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Polk v. Berryhill

United States District Court, S.D. Mississippi, Southern Division

August 16, 2018

DONNA POLK PLAINTIFF
v.
NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          LINDA R. ANDERSON UNITED STATES MAGISTRATE JUDGE.

         Donna Polk appeals the final decision denying her applications for social security disability insurance benefits (DIB) and supplemental security income (SSI). The Commissioner requests an order pursuant to 42 U.S.C. § 405(g), affirming the final decision of the Administrative Law Judge. Having carefully considered the hearing transcript, the medical records in evidence, and all the applicable law, the undersigned recommends this cause be remanded.

         In September 2012, Plaintiff filed SSI and DIB applications alleging she became disabled on May 4, 2012, following an automobile accident. She alleges a resulting disability due to “severe chronic headaches; chronic neck pain; back pain; numbness and loss of feeling in right arm, hands, and leg; dizziness with blackouts; [and] shortness of breath.” She also allegedly suffers from a limp; reduced leg strength, and slight depression. She has a high school education and was 54 on her application date. She previously received disability benefits for Hodgkin Lymphoma in 1994. Post-recovery, she worked as a medical assistant, a construction worker, and house cleaner. Following agency denials of her current applications, an Administrative Law Judge (“ALJ”) rendered an unfavorable decision, finding that she had not established a disability within the meaning of the Social Security Act. The Appeals Council denied Plaintiff's request for review. She now appeals that decision.[1]

         At step one of the five-step sequential evaluation, [2] the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. At steps two and three, the ALJ found that although Plaintiff's cervical degenerative disc disease and diabetes mellitus were severe, they did not meet or medically equal any listing. At step four, the ALJ found that Plaintiff had the residual functional capacity to:

lift/carry and push/pull up to twenty pounds occasionally and up to ten pounds frequently. She can stand/walk six hours in an eight-hour workday. She can sit for six hours in an eight-hour workday. She can occasionally climb ramps and stairs but never ladders, ropes, or scaffolds. She must avoid concentrated exposure to unprotected heights and hazardous machinery.[3]

         Based on vocational expert testimony, the ALJ concluded that given Plaintiff's age, education, work experience, and residual functional capacity, she could return to her past relevant work as a medical assistant.

         Standard of Review

         Judicial review in social security appeals is limited to two basic inquiries: "(1) whether there is substantial evidence in the record to support the [ALJ's] decision; and (2) whether the decision comports with relevant legal standards." Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (citing Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991)). Evidence is substantial if it is "relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla, but it need not be a preponderance." Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting Anthony v. Sullivan, 954 F.2d at 295 (5th Cir. 1992)). This Court may not re-weigh the evidence, try the case de novo, or substitute its judgment for that of the ALJ, even if it finds evidence that preponderates against the ALJ's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994).

         DISCUSSION

         Plaintiff assigns three errors on appeal: (1) the ALJ improperly rejected the treating physicians' opinions; (2) the ALJ improperly rejected Plaintiff's subjective complaints; and, (3) the ALJ failed to consider Plaintiff's upper extremity limitations in determining her residual functional capacity. Because the ALJ erred in weighing the treating physicians' opinions, the undersigned recommends that this cause be remanded for further proceedings consistent with this opinion.

         Generally, the opinion and diagnosis of a treating physician should be given considerable weight in determining disability. But the treating physician's rule is “not an ironclad rule.” Garcia v. Colvin, 622 Fed.Appx. 405, 410 (5th Cir. 2015). When treating source opinions are assigned little or no weight, the assignment must be predicated on good cause. Newton v. Apfel, 209 F.3d 448, 455-56 (5th Cir. 2000). Good causes exists when treating source opinions are “brief and conclusory, not supported by medically acceptable clinical diagnostic techniques, or otherwise unsupported by the evidence." Garcia, 622 Fed.Appx. at 410 (internal quotations and citations omitted). However, “absent reliable medical evidence from a treating or examining physician controverting the claimant's treating specialist, an ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of the treating physician's views using [§ 404.1527(d)] factors.” Newton, 209 F.3d. at 453 (emphasis in original). These factors require that an ALJ consider the length of the treatment relationship and the frequency of examination; the nature and extent of the treatment relationship; the supportability of the physician's opinion; the consistency of the opinion with the record as a whole; the specialization of the source; and, any other factors tending to support or contradict the physician's opinion.

         In this case, the ALJ assigned no weight to the medical opinions of Plaintiff's treating physicians, Dr. Robert Ozon and Dr. Joseph Jackson, both of whom treated Plaintiff in the months following her onset date, and both of whom opined that Plaintiff's spinal disorder met Listing 1.04.[4] Both physicians completed letter questionnaires, prepared by Plaintiff's counsel, affirmatively stating that Plaintiff had: (1) degenerative disc disease resulting in compromise of a nerve root; (2) a disc osteophyte complex producing moderate to severe cervical foraminal stenosis, worst at C5-6 on the right, resulting in compromise in a neuro-anatomic distribution of pain; (3) limitation of the motion in her spine; and, (4) motor loss accompanied by sensory or reflex loss. While Dr. Ozon opined that Plaintiff could not sustain work activity at any level, Dr. Jackson expressed doubt that sedentary work could be performed, but noted that a functional capacity evaluation had not been completed.[5]

         Records indicate that Plaintiff was initially diagnosed by Dr. Ozon as having cervical/thoracic strain and headaches secondary to a motor vehicle collision in May 2012. She underwent physical therapy while under Dr. Ozon's care to a degree of success, and he even released her to return to work. However, Plaintiff continued to complain of chronic headaches, cervical and thoracic pain, and radiating pain in her right arm. Dr. Ozon ordered an MRI of the cervical spine which revealed, inter alia, evidence of osteophyte complex producing moderate to severe right and moderate left foraminal stenosis, but no disc protrusion or herniation. After reviewing Plaintiff's MRI report, Dr. Ozon discontinued physical therapy and referred Plaintiff to a neurosurgeon for evaluation and treatment, which Plaintiff reportedly failed to pursue due to lack of insurance.[6]

         Instead of a surgeon, Plaintiff began treatment with Dr. Jackson, a neurologist, in November 2012. Dr. Jackson reviewed the MRI results ...


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