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. 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).
On January 28, 2010, administrative law judge (ALJ) Linda L. Sybrant issued her decision (R. at 8-18). Plaintiff alleges that she has been disabled since September 22, 2006 (R. at 8). Plaintiff is insured for disability insurance benefits through December 31, 2010 (R. at 10). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since September 22, 2006, her alleged onset date (R. at 10). At step two, the ALJ found that plaintiff had the following severe impairment: status post left hip replacement (R. at 10). The ALJ further determined that plaintiff's depression, ADD (attention deficit disorder), bilateral carpal tunnel syndrome and deep vein thrombosis (DVT) of the lower extremities were nonsevere impairments (R. at 11). At step three, the ALJ determined that plaintiff's impairments do not meet or equal a listed impairment (R. at 12). After determining plaintiff's RFC (R. at 12), the ALJ determined at step four that plaintiff was unable to perform past relevant work (R. at 16). At step five, the ALJ determined that other jobs exist in significant numbers in the national economy that plaintiff could perform (R. at 16-17). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 17-18).
Dr. Scott Cook was plaintiff's treating surgeon who performed a left total hip arthroplasty on the plaintiff on September 22, 2006 (R. at 321, 397). On February 8, 2007, Dr. Cook released plaintiff to return to full work, with limitations of no repetitive squatting, stooping, bending, lifting over 50 pounds, or use of ladders (R. at 390). On August 7, 2008, Dr. Cook again stated that plaintiff was limited to no lifting over 50 pounds and no repetitive bending, stooping or squatting, and no work from ladders (R. at 492). On September 17, 2009, Dr. Cook lowered her lifting limitation to 40 pounds as lifting 50 pounds caused severe pain to the left hip (R. at 579).
The ALJ discussed the above opinions by Dr. Cook, and then stated the following regarding the weight to be accorded to these opinions by Dr. Cook:
(R. at 15).
Dr. David Jones was also a treating physician for the plaintiff. On November 2, 2009, he filled out a medical source statement-physical indicating that plaintiff could stand and/or walk for 3 hours in an 8 hour workday, and sit for 4 hours in an 8 hour workday. He also indicated that she could never climb, balance, stoop, crouch or crawl, must avoid all exposure to hazards and heights, and would need to lie down every ½ hour for 10 minutes due to pain (R. at 553-554).
The ALJ stated the following regarding these opinions by Dr. Jones:
(R. at 15-16).
The record also contains a medical source statement-physical from Dr. Cook, dated November 17, 2009. It states that plaintiff can stand and/or walk for 3 hours in an 8 hour workday, and can sit for 4 hours in an 8 hour workday. It states that plaintiff can never climb, stoop, crouch or crawl, and also indicates that plaintiff need to lie down for 30 minutes as needed due to pain (R. at 575-576). The ALJ never mentioned this assessment by Dr. Cook. This was the only report or statement from Dr. Cook which addressed the issue of whether plaintiff had any limitations regarding sitting, standing, and/or walking, or whether she needed to lie down on occasion.
In her decision, the ALJ expressly stated that Dr. Cook "continued to see claimant on a yearly basis with no subsequent restrictions placed on either walking or standing" (R. at 12). This assertion is directly contradicted by Dr. Cook's RFC assessment of November 2009.
The ALJ stated that he was giving "great weight" to the opinions of Dr. Cook, plaintiff's treating surgeon, and found that his restrictions were consistent with his treatment notes and the medical evidence (R. at 15). However, inexplicably, the ALJ made no mention of Dr. Cook's medical source statement which limited plaintiff to sitting, standing, and walking for only 7 hours in an 8 hour workday, and also indicated that plaintiff would need to lie down as needed during the workday for 30 minute periods. According to SSR 96-8p, "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, 1995 WL 374184 at *7. SSR rulings are binding on an ALJ. 20 C.F.R. § 402.35(b) (1);
An ALJ must evaluate every medical opinion in the record.
Although an ALJ is not required to discuss every piece of evidence, the ALJ must discuss significantly probative evidence that he rejects.
The regulations and rulings set forth above clearly dictate that the ALJ must discuss all medical opinion evidence, particularly when the ALJ's findings conflict with those medical opinions. The ALJ simply ignored the November 17, 2009 medical source statement from Dr. Cook, even though the ALJ stated that he was giving "great weight" to other opinions offered by Dr. Cook. The court will not engage in the task of weighing this evidence in the first instance,
On remand, the ALJ must comply with SSR 96-8p, which states that if the RFC assessment conflicts with an opinion from a medical source, the ALJ must explain why the opinion was not adopted. Furthermore, on remand, the ALJ must not consider the opinions of these treating sources in isolation, but those opinions must be considered in light of the entire evidentiary record, including the opinions and assessments of other treating sources. The court is concerned with the necessarily incremental effect of each individual report or opinion by a source on the aggregate assessment of the evidentiary record, and, in particular, on the evaluation of reports and opinions of other treating sources, and the need for the ALJ to take this into consideration.
As noted above, both Dr. Cook and Dr. David Jones limit plaintiff to only being able to sit, stand, and/or walk for 7 hours in an 8 hour workday. Although the ALJ never mentioned this limitation in Dr. Cook's assessment, the ALJ did discuss this limitation in the assessment by Dr. David Jones, stating that such a limitation is not consistent with his treatment notes, and that no explanation or examination supports this opinion. Because this case is being remanded because of the ALJ's failure to consider the November 2009 RFC assessment by Dr. Cook, on remand, the ALJ should consider SSR 96-5p, which states the following:
1996 WL 374183 at *6;
On April 26, 2007, plaintiff underwent a psychological assessment by Dr. Kovach (R. at 431-433). Her report stated the following:
(R. at 433). Following this report, a psychiatric review technique form was prepared by Dr. Cohen (R. at 434-446) which referenced the above report (R. at 446). Dr. Cohen found no severe mental impairment, with only mild difficulties in maintaining concentration, persistence or pace (R. at 434, 444).
On April 15, 2009, plaintiff underwent a second psychological assessment by Dr. Kovach (R. at 524-526). Her report stated the following:
(R. at 526). Following this report, a psychiatric review technique form was prepared by Dr. Adams (R. at 532-544) which referenced both psychological assessments (R. at 544). Dr. Adams found no severe mental impairment, with only mild difficulties in activities of daily living, maintaining social functioning, and in maintaining concentration, persistence or pace (R. at 532, 542).
The ALJ considered each of these medical source opinions, and concluded that plaintiff had only mild restrictions with activities of daily living, social functioning, and maintaining attention, concentration or pace, with no episodes of decompensation. The ALJ concluded that plaintiff's depression and ADD (attention deficit disorder) were nonsevere impairments. However, the ALJ stated that the extent to which these nonsevere impairments might limit her ability to perform basic work activities was accounted for in the RFC findings (R. at 11). The RFC findings did not include any mental limitations (R. at 12). The ALJ found that plaintiff's nonsevere mental impairments do not result in any mental limitations. The ALJ noted that plaintiff's ADD and depression are well controlled on medication, and that she cares for two young children at home. The ALJ stated that these facts weight against a finding that plaintiff's ability to work is limited by mental impairments (R. at 15). As noted above, Dr. Kovach stated in 2009 that, with medication for ADD, plaintiff has no significant problems at work,
The court will not reweigh the evidence or substitute its judgment for that of the Commissioner.
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.
