Lavadour v. Astrue

Filing 20

MEMORANDUM DECISION reversing and remanding the decision of the Commissioner of the Social Security Administration. Signed by Magistrate Judge Brooke C. Wells on 03/21/2013. (asp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
PATRICIA LAVADOUR,

MEMORANDUM DECISION AND
ORDER REVERSING AND
REMANDING DECISION OF
COMMISSIONER

Plaintiff,
v.
CAROLYN W. COLVIN, in her capacity as
Acting Commissioner of the Social Security
Administration,
Defendant.

Case No. 2:11-cv-1163

Magistrate Judge Brooke Wells

Plaintiff, Patricia Lavadour (“Plaintiff”) seeks judicial review of the determination
of the Commissioner of the Social Security Administration which denied her application
for Social Security disability insurance benefits. After careful consideration of the
written briefs and the administrative record, the Court has determined that oral argument
is unnecessary and issues the following Memorandum Decision and Order Reversing and
Remanding the decision of the Commissioner.
BACKGROUND
Plaintiff, Ms. Lavadour, who was born on August 16, 19551, filed for Disability
Insurance Benefits and Supplemental Security Income in January, 2008, alleging
disability beginning January 1, 2008.2 Plaintiff contends she is disabled due to a
combination of impairments, including severe depression, arthritis, fatigue, shoulder
immobility, poor vision, and extreme pain.3

1

Administrative Record [hereinafter referred to as “Tr.”] at 81.
Tr. at 17; Opening Brief, docket no. 17 at 2 [hereinafter referred to as “Opening Br.”].
3
Opening Br. at 2.
2

Plaintiff’s claim was initially denied on August 11, 2008, and upon
reconsideration on February 24, 2009.4 Plaintiff then requested an administrative
hearing. A hearing before an Administrative Law Judge (“ALJ”) was held on November
20, 2009.5 On March 16, 2010, the ALJ issued a written decision denying Plaintiff’s
claim for benefits.6 Plaintiff then appealed the denial to the Social Security Appeals
Council which denied a review of the ALJ’s decision on October 20, 2011.7 Pursuant to
42 U.S.C. § 405(g), this appeal followed.
In the ALJ’s decision, the ALJ found at Step One of the required sequential
evaluation process8 that Plaintiff had not engaged in substantial gainful activity for a
continuous 12-month period.9 At Step Two, the ALJ found that the Plaintiff’s severe
impairments were “(1) degenerative joint disease of the right shoulder and an
affective/mood disorder (depression).10 At Step Three, the ALJ found that the Plaintiff
did not have an impairment or combination of impairments that met or medically equaled
one of the listed impairments contained within the regulations.11
Next, the ALJ found that the Plaintiff had a residual functional capacity (“RFC”)
to perform the full range of light/semi-skilled work, except such work could not require:
lifting more than 10 pounds at a time; lifting or carrying lighter articles
weighing more than 3 to 5 pounds, on an occasional basis, which means
from very little up to 1/3 of the day; bending, stooping, twisting or
squatting on more than a “less than occasional” basis; work on the floor
(essentially no kneeling, crawling, or crouching); stair climbing (a few
4

Tr. at 17.
Id.
6
Tr. 17-35.
7
Tr. at 1-3, 5.
8
See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005)(explaining the five-step sequential
evaluation for determining if a claimant is disabled).
9
Tr. at 20. The ALJ made this finding despite the fact that Plaintiff was employed part-time as a cashier at
Kohl’s Department Store. Tr. at 22.
10
Id.
11
Id.
5

2

steps not precluded) but no flights of stairs; overhead lifting and reaching
on more than a less than occasional basis; and more than frequent
reaching, frequent handling and frequent fingering. In addition, she does
not have binocular vision, as she only has vision in the right eye.
Therefore, she does not have the capacity to perform tasks requiring
bilateral fine vision.12
As to the medical opinions rendered in making the RFC determination, the ALJ
stated that the record demonstrated that the Plaintiff received a majority of her medical
care for right shoulder pain, arthritis, and hypertension through Community Health
Centers.13 In addition, the ALJ provided a lengthy review of various providers that
treated the Plaintiff.14 Specifically, the ALJ’s opinion contained the following:
1. David G. Ericksen, Ph.D.
Dr. Ericksen performed a psychological examination of the Plaintiff in
September, 2007.15 To Dr. Ericksen, “[Plaintiff] appeared to be emotionally unstable
with significant depression, many somatic complaints, anger, suspiciousness, and likely
some personality pathology.16 In addition to a clinical interview, Dr. Ericksen performed
a series of tests on Plaintiff, including: Wechsler Adult Intelligence Scale-III (WAIS-II);
Minnesota Multiphasic Personality Inventory (MMPI-II); Beck Depression Inventory-II
(BDI-II); and Beck Anxiety Inventory-II (BAI).17 Dr. Ericksen indicated that Plaintiff’s
test results suggested that she would be best suited to jobs involving simple, repetitive
tasks, rather than acute judgment and insight.18 However, Dr. Ericksen opined that in
Plaintiff’s current condition, Plaintiff would be a poor prospect for job training and

12

Tr. at 21.
Tr. at 24. Although the ALJ made this finding, other than the discussion of Susie Sittler, FNP, the ALJ
did not discuss what weight, if any, that was attributed to the providers at the Community Health Center(s).
14
Tr. at 24-31.
15
Tr. at 24.
16
Id.
17
Tr. at 24, 375.
18
Tr. at 24, 377.
13

3

recommended that Plaintiff receive a thorough psychiatric medication evaluation and
have access to psychotherapy.19 Dr. Ericksen also noted that Plaintiff would likely be a
difficult therapy client because of her tendency to complain and externalize rather than
look at herself and seek substantive solutions to her problems.20 Lastly, Dr. Ericksen
diagnosed Plaintiff with the following:
Axis I: Major Depressive Disorder, Recurrent, Severe, Without Psychotic
Features; Cognitive Disorder NOS; R/O Somatoform Disorder NOS.
Axis II: R/O Personality Disorder NOS (borderline, antisocial, and histrionic
feature); Borderline intellectual functioning.
Axis III Per medical records;
Axis IV: Problems with primary support group; occupational problems;
Axis V: GAF=50.21
After discussion of Dr. Ericksen’s evaluation and diagnosis of Plaintiff, the ALJ’s
discussion of Dr. Ericksen ends. Thus, no weight was assigned to this opinion and no
reasons were provided either accepting or rejecting this opinion.
2. Jessica Wolfinger, LCSW
Included in the record and discussed by the ALJ are four letters written by Jessica
Wolfinger, LCSW regarding Plaintiff22. Through these letters, Ms. Wolfinger discussed
her visits with Plaintiff for psychotherapy as well as her diagnosis and opinion as to
Plaintiff’s ability to work.23 Ms. Wolfinger diagnosed Plaintiff with Major Depressive
Disorder, Postraumatic Stress Disorder and Generalized Anxiety Disorder.24 Ms.

19

Id.
Tr. at 377.
21
Tr. at 378.
22
Tr. at 24, 25, 28, 30, 410, 463, 464, 498.
23
Id.
24
Id.
20

4

Wolfinger gave Plaintiff GAF scores ranging from 41-58 and opined that Plaintiff was
unable to work because of “concomitant medical and mental health issues.”25
The ALJ found Ms. Wolfinger not to be an acceptable medical treating source
because she is a licensed clinical social worker.26 Despite this finding, the ALJ stated
that he had fully considered Ms. Wolfinger’s findings and opinion as if she functioned as
a treating source but the final responsibility for deciding issues of disability was reserved
to the Commissioner. Therefore, the ALJ did not place weight on Ms. Wolfinger’s
statement(s) regarding disabling impairment.27
3. Jonathan J. Ririe, Ph.D.
After being contacted by the Division of Disability Determination Services for
Social Security to perform a psychological exam, Plaintiff was seen by Dr. Ririe on June
27, 2008.28 After visiting with the Plaintiff regarding her complaints, Dr. Ririe opined
that Plaintiff did not appear to be suffering from a psychotic disorder and noted that
Plaintiff “tended to be rather quick to assign blame onto others particularly for their
failure to be more attentive to her.”29 Dr. Ririe further opined that Plaintiff did identify
some symptoms of depression but did not appear to be suffering from a major depressive
disorder. To Dr. Ririe, Plaintiff appeared to have some situationally based anxiety related
to her physical problems. Dr. Ririe diagnosed Plaintiff with depressive disorder not
otherwise specified (“NOS”), Mood Disorder due to physical pain with depressive

25

Id., Tr. at 410.
Tr. at 25.
27
Id.
28
Tr. at 25, 417.
29
Tr. at 421.
26

5

features and personality disorder NOS, with histrionic features.30 Dr. Ririe also gave
Plaintiff a GAF Score of 65.31
Dr. Ririe opined that Plaintiff may benefit from counseling in order to learn to
adopt more effective problem solving skills and strategies to handle some of her
difficulties.32 As to this opinion, the ALJ gave Dr. Ririe’s assessment the following
weight: “the undersigned finds Dr. Ririe to be an acceptable medical examining source.
Based on the doctor’s thoroughness in evaluating and testing the claimant based on
objective medical standards, more weight is applied to the doctor’s medical opinion.”33
4. Justin Johnsen, M.D.
On July 19, 2008, Plaintiff was seen by Dr. Justin Johnsen for a consultative
evaluation.34 After examination, Dr. Johnsen opined that “patient would be mildly
limited in her ability to lift heavy objects and work overhead, secondary to her right
shoulder.”35 Dr. Johnson further found the following “Impressions”: (1) Patient reports a
history of arthritis and on examination she has tenderness, stiffness and crepitus with
movement of her right shoulder; (2) Plaintiff has decreased vision in her left eye and a
ophthalmology examination recommended; (3) no evidence of heart condition was
found.36 Dr. Johnson also noted that the Plaintiff was able to lift, carry and handle light
objects and squat and rise from position with ease and her range of motion was within
normal limits.37

30

Id.
Id.
32
Id.
33
Tr. at 26.
34
Id., 424.
35
Tr. 428.
36
Id.
37
Tr. at 427.
31

6

The ALJ found Dr. Johnson to be an acceptable medical examining source.38 In
placing “weight” on the doctor’s medical findings and conclusion, the ALJ reasoned that
the doctor provided a very comprehensive report of his evaluation findings.39
5. Susie Sittler, FNP
On October 21, 2009, a disability/functional capacity questionnaire was completed for
Plaintiff by Susie Sittler, FNP at the Community Health Center.40 In addition to documenting
and assessing the Plaintiff’s complaints, Ms. Sittler opined as to the Plaintiff’s functional
capacity that Plaintiff could
lift 5 pounds frequently and 5 to 10 pounds occasionally. She could sit in 15 to
30-minute increments and stand in 4-hour increments for a total of 6 hours in an
8-hour workday. She could occasionally reach over shoulder level with both arms
and perform both gross and fine manipulations bilaterally. She can frequently
stoop and bend.41
The ALJ found Ms. Sittler to be a non-acceptable medical treating source and
after review of the record, found that many of the Plaintiff’s symptoms documented by
Ms. Sittler were subjective complaints and not in line with the objective medical record.42
The ALJ did not provide what weight, if any, that was assigned to Ms. Sittler’s opinions.
6. State Agency Physicians
The ALJ also mentioned the findings and conclusions of the two state agency
physicians, Drs. Rox Burkett and Michael DeBerard who evaluated the Plaintiff’s
conditions.43 According the ALJ,
[t]he State agency physicians opined the claimant could occasionally lift
20 pounds frequently, life 10 pounds, stand and/or walk about 6 hours in
38

Tr. at 27.
Id.
40
Tr. 28, 502-505.
41
Tr. at 28.
42
Tr. at 29.
43
Tr. 32-33, 435-460.
39

7

an 8-hour workday and sit about 6 hours in an 8-hour workday. Also, she
could perform unlimited pushing and pulling. She had no postural
limitations but was limited in reaching in all direction (including
overhead). She had limitations in near and far acuity, depth perception,
accommodation and field of vision. She had mild mental limitations in
performing daily activities: social functioning; and maintaining
concentration, persistence and pace, with no episodes of
decompensation.44
The ALJ found that because the state agency physicians were not treating
physicians, their opinions were not entitled to controlling weight.45 The ALJ then stated
“h]owever, the State agency physicians have reviewed the medical record and are
experienced and knowledgeable regarding SSA disability requirements.”46 Other than
this discussion, the ALJ did not discuss any other weight or reasons for rejection of
acceptance of state agency physicians’ opinions.
At Step Four, the ALJ found the Plaintiff was capable of performing past relevant
work as a cashier/checker.47 In addition, the ALJ found that although the Plaintiff was
capable of performing her past relevant work, there are other jobs in existing in the
national economy in which Plaintiff is able to perform.48 Thus, in the alternative, at Step
Five after considering the testimony of a vocational expert and the Plaintiff’s age,
education, work experience and RFC, the ALJ determined Plaintiff could perform other
work existing in significant numbers in the national economy.49 Therefore, the ALJ
concluded Plaintiff was not disabled as defined by the Social Security Act.50

44

Tr. at 32.
Tr. at 32.
46
Tr. at 32-33.
47
Tr. at 33.
48
Id.
49
Tr. 33-34.
50
Tr. at 35.
45

8

STANDARD OF REVIEW
This Court’s review of the ALJ’s decision is limited to determining whether his
findings are supported by “substantial evidence” and whether the correct legal standards
were applied.51 If supported by substantial evidence, the findings are conclusive and
must be affirmed.52 “Substantial evidence” means “such evidence as a reasonable mind
might accept as adequate to support a conclusion.”53 Thus, “[t]he possibility of drawing
two inconsistent conclusions from the evidence does not prevent an administrative
agency’s findings from being supported by substantial evidence.”54
Additionally, the ALJ is required to consider all of the evidence; however, the
ALJ is not required to discuss all evidence.55 In its review, the Court should evaluate the
record as a whole, including that evidence before the ALJ that detracts from the weight of
the ALJ’s decision.56 However, a reviewing Court should not re-weigh the evidence or
substitute its own judgment for that of the ALJ’s.57 Further, 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.’”58 Lastly,
“[t]he failure to apply the correct legal standard[s] or to provide this Court with a
sufficient basis to determine that appropriate legal principles have been followed [are]
grounds for reversal.”59

51

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); Ruthledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir.
2000); Glenn v. Shalala, 21 F.3d 983 (10th Cr. 1993).
52
Richardson v. Perales, 402 U.S. 389, 401 (1981).
53
Clifton v. Charter, 79 F.3d 1007, 1009 (10th Cir. 1996).
54
Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2000).
55
Id.
56
Shepherd v. Apfel, 184 F.3d 1196, 1199 (10 Cir, 1999).
57
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
58
Lax, 489 F.3d at 1084 (quoting Zoltanski, 372 F.3d at 1200).
59
Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005)(internal citations omitted).

9

In applying these standards, the Court has considered the Administrative
Record,60 as well as the parties’ briefs and arguments. The Court finds the following:
DISCUSSION
In her appeal, Plaintiff raises four arguments: (1) Did the ALJ err in denying Ms.
Lavadour’s case based on a vocational expert’s response to an incomplete hypothetical?;
(2) Did the ALJ err in improperly rejecting the opinions of the claimant’s treating and
examining medical providers? (3) Did the ALJ err in rejecting the claimant’s own
subjective complaints as well as the lay witness statements of her friend Rose Chapman?
(4) Did the ALJ err in failing to conduct a proper step four analysis?61
After considering these issues and upon consideration of the record, the Court
finds issue two (2) to be dispositive and for the reasons set for the below, warrants
remand. Therefore, because Plaintiff’s other arguments may be affected by the
determination on remand, the Court will not address them and will therefore limits its
discussion to the whether the ALJ properly addressed the opinions of the Plaintiff’s
treating and examining medical providers.
A. ALJ’s Opinion as to Plaintiff’s Treating and Examining Medical Providers
In support of her claim that the Commissioner’s decision should be reversed, Plaintiff
argues that the ALJ erred by improperly rejecting the opinions of her treating and
examining medical providers.

Specifically, the Plaintiff argues that the ALJ improperly

failed to state the weight assigned to Dr. Ericksen’s opinion or reasons for rejecting it.
On the other hand, the Defendant argues that the Plaintiff has failed to point to a medical
opinion offered by Dr. Ericksen and therefore the ALJ was not required to assign any

60
61

Docket no. 9.
Opening Br. at 8.

10

weight or provide a reason for rejecting Dr. Ericksen’s evaluation. In addition, the
Defendant argues that the Plaintiff has failed to demonstrate how she was harmed by the
ALJ’s handling of Dr. Ericksen’s evaluation. Plaintiff counters the latter argument by
asserting that had Dr. Ericksen’s opinion been weighted properly, Plaintiff could have
been found to be disabled.
Next, Plaintiff argues that the ALJ erred by not giving greater weight to Ms.
Wolfinger’s opinions because she treated Plaintiff on several occasions and was more
familiar with the Plaintiff’s mental state than any other examining doctor. Conversely,
Defendant argues that because Ms. Wolfinger is not an “acceptable medical source” as
governed by the regulations, her opinions could not be given controlling weight.
Lastly, the Plaintiff argues that the ALJ failed to adequately explain his reasons
for rejecting Nurse Sittler’s opinion. The Defendant argues that the ALJ’s decision was
proper as to Nurse Sittler because she was not an acceptable medical source and it was
proper the ALJ to reject her opinions because they were based upon the Plaintiff’s
subjective complaints and not supported by the objective medical evidence.
Initially, the Court notes that the ALJ did not assign “controlling weight” to any
of the medical opinions that were discussed within his opinion. Instead, the ALJ
provided no analysis as to Dr. Ericksen’s opinion. Specifically, the ALJ did not state
what weight, if any, he gave to Dr. Ericksen’s opinion or any reasons for accepting or
rejecting it.62 The ALJ gave no weight to Jessica Wolfinger’s opinion as to a disabling
impairment.63 He gave Dr. Ririe “more weight” based on the doctor’s thoroughness in

62
63

Tr. at 24.
Tr. at 25.

11

evaluating and testing the claimant based on objective medical standards.64 Next,
“weight” was given by the ALJ to Dr. Johnsen’s opinions because the doctor provided a
very comprehensive report of his evaluation findings.65 Lastly, the ALJ gave no weight
to Susan Sittler.66
Under the regulations, “medical opinions are statements from physicians and
psychologists or other acceptable medical sources that reflect judgments about the nature
and severity of [a claimant’s] impairments, including…symptoms, diagnosis, and
prognosis, what [a claimant] can still do despite impairment(s), and [a claimant’s]
physical or mental restrictions.”67 Acceptable “treating source medical opinions are []
entitled to deference,” and must either be given controlling weight or assigned some
lesser weight “using all of the factors in 20 C.F.R. § 404.1527 and 461.9627.”68
In the 10th Circuit, “[t]he ALJ must give ‘controlling weight’ to the treating physician’s
opinion, provided that opinion ‘is well-supported…and is not inconsistent with other
substantial evidence.’”69 Further,
[e]ven if a treating physician’s opinion is not entitled to controlling
weight, treating source medical opinions are still entitled to deference and
must be weighed using all of the factors provided in [20 C.F.R. §
404.1527]. Those factors are: (1) the length of 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.
64

Tr. at 26.
Tr. at 27.
66
Tr. at 29.
67
20 C.F.R. §416.927(a)(2).
68
Andersen v. Astrue, 319 Fed. App’x 712, 718 (10th Cir. 2009)(quoting Social Security Ruling 96-2p,
1996 WL 374188, at *4).
69
White v. Barnhart, 287 F.3d 903, 907 (10th Cir. 2001)(citing 20 C.F.R. § 404.1527(d)(2)).
65

12

Under the regulations, the agency rulings, and [Tenth Circuit] case law, an
ALJ must give good reasons…for the weight assigned to a treating
physician’s opinion that are 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. If the ALJ
rejects the opinion completely, he [or she] must give specific, legitimate
reasons for doing so.70
In addition, as with other evidentiary matters, when an ALJ is considering
medical opinion evidence, it is the ALJ’s role to weigh and resolve evidentiary conflicts
and inconsistencies.71 However, “[i]n 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.”72
Here, Dr. Ericksen performed a psychological examination of Plaintiff, including
performing a number of tests. Dr. Ericksen found Plaintiff’s test results suggested she
would be best suited to jobs involving simple, repetitive tasks, rather than jobs that
require acute judgment and insight. Dr. Ericksen further opined that in the Plaintiff’s
current condition she would be a poor prospect for job training and recommended a
thorough psychiatric medication evaluation and have access to psychotherapy. He
diagnosed the Plaintiff with Major Depressive and Personality Disorders and assessed a
GAF score of 50.

70

Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004)(internal quotations and citations omitted); see
also 20 C.F.R. § 404.1527(c); Social Security Ruling (“SSR”) 96-2p (emphasis added).
71
See e.g., Ruthledge v. Apfel, 230 F.3d. 1172, 1174 (10th Cir. 2000); Eggleston v. Bowen, 851 F.2d 1244,
1247 (10th Cir. 1988).
72
Langley at 1121 (quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002)(“holding [The
10th Circuit] held years ago that an ALJ’s assertion that a family doctor naturally advocates his patient’s
care is not a good reason to reject his opinion as a treating physician.”)

13

There can be no doubt that Dr. Ericksen is an acceptable medical source. He is a
psychologist who examined the Plaintiff and performed various tests. In addition, Dr.
Erickson provided a medical opinion. Dr. Ericksen discussed the Plaintiff’s symptoms,
diagnosis, prognosis, recommended treatment regime and issues Plaintiff may encounter
through job training. In addition, the GAF score given by Dr. Ericksen was in line with
Ms. Wolfinger’s assessments. Thus, although Dr. Ericksen’s opinion was rendered prior
to the alleged onset date, the ALJ should have provided the weight, if any, to be given to
Dr. Ericksen’s opinion or at least discussed why this opinion was rejected or accepted.
Instead, the ALJ’s opinion did not provide any discussion as to Dr. Ericksen after a
summary of his findings. In addition, without re-weighing the evidence, this is not a
harmless error. As the Plaintiff points out, the ALJ’s failure to credit Dr. Ericksen’s
medical opinion could have caused harm to the Plaintiff, because if the opinion were
properly considered could have altered the weight given to other medical opinions or
possibly supported a finding of disability.73
Next, although the ALJ correctly stated that Nurse Sittler and Ms. Wolfinger were
not acceptable medical sources, the ALJ was still required to consider their opinions as an
“other source” and “weight them in the same manner that he [or she] weights the
opinions of acceptable medical sources.” 74 The regulations contemplate the use of
information from “other sources,” both medical and non-medical.75 “Other medical
sources” include, but are not limited to, “nurse-practitioners, physicians’ assistants,

73

Docket no. 18 at 6.
Sanchez v. Astrue, No. 2:09-cv-1116-DN, 2011 WL 4591900 at *5 (D. Utah September 30, 2011)(citing
Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007).
75
Frantz, at 1301; see 20 C.F.R. §§ 414.1513(a), 404.1527(a)(2); 404.1527(d).
74

14

naturopaths, chiropractors, audiologists, and therapists.”76 These sources may provide
evidence concerning the severity of the claimant’s impairments and how it affects her
ability to work.77 Thus, the ALJ must “explain the weight given to these opinions or
otherwise ensure that the discussion of the evidence allows a claimant or subsequent
reviewer ‘to follow adjudicator’s reasoning, when such opinions may have an effect on
the outcome of the case.’”78
Here, the ALJ’s treatment of Jessica Wolfinger’s opinions is in line with these
principles. The ALJ gave full consideration of Ms. Wolfinger’s findings and opinion as
if she functioned as a treating source but ultimately did not place weight on Ms.
Wolfinger’s opinion with regard to disabling impairment because it is the ALJ
responsibility to determine issues of disability. Likewise, although the ALJ did not
specify an exact weight assigned to Nurse Sittler’s opinion, it is clear that he adopted
some of her assessments but ultimately did not give her opinion much weight because the
opinion appeared to not be supported by the objective medical evidence and appeared to
be based instead on the subjective complaints of the Plaintiff. The Court finds that with
regard to the opinions of Nurse Sittler and Ms. Wolfinger, the ALJ’s analysis sufficiently
allowed the Court to follow the ALJ’s reasoning by providing legitimate reasons for not
placing weight or otherwise accepting these opinions. Therefore, the ALJ’s opinion with
respect to these two providers is in line with applicable standards.79
Finally, the Court finds that the ALJ erred by not setting forth the proper “weight”
standards for the opinions of Dr. Johnson, Dr. Ririe or the state agency physicians. Here,

76

Frantz, at 1301; see 20 C.F.R. §404.1513(d).
Id.
78
Sanchez, at *5 (internal quotations and citations omitted).
79
See id.
77

15

the ALJ assigned “more weight” to Dr. Ririe’s opinion, “weight” to Dr. Johnsen’s
opinion. The ALJ stated that the state agency physician opinions were not entitled to
controlling weight but did not assign any lesser weight, nor provide any reasoning in
order for the Court to discern whether these opinions were accepted or rejected.
Based on the foregoing, with the exception of the opinions of Ms. Sittler and Ms.
Wolfinger, it is not sufficiently clear to the Court as to the specific weight assigned to the
medical opinions or the specific reasoning applied to each.80 First, the ALJ did not assign
“controlling weight” to any treating physician. Therefore, because Dr. Ririe’s opinion
was given “more weight” the Court would have to assume that this is the opinion was
weighed most heavily than Dr. Johnsen’s opinion, because of the use of the word “more.”
In addition, this analysis may have changed had the ALJ given Dr. Ericksen’s opinion or
more discussion was provided as to the State Agency physicians. Therefore, the Court
finds that the ALJ’s lack of specificity as to the weight assigned to each of the medical
opinions wants further review and remand.
CONCLUSION
For the foregoing reasons, the Court finds that the Plaintiff’s arguments regarding
the ALJ’s rejection of the Plaintiff’s treating and examining physicians has merit and
warrants remand for further proceedings as set forth herein. Therefore, IT IS HEREBY
ORDERED that the Commissioner’s decision is REVERSED AND REMANDED.
IT IS SO ORDERED.

80

See Langley at 1119.; Sanchez, at *5.

16

DATED this 21 March 2013.

Brooke C. Wells
United States Magistrate Judge

17