KIRTAN KHALSA, Magistrate Judge.
Claimant Gregorio Montanio ("Mr. Montanio") alleges that he became disabled on July 1, 2011,
On February 26, 2013, Mr. Montanio protectively filed
On March 25, 2015, the ALJ issued an unfavorable decision. (Tr. 10-22.) In arriving at her decision, the ALJ determined that Mr. Montanio met the insured status requirements of the Act through December 31, 2013,
Because she found that Mr. Montanio's impairments did not meet a Listing, the ALJ then went on to assess Mr. Montanio's residual functional capacity ("RFC"). The ALJ stated that
(Tr. 18.) Based on the RFC and the testimony of the VE, the ALJ concluded that Mr. Montanio was not capable of performing his past relevant work as an electrician apprentice, construction laborer, or furniture mover. (Tr. 20.) At step five, the ALJ determined that considering Mr. Montanio's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that he could perform. (Tr. 20-21.)
On June 8, 2015, the Appeals Council issued its decision denying Mr. Montanio's request for review and upholding the ALJ's final decision. (Tr. 1-3.) On June 29, 2015, Mr. Montanio timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)
Judicial review of the Commissioner's denial of disability benefits is limited to whether the final decision
"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Langley, 373 F.3d at 1118. Substantial evidence is "more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10
"The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal." Jensen v. Barnhart, 436 F.3d 1163, 1165 (10
Disability under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Act if his "physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work in the national economy." 42 U.S.C. § 423(d)(2)(A). To qualify for disability insurance benefits, a claimant must establish a severe physical or mental impairment expected to result in death or to last for a continuous period of twelve months, which prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. §423(d)(1)(A); Thompson v. Sullivan, 987 F.2d 1482, 1486 (10
When considering a disability application, the Commissioner uses a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show that: (1) he is not engaged in "substantial gainful activity"; and (2) he has a "severe medically determinable . . . impairment . . . or a combination of impairments" that has lasted or is expected to last for at least one year; and (3) his impairment(s) meet or equal one of the Listings
Although the claimant bears the burden of proving disability in a Social Security case, because such proceedings are nonadversarial, "[t]he ALJ has a basic obligation in every social security case to ensure that an adequate record is developed during the disability hearing consistent with the issues raised." Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 360-61 (10
Mr. Montanio asserts three arguments in support of reversing and remanding his case, as follows: (1) the ALJ's RFC is incomplete, conclusory, and unsupported by substantial evidence; (2) the ALJ improperly granted controlling weight to State agency nonexamining medical consultants; and (3) the ALJ used improper facts in evaluating Mr. Montanio's credibility. For the reasons discussed below, Mr. Montanio's motion will be granted.
The record supports that Mr. Montanio sought medical care for asthma and back pain at Queenscare Family Clinic in Los Angeles, California, beginning February 9, 2009. (Tr. 370-72.) Mr. Montanio presented as a new patient on that date and was evaluated by Kim Huynh, M.D. (Id.) Mr. Montanio reported chronic back pain for years, numbness in both thighs, and a burning sensation in his right thigh after standing for a prolonged time. (Id.) Dr. Huynh assessed Mr. Montanio with moderate persistent asthma, obesity, backache, meralgia paresthetica (thigh pain), and nicotine dependence. (Tr. 371.) Dr. Huynh discussed weight loss, exercise, diet, and tobacco cessation with Mr. Montanio. (Tr. 372.) Dr. Huynh ordered lab work and prescribed Qvar and Albuterol for Mr. Montanio's asthma, Tramadol and Gabapentin for his back pain, Nortriptyline for his thigh pain, and Wellbutrin to assist with smoking cessation. (Id.) Mr. Montanio returned to Queenscare Family Clinic six more times over the next four months and saw either Dr. Huynh or Nurse Practitioner Christen Sanchez. (Tr. 352-54, 355-57, 358-60, 361-63, 364-66, 367-69.) Over the course of those four months, lab work revealed Mr. Montanio had high cholesterol, and radiologic studies revealed moderate degenerative changes in his lumbosacral spine with some narrowing of the disc space between L3 and L4. (Tr. 368, 373.) Nurse Practitioner Sanchez also diagnosed Mr. Montanio with hypertension. (Tr. 359.) Queenscare providers subsequently prescribed Lipitor for Mr. Montanio's high cholesterol and Hydrochlorothiazide ("HCTZ") for his hypertension. (Tr. 359.) The Queenscare records further noted that Mr. Montanio briefly stopped smoking for 16 days with the help of Wellbutrin. (Tr. 352, 355.) Mr. Montanio's last visit to the Queenscare Family Clinic was on June 16, 2009. (Tr. 352-54.)
On November 3, 2009, Mr. Montanio sought medical care at Albuquerque Health Care for the Homeless ("AHCH"). (Tr. 271-72.) He complained of back pain and burning/numbness to both legs, and requested Tramadol. (Id.) Mr. Montanio also requested Wellbutrin to help with smoking cessation. (Id.) William Zolin, M.D., assessed chronic low back pain, cigarette abuse with erythrocytosis, history of plasma donation, and hypertension. (Id.) Dr. Zolin wrote a prescription for Tramadol for Mr. Montanio to take to an outside pharmacy, and ordered lab work before prescribing Wellbutrin. (Id.) Over the next nineteen months, Mr. Montanio presented ten times to various healthcare providers at AHCH with persistent complaints of chronic lower back pain, asthma and hypertension. (Tr. 240-41, 242-43, 244-45, 246-47, 254-55, 256-58, 259-60, 264, 342-43, 344-45.) AHCH providers prescribed Advair and Albuterol and provided nebulizer treatments for Mr. Montanio's asthma, and prescribed Atenolol for his hypertension. (Id.) Mr. Montanio sought Tramadol for his back pain from an outside pharmacy and from First Nations Community Healthsource because AHCH did not maintain patients on Tramadol. (Tr. 256, 332.) Mr. Montanio's last visit at AHCH was on May 24, 2011. (Tr. 340-41.)
On July 13, 2011, Mr. Montanio established care at First Nations Community Healthsource ("First Nations") in Albuquerque, New Mexico. (Tr. 332.) Mr. Montanio presented for vitals and reported he was out of his blood pressure medication. (Id.) He was evaluated by Alexandria Kazaras, M.D. (Id.) The record supports that Mr. Montanio routinely sought medical care at First Nations from that initial visit until February 5, 2015, and presented at least thirty times for lab work, medication refills, vitals checks, chronic pain management, and breathing-related treatments. (Tr. 304-06, 307-08, 309-10, 311-13, 314-16, 317-18, 319-20, 321-22, 325, 326, 327, 328, 329, 330, 331, 383-84, 385-86, 462-63, 464-65, 466-67, 510-12, 513-16, 517-19, 539-41, 542-44, 545-47, 548-49, 551-53, 554-56, 557-59.) Healthcare providers
On May 18, 2013, Mr. Montanio presented to First Nations with complaints of increased shortness of breath, and after three albuterol nebulizer treatments and a steroid injection over the course of four hours, his oxygen saturation remained below normal. (Tr. 385-86.) Dr. Kazaras instructed Mr. Montanio to go to the University of New Mexico Hospital ("UNMH") emergency room for further evaluation of hypoxia. (Id.) On May 19, 2013, Mr. Montanio presented to UNMH with complaints of shortness of breath for four weeks. (Tr. 414.) Mr. Montanio reported he used Albuterol 4-5 times a day, but had run out about a month ago. (Id.) He also reported using Symbicort. (Id.) Mr. Montanio stated he smoked a pack of cigarettes every day. (Id.) Bilateral generalized expiratory wheezes were noted on physical exam. (Tr. 415.) A chest x-ray returned normal. (Tr. 416.) Mr. Montanio was admitted and treated over the next two days until his oxygen saturation at room air was improved. (Tr. 418.) Mr. Montanio's discharge diagnosis was "probable chronic obstructive pulmonary disease with an acute exacerbation." (Tr. 417-18.) He was discharged with a nebulizer machine and supplies. (Tr. 418.) On May 31, 2013, Mr. Montanio followed up with pulmonary function tests at the UNMH Pulmonary Diagnostic Lab. (Tr. 399-400.) Spirometry showed a moderately severe pulmonary obstruction. (Tr. 400.) Mr. Montanio was diagnosed with asthma. (Tr. 399.)
On June 25, 2013, Mr. Montanio returned to UNMH Pulmonary Diagnostic Lab for additional pulmonary function tests. (Tr. 396.) Spirometry showed a severe obstruction, and notes indicated that his pulmonary lab had significantly worsened since May 2013. (Id.)
On March 30, 2014, Mr. Montanio presented to the UNMH complaining of increased shortness of breath with minimal activity for the past three weeks. (Tr. 483.) Mr. Montanio stated he had been smoking marijuana for the past several months with increased intake lately, and that he also smoked a pack of cigarettes a day. (Id.) The examiner noted that Mr. Montanio reported taking his COPD medications regularly, but that he had run out three weeks earlier. (Id.) Physical exam revealed very poor lung movement with scattered wheezes. (Tr. 484.) Mr. Montanio was admitted and treated for COPD exacerbation. (Tr. 488.) Mr. Montanio was discharged two days later in stable condition "without difficulty walking and improved capacity to physically exert himself without becoming short of breath." (Tr. 487.) Healthcare providers strongly encouraged Mr. Montanio to stop smoking cigarettes and marijuana, and provided him with a patch and smoking cessation information. (Tr. 488.) Attending Physician Seth Scott noted that Mr. Montanio "is self-employed and gets into financial binds where he is unable to afford his medications. He also is a chronic smoker[.]" (Tr. 489.) Dr. Scott further noted that if Mr. Montanio continued to smoke and not take his inhalers, he would likely return with another COPD exacerbation. (Id.)
On May 26, 2011, Mr. Montanio presented to State agency examining medical consultant Karl Moedl, M.D., for a physical evaluation. (Tr. 297-300.) Mr. Montanio reported he was diagnosed with COPD three years earlier and had started smoking at 16. (Tr. 297.) Mr. Montanio represented he was trying to quit smoking. (Id.) Mr. Montanio stated that he could walk about one and half blocks before experiencing shortness of breath and leg pain from his back. (Id.) He stated that could stand 20 minutes before experiencing burning pain down his legs all the way to his feet. (Id.) Mr. Montanio said he could sit for about three hours before having to move. (Id.) On physical exam, Dr. Moedl noted that Mr. Montanio was unable to walk on his toes or heels because of back pain, and that straight leg raising, thoracic-lumbar spine forward flexion, and lateroflexion caused pain in his lumbar spine. (Tr. 298-99.) Dr. Moedl also noted that Mr. Montanio had bilateral rhonchi and wheezing. (Tr. 299.) Dr. Moedl's impression was (1) acute bronchitis with asthma; (2) COPD, still smoking; (3) degenerative lumbar disk disease with pain and limited motion; (4) hypertension; and (5) obesity. (Tr. 299-300.)
On August 7, 2013, State agency nonexamning medical consultant Mark A. Werner, M.D., reviewed Mr. Montanio's medical records. (Tr. 62-65.) Dr. Werner assessed that Mr. Montanio was capable of light work. (Tr. 62-63.) Dr. Werner also assessed environmental limitations that Mr. Montanio should avoid concentrated exposure to extreme cold, extreme heat, wetness, humidity, and "fumes, odors, dusts, gases, poor ventilation, etc.," due to Mr. Montanio's asthma/COPD. (Tr. 63.) Dr. Werner explained that Mr. Montanio's was limited by COPD and mild lower degenerative changes, but that he should be capable of RFC with medication compliance. (Tr. 65.)
On January 13, 2014, State agency nonexamining medical consultant Tom Dees, M.D., reviewed Mr. Montanio's medical records at reconsideration. (Tr. 75-78.) Dr. Dees repeated verbatim Dr. Werner's summary of Mr. Montanio's medical record review. (Id.) Dr. Dees then concluded that the "additional evidence" did not warrant a change in Dr. Werner's RFC.
RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain or shortness of breath, may cause physical or mental limitations or restrictions that may affect his capacity to do work-related physical and medical activities. 20 C.F.R. §§ 404.1529(d)(4), 416.929(d)(4), 404.1545(a)(3), 416.945(a)(3), and SSR 96-8p, 1996 WL 374184, at *2. Exertional capacity addresses an individual's limitations and restrictions of physical strength and defines the individual's abilities to perform each of seven strength demands: sitting, standing, walking, lifting, carrying, pushing, and pulling. SSR 96-8p, 1996 WL 374184, at *5. Nonexertional capacity addresses an individual's limitations and restrictions that do not depend on an individual's physical strength; i.e., all physical limitations and restrictions that are not reflected in the seven strength demands, as well as mental limitations and restrictions. Id. at *6. Some symptoms, such as pain, fatigue, or shortness of breath, inter alia, are not intrinsically exertional or nonexertional and may cause both exertional and nonexertional limitations. Id.; see also SSR 95-5p, 1995 WL 670415, at *1 (considering allegations of pain and other symptoms in RFC).
In determining a claimant's RFC, the ALJ should first assess the nature and extent of the claimant's physical and mental limitations. 20 C.F.R. §§ 404.1545(b) and (c), 416.945(b) and (c). The ALJ is required to consider all of the claimant's impairments, including impairments that are not severe. See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2); see also Wilson v. Astrue, 602 F.3d 1136, 1140 (10
Here, at step two, the ALJ found that Mr. Montanio had severe impairments of COPD, degenerative disc disease, substance abuse and hypertension. (Tr. 16.) She also found he had nonsevere impairments of chronic back pain, bilateral wrist pain, knee pain, and depression. (Id.) In determining Mr. Montanio's RFC, the ALJ explained that Mr. Montanio's medical records demonstrated that, except for occasional flare-ups, his COPD condition was stable. (Tr. 19.) She noted Dr. Moedl's consultative exam and diagnoses of "acute bronchitis with asthma, COPD, still smoking, degenerative lumbar disc disease with pain and limited motion, hypertension and obesity," but concluded that Dr. Moedl "did not indicate any specific limitations regarding sitting, standing, walking or lifting and carrying." (Id.) The ALJ commented that Mr. Montanio's more recent medical records — July 5, 2014 through February 5, 2015 — demonstrated routine care and that x-ray studies were negative for bilateral wrist and knee pain. (Id.) The ALJ concluded as to those records that other than continued medication management and the recommendation to stop smoking, no additional treatment or diagnostic evaluations were ordered, and that "the treating physician has not placed any restrictions on the claimant regarding sitting, standing, walking or lifting and carrying." (Id.) The ALJ stated that "no treating or examining physician has offered the opinion that the claimant is disabled." (Id.) Finally, the ALJ indicated that the "State agency medical and psychological consultants reviewed the medical evidence and opined that the claimant had no `severe' mental impairment and was physically able to perform light work[.]" (Id.) The ALJ found Mr. Montanio's statements regarding the intensity, persistence and limiting effects of his symptoms not entirely credible primarily due to his history of noncompliance with prescribed medical treatment. (Tr. 18-19.) Ultimately, the ALJ granted significant weight to the State agency medical consultants and determined Mr. Montanio was capable of light work; i.e., occasionally lifting and/or carrying 20 pounds; frequently lifting and/or carrying 10 pounds; standing and/or walking up to six hours in an eight-hour day; sitting up to six hours in an eight-hour day; never kneeling, crouching or crawling; and avoiding moderate exposure to pulmonary irritants. (Tr. 18, 19-20.)
Mr. Montanio argues that the ALJ's RFC is contrary to the evidence and the law because the ALJ (1) failed to apply the correct legal standard; (2) failed to address Mr. Montanio's ability to perform sustained work activity; (3) failed to include limitations from Mr. Montanio's back pain; (4) failed to include adequate limitations for Mr. Montanio's COPD; and (5) failed to include a function-by-function assessment. (Doc. 21 at 16-23.) The Commissioner contends that (1) substantial evidence supports that ALJ's RFC; (2) that the ALJ properly found that Mr. Montanio's subjective complaints regarding his inability to work on a "regular and continuous basis" were incredible; (3) that the ALJ accounted for Mr. Montanio's back impairment by limiting him to light work with no kneeling, crouching, or crawling; (4) that the ALJ's failure to impose greater limitations due to Mr. Montanio's COPD was harmless; and (5) that it was not necessary for the ALJ to do a function-by-function assessment. (Doc. 25 at 12-17.) For the reasons discussed below, the Court finds that ALJ failed to apply correct legal standards in determining Mr. Montanio's RFC, and that it is not supported by substantial evidence.
Mr. Montanio argues that the ALJ's RFC failed to properly consider his functional limitations due to his chronic back pain. Specifically, he argues that the ALJ (1) erred by requiring objective medical evidence to support the functional limitations of Mr. Montanio's chronic back pain; (2) erred in finding there was no evidence that Mr. Montanio's chronic back pain had lasted or could be expected to last for the requisite twelve months; (3) erred in finding that Mr. Montanio's chronic back pain could be managed with medication compliance; and (4) erred in finding that Mr. Montanio could sustain work on a regular and consistent basis given his chronic back pain. (Doc. 21 at 17-18, 20-22.) The Commissioner contends that the ALJ properly accounted for Mr. Montanio's "back impairment" by limiting him to light duty work, and limiting him to no kneeling, crouching, or crawling. (Doc. 25 at 16.) The Court is not persuaded.
The ALJ failed to properly consider Mr. Montanio's chronic back pain in determining Mr. Montanio's RFC. See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2); see also Wilson, 602 F.3d at 1140. In determining a claimant's RFC, the ALJ must assess the nature and extent of all claimant's physical and mental limitations. 20 C.F.R. §§ 404.1545(b) and (c), 416.945(b) and (c). Here, at step two of the sequential evaluation process, the ALJ found Mr. Montanio's chronic back pain, inter alia,
(Tr. 16.) The ALJ made no other findings regarding Mr. Montanio's chronic back pain elsewhere in her determination.
Even if the Court assumed arguendo that the ALJ's step two findings regarding Mr. Montanio's chronic back pain were part of her RFC analysis, the ALJ failed to apply the correct legal standards in analyzing Mr. Montanio's pain, and her findings are not supported by substantial evidence. The Tenth Circuit has explained the framework for the proper analysis of a claimant's evidence of pain. "A claimant's subjective allegation of pain is not sufficient in itself to establish disability." Thompson, 987 F.2d at 1488 (citing Gatson v. Bowen, 838 F.2d 442, 447 (10
The ALJ applied an incorrect legal standard in analyzing Mr. Montanio's pain. The first step in the three-step analysis of subjective pain is to determine whether objective medical evidence demonstrates the existence of a pain-producing impairment. Here, the ALJ stated that there was no objective medical evidence to support that Mr. Montanio's chronic back pain imposed significant functional restrictions. (Tr. 16.) This is error. "[T]he absence of an objective medical basis for the degree of severity of pain may affect the weight to be given to the claimant's subjective allegations of pain, but a lack of objective corroboration of the pain's severity cannot justify disregarding those allegations." Thompson, 987 F.2d at 1489 (emphasis added) (quoting Luna, 834 F.2d at 165). In this case, radiologic studies performed in response to Mr. Montanio's complaints of chronic back pain revealed moderate degenerative disc disease. (Tr. 373.) Further, multiple healthcare providers noted evidence of back pain with limited motion on physical exam. (Tr. 242-43, 297-300, 342-43.) Thus, Mr. Montanio proved by objective medical evidence the existence of a pain-producing impairment as he was required to do. Thompson, 987 F.2d at 1488. As such, the ALJ was required to determine whether there is a "loose nexus" between Mr. Montanio's proven impairment and his subjective complaints, and then decide whether she believed him. Id. at 1489. In determining the credibility of pain testimony, the ALJ should consider such factors as
Id.
Here, as previously stated, the ALJ's only discussion regarding Mr. Montanio's chronic back pain was at step two.
The ALJ's first credibility finding is insufficient because she failed to consider the credibility factors outlined in Thompson in assessing Mr. Montanio's subjective complaints regarding his chronic back pain. Thompson, 987 F.2d at 1489. Here, Mr. Montanio reported to Dr. Moedl that he could only walk about one and a half blocks or stand about 20 minutes before he experienced leg pain from his back. (Tr. 297.) He testified that he has to frequently change positions due to his back pain. (Tr. 40.) He further testified that his back pain affects his ability to do grocery shopping, and to do household chores like taking out the trash, sweeping or vacuuming. (Tr. 37-38, 42.) The ALJ nonetheless stated only that Mr. Montanio's medical records mentioned treatment and medication for his chronic back pain, but she failed to identify the levels of medication, or its effectiveness. (Tr. 16.) The ALJ also failed to discuss Mr. Montanio's attempts to obtain relief, or the frequency of his medical contacts, which the record supports were consistent and numerous. See Section IV.A.1, 2, 3, and 4, supra. In her RFC analysis, the ALJ briefly discussed Mr. Montanio's daily activities and stated that he was able to "cook, wash dishes, sweep, mop, and do laundry. He walks across the street and up and down his block every day." (Tr. 18.) However, these findings, at least in part, incorrectly represent the record where Mr. Montanio testified that he does not sweep or vacuum, and that he will walk across the street or maybe down the block, but not that he "walks across the street and up and down his block every day." (Tr. 38-39.) Additionally, an ALJ "may not rely on minimal daily activities as substantial evidence that a claimant does not suffer disabling pain." Thompson, 987 F.2d at 1490. The ALJ's credibility findings, therefore, are insufficient and not supported by substantial evidence.
Mr. Montanio's back pain lasted for longer than twelve months. The medical record evidence supports that Mr. Montanio first complained about back pain on February 9, 2009, and then consistently complained of and/or was treated for chronic back pain through February 5, 2015.
Finally, the ALJ improperly concluded, without more, that Mr. Montanio's chronic back pain "should be amenable to proper control by adherence to recommended medical management and medication compliance." This is error. An ALJ's findings on credibility "should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Kepler v. Chater, 68 F.3d 387, 391 (10
Finally, even if the Court were to agree with the Commissioner that the ALJ considered Mr. Montanio's back pain when she considered his severe impairment of degenerative disc disease as part of her RFC analysis, the ALJ's discussion of Mr. Montanio's degenerative disc disease is equally lacking. In her RFC analysis, the ALJ only mentioned that Dr. Moedl diagnosed Mr. Montanio with, inter alia, "degenerative lumbar disc disease with pain and limited motion." (Tr. 19.) She then concluded, without more, that Dr. Moedl "did not indicate any specific limitations regarding sitting, standing, walking or lifting and carrying." There are two problems here. First, the ALJ's conclusion is misleading because Dr. Moedl's report did not indicate certain restrictions or limitations while excluding others. In other words, his report was silent as to any functional assessment or limitations, even though the regulations call for such findings in a complete consultative examination. See 20 C.F.R. 404.1519n(c)(6), 416.919n(c)(6). The absence of evidence is not evidence. Thompson, 987 F.2d at 1491. Further, it is the ALJ's burden at step five to prove that Mr. Montanio can work at a level lower than his past relevant work, and not Mr. Montanio's burden to prove that he cannot. Id. Thus, to the extent the ALJ believed that an opinion regarding Mr. Montanio's functional limitations was necessary, she should have exercised her discretionary power to recontact Dr. Moedl, provided an explanation of her evidentiary needs, and asked that he furnish the missing information. See 20 C.F.R. §§ 404.1519p(b), 416.919p(b). Second, as already addressed above, the ALJ failed to consider any of Mr. Montanio's subjective complaints regarding any symptoms related to his degenerative disc disease, i.e., pain, and their impact on his ability to do sustained work-related activities on a regular and continuous basis.
For all of the foregoing reasons, the ALJ failed to apply the correct legal standards in determining Mr. Montanio's RFC and her findings are not supported by substantial evidence, because she failed to consider and properly evaluate the limiting effects of Mr. Montanio's chronic back pain on his ability to do sustained work-related activities on a regular and continuous basis. Wilson, 602 F.3d at 1140; Thompson, 987 F.2d at 1491; SSR 96-8p, 1196 WL 374184, *7.
Mr. Montanio also argues that the ALJ's RFC assessment failed to include sufficient limitations related to Mr. Montanio's COPD. Specifically, he argues (1) that the ALJ erred in finding he could have even occasional exposure to pulmonary irritants given the severity of his COPD; and (2) that the ALJ erred in finding he could sustain regular and continuous work given his shortness of breath. (Doc. 21 at 18, 22.) The Commissioner contends that the ALJ's environmental limitation was reasonable because she assigned greater limitations than either of the State agency nonexamining medical consultants. (Doc. 25 at 16.) The Commissioner also asserts that none of the jobs identified by the VE require exposure to pulmonary irritants, thereby making any potential error harmless. (Id. at 17.) Finally, as to Mr. Montanio's ability to sustain regular and continuous work, the Commissioner asserts that the ALJ considered Mr. Montanio's subjective complaints regarding the severity of his symptoms and found they were not entirely credible. (Id. at 15-16.)
The ALJ's RFC assessment failed to consider Mr. Montanio's shortness of breath. At step two, the ALJ found Mr. Montanio had a severe impairment of COPD. (Tr. 16.) As a symptom of his COPD, the record supports Mr. Montanio frequently experienced shortness of breath. For example, Mr. Montanio reported to Dr. Moedl that he could only walk about one and half blocks before becoming short of breath. (Tr. 297.) He reported to healthcare providers that he had shortness of breath using stairs, walking short distances, and with exertion. (Tr. 307, 311, 385, 414, 462, 483.) He further stated that he had difficulty breathing in the mornings and evenings. (Tr. 542, 554.) Mr. Montanio testified to losing his breath while dressing, bathing, and shopping. (Tr. 37.) Mr. Montanio was hospitalized twice due to shortness of breath, and reported to one emergency room physician that he had difficulty performing his work and required frequent breaks to rest in order to catch his breath. (Tr. 415-20, 421, 483-507.) However, there is no discussion in the ALJ's determination addressing the impact of Mr. Montanio's shortness of breath on his ability to do sustained work-related activities on a regular and continuous basis. 20 C.F.R. 404.1529(d)(4) (stating that when a severe medical impairment does not meet or equal a listed impairment, the ALJ will consider the impact of the impairment and any related symptoms on a claimant's RFC); SSR 95-5p, 1995 WL 670415, at *1 (instructing that careful consideration must be given to any available information about symptoms because they sometimes suggest a great severity of impairment than can be shown by objective medical evidence).
Instead, the ALJ's RFC analysis only generally addressed Mr. Montanio's COPD and her findings were conclusory. First, the ALJ found that, except for occasional flare-ups, Mr. Montanio's COPD had remained stable. (Tr. 19.) However, the ALJ failed to define what stable looks like for Mr. Montanio. See Robinson v. Barnhart, 366 F.3d 1078, 1083 (10
The ALJ also did not apply the correct legal standard in assessing Mr. Montanio's credibility. The ALJ found that Mr. Montanio's "history of non-compliance" diminished his credibility regarding his subjective complaints related to his COPD/shortness of breath. (Tr. 19.) She specifically pointed to his continued smoking and concluded that Mr. Montanio "ha[d] not found it necessary to [quit]" despite being told to do so. (Id.) She also pointed to his not taking his inhalers as prescribed. (Id.) She further found that because UNMH Attending Physician Dr. Scott stated Mr. Montanio would likely experience continued COPD exacerbations if he does not stop smoking that it was "logical to assume that the claimant's symptoms of COPD would diminish if he were compliant with treatment recommendations and medications." (Id.) The ALJ's credibility findings fail for two reasons.
First, the medical record evidence supports that Mr. Montanio frequently expressed that he wanted to quit or cut back on smoking despite his inability to do so for any length of time. (Tr. 192, 256, 261, 271, 297, 304, 307, 314, 317, 326, 330, 352, 355, 361, 554.) Thus, the ALJ mischaracterized the evidence by finding Mr. Montanio had "not found it necessary" to quit. (Tr. 19.) Moreover, "even if medical evidence had established a link between smoking and [the claimant's] symptoms, it is extremely tenuous to infer from the failure to give up smoking that the claimant is incredible when [he] testifies that the condition is serious or painful." Shramek v. Apfel, 226 F.3d 809, 813 (7
Second, the ALJ failed to apply the four-factor Frey standard to support her noncredibility determination based on Mr. Montanio's failure to follow his prescribed treatment. Frey, 816 F.2d at 517. As previously discussed, the ALJ may not rely on a claimant's failure to follow his prescribed treatment unless she considers "(1) whether the treatment at issue would restore claimant's ability to work; (2) whether the treatment was prescribed; (3) whether the treatment was refused; and if so, (4) whether the refusal was without justifiable excuse." Thompson, 987 F.2d at 1490 (quoting Frey, 816 F.2d at 517). There is no evidence that Mr. Montanio's compliance with his prescribed treatment for COPD would restore his ability to work given his symptoms and the nature of the disease.
For all of the foregoing reasons, the ALJ failed to apply the correct legal standards in determining Mr. Montanio's RFC and her findings are not supported by substantial evidence, because she failed to consider and evaluate the limiting effects of Mr. Montanio's shortness of breath on his ability to do sustained work-related activities on a regular and continuous basis. Thompson, 987 F.2d at 1491; 20 C.F.R. §§ 404.1529(d)(4), 416.929(d)(4).
Mr. Montanio argues that the ALJ erred in her RFC determination because she failed to explicitly find that Mr. Montanio was capable of walking six hours of an eight-hour workday, and instead only stated that light work "requires a good deal of walking or standing, or . . . involves sitting most of the time with some pushing and pulling of arm or leg controls." (Doc. 21 at 23.) The Commissioner contends that inherent in the ALJ's RFC assessment that Mr. Montanio could do light work is that Mr. Montanio could stand and walk, off and on, for a total of approximately six hours of an eight-hour day with sitting occurring intermittently during the remaining time, and that a function-by-function assessment was unnecessary. (Doc. 25 at 15.) The Court does not agree.
Social Security Ruling 96-8 provides that "[t]he RFC assessment is a function-by-function assessment based upon all of the relevant evidence of an individual's ability to do work-related activities." Hendron v. Colvin, 767 F.3d 951, 956 (10
A function-by-function assessment was critical to the outcome of this case. In Hendron, the Tenth Circuit held that the ALJ's failure to perform a function-by-function assessment did not demonstrate error because the ALJ had adequately addressed the claimant's problems with sitting. Hendron, 767 F.3d at 957. As such, the ALJ's finding in that case that the claimant was limited to sedentary work without explicitly finding that the claimant was capable of sitting for six hours during a regular eight-hour work day was not critical to the outcome of the case. Id. That is not the case here. As discussed at length above, the ALJ did not adequately consider Mr. Montanio's chronic back pain or shortness of breath, nor did she properly evaluate the limiting effects of those conditions on Mr. Montanio's ability to do sustained work-related activities on a regular and continuous basis. See Sections IV.B.1 and 2, supra. Therefore, the ALJ's failure to perform a function-by-function assessment at step five, and separately address Mr. Montanio's ability to sit, stand, walk, push, or pull in light of his chronic back pain and shortness of breath, was critical to the outcome of the case.
For these reasons, the Court finds that the ALJ failed to apply the correct legal standard in determining Mr. Montanio's RFC because she failed to perform a function-by-function assessment as required. SSR 96-8p, 1996 WL 374184, at *3; see also Southard v. Barnhart, 72 F. App'x 781, 784 (10
Mr. Montanio argues that the ALJ applied an incorrect legal standard because she determined, at least in part, that he could do light work because no treating or examining physician found him to be disabled. There is no requirement that a treating or examining physician indicate that a claimant is disabled to support a disability finding. 20 C.F.R. §§ 404.1527, 416.927. Rather, this determination is reserved to the Commissioner. Id. According to the Social Security Administration's own regulations,
20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). In this matter, the ALJ appears to have found that Mr. Montanio was not disabled, at least in part, because no physician specifically determined that he was. (Tr. 17.) In that respect, the ALJ applied an incorrect legal standard in finding that Mr. Montanio was not disabled.
The Commissioner bears the burden of proving that its position was substantially justified. Kemp v. Bowen, 822 F.3d 966, 967 (10
Here, the ALJ failed to apply the correct legal standards in determining Mr. Montanio's RFC and her findings were not supported by substantial evidence, because she failed to consider and evaluate the limiting effects of Mr. Montanio's chronic back pain on his ability to do sustained work-related activities on a regular and continuous basis. Wilson, 602 F.3d at 1140; Thompson, 987 F.2d at 1491; SSR 96-8p, 1196 WL 374184, *7. Additionally, the ALJ failed to apply the correct legal standards in determining Mr. Montanio's RFC and her findings were not supported by substantial evidence, because she failed to consider and evaluate the limiting effects of Mr. Montanio's shortness of breath on his ability to do sustained work-related activities on a regular and continuous basis. Thompson, 987 F.2d at 1491; 20 C.F.R. §§ 404.1529(d)(4), 416.929(d)(4). The ALJ also failed to apply the correct legal standard in determining Mr. Montanio's RFC because she failed to perform a function-by-function assessment as required. SSR 96-8p, 1996 WL 374184, at *3. Finally, the ALJ applied an incorrect legal standard in finding that Mr. Montanio was not disabled by relying, at least in part, on no physician having specifically determined that he was disabled. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). For all of these reasons, the government's position was not substantially justified.
The Court will not address Mr. Montanio'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. Montanio's Motion to Reverse or Remand for Rehearing is