasons discussed below, it is the finding of this Court that the Commissioner s decision should be and is REVERSED and REMANDED for 1 further proceedings. Social Security Law and Standard of Review Disability under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . " 42 U.S.C. § 423(d) (1) (A). Security Act "only if A claimant is disabled under the Social his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot 1 considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists §423 (d) (2) (A). in the national economy. II 42 u.s.c. Social Security regulations implement a five-step sequential process to evaluate a disability claim. See, 20 C.F.R. §§ 404.1520, 416.920. 1 Judicial review of the Commissioner, s determination is limited in scope by 42 U.S.C. § 405(g). This Court s review is limited to 1 1 Step one requires the claimant to establish that he is not engaged in substantial gainful activity/ as defined by 20 C.F.R. ·§§ 404.1510, 416.910. Step two requires that the claimant establish that he has a medically severe impairment or combination of impairments that significantly limit his ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921. If the claimant is engaged in substantial gainful activity (step one) or if the claimant's impairment is not medically severe (step two), disability benefits are denied. At step three/ the claimant's impairment is compared with certain impairments listed in 20 C.F.R. Pt. 404, Subpt. P 1 App. 1. A claimant suffering from a listed impairment or impairments ''medically equivalent 11 to a listed impairment is determined to be disabled without further inquiry. If not/ the evaluation proceeds to step four, where claimant must establish that he does not retain the residual functional capacity ("RFC") to perform his past relevant work. If the claimant's step four burden is met the burden shifts to the Commissioner to establish at step five that work exists in significant numbers in the national economy which the claimant - taking into account his age 1 education/ work experience, and RFC - can perform. Disability benefits are denied if the Commissioner shows that the impairment which precluded the performance of past relevant work does not preclude alternative work. See generally, Williams v. Bowen, 844 F.2d 748, 750-51 (lOth Cir. 1988). I 2 two inquiries: substantial first, evidence i whether the and, Cir. whether 1 Hawkins v. Chater, standards were applied. (lOth second decision was 1997) (citation the correct legal 113 F.3d 1162, 1164 The omitted). supported by term "substantial evidence" has been interpreted by the United States Supreme Court It means such relevant to require "more than a mere scintilla. evidence as a reasonable mind might accept as adequate to support a conclusion. 11 Richardson v. Edison Perales Co. 402 U.S. 1 v. NLRB, 401 389 1 305 U.S. (1971) (quoting Consolidated (1938)). The court may not re-weigh the evidence nor substitute its discretion for that of the agency. Casias v. Health 800 & Human Servs., 933 F. 2d 799, (lOth 197, 229 Secretary of Cir. 1991) . Nevertheless, the court must review the record as a whole, and the "substantiality of the evidence must take into account whatever in the record fairly detracts from its weight. Corp. v. NLRB, 340 U.S. 474 1 488 (1951) i Universal Camera 11 see also, Casias, 933 F.2d at 800-01. Claimant's Background Claimant was born on November 20 the time of the ALJ s decision. 1 education. 1 1965 and was 44 years old at Claimant completed her high school Claimant worked in the past as a certified nurse assistant, home health worker 1 and poultry line worker. 3 Claimant alleges an limitations waves. inability to work beginning resulting from knee problems June 30, and 2004 due to "irregular brain 11 Procedural History On August 1, 2007 1 Claimant protectively filed for disability insurance benefits under Title II (42 U.S.C. § 401, et seq.) and supplemental security income pursuant to Title XVI 1381 1 et seq.) of the Social Security Act. (42 U.S.C. § Claimant's applications were denied initially and upon reconsideration. On November 2 , 2009, an administrative hearing was held before ALJ Lantz McClain in Tulsa, Oklahoma. On December unfavorable decision. 9, 2009, the ALJ issued an On September 15, 2011, the Appeals Council denied review of the ALJ's decision. As a result, the decision of the ALJ represents the Comrnissioner s final decision for purposes 1 of further appeal. 20 C.F.R. 404.981, 416.1481. §§ Decision of the Administrative Law Judge The ALJ made his decision at step five of the sequential evaluation. He determined that while Claimant suffered from severe impairments, she did not meet a listing and retained the residual functional capacity ("RFC 11 ) to perform a full range of sedentary work with limitations. 4 Errors Alleged for Review Claimant asserts the ALJ committed error in determine all of Claimant s severe impairmentsi 1 (1) (2) failing to reaching an improper RFCi and (3) failing to perform a proper analysis at step five. Consideration of Claimant's Severe Impairments In his decision 1 the ALJ found Claimant suffered from the severe impairments of seizure disorder and status post-surgery right knee. (Tr. 17). He determined Claimant retained the RFC to perform a range of sedentary work finding she can sit at least 6 hours in an 8 hour workday due to her right knee and avoid hazards such as height and open machinery due to seizures. After consultation with a vocational expert 1 (Tr. 18) . the ALJ determined Claimant retained the RFC to perform the representative jobs of food order clerk inspector. 1 charge account clerk, miscellaneous laborer/ and (Tr. 26). not disabled. As a result 1 the ALJ concluded Claimant was (Tr. 27). Cl.aimant first contends the ALJ should have found her reflex sympathetic dystrophy to be a severe impairment. 2007 1 Claimant saw Dr. Margaret F. Tremwel On September 19/ 1 a neurologist. Claimant reported chronic lower extremity pain with associated excruciating knee pain. Claimant had been involved in several 5 motor vehicle accidents and had a fracture of the right extremity status post placement of hardware and pinning. lower Claimant told Dr. Tremwel that she experienced pain as a shooting sensation with allodynia that has a knifelike feeling to it form the distal lower extremity up to the knee. her knee getting it is good a At nighttime if anything touches burning sensation, sleep. (Tr. which prevented her from Dr. 297). Tremwel concluded that Claimant 1 S seizure disorder should be treated and that "[s]he also has reflex sympathetic dystrophy of the right lower extremity. 11 She proposed treating both conditions with an appropriate pain medication. (Tr. 2 98) . On October 30, 2007, Claimant was attended by Dr. Bradley M. Short, a board certified rehabilitation. Dr. physician in physical medicine and Short noted Claimant suffered from reflex sympathetic dystropny secondary to an ACL tear and surgery from 1995 which continued to cause difficulty with mobility. Claimant (Tr. 359). significant pain and Dr. Short also found upon examination that Claimant had no clubbing or cyanosis but had one to two plus edema 1 right lower extremity. She also had some warmth and pain with palpation of her right knee area. minimally broad based and was antalgic extremity. (Tr. difficulty with 360) . 1 Her gait was favoring her right lower Dr. Short suspected Claimant would have prolonged standing 6 and walking due to the difficulties with her right lower extremity. Dr. Short recommended the use of an assistive device such as a cane. assistive device, Dr. carrying objects. On July 13 examination of 1 Short surmised she If she did use an have difficulty in Id. 2009, Dr. Sri K. Reddy performed a consultative Claimant. He found Claimant s 1 right knee was swollen with diffuse tenderness and decreased range of motion with 10 degrees extension loss and flexion Claimant used no assistive device, step length, speed 1 of 90 While degrees. she ambulated with decreased and balance due to knee pain. (Tr. 394). Dr. Reddy also completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical). He found Claimant could lift and carry up to 10 pounds frequently and up to 20 pounds occasionally/ could sit for 8 hours at one time and 6 hours in an 8 hour workday, stand and walk for 2 hours at one time and 1 hour in an 8 hour workday. He found Claimant required the use of a cane to ambulate and that the use was medically necessary. 96) . The only other restrictions found by Dr. Reddy was only occasional use of foot controls with the right foot, never climb ramps or scaffolds and only (Tr. 395- she could occasionally Claimant also could never work at unprotected heights. kneel. (Tr. 397- 99) . On July 30, 2009 1 Dr. Mark R. Rogow also completed a Medical 7 Source Statement. He found Claimant frequently lift and/or carry 10 pounds 1 could occasionally and stand and/or walk less than 2 hours in an 8 hour workday, must periodically alternate between sitting and standing, and was limited in the lower extremities for purposes of pushing and/or pulling. Dr. Rogow also restricted Claimant to never kneeling, crouching, or crawling. (Tr. 402). his description of the supporting clinical findings 1 Dr. In Rogow stated that "R knee locks up and sometimes gives out from under her. Spontaneously fell [approximately] 1 month ago and was taken to ER ® St. Edwards. Claimant in the 11 (Tr. 402) . environmental humidity/wetness 1 derangement of knee and 1 areas hazards. He Dr. of Rogow also restricted temperature explained 1 extremes, "[b]ecause of may be made worse by environmental factors. 11 (Tr. 4 03) . In his treatment notes from July and August of 2009, Dr. Rogow diagnosed Claimant with internal derangement of the knee, pain, and seizure disorder. knee He reported Claimant was complaining of knee pain and that it locked up or gave out from under her. He found the right knee was mildly swollen with decreased range of motion. (Tr. 412-14). On September 11, 2009, Claimant reported to Dr. Rogow that her right knee was unchanged. (Tr. 409) . On October 9, 2009, Dr. Rogow noted Claimant 1 s right knee was "quite bad" and pain radiated up and down the knee. 8 The knee was (Tr. 4 08) . swollen tender with decreased range of motion. The ALJ found in his decision that: claimant s report of reflex sympathetic dystrophy (RSD) of the right lower extremity is medically nondeterminable. Although Dr. Tremwell {sic) noted RSD based upon the claimant S complaints during a neurological consult on September 19 2007 no objective evidence of RSD was noted. . . . Furthermore, Sri Reddy, M.D. s consultative examination on July 13 2009, did not reveal evidence of RSD of the right lower extremity . . . 1 1 1 1 1 1 (Tr. 18) . At step two, Claimant bears the burden of showing the existence of an impairment or combination of impairments which "significantly limits [his] physical or mental ability to do basic work activities.n 20 C.F.R. § 416.920(c). An impairment which warrants disability benefits is one that "results from anatomical, physiological/ demonstrable or by psychological medically diagnostic techniques.n determination for an acceptable 42 U.S.C. alleged § clinical and 1382c(a} (1) (D). impairment is based are which abnormalities laboratory The severity on medical evidence alone and "does not include consideration of such factors as age, education, and work experience." Williams v. Bowen/ 844 F.2d 748 1 750 (lOth Cir. 1988). The burden of showing a severe impairment is "de minimis , 11 yet the presence of a medical condition alone is not sufficient at step 9 two. Hinkle v. Apfel Sec. R. 85-28. impairment 1 132 F.3d 1349, 1352 (lOth Cir. 1997); Soc. A claimant that "results must from demonstrate anatomical, he has a severe physiological/ or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. U.S.C. § 11 42 1382c (a) (1) (D). A claimant's testimony alone is insufficient to establish a severe impairment. The requirements clearly provide: An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical/ physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability. 1 1 1 42 U.S. C .A. § 423 (d) (5) (A) . The functional limitations must be marked and severe that can be expected to result in death or to last for a continuous period of not less than 12 months. C.F.R. § 42 U.S.C. 416.927 (a) (1). 10 § 1382c(a) (1) (C) (i); 20 The ALJ failed to engage in the required analysis of Claimant s reflex sympathetic dystrophy symptoms and the diagnoses 1 of her treating physicians. Indeed 1 the ALJ seems to have ignored or rejected out of hand these physicians' matter, evidence opinions. For that this Court is unsure of the precise \\objective medical 11 that \\conclusively 11 shows Claimant did not suffer from reflex sympathetic dystrophy because he does not reference that evidence in his decision. Clearly, an ALJ cannot substitute his own medical opinion for that of a claimant's treating physician. Miller v. Chater, 99 F.3d 972 1 977 Moreover 1 (lOth Cir. 1996). although not specifically argued by Claimant, it does not appear the ALJ engaged in the proper analysis for giving Claimant s 1 treating physicians' opinions reduced or no weight. Barnhart 350 1 omitted). F.3d 1297 1 1300 (lOth Cir. Watkins v. (quotation 2003). On remand 1 the ALJ shall remedy these deficiencies. RFC Determination Claimant contends the ALJ's RFC analysis is flawed in that he did not properly physicians. This assess Court the has opinions of determined Claimant's that the ALJ treating did not properly weigh Claimant's treating physicians' opinions in light of Watkins and, in fact, improperly substituted his medical opinion for that of the treating physicians. On remand, the ALJ shall reassess these opinions and their findings on limitations that Claimant 1 s medical conditions impose on her ability to engage in 11 work related activity. Step Five Ana1ysis Claimant also contends the ALJ posed incomplete hypothetical questions to the vocational expert employed in this case by not including all of her limitations in the questioning. properly reassesses conditions, it his cannot findings as said that be his hypothetical mirrored Claimant's limitations. to Until the ALJ On remand, Claimant's medical questions the ALJ shall re- evaluate his questioning of the vocational expert after reassessing his RFC determination. Conclusion The decision substantial applied. fourth of the Commissioner evidence and the Therefore, sentence of correct legal this Court finds 1 42 U.S.C. § is not supported by standards were not in accordance with the 405(g), the ruling of the Commissioner of Social Security Administration should be and is REVERSED and the matter REMANDED for further proceedings consistent with this Opinion and Order. IT IS SO ORDERED this ~~ay of March, 2013. KIMBERLY E. WEST UNITED STATES MAGISTRATE JUDGE 12
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