Mackey v. Social Security Administration

Filing 27

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
ROGER L. MACKEY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 14-CV-703-PJC

OPINION AND ORDER
Claimant, Roger L. Mackey (“Mackey”), pursuant to 42 U.S.C. § 405(g), requests judicial
review of the decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying Mackey’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. Mackey appeals the
decision of the Administrative Law Judge (“ALJ”) and asserts that the Commissioner erred
because the ALJ incorrectly determined that Mackey was not disabled. For the reasons discussed
below, the Court REVERSES AND REMANDS the Commissioner’s decision.
Claimant’s Background
Mackey was 47 years old at the time of the first hearing on September 3, 2010, and he
was 49 years old at the time of the second hearing on February 5, 2013. (R. 47, 69, 212).
Mackey testified that he had a tenth grade education and a GED. (R. 73). Mackey reported an

inability to work due to pain and problems with his arms and hands. (R. 80). He said that he had
difficulty sitting and walking for prolonged periods. Id.
Mackey testified that he experienced pain in his shoulders, arms, and elbows. (R. 56, 82).
He occasionally experienced neck pain. (R. 82). Mackey’s arms and elbows locked up on him.
(R. 54, 56, 81). He experienced numbness and swelling in his hands, which made his fingers
sensitive to touch. (R. 54, 60). Mackey stated that he was losing the strength in his arms and the
functioning of his hand. (R. 54, 59-60). Mackey reported difficulty lifting due to problems with
his arms and hands. (R. 54, 87). Mackey experienced pain with continuous arm movement. (R.
88-89). Numbness and swelling in Mackey’s hands caused him to drop things. (R. 84). He
stated that he was unable to hold a glass due to gripping problems. (R. 59). Mackey said that he
could lift about 50 pounds, but he could not carry it. (R. 87-88).
Mackey reported difficulty standing due to back pain and swelling in his knees. (R. 8687). He reported swelling and numbness in his feet. (R. 54, 59-60). Mackey experienced
sensitivity in his toes, which made them uncomfortable to touch. (R. 54). He had difficulty
wearing shoes due to problems with his feet. Id. Mackey reported difficulty walking and
balancing. (R. 56, 86). Bending over and constant motion created pain in Mackey’s back and
legs. (R. 89).
Mackey testified to difficulty breathing. (R. 60). He could walk about 600 feet before
needing to stop due to shortness of breath. Id.
Mackey reported difficulty sleeping due to pain. (R. 58, 89). He generally only slept for
about two hours at night due to pain. (R. 58). He took frequent naps throughout the day. (R. 5859, 90).

2

Mackey testified that he was treated by Dr. Tucker for symptoms of osteoarthritis in
March 2012. (R. 54, 80-81). Mackey stated that Dr. Tucker gave him with a cortisone shot in
his left shoulder and that it did not help. (R. 57, 82). Dr. Tucker prescribed medications for
depression, pain, inflammation, and insomnia, and they made Mackey drowsy. (R. 58-59, 7981). Mackey stated that his medical insurance only allowed him five office visits with Dr.
Tucker per year, so he phoned Dr. Tucker for medication refills. (R. 55, 81).
In describing his daily activities, Mackey said that he watched television, played with his
grandchildren, and visited with a friend. (R. 58, 93). He was able to do the laundry, cook, and
grocery shop. (R. 91-93). He mowed his yard using a riding lawn mower, but he could only do
that for about 30 minutes at a time. (R. 91). He would drive a car between 20 to 30 minutes to
visit his daughter. (R. 93-94). On nice days, he would sit outside, spend time in his shop, and
walk around. (R. 90). During cold weather, he tried to stay inside. (R. 57-58). Mackey was
unable to carry his grandchildren, because he was fearful of dropping them or falling on top of
them. (R. 54, 61-62, 90). Mackey reported difficulty showering. (R. 54).
On December 15, 2005, Mackey saw Rebecca C. Lewis, D.O., for complaints of knots in
his shoulders and low back pain. (R. 302-03). Assessments were low back pain and shoulder
pain. (R. 302).
On January 26, 2006, Mackey saw David J. Tucker, M.D., for an office visit for
complaints of multiple joint pain and a history of osteoarthritis (R. 328-29). Dr. Tucker said that
Mackey had a history of multiple joint problems, had problems with osteoarthritis, had been on
multiple pain relief medications, and had a negative rheumatoid panel. (R. 328). Dr. Tucker said
that on examination there was a marked tenderness of both knees and both shoulders, together
with tenderness of the paracervical neck muscles. Id. Dr. Tucker said that Mackey’s hands
3

showed some mild osteoarthritic changes. Id. He said that x-rays of the cervical spine, shoulder,
and knee showed moderate osteoarthritic changes. Id. Dr. Tucker gave a Depo Medrol injection
and prescribed pain relief medications. Id.
A note from Dr. Tucker’s office dated February 8, 2006 says that Mackey was concerned
about the amount of prednisone he was taking. (R. 326-27).
On February 14, 2006, Dr. Tucker wrote a To Whom It May Concern letter stating that
Mackey had a history of severe osteoarthritis of multiple joints. (R. 330). Dr. Tucker wrote that,
while he hoped that medication would give Mackey some relief and control of the pain, Dr.
Tucker’s opinion was that Mackey was “permanently disabled for any type of moderately
strenuous activities and working.” Id.
At his appointment with Dr. Tucker on January 2, 2007, Mackey complained of increased
arthritis pain and difficulty walking. (R. 324-25). He reported tenderness and swelling of his
right foot. Id. Dr. Tucker’s impression was degenerative joint disease, “doing well.” Id. Dr.
Tucker prescribed medication. Id.
Mackey saw Dr. Tucker on September 24, 2007, for upper abdominal pain and decreased
appetite. (R. 322-23). Dr. Tucker told Mackey to discontinue taking Piroxicam for his arthritis.
(R. 322). Dr. Tucker ordered an abdominal ultrasound which revealed acute cholecystitis and
cholelithiasis. (R. 322, 331-32). Dr. Tucker prescribed an antibiotic and made a referral to
Philip A. Woodworth, M.D., for surgical consultation. (R. 322-23).
On October 2, 2007, Dr. Woodworth examined Mackey and recommended laparoscopic
cholecystecteomy surgery. (R. 333). Mackey saw Dr. Woodworth for a postoperative
examination on October 30, 2007. (R. 335). Dr. Woodworth noted that Mackey was “doing very
well.” Id. Dr. Woodworth released Mackey to resume full activity on November 12, 2007. Id.
4

Mackey was seen by Dr. Tucker on December 5, 2007, and Dr. Tucker’s impressions
included degenerative joint disease. (R. 320-21).
Dr. Tucker examined Mackey on August 4, 2008, and diagnosed degeneration of cervical
intervertebral disc, osteoarthritis, and insomnia. (R. 316). Piroxicam, tramadol, and trazodone
were prescribed. Id.
Mackey saw Dr. Tucker on October 2, 2008, for increased joint pain, neck pain, arthritis
in his knees and ankles, heel spurs, and arm spasms. (R. 317). Mackey reported difficulty
standing for prolonged periods of time. Id. He experienced arm pain and leg pain during the
nighttime hours, and he reported difficulty sleeping. Id. On examination, Dr. Tucker noted
osteoarthritic changes of the hands, elbows, and wrists, as well as “significant” changes of his
knees. Id. Mackey had marked tenderness in his lower lumbar spine. Id. Dr. Tucker wrote that
he “encouraged [Mackey] to go ahead and apply for disability, as he certainly is not going to be
able to do the type of manual labor he is used to much longer.” Id. Dr. Tucker prescribed
medications. Id.
Dr. Tucker continued to prescribe Mackey medications on a monthly basis in 2009 and
2010. (R. 309-10, 341-45, 347-70). Mackey’s listed medications were Desyrel, Feldene,
Flexeril, Lyrica, Mobic, and Ultram. Id.
Mackey saw Dr. Tucker on September 15, 2010, for pain and increased difficulties of his
shoulders, right knee, lower back, and neck, and x-rays were taken. (R. 405-08). On
examination, Mackey had diffuse joint tenderness of most joints, marked osteoarthritis changes
of his hands and feet, and markedly decreased range of motion of his cervical spine and lumbar
spine. (R. 407). Dr. Tucker said that x-rays showed degenerative joint disease and degenerative
disc disease of the cervical and lumbar spines, and he noted osteoarthritic changes reflected in x5

rays of Mackey’s right knee and shoulders. Id. Dr. Tucker’s impression was osteoarthritis of
multiple joints, and he said that Mackey was “unable to work at this time.” Id.
At a May 26, 2011, appointment with Dr. Tucker, Mackey needed refills of his
medication, and Dr. Tucker noted his ongoing problems with his arthritis. (R. 409). Dr. Tucker
noted that Mackey was taking eight Ultram pills a day and said that Mackey had been stable at
that dosage for some time. Id. On physical examination, Dr. Tucker noted tenderness, stiffness,
and decreased range of motion of multiple joints, “especially knees, ankles, wrists[,] and
shoulders.” Id. Dr. Tucker’s impression was osteoarthritis of multiple joints, and he refilled
Mackey’s prescription of Ultram. Id.
On December 1, 2011, Mackey saw Dr. Tucker for refills, and Dr. Tucker noted
tenderness and decreased range of motion on examination. (R. 417). His impressions were
osteoarthritis of multiple joints; arthritis of the feet; plantar fasciitis; and acromioclavicular
arthritis. Id. He gave Mackey an injection of Depo Medrol. Id.
On March 12, 2012, Dr. Tucker said that Mackey had been having increased problems
with pain in his feet and his right shoulder. (R. 415). On examination, Mackey had tenderness,
stiffness, and decreased range of motion of multiple joints. Id. Dr. Tucker added gabapentin to
Mackey’s pain medications. Id. Dr. Tucker wrote that Mackey had been “unable to work for
quite some time.” Id.
On January 24, 2013, Mackey saw Dr. Tucker for refill of his medications. (R. 43-44,
46). Dr. Tucker noted Mackey’s ongoing problems, including pain, and he said that Mackey was
having numbness and tingling of his hands and feet. (R. 43). On examination, Mackey had
subjective decreased sensation in his feet and toes. Id. He had marked arthritic changes in his
knees and hands. Id. Chest x-rays showed significant changes due to chronic obstructive
6

pulmonary disease (“COPD”). Id. Dr. Tucker’s impressions were osteoarthritis; COPD;
neuropathy; and depression. Id. Several medications were prescribed, and Dr. Tucker ordered
nerve conduction and pulmonary function studies. (R. 44).
Dr. Tucker completed a Physical Medical Source Statement dated February 4, 2013. (R.
420-21). Dr. Tucker indicated that Mackey could sit, stand, and walk for 30 minutes at a time
and for two hours total for each activity during an eight-hour work day. (R. 420). Mackey could
frequently lift up to 10 pounds, but could never lift more than that. Id. Dr. Tucker found that
Mackey could occasionally reach, but he could never bend, squat, crawl, or climb. Id. Dr.
Tucker indicated that Mackey’s pain and other symptoms would interfere with his attention and
concentration for 20% of a typical work day. (R. 421). Mackey would need to rest for a period
of five to 15 minutes several times during an eight-hour work day. Id. Dr. Tucker indicated that
Mackey would be absent from work more than four days a month due to “bad days.” Id. Dr.
Tucker indicated that Mackey had objective findings of reduced range of motion, muscles
spasms, tenderness, abnormal gait, and muscle weakness, and he noted that x-rays supported the
limitations found on the form. Id.
A pulmonary function test completed on February 7, 2013, showed mild restrictive
impairment. (R. 45).
Mackey saw Miles M. Johnson, M.D., for lower extremity electrodiagnostic nerve
conduction testing on February 4, 2013. (R. 36-41). Dr. Johnson noted that Mackey appeared to
be in mild distress. (R. 36). Test results were normal. (R. 37). Dr. Johnson said that Mackey’s
history was suggestive of small fiber sensory neuropathy, and he suggested skin biopsy testing.
Id.

7

On May 19, 2009, agency consultant Mohammed Quadeer, M.D., completed a physical
examination of Mackey, and Mackey’s chief complaints were joint pain and osteoarthritis of
neck, lower back, and small joints of the hands. (R. 372-78). Mackey told Dr. Quadeer that he
was taking up to eight tramadol a day, but that it was not helping. (R. 372). On a one-to-ten
scale, Mackey stated that his pain was a four with medication, and a nine without it. Id. He was
taking Flexeril, and it was helping him sleep. Id. On examination, Mackey had limited range of
motion of his shoulders, his cervical spine, and his lumbar-sacral spine, and the spinal limitations
were associated with muscle spasms. (R. 374). Mackey had 5/5 grip strength, and Dr. Quadeer
found no swelling of the small joints of the hands. Id. He found no effusion or edema of the
knees, which he said were stable in all range of motion exercises. Id. Gait was safe and stable
with appropriate speed. Id. On the accompanying backsheet, Dr. Quadeer noted muscle spasm,
pain with extension and flexion, and weak toe walking. (R. 378). Dr. Quadeer said that Mackey
might have some anxiety and depression. (R. 374). Dr. Quadeer’s assessments were:
1. Osteoarthritis diagnosed in 2006 involving the joints of the cervical and
lumbar spine and also probably the knee joints.
2. The small joints of both hands showed no swelling or localized tenderness.
The movements are normal without any pain.
3. The patient probably has some anxiety.
(R. 374).
Nonexamining agency consultant Janet G. Rodgers, M.D., completed a Physical Residual
Functional Capacity Assessment on June 16, 2009. (R. 379-86). Dr. Rodgers found Mackey
could perform “light” work, with no postural, manipulative, visual, communicative, or
environmental limitations. (R. 380-83). In the section for narrative comments, Dr. Rodgers
summarized Dr. Quadeer’s consultative examination report in some detail. (R. 380-81).

8

Procedural History
On March 24, 2009, Mackey filed his application for disability insurance benefits. (R.
210-15). Mackey asserted an onset of disability on February 9, 2006. (R. 212). The application
was denied initially and on reconsideration. (R. 123-26, 129-31). An administrative hearing was
held before ALJ John W. Belcher on September 3, 2010. (R. 69-101). Following an unfavorable
decision by the ALJ on January 10, 2011, Mackey filed a request for review to the Appeals
Council on March 11, 2011. (R. 104-18, 169-72). On June 7, 2012, the Appeals Court granted
the request and remanded the case back to the Social Security Administration for further
proceedings. (R. 119-22). At a second administrative hearing held on February 5, 2013, Mackey
amended his onset of disability to October 2, 2008. (R. 22, 49). ALJ Belcher issued a second
unfavorable decision dated March 8, 2013, and the Appeals Council denied further review in an
order dated September 17, 2014. (R. 1-6, 22-28). Thus, the March 8, 2013 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

9

claim. 20 C.F.R. § 404.1520.1 See also Wall v. Astrue, 561 F.3d 1048, 1052-53 (10th Cir. 2009)
(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.

1

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 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.
10

Decision of the Administrative Law Judge
In his decision, the ALJ found that Mackey met insured status requirements through
December 31, 2010. (R. 24). At Step One, the ALJ found that Mackey had not engaged in any
substantial gainful activity since his alleged onset date of October 2, 2008. Id. At Step Two, the
ALJ found that Mackey had severe impairments of osteoarthritis of the lumbar spine, knees, and
shoulders. Id. The ALJ said that the alleged osteoarthritis of the hands and ankles had not been
medically determined. Id. At Step Three, the ALJ found that Mackey’s impairments did not
meet any Listing. (R. 25).
The ALJ found that Mackey had the RFC to perform “light” work, noting that Mackey
could “frequently finger, handle, feel, and reach overhead bilaterally.” Id. The ALJ also limited
Mackey to avoidance of hazards such as “fast machinery, unprotected heights, and driving.” Id.
At Step Four, the ALJ determined that Mackey could not return to past relevant work. (R. 27). At
Step Five, the ALJ found that there were a significant number of jobs in the national economy that
Mackey could perform, taking into account his age, education, work experience, and RFC. (R.
27-28). Therefore, the ALJ found that Mackey was not disabled at any time from October 2, 2008
through December 31, 2010. (R. 28).
Review
Mackey asserts that the ALJ erred in rejecting the opinion evidence of Dr. Tucker.
Plaintiff’s Opening Brief, Dkt. #20. The undersigned agrees that reversal is required due to errors
of the ALJ in his discussion and analysis of the opinion evidence of Dr. Tucker. Therefore, the
Commissioner’s decision is hereby REVERSED AND REMANDED.
An ALJ must discuss more than just the evidence favorable to an opinion that a claimant is
not disabled:
11

[I]n addition to discussing the evidence supporting his decision, the ALJ also must
discuss the uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects.
Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). It is error to ignore evidence that would
support a finding of disability while highlighting the evidence that favors a finding of
nondisability. Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007). In addition to these
general principles regarding evidence, an ALJ is required to discuss all opinion evidence and to
explain what weight he gives it. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
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, 366 F.3d at 1084. 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. § 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.
The undersigned notes that the ALJ began his discussion of the treating evidence of Dr.
Tucker on the date of the amended alleged onset date, October 2, 2008. (R. 25). Because the
alleged disabling condition of osteoarthritis was one that Dr. Tucker had treated since January
2006, the evidence from before the relevant period was arguably relevant to the validity of Dr.
Tucker’s opinions, especially given that the length of the treating relationship is the first factor set
12

out by the regulations in discussing the weight to be assessed treating opinions. 20 C.F.R. §
404.1527(c). Records from before the October 2, 2008 amended alleged onset date are also
important because the ALJ said in his decision that records before September 2010 did not
support a finding of severe arthritis. With that as context, the ALJ should have discussed the
objective medical findings that Dr. Tucker made in January 26, 2006 of marked tenderness of both
knees and shoulders, and of the paracervical neck muscles. (R. 328). He should have noted that
Dr. Tucker’s physical examination of Mackey reflected mild osteoarthritic changes of his hands.
Id. These notes from Dr. Tucker’s January 26, 2006 office visit were objective medical evidence
that supported Mackey’s claims, and they therefore should have been mentioned by the ALJ. See,
e.g., Jones v. Colvin, 514 Fed. Appx. 813, 823-24 (10th Cir. 2013) (unpublished) (ALJ’s omission
of uncontroverted evidence supporting claimant’s allegations of pain went “beyond the merely
technical” and called into question whether the appropriate standards had been applied); Sheppard
v. Astrue, 426 Fed. Appx. 608, 610-11 (10th Cir. 2011) (evidence that tended to show claimant’s
worsening depression should have been discussed by ALJ).
The ALJ also did not discuss significantly probative treating evidence after the amended
alleged onset date, such as the treatment notes from the September 15, 2010 office visit. (R. 2527, 405-08). The ALJ did not note Dr. Tucker’s findings that Mackey had diffuse joint tenderness
of most joints, marked osteoarthritis changes of his hands and feet, and markedly decreased range
of motion of his cervical spine and lumbar spine. (R. 25-27, 407). The ALJ’s failure to discuss
these objective medical findings makes it difficult to follow his reasoning when he stated that the
medical records did not support a finding of severe arthritis. (R. 26). Compare Keyes-Zachary v.
Astrue, 695 F.3d 11156, 1167 (10th Cir. 2012) (ALJ’s explanation of weight given to treating
physician opinion evidence is adequate if it allows a subsequent reviewer to follow it).
13

The Commissioner argues that the ALJ followed the regulatory process and found that Dr.
Tucker’s opinion was not supported by the evidence of the record and was inconsistent with the
evidence from Dr. Quadeer’s examination and report. Commissioner’s Brief, Dkt. #25, p. 5. As
stated above, the ALJ did not discuss all of the objective medical findings of Dr. Tucker that
arguably supported his opinions, and therefore the ALJ’s conclusion that the medical records did
not support a finding of severe arthritis is hollow. Additionally, while inconsistency with a onetime consulting examination can be a legitimate factor for finding that a treating opinion should
be given reduced weight, there must be a legitimate reason for giving an examining opinion more
weight than a treating physician opinion. Here, the ALJ simply noted inconsistent findings, such
as Dr. Quadeer’s finding of no swelling of the hands’ small joints, but he did not explain why he
chose to believe Dr. Quadeer’s one-time examination findings over the longitudinal findings of
Dr. Tucker from examinations of Mackey that took place over several years. (R. 26-27). See
Sissom v. Colvin, 512 Fed. Appx. 762, (10th Cir. 2013) (unpublished) (ALJ erred by giving no
reason for accepting results of examining physician and opinions of nonexamining physicians
over treating physician opinion). Jones, 514 Fed. Appx. at 819 (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 undersigned finds that some of the ALJ’s explicit reasons for giving Dr. Tucker’s
opinions little weight were not legitimate. For example, Dr. Tucker said that Mackey could
frequently lift up to 10 pounds, but could never lift more. (R. 420). The ALJ stated that this
seemed incongruous. (R. 26). The undersigned recognizes that most physicians will state a lifting
14

limitation in terms of one weight that can be lifted occasionally and a lesser weight that can be
lifted frequently, but the undersigned does not find it incongruous to simply state that a claimant
can lift one weight frequently and should not lift more even occasionally. 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”).
The ALJ then stated that Mackey’s “impairments do not involve any internal organs.
Therefore, Dr. Tucker’s projection of the claimant’s being absent four days a month every month
seems dubious.” (R. 26-27). The undersigned agrees that Mackey made no claims of disability
related to internal organs, but the undersigned finds that is not a requirement for disability, and it
is not a requirement before a treating physician can find that a claimant will miss days due to pain,
which appears to be the basis of Dr. Tucker’s opinion. (R. 421).
The ALJ also said that there was nothing in the medical records that suggested that
Mackey was limited to standing, walking, or sitting for only 30 minutes at a time. (R. 27). The
Commissioner suggests that this was a proper finding by the ALJ that Dr. Tucker’s opinion was
not supported by evidence. Commissioner’s Brief, Dkt. #25, p. 6. The ALJ, however, did not
note that Dr. Tucker himself on the form indicated that his opinions were supported by objective
findings of reduced range of motion, muscles spasms, tenderness, abnormal gait, and muscle
weakness, together with x-rays. (R. 421). If the ALJ meant to state that these objective findings
cited by Dr. Tucker did not support his opinion that Mackey could only walk, stand, or sit for 30
minutes at a time, then the ALJ needed to make that reason more clear, and he needed to give an
adequate explanation supporting his reasoning. Sissom, 512 Fed. Appx. at 767 (ALJ’s decision
15

was not sufficiently specific to make clear the reasons for the weight given treating physician
opinion); Zemp-Bacher v. Astrue, 477 Fed. Appx. 492, 496 (10th Cir. 2012) (unpublished)
(reversing in part because court could not determine how a treating physician opinion was
inconsistent with treatment records); Lopez v. Astrue, 371 Fed. Appx. 887, 891 (unpublished)
(ALJ’s reasons for either discounting or rejecting treating physician opinion were not supported
by substantial evidence).
In Langley, the Tenth Circuit noted that the ALJ had said that he rejected the treating
physician’s opinions because they were not supported by objective evidence, including his own
records, and the court agreed that this was a facially valid reason. Langley, 373 F.3d at 1121-22.
The court, however, saw no “obvious inconsistencies” either with his own records or with other
medical records. Id. at 1122. Because the ALJ had not explained or identified what the claimed
inconsistencies were, the reviewing court had no ability to meaningfully review the ALJ’s
findings. Id. at 1123.
Here, the ALJ needed to discuss the opinion evidence with reference to the Section
404.1527 factors. The Section 404.1527(c) factors are:
length of the treatment relationship and the frequency of examination;
nature and extent of the treatment relationship;
supportability, including citation to objective medical evidence;
consistency with the record as a whole;
specialization; and
other factors brought to the ALJ’s attention.
20 C.F.R. § 404.1527(c). The Tenth Circuit does not require that all factors be explicitly
discussed by the ALJ. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). On remand,
however, a more specific discussion by the ALJ of the Section 404.1527(c) factors would be
helpful to any needed additional review.

16

Remand is necessary so that the ALJ can discuss the favorable treating evidence from Dr.
Tucker and assess the opinion evidence of Dr. Tucker in accordance with required law, including
the factors of Section 404.1527.
Conclusion
Because the ALJ erred in his consideration of the evidence of Dr. Tucker, the Court
REVERSES and REMANDS the ALJ’s March 8, 2013 decision for further consideration.
The Court takes no position on the merits of Mackey’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).
Based on the foregoing, the March 8, 2013 decision of the Commissioner denying
disability benefits to Claimant is REVERSED AND REMANDED.
Dated this 25th day of March 2016.

17