KIRTAN KHALSA, Magistrate Judge.
Claimant John Luis Garcia ("Mr. Garcia") alleges that he became disabled on July 7, 2012, at the age of thirty-seven because of herniated discs, bulging discs, degenerative disc disease, chronic pain in both knees, chronic pain in both elbows, and chronic migraines. (Tr. 163, 174.
On July 25, 2012, Mr. Garcia protectively filed an application for Social Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 401 et seq. (Tr. 135-38, 163.) Mr. Garcia's application was initially denied on October 9, 2012. (Tr. 64, 65-72, 85-88.) It was denied again at reconsideration on June 25, 2013. (Tr. 73-83, 84, 90-94.) On August 28, 2013, Mr. Garcia requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 95.) ALJ Michelle K. Lindsay conducted a hearing on February 13, 2015. (Tr. 31-63.) Mr. Garcia appeared in person at the hearing without representation.
An individual is considered disabled if he is unable "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) (pertaining to disability insurance benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria as follows:
See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4) (supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10
This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by "substantial evidence" or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10
The ALJ made his decision that Mr. Garcia was not disabled at step five of the sequential evaluation. (Tr. 23-25.) Specifically, the ALJ determined that Mr. Garcia met the insured status requirements of the Social Security Act through June 30, 2014,
(Tr. 19.) The ALJ further concluded at step four that Mr. Garcia was unable to perform any past relevant work. (Tr. 23.) The ALJ determined at step five based on Mr. Garcia's age, education, work experience, RFC, and the testimony of the VE, that there were jobs existing in significant numbers in the national economy that Mr. Garcia could perform. (Tr. 23-24.) As a result, the ALJ determined that Mr. Garcia was not disabled. (Tr. 25.)
In support of his Motion, Mr. Garcia argues that (1) treating physician Sharon Mullis, D.O.'s medical source statements submitted to the Appeals Council undercut the ALJ's RFC determination; (2) the ALJ failed to properly consider whether Mr. Garcia's fibromyalgia and migraine headaches equaled the requirements of a listing; (3) the ALJ failed to properly evaluate Mr. Garcia's statements regarding the intensity, persistence and limiting effects of his symptoms pursuant to SSR 16-3p; and (4) the ALJ improperly rejected certain portions of the State agency nonexamining medical consultant opinion evidence. (Doc. 20 at 8-18.) For the reasons discussed below, the Court finds that the ALJ improperly rejected certain portions of the State agency nonexamining medical consultant opinion evidence and that, coupled with treating physician Sharon Mullis, D.O.'s functional assessments submitted to the Appeals Council,
On October 4, 2012, at the initial level of Mr. Garcia's disability claim, State agency nonexamining medical consultant Mark A. Werner, M.D., reviewed Mr. Garcia's medical records. (Tr. 68-70.) Based on his review, Dr. Werner prepared an RFC assessment of Mr. Garcia's ability to do work-related physical activities. (Id.) He assessed that Mr. Garcia could occasionally lift and/or carry 20 lbs.; could frequently lift and/or carry 10 lbs.; could stand and/or walk 2 hours in an 8-hour workday; could sit for about 6 hours in an 8-hour workday; and had unlimited push and/or pull for lift and/or carry, other than shown. (Tr. 69.) Dr. Werner explained that his conclusions about Mr. Garcia's exertional limitations were based on Mr. Garcia's herniated discs and bilateral knee pain. (Id.) Dr. Werner also assessed postural limitations to include only occasional climbing, balancing, stooping, kneeling, crouching and crawling. (Id.) In the "Additional Explanation" portion of Dr. Werner's assessment, Dr. Werner summarized Mr. Garcia's subjective complaints,
The ALJ accorded "great weight" to Dr. Werner's opinion. (Tr. 22.) In so doing, the ALJ explained that
(Tr. 22-23.)
On June 25, 2013, at the reconsideration level of Mr. Garcia's disability claim, State agency nonexamining medical consultant Colleen Ryan, M.D., reviewed Mr. Garcia's medical records and prepared an RFC assessment of Mr. Garcia's ability to do work-related physical activities. (Tr. 79-82.) Based on her review, Dr. Ryan assessed that Mr. Garcia could occasionally lift and/or carry 20 lbs.; could frequently lift and/or carry 10 lbs.; could stand and/or walk 4 hours in an 8-hour workday; could sit for about 6 hours in an 8-hour workday; and had unlimited push and/or pull for lift and/or carry, other than shown. (Tr. 79-80.) Dr. Ryan explained that her conclusions regarding Mr. Garcia's exertional limitations were based on Mr. Garcia's herniated discs and bilateral knee pain. (Id.) Dr. Ryan also assessed postural limitations to include only occasional climbing, balancing, stooping, kneeling, crouching and crawling. (Tr. 80.) In the "Additional Explanation" portion of Dr. Ryan's assessment, Dr. Ryan repeated verbatim Dr. Werner's previously summarized explanation regarding Mr. Garcia's subjective complaints, and Mr. Garcia's 2012 medical records.
The ALJ accorded Dr. Ryan's opinion considerable weight. (Tr. 23.) However, the ALJ stated that Dr. Ryan's opined 4 hour standing and/or walking limitation was not supported by the objective evidence of record.
On March 20, 2011, Mr. Garcia established care with Sharon Mullis, D.O. (Tr. 344-53.) Mr. Garcia reported a history of degenerative disc disease in the lumbar spine,
Mr. Garcia saw Dr. Mullis almost monthly throughout 2011 for ongoing pain medication management,
On August 20, 2015, Dr. Mullis completed a Medical Assessment of Ability To Do Work-Related Activities (Physical) on Mr. Garcia's behalf, and considered Mr. Garcia's medical history and the chronicity of findings from 2012 to the current examination. (Tr. 607.) Dr. Mullis assessed that Mr. Garcia (1) could not maintain physical effort for long periods without a need to decrease activity or pace, or to rest intermittently because of pain and fatigue; (2) could occasionally lift less than 5 lbs.;
Dr. Mullis also completed a Medical Assessment of Ability To Do Work-Related Activities (Non-Physical) and considered Mr. Garcia's medical history and the chronicity of findings from 2012 to the current examination. (Tr. 608.) Therein, Dr. Mullis assessed that Mr. Garcia (1) suffers from a pain producing impairment, injury or sickness; (2) that his pain is severe; (3) that he suffers from fatigue as a result of his impairments; and (4) that he has to rest or lie down at regular intervals because of his pain and/or fatigue. (Id.) She further assessed that Mr. Garcia had slight limitations in his ability to (1) maintain regular attendance and be punctual within customary tolerance; (2) sustain an ordinary routine without special supervision; and (3) work in coordination with/or proximity to others without being distracted by them. (Id.) She assessed Mr. Garcia had moderate limitations in his ability to (1) maintain attention and concentration for extended periods (i.e., 2-hour segments); (2) perform activities within a schedule; and (3) make simple work-related decisions. (Id.) She further assessed that Mr. Garcia had marked limitations in his ability to (1) maintain physical effort for long periods without a need to decrease activity or pace, or to rest intermittently (i.e., 2-hour segments); and (2) complete a normal workday and workweek without interruptions from pain or fatigue based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Id.) Dr. Mullis commented that "[p]atient relates feels has decreased rate of cognitive processing due to `brain fog.'" (Id.)
Mr. Garcia argues that the ALJ's explanation for the rejection of the State agency medical consultants' "opined limitation for standing and/or walking" is not sufficiently explicit. (Doc. 20 at 17.) Mr. Garcia further argues that although supportability is a facially valid reason for rejecting a medical opinion, a facially valid reason without an explanation or analysis is simply too vague to effectively and legitimately support the rejection of a medical opinion. (Id.) The Commissioner contends that even if the Court were to determine that the ALJ's explanation were insufficient, the VE identified 430,000 jobs in the national economy that Mr. Garcia could do even if limited to sedentary work. (Doc. 22 at 15-16.) As such, the Commissioner contends, any error in the ALJ's explanation is harmless. (Id.) The Court does not agree.
"An ALJ must evaluate every medical opinion in the record, although the weight given each opinion will vary according to the relationship between the disability claimant and the medical professional." Hamlin, 365 F.3d at 1215. Specifically, when assessing a claimant's RFC, an ALJ must explain what weight is assigned to each opinion and why. SSR 96-5p, 1996 WL 374183 at *5.
The Court finds that the ALJ's one conclusory reason, without more, for rejecting the standing and/or walking limitation is insufficient. As an initial matter, the ALJ accorded great weight to Dr. Werner's opinion yet offered no explanation at all for rejecting his assessment that Mr. Garcia was limited to light work with a two-hour maximum of standing and/or walking due to herniated discs and bilateral knee pain. (Tr. 22-23.) The ALJ then accorded considerable weight to Dr. Ryan's opinion, wherein Dr. Ryan limited Mr. Garcia to four hours of standing and/or walking in an eight-hour workday, but then concluded, without more, that this opined limitation "was not supported by the objective evidence of record." (Tr. 23.) Although the ALJ summarized Mr. Garcia's medical records elsewhere in her determination, it is not clear to the Court what objective evidence the ALJ relied on to reject the standing and/or walking limitations the medical consultants assessed, particularly where the only medical opinions before the ALJ were those of Dr. Werner and Dr. Ryan. "An ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability." Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir 2007); see also Grogan, 399 F.3d at 1262 (the ALJ must discuss the uncontroverted evidence she chooses not to rely upon, as well as significantly probative evidence she rejects).
The ALJ's error is not harmless. The Commissioner cites a number of cases for the premise that because the ALJ elicited VE testimony about available jobs in response to the ALJ's alternate hypothetical involving sedentary work, which would presumably accommodate Mr. Garcia's standing and/or walking limitation, that any error is harmless. (Doc. 22 at 15-16.) However, the cases cited are distinguishable from the facts here. In Berna v. Chater, 101 F.3d 631 (10th Cir. 1996), the ALJ determined that the claimant was not disabled at step four, but nonetheless made alternative step five findings based on elicited and adopted VE testimony. Berna, 101 F.3d at 633. The claimant challenged only the ALJ's step four findings, but offered no challenge to the ALJ's alternate step five findings. Id. The Tenth Circuit found that it need not reach the merits of claimant's step four challenge because the claimant had waived review of the ALJ's step five findings which provided a basis for the denial of benefits. Id. Similarly, in Wilkerson v. Chater, 106 F.3d 414 (10
In the present case, the ALJ's failure to include Dr. Werner's or Dr. Ryan's standing and/or walking limitation in her RFC assessment or hypothetical to the VE is clearly not harmless error in light of the jobs the VE identified because they all require light exertional capacity, which exceeds the standing and/or walking limitations Dr. Werner and Dr. Ryan assessed.
Moreover, the Court is not persuaded that the record supports the necessary evidence and findings to support alternate step five findings based on the VE's elicited testimony. Here, the ALJ did not have the benefit of Mr. Garcia's treating physician's functional assessments, which have been made part of the record and are now before the Court. (Tr. 5.) The Court finds that Dr. Mullis's assessments undercut the ALJ's finding that Mr. Garcia can perform light work, and may preclude Mr. Garcia from sedentary work as well. In particular, Dr. Mullis's assessment supports Dr. Werner's and Dr. Ryan's opinions that Mr. Garcia's ability to walk and/or stand in an eight-hour workday is limited. (Tr. 69, 79, 607.) Additionally, Dr. Mullis assessed, inter alia, that Mr. Garcia must alternate between sitting and standing due to chronic low back and knee pain, an additional limitation that, according to the VE's elicited testimony, would eliminate both light and sedentary jobs in the competitive market that Mr. Garcia could perform. (Tr. 57.) The Commissioner argues that Dr. Mullis's assessments are severe and not supported by her treatment notes because she often noted normal exam findings. (Doc. 22 at 18-19.) The Court's review of Dr. Mullis's treatment notes, however, demonstrates that Dr. Mullis consistently recorded Mr. Garcia's ongoing complaints of pain; noted positive physical exam findings for tenderness, tightness and pain; managed Mr. Garcia's medication for chronic pain; administered trigger point injections for chronic pain; and referred Mr. Garcia for diagnostic findings, specialized care and physical therapy. (Tr. 322-27, 327-33, 333-38, 339-44, 344-53, 363-71, 371-76, 376-83, 392-99, 399-404, 432-38, 440-45, 570-83, 584-88.) Thus, the Court does not agree with the Commissioner's argument that Dr. Mullis's opinion should be rejected, particularly as it concerns Dr. Mullis's functional assessments that are consistent with Dr. Werner's and Dr. Ryan's opinions and supported by her treatment notes. Moreover, the Court is mindful that Dr. Mullis is a treating physician and that her opinion, even if not entitled to controlling weight, is entitled to deference. Krauser v. Astrue, 638 F.3d 1324, 1330-331 (10
For the foregoing reasons, the Court finds that the ALJ failed to explain and discuss why she rejected Dr. Werner's assessment that Mr. Garcia could only walk and/or stand for two hours in an eight-hour workday, and failed to sufficiently explain and discuss why she rejected Dr. Ryan's assessment that Mr. Garcia could only walk and/or stand for four hours in an eight-hour workday. The Court further finds that the ALJ's failure to do so is not harmless error. The ALJ, therefore, failed to apply the correct legal standard in evaluating the medical opinion evidence and the ALJ's findings are not supported by substantial evidence. As such, this case requires remand.
The Court will not address Mr. Garcia's remaining claims of error because they may be affected by the ALJ's treatment of this case on remand. Wilson v. Barnhart, 350 F.3d 1297, 1299 (10
For the reasons stated above, Mr. Garcia's Motion to Reverse and Remand For a Rehearing With Supporting Memorandum (Doc. 20) is
