Blackburn, District Judge.
The matter before me is plaintiff's
Plaintiff alleges that she is disabled as a result of neck pain following two cervical fusion surgeries, low back pain, nerve pain, depression, high blood pressure, and headaches. After her application for disability insurance benefits was denied, plaintiff requested a hearing before an administrative law judge. This hearing was held on June 5, 2012. At the time of this hearing, plaintiff
The ALJ found that plaintiff was not disabled and therefore not entitled to disability insurance benefits. Although the evidence established that plaintiff suffered from severe impairments, the judge concluded that the severity of those impairments did not meet or equal any impairment listed in the social security regulations. Plaintiff's high blood pressure and headaches were found not severe. The ALJ found that plaintiff had the residual functional capacity for light work with certain postural limitations, including most significantly the ability to sit and stand as needed, and which did not involve complex tasks. Although this finding precluded plaintiff's past relevant work, the ALJ concluded that there were other jobs existing in significant numbers in the national and local economies that she could perform. The ALJ therefore found plaintiff not disabled at step five of the sequential evaluation. Plaintiff appealed this decision to the Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.
A person is disabled within the meaning of the Social Security Act only if her physical and/or mental impairments preclude her from performing both her previous work and any other "substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2). "When a claimant has one or more severe impairments the Social Security [Act] requires the [Commissioner] to consider the combined effects of the impairments in making a disability determination." Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir.1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Social Security Act. To be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir.1995).
The Commissioner has established a quinquepartite sequential evaluation process for determining whether a claimant is disabled:
20 C.F.R. § 404.1520(a)(4)(i)-(v). See also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 2294 n. 5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Secretary of Health & Human Services, 933 F.2d 799, 801 (10th Cir.1991).
Review of the Commissioner's disability decision is limited to determining whether the ALJ applied the correct legal standard and whether the decision is supported by substantial evidence. Hamilton v. Secretary of Health and Human Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.1990). Substantial evidence is evidence a reasonable mind would accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires more than a scintilla but less than a preponderance of the evidence. Hedstrom v. Sullivan, 783 F.Supp. 553, 556 (D.Colo. 1992). "Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.1992). Further, "if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). Although a reviewing court should meticulously examine the record, it may not reweigh the evidence or substitute its discretion for that of the Commissioner. Id.
Plaintiff alleges several grounds of error in this appeal. Because I concur with her assertion that the ALJ failed to articulate good cause to reject the opinion of her treating physician, I remand for further proceedings without addressing the remaining allegations of error, which potentially may be impacted on remand. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir.2003); Gorringe v. Astrue, 898 F.Supp.2d 1220, 1225 (D.Colo.2012).
Dr. Katherine Leppard treated plaintiff in 2009 and 2010 for pain management relating to her cervical spinal fusion surgeries.
In August 2010, Dr. Leppard completed a "Physical Capacities Chart," in which she stated that plaintiff could sit, stand, and walk for less than one hour each in an eight-hour day, would require the ability to change positions and take breaks as needed, and would need to be able to self-pace. (Tr. 245.) She further suggested that plaintiff's symptoms would interfere with her attention and concentration, markedly limiting her ability to complete a normal workday and to perform at a consistent pace. (Tr. 246247.) She thus suggested that plaintiff was capable of less than sedentary work, an opinion which, if accepted, would support a finding of disability. The ALJ gave no weight to Dr. Leppard's opinion, however. (Tr. 17.) Because I conclude that this determination is not adequately substantiated, I remand.
The opinion of a treating source is generally entitled to controlling weight so long as it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case record." 20 C.F.R. § 404.1527(d)(2); see also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.2003). Good cause may be found where the treating source's opinion is brief, conclusory, or unsupported by the medical evidence. Frey v. Bowen, 816 F.2d 508, 513 (10th Cir.1987). Even if a treating source opinion is not given controlling weight, it is still entitled to deference "and must be weighed using all of the factors provided in 20 C.F.R. 404.1527 and 416.927."
In rejecting Dr. Leppard's opinion, the ALJ stated first that it was not supported by the objective medical findings, which showed "normal strength, nearly normal sensation, and normal reflexes in June 2011." (Tr. 17.) Because Dr. Leppard stopped treating plaintiff in 2010 after plaintiff lost her insurance, I assume the ALJ is referring to the examination findings of the consultative examiner, Dr. Nancy Cutter. (See Tr. 220225.)
Relying on the findings of a one-time consultative examination to discredit the opinion of a treating source, however, turns the treating source rule on its head. The mere fact that the a treating source opinion conflicts with another medical source's opinion provides no basis per se for crediting the one over the other. "The fact of such a conflict is what gives rise to the need for the ALJ to weigh the opinions in the first instance." Gonzales v. Colvin, 69 F.Supp.3d 1163, 1169, 2014 WL 4723878 at *5 (D.Colo. Sept. 22, 2014). See also Gallegos v. Colvin, 2014 WL 884795 at *4 n. 2 (D.Colo. March 6, 2014) ("The fact that various source opinions may be inconsistent with one another gives rise to the need to weigh those opinions against one another in light of the evidence."). Such an observation is little more than a conclusion in the guise of a finding, which does not constitute substantial evidence in support of the disability determination. See Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir.2004).
Moreover, the ALJ's apparent conclusion that findings of normal strength, sensation, and reflexes were inconsistent with the limitations Dr. Leppard suggested is hardly obvious, and certainly not one that the ALJ (or this court, for that matter) is qualified to make. See Hamlin v. Barnhart, 365 F.3d 1208, 1221 (10th Cir.2004) (ALJ may not substitute lay opinion on effect of medical findings for that of a medical professional); McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir.2002) ("[A]n ALJ may not make speculative inferences from medical reports and may reject a treating physician's opinion out-right only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion.") (emphasis in original). Moreover, plaintiff's primary limitation appears to be pain, which the Commissioner herself recognizes may outstrip the objective medical evidence. See 20 C.F.R. §
The second reason cited by the ALJ for fully discrediting Dr. Leppard's opinion was its alleged inconsistency with the other evidence of record. The only example cited by the ALJ, however, was plaintiff's allegedly "wide range of fairly normal activities of daily living," as allegedly set forth in a Function Report in April 2011. (Tr. 17, 146-153.) However, the ability to engage in limited household and other activities of daily living does not equate to the ability to perform substantial gainful activity on a regular work schedule. See 20 C.F.R. § 404.1572(c); Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir.1993). Moreover, it is hard to square the ALJ's characterization of plaintiff's daily activities with the report on which it purports to be based. Therein, plaintiff stated that
I thus find and conclude that remand is warranted.
1. That the conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is
2. That this case is
3. That plaintiff is
