KIMBERLY E. WEST, Magistrate Judge.
Plaintiff Alice E. Cripps (the "Claimant") requests judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner") denying Claimant's application for disability benefits under the Social Security Act. Claimant appeals the decision of the Administrative Law Judge ("ALJ") and asserts that the Commissioner erred because the ALJ incorrectly determined that Claimant was not disabled. For the reasons discussed below, it is the recommendation of the undersigned that the Commissioner's decision be REVERSED and the case REMANDED to Defendant for further proceedings.
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). A claimant is disabled under the Social Security Act "only if 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, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . ." 42 U.S.C. §423(d)(2)(A). Social Security regulations implement a five-step sequential process to evaluate a disability claim. See, 20 C.F.R. §§ 404.1520, 416.920.
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 two inquiries: first, whether the decision was supported by substantial evidence; and, second, whether the correct legal standards were applied.
Claimant was born on November 6, 1973 and was 39 years old at the time of the ALJ's decision. Claimant completed her high school education. Claimant has worked in the past as a certified nurse's aide. Claimant alleges an inability to work beginning March 1, 2010 due to limitations resulting from degenerative disc disease, morbid obesity, anxiety, and depression.
On July 18, 2011, Claimant protectively filed for supplemental security income pursuant to Title XVI (42 U.S.C. § 1381, et seq.) of the Social Security Act. Claimant's application was denied initially and upon reconsideration. On March 28, 2013, an administrative hearing was conducted by Administrative Law Judge ("ALJ") James Bentley by video with Claimant appearing in Fort Smith, Arkansas and the ALJ presiding in McAlester, Oklahoma. The ALJ entered an unfavorable decision on April 15, 2013. The Appeals Council denied review of the decision on August 1, 2014. As a result, the decision of the ALJ represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981, 416.1481.
The ALJ made his decision at step five of the sequential evaluation. He determined that while Claimant suffered from severe impairments, she retained the RFC to perform light work with limitations.
Claimant asserts the ALJ committed error in (1) reaching an improper RFC and credibility determination; and (2) making erroneous findings at step five. Claimant also contends the record does not contain her brief before the Appeals Council as well as the additional evidence she submitted to the Council.
In his decision, the ALJ determined Claimant suffered from the severe impairments of degenerative disc disease with spinal stenosis, morbid obesity, obstructive sleep apnea, chronic obstructive pulmonary disorder ("COPD"), asthma, bilateral carpal tunnel syndrome, anxiety, and depression. (Tr. 15). The ALJ concluded that Claimant retained the RFC to perform light work except that she could only occasionally finger and handle bilaterally; could perform simple tasks with routine supervision; could have occasional contact with co-workers and supervisors; and could have occasional contact with the general public. (Tr. 17).
After consultation with a vocational expert, the ALJ found Claimant retained the RFC to perform the representative jobs of conveyor line bakery worker and parking lot attendant. (Tr. 22). As a result, the ALJ found Claimant was not disabled since July 18, 2011.
Claimant first contends the ALJ's RFC and credibility determinations are flawed. She asserts the ALJ rejected the opinion of a treating physician erroneously and without evidentiary support. On November 29, 2011, Dr. Nicholas J. Bentley authored an RFC evaluation form on Claimant. He concluded Claimant could sit for 15 minutes at one time and three hours during an eight hour workday; stand and walk for 10 minutes at one time and stand for two hours and walk for one hour in an eight hour workday; Claimant would need rest breaks at hour intervals or less; she would need to alternate between sitting and standing at 15 minute intervals or less; and Claimant could lift and carry 0-5 pounds occasionally and up to 20 pounds rarely. (Tr. 403-04).
Dr. Bentley found Claimant's lower extremities to be limited and in need of elevation when Claimant is seated. He determined Claimant could bilaterally push/pull, work above shoulder level, work overhead, and reach occasionally but rarely work in an extended position. Claimant could rarely grasp with either hand or engage in fingering or fine manipulation. Claimant could also rarely bend, squat, crawl, stoop, crouch, kneel, balance, climb stairs, or climb ramps but never climb ladders or scaffolds. (Tr. 404-05).
Dr. Bentley imposed mild restrictions on Claimant's driving/riding in automotive equipment, exposure to high noise levels, and engaging in fine visual acuity. The objective basis for Dr. Bentley's findings are identified as Claimant's bilateral carpal tunnel syndrome and her severe sleep apnea. (Tr. 405).
The ALJ acknowledged Dr. Bentley's evaluation but gave the opinion "little weight", stating it was inconsistent with the objective medical evidence as a whole. He based this finding upon (1) Claimant lifting papers off the table at the hearing which he found to be inconsistent with limiting her to rarely grasping; (2) the lack of treatment records which supported the opinion that Claimant could rarely bend, squat, stoop, or crouch; (3) two negative MRI scans; and (4) the lack of any assistive device or gait disturbance. (Tr. 19).
In deciding how much weight to give the opinion of a treating physician, an ALJ must first determine whether the opinion is entitled to "controlling weight."
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. § 404.1527."
Dr. Bentley's treatment records dated August 8, 2011 indicate that Claimant reported that an MRI showed spinal stenosis. He noted Claimant was morbidly obese at 314 pounds. An examination of her back indicated Claimant was "very tender over the S1 joint and the L4-5 region. Straight leg raising pain is positive." (Tr. 312). Yet, the results of the MRI in the record taken August 12, 2010 indicate that Claimant's lumbar spine was normal. (Tr. 264).
Further, a consultative examination performed by Dr. Traci L. Carney on September 17, 2011 found no point tenderness, adequate peripheral pulses, no edema, grip strength 5/5 bilaterally strong and firm, the ability to perform gross and fine tactile manipulation, adequate finger to thumb opposition, no effusion or edema of the knees with stability in all range of motion exercises, and great toe strength equal bilaterally. Cervical and thoracic spines were non-tender with full range of motion and straight leg raising reflex was negative bilaterally in the sitting and supine positions. Claimant's gait was safe and stable without assistive devices. Heel/toe walking was normal and her tandem gait was within normal limits. (Tr. 295).
Claimant suggests that she sent additional evidence in the form of more treatment records from Dr. Bentley to the Appeals Council but it was inexplicably not included in the record. Defendant offers an explanation in stating Claimant's counsel submitted the documentation by facsimile but sent it to the wrong number. The Appeals Council is required to consider new, material, and chronologically relevant evidence submitted to it. 20 C.F.R. §§ 404.970(b) and 416.1470(b);
He noted in July of 2012 that Claimant "chronically takes care of her disabled husband. She does do a large amount of work in moving him around and does have multiple reasons to be hurting as much as she does." Claimant requested refills for chronic pain. See, Plaintiff's Brief filed January 30, 2015 (Docket Entry #16), unnumbered attachment. This evidence does not deviate substantially from the records which are already a part of the record. This Court does not find that they represent "new" evidence requiring remand for consideration by the Appeals Council.
The ALJ's finding with regard to the reduced weight accorded Dr. Bentley's opinion on functional limitations is well-supported by specific and legitimate reasons. The remainder of the medical record, including Dr. Bentley's treatment notes, deviates radically from the limitations that Dr. Bentley included in his assessment. The pain findings stem largely from Claimant's subjective statements — which even Dr. Bentley believes does not warrant an increased dosage of pain medication as Claimant requested. This Court finds the ALJ adequately considered the factors set forth in
Claimant next asserts the ALJ erred in not obtaining a medical source statement on the functional limitations posed by Claimant's mental impairments from Dr. Diane Brandmiller. Certainly, the regulations generally require that the adjudicators request medical source statements from acceptable medical sources with their reports. Soc. Sec. R. 96-5p. However, nothing in the regulations require the reversal and remand of a case because such statements were not obtained. Indeed, the regulations expressly state that "the absence of such a statement in a consultative examination report will not make the report incomplete." 20 C.F.R. § 416.919n(c)(6); see also 20 C.F.R. §§ 404.1513(b)(6), 416.913(b)(6);
Claimant also includes a new medical source statement as a part of the additional evidence which Claimant attempted to submit to the Appeals Council. Dr. Robert L. Spray indicated Claimant was markedly limited in several functional areas and moderately limited in numerous others. See, Plaintiff's Brief filed January 30, 2015 (Docket Entry #16), unnumbered attachment.
The legal question posed by counsel's apparent error in failing to submit the report to the Appeals Council is somewhat novel. However, a similar situation arose in the
Dr. Spray's report meets the criteria in that it is indeed new, material, and could be chronologically relevant if the condition resulting in the alleged functional limitation existed during the relevant period. As a result, this Court must remand this case for consideration by the Appeals Council of this report before it can be considered on appeal to this Court.
Claimant also contends the ALJ erred in his credibility assessment. As this Court has related, Claimant's complaints of pain and functional limitation find little support in the objective medical record unless Dr. Spray's report is found to lend support to Claimant's subjective complaints. On remand, the Appeals Council or the ALJ, depending upon the level of remand followed by Defendant, shall re-evaluate Claimant's credibility after considering Dr. Spray's report.
Claimant contends the hypothetical questioning of the vocational expert was flawed since it did not contain all of the limitations which were included in the RFC or should have been included in the RFC. After considering the effect of Dr. Spray's report on the RFC, the Appeals Council or ALJ shall consider whether the questioning of the vocational expert reflected the totality of the limitations contained in the resulting RFC.
The decision of the Commissioner is not supported by substantial evidence and the correct legal standards were not applied. Therefore, the Magistrate Judge recommends for the above and foregoing reasons, the ruling of the Commissioner of Social Security Administration should be
