LAURA FASHING, Magistrate Judge.
THIS MATTER comes before the Court on plaintiff Nadine Francesca Romero's Motion to Reverse and Remand for a Rehearing with Supportive Memorandum (Doc. 15), which was fully briefed on September 12, 2019. See Docs. 19-21. The parties consented to my entering final judgment in this case. Docs. 4, 6, 7. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge ("ALJ") failed to consider the opinion of state agency psychiatric reviewer Dr. W. Miller Logan. I therefore GRANT Ms. Romero's motion and remand this case to the Commissioner for further proceedings consistent with this opinion.
The standard of review in a Social Security appeal is whether the Commissioner's final decision
"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Langley, 373 F.3d at 1118. A decision "is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole must include "anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). "`The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.'" Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
To qualify for disability benefits, a claimant must establish that he or she is unable "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); 20 C.F.R. § 404.1505(a).
When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in "substantial gainful activity"; (2) the claimant has a "severe medically determinable . . . impairment . . . or a combination of impairments" that has lasted or is expected to last for at least one year; and (3) the impairment(s) either meet or equal one of the Listings
Ms. Romero was born in 1981, completed four years of community college, and worked for approximately 13 years as a Certified Nursing Assistant. AR 41-42, 213, 283.
The ALJ found that Ms. Romero met the insured requirements of the Social Security Act through December 31, 2020. AR 17. At step one, the ALJ found that Ms. Romero had not engaged in substantial, gainful activity since November 11, 2014, her alleged onset date. Id. At step two, the ALJ found that Ms. Romero suffered from the following severe impairments: obesity, major depressive disorder, anxiety, and post-traumatic stress disorder. AR 17-18.
At step three, the ALJ found that none of Ms. Romero's impairments, alone or in combination, met or medically equaled a Listing. AR 18-20. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Romero's RFC. AR 20-28. The ALJ found Ms. Romero had the RFC to
AR 20.
At step four, the ALJ concluded that Ms. Romero could not perform any of her past relevant work. AR 28. The ALJ found Ms. Romero not disabled at step five because she could perform jobs that exist in significant numbers in the national economy—such as assembler, kitchen helper, and housekeeper. AR 28-29. On October 4, 2018, Ms. Romero requested that the Appeals Council review the ALJ's unfavorable decision. AR 211-12. On November 20, 2018, the Appeals Council denied the request for review. AR 1-6. Ms. Romero timely filed her appeal to this Court on January 18, 2019.
Ms. Romero raises two arguments for reversing and remanding this case: (1) the ALJ failed to discuss the opinion of state agency psychiatric reviewer Dr. Logan, and (2) the ALJ failed to adequately develop the record about her mental limitations. Doc. 15 at 2, 12-19. The Court agrees that the ALJ erred by failing to discuss Dr. Logan's opinion and therefore does not address the other alleged error, which "may be affected by the ALJ's treatment of this case on remand." Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
Ms. Romero argues that the ALJ erred by failing to consider the opinion of state agency psychiatrist Dr. Logan. Doc. 15 at 12-14. She argues that the ALJ's failure to either "accept and include" or "reject and explain" the mental limitations in Dr. Logan's opinion is harmful error that requires remand. Id. The Commissioner concedes that the ALJ failed to discuss Dr. Logan's opinion, but argues that this failure is "harmless." Doc. 19 at 9. The Court agrees with Ms. Romero.
"An ALJ must evaluate every medical opinion in the record." Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004); see also 20 C.F.R. § 404.1527(c) (effective March 27, 2017) ("Regardless of its source, we will evaluate every medical opinion we receive.").
Because of the bar against post hoc rationalizations, the only possible way to salvage a legally flawed decision is a "harmless error" analysis. Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). In reviewing Social Security cases, harmless error applies only if "no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way." Id.
In this case, Dr. W. Miller Logan, a state agency psychiatrist, completed a Mental Residual Functional Capacity Assessment ("MRFCA") about Ms. Romero on April 2, 2015. AR 70-71.
AR 70.
The Commissioner concedes that the ALJ did not "discuss or weigh Dr. Logan's opinion." Doc. 19 at 4. However, the Commissioner argues that this error is harmless, and remand is not required "because the Court can tell from the ALJ's reasoning that he gave Dr. Logan's opinion no weight." Id. at 4-5 (citing Lately v. Colvin, 560 F. App'x 751 (10th Cir. 2014) (unpublished)). The Commissioner argues that this case is factually identical to Lately, in which the Tenth Circuit found the ALJ's failure to discuss a medical opinion was "harmless." Id. at 5. I do not agree.
In Lately, the ALJ failed to discuss or weigh the opinion of examining physician Dr. Leonidas Rojas. 560 F. App'x 751, 754. Dr. Rojas opined that the claimant was "unlikely capable of working due to her vertigo." Id. The ALJ had rejected the opinion of treating physician Dr. Robert Magnuson who "checked a box on a functional assessment form indicating that [the claimant] could not work because of her vertigo." Id. The ALJ rejected Dr. Magnuson's opinion because it "addressed the question of disability, which is an issue reserved to the Commissioner" and because his opinion was inconsistent with his own treatment notes. Id. The Tenth Circuit found the ALJ's failure to discuss Dr. Rojas's opinion to be harmless because they could
Id. (emphasis added).
In contrast to Lately, the Commissioner cannot point to a medical opinion in this case that is "nearly identical" to Dr. Logan's opinion such that the Court can tell how the ALJ weighed Dr. Logan's opinion, or whether the ALJ considered it at all. The Commissioner's argument that Dr. Logan's opinion is "essentially identical" to the opinion of Ms. Romero's treating provider Family Nurse Practitioner ("FNP") Rachel Marzec is without merit. See Doc. 19 at 7-9. The "opinion" from FNP Marzec in this case does not appear to be in the record. The only mention of FNP Marzec's "opinion" in the record is found in a letter to Ms. Romero from her employer, Lovelace Medical Center, about her request for reasonable accommodation:
AR 585. The ALJ gave FNP Marzec's statements "partial weight," noting that FNP Marzec's statement was given for the purpose of certifying Ms. Romero for medical leave from her employer, and that FNP Marzec did not include a "function by function[ ] analysis describing the most the claimant is able to perform." AR 25. The ALJ noted that FNP Marzec's statements "only consider[ed] one type of job and [did] not consider the claimant's abilities to perform other work." AR 25-26. Finally, the ALJ noted that the longitudinal evidence showed "improvement with treatment" and "intact thought processes." Id.
Unlike FNP Marzec's opinion, Dr. Logan's opinion contained a function by function analysis of Ms. Romero's mental limitations.
The Court must apply "harmless error analysis cautiously in the administrative review setting." Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). Lately is not persuasive. This Court cannot rely on explanations not provided by the ALJ. See Allen, 357 F.3d at 1142 ("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."). The Court declines the Commissioner's invitation to speculate about the ALJ's evaluation of Dr. Logan's opinion. Without findings on his opinion, meaningful review is not possible.
The ALJ erred by failing to consider the opinion of state agency psychiatric reviewer Dr. W. Miller Logan. The Court remands the case so that the ALJ can consider and weigh his opinion. The Court does not reach Ms. Romero's other claimed error, as this "may be affected by the ALJ's treatment of this case on remand." Watkins, 350 F.3d at 1299.
IT IS THEREFORE ORDERED that Ms. Romero's Motion to Reverse and Remand for a Rehearing (Doc. 15) is GRANTED.
IT IS FURTHER ORDERED that the Commissioner's final decision is REVERSED, and this case is REMANDED for further proceedings in accordance with this opinion.
