PHILIP A. BRIMMER, District Judge.
This matter is before the Court on plaintiff John Rustad's complaint [Docket No. 1] filed on November 29, 2012. Plaintiff seeks review of the final decision of defendant Carolyn W. Colvin (the "Commissioner")
On June 10, 2009, plaintiff applied for disability benefits under Title II of the Act. R. at 12. Plaintiff alleged that he had been disabled since March 1, 2007. Id. After an initial administrative denial of his claim, plaintiff appeared at a hearing before an Administrative Law Judge ("ALJ") on April 28, 2011. Id. On July 14, 2011, the ALJ issued a decision denying plaintiff's claim. Id. at 21.
The ALJ found that plaintiff had the following severe impairments: glomerulonephritis, hemochromatosis and membranous nephropathy. R. at 14. The ALJ found that these impairments, alone or in combination, did not meet one of the regulations' listed impairments, id., and ruled that plaintiff had the residual functional capacity ("RFC") to:
R. 16. Based upon this RFC and in reliance on the testimony of a vocational expert ("VE"), the ALJ concluded that, through the last date the plaintiff was insured, "there were jobs that existed in significant numbers in the national economy" that plaintiff could have performed. R. at 20.
The Appeals Council denied plaintiff's request for review of this denial. R. at 1. Consequently, the ALJ's decision is the final decision of the Commissioner.
Review of the Commissioner's finding that a claimant is not disabled is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence in the record as a whole. See Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The district court may not reverse an ALJ simply because the court may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). "Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, "[e]vidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The district court will not "reweigh the evidence or retry the case," but must "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Flaherty, 515 F.3d at 1070. Nevertheless, "if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
To qualify for disability benefits, a claimant must have a medically determinable physical or mental impairment expected to result in death or last for a continuous period of twelve months that prevents the claimant from performing any substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R. § 404.1520(B)-(F)). 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 and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However, "[i]f the claimant is not considered disabled at step three, but has satisf ied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the residual functional capacity (RFC) to perform other work in the national economy in view of her age, education, and work experience." See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). While the claimant has the initial burden of proving a disability, "the ALJ has a basic duty of inquiry, to inform himself about facts relevant to his decision and to learn the claimant's own version of those facts." Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
Plaintiff argues that the ALJ erred in (1) evaluating plaintiff's treating physician's opinions of disability; (2) assessing plaintiff's RFC; and (3) determining that plaintiff was not credible. Docket No. 12 at 5. Plaintiff also argues that the Commissioner erred in failing to take into account supplemental materials from Dr. Block and another treating physician, Dr. Mooney, that were submitted to the appeals council. Id. at 10. Defendant responds that the Court should defer to the ALJ's decision to give substantial weight to the testifying expert based on the expert's qualifications. Docket No. 13 at 9.
The relevant evidence of record is as follows. Plaintiff claimed that he became unable to work on March 1, 2007 due to glomerulonephritis,
In April 2007, plaintiff saw his primary care physician, Dr. Robert Carson. R. at 250. At that visit, plaintiff reported that he had been "doing well," but noted an episode of fatigue the previous November. Id. As of the April 2007 visit, plaintiff was experiencing no headaches, dizziness, or lightheadedness. Id. Plaintiff did report occasional edema.
In May 2007, plaintiff reported to Dr. Block that he felt "a lot better" than he did during his December 2006 visit. R. at 382. Plaintiff still complained of fatigue, but "denie[d] any other systemic symptoms" and had no leg swelling. Id. Dr. Block noted "falling albumin" that he found concerning, but said that it was unclear if plaintiff was experiencing a flare of his kidney disease or whether his lab results were "the long term consequence of having glomerular injury." Id. at 384. Dr. Block placed plaintiff on a new medication. Id.
In September 2007, plaintiff told Dr. Block that he was doing "extremely well." R. at 379. Plaintiff said that he did not tolerate the new medication and was not taking it. Id. Dr. Block noted that plaintiff had no urinary symptoms and no leg swelling, id., and that he believed that plaintiff was experiencing a "hyperfiltration/loss of renal mass issue" rather than a flare of his kidney disease. Id. at 381.
Plaintiff next saw Dr. Block in January 2009. R. at 375. At that visit, he reported "generally feeling well" except for a lack of energy. Id. Dr. Block noted that while plaintiff was experiencing "variability in his urine protein and a modest but stable decrease in his serum albumin," he had no other symptoms of severe kidney disease, and his condition was either "modestly active membranous nephropathy" or the "result of hyperfiltration injury" due to plaintiff's fourteen years of chronic kidney disease. Id. at 377. Dr. Block noted that plaintiff's condition was "very stable" and that he "lack[ed] [] symptoms." Id.
In February 2009, plaintiff experienced a "relapse" in his kidney disease, and Dr. Block altered his medication. R. at 373. The following month, Dr. Block reported an "excellent decrease in [plaintiff's] urine protein" in response to the new medication. Id. at 368.
In March 2010, Dr. Block wrote a letter in which he discussed plaintiff's ability to work. R. at 422. Dr. Block stated that plaintiff's disease is "characterized by often severe leg swelling and fatigue," and that plaintiff is "at risk for development of a blood clot related to the heavy loss of protein in his urine." Id. Dr. Block further wrote that plaintiff would need "frequent unscheduled breaks during the day" to minimize the risk of leg swelling, and that he "should not perform activities which would require prolonged periods of immobilization (at a desk or in a chair) as this can be a predisposing risk for blood clots." Id. The next month, Dr. Block wrote a second letter that specified that plaintiff "should not be on his feet in an eight hour work situation for more than two hours out of the eight, and should not be on his feet for more than thirty minutes at any one time" due to "fatigue and the increased risk of swelling." Id. at 434.
On April 20, 2011, state agency reviewing physician Karl Chambers completed a Physical Residual Functional Capacity Assessment. R. at 464-471. Dr. Chambers opined that "[t]jhe degree of limitation of ambulation by [Dr. Block] is not supported by the overall clinical findings" and that Dr. Block's opinion was therefore not entitled to full weight. Id. at 471. Dr. Chambers further opined that plaintiff was able to stand and walk for a total of four hours per day. Id. at 466.
At the hearing on plaintiff's disability application, state medical expert Alan Coleman testified at length about plaintiff's condition. See R. at 35-37, 39-54. Dr. Coleman specializes in internal medicine with a sub-specialty in nephrology. Id. at 45. Dr. Coleman never treated plaintiff, id. at 36, and based his opinion on a review of plaintiff's medical records. See generally id. at 39-43. Dr. Coleman testified that while plaintiff had "lost some kidney function," he "hasn't lost enough kidney function for it to affect his health or to threaten him with a need for dialysis or transplantation." Id. at 40. Dr. Coleman testified that patients with membranous nephropathy generally fall into three categories: about a third of patients get over the condition spontaneously within a few years, about a third develop progressive kidney failure, and the final third "seem[] to be fairly stable. They don't get better and they don't get worse[.]" Id. Dr. Coleman opined that plaintiff was in the third, stable group. Dr. Coleman further explained that when plaintiff's condition is serious, patients "have enormous edema" whereas plaintiff's record indicated that he had only mild to moderate edema. Id. at 41. With respect to plaintiff's ability to work, Dr. Coleman opined that plaintiff is "functioning at a level of light activity" and could operate with "no limitations on standing and walking or sitting" and that any limitations were "self-imposed because of [plaintiff's] concern that his legs are going to swell." Id. at 48. With respect to fatigue, Dr. Coleman stated that plaintiff's disease "at this level doesn't cause fatigue as far as we understand it." Id. at 50.
The ALJ gave Dr. Block's opinions "little weight" at step three, finding that the opinions spoke generally about the symptoms associated with plaintiff's disease, but "did not say that [plaintiff] actually had these symptoms." R. at 16. The ALJ further noted an "absence of objective medical signs and findings" that plaintiff is "actually manifesting severe leg swelling or fatigue." Id. Conversely, the ALJ found that Dr. Coleman's assessment was "amply supported by the objective medical evidence" and therefore gave it "great weight." Id. at 15. The ALJ further found that plaintiff was not credible as to the "intensity, persistence and limiting effects" of the symptoms of his disease. Id. at 17.
Plaintiff first argues that the ALJ erred by making a determination as to the respective weight given to Dr. Block's and Dr. Chambers' opinions at the third step in his evaluation rather than at the RFC stage. Docket No. 12 at 10-11.
The opinion of a treating physician is generally entitled to greater weight than that of a non-treating physician because of the unique perspective derived from a treating relationship. 20 C.F.R. § 404.1527(c)(2). Thus, an ALJ must accord controlling weight to the opinion of a treating physician where that opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record. Id. Moreover, the opinion of a treating physician merits some measure of deference to be determined based on an application of the factors listed in 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii). "The ALJ must give specific, legitimate reasons for disregarding the treating physician's opinion that a claimant is disabled." Goatcher v. U.S. Dep't of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995).
As "findings of a nontreating physician based upon limited contact and examination are of suspect reliability," Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987), when such findings conflict with the opinions of a treating physician, the ALJ must examine the nontreating physician's report "to see if it outweighs the treating physician's report, not the other way around." Hamlin v. Barnhart, 365 F.3d 1208, 1219 n.13 (10th Cir. 2004) (citations omitted). "Unless a treating source's opinion is given controlling weight, the administrative law judge must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant." 20 C.F.R. § 404.1527(e)(2)(ii).
The ALJ declined to give Dr. Block's opinion controlling weight and gave specific reasons for disregarding Dr. Block's opinions concerning plaintiff's risk of leg swelling. R. at 16. The ALJ concluded that Dr. Block's opinions constituted "literary obfuscation" because his letters focused on symptoms associated with plaintiff's condition rather than the symptoms that plaintiff himself exhibited. See id. The ALJ further specified that he gave Dr. Coleman's opinion "great weight" because it was "amply supported by the objective medical evidence of record." R. 15. While the ALJ performed this analysis at step three of the five-step process and not at the RFC stage, the ALJ's decision was "sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).
Plaintiff also argues that the ALJ ignored Dr. Block's opinion about plaintiff's inability to perform work that required long periods of immobilization due to the risk of blood clots. Docket No. 12 at 30; R. at 422. Defendant argues that the ALJ, in formulating his RFC determination, "acknowledged certain limitations suggested by Dr. Block, such as the requirement that Plaintiff avoid `prolonged periods of immobilization (at a desk or in a chair)' that might increase his risk for blood clots." Docket No. 13 at 14. Plaintiff, however, correctly points out that "the ALJ never addressed the issue of blood clots." Docket No. 14 at 9 n.1; see R. at 14-21. Moreover, Dr. Coleman's testimony was silent as to plaintiff's risk of blood clots and any limitations it might place on his ability to perform work. See R. at 35-37, 39-54.
The Court finds that the failure to consider Dr. Block's opinion as to plaintiff's risk for blood clots is grounds for remand. Although the ALJ is "not required to discuss every piece of evidence," he must "discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citing Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)). Dr. Block's opinion that plaintiff's condition required him to avoid prolonged periods of immobilization is uncontroverted and at odds with the ALJ's RFC determination. Whereas Dr. Block opined that plaintiff must avoid prolonged periods of immobilization, the ALJ found that plaintiff was able to sit for six hours in an eight hour day. R. at 16. The Court cannot determine that the ALJ's failure to discuss uncontroverted evidence relevant to this determination was harmless error.
Plaintiff argues that the ALJ erred by failing to address Dr. Chambers' opinion that plaintiff was limited to four hours standing and walking in a day. Docket No. 12 at 23.
Plaintiff also argues that the ALJ's determination regarding plaintiff's ability to perform a wide range of light occupations was not supported by the testimony of the VE at the hearing. Docket No. 12 at 30. Indeed, the Court finds substantial differences between the ALJ's RFC determination and the hypothetical posed to the VE, the answer to which provided the basis for the ALJ's determination that a significant number of jobs existed in the national economy that plaintiff could have performed. Specifically, the ALJ found that plaintiff would require "regular breaks (at approximately every two hour point)" and "the opportunity to shift positions every 2 hours." R. at 16. However, the hypothetical posed to the VE made no mention of regular breaks or the opportunity to shift positions at will. See generally id. at 73-75.
The failure to mention plaintiff's need for breaks supports the need for remand. Blevins v. Astrue, 2011 WL 843961 at *9 (D. Kan. Mar. 8, 2011) (remanding where "the RFC . . . required that [p]laintiff should be able to shift positions at will, but that requirement was not even suggested to the VE") (internal citations and quotation omitted); Gay v. Sullivan, 986 F.2d 1336, 1340 (10th Cir. 1993) ("testimony elicited by hypothetical questions that do not relate with precision all of a claimant's impairments cannot constitute substantial evidence to support the Secretary's decision") (citations and quotations omitted). This is particularly true here, since the testimony that the VE did provide on the issue of breaks suggests that plaintiff's need for frequent unscheduled breaks may preclude him from obtaining employment. When asked whether a need for "four or five unscheduled breaks a day" would preclude plaintiff from performing light work, the VE responded that he "[does not] know of any employer who's going to put up with that"). R. at 79.
In light of the aforementioned errors, the ALJ's decision will be reversed and remanded. The ALJ's consideration of Dr. Block's opinion with respect to plaintiff's risk of blood clots, Dr. Chambers' opinion on the limitations on plaintiff's ability to stand and walk, and the VE's answer to a hypothetical consistent with plaintiff's RFC will provide the ALJ with the opportunity to reassess the totality of evidence supporting plaintiff's RFC. Therefore, the Court will not address plaintiff's arguments that the ALJ erred in determining that plaintiff was not credible as to the severity of his symptoms and that the opinion of Dr. Mooney was ignored by the appeals council. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) ("We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand").
For the foregoing reasons, it is
