Neumann v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge Paul J Cleary reversing and, remanding case (terminates case) (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
THERESA M. NEUMANN,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of the
Social Security Administration,
Defendant.
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Case No. 11-CV-173-PJC
OPINION AND ORDER
Claimant, Theresa M. Neumann (“Neumann”), pursuant to 42 U.S.C. § 405(g), requests
judicial review of the decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying Neumann’s application for disability benefits under the Social
Security Act, 42 U.S.C. §§ 401 et seq. In accordance with 28 U.S.C. § 636(c)(1) and (3), the
parties have consented to proceed before a United States Magistrate Judge. Any appeal of this
order will be directly to the Tenth Circuit Court of Appeals. Neumann appeals the decision of
the Administrative Law Judge (“ALJ”) and asserts that the Commissioner erred because the ALJ
incorrectly determined that Neumann was not disabled. For the reasons discussed below, the
Court REVERSES AND REMANDS the Commissioner’s decision.
Claimant’s Background
Neumann was 57 years old at the time of the hearing before the ALJ on June 19, 2009.
(R. 20). She testified that she had graduated from college. Id. In her application, she had
claimed that her onset of disability was July 2, 2007, and she had not worked since then. (R. 2021).
Neumann testified that her borderline personality disorder, together with depression and
anxiety, were problems that kept her from working. (R. 21-22). One example she gave was that
she became paranoid at work, convinced that her bosses were going to fire her. (R. 22). She
testified that her depression was severe at times, and she sometimes had obsessive thoughts of
death and suicide. Id. These thoughts could happen weekly, but she could also have a period of
one month without them. (R. 22-23). She had written down on a calendar when she had really
bad days of depression and suicidal thoughts, and she calculated that she averaged nine bad days
a month. (R. 23). On a bad day, she didn’t want to be around other people, she worried
obsessively, she was paranoid and tearful, and she couldn’t get anything done. (R. 24).
Neumann also testified that she experienced recurring nightmares of being humiliated at
work, or rejected in family relationships. Id. She said that her problems in general had started in
childhood, but she felt that they had gotten progressively worse as she had gotten older. Id. She
testified that her mood could be fine at one moment, and then something would happen to bother
her, and she would then feel depressed. (R. 25). Things bothered her that didn’t bother other
people. Id. One example she gave was when someone didn’t return a phone call, saying that it
“sets me off.” (R. 25-26).
Neumann testified that she was not comfortable being around people, but she did force
herself to go to group therapy, including a borderline personality disorder group. (R. 26). The
group meetings were only one hour long, and she could leave afterward. Id. Staying at work for
eight hours without being able to leave would be difficult for her. Id. She had problems with
supervisors, especially male bosses. (R. 27).
Neumann described ritualistic behavior and patterns that she followed, giving the
example of meals she had every day that were the same. Id. When she was a teenager, she had
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engaged in self-mutilating cutting behavior twice when she was angry or severely depressed, and
she had the urge to do that at times. Id.
Neumann testified that her memory was bad, and the example she gave was that when she
read a book in bed before going to sleep, the next day she wouldn’t remember what she had read.
(R. 28). She said that when she was nervous, she could not comprehend oral instructions. Id.
She could get tasks done at home on a good day, but not on a bad day. (R. 29).
She enjoyed going to a local cemetery close to her house to watch the water fowl, and she
played solitaire on her computer because she found it soothing. Id. She said that she did not see
any people regularly except her therapist, whom she saw every week. (R. 30). She spoke to her
sisters on the phone “now and then.” Id.
Neumann had experienced problems with medications, including side effects. (R. 31).
She had a major problem with drinking, and she testified that she had been sober since January.
Id. Her therapist had told her that she would be less depressed with sobriety, but she had not
experienced a reduction in depression. Id. It had been over a year since she had experienced a
“full-blown” panic attack, but she still had problems with anxiety. (R. 31-32).
Neumann had experienced problems with her feet, but wearing orthotic shoes had
relieved those problems. (R. 32). She had been diagnosed with arthritis in her hands after she
experienced pain. (R. 32-33). She sometimes dropped items, such as kitchen utensils. (R. 33).
She had problems with sitting, due to a need to move around, but she had no problems with
standing or walking. (R. 34).
Neumann saw Kash Biddle, D.O., in 2005. (R. 161-65). Dr. Biddle referred Neumann to
a podiatrist due to foot pain. Id. It also appears that he treated her with hormones and thyroid
medication, as well as medications for depression and anxiety. Id.
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Neumann saw David Shadid, D.O., psychiatrist, in 2006 and 2007, but Dr. Shadid’s handwritten notes are not legible. (R. 166-71).
Neumann saw Rachel Whitehouse, D.O., as a new patient on April 3, 2006. (R. 203).
Diagnoses were whiplash, menopausal symptoms, and hypothyroidism. Id. At a follow-up
appointment on April 27, 2006 to discuss lab results, the diagnoses were degenerative disc
disease of the cervical spine and menopausal symptoms. (R. 202). These diagnoses continued at
follow-up appointments in June and August 2006. (R. 197-201).
At an appointment with Dr. Whitehouse on September 28, 2006, Neumann was
diagnosed with fatigue, acne, depression, and hypothyroidism. (R. 196). She was started on
Prozac. Id. On October 19, 2006, Neumann said that she was feeling better with Prozac and
hormone medications, but she wanted to stop having “down” episodes. (R. 195). It appears that
Dr. Whitehouse referred her for a psychological consultation. Id.
Neumann presented to Laureate Psychiatric Clinic and Hospital Outpatient Services
(“Laureate”) on January 31, 2007, by referral from Dr. Shadid. (R. 227). There are various other
documents from Laureate with 2007 and 2008 dates. (R. 228-32). Neumann presented to
Laureate on June 25, 2007, and at that time, the initial assessing clinician gave Neumann’s Axis
I1 diagnoses as depression and generalized anxiety depression. (R. 221-26). Neumann’s global
assessment of functioning (“GAF”)2 was assessed as 48, with a highest GAF in the past year of
1
The multiaxial system “facilitates comprehensive and systematic evaluation.” American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 27 (Text
Revision 4th ed. 2000) (hereafter “DSM IV”).
2
The GAF score represents Axis V of a Multiaxial Assessment system. See DSM IV at
32-36. A GAF score is a subjective determination which represents the “clinician’s judgment of
the individual’s overall level of functioning.” Id. at 32. The GAF scale is from 1-100. A GAF
score between 21-30 represents “behavior is considerably influenced by delusions or
hallucinations or serious impairment in communication or judgment . . . or inability to function
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65. (R. 222). A master treatment plan was completed on June 26, 2007, and Neumann
completed self-assessment notes in June and July 2007, indicating that she attended 12 group
sessions. (R. 173-86).
At an appointment with Dr. Whitehouse on August 23, 2007, Neumann asked that her
medications be adjusted. (R. 189). Dr. Whitehouse diagnosed her with anxiety and depression.
Id.
A psychotherapy progress note from Laureate dated June 17, 2008 states that Neumann
rated her depression as a “7,” and her anxiety as a “0.” (R. 354). On August 6, 2008, her
depression was a “6,” and her anxiety a “7.” (R. 353). There was a note from the clinician to
add alcohol use to Neumann’s treatment goals. Id. There are additional psychotherapy progress
notes from August 2008 to June 2009. (R. 331-51).
During this same period, June 2008 through June 2009, there are Laureate medication
management notes completed by Dr. Katherine Godwin. (R. 287-305). At an appointment on
April 7, 2009, Neumann said that she was not doing well, and reviewed her symptoms of anxiety
and vivid nightmares. (R. 291-92). Dr. Godwin noted functional improvement with sobriety,
therapy, and medications, but increased depressive and anxiety symptoms. (R. 291). Her Axis I
diagnoses were major depressive disorder, recurrent episode, moderate, and alcohol dependence.
Id. She diagnosed Neumann with borderline personality disorder on Axis II. Id. She assessed
Neumann’s current and past year GAF as 60. Id.
in almost all areas.” Id. at 34. A score between 31-40 indicates “some impairment in reality
testing or communication . . . or major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood.” Id. A GAF score of 41-50 reflects “serious
symptoms . . . or any serious impairment in social, occupational, or school functioning.” Id.
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Records from Laureate indicate that Neumann attended a Chemical Dependency Intensive
Outpatient group in January and February 2009. (R. 315-30). The clinician at her first group
meeting assessed Neumann with alcohol dependence on Axis I, and borderline personality
disorder on Axis II, with a current GAF of 46, and highest in the past year of 58. (R. 330). A
discharge summary dated in March 2009 stated Neumann’s Axis I diagnosis as alcohol
dependence, deferring an Axis II diagnosis. (R. 307). Her current GAF was assessed as 62, with
a highest in the past year of 65. Id.
Neumann continued to see Dr. Whitehouse for hormone and gynecological treatment in
2008 and 2009. (R. 356-66).
Neumann was assessed by agency consultant Denise LaGrand, Psy.D. on March 18, 2008.
(R. 233-67). Dr. LaGrand attached to her report 27 pages hand-written by Neumann in response
to a questionnaire. (R. 241-67). After reviewing Neumann’s background, Dr. LaGrand reported
that Neumann’s affect was consistent with her description of herself as sad, depressed, and
anxious. (R. 236-37). Neumann had average immediate recall, and Dr. LaGrand estimated her
long-term memory to be adequate. (R. 237). Dr. LaGrand’s Axis I diagnoses were major
depressive disorder, moderate, without psychotic features; generalized anxiety disorder; and
polysubstance abuse, in remission by self-report. (R. 238). Her Axis II diagnoses were
borderline personality disorder and obsessive compulsive personality disorder. Id. She assessed
Neumann’s GAF as 45. Id.
Dr. LaGrand made several narrative comments about Neumann’s functional abilities. (R.
239). She said that Neumann’s ability to be reliable was fair, and her ability to interact in a
socially adequate manner was poor. Id. Her capacity to cope with the demands of work and to
sustain concentration was fair. Id. Her capacity to complete tasks within an acceptable
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timeframe was poor. Id. Her problems with social interactions and poor attendance would
interfere with her ability to keep employment. Id.
Agency nonexamining consultant Cynthia Kampschaefer, Psy.D., completed a Psychiatric
Review Technique Form and a Mental Residual Functional Capacity Assessment dated April 22,
2008. (R. 268-85). For Listings 12.04 and 12.06, Dr. Kampschaefer noted Neumann’s
depressive syndrome and generalized anxiety disorder. (R. 271, 273). For the “Paragraph B
Criteria,”3 Dr. Kampschaefer found that Neumann had mild restriction of activities of daily
living, moderate difficulties in maintaining social functioning, and moderate difficulties in
maintaining concentration, persistence, or pace, with no episodes of decompensation. (R. 278).
In the “Consultant’s Notes” portion of the form, Dr. Kampschaefer briefly summarized
Neumann’s treatment at Laureate and noted that her memory and judgment were intact at Dr.
LaGrand’s examination. (R. 280). She briefly listed Neumann’s activities of daily living. Id.
On the Mental Residual Functional Capacity Assessment, Dr. Kampschaefer found that
Neumann was markedly limited in her ability to understand, remember, and carry out detailed
instructions. (R. 282). She also found that Neumann was markedly limited in her ability to
interact appropriately with the general public. Id. Dr. Kampschaefer said that Neumann could
perform simple tasks with routine supervision, could relate to supervisors and peers on a
superficial work basis, could not relate to the general public, and could adapt to a work situation.
3
There are broad categories known as the “Paragraph B Criteria” of the Listing of
Impairments used to assess the severity of a mental impairment. The four categories are (1)
restriction of activities of daily living, (2) difficulties in maintaining social functioning, (3)
difficulties in maintaining concentration, persistence or pace, and (4) repeated episodes of
decompensation, each of extended duration. Social Security Ruling (“SSR”) 96-8p; 20 C.F.R.
Part 404 Subpt P, App. 1 (“Listings”) §12.00C. See also Carpenter v. Astrue, 537 F.3d 1264,
1268-69 (10th Cir. 2008).
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(R. 284).
Dr. Godwin wrote a letter addressed to the ALJ on May 12, 2009, stating that Neumann’s
impairments caused her “profound functional limitations in her ability to engage in activities of
daily living, social functioning, and in her capacity for concentration, memory and task
completion.” (R. 367). She described Neumann’s symptoms as including “terrible anxiety, poor
sleep, nightmares, decreased motivation, crying, decreased energy, erratic moods, inability to
focus and concentrate, mood [lability], and suicidal thoughts.” Id. Dr. Godwin’s opinion was
that Neumann’s alcoholism had not caused her depression. Id. She concluded her letter by
stating that, “[b]ased on the severity of her symptoms I do not believe Ms. Neumann can sustain
a five day forty hour work week.” (R. 368).
Dr. Godwin completed a Mental Medical Source Statement on June 25, 2009. (R. 37074). She found marked limitations in 11 functional areas, and severe limitations in 9 others. (R.
371-73). The narrative remarks stated that Neumann’s functional abilities would diminish under
the stress of working. (R. 373). “She becomes overwhelmed with making decisions or
completing tasks. She is anxious, worries and ruminates with tasking.” Id.
Procedural History
Neumann filed an application dated January 22, 2008, seeking disability insurance
benefits under Title II, 42 U.S.C. §§ 401 et seq. (R. 91-97). She alleged inability to work
beginning July 2, 2007. (R. 91). The application was denied initially and on reconsideration.
(R. 45-48, 51-53). A hearing before ALJ Lantz McClain was held June 19, 2009 in Tulsa,
Oklahoma. (R. 17-41). By decision dated August 26, 2009, the ALJ found that Neumann was
not disabled at any time through the date of the decision. (R. 9-16). On January 20, 2011, the
Appeals Council denied review of the ALJ’s findings. (R. 1-5). Thus, the decision of the ALJ
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represents the Commissioner’s final decision for purposes of further appeal. 20 C.F.R. §
404.981.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment.” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Act only if his
“physical or mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work in the national economy.” 42 U.S.C. § 423(d)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a disability
claim. 20 C.F.R. § 404.1520.4 See also Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)
(detailing steps). “If a determination can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not necessary.” Williams, 844 F.2d at 750.
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
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Step One requires the claimant to establish that he is not engaged in substantial gainful
activity, as defined by 20 C.F.R. § 404.1510. Step Two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that significantly limit his
ability to do basic work activities. See 20 C.F.R. § 404.1520(c). If the claimant is engaged in
substantial gainful activity (Step One) or if the claimant’s impairment is not medically severe
(Step Two), disability benefits are denied. At Step Three, the claimant’s impairment is compared
with certain impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App.1 (“Listings”). A claimant
suffering from a listed impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry. If not, the evaluation proceeds to Step Four,
where the claimant must establish that he does not retain the residual functional capacity
(“RFC”) to perform his past relevant work. If the claimant’s Step Four burden is met, the burden
shifts to the Commissioner to establish at Step Five that work exists in significant numbers in the
national economy which the claimant, taking into account his age, education, work experience,
and RFC, can perform. See Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001). Disability
benefits are denied if the Commissioner shows that the impairment which precluded the
performance of past relevant work does not preclude alternative work. 20 C.F.R. § 404.1520.
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405(g). This Court’s review is limited to two inquiries: first, whether the decision was supported
by substantial evidence; and, second, whether the correct legal standards were applied. Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted).
Substantial evidence is such evidence as a reasonable mind might accept as adequate to
support a conclusion. Id. The court’s review is based on the record taken as a whole, and the
court will “meticulously examine the record in order to determine if the evidence supporting the
agency’s decision is substantial, taking ‘into account whatever in the record fairly detracts from
its weight.’” Id., quoting Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). The court
“may neither reweigh the evidence nor substitute” its discretion for that of the Commissioner.
Hamlin, 365 F.3d at 1214 (quotation omitted).
Decision of the Administrative Law Judge
The ALJ found that Neumann met insured status requirements through the date of his
decision. (R. 11). At Step One, the ALJ found that Neumann had not engaged in any substantial
gainful activity since her asserted onset date of July 2, 2007. Id. At Step Two, the ALJ found
that Neumann had severe impairments of depression, anxiety, borderline personality disorder,
and obsessive-compulsive disorder. Id. At Step Three, the ALJ found that Neumann’s
impairments did not meet a Listing. (R. 11-12).
The ALJ determined that Neumann had the RFC to do a full range of work at all
exertional levels, with the nonexertional limitation that “[s]he can perform simple repetitive tasks
with incidental contact with the public.” (R. 12). At Step Four, the ALJ found that Neumann
was unable to perform any past relevant work. (R. 15). At Step Five, the ALJ found that there
were jobs in significant numbers in the national economy that Neumann could perform, taking
into account her age, education, work experience, and RFC. Id. Therefore, the ALJ found that
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Neumann was not disabled at any time from July 2, 2007, through the date of his decision. (R.
16).
Review
Neumann raises issues regarding the ALJ’s consideration of the opinion evidence of Dr.
Godwin and Dr. LaGrand and regarding the ALJ’s RFC determination as it was incorporated into
the hypothetical question to the vocational expert. The Court finds that the ALJ’s decision must
be reversed because it did not sufficiently address the opinion evidence of Dr. LaGrand, and
therefore, the issues Neumann raises regarding Dr. Godwin’s opinion evidence and regarding the
RFC determination are not addressed.
Regarding opinion evidence, generally the opinion of a treating physician is given more
weight than that of an examining consultant, and the opinion of a nonexamining consultant is
given the least weight. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). For
opinion evidence that does not come from a treating source, the requirement is that the ALJ must
consider the opinion evidence and, if the ALJ rejects it, he must provide specific legitimate
reasons for the rejection. Victory v. Barnhart, 121 Fed. Appx. 819, 825 (10th Cir. 2005)
(unpublished), citing Doyal v. Barnhart, 331 F.3d 758, 763-64 (10th Cir. 2003). Doyal cited to
the Commissioner’s own regulations and rulings that require the ALJ to consider every medical
opinion. See 20 C.F.R. § 416.927(d) (“Regardless of its source, we will evaluate every medical
opinion we receive.”); and SSR 96-5p, 1996 WL 374183 (“[O]pinions from any medical source
about issues reserved to the Commissioner must never be ignored.”). If an ALJ’s RFC
determination conflicts with a medical opinion, then the ALJ must explain why the opinion was
not adopted. Sitsler v. Barnhart, 182 Fed. Appx. 819, 823 (10th Cir. 2006) (unpublished), citing
SSR 96-8p, 1996 WL 374184.
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Here, the ALJ’s discussion of Dr. LaGrand’s opinion was almost absent. The ALJ
mentioned Dr. LaGrand’s diagnoses when he listed Neumann’s severe impairments at Step Two.
(R. 11). He mentioned that Neumann, during her appointment with Dr. LaGrand, stated that she
could take care of her personal hygiene, drive, do laundry, manage her finances, care for her
parrot, play games on the computer, and watch television. (R. 14). The ALJ also mentioned the
lengthy responses of Neumann that Dr. LaGrand attached to her report, stating that Neumann’s
ability to complete them “indicate[s] no limitation in her ability to concentrate and [to] complete
tasks.” Id.
The ALJ did not mention any information from Dr. LaGrand’s report, other than the
diagnoses, that supported Neumann’s claim of disability. He did not mention Dr. LaGrand’s
assessment of Neumann’s GAF as 45.5 (R. 238). He did not mention Dr. LaGrand’s narrative
statements that Neumann’s ability to be reliable was fair, and her ability to interact in a socially
adequate manner was poor. (R. 239). He did not mention the statements that Neumann’s
capacity to cope with the demands of work and to sustain concentration was fair, and her capacity
to complete tasks within an acceptable timeframe was poor. Id. Finally, the ALJ did not
mention that Dr. LaGrand stated that Neumann’s problems with social interactions and poor
attendance would interfere with her ability to keep employment. Id. The ALJ had a duty to
discuss Dr. LaGrand’s report, including the information stated above, that tended to support
Neumann’s claim of disability. Martinez v. Astrue, 422 Fed. Appx. 719, 724-25 (10th Cir. 2011)
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This omission was made more unacceptable by the fact that the ALJ cited to GAF scores
in Dr. Godwin’s records that he viewed as contrasting with Dr. Godwin’s opinion of “profound”
functional difficulties and therefore unfavorable to Neumann’s claim of disability. (R. 14). If a
GAF score of 60 from Dr. Godwin was significant, then a score of 45 from the examining
consultant should have been noted as well.
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(unpublished).
In Martinez, the Tenth Circuit discussed this very psychologist, Dr. LaGrand, and similar
provisions of her report in that case that the ALJ there did not specifically reference, although his
discussion was much more thorough than that of the ALJ here. The court as a preliminary matter
stated that Dr. LaGrand’s opinion was generally entitled to more weight than the opinions of the
nonexamining consultants, and the court gave the factors that should have been used in
determining the weight to be given to Dr. LaGrand’s opinion. Id. at 724. The Tenth Circuit
described as “critical” the ALJ’s omission of Dr. LaGrand’s statements that the claimant’s
“ability to be reliable is fair,” and that “[h]is ability to communicate and interact in a socially
adequate manner is poor,” were critical omissions. Id. at 724-25. The court said that the
portions of Dr. LaGrand’s report that the ALJ failed to discuss were “significantly probative.”
Id. at 725. The Tenth Circuit reversed on several grounds, including the ALJ’s failure to
adequately discuss Dr. LaGrand’s report. Id. at 728.
As stated above, the ALJ in Martinez discussed Dr. LaGrand’s opinion in some detail,
and the Tenth Circuit still found the omissions were reasons for reversal. Here the ALJ only
mentioned Dr. LaGrand’s report in passing, and he did not discuss any of the portions of it that
arguably supported Neumann’s claim of disability. The ALJ was required to do more, including
an actual summary of the key provisions of the report that spoke of Neumann’s functional
abilities. If he believed that his RFC determination was consistent with Dr. LaGrand’s findings,
then he needed to explain that consistency. If he, instead, was rejecting certain portions of Dr.
LaGrand’s opinions, then he needed to explain that rejection and give acceptable reasons
justifying that rejection. This case must be reversed to allow the ALJ to include a proper
analysis of Dr. LaGrand’s report in his decision.
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Because the errors of the ALJ related to the opinion evidence of Dr. LaGrand require
reversal, the undersigned does not address the remaining contentions of Neumann. On remand,
the Commissioner should ensure that any new decision sufficiently addresses all issues raised by
Neumann.
The undersigned emphasizes that “[n]o particular result” is dictated on remand.
Thompson v. Sullivan, 987 F.2d 1482, 1492-93 (10th Cir. 1993). This case is remanded only to
assure that the correct legal standards are invoked in reaching a decision based on the facts of the
case. Angel v. Barnhart, 329 F.3d 1208, 1213-14 (10th Cir. 2003), citing Huston v. Bowen, 838
F.2d 1125, 1132 (10th Cir. 1988).
Conclusion
Based upon the foregoing, the Court REVERSES AND REMANDS the decision of the
Commissioner denying disability benefits to Claimant for further proceedings consistent with this
Order.
Dated this 25th day of May, 2012.
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