Filed: Nov. 10, 2004
Latest Update: Feb. 22, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 10 2004 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk STEPHINE KING, Plaintiff-Appellant, v. No. 04-7020 (D.C. No. CV-03-129-WH) JO ANNE B. BARNHART, (E.D. Okla.) Commissioner, Social Security Administration, Defendant-Appellee. ORDER AND JUDGMENT * Before McCONNELL , HOLLOWAY , and PORFILIO , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously to grant the pa
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 10 2004 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk STEPHINE KING, Plaintiff-Appellant, v. No. 04-7020 (D.C. No. CV-03-129-WH) JO ANNE B. BARNHART, (E.D. Okla.) Commissioner, Social Security Administration, Defendant-Appellee. ORDER AND JUDGMENT * Before McCONNELL , HOLLOWAY , and PORFILIO , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously to grant the par..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 10 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
STEPHINE KING,
Plaintiff-Appellant,
v. No. 04-7020
(D.C. No. CV-03-129-WH)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before McCONNELL , HOLLOWAY , and PORFILIO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-appellant Stephine L. King appeals from an order of the district
court affirming the Commissioner’s decision denying her application for
Supplemental Security Income benefits. Ms. King alleged disability based on
depression, carpal tunnel syndrome, fascia rotator cuff repair, and knee surgery.
The agency denied her applications initially and upon reconsideration.
After a remand from the Appeals Council and a second hearing before an
administrative law judge (ALJ), the ALJ determined that Ms. King retained the
residual functional capacity (RFC) to perform a significant range of sedentary
work and that she could perform a significant number of jobs in the national
economy. The ALJ therefore denied benefits for appellant, concluding that she
was not disabled at step five of the familiar sequential analysis. See Williams v.
Bowen,
844 F.2d 748, 750-52 (10th Cir. 1988) (explaining five-step sequential
process for evaluating claims for disability benefits). The Appeals Council
denied review, making the ALJ’s decision the Commissioner’s final decision.
We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the
correct legal standards were applied. See Winfrey v. Chater,
92 F.3d 1017, 1019
(10th Cir. 1996). On appeal, Ms. King contends that the ALJ erred by failing to
properly consider the opinions of four of her treating physicians and by failing to
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provide specific, legitimate reasons for discounting those opinions. 1
She assigns
further error to the ALJ’s assessment of her RFC, contending that his
determination that she could do a significant range of sedentary work was not
supported by substantial evidence. Because we conclude the ALJ did not follow
the correct legal standards in considering the opinions of Ms. King’s treating
physicians, we reverse and remand for further proceedings. We do not reach the
remaining issue raised by Ms. King because it may be affected by the ALJ’s
treatment of this case on remand.
The Commissioner will generally give more weight to the opinion of a
treating source than to the opinion of a non-treating source. Langley v. Barnhart ,
373 F.3d 1116, 1119 (10th Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)); see
also 20 C.F.R. § 416.927(d)(2). The first step in the process of evaluating the
opinion of a treating source is to determine whether the opinion is entitled to
“controlling weight.”
Id. The analysis is sequential. An ALJ must first consider
whether the opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques.” SSR 96-2p,
1996 WL 374188, at *2
(quotations omitted).
1
Ms. King includes Dr. Black as one of the treating physicians whose
opinion was rejected by the ALJ. Because she does not advance any argument
regarding the ALJ’s treatment of Dr. Black’s opinion other than to note that it
was rejected, we will not analyze the ALJ’s treatment of his opinion in this case.
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If the answer to this question is “no,” then the inquiry at this stage is
complete. If the ALJ finds that the opinion is well-supported, he
must then confirm that the opinion is consistent with other
substantial evidence in the record.
Id. In other words, if the opinion
is deficient in either of these respects, then it is not entitled to
controlling weight.
Watkins v. Barnhart ,
350 F.3d 1297, 1300 (10th Cir. 2003).
Even if a treating source’s opinion is not accorded controlling weight,
however, such an opinion is still entitled to deference and must be evaluated in
reference to the factors enumerated in 20 C.F.R. § 416.927.
Id. Those factors
are:
(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.
Langley, 373 F.3d at 1119 (quoting 20 C.F.R. § 416.927).
After performing this analysis, the ALJ must announce good reasons for the
weight assigned to the opinion of a treating physician.
Id. Such reasons must be
“sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that
weight.” SSR 96-2p,
1996 WL 374188, at *5. Of course, an ALJ is permitted to
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reject entirely the opinion of a treating physician; if he does so, however, he must
provide specific, legitimate reasons for that rejection. Watkins , 350 F.3d at 1301.
Opinions of Dr. Ashley and Dr. Cooper
In considering the opinions of Ms. King’s treating physicians, the ALJ
lumped the opinions of Dr. Ashley and Dr. Cooper together. Since the two
physicians treated Ms. King for entirely different conditions, we do not find this
approach helpful, and we will discuss the two opinions separately where
appropriate.
Dr. Ashley began treating Ms. King for her mental impairments in October
1998 when she presented with a prior diagnosis of bipolar disorder from a
Dr. Browning. Dr. Ashley diagnosed her with depression and carpal tunnel. Aplt.
App. at 348. He discontinued her prescription for Paxil and, instead, prescribed
Prozac for her depression.
Id. Dr. Ashley reiterated his earlier diagnosis of
depression when he saw Ms. King in November 1998,
id. at 345, and again in
January 1999,
id. at 342. In completing a mental Medical Source Statement in
September 1999, Dr. Ashley concluded that Ms. King had bipolar disorder, had
not responded to treatment, and was severely depressed.
Id. at 471. Additionally,
Dr. Ashley noted that Ms. King had marked impairment in ability to remember
locations and work-like procedures; to understand, remember, and carry out very
short and simple instructions or very detailed instructions; to maintain attention
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and concentration for extended periods; to perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances; to
complete a normal work day and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods. She further had marked
impairments in the ability to respond appropriately to changes in the work setting;
to be aware of normal hazards and take appropriate precautions; to travel in
unfamiliar places or use public transportation; and to set realistic goals or make
plans independently of others.
Id. at 470-71.
Ms. King further exhibited moderate impairment in ability to sustain an
ordinary routine without special supervision; to work in coordination with or
proximity to others without being distracted by them; to make simple work-related
decisions; to interact appropriately with the general public; and to ask simple
questions or request assistance. She was also moderately impaired in her ability
to accept instructions and respond appropriately to criticism from supervisors; to
get along with coworkers or peers without distracting them or exhibiting
behavioral extremes; and to maintain socially appropriate behavior and adhere to
basic standards of neatness and cleanliness.
Id. In February and August 2000,
Dr. Ashley again diagnosed depression and bipolar disorder.
Id. at 496, 535.
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Dr. Cooper was the treating physician who dealt with Ms. King’s physical
impairments. He diagnosed her as suffering from chronic pain, arthritis,
degenerative joint disease, hypertension, hearing loss, and shoulder impingement.
Aplt. App. at 474-75, 477. He also diagnosed her with depression.
Id. at 477.
Dr. Cooper’s physical Medical Source Statement summarizes Ms. King to be
limited to frequently lifting and/or carrying five to ten pounds;
occasionally lifting and/or carrying ten pounds; standing and/or
walking about two hours in an eight-hour workday, continuously for
ten to fifteen minutes; sitting about two hours in an eight-hour work
day, continuously for one hour. King’s symptoms require her to lie
down to manage pain. King is limited in her ability to push and pull
and cannot exceed ten pounds of force. King may never climb,
stoop, kneel, crouch, or crawl. King may occasionally balance. King
is limited in her ability to reach, handle, finger, and feel. She is
unlimited in her ability to see and speak. Environmental restrictions
include machinery, temperature extremes, fumes, and vibration.
King has limitations of neck, shoulders, wrist, and hips. Patient has
chronic pain from degenerative disc disease, shoulder impingement,
and bilateral carpal tunnel syndrome.
Id. at 472-73. Both Dr. Ashley and Dr. Cooper were of the opinion that Ms. King
could not work. Dr. Ashley cited her severe depression and Dr. Cooper her other
“multiple complicated medical problems.”
Id. at 479.
In refusing to give the opinions of either Dr. Ashley or Dr. Cooper
controlling weight, the ALJ stated:
It would appear that these functional limitations are based on the
claimant’s subjective complaints and are more an act of courtesy to a
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patient of long-standing, rather than a genuine medical assessment of
discrete functional limitations based upon clinically established
pathologies.
Aplt. Br., tab 1, at 6.
After reviewing the activities Ms. King admitted to being able to engage in,
the ALJ reported himself “not overly moved” by the opinions of the treating
physicians and concluded that “the assessments of Drs. Cooper and Ashley are
unsupported by, and that it is [sic] inconsistent with, the credible evidence of
record, and I decline to give them controlling weight.”
Id.
Neither the ALJ nor the district court had the advantage of our recent
opinion in Langley when considering this case. In Langley , we made it clear that
it is incumbent upon an ALJ who refuses to assign controlling weight to the
opinion of a treating physician to go further and determine what weight, if any,
such an opinion is to be accorded. Langley , 373 F.3d at 1120, 1123. Just as the
ALJ did in Langley , the ALJ here refused to give the opinions of Dr. Ashley and
Dr. Cooper controlling weight. He then failed, however, to discuss what lesser
weight should be given those opinions in light of the relevant factors set out in
20 C.F.R. § 416.927(d)(2). This is error requiring remand for further explanation
by the ALJ.
The ALJ further erred by rejecting the opinions of Dr. Ashley and
Dr. Cooper as inconsistent with the credible evidence of record without identifying
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what that inconsistent record evidence is. The ALJ simply pointed to evidence
regarding Ms. King’s daily activities as the basis upon which to reject these two
opinions. We do not view that evidence, however, as inconsistent–particularly
with the significant mental impairments established in the record.
The ALJ cited evidence that Ms. King did housework, and laundry, cooked,
fished, and shopped (albeit with family members), took care of her personal needs,
created art, studied and received a GED 2
, watched television, made her bed, read
and visited family. We are unable to conclude, however, that these activities
represent substantial evidence inconsistent with the impairments and limitations
identified by both Dr. Ashley and Dr. Cooper. Ms. King could well be able to
engage in these kinds of tasks and still have the marked to moderate impairments
identified in the mental Medical Source Statements of Dr. Ashley and Dr. May and
the limitations noted in the physical Medical Source Statement of Dr. Cooper.
Again, as in Langley , “[b]ecause the ALJ failed to explain or identify what
the claimed inconsistencies were between [the opinions of Dr. Ashley and
Dr. Cooper] and the other substantial evidence in the record, his reasons for
rejecting [those] opinions are not ‘sufficiently specific’ to enable this court to
2
We note that Ms. King finally earned a GED after studying for four years,
Aplt. App. at 367, and after failing the exam at least four previous times,
id. at
405.
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meaningfully review his findings.” Langley , 373 F.3d at 1123 (quoting Watkins ,
350 F.3d at 1300).
Finally, the ALJ erred in concluding that the opinions of Dr. Ashley and
Dr. Cooper were based only on Ms. King’s subjective complaints and were “act[s]
of courtesy to a patient of long-standing, rather than a genuine medical assessment
of discrete functional limitations based upon clinically established pathologies.”
Aplt. Br., tab 1, at 6. This statement is virtually identical to the boilerplate
language this court condemned in Langley. As in Langley , there is no evidentiary
basis here for either of these findings. There is nothing to indicate that Dr. Ashley
or Dr. Cooper relied solely on subjective complaints or that their opinions were
produced merely as an act of courtesy to Ms. King.
“In choosing to reject the treating physician’s assessment, an ALJ may not
make speculative inferences from medical reports and may reject a treating
physician’s opinion outright only on the basis of contradictory medical evidence
and not due to his or her own credibility judgments, speculation or lay opinion. ”
McGoffin v. Barnhart,
288 F.3d 1248, 1252 (10th Cir. 2002) (quotation omitted).
And this court “held years ago that an ALJ’s assertion that a family doctor
naturally advocates his patient’s cause is not a good reason to reject his opinion as
a treating physician.”
Id. at 1253 (citing Frey v. Bowen,
816 F.2d 508, 525 (10th
Cir. 1987)).
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Thus, the ALJ did not follow the correct legal standards in considering the
opinions of Dr. Ashley and Dr. Cooper, nor are the ALJ’s reasons for completely
rejecting those opinions supported by substantial evidence.
Opinion of Dr. May
Dr. May diagnosed Ms. King with unspecified psychosis, major recurrent
depression, and a history of anxiety. Aplt. App. at 608. In his mental Medical
Source Statement, Dr. May reached conclusions substantially similar to those of
Dr. Ashley regarding Ms. King’s marked impairments. He indicated that Ms. King
had marked impairment in her ability to understand, remember and carry out
detailed instructions; to maintain attention and concentration for extended periods
of time; to perform activities within a schedule, and to maintain regular
attendance, and be punctual within customary tolerances. She further exhibited
marked impairment in the ability to complete a normal work day and workweek
without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods. Her
ability to interact appropriately with the general public, to respond appropriately to
changes in work setting, and to travel in unfamiliar places or use public
transportation was also markedly impaired.
Id. at 606-07.
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In rejecting Dr. May’s opinion the ALJ stated:
I find that Dr. May’s assessment is deficient, without supportive
medical documentation. His only written comments were that the
claimant was functionally limited, but he did not describe a medically
determinable impairment that could reasonably cause such limitations.
He provided no clinical signs in support of his conclusions. He did
not refer to reports of individual providers, hospitals, or clinics, and
he did not indicate on what basis, if any, his treatment of the claimant
would support his conclusions. His assessment is clearly based on the
claimant’s subjective complaints, which I do not find to be fully
credible.
Aplt. Br., tab 1, at 7.
This conclusion is unsupported by substantial evidence. Initially, there is
abundant supportive medical documentation in the record from other treating
sources that is consistent with Dr. May’s opinion. 3
The ALJ also apparently
overlooked a medical exam form in which Dr. May diagnosed Ms. King with
unspecified psychosis, major recurrent depression, and a history of anxiety.
Aplt. App. at 608. He recommended medications to control her psychosis and her
moods.
Id. We view those conditions as medically determinable impairments that
could reasonably cause the limitations identified by Dr. May in his mental Medical
3
In addition to the notes and opinions from Dr. Ashley, other evidence in the
record indicates that Ms. King was treated as an inpatient for bipolar disorder in
October 1995. Aplt. App. at 339. She was treated twice in 1999 on an outpatient
basis for treatment of depression.
Id. at 340. She was repeatedly diagnosed as
suffering from bipolar disorder.
Id. at 358, 359, 367, 430. In 1997, after she
moved from Ada, Oklahoma, to Lake Texoma, a new doctor diagnosed Ms. King
with bipolar disorder and depression.
Id. at 468.
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Source Statement. Further, as a treating physician, Dr. May had the opportunity to
observe Ms. King and her various signs and symptoms. As we have recently
reiterated, “‘a psychological opinion may rest either on observed signs and
symptoms or on psychological tests.’” Langley , 373 F.3d at 1122 (quoting
Robinson v. Barnhart ,
366 F.3d 1078, 1083 (10th Cir. 2004)). As such, Dr. May’s
observations about Ms. King’s functional limitations constitute specific medical
findings.
Id.
A second error occurred when the ALJ failed to discuss what lesser weight,
if any, should be given Dr. May’s opinion pursuant to 20 C.F.R. § 416.927(d)(2).
As with the treatment of the opinions of Dr. Ashley and Dr. Cooper, the ALJ must
provide a further explanation for our review.
Finally, the ALJ’s comment that Dr. May’s assessment is based on Ms.
King’s subjective complaints is unsupported by substantial evidence. Again as
with Dr. Ashley and Dr. Cooper, there is no evidence that Dr. May relied solely on
Ms. King’s subjective complaints. As for the ALJ’s finding that those complaints
are not totally credible, we note that this statement is contradicted by his later
conclusion that Ms. King is “generally credible in her testimony concerning her
mental impairments.” Aplt. Br., tab 1, at 9.
In summary, the ALJ erred when, after refusing to give the opinions of three
of Ms. King’s treating physicians controlling weight, he failed to articulate what
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weight, if any, he gave to those opinions. We cannot simply presume the ALJ
applied the correct legal standards in considering those opinions. See Watkins ,
350 F.3d at 1301. We must remand because we cannot meaningfully review the
ALJ’s determination absent findings explaining the weight assigned to the treating
physicians’ opinions. See, e.g., Drapeau v. Massanari ,
255 F.3d 1211, 1214 (10th
Cir. 2001).
The judgment of the district court is REVERSED, and this cause
REMANDED with instructions to remand to the Commissioner for further
proceedings consistent with this order and judgment.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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