REPORT AND RECOMMENDATION
SUZANNE MITCHELL, District Judge.
Donald Cole (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that he was not "disabled" under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Stephen P. Friot has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed. R. Civ. P. 72(b). Doc. 11.
After careful review of the record (AR), the parties' briefs, and the relevant authority, the undersigned recommends the entry of judgment reversing the Commissioner's final decision. See 42 U.S.C. § 405(g).
I. Administrative determination.
A. Disability standard.
The Social Security Act defines "disability" as the "inability 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). "This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff "bears the burden of establishing a disability" and of "ma[king] a prima facie showing that he can no longer engage in his prior work activity." Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. Administrative Law Judge's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 13-211; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found Plaintiff:
(1) has the severe impairments of shoulder impairment and lumbar disc disease;
(2) had no impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments;
(3) had the residual functional capacity2 to perform light work with additional exertional restrictions;
(4) was capable of performing past relevant work as a title clerk and lease buyer;
(5) had not been under a disability, as defined in the Social Security Act, from March 1, 2016, through March 1, 2018.
AR 14-19.
2. Appeals Council's findings.
The SSA's Appeals Council denied Plaintiff's request for review, so the ALJ's unfavorable decision is the Commissioner's final decision. Id. at 1-5; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner's final decision.
A. Review standard.
The court reviews the Commissioner's final decision to determine "whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards." Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is "more than a scintilla, but less than a preponderance," and means "only" "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Lax, 489 F.3d at 1084; Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal quotation marks and citation omitted). A decision is not based on substantial evidence "if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citation omitted). The court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).
B. Issue for judicial review.
Plaintiff argues the ALJ "wholly failed to weigh or consider the opinion of consultative examiner Dr. Gupta," whose findings were inconsistent with the ALJ's RFC. Doc. 13, at 3. The undersigned agrees remand is warranted.
Dr. Gupta assessed Plaintiff with "BL Right and left chronic shoulder pain with rotator cuff weakness." AR 270. He noted abnormal range of motion in both shoulders: left and right shoulder abduction/supination of 75 out of 150, and left and right elevation of 75 out of 150. Id. at 273. Dr. Gupta noted in the narrative summary that Plaintiff
had positive pain with active and passive range of motion of BL arms as he was raising his arms above the shoulder he had pain above 45 degrees and unable to move as well above 90 degrees. BL shoulder weakness with raising both shoulders as well upwards with active and passive range of motion there was pain on both sides of the anterior shoulder.
Id. at 270. The ALJ summarized Dr. Gupta's findings in his decision. Id. at 15. When assessing Plaintiff for light work, he included the following additional restrictions: "he can reach overhead only occasionally with his left arm and he can frequently handle and finger bilaterally." Id. at 16. The ALJ did not mention what weight he gave to Dr. Gupta's opinion, nor did he explain the inconsistency between Dr. Gupta's findings and the RFC assessment.
An ALJ must "give consideration to all the medical opinions in the record [and] discuss the weight he assigns to such opinions." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted). "When assessing a medical opinion, the ALJ must consider the factors listed in 20 C.F.R. § 404.1527(c) and give good reasons for the weight he assigns to the opinion." See Vigil v. Colvin, 805 F.3d 1199, 1202 (10th Cir. 2015); 20 C.F.R. § 404.1527(c)(2).
"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). The applicable regulations governing the consideration of medical opinions distinguish between "treating" physicians, "examining" physicians, and "nonexamining" (or "consulting") physicians. See 20 C.F.R. § 416.927(c). For an ALJ to evaluate and assign weight to a medical opinion, the issuing physician must provide "judgment" about the nature and severity of a claimant's limitations or "information" about the activities he or she could still perform despite these limitations. Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir. 2008).
The Commissioner agrees Dr. Gupta "documented clinical findings that showed [Plaintiff] had pain at certain levels of range of motion testing." Doc. 17, at 8. The Commissioner states "Dr. Gupta did not provide any opinion as to Plaintiff's workplace functional limitations." Id. And then, the Commissioner questions whether Dr. Gupta provided an opinion at all, id. at 9, 10, and later provides a litany of post hoc justifications for the ALJ's purported rejection of those findings. Id. at 9-11.
The ALJ failed to explain the inconsistency between the Dr. Gupta's findings and the RFC assessment, and so substantial evidence does not support the RFC assessment. The ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." SSR 96-8p, 1996 WL 374184, at *7. This Court cannot rely on explanations the ALJ did not provide. See Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004) ("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.").
III. Recommendation.
The undersigned recommends the court REVERSE and REMAND the Commissioner's decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by the 3rd day of September, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.
