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Rhodus v. Berryhill

United States District Court, M.D. Louisiana

March 26, 2019

LINDA KAY RHODUS
v.
NANCY A. BERRYHILL ACTING COMMISSIONER OF SOCIAL SECURITY

          RULING

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Linda Kay Rhodus (“Plaintiff”), brought this action under 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).[1] Plaintiff has filed Memorandum in Support of her appeal, [2]the Commissioner has filed an Opposition Brief, [3] and Plaintiff has filed a Reply.[4]

         Based on the applicable standard of review under § 405(g) and the analysis which follows, the court VACATES[5] the Commissioner's decision and REMANDS Plaintiff's case for further administrative proceedings consistent with this opinion.

         I. Procedural History

         Plaintiff filed an application for DIB on October 6, 2014 and an application for SSI on October 7, 2014 alleging disability beginning March 17, 2014[6] due to physical and psychological conditions.[7] Plaintiff's claim was initially denied on April 24, 2015.[8] Thereafter, Plaintiff requested a hearing before an administrative law judge (“ALJ”).[9] A hearing began on February 23, 2016 but was continued due to weather concerns and completed on May 2, 2016.[10] During both days of hearing, Plaintiff, represented by a non-attorney representative, testified.[11]

         On August 23, 2016, the ALJ issued a notice of unfavorable decision.[12] Plaintiff requested review by the Appeals Council, [13] and on June 15, 2017, the Appeals Council denied Plaintiff's request for review.[14] On August 11, 2017 Plaintiff filed her Complaint in this Court.[15]Accordingly, Plaintiff exhausted her administrative remedies before timely filing this action for judicial review and the ALJ's decision is the Commissioner's final decision for purposes of judicial review.[16]

         II. Standard of Review

         Under 42 U.S.C. § 405(g), judicial review of a final decision of the Commissioner denying disability benefits is limited to two inquiries: (1) whether substantial evidence exists in the record as a whole to support the Commissioner's findings, and (2) whether the Commissioner's final decision applies the proper legal standards.[17] If the Commissioner fails to apply the correct legal standards, or provide a reviewing court with a sufficient basis to determine that the correct legal principles were followed, it is grounds for reversal.[18]

         III. The ALJ's Decision

         A claimant has the burden of proving that he or she suffers from a disability, which is defined as a medically determinable physical or mental impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful activity.[19] The regulations require the ALJ to apply a five-step sequential evaluation to each claim for benefits.[20] In the five-step sequence used to evaluate claims the Commissioner must determine whether: (1) the claimant is currently engaged in substantial gainful activity; (2) the claimant has a severe medically determinable impairment(s); (3) the impairment(s) meets or equals the severity of a listed impairment in Appendix 1 of the regulations; (4) the impairment(s) prevents the claimant from performing past relevant work; and, (5) the impairment(s) prevents the claimant from doing any other work.[21]

         The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability.[22] If the claimant is successful at all four of the preceding steps then the burden shifts to the Commissioner to prove, considering the claimant's residual functional capacity (“RFC”), age, education and past work experience, that he or she is capable of performing other work.[23] If the Commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove that he or she cannot, in fact, perform that work.[24]

         Here, the ALJ determined that Plaintiff had the severe impairments of degenerative disc disease, degenerative joint disease, obesity, and affective disorder.[25] With respect to Plaintiff's alleged fibromyalgia, the ALJ explained that while the record contained “references to the diagnosis of fibromyalgia, ” the specific requirements for finding fibromyalgia to be a medically determinable impairment pursuant to Social Security Ruling (“SSR”) 12-2p were not present.[26]

         The ALJ then determined that Plaintiff had the residual functional capacity (“RFC”) to:

perform less than the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant can lift and/or carry twenty pounds occasionally and ten pounds frequently. She can stand for six hours and/or walk for six hours in an eight-hour day. She can sit for six hours in an eight-hour day. She can never climb ladders, ropes, and scaffolds. She can frequently balance and occasionally perform all other postural activities. She can understand, remember, and carry out simple instructions involving occasional interaction with coworkers and supervisors but less than occasional interaction with the public with occasional changes in work routine.[27]

         Based on Plaintiff's RFC, age, education, and work experience, and based on the testimony of a vocational expert (“VE”), the ALJ determined that there were jobs existing in significant numbers in the national economy that Plaintiff could perform such that she was not disabled.[28]

         IV. Plaintiff's Allegations of Error

         First, Plaintiff contends that “the record is void of indispensable evidence. The absent medical data are treatment notes from Ms. Rhodus' rheumatologist, Dr. Gauthier (FM specialist), and her podiatrist, Dr. Dileo.”[29] In addition to arguing that the Commissioner failed to fully develop the record, Plaintiff also argues that “the ALJ's findings are diametrically opposed to what the current record shows.”[30] Plaintiff's arguments based on the current record are focused on (1) the ALJ's step two determination that her asserted fibromyalgia was not a medically determinable impairment; (2) the ALJ's alleged failure to afford sufficient weight to the opinion of her treating primary care physician, Dr. Zerangue; and (3) the ALJ's findings with respect to her residual functional capacity (“RFC”). Finally, Plaintiff contends that the ALJ failed to appropriately consider her age classification. Because the ALJ committed legal error when she considered the medical evidence in developing Plaintiff's RFC, the court does not reach Plaintiff's other allegations of error.[31]

         V. Law and Analysis

         A. RFC Determination

         As noted above, the ALJ found that Plaintiff had the RFC “to perform less than the full range light work, ” could “lift and/or carry twenty pounds occasionally and ten pounds frequently, ” and could stand, sit, and/or walk for six hours in an eight-hour day.[32] The ALJ further found that Plaintiff could “never climb ladders, ropes, or scaffolds” but could “frequently balance and perform all other postural activities.”[33] For the reasons that follow, substantial evidence does not support the ALJ's determinations regarding Plaintiff's physical abilities, specifically, Plaintiff's ability to sit, stand, and walk for six hours in an eight-hour day.

         “Disability cases typically involve three types of physicians: 1) a treating physician who regularly provides care to the claimant; 2) an examining physician who conducts a one-time physical exam of the claimant; and 3) a reviewing or non-examining physician who has never examined the claimant, but read the claimant's files to provide guidance to an adjudicator.”[34]Generally, the “opinion of the treating physician who is familiar with the claimant's impairments, treatments and responses, should be accorded great weight in determining disability.”[35] “The weight given to opinions from nonexamining physicians depends on ‘the degree to which they provide supporting explanations for their opinions.'”[36]

         The only place in the administrative record reflecting that Plaintiff can sit, stand, and/or walk for six hours in an eight-hour day is in a March 11, 2015 physical RFC assessment completed by Dr. Navjeet Singh. Dr. Singh opined, based on his review of the record, that Plaintiff could stand, sit, and/or walk for “about 6 hours in an 8-hour day.”[37] The ALJ afforded Dr. Singh's opinion “great weight” because, per the ALJ's Ruling, Dr. Singh “identified appropriate exertional and postural limitations to avoid exacerbating the claimant's pain associated with her degenerative joint disease, degenerative disc disease, and obesity.”[38] In contrast, Plaintiff's treating physician, Dr. Zerangue, [39] opined in a February 21, 2016 Medical Source Statement that Plaintiff could sit, stand, or walk for less than two hours in an eight-hour work day, [40] would need to lay down for extended periods during the day, and would need unscheduled thirty minute breaks every thirty minutes.[41] The ALJ explained that she gave the opinion of Dr. Zerangue “little weight” because Dr. Zerangue's opinions “conflict with all other medical opinions of record, ” and because Dr. Zerangue “did not order independent tests to confirm his opinions and appeared to rely heavily upon the claimant's subjective statements.”[42]

         Dr. Singh's RFC determination (including the opinion that Plaintiff could sit, stand, and/or walk for 6 hours in an 8-hour day) is based on Dr. Singh's record review, including review of a March 1, 2015 consultative examination (“CE”) completed by Dr. Douglas Davidson.[43] Dr. Davidson examined Plaintiff of February 25, 2015[44] and found that Plaintiff could “sit, stand, walk and do light exertional activities as tolerated.”[45] Dr. Davidson did not find that Plaintiff could sit, stand, and/or walk for six hours in an eight-hour day, and there is no explanation in the CE report as to what the phrase “as tolerated” means. While Dr. Davidson noted on examination that Plaintiff was able to move from standing to sitting to standing positions “very slowly and unassisted, ” he also reported that Plaintiff required assistance when moving from sitting to supine to sitting positions, exhibited a bilateral antalgic gait, required assistance when moving on and off the scale and on and off the examination table, and needed assistance dressing and undressing.[46]Significantly, it appears that at the time Dr. Singh reviewed the record and made his RFC assessment, records from Plaintiff's treating primary care physician, Dr. Zerangue, had not been received into the record.[47] Even setting aside the non-controlling portions of Dr. Zerangue's records that go to the ultimate issue of disability (a question that is reserved to the Commissioner), [48] certain of Dr. Zerangue's records indicate functional limitations, and Dr. Zerangue's opinion was that Plaintiff was able to occasionally (defined as 0-33% of the time) sit, stand, and walk.[49] Although other treatment notes included in Dr. Zerangue's records indicate improvement, [50] substantial evidence does not support the ALJ's determination that Plaintiff was able to sit, stand, and walk for six hours in an eight-hour day when such determination was based on a record review which did not include records from Plaintiff's treating physician indicating more restrictive limitations and instead was based on a CE report that only provided that Plaintiff could sit, stand, and/or walk “as tolerated.”[51] Moreover, based on the functional limitations expressed by Dr. Zerangue, the vocational expert (“VE”) testified that there would not be work available to Plaintiff.[52] The ALJ's weighing of Dr. Singh's medical opinion was not supported by substantial evidence because that opinion did not consider records of Plaintiff's treating physician with more restrictive limitations and therefore this matter must be remanded.[53]

         VI. Conclusion

         For the reasons set forth herein, and based on the applicable standard of review under § 405(g) and the analysis which follows, the court VACATES the Commissioner's decision and REMANDS Plaintiff's case for reevaluation of the opinion evidence and reassessment of Plaintiff's RFC to determine ...


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