Salazar v. Astrue

788 F.Supp.2d 1231

163 Soc.Sec.Rep.Serv. 177

Rudy SALAZAR, Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

Civil Action No. 09–cv–02292–WYD.

United States District Court, D. Colorado.

March 4, 2011.

Kenneth J. Shakeshaft, Shakeshaft Law Firm, Colorado Springs, CO, for Plaintiff.Debra J. Meachum, Social Security Administration–Denver Office of General Counsel, Region VIII, Kevin Thomas Traskos, U.S. Attorney's Office, Denver, CO, for Defendant.

ORDER

WILEY Y. DANIEL, Chief Judge.

THIS MATTER is before the Court on review of the Commissioner's decision that denied Plaintiff's claim for disability insurance benefits. For the reasons stated below, this case is reversed and remanded for an immediate award of benefits.

I. INTRODUCTION AND BACKGROUND

Plaintiff was born in November 1956. (Transcript [“Tr.”] 44). He obtained a high school education (general equivalency diploma, or GED) and worked in the relevant past as an airport baggage handler, warehouse worker or laborer, janitor, and kitchen helper. ( Id. 552.) Plaintiff alleged that he became disabled on April 3, 2001, when he was 44 years old, because of back and neck problems (two herniated discs and one fused disc) that prevented him from performing physical labor. ( Id. 54).

In 2002, Plaintiff filed an application for disability insurance benefits for which he was insured through December 31, 2006. (Tr. 44–46.) His application was denied. Plaintiff requested a hearing before the ALJ, which was held in July 2004. ( Id. 402–41.) ALJ Paul Keohane issued a decision in November 2004, finding that Plaintiff was not disabled. ( Id. 15–22.) The Appeals Council declined Plaintiff's request for review.

Plaintiff sought judicial review in this Court and filed a second application. In March 2006, I issued an Order finding numerous errors with the ALJ's decision and remanding the case to the Commissioner. (Tr. 375–94.) The Appeals Council remanded the case for further administrative proceedings and consolidated the case with Plaintiff's second application. ( Id. 398–99.)

In December 2006, ALJ Keohane held a supplemental hearing. (Tr. 526–65.) He then issued a decision on April 9, 2007, finding that Plaintiff was disabled within the meaning of the Act as of November 28, 2006, his 50th birthday (and one month before his insured status expired), but not before. ( Id. 345J–345T.)

Specifically, the ALJ found at step one that Plaintiff had not worked since his alleged onset of disability date. (Tr. 345L, Finding 2.) At step two, the ALJ found that Plaintiff had severe impairments of “degenerative disc disease of the cervical spine, status postdiscectomy, and degenerative disc disease of the lumbar spine.” ( Id., Finding 3.) At step three, he found that Plaintiff's impairments or combination of impairments did not meet or medically equal the requirements of a presumptively disabling listed impairment. ( Id., 345M, Finding 4.)

The ALJ then turned to an assessment of Plaintiff's residual functional capacity. [“RFC”]. He found that Plaintiff had the RFC to perform the following range of sedentary exertional work: “lifting and carrying less than ten pounds frequently and up to ten pounds occasionally; while sitting, or stand/walking, for up to six hours each in a regular eight hour work day, with the ability to change positions at will; while avoiding all climbing or crawling activities; only occasionally balancing or stooping; and while reaching, fingering, and engaging in fine or gross manipulative activities occasionally. (Tr. 345M, Finding 5.)

At step four, the ALJ found that Plaintiff's RFC precluded him from performing his past relevant work. (Tr. 345R, Finding 6.) At step five, he found based on Plaintiff's vocational factors prior to November 28, 2006, the date Plaintiff's age category changed from a younger individual age 45–49, that Plaintiff could perform sedentary jobs existing in significant numbers in the national economy. ( Id. 345R, Finding 10.) Based on Plaintiff's vocational factors on and after November 28, 2006, when Plaintiff was 50 years old and thus “closely approaching advanced age,” the ALJ found that there were not a significant numbers of jobs in the national economy that Plaintiff could perform. ( Id. 345S, Finding 11.) Thus, the ALJ concluded that Plaintiff was disabled within the meaning of the Act as of November 28,2006, but not before. ( Id. 345S, Finding 12.)

The Appeals Council declined to exercise jurisdiction (Tr. 345A–345H), which was the final agency decision. Plaintiff timely requested judicial review. This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g).

II. ANALYSISA. Standard of Review

A Court's review of the determination that a claimant is not disabled is limited to determining whether the Commissioner applied the correct legal standard and whether the decision is supported by substantial evidence.

Hamilton v. Sec. of Health and Human Servs., 961 F.2d 1495, 1497–98 (10th Cir.1992). Substantial evidence is evidence a reasonable mind would accept as adequate to support a conclusion. Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.1990). “It requires more than a scintilla of evidence but less than a preponderance of the evidence.” Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.1988).

“Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.1992). Further, “if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir.1993).

B. Whether the ALJ's Decision is Supported by Substantial Evidence

1. Whether the ALJ Erred In Failing to Properly Weigh the Treating Physician's Opinions and in Not Including All of Plaintiff's Impairments

The first issue I address is whether the ALJ failed to properly weigh the treating physicians' opinions. The treating physicians were Drs. Richman, Chan and Sung. As discussed below, it is unclear exactly what weight the ALJ gave their opinions and findings, as well as the opinions of other medical providers.

I note that an ALJ is “required to give controlling weight to a treating physician's opinion about the nature and severity of a claimant's impairments, including symptoms, diagnosis and prognosis, and any physical or mental restrictions, if ‘it is well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record.’ ” Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir.1995) (quotation omitted). “A treating physician's opinion must be given substantial weight unless good cause is shown to disregard it.” Goatcher v. United States Dep't of Health and Human Servs., 52 F.3d 288, 289–90 (10th Cir.1995). The ALJ must give specific, legitimate reasons for disregarding a treating physician's opinion that a claimant is disabled.” Id.

The ALJ only referenced two opinions of treating physicians in his decision. (Tr. 345p.) He did not discuss or analyze as to either opinion whether it should be given controlling weight. He also completely ignored numerous other findings and opinions by treating physicians regarding Plaintiff's impairments. This is discussed in more detail below. The ALJ's failure to consider whether the treating physicians' findings and opinions were entitled to controlling weight generally requires a remand of the case for a proper analysis of this issue. Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir.2004) (citing SSR 96–2p, 1996 WL 374188, at *2) (quotations omitted).

Further, the ALJ's findings regarding the treating physicians' opinions that he considered are unclear as to the actual weight given these opinions. This is also error. Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir.2003); see also SSR 96–2p, 1996 WL 374188, at *5 (July 2, 1996) (the ALJ's decision must be sufficiently specific to make clear to any subsequent reviewer the weight that was given to a medical opinion).

For example, the ALJ first referenced the functional capacity examination performed by treating physician Dr. Chan in 2002. (Tr. 345P.) Dr. Chan concluded that Plaintiff should not lift more than 15 pounds, should not lift anything overhead, had reduced grip strength, should avoid extension of the cervical spine, and could perform work in a sedentary position. ( Id. 345P, 135–36.) The ALJ stated that while Dr. Chan's “conclusion that the claimant is capable of a range of sedentary work activity is consistent with the medical evidence available at that time, the undersigned finds that the claimant would have even greater physical limitations than as assessed by Dr. Chan, subsequent to his cervical fusion and his lumbar injury.” ( Id. 345P.) This does not, however, state what weight the ALJ actually gave to this assessment.

While the ALJ's comments imply that he accepted Dr. Chan's assessment but believed that even greater restrictions applied, the ALJ inexplicably did not include in the RFC Dr. Chan's finding that Plaintiff should avoid extension of the cervical spine and that Plaintiff had lifting restrictions and reduced grip strength. Further, he ignored the diagnosed impairment of a significant C8 radiculopathy. (Tr. 136.) This is error, as an ALJ is not entitled to pick through an uncontradicted medical opinion, selecting some of the restrictions or impairments without others, unless the ALJ adequately explains the basis for this decision. Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.2007); see also Wiederholt v. Barnhart, 121 Fed.Appx. 833, 839 (10th Cir.2005) (“[b]ecause the ALJ omitted, without explanation, impairments that he found to exist ..., the resulting hypothetical question was flawed”).

The ALJ also noted the December 2003 functional assessment of Plaintiff completed by Dr. Richman. (Tr. 345P.) Dr. Richman opined that Plaintiff was at...