Degenerative Disc Disease of the Cervical Spine, Psoriatic Arthrophathy & a Generalized Anxiety Disorder.

The court found that “the [Administrative Law Judge’s] reasoning fails to provide the necessary specific and legitimate reasons, supported by the record, for rejecting [a treating physician’s] opinion.

A large part of the ALJ’s decision was based on a purported internal inconsistency in the doctor’s opinion.  But the court found that the doctor had made “nothing more than a simple mistake” in filling out a questionnaire.

Citing Ninth Circuit Court of Appeals precedent, the court found that:  “Where an ALJ provides legally insufficient reasons for rejecting medical opinion, that opinion is treated as true.”  Harmen v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). In this case, the doctor’s opinion established disability.

The court held that there were no further factual issues to be resolved and remanded the case for an award of benefits.

COMMENT

This decision was based on Ninth Circuit Court of Appeals precedent.  See the article below, just above the copyright line, regarding precedent.

Here the court upheld the treating physician rule.

Fiorucci v. Commissioner of Social Security, No. 6:12-cv-2227-TC (D. Ore. Jan. 29, 2014).

http://scholar.google.com/scholar_case?case=12893778172930106194&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

Severe Obstructive Sleep Apnea and Transient Ischemic Attacks.

The court noted the claimant’s arguments were based on the conclusions of three of his treating physician:

“Dr. Alokeh consistently found that Plaintiff suffered from sleep apnea, transient ischemic attacks with associated fatigue and weakness . . . .”

“Dr. Altajar [a cardiologist] assessed Plaintiff with severe obstructive sleep apnea and excessive sleepiness and fatigue and would not clear Plaintiff to drive a car or return to work.”

“Dr. Berry diagnosed Plaintiff with severe obstructive sleep apnea, excessive daytime sleepiness, a history of cerebrovascular accident, hypertension, and obesity.”

The Administrative Law Judge found that the claimant’s severe impairments were obesity and sleep apnea.

The court remanded the case finding that the ALJ erred in discounting the opinions of three treating physicians and relying on another without demonstrating how their opinions were or were not supported by their medical records.

The court also found that the ALJ did not properly evaluate the claimant’s past relevant work as a high school teacher.  The court noted that the ALJ failed to articulate how the claimant could continue to work given that he is unable to remain awake throughout the day.

Longenecker v. Commissioner of Social Security, Case No. 2:13-cv-17-FtM-DNF (D. M.D. Fla., Ft. Meyers Div., Feb. 13, 2014).

http://scholar.google.com/scholar_case?case=14252767110096710522&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

Degenerative Disc Disease and COPD

On appeal the only issue the claimant raised was that the Administrative Law Judge had erred in “not finding that plaintiff’s degenerative disc disease at L4-5 and her COPD combined to meet or equal a listed impairment.”  The claimant was not represented at her hearing, but had counsel for the federal court appeal.

In the five-step sequential evaluation of disability, at step 3, Social Security considers whether a claimant “meets or equals” a medical condition set out in the rules.

The claimant’s medical evidence included a December, 2009, MRI which “showed a herniated disc at L4-5 with compromise of the exiting nerve root.”  In an office visit in February, 2010, the doctor reported that the claimant “had a normal gait and was able to toe walk, heel walk, squat and arise, hop and get on and off the examining table with no difficulty. . .  . She had some limitation of the range of motion of her lumbar spine. Straight leg raising was negative in both the sitting and supine positions.”

In its confirmation of the ALJ decision, the court quoted the most relevant listing for the claimant’s back pain, Listing 1.04.  [See, 20 C.F.R. 404, Appendix 1 to Subpart P of Part 404—Listing of Impairments. 1.00 Musculoskeletal System.] The court stated that: “the evidence falls far short of establishing that plaintiff met all of the requirements of Listing 1.04A. There was no evidence of a neuro-anatomic distribution of pain. Listing 1.04A specifically requires evidence of positive straight-leg raising test in both the sitting and supine positions, which is absent here. Further, there is no evidence of motor loss, muscle atrophy, sensory loss or reflex loss.” 

The court did not discuss whether the impairments equaled a listing.  For the ALJ to find that the claimant equaled a listing, a medical expert testifying at the hearing would have had to say as much.  [See 20 C.F.R. 404.1526; Social Security Ruling 96-6p.]

COMMENT

Doctor’s notes will include observations on how a person entered an examination room and whether the person had any difficulty getting on and off an examining table.

The court noted that the claimant submitted additional medical records to the Appeals Council, but it could not use them as a basis for finding that the ALJ (who had not seen the records) had committed reversible error.

Williams v. Commissioner of Social Security, Civil No. 13-cv-492-DRH-CJP (D. S.D. Ill., Jan. 8, 2014).

http://scholar.google.com/scholar_case?case=15757637227323242456&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

Borderline Intellectual Functioning and a Learning Disorder.

Among other issues considered by the court was the ALJ’s credibility determination.

The claimant argued that the ALJ improperly discounted her credibility because she failed to produce (corroborating) educational and treatment records.  The claimant was not represented at her hearing, but did obtain counsel for her federal court appeal. The reviewing court found that “the ALJ provided several other specific, clear, and convincing reasons for finding that plaintiff’s symptoms and functional limitations were not as severe as she alleged.”

In this case, “the ALJ specifically pointed to plaintiff’s generally good activities of daily living, which were ‘greater than one would expect for a totally disabled individual . . . .’”  (Citation omitted.)  The court noted that, “the ALJ observed that plaintiff’s work after the alleged disability onset date, although not representing disqualifying substantial gainful activity, nonetheless indicated that her daily activities have been greater than alleged.”

Citing medical records, the ALJ reported that “although plaintiff told Dr. Georgis that she did not take any drugs and told Dr. Woodard that she had no substance abuse issues (only having tried marijuana twice at the age of 20), plaintiff testified at the hearing that she had used marijuana and crystal methamphetamine earlier that year.”

The court affirmed the ALJ’s unfavorable decision.

COMMENT

1.  Especially where there are limited medical records, to make a convincing case for disability, claimants have to detail (in Social Security disability application forms and in testimony) their difficulties in activities of daily living and why they were unable to continue working.

2.  The adjudicator, after determining to deny the disability claim, may review medical records looking for statements that contradict statements made at the hearing.

Hernandez v. Commissioner of Social Security, No. 2:12-cv-2605-KJN (D. E.D. Calif., Jan. 10, 2014).

Available at:

http://scholar.google.com/scholar_case?case=2923602642785686049&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

Osteoarthritis, degenerative disc disease

The Administrative Law Judge found that the claimant’s severe impairments were “osteoarthritis, degenerative disc disease, coronary artery disease, depression, post-traumatic stress disorder (PTSD), borderline intellectual functioning, and obesity . . . .”  The ALJ found, nontheless, that the claimant could continue to work as a cleaner and presser.

 

On appeal the claimant argued that the ALJ erred by failing to properly weigh the opinions of two of her treating physicians. The court found that one doctor failed to support his opinion with reference to medical evidence, observations, and physical findings, and thus the ALJ did not err by declining to give the opinion more than “little weight.”

However, the court remanded the case because the ALJ’s assessment of the other doctor’s opinions failed to comply with the rules for evaluating treating physician opinions. The court noted that “the ALJ did not consider whether Dr. Houk’s opinions were ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques’ for purposes of the ‘controlling’ weight analysis” (citations omitted).

 

The claimant pointed out that objective evidence in support of her doctor’s standing and walking limitations included MRI evidence in October, 2009, and a series of x-rays of plaintiff’s knee and back in September, 2010, and May, 2011.  

  

The court stated: “In rejecting Dr. Houk’s opinion that plaintiff would be unable to perform the amount of walking and standing required for light work activity, the ALJ failed to explain whether the treating physician’s opinions were well-supported . . . . [footnote omitted].”

“The Court cannot accept the Commissioner’s post-hoc rationalization in support of the ALJ’s decision. Where the ALJ has failed to weigh a treating physician’s opinion in accordance with Social Security’s procedural regulations, the Court cannot excuse the failure even though there may be sufficient evidence in the record supporting the ALJ’s decision. . . .”

“In the absence of any explanation by the ALJ for his decision to give Dr. Houk’s opinions little weight the Court is unable to meaningfully review the ALJ’s decision or conclude that the ALJ gave ‘good reasons’ for the weight assigned to Dr. Houk’s opinions[footnote omitted]. . . .”

Zanders v. Commissioner of Social Security, No. 1:13-cv-137 (D. S.D. Ohio, W. Div., Jan. 23, 2014).

Available at:

http://scholar.google.com/scholar_case?case=2409717936042601302&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

COMMENT

Courts can and should reverse (or remand) ALJ decisions which are not supported by substantial evidence.  Here, the court found that the ALJ’s failure to give reasons for giving little weight to the doctor’s opinions was not “harmless error.”

Lumbar and cervical dysfunction and depressive disorder.

The Administrative Law Judge found the claimant’s impairments to be: “herniated nucleus pulposus at L4-L5 and L5-S1 status post laminectomy at L4-L5 with recurrent herniation at L4-L5 and nerve root impingement; spinal stenosis in the lumbar spine; cervical dysfunction variously described as minimal bulging, tear and spondylitic changes; coccydynia; and a mental impairment variously described as depressive disorder, adjustment disorder with depressed mood and pain disorder.”

In this case the ALJ gave only “limited weight” to the residual functional capacity limitations that the claimant’s doctor identified.

The claimant’s treating physician had found that the claimant’s physical capacities were that she: “can sit for less than 2 hours and stand for less than 2 hours in an eight-hour workday; she can occasionally lift up to 5 pounds; she can perform simple grasping and fine manipulations with both hands, but she cannot push or pull with arm controls; she cannot use her right or left leg for pushing and pulling of leg controls; Claimant requires a twenty minute rest period every hour during an eight-hour workday; and she will need to lie down for substantial periods during a normal workday.”

On appeal, the court concluded that the ALJ had not met his burden of articulating evidence to support his reason for rejecting or giving limited weight to the doctor’s opinion.  The court also found that one of the reasons cited by the ALJ that the doctor’s opinion was based on the claimant’s subjective complaints was “wholly conclusory.”

The court cited the three MRIs and an EMG study as among the objective results supporting the doctor’s opinion.

The court remanded the case for further proceedings.

COMMENT

Courts will accept the facts as found by the Administrative Law Judge if they are supported by substantial evidence.

The court here cited precedent that good cause to reject a physician’s opinion would exist if: “(1) treating physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical records.”

Pereira v. Commissioner of Social Security, Case No. 6:12-cv-1831-Orl-GJK (D. M.D. Fla., Orlando Div., Feb. 7, 2014).

Available at:

http://scholar.google.com/scholar_case?case=662530690378530433&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014

 

Lumbar spine degenerative discogenic disease, lumbar radiculopathy, a left medial meniscus tear, median nerve entrapment in both wrists and major depressive disorders.

On appeal the claimant argued that the Administrative Law Judge’s hypothetical presented to the vocational expert did not accurately reflect all of claimant’s functional limitations.  Specifically, the claimant suggested that the ALJ wrongly concluded that, “unskilled work inherently involves low levels of stress for employees.”

The court stated:  “While a correlation between unskilled and low-stress positions may indeed exist, it does not follow that unskilled work is necessarily low-stress. When a claimant’s mental impairments are at issue, there is a need to examine the individual’s specific vocational abilities in light of the impairment.” 

Citing case law, the court quoted Social Security Ruling 85-15:

“The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.”

The court found that: “The ALJ erred in making an independent assumption that unskilled work is inherently low-stress, rather than incorporating the factors necessary to properly evaluate the impact of a mental impairment on claimant’s vocational abilities into his hypothetical to the [vocational expert]. . . . at a minimum the hypothetical ought to include factors associated with low-stress environments, such as the ability or inability to interact with supervisors and co-workers.”

The court remanded the case.

COMMENT

When a claimant has mental impairments, his abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting must be evaluated.

 

Méndez v. Commissioner of Social Security, Civil No. 12-1725 (MEL) (D. P.R., Jan. 10, 2014)

Available at:

http://scholar.google.com/scholar_case?case=6700883412783644266&q=social+security&hl=en&as_sdt=40000003&as_ylo=2014