United States District Court, D. Alaska
ROBERT O. MARSHALL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
DECISION AND ORDER
Sharon
L. Gleason, UNITED STATES DISTRICT JUDGE
Robert
Marshall filed an application for Disability Insurance
Benefits ("disability benefits") under Title II of
the Social Security Act ("the Act"), alleging
disability beginning November 26, 2009.[1] Mr. Marshall has
exhausted his administrative remedies and seeks relief from
this Court.[2] He argues that the determination by the
Commissioner of the Social Security Administration
("Commissioner") that he is not disabled, within
the meaning of the Act, is not supported by substantial
evidence and that the Administrative Law Judge
("ALJ") committed legal errors.[3] Mr. Marshall asks
for a reversal of the Commissioner's decision and a
remand for calculation of benefits.[4]
The
Commissioner filed an answer to the complaint and an
answering brief in opposition.[5] Oral argument was not requested
and was not necessary to the Court's decision. For the
reasons set forth below, Mr. Marshall's Motion for Remand
at Docket 1 is GRANTED IN PART, the Commissioner's final
decision is VACATED, and the case is REMANDED to the
Commissioner for further proceedings consistent with this
decision.
I.
STANDARD OF REVIEW
A
decision by the Commissioner to deny disability benefits will
not be overturned unless it is either not supported by
substantial evidence or is based upon legal
error.[6]"Substantial evidence" has been
defined by the United States Supreme Court as "such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."[7] Such evidence
must be "more than a mere scintilla, " but may be
"less than a preponderance."[8] In making its
determination, the Court considers the evidence in its
entirety, weighing both the evidence that supports and that
which detracts from the ALJ's conclusion.[9] If the evidence
is susceptible to more than one rational interpretation, the
ALJ's conclusion must be upheld.[10]
II.
DETERMINING DISABILITY
The Act
provides for the payment of disability insurance to
individuals who have contributed to the Social Security
program and who suffer from a physical or mental
disability.[11] Disability is defined in the Act as
follows:
[l]nability 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.[12]
The Act
further provides:
An individual shall be determined to be under a disability
only if his physical or mental 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, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. For
purposes of the preceding sentence (with respect to any
individual), "work which exists in the national
economy" means work which exists in significant numbers
either in the region where such individual lives or in
several regions of the country.[13]
The
Commissioner has established a five-step process for
determining disability within the meaning of the
Act.[14] A claimant bears the burden of proof at
steps one through four in order to make a prima
facie showing of disability[15] If a claimant establishes
a prima facie case, the burden of proof then shifts
to the agency at step five.[16] The Commissioner can meet this
burden in two ways: "(a) by the testimony of a
vocational expert, or (b) by reference to the
Medical-Vocational Guidelines at 20 C.F.R. Pt. 404, Subpt. P,
App. 2."[17] The steps, and the ALJ's findings in
this case, are as follows:
Step
1. Determine whether the claimant is involved in
"substantial gainful activity." The ALJ concluded
that Mr. Marshall had not engaged in substantial gainful
activity since November 26, 2009[18]
Step
2. Determine whether the claimant has a medically
severe impairment or combination of impairments. A severe
impairment significantly limits a claimant's physical or
mental ability to do basic work activities, and does not
consider age, education, or work experience. The severe
impairment or combination of impairments must satisfy the
twelve-month duration requirement. The ALJ determined that
Mr. Marshall has the following severe impairments:
osteoarthritis of the right knee (status-post total knee
replacement), lumbar spondylosis, and obesity.[19] The ALJ found
that the following impairments were not severe: right wrist,
elbow, and ankle impairments, left knee impairment, and
depression.[20] The ALJ also specifically found that the
follow alleged impairments were not medically determinable:
left shoulder/clavicle, bilateral wrist, and bilateral elbow,
cervical spine, and prostatitis[21]
Step
3. Determine whether the impairment is the
equivalent of any of the listed impairments found in 20
C.F.R. Pt. 404, Subpt. P, App. 1 that are so severe as to
preclude substantial gainful activity. If the impairment is
the equivalent of any of the listed impairments, and meets
the duration requirement, the claimant is conclusively
presumed to be disabled. If not, the evaluation goes on to
the fourth step. The ALJ determined that Mr. Marshall does
not have an impairment or combination of impairments that
meets or medically equals the severity of a listed
impairment[22]
Before
proceeding to step four, a claimant's residual functional
capacity ("RFC") is assessed.[23] Once
determined, the RFC is used at both step four and step
five.[24] An RFC assessment is a determination of
what a claimant is able to do despite his or her physical,
mental, or other limitations.[25] The ALJ concluded that Mr.
Marshall has the RFC to perform light work as defined in 20
CFR § 404.1567(b) except he is limited to frequent, not
constant, operation of foot controls with the right lower
extremity, occasional climbing of ramps and stairs as well as
stopping, kneeling, crouching, and crawling; he must avoid
concentrated exposure to non-weather related extreme cold and
excessive vibration; and requires work that allows him to
alternate sitting and standing positions at one hour
intervals throughout the day for up to five minutes to
relieve pain or discomfort.[26]
Step
4. Determine whether the impairment prevents the
claimant from performing work performed in the past. At this
point, the analysis considers the claimant's RFC and past
relevant work. If the claimant can still do his or her past
relevant work, the claimant is deemed not to be disabled.
Otherwise, the evaluation process moves to the fifth and
final step. The ALJ found that Mr. Marshall is unable to
perform any of his past relevant work[27]
Step
5. Determine whether the claimant is able to perform
other work in the national economy in view of his or her age,
education, and work experience, and in light of the RFC. If
so, the claimant is not disabled. If not, the claimant is
considered disabled. Based on the testimony of a vocational
expert ("VE"), the ALJ determined that there are
jobs that exist in significant numbers in the national
economy that Mr. Marshall can perform, including: assembler,
DOT No. 706.684-022, and parking lot attendant, DOT No.
915.473-010[28]
III.
PROCEDURAL AND FACTUAL BACKGROUND
Mr.
Marshall is fifty-four years old. He worked as a pipe fitter
and pipe welder for his adult life.[29] In 2007, he slipped off
an iron beam and fell against a scaffold injuring his right
knee.[30] On December 19, 2010, Mr. Marshall
underwent a total knee replacement on his right knee after
less severe treatment options-including three surgeries-were
unsuccessful at alleviating his pain.[31] Mr. Marshall
was found to have reached "maximum medical
improvement" post-surgery on September 7,
2011.[32] He was assessed at twenty-five percent
whole body impairment related to his worker's
compensation claim.[33]In late 2013, Mr. Marshall was referred
to a pain management specialist by his knee replacement
surgeon.[34] Through pain management, Mr. Marshall
underwent multiple steroid injections in his lower back to
relieve pain on his lumbar spine and was referred to both
physical and psychological therapy.[35] Mr. Marshall is
prescribed diclofenac[36] and Wellbutrin, [37] and takes
aspirin.[38] He alleges the following combination of
impairments: bilateral knees, bilateral wrists and elbows,
depression, cervical and lumbar spine, left knee, right
ankle, left shoulder/clavicle, and prostetis.[39]
The ALJ
hearing was held on July 9, 2014; Mr. Marshall was
represented by counsel at that hearing.[40] The ALJ's
decision was issued on September 4, 2014, and held that Mr.
Marshall was not disabled from November 26, 2009 through the
date of the decision.[41] The Appeals Council declined to
review the ALJ's disability determination on February 17,
2016. As such, the ALJ's decision is the final decision
of the Social Security Administration
("SSA").[42] Mr. Marshall filed his complaint seeking
judicial review with this Court on March 25,
2016;[43] he is represented by counsel in this
appeal.[44]
IV.
DISCUSSION
Mr.
Marshall argues that the ALJ erred in: (1) rejecting the
opinions of two of Mr. Marshall's treating sources as
well as an examining source utilized by one of the treating
sources; (2) finding Mr. Marshall's subjective complaints
about the intensity, persistence, and limiting effects of his
impairments to be not entirely credible; (3) rejecting the
opinion of Mr. Marshall's wife; and (4) relying on the
VE's testimony because it was based on a faulty
hypothetical that did not include all of Mr. Marshall's
restrictions.[45] The Commissioner asserts that the ALJ
did not err in any of these respects.
1.
Weight of Medical Opinions
"Regardless of its source, [the SSA] will evaluate every
medical opinion [it] receive[s]."[46] Medical
opinions come from three types of sources: those who treat
the claimant; those who examine but do not treat the
claimant; and those who neither examine nor treat the
claimant. "As a general rule, more weight should be
given to the opinion of a treating source than to the opinion
of doctors who do not treat the claimant."[47]Indeed, if the
treating source's opinion is "well-supported by
medically acceptable clinical and laboratory diagnostic
technigues and is not inconsistent with other substantial
evidence" in the record, that opinion will be given
controlling weight.[48] "If a treating physician's
opinion is not given 'controlling weight' because it
is not 'well-supported' or because it is inconsistent
with other substantial evidence in the record, the [SSA]
considers specified factors in determining the weight it will
be given."[49] These factors include the length of the
treatment relationship and freguency of examination as well
as the nature and extent of the relationship.[50]
When
weighing a medical opinion, including that of a treating
source that is not controlling, the ALJ must consider the
extent to which the opinion is supported by relevant
evidence, such as medical signs and laboratory results; the
extent to which an opinion is consistent with other opinions
and evidence in the record; whether the opinion is within the
source's area of specialization; and other factors such
as the medical source's degree of familiarity with the
SSA's disability progress and with other information in
the claimant's record.[51]
Applying
these factors means that "[i]n many cases, a treating
source's medical opinion will be entitled to the greatest
weight and should be adopted, even if it does not meet the
test for controlling weight."[52] However, in some cases,
the treating source's opinion may not be entitled to the
greatest weight. But "an ALJ may reject a treating
doctor's medical opinion, " if no other doctor has
contradicted it, "only for 'clear and
convincing' reasons supported by substantial
evidence."[53] In addition, the opinion of an
examining, but non-treating source, should generally be given
more weight than that of a non-examining
source.[54]
Doctors
do not always agree on all matters, and the ALJ is
responsible for determining credibility and resolving
conflicts and ambiguities in medical testimony.[55] But even when
a treating source's opinion is contradicted by the
opinion of an examining physician, a treating source's
opinion is generally "still entitled to
deference."[56] If a treating source's opinion is
contradicted by another source, an ALJ may not reject that
treating source's opinion without providing
"specific and legitimate reasons supported by
substantial evidence in the record."[57] This can be
done by "setting out a detailed and thorough summary of
the facts and conflicting clinical evidence, stating his
interpretation thereof, and making
findings."[58]
When an
examining source relies on the same clinical findings as a
treating source, but differs only in his or her conclusions,
the conclusions of the examining source are not considered
"substantial evidence" sufficient to support
rejecting the treating source's opinion.[59] And when
rejecting a treating source's opinions, the ALJ must do
more than just offer his own conclusions; instead, "he
must set forth his own interpretations and explain why they,
rather than the doctors', are
correct."[60] But an ALJ may discredit a treating
source's opinions that are "conclusory, brief, and
unsupported by the record as a whole or by objective medical
findings."[61] The SSA also permits a claimant to
provide evidence from non-physician sources to show the
severity of an impairment and how it affects a claimant's
ability to work, including evidence from a nurse
practitioner, physicians' assistant, chiropractor, or
therapist, including a physical therapist.[62]
Here,
four medical sources' opinions were discounted or
rejected by the ALJ: (1) Doug Vermillion, M.D., an orthopedic
surgeon; (2) Richard Cobden, M.D., an orthopedic doctor; (3)
Jennifer Carlson, M.S.P.T. ("MSPT Carlson"), a
physical therapist; and (4) Richard Elson, D.C., a
chiropractor.[63] Mr. Marshall's appeal to this Court
focuses on the ALJ's determinations with respect to the
first three of these medical sources.
There
are also four other treating sources whose medical opinions
the ALJ did not expressly address: Duane Frampton, a
physician's assistant at an orthopedic office; Nancy
Cross, M.D., a pain specialist; Randy Lewis, a licensed
clinical social worker (LCSW Lewis); and Patrick Morgan, a
physical therapist ("PT Morgan"). The medical
records from Dr. Cross, LCSW Lewis, and PT Morgan were not a
part of the administrative record that was before the
ALJ.[64] But the ALJ did know that Mr. Marshall
had been seen by a pain management specialist-the ALJ refers
to Dr. Cross' treatment notes from May 2014 discussing an
April 2014 MRI in his written decision.[65] Moreover, the
medical records from Dr. Vermillion that were in the record
before the ALJ indicate that the doctor referred Mr. Marshall
to Dr. Cross in October 2013 due to recurrent
pain.[66]The Appeals Council had the records of
these additional health care providers before it when it made
its decision to decline Mr. Marshall's request for
review.[67] Since these medical records were
properly before the Appeals Council for its consideration,
and came to the Court as part of the certified transcript
encompassing the administrative record, the Court may
consider them on appeal.[68]
Dr.
Vermillion, orthopedic surgeon
Dr.
Vermillion began treating Mr. Marshall on June 30, 2010,
after he was referred by Dr. Keller for an opinion about Mr.
Marshall's right knee.[69] Dr. Vermillion promptly
ordered x-rays and an MRI. He diagnosed osteoarthritis and
mild medial chondromalacia patella.[70] He observed that the
"MRI did show a 1-cm area of damage to the cartilage in
the center of the patella and on the trochlea, " which
"appears to be the main source of his
pain."[71] On September 9, 2010, Dr. Vermillion
performed a diagnostic arthroscopy and debridement of
cartilage defects to Mr. Marshall's right
knee.[72] On October 18, 2010, in a preoperative
discussion, Dr. Vermillion noted that Mr. Marshall's gait
was antalgic and that he had a large tear and cartilage
defects in the medial portion of his knee.[73]Accordingly,
the following day, October 19, 2010, Dr. Vermillion performed
a total knee replacement on Mr. Marshall's right
knee.[74] After a three-day hospital stay, Mr.
Marshall was discharged on October 22, 2010.[75] Mr. Marshall
then had regular follow up visits with Dr.
Vermillion.[76] In June 2011, Dr. Vermillion requested
and received a physical capacity evaluation of Mr. Marshall
from MSPT Carlson.[77] He also obtained x-rays of Mr.
Marshall's knee on June 29, 2011, [78]
On July
27, 2011, Mr. Marshall had an appointment with Dr.
Vermillion, who observed mild swelling, limited range of
motion, mild warmth, and tenderness of the right knee on that
date.[79] Dr. Vermillion issued his first of two
opinions regarding Mr. Marshall's work-related
disabilities.[80] That opinion mirrored the opinions of
MSPT Carlson, which are discussed below.[81] Dr.
Vermillion released Mr. Marshall to work at that time with
restrictions that included no more than two hours of sitting
and no more than two hours of standing during an eight hour
period, up to 30 minutes walking, and lifting 50 pounds as
tolerated. The ALJ did not discuss this opinion in his
decision.
On
September 7, 2011, Dr. Vermillion again examined Mr.
Marshall's knee and determined he had "right knee
osteoarthritis, stable after a total joint" replacement.
The doctor also found that Mr. Marshall had "reached
maximum medical improvement."[82]That same day, Dr.
Vermillion opined as to Mr. Marshall's work capabilities,
and concluded that he could sit "as tolerated 20-40
minutes with short breaks, " stand "as tolerated
20-40 minutes with breaks, " walk as tolerated on level
surfaces, climb stairs as tolerated, carry 50 pounds
intermittently, do minimal kneeling as tolerated, and climb
short ladders as tolerated.[83]
Mr.
Marshall had additional follow up visits with Dr. Vermillion
in February 2012 and October 2013.[84] At the October 2013
visit, Dr. Vermillion referred Mr. Marshall to Nancy Cross, a
pain specialist, to address Mr. Marshall's continuing
right knee pain.[85]The doctor noted that "radiographs
look good and motion is okay, " but that Mr. Marshall
was experiencing "dull pain most of the time, " two
to three out of ten on a pain scale, and wanted
relief.[86]
The
ALJ's RFC concludes that Mr. Marshall is able to perform
light work so long as he is able to alternate sitting and
standing positions at one hour intervals throughout the day
for up to five minutes at a time-a finding that is
substantially less restrictive than Dr. Vermillion had opined
in September 2011. The ALJ indicated that he had given only
"partial weight" to Dr. Vermillion's September
2011 opinions about Mr. Marshall's work related
restrictions for three reasons. The ALJ found that (1) the
doctor "gave no rationale with his opinion, " (2)
post-surgical x-rays "reveal no abnormalities other than
the presence of hardware at the right knee, " and (3)
the limitations were out of proportion to the doctor's
post-surgery examination findings.
Mr.
Marshall asserts that Dr. Vermillion's extensive
treatment notes in the months following the knee replacement
surgery that he performed, along with MSPT Carlson's
physical capacities evaluation, provided ample context and
rationale to support the doctor's September 2011 opinion.
Mr. Marshall pointed out that the doctor remarked about mild
swelling, warmth, and tenderness in Mr. Marshall's right
knee in July 2011 and that his right quad muscle tone was
still lacking compared to his left leg, although it had
improved in September 2011.[87] The Commissioner responds that
the ALJ provided legally sufficient reasons that were
supported by substantial evidence as required to discount
this treating source's opinion.[88]
The
Court agrees with Mr. Marshall. Dr. Vermillion is a surgeon
specializing in orthopedics who performed a total knee
replacement on Mr. Marshall's right knee. As of September
2011, he had regularly treated Mr. Marshall for well over one
year. Moreover, the Court does not find another medical
opinion in the administrative record that contradicts Dr.
Vermillion's opinions. Indeed, the ALJ noted that other
treating sources' examination records "reveal
nothing significantly different than findings noted by Dr.
Vermillion."[89] As such, the ALJ was required to provide
clear and convincing reasons for rejecting Dr.
Vermillion's opinions. He did not.
The
ALJ's first rationale to accord less than full weight to
Dr. Vermillion's opinions-because Dr. Vermillion
"gave no rationale with his opinion"-is without
merit. Dr. Vermillion had a multi-year treating relationship
with Mr. Marshall documented in the record that includes
extensive treatment notes, x-ray results, physical therapy
prescriptions, drug prescriptions, functional capacity
evaluations, and other records. Together, these provide a
rationale and a context for Dr. Vermillion's opinions.
The
ALJ's second rationale for according only partial weight
to Dr. Vermillion's opinions-because post-surgical x-rays
did not "reveal abnormalities other than the presence of
hardware at the right knee"-is not supported by the
objective medical evidence. Setting aside the fact that a
total knee replacement is by no means a small medical
procedure, the record contains numerous reports of swelling,
reduced range of motion, and an antalgic gait. In addition,
an April 1, 2013 three-phase bone scan report of Mr.
Marshall's right knee revealed "accentuated activity
particularly on the blood pool" which "may reflect
either a severe stress reaction [or] loosening of the
patellar component."[90] Accordingly, the Court finds
that the ALJ's assertion that post-surgical examinations
did not "reveal abnormalities other than the presence of
hardware at the right knee" is unsupported by the record
and not a legitimate reason for rejecting Dr.
Vermillion's opinion.
Lastly,
the ALJ's assertion that Dr. Vermillion's opinion on
Mr. Marshall's limitations were out of proportion to the
doctor's post-surgery examination findings is
unpersuasive. Dr. Vermillion's September 2011 work
release restrictions were made when the doctor opined that
Mr. Marshall had reached maximum medical improvement. At that
time, the doctor noted a limited range of motion
(i.e., 0 degrees to 110 degrees), tenderness on
flexion, and improved quad tone that was still
"lacking" compared to the left leg. In February
2012, Dr. Vermillion noted Mr. Marshall's right knee was
still stiff, that he had full extension was possible with
trouble past 95 degrees, and mild swelling. His assessment
then was right knee osteoarthritis with some residual pain.
And in April 2013, the bones scans discussed above were
obtained. Again, these medical records contradict the
ALJ's assertion that Dr. Vermillion's opinions were
out of proportion to the doctor's findings. The Court
also notes that if the ALJ found Dr. Vermillion's
opinions to be dated, then the ALJ should have requested
further evaluation and a new opinion from Dr. Vermillion
regarding Mr. Marshall's work-related abilities.
In sum,
the Court finds that the ALJ did not articulate the requisite
clear and convincing reasons, supported by substantial
evidence, when he developed an RFC substantially less
restrictive than Dr. Vermillion's opinions. And even if
the ALJ found that the doctor's opinions were
contradicted by the x-ray results, the Court finds that the
reasons given by the ALJ for rejecting the doctor's
opinions were not legitimate for the reasons discussed above.
Jennifer
Carlson, MSPT
The
administrative record shows that on referral from Dr.
Vermillion, MSPT Carlson provided physical therapy to Mr.
Marshall from October 10, 2010 to June 22,
2011.[91] In June 2011, MSPT Carlson conducted a
physical capacities evaluation, also at Dr. Vermillion's
request.[92] MSPT Carlson provided both the results
of the evaluation and an opinion of the results to Dr.
Vermillion.[93] She opined that Mr. Marshall was limited
to: frequently carrying 10 to 35 pounds as well as twisting
and reaching above the shoulder level; occasionally lifting
45 to 65 pounds as well as bending, squatting, and climbing;
and that he was not able to lift over 75 pounds at
all.[94] Initially, she opined that Mr. Marshall
could sit and stand without limitation, and walk for no more
than thirty minutes at a time.[95] However, on June 22, 2011,
after Mr. Marshall performed a sitting and standing tolerance
test, MSPT Carlson issued an addendum that found that Mr.
Marshall could tolerate no more than two hours of standing
and two hours of sitting during an eight-hour
period.[96]
The ALJ
gave MSPT Carlson's opinion no weight because he did not
find her an acceptable medical source to render opinions on
the claimant's limitations, that her opinions were based
on the subjective effort and reports by Mr. Marshall, and
that she did not indicate what objective evidence she had
relied on to form her opinions.[97]
Mr.
Marshall asserts that the ALJ failed to consider MSPT
Carlson's opinions in conjunction with Dr.
Vermillion's September 7, 2011 opinion-as the context of
referral and treating relationship requires; that the ALJ
committed legal error in finding that MSPT Carlson was not
able to provide an opinion about Mr. Marshall's
limitations; and that the opinion was based solely on Mr.
Marshall's own efforts and self-reporting.[98] The
Commissioner responds that the ALJ provided a germane reason
for assigning no weight to MSPT Carlson's opinions,
i.e., she relied on the subjective complaints of Mr.
Marshall-which the ALJ found to be not entirely credible-and
cited no objective evidence on which she
relied.[99]
The
Court notes that although SSA regulations explicitly address
only how ALJs are meant to evaluate medical opinions
(i.e., opinions from "acceptable medical
sources, " as defined in 20 C.F.R. § 404.1527), the
SSA has acknowledged since 2006 that modern healthcare
incorporates heavy reliance on healthcare professionals who
do not necessarily meet the definition of an acceptable
medical source under SSA regulations.[100] Indeed,
the SSA has instructed ALJs that when considering such
evidence (including opinions), the same factors used for
acceptable medical sources apply to the consideration of all
opinions made by medical professionals, even if they are not
"acceptable medical sources, " because the factors
"represent basic principles."[101]The SSA
illustrates a situation in which an acceptable medical source
and medical source who is not deemed acceptable each provide
opinions; in such a scenario the fact that one opinion is
from an acceptable source is highly relevant and "may
justify giving that opinion greater weight" because the
SSA finds acceptable medical sources to be "the most
qualified health care professionals."[102] With this
in mind, the Court finds that the ALJ erred in dismissing
MSPT Carlson's opinions because she is not an acceptable
medical source as defined by SSA regulations.
The ALJ
also offered two additional reasons to disregard MSPT
Carlson's opinions: (1) her reliance on Mr.
Marshall's effort and subjective reports of pain; and (2)
her failure to "provide a rationale as to what objective
evidence she relied upon in rendering her
opinions."[103] The Court does not find either reason
persuasive. First, a patient's effort and subjective
reports are necessarily a part of any physical capacity
evaluation. And MSPT Carlson specifically noted that she
found Mr. Marshall "gave excellent effort" during
his physical capacities evaluation.[104] Second, as Mr.
Marshall pointed out, the physical capacitates evaluation
itself contains the objective medical findings upon which
MSPT Carlson relied.[105] MSPT Carlson provided a detailed
report of her evaluation that included the identification of
the weight and repetitions performed for each
task.[106] And MSPT Carlson had treated Mr.
Marshall on three prior occasions outside of the physical
capacities evaluation and subsequent sit/stand
test.[107]Consequently, the ALJ erred in the
wholesale rejection of MSPT Carlson's opinions.
Dr.
Cobden, orthopedic doctor
On six
occasions between October 2011 and July 2014, orthopedic
doctor Dr. Cobden also examined Mr. Marshall.[108] On
October 6, 2011, Dr. Cobden completed a chart review, met
with Mr. Marshall, and opined in a permanent partial
impairment ("PPI") rating that Mr. Marshall had a
25% whole person impairment.[109] Dr. Cobden also completed
"a total and Permanent Disability Pension
Questionnaire" on July 14, 2014. There, he concluded
that based on Mr. Marshall's spinal stenosis and chronic
wrist pain, he was totally and permanently
disabled.[110]
The ALJ
did not reference Dr. Cobden's 2011 report. As to the
2014 questionnaire, the ALJ gave "no weight" to Dr.
Cobden's opinions on Mr. Marshall's ability to work
because the ALJ found the doctor's opinions to be
conclusory and unsupported. The ALJ reasoned that Dr. Cobden
had not begun treating Mr. Marshall until approximately two
years after the alleged disability onset date of November
2009 and had only seen Mr. Marshall annually. The ALJ added
that in the 2014 questionnaire, Dr. Cobden gave "no
indication as to what evidence he relied upon" in
reaching his opinions.[111]
Mr.
Marshall asserts that the ALJ erred in rejecting Dr.
Cobden's opinions.[112] He maintains that Dr. Cobden's
treatment notes reveal the evidence on which the doctor
relied to formulate his opinion.[113] He also argues that
Dr. Cobden's opinions are consistent with those of both
Dr. Vermillion and MSPT Carlson.[114] The Commissioner
responds that the ALJ properly rejected Dr. Cobden's
opinions because they were conclusory and
unsupported.[115]
The
Court finds that although Dr. Cobden was not Mr.
Marshall's primary treating source for his chronic right
knee or back pain, he had seen him several times from 2011 to
2014 and as such had a treating relationship with Mr.
Marshall. The Court notes, however, that some of his visits
pertain at least in part to "paperwork, " which is
indicated as being about Mr. Marshall's worker's
compensation benefits and/or disability benefits
application.[116] Nonetheless, that merely means that
Dr. Cobden could be deemed a "nontreating
source"-like a consultative examiner used by the SSA. It
does not provide a basis for the wholesale rejection of Dr.
Cobden's opinions.[117]
On
September 19, 2013, Dr. Cobden met with Mr. Marshall. On that
day, Mr. Marshall had decreased range of motion, slight
effusion, some medial tenderness and an antalgic
gait.[118] Dr. Cobden also reviewed multiple
x-rays of Mr. Marshall's knees, right ankle, and spine.
At that visit, Dr. Cobden opined that Mr. Marshall was ready
to apply for disability benefits since "he no longer can
work and can barely move without pain."[119]Dr. Cobden
also noted that he was referring Mr. Marshall to a pain
clinic for pain management. Dr. Cobden found early
degenerative arthritis in Mr. Marshall's right ankle and
chronic degenerative changes in the lower back and noted that
a total knee replacement in Mr. Marshall's right knee was
"in good position and alignment and shows no signs of
loosening"-which he also found after reviewing an x-ray
from October 2011.[120] Consequently, Dr. Cobden did not
provide his opinions without considering the objective
medical evidence. Additional objective observations are
included in his treatment notes.[121] Moreover, Dr. Cobden
conducted the PPI of Mr. Marshall in October 2011, which
necessarily provided him with an extensive understanding of
Mr. Marshall's body mechanics, including his abilities
and limitations at that time.
The
Court also finds the fact that Dr. Cobden did not provide
treatment to Mr. Marshall until 2011 to be an insufficient
basis to reject his opinions. Dr. Cobden became involved at
the time of the PPI according to record before the Court.
While Dr. Vermillion performed the total knee replacement,
that does not preclude Mr. Marshall from obtaining treatment
from another medical source. And importantly, no other
medical records in the administrative record contradicted Dr.
Cobden-and he did not contradict any other doctor. The ALJ
was required to provide clear and convincing reasons to
reject Dr. Cobden's opinions.[122] The Court's review
of the record demonstrates that he did not.
The
Court finds that the ALJ erred in rejecting Dr. Cobden's
opinions. The pro forma use of "conclusory and
unsupported" and "no indication of what evidence
was relied upon" to reject opinions of acceptable
medical sources runs afoul of SSA regulations and policy as
well as the applicable case law.
2.
Appropriate Remand
A court
may remand a disability benefits case to the ALJ for further
administrative proceedings or for an immediate calculation of
benefits. A reviewing court "retains
'flexibility' in determining the appropriate
remedy."[123] A remand for further proceedings is
proper when, despite legal errors, the record is uncertain
and ambiguous[124] and further administrative proceedings
would serve a useful purpose.[125] "Where there is
conflicting evidence, and not all essential factual issues
have been resolved, a remand for an award of benefits is
inappropriate."[126]
In
contrast, a remand for an immediate calculation of benefits
is warranted when the requirements of the "credit as
true rule" are met. Those requirements are met when: (1)
that the ALJ failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical
opinion; (2) the record has been fully developed and further
proceedings would serve no useful purpose; and (3) if the
improperly discredited evidence were credited as true, the
ALJ would be required to find the claimant disabled on
remand.[127]
Here,
the Court has found that the ALJ failed to provide legally
sufficient reasons for rejecting certain medical opinions.
And if the improperly discredited evidence is credited as
true, the ALJ would be required to find the claimant disabled
on remand. Nonetheless, the Court finds that further
administrative proceedings will serve a useful purpose in
this case. There are unresolved factual issues and some
unaddressed evidence and opinions that lead this Court to
find that an award of benefits is not proper at this time.
The extent of Mr. Marshall's physical limitations is not
clear from the administrative record before the Court and the
SSA is charged with determining disability, not this Court.
Moreover, "the touchstone for an award of benefits is
the existence of a disability, not the agency's legal
error."[128]
On
remand, the Commissioner is directed to properly consider the
opinions contained within the administrative record, which
requires the Commissioner to (1) review the additional
medical records in the administrative record-namely Dr.
Cross, PT Morgan, and LCSW Lewis-and weigh the opinions and
evaluate the evidence contained within them in conjunction
with the entire administrative record; (2) evaluate the
opinions of Dr. Cobden and Dr. Vermillion using the factors
listed in 20 C.F.R. §404.1527(2)(c); (3) consider the
opinions of MSPT Carlson and PA Frampton, using the same
factors; (4) reevaluate Mr. Marshall's statements
pertaining to his symptoms; (5) determine whether to accord
Mrs. ...