Szymanski v. Commissioner, Social Security Administration
Filing
19
MEMORANDUM OPINION AND ORDER by Magistrate Judge Nina Y. Wang on 12/13/2018. For the reasons stated herein, the court hereby REVERSES the Commissioner's final decision and REMANDS this matter for further proceedings that are consistent with this Memorandum Opinion and Order. (bwilk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-00605-NYW
CYNTHIA SZYMANSKI,
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This civil action arises under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401–
33 for review of the Commissioner of Social Security Administration’s (“Commissioner” or
“Defendant”) final decision denying Plaintiff Cynthia Szymanksi’s (“Plaintiff” or “Ms.
Szymanski”) application for Disability Insurance Benefits (“DIB”). Pursuant to the Parties’
consent [#11], this civil action was referred to this Magistrate Judge for a decision on the merits.
See [#17]; 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; D.C.COLO.LCivR 72.2. Upon review of the
Parties’ briefing, the entire case file, the Administrative Record, and the applicable case law, this
court respectfully REVERSES the Commissioner’s decision and REMANDS for further
proceedings.
BACKGROUND
I.
Medical History
Ms. Szymanksi, born January 15, 1957, alleges she became disabled on January 2, 2015,
due to bipolar disorder; she was 57 years-old on the date of alleged onset of her claimed disability.
See [#9-3 at 90, 1 92; #9-6 at 181, 185]. In 1988, Plaintiff suffered her first major depressive
episode, lasting approximately three months, which left Ms. Szymanski feeling depressed most
days with a lack of feeling pleasure, energy, or desire to leave her house. See [#9-7 at 278, 30203, 305]. Plaintiff suffered a second major depressive episode in 1993. See [id. at 278]. Doctors
treated both episodes with Prozac, but Plaintiff experienced hypomania and mood destabilization
not soon after starting Prozac. See [id.]. Dr. Ken Weiner then diagnosed Plaintiff with bipolar
disorder in 1994; Dr. Weiner again prescribed Prozac, which had similar negative effects, but later
prescribed Lithium that helped stabilize Plaintiff’s mood with some negative side effects. See [id.
at 278, 304, 306]. Plaintiff constantly dealt with “serious ups and downs” while hypomanic,
including severe fluctuations in impulse control, anxiety, psychotic thoughts, suicidal ideations,
depression, insomnia, and energy. See [id. at 278-79, 303-04].
On May 30, 1996, Plaintiff presented to Dr. Steven L. Dubovsky for a psychiatric
evaluation. See [#9-7 at 278]. Dr. Dubovsky noted that Ms. Szymanski’s depression “has been
accompanied by hypersomnia, slowed thinking, problems with memory and concentration,
dissociative symptoms, loss of interest in food[,] and suicidal thoughts.” [Id. at 278-79]. Dr.
Dubovsky continued that Plaintiff “probably had chronically elevated levels of mood, energy and
activity,” but no significant decrease in need for sleep while taking antidepressants; that Plaintiff
was “irritable and impatient when her mood [was] elevated but not when her mood is depressed”;
that Plaintiff had “chronically racing thoughts during periods of elevated mood but her thinking
[was] always slowed when she fe[lt] depressed”; and that Plaintiff sometimes heard her named
1
When citing to the Administrative Record, the court utilizes the docket number assigned by the
CM/ECF system and the page number associated with the Administrative Record, found in the
bottom right-hand corner of the page. For all other documents the court cites to the document and
page number generated by the CM/ECF system.
2
called and saw movement out of the corner of her eye. See [id. at 279]. Upon examination, Dr.
Dubovsky reported that Plaintiff’s appearance was “somewhat subdued but [she was] clearly
capable of looking much better than she feels”, that Plaintiff’s speech was “very well organized
and perhaps very slight pressured”, that Plaintiff’s affect seemed “slight depressed”, and that
Plaintiff’s sensorium “appear[ed] intact.” [Id.]. Dr. Dubovsky opined that Ms. Szymanski was
mildly depressed, and explained that Ms. Szymanski had “been so accustomed over the years to
an abnormal mood that she [did] not notice minor mood swings” and could appear “well when this
is not the case.” [Id. at 280].
Sometime in 1999, Plaintiff checked herself into the hospital for a mental health hold,
where she saw Dr. Ben Green. See [#9-2 at 78; #9-7 at 304]. Plaintiff saw Dr. Green quarterly
between 1999 and 2006, and Dr. Green prescribed Tegretol, Zoloft, and Klonopin, which “worked
ok” and were “tolerable.” [Id.]. Plaintiff eventually weaned herself from these medications and,
in 2000, became pregnant with her daughter—a time she “felt the best mentally.” [Id. at 304-05].
Plaintiff managed her bipolar well between 2006 and 2015. See [id. at 282, 306].
Plaintiff began treating with Dr. Morel Laronn on July 14, 2014. See [#9-7 at 272].
Plaintiff saw Dr. Laronn twice, once on July 14, 2014 and again on May 15, 2015. See [id. at 27073]. Dr. Laronn noted Plaintiff’s treatment history for bipolar disorder, among other ailments,
assessed mild depression and generalized anxiety disorder upon psychiatric evaluation, and
prescribed Lexapro for Ms. Szymanski’s anxiety. See [id.].
On October 26, 2015, Plaintiff presented to Dr. Moles and reported that “several
challenging things happen[ed] to her in the last year”, including losing her house and her husband’s
treatment for amyloidosis, and that she had “lost interest in things she used to do for fun” and was
struggling with anxiety and depression. [#9-7 at 274]. A physical exam revealed that Plaintiff
3
was alert and oriented, could move all extremities, and had a normal affect. [Id. at 275]. Dr. Moles
completed a Physical Residual Functional Capacity Questionnaire for Plaintiff, in which Dr. Moles
indicated that while Plaintiff had no physical impairments, her psychological impairments
rendered her incapable of performing low stress jobs. [Id. at 283-86].
Plaintiff completed a Function Report on November 8, 2015. She stated that her mental
impairment limited her ability to work because she “won’t leave [the] house,” she has a “lack of
concentration, focus, confidence or worth,” and struggles with “extreme fatigue, tearfulness &
fear, no motivation, [and] memory problems.” [#9-6 at 199]. She continued that she can work for
only short periods before her symptoms “reappear,” and that she has severe issues with focus and
concentration. See [id. at 199, 203-06]. As for her daily activities, Plaintiff reported that she stays
indoors for most of the day but picks up and drops off her daughter, drives daily, that she cares for
her husband and her daughter, that she does some cooking, that her husband does most of the
housework, that she shops and handles finances, and that she has no issues with personal hygiene.
See [id. at 200-03]. Plaintiff’s husband provided a third-party Function Report that largely mirrors
Ms. Szymanski’s allegations. See [id. at 210-17].
On November 9, 2015, state agency psychological consultant Mark Suyeishi, Psy.D.
reviewed Plaintiff’s medical records. Dr. Suyeishi found a severe mental impairment of anxiety
disorders, but noted that there was insufficient evidence to evaluate this impairment because
Plaintiff had not responded with requested additional documentation. See [#9-3 at 92-93].
In 2016, Plaintiff began treating with psychiatrist Dr. Randall Buzan because she wanted
“to have a more steady mood.” [#9-7 at 301 (stating Plaintiff complained of not knowing “if it [is]
going to be a good day or a bad day.”)]. On April 7, 2016, Dr. Buzan noted that Plaintiff was
“delightful, funning [sic], fidgety and bounced leg most of the time,” sarcastic with a great sense
4
of humor, and that Plaintiff reported that she felt good with her depression a 3/10. See [id. at 309].
Dr. Buzan reported that Plaintiff was “very bright and delightful” with bipolar I disorder,
depression, and ADHD-type temperament, but was euthymic. See [id.]. 2 But treatment notes from
April 18, 2016 indicate that Plaintiff presented crying and looking exhausted and sad, and that
Plaintiff reported feeling “really depressed at this point”, but that she was “not suicidal” just “quite
bored with life—no plan,” and that she denied hypomania and mania. See [id. at 300, 309].
Treatment notes from May 4, 2016 indicate that Ms. Szymanski presented on time and looked
more alert and focused with no tics or agitation, and that she reported that she felt good but
scattered, that she had no suicidal ideation, that her mood was up and down lately but better for
the most part, that she felt overcaffeinated, and that she “fe[lt] clearly improved on the meds so
far.” [Id. at 300, 309-10].
Dr. Buzan’s June 14, 2016 Psychiatric Evaluation noted Plaintiff’s symptoms as sadness,
anxiety, lethargy, hopelessness, lack of motivation, not leaving the house, paranoia, isolation,
inability to concentrate or work, and agitation. [#9-7 at 305]. A review of Plaintiff’s psychiatric
symptoms indicated that Plaintiff was positive for major depression, bipolar I disorder, panic
disorder with recent panic attacks and anxiety, agoraphobia, general anxiety disorder, and social
phobia. See [id. at 307]. Upon examination, Dr. Buzan noted that Plaintiff was euthymic,
thoughtful, well-kempt, logical, and coherent. [Id. at 309].
Dr. Buzan’s treatment notes from September 19, 2016 indicate that Ms. Szymanski
presented on time, was pleasant, articulate, oriented, logical, coherent, euthymic, maintained good
eye contact, and had no suicidal ideation. See [#9-7 at 316]. Dr. Buzan reported that Plaintiff was
2
All of Dr. Buzan’s treatment notes contain this same assessment.
5
“doing very well” psychiatrically and “doing very great” psychiatrically despite some neurological
symptoms. See [id. at 317].
On September 30, 2016, Ms. Szymanski presented to Dr. Ralph Round, per a referral from
Dr. Buzan, to follow-up on Plaintiff’s neurological symptoms. See [id. at 288-99]. Dr. Round’s
physical exam revealed that Plaintiff was alert and oriented with intact memory, a good amount of
spontaneous speech, a broad fund of knowledge, and normal sensation and reflexes; Dr. Round
suspected benign fasciculation syndrome. See [id. at 289-90].
Plaintiff returned to Dr. Buzan on January 18, 2017, and reported that she thought she “was
ok”, that her neurological testing came back normal, that she believed Ritalin was the cause of her
neurological issues, and that she felt irritable and sad and like she was cycling a bit when not on
Ritalin. See [#9-7 at 322-24]. Dr. Buzan indicated that Plaintiff was contracting for safety and
denied current suicidal ideation (with some in the past), and Dr. Buzan requested that Plaintiff
email him twice per week. See [id. at 324].
Dr. Buzan’s February 22, 2017 treatment notes reveal that Plaintiff presented sobbing, sad,
depressed; tossed a pill bottle at Dr. Buzan while exclaiming “this is not working anymore!”; had
passive suicidal ideation; and was too depressed to contact Dr. Buzan for medication suggestions.
See [id. at 331-32]. Dr. Buzan implored Plaintiff to “stay in closer touch” for safety reasons. [Id.
at 332].
Ms. Szymanski had a follow-up appointment with Dr. Buzan on March 14, 2017. [#9-7 at
341]. Dr. Buzan noted that Plaintiff emailed often and called because she was “feeling so
depressed”, and that Ms. Szymanksi stated that her mood was “ok, better than it was”, that her
irritability was better, that she felt it was “too much effort to go out [or] engage”, that she was not
exercising, and that she really had to work to “have any kind of affect[.]” [Id. at 347]. In addition
6
to adjusting Ms. Szymanski’s medications, Dr. Buzan indicated that Plaintiff struggled with
“persisting severe depression” that improved on lithium and Zoloft, and directed Plaintiff to text,
email, or call often to discuss how she was feeling. See [id. at 348-49].
On May 4, 2017, Dr. Buzan provided two Medical Source Statements. Dr. Buzan assessed
Ms. Szymanski’s mental impairments as having a significant impact on her functionality. See [#97 at 355-67].
II.
Procedural History
On August 14, 2015, Plaintiff protectively filed an application for DIB. [#9-3 at 149]. The
Social Security Administration denied Plaintiff’s application administratively on November 9,
2015. See [id. at 89]. Ms. Szymanski requested a hearing before an Administrative Law Judge
(“ALJ”), see [#9-4 at 104-118], which ALJ Thomas Inman (“the ALJ”) held on May 11, 2017, see
[#9-2 at 58]. The ALJ received testimony from the Plaintiff and Vocational Expert Martin Rauer
(the “VE”) at the hearing. See [id. at 36-91].
Plaintiff testified that she obtained a Bachelor of Arts degrees in English Literature and
developmental cognitive neuroscience and a Master’s Degree in theology; she was also the Chief
Executive Officer of a successful free-range egg business. See [#9-2 at 62]. She then testified that
her depression caused a “decrease of cognitive function[ing] and memory”, a “lack of resilience”,
irritability, an inability to get out of bed or the house for days, suicidal ideation about 75% of the
time, and a sense that “[i]f anything goes wrong, everything’s a disaster.” [#9-2 at 67-68]. She
explained that her depressive episodes can range from two weeks to 18 months in duration. See
[id. at 70]. Plaintiff also testified to manic or hypomanic episodes, which manifested in manic
episodes of shopping, going on trips, reckless behavior, reckless sexual behavior, hyperirritability,
and grandiose ideas. See [id. at 69-70, 76].
7
Plaintiff explained that she struggled with depression and bipolar disorder while running
her small business; she relied on her employees to help keep the business running during times of
depression but could accomplish much more during her manic episodes. See [#9-2 at 68-69]. Ms.
Szymanksi testified that in the beginning she was able to conceal her illness from outsiders,
because it was important to her to be a respected business owner. See [id. at 73-74]. But as time
went on, Plaintiff experienced more depressive and manic episodes, and given the stress of running
her own company, Plaintiff sold the company for a profit—while this alleviated some of the stress,
she continued to struggle with “depression and despair and . . . not leaving the house.” [Id. at 6970]. Ms. Szymanksi stated that for years she tried to work with her primary care physician to
manage her bipolar because she “didn’t have a lot of respect for psychiatrists.” [Id. at 77].
After selling her company, Plaintiff worked as a consultant for a company called Vital
Farms for three months, between February 8 and May 8, 2015. See [#9-2 at 65-66]. Despite Vital
Farms wanting Plaintiff to continue her consulting role, Plaintiff could not do so because she “was
very overwhelmed by the job”, was “cry[ing] every time” she went to work, was “extremely
anxious” about people judging her work, “was losing concentration”, and was “very depressed.”
See [id. at 66, 67]. Ms. Szymanski also testified that she would often leave work for long stretches
during the day to collect herself, but that the job soon become too much for her. See [id. at 7475]. Now, although Plaintiff desires to return to work, she spends most of her days at home
sleeping, isolated in her bedroom because even “an interruption is kind of overwhelming.” [Id. at
71]. She also explained that she cries often. See [id. at 73].
Plaintiff continued that she takes Tegretol, Lithium, Klonopin, and Zoloft for her mental
ailments. [#9-2 at 72]. Ms. Szymanski testified to medication side effects, including trembling
hands, lethargy, weight gain, and decreased cognitive functioning. See [id.]. She explained that
8
she cannot concentrate well and has difficulty concentrating enough to finish a book even though
she was once an avid reader. [Id.]. In addition, Plaintiff stated that her husband takes care of their
house and that she cooks three to four times a week, mostly meal kits that provide the ingredients
and instructions. See [id. at 73].
The VE also testified at the hearing. The VE first summarized Plaintiff’s past relevant
work to include a food product consultant, specific vocational preparation (“SVP”) 3 level 6, light
exertion job; a small business owner, SVP level 7, light exertion job; and an egg producing farm
supervisor, SVP level 7, medium exertion job. See [#9-2 at 79]. The VE then considered the work
an individual could perform with no exertional limitations but whose non-exertional limitations
included simple, routine work at a SVP level 1 or 2, no assembly line work, no contact with the
public, and only occasional contact with co-workers and supervisors. See [id.]. The VE testified
that this individual could not perform any of Ms. Szymanski’s past relevant work. [Id. at 80]. But
the VE explained that such an individual could perform the unskilled, light exertion jobs of small
products assembler, electronics worker, and machine operator—each a SVP level 2. See [id.]. The
VE continued that such an individual could also perform the unskilled, medium exertion jobs of
cleaner II, SVP level 1; floor wax technician, SVP level 2; and hand packager, SVP level 2. See
[id. at 80-81]. Upon further examination, however, the VE corrected his answers to eliminate the
small product assembler, electronics worker, machine operator, and hand packager because these
3
SVP refers to the “time required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in a specific job-worker
situation.’” Vigil v. Colvin, 805 F.3d 1199, 1201 n.2 (10th Cir. 2015) (citing Dictionary of
Occupational Titles, App. C, Sec. II (4th ed., revised 1991)); 1991 WL 688702 (G.P.O.). The
higher the SVP level, the longer time is needed to acquire the skills necessary to perform the job.
Jeffrey S. Wolfe and Lisa B. Proszek, SOCIAL SECURITY DISABILITY AND THE LEGAL
PROFESSION 163 (Fig. 10-8) (2003).
9
were assembly line jobs, and instead testified that the remaining jobs would be a cleaner II, a floor
wax technician, and houseworker (SVP level 2, medium exertion). See [id. at 84-85].
The VE also testified that no unskilled jobs existed for a worker that would be off task as
much as 20% of the day or who would miss more than one day per month. See [#9-2 at 81]. Upon
follow-up from Plaintiff’s counsel, the VE stated that even being off task 10% of the day would
eliminate all unskilled jobs identified, though some jobs would tolerate being off task 8% of the
day but not if the employee expressed rage towards co-workers or managers. See [id. at 82-83,
85-86]. The VE concluded that his testimony was not inconsistent with the Dictionary of
Occupational Titles (“DOT”) and that he relied on his over 30-years of experience to fill areas not
covered by the DOT. See [id. at 87].
On August 23, 2017, the ALJ issued a decision finding Ms. Szymanski not disabled under
the Act. [#9-2 at 21]. Plaintiff requested Appeals Council review of the ALJ’s decision, which
the Appeals Council denied, rendering the ALJ’s decision the final decision of the Commissioner
[id. at 1-6]. Plaintiff sought judicial review of the Commissioner’s final decision in the United
States District Court for the District of Colorado on March 13, 2018, invoking this court’s
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 1383(c)(3).
STANDARD OF REVIEW
In reviewing the Commissioner’s final decision, the court is limited to determining whether
the decision adheres to applicable legal standards and is supported by substantial evidence in the
record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted); cf.
Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (“[I]f the ALJ failed to apply the
correct legal test, there is a ground for reversal apart from a lack of substantial evidence.” (internal
citation omitted)). The court may not reverse an ALJ simply because she may have reached a
10
different result based on the record; the question instead is whether there is substantial evidence
showing that the ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536
(10th Cir. 1990). “Substantial evidence is more than a mere scintilla and is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Flaherty v. Astrue, 515
F.3d 1067, 1070 (10th Cir. 2007) (internal citation omitted). But “[e]vidence is not substantial if
it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (internal citation omitted). The court may not
“reweigh the evidence or retry the case,” but must “meticulously examine the record as a whole,
including anything that may undercut or detract from the ALJ’s findings in order to determine if
the substantiality test has been met.” Flaherty, 515 F.3d at 1070 (internal citation omitted).
ANALYSIS
I.
The ALJ’s Decision
An individual is eligible for DIB benefits under the Act if she is insured, has not attained
retirement age, has filed an application for DIB, and is under a disability as defined in the Act. 42
U.S.C. § 423(a)(1). An individual is determined to be under a disability only if her “physical or
mental impairment or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. § 423(d)(2)(A).
The disabling impairment must last, or be expected to last, for at least 12 consecutive months. See
Barnhart v. Walton, 535 U.S. 212, 214–15 (2002). Additionally, the claimant must prove she was
disabled prior to her date last insured. Flaherty, 515 F.3d at 1069.
The Commissioner has developed a five-step evaluation process for determining whether
a claimant is disabled under the Act. 20 C.F.R. § 404.1520(a)(4)(v). See also Williams v. Bowen,
844 F.2d 748, 750–52 (10th Cir. 1988) (describing the five steps in detail). “If a determination
11
can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent
step is not necessary.” Williams, 844 F.2d at 750. Step one determines whether the claimant is
engaged in substantial gainful activity; if so, disability benefits are denied. Id. Step two considers
“whether the claimant has a medically severe impairment or combination of impairments,” as
governed by the Secretary’s severity regulations. Id.; see also 20 C.F.R. § 404.1520(e). If the
claimant is unable to show that his impairments would have more than a minimal effect on his
ability to do basic work activities, he is not eligible for disability benefits. If, however, the claimant
presents medical evidence and makes the de minimis showing of medical severity, the decision
maker proceeds to step three. Williams, 844 F.2d at 750. Step three “determines whether the
impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges
are so severe as to preclude substantial gainful activity,” pursuant to 20 C.F.R. § 404.1520(d). Id.
At step four of the evaluation process, the ALJ must determine a claimant’s Residual Functional
Capacity (“RFC”), which defines the maximum amount of work the claimant is still “functionally
capable of doing on a regular and continuing basis, despite his impairments: the claimant’s
maximum sustained work capability.”
Williams, 844 F.2d at 751; see also id. at 751–52
(explaining the decisionmaker must consider both the claimant’s exertional and nonexertional
limitations).
The ALJ compares the RFC to the claimant’s past relevant work to determine
whether the claimant can resume such work. See Barnes v. Colvin, 614 F. App’x 940, 943 (10th
Cir. 2015) (citation omitted). “The claimant bears the burden of proof through step four of the
analysis.” Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).
At step five the burden shifts to the Commissioner to show that a claimant can perform
work that exists in the national economy, taking into account the claimant’s RFC, age, education,
12
and work experience. Neilson, 992 F.2d at 1120. The Commissioner can meet her burden by the
testimony of a vocational expert. Tackett v. Apfel, 180 F.3d 1094, 1098–99, 1101 (9th Cir. 1999).
The ALJ found that Ms. Szymanski met the insured status requirements for DIB through
March 31, 2018, and had not engaged in substantial gainful activity since January 2, 2015. [#9-2
at 12]. At step two the ALJ determined Ms. Szymanski had the following severe impairment:
bipolar disorder. [Id.]. At step three the ALJ determined that Plaintiff did not have an impairment
or combination of impairments that meets or medically equals the severity of one of the listed
impairments in Title 20, Chapter III, Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d)).
[Id. at 13]. At step four the ALJ determined Plaintiff had the RFC to perform work at all exertional
levels subject to several non-exertional limitations [id. at 15], and concluded that Ms. Szymanski
could not perform her prior relevant work [id. at 19]. At step five the ALJ concluded that there
existed additional jobs in the national economy that Ms. Szymanski could perform. [Id. at 20].
Ms. Szymanski now appeals the ALJ’s decision to this court. In doing so, she argues that
the ALJ erred by: (1) not assigning controlling weight to two treating source opinions and by
ignoring a third, (2) not considering and evaluating the effect Plaintiff’s age may have on her
ability to maintain gainful employment, (3) not applying the correct legal standard when evaluating
Ms. Szymanski’s subjective complaints of impairment, and (4) not applying the correct legal
standard at step five. See generally [#13; #16]. Because I agree with Ms. Szymanski’s first
argument, I focus on it exclusively. Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003)
(“We will not reach the remaining issues raised by appellant because they may be affected by the
ALJ’s treatment of this case on remand.”).
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II.
The RFC: Weighing the Medical Source Opinions
In assessing a claimant’s RFC, the ALJ must consider the combined effect of all medically
determinable impairments, including the severe and non-severe. See Wells v. Colvin, 727 F.3d
1061, 1065 (10th Cir. 2013); 20 C.F.R. § 404.1529(a); SSR 96-9p. The ALJ must also address
medical source opinions. See Vigil v. Colvin, 805 F.3d 1199, 1201-02 (10th Cir. 2015). A
claimant’s RFC is the most work the claimant can perform, not the least. 20 C.F.R. § 404.1545;
SSR 83-10. The ALJ’s RFC assessment must be consistent with the whole record and supported
by substantial evidence. See generally Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004);
SSR 96-8p. If it is, the court will not reverse the ALJ’s decision even if it could have reached a
different conclusion. Ellison, 929 F.2d at 536; see also Flaherty, 515 F.3d at 1070 (explaining
that the reviewing court may not “reweigh or retry the case.”).
The ALJ determined that Plaintiff retained the RFC to
perform a full range of work at all exertional levels with the following
nonexertional limitations: the claimant is limited to simple, routine work with an
SVP of one or two. She cannot perform jobs that involve assembly-line work,
contact with the general public, or more than occasional contact with co-workers
and supervisors.
[#9-2 at 21]. Ms. Szymanski challenges the ALJ’s RFC determination. She argues that the ALJ
erred by assigning little weight to the opinions of her two treating sources, Drs. Moles and Buzan,
and by ignoring a third opinion from Dr. Dubovsky who examined Plaintiff in 1996. See [#13 at
11-12; #16 at 6-8].
The Social Security regulations afford a treating source opinion controlling weight if it is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2); cf.
Garcia v. Colvin, 219 F. Supp. 3d 1063, 1071 (D. Colo. 2016) (“The distinction between not
14
inconsistent and consistent is significant. The treating source opinions should not be accorded
controlling weight if they contradict other substantial evidence in the record, but they do not
necessarily have to reach the exact same conclusions.” (emphasis in original)). Generally, the
opinion of an examining source is entitled to more weight than the opinion of a non-examining
source. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); 20 C.F.R. § 404.1527(c)(1).
Indeed, the opinion of a treating or examining source is in no way “dismissable,” see Chapo v.
Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012), and may be dismissed or discounted only upon an
examination of the factors provided in the regulations and “specific, legitimate reasons for
rejecting it[,]” Doyal v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003).
But even if the ALJ does not afford the treating source opinion controlling weight, the ALJ
owes that opinion deference and must weigh that opinion using all the factors provided in 20 C.F.R.
§ 404.1527(c)(1)-(6). See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003); SSR 96-2p,
1996 WL 374188, at *4. These 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 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.
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quotation marks omitted). Ultimately,
the ALJ’s findings must be “sufficiently specific to make clear” the weight assigned to the treating
source opinion and the reasons for that weight. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.
2007) (internal quotation marks omitted).
15
Dr. Moles completed a Physical Residual Functional Capacity Questionnaire on November
16, 2015. Dr. Moles indicated that he had examined Plaintiff twice per year since 2014, and noted
Plaintiff’s diagnoses as depression and anxiety, her prognosis as fair, and her symptoms as
depression, anxiety, and anhedonia. [#9-7 at 283]. Dr. Moles continued that Plaintiff presented
with a depressed mood and affect; that her impairments lasted or could be expected to last at least
12 months; that Plaintiff was not a malingerer; that Plaintiff’s emotional factors and psychological
conditions of depression and anxiety affect her functioning and physical condition; and that
Plaintiff’s impairments were reasonably consistent with her symptoms and functional limitations.
See [id. at 283-84]. Although Dr. Moles opined that Ms. Szymanski did not have any physical
impairments, Dr. Moles opined that her psychological impairments constantly (more than 66% of
an eight-hour workday) interfered with her attention and concentration and rendered her incapable
of performing even low stress jobs. See [id. at 284-86].
The ALJ afforded little weight to Dr. Moles’s opinion. The ALJ explained that Dr. Moles
rendered this opinion “in 2015 and d[id] not consider the substantial medical evidence of record”,
specifically, Plaintiff’s “treatment records with Dr. Buzan”, was “substantially unexplained,
preventing the [ALJ] from assessing Dr. Moles’s reasons behind his statements”, and was
inconsistent with the medical record. See [#9-2 at 18].
On May 4, 2017, Dr. Buzan provided two medical source opinions. First, Dr. Buzan
completed a Medical Source Statement of Ability to Do Work-Related Activities (Mental)
provided by the Social Security Administration. See [#9-7 at 351]. Dr. Buzan indicated that
Plaintiff’s mental impairment impacted her ability to understand, remember, and carry out
instructions. See [id.]. Dr. Buzan assessed no limitations in carrying out simple instructions and
making judgments on simple work-related decisions; mild limitations in understanding and
16
remembering simple instructions; and marked limitations in understanding and remembering
complex instructions, carrying out complex instructions, and making judgments on complex
work-related decisions. See [id.]. Dr. Buzan also noted that Plaintiff’s mental impairment
impacted her ability to interact appropriately with supervisors, co-workers, and the public, as well
as respond to changes in routine work setting. See [id. at 352]. Based on Plaintiff’s exhaustion
and severe depression, Dr. Buzan assessed moderate limitations in interacting appropriately with
the public as well as marked limitations in interacting appropriately with supervisors, co-workers,
and responding appropriately to usual work situations and to changes in a routine work setting.
See [id.]. Further, based on Plaintiff’s bipolar disorder, depression, and ADHD combined type,
Dr. Buzan noted that Plaintiff’s mood is inconsistent and varies such that when it is normal or
hypomanic she is functional but that for the most part she is depressed, which affects her other
capabilities. See [id.].
In his second opinion, a Mental Medical Source Statement, Dr. Buzan indicated that he
examines Plaintiff once per month or sometimes every two weeks, and reported Plaintiff’s
DSM-IV evaluation to include bipolar disorder, depression, ADHD combined type, severe family
stressors given her husband’s illness, and Global Assessment of Functioning 4 scores between
45-50. See [#9-7 at 355]. Dr. Buzan further noted that Plaintiff experienced medication side
effects of “severe weakness that was so bad . . . [Dr. Buzan] sent her to [a] neuro[logist] for [an]
4
The Global Assessment of Functioning (“GAF”) is a scale that assigns a score to reflect an
individual's psychological, social, and occupational functioning. The scale is from 0 to 100, with
a higher score indicating a higher level of functioning. A GAF score between 45-50 indicates
“[s]erious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR
any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to
keep a job.” Am. Psychiatric Ass'n Diagnostic and Statistical Manual of Mental Disorders (DSMIV-TR) at 34 (4th ed. Text Revision 2000). The current Diagnostic and Statistical Manual of
Mental Disorders (DSM-V) does not use GAF. Am. Psychiatric Ass'n Diagnostic and Statistical
Manual of Mental Disorders (DSM-V) at 16 (5th ed. 2013).
17
ALS evaluation.” [Id.]. As for clinical findings, Dr. Buzan reported that Plaintiff was “depressed”
and “articulate,” and had “poor stamina” and “suicidal ideation.” [Id.]. Dr. Buzan then identified
a myriad of symptoms Ms. Szymanski exhibited, many of which Dr. Buzan noted in his treatment
notes. See [id. at 356]. Moreover, concerning Plaintiff’s mental abilities to perform unskilled
work, Dr. Buzan opined that Plaintiff’s ability to remember work-like procedures was seriously
limited; that her abilities to maintain regular attendance and be punctual within customary, usually
strict tolerances, to sustain an ordinary routine without special supervision, and to work in
coordination with or proximity to others without being unduly distracted were unable to meet
competitive standards; and that her abilities to complete a normal workday and workweek without
interruption from psychologically based symptoms, to perform at a consistent pace without an
unreasonable number and length of rest periods, and to deal with normal work stress 5 were not
useful enough to function. See [id. at 357]. Dr. Buzan also opined that Plaintiff was unable to
meet competitive standards in her ability to interact with the public, and had no useful ability to
maintain socially appropriate behavior. See [id. at 358]. Finally, Dr. Buzan concluded that
Plaintiff would miss more than four days per month because of her mental impairment, and that
Plaintiff’s impairments are reasonably consistent with her symptoms and functional limitations.
See [id. at 359].
The ALJ afforded Dr. Buzan’s opinions little weight for several reasons. First, the ALJ
found Dr. Buzan’s statements not consistent with his own treatment notes, namely, those that noted
Plaintiff as thoughtful, euthymic, articulate, logical, coherent, and “very bright and delightful.”
See [#9-2 at 18]. Second, the ALJ found that Dr. Buzan failed to explain his opinions, and did not
5
Indeed, Dr. Buzan noted several work-related demands that Ms. Szymanski would find stressful.
See [#9-7 at 359].
18
“draw[] a robust connection between [his] conclusions” and the medical record. See [id. at 18].
Third, the ALJ found Dr. Buzan’s opinions not consistent with Plaintiff’s admitted functionality,
specifically, driving a car daily, and were not consistent with Plaintiff’s admission that she gets
along with authority figures especially well. See [id. at 19]. Finally, the ALJ found Dr. Buzan’s
opinions not consistent with Dr. Moles’s observation that Plaintiff exhibited a normal affect or Dr.
Round’s observation that Plaintiff produced a good amount of spontaneous speech. See [id.].
Plaintiff argues that the ALJ erred in affording Drs. Moles and Buzan’s opinions little
weight. She contends that the ALJ reached this conclusion because Dr. Buzan noted on several
occasions that Plaintiff “was a pleasant[,] attractive woman” and because Plaintiff “occasionally
drove a car and occasionally functioned at household tasks.” [#13 at 15-16]. She further avers
that the ALJ merely cherry-picked evidence that supported a finding of not disabled, including
ignoring Dr. Dubovsky’s 1996 opinion, ignoring Dr. Buzan’s repeated notations of Plaintiff’s signs
and symptoms, and relying on a state agency opinion that did not render a finding as to the effect
Ms. Szymanski’s mental impairment had on her ability to function. See [#16 at 11-12]. The
Commissioner responds that the ALJ adequately explained his reasons for affording little weight
to Drs. Moles and Buzan’s opinions, and that the ALJ was not required to consider Dr. Dubovsky’s
1996 opinion. See [#15 at 9-13]. While the court agrees that the ALJ provided reasons for
discrediting the treating source opinions, I conclude that substantial evidence does not support
those reasons.
At bottom, the court agrees with Ms. Szymanski that the ALJ essentially relied on evidence
suggesting a finding of not disabled without discussing the medical evidence supporting a finding
of disabled. It is axiomatic that an ALJ must discuss the evidence supporting his decision, “the
uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence
19
he rejects.” Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). This is especially true when
weighing medical source opinions. Indeed, an ALJ “‘is not entitled to pick and choose through an
uncontradicted medical opinion, taking only the parts that are favorable to a finding of
nondisability.’” Chapo v. Astrue, 682 F.3d 1285, 1292 (10th Cir. 2012) (quoting Haga v. Astrue,
482 F.3d 1205, 1208 (10th Cir. 2007)).
Noticeably absent from the ALJ’s decision is any discussion of the medical evidence that
supported Plaintiff’s symptoms and impairments. Indeed, there are several reports in Dr. Buzan’s
treatment records, which the ALJ relied on significantly, that Plaintiff struggled with her bipolar
disorder. For instance, Plaintiff presented crying and looking exhausted on April 18, 2016, and
reported feeling “really depressed at this point.” [#9-7 at 300, 309]. On January 18, 2017, Plaintiff
reported that she felt irritable and sad, and Dr. Buzan noted that Plaintiff was contracting for safety.
See [id. at 322-24]. Dr. Buzan’s February 22, 2017 treatment notes reveal that Plaintiff presented
sobbing, sad, depressed; tossed a pill bottle at Dr. Buzan while exclaiming “this is not working
anymore!”; had passive suicidal ideation; and was too depressed to contact Dr. Buzan for
medication suggestions. See [id. at 331-32]. Similarly, on March 14, 2017, Dr. Buzan noted that
Plaintiff emailed often and called because she was “feeling so depressed”, that her irritability was
better, that she felt it was “too much effort to go out [or] engage”, that she was not exercising, and
that she really had to work to “have any kind of affect[.]” [Id. at 347]. Dr. Buzan also indicated
that Plaintiff struggled with “persisting severe depression.” [Id. at 348].
The ALJ also places great emphasis on Dr. Buzan’s notation that Plaintiff was “very bright
and delightful,” but this appears appended to all of Dr. Buzan’s treatment notes and it is far from
clear that this assessment accurately reflected Plaintiff’s mental state from visit-to-visit. Further,
consistent with Dr. Buzan’s opinions, the ALJ limited Plaintiff to simple, routine work that did not
20
involve contact with the public or more than occasional contact with co-workers and supervisors.
Compare [#9-2 at 15] with [#9-7 at 351-52, 357-58]. But the ALJ fails to explain why these
portions of Dr. Buzan’s opinions would appear credible while the rest were not. Although the ALJ
has the sole responsibility of resolving conflicts within the medical record, see Allman v. Colvin,
813 F.3d 1326, 1333 (10th Cir. 2016), the ALJ cannot simply ignore evidence that does not support
his decision, see Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).
In addition, while the ALJ was correct that Dr. Moles did not consider Plaintiff’s treatment
with Dr. Buzan, which Dr. Moles could not have done before issuing his 2015 opinion, the court’s
review of the medical record does not necessarily support the ALJ’s conclusion that Dr. Moles’s
opinion was not consistent with Dr. Buzan’s records. Cf. Bryant v. Comm’r, SSA, --- F. App’x ----,
2018 WL 6133387, at *3 (10th Cir. Nov. 23, 2018) (holding that the ALJ impermissibly
cherry-picked evidence when the ALJ “focused on the portions of Dr. Bank’s notes that arguably
undermined Dr. Khalid’s opinions but ignored other findings that were consistent with Dr.
Khalid’s observations.”). Indeed, Drs. Moles and Buzan’s opinions reflect a similar degree of
limitations, compare [#9-7 at 283-87] with [id. at 351-60]—limitations that are uncontradicted by
any other medical opinion as Dr. Suyeishi did not provide an opinion as to Plaintiff’s functional
limitations. See Chapo, 682 F.3d at 1291 (“Again, it is important to keep in mind that Dr. Vega’s
detailed findings are not opposed by those of any other medical source . . . . [T]he ALJ’s treatment
of Dr. Vega’s unopposed mental RFC findings was erroneous”); cf. Rael v. Berryhill, 678 F. App’x
690, 694-95 (10th Cir. 2017) (finding no error where the ALJ explained his rationale for weighing
treating source opinions that were contradicted by other medial opinions).
Further, the court agrees with Ms. Szymanski that the opinion of Dr. Dubovsky, an
examining source, provides longitudinal support for her alleged symptoms and impairment, and is
21
generally consistent with the record. See Winfrey v. Chater, 92 F.3d 1017, 1022 (10th Cir. 1996)
(noting that an examining-source is entitled to more weight than non-examining sources). Even
though Dr. Dubovsky’s opinion pre-dates Ms. Szymanski’s alleged onset date, it is nonetheless
relevant to a claim of disability and should be considered. See Hamlin v. Barnhart, 365 F.3d 1208,
1215 (10th Cir. 2004).
Finally, the court expresses some concern over the ALJ’s reliance on the perceived “lack
of records” to support his disregard for more extreme mental limitations. See [#9-2 at 17]; but cf.
Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993) (“The absence of evidence is not
evidence. The ALJ’s reliance on an omission effectively shifts the burden back to the claimant.
It is not her burden, however, to prove she cannot work at any level lower than her past relevant
work; it is the Secretary’s burden to prove that she can.”). On remand, if the ALJ believes
Plaintiff’s medical records are inconclusive, the ALJ should consider the need for a consultative
examination to properly resolve Ms. Szymanski’s disability claim, see Hawkins v. Chater, 113
F.3d 1162, 1166 (10th Cir. 1997), especially given the uncontradicted opinions of Drs. Moles and
Buzan. Relatedly, to the extent the ALJ determines that Dr. Moles’s or Dr. Buzan’s treatment
notes are inadequate, the ALJ must then re-contact these medical sources to clarify or supplement
their notes. See Maes v. Astrue, 522 F.3d 1093, 1097-98 (10th Cir. 2008).
CONCLUSION
For the reasons stated herein, the court hereby REVERSES the Commissioner’s final
decision and REMANDS this matter for further proceedings that are consistent with this
Memorandum Opinion and Order.
22
DATED: December 13, 2018
BY THE COURT:
_________________________
Nina Y. Wang
United States Magistrate Judge
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