Robnett v. Commissioner of Social Security

Filing 24

OPINION AND ORDER. The decision of the Commissioner is REVERSED and the case REMANDED for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). A separate judgment shall be entered. Signed by Magistrate Judge Charles B Goodwin on 02/13/2017. (jb)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TESSA N. ROBNETT,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner,
Social Security Administration,
Defendant.1

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-15-362-CG

OPINION AND ORDER
Plaintiff Tessa N. Robnett brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of the Social Security
Administration (“SSA”) denying Plaintiff’s application for supplemental security income
(“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The parties
have consented to the jurisdiction of a United States Magistrate Judge. Upon review of the
administrative record2 and the arguments and authorities submitted by the parties, the Court
concludes that the Commissioner’s final decision should be reversed and this matter
remanded for further proceedings.

1

Nancy A. Berryhill, the current Acting Commissioner, is substituted as Defendant in this
suit pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and 42 U.S.C. § 405(g).
Citations to the administrative record (Doc. No. 11) are as “R. __,” using the pagination
assigned by the SSA in the certified copy of the transcript. Citations to other documents
filed in this Court use the pagination assigned by CM/ECF.
2

PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed her SSI application on November 24, 2008, alleging
disability because of fibromyalgia, depression, and thyroid problems beginning in February
2008. R. 420-23, 450, 455. Following denial of Plaintiff’s application initially and on
reconsideration, a hearing was held before Administrative Law Judge John Volz (referred
to herein as “ALJ Volz”) on February 25, 2010. R. 240-66. ALJ Volz issued an
unfavorable decision on March 18, 2010. R. 278-87. In February 2012, the SSA Appeals
Council vacated ALJ Volz’s decision and remanded Plaintiff’s case for reconsideration in
light of new and material evidence related to her alleged mental impairment. R. 292-94.
ALJ Lantz McClain (referred to herein as “the ALJ”) held a hearing on March 4,
2013, at which Plaintiff and a vocational expert (“VE”) testified. R. 187-213. On July 1,
2013, the ALJ held a supplemental hearing “to obtain the benefit of a medical expert[’s]”
opinion regarding Plaintiff’s mental impairments and limitations. R. 175-85. Ashok
Khushalani, a board-certified psychiatrist, testified at the hearing as a medical expert after
reviewing Plaintiff’s medical records available through May 2012. R. 178-84, 419. The
ALJ issued an unfavorable decision on August 30, 2013. R. 159-69.
As relevant here, a person is “disabled” within the meaning of the Social Security
Act if he or she is “unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment . . . which has lasted or can be
expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §
1382c(a)(3)(A); accord 20 C.F.R. § 416.905(a). The Commissioner uses a five-step
sequential evaluation process to determine entitlement to disability benefits. Wall v.
2

Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20 C.F.R. § 416.920. At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since November 24,
2008. R. 161. At step two, the ALJ found that Plaintiff had “the following severe
impairments: obesity, back pain, fibromyalgia, bipolar disorder, and a personality disorder,
unspecified.” R. 161. At step three, the ALJ determined that Plaintiff’s severe impairments
did not meet or equal any of the presumptively disabling impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. R. 161-63.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on
all of her impairments. R. 163-68. He found that Plaintiff’s RFC allowed her to perform
light work, subject to certain limitations. R. 163, 169. More specifically, and as relevant
to this appeal, the ALJ found that Plaintiff “is able to perform simple, repetitive tasks, relate
to supervisors and co-workers only on a superficial basis and should not work with the
public.” R. 163; see Pl.’s Br. (Doc. No. 16) at 2-11. At step four, the ALJ found that
Plaintiff had no relevant past work experience. R. 168.
At step five, the ALJ considered whether there are jobs existing in significant
numbers in the national economy that Plaintiff—in view of her age, education, work
experience, and RFC—could perform. R. 168-69. Relying on the VE’s testimony
concerning the degree to which Plaintiff’s “additional limitations” eroded the unskilled
light occupational base, the ALJ concluded that Plaintiff was “capable of making a
successful adjustment to other work that exists in significant numbers in the national
economy,” such as housekeeping cleaner or merchandise marker. R. 169; see R. 207-11.
Therefore, the ALJ concluded that Plaintiff had not been disabled within the meaning of
3

the Social Security Act between November 24, 2008, and August 30, 2013. R. 159, 169.
The Appeals Council declined to review that decision, R. 1, and this appeal of the
Commissioner’s final decision followed.
STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is limited to determining
whether factual findings are supported by substantial evidence in the record as a whole and
whether correct legal standards were applied. 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) (internal quotation marks 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)
(internal quotation marks omitted). The court “meticulously examine[s] the record as a
whole,” including any evidence “that may undercut or detract from the ALJ’s findings,”
“to determine if the substantiality test has been met.” Wall, 561 F.3d at 1052 (internal
quotation marks omitted). While a reviewing court considers whether the Commissioner
followed 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).
ANALYSIS
Plaintiff argues on appeal that the ALJ did not properly consider all of the relevant
evidence regarding the limitations caused by Plaintiff’s mental impairments, including by
4

failing to give sufficient weight to opinions of treating psychiatrist Alzira Vaidya, MD, and
placing undue reliance on opinions of nonexamining medical expert Ashok Khushalani,
MD. Plaintiff further argues that, as a result of these errors, the ALJ’s mental RFC
determination is not supported by substantial evidence in the record. See Pl.’s Br. at 2-11;
Pl.’s Reply Br. (Doc. No. 23) at 1-3.
A. Evaluation of Medical Source Opinions
Specific SSA regulations govern the consideration of opinions by “acceptable
medical sources.” See 20 C.F.R. §§ 416.902, .913(a). The Commissioner generally gives
the greatest weight to the medical opinions of a “treating source,” which includes a
physician or psychiatrist who has “provided [the claimant] with medical treatment or
evaluation” during a current or past “ongoing treatment relationship” with the claimant.
Id. §§ 416.902, .927(c); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).
When considering the medical opinion of a claimant’s treating source, the ALJ must
first determine whether the opinion should be given “controlling weight” on the matter to
which it relates. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003); 20 C.F.R.
§ 416.927(c)(2); SSR 96-2p, 1996 WL 374188, at *1-4 (July 2, 1996). The opinion of a
treating source is given such weight if it is both well-supported by medically acceptable
clinical or laboratory diagnostic techniques and not inconsistent with the other substantial
evidence in the record. Watkins, 350 F.3d at 1300 (applying SSR 96-2p, 1996 WL 374188,
at *2); 20 C.F.R. § 416.927(c)(2); SSR 96-2p, 1996 WL 374188, at *2 (“[W]hen all of the
factors are satisfied, the [ALJ] must adopt a treating source’s medical opinion irrespective
of any finding he or she would have made in the absence of the medical opinion.”).
5

A treating source opinion not afforded controlling weight is still entitled to
deference. See Watkins, 350 F.3d at 1300; SSR 96-2p, 1996 WL 374188, at *4. “In many
cases, a treating source’s medical opinion will be entitled to the greatest weight and should
be adopted, even if it does not meet the test for controlling weight.” SSR 96-2p, 1996 WL
374188, at *4. That an opinion is not given controlling weight does not resolve the second,
distinct assessment—i.e., what lesser weight should be afforded the opinion and why. See
Watkins, 350 F.3d at 1300-01. In this second inquiry, the ALJ weighs the medical opinion
using a prescribed set of regulatory factors:
(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.
Watkins, 350 F.3d at 1301 (internal quotation marks omitted); 20 C.F.R. § 416.927(c)(2)-(6).
The ALJ’s decision “‘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
reasons for that weight.’” Watkins, 350 F.3d at 1300 (quoting SSR 96-2p, 1996 WL
374188, at *5).
The ALJ also must weigh other medical source opinions using the relevant factors,
keeping in mind that “[t]he regulations provide progressively more rigorous tests for
weighing opinions as the ties between the source of the opinion and the [claimant] become
weaker.” SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996); see also 20 C.F.R. §
6

416.927(c)(3), (e). Relevant here, the weight an ALJ assigns to the opinion of a physician
or psychiatrist who did not examine the claimant “will depend on the degree to which [these
sources] provide explanations for their opinions” and “the degree to which these opinions
consider all of the pertinent evidence in [the record], including opinions of treating and
other examining sources.” 20 C.F.R. § 416.927(c)(3). Indeed, nonexamining source
opinions “can be given weight only insofar as they are supported by evidence in the case
record, considering such factors as the supportability of the opinion in the evidence” and
the other regulatory factors. SSR 96-6p, 1996 WL 374180, at *2; see also Lee v. Barnhart,
117 F. App’x 674, 678 (10th Cir. 2004) (“It follows that if the ALJ relies heavily on such
opinions . . . the opinions must themselves find adequate support in the medical evidence.”
(citing SSR 96-6p, 1996 WL 374180, at *2)). Again, the ALJ “must explain the weight he
is giving to” a nontreating source opinion if the ALJ relies on that opinion. Hamlin v.
Barnhart, 365 F.3d 1208, 1223 (10th Cir. 2004); accord 20 C.F.R. § 416.927(e)(2)(ii).
B. Dr. Vaidya’s Treatment of Plaintiff and Opinions Regarding Her Mental
Limitations
To be entitled to SSI, Plaintiff must show that she was “disabled” between
November 24, 2008, the date she filed her application, and August 30, 2013, the date the
ALJ issued his decision. R. 159, 169; see Romero v. Barnhart, 135 F. App’x 172, 175-76
(10th Cir. 2005) (citing 20 C.F.R. §§ 416.330, .335, .1476(b)(1)). Plaintiff’s medical
records document a history of depression, anxiety, bipolar disorder, and maladaptive,
impulsive behavior. See generally R. 564, 665, 693-716, 717-19, 911-27, 960, 972-73,
1021-25, 1030-37. Her healthcare providers have prescribed various combinations of
7

psychotropic medications, as well as counseling and coping-skills training, to manage those
conditions since at least December 2006. See, e.g., R. 638-40, 651-53, 660-64, 668-70,
947, 950, 955, 958, 970 (medication only); R. 697-98, 700, 717-18, 719-20, 852-58, 88286, 908-09, 911-27, 1021-22, 1026-29, 1030-37 (medication and counseling).
On March 31, 2009, Plaintiff went to Edwin Fair Community Mental Health Center
(“Edwin Fair”) because she was “having difficulty dealing with daily functioning.” R. 717.
After initial intake evaluations on that date and in early June 2009,3 Plaintiff was seen by
Edwin Fair psychiatrist Dr. Vaidya on June 9, 2009. R. 719. Dr. Vaidya noted that Plaintiff
had recently been discharged from the Oklahoma County Crisis Intervention Center
(“OCCIC”) with prescriptions for Abilify, Trazodone, and Prozac but that Plaintiff did “not
appear medication compliant.”

R. 719; see also R. 704, 1034 (noting a three-day

hospitalization at OCCIC after Plaintiff attempted suicide in January 2009). A mentalstatus exam was normal except for Plaintiff’s “anxious” mood and “constricted” affect. R.
719. Dr. Vaidya refilled Plaintiff’s medications. R. 719-20. Plaintiff saw Dr. Vaidya
again in July and September 2009. R. 857, 856. During this period, Dr. Vaidya continued
to prescribe Abilify, Trazodone, and Prozac. See R. 856.
In March 2010, Dr. Vaidya endorsed two functional assessment forms prepared by
an Edwin Fair case manager. R. 1021-22, 1024-25 (Exs. 26F, 27F); see also R. 165, 167

3

At the first intake evaluation, on March 31, 2009, Eldon Johnson, LPC, observed that
Plaintiff exhibited “symptoms of depression and mania.” R. 717. At the second evaluation,
in June 2009, Susan Adkins, LADC, diagnosed Plaintiff with “bipolar affective disorder,
manic, severe, without mention of psychotic behavior.” R. 692, 697-700.
8

(the ALJ finding that Dr. Vaidya “signed off” on these assessments). Through the
assessment forms, Dr. Vaidya opined that Plaintiff’s bipolar disorder, severe depression,
and “other suspected mental condition,” R. 1022, caused marked limitations in Plaintiff’s
ability to:
 understand, remember, and execute very short and simple instructions;
 interact appropriately with the general public;
 accept instructions and respond appropriately to criticism from supervisors; and
 respond appropriately to changes in the work setting;
and extreme limitations in Plaintiff’s ability to:
 maintain attention and concentration for extended periods;
 complete a normal workday and workweek without interruptions from
psychologically based symptoms;
 perform at a consistent pace without an unreasonable number and length of rest
periods; and
 get along with coworkers or peers without distracting them or exhibiting
behavior extremes.
See R. 1024-25. The March 2010 assessments elaborated on Plaintiff’s “problems with
disorganized thought processes, concentration, impulse control, memory, and obsessions,”
stating that Plaintiff
has problems with her cognitive thought processes [as evidenced by] racing
thoughts and paranoia. Tessa is unable to complete a task due to her mind
frequently wandering. Tessa feels safe at home and therefore does not like
to leave due to the stress, anxiety, and paranoia she feels when in public. She
also has problems with impulse control and her judgment. Tessa has
difficulties thinking things through before she makes decisions.
....
Tessa primarily stays at home, only leaving when it is absolutely necessary
for such things as grocery shopping. Tessa’s daily activities consist of
sleeping, eating, and playing videogames. Tessa reports that she does not
9

have any interests and lacks the motivation and energy to participate in
recreational activities.
R. 1021. Noting that Plaintiff’s “prognosis for recovery [was] low” because she has had
“mental health problems since she was a child,” the March 2010 assessments stated that “a
small degree” of “improvement may be seen with medication.” R. 1021-22.
Plaintiff next returned to Dr. Vaidya’s office on July 13, 2010. R. 883. Dr. Vaidya
noted that Plaintiff did “not appear medication compliant” and that Plaintiff reported she
had stopped taking Abilify. R. 883; see also R. 1038. Dr. Vaidya observed that Plaintiff’s
mental status was within normal limits except for her “depressed” and “anxious” mood. R.
883. Dr. Vaidya prescribed a new bipolar medication, Lamictal, and refilled Plaintiff’s
Trazodone. R. 883.
After an absence,4 Plaintiff reestablished care at Edwin Fair on August 23, 2011.
See R. 911-23. Plaintiff reported psychiatric symptoms and behavioral problems similar
to those she reported at her intake interviews in March and June 2009. Compare R. 91113, with R. 694-97, 704, 707. Plaintiff saw Dr. Vaidya on September 13, 2011. R. 927.
Plaintiff reported that she had been off her medications for six months. R. 927. On exam,
Dr. Vaidya observed that Plaintiff exhibited a “pressured” speech pattern, a “labile” affect,
and an “irritable” mood, and appeared to be hallucinating. R. 927. Dr. Vaidya prescribed

4

During this period, Plaintiff was seen by David Reinecke, MD, a physician at the Perkins
Family Clinic. See R. 927, 947, 950-52, 958, 960-61, 970-71. In addition to treating
Plaintiff for physical conditions, Dr. Reineke prescribed Plaintiff the psychotropic
medications Depakote, Trazodone, Prozac, and Bupropion. Id. In his decision, the ALJ
summarized only those portions of Dr. Reinecke’s treatment records related to Plaintiff’s
alleged physical impairments. R. 165-66.
10

Lamictal and Seroquel. See R. 927. Plaintiff next saw Dr. Vaidya in November 2011. R.
925. Plaintiff reported that she had stopped taking Seroquel “because it made her sick to
[her] stomach.” R. 925; see also R. 1038. A mental-status exam was normal in all respects.
R. 925. Dr. Vaidya increased Plaintiff’s Lamictal dosage. R. 925.5
On February 23, 2012, Plaintiff was discharged from Edwin Fair’s care due to lack
of contact with the facility. R. 908-09. Plaintiff returned to Edwin Fair on April 22, 2013.
R. 1030-34, 1037. At that time, she reported psychiatric symptoms and behavioral
problems similar to those she had reported in 2009 and 2011. Compare id., with R. 69497, 704, 707 (Mar. and June 2009), and R. 911-13 (Aug. 2011).6 Plaintiff reported that she
had not taken any psychotropic medications for ten months. R. 1033, 1037 (Ex. 28F).
Plaintiff saw Dr. Vaidya on April 30, May 2, and May 30, 2013. R. 1027-29. Mentalstatus exams conducted on all three visits were mostly within normal limits, and Plaintiff
reported that she took her medications as prescribed after Dr. Vaidya refilled them on April

5

On December 2, 2011, an Edwin Fair case manager completed another functional
assessment form concerning Plaintiff’s mental impairments. R. 885-86 (Ex. 20F). This
assessment does not reflect that it was endorsed by Dr. Vaidya or any acceptable medical
source within the meaning of SSA regulations. Id.; see Fulton v. Colvin, 631 F. App’x
498, 503 (10th Cir. 2015) (noting that a mental-health case manager is a nonacceptable
medical source). The case manager opined that Plaintiff’s bipolar disorder and recently
diagnosed “panic disorder without agoraphobia” caused limitations in Plaintiff’s ability to
focus, interact with others, adapt to changes in her routine, and handle stress appropriately.
R. 885-86, 911. The assessment noted that Plaintiff’s “prognosis for recovery [was] low”
and only a “small degree” of improvement could be expected with medication. R. 886.
6

After an intake evaluation, an unidentified Edwin Fair employee diagnosed Plaintiff with
bipolar disorder and an “[u]nspecified personality disorder.” R. 1035.
11

30, 2013. See R. 1027 (no abnormal findings noted), 1028 (noting only “irritable” mood
and “labile” affect), 1029 (noting only “pressured” speech).7
C. The ALJ’s Findings
The ALJ gave “little weight” to the opinion of Dr. Vaidya, as stated through the
March 2010 assessments, that Plaintiff’s mental impairments caused marked and extreme
limitations. R. 167. The ALJ explained:
[T]he claimant’s case manager competed a mental status form on March 9,
2010, which indicated the claimant had extreme and marked limitations.

7

Plaintiff submitted additional records to the Appeals Council with her request for review.
R. 2; see R. 41-55, 57-71, 73-87 (Edwin Fair prior-authorization requests dated October 9,
2013, April 11, 2014, and October 22, 2014). The Appeals Council determined that these
records did not relate to the period prior to the ALJ’s August 30, 2013 decision, and
instructed Plaintiff to submit a new application if she wanted the agency “to consider
whether [she was] disabled” after that date. R. 2. Contrary to Plaintiff’s assertion, the
Court is not required to “consider this evidence in its review” of the Commissioner’s final
decision simply because Plaintiff submitted these post-dated records to the Appeals
Council. Pl.’s Br. at 6 (citing Martinez v. Barnhart, 444 F.3d 1201, 1208 (10th Cir. 2008)).
In Martinez, the Tenth Circuit stated that certain later-submitted records were “‘part of the
administrative record to be considered [by this court] when evaluating [the ALJ’s] decision
for substantial evidence’” only “[b]ecause the Appeals Council ‘considered’” those records
when it denied the claimant’s request for review. Martinez, 444 F.3d at 1208 (quoting
O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994)). The Appeals Council in this case,
however, stated that it declined to consider Plaintiff’s additional treatment records due to
their lack of relevance. See R. 2; 20 C.F.R. § 416.1470(b) (2014). Because Plaintiff does
not challenge on appeal the Appeals Council’s determination that Plaintiff’s additional
evidence was not chronologically relevant, Pl.’s Br. at 6, Plaintiff has forfeited her
opportunity to have the Court review that determination. See Chambers v. Barnhart, 389
F.3d 1139, 1142 (10th Cir. 2004) (“Whether evidence qualifies as new, material and
chronologically relevant is a question of law subject to our de novo review. If the evidence
does not qualify, it plays no further role in judicial review of the Commissioner’s decision.
. . . [I]f the evidence qualifies but the Appeals Council did not consider it, the case should
be remanded for further proceedings.” (internal citations, quotation marks, and brackets
omitted)); Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (noting that the
plaintiff must “frame and develop” an objection to the Commissioner’s decision in a
manner “sufficient to invoke appellate review”).
12

(Exhibit 26F and 27F). Dr. Vaidya did sign off on these forms. However,
these are contradicted by their own most recent treatment notes, which stated,
“moderate intensity of problems reported” in April . . . 2013 (Exhibit 28F,
page 5). The opinions in Exhibits 26F and 27F are given little weight due to
the inconsistencies within these records.
R. 167 (quoting R. 1030).

In so finding, the ALJ also relied on the opinion of

nonexamining consultant Dr. Khushalani, giving that opinion “great weight.” R. 166, 168.8
Ultimately, the ALJ included in the RFC the mental limitations that Plaintiff could
“perform simple, repetitive tasks,” “relate to supervisors and co-workers only on a
superficial basis,” and “should not work with the public.” R. 163. The ALJ stated that this
RFC accommodated severe “mental impairments [that] are moderate in nature” and was
“supported by” Dr. Khushalani’s testimony and the Edwin Fair records “as indicated” in
his written decision. R. 168.
D. Whether the ALJ’s Evaluation of Dr. Vaidya’s Opinions Complied with the
Relevant Legal Standards and Is Supported by Substantial Evidence
As noted, the regulations set out a mandatory standard for weighing medical source
opinions about a claimant’s impairments. See Watkins, 350 F.3d at 1300-01; 20 C.F.R.
§ 416.927(c).

The ALJ’s decision falls short of that standard—and the corollary

requirement that each finding be supported by substantial evidence—in several respects.
First, the decision does not reflect whether the ALJ recognized that the opinions in
the March 2010 assessments were those of a treating psychiatrist. Properly evaluating a

The ALJ also gave “little weight” to the opinions stated in the December 2011 assessment
completed by an Edwin Fair case manager. R. 167. The ALJ stated that this assessment’s
conclusion that Plaintiff’s “condition was severe” was “in contrast to the recent treatment
records” in Exhibit 28F. R. 167.
8

13

medical opinion requires the ALJ to determine who gave the opinion, whether that person
is an “acceptable medical source,” and if so whether that source’s “treatment relationship”
with the claimant might entitle his or her medical opinion to special deference under the
regulations. See Doyal, 331 F.3d at 762-63; 20 C.F.R. § 416.927(c)(2); cf. Winick v.
Colvin, 2017 WL 33544, *2, *3-4 (10th Cir. Jan. 4, 2017) (rejecting possibility of harmless
error where ALJ misidentified one of claimant’s physicians “as an examining, rather than
a treating” source). Plaintiff asserts that Dr. Vaidya was her “treating” psychiatrist at the
time the March 2010 assessments were made, having seen Plaintiff at least three times
before that date. See Pl.’s Br. at 6; R. 719-20, 856, 857; see also 20 C.F.R. §§ 416.902,
.927(c)(2). Defendant Commissioner does not dispute that assertion. See Def.’s Br. (Doc.
No. 21) at 14-17. And the Tenth Circuit has held that a functional assessment prepared by
a case manager and signed by a psychiatrist must, absent evidence to the contrary, be
considered the medical opinion of the psychiatrist and afforded the level of deference
otherwise appropriate under the regulations. See McGoffin v. Barnhart, 288 F.3d 1248,
1251-52 (10th Cir. 2002) (recognizing assessment prepared by case manager and
undisputedly endorsed by treating psychiatrist as treating source opinion and finding ALJ
erred by rejecting opinion based upon “unfounded doubt that [the psychiatrist] agreed with
the assessment he signed”). While the ALJ acknowledged that Dr. Vaidya had “sign[ed]
off on” the March 2010 assessments, he at no point recognized that the opinions in those
assessments must be considered as those of a treating source. R. 167. Nor can the
undersigned infer such recognition through the discussion that the ALJ did provide, which
omits the question of whether Dr. Vaidya’s opinions were entitled to controlling weight
14

and reflects no difference in the approaches applied to weigh the March 2010 assessments
(presumptively a treating source opinion) and the testimony of Dr. Khushalani (a
nonexamining medical source opinion), or for that matter the December 2011 case manager
assessment (a nonacceptable medical source opinion). R. 167-68.
Second, the ALJ’s reliance on Dr. Khushalani’s July 2013 testimony is flawed. Dr.
Khushalani testified that Plaintiff can “do simple tasks” and can have only “occasional
public contact.” R. 180. Compare id., with R. 168 (RFC determination that Plaintiff can
“perform simple, repetitive tasks”; can “relate to supervisors and co-workers only on a
superficial basis”; and cannot “work with the public”). Because Dr. Khushalani did not
examine Plaintiff, the ALJ could credit his opinions “only insofar as they are supported by
evidence in the case record.” SSR 96-6p, 1996 WL 374180, at *2; see also Lee, 117 F.
App’x at 678. Dr. Khushalani stated that he based his opinions on the December 2011 case
manager assessment, which Dr. Khushalani said “suggests some amount of progress,
perhaps with medications and compliance” when compared to the marked and extreme
limitations assessed by Dr. Vaidya in March 2010. R. 180-82. Dr. Khushalani stated that
his opinions followed the December 2011 assessment “exactly,” R. 181, but that
assessment includes additional and greater limitations, e.g., that Plaintiff cannot
“concentrate for longer than 15 minutes on work related items,” “has the ability to follow
simple instructions for only a short amount of time,” “has severe memory problems,” if
stressed “will yell at coworkers and become violent,” and will “yell at others if [s]he starts
to feel overwhelmed or act out violently.” R. 885-86. Even if the December 2011
assessment was accepted as proof of progress from March 2010 to December 2011—rather
15

than the two being considered as separate opinions, one entitled to deference as that of a
treating psychiatrist and the other issued by a person who the regulations do not credit as
an “acceptable medical source,” 20 C.F.R. § 416.913(a)—the progress shown was not
sufficient to constitute “support in the case record” for Dr. Khushalani’s nonexamining
opinion.9
Third, the record does not support the ALJ’s conclusion that certain observations
and reports made at Edwin Fair in April and May 2013 are “inconsistent” with Dr. Vaidya’s
March 2010 assessments such that they “indicate that [Plaintiff’s] mental status ha[d]
improved” since March 2010. See R. 167. The ALJ sets forth the following specific
examples of such “inconsistencies”:
 In April 2013, Plaintiff “lived in an apartment with her boyfriend, which
indicated she was not completely socially isolated and [had] an ability to be
around others when she was motivated. She and her boyfriend watched
movies, played video games and listened to music, all of which indicated a
capacity to perform simple tasks when motivated.”
 In April 2013, Plaintiff “indicated she suffered from mood lability, [poor]
coping skills, suicidal ideation, depression, anger, anxiety, euphoria, change
in appetite, and sleep patterns[,] all of which were reports of moderate

9

Dr. Khushalani also expressed doubt about whether the medical records before him were
sufficient to allow him to render an opinion:
It is very difficult for me to give an opinion because the record is very inconsistent
and it does not really flow as to whether she’s in treatment, whether she’s
responding to treatment. There[ are] no records after May of 2012. I don’t know
what (INAUDIBLE) but there are no records of observation. I just have a mental
residual function filled out by a case manager.
R. 180. But see R. 179 (Dr. Khushalani’s testimony that he reviewed Exhibits 1F through
27F, which contain Dr. Vaidya’s and other Edwin Fair providers’ observations of
Plaintiff’s mental status on eight visits between March 31, 2009, and November 1, 2011,
as well as the December 2011 case manager assessment).
16

intensity. [Plaintiff] also reported she had not taken her medications for 10
months.”
 “The prognosis was good and measurable improvement in functioning was
expected during the initial authorization period.”
 On April 30, 2013, Plaintiff’s “speech was still pressured, but her physical
appearance appropriate, her mood normal, her affect appropriate, her
thoughts intact and oriented times three, delusion or hallucinations were
absent, interaction was cooperative and sleep and appetite were normal.” On
May 2, 2013, Plaintiff’s “speech was normal, mood irritable, affect labile,
thoughts intact and oriented times three, delusions and hallucinations were
absent, interaction cooperative, sleep decreased and appetite normal.” On
May 30, 2013, Plaintiff’s “speech was normal, mood normal, affect
appropriate, thoughts intact and oriented times three, delusions and
hallucinations were absent, sleep decreased and appetite normal.”
R. 167 (internal quotation marks omitted) (citing R. 1027-29, 1030-31, 1033, 1037).10
Almost all of these cited observations and reports from April and May 2013 are
similar to corresponding observations and reports made at the time of the March 2010
assessments. Plaintiff’s April 2013 living arrangement and daily activities cited by the
ALJ are comparable to what Plaintiff reported in the months before Dr. Vaidya’s March
2010 assessments. See R. 709 (June 3, 2009 report that Plaintiff was “[l]iving with friends
and has a boyfriend”), 1021 (March 2010 assessment noting that Plaintiff rarely left
residence and had few daily activities other than playing videogames). While an unknown
Edwin Fair employee noted in the April 2013 intake evaluation that Plaintiff experienced

The ALJ stated that he gave these Edwin Fair treatment records “great weight.” R. 167.
To the extent these records present Plaintiff’s self-reports, the ALJ’s assignment of weight
was unnecessary. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1164 (10th Cir. 2012)
(noting that an ALJ is “not required to assign a weight to [a provider’s] narrative of
statements relayed to him by” the claimant because such summaries are not medical source
opinions).
10

17

“moderate” problems in various areas, the same is true for the intake evaluation made at
Edwin Fair in March/June 2009. R. 692-93. And on both of those occasions the evaluator
assigned Plaintiff a Global Assessment of Functioning (“GAF”) score of 50, which
represents “serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g.,
no friends, unable to keep a job).” R. 693, 1035; Am. Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed., text rev. 2000) (DSM-IV). Both intake
evaluations also contain the same quoted language: “The prognosis is good and measurable
improvement in functioning is expected during this initial authorization period.” R. 696,
1037. Finally, the observations that the ALJ cites from the April and May 2013 treatment
sessions at Edwin Fair regarding a positive mood and affect also appear in notes from
before and after Dr. Vaidya’s March 2010 assessments. See R. 857 (July 21, 2009 progress
note), 883 (July 13, 2010 progress note).
A finding that a claimant’s medical condition “later improve[d]” can be a valid
reason to afford little weight to a treating source’s earlier, more restrictive medical opinion.
Kruse v. Astrue, 436 F. App’x 879, 882-83 (10th Cir. 2011). That finding, however, must
be supported by substantial evidence. “‘In choosing to reject [a] treating physician’s
assessment, an ALJ may not make speculative inferences from medical reports and may
reject a treating physician’s opinion outright only on the basis of contradictory medical
evidence and not due to his or her own credibility judgments, speculation or lay opinion.’”
McGoffin, 288 F.3d at 1252 (emphasis omitted) (quoting Morales v. Apfel, 225 F.3d 310,
317 (3d Cir. 2000)). Here, the observations and reports cited by the ALJ do not by
18

themselves reflect a change of condition so clear or significant as would support the ALJ’s
decision to give little weight to Dr. Vaidya’s March 2010 assessments.11
CONCLUSION
In sum, the ALJ’s analysis of the March 2010 assessments of Dr. Vaidya failed to
follow proper legal standards and relied on findings not supported by substantial evidence
in the record. The decision of the Commissioner is reversed and the case remanded for
further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). A separate
judgment shall be entered.
ENTERED this 13th day of February, 2017.

The ALJ’s finding of improvement is also undermined by the facts that: (1) in a slight
but significant difference of interpretation, the ALJ characterizes Dr. Khushalani’s
testimony as that “the claimant becomes better and more stable mentally . . . when she is
compliant,” R. 168, but what Dr. Khushalani actually stated is that the specific limitations
identified in the 2011 case manager assessment “should stabilize” if Plaintiff is in
treatment, R. 180-81 (emphasis added); and (2) one of the longest periods of treatment and
medication compliance reflected in the record is July 2009 to March 2010, i.e., immediately
prior to Dr. Vaidya’s March 2010 assessments, see R. 167, 856, 857; Def.’s Br. at 17.
11

19