MacKay v. Berryhill

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge James Moody. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         I. Introduction:

         Rebecca MacKay (“MacKay”) applied for social security disability benefits with an alleged disability onset date of February 10, 2014. (R. at 93). The administrative law judge (“ALJ”) held a hearing and denied her applications. (R. at 35). The Appeals Council denied review. (R. at 1). MacKay has requested judicial review.

         For the reasons stated below, the Court recommends reversing and remanding the Commissioner's decision.

         II. Discussion:

         The ALJ found that MacKay had the severe impairments of degenerative disk disease, status-post partial laminectomy, and valvular heart disease. (R. at 29). The ALJ then found that MacKay's impairments left her with the residual functional capacity (“RFC”) to perform the full range of light work. (R. at 15). The ALJ heard testimony from a vocational expert (“VE”) and found that MacKay could return to her past relevant work as an artist, desk clerk, cashier clerk, and night auditor. (R. at 34-35). Thus, the ALJ held that MacKay was not disabled. (R. at 35).

         MacKay argues that new evidence warrants reversal and that the ALJ failed to properly weigh the opinion of her treating physician regarding the nature and extent of her physical limitations. Because the Court agrees that the ALJ failed to properly weigh that evidence, it need not reach MacKay's other ground for reversal.

         The Court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole and whether it is based on legal error. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see also 42 U.S.C. § 405(g).

         MacKay argues that the ALJ failed to give appropriate weight to the opinion of her treating physician, Richard Peek, M.D., which would have placed her at a reduced range of sedentary work. (R. at 753-56). The ALJ gave little weight to the opinion because: (1) he found it was based, in part, on MacKay's subjective reports; (2) MacKay testified that Dr. Peek formed his opinion and completed the form stating those limitations during her first appointment with him; (3) Dr. Peek's notes suggested that 90% of her conditions could be treated conservatively; (4) Dr. Peek advised her to exercise every day; and (5) MacKay testified she could lift 25 pounds when Dr. Peek opined she could only occasionally lift 10 pounds. (R. at 34).

         “Whether the ALJ gives great or small weight to the opinions of treating physicians, the ALJ must give good reasons for giving the opinions that weight.” Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008). Opinions from non-examining sources are not generally considered substantial evidence to support an ALJ's decision. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000).

         While the ALJ gave reasons for giving Dr. Peek's opinion little weight, the record contradicts those conclusions by the ALJ, in important ways, and establishes errors in his assessment of Dr. Peek's opinion.

         First, one of the reasons given by the ALJ for discrediting Dr. Peek's opinion was testimony from MacKay that Dr. Peek filled out the assessment form stating her physical limitation during her first appointment with him. This simply is not borne out by the record. MacKay's testimony on the subject is as follows:

Q But he's indicated on here that you can lift and carry less than ten pounds, and you can stand or walk less than two hours in an eight-hour workday. Do you remember meeting with him when this form was filled out?

A That must have been in February, because that's some, that was something he said the ...