SUZANNE H. SEGAL, Magistrate Judge.
Christopher B. Nash ("Plaintiff") seeks review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner" or the "Agency") denying his application for Disability Insurance Benefits ("DIB"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is REVERSED and REMANDED for further administrative proceedings consistent with this decision.
On November 15, 2011, Plaintiff filed an application for DIB, claiming that he became disabled on March 6, 2011. (Administrative Record ("AR") 134-38). Plaintiff based his alleged disability on a back injury, bilateral carpal tunnel, coal miner's fracture of the neck, and right foot numbness. (AR 159, 252). The Agency denied Plaintiff's application on February 23, 2012 (AR 77-81) and upon reconsideration on August 21, 2012. (AR 84-89).
Plaintiff requested a hearing, which was held before Administrative Law Judge ("ALJ") Marti Kirby on June 17, 2013 (the "ALJ Hearing"). (AR 37-74). Vocational expert ("VE") Ronald Hatakeyama also testified. (AR 65-72). On June 28, 2013, the ALJ issued an unfavorable decision. (AR 22-33). Plaintiff sought review before the Appeals Council (AR 90-91), which the Council denied on October 9, 2014. (AR 1-4). The ALJ's determination thus became the final decision of the Commissioner. Plaintiff filed the instant action on December 8, 2014.
To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity and that is expected to result in death or to last for a continuous period of at least twelve months.
To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five.
The ALJ employed the five-step sequential evaluation process. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful employment since his alleged onset date of March 6, 2011. (AR 24). At step two, the ALJ found that Plaintiff had the severe physical impairments of below knee amputation of the left leg (with prosthesis), degenerative disc disease and degenerative joint disease of the cervical spine, degenerative disc disease of the lumbar spine, status post lumbar fusion in June 2011, bilateral carpal tunnel syndrome, status post carpal tunnel release in June 2011, bilateral shoulder impingement, and obesity. (
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.1525, 404.1526). (AR 25). The ALJ also noted that there is no medical listing for obesity and found that Plaintiff's obesity did not result in the "severity of symptoms required to meet or equal a medical listing." (
(
In making this finding, the ALJ considered Plaintiff's subjective allegations, but did not find them fully credible. (AR 26-27). The ALJ also rejected Plaintiff's treating physician Darren L. Bergey's opinion that Plaintiff could lift, push, and pull no more than ten pounds, he could not perform overhead work or climb, and he would be absent from work more than three times a month. (AR 30).
At step four, the ALJ found that Plaintiff was unable to perform past relevant work as a line installer. (AR 31). At step five, the ALJ found that, considering Plaintiff's age, education, work experience and RFC, he could perform jobs that exist in significant numbers in the national economy. (AR 32). Based on the VE's testimony, the ALJ concluded that Plaintiff could perform the requirements of lens inserter, bench assembler, and addresser. (
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The court may set the decision aside when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.
To determine whether substantial evidence supports a finding, the court must "`consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'"
Plaintiff asserts that the ALJ failed to provide specific and legitimate reasons for rejecting the opinion of his treating physician, Dr. Bergey. (Plaintiff's Memorandum in Support of Complaint (the "MSC"), Dkt. No. 14, at 6). The Court agrees.
An ALJ must afford the greatest weight to the opinion of the claimant's treating physician. The opinions of treating physicians are entitled to special weight because the treating physician is hired to cure and has a better opportunity to know and observe the claimant as an individual.
Dr. Bergey, an orthopedic spine surgeon, treated Plaintiff from September 2010 to April 2013. (
Dr. Bergey then treated Plaintiff with several appointments between July 2011 through April 2013. (
On April 23, 2012, Dr. Bergey completed a "Physical Residual Functional Capacity Questionnaire." (AR 264-68). After treating Plaintiff for an extended period of time, Dr. Bergey made several conclusions regarding Plaintiff's limitations. Dr. Bergey described Plaintiff's prognosis as "poor." (AR 264). Plaintiff's symptoms were described as "low back pain and stiffness . . . numbness right foot and bilateral lower extremity numbness and tingling; restricted range of movement; [increased] pain [with] overhead activity." (
Dr. Bergey opined that Plaintiff could sit and stand for less than two hours in an eight-hour workday and walk only one block without resting and sitting. (AR 266). Plaintiff would also need to walk around every thirty minutes for fifteen minutes in an eight-hour workday. (
Between February 2012 and January 2013, due to Plaintiff's impairments, Dr. Bergey opined that Plaintiff was "temporarily partially disabled" and "prescribed modified duty" of "[n]o lifting, pushing, pulling greater than 101bs," "[n]o overhead work," and "[n]o climbing." (AR 292, 303, 312, 436, 447). In January 2013, Dr. Bergey opined that Plaintiff's persistent bilateral shoulder pain "failed to improve with conservative care." (AR 431). In March 2013, Dr. Bergey's diagnoses of Plaintiff's impairments included C3-4 disc degeneration, C3-4 facet arthropathy, C spinous process fracture, bilateral carpal tunnel syndrome, L4 through S1 facet arthropathy, L4 through S1 disc degeneration, right leg radiculopathy, bilateral shoulder impingement syndrome, status post left carpal tunnel release, and status post L4-S1 anterior and posterior fusion with cage and instrumentation. (AR 416-17). In March 2013, Dr. Bergey also declared Plaintiff "[t]emporarily [t]otally [d]isabled" due to ongoing "back/leg pain intolerance" and until Plaintiff could get "better control of his pain." (AR 426). In April 2013, the last record of treatment before the hearing, Dr. Bergey noted that Plaintiff's right shoulder MRI scan revealed mild supraspinatus and infraspinatus tendinosis, tearing of the posterior superior posterior labrum with adjacent para labral cyst, and moderate AC arthrosis. (AR 407, 416). Dr. Bergey also observed that an EMG revealed right carpal tunnel. (AR 408). Based on the objective medical findings and ineffectiveness of conservative care, Dr. Bergey recommended that Plaintiff undergo right shoulder surgery and a right carpal tunnel release. (
In a June 5, 2013 "Physical Residual Functional Capacity Questionnaire," Dr. Bergey diagnosed Plaintiff with C3-4 disc degeneration, C3-4 facet arthropathy, C6 spinous process fracture, and bilateral carpal tunnel syndrome. (AR 749-53). Dr. Bergey noted that Plaintiff's impairments were being treated with physical therapy, pain management and pain medications including Nucynta, Percocet and Xanax. (AR 750). He also opined that Plaintiff would need to be absent from work more than three times a month due to his impairments or treatment. (AR 753).
The ALJ gave "little weight" to "Dr. Bergey's opinions from 2012 and 2013 that [Plaintiff] could lift, push, and pull no more than 10 pounds; he could not perform overhead work or climb; and he could be absent from work more than 3 times a month." The ALJ found that these opinions were "not consistent with the objective evidence as a whole." (AR 30-31). The ALJ further rejected Dr. Bergey's opinion because:
(AR 30-31) (internal citations omitted).
The ALJ found that Dr. Bergey's statement that Plaintiff was "temporarily totally disabled" had "no probative value." In particular, the ALJ found this statement inconsistent with the objective medical evidence. Furthermore, the ALJ concluded that because Drs. Bergey and Suzuki examined Plaintiff "in the context of a workers compensation claim," the credibility and relevance of their medical opinions were "affected" and therefore not entitled to any weight. (AR 31).
As discussed more fully below, the Court finds that the ALJ's reasons for rejecting Dr. Bergey's opinions were not "specific and legitimate reasons." As such, remand is required.
The ALJ rejected Dr. Bergey's opinion because "[a]fter surgery, physical examinations showed some improvement with [Plaintiff's] lumbar spine." (AR 30). The ALJ cites to Dr. Bergey's treatment notes from October 2012 through April 2013 indicating that Plaintiff "stopped exhibiting diminished sensation, but continued showing lumbar paravertebral tenderness." (
Dr. Bergey also treated Plaintiff for neck, bilateral shoulder and right hand impairments. (AR 209, 213-14, 218, 299, 307, 406, 415, 425, 430, 434, 439, 444-45). With respect to Plaintiff's cervical spine and upper extremities, Dr. Bergey observed tenderness of the muscles, reduced range of motion and no bilateral bicep reflexes. (AR 209, 214-15, 219, 264, 300, 309, 434, 439-40, 445). Plaintiff was diagnosed with cervical strain, C6 spinous process fracture, C3-4 disc degeneration, and C3-4 facet arthropathy. (AR 211, 215, 302, 311, 407, 416, 426, 430-31, 441, 446). With respect to Plaintiff's shoulders, Dr. Bergey found tenderness of the muscles (AR 406, 434, 440, 445) and pain with a range of motion (AR 425, 430, 434). Plaintiff's shoulders also exhibited "[m]ildly positive impingement sign bilaterally, positive Tinel's sign on the right" and "[n]umbness in the median nerve distribution." (AR 406;
Between February 2012 and January 2013, Dr. Bergey opined that Plaintiff was "temporarily partially disabled" and "prescribed modified duty" of "[n]o lifting, pushing, pulling greater than 101bs," "[n]o overhead work," and "[n]o climbing. (AR 292, 303, 312, 436, 447). In March 2013, Dr. Bergey declared Plaintiff "temporarily totally disabled" due to "ongoing back/leg pain, intolerance to extensive sitting or standing, gradually worsening bilateral shoulder complaints pending diagnostic imaging, left carpal tunnel syndrome status post surgery, and active dominant hand, right carpal tunnel syndrome" and because Plaintiff would be "unable to participate without significantly increasing his medications." (AR 426). Finally, in April 2013, due to Plaintiff's persistent shoulder pain and right hand carpal tunnel and the ineffectiveness of conservative treatment, Dr. Bergey recommended that Plaintiff undergo surgery for his right shoulder and a right carpal tunnel release. (AR 408, 431). While there may have been "some improvement," Plaintiff still suffered from considerable pain and significant impairments.
Thus, the ALJ's reliance on a finding of "some improvement" to reject Dr. Bergey's opinions reflects an overly selective reading of the record. This selective reading of the record fails to constitute substantial evidence to discredit Dr. Bergey's opinion.
Second, the ALJ's characterization of Plaintiff receiving only "conservative treatment" after surgery was not a legitimate reason to reject Dr. Bergey's opinion. (AR 30-31). The record reflects that even after his surgery, Plaintiff saw Dr. Bergey quite regularly until April 2013. (AR 208-17, 222-29, 290-313, 405-09, 414-18, 424-43, 444-47). Dr. Bergey requested authorization for trigger point injections on several occasions. (AR 211, 292, 302, 312, 417). He also recommended physical therapy, radiofrequency ablation, and regularly prescribed various narcotic pain medications, including Dilaudid, Percocet, Nucynta, and Oxycodone. (AR 308, 301-02, 292, 308, 301-02, 406, 415, 425, 430, 435, 438, 441, 446). These prescribed medications are narcotic pain medications, as opposed to more conservative non-narcotic pain medication that could have been prescribed if Plaintiff's pain was not severe.
The Court notes that even if the characterization of Plaintiff's immediate post-surgical care as "conservative treatment" could be viewed as legitimate, the treatment itself was not effective in resolving Plaintiff's symptoms, and Dr. Bergey recommended more surgery. In his April 9, 2013 treatment note, Dr. Bergey expressly stated that the treatment for Plaintiff — including injections, physical therapy, medications, bracing, and a modified lifestyle — failed to address Plaintiff's severe shoulder pain and right carpal tunnel syndrome. (AR 408). Dr. Bergey therefore recommended that Plaintiff undergo additional surgery for both impairments. (AR 408, 431). Additional surgery is not "conservative treatment." Whether the initial treatment was or was not conservative, it did not successfully treat Plaintiff's pain and impairments. Thus, the ALJ's reliance on "conservative treatment" to reject Dr. Bergey's opinion was not a legitimate reason.
Third, the ALJ rejected Dr. Bergey's opinion because Plaintiff "acknowledged he stopped taking pain medications in December 2011 and was able to perform household chores" and he "admitted lumbar surgery decreased his back pain." (AR 31). However, the Court disagrees with the characterization of Plaintiff's statements. The ALJ cites to Dr. Bergey's December 2011 report which noted:
(AR 308). Thus, when read in context, although Plaintiff attempted to stop taking his medication in December 2011, he was unsuccessful due to increased pain after performing household chores, and had to reinitiate taking his medication so that he could do his household chores. Moreover, the record is replete with evidence that subsequent to December 2011, Plaintiff continued to take narcotic pain medications. (AR 292, 301, 308, 406, 415, 425, 430, 435, 438, 441, 446). The record also reflects that Plaintiff continually complained of low back pain after the surgery. (AR 299, 307, 406, 415, 425, 434, 439, 445). Accordingly, the ALJ's selective reading of Plaintiff's statements does not constitute a specific and legitimate reason supported by substantial evidence for rejecting Dr. Bergey's opinion.
Finally, the ALJ did not give Dr. Bergey's opinion "regarding [Plaintiff's] functional limitations any weight" because, according to the ALJ, Dr. Bergey examined Plaintiff "solely in the context of a workers' compensation claim." (AR 31). As an initial matter, "the ALJ may not disregard a physician's medical opinion simply because it was initially elicited in a state workers' compensation proceeding, or because it is couched in the terminology used in such proceedings."
Although "[t]he categories of work under the social security scheme are measured quite differently" than under the state workers' compensation scheme,
Although Dr. Bergey may have treated Plaintiff within a workers' compensation context, Dr. Bergey was also Plaintiff's treating physician for a number of years. A treating physician is defined as the claimant's own physician who has provided or continues to provide the claimant with medical treatment or evaluation in an ongoing treatment relationship.
Because the ALJ failed to provide specific and legitimate reasons for rejecting the treating physician's opinion, or, instead, to fully credit the opinion, the case must be remanded to remedy this defect. Upon remand, the ALJ must either provide specific and legitimate reasons to reject Dr. Bergey's opinion or incorporate the limitations provided by Dr. Bergey's opinion into the RFC determination.
Accordingly, IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties.