Robinson v. Barnhart ( 2004 )

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
RITA ROBINSON,
Plaintiff - Appellant,
v. No. 03-2170
JO ANNE B. BARNHART,
Commissioner of the Social Security
Administration,
Defendant - Appellee.
ORDER
Filed May 10, 2004
Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and
HENRY, Circuit Judge.
Appellant’s motion to publish the order and judgment filed April 6, 2004, is
granted. The published opinion is attached to this order.
Entered for the Court
Patrick Fisher, Clerk of Court
By:
Amy Frazier
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 6 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
RITA ROBINSON,
Plaintiff-Appellant,
v. No. 03-2170
JO ANNE B. BARNHART,
Commissioner of the Social Security
Administration,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-02-644)
Submitted on the briefs:
Michael D. Armstrong, Albuquerque, New Mexico, for Plaintiff-Appellant.
David C. Iglesias, United States Attorney; Tina M. Waddell, Chief Counsel,
Region VI; Michael McGaughran, Deputy Chief Counsel; and Cicely S. Jefferson,
Assistant Regional Counsel, Social Security Administration, Office of the General
Counsel, Dallas, Texas, for Defendant-Appellee.
Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.
PER CURIAM .
Claimant Rita D. Robinson appeals from the magistrate judge’s order
affirming the Commissioner’s denial of her applications for disability benefits and
supplemental security income benefits. 1
Claimant contends the Commissioner
erred in (1) not giving controlling weight to the opinion of her treating physician,
(2) failing to apply correct legal standard in assessing her ability to perform her
past relevant work, (3) ignoring favorable testimony of the vocational expert, and
(4) finding her noncompliant with medication without applying the correct legal
standard. “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.” Angel v. Barnhart , 329 F.3d 1208, 1209 (10th Cir.
2003). Because the ALJ failed to apply correct legal standards in evaluating the
treating physician’s opinion, we reverse and remand for further proceedings. 2
The magistrate judge’s order provides a detailed and chronological
recitation of claimant’s medical record; thus, we only briefly repeat the facts here.
Claimant asserts disability beginning June 1, 1998 due to bipolar type II disorder;
post-traumatic stress disorder, type II; high blood pressure; and chronic facial
1
The parties consented to proceed before a magistrate judge pursuant to
28 U.S.C. § 636(c)(1).
2
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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pain. Her application was denied initially and on reconsideration. Following a
hearing, the administrative law judge (ALJ) determined that claimant was not
disabled at step four of the five-step sequential evaluation process, see Williams
v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), because she had the residual
functional capacity (RFC) to return to her past relevant work as a data entry clerk.
The Appeals Council denied review, and the ALJ’s decision became the final
decision of the Commissioner. Claimant then appealed to the district court, and
the magistrate judge affirmed.
Claimant contends that the ALJ failed to give controlling weight to the
opinion of her treating psychiatrist, Dr. George Baca, concerning the severity of
her mental impairments and her ability to perform work-related activities.
Although we do not conclude the ALJ was required to give Dr. Baca’s opinion
controlling weight, we do agree the ALJ failed to give sufficient explanation for
rejecting Dr. Baca’s opinion and that the case must, therefore, be remanded for
further proceedings.
Dr. Baca began treating claimant for her mental illnesses in April 1998,
more than three years prior to the administrative hearing. He saw her on
approximately a monthly basis, and it is undisputed that he is claimant’s treating
physician with respect to her mental impairments. Dr. Baca diagnosed claimant
with bipolar type II disorder, characterized by high anxiety, decreased motor
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activity, high depression, history of mania, vegetative symptoms and suicidal
ideation or intent.
Dr. Baca began claimant on medication, and noted throughout his treatment
that claimant’s condition improved and was stable while on medication. There
were limited periods during which claimant did not take her medications, and
Dr. Baca reported that her symptoms were worse as a result. He consistently
reported that claimant was unable to work as a result of her mental condition.
During his treatment, claimant was twice hospitalized due to severe suicidal
ideation.
Dr. Baca completed an assessment of claimant’s mental ability to do
work-related activities in April 2001. As to claimant’s understanding and
memory, he reported that she was limited in her ability to remember locations and
work-like procedures and to understand and remember detailed instructions, and
that these limitations were severe enough to preclude any employment. With
respect to her concentration and pace, he reported that claimant was limited in her
abilities to carry out detailed instructions; maintain attention and concentration
for extended periods; perform activities within a schedule; maintain regular
attendance and be punctual within customary tolerance; work in coordination with
or proximity to others without being distracted by them; complete a normal
workday and workweek without interruptions from psychologically based
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symptoms; and perform at a consistent pace without an unreasonable number
and length of rest periods. He concluded that these limitations were severe
enough to preclude any employment. As to claimant’s social interaction, he
reported that claimant was limited in her abilities to interact appropriately with
the general public; accept instructions and respond appropriately to criticism from
supervisors; get along with coworkers or peers without distracting them or
exhibiting behavioral extremes; maintain socially appropriate behavior; and
adhere to basic standards of neatness and cleanliness. He concluded that these
limitations were severe enough to preclude any employment. Finally, as to
claimant’s ability to adapt, he reported that claimant was limited in her abilities to
respond appropriately to changes in the work setting; be aware of normal hazards
and take appropriate precautions; travel in unfamiliar places or use public
transportation; and set realistic goals or make plans independently of others.
Again, he concluded that these limitations were severe enough to preclude any
employment. Based on this assessment, Dr. Baca opined that claimant’s level of
symptoms due to her mental impairments met the criteria for Listing § 12.04 of
the social security regulations for an affective disorder. See 20 C.F.R. Subpart P.,
App. 1 § 12.04.
The ALJ stated that Dr. Baca’s assessment of claimant’s mental ability to
do work-related activities was “vague and conclusive,” and that it did not
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establish that claimant met Listing § 12.04 because it did not identify specific
vegetative symptoms and did not indicate the relative severity of each limitation.
Aplt. App., Vol. I at 19. This latter statement is clearly in error, as Dr. Baca did
explicitly identify the relative severity of each limitation he identified.
The ALJ then implicitly rejected Dr. Baca’s assessment of claimant’s
nonexertional mental limitations. Apparently based on the assessment of
a consulting psychiatrist, the ALJ stated that nonexertional factors did not
significantly erode claimant’s work capacity. This finding is directly contrary to
Dr. Baca’s opinion. The ALJ acknowledged Dr. Baca’s opinion about claimant’s
nonexertional limitations, but stated that Dr. Baca had noted claimant’s
noncompliance with prescribed medication and had not reported that her condition
was difficult to treat or that it could not be treated successfully if she complied
with medication. The ALJ stated that Dr. Baca gave no other reason for his
conclusion that claimant could not work and speculated that his reason “appears
to be based on that fact that [claimant] refuses to comply with treatments which
otherwise provide improvement.” Id. at 20.
We recently discussed the sequential analysis the ALJ should pursue in
evaluating a treating physician’s opinion:
An ALJ must first consider whether the opinion is “well-supported
by medically acceptable clinical and laboratory diagnostic
techniques.” SSR 96-2p, 1996 WL 374188, at *2 (quotations
omitted). If the answer to this question is “no,” then the inquiry
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at this stage is complete. If the ALJ finds that the opinion is
well-supported, he must then confirm that the opinion is consistent
with other substantial evidence in the record. Id. In other words, if
the opinion is deficient in either of these respects, then it is not
entitled to controlling weight. Id.Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).
Even if a treating physician’s opinion is not entitled to controlling weight,
“‘[t]reating 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 and
416.927.’” Id. (quoting Soc. Sec. R. 96-2p, 1996 WL 374188, at *4). Those
factors are:
(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.
Id. at 1301 (quotation omitted).
Further, “[u]nder 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,” that are “sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical opinions and the
reason for that weight.” Id. at 1300 (quotations omitted). “[I]f the ALJ rejects
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the opinion completely, he must then give specific, legitimate reasons for doing
so.” Id. at 1301 (quotations omitted). “In choosing to reject the 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.” McGoffin v. Barnhart, 288 F.3d 1248,
1252 (10th Cir. 2002) (quotation and emphasis omitted).
The ALJ’s analysis of Dr. Baca’s opinion is deficient in several respects.
First, the ALJ “failed to articulate the weight, if any, he gave Dr. [Baca’s]
opinion, and he failed also to explain the reasons for assigning that weight or
for rejecting the opinion altogether.” Watkins, 350 F.3d at 1301. Although it
is obvious from the ALJ’s decision that he did not give Dr. Baca’s opinion
controlling weight, the ALJ never expressly stated that he was not affording it
controlling weight, nor did he articulate a legitimate reason for not doing so.
See Soc. Sec. R. 96-2p, 1996 WL 374188, at *2. In the context of deciding
whether Dr. Baca’s report was sufficient to demonstrate that claimant met Listing
§ 12.04, the ALJ did state that Dr. Baca’s assessment of claimant’s mental ability
to perform work-related activities was “vague and conclusive.” Aplt. App., Vol. I
at 19. He did not say, however, that Dr. Baca’s opinion was not well-supported,
nor is this court able to ascertain how or why the ALJ found Dr. Baca’s opinion
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“vague and conclusive.” If the ALJ meant that Dr. Baca’s opinion about
claimant’s nonexertional mental limitations was somehow inadequately supported,
we note that a psychological opinion may rest either on observed signs and
symptoms or on psychological tests, see 20 C.F.R. Subpart P, App. 1 § 12.00(B);
thus, Dr. Baca’s observations about claimant’s limitations do constitute specific
medical findings, see Washington v. Shalala, 37 F.3d 1437, 1441 (10th Cir.
1994).
After failing to articulate why he did not give Dr. Baca’s opinion
controlling weight, the ALJ then failed to specify what lesser weight he assigned
to Dr. Baca’s opinion. See Watkins, 350 F.3d at 1301. Contrary to the
requirements of Soc. Sec. R. 96-2p, the ALJ did not discuss any of the relevant
factors set forth in 20 C.F.R. §§ 404.1527 and 416.927. The ALJ clearly gave
Dr. Baca’s opinion some weight, because he relied on it for his opinion that
claimant was stable on medication. The ALJ is not entitled to pick and choose
from a medical opinion, using only those parts that are favorable to a finding of
nondisability. See Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984).
Because the ALJ failed to provide any explanation of how he assessed the weight
of the treating physician’s opinion, as required by Soc. Sec. R. 96-2p, “[w]e
cannot simply presume the ALJ applied the correct legal standards in considering
[Dr. Baca’s] opinion.” Watkins, 350 F.3d at 1301.
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Second, the ALJ appears to have rejected Dr. Baca’s opinion based upon
his own speculative lay opinion that claimant failed to comply with prescribed
treatment, an improper basis to reject the treating physician’s opinion. See
McGoffin, 288 F.3d at 1252. The ALJ stated that Dr. Baca’s opinion about
claimant’s inability to work “appears to be based on the fact that [claimant]
refuses to comply with treatments.” Aplt. App., Vol. I at 20. We find no
evidence in the record that Dr. Baca ever expressed or suggested such an opinion.
He did consistently note that claimant was stable on medication and that her
condition was worse during the periods in which she had not taken her
medication, but he did not indicate that she was refusing to comply with her
medications, nor did he provide or suggest any explanation for her lapses.
Further, Dr. Baca’s treatment notes do not indicate that he believed that claimant
was sufficiently stable to return to work even when on medication. Given that
Dr. Baca was contemporaneously and consistently reporting that claimant was
unable to work as a result of her mental illness, his references to claimant being
“stable” may have simply meant that she was not suicidal. Moreover, the ALJ’s
speculative conclusion is procedurally and legally deficient because he did not
make the findings necessary to deny the claim on the basis of claimant’s
noncompliance with prescribed treatment, nor did he give claimant or her treating
physician an opportunity to explain the specific reasons for her failure to
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take medications to determine if justifiable cause existed for her failure.
See 20 C.F.R. §§ 404.1530 and 416.930; Soc. Sec. R. 82-59, 1982 WL 31384.
Third, the ALJ’s statement that Dr. Baca’s records did not give a reason for
his opinion that claimant is unable to work triggered the ALJ’s duty to seek
further development of the record before rejecting the opinion. If evidence from
the claimant’s treating doctor is inadequate to determine if the claimant is
disabled, an ALJ is required to recontact a medical source, including a treating
physician, to determine if additional needed information is readily available.
See 20 C.F.R. §§ 404.1512(e)(1) and 416.912(e)(1) (“We will seek additional
evidence or clarification from your medical source when the report from your
medical source contains a conflict or ambiguity that must be resolved, the report
does not contain all the necessary information, or does not appear to be based on
medically acceptable clinical and laboratory diagnostic techniques.”); see also
McGoffin, 288 F.3d at 1252 (holding ALJ had obligation to recontact treating
physician if validity of his report open to question). The responsibility to see that
this duty is fulfilled belongs entirely to the ALJ; it is not part of the claimant’s
burden. White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001). If the ALJ
concluded that Dr. Baca failed to provide sufficient support for his conclusions
about claimant’s mental limitations, the severity of those limitations, the effect of
those limitations on her ability to work, or the effect of prescribed medications on
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her ability to work, he should have contacted Dr. Baca for clarification of his
opinion before rejecting it. The ALJ did not do so.
Fourth, the ALJ improperly discounted Dr. Baca’s opinion about claimant’s
nonexertional limitations in favor of the opinion of a consulting psychiatrist,
Dr. Walker, who apparently did not examine claimant. “[T]he opinions of
physicians who have seen a claimant over a period of time for purposes of
treatment are given more weight over the views of consulting physicians or those
who only review the medical records and never examine the claimant.” Williams,
844 F.2d at 757; see also 20 C.F.R. §§ 404.1527(d)(1), (2) and 416.927(d)(1), (2) ;
see also Soc. Sec. R. 96-6p, 1996 WL 374180, at *2. “The treating physician’s
opinion is given particular weight because of his ‘unique perspective to the
medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.’” Doyal v. Barnhart, 331 F.3d 758, 762
(10th Cir. 2003) (quoting 20 C.F.R. § 416.927(d)(2)). The opinion of an
examining physician is generally entitled to less weight than that of a treating
physician, and the opinion of an agency physician who has never seen the
claimant is entitled to the least weight of all. 20 C.F.R. §§ 404.1527(d)(1), (2)
and 416.927(1), (2); Soc. Sec. R. 96-6p, 1996 WL 374180, at *2. Thus, the
ALJ erred in rejecting the treating-physician opinion of Dr. Baca in favor of the
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non-examining, consulting-physician opinion of Dr. Walker absent a legally
sufficient explanation for doing so.
Claimant also correctly argues that the magistrate judge erred in upholding
the Commissioner’s decisions by supplying possible reasons for giving less
weight to or rejecting the treating physician’s opinion. The ALJ’s decision
should have been evaluated based solely on the reasons stated in the decision.
See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962).
“Affirming this post hoc effort to salvage the ALJ’s decision would require us to
overstep our institutional role and usurp essential functions committed in the first
instance to the administrative process.” Allen v. Barnhart, 357 F.3d 1140, 1142
(10th Cir. 2004).
Because we conclude that the ALJ did not follow the correct legal
standards in considering the opinion of claimant’s treating physician, we reverse
and remand for further proceedings. As noted above, we agree with claimant’s
fourth claim of error: that the ALJ failed to make the requisite inquiries and
findings before concluding that claimant was not compliant with her prescribed
treatment. We will not reach the remaining issues raised by claimant because
they may be affected by the ALJ’s resolution of this case on remand; the ALJ’s
failure to evaluate properly the treating physician’s opinion undermines his
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assessment of claimant’s nonexertional limitations, and, therefore, the vocational
expert’s assessment of plaintiff’s ability to return to her past relevant work.
We REVERSE the decision of the magistrate judge and REMAND the case
to the district court with instructions to remand the case to the Commissioner for
further proceedings in accordance with this decision.
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