EDWIN M. KOSIK, District Judge.
The above-captioned action is one seeking review of a decision of the Acting Commissioner of Social Security ("Commissioner"), denying Plaintiff William O. Rhyder's application for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Title II and Title XVI. For the reasons set forth below, we will vacate the decision of the Commissioner and remand the case to the Commissioner for further proceedings.
Rhyder applied protectively for DIB and SSI on December 1, 2009, alleging disability beginning June 23, 2009. (Tr. 190-96, 197-201).
Rhyder requested a hearing before the Administrative Law Judge ("ALJ") Office of Disability and Adjudication and Review of the Social Security Administration, and one was held on June 8, 2011. (Tr. 158-59, 59-93). At the hearing, Rhyder was represented by counsel, and a Vocational Expert testified. (Tr. 59-93). On August 24, 2011, the ALJ issued a decision denying Rhyder's application. (Tr. 127-43). Rhyder filed a request for review with the Appeals Council, which was granted. (Tr. 144-49). A second hearing was conducted on January 27, 2014 before the same ALJ. (Tr. 94-117). Again, Rhyder was represented by counsel and a Vocational Expert testified. (
Rhyder filed a complaint in this Court on May 16, 2016. (Doc. 1). The Commissioner filed an answer on July 14, 2016. (Doc. 4). After supporting and opposing briefs were submitted (Docs. 8, 11, 12), the appeal
Rhyder was born in March of 1957 (Tr. 118), and has a 10th grade education. (Tr. 118). In the past, Rhyder worked as a warehouse worker, forklift operator, and auto body technician. (Tr. 126, 138, 269). Rhyder has not engaged in substantial gainful activity since the amended alleged onset date of disability, March 2, 2012. (Tr. 25, 232).
Rhyder has the following severe impairments: bipolar disorder, anxiety disorder, lumbar degenerative disc disease/degenerative joint disease, and a history of right rotator cuff tear/impingement. (Tr. 26).
STANDARD OF REVIEW
When considering a social security appeal, the Court has plenary review of all legal issues decided by the Commissioner.
SEQUENTIAL EVALUATION PROCESS
The plaintiff must establish that there is some "medically determinable basis for an impairment that prevents him from engaging in any substantial gainful activity for a statutory twelve-month period."
The ALJ went through each step of the sequential evaluation process and (1) found that Rhyder had not engaged in substantial gainful activity since March 2, 2012, the amended alleged onset date; (2) found that Rhyder had the severe impairments of bipolar disorder, anxiety disorder, lumbar degenerative disc disease/degenerative joint disease, and a history of right rotator cuff tear/impingement; (3) found that Rhyder's impairments did not meet or equal a listed impairment; (4) found that Rhyder lacked credibility; and (5) concluded that Rhyder could not perform his past relevant work, but that he could perform medium work with several limitations (Tr. 25-28). Specifically, the ALJ found that the medium work had to be limited to "occasional bending, stooping, crouching, crawling, kneeling, balancing, and climbing, but never on ladders, ropes, or scaffolds." (Tr. 28). The ALJ also found that Rhyder "must avoid overhead reaching with the right dominant upper extremity . . . concentrated exposure to temperature extremes, wetness, humidity, and vibrations." (
Rhyder appeals the ALJ's determination on three grounds: (1) the ALJ erred in finding Rhyder could perform jobs that were precluded by the ALJ's residual function capacity ("RFC"), (2) the ALJ lacked evidence to support the RFC, and (3) the ALJ erred by basing her entire RFC finding on her view of Rhyder's credibility.
STEP FOUR EVALUATION — RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT
i. Medical Evidence
Rhyder has been receiving treatment for both mental and physical health problems. Rhyder was seen and assessed by Anil Saxena, M.D. Dr. Saxena, a psychiatrist, prescribed Depakote, a psychotropic medication to Rhyder, and the treatment notes show several modifications in medication and ongoing individual therapy. (Tr. 336-358). Michael T. Degilio, Psy.D., examined and evaluated Rhyder, beginning in November 2008 through October 2010 on a weekly/bi-weekly basis. (Tr. 362). Dr. Degilio diagnosed him with biopolar disorder and alcohol dependence. (
Rhyder was also evaluated by David Smock, Ph.D. on March 8, 2010, at the request of the State agency. Dr. Smock diagnosed Rhyder with bipolar disorder, hypomanic, and alcohol abuse in remission. (Tr. 381). Dr. Smock further opined that Rhyder would have marked limitations in understanding and remembering short, simple instructions and extreme limitations in carrying out short, simple instructions, understanding, remembering, and carrying out detailed instructions, and making judgements on simple work-related decisions. (Tr. 374). Dr. Smock also found Rhyder to have extreme limitations in interacting appropriately with the public, supervisors, and co-workers, as well as responding appropriately to work pressures and changes in a usual and routine work setting. (
Finally, Dr. Mrykalo, a non-examining State agency psychological consultant, indicated that Rhyder had moderate limitations in his mental functional capacity and that he is not significantly limited in his ability to make simple work decisions, and perform simple, routine tasks. (Tr. 396-98).
As for Rhyder's physical impairments, which both parties focus their arguments and briefs upon, the record demonstrates that his primary physical issues involve his right shoulder—which he has a history of a full-thickness rotator cuff tear that required surgery to repair—degenerative joint disease, and neck and back pain. (Tr. 240, 316-19, 408, 409, 417-434, 486, 452, 562-621). A 2008 MRI of Rhyder's right shoulder shows a full thickness tear of the supraspinatus tendon with joint effusion and possible Hill-Sachs defect. (Tr. 452). Diagnostic imaging in May 2011 and September 2012 show moderate degenerative changes with chronic mild anterior wedging of the L4 vertebral body and multilevel cervical spondylosis. (Tr. 486, 552).
Rhyder's primary care physician, James Greenfield, D.O., and Andrea Ulshafer, PAC, have been treating him for chronic pain with medication and referrals to physical therapy. (Tr. 465-471, 493-496, 562-621, 647-56). Dr. Greenfield provided a medical source statement on June 22, 2011. Accompanying his medical opinions, Dr. Greenfield reviewed a functional capacity evaluation performed by Bob Murphy, DPT, CSCS, CEAS, a physical therapist at St. Luke's Sports and Rehabilitation, at his request. (Tr. 524-537). Dr. Greenfield opined that Rhyder could occasionally lift and carry 10 pounds and could frequently lift and carry 5 pounds. Dr. Greenfield also opined that Rhyder could stand and walk for four hours in an eight hour day and sit for four hours in an eight hour day; however, Rhyder would need to move/walk away for one minute after sitting or standing for ten minutes. (Tr. 524). Dr. Greenfield further opined that Rhyder should avoid completely twisting, stooping, squatting, and climbing, avoid all exposure to hazards or heights, and avoid concentrated exposure to extreme cold and heat, wetness, humidity, and poor ventilation. (
Rhyder also had a consultative examination performed on May 20, 2010, by Shaukat H. Khan, M.D., at the request of the State Agency to assess his physical limitations. (Tr. 408-415). Dr. Khan noted Rhyder's right shoulder pain with mild-to-moderate limitation of range of motion. (Tr. 410). While Dr. Khan noted Rhyder's passive perception of pain was out of proportion to any physical evidence of any disability to right shoulder, he opined that Rhyder could occasionally lift and carry 20 pounds and frequently lift and carry 5 pounds, while also limited in pushing and pulling with the right upper extremity. Dr. Khan also opined that Rhyder could occasionally bend, kneel, stoop, crouch, crawl, balance, and climb. (Tr. 408-415).
ii. Medical Opinions
We first address Rhyder's contention that the ALJ failed to properly evaluate the opinions of his treating and examining sources. Rhyder argues that because the ALJ rejected the only two medical opinions in the record relating to Rhyder's physical impairments, the ALJ was forced to reach a RFC determination without the benefit of any medical opinion.
The ALJ must consider all of the relevant evidence and give a clear explanation to support his or her findings when determining the RFC.
The ALJ gave little weight to Dr. Greenfield's opinion, Rhyder's treating physician. (Tr. 30). In the ALJ's view, Dr. Greenfield's opinion was "not only inconsistent with his own clinical findings on physical examinations, but it [was] also inconsistent with his own comments and treatment recommendations." (
The ALJ also gave little weight to the opinion of Dr. Khan because his exertional limitations were not supported by his "own clinical findings or the other medical evidence of record." (Tr. 32). The ALJ also notes that Dr. Khan provided that Rhyder's "passive perception of pain was out of proportion to physical evidences." (
We find that the ALJ's decision to reject the opinions of Rhyder's treating physician and the consultative examiner as to Rhyder's physical capacities, left the ALJ without a single medical opinion to rely upon in reaching a RFC determination. "Rarely can a decision be made regarding a claimant's residual functional capacity without an assessment from a physician regarding the functional abilities of the claimant."
Dr. Greenfield and Dr. Khan both opined that Rhyder was limited in some way in his ability to lift/carry: Dr. Greenfield opined that Rhyder could occasionally lift and carry 10 pounds and frequently lift and carry 5 pounds; Dr. Khan opined that Rhyder could occasionally lift and carry 20 pounds and frequently lift and carry 5 pounds. (Tr. 408-415, 524). In rejecting these two opinions, there were no other medical opinions upon which the ALJ could base her decision that Rhyder could perform medium work as defined in CFR 404.1567(c).
It appears that the ALJ's conclusions as to lifting and carrying limitations was based, at least in part, on the disability analyst's opinion, and not on Rhyder's treating physician's opinion or consultative examiner's opinion. (Tr. 118-125). To the extent that the ALJ assigned any weight and/or relied upon the opinion of the single decision maker ("SDM"), Donna L Dubendorf, in assessing Rhyder's RFC, this is an error. SDM's are non-physician disability examiners who "may make the initial disability determination in most cases without requiring the signature of a medical consultant." Social Security Administration, Notices: 71 FR 45890-01, 2006 WL 2283653.
On May 19, 2010, Frank Cristaudo, the Chief Administrative Law Judge for the Social Security Administration, issued a memorandum citing POMS Instruction DI 24510.050C
As Judge Mariani noted in the
Consequently, the ALJ's decision to reject the opinions of Dr. Greenfield and Dr. Khan, and the ALJ's determination of Rhyder's RFC, cannot be said to be supported by substantial evidence.
Given the foregoing, we find that substantial evidence does not support the ALJ's assessment. Pursuant to 42 U.S.C. § 405(g), we will vacate the Commissioner of Social Security's decision and remand this case for further proceedings. We will decline to address Rhyder's other allegations of error, as remand may produce different results on these claims, making discussion of them moot.