Meyer v. Astrue

Filing 20

MEMORANDUM DECISION finding that the ALJ's rejection of the Plaintiff's treating and examining physician Dr. Speed, was without substantial evidence and hereby REMANDS this case for further proceedings as set forth herein. Signed by Magistrate Judge Dustin B. Pead on 09/20/2013. (asp)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
______________________________________________________________________________
GREG STEVENS MEYER ,
)
Plaintiff,
) MEMORANDUM DECISION AND
)
ORDER
vs.
)
)
CAROLYN W. COLVIN,, in her
) Civil Action No. 2:12-cv-001059-DBP
capacity as Commissioner of the Social
)
Security Administration,
) Magistrate Judge Dustin B. Pead
Defendant.
)

______________________________________________________________________________

Greg Stevens Meyer (Plaintiff ) appeals the Commissioner of Social Security’s
(Commissioner) decision denying his claim for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act (the
“Act”), 42 U.S.C. §§ 401-33, 1381-1383(c).1 Having considered the parties’ written briefs, the
administrative record and oral argument of counsel, this Court hereby REMANDS this case to
the Commissioner for further consideration consistent with this Court’s Ruling.
PROCEDURAL HISTORY
On June 30, 2009, Plaintiff protectively filed his Social Security applications alleging a

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The parties have consented to jurisdiction by U.S. Magistrate Judge pursuant to
28 U.S.C. § 636(c) (doc. 11).
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disability onset date of November 15, 2008.2 The Commissioner administratively denied
Plaintiff’s applications initially and on appeal (Tr. 83-88, 98-103). Thereafter, Plaintiff filed a
written request for a hearing. See 20 C.F.R. § 404.929 et seq. and § 416.1429 et seq. Plaintiff
appeared and testified at a hearing held on March 11, 2011, before Administrative Law Judge
(“ALJ”), Robin L. Henrie. On June 6, 2011, the ALJ issued a decision concluding that Plaintiff
was not disabled because he could perform other work that existed in significant numbers in the
national economy (Tr. 22-37). The Appeals Council denied Plaintiff’s request for review making
the ALJ’s decision the final decision for purposes of judicial review. See 20 C.F.R.
§§ 404.981, 416.1481, 422.210(a).
Oral argument was held before this Court on July 16, 2013 (doc. 19). Plaintiff’s attorney
John Borsos was in attendance and Stephanie Kiley, as counsel for the Commissioner, appeared
telephonically.
STATEMENT OF RELEVANT LAW
I.

Definition Of Disability Under The Act
The Act states that an individual “shall be determined to be under a disability 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, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C.
§ 423(d)(2)(A). The inability to perform such work must last, or be expected to last, at least 12

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While his request for hearing was pending, Mr. Meyer amended his disability onset date
to December 1, 2007, and then at the hearing amended it to November 15, 2008.
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consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002) (stating Social
Security Administration “reads the term ‘inability’ as including a ‘12 month’ requirement”).
II.

Process For Determining Disability Under The Act
To determine whether a claimant is disabled, Social Security regulations set forth a

five-step sequential evaluation process. That process requires the adjudicator to consider
whether a disability claimant: (1) engaged in substantial gainful activity during the alleged period
of disability; (2) had a severe impairment; (3) had a condition that met or medically equaled the
severity of a listed impairment; (4) could return to [his] past relevant work; and, if not, (5) could
perform other work in the national economy. See 20 C.F.R. § 404.1520(a)(4). If a decision
regarding the claimant’s disability can be reached at any step in the sequential evaluation process,
further evaluation is unnecessary. Id.
III.

Standard Of Review
The Court reviews the Commissioner’s decision to determine whether substantial

evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (internal quotation and citation omitted). The Court may neither reweigh the
evidence nor substitute its judgment for that of the ALJ. Id. Where the evidence as a whole can
support either the agency’s decision or an award of benefits, the court must affirm the agency’s
decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).

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ARGUMENT & DISCUSSION
Plaintiff does not challenge the ALJ’s assessment at the first three steps of the sequential
evaluation; rather, Plaintiff argues that remand is required because the ALJ erred in rejecting the
opinions of Plaintiff’s treating and examining medical provider, Dr. John Speed.
I.

The ALJ Improperly Rejected The Opinions of Claimants Medical Providers
Plaintiff argues that the ALJ improperly rejected the opinion of his treating and

examining medical provider, Dr. John Speed (Dr. Speed), in favor of the opinions of the State
Agency medical consultants (doc 17). Further, in determining not to give Dr. Speed’s opinion
“great weight,” Plaintiff contends that the ALJ failed to provide “specific, legitimate reasons” for
rejecting Dr. Speed’s opinions (doc. 15).3 In response, the Commissioner argues that the ALJ
appropriately considered the record as a whole and, based thereon, reasonably afforded little
weight to the Dr. Speed’s opinion (doc. 16).
Agency Rulings and Social Security Regulations clearly direct an ALJ toward an
established process for deciding what weight to give treating source opinions. See Watkins v.
Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003). Social Security Ruling 96-2 establishes a two-

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At oral argument, the Court concluded that Plaintiff’s arguments regarding the ALJ’s
rejection of Dr. Rishe’s opinion did not amount to error given that Dr. Rische did not examine
Plaintiff during the relevant time period. As pointed out by the Commissioner, Dr. Rische’s
opinion was omitted from the record because it occurred three years prior to Plaintiff’s alleged
onset date and because there was other medical evidence that pertained to the relevant time
period. See e.g. 20 C.F.R. § 404.1512(c) (Claimant “must provide medical evidence showing
that [he has] an impairment(s) and how severe it is during the time [claimant] say[s] that [he is]
disabled.”). Cf Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995) (ALJ reasonably gave weight to
opinion of one-time examining doctor where it was the only medical evidence that pertained to
the relevant time period).
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step sequential process for determining what weight should be given to a treating source’s
opinion. First, an ALJ must decide whether a treating source’s opinion should be given
controlling weight. See Watkins, 350 F.3d at 1300. The ALJ must determine whether the
treating source opinion is “well-supported” by “acceptable clinical and laboratory diagnostic
techniques.” Id. (citing SSR 96-2p, 1996 WL 374188, at *2 (quotations omitted)). Second, the
ALJ must confirm that the opinion is consistent with other substantial evidence in the record.
See Watkins, 350 F.3d at 1300. The reviewing court is required to remand a case where the ALJ
fails to explain both the weight given to a treating source’s opinions, and the reasons for
assigning that particular weight. See Watkins, 350 F.3d at 1301. However, even if the ALJ does
not give a treating source opinion controlling weight, the opinion is still entitled to deference,
and the ALJ must still evaluate that opinion using the factors in 20 C.F.R. §§ 404.1527 and
416.927.4 The ALJ is not required to expressly apply every relevant factor for weighing opinion
evidence. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
Here, the Court agrees with Plaintiff and concludes that the ALJ failed to give specific,
legitimate reasons for giving little weight to Dr. Speed’s opinion as a treating source. While it is
entirely appropriate for the ALJ not to give a treating physician’s opinion controlling weight, the

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Specific factors the ALJ must consider, include: “(1) the length of the treatment
relationship and frequency of the 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.” 20 C.F.R. §§ 404.1527, 416.927.
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ALJ’s reason for doing so must be clear and supported by “specific, [and] legitimate reasons.”
See Miler v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (citing, Frey v. Bowen, 816 F.2d 508, 513
(10th Cir. 1987)). While the decision states that Dr. Speed’s opinion was “brief, conclusory and
unsupported by medical evidence,” the ALJ fails to give any specific examples or reasons as to
why Dr. Speed’s opinions are conclusory and unsupported (Tr. 34); see Frey 816 at 513 (internal
citations and quotations omitted) (“We have suggested that a treating physician’s opinion might
be rejected if it is brief, conclusory, and unsupported by medical evidence, but we have
emphasized that if the opinion of the claimant’s physician is to be disregarded, specific,
legitimate reasons for this action must be set forth.”). While the ALJ seems to imply that
Plaintiff’s behavior was inconsistent with Dr. Speed’s findings, the ALJ does not explicitly
address those inconsistencies or synthesize his conclusions with other substantial evidence in the
record. In addition, it is not apparent as to whether the ALJ evaluated Dr. Speed’s opinion using
the factors outlined in 20 C.F.R. §§ 404.1527 and 416.927.
Finally, although the Commissioner ably provides its own reasons for the ALJ’s rejection
of Dr. Speed’s opinions (limitations inconsistent with treatment notes, inconsistencies with other
record evidence), post hoc justifications offered by the commissioner cannot be considered if
they were not proffered at the administrative level. See Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 169 (1962).
For these reasons, the Court concludes that the ALJ failed to sufficiently explain the
reasons relied upon for rejecting Dr. Speed’s opinion as a treating source. While the rejection of
Dr. Speed’s opinion may ultimately be valid, the Court hereby remands the matter so that the
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ALJ may state the reasons for doing so and “make clear to any subsequent reviewers the weight
the adjudicator gave to the treating source’s medical opinion and the reason for that weight.”
SSR 96-2p, “Giving Controlling Wight to Treating Source Medical Opinions.” On remand, the
ALJ is requested to synthesize and weigh the evidence in a meaningful way such that, upon
review, this Court is able to determine whether substantial evidence in the record supports the
ALJ’s findings and conclusions relating to Dr. Speed’s opinion. In doing so, it may be necessary
for the ALJ to consider the sequential evaluation process in light of Dr. Speed’s opinion.
CONCLUSION
The Court finds that the ALJ's rejection of the Plaintiff's treating and examining physician
Dr. Speed, was without substantial evidence and hereby REMANDS this case for further
proceedings as set forth herein.
Dated this date of September 20, 2013.

___________________________
Dustin B. Pead
U.S. Magistrate Judge

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