LAURA FASHING, Magistrate Judge.
THIS MATTER comes before the Court on plaintiff Robert Santino McAfee's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 19), which was fully briefed on July 30, 2019. See Docs. 22, 23, 24. The parties consented to my entering final judgment in this case. Docs. 4, 8, 13. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge ("ALJ") failed to properly consider the opinion of Mr. McAfee's treating nurse practitioner, Marie Mugavin, PhD, CNP. I therefore grant Mr. McAfee'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. § 416.905(a).
When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 416.920; 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
Mr. McAfee was born in 1973, completed high school,
At step one, ALJ Leppala found that Mr. McAfee had not engaged in substantial, gainful activity since his application date of February 25, 2015. AR 17. At step two, the ALJ found that Mr. McAfee had the severe impairments of affective and anxiety disorders. AR 17-18. At step three, the ALJ found that none of Mr. McAfee'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 Mr. McAfee's RFC. AR 20-28. The ALJ found Mr. McAfee had the RFC to perform a full range of work at all exertional levels but with the following non-exertional limitations:
AR 20.
At step four, the ALJ found that Mr. McAfee was unable to perform his past relevant work. AR 29. At step five, the ALJ found that Mr. McAfee was not disabled because he could perform jobs that exist in significant numbers in the national economy, such as cleaner/housekeeper and assembler. AR 29-30.
Mr. McAfee requested that the Appeals Council review the ALJ's unfavorable decision. AR 197. On October 31, 2018, the Appeals Council denied the request for review. AR 1-6. Mr. McAfee timely filed his appeal to this Court on December 20, 2018.
On appeal, Mr. McAfee raises a single argument for reversing and remanding this case— specifically, that the ALJ improperly rejected the opinion of treating nurse practitioner Marie Mugavin, PhD, CNP, in violation of SSR 06-03p.
Mr. McAfee argues that the reasons the ALJ gave for assigning little weight to CNP Mugavin's August 8, 2017 opinion are either legally insufficient or not supported by substantial evidence. Doc. 19 at 20-25; Doc. 23 at 1-6. In response, the Commissioner acknowledges that Mr. McAfee had "waxing and waning psychological symptoms," but nevertheless maintains that the ALJ properly discounted CNP Mugavin's opinion. Doc. 22 at 1, 9-14. For the reasons discussed below, I agree with Mr. McAfee.
CNP Mugavin is considered an "other source" under the regulations. See SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006).
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (citation omitted); 20 CFR § 416.927(c) (effective March 27, 2017). The ALJ "should explain the weight given to opinions from these `other sources,' or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case." SSR 06-03p, 2006 WL 2329939, at *6.
In Frantz, the Tenth Circuit held that an ALJ erred by not discussing what weight he gave an "other source" opinion on the severity and functional effects of the claimant's limitations. 509 F.3d at 1302. It also is error for an ALJ to ignore evidence from an "other source" which would support a finding of disability, "while highlighting evidence favorable to the finding of nondisability." Id.; see also Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) ("[I]n addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.").
On February 19, 2015, Mr. McAfee began seeking treatment from CNP Mugavin at Sage Neuroscience Center. AR 472. Over the course of approximately twenty-two visits in the following two years,
In his decision, the ALJ afforded "little weight" to CNP Mugavin's opinion for three reasons. AR 26-27. First, he discounted the opinion because it was "submitted in the form of a checklist, without supporting rationale or citation to support in the treatment findings." AR 27. He explained that CNP Mugavin "provided no evidence or explanation in support of the opinions reflected in the checked boxes." Id. Second, the ALJ concluded that CNP Mugavin's opinion was inconsistent with Mr. McAfee's activities during the period at issue. Id. The ALJ specifically pointed to the following activities:
Id. Third, the ALJ found that CNP Mugavin's opinion was inconsistent with her own treatment notes, which "consistently report[ed] that" Mr. McAfee was "cooperative and maintained good eye contact, exhibited no psychomotor agitation or retardation, exhibited normal speech and thought process and content . . . . [He] was consistently alert and fully oriented, exhibited fair concentration, insight and judgment, and his memory was intact." Id.
Mr. McAfee argues that CNP Mugavin's use of checklist forms to record her opinion was not a proper basis for the ALJ to discount the opinion. Doc. 19 at 21; Doc. 23 at 5-6. "[C]ase law addressing medical source opinions expressed on checkbox-style forms underscores that the critical question is whether the checkbox findings, either on the form itself or elsewhere in the record, are supported by substantial evidence." Tenorio v. Berryhill, Civ. No. 17-138 SCY, 2018 WL 6594228, at *9 (D.N.M. Dec. 14, 2018); see also Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008) (recognizing that checklist forms do "not constitute substantial evidence unless the checkmarks are supported by thorough written reports or persuasive testimony"); Andersen v. Astrue, 319 F. App'x 712, 723 (10th Cir. 2009) (unpublished). Here, the ALJ did not discount CNP Mugavin's opinion merely because it was provided on a checklist-style form; rather, he concluded that her findings on the form were not supported by substantial evidence, either based on the form itself or in the record. As to the form itself, the Court agrees that it could not, on its own, constitute substantial evidence of CNP Mugavin's assessment because she did not complete any narrative sections of the form and thus did not offer any direct explanation for her opinion. Had the ALJ categorically rejected CNP Mugavin's opinion solely on this ground without reviewing her treatment records, it would have been error. This he did not do. Rather, the ALJ also examined CNP Mugavin's treatment records as other evidence in the record to ascertain whether there was evidence to support the opinion. While the ALJ's approach was correct, the reasons he ultimately gave for according little weight to CNP Mugavin's opinion are legally insufficient for the reasons discussed below.
The ALJ first explained that "despite [CNP Mugavin's] longstanding treating relationship" with Mr. McAfee, he accorded "little weight" to her opinion because it was "not well-supported by the medical evidence in the record" and was "inconsistent with her own treatment notes." AR 26-27. The ALJ did not, however, state what medical evidence beyond CNP Mugavin's treatment notes did not support her opinion. This is contrary to SSR 06-03p's requirement that the ALJ's analysis of an "other source" opinion be sufficiently specific to allow a subsequent reviewer to follow the adjudicator's reasoning. SSR 06-03p, 2006 WL 2329939, at *6. As for CNP Mugavin's treatment notes, the ALJ determined that CNP Mugavin's opinion was not supported by her mental status examination findings which essentially demonstrated a mostly normal mental status. See AR 27 (citing specifically to CNP Mugavin's findings that Mr. McAfee was "cooperative and maintained good eye contact, exhibited no psychomotor agitation or retardation, exhibited normal speech and thought process and content[,] . . . was consistently alert and fully oriented, exhibited fair concentration, insight and judgment, and his memory was intact"). However, in so doing, the ALJ failed to discuss many of CNP Mugavin's mental status examination findings and other treatment assessments that would support her opinion: persistent anxiety,
The Commissioner disputes that the ALJ's discussion of CNP Mugavin's treatment findings was incomplete. Doc. 22 at 10-11. He points in particular to the ALJ's summary of CNP Mugavin's treatment records earlier in his decision where the ALJ "explicitly discussed [CNP Mugavin's] findings related to [Mr. McAfee's] anxiety, agitation, and dysthymic mood." Id. at 10. The Commissioner, however, overlooks the fact that the ALJ did not address these findings when he weighed CNP Mugavin's opinion. The ALJ's earlier summary of CNP Mugavin's treatment records does not cure his subsequent failure to address the evidence in those records that would support a finding of disability when he weighed CNP Mugavin's opinion. Thus, while the Court agrees with the Commissioner that the ALJ was entitled to resolve evidentiary conflicts in the record, Allman v. Colvin, 813 F.3d 1325, 1333 (10th Cir. 2016), the ALJ did not resolve any conflicts when he considered CNP Mugavin's opinion, choosing instead to completely ignore those treatment findings that would have supported CNP Mugavin's opinion. In short, the Court will not draw connections between the ALJ's summary of treatment findings and his weighing of an opinion when the ALJ himself did not make these connections.
Next, the ALJ accorded little weight to CNP Mugavin's opinion because he found it was not supported by Mr. McAfee's activities of daily living, namely his completion of barber school and being selected to teach at the school, his long-term relationship with his girlfriend, and his successful participation in his treatment protocol and in individual counseling. See AR 27. At first glance, these appear to be facially valid reasons for discounting CNP Mugavin's opinion regarding the severity of Mr. McAfee's mental impairments. Upon closer review, however, these reasons are not entirely supported by the record. CNP Mugavin's treatment records reveal that Mr. McAfee routinely reported problems with his relationship and that in June 2017, Mr. McAfee's girlfriend broke up with him because of his hallucinations. AR 481. While Mr. McAfee did graduate from barber school, the record shows that he quit barber school because of his mental health issues and only was able to return after his instructor made accommodations for him, that his instructor arranged for him to teach at the school after Mr. McAfee reported he could not work in a barbershop because of his anxiety and his hallucinations, and that Mr. McAfee reported to CNP Mugavin increased anxiety while in school as well as feelings of aggression and voices telling him to hurt other students. See AR 509; 518. As such, the ALJ's reliance on Mr. McAfee's relationship, his barber school completion, and participation in treatment as substantial evidence that Mr. McAfee can perform work-related mental activities on a sustained basis is misplaced. See Krauser v. Astrue, 638 F.3d 1324, 1333 (10th Cir. 2011) (finding that the specific facts of claimant's daily activities painted a very different picture than the generalities relied upon by the ALJ).
Additionally, the ALJ pointed to Mr. McAfee "effectively participating in his treatment protocol that includes not only advocating for medication management but also learning stress management and coping skills and participating in individual therapy with significant success." AR 27. The ALJ did not, however, specify what this individual therapy was that Mr. McAfee completed with significant success. And while the ALJ pointed to Mr. McAfee's compliance with his treatment protocol as prescribed by CNP Mugavin as well as her discussions with Mr. McAfee during treatment visits regarding stress management and coping skills, he failed to explain how Mr. McAfee's compliance with CNP Mugavin's treatment protocol refuted her opinions related to Mr. McAfee's ability to do work-related mental activities. In short, the ALJ "did not explain what about Mr. McAfee's participation in these activities was inconsistent with the work-related limitations to which [CNP] Mugavin opined." Doc. 23 at 4.
CNP Mugavin was Mr. McAfee's primary mental health care provider for an extended period of time (February 2015 through August 2017). She was also the only examining mental health provider of record who provided a functional assessment of Mr. McAfee's ability to do work-related mental activities. In assigning little weight to CNP Mugavin's opinion, the ALJ did not comply with the requirements of SSR 06-03p, and remand is necessary for this reason.
