SAM A. CROW, Senior District Judge.
This is an action reviewing the final decision of the Commissioner of Social Security denying the plaintiff disability insurance benefits and supplemental security income payments. The matter has been fully briefed by the parties.
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards.
The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that they have a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that they are not only unable to perform their previous work but cannot, considering their 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).
The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he or she is not working at a "substantial gainful activity." At step two, the agency will find non-disability unless the claimant shows that he or she has a "severe impairment," which is defined as any "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant's impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do his or her previous work; unless the claimant shows that he or she cannot perform their previous work, they are determined not to be disabled. If the claimant survives step four, the fifth and final step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.
The claimant bears the burden of proof through step four of the analysis.
Before going from step three to step four, the agency will assess the claimant's residual functional capacity (RFC). This RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g); 416.920(a)(4), 416.920(e,f,g).
April 26, 2010, administrative law judge (ALJ) Michael A. Lehr issued his decision (R. at 15-25). Plaintiff alleges that she has been disabled since November 2, 2007 (R. at 15). Plaintiff is insured for disability insurance benefits through September 30, 2009 (R. at 17). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since plaintiff's alleged onset date of disability (R. at 17). At step two, the ALJ found that plaintiff has the following severe impairments: hepatitis C, degenerative disc disease of the lumbar spine, history of osteoporosis, major depressive disorder, post-traumatic stress disorder, and polysubstance abuse in alleged remission (R. at 17). At step three, the ALJ determined that plaintiff's impairments do not meet or equal a listed impairment (R. at 18). After determining plaintiff's RFC (R. at 19), the ALJ determined at step four that plaintiff is unable to perform any past relevant work (R. at 23). At step five, the ALJ determined that plaintiff could perform other jobs that exist in significant numbers in the national economy (R. at 24-25). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 25).
According to SSR 96-8p, the RFC assessment "must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts...and nonmedical evidence." The ALJ must explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved. The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the ALJ must explain why the opinion was not adopted. SSR 96-8p, 1996 WL 374184 at *7. SSR rulings are binding on an ALJ. 20 C.F.R. § 402.35(b)(1);
In his decision, the ALJ discussed a functional capacity evaluation performed by Brenda Hendrick, a licensed physical therapist (LPT) on August 26, 2009 (R. at 443-448). According to the ALJ, "Ms. Hendrick found that the claimant was limited to less than a full range of sedentary work" (R. at 23). The ALJ then set forth his reasons for giving this opinion "little" weight (R. at 23). However, the ALJ's RFC findings state that plaintiff has the residual functional capacity to "perform less than a full range of sedentary work" (R. at 19), including lifting and/or carrying 10 pounds occasionally and less than 10 pounds frequently, standing and/or walking 2 hours in an 8-hour workday, and sitting 6 hours in an 8-hour workday (R. at 19). LPT Hendrick limited plaintiff to lifting/carrying from 5-10 pounds occasionally and from 3-5 pounds frequently (R. at 444).
By contrast, the only other physical RFC assessment in the record is a state agency assessment performed by Dr. Siemsen, a non-examining physician, who opined that plaintiff was limited to the exertional ability to perform light work (R. at 393-400). The ALJ noted that his RFC findings were more limiting based upon evidence not available to Dr. Siemsen (R. at 22-23).
The ALJ stated that the opinions from LPT Hendrick are not supported by other evidence of record, and are not consistent with the treatment notes. However, the ALJ only took issue with one of the findings in LPT Hendrick's report, which is the finding regarding reaching above the shoulder(R. at 23). LPT Hendrick opined that plaintiff could only reach above the shoulder infrequently, or from 1-6% of the time (R. at 443). LPT Hendrick stated the following regarding the reaching test:
(R. at 446-447, emphasis added).
In discounting this opinion, the ALJ relied on treatment records from Dr. Eyster, whose notes from March 12, 2009 state the following:
(R. at 429). However, Dr. Eyster does not indicate if he examined plaintiff in regards to reaching overhead, or whether reaching overhead significantly increased plaintiff's pain levels. The court would note that LPT Hendrick, before examining plaintiff's ability to reach overhead, had previously stated in her report that plaintiff had "good" to "normal" strength and functional range of motion in her shoulders and arms (R. at 444, Doc. 16 at 16). Only LPT Hendrick specifically addressed plaintiff's ability to reach overhead and whether it significantly increased her pain levels.
The ALJ fails to identify any medical or other evidence which disputes LPT Hendrick's specific finding limiting plaintiff's overhead reaching because of significantly increased pain levels. Dr. Eyster's medical notes are neither consistent or inconsistent with the functional capacity evaluation by LPT Hendrick because it is silent on the issue of overhead reaching. Thus, the court finds that substantial evidence does not support the one specific finding in the evaluation by LPT Hendrick which the ALJ takes issue with in his decision.
The court finds that substantial evidence does not support the ALJ's finding that the opinions of LPT Hendrick lack support from treatment notes or objective findings, especially in light of the fact that both LPT Hendrick and the ALJ limited plaintiff to less than a full range of sedentary work. It makes little sense to give "little" weight to an opinion when both the opinion in question and the ALJ's RFC findings limit plaintiff to less than a full range of sedentary work. The opinion of LPT Hendrick and the ALJ both adopt similar limitations in plaintiff's ability to lift/carry, sit and stand/walk, and no other medical opinion adopted the same limitations in these three categories. In only one category, overhead reaching, did the ALJ specifically disagree with the opinion of LPT Hendrick, and, as noted above, the ALJ's reasons were not supported by substantial evidence. Therefore, on remand, the ALJ will need to reexamine the weight to be accorded to the opinions expressed by LPT Hendrick, and make new RFC findings after determining what weight should be accorded to her opinions.
The record also contains a mental status examination from Dr. Molly Allen, a licensed psychologist (R. at 385-387). In her report, Dr. Allen stated the following:
(R. at 387). Although the ALJ noted the report, and the above opinion (R. at 20-21), the ALJ did not indicate what weight, if any, he accorded to her opinions, and the ALJ, without explanation, did not include the above opinion in his RFC findings.
According to SSR 96-8p, the RFC assessment must always consider and address medical source opinions, and if the RFC assessment conflicts with an opinion from a medical source, the ALJ "must" explain why the opinion was not adopted. 1996 WL 374184 at *7. The medical opinion that she may need a few more cues and reminders than is typical for others, due to occasional problems with focus and worry, is not included in the ALJ's RFC findings, and the ALJ provides no explanation for not including this limitation. The court will not speculate on why the ALJ did not include this limitation, and the court will not speculate on the impact, if any, of this limitation on plaintiff's ability to work. Therefore, on remand, the ALJ will need to either include this limitation in his RFC findings, or provide a legally sufficient explanation for not including this limitation in plaintiff's RFC.
Plaintiff also asserts error by the ALJ in his consideration of plaintiff's obesity, obtaining records, and step five findings. The court will not address the remaining issues in detail because they may be affected by the ALJ's resolution of the case on remand after the ALJ further evaluates the medical opinion evidence, as set forth above.
Regarding obesity, plaintiff notes that plaintiff was diagnosed with obesity (Doc. 11 at 14). The evaluation of obesity is governed by SSR 02-01p, 2002 WL 32255132, and on remand, the ALJ should consider this diagnosis in accordance with SSR 02-01p. However, plaintiff points to no evidence in the record showing that plaintiff's obesity exacerbated her other impairments. Without some evidence that her obesity was relevant to her other impairments during the relevant time frame, the ALJ is not required to consider plaintiff's obesity.
During the hearing, plaintiff's attorney noted that the record was missing certain treatment records (R. at 45-46). 42 U.S.C. § 423(d)(5)(B) states as follows:
(emphasis added). Although the claimant has the burden of providing medical evidence proving disability, the ALJ has a basic duty of inquiry to fully and fairly develop the record as to material issues. This duty is especially strong in the case of an unrepresented claimant. The ALJ has a duty to develop the record by obtaining pertinent, available medical records which come to his attention during the course of the hearing.
In the case of
In light of the fact that this case is being remanded for other reasons, the ALJ would be well advised, based on the above regulation and case law, to obtain those treatment records.
IT IS THEREFORE ORDERED that the judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order.
