McGinnis v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge Jodi F Jayne , remanding case (terminates case) (Re: 2 Social Security Complaint ) (kah, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
BRITNEY M. M.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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CASE NO. 17-CV-301-JFJ
OPINION AND ORDER
Plaintiff Britney M. seeks judicial review of the decision of the Commissioner of the Social
Security Administration denying her claims for disability insurance benefits under Titles II and
XVI of the Social Security Act (“Act”), 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. Any appeal of this decision will be directly to the Tenth Circuit Court of
Appeals. For reasons explained below, the Court reverses and remands the Commissioner’s
decision denying benefits.
I.
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 mere scintilla and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (citing Glass v. Shalala, 43 F.3d 1392, 1395 (10th
Cir. 1994)). 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. (citing Washington v. Shalala, 37
F.3d 1437, 1439 (10th Cir. 1994)). 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, the Commissioner’s decision
stands so long as it is supported by substantial evidence. See White v. Barnhart, 287 F.3d 903,
908 (10th Cir. 2002).
II.
Procedural History and Relevant Portions of ALJ’s Decision
Plaintiff, then a 28-year old female, applied for Title II and Title XVI benefits on December
2, 2013, alleging a disability onset date of June 1, 2010. R. 339-351. Plaintiff claimed she was
unable to work due to “Schizo affective disorder, depression, bipolar, and Sciatic nerve pain in
[her] leg.” R. 366. Plaintiff’s claims for benefits were denied initially on March 7, 2014, and on
reconsideration on June 4, 2014. R. 123-148, 183-187; 149-178, 194-199. Plaintiff then requested
a hearing before an Administrative Law Judge (“ALJ”), and the ALJ held three hearings, the first
on May 7, 2015 (R. 116-122), the second on August 6, 2015 (R. 90-115), and the third on March
30, 2016 (R. 36-89).1 After receiving hearing testimony from a medical expert and a vocational
expert at the August 6, 2015 and March 30, 2016 hearings, the ALJ issued a decision on April 25,
2016, finding that Plaintiff was not disabled because she was able to perform other work in
significant numbers in the national economy. R. 10-35.
In making his decision, the ALJ found that Plaintiff had the severe impairments of
“schizoaffective disorder, depression, bipolar disorder, degenerative disc disease, sciatic nerve
The ALJ reset the first hearing because Plaintiff’s record was incomplete and because Plaintiff
recently retained an attorney. The second ALJ hearing proceeded with a vocational and medical
expert and was again rescheduled to allow further objective mental status testing on Plaintiff and
gathering further missing mental health records. The March 30, 2016 hearing was the final ALJ
hearing.
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pain in the leg and drug abuse in remission.” R. 17. 2 The ALJ further found that none of Plaintiff’s
impairments met or combined to medically equal any of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. The ALJ considered the paragraph B criteria in evaluating Plaintiff’s
mental impairments to find that Plaintiff had mild limitation of activities of daily living and social
functioning, and moderate limitation with regard to concentration, persistence, or pace, with no
episodes of decompensation. R. 18. Before proceeding to step four, the ALJ determined that
Plaintiff retained the following residual functional capacity (“RFC”):
With respect to lifting, carrying, pushing, and pulling, she is limited to light and
sedentary exertion work. With respect to walking or standing, she is limited to 2
hours (combined total) of an 8-hour workday, with regular work breaks. She is able
to sit for 6 hours (combined total) of an 8-hour workday, with regular work breaks.
She is able to climb ramps or stairs only occasionally, is able to bend, stoop, crouch,
and crawl not more than occasionally and is unable to climb ropes, ladders, and
scaffolds, or work in environments where she would have to be exposed to
unprotected heights and dangerous moving machinery parts. She is unable to
perform tasks requiring overhead reaching more than occasionally and is further
unable to perform tasks requiring the use of foot pedals more than occasionally.
She is able to understand, remember, and carry out simple instructions in a workrelated setting and is able to interact with co-workers under routine supervision.
However, she is unable to interact with the general public more than occasionally,
regardless of whether that interaction is in person or over a telephone. She is
afflicted with symptoms from a variety of sources to include intermittent pain and
fatigue as well as mental impairments, all variously described, that are of sufficient
severity so as to be noticeable to her at all times, yet is able to remain attentive and
responsive and perform work assignments within the above-cited limitations.
R. 19 (emphasis added).
The ALJ summarized portions of Plaintiff’s mental health treatment records with
Counseling and Recovery Services of Oklahoma spanning visits from 2010 to 2015. R. 21-23. In
Plaintiff alleges error only in the ALJ’s treatment of her mental impairments and does not
challenge the Commissioner’s decision regarding her physical impairments. Plaintiff has therefore
waived any argument regarding her physical impairments. Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007) (“We routinely have declined to consider arguments that are not raised, or
are inadequately presented, in an appellant’s opening brief.”).
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discussing his opinion evidence, the ALJ then summarized a “Disability Determination
Explanation” exhibit form in the record. The ALJ cited “DDS reviewing physicians,” identified
only by initials, and noted these reviewing physicians found Plaintiff capable of performing “light
semi-skilled work with occasional stooping,” with mental limitations to “simple (unskilled) work.”
R. 24. The ALJ stated he effectively adopted these reviewing physicians’ opinions, “but [ ] added
a few additional limitations based on claimant’s hearing testimony” without elaboration. Id. The
ALJ then summarized the Mental Residual Functional Capacity Assessment (“MRFCA”)
completed by Plaintiff’s treating physician Christopher Blaisdell, D.O. R. 24-25.
In reaching his decision as to Plaintiff’s mental functioning capacity, the ALJ gave “little
weight” to and largely disregarded the opinion of Dr. Blaisdell, see R. 25, who had opined that
Plaintiff could not “work on a regular and sustained basis” in light of her mental impairments, see
R. 852. In rejecting Dr, Blaisdell’s opinion, the ALJ stated that he gave the decision “little weight
because it is inconsistent with claimant’s reported daily activities and far overstates his [sic]
limitations.” R. 25. The ALJ then cited several “examples” from (1) Plaintiff’s “Function Report
– Adult,” dated December 19, 2013, and (2) select portions of counseling notes from Plaintiff’s
treatment records at Counseling and Recovery Services, in support of his rejection of Dr.
Blaisdell’s opinion. R. 25-26.
Relying on testimony from the vocational expert, the ALJ then found that Plaintiff could
not perform any of her past relevant work. R. 27. The ALJ determined that Plaintiff was 25 years
old on her alleged onset date with a high school education, and transferability of skills was not
material because the Medical-Vocational Rules supported a finding of “not disabled” whether or
not she had transferable skills. Id. At step five, the ALJ found, again relying on vocational expert
testimony, that Plaintiff was not disabled because she could perform “other work” that existed in
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significant numbers, which included clerical mailer (DOT # 209.587-010), assembler (DOT #
726.685-066), and stuffer (DOT # 731.685-014). R. 28. The Appeals Council denied review, and
Plaintiff appealed. R. 1-5; ECF No. 2.
III.
Issues on Appeal
On appeal, Plaintiff raises two main points of error: (1) that the “[v]ocational [e]vidence is
[i]ncompetent”; and (2) that the ALJ failed to properly evaluate the opinion of Dr. Blaisdell. ECF
No. 14. The Court reverses the decision based on Plaintiff’s second allegation of error regarding
the ALJ’s evaluation of Dr. Blaisdell’s opinion.3
IV.
Analysis
Plaintiff argues that (1) the ALJ erred because he did not give proper weight to Dr.
Blaisdell’s opinion; and (2) the ALJ failed to perform a proper treating physician analysis
according to regulations. ECF No. 14 at 9. The Court reverses based on the second argument that
the ALJ failed to perform a proper analysis.
A.
Standards Governing Treating Physician Opinions
“[I]n evaluating the medical opinions of a claimant’s treating physician, the ALJ must
complete a sequential two-step inquiry, each step of which is analytically distinct.” Krauser v.
Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). First, the ALJ must determine whether the opinion
qualifies for “controlling weight.” Id. If the opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence
in the administrative record,” it must be given controlling weight. Id.; see also 20 C.F.R. §§
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The Court does not reach the first point of error because the vocational evidence discussed by
Plaintiff “may be affected by the ALJ’s treatment of the case on remand.” Watkins v. Barnhart,
350 F.3d 1297, 1299 (10th Cir. 2003) (explaining that court need not reach the merits of claims
that “may be affected by the ALJ’s treatment of the case on remand”).
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404.1527(c)(2), 416.927(c)(2). “[I]f the [treating physician’s] opinion is deficient in either of these
respects, then it is not entitled to controlling weight.” Watkins v. Barnhart, 350 F.3d 1297, 1300
(10th Cir. 2003).
A finding at step one that the treating doctor’s opinion is not entitled to controlling weight
does not end the inquiry because the opinion is “still entitled to deference.” Krauser, 638 F.3d at
1330-31 (“[A] deficiency as to the conditions for controlling weight raises the question of how
much weight to give the opinion, it does not resolve the latter, distinct inquiry.”). Therefore, an
ALJ who does not afford a treating physician controlling weight must proceed to the second step
of the analysis. Id. at 1330.
At the second step, the ALJ must “make clear how much weight the opinion is being given
(including whether it is being rejected outright) and give good reasons, tied to the factors specified
in [20 C.F.R. § 404.1527] for this particular purpose, for the weight assigned.” Id. Those factors
include:
(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.
Watkins, 350 F.3d at 1301 (citing Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001)).
“Although the ALJ’s decision need not include an explicit discussion of each factor, the record
must reflect that the ALJ considered every factor in the weight calculation. Andersen v. Astrue,
319 F. App’x 712, 718 (10th Cir. 2009) (internal citation omitted). “The decision must articulate
the ALJ’s reasoning such that later reviewers can identify both the weight that was actually
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assigned to the opinion and the reasons for that weight.” Id. at 719. If an ALJ does not complete
this analysis, a remand is required. Krauser, 638 F.3d at 1330.
B.
Dr. Blaisdell’s Opinion and Other Medical Opinions
Dr. Blaisdell, a psychiatrist at Counseling & Recovery Services of Oklahoma, treated
Plaintiff for schizoaffective disorder from at least December 8, 2011 to February 25, 2016.
Initially, he treated her psychosis with injections of Risperdal Contra but subsequently switched
to Invega pills in 2012 and then to Invega injections in 2014. On August 3, 2015, Dr. Blaisdell
completed a MRFCA for Plaintiff, which lists her current diagnosis on Axis I as “295.7
schizoaffective.” R. 849. Dr. Blaisdell opined that Plaintiff had extreme or marked limitations in
several areas, which the ALJ listed in his decision. R. 24-25. Dr. Blaisdell concluded Plaintiff
could not “work on a regular and sustained basis” in light of her mental impairment. R. 852. In
the narrative explanation, Dr. Blaisdell explained that he reached this conclusion because Plaintiff
suffers from “bouts of depression, poor motivation, low energy and poor concentration,” although
her psychotic symptoms “are currently controlled (given current life stressors).” R. 852. During
the final hearing on March 30, 2016, the Vocational Expert testified that limitations supported by
Dr. Blaisdell’s MRFCA, had it been accepted, would preclude substantial gainful employment.
Larry Vaught, Ph.D., performed a consultative psychological examination on November
24, 2015. R. 931-935. After obtaining patient history, Dr. Vaught administered a Wechsler
Memory Scale III test, a WAIS-III test, and a Halstead-Reitan Neuropsychological Battery Mental
Status Examination and diagnosed Plaintiff with Cognitive Disorder, NOS (Mild) and
Schizoaffective Disorder (by history). R. 935. He completed a Medical Source Statement of
Ability to Do Work-Related Activities (“MSS”) and concluded Plaintiff had moderate limitations
in the ability to understand, remember and carry out complex instructions; the ability to make
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judgments on complex work-related decisions; the ability to carry out complex instructions in
general; the ability to interact appropriately with the public, co-workers, and supervisors; and the
ability to respond appropriately to usual work situations and changes in work settings. R. 937939. In support of his moderate assessments, Dr. Vaught opined that Plaintiff was “nervous in
crowds. She is often fatigued, with reduced motivation, for example, she bathes irregularly.” R.
938. Two different state agency medical consultants, identified in the record only by initials LML,
Ph.D. and BTL, Ph.D., found Plaintiff had a severe Schizophrenia and other Psychotic Disorders
and an Affective Disorder but found Plaintiff could perform simple tasks and some complex tasks.
R. 128-130, 140-142, 162, 176.
C.
ALJ Erred By Failing to Properly Perform Step Two of Treating Physician
Analysis
For purposes of this analysis, the Court assumes the ALJ could give Dr. Blaisdell’s opinion
less than controlling weight and does not reach whether the ALJ erred at step one. However, even
assuming no error occurred at the first step, the Court concludes that the ALJ erred at step two
because he “failed to satisfy [the Court] that all of the § 404.1527(d) factors were properly
considered and that the apparent rationale for largely disregarding [Dr. Blaisdell’s opinion] is
sufficient.” See Andersen, 319 F. App’x at 721–22.
After summarizing Dr. Blaisdell’s mild, moderate, marked, and extreme mental work
limitation opinions, the ALJ merely stated: “The undersigned has given Dr. Blaisdell’s opinion
little weight because it is inconsistent with claimant’s reported daily activities and far overstates
his [sic] limitations,” R. 25, listing several examples of allegedly inconsistent behavior by Plaintiff.
R. 25-26. Considering the ALJ’s opinion overall, he did not conduct an adequate step-two treating
physician analysis for several reasons.
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First, the ALJ’s decision does not reveal that he considered several relevant factors,
including: (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) consistency between the opinion and the record as a whole,
and (4) whether or not the physician is a specialist in the area upon which an opinion is rendered.
This information “would not be insignificant here,” given the length of the relationship and that
Dr. Blaisdell completed his MRFCA close in time to the ALJ’s decision. See Andersen, 319 F.
App’x at 722 (noting that, while factors may not uniformly weigh in favor of treating physician’s
opinions, they would not be insignificant in that case).
Second, the ALJ failed to explain why he gave weight to the non-examining opinions of
DDS physicians “LML, Ph.D. and BTL, Ph.D.” over Dr. Blaisdell’s opinion; he simply stated that
he “finds the same [as the DDS physicians] but has added a few additional limitations based on
claimant’s hearing testimony.” R. 24. This is not a sufficient explanation for his acceptance of
those opinions over Dr. Blaisdell’s. See Anderson, 319 F. App’x at 724 (ALJ’s statement that he
“concurred” with DDS physician’s opinion not sufficient); see generally Williams v. Bowen, 844
F.2d 748, 757 (10th Cir. 1988) (explaining that “opinions of physicians who have seen a claimant
over a period of time for purposes of treatment are given more weight over the views of consulting
physicians or those who only review the medical records and never examine the claimant”). The
ALJ also did not explain what weight he gave, if any, to Dr. Vaught’s opinion.
Finally, assuming the ALJ addressed the third factor of “the degree to which the physician’s
opinion is supported by relevant evidence” by listing examples of activities from Plaintiff’s
counseling notes that do not support Dr. Blaisdell’s MRFCA assessment, that is not a sufficient
analysis. See Andersen, 319 F. App’x at 722 (“Although supportability might prove determinative,
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that can only be decided after consideration of the other factors.”). Further, the examples provided
are not illustrative of the counseling notes as a whole and sometimes reflect only partial entries.
Upon review of the examples cited as support for his finding of little weight, the ALJ selected and
discussed only those portions of Plaintiff’s counseling visits with Alicia Davis, an associate of Dr.
Blaisdell’s, that supported his finding. For example, the ALJ notes: “On March 28, 2013 claimant
reported being in a very good mood. ‘Client reports being excited about Easter and getting to see
her in-laws as well as spend quality time with her son’ (Exhibit 13F, page 4). Her goal for the day
was to ‘Pick up my son, get the stuff to dye eggs’ (Exhibit 13F, page 4).” R. 25. This citation
leaves out that Plaintiff also reported “being upset with her mother for leaving town with a man
that she has only known for a short time” and “being angry with the situation” and being “very
worried about her mother.” R. 869. As another example, the ALJ cites: “In July of 2013, claimant
traveled to Indiana for a family reunion and to see her father (Exhibit 13F, page 18).” But the ALJ
failed to discuss prior visits in June, when Plaintiff presented to her appointments “shocked” and
in “disbelief” after she learned of her father’s cancer diagnosis. R. 878, 879. The ALJ further
failed to discuss Plaintiff’s stress over her father’s cancer’s rapid progression and family stressors
due to the fact that he lived in Indiana. R. 880, 881, 882. These selective examples from
counseling do not provide adequate reasons, tied to the relevant factors, for giving Dr. Blaisdell’s
opinion little weight. See Watkins, 350 F.3d at 1300 (ALJ must provide “good reasons” for weight
assigned to treating physician’s opinion); see generally Robinson v. Barnhart, 366 F.3d 1078, 1082
(10th Cir. 2004) (an ALJ may not make speculative inferences from medical reports and may reject
a treating physician’s opinion only on the basis of contradictory medical evidence).
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The ALJ’s decision does not satisfy the Court that all of the § 404.1527(d) factors were
properly considered, or that the ALJ’s rationale for largely disregarding Dr. Blaisdell’s opinion is
sufficient. The matter is remanded for proceedings consistent with this Order.
IV.
Conclusion
The ALJ’s decision finding Plaintiff not disabled is REVERSED and REMANDED for
further proceedings.
The ALJ should perform a proper treating physician analysis of Dr.
Blaisdell’s opinion. The ALJ may also revisit the vocational evidence as necessary based on his
treating physician analysis.
SO ORDERED this 28th day of September, 2018.
J D F J Y E MA IT A EJ D E
O I .A N , G S R T U G
U IE S A E D S R C C U T
N T D T T S IT I T O R
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