Larkins v. Colvin ( 2014 )


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  •                                                               FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS       Tenth Circuit
    FOR THE TENTH CIRCUIT                         June 26, 2014
    Elisabeth A. Shumaker
    Clerk of Court
    AMANDA LARKINS, on behalf of
    M.D., a minor child,
    Plaintiff-Appellant,
    No. 13-1232
    v.                                                (D.C. No. 1:12-CV-01065-REB)
    (D. Colo.)
    CAROLYN W. COLVIN, Acting
    Commissioner of Social Security,
    Defendant-Appellee.
    ORDER AND JUDGMENT*
    Before TYMKOVICH, PORFILIO, and BALDOCK, Circuit Judges.
    Amanda Larkins, representing her minor child, M.D., appeals from the district
    court’s affirmance of the Commissioner’s denial of Supplemental Security Income
    Benefits based on childhood disability. Ms. Larkins argues that the Administrative
    Law Judge (ALJ) improperly discredited the opinions of M.D.’s treating psychiatrist,
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral
    estoppel. It may be cited, however, for its persuasive value consistent with
    Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    gave undue weight to the opinion of the non-examining State agency reviewing
    psychologist, and did not assess the credibility of herself or M.D. Exercising
    jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we reverse the district
    court’s decision and remand to that court with instructions to remand to the
    Commissioner for further proceedings.
    I. Background
    The ALJ denied benefits to M.D., an eight year old, at step three of the
    three-step sequential evaluation process for determining whether a child is disabled
    with the meaning of 42 U.S.C. § 1382c(a)(3)(C). See Briggs ex rel. Briggs v.
    Massanari, 
    248 F.3d 1235
    , 1237 (10th Cir. 2001) (describing three-step process);
    see also 20 C.F.R. § 416.924 (same). At step one, the ALJ found that M.D. had not
    engaged in substantial gainful activity since her alleged disability onset date of
    August 21, 2009. At step two, she found that M.D. had the severe impairments of
    post-traumatic stress disorder and a phonological disorder. But, the ALJ decided at
    step three that those impairments did not meet, medically equal, or functionally equal
    a listed impairment set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1, and, with
    respect to functional equality, that M.D. did not have marked limitations in two
    domains or extreme limitations in one domain.1 The Appeals Council declined to
    1
    A child’s functioning is assessed by looking at six separate domains:
    (1) acquiring and using information; (2) attending and completing tasks;
    (3) interacting and relating with others; (4) moving about and manipulating objects;
    (5) caring for herself; and (6) health and physical well-being. 20 C.F.R.
    (continued)
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    review the ALJ’s decision, making it the agency’s final decision. See Doyal v.
    Barnhart, 
    331 F.3d 758
    , 759 (10th Cir. 2003). On judicial review, the district court
    affirmed the denial of benefits. This appeal followed.
    II. Analysis
    A. Standard of Review
    “We review the Commissioner’s decision to determine whether the factual
    findings are supported by substantial evidence and whether the correct legal
    standards were applied.” Mays v. Colvin, 
    739 F.3d 569
    , 571 (10th Cir. 2014)
    (internal quotation marks omitted). We do “not reweigh the evidence or substitute
    our judgment for the Commissioner’s.” Hackett v. Barnhart, 
    395 F.3d 1168
    , 1172
    (10th Cir. 2005). Also, an ALJ’s failure “to provide this court with a sufficient basis
    to determine that appropriate legal principles have been followed is grounds for
    reversal.” Jensen v. Barnhart, 
    436 F.3d 1163
    , 1165 (10th Cir. 2005) (internal
    quotation marks omitted).
    B. Treating Psychiatrist’s Opinion
    Ms. Larkins argues that the ALJ improperly discounted the opinion of Dr. Sara
    Crowner, M.D.’s treating psychiatrist, that M.D. had extreme impairments in three
    domains—attending and completing tasks, interacting and relating with others, and
    caring for herself. More specifically, Ms. Larkins contends that the ALJ neither
    § 416.926a(b)(1)(i)-(vi). To functionally equal a listing, the child must have marked
    limitations in at least two of the six domains or an extreme limitation in at least one.
    
    Id. § 416.926a(a).
    -3-
    assessed whether Dr. Crowner’s opinion should be given controlling weight nor
    explained the weight, if any, actually given to her opinion.
    An ALJ has a duty to evaluate all medical opinions in the record and to assign
    weight to each opinion and to discuss the weight given to the opinion. See 20 C.F.R.
    §§ 416.927(c), 416.927(e)(2)(ii); Keyes-Zachary v. Astrue, 
    695 F.3d 1156
    , 1161
    (10th Cir. 2012). A treating physician’s opinion is generally entitled to controlling
    weight if it “is well supported by medically acceptable clinical and laboratory
    diagnostic techniques and is consistent with the other substantial evidence in the
    record.” Pisciotta v. Astrue, 
    500 F.3d 1074
    , 1077 (10th Cir. 2007). If, however, the
    ALJ decides “the treating physician’s opinion is not entitled to controlling weight,
    the ALJ must then consider whether the opinion should be rejected altogether or
    assigned some lesser weight.” 
    Id. Relevant factors
    the ALJ may consider include:
    (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 v. Barnhart, 
    350 F.3d 1297
    , 1301 (10th Cir. 2003) (internal quotation marks
    omitted).
    “Under the regulations, the agency rulings, and our case law, an ALJ must give
    good reasons for the weight assigned to a treating physician’s opinion.” Langley v.
    Barnhart, 
    373 F.3d 1116
    , 1119 (10th Cir. 2004) (ellipsis omitted) (internal quotation
    -4-
    marks omitted); see 20 C.F.R. § 416.927(c)(2). The reasons 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 reason for that weight.” 
    Langley, 373 F.3d at 1119
    (internal quotation marks omitted). “If the ALJ rejects the opinion
    completely, [s]he must then give specific, legitimate reasons for doing so.” 
    Id. (brackets omitted)
    (internal quotation marks omitted). And if an ALJ fails to explain
    how she assessed the weight of the treating physician’s opinion, a court cannot
    presume she actually applied the correct legal standards when considering the
    opinion. Robinson v. Barnhart, 
    366 F.3d 1078
    , 1083 (10th Cir. 2004) (per curiam).
    Although the ALJ recognized that Dr. Crowner was M.D.’s treating
    psychiatrist, the ALJ gave greater weight to the conclusions of the State agency
    reviewing psychologist, Douglas Hanze, Ph.D. The ALJ explained only that
    Dr. Crowner provided no narrative to support her conclusions that M.D. had extreme
    difficulty in attending and completing tasks and in interacting with others.
    Evaluating the ALJ’s decision “based solely on the reasons stated in the
    decision,” 
    id. at 1084,
    we can conclude that the ALJ did not give controlling weight
    to Dr. Crowner’s opinion. But we do not know why. Furthermore, the ALJ “failed to
    articulate the weight, if any, [she] gave [Dr. Crowner’s] opinion, and [she] failed also
    to explain the reasons for assigning that weight or for rejecting the opinion
    altogether.” 
    Watkins, 350 F.3d at 1301
    .
    -5-
    Without ALJ findings supported by specific weighing of the evidence, we
    cannot determine whether the ALJ’s decision is supported by substantial evidence or
    whether she applied correct legal standards in denying benefits. See Clifton v.
    Chater, 
    79 F.3d 1007
    , 1009 (10th Cir. 1996). We will not presume the ALJ applied
    the correct legal standards. See 
    Watkins, 350 F.3d at 1301
    . Therefore we remand for
    further proceedings complying with the correct legal standards. See 
    id. (remanding because
    court could not “meaningfully review the ALJ’s determination absent
    findings explaining the weight assigned to the treating physician’s opinion”). Upon
    remand, the ALJ should assess the weight to give Dr. Crowner’s opinion after giving
    full consideration to the medical evidence, including Dr. Crowner’s treatment
    records.2
    C. State Agency Reviewing Psychologist’s Opinion
    Ms. Larkins’ second argument is related to her first. She argues that the ALJ
    gave too much weight to Dr. Hanze’s opinion, because he did not review all of the
    relevant medical and educational records and did not examine M.D. Typically, the
    opinion of a treating physician is “given more weight over the views of consulting
    physicians or those who only review the medical records and never examine the
    claimant.” 
    Robinson, 366 F.3d at 1084
    (internal quotation marks omitted). “[A]n
    2
    Ms. Larkins contends that before rejecting Dr. Crowner’s opinion for a lack of
    explanation, the ALJ should have re-contacted Dr. Crowner to clarify the basis for
    her opinion. In light of our decision to remand for further proceedings, we need not
    address this contention.
    -6-
    agency physician who has never seen the claimant is entitled to the least weight of
    all.” 
    Id. But the
    opinion of a State agency psychologist
    may be entitled to greater weight than a treating source’s medical
    opinion if the State agency . . . psychological consultant’s opinion is
    based on a review of a complete case record that includes a medical
    report from a specialist in the individual’s particular impairment which
    provides more detailed and comprehensive information than what was
    available to the individual’s treating source.
    SSR 96-6P, 
    1996 WL 374180
    , at *3 (emphasis added).
    The ALJ gave greater weight to Dr. Hanze’s opinion than to Dr. Crowner’s
    opinion because Dr. Hanze’s opinion was based on questionnaires and observations
    of M.D.’s first grade teachers, speech and language assessments, and mental health
    diagnoses. But, as the ALJ recognized, Dr. Hanze did not review all relevant
    evidence. He did not consider assessments by M.D.’s second grade teachers, therapy
    notes, or reports or treatment notes from Dr. Crowner made in the year or so after
    Dr. Hanze gave his opinion. Because we remand for the ALJ to properly weigh
    Dr. Crowner’s opinion, we also direct the ALJ to determine the weight to give
    Dr. Hanze’s opinion after properly assessing Dr. Crowner’s opinion.
    D. Credibility
    In her final argument, Ms. Larkins contends that the ALJ failed to assess the
    credibility of the testimony of M.D. or herself.3 We agree. After summarizing the
    3
    When the child is unable to adequately describe her symptoms, the regulations
    permit testimony by a parent concerning the child’s symptoms. See 20 C.F.R.
    § 416.928(a). “In such a case, the ALJ must make specific findings concerning the
    (continued)
    -7-
    testimony of Ms. Larkins and M.D., the ALJ found that “the testimony indicates
    [M.D.] might meet the disability requirements because she is delayed in her
    schooling, she receives extra assistance in the school setting and can be distractible,
    she has behavioral difficulties at home and at school, she sleeps poorly, and she
    requires frequent psychological treatment and medications.” Admin. R., Vol. I at
    13-14. But the ALJ stated nothing further about the credibility of either M.D.’s or
    Ms. Larkins’ testimony, and she made no actual credibility findings. Thus, the ALJ
    did not “closely and affirmatively” link her credibility findings to substantial
    evidence. 
    Hackett, 395 F.3d at 1173
    (internal quotation marks omitted). If she
    determined the testimony was not credible, it was her duty to explain how she arrived
    at her conclusion. See 
    Briggs, 248 F.3d at 1239
    . Because the ALJ did not properly
    assess credibility, we must remand for a proper analysis.
    III. Conclusion
    We reverse the judgment of the district court and remand with instructions to
    remand to the Commissioner for further proceedings in compliance with proper legal
    standards.
    Entered for the Court
    John C. Porfilio
    Circuit Judge
    credibility of the parent’s testimony, just as he would if the child were testifying.”
    
    Briggs, 248 F.3d at 1239
    .
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