Opinion
CIV-23-507-HE
02-21-2024
TAMMIE RENEE KERTH, Plaintiff, v. MARTIN O'MALLEY, COMMISSIONER OF SOCIAL SECURITY,[1] Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE.
Tammie Renee Kerth (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that she was not “disabled” under the Social Security Act. See 42 U.S.C. § 405(g). United States District Judge Joe Heaton has referred the matter to the undersigned Magistrate Judge for submission of findings and recommendations consistent with 28 U.S.C. §§ 636(b)(1)(B), (b)(3), and Fed.R.Civ.P. 72(b).Doc. 9.
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the Administrative Record (AR) will refer to its original pagination.
Plaintiff asks this Court to reverse the Commissioner's decision and remand the case for “a directed finding of disability and calculation of benefits,” arguing the Administrative Law Judge (ALJ) did not properly consider a medical opinion and a prior administrative medical finding. Doc. 12, at 14-22. After careful review of the record, the parties' briefs, and the relevant authority, the undersigned finds the ALJ committed reversible error by not discussing probative evidence. The undersigned thus recommends the Court reverse the Commissioner's decision and remand for further proceedings. See 42 U.S.C. § 405(g).
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 [twelve] 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 [the claimant's] 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 [s]he can no longer engage in h[er] 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. Administrative Law Judge's findings.
After the Court remanded the initial final agency decision to the Commissioner, AR 487-89, 495-97, the ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. Id. at 415-25; 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). The ALJ found that Plaintiff:
(1) had not engaged in substantial gainful activity since March 20, 2017, the alleged onset date;
(2) has the following severe impairments: fibromyalgia, Sjogren's syndrome, and minimal arthritic changes of the spine;
(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 (RFC) to perform medium work, except she can frequently climb, balance, stoop, kneel, crouch, and crawl;
(5) could perform her past relevant work as a registered nurse as generally performed; and so,
(6) was not under a disability since March 20, 2017.See AR 418-25.
Residual functional capacity “is the most [a claimant] can still do despite [a claimant's] limitations.” 20 C.F.R. § 404.1545(a)(1).
Because Plaintiff did not file written exceptions to the ALJ's decision and the Appeals Council did not otherwise assume jurisdiction, it is the final decision of the Commissioner. 20 C.F.R. § 404.984(d).
II. Judicial review.
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). “An agency decision that either applies an incorrect legal standard or is unsupported by substantial evidence is subject to reversal.” Staheli v. Comm'r, SSA, 84 F.4th 901, 905 (10th Cir. 2023).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)); see also Lax, 489 F.3d at 1084 (defining substantial evidence as “more than a scintilla, but less than a preponderance”); Wall, 561 F.3d at 1052 (explaining that “‘[e]vidence is not substantial if it is overwhelmed by other evidence in the record'”) (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005)). The Court “will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Lax, 489 F.3d at 1084. Thus, “[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
“[T]he failure to apply proper legal standards, may under the appropriate circumstances, be sufficient grounds for reversal independent of the substantial evidence analysis.” Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014) (quotations omitted). But the failure to apply the proper legal standard requires reversal only where the error was harmful. Cf. Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (placing the burden to show harmful error on the party challenging an agency's determination).
B. The ALJ erred in his consideration of a medical opinion because he selectively discussed probative evidence.
Plaintiff argues the ALJ erred in his consideration of the medical opinion from Dr. Nalini M. Dave, M.D., and the prior administrative medical finding from Dr. Peyton Osborne, M.D. Doc. 12, at 14-22. Plaintiff makes three arguments: (1) the ALJ improperly relied on objective tests despite Plaintiff's diagnosis of fibromyalgia; (2) the ALJ's consistency analysis is boilerplate; and (3) the ALJ engaged in impermissible picking and choosing. Id. The undersigned finds reversal and remand is required because the ALJ erred by engaging in impermissible picking and choosing when he did not address evidence showing Plaintiff had abnormal range of motion. And, because they may be affected by the ALJ's treatment on remand, the undersigned does not reach the remaining issues.
Because Dr. Osborne was a state agency medical consultant, his statements about what Plaintiff can do are considered a prior administrative medical finding. See 20 C.F.R. § 404.1513(a)(5) (“A prior administrative medical finding is a finding, other than the ultimate determination about whether [a claimant] is disabled, about a medical issue made by . . . Federal and State agency medical and psychological consultants at a prior level of review . . . in [the] current claim based on their review of the evidence in [the] case record.”).
1. Standard for evaluating medical opinions and prior administrative medical findings.
The ALJ does “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's] medical sources.” 20 C.F.R. § 404.1520c(a). “Instead, the ALJ evaluates opinions using five factors identified in the regulation: supportability; consistency; relationship with the claimant; specialization; and other factors, such as ‘a medical source's familiarity with the other evidence in a claim.'” Staheli, 84 F.4th at 905 (quoting 20 C.F.R. § 404.1520c(c)). The most important factors are supportability and consistency, and the ALJ must explain how he considered them in the decision. 20 C.F.R. § 404.1520c(b)(2).
“Supportability” examines how closely connected a medical opinion is to the evidence and the medical source's explanations: “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s)[,] . . . the more persuasive the medical opinions . . . will be.” “Consistency,” on the other hand, compares a medical opinion to the evidence: “The more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.”Zhu v. Comm'r, SSA, 2021 WL 2794533, at *6 (10th Cir. July 6, 2021). (citations omitted).
2. Dr. Dave's opinion, Dr. Osborne's finding, and the ALJ's consideration of each.
Dr. Dave examined Plaintiff on May 13, 2019. AR 376-80. Dr. Dave's report addressed Plaintiff's own statements regarding her symptoms, a review of Plaintiff's medication, the results of a physical examination, a Range of Joint Motion Evaluation Chart, and imaging studies of Plaintiff's chest and left elbow. Id. at 376-82. The Range of Joint Motion Evaluation Chart showed abnormal findings in Plaintiff's range of motion in her back, neck, hip, knee, shoulder, and ankle. Id. at 379-80. The imaging studies showed no abnormal findings. Id. at 381-82.
Dr. Dave opined that Plaintiff had “fair grip strength, ability to reach, handle, finger and feel in a sitting position,” she could “not do heel and toe walking, squatting, hoping [sic] or tandem walking,” she “has [the] ability to button clothes, but picking up a pen may be difficult,” and she had the “ability to sit, stand, move about slowly, lift about five pounds, carry, handle objects, hear and speak.” Id. at 378.
In considering the opinion, the ALJ found:
Consultative examiner, Nalini Dave, M.D., opined in May 2019 that she is able to sit, stand, move about slowly, lift about five pounds, carry, handle objects, bear [sic] and speak. These limitations are unsupported because Dr. Dave notes that [Plaintiff] has fair grip strength, ability to reach, handle, finger and feel in a sitting position. Her gait is normal. She has ability to button the clothes, but picking up a pen may be difficult. There is no evidence of any joint deformity, crepitus, heat, redness, effusion, or atrophy. These limitations are inconsistent with the record, which shows that she generally had normal musculoskeletal and neurological findings. Therefore, this opinion is not persuasive.Id. at 423-24 (internal citations omitted) (emphasis added).
Dr. Osborne opined Plaintiff could occasionally lift and/or carry twenty pounds, and frequently lift and/or carry ten pounds, stand and/or walk (with normal breaks) for six hours in an eight-hour workday, and sit (with normal breaks) for a total of six hours in an eight-hour workday. Id. at 483. Additionally, Dr. Osborne found Plaintiff had no postural, manipulative, visual, communicative, or environmental limitations.
The ALJ concluded:
State agency medical consultant, Peyton Osborne, M.D., found in December 2021 that [Plaintiff] can essentially perform light work. These findings are unsupported because the consultant notes that [Plaintiff] only had mild diagnostic imaging in her lumbar spine with generally normal musculoskeletal and neurological findings on exam. These findings are also inconsistent with the record, which shows that she generally had normal musculoskeletal and neurological findings. Therefore, these findings are not persuasive.Id. at 424 (internal citations omitted) (emphasis added).
3. The ALJ engaged in impermissible picking and choosing when he did not address records reflecting abnormal range of motion.
Plaintiff contends the ALJ omitted references to evidence supporting Dr. Dave's opinion and Dr. Osborne's finding. Doc. 12, at 17. Although the “ALJ is not required to discuss every piece of evidence,” he “must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). And “[i]t is improper for the ALJ to pick and choose among medical reports, using portions of evidence favorable to his position while ignoring other evidence.” Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004).
Plaintiff alleges the ALJ's discussion of range of motion findings in Dr. Dave's report is deficient. Doc. 12, at 20-21. Dr. Dave wrote in her report: “Range of motion of all joints appears normal, but extremely painful. Alternate pronation and supination of hands and wrists is normal. Range of motion of elbows and shoulders is painful.” AR 378. The report also included an evaluation chart addressing her range of motion, which revealed abnormal findings in Plaintiff's range of motion in the following areas: back extension (10/25), back flexion (60/90), right and left lateral flexion (5/25), neck extension (20/60), neck flexion (20/60), left and right lateral neck bend (20/45), neck rotations (20/80), left and right shoulder abduction (30/150), left and right shoulder adduction (10/30), left and right shoulder extension (10/50), left and right shoulder flexion (100/150), and left and right ankle flexion and extension (plantar - 10/40, dorsal - 10/20). Id. at 379-80. Additionally, Dr. Dave wrote that Plaintiff was “not able to” do hip flexion and did not include a result for hip adduction. Id. at 379. The record denotes “0” for Plaintiff's backward hip extension, hip abduction, knee flexion, ankle inversion, and ankle eversion results. Id. at 379-80. Finally, the record reflects Plaintiff had normal range of motion in her elbows, forearms, wrists, and thumbs. Id. at 380.
While the ALJ addressed the findings in Dr. Dave's narrative, he did not address the abnormal objective data contained in the evaluation chart. Id. at 422. The abnormal range of motion results are particularly probative as they relate to Plaintiff's ability to lift and carry. See 20 C.F.R. § 404.1567(c) (“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.”); SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983) (noting “[f]lexibility of the knees as well as the torso is important” for the ability to perform movements related to the “considerable lifting required for the full range of medium work”); see also Phillips v. Kijakazi, 2022 WL 4350270, at *5 (E.D. Okla. Aug. 26, 2022) (“[I]t is unclear how the claimant can perform the full sitting/standing and lifting/carrying requirements of light work in the context of her repeatedly documented reduced range of motion of the right shoulder and lumbar spine, as well as the lifting restrictions in the record.”), adopted, 2022 WL 4316120 (E.D. Okla. Sept. 19, 2022); McJunkins v. Colvin, 2015 WL 5689914, at *3 (E.D. Okla. Sept. 28, 2015) (finding the ALJ's failure to discuss a limited range of motion in the shoulder was a “significant omission in that it calls into question the claimant's ability to perform medium work”).
To be sure, the ALJ's narrative report stating Plaintiff had normal (but extremely painful) range of motion in her joints and the objective data in the evaluation chart do not appear consistent. But the ALJ did not address this discrepancy. Instead, the ALJ engaged in impermissible picking and choosing when he considered Dr. Dave's statement that Plaintiff's range of motion in her joints was normal (with extreme pain) but failed to address the accompanying objective data suggesting otherwise. See Haynes v. Barnhart, 2005 WL 8164216, at *3 (D.N.M. Feb. 25, 2005) (finding the ALJ improperly engaged in picking and choosing where “[t]he ALJ made no [a]ttempt to clarify the inconsistencies in [the doctor's] report, and in fact, there is no indication that he was aware that they existed”). Thus, the undersigned recommends the Court remand the matter so the ALJ can properly consider the evidence.
The undersigned notes Plaintiff made other, unfounded allegations of picking and choosing. For example, she alleges the ALJ did not address evidence “that Plaintiff continuously endorsed symptoms of generalized pain, muscle weakness, and fatigue, consistent with fibromyalgia,” and evidence from a December 2021 examination which showed diminished extremity strength, grip strength, pain in her neck and back, and sixteen positive trigger points. Doc. 12, at 18 (citing AR 333, 366-67, 370, 384-85, 406, 855-57, 871). The ALJ, however, discussed the 2021 examination multiple times, addressed Plaintiff's report of “constant fatigue,” a report that she had to take breaks to rest between activities, and multiple records between 2017 and 2021 in which Plaintiff reported pain. AR 422-23. Plaintiff contends the ALJ “overlooked” portions of Dr. Dave's examination, including a tired appearance, extreme pain in the joints with range of motion, pain with motion in the elbows and shoulders, elbow pain, generalized aches and pains, several tender spots all over the body and around the spine, feeling too tired with shortness of breath, fatigue, weakness such as using two hands to pour coffee, dizziness, feeling as if her whole body is bruised, and feeling uncomfortable when walking. Doc. 12, at 20. AR 376-78. The ALJ, however, summarized Dr. Dave's report earlier in the decision, noting Plaintiff's report of fatigue, shortness of breath, extreme pain with range of motion, and episodes of dizziness. AR 422. The ALJ did not err by failing to repeat the information during the evaluation of Dr. Dave's opinion and Dr. Osborne's finding. See, e.g., Endriss v. Astrue, 506 Fed.Appx. 772, 777 (10th Cir. 2012) (“The ALJ set forth a summary of the relevant objective medical evidence earlier in his decision and he is not required to continue to recite the same evidence again in rejecting Dr. Wright's opinion.”).
The undersigned does not reach the remaining issues related to Dr. Dave's opinion and Dr. Osborne's finding-whether the ALJ improperly relied on objective tests and whether the ALJ engaged in boilerplate analysis in the consistency analysis-because “they may be affected by the ALJ's treatment of this case on remand.” See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
C. A directed finding of disability is not warranted.
Plaintiff requests that the matter be remanded for a directed finding of disability and calculation of benefits. Doc. 12, at 22. This Court may exercise its discretion to remand either for further administrative proceedings or for an immediate award of benefits. See Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993). In making this decision, courts should consider both “the length of time the matter has been pending and whether or not given the available evidence, remand for additional fact-finding would serve [any] useful purpose but would merely delay the receipt of benefits.” Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir. 2006) (internal quotation marks and citation omitted).
Plaintiff argues that remand for more fact-finding would not serve any useful purpose because she would be considered disabled under the grids if her RFC limited her to light work. Doc. 12, at 22 (citing 20 C.F.R. pt. 404, subpt. P, App. 2, App'x, § 202.06). Plaintiff does not address how long the matter has been pending, but the undersigned notes Plaintiff signed her Application for Disability Insurance Benefits on December 29, 2018-just over five years ago. AR 155.
The undersigned questions whether Plaintiff is correct. Grid Rule 202.06 applies to a subset of individuals who have previous work experience that is skilled or semiskilled but have skills that are not transferable. 20 C.F.R. pt. 404, subpt. P, App. 2, App'x, § 202.06. But the vocational expert testified Plaintiff's past relevant work as a registered nurse had transferrable skills to jobs considered light work such as school nurse, phlebotomist, and office nurse. AR 450-52.
Here, additional fact-finding would be useful. The ALJ did not properly consider the evidence of Plaintiff's abnormal range of motion. After proper consideration of the range of motion evidence, he may find that Dr. Dave supported her opinion, or he may still find the opinion is unsupported. Additionally, the ALJ may or may not find a different RFC is warranted after properly considering the evidence. Thus, “[r]emand for additional analysis is appropriate as the current record does not fully support a determination that Plaintiff is disabled as a matter of law.” Stallings v. Berryhill, No. CIV-17-106-BMJ, 2017 WL 5588186, at *10 (W.D. Okla. Nov. 20, 2017) (noting “the case ha[d] been pending for several years” but remanding for further proceedings where “the ALJ did not properly support her findings regarding the weighing of the medical evidence”).
III. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends that the Court reverse the Commissioner's final decision and remand for further proceedings.
The undersigned advises the parties that they may file an objection to this Report and Recommendation with the Clerk of Court on or before March 6, 2024, 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 timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in this matter.