United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
ERWIN UNITED STATES MAGISTRATE JUDGE
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 disability insurance benefits under the
Social Security Act. The Commissioner has answered and filed
a transcript of the administrative record (hereinafter TR.
___). The parties have consented to jurisdiction over this
matter by a United States magistrate judge pursuant to 28
U.S.C. § 636(c).
parties have briefed their positions, and the matter is now
at issue. Based on the Court's review of the record and
the issues presented, the Court REVERSES AND
REMANDS the Commissioner's decision.
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 on January 13, 2017. (TR.
18-33). The Appeals Council denied Plaintiff's request
for review,  and Mr. Ricketts filed an appeal in
federal court. (TR. 762-765). The parties consented to
jurisdiction with this Court, which reversed and remanded the
case. (TR. 766-777). The remand was based on the ALJ's
failure to properly evaluate the opinion of Plaintiff's
treating physician, Dr. James Odor, who treated Plaintiff for
back pain between February 2008 and March 2014. (TR.
particular import was Dr. Odor's May 13, 2013 opinion
which stated that Plaintiff had limitations involving
“no repetitive … twisting.” (TR. 529-30).
Although at that time, Dr. Odor stated that Plaintiff had
achieved “maximum medical improvement, ” on
January 13, 2014, Dr. Odor stated that he would send a final
report regarding Plaintiff's “permanent
restrictions” following a “functional capacities
evaluation” (FCE). (TR. 521). The FCE was performed on
February 20, 2014 and stated that Mr. Ricketts could
“occasionally” climb, but that Plaintiff refused
to be tested on abilities involving axial rotation, crouching
and stooping. (TR. 518). In the report and final letter dated
March 4, 2014, Dr. Odor stated:
Mr. Ricketts' positional/agility tests indicate the
position of kneeling, crouching/squatting, stooping, axial
rotation and overhead reaching were unable to be evaluated
today secondary to Mr. Ricketts voluntarily ending his
FCE…. This report indicated the presence of low
physical effort [and] would indicate the result of this
evaluation for [Plaintiff] IS NOT a reliable
representation of his current safe functional abilities.
(TR. 518-519) (emphasis in original).
first unfavorable decision, the ALJ summarized a good deal of
Dr. Odor's treatment notes and specifically cited Dr.
Odor's May 13, 2013 opinion involving “permanent
restrictions including no repetitive …
twisting.” (TR. 26). However: (1) the ALJ did not state
whether she believed the opinion or had accorded it any
weight, (2) the ALJ did not comment on Dr. Odor's FCE
report, and (3) the RFC did not discuss twisting. (TR.
24-26). As a result, the Court remanded based on the
ALJ's failure to properly evaluate Dr. Odor's opinion
regarding Plaintiff's ability to twist. In doing so, the
Court noted that “the record was ambiguous on the issue
of twisting” in light of: (1) Dr. Odor's May 13,
2013 opinion which allowed for no repetitive twisting, (2) an
opinion from a treating physician's assistant on June 7,
2016, that Plaintiff had been suffering severe back pain
which was “ach[ing], deep, discomforting, stabbing, and
throbbing” when he did any “twisting movement,
” and (3) Dr. Odor's FCE which post-dated the May
13, 2013 opinion, but was inconclusive on the issue of
twisting. (TR. 775-776).
the Court stated:
In sum, the ALJ erred in failing to explain the weight [s]he
provided to any of Dr. Odor's opinions. On remand, the
ALJ should re-evaluate Dr. Odor's opinion, and if
necessary, seek a consultative examination for clarification
of any issues regarding Plaintiff's work-related
limitations. The ALJ shall explain h[er] reasons for the
weight accorded to Dr. Odor's opinions so that any
subsequent reviewer is able to ascertain the ALJ's
a second administrative hearing, the same ALJ issued another
unfavorable decision, and Plaintiff filed an appeal in this
Court, seeking a review of that decision. See TR.
694-710; ECF No. 1.
THE SECOND ...