Montoya v. Colvin
Filing
24
Opinion and ORDER. The Commissioner of Social Security's decision is REVERSEDand REMANDED. The Clerk shall enter a Judgment in accordance herewith. By Chief Judge Marcia S. Krieger on 12/16/2013. (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-00502-MSK
YVONNE MONTOYA,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration,
Defendant.
OPINION and ORDER
THIS MATTER comes before the Court on Plaintiff Yvonne Montoya’s appeal of the
Commissioner of Social Security’s final decision denying her application for Disability
Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-33, and
Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 138183c. Having considered the pleadings and the record, the Court
FINDS and CONCLUDES
I.
Jurisdiction
Ms. Montoya filed a claim for disability insurance benefits pursuant to Titles II and XVI,
asserting that her disability began on March 20, 2009. After her claim was initially denied, Ms.
Montoya filed a written request for a hearing before an Administrative Law Judge (“ALJ”). This
request was granted and a hearing was held on August 31, 2011.
The ALJ issued a decision which found that Ms. Montoya met the insured status
requirements through December 31, 2012. Applying the five-step disability evaluation process,
the ALJ also found that: (1) Ms. Montoya had not engaged in substantial gainful activity since
March 20, 2009; (2) she had the following severe impairments: degenerative disk disease, left
ankle pain, chronic left knee pain with arthritis, left hip pain with foot drop and major depressive
disorder secondary to a general medical condition; (3) she did not have an impairment or
combination of impairments that met or medically equaled any of the impairments listed in 20
C.F.R. Part 404, Subpt. P, Appx. 1 (“the Listings”); and (4) Ms. Montoya had the residual
functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §§ 404.1567 and
416.9671 with the following additional limitations: unskilled work with an SVP of one or two;
lifting and carrying less than ten pounds frequently and ten pounds occasionally; standing or
walking a total of four hours in an eight hour workday with the use of a cane; sitting (with
normal breaks) a total of more than six hours in an eight hour workday; pushing and pulling
motions with the right upper extremity and bilateral lower extremities within the aforementioned
weight restrictions; frequent pushing and pulling with the left upper extremity (non-dominant);
occasionally stooping and climbing ramps or stairs but not ladders, ropes or scaffolds; limited
use of right upper extremity (dominant) while walking if using a cane; frequent overhead
reaching and front/lateral reaching with the left upper extremity. Given the above RFC, the
Decision found at Step 4 that Ms. Montoya could not perform her past work. However, at Step 5
the ALJ found that she was not disabled because she was capable of performing other jobs that
existed in the national economy, including telephone quotation clerk, semiconductor bonder and
order clerk.
1
All references to the Code of Federal Regulations (C.F.R.) are to the 2012 edition. Hereafter,
the Court will only cite the pertinent Title II regulations governing disability insurance benefits,
found at 20 C.F.R. Part 404. The corresponding regulations governing supplemental security
income under Title XVI, which are substantively the same, are found at 20 C.F.R. Part 416.
2
The Appeals Council denied Ms. Montoya’s request for review of the Decision.
Consequently, the Decision is the Commissioner’s final decision for purposes of judicial review.
Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Ms. Montoya’s appeal was timely
brought, and this Court exercises jurisdiction to review the Commissioner of Social Security’s
final decision pursuant to 42 U.S.C. § 405(g).
II.
Material Facts
The material facts are as follows.
Mr. Montoya was born in 1966 and has a 9th grade education. Her past jobs included
cook, fast food worker, deli clerk and stock clerk. She suffers from knee, hip, lower back and
arm pain, numbness in her arms and legs, as well as depression.
A. Medical Treatment
Ms. Montoya had infrequent medical problems until she was involved in a car accident in
June 2008. A day after this accident she reported shoulder pain, lower back pain, and leg
numbness. A contemporaneous MRI of her lumbar spine showed mild bulging disk and subtle
increased disk protrusion but no definite signs of nerve root compression at the L4-L5 level, and
a slight posterior disk protrusion at the L5-S1 level. In October 2008, Ms. Montoya received
injections in her feet for heel spurs and plantar fasciitis.
In March 2009, she rolled her left ankle and fell on her hands and knees while at work.
An emergency department report mentioned Ms. Montoya’s complaints of right leg numbness
and right side pain that had worsened over the past several days. The report also mentioned Ms.
Montoya’s history of lower back pain, but explicitly stated “[n]o new injuries” and contained a
diagnosis of chronic back pain. Percocet and a visit to her primary care physician were
recommended.
3
Ms. Montoya saw Dr. Magnuson on March 31, 2009. She complained of numbness and
weakness in her legs and left arm. Even when taking Percocet, she was unable to stand or walk
more than ten minutes at a time. An examination showed that Ms. Montoya had normal muscle
strength (with some generalized weakness), normal lumbar range of motion, negative straight leg
tests and negative Romberg tests, but a limping gait with knee swelling, clicking and tenderness.
She was also unable to walk on her heels, toes or walk heel to toe.
In April 2009, Ms. Montoya intentionally cut her own arm with a utility knife, but the
emergency department report that documented this incident stated that Ms. Montoya did not
want to harm or kill herself. That same month, x-rays of Ms. Montoya’s lower back and knees
were performed. The lower back x-rays showed a loss of intervertebral disk space height at L4L5 with vacuum phenomenon. The x-rays of Ms. Montoya’s knees were normal.
Dr. Magnuson again examined Ms. Montoya and noted that she had knee pain and left
arm pain but a normal gait and normal muscle strength, reflexes and motor function. Ms.
Montoya was prescribed Voltaren, Naproxen, Neurontin and Flexeril. Dr. Brown examined Ms.
Montoya as well. Dr. Brown found that Ms. Montoya had positive Tinel’s sign in her left hand
to her radial tunnel, a left forearm myofascial strain, and decreased range of motion at her left
elbow and wrist, but she had normal gait, muscle strength, fine motor and cerebellar function,
and reflexes. CT images were negative for Ulnar tunnel syndrome. Dr. Brown characterized her
problems as cumulative trauma from repetitive motion.
During May 2009, Ms. Montoya underwent numerous medical examinations and
procedures. MRI’s of her knees showed near full thickness articular cartilage defect at the apex
of the patella with early subchondral cyst formation in her left knee and cartilage thinning,
evidence of a meniscus tear, edema and effusion in her right knee. Results from a physical exam
4
performed by Dr. Phelps included normal alignment, no tenderness, good strength, normal range
of motion, normal stability tests, and negative Lachman’s, pivot shift, anterior and posterior
drawer, quadriceps inhibition, apprehension and McMurray’s tests. Ms. Montoya walked with a
normal gait and had normal reflexes. Dr. Phelps administered injections to both knees. A lower
back MRI was unremarkable except for desiccation at the L4-L5 level.
In May 2009, Ms. Montoya was also examined and treated by Kevin Percy, a physician’s
assistant. Ms. Montoya described increasing pain (at a level of 8 out of 10) with numbness and
weakness in her lower extremities. She complained of pain localized in her right upper buttock,
numbness in both her legs and weakness in her left foot. She also reported numbness in her left
arm with neck and shoulder pain. She told Mr. Percy that she was limited to walking short
distances with the use of a cane and standing no more than ten minutes. However, she did not
having any difficulty sitting. Her medications at the time were Naproxen, Gabapentin,
Cyclobenzaprine and Oxycodone. On examination, Mr. Percy found that: 1) she had normal
strength and reflexes in her left arm but decreased sensation in her fingertips; 2) her thoracic and
lumbar spine examination was normal, except for pain at the extreme of back extension; 3) she
walked with a left foot drag but was able to raise up on her toes and go back on her heels; 4) she
was unable to single leg raise on the left but could perform this movement on the right; 5) her
motor strength on the left was normal except for 4/5 eversion strength and 4/5 strength in the
extensor halluces longus muscle and tibialis anterior muscle; and 6) her left calf and foot had
some numbness, but she had normal reflexes, negative straight leg raise tests and no pain with
internal rotation of the hips or palpation of the greater trochanters bilaterally. X-rays showed
mild left convexity through the lumbar spine, no scoliosis, loss of disk space height at L4-L5 and
L5-S1, sclerosis and pain at L4, left lower pelvic obliquity and sclerotic changes in the
5
acetabulum (right greater than left) but good maintenance of joint space. Based on these
examination findings, Mr. Percy concluded that Ms. Montoya had degenerative disk disease of
the lumbar spine, back pain, numbness and pain with left side weakness in her lower extremities,
a limp and hip degeneration.
Ms. Montoya returned to Mr. Percy in June 2009. Upon examination, Mr. Percy noted:
1) left antalgic gait and left lower pelvic tilt; 2) full range of motion in the knees but some mild
pain at extremes; 3) internal and external rotation of the hips caused stress against the knee joint
and groin pain bilaterally; 4) strength testing was 5/5 in both lower extremities; and 6) the foot
drag was no longer present. Based on this exam and a review of the May 2009 lower back MRI,
Mr. Percy concluded that there was little change between the 2008 and 2009 MRIs, and he
recommended physical therapy.
During October and November 2009, Ms. Montoya saw Dr. Schwender three times as
part of her application for worker’s compensation. On October 6, Dr. Schwender recorded in
treatment notes that Ms Montoya had experienced contusions on both knees and elbows, a
lumbar strain and a left ankle strain in the slip and fall in March 2009, and that she was unable to
work from October 6 to October 20, the date of the next appointment. Dr. Schwender prescribed
Ibuprofen, Norflex and Tromadol and recommended pool therapy at all appointments. After the
third appointment, Dr. Schwender wrote a more comprehensive examination report. According
to his notes, Ms. Montoya’s referrals to specialists had been denied by her insurance company.
During the examination she was mildly uncomfortable and moved around with minimal to mild
difficulty, but she was alert, cooperative and her mood and affect were within normal limits.
Although her impairment was undetermined, Dr. Schwender concluded that Ms. Montoya was
6
not at maximum medical improvement and was unable to work until her next visit, which was set
for four weeks later.
According to the record, Ms. Montoya next received medical treatment almost two years
later, in October 2011. She went to the emergency room complaining of numbness in her feet,
weakness, intermittent back pain and left hand and forearm pain. She also stated that, although it
was difficult, she was still able to walk. A physical examination showed that she had normal
upper and lower body strength, good sensation except in her feet, no spinal tenderness except in
her lumbar spine, normal movement in her extremities, normal grip but some left forearm
tenderness. Blood tests and x-rays of her left hand and pelvis were normal, but x-rays of her
lumbar spine showed degenerative disk disease.
Later in October, she returned to the same emergency room with complaints similar to
those asserted in her prior visit. A physical examination did not reveal any neurological deficits
but did show she had good bilateral strength. Percocet was prescribed and a walker was
recommended. No further diagnostic testing was recommended.
B. Dr. Borja’s Evaluation and Opinion
The only opinion from a treating or examining physician addressing Ms. Montoya’s
functional impairments was from Dr. Borja. She examined Ms. Montoya in July 2010 and made
the following findings: 1) Ms. Montoya had limited dorsolumbar and hip flexion with pain; 2)
she had positive straight leg and McMurray’s tests; 3) she experienced left knee and ankle pain
with limited flexion; 4) she experienced left lower extremity joint line tenderness and popping;
5) she experienced limited flexion with pain in both shoulders; 6) she had 4/5 strength in the left
upper and lower extremities, but 5/5 strength in the right upper and lower extremities; and 7) she
had a notable foot drop, spasms, atrophy and giveaway weakness. Dr. Borja diagnosed Ms.
7
Montoya with left ankle pain, chronic left knee pain with arthritis from previous injury and left
hip pain with foot drop and associated radicular symptoms (left worse than right). Dr. Borja
concluded that Ms. Montoya was able to lift less than ten pounds, stand or walk up to four hours
in an eight hour workday with frequent breaks, and sit up to eight hours in an eight hour workday
with frequent breaks. She was limited to bending, squatting, crouching, stooping, reaching,
pushing, pulling, grasping, fingering and handling frequently. She required a cane to walk and
her “workplace environmental limitations are heights, stairs and ladders.”
C. Dr. LoGalbo’s Opinion
Dr. LoGalbo, a state medical consultant, reviewed Ms. Montoya’s records and completed
a RFC form. According to Dr. LoGalbo, Ms. Montoya was able to: 1) frequently lift and carry
ten pounds; 2) stand or walk up to four hours in an eight hour workday; 3) sit more than six
hours in an eight hour workday; 4) frequently crawl, occasionally climb ramps and stairs,
occasionally stoop, and never climb ladders, ropes or scaffolds. However, because she had to
use a cane to walk, she was unable to use her right (dominant) hand when she walked, but could
frequently use her left hand. When sitting she had unlimited use of her right hand and frequent
use of her left hand.
D. Dr. Hoffman’s Opinion
Dr. Hoffman administered a psychological evaluation in August 2011 and diagnosed Ms.
Montoya with major depressive disorder (recurrent, moderate to severe and partially exacerbated
by a general medical condition) and rule-out borderline personality disorder.
Dr. Hoffman wrote that Ms. Montoya reported symptoms of depression including
anhedonia, low energy, sadness and crying, emotional numbness, isolation, poor self-care,
increased irritability, thoughts of suicide and self-harm, and feelings of worthlessness,
8
helplessness and hopelessness. During a mental status examination, Ms. Montoya was dramatic
(often crying), emotionally labile and avoided answering questions directly. She had poor
abstract thinking as well as concentration and short-term memory problems. However, her
thought and speech organization was tangential but clear and well organized with direction and
she had intact judgment and reasoning.
According to Dr. Hoffman, the rule-out borderline personality disorder was not a
complete diagnosis. However, Ms. Montoya did meet some of the symptoms including selfinjury behavior, unstable self-image and unstable interpersonal relationships. Dr. Hoffman
recommended further evaluation and testing to confirm Ms. Montoya’s borderline personality
disorder and cognitive difficulties:
[Ms. Montoya] did show some cognitive difficulties also, which are likely to be
secondary to the depression but could also be secondary to the general medical
condition. The nature of these difficulties are not clear at the current time and
further cognitive and memory testing would be needed to clarify any of this
information. However, the combination of these difficulties does suggest that Ms.
Montoya may have at least moderate difficulty interacting appropriately with
customers, peers and supervisors. She likely would have mild difficulty learning
and carrying out simple work-related tasks, based on her performance on the
mental status, and likely have somewhat more severe difficulties with more
complex work-related tasks. However further testing would be needed to clarify
this.
Ultimately, Dr. Hoffman concluded that Ms. Montoya had the following work limitations: mild
difficulties in her ability to make judgments on simple work-related decision and understanding,
remembering and carrying out simple instructions; moderate difficulties in her ability to make
judgments on complex work-related decisions and understanding, remembering and carrying out
complex instructions; and moderate difficulties interacting with the public, supervisors and
coworkers, as well as responding appropriately to usual work situations and changes in a routine
work setting.
9
The ALJ specifically considered Dr. Hoffman’s opinions in the Decision. However, the
ALJ divided Dr. Hoffman’s opinion into two parts and assigned a different weight to each
portion. The ALJ gave “some weight” to Dr. Hoffman’s opinion that Ms. Montoya had
“moderate restrictions in the ability to understand and remember complex instructions, the ability
to carry out complex instructions and the ability to make judgments on complex work-related
decisions.” The ALJ based this finding on the lack of supporting medical evidence, including
the lack of a prior diagnosis for depression in the record and no evidence of treatment for a
mental impairment. The ALJ gave “less weight” to Dr. Hoffman’s opinion that Ms. Montoya
had “moderate restrictions in the ability to interact appropriately with the public, supervisors and
co-workers and the ability to respond appropriately to usual work situations and to changes in a
routine work setting.” This finding was based on Dr. Hoffman’s limited diagnosis of rule-out
borderline personality disorder, Ms. Montoya’s dramatic behavior and avoidance of direct
answers to questions during Dr. Hoffman’s examination, as well as her testimony that she had no
problems interacting with family, friends, neighbors and others. In particular, the ALJ wrote that
Ms. Montoya sees her adult children every two weeks and her grandchild once every one or two
weeks.
E. Vocational Expert Testimony
During the hearing, the vocational expert and Ms. Montoya’s attorney engaged in the
following dialogue:
(Ms. Montoya’s attorney) Q: Are these – are all three jobs identified requiring
lifting ten pounds or more?
(Vocational Expert) A: No more than ten pounds, Mr. Newell. They’re sedentary.
Q: And, right, so that – does that mean you have to be able to lift ten pounds.
A: No.
Q: What is the – is it the sitting feature, then, of these jobs that allow for the
sedentary classification?
A: A combination.
10
Q: A combination of lifting and sitting?
A: Yeah. Yeah, there are light-duty jobs and, as you know, that don’t require any
lifting, just for an example.
Q: Well, these jobs are going to require some lifting?
A: Yeah, some.
Q: What are –
A: Two of them are clerical, so.
Q: What is – what’s the break allowance for working? How often is somebody
allowed to take a break?
A: Ten prior to the meal, the meal, and ten minutes after the meal.
Q: All right. So if somebody had to take frequent breaks, would that preclude
work?
A: How, how frequent?
Q: Frequent.
A: Well, I don’t know what that means. That’s more than three?
Q: Well, you’re a vocational expert. Would frequent mean more than ten-minute
breaks once a half-a-shift?
A: It could; it could mean. You’re asking the question, though.
Q: If it means a third to two-thirds of the time, it’s going to preclude work?
A: Oh, yeah, if you had to take five/six breaks a day, that’s not – you’re not going
to be very productive.
III.
Issues Presented
Ms. Montoya raises two challenges to the Commissioner’s Decision: (1) the ALJ failed to
properly determine Ms. Montoya’s RFC; and (2) the Commissioner did not meet her burden at
Step 5. In her challenge to the ALJ’s RFC finding Ms. Montoya contests the ALJ’s assessment
of the medical opinions of Dr. Borja, Dr. LoGalbo, Dr. Hoffman and Dr. Schwender.
IV.
Standard of Review
Judicial review of the Commissioner of Social Security’s determination that a claimant is
not disabled within the meaning of the Social Security Act is limited to determining whether the
Commissioner applied the correct legal standard and whether the decision is supported by
substantial evidence. Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003); 42 U.S.C.
§ 405(g). “Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.
11
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). On appeal, a reviewing court’s job is
neither to “reweigh the evidence nor substitute our judgment for that of the agency.” Branum v.
Barnhart, 385 f.3d 1268, 1270, 105 Fed. Appx. 990 (10th Cir 2004) (quoting Casias v. Sec’y of
Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)).
The ALJ is required to consider the medical opinions in the record, along with the rest of
the relevant evidence. 20 C.F.R. § 404.1527(b). When evaluating medical opinions, the medical
opinion of an examining physician or psychologist is generally given more weight than the
medical opinion of a source who has not examined the claimant. The ALJ should evaluate an
examining physician’s medical opinion according to the factors outlined in § 404.1527. Those
applicable to an examining physician include:
1) The degree to which the physician’s opinion is supported by relevant evidence;
2) Consistency between the opinion and the record as a whole;
3) Whether or not the physician is a specialist in the area upon which an opinion
is rendered; and
4) Other factors brought to the ALJ’s attention which tend to support or contradict
the opinion.
§ 404.1527.
Having considered these factors, an ALJ must give good reasons in the decision for the
weight assigned to a medical opinion. § 404.1527; Oldham v. Astrue, 509 F.3d 1254, 1258 (10th
Cir. 2007); Luttrell v. Astrue, 453 Fed.Appx. 786, 794 (10th Cir. 2011) (unpublished). “The
[ALJ] must explain… the weight given to the opinions of a State agency medical or
psychological consultant or other program physician, psychologist, or other medical specialist, as
the [ALJ] must do for any opinions from treating sources, nontreating sources, and other
nonexamining sources who do not work for us.” § 404.1527(e)(2)(ii); see also Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (the ALJ’s findings must be sufficiently specific
to make clear to any subsequent reviewers the weight given to a medical opinion and the reasons
12
for that weight). The ALJ is not required to explicitly discuss all the factors outlined in
§ 404.1527. Oldham, 509 F.3d at 1258; SSR 06-03p. However, the ALJ must discuss not just
evidence that supports the decision, but also “uncontroverted evidence he chooses not to rely
upon, as well as significantly probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007,
1010 (10th Cir. 1996) (citation omitted). “The ALJ is not entitled to pick and choose from a
medical opinion, using only those parts that are favorable to a finding of nondisability.”
Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004) (citation omitted).
The ALJ cannot substitute a personal medical judgment for that of a physician or
psychologist. Winfrey v. Chater, 92 F.3d 1017, 1022 (10th Cir. 1996) (citing Kemp v. Bowen,
816 F.2d 1469, 1476 (10th Cir. 1987) (ALJ cannot interpose his own medical expertise over that
of a physician)).
“Harmless error analysis ‘may be appropriate to supply a missing dispositive finding …
where, based on material the ALJ did at least consider (just not properly), we [the court] could
confidently say that no reasonable administrative fact finder, following the correct analysis,
could have resolved the factual matter in any other way.’” Id. (quoting Allen v. Barnhart, 357
F.3d 1140, 1145 (10th Cir. 2004)).
V.
Discussion
A. Dr. Borja’s Opinion
In the Decision, the ALJ specifically considered Dr. Borja’s opinion, doing so in
conjunction with the opinion Dr. LoGalbo, a non-examining consulting physician. After
summarizing both, the ALJ wrote “these opinions are generally consistent with each other and
with the evidence in the record as a whole.” Ms. Montoya disputes this finding. She argues that
the limitations outlined in Dr. Borja’s opinion are not consistent with Dr. LoGalbo’s opinion or
13
the RFC finding set forth in the Decision. According to Ms. Montoya, the ALJ’s failure to
explain this inconsistency is error.
The Court begins its analysis by noting that the ALJ did not assign any specific weight to
Dr. Borja’s opinion. A cursory glance through the Decision reveals that the ALJ cited favorably
to this opinion, and both Ms. Montoya and the Commissioner seem to accept that the ALJ gave
Dr. Borja’s opinion substantial weight.
Dr. Borja described Ms. Montoya’s limitations as lifting less than ten pounds, never
climbing stairs, and taking frequent breaks from sitting, standing and/or walking. However, Dr.
Borja’s opinion is not adopted verbatim in the ALJ’s RFC finding. That finding limited Ms.
Montoya to lifting and carrying less than ten pounds frequently and ten pounds occasionally,
occasionally climbing stairs, sitting with normal breaks for eight hours in an eight hour workday,
and did not include a requirement for any breaks when limiting her to standing or walking for a
total of four hours in an eight hour workday. There are two significant differences between Dr.
Borja’s assessment and the ALJ’s RFC finding – never climbing stairs as compared to occasional
stair climbing, and sitting and standing with frequent breaks as compared with sitting for eight
hours with normal breaks.
The ALJ was obligated to explain why Dr. Borja’s opinion was not adopted. Doyal v.
Barnhart, 331 F.3d 758, 764 (10th Cir. 2003) (ALJ required to consider every medical opinion
and to provide specific, legitimate reasons for rejecting it); § 404.927(c) (regardless of source,
the Commissioner will evaluate every medical opinion received). The failure to do so is error.
See Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001). Here, the error is not
harmless. The frequency of breaks from sitting affects the type of sedentary work Ms. Montoya
could perform. According to the vocational expert, a normal work routine included three breaks
14
in an eight hour day. In contrast, the need to take five breaks in a day could preclude Ms.
Montoya from performing the jobs the ALJ ultimately found Ms. Montoya could perform at Step
5. As such, reversal and remand are required.
B. Dr. Hoffman’s Opinion
The Court also agrees, in part, with Ms. Montoya’s challenge to the weight given Dr.
Hoffman’s opinion. In the Decision, the ALJ bifurcated Dr. Hoffman’s opinion, giving “some
weight” to his opinion that Ms. Montoya had moderate difficulties in cognitive functioning, but
giving “lesser weight” his opinion that Ms. Montoya had moderate restrictions in interpersonal
interactions. Ms. Montoya argues that the ALJ improperly replaced Dr. Hoffman’s medical
opinion with a personal judgment.
When weighing a medical opinion of an examining psychologist, the ALJ must give good
reasons for the weight given that opinion. § 404.1527. The Court has some concern with regard
to the ALJ’s bifurcation of Dr. Hoffman’s opinion into two separate opinions for which the ALJ
gave differing credence. The Decision does not explain on what medical basis the ALJ
distinguished between portions of Dr. Hoffman’s opinion. Thus, it would appear that the ALJ
relied upon a lay distinction between components of Dr. Hoffman’s opinion. This would be
inappropriate.
However, assuming that the opinion properly could be separated into two opinions, the
Decision does not offer sufficient explanation for limited weight given to each by the ALJ. The
ALJ assigned Dr. Hoffman’s conclusions about Ms. Montoya’s cognitive functioning only
“some weight”. According to the Decision, this was because there was no evidence of treatment
for mental impairments and no evidence that Ms. Montoya’s symptoms lasted at least twelve
months from the date of Dr. Hoffman’s examination. A lack of supporting medical evidence can
15
be a valid reason for giving limited weight to a medical opinion. § 404.1527(c)(3). However, it
is unclear how the lack of treatment pertains to Dr. Hoffman’s assessment of cognitive
limitations. Unless Ms. Montoya’s cognitive limitations were treatable, the absence of treatment
records would be irrelevant. And if the cognitive limitations were not treatable, they would be
presumed to last longer than a year. Thus, critical to the ALJ’s assessment is whether Ms.
Montoya’s cognitive limitations were treatable. Neither the Decision, nor the record addresses
this. As a consequence, the ALJ failed to articulate a sufficient reason for discounting this
opinion.
The second of Dr. Hoffman’s opinions concerned limitations in Ms. Montoya’s ability to
engage in interpersonal interaction. The ALJ gave three reasons for assigning reduced weight to
this opinion - Dr. Hoffman’s limited diagnosis of rule-out borderline personality disorder, Ms.
Montoya’s dramatic behavior and avoidance of direct answers to questions during Dr. Hoffman’s
examination, and her statements that she had no problems interacting with family, friends,
neighbors and others. None of these reasons are sufficient to reject or reduce the weight given to
Dr. Hoffman’s opinion.
The first two reasons are drawn from information contained in Dr. Hoffman’s medical
evaluation. Essentially, the ALJ made an independent assessment of Dr. Hoffman’s
observations, then rejected the conclusions that Dr. Hoffman drew from his evaluation and
assessment. This is a clear and impermissible substitution of the ALJ’s personal, lay opinions
for that of a medical professional. See Winfrey v. Chater, 92 F.3d 1017, 1021-22 (10th Cir.
1996) (ALJ cannot substitute personal medical judgment for physician’s). The same is true for
ALJ’s final justification for discounting Dr. Hoffman’s opinion. The ALJ rejected Dr.
Hoffman’s medical opinion in favor of evidence from lay witnesses about Ms. Montoya’s ability
16
to interact with her family. Although the ALJ may consider evidence from lay sources, such
cannot be relied upon in order to contradict a medical opinion.
Again, the error is not harmless. The ALJ did not include any of Dr. Hoffman’s opinion
in the Ms. Montoya’s RFC. Presumably this is because the ALJ gave the opinion(s) little weight.
Had the ALJ included Dr. Hoffman’s assessment of Ms. Montoya’s mental restrictions in the
RFC, the Vocational Expert’s opinion as to what work Ms. Montoya could perform may well
have changed.
For the forgoing reasons, the Commissioner of Social Security’s decision is REVERSED
and REMANDED. The Clerk shall enter a Judgment in accordance herewith.
DATED this 16th day of December, 2013.
BY THE COURT:
Marcia S. Krieger
United States District Judge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?