Baiett v. Social Security Administration

Filing 24

ORDER GRANTING 19 Plaintiff's Motion to Reverse or Remand by Magistrate Judge Gregory J. Fouratt. (sr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
DOUGLAS ANDREW BAIETT,
Plaintiff,
v.

Civ. No. 16-467 GJF

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
ORDER
THIS MATTER is before the Court on Plaintiff’s “Motion to Reverse or Remand the
Administrative Decision” [ECF No. 19] and “Memorandum Brief in Support of Plaintiff’s
Motion to Reverse or Remand the Administrative Agency Decision” [ECF No. 18] (collectively,
“Motion”), 1 filed on February 9, 2017. The Commissioner responded on April 28, 2017. ECF
No. 21. Plaintiff replied on May 8, 2017. ECF No. 22. Having meticulously reviewed the
briefing and the entire record, the Court concludes that Plaintiff’s Motion is well taken and that
the Administrative Law Judge’s (“ALJ’s”) ruling should be REVERSED and REMANDED.
Therefore, and for the further reasons articulated below, the Court will GRANT Plaintiff’s
Motion.
I.

BACKGROUND
Plaintiff was born on January 31, 1962. Administrative R. (“AR”) 32.

He graduated

from high school and attended one year of college. AR 46. Plaintiff then was a journeyman
electrician for almost thirty-five (35) years. AR 46.

1

Here, the Court refers to Plaintiff’s Motion to Remand and Memorandum Brief collectively as a Motion, but
subsequent citations to Plaintiff’s Motion shall refer to the text of Plaintiff’s Memorandum Brief.

1

Plaintiff filed an application for Social Security Disability Insurance (“SSDI”) on
February 21, 2015 [AR 22], alleging disability beginning on February 20, 2015 [AR 46-47], due
to stage three prostate cancer (adenocarcinoma), arthritis of both knees, high blood pressure and
cholesterol, and obesity [AR 75]. The Social Security Administration (“SSA”) denied Plaintiff’s
claim on June 15, 2015, and again upon reconsideration on August 19, 2015. AR 22. Plaintiff
then requested a de novo hearing, which occurred on January 19, 2016, in Albuquerque, New
Mexico, before Administrative Law Judge (“ALJ”) Lillian Richter. AR 22, 34. Plaintiff and
Pamela Bowman, a vocational expert (“VE”), testified during the hearing. AR 22.
On February 16, 2016, the ALJ issued her decision that Plaintiff was not disabled within
the meaning of the Social Security Act (“the Act”), from February 20, 2015, through the date of
her decision. AR 33-34. On March 8, 2016, Plaintiff requested that the Appeals Council review
the ALJ’s decision, which was denied on May 5, 2016. AR 1-4. As a consequence, the ALJ’s
decision became the final decision of the Commissioner. 20 C.F.R. § 422.210(a) (2017).
Plaintiff timely filed his appeal in this Court on May 23, 2016. ECF No. 1.
II.

PLAINTIFF’S CLAIMS
On appeal, Plaintiff raises three issues. First, Plaintiff contends that the ALJ failed to

comply with 20 C.F.R. § 404.1527 by failing to accord controlling weight to the opinion of the
claimant’s treating physicians. Pl.’s Mot. 9, ECF No. 18. Second, Plaintiff argues that the ALJ
erred at step five by propounding and relying upon the response to a hypothetical question that
did not include all of Plaintiff’s severe limitations. Id. Last, Plaintiff asserts that the ALJ erred
in failing to find Claimant disabled as a matter of law because even if he was able to perform a
full range of sedentary work, he would still be disabled under the GRID regulations. Pl.’s Mot.
at 9, 21.

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III.

APPLICABLE LAW
A.

Standard of review

When the Appeals Council denies a claimant’s request for review, the ALJ’s decision
becomes the final decision of the agency. 2 The Court’s review of that final agency decision is
both factual and legal. See 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)) (“The
standard of review in a social security appeal is whether the correct legal standards were applied
and whether the decision is supported by substantial evidence.”)
The factual findings at the administrative level are conclusive “if supported by substantial
evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” 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). An ALJ’s 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.
Substantial evidence does not, however, require a preponderance of the evidence. See 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)). A court should meticulously review the entire record but should neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d
at 1118; Hamlin, 365 F.3d at 1214.
As for the review of the ALJ’s legal decisions, the Court reviews “whether the ALJ
followed the specific rules of law that must be followed in weighing particular types of evidence
2

A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g) (2012), which generally is the
ALJ’s decision, not the Appeals Council’s denial of review. 20 C.F.R. § 404.981 (2017); O’Dell v. Shalala, 44 F.3d
855, 858 (10th Cir. 1994).

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in disability cases.” Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . . that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
Ultimately, if substantial evidence supports the ALJ’s findings and the correct legal
standards were applied, the Commissioner’s decision stands and the plaintiff is not entitled to
relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.
B.

Sequential Evaluation Process

The SSA has devised a five-step sequential evaluation process to determine disability. See
Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4) (2012). At the first
three steps, the ALJ considers the claimant’s current work activity, the medical severity of the
claimant’s impairments, and the requirements of the Listing of Impairments. See 20 C.F.R. §§
404.1520(a)(4); Pt. 404, Subpt. P, App’x 1. If a claimant’s impairments are not equal to one of
those in the Listing of Impairments, then the ALJ proceeds to the first of three phases of step four
and determines the claimant’s RFC. See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e). In
phase two, the ALJ determines the physical and mental demands of the claimant’s past relevant
work, and in the third phase, compares the claimant’s RFC with the functional requirements of his
past relevant work to determine if the claimant is still capable of performing his past work. See
Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(f).

If a claimant is not prevented from

performing his past work, then he is not disabled. 20 C.F.R. §§ 404.1520(f). The claimant bears
the burden of proof on the question of disability for the first four steps. See Bowen v. Yuckert,
482 U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).
If the claimant cannot return to his past work, then the Commissioner bears the burden at
the fifth step of showing that the claimant is nonetheless capable of performing other jobs existing
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in significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also
Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential
evaluation process in detail).
IV.

THE ALJ’S DECISION
The ALJ issued her decision on February 16, 2016. AR 34. At step one, the ALJ

determined that Plaintiff had not engaged in substantial gainful activity since February 20, 2015,
the amended alleged disability onset date. AR 24. At step two, the ALJ determined that Plaintiff
had the following severe impairments: degenerative joint disease of the bilateral knees, right
knee meniscus tear, obesity, hypertension, malignant tumor of the prostate, post-prostatectomy,
and incontinence. AR 24.
At step three, the ALJ found that none of Plaintiff’s impairments, alone or in
combination, met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1. AR 24. The ALJ found that “the medical evidence fails to show that the
degenerative joint disease of [Plaintiff’s] bilateral knees and/or his right knee meniscus tear have
resulted in an inability to ambulate effectively,” and thus Plaintiff’s impairments did not meet or
medically equal 1.02A 3 of the listings. AR 25. The ALJ also noted that the medical evidence
did not show that Plaintiff had an impairment in each of his upper extremities, and thus Plaintiff
failed to meet the requirements of section 1.02B 4 of the listings. AR 25. Additionally, the ALJ

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Listing 1.02A is the “[m]ajor dysfunction of a joint(s)” due to any cause which is characterized by the following:
“gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint
pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings
on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected
joint(s). With: A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in
inability to ambulate effectively, as defined in 1.00B2b[.]” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, part A1, § 1.02A.

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Listing 1.02B is defined the same as Listing 1.02A, except that the major dysfunction of the joint is accompanied
by the “[i]nvolvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand),
resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c[.]” 20 C.F.R. § Pt.
404, Subpt. P, App. 1, part A1, § 1.02B.

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determined that the medical evidence did not show that Plaintiff suffered from any of the
conditions enumerated within section 14.09 of the listings. 5 AR 25. The ALJ did not consider
whether Plaintiff’s remaining severe impairments, other than those concerning his knees, met or
medically equaled the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix
1. AR 24-25.
Because none of Plaintiff’s impairments satisfied an applicable Listing, the ALJ moved
on to step four and assessed Plaintiff’s RFC. AR 26-32. The ALJ found that Plaintiff had the
RFC to:
perform light work as defined in 20 C.F.R. § 404.1567(b). [Plaintiff] can lift,
carry, push, and pull 20 pounds occasionally and 10 pounds frequently; stand
[and/or] walk for six hours in an eight-hour day; and sit for six hours in an eighthour day. [Plaintiff] can occasionally climb ramps and stairs, occasionally
crouch, crawl, stoop, and kneel; and frequently balance. [Plaintiff] can never
climb [ ] ladders, ropers or scaffolds; and can have no exposure to unprotected
heights or moving mechanical parts. Further, [Plaintiff] is unable to operat[e] a
motor vehicle or anything requiring the use of foot controls.
AR 26.
To develop Plaintiff’s RFC, the ALJ relied on two principal grounds. First, the ALJ
found that Plaintiff was not credible, which Plaintiff does not challenge on appeal. AR 26. As
support for her RFC determination, the ALJ determined that “the medical evidence fails to
5

Listing 14.09 is for inflammatory arthritis, which is defined generally, and then contains enumerated disorders for
inflammatory arthritis involving the axial spine and for inflammatory arthritis involving the peripheral joints. 20
C.F.R. § Pt. 404, Subpt. P, App. 1, part A2, § 14.00(D)(6)(a), (b), and (c). Listing 14.09 also discusses what type of
documentation shows a diagnosis of inflammatory arthritis, as well as how the Administrative Law Judge is to
evaluate it under the listings. Id. at §14.00(D)(6)(d) and (e). Specifically, listing-level severity for inflammatory
arthritis, including rheumatoid arthritis, “is shown by an impairment that results in an ‘extreme’ (very serious)
limitation. In 14.09A, the criterion is satisfied with persistent inflammation or deformity in one major peripheral
weight-bearing joint resulting in the inability to ambulate effectively (as defined in 14.00C6) or one major peripheral
joint in each upper extremity resulting in the inability to perform fine and gross movements effectively (as defined
in 14.00C7). In 14.09C1, if you have the required ankylosis (fixation) of your cervical or dorsolumbar spine, we will
find that you have an extreme limitation in your ability to see in front of you, above you, and to the side. Therefore,
inability to ambulate effectively is implicit in 14.09C1, even though you might not require bilateral upper limb
assistance.” Id. at §14.00(D)(6)(e)(i). Section 14.09 also states that “[l]isting-level severity is shown in 14.09B,
14.09C2, and 14.09D by inflammatory arthritis that involves various combinations of complications of one or more
major peripheral joints or other joints, such as inflammation or deformity, extra-articular features, repeated
manifestations, and constitutional symptoms or signs.” Id. at §14.00(D)(6)(e)(ii).

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support [Plaintiff’s] allegation of disabling symptoms and limitations. The record reflects that
[Plaintiff] has continuously received medical treatment for his alleged disabling conditions since
his alleged onset of disability, which has worked generally well to relieve his symptoms.” AR
29.
Second, the ALJ accorded little weight to the opinion of Dr. Satyan Shah, M.D.,
Plaintiff’s treating urologist; very little weight to the opinion of Certified Nurse Practitioner
Leona Herrell, Plaintiff’s primary care provider; and little weight to the opinion of Dr. John
Franco, M.D., Plaintiff’s treating orthopedic surgeon. AR 31-32. The ALJ instead primarily
relied on the opinions of Dr. Jeffrey Glassheim, D.O., the non-treating consultative examiner;
and Dr. Janice Kando, M.D. and Dr. Lawrence Kuo, M.D., the non-examining state agency
medical consultants, in determining Plaintiff’s RFC. AR 31. The ALJ assigned significant
weight to their opinions. AR 31.
A.

Opinion Evidence

The ALJ considered six medical opinions, and the absence of a seventh from Plaintiff’s
oncologist, Dr. Thomas Schroeder, to determine Plaintiff’s RFC.

Because the Court is

remanding this case based on the ALJ’s evaluation of Dr. Franco’s opinion, however, the Court
will not review the other medical opinions at issue in this case.
Dr. John Franco, M.D.
Dr. John Franco is an orthopedic surgeon who has treated Plaintiff since October 2014.
Pl.’s Mot. 10; AR 357. During Plaintiff’s first appointment with Dr. Franco, Dr. Franco noted
that Plaintiff suffered from mild to moderate bilateral knee osteoarthritis. AR 359. During that
same appointment, Plaintiff reported his pain level as a three out of ten, with ten being the most
severe. AR 357. In November 2014, Plaintiff’s pain level had improved to a one, but Dr. Franco

7

did not change his diagnosis of bilateral knee osteoarthritis. AR 355-56. During Plaintiff’s next
appointment in March 2015, Plaintiff reported that his pain level was eight out of ten. AR 360.
Dr. Franco suspected a right knee medial meniscus tear, in addition to the bilateral knee
osteoarthritis, and recommended a Magnetic Resonance Imaging (“MRI”) scan to rule out a
possible meniscus tear. AR 361. In May 2015, an x-ray confirmed the presence of osteoarthritis
in Plaintiff’s knees, which was more pronounced in the left knee. AR 394. A MRI done on
September 3, 2015, confirmed a right knee medial meniscus tear. AR 427. The MRI also
showed moderate and severe chondromalacia in different areas of Plaintiff’s right knee. AR 424.
During a September 15, 2015, appointment with Dr. Franco, Plaintiff reported that his current
pain level was seven out of ten.

AR 423.

During that same appointment, Dr. Franco

recommended that Plaintiff undergo a right knee arthroscopy for partial medial meniscectomy
due to Plaintiff’s mechanical symptoms, chronic inflammation, and pain. AR 424.
Dr. Franco performed surgery on September 30, 2015. AR 417. Surgical findings
confirmed that Plaintiff suffered from chondromalacia of the trochlear groove of the knee and an
acute tear of the posterior horn medial meniscus, both in his right knee. AR 417. During
surgery, Dr. Franco debrided the torn portion of the medial meniscus and also performed a
microfracture in light of his finding that Plaintiff had grade IV chondromalacia. AR 418.
Plaintiff saw Dr. Franco on October 1, 2015 for a post-operative appointment. AR 433. During
this appointment, Dr. Franco found that Plaintiff should permanently avoid flexion type activity
due to the severe arthritis in the trochanteric groove of Plaintiff’s right knee, which “would
eliminate his ability to perform electrical type work or manual labor in the future.” AR 434. Dr.
Franco’s post-operative diagnosis confirmed Plaintiff’s arthritis. AR 417.

8

On October 26, 2015, Dr. Franco evaluated Plaintiff’s functional capacity and completed
an assessment. AR 453. In relevant part, Dr. Franco opined that Plaintiff could sit for six hours
total each day, stand for one hour total in a day, and walk for one hour total in a day. AR 455.
Dr. Franco also opined that Plaintiff required hourly rest breaks of ten to fifteen minutes each
throughout an eight-hour day, but did not explain why. AR 454. Dr. Franco explained that he
was basing his opinion on surgical findings from a right knee arthroscopy he performed on
September 30, 2015. AR 453. Ultimately, Dr. Franco concluded that Plaintiff’s condition had
been consistently severe for twelve months, and he expected the condition to remain permanent.
AR 457.
On January 12, 2016, Dr. Franco repeated his conclusion that Plaintiff suffered from
bilateral knee osteoarthritis with underlying previous meniscus debridement, and stated that
“[g]iven patient’s severity of pain he is unable to bear weight for prolonged periods of time. I
recommended avoiding any manual labor.” AR 481. Dr. Franco’s opinion was consistent with
his conclusion on October 1, 2015, that Plaintiff should avoid manual labor. See AR 434. Dr.
Franco’s January 2016 opinion was also consistent with his functional assessment of Plaintiff in
October 2015, which stated that Plaintiff can sit for six hours per day, stand for one hour per day,
and walk for one hour per day. See AR 455.
The ALJ assigned little weight to Dr. Franco’s October 26, 2015 opinion. AR 32. The
ALJ did so because “it was done following surgery and he placed no limits on when the
claimant’s condition will improve.” AR 32. The ALJ elaborated earlier in her opinion on the
weight she assigned Dr. Franco’s opinion, stating, “To the extent that [Plaintiff] is more impaired
than set forth in the residual functional capacity as a result of the arthroscopic surgery he
underwent on his right knee on September 30, 2015, nothing in the medical evidence of record

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supports a finding that this level of impairment will last, or is expected to last, for a period of
twelve months. In this regard, I do not give much weight to Dr. Franco’s opinion dated October
26, 2015, approximately four weeks post-surgery, that [Plaintiff’s] level of functioning at that
time was permanent.” AR 30.
In discussing the effect of Plaintiff’s knee pain on his ability to work, the ALJ wrote,
“[t]o the extent that [Plaintiff] alleges that he is unable to work due to his knees, I note that the
medical evidence of record demonstrates that [Plaintiff] was able to ambulate with a normal gait
and no assistive device after the alleged onset date.” AR 30 (citing Ex. 1F at 10 (AR 294)).
Exhibit 1F in the administrative record contains records from Valencia Family Health Care,
which Plaintiff visited for ongoing primary care. AR 285-305. Nothing in these records refers to
Plaintiff having a normal gait. There are several references throughout the record to Plaintiff
having a normal gait after February 1, 2015.

E.g., AR 361 (Plaintiff’s March 3, 2015,

appointment with Dr. Franco); AR 390 (Plaintiff’s March 12, 2015, appointment with CNP
Leona Herrell); AR 440 (Plaintiff’s July 13, 2015, appointment with CNP Herrell); AR 424
(Plaintiff’s September 15, 2015, appointment with Dr. Franco). There are also several references
throughout the record to Plaintiff having an antalgic gait after February 1, 2015. E.g., AR 443
(Plaintiff’s April 15, 2015, appointment with CNP Herrell); AR 434 (Plaintiff’s October 1, 2015,
appointment with Dr. Franco); AR 437 (Plaintiff’s October 13, 2015, appointment with CNP
Herrell).
After reviewing the other medical opinions, as well as Plaintiff’s self-reports of his
activities of daily living and the third party function report from Plaintiff’s wife, the ALJ
proceeded to the second phase of step four and found that Plaintiff had past relevant work as an
electrician. AR 30-32. In the third phase of step four, the VE testified that an individual with

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Plaintiff’s RFC would be incapable of performing any of Plaintiff’s past relevant work. AR 32.
As a consequence, the ALJ proceeded to step five.
At step five, the ALJ relied on the testimony of the VE to determine what jobs, if any,
Plaintiff could still perform. AR 32-33. The VE testified that an individual with Plaintiff’s RFC
could perform the jobs of hand polisher, (Dictionary of Occupational Titles) (“DOT”) 6
#709.687-010; assembler, small products, DOT #706.684-022; and mail clerk, DOT #209.687026. AR 33. Based on that testimony, the ALJ concluded that “considering [Plaintiff’s] age,
education, work experience, and residual functional capacity, [Plaintiff] is capable of making a
successful adjustment to other work that exists in significant numbers in the national economy.”
AR 33. Accordingly, the ALJ found that Plaintiff had not been under a disability, as defined by
the Act, from February 20, 2015 through February 16, 2016 7, and denied his claim. AR 33-34.
V.

ANALYSIS
A.

The ALJ’s rejection of Dr. Franco’s temporal restrictions was not supported
by substantial evidence.

Plaintiff’s Motion advances three allegations of error, but the Court need only address the
first. Because this Court is remanding on the basis of the ALJ’s evaluation of Dr. Franco’s
opinion, the Court does not need to address the other appellate issues raised by Plaintiff, nor
must it address the ALJ’s evaluation of other providers’ medical opinions. Because the ALJ
committed legal error and because her opinion is unsupported by substantial evidence, this Court
must remand and reverse the ALJ’s decision for both proper analysis and support.

6

The DOT includes detailed descriptions of jobs (classified by their exertional and skill requirements) that exist in
the national economy. 20 C.F.R. § 220.134 (2017). Regulations require the Commissioner to take administrative
notice of job information provided by the DOT. 20 C.F.R. § 404.1566 (2017).

7

Plaintiff was later found by the Social Security Administration to have been disabled starting on February 17,
2016. Pl.’s Mot, Ex. 1 at 1, ECF No 18. This Court was not provided with any information as to why the SSA
found Plaintiff to be disabled beginning the day after the ALJ had found to the contrary. This sequence of events is,
at the very least, highly unusual and the Court could have benefited from an explanation.

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Plaintiff argues that the ALJ erroneously accorded little weight to Dr. Franco’s opinion.
Pl.’s Mot. at 9. Plaintiff asserts that there is no basis for the ALJ’s conclusion that “nothing in
the medical evidence of record supports a finding that this level of impairment will last, or is
expected to last, for a period of twelve months[.]” Id. at 10 (quoting AR 30). Plaintiff accurately
points out that Dr. Franco expected Plaintiff’s condition to be permanent, which is at odds with
the ALJ’s conclusion otherwise. See Pl.’s Mot. 10; AR 457.
The Commissioner repeats the ALJ’s conclusion that Dr. Franco’s opinion was entitled to
little weight because it was rendered only four weeks after Plaintiff’s right knee arthroscopy and
“did not account for the likelihood that his knee condition would improve post-surgery.” Def.’s
Resp. 11, ECF No. 21. The Commissioner also repeats the ALJ’s erroneous characterization of
the record that nothing indicated that Plaintiff’s impairment would last for twelve months or
longer, and then attempts to defend that position by noting that “the record does not contain any
clinical findings by Dr. Franco that suggest that Plaintiff’s functional abilities would not improve
after undergoing right knee surgery[.]” Id. Indeed, Dr. Franco’s opinion says literally the
opposite, and was premised upon Plaintiff’s bilateral knee osteoarthritis, which is a distinction
that the ALJ and the Commissioner have failed to consider. See AR 434, 481.
The Commissioner argues that Dr. Franco stated four months after Plaintiff’s surgery that
he was “doing okay” without any noted abnormal physical examination findings, Def.’s Resp.
11, but cited to Dr. Shah’s notes on January 12, 2016, that Plaintiff was “doing ok” and “[h]is
urinary frequency and nocturia are manageable with ditropan.” AR 477. Dr. Franco’s notes for
his appointment with Plaintiff on January 12, 2016 - which was approximately three and a half
months after surgery - do not indicate that Plaintiff was “doing okay.” Instead, Dr. Franco wrote
that “[Plaintiff] returns for follow up today for his right knee pain [and] [r]ight knee medial

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meniscus tear. His current pain level, on a scale from 0-10, is 7. He continues to have
numbness, pain with activities, and instability. There was no relief of his symptoms despite
trying physical therapy.” AR 480. Dr. Franco continued, “Given patient’s severity of pain he is
unable to bear weight for prolonged periods of time. I recommended avoiding any manual
labor.” AR 480.
B.

The Treating Physician Rule

Under the treating physician rule, “the Commissioner will generally give greater weight
to the opinions of sources of information who have treated the claimant than of those who have
not.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (citing Langley, 373 F.3d at
1119). See 20 C.F.R. § 404.1527(d)(2) (2017) (defining how the SSA uses medical source
opinions, including treating sources, but reserving the final decision on residual functional
capacity to the Commissioner). 8 In analyzing whether a treating source opinion is entitled to
controlling weight, the ALJ must perform a two-step process. First, the ALJ considers whether
the opinion: (1) is supported by medically acceptable clinical and laboratory diagnostic
techniques, and (2) 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) and Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)). “If the answer to both these questions is ‘yes,’
[the ALJ] must give the opinion controlling weight.” Id. (citation omitted). If the opinion is
deficient in either of these respects, however, it is not to be given controlling weight. Krauser v.
Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011).

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20 C.F.R. § 404.1527 set forth guidelines for the evaluation of opinion evidence for claims filed before March 27,
2017, as the instant claim was. For the evaluation of opinion evidence for claims filed on or after March 27, 2017,
20 C.F.R. § 404.1520c applies. The version of 20 C.F.R. § 404.1527(d)(2) that was in effect on the date that
Plaintiff filed his claim is identical to the most recent version of that portion of the regulation.

13

If the opinion is not entitled to controlling weight, “the ALJ must then consider whether
the opinion should be rejected altogether or assigned some lesser weight.” Pisciotta, 500 F.3d at
1077. This inquiry is governed by its own set of factors, which 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.
Watkins, 350 F.3d at 1301 (quotation omitted). While an ALJ must consider these factors, she
need not expressly discuss each of them in her opinion. Oldham, 509 F.3d at 1258; SSR 06-3p,
2006 WL 2329939, at *5 (Aug. 9, 2006) (“Not every factor for weighing opinion evidence will
apply in every case.”). Rather, “the ALJ must make clear how much weight the opinion is being
given (including whether it is being rejected outright) and give good reasons, tied to the factors
specified in the cited regulations for this particular purpose, for the weight assigned.” Krauser,
638 F.3d at 1330 (citing Watkins, 350 F.3d at 1300–01). Furthermore, the ALJ’s decision must
be “sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for that weight.” Oldham, 509
F.3d at 1258. If this is not done, a remand is required. Watkins, 350 F.3d at 1300.

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C.

The ALJ’s Treating Physician Analysis

Here, the ALJ thoroughly reviewed Plaintiff’s treating history with Dr. Franco and
summarized Dr. Franco’s findings. AR 28-29. The ALJ specifically noted Dr. Franco’s opinion
from October 1, 2015, that “[Plaintiff] should permanently avoid flexion-type work activity due
to the severe arthritis in the trochanteric groove of the right knee, which would eliminate his
ability to perform electrical type work or manual labor in the future.” AR 29 (emphasis added).
The ALJ considered Dr. Franco’s temporal restrictions upon Plaintiff’s functional capacity,
noting that Dr. Franco found that Plaintiff was limited to sitting for two hours at one time and six
hours in a day, standing for one hour at a time and one hour in a day, and walking for one hour at
a time and one hour per day. AR 29. The ALJ also discussed Dr. Franco’s opinion from January
12, 2016, approximately three and a half months after Plaintiff’s operation, that Plaintiff had
“bilateral knee osteoarthritis with underlying previous meniscus debridement,” and that “[g]iven
the severity of the claimant’s pain, Dr. Franco opined that the claimant is unable to bear weight
for prolonged periods of time.” AR 29.
Where the ALJ erred, however, was in failing to make findings with respect to the first
step of the two-step process for evaluating whether to grant a treating physician’s opinion
controlling weight. See Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007). Specifically,
the ALJ failed to consider whether Dr. Franco’s opinion was well-supported by medically
acceptable clinical and laboratory diagnostic techniques and whether the opinion was consistent
with other substantial evidence in the record. Upon this Court’s review, it appears that Dr.
Franco’s opinion was well-supported. After all, Dr. Franco cited to surgical findings to support
his diagnosis of bilateral knee osteoarthritis and a right knee medial meniscus tear. AR 453.
Plaintiff’s x-ray imaging from May 2015 and his MRI from September 2015 confirmed the same

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diagnoses. AR 394, 427. Thus, while the ALJ assigned little weight to Dr. Franco’s opinion, she
does not appear to have made either of the required step one findings to decide whether to assign
controlling weight to Dr. Franco’s opinion.
Perhaps more important, the ALJ also committed legal error by failing to explain why she
rejected Dr. Franco’s temporal restrictions on Plaintiff’s functional capacity.

The only

explanation the ALJ gave with respect to the weight she assigned Dr. Franco’s opinion was that
it was rendered one month after Plaintiff’s surgery, and did not allow for the possibility that
Plaintiff would continue to recover. AR 30. The ALJ erroneously stated that there was nothing
in the medical evidence of record that would support a finding that Plaintiff’s level of
impairment would last for twelve months or longer, even though Dr. Franco stated in his opinion
that Plaintiff’s condition would be permanent. AR 30; 457. Without expressly addressing the
temporal restrictions set forth in Dr. Franco’s opinion, the ALJ implicitly rejected them and
relied on the non-treating physicians’ opinions to conclude that Plaintiff was capable of “light
work.” AR 26-32. A job is included in the light work category when “it requires a good deal of
walking or standing, or when it involves sitting most of the time with some pushing and pulling
of arm or leg controls.” 20 C.F.R. § 404.1567(b) (2017). The ALJ’s RFC stated that Plaintiff is
unable to operate anything requiring the use of foot controls, which appears to eliminate a “light
work” job that would involve sitting most of the time with some manipulation of leg controls.
See AR 26. However, Dr. Franco was clear that Plaintiff could not bear weight for prolonged
periods of time, even four months after surgery, and that he did not expect that condition to
improve. AR 457, 481. The ALJ did not explain why she disregarded that portion of Dr.
Franco’s opinion and instead found that Plaintiff could stand or walk for six hours in an eight
hour day.

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This Court cannot discern why the ALJ rejected the temporal restrictions in Dr. Franco’s
opinion and, therefore, cannot perform meaningful judicial review. It appears that the ALJ
discounted Dr. Franco’s temporal restrictions because they were rendered too soon after he
operated on Plaintiff’s torn meniscus. See AR 30. But if that is what the ALJ did, then she
appears to have confused the limited nature of the surgery with the broader scope of Dr. Franco’s
opinion. The surgery repaired (or at least sought to repair) only the torn meniscus. AR 417-19.
The surgery did nothing to address, much less ameliorate, the causes, symptoms, and limitations
associated with Plaintiff’s bilateral osteoarthritis. AR 417-19. Dr. Franco’s opinion following
surgery was not restricted to the condition and functioning of Plaintiff’s repaired meniscus, but
also addressed the limitations caused by the arguably more serious condition of bilateral
osteoarthritis. AR 455-57, 481. The ALJ’s opinion does not appear to have appreciated this
distinction.
The particular question to which Dr. Franco answered “Permanent” appeared on the last
page of Exhibit 19F. AR 457. It read: “How long do you expect [Plaintiff’s] condition to be at
this severity?” The ALJ objected to this opinion because - at least in her view - Dr. Franco had
not allowed sufficient time for the surgical repair to mature. See AR 30, 32. But it is worth
repeating that Dr. Franco’s opinion was broader than just the compromised meniscus. The very
same exhibit made clear that Dr. Franco had diagnosed Plaintiff not just with a meniscus tear, but
also with bilateral knee osteoarthritis.

AR 453.

Nothing about the surgery addressed the

osteoarthritis, see AR 417-19, so it did not make any difference whether Dr. Franco waited four
weeks or four years after surgery to render his opinion about the duration of Plaintiff’s combined
knee condition. This is a nuance the ALJ’s opinion appears to have overlooked.

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Last, the ALJ’s reasoning for why she assigned little weight to Dr. Franco’s opinion is
not supported by substantial evidence. Although there is clear evidence in the record that
Plaintiff’s knee impairments were expected to be permanent [AR 453-57], which the ALJ
acknowledged in her opinion [AR 29], the ALJ nonetheless found otherwise and used that
finding to support her decision to grant little weight to Dr. Franco’s opinion. AR 30. Her
evaluation is not supported by substantial evidence.
Given the centrality of Plaintiff’s knee condition to his overall disability application, and
given the ALJ’s failure to sufficiently justify and explain why she was rejecting the temporal
restrictions in Dr. Franco’s opinion as Plaintiff’s treating physician, and given the ALJ’s legal
error in evaluating Dr. Franco’s opinion, the Court concludes that remand is in order. On
remand, the ALJ should specifically address Dr. Franco’s opinion concerning Plaintiff’s
temporal restrictions.

If the ALJ continues to disagree with that opinion, the ALJ should

specifically explain why. If, however, the ALJ accords Dr. Franco’s opinion about the temporal
restrictions controlling deference and revises Plaintiff’s RFC accordingly, the ALJ should then
evaluate whether Plaintiff could have performed sedentary work during the period of disputed
disability that is the subject matter of this particular appeal.
VI.

CONCLUSION
For the reasons articulated above, the Court concludes that the ALJ’s analysis of Dr.

Franco’s opinion was not supported by substantial evidence and that the ALJ did not correctly
apply the proper legal standards. Because proper consideration of Dr. Franco’s opinion may
render moot the other errors alleged by Plaintiff, the Court need not address them at this time.
IT IS THEREFORE ORDERED that Plaintiff’s “Motion to Reverse or Remand the
Administrative Decision” [ECF No. 19] is GRANTED.

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IT IS FURTHER ORDERED that the Commissioner’s final decision is REVERSED
and that the instant cause is REMANDED for further review consistent with this opinion.
IT IS SO ORDERED.

________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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