Kongsberg,II v. Astrue

Filing 20

ORDER the Court VACATES the Commissioners denial of benefits and REMANDS this case for further proceedings, by Judge William J. Martinez on 3/3/014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-3245-WJM
ROBERT M. KONGSBERG, II,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER REMANDING CASE

This social security benefits appeal is before the Court under 42 U.S.C. § 405(g).
Plaintiff Robert M. Kongsberg (“Plaintiff”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”), denying his application for disability
insurance benefits. This decision affirmed a prior order by an administrative law judge
(“ALJ”), who ruled Plaintiff was not disabled within the meaning of the Social Security
Act (“Act”). This appeal followed.
For the reasons set forth below, the ALJ’s decision denying Plaintiff’s application
for Social Security disability benefits is VACATED and this matter is REMANDED for
further proceedings.
I. BACKGROUND
Plaintiff was born in 1975 and was 32 years old on the alleged disability onset
date. (Admin. Record (“R.”) (ECF No. 9) at 128, 123.) Plaintiff has a tenth grade
education and has prior work experience as a kitchen helper/dishwasher, bellman, and

housekeeper. (R. at 55-56.)
Plaintiff first filed an application for supplemental security income in May 2010
alleging that he was disabled due to major mental depression and anxiety, as well as
hepatitis C. (R. at 62, 123-26.) Plaintiff’s application was denied and, upon a request
for a hearing, his claims were heard by Administrative Law Judge (“ALJ”) Kim Soo
Nagle on July 27, 2011. (R. at 16.) In support of his application, Plaintiff submitted
medical evidence from, amongst others: Dr. Grazyna Tycner, his former treating
psychiatrist; Dr. Andrea Scramarella, his current treating psychiatrist; and Mr. Nicolas
Rodriguez, his counselor. (R. at 192-98, 261-67, 390-94.) In addition to their treatment
records, each of these providers completed a “Residual Functional Capacity Evaluation
(Mental)” form, which requires the provider to assess how the patient’s
mental/emotional capabilities affect his ability to do work-related activities in a regular
work setting. (R. at 253-55, 314-16, 387-89.)
On July 28, 2011, the ALJ issued a written decision in accordance with the
Commissioner’s five-step sequential evaluation process.1 (Id.) At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since May 3, 2010.
(R. at 18.) At step two, she found that Plaintiff’s severe impairments were depression
and polysubstance abuse, but that Plaintiff’s hepatitis C was not a severe impairment.

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The five-step process requires the ALJ to consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment;
(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to
her past relevant work; and, if not, (5) could perform other work in the national economy. See
20 C.F.R. § 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.
1988.) The claimant has the burden of proof through steps one to four; the Social Security
Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).

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(Id.) At step three, the ALJ found that Plaintiff’s depression and polysubstance abuse,
while severe impairments, did not meet or medically equal any of the impairments or
combination of impairments listed in the social security regulations. (R. at 19.) The
ALJ assessed Plaintiff’s residual functional capacity (“RFC”), finding that he could
perform a full range of work at all exertional levels, but that he had nonexertional
limitations which required avoidance of concentrated exposure to dangerous machinery
and protected heights. (R. at 20.) The ALJ also found that Plaintiff has “moderate
limitations in concentration and pace” which limited him to “simple, routine, and
repetitive tasks, but without specification as to the number of steps required to complete
such tasks, performed in an environment without strict production quotas, and with only
occasional interaction with coworkers, supervisors and the public.” (R. at 20-21.) At
step five, the ALJ found that Plaintiff was capable of performing his past relevant work
as a housekeeper, which is an unskilled position at a medium exertional level which
does not require the performance of work-related activities precluded by the RFC. (R.
at 27.)
Accordingly, the ALJ found that Plaintiff was not disabled within the meaning of
the Act and, thus, not entitled to benefits. (R. at 27.) The Appeals Council denied
Plaintiff’s request for review. (R. at 1.) Plaintiff then filed this action seeking review of
the Commissioner’s decision. (ECF No. 1.)
II. STANDARD OF REVIEW
The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct
legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
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Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id. “It requires more than a scintilla, but less than a
preponderance.” Lax, 489 F.3d at1084. Evidence is not substantial if it is overwhelmed
by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir.
2005). In reviewing the Commissioner’s decision, the Court may neither reweigh the
evidence nor substitute its judgment for that of the agency. Salazar v. Barnhart, 468
F.3d 615, 621 (10th Cir. 2006). “On the other hand, if the ALJ failed to apply the correct
legal test, there is a ground for reversal apart from a lack of substantial evidence.”
Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
III. ANALYSIS
On appeal, Plaintiff raises three issues: (1) the ALJ failed to properly consider
the opinions of Dr. Tycner, Dr. Scramarella, and Mr. Rodriguez; (2) the ALJ did not
state valid reasons for giving more weight to the State agency psychological consultant;
and (3) the ALJ failed to properly assess Mr. Rodriguez’s opinion. (ECF No. 15 at 1617.) All of these arguments relate to the manner in which the ALJ weighed the medical
opinions in this case.
“An ALJ must evaluate every medical opinion in the record.” Hamlin v. Barnhart,
365 F.3d 1208, 1215 (10th Cir. 2004). In determining what weight to give a medical
opinion, the ALJ “must . . . consider a series of specific factors” listed in 20 C.F.R.
§ 404.1527(d). See id. Those factors include:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed; (3) the degree to which the physician’s opinion is
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supported by relevant evidence; (4) consistency between the opinion
and the record as a whole; (5) whether or not the physician is a
specialist in the area upon which an opinion is rendered; and (6) other
factors brought to the ALJ’s attention which tend to support or
contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal quotations omitted).
The ALJ need not explicitly discuss each individual factor. See Oldham v. Astrue, 509
F.3d 1254, 1258 (10th Cir. 2007). Nevertheless, the ALJ must consider every factor in
determining the weight to assign a medical opinion, and “give good reasons in the
notice of determination or decision for the weight he ultimately assigns the opinion.”
Watkins, 350 F.3d at 1301(quotation marks and brackets omitted).
The analysis is slightly different for a treating physician. The opinion of a treating
physician is generally “entitled to great weight because it reflects expert judgment
based on continuing observation of a patient’s condition over a prolonged period of
time.” Williams v. Chater, 923 F. Supp. 1373, 1379 (D. Kan. 1996). The analysis of
how much weight to accord a treating source opinion is sequential:
An ALJ must first consider whether the opinion is well-supported by
medically acceptable clinical and laboratory diagnostic techniques.
If the answer to this question is “no,” then the inquiry at this stage is
complete. If the ALJ finds that the opinion is well-supported, he
must then confirm that the opinion is consistent with other
substantial evidence in the record. In other words, if the opinion is
deficient in either of these respects, then it is not entitled to
controlling weight.
Watkins, 350 F.3d at 1300 (citing SSR 99-2p, 1996 WL 374188 (July 2, 1996)). A
finding that a treating doctor’s opinion does not meet the test for controlling weight does
“not [mean] that the opinion should be rejected. Treating source medical opinions are
still entitled to deference and must be weighed using all of the factors provided in 20
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C.F.R. §§ 404.1527 and 416.927.” SSR 96–2p, 1996 WL 374188 (July 2, 1996). If the
ALJ chooses to disregard the opinion entirely, he must “give specific, legitimate
reasons” for doing so. Watkins, 350 F.3d at 1301.
Plaintiff argues that the ALJ erred in her treatment of the opinions on “Residual
Functional Capacity Evaluation” forms (the “RFCE Form”) completed by Drs. Tycner
and Scamarella, his current and former treating psychiatrists, and Mr. Rodriguez2, his
current therapist (collectively the “Treating Providers”). The ALJ gave “little weight” to
the RFCE Forms completed by Dr. Tycner and Mr. Rodriguez, and not “much weight” to
Dr. Scamarella’s RFCE Form.3 (ECF No. 15 at 11-17.)
The ALJ based the weight she assigned to these RFCE Forms on her belief that
these Treating Providers had an “apparent misunderstanding” of how the Social
Security Administration’s “mental residual functional capacity assessment form”
(“MRFCA Form”) worked, which resulted in their failure to translate the mental

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Because a licensed therapist is not an “acceptable medical source”, a treating
therapist’s opinions are not entitled to the same deference as a treating physician. See Komar
v. Apfel, 134 F.3d 382 (10th Cir. 1998) (therapist opinions are “entitled to less weight than that
accorded to the opinions of acceptable medical sources.”). However, the regulations recognize
that evidence from “other medical sources,” including social workers and therapists, may be
based on special knowledge of the individual and may provide insight into the severity of an
impairment and how it affects the claimant's ability to function. See SSR 06003p, 2006 WL
2329939 at **2, 3, 5 (Aug. 9, 2006). Thus, an ALJ must still consider Mr. Rodriguez’s opinions
when determining the severity of Plaintiff’s impairment, and the effect of his impairment on his
ability to work. See Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003).
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The ALJ did not consider all of Dr. Scamarella’s opinions equally. She gave “some
weight” to Dr. Scamarella’s opinion on the effect of Plaintiff’s substance abuse on his mental
impairment, and Dr. Scamarella’s opinion that his illness would not be as severe in the absence
of substance abuse. (R. at 26.) However, the ALJ stated that she was “unable to give much
weight to the remainder of Dr. Scamarella’s opinion . . . as it is modeled after the agency’s
MRFC form, but without a functional analysis.” Thus, the ALJ essentially treated the RFCE
Form completed by Dr. Scamarella the same way she treated the RFCE Forms completed by
Dr. Tycner and Mr. Rodriguez.

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limitations they diagnosed into a description of Plaintiff’s actual vocational abilities. (R.
at 25.) The ALJ characterized the RFCE Forms as similar to Sections I and II of the
MRFCA, in that both require the practitioner to complete a chart assessing the
presence and degree of a claimant’s functional limitations. (Id.) The ALJ noted that the
Administration’s MFRCA Form also contains a third section, in which the practitioner
must state his or her “ultimate functional capacity assessment”, which is effectively an
RFC assessment. (Id.) Because the RFCE Forms completed by Plaintiff’s Treating
Providers did not contain a narrative RFC assessment section, the ALJ viewed these
Forms as “lacking and incomplete” and gave them little weight. (Id.)
The Court finds that this was not a legitimate basis for discounting the medical
opinions proffered by Plaintiff’s Treating Providers on the RFCE Forms. While the
RFCE Forms may have included questions that are similar to those contained on the
MFRCA Forms, they are not equivalent, and the RFCE Forms are not invalid simply
because they do not include a section asking the provider to make an RFC
assessment.
Instead, the Court finds that the RFCE Forms included medical opinions that the
ALJ was required to consider in accordance with the standard for evaluating treating
providers. The RFCE Form directed the provider to “determine this individual’s ability to
do work-related activities on a day-to-day basis in a regular work setting”, and to assess
“how the individual’s mental/emotional capabilities are affected by any impairments you
have diagnosed.” (R. 314 (emphasis in original).) It listed nineteen categories for
which the provider was to circle one of the following: none, slight, moderate, marked,
extreme, or unknown. (Id. at 314-16.) Each of these terms had a specific meaning, as
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set forth on the RFCE Form. For example, “moderate” meant that the provider believed
Plaintiff had “[m]oderate limitation in this area, but still able to function”, while “marked”
meant that Plaintiff had “[s]evere limitations in this area. The ability to function in this
area is severely limited but not precluded.” (Id.) Thus, by circling “marked” on the
RFCE Form, Plaintiff’s Treating Providers were denoting his or her belief that Plaintiff’s
ability to function in a particular area was severely limited. These are medical opinions
about Plaintiff’s functional limitations, and should have been considered by the ALJ
when fashioning her RFC. See 20 C.F.R. § 404.1545(a)(1) (noting that the RFC will be
based on “all the relevant evidence in the record” that relates to “physician and mental
limitations that affect what [the claimant] can do in a work setting.”).
The ALJ discredits Plaintiff’s medical evidence because it does not include an
RFC assessment despite the fact that, were an RFC assessment included, she would
not be required to defer to such assessment. The regulations make clear that it is the
Commissioner’s responsibility to assess a claimant’s RFC, and the ALJ failed to cite
any legal basis for placing this onus on Plaintiff’s Treating Providers. See 20 C.F.R.
§§ 404.1527(e)(2), 404.1546(c), 416.927(e), 416.946(c); Howard v. Barnhart, 379 F.3d
945, 949 (10th Cir. 2004). While an ALJ must assess a claimant’s RFC based on all
the evidence in the record, the RFC finding does not have to directly correspond to a
specific medical source opinion. See 20 C.F.R. § 404.1545(a)(1); Chapo v. Astrue, 682
F.3d 1285, 1288-89 (10th Cir. 2012). Thus, the ALJ should not have faulted Plaintiff’s
Treating Providers for failing to perform an RFC when ultimately it was her responsibility
to make the RFC finding based on the medical opinions.

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As a general rule, an ALJ “must consider all relevant medical evidence, cannot
substitute his expertise for that of a qualified physician, and, absent countervailing
clinical evidence or a valid legal basis for doing so, cannot simply disregard the medical
conclusions of a qualified physician.” Wetherill v. Director, O.W.C.P., 812 F.2d 376,
382 (7th Cir. 1987). It may well be that, on remand, the ALJ discounts the opinions
contained in the RFCE Forms for a valid reason, such as inconsistency with other
evidence in the record or the fact that check box forms are often entitled to little weight.
See 20 C.F.R. § 404.1527(d)(2) (listing reasons an ALJ may not give controlling weight
to a treating physician’s opinions); Mounts v. Astrue, 479 F. App’x 860, 866 (10th Cir.
2012). However, the ALJ is still required to evaluate the Treating Providers’ RFCE
Forms as medical opinions and consider the factors set forth in 20 C.F.R.
§ 404.1527(d). The Court finds that the failure to do so constitutes reversible error, and
that remand to the Commissioner for further proceedings is appropriate.
IV. CONCLUSION
For the reasons set forth above, the Court VACATES the Commissioner’s denial
of benefits and REMANDS this case for further proceedings.
Dated this 3rd day of March, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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