Etcitty v. Social Security Administration

Filing 24

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 18 Plaintiff's Motion to Reverse and Remand for a Rehearing (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BARBARA ETCITTY,
Plaintiff,
v.

No. 15-cv-0892 SMV

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum [Doc. 18] (“Motion”), filed on May 24, 2016. The
Commissioner responded on August 18, 2016. [Doc. 21]. Plaintiff replied on September 1,
2016. [Doc. 22]. The parties have consented to the undersigned’s entering final judgment in this
case. [Doc. 9]. Having meticulously reviewed the entire record and being fully advised in the
premises, the Court finds that substantial evidence does not support the Administrative Law
Judge’s (“ALJ”) reasons for rejecting the opinion of the treating physician. Accordingly, the
Motion will be granted, and the case will be remanded for further proceedings.
Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision2 is supported by substantial evidence and whether the correct legal standards were

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec’y of
Health & Human Servs., 961 F.2d 1495, 1497–98 (10th Cir. 1992)). If substantial evidence
supports the Commissioner’s findings and the correct legal standards were applied, the
Commissioner’s decision stands and the plaintiff is not entitled to relief. Langley v. Barnhart,
373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). A court should meticulously
review the entire record but should neither re-weigh the evidence nor substitute its judgment for
that of the Commissioner. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214; Doyal,
331 F.3d at 760. The decision “is not based on substantial evidence if it is overwhelmed by other
evidence in the record or if there is a mere scintilla of evidence supporting it.” Langley, 373
F.3d at 1118; Hamlin, 365 F.3d at 1214. While a court may not re-weigh the evidence or try the
issues de novo, its examination of the record as a whole must include “anything that may

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A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which generally is the ALJ’s
decision, 20 C.F.R. §§ 404.981, 416.1481. The Tenth Circuit, however, has held that in some situations, a court
must consider evidence beyond that which was before the ALJ. See Martinez v. Barnhart, 444 F.3d 1201, 1207−08
(10th Cir. 2006); O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). Pursuant to 20 C.F.R. §§ 404.970(b) and
416.1470(b), any new and material evidence that relates to the period on or before the date of the ALJ’s decision
shall be considered by the Appeals Council in determining whether to review the ALJ’s decision. If the Appeals
Council denies review, the ALJ’s decision becomes the Commissioner’s final decision. O’Dell, 44 F.3d at 858
(citing 20 C.F.R. § 404.981). Because a court reviews the final decision based on “the record as a whole,” it will
consider the evidence that was before the ALJ as well as the new and material evidence that was before the Appeals
Council. Id. (citing Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)). A court
reviews the Commissioner’s decision, which is the ALJ’s decision and not the Appeals Council’s denial of review.
See id. Considering all of the evidence in the administrative record, a court decides whether the ALJ’s findings are
supported by substantial evidence and whether the correct legal standards were applied. Maes, 522 F.3d at 1096.
Accordingly, here, the Court reviews the ALJ’s decision considering the entire record, including the evidence
submitted to the Appeals Council. See Tr. 7, 711–30

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undercut or detract from the [Commissioner]’s findings in order to determine if the substantiality
test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility
of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from
being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
“The failure to apply the correct legal standard or to provide this court with a sufficient
basis to determine that appropriate legal principles have been followed is grounds for reversal.”
Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks omitted).
Applicable Law and Sequential Evaluation Process
In order to qualify for disability benefits, a claimant must establish that she is unable “to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a).
In light of this definition for disability, a five-step sequential evaluation process has been
established for evaluating a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert,
482 U.S. 137, 140 (1987). At the first four steps of the sequential process, the claimant has the
burden to show that: (1) she is not engaged in “substantial gainful activity”; and (2) she has a
“severe medically determinable . . . impairment . . . or a combination of impairments” that has
lasted or is expected to last for at least one year; and either (3) her impairment(s) either meet or

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equal one of the “Listings”3 of presumptively disabling impairments; or (4) she is unable to
perform her “past relevant work.”

20 C.F.R. §§ 404.1520(a)(4)(i–iv), 416.920(a)(4)(i–iv);

Grogan, 399 F.3d at 1261. At the fifth step of the evaluation process, the burden of proof shifts
to the Commissioner to show that the claimant is able to perform other work in the national
economy, considering her residual functional capacity (“RFC”), age, education, and work
experience. Grogan, 399 F.3d at 1261.
Procedural Background
Plaintiff applied for a period of disability, disability insurance benefits, and supplemental
security income on July 12, 2012. Tr. 25. She alleged a disability-onset date of May 1, 2012.
Id. Her claims were denied initially and on reconsideration. Id. Plaintiff requested a hearing
before an ALJ. Id. ALJ Michael S. Hertzig held a hearing on April 2, 2014. Id. Plaintiff
appeared with her attorney and her adult daughter, Eileen Harry. Tr. 25, 60. The ALJ heard
testimony from Plaintiff, Ms. Harry, and an impartial vocational expert (“VE”), Mary Diane
Weber. Tr. 25, 60–101.
The ALJ issued his unfavorable decision on May 13, 2014. Tr. 34. At step one, he found
that Plaintiff had not engaged in substantial gainful activity since the onset date of her alleged
disability. Tr. 27. Because Plaintiff had not engaged in substantial gainful activity for at least
12 months, the ALJ proceeded to step two. Id. There, he found that Plaintiff suffered from the
following severe impairments:

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“seronegative rheumatoid arthritis and anemia with status

20 C.F.R. pt. 404, subpt. P, app. 1.

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post hysterectomy[.]” Id. At step three, the ALJ found that none of Plaintiff’s impairments,
alone or in combination, met or medically equaled a Listing. Tr. 28.
Because none of Plaintiff’s impairments met or medically equaled a Listing, the ALJ
went on to assess Plaintiff’s RFC.

Tr. 28–33. In doing so, the ALJ rejected the opinions of

Plaintiff’s treating physician, Erin Nealon, D.O., as to Plaintiff’s functional limitations and,
instead, adopted the opinions of the non-examining physicians, Drs. Whaley and Malak. Tr. 29,
30, 32–33 (ALJ’s rejecting Dr. Nealon’s opinions); Tr. 32 (ALJ’s adopting the opinions of
Drs. Whaley and Malak). The ALJ found that “[Plaintiff] has the [RFC] to perform light work as
defined in 20 [C.F.R. §§] 404.1567(b) and 416.967(b) with occasional climbing.”

Tr. 28.

At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. Tr. 33.
At step five, the ALJ found that, based on Plaintiff’s RFC, age, education, and work experience
and the testimony of the VE, Plaintiff could perform work that exists in significant numbers in
the national economy. Tr. 33–34. Ultimately, the ALJ found that Plaintiff had not been under a
disability, as defined by the Act, during the relevant time period, and he denied the claims.
Tr. 34.
After the ALJ denied the claim, Plaintiff submitted additional evidence to the Appeals
Council. Tr. 2. The Appeals Council accepted the evidence and made it part of the record.
Tr. 2, 5, 711–30. Nevertheless, the Appeals Council found that it “[did] not provide a basis for
changing the [ALJ]’s decision” and denied Plaintiff’s request for review on August 10, 2015.
Tr. 1−5. Plaintiff timely filed the instant action on October 6, 2015. [Doc. 1].

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Analysis
The ALJ failed to apply the correct legal standard in weighing Dr. Nealon’s treating
opinions. Additionally, his reasons for rejecting the opinions are not supported by substantial
evidence.

These errors matter because Dr. Nealon assessed more restrictive functional

limitations than were ultimately adopted by the ALJ in the RFC. Compare Tr. 28 (ALJ’s RFC),
with Tr. 633–35 (Dr. Nealon’s opinions). If proper consideration of Dr. Nealon’s opinion affects
the RFC, then steps four and five must be revisited accordingly. Therefore, the case will be
remanded. The Court declines to address the other errors alleged by Plaintiff at this time.
Plaintiff contends that the ALJ erred in rejecting the medical opinion of Plaintiff’s
treating physician Dr. Nealon. [Doc. 18] at 15–19. The Commissioner disagrees and argues that
the ALJ “had good reasons for discounting Dr. Nealon’s opinion.” [Doc. 21] at 11, 10–16.
Plaintiff is correct.
Social Security regulations require that, in determining disability, the opinions of treating
physicians be given controlling weight when those opinions are well-supported by the medical
evidence and are consistent with the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). This is
known as the “treating physician rule.” Langley, 373 F.3d at 1119. The idea is that a treating
physician provides a “unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual examinations, such as
consultative examinations,” and therefore, a treating physician’s opinion merits controlling
weight. Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003).

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In order to receive controlling weight, treating physician opinions must be both supported
by medical evidence and consistent with the record.

If not, the opinions may not merit

controlling weight but still must be given deference and weighed using the following six factors:
(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.
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003); see 20 C.F.R. §§ 404.1527(c),
416.927(c). However, not every factor is applicable in every case, nor should all six factors be
seen as absolutely necessary. What is absolutely necessary, though, is that the ALJ give good
reasons—reasons that are “sufficiently specific to [be] clear to any subsequent reviewers”—for
the weight she ultimately assigns to the opinions. Langley, 373 F.3d at 1119; see 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2); Branum v. Barnhart, 385 F.3d 1268, 1275 (10th Cir. 2004).
In sum, when properly rejecting a treating physician’s opinion, an ALJ must follow two
distinct phases. First, the ALJ must find that the opinion is not supported by medical evidence
and/or is not consistent with the record. Second, the ALJ must still give deference to the opinion
and weigh it according to the factors listed above. Like all findings, an ALJ’s findings in these
two phases must be supported by substantial evidence.
In this case, on May 6, 2014, Plaintiff’s treating physician, Dr. Nealon, submitted a short
letter along with her Medical Assessments of Ability to do Work-Related Activities
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(Non-Physical) and (Physical). Tr. 633–35. In the letter, Dr. Nealon explains that Plaintiff is
being treated for rheumatoid arthritis and has pain in her arms with intermittent swelling, with
the pain and stiffness being the worst in the mornings. Tr. 633. In the Medical Assessment
forms, Dr. Nealon opines that Plaintiff is moderately limited in her ability to maintain physical
effort for long periods without a need to decrease activity or pace or to rest intermittently due to
“arthritic pain in joints.” Tr. 634; see Tr. 635. Plaintiff needs to rest or lie down at regular
intervals because of her pain, which is “severe at times” and which can cause fatigue. Tr. 635.
Dr. Nealon further opined that Plaintiff:


Can lift and/or carry (including upward pulling) less than 10 pounds only occasionally
due to arthritis in the hands, wrists, and elbows;



Has limited capacity for pushing and pulling with the upper extremities due to swelling
and stiffness associated with rheumatoid arthritis;



Can only occasionally kneel, stoop, crouch, or crawl;



Cannot perform repetitive handling or fingering, bilaterally, due to occasional swelling,
as well as stiffness of the joints which limits range of motion and strength; and



Has limited capacity for bilateral reaching in all directions (including overhead) due to
occasional swelling as well as joint stiffness which limits range of motion and strength

Tr. 635. Dr. Nealon also expressly indicated that there was “no clinical evidence” of any
limitation in Plaintiff’s ability to stand, walk, or sit. Id.
The ALJ gave three reasons for rejecting Dr. Nealon’s opinion (and, instead, adopting a
less restrictive RFC).

First, he found that the opinion was not consistent with Plaintiff’s

testimony that she was not able to stand or walk for any appreciable distance. Tr. 30. Second,
he found that Dr. Nealon’s opinion was based on Plaintiff’s subjective complaints “rather than
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on actual findings.” Tr. 32.

Third, he found that the opinion “substantially departed from the

rest of the evidence of record.” Tr. 33.
The Court finds that these reasons are legally insufficient because they address only
phase one of the treating physician analysis.

These reasons (if supported by substantial

evidence) may explain why Dr. Nealon’s opinion was not entitled to controlling weight, but that
is not the end of the analysis. The ALJ must then discuss how much weight to accord the
opinion based on the phase-two factors. Although ALJs need not address every factor at phase
two, some distinct step-two findings are required to determine what amount of weight, if any, the
opinion should receive. E.g., 20 C.F.R. §§ 404.1527, 416.927; Watkins, 350 F.3d at 1300–01;
Social Security Ruling 96-2p; see generally Black & Decker Disability Plan v. Nord, 538 U.S.
822, 829 (2003) (explaining the origin and evolution of the treating physician rule, which was
formally codified 25 years ago). Here, the ALJ made phase-one findings, but he stopped there.
Having found that Dr. Nealon’s opinion was not entitled to controlling weight, the ALJ erred in
proceeding directly to finding that the opinion was entitled to no weight. Rather, the ALJ was
required to make further findings based on the phase-two factors to determine how much weight,
if any, the opinion should be accorded. This he did not do.
Additionally, in the context of the evidence and, in particular, the ALJ’s other findings,
the Court finds that the ALJ’s reasons for rejecting Dr. Nealon’s opinion are not susceptible to
meaningful review and therefore lack the substantial evidence required to affirm the decision.
First, Dr. Nealon opined that Plaintiff had no restrictions in walking or standing because
there was “no clinical evidence of this.” Tr. 635. Plaintiff, however, testified that she could not
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stand for more than 10 or 15 minutes or walk more than 100 feet. Tr. 74–75. Not surprisingly,
the ALJ found that that the doctor’s opinion and Plaintiff’s testimony were inconsistent. It
would make sense to find that such inconsistency undercut Plaintiff’s credibility. Confusingly,
though, the ALJ’s finding is the other way around. He found that the inconsistency undercut the
doctor’s opinion, which seems to the Court to be a non sequitur. It simply does not follow that
where a treating doctor finds no functional limitation (because there is no clinical evidence to
support it) but the patient reports trouble in that area, the doctor’s opinion merits less weight.
To even further blur the ALJ’s line of reasoning, he also rejected Dr. Nealon’s opinion
because “it was based on [Plaintiff’s] subjective complaints rather than actual findings.” Tr. 32.
Of course, as described above, the ALJ had already rejected the opinion because it did not reflect
Plaintiff’s subjective reports about her ability to stand and walk. Tr. 30. So, the Court struggles
to understand how a medical opinion should be rejected because it does not reflect the patient’s
subjective complaints and also does reflect them. Besides, there is not substantial evidence to
support the latter half of the ALJ’s finding, i.e., that the opinion was not based on “actual
findings.” Dr. Nealon explicitly attributed her opinion to Plaintiff’s “arthritis,” “rheumatoid
arthritis,” and “ROM [range of motion].” Tr. 364–35. These are not subjective complaints.
They are objective medical findings, and the ALJ must have accepted them because he found the
rheumatoid arthritis was a medically determinable, severe impairment at step two. Tr. 27.
The third reason given by the ALJ for rejecting Dr. Nealon’s opinion was that it
“depart[ed] substantially from the rest of the evidence of record.” Tr. 33. However, two pages
earlier in his decision, the ALJ found “there was considerable evidence in [the] file from treating
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and examining physicians, which are generally consistent and provide ample evidence to support
a disability decision.” Tr. 31. These findings—that Dr. Nealon’s opinion is both inconsistent
with and consistent with the other evidence—are contradictory and do not allow for meaningful
review. For these reasons, the Court finds that the ALJ’s reasons for rejecting the treating
opinion of Dr. Nealon are not supported by substantial evidence. Remand is required for
reconsideration of Dr. Nealon’s opinion.
At this time, the Court declines to address whether Plaintiff’s other alleged errors (i.e.,
that the ALJ erred in his evaluation of the third-party statements from Plaintiff’s sister and adult
daughter) constitute reversible error. See generally Social Security Ruling 06-03p, 2006 SSR
LEXIS 5, *15–16 (“Although there is a distinction between what an adjudicator must consider
and what the adjudicator must explain in the disability determination or decision, the adjudicator
generally should explain the weight given to opinions from [third party lay witnesses] or
otherwise ensure that the discussion of the evidence . . . allows a . . . subsequent reviewer to
follow the adjudicator’s reasoning, when such opinions may have an effect on the outcome of the
case.”) (emphases added).
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Reverse . . . [Doc. 18] is GRANTED. The Commissioner’s final decision is reversed,
and this case is remanded for further proceedings in accordance with this opinion.
IT IS SO ORDERED.
______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent
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