Larkins v. Colvin

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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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).
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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
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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.
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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.
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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)
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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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