Whitney v. Social Security Administration

Filing 28

MEMORANDUM OPINION AND ORDER by Magistrate Judge Steven C. Yarbrough granting 19 Motion to Remand to Agency. (hm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL WHITNEY,
Plaintiff,
v.

No. 1:16-cv-00346 SCY

NANCY A. BERRYHILL,1
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO REMAND
THIS MATTER is before the Court on Plaintiff Michael Whitney’s Motion to Reverse
and Remand the Social Security Commissioner’s final decision denying Plaintiff period of
disability, disability insurance benefits, and supplemental security income. Doc. 19. The Court
concludes that the ALJ failed to properly weigh the opinion of Dr. Robert Knight, M.D.
Therefore, the Court will grant Plaintiff’s motion and remand this action to the Commissioner
for further proceedings consistent with this opinion.
I.

BACKGROUND
Plaintiff applied for period of disability, disability insurance benefits and supplemental

security income on February 29, 2012. Administrative Record (“AR”) 14; see also AR 64, 73.
He alleged a disability onset date of September 1, 2011. Id. After his claim was denied on initial
review and upon reconsideration, his case was set for a hearing in front of an ALJ on August 27,
2014. Id.
On October 21, 2014, the ALJ issued a partially favorable written decision finding that
1

Nancy A. Berryhill, who is now the Acting Commissioner of the Social Security Administration, is
substituted for Acting Commissioner Carolyn W. Colvin under Rule 25(d) of the Federal Rules of Civil
Procedure.

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Plaintiff was “not disabled prior to November 4, 2013, but became disabled on that date and has
continued to be disabled through the date of this decision.” AR 14. In arriving at her decision, the
ALJ determined that Plaintiff had not engaged in substantial gainful activity since September 1,
2011, his alleged onset date. AR 16-17. The ALJ then found that Plaintiff suffered from the
following severe impairments: (1) mild impingement of the hips; (2) a major depressive disorder;
(3) a general anxiety disorder; and (4) minimal degenerative disc disease of the lumbar spine. AR
17. The ALJ determined that Plaintiff’s remaining impairments were non-severe. AR 17. With
regard to the severe impairments, the ALJ, however, found that these impairments, individually
or in combination, did not meet or medically equal one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1. AR 17-19.
Because she found that Plaintiff’s impairments did not meet a Listing, the ALJ then went
on to assess Plaintiff’s residual functional capacity (“RFC”). AR 19. The ALJ stated that
After careful consideration of the entire record, I find that since September 1,
2011, the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except that he has to alternate
between sitting and standing approximately every thirty minutes, and cannot
kneel, crouch, or crawl. In addition, the claimant can make simple work-related
decisions, with few workplace changes, and can have only occasional, superficial
contact with the general public.
AR 19. The ALJ concluded that Plaintiff had no past relevant work. AR 24. The ALJ then
indicated that Plaintiff’s age category changed on November 4, 2013 to an individual of
advanced age. AR 25. The ALJ found that beginning on November 4, 2013, Plaintiff has “not
been able to transfer job skills to other occupations.” Id. Prior to November 4, 2013, however,
the ALJ found that “transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding that [Plaintiff] is
‘not disabled’ whether or not [Plaintiff] has transferable job skills.” Id. Based on the RFC and the

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testimony of a vocational expert, the ALJ then determined at step five that prior to November 4,
2013 (the date Plaintiff’s age category changed), considering Plaintiff’s age, education, work
experience, and his RFC, there are jobs that exist in significant numbers in the national economy
that he can perform. AR 25-26. Finally, the ALJ determined that beginning on November 4,
2013, there are no jobs that exist in significant numbers in the national economy that he can
perform. AR 26-27.
Plaintiff appealed the ALJ’s partially favorable decision to the Social Security Appeals
Council and the Appeals Council denied the request for review. AR 10. This appeal followed.
Doc. 19.
II.

APPLICABLE LAW
A. Disability Determination Process
A claimant is considered disabled for purposes of Social Security disability insurance

benefits or supplemental security income if that individual 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); see also 42 U.S.C. §
1382c(a)(3)(A). The Social Security Commissioner has adopted a five-step sequential analysis to
determine whether a person satisfies these statutory criteria. See 20 C.F.R. §§ 404.1520, 416.920.
The steps of the analysis are as follows:
(1) Claimant must establish that she is not currently engaged in “substantial gainful
activity.” If Claimant is so engaged, she is not disabled and the analysis stops.
(2) Claimant must establish that she has “a severe medically determinable physical or
mental impairment . . . or combination of impairments” that has lasted for at least
one year. If Claimant is not so impaired, she is not disabled and the analysis stops.
(3) If Claimant can establish that her impairment(s) are equivalent to a listed
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impairment that has already been determined to preclude substantial gainful
activity, Claimant is presumed disabled and the analysis stops.
(4) If, however, Claimant’s impairment(s) are not equivalent to a listed impairment,
Claimant must establish that the impairment(s) prevent her from doing her “past
relevant work.” Answering this question involves three phases. Winfrey v. Chater,
92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant
medical and other evidence and determines what is “the most [Claimant] can still
do despite [her physical and mental] limitations.” 20 C.F.R. § 404.1545(a)(1).
This is called the claimant’s residual functional capacity (“RFC”). Id. §
404.1545(a)(3). Second, the ALJ determines the physical and mental demands of
Claimant’s past work. Third, the ALJ determines whether, given Claimant’s RFC,
Claimant is capable of meeting those demands. A claimant who is capable of
returning to past relevant work is not disabled and the analysis stops.
(5) At this point, the burden shifts to the Commissioner to show that Claimant is able
to “make an adjustment to other work.” If the Commissioner is unable to make
that showing, Claimant is deemed disabled. If, however, the Commissioner is able
to make the required showing, the claimant is deemed not disabled.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005).
B. Standard of Review
A court must affirm the denial of social security benefits unless (1) the decision is not
supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in
reaching the decision. 42 U.S.C. § 405(g); Casias v. Sec’y of Health & Human Serv., 933 F.2d
799, 800-01 (10th Cir. 1991). In making these determinations, the reviewing court “neither
reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). For example, a court’s disagreement with a
decision is immaterial to the substantial evidence analysis. A decision is supported by substantial
evidence as long as it is supported by “relevant evidence . . . a reasonable mind might accept as
adequate to support [the] conclusion.” Casias, 933 F.3d at 800. While this requires more than a
mere scintilla of evidence, Casias, 933 F.3d at 800, “[t]he possibility of drawing two inconsistent

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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)).
Similarly, even if a court agrees with a decision to deny benefits, if the ALJ’s reasons for
the decision are improper or are not articulated with sufficient particularity to allow for judicial
review, the court cannot affirm the decision as legally correct. Clifton v. Chater, 79 F.3d 1007,
1009 (10th Cir. 1996). As a baseline, the ALJ must support his or her findings with specific
weighing of the evidence and “the record must demonstrate that the ALJ considered all of the
evidence.” Id. at 1009-10. This does not mean that an ALJ must discuss every piece of evidence
in the record. But, it does require that the ALJ identify the evidence supporting the decision and
discuss any probative and contradictory evidence that the ALJ is rejecting. Id. at 1010.
III.

ANALYSIS
Plaintiff argues that: (1) the ALJ committed reversible legal error by failing to properly

evaluate the medical opinions of two of Plaintiff’s physicians, Dr. Jeremy Beck, M.D., and Dr.
Robert Knight, M.D; (2) the ALJ failed to resolve a conflict between the DOT and vocational
expert testimony; and (3) the ALJ’s finding at Step 5 is not supported by substantial evidence.
Doc. 19 at 1. Because the Court finds that the ALJ committed legal error in her consideration of
Dr. Knight’s opinion, the Court will reverse and remand for further proceedings consistent with
this Opinion. The Court will not address Plaintiff’s remaining claims of error because they may
be affected by the ALJ’s treatment of this case on remand. Wilson v. Barnhart, 350 F.3d 1297,
1299 (10th Cir. 2003).

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A. The ALJ’s Consideration of Dr. Knight’s Opinion
Plaintiff first saw Dr. Knight on May 21, 2014, approximately three months prior to the
August 27, 2014 hearing in front of the ALJ. AR 660. During this first visit, Plaintiff sought
treatment for “bad insomnia, anxiety, and depression.” Id. Dr. Knight observed that Plaintiff was
“anxious, depressed, tremulous.” Id. He diagnosed Plaintiff with anxiety and depressive disorder
and also prescribed Remeron, Abilify, and Xanax. AR 660-61. Plaintiff had follow-up
appointments with Dr. Knight on June 4, 2014 (AR 658) and on July 2, 2014 (AR 656). At the
June appointment, Dr. Knight observed that Plaintiff was “jittery” and added a diagnosis of
insomnia. AR 659. At the July follow-up appointment, Dr. Knight once again assessed Plaintiff
with depression and anxiety, and modified some of his medications. AR 657.
Based on this treatment and a review of Plaintiff’s medical history from a year prior to
his May 2014 initial visit, Dr. Knight completed a “Medical Assessment of Ability to do WorkRelated Activities (Mental)” form on August 4, 2014. AR 665-669. Therein, Dr. Knight assessed
that Plaintiff had a number of marked limitations in his mental/emotional capabilities:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)

understand and remember detailed instructions;
carry out very short and simple instructions;
carry out detailed instructions;
maintain attention and concentration for extended periods of time;
sustain an ordinary routine without special supervision;
work in coordination with/or proximity to others without being distracted by them;
complete a normal workday and workweek without interruptions;
accept instructions and respond appropriately to criticism from supervisors;
get along with coworkers or peers; and
respond appropriately to changes in the work place.

AR 665-66. Dr. Knight also assessed Plaintiff as being moderately limited in his ability to:
(1)
(2)
(3)
(4)

remember locations and work-like procedures;
understand and remember very short and simple instructions;
perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerance;
make simple work-related decisions;
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(5)
(6)
(7)
(8)
(9)

interact appropriately with the general public;
ask simple questions or request assistance;
maintain socially appropriate behavior;
be aware of normal hazards and take adequate precautions; and
set realistic goals or make plans independently of others.

AR 665-66.
In addition, Dr. Knight completed an “Assessment of Adaptation to Temperament
Characteristics Required by Jobs” form. AR 667. Therein, he indicated that Plaintiff should
avoid performing repetitive work, performing a variety of duties, dealing with people, working
under stress, directing others, attaining precise standards, and working under specific
instructions. Id. He also completed Listing forms for “12.04 Affective Disorders” (AR 668) and
“12.06 Anxiety-Related Disorders” (AR 669). On these forms, Dr. Knight stated that Plaintiff
had marked restrictions in maintaining activities of daily living, marked difficulties in
maintaining social functioning, concentration, persistence, or pace, and repeated episodes of
decompensation, each of extended duration. AR 668-69.
In her decision, the ALJ assigned “little weight” to Dr. Knight’s opinion for two reasons.
AR 23. First, she found that the opinion was inconsistent with Plaintiff’s “stated social activities
including regular shopping trips and regular church attendance” Id. She stated that these
activities “demonstrate that [Plaintiff] would not have marked restrictions in interacting with
others.” Id. Second, the ALJ stated “there is no evidence in the record to support [Plaintiff’s]
marked limitations with concentration and understanding instructions, as he exhibited no
memory or concentration problems during examinations.” Id.
B. Relevant Law
“An ALJ must evaluate every medical opinion in the record” but the weight accorded to
such “opinion[s] will vary according to the relationship between the disability claimant and the

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medical professional.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir.2004); See 20 C.F.R.
§§ 404.1527(b)-(c), 416.927(c). 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 v.
Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004). 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. See Doyal v. Barnhart,
331 F.3d 758, 762 (10th Cir. 2003).
In analyzing whether a treating physician’s opinion is entitled to controlling weight, the
ALJ must perform a two-step process. “The initial determination the ALJ must make with
respect to a treating physician’s medical opinion is whether it is conclusive, i.e., is to be accorded
‘controlling weight,’ on the matter to which it relates.” Krauser v. Astrue, 638 F.3d 1324, 1330
(10th Cir. 2011) (quoting Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.2003)). In making
this initial determination, the ALJ must consider whether the opinion “is well supported by
medically acceptable clinical and laboratory diagnostic techniques and is consistent with the
other substantial evidence in the record.” Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir.
2007) (citing 20 C.F.R. § 404.1527(d)(2)); Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.
2003). If the opinion meets both criteria, the ALJ must give the treating physician’s opinion
controlling weight. Id. To give anything less than controlling weight, the ALJ must demonstrate
with substantial evidence that the opinion (1) is not “well‐supported by medically acceptable
clinical and laboratory diagnostic techniques,” or (2) is “inconsistent with other substantial

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evidence” in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). “Under the regulations, the
agency rulings, and our case law, an ALJ must ‘give good reasons in [the] notice of
determination or decision’ for the weight assigned to a treating [source’s] opinion.” Watkins, 350
F.3d at 1300.
If the ALJ does not assign a treating source’s opinion controlling weight, step two of the
analysis requires the ALJ to apply the six factors listed in the regulations to determine whether a
treating source’s opinion should be rejected altogether or assigned some lesser weight:
(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. Even if an ALJ
determines that a treating source opinion is not entitled to controlling weight, the opinion still is
entitled to deference. SSR 96‐2p, 1996 WL 374188, at *4 (July 2, 1996); see also Watkins 350
F.3d at 1300.
C. The ALJ erred in her consideration of Dr. Knight’s Opinion
As an initial matter, while Plaintiff maintains that Dr. Knight is a treating physician
whose opinion is entitled to the special weight afforded to treating source opinions, the Court is
unable to ascertain from the ALJ’s decision whether she in fact considered Dr. Knight to be a

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treating physician. While the ALJ did not expressly designate Dr. Knight as a treating physician,
she also did not suggest that Dr. Knight was not one. Relatedly, because the ALJ did not
explicitly conduct a treating physician analysis, it is simply unclear from the ALJ’s decision that
she applied the treating physician rule at all to Dr. Knight’s opinion. The Court will, however,
accept Plaintiff’s designation of Dr. Knight as a treating source because Defendant did not
dispute this designation in her response brief.
The ALJ arguably met the first step of the treating physician analysis. Although the ALJ
did not expressly state that she was not giving Dr. Knight’s opinion “controlling weight”, she
assigned it “little weight” after finding that it was not supported by Plaintiff’s hearing testimony
or by Dr. Knight’s examinations. Thus, it is apparent that she did not assign the opinion
controlling weight. Nonetheless, while the ALJ may have provided adequate reasons (if
supported by substantial evidence) to explain why she was not giving Dr. Knight’s opinion
controlling weight, that does not end the treating physician analysis. In addition, the ALJ must
discuss how much weight to afford the opinion based on the step-two factors.
Here, although the ALJ assigned little weight to Dr. Knight’s opinion, there is no
indication that she considered any of the factors listed in the regulations. The Court simply does
not know whether the ALJ considered the examining and treating relationship between Plaintiff
and Dr. Knight, the length of the relationship, the supportability of Dr. Knight’s opinions, or Dr.
Knight’s specialty, among other factors, in deciding to give limited weight to Dr. Knight’s
opinion. See 20 C.F.R. §§ 404.1527(c), 416.927(c). Although an ALJ need not explicitly address
each of the above six factors, an ALJ must provide reasons that are sufficiently specific for
subsequent reviewers to understand why she assigned a particular weight to a particular opinion.
The Court agrees that evidence of Plaintiff’s activities of daily living tends to undermine

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Dr. Knight’s opinion. However, given the extent of the limitations Dr. Knight assessed and his
status as a treating physician, the ALJ’s brief references to Plaintiff’s activities of daily living are
insufficient to support her assignment of little weight to Dr. Knight’s opinion. And, her
conclusory statement that Dr. Knight’s examinations fail to support his conclusions, absent
further explanation, fails to significantly further undermine Dr. Knight’s opinion. This is
particularly true given that the limitations assessed by Dr. Knight concerned mental capacity
issues for which objective medical evidence is less likely to be available.
The Court recognizes that other reasons exist to discredit Dr. Knight’s opinion with
regard to the period of disability at issue. For instance, although Plaintiff characterizes him as a
treating physician, Dr. Knight did not have an extensive history treating Plaintiff. And, to the
extent he did treat Plaintiff, this treatment occurred long after the period of disability at issue and
so bears less heavily on the period at issue. In addition, Plaintiff’s work as a pedal taxi driver,
which involves regular interaction with the general public, tends to undermine the marked and
moderate limitations assessed by Dr. Knight. Unfortunately, the ALJ did not discuss Plaintiff’s
work as a pedal taxi driver in connection with her review of Dr. Knight’s opinion. Instead, she
referenced this work when discussing Plaintiff’s credibility and the moderate limitations assessed
by Dr. Bricker. AR 21-22. Doing so, however, did not satisfy the ALJ’s requirement to address
the numerous marked limitations that Plaintiff’s treating physician, Dr. Knight, found.
Ultimately, the ALJ did not provide the foregoing reasons or analysis, and this Court is not
permitted to engage in a post hoc analysis. See Haga v. Astrue, 482 F.3d 1205, 1207 (10th Cir.
2007) (stating that the court “may not create or adopt post-hoc rationalizations to support the
ALJ’s decision that are not apparent from the ALJ’s decision itself”).
In sum, the lack of a developed analysis regarding Dr. Knight’s opinion prevents the

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Court from engaging in a meaningful judicial review of the ALJ’s determination that Dr.
Knight’s opinion was entitled to little weight. Remand is therefore appropriate. See Watkins, 350
F.3d at 1300 (stating that a court must remand when it “cannot meaningfully review the ALJ’s
determination absent findings explaining the weight assigned to the treating physician’s
opinion.”).
IV.

CONCLUSION
Based on the foregoing, the Court GRANTS Plaintiff’s Motion (Doc. 19). The Court

reverses the Commissioner’s decision denying Plaintiff benefits and remands this action to the
Commissioner to conduct further proceedings consistent with this Opinion.

___________________________________
UNITED STATES MAGISTRATE JUDGE
Sitting by Consent

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