KIMBERLY E. WEST, Magistrate Judge.
Plaintiff Brandon Sparks (the "Claimant") requests judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner") denying Claimant's application for disability benefits under the Social Security Act. Claimant appeals the decision of the Administrative Law Judge ("ALJ") and asserts that the Commissioner erred because the ALJ incorrectly determined that Claimant was not disabled. For the reasons discussed below, it is the recommendation of the undersigned that the Commissioner's decision be REVERSED and REMANDED for further proceedings.
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 Social Security Act "only 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 which exists in the national economy . . ." 42 U.S.C. §423 (d) (2) (A). Social Security regulations implement a five-step sequential process to evaluate a disability claim. See, 20 C.P.R. §§ 404.1520, 416.920.
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g). This Court's review is limited to two inquiries: first, whether the decision was supported by substantial evidence; and, second, whether the correct legal standards were applied.
Claimant was born on November 3, 1972 and was 36 years old at the time of the ALJ's decision. Claimant completed his high school education. Claimant has worked in the past as an assistant manager at a fast food restaurant, cashier at a convenience store, and maintenance worker at a bingo hall. Claimant alleges an inability to work beginning January 1, 2007, although Claimant originally asserted a disability date of December 1, 2004. Claimant contends he can no longer work due to limitations resulting from back complications, seizures, and Tourette syndrome.
On October 31, 2005' Claimant protectively filed for disability insurance benefits under Title II (42 U.S.C. § 401, et seq.) and supplemental security income pursuant to Title XVI (42 U.S.C. § 1381, et seq.) of the Social Security Act. Claimant's applications were denied initially and upon reconsideration. An administrative hearing was conducted before ALJ Edward Thompson on April 22, 2009 in Ardmore, Oklahoma. On August 4, 2009, the ALJ issued an unfavorable decision on Claimant's applications. On December 21, 2010, the Appeals Council denied review of the ALJ's decision. As a result, the decision of the ALJ represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981, 416.1481.
The ALJ made his decision at step four of the sequential evaluation. He determined that while Claimant suffered from severe impairments, he did not meet a listing and retained the residual functional capacity ("RFC") to perform his past relevant work as a cashier and food service manager.
Claimant asserts the ALJ committed error in: (1) failing to give legitimate reasons to reject the opinions of the treating physician, failing to discuss significantly probative evidence supporting those opinions; and (2) ignoring Claimant's counsel's request for a consultative examination in the face of medical expert testimony recommending such an examination.
In his decision, the ALJ determined Claimant suffered from the severe impairment of a disorder of the spine. (Tr. 20) . He concluded that for the period of time beginning on January 1, 2007 — the amended onset date — and ending on May 1, 2008, when Claimant returned to work at a level consistent with substantial gainful activity, Claimant retained the RFC to perform light work with the additional restrictions that he could only stoop occasionally, frequently climb, balance, kneel, crouch, and crawl, and should avoid all exposure to hazards such as dangerous moving machinery and unprotected heights. (Tr. 23-24). The ALJ concluded further after consultation with the vocational expert that Claimant could perform his past relevant work as a cashier and food service manager. (Tr. 25).
Claimant first contends the ALJ improperly rejected the opinions of his treating physician, Dr. Vergil D. Smith. On July 5, 2007, Dr. Smith completed a Medical Assessment of Ability to Do Work Related Activities (Physical) on Claimant. He determined Claimant could sit 2 hours in an 8 hour workday, stand 1 hour in an 8 hour workday, walk 1 hour in an 8 hour workday, could not work 8 hours at any level, even with alternating sitting and standing and with usual breaks. Dr. Smith rated Claimant with the ability to live under 10 pounds. He opined that Claimant could not grasp, push, pull or finely manipulate with either hand. He also found Claimant could not use leg controls as in pushing. Dr. Smith wrote on the form that Claimant was "unable to stand, sit, walk or lift for more than short periods." (Tr. 460).
On April 8, 2009, Dr. Smith authored a "to whom it may concern" letter. He noted that Claimant had experienced back problems since being in an automobile accident several years earlier. He stated Claimant has spondylosis and arthritis of the spine, primarily the dorsal and cervical spine which produces pain and stiffness. Dr. Smith stated that an x-ray of Claimant's spine found that the condition had progressed and involved more vertebrae and a thicker development of calcium fusion of the dorsal and cervical vertebrae. He offers that the condition produced "very painful situation for this man and I have been giving him pain medication ever since we discovered it and I suppose I will continue giving it to him as long as I think he needs it." He imposed limitations upon Claimant of not lifting anything over 5-10 lbs., not standing on his feet for any length of time without producing intolerable pain which persisted "24/7." Dr. Smith stated that he did not expect improvement in Claimant's condition. (Tr. 475).
In addressing Dr. Smith's opinion, the ALJ recognized he had seen Claimant "for years." He concluded, however, that Dr. Smith's records do not reveal conditions that might be expected to preclude Claimant from all work activity. The ALJ found Dr. Smith' s treatment notes refer to Claimant's pain complaints without mentioning findings from a physical examination. Ultimately, the ALJ gave Dr. Smith's opinion "little weight." The ALJ primarily refers to the fact that while Dr. Smith stated Claimant could not work, he was, in fact, working and "earning substantial gainful activity." (Tr. 22).
The ALJ instead chose to rely upon a consultative physician, Dr. Phillip McCown, who testified at the administrative hearing. Dr. McCown found Dr. Smith's conclusions were not supported by the record, stating that the "x-rays and MRI's look very good." (Tr. 31). Claimant's counsel then inquired about the x-ray of April 9, 2009, which Dr. McCown had not seen at the time of the hearing. The x-rays revealed prominent spondylosis ligament ossification and hypertrophic spurring in the thoracic spine and cervical spine. An osteophyte had bridged the C-2/C-3 vertebra and prominent calcification from C-4 to C-7 with spurring at C-4/C-5. (Tr.247). When informed of the x-rays, Dr. McCown stated that the x-rays could suggest anklylosing spondylitis. Dr. McCown testified that when an x-ray with such results appear, he would do an orthopedic examination, including range of motion tests and body posture angle testing. (Tr. 42-43). Additional blood work might also be appropriate and a CAT scan. (Tr. 44, 46).
Although Claimant couches his arguments in terms of inadequate consideration of the opinion of a treating physician, this Court deems the problem to lie more in the failure to consider relevant medical evidence. Clearly, the April, 2009 x-ray was taken outside of the relevant period for consideration on Claimant's applications. "[M]edical evidence outside [the relevant] period may be considered to the extent it sheds light on the nature and severity of plaintiff's condition during the relevant time period." See
The decision of the Commissioner is not supported by substantial evidence and the correct legal standards were not applied. Therefore, the Magistrate Judge recommends for the above and foregoing reasons, the ruling of the Commissioner of Social Security Administration should be