Tsosie v. Social Security Administration

Filing 24

ORDER by Magistrate Judge Laura Fashing granting 17 Motion to Remand to Agency. (ccp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LEROY TSOSIE,
Plaintiff,
v.

1:16-cv-00503-LF

NANCY A. BERRYHILL, 1
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on plaintiff Leroy Tsosie’s Motion to Reverse
and Remand to Agency for Rehearing with Supporting Memorandum (Doc. 17), which was fully
briefed February 13, 2017. See Docs. 21, 22, 23. The parties consented to my entering final
judgment in this case. Docs. 3, 6, 16. Having meticulously reviewed the entire record and being
fully advised in the premises, I find that the Administrative Law Judge (“ALJ”) failed to properly
weigh the March 25, 2014 medical opinion of treating physician Dr. Randolph L. Copeland. I
therefore GRANT Mr. Tsosie’s motion and remand this case to the Commissioner for further
proceedings consistent with this opinion.
I.

Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final

decision 2 is supported by substantial evidence and whether the correct legal standards were

1

Nancy A. Berryhill, the new Acting Commissioner of Social Security, is automatically
substituted for her predecessor, Acting Commissioner Carolyn W. Colvin, as the defendant in
this suit. FED. R. CIV. P. 25(d).

applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). 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). “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 and brackets omitted). The Court must meticulously review the entire record,
but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118. A 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.” Id. While the Court may not reweigh the evidence or try the
issues de novo, its examination of the record as a whole must include “anything that may
undercut or detract from the ALJ’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)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

Applicable Law and Sequential Evaluation Process
To qualify for disability benefits, a claimant must establish that he or she is unable “to

engage in any substantial gainful activity by reason of any medically determinable physical or
2

The 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. § 416.1481, as it is in this case.
2

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);
20 C.F.R. §§ 404.1505(a), 416.905(a).
When considering a disability application, the Commissioner is required to use a fivestep sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation process, the claimant must show:
(1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant 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 (3) the impairment(s) either meet or equal one of the
Listings 3 of presumptively disabling impairments; or (4) the claimant is unable to perform his or
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 1260–61. If the claimant cannot show that his or her impairment meets or equals a
Listing but proves that he or she is unable to perform his or her “past relevant work,” the burden
of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform
other work in the national economy, considering the claimant’s residual functional capacity
(“RFC”), age, education, and work experience. Id.
III.

Procedural History
Mr. Tsosie was born in 1962, earned his GED in 1993, and has past relevant work as a

construction worker and construction framer. AR 20, 44, 219, 266–67. 4 Mr. Tsosie filed
applications for supplemental security income and disability insurance benefits on August 26,
2011—alleging disability since January 1, 2011 due to a broken left ankle. AR 219–26, 227–30,
3

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

4

Documents 13-1 through 13-20 comprise the sealed Administrative Record (“AR”). When
citing the record, the Court cites to the AR’s internal pagination in the lower right-hand corner of
each page, rather than to the CM/ECF document number and page.
3

266. The Social Security Administration (“SSA”) denied his claims initially on December 2,
2011. AR 80–84. The SSA denied his claims on reconsideration in two undated letters. AR 88–
94. Mr. Tsosie requested a hearing before an ALJ. AR 95–98. On January 18, 2013, Dr.
Randolph Copeland diagnosed Mr. Tsosie with degenerative disc disease. AR 452. On May 17,
2013, ALJ John Morris held a hearing. AR 29–33. Mr. Tsosie asked for a continuance to allow
his representative additional time to prepare, which ALJ Morris granted. AR 32. On July 16,
2014, ALJ Donna Montano held a hearing. AR 34–56. ALJ Montano issued her unfavorable
decision on October 31, 2014. AR 7–26.
The ALJ found that Mr. Tsosie met the insured status requirements of the Social Security
Act through September 30, 2013. AR 12. At step one, the ALJ found that Mr. Tsosie had not
engaged in substantial, gainful activity since January 1, 2011. Id. At step two, the ALJ found
that Mr. Tsosie suffered from the following severe impairments: status-post left ankle fracture
and degenerative disc disease of the lumbar spine. Id. At step three, the ALJ found that neither
of Mr. Tsosie’s impairments, alone or in combination, met or medically equaled a Listing. AR
13. Because the ALJ found that Mr. Tsosie’s impairments did not meet a Listing, the ALJ
assessed Mr. Tsosie’s RFC. AR 14–19. The ALJ found that Mr. Tsosie had the RFC to perform
light work, except that he is limited to occasional climbing and crouching. AR 14.
At step four, the ALJ concluded that Mr. Tsosie was unable to perform his past relevant
work as a construction worker or construction framer. AR 20. At step five, the ALJ found that
Mr. Tsosie could perform unskilled, light jobs that exist in significant numbers in the national
economy—such as hand cleaner/polisher, small products assembler, and laundry folder. AR 20–
21. Consequently, the ALJ found Mr. Tsosie was not disabled. AR 21. On December 15, 2014,
Mr. Tsosie requested review of the ALJ’s unfavorable decision by the Appeals Council. AR 6.

4

On March 24, 2016, the Appeals Council denied the request for review. AR 1–5. Mr. Tsosie
timely filed his appeal to this Court on May 31, 2016. Doc. 1. 5
IV.

Mr. Tsosie’s Claim
Mr. Tsosie raises only one argument for reversing and remanding this case: (1) the ALJ

committed legal error in failing to apply the treating physician rule to the opinion evidence from
Rudolph L. Copeland, M.D. Doc. 17 at 7. The Commissioner argues in response that Mr. Tsosie
is simply asking the Court to reweigh the evidence, and that because a reasonable person could
agree with the ALJ’s decision, the Court should affirm it. Doc. 21 at 1–2. Because I agree that
the ALJ erred in analyzing the March 25, 2014 opinion of treating orthopedic surgeon Dr.
Randolph Copeland, I grant Mr. Tsosie’s motion to remand to give the ALJ an opportunity to
remedy her errors.
VI.

Analysis
A. Relevant Law
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

5

A claimant has 60 days to file an appeal. The 60 days begins running five days after the
decision is mailed. 20 C.F.R. § 416.1481; see also AR 2. In this case, 65 days after March 24,
2016 was Saturday, May 28, 2016. The Court was closed on Monday, May 30, 2016 for
Memorial Day. Thus, under FED. R. CIV. P. 6(a)(1)(3)(A), plaintiff had until May 31, 2016 to
file his appeal.
5

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
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 (quoting 20 C.F.R. § 404.1527(d)(2) and citing SSR 96-2p, 1996 WL 374188,
at *5; Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003)).
It is not unusual for a single treating source to provide medical opinions
about several issues; for example, at least one diagnosis, a prognosis, and an
opinion about what the individual can still do. Although it is not necessary in
every case to evaluate each treating source medical opinion separately,
adjudicators must always be aware that one or more of the opinions may be
controlling while others may not. Adjudicators must use judgment based on the
facts of each case in determining whether, and the extent to which, it is necessary
to address separately each medical opinion from a single source.
SSR 96-2P (S.S.A. July 2, 1996), 1996 WL 374188, at *2.
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:
I.
II.

Examining relationship: more weight is given to the opinion of a source
who has examined the claimant than to one who has not;
Treatment relationship: more weight is given to the opinion of a source
who has treated the claimant than to one who has not; more weight is given to
the opinion of a source who has treated the claimant for a long time over
several visits and who has extensive knowledge about the claimant’s
impairment(s);

6

III.

IV.
V.
VI.

Supportability: more weight is given to a medical source opinion which is
supported by relevant evidence (such as laboratory findings and medical
signs), and to opinions supported by good explanations;
Consistency: the more consistent the opinion is with the record as a whole,
the more weight it should be given;
Specialization: more weight is given to the opinion of a specialist giving an
opinion in the area of his/her specialty; and
Other factors: any other factors that tend to contradict or support an opinion.

See 20 C.F.R. §§ 404.1527(c)(1)–(6), 416.927(c)(1)–(6); see also Oldham v. Astrue, 509 F.3d
1254, 1258 (10th Cir. 2007); Watkins, 350 F.3d at 1301. As the first two factors make clear,
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.
The ALJ need not explicitly consider and apply each and every factor to each opinion.
Oldham, 509 F.3d at 1258. “[N]ot every factor for weighing opinion evidence will apply in
every case.” Id. (quoting SSR 06-03p, 2006 WL 2329939, at *5 (Aug. 9, 2006)). However, “the
record must reflect that the ALJ considered every factor in the weight calculation.” Andersen v.
Astrue, 319 F. App’x 712, 718 (10th Cir. 2009) (unpublished). In addition, 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 v. Astrue, 638 F.3d 1324, 1330 (10th Cir.
2011) (citing Watkins, 350 F.3d at 1300–01).
“Explicit findings properly tied to each step of the prescribed analysis facilitate
meaningful judicial review” and are required to avoid remand. Chrismon v. Colvin, 531 F.
App’x 893, 901 (10th Cir. 2013) (unpublished); see also Robinson v. Barnhart, 366 F.3d 1078,
1083 (10th Cir. 2004) (finding error where “[a]lthough it [was] obvious from the ALJ’s decision
that he did not give [the treating source’s] opinion controlling weight, the ALJ never expressly

7

stated that he was not affording it controlling weight, nor did he articulate a legitimate reason for
not doing so.”).
B. Relevant Medical History
Dr. Copeland treated Mr. Tsosie for nearly four years. See AR 328 (first visit on July 19,
2011), 490 (most recent documented visit on May 22, 2015). During this time, Mr. Tsosie’s
diagnoses and impairments evolved, as did his complaints of pain. Mr. Tsosie first saw Dr.
Copeland on July 19, 2011 for a left ankle fracture. AR 328–29. Dr. Copeland saw Mr. Tsosie
in the orthopedic clinic for follow up on July 22, 2011, and placed him in a non-weight-bearing
short leg cast for six weeks. AR 319. After the cast was removed, Dr. Copeland gave Mr.
Tsosie an air cast splint. AR 305, 307. Mr. Tsosie initially reported that his pain was improving,
AR 314, but he also reported that “after a day on his feet or excessive walking, his left ankle
[would] swell and become painful,” AR 302. On October 31, 2011, Gray P. Shaneberger, a
physician’s assistant working for Dr. Copeland, stated that Mr. Tsosie could “resume normal
work activities without restrictions.” AR 352.
On April 18, 2012, however, Dr. Copeland diagnosed Mr. Tsosie with tenosynovitis of
the left ankle. 6 AR 348. Dr. Copeland noted that Mr. Tsosie “was steadily improving but has
developed some persistent pain around the lateral aspect of the joint.” AR 348 (emphasis
added). Dr. Copeland noted that Mr. Tsosie reported continued discomfort with full weight
bearing, swelling with long-distance walking, and the ability to walk only about a quarter of a
mile before he needed to rest. AR 348–49.

6

Tenosynovitis is “inflammation of the lining of the sheath that surrounds a tendon (the cord that
joins muscle to bone).” https://medlineplus.gov/ency/article/001242.htm (last visited August 14,
2017).
8

On July 10, 2012, state agency medical consultant Eileen Brady, M.D. evaluated Mr.
Tsosie’s claims on reconsideration. AR 62–70, 71–79. The only medically determinable
impairment Dr. Brady considered was Mr. Tsosie’s left ankle fracture. AR 65, 74. Dr. Brady
reviewed Mr. Tsosie’s medical records through the April 18, 2012 appointment with Dr.
Copeland. AR 64, 73. Based only on the limitations caused by his left ankle, and only on the
medical treatment/opinions through April 18, 2012, Dr. Brady found that Mr. Tsosie had the
following exertional physical RFC: the ability to occasionally lift and/or carry up to 20 pounds,
frequently lift and/or carry 10 pounds, stand/walk (with normal breaks) 6 hours in an 8-hour
workday, and sit (with normal breaks) 6 hours in an 8 hour workday. AR 66–67, 75–76. Dr.
Brady’s exertional RFC is compatible with the regulatory physical exertion requirements for
light work. 7 Due to decreased range of motion in his ankle, Dr. Brady also found Mr. Tsosie had
some postural limitations—limiting him to occasional crouching, and occasional climbing of
ladders, ropes, and scaffolds. AR 67, 76.
On January 18, 2013, Mr. Tsosie returned to Dr. Copeland, this time complaining of
lumbar spine pain, which he described as extending to both sides in both the upper lumbar and
lower thoracic region, at a pain level of 5 out of 10. AR 453. Dr. Copeland physically examined
Mr. Tsosie and observed that he stood stooped forward, and that he had both midline and
paraspinous tenderness. Id. Dr. Copeland noted that Mr. Tsosie had no palpable defects, normal
7

The physical exertion requirements for light work require
lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this 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. To be considered capable of performing a full or wide range of
light work, you must have the ability to do substantially all of these activities.

20 C.F.R. §§ 404.1567(b), 416.967(b).
9

motor strength, and no loss of touch sensation. Id. He noted that “[s]traight leg raise testing
[was] negative bilateral for any lower limb pain although back pain is produced at approximately
70 [degrees] flexion bilateral.” Id. 8 Dr. Copeland ordered a CT scan of Mr. Tsosie’s thoracic
and lumbar spine, which revealed “mild compression deformity of T12 with some anterior
wedging,” “significant disc degeneration and posterior disk osteophyte complex” resulting in
“mild central canal stenosis” at L1-L2, and “posterior disk protrusion resulting in mild spinal
canal narrowing” at L5-S1. AR 455. The CT scan also revealed “moderate bilateral
neuralfrominal [sic] stenosis 9 at T9 and T10” and “moderate bilateral neural trauma stenoses at
L1-L2 and L5-S1.” AR 455. Dr. Copeland diagnosed Mr. Tsosie with symptomatic posttraumatic kyphosis 10 (acquired) with possible instability at the L1-2 level, and also with
degeneration of the lumbosacral intervertebral disc. AR 452.
On April 23, 2013, Mr. Tsosie saw Dr. Copeland for both his foot pain and his lower
back pain, reporting a pain level of 6 out of 10. AR 446. Dr. Copeland physically examined Mr.
Tsosie, and his exam findings were nearly identical to those of his January 18, 2013 exam, with

8

“The Straight Leg Raise (SLR) test is a neurodynamic test. Neurodynamic tests check the
mechanical movement of the neurological tissues as well as their sensitivity to mechanical stress
or compression.” https://www.physio-pedia.com/Straight_Leg_Raise_Test (last visited on Aug.
24, 2017). “If symptoms are primarily back pain, it is most likely the result of a disc herniation
applying pressure on the anterior theca of the spinal cord, or the pathology causing the pressure
is more central. ‘Back pain only’ patients who have a disc prolapse have smaller, more central
prolapses. If pain is primarily in the leg, it is more likely that the pathology causing the pressure
on neurological tissue(s) is more lateral.” Id.
9

“Spinal stenosis is narrowing of the spinal column that causes pressure on the spinal cord, or
narrowing of the openings (called neural foramina) where spinal nerves leave the spinal
column.” https://medlineplus.gov/ency/article/000441.htm (last visited on Sept. 11, 2017).
10

Kyphosis is a curving of the spine that causes a bowing or rounding of the back, leading to a
hunchback or slouching posture. It is caused by the wedging together of several bones of the
spine (vertebrae) in a row. https://medlineplus.gov/ency/article/001240.htm (last visited on Aug.
22, 2017). The ALJ did not discuss Mr. Tsosie’s kyphosis at step two, or state whether she
found it to be a severe impairment.
10

the exception of the straight leg raise testing producing back pain at 80 degrees of flexion and
only on the left during this exam. AR 446. Dr. Copeland’s medical interventions included
observation, bracing, and physical therapy. AR 445. Dr. Copeland limited Mr. Tsosie to “[l]ight
duty” and advised him to “[l]imit lifting.” Id.
On June 14, 2013, Mr. Tsosie was treated in the emergency room of Gallup Indian
Medical Center, after being found unconscious and intoxicated, with a laceration to the back of
his head. AR 430–43.
On July 23, 2013, Mr. Tsosie saw Dr. Copeland for follow up on his back pain, which he
stated was constant and was 5 out of 10 on the pain scale. AR 426. Dr. Copeland physically
examined Mr. Tsosie, and his exam findings were similar to his previous exams, with the
exception of the straight leg test producing back pain at 90 degrees of flexion bilaterally. AR
427. Dr. Copeland, however, entered new medical interventions: “Symptomatic management
with muscle relaxants and analgesics. PT consults for brace and also spinal exercises rewritten.” AR 425. Dr. Copeland prescribed Mr. Tsosie diazepam and acetaminophen with
codeine. Id. Dr. Copeland referred Mr. Tsosie to see a physical therapist, who fitted him with a
lumbosacral brace to address his assessed “difficulty in walking.” AR 423.
On October 15, 2013, Mr. Tsosie saw Dr. Copeland for follow up on his lower back pain,
and bilateral pain in his shoulders. AR 412. He reported a pain level of 7 out of 10. Id. Dr.
Copeland conducted a physical exam and noted that Mr. Tsosie had “tenderness in the superior
trapezius muscles bilaterally which is aggravated some by neck ROM but not radicular into the
upper limbs. Strength seems normal in the upper limbs and no[ ] loss of sensation.” AR 412.
The rest of Dr. Copeland’s exam findings were identical to his July 23, 2013 findings. Id.

11

On March 25, 2014, Mr. Tsosie saw Dr. Copeland for chronic lower back pain and
muscle spasms, and for “pain in his posterior lower neck area which radiates out into the
trapezius muscle,” which he reported had recently worsened. AR 467. Dr. Copeland conducted
a physical exam and noted
tenderness and muscle spasm in the lumbosacral region bilaterally which extends
down to the sacrum. There is muscle spasm dressing in the same region. His
range of motion is about 15 [degrees] bending laterally both right and left.
Extension is only 5 [degrees] and flexion about 60 [degrees]. The neck is tender
in the paraspinous muscles of the lower half of the neck and his tenderness
extending out into the trapezius muscle almost to the shoulder. Some muscle
tightness is noted in this region. The range of motion of the neck is full and range
of motion does not seem[ ] to greatly aggravate the symptoms. Strength in the
upper limbs appears to be normal. [There] is no loss of sensation on the current
exam to touch testing.
AR 467. At this visit, Dr. Copeland prescribed a lumbosacral orthosis, described as “a high
brace extending up to proximally the mid thoracic area down to the sacrum.” AR 470; see also
AR 463. After this visit, Dr. Copeland noted that Mr. Tsosie had the following limitations:
CAN RESUME MODIFIED OCCUPATION: 25-Mar-2014
Patient is only suited for very light work due to back and neck pain.
* No pushing, pulling, or lifting greater than 20 lbs.
* No prolonged standing or walking.
* No prolonged bending, stooping, twisting, s[i]itting, or driving.
* No overhead lifting activities
* No running, jumping, climbing, squatting, hunching, crawling, or twisting.
AR 464.
Dr. Copeland continued to treat Mr. Tsosie after the ALJ issued her decision on October
31, 2014, and his condition continued to deteriorate. Cervical spine x-rays on April 24, 2014
showed
a curve in the cervical and upper dorsal regions of the spine in the frontal
projection[;] [n]arrowing of the C5-C6 and C6-C7 interspaces with
anterior osteophyte formation and mild posterior osteophyte formation at
both levels. There is some cervical-dorsal region apophyseal joint
degenerative changes suspected.

12

AR 504. In an assessment dated May 22, 2015, Dr. Copeland diagnosed Mr. Tsosie with the
following: degeneration of the intervertebral disc, cervical spine; osteoarthritis of the spine, both
lumbar and cervical; bilateral trochanteric bursitis and chronic hip extensor strain; degeneration
of the intervertebral disc, lumbar; and symptomatic kyphosis of the thoracic spine. AR 492. Dr.
Copeland stated that Mr. Tsosie has “moderately severe spinal disease complicated by limited
coping mechanisms.” AR 492. Dr. Copeland also reiterated on March 26, 2015 that Mr. Tsosie
was “[o]nly suited for very light activity due to back and neck pain.” AR 509. 11
C. The ALJ failed to conduct a proper treating physician analysis.
Here, the ALJ committed legal error in the first step of the treating physician analysis—
determining “whether it is conclusive, i.e., is to be accorded ‘controlling weight,’ on the matter
to which it relates.” Krauser, 638 F.3d at 1330. The ALJ did not analyze whether Dr.
Copeland’s April 23, 2013 opinion limiting Mr. Tsosie to “light duty” with limited lifting was
entitled to controlling weight. Nor did the ALJ analyze whether Dr. Copeland’s March 25, 2014
opinion limiting Mr. Tsosie to “very light work” due to back and neck pain was entitled to

11

After the ALJ issued her decision, Mr. Tsosie requested review by the Appeals Council, and
submitted medical records from July 23, 2014 through July 13, 2015. AR 479. New evidence
submitted to the Appeals Council becomes a part of the administrative record for the purposes of
evaluating the Commissioner’s decision for substantial evidence. Threet v. Barnhart, 353 F.3d
1185, 1191 (10th Cir. 2003). The regulations specifically require the Appeals Council to
consider evidence submitted with a request for review if the additional evidence is (1) new, (2)
material, and (3) related to the period on or before the date of the ALJ’s decision. 20 C.F.R. §
404.970 (b); Threet, 353 F.3d at 1191. Mr. Tsosie does not challenge the manner in which the
Appeals Council addressed the newly submitted evidence. The Appeals Council accepted the
evidence and made it part of the record. AR 4. Although not definitively resolved by the Tenth
Circuit, Krauser v. Astrue suggests that “when the Appeals Council accepts additional evidence,
that is ‘an implicit determination [that it is] . . . qualifying new evidence,’ requiring the Appeals
Council to consider it and this court to include it in our review of the ALJ’s decision, without
separate consideration of the requirements for qualification.” Krauser v. Astrue, 638 F.3d 1324,
1328 (10th Cir. 2011). Neither party challenges the addition of this evidence to the record.
13

controlling weight. Indeed, there is no indication that the ALJ applied the treating physician rule
to either of Dr. Copeland’s opinions. This is legal error.
First, the ALJ did not analyze whether Dr. Copeland’s April 23, 2013 opinion was
entitled to controlling weight. Instead, the ALJ merely stated that she gave Dr. Copeland’s April
23, 2013 opinion—which released claimant to light duty with limited lifting—significant weight
“since it is consistent with the record as a whole, including the objective medical findings and
the claimant’s medical treatment.” AR 16–17. The ALJ appears to have weighed the July 10,
2012 opinion of Dr. Brady—a non-treating/non-examining consultant, see AR 62–79—in the
same manner. The ALJ gave Dr. Brady’s opinion “significant weight” because it was
“consistent with the record as a whole, including the claimant’s treatment records and his
medical treatment.” AR 15. There is nothing in the ALJ’s opinion indicating that she analyzed
Dr. Copeland’s April 23, 2013 opinion under the treating physician rule, or whether it was
entitled to controlling weight. Instead, the ALJ weighed Dr. Copeland’s April 23, 2013 opinion
using the same rubric she applied to the other medical opinions. See 20 C.F.R.
§§ 404.1527(c)(1)–(6), 416.927(c)(1)–(6) (listing supportability and consistency as factors used
to analyze all medical opinions). Plaintiff does not argue that the ALJ erred in weighing Dr.
Copeland’s April 23, 2013 opinion, and this error is likely harmless. The Court only notes the
ALJ’s failure to apply the treating physician rule to this opinion to illustrate that the ALJ failed
to apply the treating physician rule to any of Dr. Copeland’s opinions.
Second, and more importantly, the ALJ failed to analyze whether Dr. Copeland’s March
25, 2014 opinion was entitled to controlling weight. In assessing Dr. Copeland’s March 25,
2014 opinion, the ALJ stated the following:
Dr. Copeland opined on March 25, 2014 that the claimant is suited for “very light
work” due to back and neck pain. He concluded that the claimant should perform

14

no pushing, pulling, or lifting greater than 20 pounds; no prolonged standing or
walking; no prolonged bending, stooping, twisting, sitting, or driving; no
overhead lifting activities; and no running, jumping, climbing, squatting,
hunching, crawling, or twisting (Exhibit 14-F, p.4).
I give Dr. Copeland’s assessment of a 20-pound lifting, pushing, and pulling
limitation, significant weight, since it is consistent with the record as a whole,
including the objective medical findings, the prior opinions of Dr. Copeland and
the State agency medical consultant, and the claimant’s medical treatment.
However, I give limited weight to his conclusions that the claimant can perform
no prolonged standing or walking; no climbing, squatting, crawling, or twisting;
and no overhead reaching. I determine that the claimant’s limitation on standing
and walking can be accommodated within the normal breaks (morning, lunch, and
afternoon) in an eight-hour workday. Dr. Copeland’s opinion is inconsistent with
his earlier opinion that the claimant can perform “light duty” with limitations only
on lifting (Exhibit 12-F p.37). In addition, his opinion is inconsistent with
findings of negative straight-leg raising and normal sensory and motor function.
Moreover, Mr. Tsosie has not consistently been compliant with medications,
physical therapy, or use of his back brace.
AR 18.
The Commissioner argues that it was enough for the ALJ to “implicitly” decline to give
Dr. Copeland’s March 25, 2014 opinion controlling weight. Doc. 21 at 8. I disagree. Unlike the
case on which the Commissioner relies, the Court cannot “tell from the decision that the ALJ
declined to give controlling weight to [the treating physician’s] opinion.” Mays v. Colvin, 739
F.3d 569, 575 (2014). While the ALJ did discuss the consistency of Dr. Copeland’s March 25,
2014 opinion, consistency is a factor used to weigh all medical opinions. See 20 C.F.R.
§§ 404.1527(c)(4), 416.927(c)(4). Even if the Court were to agree that the ALJ implicitly
declined to give Dr. Copeland’s March 25, 2014 opinion controlling weight, there is no
indication that the ALJ then applied the factors listed in the regulations to determine whether Dr.
Copeland’s opinion should be rejected altogether or assigned some lesser weight. The Court
simply does not know whether the ALJ considered the lengthy examining and treating
relationship between Mr. Tsosie and Dr. Copeland, the supportability of Dr. Copeland’s

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opinions, or Dr. Copeland’s specialty, among other factors, in deciding to give “limited weight”
to aspects of Dr. Copeland’s March 25, 2014 opinion. See 20 C.F.R. §§ 404.1527(c)(1)–(6),
416.927(c)(1)–(6). 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.
“Explicit findings properly tied to each step of the prescribed analysis facilitate meaningful
judicial review” and are required to avoid remand. Chrismon v. Colvin, 531 F. App’x at 901
(10th Cir. 2013) (unpublished). Remand is therefore appropriate.
D. The ALJ’s decision to give Dr. Copeland’s March 25, 2014 opinion
less than controlling weight is not supported by substantial evidence.
Even if the Court could determine that the ALJ implicitly declined to give Dr. Copeland’s
March 25, 2014 opinion less than controlling weight, remand still is required because the ALJ
failed to support her decision with substantial evidence. To give Dr. Copeland’s opinion
anything less than controlling weight, the ALJ was required to 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 evidence” in the
record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The Commissioner argues that the ALJ
rejected Dr. Copeland’s March 25, 2014 opinion because it was not well supported and was
inconsistent with the objective evidence. Doc. 21 at 9. I disagree. The ALJ did not analyze
whether Dr. Copeland’s March 25, 2014 opinion was well-supported by medically acceptable
clinical and laboratory diagnostic techniques. The ALJ noted only the following purported
inconsistencies:
Dr. Copeland’s opinion is inconsistent with his earlier opinion that the claimant
can perform “light duty” with limitations only on lifting (Exhibit 12-F p.37). In
addition, his opinion is inconsistent with findings of negative straight-leg raising
and normal sensory and motor function. Moreover, Mr. Tsosie has not

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consistently been compliant with medications, physical therapy, or use of his back
brace.
AR 18. However, for the reasons discussed below, these purported inconsistencies do not
constitute substantial evidence.
Although the ALJ discounted Dr. Copeland’s March 25, 2014 opinion on the basis that
the opinion is inconsistent with his earlier April 23, 2013 opinion, substantial evidence does not
support this assertion. The ALJ relied on the opinion of Dr. Brady and on Dr. Copeland’s April
23, 2013 opinion in determining that Mr. Tsosie had the RFC to “perform light work, except that
he is limited to occasional climbing and crouching.” AR 16. The RFC the ALJ adopted is
identical to Dr. Brady’s RFC assessment of July 10, 2012. Dr. Brady, however, only addressed
the limitations caused by Mr. Tsosie’s ankle injury; she completed her assessment before Mr.
Tsosie was diagnosed with degenerative disc disease of the lumbar spine. In contrast, the ALJ
found at step two that Mr. Tsosie had two medically determinable impairments—status-post left
ankle fracture and degenerative disc disease of the lumbar spine—and “in assessing the
claimant’s RFC, the ALJ must consider the combined effect of all of the claimant’s medically
determinable impairments, whether severe or not severe.” Wells v. Colvin, 727 F.3d 1061, 1065
(10th Cir. 2013) (emphasis in original) (citing 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2)).
Further, the ALJ’s assertion that Dr. Copeland’s March 25, 2014 assessment is
“inconsistent” with his April 23, 2013 assessment is an argument based on the logical fallacy of
false equivalence. Mr. Tsosie’s condition was not static, and his pain level and medical
diagnoses changed throughout the course of his treatment. Dr. Copeland issued his April 23,
2013 assessment, to which the ALJ gave significant weight, only three months after Mr. Tsosie
first complained of lower back pain, and well before he developed chronic neck and shoulder
pain, and muscle spasms. See AR 412, 464–69. In relying on Dr. Brady’s July 10, 2012

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assessment and Dr. Copeland’s April 23, 2013 assessment, the ALJ failed to consider the
progression of Mr. Tsosie’s diagnoses and treatment. See Harris v. Sec’y of Health & Human
Servs., 821 F.2d 541, 544 (10th Cir. 1987) (finding “[t]he ALJ was not justified in discounting
the views of the treating physician as to the claimant’s deteriorating condition and instead relying
on the treating physician’s earlier expectation that the claimant would be able to return to work
that did not require heavy lifting.”)
Dr. Copeland issued his March 25, 2014 assessment after treating Mr. Tsosie’s chronic
lower back pain for approximately 14 months, and after Mr. Tsosie developed neck and shoulder
pain with muscle spasms. In fact, Dr. Copeland stated in his March 25, 2014 assessment that Mr.
Tsosie was “only suited for very light work due to back and neck pain.” AR 464 (emphasis
added). Given the fact that Mr. Tsosie’s condition was not static, and his diagnoses continued to
evolve, comparing Dr. Copeland’s March 25, 2014 to his April 23, 2013 opinion is like
comparing apples to oranges. The fact that the opinions differ is not evidence that they are
inconsistent; it is merely evidence that, in Dr. Copeland’s opinion, Mr. Tsosie’s condition
deteriorated in the 14 months between the two opinions.
The other reason the ALJ gave for finding Dr. Copeland’s March 25, 2014 opinion
inconsistent—that “his opinion is inconsistent with findings of negative straight-leg raising and
normal sensory and motor function,” AR 18—also does not constitute substantial evidence. Mr.
Tsosie argues that, in making this statement, the ALJ impermissibly rendered “her own medical
analysis” and “failed to recognize that Dr. Copeland knew this information when he provided his
assessment.” Doc. 17 at 9–10 (citing Kemp v. Bowen, 816 F.2d 1469 (10th Cir. 1987)). I agree.
Although Dr. Copeland consistently noted that, while Mr. Tsosie did not experience
lower limb pain during the straight leg raise tests, he did experience back pain during the tests.

18

See AR 412, 427, 446, 453, 467, 507; see also n.8, supra. Dr. Copeland limited Mr. Tsosie to
very light work due to back and neck pain, not lower limb pain. See AR 464. “While the ALJ is
authorized to make a final decision concerning disability, [s]he cannot interpose [her] own
‘medical expertise’ over that of a physician, especially when that physician is the regular treating
doctor for the disability applicant.” Kemp, 816 F.2d at 1476 (internal citations omitted). In
addition, “[i]n choosing to reject the treating physician’s assessment, an ALJ may not make
speculative inferences from medical reports and may reject a treating physician’s opinion
outright only on the basis of contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.” McGoffin v. Barnhart, 288 F.3d 1248, 1252
(10th Cir. 2002) (internal citation omitted) (emphasis in original). 12 The ALJ’s statement that
Mr. Tsosie “has not consistently been compliant with medications, physical therapy, or use of his
back brace” (AR 18) may be a factor in discrediting Mr. Tsosie’s reports of pain, but it is not the
contradictory medical evidence needed to reject the limitations in Dr. Copeland’s March 25,
2014 opinion.
The Court finds the reasons the ALJ proffered for finding Dr. Copeland’s March 25, 2014
opinion inconsistent do not constitute substantial evidence. Thus, the ALJ’s decision to reject
Dr. Copeland’s more recent treating physician opinion is not supported by substantial evidence.
On remand, the ALJ must consider the progression of Mr. Tsosie’s disease and symptoms in
assessing Dr. Copeland’s opinions and ultimately in determining Mr. Tsosie’s RFC.

12

While not raised in the briefing, the Court notes that the ALJ did not fully analyze Mr.
Tsosie’s complaints of pain. The Court notes that “the absence of an objective medical basis for
the degree of severity of pain may affect the weight to be given to the claimant’s subjective
allegations of pain, but a lack of objective corroboration of the pain’s severity cannot justify
disregarding those allegations.” Luna v. Bowen, 834 F.2d 161, 165 (10th Cir. 1987); see also 20
C.F.R. § 404.1529(c)(2).

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VI.

Conclusion

The ALJ erred by failing to apply the treating physician rule, and by failing to support her
findings of inconsistency with substantial evidence. The Court remands so that the ALJ can
remedy these errors.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reverse and Remand for a
Rehearing (Doc. 17) is GRANTED.
IT IS FURTHER ORDERED that the Commissioner’s final decision is REVERSED, and
this case is REMANDED for further proceedings in accordance with this opinion.

________________________________
Laura Fashing
United States Magistrate Judge
Presiding by Consent

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