Hopper v. Social Security Administration
Filing
19
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
KAREN L. HOPPER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
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Case No. 13-CV-567-PJC
OPINION AND ORDER
Claimant, Karen L. Hopper (“Hopper”), pursuant to 42 U.S.C. § 405(g), requests judicial
review of the decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying Hopper’s application for disability insurance benefits under Title II of
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. Hopper appeals the decision
of the Administrative Law Judge (“ALJ”) and asserts that the Commissioner erred because the
ALJ incorrectly determined that Hopper was not disabled. For the reasons discussed below, the
Court REVERSES AND REMANDS the Commissioner’s decision.
Claimant’s Background
Hopper was 51 years old at the time of the hearing before the ALJ on December 19, 2011.
(R. 35). She had obtained a GED and an associate’s degree in business and computer
technology. (R. 35-36).
Hopper testified that she had not worked since she was hospitalized for six days in July
2009 on a suicide watch. (R. 38-39). She was diagnosed with bipolar disorder. (R. 39). She
said that she had days of deep depression and other days when she was “hyper.” (R. 43). She
said that she experienced an episode of deep depression about every six months. (R. 43-44).
During those episodes, she would cry “non-stop.” (R. 48). She could then have an episode of
being hyper that would last for a month followed by a period of being “on an even keel.” (R. 44).
She had episodes every few months when she became extremely irritable and “almost violent.”
(R. 43-45). When these episodes occurred, Hopper felt trapped, and she would lash out at people
verbally to escape. (R. 45).
Hopper said that her medications were helpful, but her doctors were still adjusting them
to find the best ones. Id. Her medications sometimes made her have nausea and vomiting. (R.
45-46). She described herself as “always kind of groggy.” Id. She avoided driving due to her
grogginess, so she only drove about once every other week. (R. 46).
Hopper said that she only left the house when she had no choice, and most of those times
were for a doctor’s appointment. (R. 46-47). She tried to clean her house, but it seemed to be an
overwhelming task, so she would end up not doing it. (R. 47). She only bathed when she was
leaving the house, because it took “too much energy.” Id. She had showered for the hearing, but
she had not showered for two weeks before that. Id. She described herself as “in an even
period” at the time of the hearing, but she was still tired all of the time. Id.
Hopper said that she had trouble with memory and with focus. (R. 48). She said that she
could not read, because she could not remember what she had read, and she would lose interest.
Id. She said that her hospitalization in 2009 had happened when she was stressed about many
2
things. (R. 48-49). She testified, however, that even if she was given a low-stress job, she would
not be able to do it due to memory issues and an inability to focus. (R. 49).
Hopper said that she also had physical problems with her back that caused problems with
lifting, walking, and bending. (R. 49). She testified that she had surgery in 2006. (R. 50). She
said that she had been prescribed Mobic and Flexeril for her back pain, but they did not help. Id.
Records reflect that Hopper had surgery on levels L4/L5 and L5/S1 of her lumbar spine at
Hillcrest Medical Center on November 8, 2006. (R. 345-49, 351-59). A letter from her surgeon
dated February 1, 2007 stated that she had healed well, her pain had completely resolved, and she
was released to return to normal activity and to work. (R. 351).
Records from J. Steve Grigsby, D.O., reflect that Hopper was treated with prescription
medications for osteoarthritis, depression, and anxiety in 2007 and 2008. (R. 337-41).
Hopper was seen at Craig General Hospital for physical therapy due to cervical strain in
November and December 2008. (R. 232-41).
Hopper presented to the emergency room at Craig General Hospital on July 9, 2009 with
suicidal thoughts. (R. 242-52). She was transferred to Wagoner Community Hospital and
treated on an in-patient basis until discharge on July 13, 2009. (R. 254-62). On discharge,
Hopper’s Axis I1 diagnosis was bipolar II disorder and her Global Assessment of Functioning
1
The multiaxial system “facilitates comprehensive and systematic evaluation.” See
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 27
(Text Revision 4th ed. 2000) (hereinafter “DSM IV”).
3
(“GAF”)2 was scored as 45. (R. 254-55). She was prescribed Prozac, Xanax, Abilify, and
Remeron, and she was instructed to follow up at Laureate. (R. 254).
Hopper was seen as a new patient at Laureate Psychiatric Clinic and Hospital
(“Laureate”) on August 10, 2009. (R. 283-85). Hopper reported a long history of depression,
anxiety, and mood swings. (R. 283). Her mood and affect were sad and anxious. (R. 284). Her
primary diagnosis on Axis I was bipolar II disorder, with other diagnoses of panic disorder with
agoraphobia; social anxiety disorder; and nicotine dependence. Id. Her current GAF was scored
as 55-60, with a highest in the past year of 70. (R. 285). Her medications were adjusted. Id.
Hopper returned to Laureate on August 28, 2009, and she had continued symptoms of
difficulty sleeping, panic attacks, feelings of hopelessness, difficulty concentrating, poor interest
and motivation, poor energy level, and constant depression. (R. 281). Her treating physician,
Mark D. Fossey, M.D., stated that Hopper remained “significantly disabled from bipolar
depression and panic attacks.” Id. Her medications were adjusted. Id.
On September 18, 2009, Hopper reported to Dr. Fossey that she continued to have sleep
difficulties and she believed she was experiencing auditory hallucinations. (R. 279). Hopper did
not think the auditory hallucinations were severe enough to require treatment. Id. She had fewer
and less severe panic attacks. Id. She had periodic feelings of sadness that could last for one or
two days and would then subside for approximately one week. Id. On October 1, 2009, Hopper
reported that a new medication had made her dizzy or “woozy.” (R. 277). She said that she was
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. See also Keyes-Zachary v. Astrue, 695
F.3d 1156, 1162 n.1 (10th Cir. 2012).
4
still unable to work because of depressed mood, inability to concentrate, low energy, lack of
motivation, and anxiety. Id.
On October 16, 2009, Hopper reported that she had continued to have sedation and
balance issues with her medications, and she had not been driving due to those issues. (R. 275).
While she had no panic attacks after her October 1 visit, she reported that she became angry
easily. Id. She reported suicidal thoughts. Id. Her medications were adjusted. (R. 276). On
November 2, 2009, Hopper reported twitching legs and excessive sleep. (R. 273). On November
16, 2009, her sedation had lessened, but she still did not feel comfortable driving. (R. 271).
While she denied suicidal thoughts, she frequently had thoughts that life was not worth living.
Id. Her medications were adjusted. (R. 272).
Hopper saw Dr. Fossey at Laureate on December 8, 2009, and she reported a constant
headache. (R. 269). Hopper was very anxious about returning to work. Id. Medications were
controlling her panic attacks, and she believed that she could drive safely. Id. Dr. Fossey stated
that Hopper could not cope with the extreme stress of working during the holidays, but that
Hopper “should be able to return to work in early January 2010.” (R. 270). Her medications
were adjusted to address her headaches. Id. On January 14, 2010, Hopper reported to Dr. Fossey
that she had been fired from her job and that she would be switching health care providers
because she would be losing her insurance. (R. 266-68). She continued to experience headaches
of varying intensity. (R. 266).
Hopper was seen at OCHC Community Clinic on April 22, 2010 for refill of prescription
medications. (R. 335). Notes state that lithium and Wellbutrin were refilled, and paperwork was
completed for Seroquel. Id. The notes also state that Hopper would need to become established
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as a new patient with a local physician in order to obtain clonazepam. Id. The impression was
bipolar depression, stable on current medications. Id.
On July 22, 2010 at OCHC Community Clinic, it was noted that Hopper was seeing the
chaplain at the hospital for counseling. (R. 333). Hopper requested medications that were more
affordable, and her medications were adjusted. Id. On August 5, 2010, Hopper said that she was
having trouble sleeping, and impressions were bipolar disorder stable on current medications;
insomnia; and body aches and pains. (R. 332). Hopper’s Trazodone was increased. Id. On
August 19, 2010, her insomnia had improved, and a note stated that Hopper denied further
problems. (R. 331).
On September 23, 2010, Hopper returned to the OCHC Community Clinic, and she
complained that the Trazodone was no longer working and she was getting less than four hours
of sleep a night. (R. 330). She reported episodes of mania for one or two days with increased
energy and rapid thoughts, followed by depression. Id. Impressions were bipolar disorder with
inadequate control; and insomnia. Id. Her medications were adjusted. Id. She returned for
medication refills on October 7, 2010. (R. 329).
On January 18, 2011, Hopper was seen for an initial psychiatric evaluation at Express
Psych, L.L.C. (R. 321-22). Impressions on Axis I were bipolar II disorder; post-traumatic stress
disorder (“PTSD”); and panic disorder with agoraphobia. (R. 322). On Axis II, the impression
was borderline personality disorder with cutting. Id. Hopper was prescribed lithium, Zoloft, and
Trazodone. Id. Hopper was seen for follow-up on March 3, 2011. (R. 320). With new
medications on March 23, 2011, Hopper reported that her mental symptoms were improved. (R.
318). She was having trouble with joint pain in her hips, elbows, and shoulders, and her
psychiatric medications were adjusted to address that. Id. On April 20, 2011, Hopper reported
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that she felt good and that the joint pain had resolved. (R. 317). She continued to have sleep
problems, and her medications were adjusted. Id. On May 18, 2011, Hopper reported that she
was doing much better. (R. 316).
Hopper returned to Express Psych on August 17, 2011 reporting that she had been ill with
pneumonia. (R. 363). Hopper had been off of her medications for three weeks and had then
restarted them without consulting her physicians. Id. Her symptoms had not yet improved, but
her medications were continued. Id. On September 28, 2011, Hopper complained of irritability
and poor sleep. (R. 362). She thought that she might be about to enter a manic phase. Id. Her
medications were adjusted. Id.
On October 13, 2011, Hopper presented to OCHC Community Clinic with back, hip, and
knee pain after a recent fall. (R. 366). The impression was left knee sprain, and she was
prescribed Voltaren. Id.
On October 26, 2011, Hopper returned to Express Psych and said that the increase in
medication had stopped her irritability and that she was sleeping well. (R. 361). She was feeling
tired, but she believed that would improve when she became used to the medication. Id.
On December 8, 2011, Hopper returned to OCHC Community Clinic with pain in her
lower back and hip, stating that the Voltaren was not helping. (R. 367). The impression was
chronic back pain, and she was prescribed Mobic and Flexeril. Id.
Agency consultant Beth Jeffries, Ph.D., completed a mental status examination of Hopper
on March 13, 2010. (R. 290-93). Dr. Jeffries stated that Hopper appeared to be depressed and
that her affect was slightly flat. (R. 291). Hopper’s concentration, memory, judgment, and
insight appeared to be intact. (R. 292). Dr. Jeffries’ diagnostic impression on Axis I was major
depression, recurrent, with psychotic features, moderate to severe. Id. In her concluding
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paragraph, Dr. Jeffries said that she thought it was likely that Hopper’s symptoms of depression
were “impacting her ability to perform occupationally,” and she noted Hopper’s social
withdrawal and isolation. Id.
Agency nonexamining consultant Ron Smallwood, Ph.D., completed a Psychiatric
Review Technique form and a Mental Residual Functional Capacity Assessment dated April 8,
2010. (R. 295-312). In the Psychiatric Review Technique form, for Listing 12.04, Dr.
Smallwood noted Hopper’s depressive syndrome. (R. 302). For the “Paragraph B Criteria,”3 Dr.
Smallwood indicated that Hopper had moderate restriction of activities of daily living; moderate
difficulties in maintaining social functioning; moderate difficulties in maintaining concentration,
persistence, or pace; and one or two episodes of decompensation. (R. 309). In the “Consultant’s
Notes” portion of the form, Dr. Smallwood noted Hopper’s July 2009 inpatient treatment and
summarized the psychiatric findings of the treating physicians. (R. 311). He noted her outpatient
treatment at Laureate and her medications. Id. Dr. Smallwood also summarized Dr. Jeffries’
report and Hopper’s reported activities of daily living. Id.
In the Mental Residual Functional Capacity Assessment, Dr. Smallwood indicated that
Hopper was markedly limited in her ability to understand, remember, and carry out detailed
instructions and in her ability to interact appropriately with the general public. (R. 295-96).
Hopper was not significantly limited in the other areas listed on the form. Id. In the narrative
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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section, Dr. Smallwood wrote that Hopper could perform simple tasks with routine supervision
and could relate to supervisors and peers on a superficial work basis. (R. 297). He found that
Hopper could not relate to the general public, but could adapt to a work situation. Id.
Lisa M. Caldwell, Psy.D., completed a form entitled Mental Residual Functional Capacity
Assessment on August 15, 2011. (R. 324-26). Dr. Caldwell indicated that Hopper had marked
limitations in eight of twenty categories. (R. 324-25). She found Hopper moderately limited in
nine additional categories, with no significant limitations in the remaining three categories. Id.
Dr. Caldwell wrote a letter dated January 19, 2012 on letterhead of Counseling Associates
of the Four States, LLC, in Joplin, Missouri. (R. 369-70). She signed as a “provisionally
licensed psychologist,” and Kevin Whisman, Psy. D., co-signed the letter. (R. 370). Dr.
Caldwell wrote that Hopper was currently her patient and that she did not want to submit
progress notes “due to the confidential and extremely personal nature of what is disclosed
therein.” (R. 369). She said that her letter was intended to help in determining whether Hopper
was eligible for disability benefits. Id.
Dr. Caldwell wrote that she had seen Hopper for individual psychotherapy sessions since
fall 2010, for a total of 27 sessions. Id. Her Axis I diagnoses were bipolar II disorder, depressed,
moderate; and generalized social phobia. Id. She scored Hopper’s GAF as 51. Id. Dr. Caldwell
said that Hopper’s psychological problems, including disruptive depressive and hypomanic
episodes, interfered in her day-to-day functioning. Id. She said that Hopper’s recent symptoms
included lethargy, lack of motivation, and difficulty with sleep and concentration. Id. She said
that Hopper had difficulty leaving her house and adapting to new circumstances or environments.
Id. Dr. Caldwell said it was highly unlikely that Hopper could manage the responsibilities of
working full-time. (R. 370).
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Procedural History
Hopper filed her application for disability insurance benefits on November 16, 2009, and
she asserted onset of disability on July 8, 2009. (R. 157-60). The application was denied
initially and on reconsideration. (R. 68-71, 76-78). An administrative hearing was held before
ALJ Richard J. Kallsnick on December 19, 2011. (R. 28-59). By decision dated February 3,
2012, the ALJ found that Hopper was not disabled. (R. 9-23). On July 2, 2013, the Appeals
Council denied review. (R. 1-4). Thus, the decision of the ALJ represents the Commissioner’s
final decision for purposes of this 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 Wall v. Astrue, 561 F.3d 1048, 1052-53 (10th Cir. 2009)
4
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
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(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.” Lax, 489 F.3d at 1084 (citation
and quotation omitted).
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
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. Wall, 561 F.3d at 1052 (quotations and citations omitted). Although the
court will not reweigh the evidence, the court will “meticulously examine the record as a whole,
including anything that may undercut or detract from the ALJ’s findings in order to determine if
the substantiality test has been met.” Id.
Decision of the Administrative Law Judge
In his decision, the ALJ found that Hopper met insured status requirements through
December 31, 2014. (R. 11). At Step One, the ALJ found that Hopper had not engaged in any
substantial gainful activity since her application date of July 8, 2009. Id. At Step Two, the ALJ
found that Hopper had severe impairments of lumbar stenosis, status post back surgery; and
depression/bipolar affective disorder. Id. At Step Three, the ALJ found that Hopper’s
impairments did not meet any Listing. (R. 11-14).
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 Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). 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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The ALJ found that Hopper had the RFC to perform a range of work at the medium
exertional level. (R. 14). For mental limitations, the ALJ found that Hopper could perform
simple tasks with routine supervision and could relate to coworkers and supervisors on a
superficial work basis. Id. Hopper could have minimal or no contact with the general public, and
she was able to adapt to a work situation. Id. At Step Four, the ALJ determined that Hopper
could return to past relevant work. (R. 21). As an alternative finding at Step Five, the ALJ found
that there were a significant number of jobs in the national economy that Hopper could perform,
taking into account her age, education, work experience, and RFC. (R. 21-23). Therefore, the
ALJ found that Hopper was not disabled at any time since July 8, 2009. (R. 23).
Review
Hopper asserts two errors in the ALJ’s decision. First, she argues that the jobs cited by the
ALJ at Step Four did not qualify as past relevant work. Plaintiff’s Opening Brief, Dkt. #16, pp. 67. Second, Hopper states that the ALJ’s reasons for rejecting the opinion evidence of Dr.
Caldwell, Hopper’s treating psychologist, were not sufficient. Id. at 7-10. The Court agrees that
the ALJ did not adequately justify his discounting of the opinion evidence of Dr. Caldwell. For
this reason, the ALJ’s decision is not supported by substantial evidence and does not comply with
legal requirements, and the decision is therefore REVERSED AND REMANDED.
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). A treating
physician opinion must be given controlling weight if it is supported by “medically acceptable
clinical and laboratory diagnostic techniques,” and it is not inconsistent with other substantial
evidence in the record. Mays v. Colvin, 739 F.3d 569, 574 (10th Cir. 2014). See also 20 C.F.R. §
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404.1527(c)(2). Even if the opinion of a treating physician is not entitled to controlling weight, it
is still entitled to deference and must be weighed using the appropriate factors set out in Section
404.1527. Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004). The ALJ is required to
give specific reasons for the weight he assigns to a treating physician opinion, and if he rejects the
opinion completely, then he must give specific legitimate reasons for that rejection. Id.
In the present case, the ALJ mentioned Dr. Caldwell’s completed form and her January 19,
2012 letter and summarized them to some extent. (R. 17-19). The ALJ then wrote: “[E]ven in
response to subpoena Dr. Caldwell provided no supporting documentation in the form of
treatment notes or any objective findings to support the limitations in her medical source
statement.” (R. 19). The ALJ stated this objection slightly differently in the next paragraph of his
decision: “Again due to the lack of any supporting documented treatment history and objective
findings the undersigned accords Dr. Caldwell’s medical opinion little weight.” Id. The quoted
language reflects that the ALJ’s principal reason for giving Dr. Caldwell’s opinions little weight
was that she did not produce her treatment notes.
The Court finds that, in the circumstances of this case, the absence of treating notes is not
a legally sufficient basis for discounting the opinion evidence of Dr. Caldwell. First, a
requirement that treating notes are essential is in contrast to the applicable regulations that state
only that treating physician opinions must be given controlling weight if they are supported by
“medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1527(c)(2).
While the Commissioner has vigorously defended the ALJ’s decision here, she has not argued that
there is an absolute requirement that treatment notes must be provided to support a treating
psychologist opinion. Commissioner’s Brief, Dkt. #17, pp. 5-10. The Court is not aware of any
such requirement, and therefore finds that the ALJ’s imposition of one was without legal basis.
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Second, the Court finds that the ALJ did not properly consider whether the January 19,
2012 letter from Dr. Caldwell constituted the kind of supporting documentation called for by
Section 404.1527(c)(2). In Robinson, the claimant was seen by a psychiatrist who treated her on a
monthly basis for more than three years before the administrative hearing. Robinson, 366 F.3d at
1081. The physician diagnosed the claimant with bipolar II disorder, the physician reported
consistently that the claimant was unable to work as a result of her mental condition, and the
claimant was hospitalized twice during his treatment. Id. The physician completed a functional
assessment. Id. The ALJ rejected the functional limitations found by the psychiatrist. Id. at
1081-82. The Tenth Circuit was not sure if the ALJ had rejected the psychiatrist’s opinions
because they were not well-supported:
If the ALJ meant that [the psychiatrist’s] opinion about claimant’s nonexertional
mental limitations was somehow inadequately supported, we note that a
psychological opinion may rest either on observed signs and symptoms or on
psychological tests; thus, [the psychiatrist’s] observations about claimant’s
limitations do constitute specific medical findings.
Id. at 1083 (citations omitted). See also Langley, 373 F.3d at 1122.
While the physicians in both Robinson and Langley had provided their treatment notes,
there is no indication in those decisions that the only way that a mental health practitioner can
express “observed signs and symptoms” is through treatment notes. In an unpublished case, the
Tenth Circuit apparently viewed one “medical exam form” of a treating psychiatrist as potentially
sufficient to support a mental medical source statement. King v. Barnhart, 114 Fed. Appx. 968,
973-74 (10th Cir. 2004) (unpublished). In the present case, the Court finds that Dr. Caldwell’s
January 19, 2012 letter is at least potentially sufficient to support her assessment form.
In the letter, Dr. Caldwell explained that she had seen Hopper for individual
psychotherapy sessions on 27 different occasions over more than two years, and she included her
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diagnoses. (R. 369-70). Dr. Caldwell said that Hopper’s psychological problems, including
disruptive depressive and hypomanic episodes, interfered in her day-to-day functioning. (R. 369).
She noted Hopper’s lethargy, lack of motivation, and difficulty with sleep and concentration. Id.
Dr. Caldwell said that it was highly unlikely that Hopper could manage the responsibilities of
working full-time. (R. 370). In the Court’s view, Dr. Caldwell’s letter contains her notes of
observations that constitute specific medical findings, and those findings in turn could potentially
be sufficient to support the limitations included in her assessment form completed in August
2011. Because the ALJ rejected Dr. Caldwell’s assessment for the legally inadequate reason that
she did not provide her treatment notes, he did not consider whether the January 2012 letter
supported the assessment, and this case must be reversed to allow the ALJ to consider this
important issue.
While the Court finds that the absence of treating notes was the ALJ’s primary reason for
rejecting Dr. Caldwell’s August 2011 assessment, the ALJ also found that Dr. Caldwell’s
description of Hopper’s anxiety in public was inconsistent with Hopper’s own testimony. (R. 17,
19).
The undersigned notes that the anxiety symptoms described by Dr. Caldwell are
not fully consistent with the claimant’s own testimony at the hearing. While Dr.
Caldwell described the claimant as easily agitated in public with a desire to retreat,
the claimant testified that she experiences anger and becomes almost violent in
places like the store, where she runs over things with her cart.
(R. 17). The Court disagrees that there is an inconsistency between Dr. Caldwell’s statement,
accurately quoted by the ALJ above, and Hopper’s testimony. In response to a question about her
bipolar disorder, Hopper explained that she had depressive episodes and manic episodes. (R. 43).
One of the things that she said about her manic episodes was that she had “a problem leaving my
house. I don’t handle people and stress well, or noise. I become almost violent.” Id. Hopper’s
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attorney followed up with this exchange:
Q. And you said you get almost violent, what do you mean by that? Can you give
us an example?
A. Yeah, like if I go to the grocery store and there’s a lot of noise there, it’s just
like an instant hum that zooms in on me and I have in the past ran over people with
shopping carts, because I needed to get out of the way.
Q. And you hurt them?
A. I run them over, I hit their carts, or hit them in the back when they’re in front of
me.
Q. When was the last time this occurred?
A. About two weeks ago.
Q. Okay.
ALJ. Is that like a road rage or something?
A. Almost. It’s - I just - I feel trapped and I need to get out of it, get away from
the noise and the people.
(R. 44-45). The Court finds that Hopper’s testimony establishes the two things that Dr. Caldwell
said: That Hopper becomes agitated in public settings and that she desires to retreat. Thus, there
is no substantial inconsistency between Dr. Caldwell’s statements and Hopper’s testimony, and
the ALJ was not entitled to use the differences in their wording as a reason to reject Dr.
Caldwell’s opinion evidence. See, e.g., Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1177 (10th
Cir. 2014) (finding ALJ’s reasons for discounting opinion of treating psychiatrist inadequate in
part because ALJ’s claimed inconsistencies were not substantial); Langley, 373 F.3d at 1121-23
(finding some of ALJ’s reasons for discounting opinion evidence were “not supported by the
record”).
Further, the Court is concerned that the ALJ appeared to use very different standards in
giving the report of the agency consulting examiner, Dr. Jeffries, great weight. The ALJ stated
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that he did so because Dr. Jeffries “had the opportunity to examine the claimant and offered her
opinion based upon the examination signs and findings.” (R. 20). Dr. Jeffries examined Hopper
only one time, while Dr. Caldwell had the advantage of having seen Hopper 27 times over more
than two years. Dr. Jeffries’ narrative report was three pages long, while Dr. Caldwell’s was one
and one-half pages, and Dr. Caldwell also completed a functional assessment form. (R. 290-92,
369-70). The ALJ’s reasons for according Dr. Jeffries’ report great weight while giving Dr.
Caldwell’s reports little weight are not sufficient to overcome the preference for treating physician
opinions recognized by the regulations:
The treating physician’s opinion is given particular weight because of his “unique
perspective to the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalization.” 20 C.F.R. § 416.927(d)(2).
This requires a relationship of both duration and frequency. “The treating
physician doctrine is based on the assumption that a medical professional who has
dealt with a claimant and his maladies over a long period of time will have a
deeper insight into the medical condition of the claimant than will a person who
has examined a claimant but once, or who has only seen the claimant’s medical
records.”
Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003) (citation and emphasis omitted). See also
Jones v. Colvin, 514 Fed. Appx. 813, 819 (10th Cir. 2013) (unpublished) (ALJ’s reasons for
rejecting opinion of a treating physician in favor of the opinion of a nonexamining physician were
not legally sufficient); Daniell v. Astrue, 384 Fed. Appx. 798, 803 (10th Cir. 2010) (unpublished)
(rejecting ALJ’s criticism of format of treating physician report when nonexamining consultant
report was in similar format). The Court finds that the assumption that a treating physician who
has seen a claimant 27 times over more than two years has deeper insights into the limitations of a
17
claimant than a one-time examiner is especially applicable in the case of bipolar disorder,5 a
“mood disorder marked by alternating manic and depressive episodes.” Den Hartog v. Wasatch
Academy, 129 F.3d 1076, 1081 n.2 (10th Cir. 1997) (citations omitted).
The parties devote large portions of their briefs to the question of whether Dr. Caldwell
was entitled to withhold her treating notes. The question of whether Dr. Caldwell was justified in
her refusal to produce her treating notes is not directly before this Court and was not before the
ALJ in making a decision on Hopper’s disability application. Instead, the question before the ALJ
was proper consideration of Dr. Caldwell’s opinion evidence, taking together the January 2012
letter and the August 2011 assessment. On remand, the ALJ must evaluate whether Dr.
Caldwell’s January 2012 contains observations that sufficiently support her August 2011
evaluation to give her opinions controlling weight. Robinson, 366 F.3d at 1083; Langley, 373
F.3d at 1122. The Court notes that, even if the ALJ continues to find that Dr. Caldwell’s opinions
are not entitled to controlling weight, Dr. Caldwell’s opinions are still entitled to deference and
the ALJ would need to consider the relevant factors of Section 404.1527(c)(2). Krauser v. Astrue,
638 F.3d 1324, 1331-32 (10th Cir. 2011); Sissom v. Colvin, 512 Fed. Appx. 762, 766-67 (10th
Cir. 2013) (unpublished). Additionally, if the ALJ finds that the opinion evidence of Dr. Jeffries
and Dr. Smallwood should be given more weight than the opinion evidence of Dr. Caldwell, he
would need to provide adequate legal justification. Robinson, 366 F.3d at 1084 (error for ALJ to
5
The Tenth Circuit has recognized, in other contexts, that one or two dates in a
longitudinal history of mental illness may not fairly represent the varying severity of the illness.
See Hierstein v. Chater, 110 F.3d 73 *2 (10th Cir. 1997) (unpublished) (“the ALJ’s choice of two
superficially favorable notations out of a five-year treatment record, downplaying the severity of
a chronic mental impairment inherently varying with the vicissitudes of the patient’s life, reflects
the kind of misleading selective inquiry courts have decried on numerous occasions”).
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reject treating physician opinion in favor of nonexamining consultant opinion “absent a legally
sufficient explanation for doing so”).
Conclusion
The Court takes no position on the merits of Hopper’s disability claim, and “[no]
particular result” is ordered 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).
Because this case is reversed based on the ALJ’s failure to adequately justify his rejection
or discounting of the opinion evidence of Dr. Caldwell, the undersigned declines to discuss
Hopper’s other asserted appeal issues. On remand, the Commissioner should ensure that any new
decision sufficiently addresses all issues raised by Hopper.
Based on the foregoing, the decision of the Commissioner denying disability benefits to
Claimant is REVERSED AND REMANDED.
Dated this 4th day of December 2014.
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