Valdez v. Massanari

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 20 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RUBEN VALDEZ,
Plaintiff - Appellant,
v. No. 01-1531
(D.C. No. 00-N-1429)
JO ANNE B. BARNHART, * (D. Colorado)
Commissioner of Social Security
Administration,
Defendant - Appellee.
ORDER AND JUDGMENT **
Before O’BRIEN and PORFILIO , Circuit Judges, and KANE , *** Senior District
Judge.
*
On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of
Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Ms. Barnhart is substituted for Larry G. Massanari as the
appellee in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
***
The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
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.
Plaintiff Ruben Valdez appeals from the denial of his claim for social
security disability insurance and supplemental security income (SSI) benefits,
arguing that the administrative law judge (ALJ) improperly assessed his physical
and mental impairments. We have jurisdiction under 28 U.S.C. § 1291 and
42 U.S.C. § 405(g). We review the agency’s decision on the whole record to
determine only whether the factual findings are supported by substantial evidence
and the correct legal standards were applied. Goatcher v. United States Dep’t of
Health & Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may “neither
reweigh the evidence nor substitute our judgment for that of the agency.” Casias
v. Secretary of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991).
Based on this standard of review, we affirm the denial of disability benefits and
reverse the denial of SSI benefits.
Plaintiff was born on February 12, 1950, and is fifty-three years old this
year. In school, he completed the ninth grade in special education classes. See
Aplt. App. at 298, 329. He has had many short-term jobs. See id. at 163-67. His
past relevant work was as a construction laborer, which involved cleaning up and
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sweeping floors, but very little lifting. His insured status expired on
September 30, 1990. He filed a claim for disability and SSI benefits in 1989,
which was denied by the agency on January 29, 1990. Plaintiff did not further
pursue that claim. He filed the current applications in 1996, alleging a disability
beginning on September 30, 1990, based on residuals from an accident in which
a vehicle he was working under fell on him, crushing his right scapula; diabetes;
pain in his legs; high blood pressure; and mental impairments.
The ALJ reviewed the period from January 30, 1990, through
September 30, 1990, for purposes of disability insurance benefits. The ALJ
reviewed the period from January 10, 1996, through May 28, 1998, for purposes
of SSI benefits. The ALJ denied both applications in a decision dated May 28,
1998, and the Appeals Council denied review, making the ALJ’s decision the
final agency decision.
The district court affirmed the ALJ’s decision. The court reviewed the
medical evidence and the ALJ’s reasoning. The court deferred to the ALJ’s
credibility assessment, and decided that the ALJ’s conclusions about plaintiff’s
impairments and limitations were consistent with the record as a whole.
On appeal, plaintiff argues that the ALJ: (1) violated the treating physician
rule when he rejected a treating psychologist’s opinion about plaintiff’s mental
impairments based on his own opinion that plaintiff was not credible in describing
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his symptoms; (2) failed to adequately and fully address plaintiff’s psychological
residual functional capacity (RFC); (3) failed to consider plaintiff’s physical and
mental impairments in combination; and (4) erred in finding that plaintiff could
perform his past relevant work or other work because his hypothetical question to
the vocational expert was faulty. Plaintiff’s arguments do not challenge the
ALJ’s reasoning or conclusion with regard to his application for disability
insurance benefits. We therefore affirm that denial. However, plaintiff’s issues
have merit with regard to his SSI claim.
I. Assessment of Plaintiff’s Evidence of Mental Impairments
Because the time period for plaintiff’s SSI claim is not delimited by the
expiration of his insured status, the ALJ was required to address plaintiff’s
evidence of mental and physical impairments arising after September 30, 1990.
This includes all of the evidence of plaintiff’s mental impairments. The ALJ
denied plaintiff’s SSI claim first at step four, finding that despite the additional
evidence relevant to the period under review, plaintiff retained the RFC for
medium work and therefore could return to his past work. See generally Williams
v. Bowen , 844 F.2d 748, 750-52, (10th Cir. 1988) (discussing five-step
evaluation). In the alternative, the ALJ found at step five that, based on the
testimony of a vocational expert, there were jobs other than his past work that
plaintiff could do. A central factor to the ALJ’s analysis was his determination
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that plaintiff’s testimony concerning his symptoms was not credible. Because the
ALJ did not believe plaintiff, he also rejected the conclusions of the psychologist
who treated plaintiff, and of the psychiatrist and psychologist who examined
plaintiff, because their opinions were based, in part, on his complaints. The ALJ
relied instead on the less restrictive opinion of the agency’s psychologist who
reviewed plaintiff’s medical records, but who never examined or treated plaintiff.
This analysis was flawed.
An ALJ is required to consider every medical opinion in the record.
20 C.F.R. § 416.927(d). The weight an ALJ must give each opinion, however,
varies according to the relationship between the medical professional and the
claimant. See id. An ALJ is required to give “controlling weight” to a treating
source’s opinion, so long as it is “well-supported” and “is not inconsistent with
the other substantial evidence in [the] record.” Id. § 416.927(d)(2). “When a
treating [source’s] opinion is inconsistent with other medical evidence, the ALJ’s
task is to examine the other [sources’] reports to see if they outweigh the treating
[source’s] report, not the other way around.” Goatcher , 52 F.3d at 290(quotations omitted). If an ALJ rejects a treating source’s opinion, he must
articulate “specific, legitimate reasons” for his decision. Id. ; see 20 C.F.R.
§ 416.927(d)(2)-(6). The opinion of an examining physician or psychologist is
generally entitled to less weight than that of a treating physician or psychologist,
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and the opinion of an agency physician or psychologist who has never seen the
claimant is generally entitled to the least weight of all. See 20 C.F.R.
§ 416.927(d)(1), (2); Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *2. If an ALJ
intends to rely on a nonexamining source’s opinion, he must explain the weight he
is giving it. 20 C.F.R. § 416.927(f)(2)(ii).
The ALJ failed to follow these rules. Michael Schmidt, Ph.D., a
psychologist, began treating plaintiff in November 1996, and had seen him about
once every two weeks as of January 1998. Aplt. App. at 315. This makes
Dr. Schmidt plaintiff’s treating source. Dr. Schmidt’s opinion was that plaintiff
suffered with a borderline intellectual level, intermittent explosive disorder,
antisocial personality disorder, and alcohol abuse in remission, and that plaintiff
was disabled because he could not tolerate the stress of dealing with people or
being supervised even by family members. Id. at 315-16.
Plaintiff was also examined by a psychiatrist, Dr. Thomas J. Hurley, and
another psychologist, Brian L. Cox, Psy.D., in 1996. Dr. Hurley did not decide
whether plaintiff could work or not, but found that plaintiff’s mental impairments
included schizoaffective disorder (depressive type), mild mental retardation,
alcohol dependence, and avoidant personality disorder. Id. at 216-18. Dr. Cox
also did not conclude whether plaintiff could work or not, but found that plaintiff
suffered from attention deficit/hyperactivity disorder (combined type), disorders
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of reading and written expression, alcohol dependency (early partial remission),
post-traumatic stress disorder (mild), and dysthymic disorder. Id. at 294.
A Dr. Wanstrath, a psychologist, reviewed plaintiff’s records and filled out
Psychiatric Review Technique and Mental Residual Functional Capacity
Assessment forms for the agency. See id. at 140-54. Her opinion, based on
plaintiff’s records, was that plaintiff suffered from dysthymia, antisocial
personality disorder, and substance addiction disorder in recent remission, and
that he was restricted from more than a little contact with the general public. Id.
at 143, 145, 146, 153. The ALJ’s findings of plaintiff’s diagnoses and
restrictions match Dr. Wanstrath’s findings, although the ALJ did not state
that he was accepting her opinion, let alone explain why. See id. at 28-29(findings 10, 12).
The ALJ rejected Dr. Schmidt’s opinion, stating that it was based on
plaintiff’s complaints, which the ALJ found were not credible. This approach
impermissibly put the ALJ in the position of judging a medical professional on
how he should assess medical data–plaintiff’s complaints. An ALJ may not
substitute his lay opinion for a medical opinion. See Sisco v. United States Dep’t
of Health & Human Servs. , 10 F.3d 739, 744 (10th Cir. 1993).
In addition, the reasons the ALJ gave for his adverse credibility
determination are not supported by the record. The ALJ believed that plaintiff
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did not receive enough medical treatment and his motivation for seeking treatment
was only to support his claim for benefits. We reject both of these reasons.
Plaintiff received regular treatment from Dr. Schmidt during most of the period
under review for SSI benefits. Moreover, his claim for benefits must be
supported by medical evidence proving his alleged mental impairments. See
42 U.S.C. § 423(d)(3); 20 C.F.R. §§ 416.908, 416.920a(b). A claimant’s
perceived lack of motivation to receive treatment is relevant if he unjustifiably
refuses treatment that would enable him to work. See Thompson v. Sullivan ,
987 F.2d 1482, 1489-90 (10th Cir. 1993). Even then, however, the ALJ must
determine that such treatment was prescribed for the claimant and find out why
the claimant refused it. See id. The ALJ made no such determination or inquiry
in this case. The ALJ also believed that plaintiff changed his story regarding the
existence and number of his past suicide attempts, hallucinations, and nightmares
in order to escalate his symptoms as he was seen by each successive doctor. See
Aplt. App. at 26. The minor inconsistencies on these points do not support the
claimed escalation, however, and none of the medical professionals believed that
plaintiff exaggerated his symptoms. In addition, the most serious
diagnosis–schizoaffective disorder–was made by the first mental health
professional plaintiff saw, Dr. Hurley.
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The ALJ rejected Dr. Hurley’s diagnosis of schizoaffective disorder
because the agency psychologist believed that the opinions of Dr. Schmidt and
Dr. Cox were sufficiently different from Dr. Hurley’s and sufficiently consistent
with each other to refute it. Id. at 24. But other than using Dr. Cox’s opinion in
this way to defeat Dr. Hurley’s diagnosis, the ALJ otherwise disregarded
Dr. Cox’s diagnoses and restrictions. See id. at 24-26. The ALJ is not entitled to
pick and choose through a medical opinion, using only those parts that are
favorable to a finding of nondisability. Switzer v. Heckler , 742 F.2d 382, 385-86
(7th Cir. 1984).
It is clear that the ALJ improperly rejected the treating and examining
sources’ opinions and improperly credited the agency psychologist’s opinion
without providing the required explanation. Because the ALJ failed to follow the
proper procedure in assessing plaintiff’s medical evidence of mental impairments,
the ALJ’s finding of nondisability must be reversed.
II. Psychological Residual Functional Capacity
Plaintiff next argues that the ALJ failed to adequately and fully address his
psychological RFC. We agree.
When a mental impairment is alleged, the ALJ must assess the claimant’s
mental RFC. 20 C.F.R. § 416.945(c). When a claimant suffers from a severe
mental impairment that does not meet or equal the criteria of the listings for
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mental disorders, “[t]he determination of mental RFC is crucial to the evaluation
of an individual’s capacity to engage in substantial gainful work activity.” Id.Pt. 404, Subpt. P, App. 1, § 12.00(A). The ALJ must assess the mental abilities
of “understanding, remembering, and carrying out instructions, and in responding
appropriately to supervision, co-workers, and work pressures in a work setting.”
Id. § 416.945(c). The rulings specify that
[i]n assessing RFC, the adjudicator must discuss the individual’s
ability to perform sustained work activities in an ordinary work
setting on a regular and continuing basis (i.e., 8 hours a day, for 5
days a week , or an equivalent work schedule), and describe the
maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The
adjudicator must also explain how any material inconsistencies or
ambiguities in the evidence in the case record were considered and
resolved.
Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *7 (emphasis added) (footnote
omitted).
In this case, the ALJ made no finding regarding plaintiff’s mental RFC,
except to find that he could not “have any contact with the general public.” Aplt.
App. at 29 (finding 12). Indeed, even if he had made a more explicit finding, it
would be tainted from his failure to explain his rejection of Dr. Schmidt’s opinion
of plaintiff’s diagnoses and restrictions.
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Conclusion
Because the ALJ improperly assessed plaintiff’s evidence of mental
impairments, it follows that he failed to properly consider plaintiff’s combination
of physical and mental impairments. And, because the ALJ improperly rejected
Dr. Schmidt’s opinion of plaintiff’s diagnosis and restrictions, the limitations
expressed in the hypothetical question he posed to the vocational expert are not
supported by substantial evidence. This is also reversible error, because the
hypothetical questions submitted to the vocational expert must state the claimant’s
impairments “with precision.” Hargis v. Sullivan , 945 F.2d 1482, 1492 (10th Cir.
1991) (quotation omitted).
Plaintiff’s motion to supplement his opening brief is granted. The district
court’s judgment is AFFIRMED in part, and REVERSED in part, and the case is
REMANDED for an immediate award of supplemental security income benefits.
ENTERED FOR THE COURT
PER CURIAM
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