Bryan v. Social Security Administration, No. 6:2011cv00242 - Document 21 (E.D. Okla. 2012)
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 CAROLYN I. BRYAN, ) ) ) ) Plaintiff, v. Case No. CIV-11-242-KEW ) ) MICHAEL J. ASTRUE Commissioner of Social Security Administration, ) ) ) ) 1 Defendant. ) OPINION AND ORDER Plaintiff Carolyn I. Bryan (the "Claimant 11 ) requests judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner 11 ) denying Claimant's application for disability benefits under the Social Security Act. appeals the decision of the Administrative Law Judge Claimant ("ALJ 11 ) and asserts that the Commissioner erred because the ALJ incorrectly determined that discussed below Claimant 1 it is was the not disabled. finding of this For the Court reasons that the Commissioner's decision should be and is REVERSED and REMANDED for 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 . . . 11 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, considering his age 1 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 Courtrs review is limited to 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 1 416.910. 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 1 s impairment is compared with certain impairments listed in 20 C.F.R. Pt. 404 1 Subpt. P 1 App. 1. A claimant suffering from a listed impairment or impairments \\medically equivalent" to a listed impairment is determined to be disabled without further inquiry. If not 1 the evaluation proceeds to step four 1 where claimant must establish that he does not retain the residual functional capacity (\\RFC 11 } to perform his past relevant work. If the claimant 1 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, 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). 2 two inquiries : substantial first, evidence i whether the and, standards were applied. (lOth Cir. second 1 decision was whether Hawkins v. Chater, 1997) (citation omitted). supported by the correct 113 F.3d 1162 The term legal 1164 1 "substantial evidence" has been interpreted by the United States Supreme Court to require "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (quoting Richardson v. Consolidated (1938)). Edison Perales, 402 U.S. Co. v. NLRB, 305 U. 8. (1971) 197, 229 The court may not re-weigh the evidence nor substitute its discretion for that of the agency. Health 389, 401 & Human Servs. 1 933 F.2d 799 Casias v. Secretary of 1 800 (lOth 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 1 340 U.S. 474, 488 (1951) i 11 Universal Camera see also, Casias, 933 F.2d at 800-01. Claimant's Background Claimant was born on July 5, 1952 and was 57 years old at the time of the ALJ's decision. Claimant completed her high school education and completed vo-tech training as a certified nursing assistant. Claimant worked in the past as a data entry clerk, 3 sales clerk 1 nurse assistant, social services activity director accounting clerk, and hospital admitting clerk. an inability to work beginning February 5 1 1 Claimant alleges 2008 due to limitations resulting from back pain 1 hip pain 1 and left leg pain. Procedural History On June 3 1 20081 Claimant protectively filed for disability insurance benefits under Title II {42 U.S.C. Social Security Act. § 401, et seq.) of the Claimant's application was denied initially and upon reconsideration. On August 7 1 2009 1 an administrative hearing was held before ALJ Osly F. Deramus in McAlester, Oklahoma. On April 2, 2010 15, 2010 1 1 the ALJ issued an unfavorable decision. On June the Appeals Council denied review of the ALJ's decision. As a result, the decision of the ALJ represents the Commissioner s 1 final decision for purposes of further appeal. 20 C.F.R. §§ 404.981/ 416.1481. Decision of the Administrative Law Judge The ALJ made his decision at evaluation. step four of the sequential He determined that while Claimant suffered from severe impairments/ she did not meet a listing and retained the residual functional capacity ("RFC") to perform her past relevant work as a data entry clerk, office worker 1 or hospital admitting clerk. Errors Alleged for Review 4 Claimant asserts the ALJ committed error in (1} properly develop the record; failing to failing to properly evaluate the {2) evidence related to Claimant s mental impairments; and (3) failing 1 to properly evaluate the medical opinion of Claimant's treating physician. Duty to Develop the Record On December 27, 2007, Claimant began treatment physician, Dr. Gregory Rogers 1 for low back pain. with her ( Tr . 2 19 - 2 0 } . On February 14, 2008, Claimant returned to Dr. Rogers who assessed her with chronic lower disease, lumbar strain lumbar radiculopathy. need CT or MRI" 1 back pain, lumbar degenerative joint hypertension, and bilateral sciatica versus Dr. Rogers stated Claimant nwill definitely if her condition persisted. {Tr . 215 - 1 7 ) . On February 19, 2008, Dr. Rogers noted improvement but that Claimant was still experiencing daily pain. acute lumbar strain 1 muscle spasm 1 sciatica versus radiculopathy. He diagnosed Claimant with chronic lower back pain, Dr. Rogers indicated that Claimant needed a CT scan or MRI when she could afford it. On June 17, 2008 1 and {Tr. 213-14}. Claimant reported to Dr. Rogers that she was "highly stressed from her own and her families' difficulties. 11 Dr. Rogers found Claimant to have increased paravertebral tone and lumbar lordosis and piriformis 5 tenderness. {Tr. 210) . He diagnosed Claimant with chronic lower back lumbar pain, degenerative joint disease, bilateral sciatica, suspected lumbar radiculopathy, depression, stress reaction, hypertension, and recurring headaches. chronic anxiety, Dr. Rogers began treating Claimant with medication for major depressive disorder. (Tr. 211). On this same date, Dr. Rogers completed a Physical Residual Functional Capacity Questionnaire on Claimant. diagnosis of chronic lower back pain 1 sciatica vs. radiculopathy. condition was considered He related his spinal muscle spasms/ His prognosis was "poor to be chronic. Dr. and because the 11 Rogers stated Claimant's lower back pain included aches and burning pains and occasional shooting pains that go down the hips and into the legs. Pain was routinely rated at 5/10 with the worst 9/10. He noted increased paravertebral tone in the lumbar spine 1 significant point tenderness in L4- 5 area, maintaining pressure greatly increased pain and caused radiation. to these areas Lumbar spine series showed abnormal lumbar curve and L5-S1 degenerative changes. (Tr. 205) . Dr. family Rogers also noted Claimant stress. He suffered from anxiety and believed Claimant's pain would frequently interfere with attention and concentration need to perform even simple work tasks. He estimated Claimant can sit for 2 hours at one time and stand for 15 minutes. 6 Dr. Rogers stated that Claimant "has lots of stress and can't tolerate much more than she has. In 11 an 8 hour workday, Claimant could stand/walk for less than 2 hours and sit for at least 6 hours. Claimant needed a job that permits shifting positions at will and in which he can take unscheduled breaks. Dr. Rogers stated Claimant could frequently carry less than 10 pounds, pounds and occasionally carry 10 pounds never carry occasionally look down, 50 pounds. He 1 found rarely carry 2 0 Claimant could frequently turn her head to the left or right and hold her head in a static position, and rarely look up, stoop, crouch/squat, and climb He ladders. significant limitations in Claimant 1 s ability to reach. noted He found Claimant would experience good days and bad days and is likely to be absent about four days per month. On July 17 1 2008, Dr. Thurma (Tr . 2 0 6 - 0 8 ) ¢ Fiegel recommended that additional physical examination be obtained with motion/ nerve root compression, and use of hands. recommended a further mental evaluation. Dr. an gait, Fiegel also (Tr. 255) . On July 24 1 2008, Dr. Ron Smallwood completed a Psychiatric Review Technique form on Claimant. He concluded Claimant suffered from affective disorders - depressive syndrome characterized by sleep disturbance and difficulty concentrating or thinking. also determined Claimant suffered from anxiety disorder. 69) . 7 He (Tr. 256- On August 7, Quadeer. and 2008 1 Claimant was evaluated by Dr. Mohammed Claimant reported that she experienced joint stiffness swelling and muscle pain. Dr. Quadeer found Claimant' s cervical and thoracic-lumbar spine to be non-tender with full range of motion. The lumbar-sacral spine was non-tender with limited range of motion associated with muscle spasms and pain. He found no scoliosis, increased kyphosis 1 or increased lordosis was noted. Straight leg raising was negative bilaterally in both the sitting and supine positions. Dr. Quadeer determined Claimant s gait to be 1 safe and stable with slow speed. She did not ambulate with the aid of an assistive device and had no identifiable muscle atrophy. Heel/toe walking was weak. Dr. Quadeer diagnosed Claimant with chronic low back pain, probably due to degenerative disc disease, hypertension, under control with medication, insulin dependent diabetes mellitus 1 hypoglycemia, and overweight. non- (Tr. 270-76). On March 12, 2009, Claimant sought treatment for low back pain at the E.A. Health Services injection. a Conway Medical Center at Louisiana State University Center. (Tr. 314-15). She was treated with a Depomedrol Additional medication was prescribed in follow-up visit on April 9 1 2009. muscle spasms began later that month. (Tr. 294). Treatment for (Tr. 2 90} . On June 3, 2009, Claimant was treated by Dr. Barnette for back pain. X-rays indicated her lumbar spine showed straightening of 8 her normal lordosis 1 probably from the muscle spasms. treated Claimant with injections and medication. On September 23, Dr. 2009 1 Barnette Claimant 1 s degenerative joint disease. Dr. Barnette (Tr. 288) . followed up with Claimant reported the shots helped but that she was suffering from stiffness and tingling in her right lower extremity. injections. On Dr. Barnette administered additional (Tr. 308) . November 2, Claimant sought hypertension and degenerative joint disease. treatment for She stated he back goes out about every two to three months and will be out for one to two weeks before she recovers. She also indicated suffering numbness in her right leg from the knee down. she was (Tr. 307). Claimant first contends the ALJ should have developed the record in ordering a consultative CT or MRI scan. Generally, the burden to prove disability in a social security case is on the claimant, and to meet this burden, the claimant must furnish medical and other evidence of the existence of the disability. Branam v. Barnhart, 385 F.3d 1268 1 Bowen v. Yuckert, 482 U.S. 137 1271 (lOth Cir. 2004) 146 1 disability hearing is nonadversarial (1987). 1 citing A social security however, and the ALJ bears responsibility for ensuring that "an adequate record is developed during the disability hearing consistent with the issues raised." Id. quoting Henrie v. United States Dep' t 9 of Health & Human Services, 13 F.3d 359, 360-61 (lOth Cir. 1993). As a result, "[a]n ALJ has the duty to develop the record by obtaining pertinent, available medical records which come to his attention during the course of the hearing." Id. 1019, 1022 (lOth Cir. 1996). is represented by counsel. quoting Carter v. Chater, 73 F.3d This duty exists even when a claimant Baca v. Dept. Services, 5 F.3d 476, 480 {lOth Cir. 1993). of Health & Human The court 1 however, is not required to act as a claimant's advocate. Henrie, 13 F.3d at 361. The duty to develop the record extends consultative examinations and testing where required. to ordering Consultative examinations are used to "secure needed medical evidence the file does not contain such as clinical findings, diagnosis or prognosis 416.919a(2). necessary for laboratory tests, decision. 11 20 C.F.R. a § Normally, a consultative examination is required if {1) The additional evidence needed is not contained in the records of your medical sourcesi (2) The evidence that may have been available from your treating or other medical sources cannot be obtained for reasons beyond your control, {3) Highly technical or specialized medical evidence that we need is not available from your treating or other medical sourcesi ( 4) A conflict, inconsistency ambiguity or insufficiency in the evidence mus be resolved, and we are unable to do so by recontacting your medical sourcei or 1 10 There is an indication of a change in your condition that is likely to affect your ability to work. (5) 20 C.F.R. § 416.909a(2) (b). Despite Dr. Rogers/ insistence that Claimant needed a CT or MRI scan in order to properly evaluate her back condition, the ALJ determined insufficient objective medical evidence existed in the record to follow Dr. Claimant's condition. Rogers opinions regarding the severity of On remand 1 the ALJ shall obtain further consultative testing of Claimant's back condition. Claimant also contends the ALJ should have ordered a further mental consultative examination based upon the recommendation of Dr. Fiegel. Dr. Fiegel recommended a further physical evaluation as well as mental . (Tr. The ALJ obtained the physical 255) . consultative but not the mental. (Tr. 270-76). On remand, the ALJ shall develop the record further with regard to Claimant's mental condition by obtaining a consultative examination. Claimant's Mental Impair.ments Claimant asserts the ALJ improperly ignored evidence in the record as to Claimant,s mental condition. The ALJ did not reference the findings of Dr. Rogers or Dr. Smallwood with regard to Claimant, s mental condition in his decision. consistently diagnosed with depression/ anxiety, Claimant was and stress at various times during her relationship with Dr. Rogers. 11 (Tr. 2061 210-11). Dr. Smallwood depression and anxiety. concerning the activities. found ( Tr . affect (Tr. also 2 56 these 41) . 1 Claimant 259 ) . from She also testified conditions On remand 1 suffered had upon her daily the ALJ shall consider the totality of the medical evidence and re-evaluate Claimant's mental condition. Opinion of Treating Physician Claimant also contends the ALJ improperly opinions of her treating physician 1 Dr. Rogers. rejected the The ALJ found that his opinion "contrasts sharply" with his records. (Tr. 20) . He gave Dr. Rogers' opinions on limitations "little weight" because Dr. Rogers released Claimant to do light duty work the next week if she was "doing well." ( Tr. 2 0 214) . 1 From subsequent treatment records and Dr. Rogers opinion on Claimant did not believe she was "doing well." 1 S ability to work, he The ALJ also found the treatment afforded by Dr. Rogers was not consistent with one who was truly limited to the extent claimed. The ALJ cannot substitute his medical treatment opinion for that of the treating physician as he has done in this case. Miller v. Chater 1 99 F.3d 972 1 977 (lOth Cir. 1996). Moreover, controlling the ALJ must give a treating physician's opinion weight, unless the 12 opinion is unsupported by the medical record. In evaluating the opinions of a treating physician such as Dr. Rogers 1 an ALJ must first determine whether the opinion is entitled to "controlling weight. 11 1297 I 1300 (lOth Cir. 2003). Watkins v. Barnhart 1 350 F. 3d An ALJ is required to give the opinion of a treating physician controlling weight if it is both: ( 1) "well- supported by medically acceptable clinical and laboratory diagnostic techniqueS i and (2) "consistent with other substantial 11 evidence in the record. Id. 11 (quotation omitted} . " [I] f the opinion is deficient in either of these respects 1 then it is not entitled to controlling weight . Id. 11 Even if a treating physician's opinion is not entitled to controlling weight, "[t]reating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. factors § 404.1527. 11 Id. reference in that section are: (quotation omitted). ( 1) the length of the treatment relationship and the frequency of examinationi nature and extent of the treatment relationship 1 treatment performedi provided (3) and the kind of The (2) the including the examination the degree to which the physician 1 s or testing opinion is supported by relevant evidencei (4) consistency between the opinion and the record as a wholei (5) whether or not the physician is a specialist in the area upon which an opinion is renderedi and (6) other factors brought to the ALJ's attention which tend to support 13 or contradict the opinion. Id. at 1300-01 (quotation omitted) . After considering these factors, the ALJ must "give good reasons" 20 C.F.R. for the weight he ultimately assigns the opinion. 404.1527 (d) (2) ; Robinson v. Barnhart Cir. 2004) (citations omitted). 366 F. 3d 1078 1 Any such 1 1082 findings § (lOth must be \\sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinions and the reason for that weight. Id. 11 "Finally, if the ALJ rejects the opinion completely/ he must then give specific, legitimate reasons for doing so. (quotations omitted). of Dr. Rogers Watkins, 11 350 F. 3d at 1301 The basis given for the wholesale rejection opinions virtually no weight. is not sufficient On remand, to have given them the ALJ shall re-evaluate Dr. Rogers' opinions in light of his medical records and in accordance with the Watkins factors. Conclusion The decision substantial applied. fourth of the Commissioner evidence and the correct Therefore/ sentence of legal this Court finds, 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 14 with this Opinion and Order. IT IS SO ORDERED this ~1~y of July, 2012. UNITED STATES MAGISTRATE JUDGE 15
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