Brimer v. Social Security Administration

Filing 22

OPINION AND ORDER by Magistrate Judge T Lane Wilson , dismissing/terminating case (terminates case) (kah, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
TERRIE LOUISE BRIMER,
Plaintiff,
vs.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

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Case No. 15-cv-649-TLW

OPINION AND ORDER
Plaintiff Terrie Louise Brimer seeks judicial review of the decision of the Commissioner
of the Social Security Administration denying her claim for disability insurance benefits under
Titles II and XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 416(i), 423, and 1382c(a)(3).
In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a
United States Magistrate Judge. (Dkt. 13). Any appeal of this decision will be directly to the Tenth
Circuit Court of Appeals
ISSUE
Plaintiff raises one main issue: that the Administrative Law Judge (“ALJ”) failed to
properly weigh or even discuss the opinion of treating physician David R. Hicks, M.D.2

Effective January 23, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting
Commissioner of the Social Security Administration and is substituted as defendant in this action
pursuant to Federal Rule of Civil Procedure 25(d).

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Plaintiff also argues that had the ALJ properly considered Dr. Hicks’ opinion, she would qualify
for benefits under Medical-Vocational Guideline (“Grid Rule”) 201.10 as a “person closely
approaching advanced age,” or Grid Rule 201.02 as a “person of advanced age.” (Dkt. 20 at 7).
The Commissioner concedes that should the Court find in plaintiff’s favor with regard to Dr.
Hicks’ opinion, this case should be remanded to the ALJ for further consideration of the Grid
Rules. (Dkt. 21 at 8).
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STANDARD OF REVIEW
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported by
substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). Substantial
evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. See id. The Court’s review is
based on the record, and 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. The Court may neither re-weigh the evidence nor substitute
its judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th
Cir. 2005). Even if the Court might have reached a different conclusion, if supported by substantial
evidence, the Commissioner’s decision stands. See White v. Barnhart, 287 F.3d 903, 908 (10th
Cir. 2002).
ANALYSIS
Treating Physician/Opinion Evidence
Plaintiff argues that the ALJ erred by failed to properly weigh or even discuss the opinion
of treating orthopedic surgeon David R. Hicks, M.D., instead giving great weight to opinions from
the consultative examiners and non-examining agency physician consultants. (Dkt. 20).3
Ordinarily, a treating physician’s opinion is entitled to controlling weight when it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2); see also Hackett v. Barnhart, 395 F.3d at 1173-74 (citing Watkins v. Barnhart, 350
Plaintiff’s brief does not develop an argument that the ALJ improperly weighed any other
opinion, only that of Dr. Hicks; however, the Court suggests that upon remand, the ALJ re-examine
all of the opinion evidence to form a proper RFC with supported discussion.

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F.3d 1297, 1300-01 (10th Cir. 2003)). If the ALJ discounts or rejects a treating physician opinion,
he is required to explain his reasoning for so doing. See Frey v. Bowen, 816 F.2d 508, 513 (10th
Cir. 1987) (stating that an ALJ must give specific, legitimate reasons for disregarding a treating
physician’s opinion); Thomas v. Barnhart, 147 F. App’x 755, 760 (10th Cir. 2005) (holding that
an ALJ must give “adequate reasons” for rejecting an examining physician’s opinion and adopting
a non-examining physician’s opinion).
The analysis of a treating physician’s opinion is sequential. First, the ALJ must determine
whether the opinion qualifies for “controlling weight,” by determining whether it is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and whether it is consistent
with the other substantial evidence in the administrative record. Watkins, 350 F.3d at 1300. If the
answer is “no” to the first part of the inquiry, then the analysis is complete. If the ALJ finds that
the opinion is well-supported, he must then confirm that the opinion is consistent with other
substantial evidence in the record. Id. “[I]f the opinion is deficient in either of these respects, then
it is not entitled to controlling weight.” Id.
However, even if the ALJ finds the treating physician’s opinion is not well-supported by
medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other
substantial evidence in the record, treating physician opinions are still entitled to deference and
must be evaluated in reference to the factors enumerated in 20 C.F.R. § 404.1527. Those factors
are as follows:
(1) the length of the treating relationship and the frequency of examination, (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed, (3) the degree to
which the physician’s opinion is supported by relevant evidence, (4) consistency
between the opinion and the record as a whole, (5) whether or not the physician
is a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.

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Watkins, 350 F.3d at 1301 (citing Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001)).
The ALJ must give good reasons in his decision for the weight he ultimately assigns the opinion.
Id. (citing 20 C.F.R. § 404.1527(c)(2)). The reasons must be of sufficient specificity to make clear
to any subsequent reviewers the weight the adjudicator gave to the treating physician’s opinion
and the reasons for that weight. See Andersen v. Astrue, 319 F. App’x 712, 717 (10th Cir. 2009)
(unpublished).4
Here, the ALJ failed to analyze Dr. Hicks’ opinions at all, so there is no treating physician
analysis for the Court to review. The Commissioner attempts to fill in the gaps of the ALJ’s
decision by noting that the ALJ mentioned some of Dr. Hicks’ treatment notes in his RFC
discussion, and addressed Dr. Hicks’ opinions of plaintiff’s functional limitations during the May
16, 2014 administrative hearing; however, this effort cannot cure the ALJ’s error. (Dkt. 21 at 3-4).
On remand, the ALJ needs to perform a proper treating physician analysis of Dr. Hicks’
opinions. Since the ALJ did not properly weigh or discuss those opinions, the remaining physician
opinions in the RFC may need to be revisited as well.
CONCLUSION
For the foregoing reasons, the ALJ’s decision finding plaintiff not disabled is REVERSED
and REMANDED for further proceedings. Specifically, the ALJ should discuss and perform a
proper treating physician analysis of Dr. Hicks’ opinion.
SO ORDERED this 31st day of March, 2017.

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10th Cir. R. 32.1 provides that “[u]npublished opinions are not precedential, but may be cited for
their persuasive value.”
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