CHARLES B. GOODWIN, Magistrate Judge.
Plaintiff Susan Gail Prince brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") denying Plaintiff's applications for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The parties have consented to the jurisdiction of a United States Magistrate Judge. Doc. No. 15. Upon review of the administrative record (Doc. No. 13, hereinafter "R. _"), and the arguments and authorities submitted by the parties, the Court reverses the Commissioner's decision and remands the matter for further proceedings.
Plaintiff protectively filed her applications for DIB and SSI on June 17, 2011, alleging a disability onset date of September 10, 2010, and alleging disability based on degenerative disc disease, retinitis pigmentosa,
As relevant here, the Commissioner uses a five-step sequential evaluation process to determine eligibility for disability benefits. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 10, 2010, the alleged onset date. R. 13. At step two, the ALJ determined that Plaintiff had the severe impairments of chronic lumbago, degenerative disc disease, and obesity. R. 13-14. At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 14-15.
The ALJ next assessed Plaintiff's residual functional capacity ("RFC") based on all of her impairments. R. 15-18. The ALJ found that Plaintiff had the RFC to perform light work subject to additional limitations:
R. 15; see 20 C.F.R. §§ 404.1567(b) (defining "light work"), 416.967(b) (same). At step four, the ALJ found that Plaintiff was able to perform her past relevant work as a medication technician as it was actually performed. R. 18-19.
The ALJ continued to step five and considered in the alternative whether there are jobs existing in significant numbers in the national economy that Plaintiff—in view of her age, education, work experience, and RFC—could perform. Taking into consideration the hearing testimony of a vocational expert regarding the degree of erosion to the unskilled light occupational base caused by Plaintiff's additional limitations, the ALJ made the alternative findings that Plaintiff could perform occupations such as laundry sorter, mailroom clerk, and marker, all of which offer jobs that exist in significant numbers in the national economy. R. 19. The ALJ concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, from September 10, 2010, through the date of the decision. R. 20.
Judicial review of the Commissioner's final decision is limited to determining whether factual findings are supported by substantial evidence in the record as a whole and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (internal quotation marks omitted). "A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004) (internal quotation marks omitted). The court "meticulously examine[s] the record as a whole," including any evidence "that may undercut or detract from the ALJ's findings," "to determine if the substantiality test has been met." Wall, 561 F.3d at 1052 (internal quotation marks omitted). While a reviewing court considers whether the Commissioner followed applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
Plaintiff presents two broad challenges: (1) the ALJ's RFC determination was legally flawed and not supported by substantial evidence; and (2) the ALJ's credibility analysis was legally flawed and not supported by substantial evidence. See Pl.'s Br. (Doc. No. 20) at 12-24. The Court finds the first claim of error persuasive and, for the reasons set forth below, reverses and remands the decision of the Commissioner.
Plaintiff argues that the ALJ failed to properly consider her vision problems. See Pl.'s Br. at 18-19. Plaintiff applied for DIB and SSI on the basis of degenerative disc disease, retinitis pigmentosa, and arthritis.
Given that Plaintiff's past relevant work requires reading and frequent near visual acuity, and two of the three alternative step-five jobs require frequent near visual acuity (with the third requiring it occasionally), the ALJ's disregard of this impairment requires reversal. See Washington v. Shalala, 37 F.3d 1437, 1438-40 (10th Cir. 1994) (reversing when the ALJ mentioned plaintiff's vision loss when summarizing the medical evidence but did not discuss how that loss impacted plaintiff's ability to do work); see also Dictionary of Occupational Titles (4th rev. ed. 1991) §§ 355.374-014 (certified medication technician), 1991 WL 672938; id. 361.687-014 (laundry sorter), 1991 WL 672991; id. 209.687-026 (mailroom clerk), 1991 WL 671813; id. 920.687-126 (marker), 1991 WL 687992. On remand, the ALJ should consider Plaintiff's vision problems and whether they affect the RFC evaluation and the related findings at steps four and five.
Citing evidence of her back and leg pain, Plaintiff challenges the ALJ's determination that Plaintiff could stand and/or walk for six hours out of an eight-hour workday. Pl.'s Br. at 18. As noted by Plaintiff, the ALJ reviewed Plaintiff's medical records and set forth specific findings regarding the limitations caused by her back and leg pain. Plaintiff argues that the ALJ's review was incomplete, however, because it "wholly overlooked or dismissed without adequate explanation a considerable amount of evidence that undermined the ALJ's reasons for his RFC assessment and the conclusion that she could stand and/or walk for six out of eight hours a day." Pl.'s Br. at 18. Relatedly, Plaintiff argues that, when considering the record as a whole, the ALJ's determination that she could stand or walk for six out of eight hours is not supported by substantial evidence. Id.
An ALJ's decision must be based on substantial evidence in the record as a whole. Washington, 37 F.3d at 1439. An ALJ may not pick and choose among uncontroverted medical evidence, taking only those parts that are favorable to his position while ignoring other evidence. Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004); see also Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007); Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007). Moreover, an ALJ's RFC assessment must be supported by a discussion citing specific medical and nonmedical evidence and describing how that evidence supports the conclusions reached in the RFC. SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996); Wells v. Colvin, 727 F.3d 1061, 1069 (10th Cir. 2013). Although "an ALJ is not required to discuss every piece of evidence," the ALJ 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); see also 20 C.F.R. §§ 404.1520(a)(3) ("We will consider all evidence in your case record. . . ."), 416.920(a)(3) (same). An ALJ also must explain the resolution of any material evidentiary inconsistencies or ambiguities in assessing an RFC. SSR 96-8p, 1996 WL 374184, at *7. Here, the ALJ's decision was flawed as set forth below.
Here, although the ALJ addressed certain medical evidence in the record, his findings with respect to the limiting effects of Plaintiff's back and leg pain do not reflect consideration of all the evidence.
In reference to the medical records from Brad Liston, DO, the ALJ stated that "[i]t is reasonable to assume that if the claimant's back condition were as severe as alleged, there would have been limitations in straight leg raising. . . ." R. 17 (citing Ex. 1F (R. 217-23)). But later exams do reflect positive straight leg raising tests. See R. 261 (Sept. 14, 2012); 274 (Mar. 13, 2012); 293 (May 2, 2013).
In discussing Plaintiff's surgery on April 9, 2012, for left lower-extremity radiculopathy, the ALJ stated that the evidence from Exhibit 7F indicated that Plaintiff's "pain was improved after the procedure." R. 17 (citing Ex. 7F (R. 252-59)). While this may have been true immediately after the surgery, assessment of the record as a whole undermines the conclusion that surgery resolved or lessened Plaintiff's pain. Other portions of the record evidence that Plaintiff's pain and other problems remained unchanged or increased after the surgery:
The ALJ's decision does not reflect that he considered the evidentiary inconsistency between these later records and his statement regarding postsurgery improvement.
The ALJ reviewed records from Bruce Pendleton, MD, the neurosurgeon who performed the April 9, 2012 surgery, and concluded that "[t]he evidence from this exhibit indicates that [Plaintiff's] symptoms are manageable with medication." R. 17 (citing Ex. 8F (R. 260-75)). The ALJ noted that Dr. Pendleton started Plaintiff on Neurontin
For instance, in May 2013, Plaintiff stated that she felt medication was no longer helping her pain. See R. 292. Additionally, the ALJ failed to consider that, while an increase in Neurontin helped control Plaintiff's leg pain, it caused increased swelling, weight gain, and paresthesia. See R. 292-94, 287-88, 289-90, 279-81. Because of the increased swelling and weight gain, Linda Woodruff, APRN-CNP,
Finally, reviewing the records from Ms. Woodruff, Exhibit 9F, the ALJ stated that "[w]hile there were indications of tenderness, there was no indication of severe pain." R. 18. However, several of Ms. Woodruff's records indicate that Plaintiff reported her pain as an 8 or 9, and physical examinations evidenced pain as well as abnormal movement and muscle spasms. See R. 292-93 (May 2, 2013); 285 (July 10, 2013); 282-83 (Sept. 5, 2013); 279-81 (Oct. 2, 2013); 276-77 (Oct. 29, 2013).
As explained above, the ALJ's decision must be based on the record as a whole. See Wall, 561 F.3d at 1052 ("[W]e 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." (internal quotation marks omitted)). Certainly, the ALJ is not required to discuss every piece of evidence, but "in addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." Clifton, 79 F.3d at 1010; see also Hardman, 362 F.3d at 681 ("It is improper for the ALJ to pick and choose among medical reports, using portions of evidence favorable to his position while ignoring other evidence.").
Moreover, absent additional explanation and findings by the ALJ, the Court cannot conclude that the ALJ's assessment that Plaintiff has the ability to stand or walk for six hours of an eight-hour workday is supported by substantial evidence.
There was significant evidence in the record before the ALJ that Plaintiff had difficulty walking, had experienced frequent falls, and used a walker. When Plaintiff submitted her SSA application, the SSA interviewer noted that she had difficulty standing and walking. R. 156. At the hearing, Plaintiff testified that her doctor had told her to use a walker to prevent falls. R. 38. Plaintiff's MRI records also include frequent falls in her medical history, and Dr. Pendleton noted that Plaintiff's "significant left leg pain" had caused her to "fall[] a few times." R. 256, 258, 274. The records from Ms. Woodruff indicate that Plaintiff had been seen for treatment following falls, including specifically noting a fall "when [Plaintiff] didn't have her walker with her." R. 276, 279, 281, 283.
Additionally, though it was not included in the record before the ALJ, Plaintiff submitted to the Appeals Council a prescription that she had received for a walker. See R. 301 (Ex. 10F). The Appeals Council denied review, but accepted the prescription into the record. See R. 4. When the Appeals Council denies review but expressly accepts new evidence into the record, it is not required to discuss its analysis of that evidence. Vallejo v. Berryhill, 849 F.3d 951, 955-56 (10th Cir. 2017). This is true even of opinion evidence that an ALJ would have been required to expressly consider, such as a treating physician or psychologist opinion. Id. On appeal, however, the reviewing court still must decide whether the disability determination is supported by substantial evidence in the record as a whole, specifically including the new evidence that the Appeals Council made part of the record. Id. at 956. Thus, Plaintiff's prescription for an assistive device is relevant to the Court's consideration of whether the ALJ's RFC determination is supported by substantial evidence.
Difficulty walking, frequent falls, and the prescribed need for a walker reasonably would impact Plaintiff's ability to stand or walk for six hours in an eight hour day, as well as her abilities to lift and/or carry; push and/or pull; occasionally stoop; frequently climb ramps, stairs, ladders, ropes, and scaffolds; and frequently balance, kneel, crouch, or crawl. See R. 15. Other than referencing Plaintiff's testimony that she uses a walker and had problems with falling prior to her 2012 surgery, and some problems walking thereafter, see R. 17, the ALJ did not discuss Plaintiff's difficulty walking without this assistive device. Absent additional explanation by the ALJ, the Court when considering the record as a whole, including the evidence of Plaintiff's difficulties walking and her prescription for a walker to assist her in walking, finds that the RFC finding that Plaintiff can stand or walk for six hours in an eight-hour day is not supported by substantial evidence.
"The record must demonstrate that the ALJ considered all of the evidence. . . ." Clifton, 79 F.3d at 1009. Here, the record does not do so. Because the ALJ considered some medical evidence to the exclusion of contrasting evidence, without adequate explanation, and disregarded other evidence and testimony regarding Plaintiff's ability to ambulate and her vision problems, the Court finds that the ALJ did not demonstrate that he properly considered all of the evidence. Moreover, because the ALJ did not consider all of the relevant evidence regarding Plaintiff's ability to see and to walk, the RFC determination is not supported by substantial evidence. See Weigel v. Astrue, 425 F. App'x 706, 708-09 (10th Cir. 2011) (remanding because RFC decision was not supported by substantial evidence when ALJ did not sufficiently "consider relevant evidence"). Remand is therefore required.
Based on the recommendation that this matter be remanded, the Court does not address Plaintiff's claims regarding her credibility. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). On remand, however, the ALJ must also reevaluate Plaintiff's testimony regarding her subjective complaints and pain, applying the regulations adopted by the Commissioner during the time this action has been pending. See 20 C.F.R. §§ 404.1529, 416.929 (eff. Mar. 27, 2017); SSR 16-3p, 2016 WL 1119029 (eff. Mar. 28, 2016); Poppa, 569 F.3d at 1171 (10th Cir. 2009) ("Since the purpose of the credibility evaluation is to help the ALJ assess a claimant's RFC, the ALJ's credibility and RFC determinations are inherently intertwined.").
Based on the foregoing analysis, the decision of the Commissioner is REVERSED and REMANDED. Judgment will issue accordingly.
IT IS SO ORDERED.
