REPORT AND RECOMMENDATION

BERNARD M. JONES, Magistrate Judge.

Plaintiff, Ernest Smith, seeks judicial review of the Social Security Administration's denial of disability insurance benefits (DIB). This matter has been referred by Chief United States District Judge Joe Heaton for proposed findings and recommendations. See 28 U.S.C. §§ 636(b)(1)(B), 636(b)(3). The Commissioner has filed the Administrative Record (AR) [Doc. No. 11], and both parties have briefed their respective positions.1 For the reasons set forth below, it is recommended that the Commissioner's decision be reversed and remanded for further proceedings.

I. Procedural Background

On September 1, 2015, Plaintiff protectively filed an application for DIB. See AR 19. The Social Security Administration denied the application initially and on reconsideration. AR 55, 67. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision dated March 10, 2017. AR 16-36. The Appeals Council denied Plaintiff's request for review. AR 1-6. Thus, the decision of the ALJ became the final decision of the Commissioner. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff seeks judicial review of this final agency decision.

II. The ALJ's Decision

The ALJ followed the sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining five-step sequential evaluation process); see also 20 C.F.R. § 404.1520. The ALJ first determined Plaintiff had not engaged in substantial gainful activity since December 16, 2014, the alleged onset date. AR 21.

At step two, the ALJ determined Plaintiff suffers from the following severe impairments: ischemic heart disease and degenerative disc disease, status-post cervical fusion and discectomy. AR 21-23.2 At step three, the ALJ found Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 23.

The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding Plaintiff could perform a full range of light work. AR 23-30. Relying on the testimony of a vocational expert (VE), the ALJ found Plaintiff could perform his past relevant work as an environmental specialist, healthcare facility inspector, and code inspector. AR 30. The ALJ concluded, therefore, that Plaintiff was not disabled for purposes of the Social Security Act. AR 30-31.

III. Standard of Review

Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quotation omitted). 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. Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). The court "meticulously examine[s] the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations omitted). While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).

IV. Claim Presented for Judicial Review

Plaintiff asserts the ALJ erred in weighing the opinion of Dr. Joey Fowler, M.D., a treating physician. The Court agrees and recommends that this matter be reversed and remanded.

V. Analysis

A. Governing Law

A sequential, two-step inquiry governs an ALJ's evaluation of the medical opinions of a claimant's treating physician. Krauser, 638 F.3d at 1330. The two-step inquiry is mandatory and each step of the inquiry is "analytically distinct." Id. First, the ALJ must decide whether the opinion is entitled to "controlling weight." If the opinion is "well-supported by medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record," then the opinion must be given controlling weight. Id. A deficiency in either of these areas requires that the opinion not be given controlling weight. Id.

When a treating physician opinion is not entitled to controlling weight, the inquiry does not end. The opinion is still entitled to deference. Thus, at the second step of the inquiry, "the ALJ must make clear how much weight the opinion is being given (including whether it is being rejected outright) and give good reasons, tied to the factors specified in the cited regulations for this particular purpose, for the weight assigned." Id. As the Tenth Circuit has made clear: "[i]f this is not done, a remand is required." Id. The relevant factors governing the second step of the inquiry 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." Id. at 1331 (citation omitted).

The treating physician rule is founded on the treating physician's unique perspective to the medical evidence due to both the duration and frequency of the treatment relationship. Doyal, 331 F.3d at 762. The rule "is based on the assumption that a medical professional who has dealt with a claimant and his maladies over a long period of time will have a deeper insight into the medical condition of the claimant than will a person who has examined a claimant but once, or who has only seen the claimant's medical records." Id. (citation omitted); see also 20 C.F.R. § 404.1527(c)(2) (addressing weight given to treating source due to his or her "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").

B. The ALJ Did Not Properly Consider Dr. Fowler's Opinion

Plaintiff contends the ALJ improperly rejected the opinions from a letter Dr. Fowler wrote on January 21, 2016, in which he stated:

AR 629. In the decision, the ALJ noted Dr. Fowler found Plaintiff had debilitating pain and was unable to work, and he addressed the opinion as follows:

AR 29 (internal quotation omitted).3

Plaintiff contends the ALJ erred by ignoring the portion of Dr. Fowler's letter which stated "despite surgery and multiple other treatments he continues to have severe debilitating pain." Pl.'s Br. 3-4. He asserts the statements amount to "a medical opinion on the severity of [his] pain that was not properly considered by the ALJ." Id. at 4.

Dr. Fowler's statements regarding Plaintiff's pain amount to a medical opinion. "Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1). Dr. Fowler noted Plaintiff's history of neck pain, noted his treatment, and concluded Plaintiff "continues to have severe debilitating pain." AR 629. In other words, Dr. Fowler expressed a judgment regarding the severity of Plaintiff's symptoms—a statement fitting squarely within the regulatory definition of a medical opinion.

The ALJ gave Dr. Fowler's opinions no weight because a statement that a claimant cannot work is not a true medical opinion. AR 29. The ALJ's analysis is relevant to Dr. Fowler's opinion regarding Plaintiff's ability to work, and Plaintiff does not challenge the ALJ's analysis with regard to that opinion. See Pl.'s Br. 3; see also 20 C.F.R. § 404.1527(d)(1) (opinions on whether a claimant is able to work is an issue reserved to the Commissioner). But the analysis is not relevant to Dr. Fowler's opinion regarding the severity of Plaintiff's pain after various forms of treatment. When a treating physician's opinion is rejected, the ALJ must "articulate specific, legitimate reasons for his decision." Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004). The ALJ did not provide legitimate reasons for rejecting Dr. Fowler's opinion regarding Plaintiff's symptoms of pain. Indeed, the ALJ failed to consider any of the factors specified in the regulations to determine the weight given to a medical opinion. The only reasons given for rejecting Dr. Fowler's opinions, including the opinion that Plaintiff suffers from debilitating pain, were based on the incorrect premise that the entirety of Dr. Fowler's letter was not a "true medical opinion." AR 29. Those are not legitimate reasons for rejecting the opinion related to Plaintiff's pain.

The Commissioner argues it is "evident that Dr. Fowler's opinion characterizing Plaintiff's pain as severe and debilitating is inconsistent with the record as a whole" and lists evidence from the record and the opinion which she contends supports a rejection of the opinion for appropriate reasons. Def.'s Br. 12-13. Here, the ALJ noted that "the issue is not of the existence of pain . . . but rather the degree of incapacity incurred because of the same." The Commissioner is correct that the ALJ cited various reasons from the record to discount the intensity of Plaintiff's symptoms and that Plaintiff did not directly challenge the ALJ's findings. However, the consideration of medical opinions is part of the symptom analysis. See 20 C.F.R. § 404.1529(c)(1). As such, any harmless-error determination would rest "on legal or evidentiary matters not considered by the ALJ" and, therefore, "risks the general rule against post hoc justification of administrative action[.]" Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). Further, the Court may not reweigh the evidence or substitute its judgment for that of the ALJ. See Bowman v. Astrue, 511 F.3d at 1272.4 As such, the Court finds the ALJ's error is reversible.

RECOMMENDATION

For the reasons set forth above, it is recommended that the Court reverse the Commissioner's decision and remand the matter for further proceedings consistent with this Report and Recommendation.

NOTICE OF RIGHT TO OBJECT

The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by February 26, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).

STATUS OF REFERRAL

This Report and Recommendation terminates the referral by the Chief District Judge in this matter.