Opinion
CIV-22-972-HE
01-29-2024
CYNTHIA RENE WEBBER, Plaintiff, v. MARTIN O'MALLEY, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Cynthia Rene Webber (“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 (“SSA”) denying her applications for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83f. (Doc. 1). The Commissioner has answered the Complaint and filed the Administrative Record (“AR”) (Docs. 7, 20), and the parties have fully briefed the issues (Docs. 11, 21, 22). United States District Judge Joe Heaton referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C) and Federal Rule of Civil Procedure 72(b). (Doc. 10). For the reasons set forth below, the undersigned recommends the Court REVERSE the Commissioner's decision and REMAND the matter for further proceedings.
Citations to the parties' briefs refer to the Court's CM/ECF pagination. Citations to the Administrative Record refer to its original pagination.
I. Procedural History
Plaintiff filed an application for DIB on January 19, 2021, alleging a disability onset date of June 11, 2020. (AR, at 198-99). Plaintiff also filed an application for SSI on July 27, 2021, alleging the same disability onset date. (Id. at 215-20). The SSA denied the applications initially and on reconsideration. (Id. at 61, 63-75, 76, 78, 80-96, 97-113). An administrative hearing was held on April 12, 2022. (Id. at 34-60). Afterwards, the Administrative Law Judge (“ALJ”) issued a decision finding that Plaintiff was not disabled. (Id. at 13-28). The Appeals Council subsequently denied Plaintiff's request for review. (Id. at 1-5). Thus, the ALJ's decision became the final decision of the Commissioner. Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009); 20 C.F.R. § 404.981.
II. Administrative Decision
At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful activity since June 11, 2020, the alleged disability onset date. (AR, at 18). At Step Two, the ALJ found that Plaintiff had a severe impairment of osteoarthritis of the hand, cervical spine, and lumbar spine. (Id. at 19). At Step Three, the ALJ found Plaintiff had no impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Id.) The ALJ then determined Plaintiff had the RFC to perform less than a full range of light work, explaining she had the following limitations: lift, carry, push, or pull twenty pounds occasionally and ten pounds frequently; sit for six hours out of an eight-hour day; stand or walk a combined total of six hours out of an eight- hour day; frequently climb ramps or stairs but avoid climbing ladders, ropes, or scaffolds; frequently stoop, kneel, and crouch; occasionally crawl; and frequently handle bilaterally. (Id. at 19-20). Then, at Step Four, the ALJ found Plaintiff could perform her past relevant work as a personal shopper, credit analyst, and payroll clerk. (Id. at 27). Thus, the ALJ found that Plaintiff had not been under a disability from June 11, 2020, through the date of the decision. (Id. at 27-28).
III. Claims Presented for Judicial Review
Plaintiff contends the ALJ erred by failing to properly consider the findings of the consultative examiner, Dr. Shabbir A. Chaudry. (Doc. 11, at 9-16). Next, Plaintiff argues the ALJ did not properly consider the opinion of Plaintiff's rheumatologist, Dr. Basit Malik. (Id. at 17-20). Third, Plaintiff asserts the ALJ erred by adopting the state agency physicians' opinions without articulating the proper analysis required under the Social Security regulations. (Id. at 20-25). Finally, Plaintiff contends the ALJ did not properly evaluate the consistency between her subjective reports and the medical evidence. (Id. at 25-31).
The Commissioner contends the ALJ properly evaluated all medical findings and opinions of record. (Doc. 21, at 8-12). She further argues the ALJ appropriately evaluated Plaintiff's subjective reports with the medical record. (Id. at 12-13).
IV. The Disability Standard and Standard of Review
The Social Security Act defines “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). A physical or mental impairment is an impairment “that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). A medically determinable impairment must be established by “objective medical evidence” from an “acceptable medical source,” such as a licensed physician or a licensed and certified psychologist; whereas the claimant's own “statement of symptoms, a diagnosis, or a medical opinion” is not sufficient to establish the existence of an impairment. 20 C.F.R. §§ 404.1521, 416.921; see id. §§ 404.1502(a), 404.1513(a), 416.902(a), 416.913(a). A plaintiff 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. 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 75051 (10th Cir. 1988) (explaining five steps and burden-shifting process). To determine whether a claimant is disabled, the Commissioner inquires: (1) whether the claimant is engaged in any substantial gainful activity; (2) whether the claimant suffers from a severe impairment or combination of impairments; (3) whether the impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) considering the Commissioner's assessment of the claimant's residual functional capacity (“RFC”),whether the impairment prevents the claimant from continuing claimant's past relevant work; and (5) considering assessment of the RFC and other factors, whether the claimant can perform other types of work existing in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). Plaintiff bears the “burden of establishing a prima facie case of disability under steps one, two, and four” of the SSA's five-step procedure. Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). If the plaintiff makes this prima facie showing, “the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of [claimant's] age, education, and work experience.” Id. “The claimant is entitled to disability benefits only if [claimant] is not able to perform other work.” Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
RFC is “the most [a claimant] can still do despite [a claimant's] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
This Court's review of the Commissioner's final decision is limited “to determining whether the Commissioner applied the correct legal standards and whether the agency's factual findings are supported by substantial evidence.” Noreja v. Comm'r, SSA, 952 F.3d. 1172, 1177 (10th Cir. 2020) (citation omitted). Substantial evidence is “more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “It means - and means only - such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. __, 139 S.Ct. 1148, 1154 (2019) (quotations and citation omitted). A court's review is based on the administrative record, and a court must “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.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). 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) (quotations omitted). Even if a court might have reached a different conclusion, the Commissioner's decision stands if it is supported by substantial evidence. White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).
V. Analysis
A. The ALJ Erred By Failing To Properly Explain His Conclusions Regarding the Consultative Examiner's Medical Findings Both in Forumulating the RFC and in Rejecting Dr. Malik's Opinion.
On April 6, 2021, at the request of the SSA, Dr. Chaudry conducted a consultative physical examination of Plaintiff. (AR, at 355-61). Plaintiff contends the ALJ failed to properly consider the medical findings that Dr. Chaudry recorded during his consultative examination. (Doc. 11, at 9-16). In his decision, the ALJ summarized the consultative examination at length, twice, (AR, at 21-22, 24), including the findings and observations, but limited his analysis of it to a statement that “this is just an examination and does not contain an opinion of the claimant's physical functioning.” (Id. at 26). The Commissioner argues that because Dr. Chaudry's report did not include a direct assessment or opinion of Plaintiff's impairment-related limitations or restrictions, the ALJ was not required to evaluate the objective findings therein and there was no error. (Doc. 21, at 11-12).
With regard to Plaintiff's hands, the ALJ summarized Dr. Chaudry's findings:
Her hands had painful range of motion of all joints; range of motion was normal, passive; metacarpophalangeal and proximal interphalangeal joints were tender and swollen at this time.... The claimant could button and unbutton, pick up a piece of paper, and tear it up with difficulty. Fine and gross manipulative movements of the hand and fingers were intact but difficult. Her grip strength in her left hand was 4-[5]/5 and right grip strength was 4/5.... Her right-hand x-ray revealed bony mineralization in the joint spaces, metacarpophalangeal, proximal interphalangeal, and distal interphalangeal joint were diminished; irregularity of joint surfaces, osteophytes visible in the distal interphalangeal joints; and the impression was osteoarthritis of the right hand. The claimant's left hand showed bony mineralization slightly diminished, alignment was normal, joint spaces were diminished especially interphalangeal joints and metacarpophalangeal joint; osteophytes present, especially over first proximal interphalangeal joint; and the impression was osteoarthritis of the left hand.... She could effectively oppose the thumb to the fingertips, manipulate small objects, and grasp tools such as a hammer on the left and the right with difficulty (Exhibit 2F).(AR, at 21-22). Despite summarizing these findings, the ALJ did not indicate whether or how he considered them in making his decision or determining the RFC. Instead, the ALJ simply stated that “this is just an examination and does not contain an opinion of the claimant's physical functioning.” (Id. at 26).
The metacarpophalangeal joint “is where the hand bone called the metacarpal meets the finger bones called the phalanges.... MP joints are important for both power grip and pinch activities; they are where the fingers move with respect to the hand. The MP joints allows[] you to bend and flex your fingers, spread your fingers, and bring the fingers together.” The proximal interphalangeal joint “is the first joint of the finger and is located between the first two bones of the finger. The PIP joint can bend and extend the finger.” The distal interphalangeal joint “is located at the tip of the finger, just before the finger nail starts. See American Society for Surgery of the Hand, Website, https://www.assh.org/handcare/safety/joints (last visited Jan. 29, 2024).
While Dr. Chaudry's examination may not have included a specific RFC opinion, requiring the ALJ to weigh its persuasiveness, see 20 C.F.R. § 404.1520c, it did include medical evidence and objective findings, which is significantly probative evidence the ALJ was required to consider in evaluating Plaintiff's subjective reports and determining the RFC. By merely setting forth Dr. Chaudry's objective findings regarding Plaintiff's pain and difficulties in using her hands and fingers but neglecting to analyze or discuss them, the ALJ ignored “well-established Tenth Circuit law which prohibits an ALJ from engaging in selective review of the medical evidence, and requires that an ALJ provide a proper explanation to support his rationale in rejecting medical and other source evidence.” Tryon v. Colvin, No. CIV-14-1140-STE, 2016 WL 5349799, at *2 (W.D. Okla. Sept. 23, 2016). “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.” Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004). “The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence. Rather, 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 v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (internal citation omitted). Significantly, while the RFC limited Plaintiff to frequent handling, the RFC made no mention of fingering limitations, and the ALJ did not explain why he chose not to adopt such limitations in light of the medical evidence.Accordingly, the RFC is not supported by substantial evidence.
The SSA defines “handling” as “seizing, holding, grasping, turning or otherwise working primarily with the whole hand or hands.” Titles II & XVI: Capability to Do Other Work-The Medical-Vocational Rules As A Framework for Evaluating Solely Nonexertional Impairments, SSR 85-15 (S.S.A. 1985). “‘Fingering' involves picking, pinching, or otherwise working primarily with the fingers.” Id.
The ALJ's failure to adequately explain his conclusions regarding the consultative examination findings bled over into his analysis of Dr. Malik's medical opinion. An ALJ considers medical opinion using five factors: supportability; consistency; relationship with the claimant; specialization; and other factors, such as “a medical source's familiarity with the other evidence in a claim.” 20 C.F.R. §§ 404.1520c(c); 416.920c(c). Supportability and consistency are the most important factors. Id. §§ 404.1520c(a), 416.920c(a). “Supportability” examines how closely connected a medical opinion is to the medical source's objective medical evidence and supporting explanations. Id. §§ 404.1520c(c)(1); 416.920c(c)(1). “Consistency,” on the other hand, compares a medical opinion to the other evidence. Id. §§ 404.1520c(c)(2); 416.920c(c)(2). The ALJ must articulate how persuasive he finds a medical opinion. Id. §§ 404.1520c(b); 416.920c(b). In doing so, the ALJ is required to “explain how [he] considered the supportability and consistency factors.” Id. §§ 404.1520c(b)(2); 416.920c(b)(2). The ALJ's rationale must be “sufficiently specific” to permit meaningful appellate review. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
Dr. Malik opined that Plaintiff would “have significant limitations in reaching, handling, and fingering.” (AR, at 23, 392). He indicated that the percentage of time that she could grasp, turn, and twist objects during an eight-hour day would be 6-10% for both the left hand and right hand. (Id.) He indicated that the percentage of time that she could perform with her fingers fine manipulations during an eight-hour day would be 1-5% for both the left hand and right hand. (Id.) The ALJ found Dr. Malik's opinions unpersuasive because he found them unsupported by Dr. Malik's own “mild findings” regarding Plaintiff's hands. (Id. at 26). In performing the consistency analysis, the ALJ only compared Dr. Malik's opinions to the findings of the consultative examination, stating,
[a]s for other evidence in the file, [Plaintiff's] consultative examination found her hands had painful range of motion of all joints; range of motion was normal, passive; metacarpophalangeal and proximal interphalangeal joints were tender and swollen at that time; there was no muscular wasting and deep tendon reflexes, supinator's, biceps, triceps, knees, and ankles were bilaterally symmetrical with normal plantar response; and sensation to touch was intact all over (Exhibit 2F). She walked unassisted but slowly; heel and toe walking could be achieved; the claimant could button and unbutton, pick up a piece of paper, and tear it up with difficulty; fine and gross manipulative movements of the hand and fingers were intact but difficult; her grip strength in her left hand was 4-/5 and right grip strength was 4/5 (Exhibit 2F). This was prior to her starting treatment for arthritis but even then, it would not support the severe limitations as opined by Dr. Malik.(Id. at 27) (emphasis added). The ALJ did not explain why or how having a painful range of motion in all hand and finger joints, tender and swollen finger joints, and difficulty with fine manipulative movements of the hand and fingers was inconsistent with Dr. Malik's “severe limitations” on handling and fingering. Furthermore, even if this analysis were sufficient to support the ALJ's limitation of frequent handling, the ALJ did not explain why, in light of Dr. Malik's opinion and the consultative exam evidence, he rejected any and all limitations in the RFC on fingering. Given these deficiencies in the ALJ's analysis, the court cannot meaningfully review the ALJ's decision to reject Dr. Malik's opinion.
As Plaintiff notes in her Opening Brief, this error cannot be considered harmless because each of the jobs the ALJ relied upon at step four require fingering that is frequent (existing from one-third to two-thirds of the workday) or occasional (existing up to one-third of the workday). See Dictionary of Occupational Titles (“DOT”) 296.357-010, 1991 WL 672601 (personal shopper); DOT 241.267-022, 1991 WL 672245 (credit analyst); DOT, 215.382-014, 1991 WL 671908 (payroll clerk). Thus, on remand, the ALJ must explain whether and why he rejected Dr. Chaudry's objective findings in the consultative examination and if not, how his consideration of those findings affected his consideration of the remaining medical opinions and Plaintiff's subjective reports and his formulation of the RFC.
B. The Court Declines to Address Plaintiff's Remaining Arguments.
Because remand is warranted based on the above issue alone, the undersigned need not address Plaintiff's other claims of error. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand.”).
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Having 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, the undersigned recommends the Court REVERSE the Commissioner's decision and REMAND the matter for further proceedings.
The parties are advised of their right to file written objections to this Report and Recommendation in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Any such objections must be filed with the Clerk of this Court by February 12, 2024. The parties are further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in this case.
SO ORDERED.