JOE HEATON, District Judge.
Plaintiff Randy Willingham filed this action seeking judicial review of the final decision of the Commissioner of the Social Security Administration denying his application for disability insurance benefits and supplement security income. Consistent with 28 U.S.C. § 636(b)(1)(B), the case was referred to Magistrate Judge Gary M. Purcell, who recommends that the Commissioner's decision be reversed and the matter remanded for further proceedings. The magistrate judge concluded the Administrative Law Judge("ALJ") erred in his Step Four analysis. He also concluded that the ALJ failed to provide adequate support for his decision to reject the examining consultative physician's opinion.
The parties, having failed to object to the Report and Recommendation, waived their right to appellate review of the factual and legal issues it addressed.
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Acting Commissioner denying his application for disability insurance benefits under Title II and supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 1382. Defendant has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, it is recommended the Commissioner's decision be reversed and remanded for further proceedings consistent with this Report and Recommendation.
According to the final agency decision, Plaintiff applied for disability benefits and supplemental security income on January 30, 2014.
On August 11, 2016, Plaintiff appeared with counsel and testified before an Administrative Law Judge (ALJ). Id. at 23-40. A vocational expert (VE) also testified at the hearing. Id. at 35-39. The ALJ issued an unfavorable decision finding Plaintiff was not disabled within the meaning of the Social Security Act. Id. at 11-18. Following the agency's well-established sequential evaluation procedure, the ALJ first found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date, December 24, 2013. Id. at 13. At the second step, the ALJ found Plaintiff had two severe impairments: right inguinal hernia and osteoarthritis. Id. The ALJ found Plaintiff's cardio-related impairments, including angina, hypertension and tachycardia, were not severe. Id. at 14. At step three, the ALJ found none of Plaintiff's impairments or combination of impairments met or medically equaled the requirements of a listed impairment. Id. at 14.
At the first phase of step four, the ALJ found Plaintiff had the residual functional capacity (RFC) to perform the full range of light work. Id. Relying on the VE's testimony, the ALJ determined at the second phase of step four that, according to Plaintiff's testimony and work report, Plaintiff had actually performed his past relevant work as a truck driver at the light exertional level. Id. at 17-18. Accordingly, at the last phase of step four of the sequential evaluation, the ALJ concluded Plaintiff could perform his past relevant work as truck driver, not as it is generally performed in the national economy, but rather as Plaintiff had actually performed it. Based on his step-four findings, the ALJ concluded that Plaintiff had not been under a disability, as defined by the Social Security Act, from December 24, 2013 through the date of the decision. Id. at 18.
The Appeals Council denied Plaintiff's request for review, and the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall, 561 F.3d at1051.
Though not a model of clarity, in his first two claims on appeal, Plaintiff contends the ALJ erred by determining Plaintiff's RFC solely in terms of an exertional category of work without first making an individual, function-by-function assessment of Plaintiff's physical and mental capacities to perform the work-related activities included in the full range of light work. Plaintiff's Opening Brief (Doc. #17) at 5-13.
In Plaintiff's fifth assignment of error, he contends the ALJ erred in his consideration of the opinion of Dr. Choi, an examining consultative physician. Id. at 20-23. Finally, Plaintiff contends the ALJ did not properly consider Plaintiff's symptoms under a new regulation, SSR 16-3p, in assessing the Plaintiff's credibility.
The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It must be more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citations and quotations omitted). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "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); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last at least twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
Relevant medical records in this case include those from Dr. Keith Kassabian, AR 355-359, Dr. Charles Mitchell, Id. at 335-352, and the report of the consultative examiner, Dr. Sung Choi. Id. at 325-332.
In October 2011, Plaintiff's treating physician, Dr. Mitchell, referred Plaintiff to Dr. Kassabian, a cardiovascular specialist associated with St. Anthony Hospital in Oklahoma City, Oklahoma. Plaintiff's chief complaint was shortness of breath accompanied by throat pain on exertion. AR 355. Upon examination, Plaintiff was hypertensive with a blood pressure measurement of 166/111. Id. Plaintiff reported that he had recently lost consciousness and found himself on his bathroom floor, not knowing how he had gotten there. Dr. Kassabian concluded Plaintiff had "some type of syncopal episode." Id. at 356. Noting that Plaintiff "will need some imaging of his left ventricle," Dr. Kassabian started his screening for suspected myocardial ischemia by ordering a stress test. Id. The results of the stress test supported his preliminary diagnosis of ischemia, and Dr. Kassabian recommended a coronary arteriography. Id. at 359.
On October 21, 2011, Plaintiff underwent left heart catherization with left heart ventriculography and coronary arteriography. Findings included a long muscle bridge over the mid left anterior descending coronary artery resulting in a 50% systolic narrowing of the left anterior descending coronary artery. Dr. Kassabian diagnosed Plaintiff with "Canadian cardiovascular class II angina" and recommended treatment including beta-blocker therapy and modification of coronary risk factors. Id. at 358. No other medical records related specifically to cardiac treatment are included in the record. Some of the records from Dr. Mitchell, however, list Lisinopril, a drug used to treat hypertension and help increase the flow of blood, as one of Plaintiff's medications, suggesting Dr. Mitchell had assumed care of Plaintiff's heart-related problems diagnosed by Dr. Kassabian. Id. at 341-352.
Plaintiff testified that he needed a "bionuclear cardio conversion" to address his cardiovascular problems, but that St. Anthony Hospital had denied him this treatment because he did not have insurance. Id. at 29. While the medical record demonstrates Plaintiff has a medically determinable cardiovascular impairment, there is no evidence in the record that supports Plaintiff's testimony that he was prescribed treatment in the form of "bionuclear cardio conversion" or that he was denied the related surgery. But neither does anything in the record contradict Plaintiff's testimony.
The medical records from Dr. Mitchell support Plaintiff's allegations regarding the severity of his hernia. On February 2, 2013, Dr. Mitchell attended Plaintiff for complaints stemming from a hernia in his right groin. Plaintiff reported he had noticed the hernia several months before and that it was getting larger. Dr. Mitchell found a "large right inguinal hernia that extends down into the scrotum" but noted the hernia reduces when Plaintiff lies down. Id. at 335. Dr. Mitchell planned to do a "right inguinal herniorrhaphy with Marlex graft" the following Wednesday. Dr. Mitchell ordered preoperative lab work to be performed the next day. Id. It appears from the record this surgery was never performed, but there is no accompanying explanation in the medical records. However, Plaintiff's attorney explained that neither the heart surgery nor the hernia surgery could be performed because of the risk factors associated with each. Id. at 30. The medical records neither support nor contradict the attorney's explanation. There is also no evidence that Plaintiff refused surgical repair of the hernia or surgical treatment for his heart condition.
The Court notes the ALJ could have re-contacted Plaintiff's treating sources and asked for clarification of these issues. Because a social security disability hearing is a non-adversarial proceeding, the ALJ is "responsible in every case to ensure that an adequate record is developed during the disability hearing consistent with the issues raised." See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). In this case, the ALJ was clearly apprised of Plaintiff's coronary disease and hernia, prompting his duty to ensure the record was fully developed.
On August 16, 2014, Dr. Sung Choi examined Plaintiff at the request of the Agency. Dr. Choi noted Plaintiff was visibly short of breath at times, markedly hypertensive with a blood pressure reading of 154/87, and tachycardic with a pulse of 110. Id. at 326. Plaintiff described his daily substernal chest pain as a "squeezing pain, sometime sharp" lasting several minutes and relieved by rest. Id. at 332.
Dr. Choi's examination of Plaintiff's abdomen and groin was "significant for a very prominent inguinal hernia and enlarged scrotum on the right." Id. at 326. Dr. Choi expressed his opinion regarding Plaintiff's limitations:
Id. at 327.
At the first phase of step four, an ALJ must assess a claimant's RFC. In this case, the ALJ simply stated:
Id. at 14. Plaintiff contends the ALJ erred as a matter of law in assessing his RFC without specific findings regarding his ability to perform all the strength requirements of light work. Social Security Ruling 96-8p supports Plaintiff's contention:
Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p (S.S.A. Jul. 2, 1996), 1996 WL 374184, at *3 (emphasis added).
Plaintiff reported his truck driving job required him to stand one hour per day, walk one hour per day, and sit ten hours per day. Additionally, he was required to do some climbing, kneeling and crouching. He further reported he was required to lift twenty pounds occasionally and ten pounds frequently. Id. at 264-270. The VE testified that "truck driver" is medium work by definition in the Dictionary of Occupational Titles, but that, based on Plaintiff's work report, it was light work as Plaintiff actually performed it. AR 35. Thus, pursuant to SSR 96-8p, a function-byfunction assessment of Plaintiff's ability to do the work-related activities associated with light work was especially important.
The associated work-related activities for the full range of light work are defined in the regulations:
20 C.F.R. §§ 404.1567(b); 416.967(b) (emphasis added).
In his narrative statement made in support of the RFC assessment, the ALJ focused only on Plaintiff's capacity to lift, his ability to walk without an assistive device, and his reported daily activities—activities that were actually quite limited:
AR 16.
Plaintiff's actual testimony was that he could stand five or ten minutes to cook breakfast and could mow his lawn with a riding mower. He further testified, however, that he could not do any work requiring him to carry a ten-pound "weed eater." Id. at 31-32. The ALJ did not elicit any testimony from Plaintiff regarding how long he was able to sit on his riding mower at one time or how often he engaged in this activity. The Tenth Circuit has found that limited daily activities "such as short-term work or driving does not establish that the claimant can engage in light or sedentary work activities." Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988) (claimant testified he camped out frequently, hunted and fished, had no difficulties driving his standard-shift utility vehicle and occasionally mowed the lawn, with difficulty). Plaintiff's limited activities do not constitute substantial evidence that Plaintiff can perform the full range of light work, or even the work of truck driver as Plaintiff performed it.
In addition to assessing Plaintiff's capacity to lift and carry, the ALJ gave some consideration to Plaintiff's capacity to do the walking associated with light work. The ALJ gave "great weight" to the opinion of Dr. Maria Pons, a nonexamining agency medical source, who found Plaintiff could perform the full range of light work. The ALJ stated Dr. Pon's opinion was "consistent with the record as a whole." Id. at 16. In support of the "great weight" he afforded Dr. Pon's opinion, the ALJ stated:
Id. at 16-17. However, Plaintiff's ability to walk without assistive devices does not constitute substantial evidence supporting the ALJ's finding that Plaintiff has the capacity to do the "good deal of walking" associated with light work. In fact, the ALJ's finding is overwhelmed by other evidence in the record supporting a conclusion that Plaintiff does not have the capacity to do the amount of walking associated with light work. Plaintiff's medically determinable cardiac condition, the symptoms of which manifested during the consultative examination with Dr. Choi as shortness of breath, difficulty speaking, hypertension and tachycardia, id. at 326, support the opposite conclusion. The ALJ should have considered Plaintiff's limitations from his cardiac condition when assessing Plaintiff's capacity to do the standing and walking associated with the ability to perform a full range of light work. See Wall, 561 F.3d at 1052.
Admittedly, the ALJ did not find Plaintiff's heart condition to be a "severe" impairment at step two. Nevertheless, an "ALJ must consider the combined effect of all of the claimant's medically determinable impairments, whether severe or not severe." Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (citing 20 C.F.R. §§404.1545(a)(2), 416.945(a)(2).
The undersigned has taken into consideration the fact that Plaintiff described his past relevant work as requiring only one hour of walking a day—a requirement more consistent with sedentary work. However, the way Plaintiff actually performed his past relevant work did not relieve the ALJ of his duty to properly assess Plaintiff's capacity to do the walking necessary to perform the "full range of light work."
Moreover, Plaintiff's past relevant work also required him to sit in a truck for ten hours per day. AR 264-270. Dr. Choi who, unlike Dr. Pons, actually examined Plaintiff and described his inguinal hernia as "very prominent," opined that Plaintiff would not be able to do "even a minimal amount of sitting" in any job. Id. at 327. Under the regulations, the Commissioner generally "give[s] more weight to the medical opinion of a source who has examined [the claimant] than to the medical opinion of a medical source who has not examined [the claimant]." 20 C.F.R. §§404.1527(c)(1); 416.927(c)(1). In this case, though, the ALJ gave Dr. Choi's opinion "little weight." The ALJ justified essentially rejecting Dr. Choi's opinion by relying, again, on Plaintiff's limited activities and selective findings that support the RFC determination:
AR 17.
The ALJ's reasons for giving Dr. Choi's opinion "little weight" are not supported by substantial evidence. The ability to "oppose his thumb to his fingertips, manipulate small objects, and effectively grasp tools" has little relevance to the ability to drive a truck ten hours per day. According to the Dictionary of Occupational Titles, only the lowest degree of aptitude for "finger dexterity" is required for the truck driving job. See "Tractor-Trailer-Truck Driver," DOT 904.383-010 (G.P.O.), 1991 WL 687703. Moreover, as discussed supra, Plaintiff's ability to mow his lawn on a riding mower is not necessarily inconsistent with Dr. Choi's opinion, especially where the record does not contain any indication of the length of time Plaintiff sits upon the riding lawn mower at one time, nor how frequently he performs this activity. Additionally, the ability to walk without assistive devices does not necessarily translate to the ability to do the walking associated with light work—especially in light of Plaintiff's heart condition that results in shortness of breath.
In sum, the ALJ erred as a matter of law in assessing Plaintiff's RFC solely in terms of exertional capacity without making separate findings regarding the underlying functional requirements for light work. Additionally, the ALJ's reasoning in rejecting the opinion of the examining consultative physician, Dr. Choi, is not supported by substantial evidence. For these reasons, the Commissioner's final decision should be reversed, and the case remanded for further consideration consistent with this Report and Recommendation. On remand, the ALJ should apply the appropriate regulations in considering Plaintiff's symptoms and credibility, and may consider further developing the record regarding the various procedures previously recommended but not performed in relation to Plaintiff's hernia and heart conditions.
In view of the foregoing findings, it is recommended that judgment enter REVERSING the decision of the Commissioner and REMANDING the case for further proceedings consistent with this Report and Recommendation. The parties are advised of their respective right to file an objection to this Report and Recommendation with the Clerk of this Court on or before
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
