Opinion
Case No. CIV-19-631-C
08-06-2020
ADINA MARIE DIGIANTOMASSO, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying her application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 423, 1382. Defendant has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. Section 636(b)(1)(B). For the following reasons, it is recommended the Commissioner's decision be reversed and remanded for further administrative proceedings.
I. Administrative History and Final Agency Decision
Plaintiff filed an application for DIB on March 24, 2015, and SSI on April 16, 2015, alleging disability beginning on February 4, 2015. AR 312-13, 316-22. The Social Security Administration denied her application initially and on reconsideration. AR 90-141. An Administrative Law Judge ("ALJ") then held a hearing at which Plaintiff and a vocational expert ("VE") testified. AR 58-90. On March 8, 2017, the ALJ issued a decision finding Plaintiff was not disabled within the meaning of the Social Security Act. AR 142-63. On appeal, the Appeals Council remanded the case to the ALJ for further administrative proceedings based on the ALJ's failure to properly evaluate evidence relating to Plaintiff's mental impairments. AR 171-73.
The ALJ held a second hearing on February 14, 2018, at which Plaintiff and a VE again testified. AR 36-57. On July 6, 2018, the ALJ issued a decision finding Plaintiff was not disabled within the meaning of the Social Security Act. AR 11-27. Following the agency's well-established sequential evaluation procedure, the ALJ found Plaintiff had not engaged in substantial gainful activity since February 4, 2015, the alleged onset date. AR 16. At the second step, the ALJ found Plaintiff had severe impairments of depressive disorder, anxiety disorder, and organic mental disorder. AR 17. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments meeting or medically equaling the requirements of a listed impairment. AR 17-18.
At step four, the ALJ found Plaintiff had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels with the following limitations:
[S]he can never climb ladders, ropes, or scaffolds; she must avoid all unprotected heights, moving machinery, and commercial driving; she is able to learn, understand, remember and perform simple tasks with routine supervision; she is able to work with the general public in non-high stress environment[s]; she is able to work with supervisors and coworkers without interference from psychologically based symptoms; and is able to adapt to work situations.AR 19. Based on this RFC finding and VE testimony regarding the requirements of Plaintiff's previous work, the ALJ determined Plaintiff was unable to perform her past relevant work. AR 25.
At step five, the ALJ again relied on the VE's testimony and concluded Plaintiff's RFC would allow her to perform jobs existing in significant numbers in the national economy including laborer/salvager, industrial sweeper, and cleaner II. AR 25-27. As a result, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from February 4, 2015 through the date of the decision. AR 27.
The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009); 20 C.F.R. § 404.981.
II. Issues Raised
Plaintiff raises three issues on appeal. Specifically, Plaintiff argues the ALJ erred by failing to discuss significantly probative evidence that conflicted with her findings. Doc. No. 22 ("Pl.'s Br.") at 14-18. Second, Plaintiff contends the ALJ failed to properly evaluate the opinion of Dr. Bradley Bohnstedt. Id. at 21. Finally, Plaintiff argues the ALJ's RFC was not supported by substantial evidence. Id. at 22-24.
III. General Legal Standards Guiding Judicial Review
The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citations and quotations omitted). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "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); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. § 404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of her age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
IV. Medical Evidence
In 2014, Plaintiff was diagnosed with a left frontal lobe arteriovenous malformation ("AVM"). AR 599-605, 617. On November 12, 2014, Dr. Bohnstedt performed a three-vessel diagnostic cerebral angiogram embolization and craniotomy for resection of her left frontal lobe AVM. AR 618-20. In February 2015, Plaintiff underwent an embolization and craniotomy for resection of her left frontal lobe AVM. AR 563-66, 569-72, 578-81. Prior to her surgery, Plaintiff had normal attention span, memory, language, and fund of knowledge. AR 567-68. Upon Dr. Bohnstedt's recommendation, Plaintiff underwent speech and language therapy following surgery. AR 649, 669-71. On March 26, 2015, Dr. Bohnstedt found that although Plaintiff still had issues with cognition, she could return to work part time for two weeks and then return to full time if she is feeling well. AR 649.
At the first evaluation on February 18, 2015, Amy Deal, a speech pathologist, diagnosed Plaintiff with moderate, fluent aphasia. AR 669. She noted Plaintiff experienced moderate word finding difficulty, limited semantic paraphasias, syntax was intact but speech output was generally void of content words, auditory comprehension for yes/no questions was reliable at a concrete level only, poor ability to follow multi-step commands, auditory word recognition was good, and confrontational naming was fair and improved with semantic cuing. AR 670. Ms. Beal indicated Plaintiff's aphasia was classified as Transortical Sensory and was moderately severe. Id. She stated that Plaintiff's reading comprehension was marginally functional for the activities of daily living and also, though she could hold a pen, written language was not functional. Id. Ms. Deal recommended intense, private speech therapy three times per week and an evaluation of cognitive communication before returning to work. Id. On April 8, 2015, Ms. Deal performed a final evaluation of Plaintiff concluding that although Plaintiff still had mild deficits in memory for new information, she had been diligent in therapy and had a good outcome that supported a return to work. AR 656-57.
In July 2015, Dr. Robert Danaher performed a consultative psychological examination and diagnosed Plaintiff with moderate major depressive disorder. AR 677-80. He estimated Plaintiff's IQ to range between 75-83. AR 678. He also found "evidence in testing data to suggest changes in functioning, most likely caused by the AVM and/or treatment of this condition. This includes some changes in functional memory capabilities and particularly problems with immediate memory functioning. The majority of the data available however reflects that, in comparison to the normative population, her scores were typically in the low average to average range." AR 679. He rated her ability to understand, remember, and carry out simple and complex instructions in a work-related environment as adequate. AR 680.
On July 24, 2015, Dr. Phillip Massad evaluated Plaintiff's medical records and concluded that she had marked limitations in her ability to understand, remember, and carry out detailed instructions and would be best suited for simple, repetitive work in low stress environments. AR 100-01. On August 24, 2015, Plaintiff was seen at OU Medical Center and reported severe headache and vertigo similar to what she experienced prior to her AVM repair. AR 684. A CT scan performed on August 25, 2015, revealed postsurgical changes related to prior left frontal craniotomy for AVM nidus resection and changes related to onyx embolization, a 2 x 2 x 3 mm aneurysm arising from the supraclinoid left intracranial carotid artery, volume loss and encephalomalacia targeting the white matter of the left periventricular frontal lobe. AR 688. Plaintiff reported feeling better after a migraine cocktail, though she was still experiencing vertigo. AR 690, 692, 698. Dr. Bohnstedt recommended a scopolamine patch for dizziness. AR 700.
On August 28, 2015, Dr. Bohnstedt completed a Medical Source Statement indicating Plaintiff could lift up to 25 pounds occasionally and up to 15 pounds frequently, stand and walk for two hours, sit for six hours, and no mental limitations. AR 845-47. In September and November 2015 and March and April 2016, Plaintiff again reported intermittent migraine headaches and vertigo. AR 704-05, 707, 833-34, 836, 838-39. On October 1, 2015, Dr. Bohnstedt indicated Plaintiff's speech was improving, she had normal attention, memory, language, and fund of knowledge, and that she had returned to work on a part time basis. AR 731-32. He further explained that he intended to maintain observation on Plaintiff's remaining aneurysm, but if she experienced serious headaches, nuchal rigidity, or nausea and vomiting, she should seek medical attention at an emergency room immediately. AR 732.
As discussed herein, Plaintiff returned to work part time at Xerox "but [] the job ended because they put her back into training because she could not retain information and eventually let her go." AR 20.
On February 8, 2016, Dr. Sally Varghese reviewed Plaintiff's medical record and concluded she was markedly limited in her ability to remember, carry out, and understand detailed directions and that she would be best suited for simple, repetitive work in low stress environments. AR 123-27.
On May 2, 2016, Plaintiff underwent a videonystagmography related to her dizziness and headaches. AR 809. The report indicated the findings were "consistent with both peripheral vestibular and central nervous system involvement which are more likely associated with patient's past surgical history due to left frontal [AVM]. The headaches cannot be ruled out as a contributing factor [to] the dizziness; however, these also may [be] associated with her past surgical history based on patient report." Id. The report also stated that Plaintiff showed a "significant reduced vestibular response (RVR) of 25% for the right ear." Id. It was recommended Plaintiff follow up with Dr. Bohnstedt and to consider balance rehabilitation and further related testing and evaluations. Id. The record does not indicate any of these things occurred. However, in September 2017, Plaintiff reported she had attempted to make an appointment with Dr. Bohnstedt but was unable to do so because she no longer had insurance. AR 897, 899.
On May 24, 2016, Plaintiff underwent a neuropsychological evaluation by Dr. Jim Scott based on a referral by Dr. Bohnstedt. AR 762-67. Dr. Scott found Plaintiff had "generally intact visual-spatial skills, intellectual functioning, naming, and executive functioning, with significant variability across tasks of memory, attention, cognitive speed, and verbal fluency." AR 766. Dr. Scott further explained:
While some of the behavioral changes described by the collateral informant (i.e., impulsivity, disorganization) could be consistent with behavioral sequela following the resection of her frontal AVM, her intact performance on measures of executive functioning and variably poor performance across memory tasks are not consistent with the cognitive deficits associated with damage to the left frontal lobe. Her variable task engagement, as indicated by poor performance on stand-alone and embedded measures of effort and symptom validity, likely account for the variability in her neuropsychological test scores. Her performance in the average and above average ranges is therefore thought to be more indicative of her true level of cognitive functioning. These test results are interpreted in the context of reported severe emotional distress. While her pattern of responding on a well-standardized measure of emotional and personality functioning indicated that the patient was over-reporting the symptoms of her emotional distress, we do feel that she suffers from clinically significant depression and anxiety based on history provided by the patient and her friend, and her presentation during this evaluation. The forgetfulness and distractibility reported by the patient and her friend are likely related to depression and anxiety, which can and do cause some mild, variable disturbance of attention/concentration, memory, speed, and organization. More importantly, depression, anxiety, and chronic stress
can make tasks seem more effortful and result in negative evaluations of one's own coping capacity and performance.Id. Dr. Scott concluded Plaintiff's symptoms could improve with treatment of her depression and anxiety. AR 766-67. She began receiving psychiatric counseling in June 2017. AR 869-75, 878-91, 893-94, 899, 923-26, 929-47, 949-55, 958-77. Plaintiff showed an interest in starting antidepressants but is allergic to some, and others caused a worsening of her vertigo.
In October 2016, an MRI showed Plaintiff's aneurysm in her left lobe remained unchanged. AR 769. In 2017, when she began receiving psychiatric counseling, Plaintiff reported migraines and vertigo made it difficult for her to work, leave her house, and/or drive herself. AR 872, 891, 942. In June 2017, Dr. L. Peter Schwiebert referred her back to Dr. Bohnstedt for new/worsening headaches. AR 908-09. In September 2017, Plaintiff reported to Dr. Salma El-Bittar that she was still experiencing ongoing vertigo and stated that she was diagnosed with "positional vertigo" by an ENT in 2016. AR 897, 899. As previously noted, Plaintiff was unable to see Dr. Bohnstedt due to a lack of insurance. AR 899. Dr. El-Bittar ordered a CT scan to rule out a reoccurring aneurysm as the cause of her headaches, vertigo, and additional hearing loss and referred Plaintiff to an ENT to further investigate vertigo and right sided partial hearing loss. AR 903.
V. ALJ's Consideration of Probative Evidence
In her first issue on appeal, Plaintiff argues the ALJ failed to discuss uncontroverted and/or significantly probative evidence that conflicted with her findings. Pl.'s Br. at 14-18. An ALJ is required to consider all relevant evidence in the record. Soc. Sec. R. 06-03p. While she is not required to discuss every piece of evidence in the record, it is clear that, "in addition to discussing the evidence supporting h[er] decision, the ALJ also must discuss the uncontroverted evidence [s]he chooses not to rely upon, as well as significantly probative evidence [s]he rejects." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citations omitted); see also Watts v. Berryhill, 705 F. App'x 759, 762 (10th Cir. 2017) ("While the 'record must demonstrate the ALJ considered all of the evidence,' there is no requirement an ALJ 'discuss every piece of evidence.'" (citation omitted)).
Plaintiff argues the ALJ failed to discuss significantly probative evidence related to her vertigo and her psychological impairment symptoms. With regard to Plaintiff's vertigo, the ALJ found it was a non-severe impairment based primarily on the inconsistency with which Plaintiff sought medical treatment for the condition. AR 17. Specifically, the ALJ explained the following:
Although she had sporadic complaints of vertigo, her treatment has been inconsistent at best. Videonystagmography was performed in May [] 2016 and was consistent with possible peripheral vestibular and central nervous system involvement likely from her past surgical history. She was advised to follow up for possible balance rehabilitation; however, there is no indication she did so. Further, there is no indication she was seen again for any related complaints until June [] 2017, where she stated that she had recently run out of thyroid medication but had a "better mental state" and less weight gain on the medication. She also complained of headaches and requested a referral
back to neurosurgery. She was given refills of her thyroid medication and referred back to neurosurgery for evaluation.Id. (citations omitted).
She returned to Family Medicine in September [] 2017 with complaints of reoccurring episodes of vertigo and hearing loss, as well as for a refill of her thyroid medication. She described the vertigo as intermittent in nature and stated that it resolves spontaneously. Physical examination noted that she reported worsening vertigo [w]hen her head was turned to the right and left on Epley maneuver and also a depressed affect but was otherwise unremarkable. Impression was hypothyroidism (for which she was advised to use her prescription medication), fatigue, arteriovenous malformation (AVM) of the brain, and vertigo. She was advised to follow up with a neurosurgeon to confirm that her symptoms were not caused by her history of AVM or a reoccurring aneurysm. She was described as currently stable. There is no evidence of any subsequent treatment, including any follow up with neurosurgery or other specialty care.
Plaintiff argues the ALJ failed to note her report in 2017 that she had experienced vertigo since her surgery in 2015 and other portions of the record where she reported to her counselors that she was continuing to experience vertigo. Pl's Br. at 15. However, the ALJ did not state that Plaintiff had not experienced vertigo, she stated that Plaintiff did not seek treatment for it from May 2016 until September 2017. AR 17. This appears to be mostly accurate.
Following the May 2016 videonystagmography, it was recommended Plaintiff follow up with Dr. Bohnstedt. AR 809. The record does not indicate this occurred. In June 2017, Plaintiff reported new or worsening headaches to Dr. Schwiebert but did not mention vertigo. AR 908-09. Dr. Schwiebert referred Plaintiff to Dr. Bohnstedt based on her headaches but at her September 2017 follow up, when Plaintiff also reported vertigo, she stated that she had been unable to see Dr. Bohnstedt because she lacked insurance coverage. AR 897, 899. While Plaintiff continued to mention experiencing vertigo during her counseling sessions, it is unlikely she was going to obtain treatment for the same from mental health providers. Further, while it is true the ALJ did not mention Plaintiff's lack of insurance coverage as a reason she did not seek treatment for vertigo, it is not clear from the record that Plaintiff's lack of insurance coverage arose as an obstacle until after Plaintiff's July 2017 appointment when a medical provider again recommended she see Dr. Bohnstedt.
With regard to Plaintiff's mental impairments, Plaintiff contends the ALJ failed to consider Plaintiff's 2015 visits to University of Oklahoma facilities, portions of the May 2016 neuropsychological examination finding Plaintiff irritable and depressed with frequent crying, preoccupied by current life stressors, and making self-deprecating remarks about her own performance, and portions of her mental health treatment records indicating less than an "intact and stable mood." Pl's Br. at 16-17. In his Response, Defendant argues essentially that Plaintiff's 2015 records were close in time to her February neurosurgery and therefore, understandably more limiting than her long-term prognosis. Doc. No. 26 at 11-12.
In her decision, the ALJ noted Plaintiff's assertion that since her February 2015 surgery she has experienced problems retaining information and this has affected her ability to work. AR 20. Plaintiff stated that she worked part time at Xerox after her surgery but the job ended because they placed her back into training because she could not retain information and eventually let her go. Id. Plaintiff uses lists when she goes to the grocery store and sets alarms to take her medications due to memory difficulties. AR 21.
The ALJ also discussed Dr. Danaher's psychological evaluation of Plaintiff in July 2015. AR 22. As previously noted, he rated Plaintiff's ability to understand, remember, and carry out simple and complex instructions in a work-related environment as adequate. AR 680. The ALJ discussed the evaluation in detail and gave his opinion great weight. AR 22.
Plaintiff complains the ALJ did not mention mild anomia, auditory memory deficits, and moderate cognitive and language deficits during 2015. Pl.'s Br. at 16. The portions of the record upon which Plaintiff relies, however, do not establish the ALJ's decision is not supported by substantial evidence. Specifically, Plaintiff references Ms. Deal's final evaluation of Plaintiff at the end of her speech therapy on April 8, 2015. Id. While Ms. Deal did reference deficits in Plaintiff's memory for new information, she stated that such deficits were mild. AR 656, 662. She also stated that while Plaintiff had initially presented with moderate deficits in cognitive and language areas, Plaintiff had worked diligently and experienced a good outcome that supported a return to work. AR 657. Additionally, Ms. Deal specifically stated that Plaintiff's trace anomia persisted but it is mild, her auditory comprehension is within normal limits, higher level reasoning and problem solving are within normal activities for daily living, and affect and interaction are appropriate. AR 662.
Plaintiff also notes that the record shows she presented as "anxious, tearful, and/or easily distractable . . . over several months in 2015." Pl.'s Br. at 16. In support, Plaintiff cited to only three visits during that time period. Id. (citing AR 712, 718, 723, 728). On April 22, 2015, two months after her surgery, Plaintiff was seen at OU Physicians Family Medicine for a checkup regarding her thyroid and depression since her surgery. AR 726-27. Plaintiff was described as quite tearful and as having a depressed affect. AR 728. She was prescribed Prozac and advised to follow up in four to six weeks. AR 729. On June 11, 2015, Plaintiff visited OU Physicians Family Medicine as a follow up to an emergency room visit regarding a possible kidney stone. AR 720-21. During the visit, Plaintiff denied experiencing anxiety or depression, though she was described as anxious. AR 723. On July 3, 2015, Plaintiff reported that her depression was worse, explaining the cause being primarily work related, and she was described as anxious. AR 715-18. On September 2, 2015, Plaintiff acknowledged her history of major depressive disorder but stated that she felt "okay" and she did not appear to be in acute distress, though she was described as anxious and easily distractable. AR 710-12.
These records indicate that two months after Plaintiff's surgery she was clearly showing signs of depression. Although that condition may not have entirely resolved, by Plaintiff's own reports it clearly improved. More significantly, these records as a whole do not establish that the ALJ's decision was not supported by substantial evidence.
Plaintiff also contends the ALJ erred in selectively discussing portions of Dr. Scott's 2016 evaluation. Pl.'s Br. at 16-17. Plaintiff references the ALJ's statement that Plaintiff "has consistently demonstrated intact short-term and long-term memory function" as drawn from Dr. Scott's evaluation. Id. at 17. Although the ALJ does make that statement, see AR 18, she did not indicate any particular portion of the record upon which she relied in reaching said conclusion. Further, this conclusion is not supported by Dr. Scott's evaluation. AR 762-67. Indeed, based on a review of the decision, it does not appear the ALJ ever referenced Dr. Scott's evaluation.
Nevertheless, as Plaintiff partially acknowledges, see Pl.'s Br. at 17 n.7, Dr. Scott's evaluation is not particularly supportive of her position. Plaintiff selectively highlights portions of Dr. Scott's evaluation noting his observations that she presented with a depressed and irritable mood, frequent crying, a preoccupation with current life stressors, and frequent self-deprecating remarks about her own performance. Pl.'s Br. at 17. However, although Dr. Scott noted each of these factors, he also concluded, as previously explained, that Plaintiff's poor performance on memory tasks was inconsistent with damage to the left frontal lobe. AR 766. He further found that although she exaggerated her symptoms of emotional distress, she did suffer from "clinically significant depression and anxiety" and that this likely causes her forgetfulness and anxiety. Id. He also explained these conditions can "result in negative evaluations of one's own coping capacity and performance." Id. Dr. Scott indicated Plaintiff's difficulties could improve with treatment. AR 766-67.
Plaintiff began receiving that treatment in 2017 and on appeal contends that the ALJ erred by failing to consider treatment notes indicating worsening depression and limited treatment response. Pl.'s Br. at 17. Defendant argues Plaintiff fails to explain how the symptoms noted in these records "translate[] into limitations more severe than the ALJ found." Doc. No. 26 at 11. Contrary to this assertion, Plaintiff specifically asserted that had the ALJ properly considered her psychiatric treatment notes, she would have concluded Plaintiff would have difficulties interacting with supervisors and/or coworkers. Pl.'s Br. at 17.
To be sure, the ALJ discussed Plaintiff's records regarding her mental health treatment, however, she focused solely on Plaintiff's problems with the medication prescribed rather than the content of the records pertaining to Plaintiff's progress or lack thereof. AR 24-25. This is concerning because, as Plaintiff asserts, the records show a fairly consistent pattern of severe depression exacerbated by Plaintiff's frequent difficulties with memory and/or retaining information, the varying problems these difficulties caused in her life, as well as a limited response to treatment. AR 890-91, 893-94, 937, 940, 941-47. Nevertheless, while Plaintiff contends the records support a limitation regarding difficulties dealing with supervisors and/or coworkers, there are no medical opinions within the record supporting that assertion. Accordingly, Plaintiff has not established that the ALJ's RFC is lacking substantial supportive evidence. Wilson, 602 F.3d at 1140. See also, cf., Duncan v. Colvin, 608 F. App'x 566, 574 (10th Cir. 2015) ("Given that the ALJ did not reject the medical impairments found by [the doctor] and there were no medical opinions regarding [the plaintiff's] work-related functional limitations, there was no opinion on such matters . . . for the ALJ to weigh."); Wall, 561 F.3d at 1068-69 (upholding the ALJ's findings on mental impairment where record did not contain any treating or examining medical opinions as to allegedly disabling pain disorder); Thao v. Colvin, No. 14-cv-01793-RBJ, 2015 WL 4748022, at *3 (D. Colo. Aug. 12, 2015) ("Because the doctor did not describe any specific work-related impairments stemming from this diagnosis, the ALJ was not required to further assess the weight to afford the opinion.").
VI. Treating Physician's Opinion
Plaintiff contends the ALJ erred by not following the treating physician rule in evaluating Dr. Bohnstedt's opinion. Pl.'s Br. at 18-21. As noted previously herein and in the ALJ's decision, Dr. Bohnstedt completed a Medical Source Statement on August 28, 2015, that would essentially limit Plaintiff to sedentary work by indicating Plaintiff could lift up to 25 pounds occasionally and up to 15 pounds frequently, stand and walk for two hours, sit for six hours, and had no mental limitations. AR 24, 845-47. In purportedly granting partial weight to Dr. Bohnstedt's opinion regarding Plaintiff's physical and mental limitations, the ALJ explained:
While he did provide [Plaintiff] specialized care in 2015, the limitations he set forth essentially limiting her to sedentary work are inconsistent with the record as a whole. While such limitations may have been appropriate for the time period immediately following her surgery, there is no indication that such limitations are necessary for the entire period at issue. Instead, follow up records describe her condition as stable and make no mention of the need for any work-related limitations. Little weight has also been given to his findings about her mental work-related capacity, as it is inconsistent with the medical record as whole, including the findings of the State agency psychological consultants.AR 24.
Specific Social Security regulations govern the consideration of opinions by "acceptable medical sources." 20 C.F.R. §§ 404.1502, 404.1513(a), 416.902, 416.913(a). The Commissioner generally gives the highest weight to the medical opinions of a "treating source," which includes a physician who has provided the claimant "with medical treatment or evaluation" during a current or past "ongoing treatment relationship" with the claimant. 20 C.F.R. §§ 404.1502, 404.1527(c)(2), 416.902, 416.927(c)(2); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).
When considering the medical opinion of a claimant's treating physician, the ALJ must first determine whether the opinion should be given "controlling weight" on the matter to which it relates. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The opinion of a treating physician must be given controlling weight if it is both "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and not inconsistent with the other substantial evidence in the record. Watkins, 350 F.3d at 1300 (quoting Soc. Sec. R. 96-2p, 1996 WL 374188, at *2); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
A treating-physician opinion not afforded controlling weight is still entitled to deference. 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."). If the ALJ has determined that the medical opinion of a treating physician is not entitled to controlling weight, the ALJ must determine what lesser weight should be afforded the opinion. Watkins, 350 F.3d at 1300-01; Langley, 373 F.3d at 1119.
In this second inquiry, the determination of how much deference to afford a treating-physician opinion not entitled to controlling weight should be made in view of 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 (quotations omitted); see 20 C.F.R. §§ 404.1527(c)(2)-(6), 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).
In her Opening Brief, Plaintiff notes the ALJ gave Dr. Bohnstedt's opinion "controlling weight" in her March 2017 decision. Pl.'s Br. at 20. Plaintiff argues that because the record did not change between the previous and current decision, the ALJ's rationale of the opinion being inconsistent with the record as a whole does not constitute the specific and legitimate reasoning required in granting less weight to a treating physician opinion. Id. In his Response, Defendant primarily argues the ALJ is not bound by her previous decision. Doc. No. 25 at 14.
In Hamlin v. Barnhart, 365 F.3d 1208 (10th Cir. 2004), the Tenth Circuit was presented with a similar situation. In Hamlin, four years before the current decision the same ALJ made an RFC finding that the plaintiff could perform less than a wide range of light work and could not return to his past relevant work. Id. at 1223. In the current decision using almost exactly the same language and relying on nearly the same evidence as the earlier decision, the ALJ arrived at a different RFC conclusion without providing any explanation for the different conclusion. Id. at 1223-24. In addition, the ALJ failed to give credence or explain why he rejected the medical reports and RFC assessments of the plaintiff's treating physicians, nor did the ALJ explain why a 5-year-old consultative examination report and agency RFC determination were given weight over the treating physicians. Id. at 1224.
The ALJ determined Mr. Hamlin had an RFC for a wide range of medium work and could return to his past relevant work of egg gathering as well as perform a variety of other jobs. In contrast, four years earlier this same ALJ found that Mr. Hamlin could perform only a less-than-fully-wide range of light work and could not return to his past relevant work of egg gathering and truck driving. In noting this difference, we do not imply the ALJ was bound in his second review of Mr. Hamlin's claim to his earlier RFC decision on remand from the Appeals Council. See Campbell v. Bowen, 822 F.2d 1518, 1522 (10th Cir. 1987) (remand order from Appeals Council did not bind ALJ to prior RFC determination). It was certainly within the ALJ's province, upon reexamining Mr. Hamlin's record, to revise his RFC category. In this case, however, the ALJ's revised RFC determination was not supported by substantial evidence.Id. at 1223-24 (additional citations omitted).
The ALJ's 1998 decision used almost exactly the same language and relied on nearly the same evidence as the 1994 decision but provided no explanation for why the same evidence would result in a different conclusion. Moreover, the ALJ's failure to give credence to, or specifically and sufficiently explain why he was rejecting, the medical reports and RFC assessments of Mr. Hamlin's treating physicians cannot survive review. See Drapeau [v. Massanari], 255 F.3d [1211,] 1213 [(10th Cir. 2001)].
In the present case, the ALJ gave "controlling weight" to Dr. Bohnstedt's opinion in her 2017 decision. AR 159. Therein, the ALJ concluded Plaintiff could perform less than a full range of sedentary work, presumably based at least in part, if not solely, on Dr. Bohnstedt's "controlling" conclusion that she could only stand and walk two hours in an eight-hour work day. AR 149. By contrast, in the present case, the ALJ rejected Dr. Bohnstedt's opinion and concluded Plaintiff could "perform a full range of work at all exertional levels" with certain non-exertional limitations. AR 19.
Although the ALJ stated that she was granting Dr. Bohnstedt's opinion "partial weight," by finding Plaintiff could perform work at all exertional levels, she clearly rejected his opinion regarding Plaintiff's physical limitations.
As in Hamlin, the undersigned acknowledges the ALJ was not bound by her previous decision. Hamlin, 365 F.3d at 1224 (citing Campbell, 822 F.2d at 1522). However, the evidence in the record is essentially the same and the ALJ uses similar language throughout her opinions, yet inexplicably concludes Dr. Bohnstedt's opinion is now inconsistent with the record as a whole. This is especially troubling in light of the fact that granting controlling weight to Dr. Bohnstedt's opinion now would result in a finding that Plaintiff was unable to perform the medium level work relied upon in the ALJ's findings at step five. AR 26; 20 C.F.R. § 404.1567.
The only substantive change between decisions is that Plaintiff travelled to New York in the interim in order to see her daughter. AR 940. The ALJ referenced this multiple times in her decision. AR 24. However, although the ALJ noted Plaintiff travelled by bus, see id., she failed to mention that Plaintiff did so because her various conditions render her unable to fly or drive herself and that the trip was very difficult for her. AR 940.
Defendant concedes that while at the first hearing and in her initial reports, Plaintiff discussed her difficulties standing and walking, "at her second hearing, she did not claim she had any difficulty walking." Doc. No. 26 at 13. This is a disingenuous argument because while Plaintiff may not have discussed her walking or standing difficulties at her second hearing, she did not testify that such difficulties had improved and as the ALJ acknowledged, Plaintiff specifically testified that her vertigo and migraines had worsened since the first hearing. AR 21. Moreover, there is medical evidence supporting the existence of both vertigo and migraines and that she has been unable to see Dr. Bohnstedt regarding the same due to a lack of insurance. AR 809, 872, 891, 897, 899, 903, 908-09, 942.
Defendant also argues that difficulties standing or walking are inconsistent with Plaintiff's reported activities including, inter alia, taking care of her children. Doc. No. 26 at 13. Notably, however, Plaintiff's only child is now a grown daughter and the portions of the record to which Defendant cites in support of this statement do not include any assertions from Plaintiff that she is "taking care of her children." Id. (citing AR 470-72, 496-99).
The undersigned finds that the ALJ's decision is not "sufficiently specific to make clear to any subsequent reviewers" the basis for her rejection of Dr. Bohnstedt's opinion. Watkins, 350 F.3d at 1300 (quotations omitted). Accordingly, the ALJ's failure to grant any weight to Dr. Bohnstedt's opinion, or to specifically and sufficiently explain why she was rejecting the same, cannot survive review.
Based on the Court's finding that the ALJ improperly weighed Dr. Bohnstedt's opinion, it is unnecessary to address the remaining argument Plaintiff raised on appeal. See Watkins, 350 F.3d at 1299 ("We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand."). --------
RECOMMENDATION
In view of the foregoing findings, it is recommended that judgment enter REVERSING and remanding the decision of the Commissioner for further administrative proceedings. The parties are advised of their respective right to file an objection to this Report and Recommendation with the Clerk of this Court on or before August 26th , 2020 in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 6th day of August, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE