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Social Security ALJ Failed to Follow Correct Standard

Lopez v. Astrue, Case No. 09-2187 (C.A. 10, Mar. 30, 2010)

Claimant Nellie G. Lopez appeals from the district court’s order affirming the decision of the Social Security Commissioner to deny her application for supplemental security income (SSI) benefits. We exercise jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g) and conclude that the Administrative Law Judge (ALJ) failed to follow the correct legal standards in considering the opinions of two of Ms. Lopez’s treating physicians. Accordingly, we REVERSE and REMAND for further proceedings.

Ms. Lopez was 33 years old at the time of the Commissioner’s final decision. She has a high school education and has worked as a cashier. She applied for SSI on November 19, 2002, alleging an inability to work since November 12, 2002, due to bad knees, a bad back, and pain and stiffness in her right hand. The agency denied her application initially and on reconsideration, after which she requested and received a hearing before an ALJ. The ALJ denied benefits on February 11, 2005. On administrative review, however, the Appeals Council vacated the ALJ’s decision and remanded the matter, instructing the ALJ to do the following: (1) to consolidate with the remanded claim a claim that Ms. Lopez had filed in 2005; (2) to obtain additional evidence from her treating physicians; and (3) to consider their opinions in accordance with applicable agency regulations and Social Security Rulings.

On remand, the same ALJ conducted a hearing and denied benefits on October 27, 2006. At step one of the familiar five-step sequential evaluation process, see Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009), the ALJ found that Ms. Lopez had not engaged in substantial gainful activity since her alleged onset date. At steps two and three, she found that Ms. Lopez suffered from a “severe combination of impairments” (specifically, degenerative disc disease of the lumbar spine with herniated discs and chronic low back pain; chondromalacia in both knees; and a major depressive disorder) but that her impairments did not meet or medically equal one of the impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Aplt. App., Vol. II at 18. At step four, the ALJ found Ms. Lopez “not entirely credible” and determined that she retained the residual functional capacity (RFC) to occasionally lift twenty pounds and frequently lift ten pounds; to stand or walk up to two hours in an eight-hour day; to sit for up to six hours in an eight-hour day; and to “occasionally stoop, squat, crouch, kneel, climb or balance.” Id. at 18-19. She also found Ms. Lopez “unable to push/pull with [her] lower extremities” and “unable to understand, remember, and carry[] out complex job instructions.” Id. at 19. Notwithstanding, the ALJ decided that Ms. Lopez was not disabled because she could return to her past work as a cashier. Continuing on to step five, the ALJ concluded, apparently in the alternative, that Ms. Lopez was not disabled because, considering her age, education, work experience, and RFC, she could make a successful adjustment to other work that exists in significant numbers in the national economy.

Because the Appeals Council declined to review Ms. Lopez’s appeal of the ALJ’s October 27, 2006, decision, that decision is the Commissioner’s final decision for purposes of our review. See Poppa v. Astrue, 569 F.3d 1167, 1169
 

 

Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Government / Politics
 
Circuit Court Judge(s)
Bobby Baldock
Jerome Holmes
Paul Kelly

 
Appellant Lawyer(s) Appellant Law Firm(s)
Francesca Jeanne MacDowell Martone Law Firm
Gary J. Martone Martone Law Firm

 
Appellee Lawyer(s) Appellee Law Firm(s)
Manuel Lucero Office of the United States Attorney
Dianne Pryor Social Security Administration

 

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Click the maroon box above for a formatted PDF of the decision.
-4- education, work experience, and rfc, she could make a successful adjustment to substantial evidence is such relevant evidence as a reasonable mind 1078, 1084 (10th cir. 2004) (quotation omitted). omitted). other work that exists in significant numbers in the national economy. stated: conclusion radiculopathy due to mild central disk herniation [on] mri of [the] lumbosacral are disabled."); ssr 96-5p, 1996 wl 374183, at *5 (stating that medical source history of an open tibia plateau fracture and listed a diagnosis, based on x-rays, of contains an opinion from a medical source on an issue reserved to the september 9, 2005, reports] that dr. janis [sic]. . . submitted . . . are day, 5 days a week, 50 weeks per year." id. at 359. dr. davis said she could not. she also found ms. lopez "unable to push/pull with light work, not sedentary work, and because the alj propounded a hypothetical supporting it. the agency's failure to apply correct legal standards, before kelly, baldock, and holmes, circuit judges. order and judgment* watkins v. barnhart, 350 f.3d 1297, 1300 (10th cir. 2003) (quotation omitted). radiated down to her legs causing weakness, and causing her to of the factors provided in 20 c.f.r. . . . 416.927." id. (quoting social security alj, reflected that weight, we apply the factors listed in . . . this section in determining the weight to with fed. r. app. p. 32.1 and 10th cir. r. 32.1. had good range of motion and strength." id. at 20.3 circuit judge 416.927(d)(2) ("when we do not give the treating source's opinion controlling dr. davis indicated in his report dated august 24, 2006, limitations in both knees; and a major depressive disorder) but that her impairments did not are `disabled' or `unable to work' does not mean that we will determine that you controls. he also found ms. lopez could "never" bend, squat, kneel, crawl, or aplt. app., vol. ii at 21, but the alj did not refer to it by exhibit number and we or rejecting their opinions are not supported by substantial evidence. that the alj relied on this evidence in either discounting or rejecting dr. davis's agency regulations and social security rulings. opinion, and that the reasons she gave for either discounting or rejecting his considered all of the factors in her weight calculation. see 20 c.f.r. balance." id. at 18-19.1 -6- the alj's reasons for either discounting or rejecting dr. davis's opinion are not "severe combination of impairments" (specifically, degenerative disc disease of substantial evidence of record. . . . the [october 14, 2004, and it to the commissioner for further proceedings in accordance with this decision. dr. davis after examining the briefs and appellate record, this panel has determined id. alj's october 27, 2006, decision, that decision is the commissioner's final of social security, matter reserved for the commissioner[.] . . . while normally due to disc herniations. and remand for further proceedings. 356. he found she could occasionally lift and/or carry a maximum of five inconsistent and not supported by the overall medical evidence. and not supported by the overall medical evidence. see 20 c.f.r. 416.927(e)(1) ("a statement by a medical source that you the alj also referred to a report from dr. jain "dated september 9, 2005," lifting, standing, and walking limitations the alj articulated are consistent with v. social security administration's definition of "[s]edentary work" and asked discussion submits that "[a]lthough the alj did not give dr. davis'[s] opinion controlling not based on substantial evidence if it is overwhelmed by other back pain that radiated into her left foot. he indicated that another neurosurgeon be "significantly limited" by ms. lopez's impairments. aplt. app., vol. iii at disc herniations to be inconsistent with the medical evidence. the evidence--was not supported by substantial evidence. the commissioner ms. lopez argues that the alj did not follow this protocol in evaluating including the treatment provided and the kind of examination or 5 determine the extent to which the opinion is supported by the record."). the alj "whether the claimant [could] perform sustained sedentary work activity 8 hours a give the opinion."); ssr 96-2p, 1996 wl 374188, at *4 (explaining that even clerk of court tenth circuit rejecting" dr. davis's opinion. aplee. br. at 18 (emphasis added). we disagree. at 1085. the opinions of dr. davis, her treating orthopedic surgeon, and dr. jain, her discussion of the medical evidence and said she had "considered" dr. jain's supported by relevant evidence; (4) consistency between the opinion opinion. claimant had a ct-guided nerve block, which had been unsuccessful after which she requested and received a hearing before an alj. the alj denied -3- (1) the length of the treatment relationship and the frequency of ssr 96-5p, 1996 wl 374183, at *3 ("[o]pinions from any medical source on dr. jain . . . had treated the claimant for lower back pain, due to pounds, stand up to one hour in an eight-hour day, walk up to one hour in an complex job instructions." id. at 19. notwithstanding, the alj decided that use her lower extremities for repetitive actions such as operating foot/leg any," she assigned to dr. jain's opinion. watkins, 350 f.3d at 1301; see also "under the regulations, the agency rulings, and our case law, an alj must substantiality test has been met." grogan v. barnhart, 399 f.3d 1257, 1262 to stand or walk up to two hours in an eight-hour day; to sit for up to six hours in michael j. astrue, commissioner we note that although the alj specifically stated that ms. lopez retained on remand, the same alj conducted a hearing and denied benefits on that ms. lopez is "unable to work," id., vol. ii at 22. in that regard, the alj we decline to reach the other issues raised on appeal because they may be no. 09-2187 opinions of dr. davis and dr. jain, and her asserted reasons for either discounting disregarded [but] . . . . they can never be entitled to controlling weight"). the alj in this case failed to articulate what weight, if any, she gave the cashier. continuing on to step five, the alj concluded, apparently in the must give good reasons . . . for the weight [s]he ultimately assigns the opinion." conclusion is tantamount to an opinion that she is disabled, which is an issue we note that on december 4, 2002, a treating physician opined that might accept as adequate to support a conclusion. . . . [a] decision is id. specialist in the area upon which an opinion is rendered; and the alj detailed dr. davis's august 24 report in her discussion of the (10th cir. 2005) (citation omitted). in so doing, we evaluate the decision "based range of motion and strength. . . . . the question of disability is a opinion because she "failed to articulate [what] weight, if any," she assigned to it. herniated discs at l5/s1. further she had pain in her back that was "disabled due to weakness and pain of right leg. due to disk herniations." commissioner, the adjudicator must evaluate all the evidence in the . . . record to supported by substantial evidence. the medical evidence the alj cited regarding decision for purposes of our review. see poppa v. astrue, 569 f.3d 1167, 1169 dr. davis had indicated that the claimant's bilateral knees had good given to an opinion of disability from a treating physician, it is not ms. lopez was 33 years old at the time of the commissioner's final elisabeth a. shumaker entitled to deference and must be weighed using all of the factors provided in entered for the court first, the alj must determine whether the treating physician's opinion is entitled commissioner[.] . . . while normally controlling weight would be opinion are not supported by substantial evidence. in response, the commissioner * issues reserved to the commissioner must never be ignored. . . . if the . . . record -8- [her] lower extremities" and "unable to understand, remember, and carry[] out their opinions "not entitled to controlling weight." aplee. br. at 16. we side united states court of appeals is correct.5 6 -10- unanimously to grant the parties' request for a decision on the briefs without oral ms. lopez raises three allegations of error. she asserts the alj failed to to the vocational expert that defined ms. lopez's rfc "as light work," aplee. br. that may be so. but we have no way to know what weight she gave dr. davis's ms. lopez takes issue with the alj's discussion of dr. davis's opinion, arguing that the alj failed to specify what weight, if any, she assigned his power" was a "5/5." aplt. app., vol. ii at 158-59. however, it does not appear must then give specific, legitimate reasons for doing so." id. (quotations of the parties, 28 u.s.c. 636(c), affirmed. this appeal followed. the alj concluded: ruling (ssr) 96-2p, 1996 wl 374188, at *4 (emphasis added)). those factors filed at 456-61). commissioner's next contention--that the alj "gave supported reasons for . . . . in addition, dr. jain stated that the claimant was not a right knee only. aplt. app., vol. ii at 19 (citing exhibit 6f). and, nowhere in however, the alj still was required "to articulate [what] weight, if the rfc to perform "sedentary work," aplt. app., vol. ii at 18, 23, this limitation 1997 and he had last examined her in august 2006. he reported that she had a 20 cfr . . . 416.927" (emphasis added)). "inconsistent" with dr. jain's opinion. aplt. app., vol. ii at 22. law judge (alj) failed to follow the correct legal standards in considering the he found that although she could use her arms/hands for repetitive actions such as standing, pushing, sitting, lifting, pulling, carrying, and fine manipulation would that are inconsistent with his prior treatment of the claimant. treating physician, it is not entitled [to controlling weight] if it is although an alj's failure to "explicitly discuss all the . . . factors" may an eight-hour day; and to "occasionally stoop, squat, crouch, kneel, climb or at 11, n.5 (citing 20 c.f.r. 416.967(b) (light work), and aplt. app., vol. iii experience . . . urinary incontinence. dr. jain stated that the spine and stenosis of lateral recess." id. at 202. he also indicated that ms. lopez we review the commissioner's decision to discern whether the correct are: defendant-appellee. may undercut or detract from the alj's findings in order to determine if the had failed two epidural injections. he diagnosed ms. lopez with "right l5/s1 and the record as a whole; (5) whether or not the physician is a on october 14, 2004, dr. jain documented ms. lopez's complaints of low background evidence. poppa, 569 f.3d at 1169. weight, [s]he did give it some weight . . . ." aplee. br. at 17 (emphasis added). the lumbar spine with herniated discs and chronic low back pain; chondromalacia evidence in the record or if there is a mere scintilla of evidence appendix 1. aplt. app., vol. ii at 18. at step four, the alj found ms. lopez benefits on february 11, 2005. on administrative review, however, the appeals the decision of the social security commissioner to deny her application for united states court of appeals is likely "a typographical error," as the commissioner suggests, because the (6) other factors brought to the alj's attention which tend to support treating neurologist. the commissioner counters that the alj properly found (10th cir. 2009). the district court, with a magistrate judge presiding by consent not prevent this court from performing a meaningful review, oldham v. astrue, to do the following: (1) to consolidate with the remanded claim a claim that that ms. lopez had not engaged in substantial gainful activity since her alleged and this case is remanded to the district court with instructions to remand de novo, we meticulously examine the record as a whole, including anything that internal derangement with sensitivity laterally/medially. he opined that walking, 3 reserved to the commissioner. regarding that specific point, the commissioner eight-hour day, and sit for up to four hours in an eight-hour day. he stated that meet or medically equal one of the impairments in 20 c.f.r. part 404, subpart p, (d.c. no. 1:07-cv-00932-wds) id. in a social security disability questionnaire completed by dr. davis on dr. davis's 2004 medical reports did he state that "the claimant's bilateral knees collateral estoppel. it may be cited, however, for its persuasive value consistent -11- applied for ssi on november 19, 2002, alleging an inability to work since opinion that ms. lopez is "unable to work." id. at 22.4 medical evidence, and indicated that she had "considered" dr. davis's opinion ms. lopez had a "full range of motion at the . . . knees," and her knees' "motor did not do so. moreover, the alj did not identify what medical evidence was claimant nellie g. lopez appeals from the district court's order affirming because the appeals council declined to review ms. lopez's appeal of the affected by the alj's treatment of the case on remand. see robinson, 366 f.3d watkins, 350 f.3d at 1301. indeed, the alj's omission is underscored by the hamlin v. barnhart, 365 f.3d 1208, 1214 (10th cir. 2004) (citations and 1 [august 24 report] that dr. davis . . . submitted . . . [is] inconsistent candidate for surgery and stated that at this time she was . . . disabled testing performed; (3) the degree to which the physician's opinion is right hand. the agency denied her application initially and on reconsideration, jerome a. holmes august 24, 2006, he indicated that he had first examined ms. lopez in february quotations omitted). "although we do not reweigh the evidence or try the issues physician's opinion, arguing that the alj should have explained what weight, if ms. lopez was not disabled because she could return to her past work as a id. or show us it has done so, is also grounds for reversal. nellie g. lopez, ms. lopez having a "good" or "full" range of motion, pertains to ms. lopez's 2 every thirty minutes she must alternate between sitting and standing or walking. -9- ordered submitted without oral argument. this order and judgment is not binding i find that dr. jain['s] opinion that the claimant was disabled due to alternative, that ms. lopez was not disabled because, considering her age, dr. jain physicians; and (3) to consider their opinions in accordance with applicable ms. lopez had filed in 2005; (2) to obtain additional evidence from her treating entitled [to controlling weight] if it is inconsistent with other the district court's judgment affirming the alj's decision is reversed council vacated the alj's decision and remanded the matter, instructing the alj process, see wall v. astrue, 561 f.3d 1048, 1052 (10th cir. 2009), the alj found the alj summarized dr. jain's october 14 medical record in her plaintiff-appellant, for the tenth circuit any, she assigned to dr. jain's opinion, and that the reason she gave for reach above shoulder level. id. at 358. the end of the questionnaire set forth the reaching, pushing/pulling, simple grasping, and fine manipulation, she could not give good reasons . . . for the weight assigned to a treating physician's opinion." had recommended surgery for ms. lopez's l5/s1 disk herniations and that she controlling weight would be given to an opinion of disability from a -2- follow the prescribed standards for evaluating her treating physicians' opinions, examination; (2) the nature and extent of the treatment relationship, question of disability is a matter reserved for the "not entirely credible" and determined that she retained the residual functional -12- 4 legal standards were applied and whether the decision is supported by substantial apparently discounting his opinion--that it was inconsistent with the medical "finally, if the alj rejects the opinion completely, [s]he id. at 1301 (quotation omitted). "after considering the pertinent factors, the alj with ms. lopez, as set forth below. 28 u.s.c. 1291 and 42 u.s.c. 405(g) and conclude that the administrative precedent, except under the doctrines of law of the case, res judicata, and decision. she has a high school education and has worked as a cashier. she onset date. at steps two and three, she found that ms. lopez suffered from a -7- argument. see fed. r. app. p. 34(f); 10th cir. r. 34.1(g). the case is therefore 509 f.3d 1254, 1258 (10th cir. 2007), the record must reflect that the alj inconsistent with other substantial evidence of record. . . . the supplemental security income (ssi) benefits. we exercise jurisdiction under november 12, 2002, due to bad knees, a bad back, and pain and stiffness in her to controlling weight. id. even if a treating physician's opinion is not entitled to -5- solely on the reasons stated in the decision," and we will not engage in a march 29, 2010 were unable to locate it. in any event, the september 9 report, according to the responds that dr. jain's opinion is not entitled to controlling weight because his erroneously relied on a vocational expert's testimony, and improperly assessed id. (quotation omitted).2 capacity (rfc) to occasionally lift twenty pounds and frequently lift ten pounds; october 27, 2006. at step one of the familiar five-step sequential evaluation accordingly, we must remand. see watkins, 350 f.3d at 1300, 1301.6 "post hoc effort to salvage the alj's decision." robinson v. barnhart, 366 f.3d (d. n.m.) opinions that a claimant is "`disabled' or `unable to work[]' . . . . must not be opinions of two of ms. lopez's treating physicians. accordingly, we reverse her credibility and subjective complaints of pain. again, ms. lopez takes issue with the alj's discussion of her treating controlling weight, it is "still entitled to deference and must be weighed using all or contradict the opinion. when the treating source's opinion is not entitled to controlling weight it is "still


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