SHON T. ERWIN, District Judge.
Plaintiff 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 denying Plaintiff's application for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR. ____). The parties have consented to jurisdiction over this matter by a United States magistrate judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on the Court's review of the record and the issues presented, the Court
Initially and on reconsideration, the Social Security Administration denied Plaintiff's application for benefits. Following three administrative hearings,
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since October 1, 2010, his alleged onset date. (TR. 17). At step two, the ALJ determined that Mr. Tillery had the following severe impairments: degenerative disc disease of the cervical spine, status post-surgery; hypertension; anxiety disorder; and major depressive disorder. (TR. 18). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 18).
At step four, the ALJ concluded that Mr. Tillery retained the residual functional capacity (RFC) to:
(TR. 19). Based on a finding that Mr. Tillery had no past relevant work,
This Court reviews the Commissioner's final decision "to determin[e] whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
On appeal, Plaintiff alleges the ALJ erred in her consideration of Mr. Tillery's right shoulder impairment and testicular cyst.
Mr. Tillery alleges that the ALJ failed to account for limitations owing to pain and weakness in Plaintiff's right shoulder and muscle wasting in his right arm. (ECF No. 13:7-11). The Court disagrees.
In the decision, the ALJ acknowledged an abundance of evidence concerning Plaintiff's right shoulder and arm impairment. (TR. 21-24). For example, the ALJ discussed:
(TR. 21-24). Ultimately, in evaluating the effect of Mr. Tillery's shoulder/arm impairment, the ALJ stated: "although [Plaintiff] may have some continued right extremity symptoms, the limitation of no overhead reaching is adequate to account for same." (TR. 26). This limitation was included in the RFC. See TR. 38.
Mr. Tillery contends that "due to [his] muscle wasting in his right arm and decreased strength due to his tendonitis and split tendon, he will necessarily struggle to things and losing grip while working." (ECF No. 13:10, 11). But no medical professional has stated that Plaintiff could not perform repetitive work with his right arm or that he had difficulty with gripping. Mr. Tillery's conclusions that he "will necessarily struggle" and "lose his grip" is simply insufficient. See Jimison ex rel. Sims v. Colvin, 513 F. App'x 789, 792 (10th Cir. 2013) (requiring "record support" for a claimed restriction); Arles v. Astrue, 438 F. App'x 735, 740 (10th Cir. 2011) (rejecting plaintiff's claim a limitation should have been included in his RFC because "such a limitation has no support in the record"). Plaintiff also argues that because none of his physicians had limited him to "only overhead movement" that he is therefore limited in all movement involving his right upper extremity. (ECF No. 13:11). But "the absence of evidence is not evidence." Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993). Just because no treating physician has opined that Plaintiff is only limited in overhead reaching, does not provide support for the proposition that Mr. Tillery is unable to move his right arm in any direction.
The ALJ considered the evidence related to Plaintiff's right arm and shoulder and accounted for related limitations in the RFC. Accordingly, the Court finds no error.
The Court finds reversible error in the ALJ's failure to properly consider Plaintiff's testicular cyst and related pain.
On August 18, 2011, Plaintiff reported to the emergency room complaining of testicular pain. (TR. 456). Examination noted swelling and tenderness in the right testicle and an ultrasound revealed a cyst measuring 4.04 x 2.15 x 4.06 cm adjacent to the right testicle. (TR. 458). On December 8, 2011, another ultrasound was performed which confirmed the existence of the mass on the right testicle. (TR. 479, 626). Approximately one week later, Plaintiff arrived at the emergency room via ambulance complaining of testicle pain, which he stated had been an ongoing problem for approximately three years. (TR. 448). Plaintiff noted that the pain was then currently "4 out of 10," "worsened with movement," and "worsened and modified by being out of his pain medicine." (TR. 448). Mr. Tillery was given intravenous morphine at the hospital and released with a prescription for Ultram to help manage the pain. (TR. 449).
On January 9, 2012, Plaintiff's urologist performed a "spermatic cord block" on Plaintiff's right testicle in an attempt to relieve the pain and identify whether the pain was from his testicle or possible nerve pain or lumbar disc disease. (TR. 476). One month later, on February 9, 2012, Plaintiff submitted a "Function Report" to the SSA which contained the following statements relevant to his testicle pain:
(TR. 352-356).
On April 3, 2012, an SSA consultative physician examined Mr. Tillery, noting Plaintiff's claim that his testicular cyst continues to grow and is causing him "excruciating pain" which was "constantly a 10/10 which limit[ed] all of his activities at home" and ability to work. (TR. 468). A February 4, 2013 record from OU Medical noted that Mr. Tillery had the cyst removed via a spermatocelectomy on July 20, 2012. (TR. 599). During that visit, Plaintiff reported that although the pain had somewhat improved postoperatively, he still continued to have some pain. (TR. 599). Plaintiff was also told that closing off of the ilioinguinal nerve
Plaintiff alleges the ALJ erred by failing to: (1) fulfill her duty of inquiry at the administrative hearing by asking questions concerning Plaintiff's cyst and related pain and (2) determine the effect of the cyst and related pain on the RFC. (ECF No. 4-7).
"[A]dministrative disability hearings are nonadversarial ... and the ALJ has a duty to ensure that an adequate record is developed during the disability hearing consistent with the issues raised." Wall v. Astrue, 561 F.3d 1048, 1062-63 (10th Cir. 2009) (internal quotation marks and citation omitted). This duty is heightened when the claimant is unrepresented. Henrie v. U.S. Dept. of Health and Human Services, 13 F.3d 359, 360-361 (10th Cir. 1993). But an ALJ's duty to develop the record is not unqualified. Id. The duty is one of inquiry, to inform the ALJ of the relevant facts and to hear the claimant's version of those facts. Younger on Behalf of Younger v. Shalala, 30 F.3d 1265, 1268 (10th Cir. 1994). In assessing the duty of inquiry, the Court must determine whether, at the hearing, the ALJ asked sufficient questions to ascertain: (1) the nature of a claimant's alleged impairments, (2) what on-going treatment and medication the claimant is receiving, and (3) the impact of the alleged impairment on a claimant's daily routine and activities. Musgrave v. Sullivan, 966 F.2d 1371, 1374-1375 (10th Cir. 1992).
Social Security Ruling (SSR) 16-3p provides a two-step framework for the ALJ to consider a claimant's symptoms, including pain, and determine the extent to which the symptoms limit the claimant's ability to work. SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). First, the ALJ must make a threshold determination regarding "whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain." Id., at *2. Second, the ALJ will evaluate the intensity and persistence of the claimant's symptoms to determine the extent to which they limit an individual's ability to perform work-related activities. Id. At step two, the ALJ will examine the objective medical evidence, the claimant's statements regarding his symptoms, information from medical sources, and "any other relevant evidence" in the record. Id., at *4. SSR 16-3p also directs the ALJ to consider the following seven factors in evaluating the intensity, persistence, and limiting effects of the claimant's symptoms:
Id., at *7. Finally, the ALJ must "provide specific reasons for the weight given to the [claimant's] symptoms, [which are] consistent with and supported by the evidence, and [] clearly articulated" for purposes of any subsequent review. SSR Id., at *9.
In the present case, Mr. Tillery was unrepresented at the hearing, which heightened the ALJ's duty to develop the record. See supra. At the hearing, the ALJ asked Mr. Tillery:
(TR. 80-81). Plaintiff identified his right arm problems and depression, and the ALJ then asked him "Anything else?" to which he answered "Right now, no that's all I can think
The hearing occurred on September 20, 2016. The record contained the objective evidence of Plaintiff's testicular cyst and related pain from August 2011 through October 2013 and Plaintiff's February 2012 function report where he described, in detail, how his testicular pain had limited him. See supra. In July 2012, the cyst which was causing the pain was surgically removed, and in 2013 Plaintiff reported some pain relief following the surgery. See supra. It is possible that by the time of the hearing, Mr. Tillery was not suffering testicular pain to the extent that he had previously, which could explain his failure to identify the pain as affecting his ability to work. Although the Court will not speculate in that regard, the Court will conclude that the ALJ should have further developed the record and questioned Plaintiff regarding the extent of his testicular pain and possible limitations stemming therefrom based on the evidence in the record. See Olden v. Astrue, No. CIV-07-453-M, 2008 WL 552752, at *3 (W.D. Okla. Feb. 28, 2008) (stating that "The ALJ's open-ended, non-specific questions such as, `Now, anything else you feel like you need to tell me ... anything that would affect your ability to work?,' were inadequate ... to satisfy the ALJ's heightened duty to learn Plaintiff's version of the pertinent facts regarding the impact of his mental impairment" when the plaintiff was unrepresented and the record contained evidence of a specific impairment.).
In addition to erring in her duty to develop the record, the Court finds that the ALJ inadequately considered the effect of Plaintiff's testicular pain on the RFC. As stated, in
See supra, SSR 16-3p.
In evaluating Mr. Tillery's subjective allegations, the ALJ stated:
(TR. 20).
The ALJ then summarized the medical records pertaining to Plaintiff's testicular cyst, including his complaints of pain related to the cyst, medication which had been prescribed, the procedures which had been performed, and his reports of continued postoperative pain. (TR. 22-24). The ALJ also mentioned the February 2012 function report, but stated only that it had contained a discrepancy with another function report regarding Plaintiff's preparation of meals, his ability to shop, and difficulty following instructions. (TR. 21). Ultimately, the ALJ made specific findings regarding Plaintiff's:
(TR. 26). But these specific findings did not address the impact of Plaintiff's testicular pain in the RFC. In his function report, Plaintiff complained of numerous limitations caused by the pain, which, in turn, were consistent with the medical evidence. The ALJ acknowledged the allegations of pain and related evidence, but failed to explain the effect of the pain on Mr. Tillery's ability to work. This failure constitutes reversible error under SSR 16-3p and remand is warranted.
The Court has reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties. Based on the forgoing analysis, the Court
