Laflen v. Commissioner of Social Security

Filing 25

MEMORANDUM OPINION AND ORDER -- The decision of the Commissioner is REVERSED and the cause is REMANDED for further proceedings consistent with this Memorandum Opinion and Order. Signed by Magistrate Judge Bernard M. Jones on 8/23/16. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SANDRA DEE LAFLEN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. CIV-15-348-BMJ

MEMORANDUM OPINION AND ORDER
Plaintiff, Sandra Dee Laflen, brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the Social Security Administration’s denial of disability insurance benefits and
disabled widow’s benefits. Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
exercise of jurisdiction over this matter by a United States Magistrate Judge. The Commissioner
has answered and filed the Administrative Record (AR), and both parties have briefed their
respective positions. For the reasons stated below, the Commissioner’s decision is reversed and
remanded for further proceedings.
I.

Procedural Background
Plaintiff protectively filed applications for disability insurance benefits and disabled

widow’s benefits. AR 235-41, 283. The Social Security Administration (SSA) denied the
applications initially and on reconsideration. AR 69, 71. Following a hearing, an Administrative
Law Judge (ALJ) issued an unfavorable decision dated August 20, 2013. AR 29-45. The
Appeals Council denied Plaintiff’s request for review. AR 1-4. Thus, the decision of the ALJ
became the final decision of the Commissioner. It is this decision which is the subject of judicial
review.

II.

The ALJ’s Decision
The ALJ followed the sequential evaluation process required by agency regulations. See

Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining five-step sequential
evaluations process); see also 20 C.F.R. § 404.1520. The ALJ first determined that Plaintiff had
not engaged in substantial gainful activity since the amended alleged onset date, September 30,
2010. AR 32.
At step two, the ALJ determined that Plaintiff has the following severe impairments:
diabetes mellitus, obesity, fibromyalgia, hypertension, systemic lupus, status post ventral hernias
(two), panic disorder with agoraphobia, and dysthymic disorder. AR 32. At step three, the ALJ
found that Plaintiff’s impairments do not meet or medically equal any of the impairments listed
at 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 32-33.
The ALJ next determined Plaintiff’s residual functional capacity (RFC) concluding she
could perform light work:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to lift and carry 20 pounds
occasionally and 10 pounds frequently. The claimant can sit for about 6 hours
during an eight-hour workday and can stand and walk for about 6 hours during an
eight-hour workday. The claimant can occasionally climb ramps/stairs, balance,
stoop, kneel, crouch, and crawl. The claimant cannot climb ladders, ropes, or
scaffolds. The claimant can understand, remember, and carry out simple, routine,
and repetitive tasks. The claimant can respond appropriately to supervisors, coworkers, and usual work situations, but have occasional contact with the general
public.
AR 34.1
At step four, the ALJ found that Plaintiff could not perform her past relevant work
including assistant manager of a retail store, receptionist/office assistant, and parts washer and

1

See 20 C.F.R. § 404.1567(b) (setting forth requirements for light work).

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inspector for quality control. AR 44. Relying on the testimony of a vocational expert (VE), at
step five the ALJ concluded Plaintiff could perform other light, unskilled work including records
clerk, plastics worker, and garment worker, and that these jobs exist in significant numbers in the
regional and national economies. AR 45. The ALJ concluded, therefore, that Plaintiff was not
disabled for purposes of the Social Security Act. Id.
III.

Issues Presented for Judicial Review
Plaintiff raises three issues for judicial review.

First, Plaintiff claims that the ALJ

improperly evaluated the medical evidence and specifically, failed to correctly evaluate the
treating physician opinion of Dr. Michael Ramos. Second, Plaintiff claims the ALJ’s credibility
analysis is not supported by substantial evidence.

Third, Plaintiff claims the ALJ’s RFC

determination is not supported by substantial evidence. Because the Court finds a remand is
required as to Plaintiff’s first claim of error, the Court does not reach the merits of the remaining
claims. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (remanding for further
proceedings due to the ALJ’s failure to follow the correct legal standards in considering the
claimant’s treating physician opinion and declining to reach merits of claimant’s challenge to
RFC and credibility determinations as those issues “may be affected by the ALJ’s treatment of
the case on remand”).
IV.

Standard of Review
Judicial review of the Commissioner’s final decision is limited to determining whether

the factual findings are supported by substantial evidence in the record as a whole and whether
the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir.
2009). “Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003)

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(quotation omitted). A decision is not based on substantial evidence if it is overwhelmed by
other evidence in the record or if there is a mere scintilla of evidence supporting it. Branum v.
Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). The court “meticulously examine[s] 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.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009) (citations omitted). While the court considers whether the ALJ followed the applicable
rules of law in weighing particular types of evidence in disability cases, the court does not
reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
V.

Analysis
The record contains many references to Plaintiff’s inability to afford medical care. As a

result, much of the treatment she has received involves visits to the emergency room of local
hospitals. However, since 2003 and continuing through the date of the ALJ’s decision, Plaintiff
has received care from her treating physician, Dr. Ramos.2
Dr. Ramos offered opinions as to both Plaintiff’s mental and physical limitations. See
AR 495 (Medical Opinion Regarding Residual Functional Capacity); AR 497 (Treating
Physician Mental Functional Capacity Assessment Questionnaire). As to mental limitations, Dr.
Ramos opined that Plaintiff “is unable to tolerate area’s [sic] with crowds or loud noises” and
“unable to handle stressfull [sic] situtation’s [sic] making it difficult for her to seek
employment.” AR 497. The mental assessment was completed in September 2012 and does not
state the time period it covers.
2

Most recently, Dr. Ramos noted Plaintiff’s need for surgical evaluation due to hernias and her
lack of insurance for such treatment. AR 476.

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As to Plaintiff’s physical limitations, Dr. Ramos opined that Plaintiff can stand, walk or
sit a maximum of “[a]bout 2 hours” during an 8-hour day and lift and carry no more than 10
pounds occasionally. AR 495. He further opined that Plaintiff would be absent from work more
than 3 days per month and that 25% or more of the time Plaintiff’s symptoms would likely
interfere with the “attention and concentration needed to perform simple work tasks.” Id. Dr.
Ramos opined that Plaintiff’s limitations have existed for one year, i.e., from September 2010
through September 2011. Id.
If the ALJ had not rejected Dr. Ramos’s opinions concerning Plaintiff’s mental
limitations, further testimony from a VE would be required to determine if any jobs exist that
Plaintiff could perform.3 And, if the ALJ had not rejected some or all of Dr. Ramos’s opinions
concerning Plaintiff’s physical limitations, the VE testimony establishes no jobs exist that
Plaintiff could perform and, therefore, that Plaintiff would be disabled.4 Because the ALJ did not
correctly apply the analysis governing the treating physician opinion of Dr. Ramos and aspects
of the ALJ’s analysis are not supported by substantial evidence, a remand is required.

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The Court notes that the ALJ did not present any hypotheticals to the VE concerning the mental
limitations as set forth in Dr. Ramos’s opinion. Should the ALJ determine on remand not to
reject Dr. Ramos’s opinion, the ALJ is reminded that the hypotheticals to the VE must match
with precision a claimant’s impairments borne out by the evidentiary record. See, e.g., Hargis v.
Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (“Testimony elicited by hypothetical questions
that do not relate with precision all of a claimant’s impairments cannot constitute substantial
evidence to support the Secretary’s decision.”).
4

At the hearing, the ALJ provided a hypothetical to the VE which included, as alternatives, the
limitations set forth in the physical residual functional capacity opinion of Dr. Ramos. See AR
67 (VE testimony); see also AR 495 (Dr. Ramos’s opinion). The VE testified in response to the
hypothetical that these limitations would eliminate all jobs. AR 67. Thus, “[t]he obvious impact
of such limitations was confirmed at the hearing by the VE, who stated that [Plaintiff] could not
work if Dr. [Ramos’s] opinions were accepted.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th
Cir. 2011).

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A.

The ALJ’s Weighing of the Medical Evidence and the Treating Physician
Rule

Plaintiff first claims the ALJ’s decision to give “little weight” to the opinion of Dr.
Ramos is contrary to the treating physician rule. The Court finds Krauser v. Astrue, 638 F.3d
1324 (10th Cir. 2011) is controlling and requires reversal and remand.5
A sequential, two-step inquiry governs an ALJ’s evaluation of the medical opinions of a
claimant’s treating physician. The two-step inquiry is mandatory and each step of the inquiry is
“analytically distinct.” Krauser, 638 F.3d at 1330. First, the ALJ must decide whether the
opinion is entitled to “controlling weight.” If the opinion is “well-supported by medically
acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other
substantial evidence in the record,” then the opinion must be given controlling weight. Id. A
deficiency in either of these areas requires that the opinion not be given controlling weight. Id.6
When a treating physician opinion is not entitled to controlling weight, the inquiry does
not end. The opinion is still entitled to deference. Thus, at the second step of the inquiry, “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 the cited regulations for
this particular purpose, for the weight assigned.” Id. As the Tenth Circuit has made clear: “[i]f
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Notably, the Commissioner wholly fails to address Krauser or the Tenth Circuit precedent upon
which Krauser is based. Instead, the Commissioner cites inapposite decisions where the ALJ
properly set forth reasons for rejecting the treating physician opinion. See, e.g. Pisciotta v.
Astrue, 500 F.3d 1074, 1078-80 (10th Cir. 2007) (finding substantial evidence supported ALJ’s
decision that treating physician opinion was not entitled to controlling weight: ALJ cited record
evidence of internal inconsistencies in treating physician opinion, demonstrated lack of support
for opinions and also cited other record evidence to show that opinion was inconsistent with the
record as a whole).
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The Commissioner incorrectly sets forth the standard governing the analysis as follows: “[A]
treating physician’s opinion is not entitled to controlling weight unless it is consistent with the
entire record.” See Brief in Support of the Commissioner’s Decision [Doc. No. 23] at ECF p. 10.

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this is not done, a remand is required.” Id. The relevant factors governing the second step of the
inquiry include: “(1) the length of the treatment 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.”
Id. at 1331 (citation omitted).
The treating physician rule is founded on the treating physician’s unique perspective to
the medical evidence due to both the duration and frequency of the treatment relationship.
Doyal, 331 F.3d at 762. The rule “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.” Id. (citation omitted); see also 20
C.F.R. § 404.1527(c)(2) (addressing weight given to treating source due to his or her “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
hospitalizations”).
As set forth, Dr. Ramos offered opinions as to both Plaintiff’s mental and physical
limitations. The Court addresses these opinions separately.
1.

Dr. Ramos’s Opinion as to Plaintiff’s Mental Limitations

The ALJ first addressed Plaintiff’s mental limitations. The ALJ referenced Dr. Ramos’s
opinion that Plaintiff “is unable to tolerate areas with crowds or loud noises” and “is unable to

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handle stressful situations, making it difficult for her to seek employment.” AR 43. The ALJ
then made the following finding: “The undersigned affords Dr. Ramos little weight as it is not
supported by the evidence of record as a whole.” Id.
By giving “little weight” to Dr. Ramos’s opinion, the ALJ essentially rejected it. See
Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (noting that by giving “little weight” to
the treating physician opinion, the ALJ effectively rejected it). As sole support, the ALJ stated
perfunctorily that Dr. Ramos’s opinion was unsupported by the record as a whole. AR 43.
The ALJ must give good reasons for the weight assigned to a treating physician opinion
and those reasons must be “sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion and the reason for that
weight.” Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004). Here, “the ALJ failed to
explain or identify what the claimed inconsistencies were between [the opinion of Dr. Ramos]
and the other substantial evidence in the record,” and, therefore, “his reasons for rejecting [the]
opinion are not ‘sufficiently specific’ to enable this court to meaningfully review his findings.”
Id. at 1123 (citation omitted); see also Ringgold v. Colvin, -- F. App’x --, 2016 WL 1297817 at
*3 (10th Cir. 2016) (ALJ’s “conclusory reasoning, which did not explain how or why the
specific limitations in [the treating physician’s] opinion are inconsistent with the medical
evidence or with [the claimant’s] daily activities, was inadequate to explain the ALJ’s rejection
of the opinion”).
Moreover, the ALJ impermissibly ended the analysis without addressing the second
phase of the treating physician inquiry. See Krauser, 638 F.3d at 1330 (if the ALJ “simply
stop[s] after the first step” a remand is required); see also id. at 1331 (“the ALJ’s assessment of
Dr. Lambert’s [treating physician] opinion is patently inadequate for the distinct reason that it

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ends halfway through the required two-step analysis: the ALJ simply concluded that ‘Dr.
Lambert’s opinion . . . cannot be given controlling weight’ and then said no more about it . . . .”).
The ALJ did not address any of the relevant factors when giving Dr. Ramos’s opinion “little
weight.” Under these circumstances, the ALJ’s error requires a remand. As the Tenth Circuit
has instructed, while “[i]t may be possible to assemble support for [the ALJ’s] conclusion from
parts of the record cited elsewhere in the ALJ’s decision . . . that is best left for the ALJ himself
to do in the proceedings on remand.” Krauser, 638 F.3d at 1331; see also Ringgold, 2016 WL
1297817 at *2 (duty to supply reasons for rejecting a treating physician opinion “is the ALJ’s;
neither the Commissioner nor the courts may supply post-hoc reasons that the ALJ did not
provide.).
2.

Dr. Ramos’s Opinion as to Plaintiff’s Physical Limitations

Addressing Plaintiff’s physical limitations, the ALJ cited the pertinent regulations
governing the first step of the treating physician inquiry, determined the opinion of Dr. Ramos
was “probative” and gave it “due consideration,” but concluded the opinion was “not
substantiated by the clinical findings and [was] inconsistent with the other evidence of record.”
AR 43. The ALJ elaborated somewhat stating:
For example, on examination, the claimant has full strength of her extremities and
no neurological deficits. She generally has full range of motion or only slightly
limited range of motion of her spine and bilateral upper and lower extremities.
She is able to pick up and manipulate small objects without difficulty. Her grip
strength is 5/5. The x-rays of her joints are within normal limits and show no
acute abnormalities. She ambulates with a stable gait at a moderately slow speed,
without the use of assistive devices.
AR 43-44. The ALJ then stated that he would give “little weight to the opinions and findings of
Dr. Ramos where they are not supported by the signs, symptoms and medical findings in the
record.” AR 44 (emphasis added). The ALJ made a qualified rejection of Dr. Ramos’s findings,

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but did not explain which of the findings were unsupported. Nor did the ALJ cite any portion of
the record setting forth the findings upon which he relied to demonstrate that Dr. Ramos’s
findings were unsupported.
As Plaintiff points out, it appears the ALJ relied on the consultative examination of Dr.
Grace Gallardo to demonstrate the inconsistency of Dr. Ramos’s opinion with the medical
evidence of record.

Notably, however, in the ALJ’s initial summary of Dr. Gallardo’s

examination of Plaintiff, the ALJ acknowledges findings that are consistent with Dr. Ramos’s
findings including the following:
•

[The claimant] was unable to perform adequately movements that require standing on
one foot or tiptoe/heel walk. Her balance was poor on these exercises, but not in an
ataxic way;

•

The claimant is obese and seems to have mood problems that might influence her
ability to work, besides not having regular medical care that could assist in keeping
her symptoms enough under control to be able to work; and

•

The claimant was able to seat [sic] comfortably during the visit, but could not stand
for more than a short period of time.

AR 30 (citing Exhibit B6F). The ALJ then omitted any reference to Dr. Gallardo’s additional
findings when he addressed the weight given to Dr. Ramos’s opinion. The ALJ’s analysis,
therefore, is faulty and a remand is required.7
Certainly, the ALJ is not required to discuss every piece of evidence, but “in 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.”

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The ALJ’s preference for Dr. Gallardo’s opinion does not remedy the error. As the Tenth
Circuit has observed, “[t]hough the ALJ could assign great weight to [the opinion of a
nonexamining medical expert], the ALJ still had to address the opinions of [treating physicians]”
and provide a legally sufficient explanation for favoring the nonexamining expert’s opinion).
Lopez v. Colvin, 642 F. App’x 826, 832 (10th Cir. 2016).

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Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996); see also Hardman v. Barnhart, 362
F.3d 676, 681 (10th Cir. 2004) (“it is improper for the ALJ to pick and choose among medical
reports, using portions of evidence favorable to his position while ignoring other evidence.”).
Furthermore, the ALJ again stopped short his treating physician analysis. Significantly,
the ALJ expressly referenced the applicable law and regulations governing the first phase of the
treating physician inquiry but never referenced the second phase. See AR 43 (“Generally, the
opinion of a treating physician is entitled to controlling weight, provided it is supported by
medically acceptable clinical and diagnostic techniques and it is not inconsistent with other
substantial evidence in the case (Social Security Ruling 96-2p).”). Indeed, nowhere in the ALJ’s
decision does he identify the second phase of the inquiry or the factors relevant thereto. As set
forth above, pursuant to Krauser, these deficiencies in the ALJ’s analysis requires a remand. See
also Clifton, 79 F.3d at 1009 (“In the absence of ALJ findings supported by specific weighing of
the evidence, we cannot assess whether relevant evidence adequately supports the ALJ's
conclusion[s] . . . and whether he applied the correct legal standards to arrive at th[ose]
conclusion[s].”); Conkle v. Astrue, 297 F. App’x 803, 806 (10th Cir. 2008) (“Because the ALJ
simply drew conclusions without analyzing and weighing the evidence and without making
appropriate findings based on that evidence, we cannot review those conclusions.”).
Disingenuously, the Commissioner offers post-hoc rationale, citing evidence of record
that arguably supports the Commissioner’s decision. But as the Commissioner is, or certainly
should be aware, “[p]ost-hoc efforts of the Commissioner . . . to work through the omitted
second step for the ALJ are prohibited[.]” Krauser, 638 F.3d. at 1330.

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VI.

Conclusion
In sum, the ALJ’s analysis of Dr. Ramos’s treating physician opinion is legally flawed

and not supported by substantial evidence. On remand, the ALJ is reminded that he must
complete both analytically distinct phases of the treating physician analysis and support his
analysis with specific citation to the record in a manner sufficient to allow meaningful review.
The decision of the Commissioner is REVERSED and the cause is REMANDED for
further proceedings consistent with this Memorandum Opinion and Order.
ENTERED this 23rd day of August, 2016.

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