KAREN L. HAYES, Magistrate Judge.
Before the court is plaintiff's petition for review of the Commissioner's denial of social security disability benefits. The district court referred the matter to the undersigned United States Magistrate Judge for proposed findings of fact and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons assigned below, it is recommended that the decision of the Commissioner be
Clarence Ray Burris protectively filed the instant applications for Title II Disability Insurance Benefits and Title XVI Supplemental Security Income payments on January 18, 2011. (Tr. 145-152).
On February 19, 2014, Burris sought review before this court. He alleges the following errors,
This court's standard of review is (1) whether substantial evidence of record supports the ALJ's determination, and (2) whether the decision comports with relevant legal standards. Villa v. Sullivan, 895 F.2d 1019, 1021 (5
Pursuant to the Social Security Act ("SSA"), individuals who contribute to the program throughout their lives are entitled to payment of insurance benefits if they suffer from a physical or mental disability. See 42 U.S.C. § 423(a)(1)(D). The SSA defines a disability as the "inability 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). Based on a claimant's age, education, and work experience, the SSA utilizes a broad definition of substantial gainful employment that is not restricted by a claimant's previous form of work or the availability of other acceptable forms of work. See 42 U.S.C. § 423(d)(2)(A). Furthermore, a disability may be based on the combined effect of multiple impairments which, if considered individually, would not be of the requisite severity under the SSA. See 20 C.F.R. § 404.1520(a)(4)(ii).
The Commissioner of the Social Security Administration has established a five-step sequential evaluation process that the agency uses to determine whether a claimant is disabled under the SSA. See 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows,
See Boyd v. Apfel, 239 F.3d 698, 704-705 (5
The claimant bears the burden of proving a disability under the first four steps of the analysis; under the fifth step, however, the Commissioner must show that the claimant is capable of performing work in the national economy and is therefore not disabled. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). When a finding of "disabled" or "not disabled" may be made at any step, the process is terminated. Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990). If at any point during the five-step review the claimant is found to be disabled or not disabled, that finding is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
The ALJ determined at step one of the sequential evaluation process that the claimant did not engage in substantial gainful activity during the relevant period. (Tr. 14). At step two, he found that claimant suffers severe impairments of cervical disc disease status post-history of surgery; bilateral ulnar decompression neuropathy, left greater than right; and gout. (Tr. 14-15). Id.
The ALJ next determined that Burris retained the residual functional capacity ("RFC") to perform light work,
At step four, the ALJ employed a vocational expert to find that Burris was able to return to his past relevant work as a general clerk, Dictionary of Occupational Titles ("DOT") Code 209.562-010, as that job is generally performed. (Tr. 19-20).
With the exceptions of the consultative examinations, the entire medical file in this matter reflects treatment that Burris received at the Veterans Administration ("VA"). Some of the records document treatment for tooth infections, lesions, and other mundane matters. In addition, the record is littered with multiple copies of the same treatment notes. Also, because plaintiff does not challenge the ALJ's resolution of the effects of his mental impairments, the court will not recite the medical evidence that addresses those impairments. Instead, the ensuing, non-exhaustive chronology focuses upon Burris's physical impairments and their effects.
A January 30, 2009, MRI of the cervical spine showed that Burris had a decompressing laminectomy from C3-C6. (Tr. 303-304). It also showed progressive degenerative spondylosis most significant at C3-4 wherein there was mild central spinal canal stenosis and prominent or significant neural foraminal narrowing. Id.
A March 9, 2009, neurological consultation indicated that Burris suffered from limited range of motion in the neck and numbness of both hands. (Tr. 323-325). An electromyogram administered on March 18, 2009, confirmed that Burris suffered from bilateral ulnar neuropathy caused by compression at the elbows. (Tr. 318-320).
Burris returned to the neurosurgery outpatient clinic on April 27, 2009, for follow-up of the EMG study. (Tr. 399-400). Despite his bilateral ulnar nerve compression, Burris had 5/5 motor strength in the bilateral upper extremities. Id. He also had mild tenderness to palpation beneath the elbows bilaterally. Id. He was offered intervention, but he declined surgery at the time. Id.
On May 14, 2009, Burris reported his usual neck pain and numbness of the forearms. (Tr. 295-296). He was diagnosed with hypertension — controlled; mood disorder; cervical spine degenerative disc disease, status post-surgery; bilateral ulnar nerve compression; and dyslipidemia. Id.
On June 8, 2009, an occupational therapist fitted Burris with "heelbos" for use during the day. (Tr. 239). Although Burris presented with normal sensation, the therapist noted that he suffered from other symptoms consistent with nerve compression. Id.
On August 11, 2009, Burris said that he could not keep his appointment at the VA because he had started a new job. (Tr. 291).
On January 12, 2010, Burris was seen for follow up of chronic medical management. (Tr. 286). He requested reevaluation by neurosurgery for his bilateral ulnar nerve compression. (Tr. 287).
Burris returned to the VA neurosurgery clinic on February 19, 2010, for followup of his bilateral ulnar compression neuropathy. (Tr. 279-280). Burris reported that he had attempted to return to work doing computer work. Id. However, he complained that his neck locked up and that his fingers spasmed and locked into position. Id. He has not regained his strength postoperatively. Id. He also admitted to tingling in his medial palms. Id.
The VA attempted to call Burris on April 29, 2010, but his "wife" said that he was at work. (Tr. 276). Nonetheless, that same day, Burris reported to the VA with complaints of left knee and hip pain following a motor vehicle accident. (Tr. 269). An x-ray of the left hip showed probable bone island in the left femoral head, and mild degenerative joint disease of the left hip. (Tr. 307). Also, an x-ray of the left knee showed mild degenerative joint disease, probable small suprapatellar joint effusion, and probable bone infarct in the distal femur. (Tr. 308).
On June 5, 2010, Burris went to the VA emergency room with complaints of a two-day history of left ankle pain radiating to his knee. (Tr. 256).
On August 19, 2010, Burris returned to the VA for follow-up for his gout. (Tr. 246). He reported that his pain was usually a 5/10, and at worst, an 8/10. (Tr. 249). He conceded, however, that the pain at the 5/10 level was acceptable
VA records from September 16, 2010, document that Burris was being followed for gout, lower back pain, disorders of refraction and accommodation, ulnar nerve lesion/compression, abnormal liver function tests, dyslipidemia, heart murmurs, cervical spinal stenosis, muscle weakness, hypertension, and depression. (Tr. 239).
On November 26, 2010, the VA issued Burris a cane. (Tr. 310-311).
Burris called the VA on February 16, 2011, to request a neurosurgery consultation because of problems with his left arm and hand. (Tr. 440). Thereafter, he returned to the neurosurgery clinic at the VA on March 21, 2011, with complaints of chronic neck pain. (Tr. 439-440). He rated his pain as a 4/10. Id.
On March 15, 2011, at the request of the state agency, Burris underwent a consultative physical examination administered by Julana Lopez, M.D. (Tr. 424-428). At that time, Burris complained of left arm weakness and neck pain caused by cervical stenosis. Id. He also reported a diagnosis of bilateral ulnar compression. Id. He stated that these conditions cause his neck and hands to begin to cramp after sitting or standing for a couple of hours. Id. He further complained of low back pain, and claimed loss of sensation in his arms and fingertips, and muscle weakness in his legs and left arm. Id. Nonetheless, he remained independent in his activities of daily living. Id.
Upon examination, Dr. Lopez noted that Burris exhibited 3/5 muscle strength in his left biceps, deltoid, and triceps. Id. He also demonstrated decreased light touch sensation in the area of C5 on the left arm; otherwise sensation remained intact. Id. His motor strength was 5/5 bilaterally, except as noted above. Id. His grip strength also was 5/5 bilaterally, with dexterity intact. Id. His gait was normal and station stable. Id. Dr. Lopez diagnosed cervical stenosis, s/p laminectomy 2004 per records; bilateral ulnar neuropathy per medical records; muscle weakness, left upper arm, lower motor neuron deficit; chronic lower back pain; muscle spasms, neck; and hypertension, poorly controlled. Id.
Lopez opined that because of the cervical neuropathy, Burris should be able to sit for four hours, stand for four hours, and walk for four hours in a workday. Id. He also can lift or carry objects weighing less than 15 pounds. Id. Because of his ulnar neuropathy, Burris was restricted to writing and typing no more than four hours per day. Id. He did not require an assistive device. Id. He was able to interact effectively and peaceably with others, understand and follow instructions, and communicate without difficulty. Id.
In this case, the sole physician to have offered an opinion regarding the effects of plaintiff's physical impairments was the consultative physician, Dr. Lopez (sometimes incorrectly referred to by the ALJ in his decision as "Dr. John W. Mooring"). As recounted above, the limitations recognized by Dr. Lopez exceed the limitations credited by the ALJ. Specifically, Dr. Lopez opined that the activities of sitting, typing, and writing were limited to four hours in an eight hour period. In addition, she stated that he only could lift objects weighing less than 15 pounds.
Under the regulations, the ALJ must consider the findings and opinions of the state agency medical and psychological consultants. 20 C.F.R. § 404.1527(e)(2)(i). Furthermore, "[u]nless 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 . . . as the administrative law judge must do for any opinions from treating sources, nontreating sources, and other nonexamining sources . . ." 20 C.F.R. § 404.1527(e)(2)(ii). Moreover, although "the ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion,"
In his decision, the ALJ stated that he rejected Dr. Lopez's four hour limitation on writing and typing because he could not find any objective evidence in the record to support the limitation.
Apparently in lieu of Dr. Lopez's opinion, the ALJ decided to give "greater weight to the opinions of the claimant's treating physician and clinicians, due to their areas of expertise, longitudinal treatment history and frequency of contact with the complaint." (Tr. 19). He added that "no treating physician opined that the claimant is disabled and/or unable to work." Id. However, the record does not contain an opinion from a treating physician or clinician regarding the effects of plaintiff's physical impairments. Moreover, the fact that no treating physician opined that Burris was disabled or unable to work does not shed any light on his RFC.
Ultimately, the ALJ simply divined Burris's RFC based on the ALJ's own assessment of the effects of Burris's physical impairments. While an ALJ need not always ground his RFC on a physician's medical source statement, his RFC still must be supported by substantial record evidence. For instance, in Ripley v. Chater, the Commissioner argued that the medical evidence substantially supported the ALJ's decision. Ripley v. Chater, 67 F.3d 552, 557-558 (5th Cir. 1995). Specifically, the Commissioner pointed to medical reports discussing the extent of plaintiff's injuries, including a four year history of back troubles. Id. However, without reports from qualified medical experts, the Fifth Circuit was unable to conclude that the evidence substantially supported the ALJ's residual functional capacity assessment because the court was unable to determine the "effects of [plaintiff's] conditions, no matter how `small.'" Id. The only evidence that described plaintiff's ability to work was plaintiff's own testimony, which, when read in proper context, failed to support the ALJ's residual functional capacity assessment. Id.
The instant case is materially indistinguishable from Ripley, supra. Plaintiff's testimony does not support the ALJ's RFC. (Tr. 35-36, 170, 175). Furthermore, the ALJ concluded that he "considered the complete evidence of record and [found] that the state agency examiners' assessments of the claimant's ability to perform work activity are well supported and are consistent with the findings of the [ALJ]." (Tr. 19). As discussed above, however, the lone medical source statement by Dr. Lopez is not consistent with the ALJ's RFC. To the extent that the ALJ was referring to the physical RFC completed by Eric Godfrey, SDM, the state agency examiner assigned to this case, the court observes that Mr. Godfrey is not a medical professional; rather, he is an agency "single decision maker" ("SDM"). See Tr. 45. Because an SDM or disability examiner is not an acceptable medical source (or even a medical source at all), Godfrey's RFC finding that he constructed for purposes of the agency's initial determination, is not afforded the same weight as an opinion of an agency medical or psychological consultant. See 20 C.F.R. §§ 416.927(f) and 416.913(a)-(d), see also Program Operations Manual System ("POMS") DI 24501.001 THE DISABILITY DETERMINATION SERVICES (DDS) DISABILITY EXAMINER (DE) — MEDICAL/PSYCHOLOGICAL CONSULTANT (MC/PC). In fact, on September 14, 2010, the Commissioner's Chief ALJ issued a memorandum affirming that findings by agency SDMs are not opinion evidence to be considered by ALJs in their decisions. See CONSIDERATION OF SINGLE DECISIONMAKER (SDM) RFC ASSESSMENTS AND OTHER FINDINGS — REVISED (Sept. 14, 2010) discussed in James v. Astrue, Civ. Action No. 11-2129, 2013 WL 443846 (W.D. La. Jan. 17, 2013) report and recommendation adopted, 2013 WL 443819 (W.D. La. Feb. 5, 2013).
In sum, the court is compelled to find that the ALJ's assessment is not supported by substantial evidence. See Williams v. Astrue, 2009 WL 4716027 (5th Cir. Dec. 10, 2009) (unpubl.) ("an ALJ may not rely on his own unsupported opinion as to the limitations presented by the applicant's medical conditions"); Ripley, supra (substantial evidence lacking where: no medical assessment of claimant's residual functional capacity, and claimant's testimony was inconsistent with ALJ's assessment); Butler v. Barnhart, Case Number 03-31052 (5th Cir. 06/02/2004) (unpubl.) (in the absence of medical opinion or evidence establishing that the claimant could perform the requisite exertional demands, the ALJ's determination is not supported by substantial evidence).
Because the foundation for the ALJ's step four determination was premised upon an RFC that is not supported by substantial evidence, the court further finds that the Commissioner's ultimate conclusion that Plaintiff is not disabled, also is not supported by substantial evidence.
The foregoing notwithstanding, plaintiff argues that the ALJ's step four determination also was tainted by the vocational expert's erroneous testimony that the position of General Clerk, DOT Code 209.562-010 is performed at the sedentary exertional level, when, in actuality, it is performed at the light level. See Tr. 19, 43. This misapprehension potentially undermines the assumptions inherent in the vocational expert's testimony.
The Commissioner concedes error, but argues that it was harmless because plaintiff could perform his past relevant work as a general clerk as he actually performed it. However, Burris indicated on his Work History Report that his prior job required him to lift 25 pounds, which, of course, exceeds the 20 pound maximum associated with even light work. (Tr. 181).
For the above-stated reasons,
IT IS RECOMMENDED that the Commissioner's decision be REVERSED and REMANDED pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings consistent herewith.
Under the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule 72(b), the parties have
20 C.F.R. § 404.1567(b).
