Lovins v. Astrue
Filing
25
MEMORANDUM DECISION remanding the Commissioners decision for further findings because substantial evidence does not support the basis for his rejection of Dr. Nassirs opinion. Signed by Magistrate Judge Evelyn J. Furse on 08/23/2013. (asp)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
BARBARA JEAN LOVINS,
MEMORANDUM DECISION
AND ORDER
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 2:11-cv-01023-EJF
Magistrate Judge Evelyn J. Furse
Defendant.
Plaintiff Barbara Jean Lovins filed this action asking the Court to reverse or remand the
final agency decision denying her Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act, see 42 U.S.C. §§ 401–434 (2010), and denying her Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act, see 42 U.S.C. §§ 1381–1383f
(2010).1 The Administrative Law Judge (“ALJ”) determined Ms. Lovins did not meet the
eligibility standards for benefits because she did not have “a disability, as defined in the Social
Security Act, from June 29, 2006 through the date of [the ALJ’s] decision.” (Admin. R. Doc. 25,
certified copy tr. of R. of admin. proceedings: Barbara J. Lovins (hereinafter “Tr. __”).) Having
carefully considered the parties’ memoranda and the complete record in this matter, 2 the Court
REMANDS the Commissioner’s decision for further findings because substantial evidence does
not support the decision.
1
On January 23, 2012, in accordance with 28 U.S.C. sections 636(c)(1) and (3) and
Federal Rule of Civil Procedure 73, the parties consented to proceed before Magistrate Judge
Brooke C. Wells. (See ECF No. 16.) On May 21, 2012, this case was reassigned to the
undersigned Magistrate Judge. (See ECF No. 21.)
2
Pursuant to Civil Rule 7-1(f) of the Rules of Practice for the United States District
Court for the District of Utah, the Court concludes it does not need oral argument and will
determine the appeal on the basis of the written memoranda.
1
FACTUAL AND PROCEDURAL HISTORY
In November 2006, Ms. Lovins filed for DIB and SSI alleging an onset date of disability
of June 29, 2006. (Tr. 17.) The Regional Commissioner denied Ms. Lovins’s claim on February
7, 2007, (Tr. 80–84), and again upon reconsideration on May 24, 2007. (Tr. 86–91.) Ms. Lovins
requested a hearing before an ALJ; the hearing took place on August 7, 2008. (Tr. 31–46.) The
ALJ issued a decision on September 3, 2008, (“Decision 1”) finding Ms. Lovins did not qualify
as disabled within the meaning of the Social Security Act. (Tr. 65–74.)
On November 3, 2008, Ms. Lovins requested the Appeals Council review Decision 1.
(Tr. 111–16.) The Appeals Council granted Ms. Lovins’s request for review, and on January 9,
2009, remanded Ms. Lovins’s case to the ALJ for further proceedings. (Tr. 75–79.) A second
hearing before the ALJ took place on November 18, 2009. (Tr. 47–60.) The ALJ issued a
decision on February 8, 2010, (“Decision 2”) addressing deficiencies the Appeals Council
identified in Decision 1 and found Ms. Lovins did not qualify as disabled within the meaning of
the Social Security Act.3 (Tr. 14–30.) The Appeals Council denied Ms. Lovins’s request for
review on September 7, 2011, (Tr. 1–7), making Decision 2 the Commissioner’s final decision
for purposes of judicial review under 42 U.S.C. section 405(g). 4 See 20 C.F.R. § 404.981.
3
The ALJ incorporated by reference Decision 1 in Decision 2. (Tr. 20.)
4
Ms. Lovins submitted additional evidence dated after the ALJ issued Decision 2 to the
Appeals Council. (See Tr. 498–525.) The Appeals Council did not have to consider the
evidence because it is immaterial and does not relate to the period on or before the date of
Decision 2. See Chambers v. Barnhart, 389 F.3d 1139, 1142–44 (10th Cir. 2004) (explaining the
Appeals Council must consider evidence that is new, material, and related to the period on or
before the date of the ALJ’s decision). The evidence is immaterial because there is not a
reasonable possibility it would have changed Decision 2. Id. at 1144 (citing O’Dell v. Shalala,
44F.3d 855, 859 (10th Cir. 1994)).
2
I.
Medical History
Karen McBride, M.D., diagnosed Ms. Lovins with chronic obstructive pulmonary disease
(“COPD”) as early as April 7, 2005. (Tr. 223–25.) On May 16, 2007, a physician at Riverside
County Regional Medical Center (“Riverside”) examined Ms. Lovins and found her COPD
stable and her dyslipidemia and hypertension controlled. (Tr. 267–68.) The physician also
ordered a medical nebulizer and prescribed an inhaler to treat Ms. Lovins’s COPD.5 (Id.)
On October 25, 2005, Ms. Lovins went to the emergency room because she experienced
shortness of breath. (Tr. 221–22.) Jeffery Brand, M.D., found Ms. Lovins’s COPD exacerbated,
and she had hypertension and COPD related asthma. (Tr. 219–20.) Dr. Brand treated Ms.
Lovins with “aggressive bronchodilator therapy and intravenous steroids, as well as
azithromycin” before discharging her on October 29. (Id.) At that time, Ms. Lovins could
ambulate approximately 75 feet, experiencing short of breath at the end. (Id.) Dr. Brand
prescribed several medications, instructed Ms. Lovins to stop smoking, and gave her a two-week
“off work note” opining it would take her that long to recuperate. (Id.) Ms. Lovins followed up
with her family doctor, Dr. McBride, on November 7. (Tr. 218.) Dr. McBride confirmed Ms.
Lovins’s condition had improved although she continued to suffer from COPD exacerbation, had
uncontrolled hypertension, and had not quit smoking. (Id.)
On May 15, 2006, S. John, M.D., examined Ms. Lovins and prescribed medicine to treat
Ms. Lovins’s COPD and advised her to stop smoking. (Tr. 216–17.) An examination on
September 22, 2006, found Ms. Lovins’s COPD stable and her hypertension controlled with
medication. (Tr. 280–81.)
5
A letter from Dr. McBride, dated August 24, 2006, confirmed Ms. Lovins uses an
oxygen concentrator and nebulizer to treat her COPD. (Tr. 227.)
3
On January 11, 2007, Ms. Lovins complained to R. Krishnan, M.D., that she had
experienced “coughing all night” and “wheezing when lying down.” (Tr. 243–44.) After
examining Ms. Lovins, Dr. Krishnan proscribed new medications and continued others to treat
an upper respiratory infection (“URI”), COPD, dyslipidemia, hypertension, and atypical chest
pain likely related to the URI. (Id.) Dr. Krishnan also opined Ms. Lovins would be unable to
perform “usual work” for sixteen weeks. (Id.)
On April 6, 2007, Ms. Lovins went to the emergency room for coughing and wheezing.
(Tr. 238–42.) The medical staff treated her COPD exacerbation, which improved before
discharge. An x-ray from the same day showed “mild bibasilar subsegmental atelectasis,
unchanged since September 11, 2003 . . . . [and] moderate pulmonary hyperinflation . . . .
suggesting possible chronic obstructive pulmonary disease.” (Tr. 269.) Ms. Lovins went to the
emergency room again on June 17, because she experienced chest pain. (Tr. 258–63.)
On June 18, 2007, Dr. Cynthia Tieu treated Ms. Lovins for COPD exacerbation and
found Ms. Lovins’s hypertension controlled, her COPD medically managed, and that she would
be “disabled” for twelve weeks. (Tr. 253.) Dr. Tieu also provided Ms. Lovins a pamphlet with
information on quitting smoking. (Id.) An x-ray from that same day showed no evidence of
acute cardiopulmonary disease. (Tr. 250–52.) The record from the follow-up visit indicates Ms.
Lovins “request[ed] to be put on permanent disability.” (Tr. 255.)
During another follow-up visit at Riverside on July 16, 2007, the attending physician
found Ms. Lovins’s gastroesophageal reflux disease (“reflux”) and hypertension under moderate
control and her COPD stable. (Tr. 248–49.) The attending physician noted Ms. Lovins had quit
4
smoking five weeks prior and advised her to lose weight6 in order to control her reflux and
dyslipidemia. (Id.)
Regular examinations of Ms. Lovins by medical staff at Riverside between August 2007
and October 2009 showed no significant change in Ms. Lovins’s condition, (see Tr. 315–99,
409–10, 419–31, 436–42, 483–97), though she did visit the emergency three times in 2009. The
first emergency room visit in 2009 occurred March 17, when Ms. Lovins complained of
shortness of breath that started a few days earlier and became progressively worse. (Tr. 411–18,
432–33.) An x-ray showed worsening in Ms. Lovins’s lower lungs with infiltrates and
pulmonary hyperinflation. (Tr. 434–35.) In addition to COPD, the attending physician
diagnosed Ms. Lovins with community-aquired pneumonia. (Tr. 411.)
Ms. Lovins presented herself to the emergency room again on April 20, 2009,
complaining of chest pain and shortness of breath. (Tr. 400–08.) The attending physician found
Ms. Lovins also had a fever and that her symptoms likely related to the pneumonia. (Id.) By
April 23, she felt better, and her asthma, COPD exacerbation, hypertension, and reflux had
stabilized. (Id.) Ms. Lovins visited the emergency room for the third time on October 19, when
she complained of tightness in her chest. (Tr. 473–82) The attending physician prescribed
several medications and discharged Ms. Lovins hours after she arrived. (Id.)
II.
Disability Assessments
Between January 2007 and July 2009 several physicians performed disability related
examinations of Ms. Lovins and completed disability paperwork. On January 11, 2007, Dr. Tieu
6
Ms. Lovins stands five feet eight inches tall and weighed 298 pounds on July 16, 2007.
(Tr. 248.) Ms. Lovins’s weight fluctuated, and by October 19, 2009 she weighed 275 pounds.
(Tr. 473.)
5
filled out a State of California “Claim for Disability Insurance Benefits” stating Ms. Lovins had
severe COPD, treated with inhalers and a medical nebulizer. (Tr. 228.)
On February 7, 2007, D.A. Haaland, M.D., filled out a “Physical Residual Functional
Capacity Assessment” finding Ms. Lovins had COPD but could not find any symptoms of
arthritis. (Tr. 229–35.) After reviewing medical records, Dr. Haaland concluded Ms. Lovins
could perform a range of medium exertion work with postural and environmental limitations.
(Id.) On May, 23, K.T. Vu, D.O., reviewed Dr. Haaland’s assessment and concurred with his
conclusion. (Tr. 245–46.)
On May 27, 2009, Joseph Nassir, M.D., examined Ms. Lovins, (Tr. 444–46), and
completed a “Multiple Impairment Questionnaire.” (Tr. 448–55.) Dr. Nassir concluded Ms.
Lovins “is considered to be disabled” because she cannot “withstand substantial amount[s] of
sitting or standing or walking” or “perform work activities on a sustained, regular basis.” (Tr.
446.)
Lastly, on July 31, 2009, Shazia S. Khan, M.D., examined Ms. Lovins concluding she
could perform a range of work with no postural limitations and no nonexertional limitations.
(See Tr. 456–62 (“[Ms. Lovins] can lift or carry 50 pounds occasionally and 25 pounds
frequently . . . . stand and walk for 6 hours in an 8-hour day . . . . [with] frequent breaks . . . . sit
for 6 hours in an 8-hour day . . . . [and p]ush and pull, unlimited.”).) Dr. Khan also filled out a
“Medical Source Statement of Ability to do Work-Related Activities (Physical)” reflecting Ms.
Lovins’s assessment. (Tr. 463–68.)
Ms. Lovins completed a Work History Report (“Report”) on January 3, 2007. (See Tr.
175–83.) In the Report, Ms. Lovins attests that her prior work as a cashier required eight hours
of crouching, kneeling, reaching, standing, stooping, typing, walking, and writing during an eight
6
hour shift; and eight hours of handling, grabbing, or grasping large and small objects during the
same shift. (Tr. 179.) Ms. Lovins also attests that a shift at her prior work as a demonstrator
required six hours of reaching, standing, and stooping; thirty minutes of walking; and six hours
of handling, grabbing, or grasping large and small objects. (Tr. 176.) Additionally, Ms. Lovins
included in the Report that her prior work as a telephone solicitor required seven hours and thirty
minutes of sitting, typing, writing, and handling, grabbing, or grasping large and small objects
during a seven hour and thirty minute shift. (Tr. 178, 180.)
III.
Second Administrative Hearing
At the second administrative hearing, Ms. Lovins was fifty-five years old and had worked
as a demonstrator at Sam’s Club from October 2003 until her termination on June 29, 2006. (Tr.
34, 43, 175–76.) Prior to working for Sam’s Club, Ms. Lovins worked as a head veterinary
technician from 1994 to 1995, worked at a warehouse in 1997, worked as a telephone surveyor
from 1997 to 1998 and again from 2001 to 2002, as a retail cashier and customer service
representative from October 1999 to July 2001, and as a ranch hand from March 2002 to October
2003. (Tr. 160–70, 175–82.)
After the administrative hearing the ALJ secured interrogatory responses from vocational
expert Joseph M. Mooney. (See Tr. 138–39.) The ALJ sent the vocational expert’s
interrogatory responses to Ms. Lovins on December 10, 2009, and admitted the interrogatories
into evidence after Ms. Lovins did not respond within ten days after she received the ALJ’s
letter. (Tr. 140–43.) Mr. Mooney ultimately concluded Ms. Lovins could “perform all of [her]
past relevant work,” and other jobs existed in the national and regional economy she could
perform. (Tr. 138–39.)
7
STANDARD OF REVIEW
42 U.S.C. section 405(g) provides for judicial review of a final decision of the
Commissioner of the Social Security Administration (“SSA”). The Court reviews the
Commissioner’s decision to determine whether the record as a whole contains substantial
evidence in support of the Commissioner’s factual findings and whether the SSA applied the
correct legal standards. 42 U.S.C. § 405(g); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
The Commissioner’s findings shall stand if supported by substantial evidence. 42 U.S.C. §
405(g).
Adequate, relevant evidence that a reasonable mind might accept to support a conclusion
constitutes substantial evidence, and “[e]vidence is insubstantial if it is overwhelmingly
contradicted by other evidence.” O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994). The
standard “requires more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084.
“Evidence is not substantial if it is overwhelmed by other evidence—particularly certain types of
evidence (e.g., that offered by treating physicians)—or if it really constitutes not evidence but
mere conclusion.” Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (internal quotations
marks and citations omitted). Moreover, “[a] finding of ‘no substantial evidence’ will be found
only where there is a conspicuous absence of credible choices or no contrary medical evidence.”
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (internal quotation marks and citations
omitted).
Although the reviewing court considers “whether the ALJ followed the specific rules of
law that must be followed in weighing particular types of evidence in disability cases,” the court
“will not reweigh the evidence or substitute [its] judgment for the Commissioner’s,” Lax, 489
F.3d at 1084 (internal quotation marks and citations omitted), but “review only the sufficiency of
8
the evidence,” Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (emphasis in original).
The court need not accept the Commissioner’s findings mechanically, but must “examine the
record as a whole, including whatever in the record fairly detracts from the weight of the
[Commissioner’s] decision and, on that basis, determine if the substantiality of the evidence test
has been met.” Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (internal quotation marks
and citation omitted). “‘The possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence,’” and the court may not “‘displace the agenc[y’s] choice between two fairly
conflicting views, even though the court would justifiably have made a different choice had the
matter been before it de novo.’” Lax, 489 F.3d at 1084 (quoting Zoltanski v. FAA, 372 F.3d
1195, 1200 (10th Cir. 2004)).
In addition to a lack of substantial evidence, the Court may reverse where the
Commission uses the wrong legal standards or the Commissioner fails to demonstrate reliance on
the correct legal standards. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Thomson
v. Sullivan; 987 F.2d 1482, 1487 (10th Cir. 1993); Andrade v. Sec’y of Health & Human Servs.,
985 F.2d 1045, 1047 (10th Cir. 1993).
ANALYSIS
The Social Security Act (“Act”) defines “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Moreover,
the Act considers an individual disabled “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,
9
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
In determining whether a claimant qualifies as disabled within the meaning of the Act,
the SSA employs a five-part sequential evaluation. See 20 C.F.R. § 404.1520; Williams v.
Bowen, 844 F.2d 748, 750–53 (10th Cir. 1988); Bowen v. Yuckert, 482 U.S. 137, 140–42 (1987).
The analysis evaluates whether:
(1) The claimant presently engages in substantial gainful activity;
(2) The claimant has a medically severe physical or mental impairment or impairments;
(3) The impairment is equivalent to one of the impairments listed in the appendix of the
relevant disability regulation which preclude substantial gainful activity;
(4) The impairment prevents the claimant from performing his or her past work; and
(5) The claimant possesses a residual functional capacity to perform other work in the
national economy considering his or her age, education, and work experience.
See 20 C.F.R. § 404.1520. The claimant has the initial burden of establishing the disability in the
first four steps. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). At step five, the burden
shifts to the Commissioner to show the claimant retains the ability to perform other work
existing in the national economy. Id.
The ALJ continued to evaluate Ms. Lovins’s claim through step five, making the
following findings of fact and conclusions of law with respect to Ms. Lovins:
1. “[Ms. Lovins] meets the insured status requirements of the Social Security
Act through June 30, 2010.” (Tr. 19.)
2. “[Ms. Lovins] has not engaged in substantial gainful activity since June
29, 2006, the alleged onset date (20 C.F.R. 404.1571 et seq., and 416.971
et seq.).” (Id.)
3. “[Ms. Lovins] has the following severe impairments: impairment of the
respiratory system and obesity (20 C.F.R. 404.1520(c) and 416.920(c)).”
(Id.)
4. “[Ms. Lovins] does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1, (20 C.F.R. 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” (Tr. 20.)
10
5. “After careful consideration of the entire record, I find that [Ms. Lovins]
has the following residual functional capacity: the claimant can lift and/or
carry 50 pounds occasionally and 25 pounds frequently; she can stand
and/or walk for six hours out of an eight-hour workday with frequent
breaks; she can sit for six hours out of an eight-hour workday; she can
perform frequent reaching, feeling, and pushing/pulling bilaterally; she
can perform occasional handling and fingering with the right hand and
frequent handling and fingering with the left hand; she can operate foot
controls continuously; she is precluded from crawling and can perform all
other postural activities occasionally; she can frequently tolerate exposure
to unprotected heights, moving mechanical parts, operating a motor
vehicle, and humidity and wetness; she can occasionally tolerate exposure
to dusts, odors, fumes, pulmonary irritants, extreme cold, extreme heat,
and vibrations; and she can tolerate moderate noise.” (Id.)
6. “[Ms. Lovins] is capable of performing past relevant work as a customer
service – cashier, as a demonstrator, and as a telephone solicitor (survey).
This work does not require the performance of work-related activities
precluded by the claimant’s residual functional capacity (20 CFR
404.1565 and 416.965). (Tr. 23.)
7. “[Ms. Lovins] has not been under a disability, as defined in the Social
Security Act from June 26, 2006 through the date of this decision (20
C.F.R. 404.1520(f) and 416.920(f)).” (Tr. 25.)
In short, the ALJ concluded Ms. Lovins did not possess an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1, that she had the residual functional capacity to perform a limited range of
light to medium semi-skilled work, and that she did not qualify as disabled as defined in the Act
from June, 29, 2006, the alleged onset date, through the date of the ALJ’s decision. (Tr. 23–25.)
In support of her claim that this Court should reverse the Commissioner’s decision, Ms.
Lovins argues the ALJ erred: (1) by improperly rejecting the opinion of an examining physician;
and (2) by failing to evaluate Ms. Lovins’s credibility properly. The Court addresses each
argument in turn.
IV.
Evaluation of Examining Physician Opinion Evidence
Ms. Lovins argues the ALJ erred when he rejected the opinion of the examining
physician, Dr. Nassir because the ALJ did not provide a legally sufficient explanation for
11
rejecting Dr. Nassir’s opinion. (Pl.’s Opening Br. 12–14, ECF No. 18.) The Court agrees.
An ALJ must evaluate every medical opinion, see 20 C.F.R. § 404.1527(c), and “evaluate
a medical opinion from a non-treating physician using the same factors applicable to treating
physician opinions.” Sitsler v. Astrue, 410 Fed. App’x 112, 119 (10th Cir. 2011) (citing Doyal v.
Barnhart, 331 F.3d 758, 764 (10th Cir. 2003)). 20 C.F.R. section 404.1527(c) provides the
factors the ALJ must consider: “(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” relevant
evidence supports the physician’s opinion; “(4) consistency between the opinion and the record
as a whole; (5) whether” the physician specializes in the area upon which she or he renders an
opinion; and “(6) other factors brought to the ALJ’s attention [that] tend to support or contradict
the opinion.” See Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003) (quoting
Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001)).
Moreover, the ALJ’s decision need not discuss explicitly all of the factors for each of the
medical opinions. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (stating that a
lack of discussion of each factor does not prevent the court from according the decision
meaningful review). When considering medical opinion evidence, the ALJ must weigh and
resolve evidentiary conflicts and inconsistencies. See, e.g., Eggleston v. Bowen, 851 F.3d 1244,
1247 (10th Cir. 1988) (reflecting ALJ’s resolution of evidentiary conflicts between medical
providers).
To reject a medical opinion the ALJ must “provide specific, legitimate reasons,” Doyal,
331 F.3d at 764 (citing Drapeau, 255 F.3d at 1213), and can disregard a non-treating physician’s
opinion completely “‘only on the basis of contradictory medical evidence and not due to his or
12
her own credibility judgments, speculation or lay opinion.’” See McGoffin v. Barnhart, 288 F.3d
1248, 1252 (10th Cir. 2002) (emphasis in original) (citation omitted) (explaining application to a
treating physician). Further, an ALJ “ha[s] an obligation under the applicable regulations to
obtain additional information from [a physician] before rejecting [medical evidence] outright.”
Id.
Here, the ALJ specifically addressed Dr. Nassir’s opinion in Decision 2 and rejected it
because it “ha[d] no probative value.” (See Tr. 22.) The ALJ found it had no probative value
because Dr. Nassir’s assessment of Ms. Lovins’s conditions was “exaggerated in its limits,
indulgent and accommodative.” (Id.) Further, the ALJ asserts among other things the law firm
representing Ms. Lovins frequently hires Dr. Nassir to “generate litigation supporting reports,”
that Dr. Nassir is “presumably paid for the report, and he understands his commission,” and he
has observed Dr. Nassir’s opinion in other cases to “always assert whatever claimant [Dr. Nassir]
is examining is disabled.” (Id.) If true, this serious accusation provides ample grounds for the
ALJ to reject Dr. Nassir’s opinion. However, no evidence exists in the record to support these
findings except for the ALJ’s “testimony.” Because the ALJ has concerns about Dr. Nassir’s
credibility he must request additional evidence to support his bold assertions of bias and
wrongdoing on the part of Dr. Nassir and/or Ms. Lovins’s counsel. For example, the ALJ could
request a listing from Dr. Nassir of his engagements in social security cases for the last four
years and what his general determinations were. Similarly, the ALJ could request a statement
regarding how Ms. Lovins compensated the doctor. While the ALJ may reject Dr. Nassir’s
opinion based on the non-medical factors he cites, see SSR 06–03p (Aug. 9, 2006) (allowing
ALJ to consider other factors that tend to support or contradict his opinion when determining
how much weight to accord a medical opinion), to do so substantial evidence must support those
13
factors because this Court is “‘not in a position to draw factual conclusions on behalf of the
ALJ.’” Drapeau, 255 F.3d at 1214 (quoting Prince v. Sullivan, 933 F.2d 598, 603 (7th Cir.
1991)).
The ALJ also found Dr. Nassir’s opinion “inconsistent with the record as a whole and
demonstrate[d] a lack of understanding of social security disability programs and evidentiary
requirements.” (Tr. 22.) But the ALJ provided no explanation to support his conclusion.
Further, the ALJ may not ignore Dr. Nassir’s opinion simply because Dr. Nassir concludes Ms.
Lovins qualifies as disabled.7 Although the ALJ correctly states that a determination of
disability is reserved to the Commissioner and Dr. Nassir’s opinion is not entitled controlling
weight, (id.), because the “ALJ does not provide any explanation for rejecting [Dr. Nassir’s
opinion], [the Court] cannot meaningfully review the ALJ’s determination.” Drapea, 255 F.3d
at 1214.
While the ALJ states that Dr. Nassir’s RFC finding would allow Ms. Lovins to perform
her past relevant work, the record is not clear. (Compare Tr. 450–54, with Tr. 175–82.) Ms.
Lovins never explained how frequently she could change from sitting to standing or take breaks.
Thus, the Court cannot determine whether Ms. Lovins could have performed her prior work as
performed under Dr. Nassir’s RFC finding. Because the Court cannot make that determination,
the error exceeds the harmless error threshold, and the Court remands the case.
V.
Evaluation of Ms. Lovins’s Credibility
Next, Ms. Lovins argues no substantial evidence supports the ALJ’s determination
regarding her credibility, and the ALJ does not analyze her credibility properly. (ECF No. 18 at
7
See 20 C.F.R. § 416.927(d); SSR 96-5p (July 2, 1996) (“[A]judicators must always
carefully consider medical source opinions about any issue, including opinions about issues that
are reserved to the Commissioner . . . . [and] opinions from any medical source on issues
reserved to the Commissioner must never be ignored.”).
14
14–16.) The Court disagrees.
When evaluating credibility, the ALJ must follow the prescribed two-step process: (1)
evaluate whether the claimant has an underlying medically determinable impairment one could
reasonably expect to produce the claimant’s pain or other symptoms; and (2) evaluate the
intensity, persistence, and limiting effects of the claimant’s symptoms to determine the extent to
which they limit the claimant’s functioning. See Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir.
2000) (discussing factors to evaluate credibility). “Credibility determinations are peculiarly the
province of the finder of fact, and we will not upset such determinations when supported by
substantial evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted).
The ALJ must cite specific evidence used in evaluating a claimant’s subjective complaints, and if
he finds those complaints incredible, he must explain why. See id. But this analysis “does not
require a formalistic factor-by-factor recitation of the evidence.” Qualls v. Apfel, 206 F.3d 1368,
1372 (10th Cir. 2000). “So long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility, [the credibility determination requisites] are satisfied.” Id.
The ALJ followed the prescribed two-step process for evaluating self-reported symptoms.
First, he evaluated whether Ms. Lovins had an underlying medically determinable impairment
one could reasonably expect to produce pain or other symptoms; and second, he evaluated the
intensity, persistence, and limiting effects of Ms. Lovins’s symptoms to determine the extent to
which they limited Ms. Lovins’s functioning. (See Tr. 20–22.) As to the first step, the ALJ
found Ms. Lovins’s “medically determinable impairments could reasonably be expected to cause
some of the alleged symptoms.” (Tr. 21.)
At step two, the ALJ found Ms. Lovins’s testimony regarding “the intensity, persistence
and limiting effects of [Ms. Lovins’s] symptoms are not credible to the extent those statements
15
are inconsistent with the residual functional capacity assessment [in the ALJ’s decision].” (Tr.
21.) In addition to the reasons the ALJ provided in Decision 1, the ALJ cited specific
evidence—or the lack thereof—to support his credibility determination in Decision 2. The ALJ
discussed extensively Dr. Khan’s assessment, (Tr. 22), which contradicts the severity of some of
the symptoms Ms. Lovins described during the November 2009 hearing and her ability to control
the pain associated with those symptoms.8 (Tr. 50–59.) Further, the ALJ found the record did
not support Ms. Lovins’s assertion that her condition had worsened since the first hearing. He
cited specific medical records that show the medical care she received had not changed and that
although she had been hospitalized, the severity of her COPD had not changed since the August
2008 hearing. (Tr. 21.)
CONCLUSION
Based on the foregoing, the Court REMANDS the Commissioner’s decision for further
findings because substantial evidence does not support the basis for his rejection of Dr. Nassir’s
opinion.
DATED this 23rd day of August, 2013.
BY THE COURT:
___________________________________
Evelyn J. Furse
United States Magistrate Judge
8
Specifically, Dr. Khan’s assessment contradicts the severity of Ms. Lovins’s subjective
complaints about the effects of nerve damage in her neck and spine, the severity of her COPD,
her limited motor skills, and her ability to ambulate effectively. (Tr. 456–70.)
16
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