Opinion
CIV-21-881-HE
08-15-2022
DENNIS CRAWFORD, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE
Mr. Dennis Crawford brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's application for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR.). This matter has been referred to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). The parties have briefed their positions, and the matter is now at issue. It is recommended that the Commissioner's decision be REVERSED AND REMANDED.
I. PROCEDURAL BACKGROUND
Initially and on reconsideration, the Social Security Administration denied Plaintiff's application for benefits. Following an administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 16-26). The Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner.
II. THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since December 10, 2019, the application date. (TR. 19). At step two, the ALJ determined Mr. Crawford suffered from the following severe impairments: degenerative disc disease of the lumbar and cervical spinal regions, status post December 2019 and January 2020 radiofrequency rhizotomies; degenerative joint disease right knee, status post 2015 total replacement; degenerative joint disease left ankle, status post remote surgery; and obesity. (TR. 19). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 21).
At step four, the ALJ concluded that Mr. Crawford retained the residual functional capacity (RFC) to:
[P]erform sedentary work as defined in 20 CFR 416.967(a) except that involving no more than no climbing ladders, ropes, scaffolds; occasional climbing ladders, ropes, or scaffolds; occasional climbing ramps and stairs; and occasional balancing, stooping, kneeling, crouching, or crawling.(TR. 21).
With this RFC, the ALJ concluded that Mr. Crawford could perform his past relevant work as customer services technical manager. (TR. 25). Thus, at step four, the ALJ concluded that Mr. Crawford was not disabled.
III. ISSUE PRESENTED
On appeal, Plaintiff alleges error in the ALJ's evaluation of subjective allegations. (ECF No. 17:3-9).
IV. STANDARD OF REVIEW
This Court reviews the Commissioner's final decision “to determin[e] whether the Commissioner applied the correct legal standards and whether the agency's factual findings are supported by substantial evidence.” Noreja v. Commissioner, SSA, 952 F.3d. 1172, 1177 (10th Cir. 2020) (citation omitted). Under the “substantial evidence” standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). “Substantial evidence . . . is more than a mere scintilla . . . and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. at 1154 (internal citations and quotation marks omitted).
While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
V. ERROR IN THE ALJ'S CONSIDERATION OF PLAINTIFF'S SUBJECTIVE
ALLEGATIONS
The Court should agree with Plaintiff and conclude that the ALJ erred in evaluating Mr. Crawford's subjective allegations.
A. Plaintiff's Subjective Allegations
At the administrative hearing, Mr. Crawford testified that he treated his back pain with gel injections, radiofrequency, epidural steroid injections, and facet blocks. (TR. 35). According to Mr. Crawford, he received these treatments approximately four to six times per year and each treatment rendered him bedridden for four to six days. (TR. 36-37).
B. ALJ's Duty to Evaluate Plaintiff's Subjective Allegations
Social Security Ruling 16-3p provides a two-step framework for the ALJ to evaluate a claimant's subjective allegations. SSR 16-3p, 2016 WL 1119029, at *2 (Mar. 16, 2016). First, the ALJ must make a threshold determination regarding “whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain.” Id., at *2. Second, the ALJ will evaluate the intensity and persistence of the claimant's symptoms to determine the extent to which they limit an individual's ability to perform work-related activities. Id. At step two, the ALJ will examine the objective medical evidence, the claimant's statements regarding his symptoms, information from medical sources, and “any other relevant evidence” in the record. Id., at *4. SSR 16-3p also directs the ALJ to consider the following seven factors in evaluating the intensity, persistence, and limiting effects of the claimant's symptoms:
• Daily activities;
• The location, duration, frequency, and intensity of pain or other symptoms;
• Factors that precipitate and aggravate the symptoms;
• The type, dosage, effectiveness, and side effects of any medication;
• Treatment, other than medication, an individual receives or has received for relief of pain or other symptoms;
• Any measures other than treatment a claimant has used to relieve pain or other symptoms; and
• Any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms.Id., at *7. Finally, in evaluating a claimant's subjective statements, the ALJ must "provide specific reasons for the weight given to the [claimant's] symptoms, [which are] consistent with and supported by the evidence, and [ ] clearly articulated” for purposes of any subsequent review. Id., at *9.
C. The ALJ Erred in Evaluating Plaintiff's Subjective Allegations
Mr. Crawford alleges that in evaluating his subjective allegations, the ALJ erred in failing to consider the side effects of his back injections-namely that when receiving said injections, Plaintiff would be bedridden for approximately four to six days thereafter. (ECF No. 17:3-9). The Court should agree with Mr. Crawford.
In formulating the RFC, the ALJ stated that she had considered Mr. Crawford's subjective allegations. (TR. 22). The ALJ then: (1) set forth the two-step framework under SSR 16-3p, (2) summarized the Plaintiff's hearing testimony and medical evidence, and stated:
[T]he combined severity and intensity of the claimant's medically determinable impairments could reasonably be expected to cause some of his alleged symptoms and his statements concerning the intensity, persistence and limiting effects of these symptoms are supported to extent of the above listed residual functional capacity. For the reasons set forth above, the undersigned finds that the State Agency medical examiners and consultants findings are . . . partially supported by medical and other evidence of record and partially persuasive.(TR. 19). In analyzing Plaintiff's subjective allegations, the ALJ noted that Plaintiff had received spinal blocks, a lumbar rhizotomy, and “other conservative treatments.” (TR. 23). In line with Plaintiff's testimony, the ALJ noted that the treatments afforded Mr. Crawford some pain relief “but no permanent resolution.” (TR. 23). But nowhere in the evaluation does the ALJ acknowledge or otherwise discuss the side effects of the injections-that Plaintiff is bedridden for four to six days at a time, approximately four to six times a year. See TR. 22-25. Under similar circumstances, the Tenth Circuit Court of Appeals found error in the omission of such evidence.
In BorgsmiHer v. Astrue, 499 Fed.Appx. 812 (10th Cir. 2012), the plaintiff suffered from flare-ups of pain which resulted in her being bedbound and interfered with her ability to work. BorgsmiHer v. Astrue, 499 Fed.Appx. 812-814. In discounting the plaintiff's subjective allegations, the ALJ relied on a decreasing frequency of the pain flare-ups, coupled with the plaintiff's ability to do chores on her “good days.” Id. at 817-818. The Tenth Circuit found these rationales inadequate because the plaintiff had specifically testified: “[t]here are days that I can get up and I can ... feel better and I can do some things. There are other times where I'm either sitting in my recliner or I'm in bed and there are other times I do not get out of bed for weeks at a time.” Id. at 818. In light of this testimony, the Court found that “although the ALJ tied her credibility finding to some specific evidence in the record, we conclude none of the evidence relied upon, neither the decreasing frequency of flares nor [the plaintiff's] alleged ability to do some daily activities, provide[d] substantial evidence that Ms. Borgsmiller's complaints of pain were incredible.” Id. at 819 (internal citation omitted).
Borgsmler v. Astrue is persuasive. Like in Borgsmler, Mr. Crawford specifically testified that the back injections rendered him bedridden for four to six days following each treatment. The ALJ omitted this portion of Plaintiff's testimony and instead focused on:
• Findings from consultative examiners which limited plaintiff to no more than standing and walking four hours during an eight hour workday;
• Significant, but temporary pain relief from the spinal blocks;
• Findings of intact strength, muscle tone, range of motion, motor functions, sensation, pulsation, and other physical functions;
• A lack of surgical intervention;
• An absence of pain medication; and
• A lack of assistive device being necessary, such as a scooter, cane, crutches, or wheelchair.(TR. 22-25).
But the problems with these rationales are: (1) the findings from the consultative examiners focus only on Plaintiff's ability to walk and stand when he is presumably able to do so (discounting the days he is bedridden); (2) the discussion of pain relief fails to contemplate the side effects from treatments, a factor which the ALJ is required to consider in evaluating Plaintiff's subjective allegations; and (3) the findings of intact strength, muscle tone, range of motion, motor functions, sensation, pulsation, and other physical functions represent only a snapshot in the larger picture of Plaintiff's back pain and completely ignores the injection side effects. As noted in Borsgmler, "the pertinent issue in determining whether [plaintiff] is disabled within the meaning of the Act is whether she can work on a regular and continuing basis. Accordingly, there must be substantial evidence that [plaintiff] can engage in substantial gainful activity on a regular and continuing basis despite her flares of severe pain[.]”). Borgsmiler, 499 Fed.Appx. at 819, n. 7.
See supra.
Defendant attempts to defend the ALJ's evaluation of Plaintiff's subjective allegations by pointing to the fact that the ALJ cited portions of the record which documented Plaintiff's treatment for his back pain. (ECF No. 19:8). Ms. Kijakazi is correct, see TR. 23-24, but in doing so, the ALJ only mentioned the treatments, while omitting any discussion of Plaintiff's testimony regarding the side effects of these treatments. Because the ALJ did not acknowledge the side effects from Plaintiff's injections which rendered him bedridden, remand is appropriate. See Borgsmiler, 499 Fed.Appx. at 819 ("[Although the ALJ tied her credibility finding to some specific evidence in the record, we conclude none of the evidence relied upon ... provides substantial evidence that [Plaintiff's] complaints of pain were incredible.”).
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge recommends that the decision of the Commissioner be REVERSED AND REMANDED.
The parties are advised of their right to file specific written objections to this Report and Recommendation. See 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Any such objections should be filed with the Clerk of the District Court by July 6, 2022. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.