LOURDES A. MARTÍNEZ, Magistrate Judge.
On April 8, 2011, Plaintiff filed an application for Disability Insurance Benefits (hereinafter "DIB"), alleging that she became disabled on March 9, 2011. [Doc. 15-8 at 2-9]. Plaintiff claimed that she became disabled due to high blood pressure, sleep apnea, right-side hearing loss, nerve damage to her left leg, back injury, depression, a broken hand, and a heart murmur. [Doc. 15-8 at 3]. Her DIB application was denied at the initial level on September 22, 2011 (Doc. 15-5 at 2-3), and at the reconsideration level on June 19, 2012 (id. at 4-23). Pursuant to Plaintiff's request (Doc. 15-6 at 12-13), Administrative Law Judge Ann Farris (hereinafter "ALJ") conducted a hearing on November 5, 2013. [Doc. 15-4 at 2-59]. At the hearing, Plaintiff was present, represented by her previous attorney, Michael F. Hacker, and testified. Id. at 2, 9-50. Vocational Expert (hereinafter "VE") Leslie J. White was also present and testified. Id. at 2, 51-59.
On January 31, 2014, the ALJ issued her decision, finding that, under the relevant sections of the Social Security Act, Plaintiff was not disabled through the date of the decision. [Doc. 15-3 at 20-33]. Plaintiff requested that the Appeals Council review the ALJ's decision. Id. at 15. By order dated December 18, 2014, the Appeals Council denied Plaintiff's request for review on the ground that there was "no reason under our rules to review the [ALJ]'s decision." Id. at 2. This decision was the final decision of the Commissioner. On February 6, 2015, Plaintiff filed her complaint in this case. [Doc. 1].
The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). If substantial evidence supports the ALJ's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. See Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). Courts should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. Hamlin, 365 F.3d at 1214; Langley, 373 F.3d at 1118.
"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Langley, 373 F.3d at 1118 (citation and quotation marks omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted); Doyal, 331 F.3d at 760 (citation and quotation marks omitted). An ALJ's 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." Langley, 373 F.3d at 1118 (citation and quotation marks omitted); Hamlin, 365 F.3d at 1214 (citation and quotation marks omitted). While a court may not re-weigh 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) (citations omitted). "The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ]'s findings from being supported by substantial evidence." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
For purposes of DIB, a person establishes a disability when 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. § 404.1505(a). In light of this definition for disability, a five-step sequential evaluation process (hereinafter "SEP") has been established for evaluating a disability claim. 20 C.F.R. §§ 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the SEP, the claimant has the burden to show that: (1) the claimant is not engaged in "substantial gainful activity;" and (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 either (3) the claimant's impairment(s) either meet(s) or equal(s) one of the "Listings" of presumptively disabling impairments; or (4) the claimant is unable to perform her "past relevant work." 20 C.F.R. §§ 404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1261. At the fifth step of the evaluation process, the burden of proof shifts to the Commissioner to show that the claimant is able to perform other work in the national economy, considering her residual functional capacity (hereinafter "RFC"), age, education, and work experience. Grogan, 399 F.3d at 1261.
Plaintiff was born on March 21, 1960, and was 50 years old on March 9, 2011, the alleged onset of disability date. [Doc. 15-7 at 4]. The highest level of education that Plaintiff completed was tenth grade. [Doc. 15-8 at 4, ¶ 5.A]. Prior to her alleged disability, Plaintiff had worked primarily as a cook or food handler in nursing home, school, and day care settings. Id. at 23. Plaintiff claims she had to stop working on March 9, 2011 because she broke her hand and her boss did not want her working with a broken hand. Id. at 3.
Plaintiff's medical records include: a January 1997 Comprehensive Functional Capacity Evaluation from the Work Performance Center (Doc. 15-10 at 2-5); treatment records from the University of New Mexico Health Sciences Center, covering the period from April 2010 through October 2013 (Exs. 2F (Doc. 15-11 at 4 through Doc. 15-13 at 9), 8F (Doc. 15-15 at 4 through Doc. 15-17 at 2), 9F (Doc. 15-17 at 5-28), 10F (Id. at 30), 13F (Doc. 15-18 at 4-36) 15F (Id. at 42-51), and 17F-20F (Doc. 15-20 at 2 through Doc. 15-25 at 39)); a Psychiatric Review Technique, dated September 15, 2011 by Thomas VanHoose, Ph.D. (Doc. 15-13 at 12-22); a Physical RFC Assessment, dated September 22, 2011, by Karen Schnute, M.D. (Id. at 23-28); a Consultative Examination Report, dated March 7, 2012, by JoAn Rittenhouse, Ph.D. (Doc. 15-17 at 31-34); an Anxiety Listings Questionnaire, dated December 16, 2013, by Christopher Neumann, Ph.D. (Doc. 15-25 at 42 45); and a Depression Listings Questionnaire, dated December 16, 2013, by Christopher A. Neumann, Ph.D. (Id. at 48 52). Where relevant, Plaintiff's medical records are discussed in more detail below.
Plaintiff has a long history of both physical and mental difficulties. Most significantly, Plaintiff has lower back problems, knee problems, and severe depression. Although she stopped working full-time in March 2011, she sometimes worked part-time after the date claimed as the onset of her disability. At the time of the hearing in November 2013, Plaintiff lived with her mother and her 24-year old daughter, and worked approximately five hours a day as a cook for a small Christian school.
Plaintiff first injured her back in 1997 in a work-related accident. [Doc. 15-10 at 4]. She has complained of chronic lower back pain since that event. In June 2011, x-rays of Plaintiff's lower (lumbar) spine indicated some abnormalities. [Doc. 15-15 at 15]. Plaintiff's lumbar pain continued and increased, and she was referred to physical therapy by her primary care provider in March 2012. [Doc. 15-18 at 31]. A September 2013 MRI indicated "severe bilateral facet hypertrophy at L5-S1 resulting in grade 1 anterior spondylolisthesis, moderate spinal canal stenosis, and moderate bilateral neural foraminal narrowing." [Doc. 15-25 at 36]. Essentially, Plaintiff's lower spine had shifted, the joints had enlarged, and the passageways for nerves had narrowed, resulting in increased pressure on those nerves. Plaintiff had also suffered a left hand/wrist injury when she fell off of a bed in February 2011, shortly before her claimed onset date. [Doc. 15-11 at 33-34]. Although this injury caused Plaintiff significant pain, it was ultimately resolved by compartment release surgery in August 2011. [Doc. 15-16 at 5, 10-12].
Plaintiff injured her left knee in late October 2011, and was seen for knee pain in the Emergency Room in November 2011 [Doc. 15-15 at 24]. X-rays taken in the E.R. indicated arthritis, and Plaintiff was diagnosed with a knee sprain. Id. at 25. However, the pain continued, and an MRI in February 2012 (Doc. 15-18 at 34-36) revealed a complex tear of the medial meniscus of the left knee, among other issues, which caused "significant pain and functional limitation." Id. at 43. After physical therapy failed to improve the knee, Plaintff had surgery on it in May 2012. Id. at 48-50. That surgery, as was the wrist surgery, was successful in resolving Plaintiff's left knee issues. Id. at 46. However, Plaintiff injured her right knee in October 2013 in an aerobics class. [Doc. 15-25 at 9-13]. The damage to Plaintiff's right knee was similar to the damage she had suffered to her left knee, but the right knee was still an issue for Plaintiff at the time of the ALJ hearing the following month. [Doc. 15-4 at 44-45].
Plaintiff also has a lengthy history of depression and anxiety, for which she was prescribed Zoloft and Wellbutrin and which she was taking well before her claimed onset of disability date. See [Doc. 15-11 at 49-50]. She was hospitalized for three days in October 2012, following an intentional overdose of prescribed medications, and was thereafter referred to the University of New Mexico Mental Health Center (hereinafter "UNMH"). [Doc. 15-20 at 31-33]. The doctors at UNMH diagnosed Plaintiff with "Major depressive disorder, recurrent, severe; generalized anxiety disorder," and "Cluster B personality features,
At step one of the five-step evaluation process the ALJ found that Plaintiff "has not engaged in substantial gainful activity" since her alleged disability onset date of March 9 2011. [Doc. 15-3 at 22]. At step two, the ALJ found that Plaintiff has the following severe medically determinable impairments: "degenerative disc disease of the lumbar spine at L5-S1, meniscus tear of the left knee, depression, anxiety, and a personality disorder with cluster B traits." Id. The ALJ also found that Plaintiff has the following non-severe impairments: "hypertension, hearing loss, and obstructive sleep apnea." Id. At the third step, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled any of the Listings found in 20 C.F.R. § 404, Subpt. P, App'x. 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). Id. at 23. The ALJ also found that Plaintiff had mild restriction of her activities of daily living, moderate difficulties with social functioning, and moderate difficulties with concentration, persistence or pace, and that Plaintiff "has experienced one to two episodes of decompensation, each of extended duration." Id. at 24. On that basis, the ALJ determined that Plaintiff's mental impairments did not satisfy the paragraph B or paragraph C criteria for Listings 12.04 or 12.06. Id.
Before step four, the ALJ determined that Plaintiff had the RFC:
[Doc. 15-3 at 25]. In support of her RFC assessment, the ALJ found that Plaintiff's "medically determinable impairments might be expected to cause some of the alleged symptoms; however, the [Plaintiff]'s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." Id. at 26. The ALJ also noted that she had considered the effects of obesity in her determination of Plaintiff's RFC.
At the fifth and final step, the ALJ noted that Plaintiff was born on March 21, 1960, and was therefore 50 years old on the alleged disability onset date, which is considered to be an individual "closely approaching advanced age" under 20 C.F.R. §§ 404.1563(d) (defining the age range for such individuals as "50-54"). [Doc. 15-3 at 31]. The ALJ found that Plaintiff has at least a high school education,
Plaintiff makes three claims in her motion to reverse or remand, which are that the ALJ: (1) mischaracterized the evidence upon which she made her credibility assessment; (2) ignored parts of the opinion of non-examining expert, Dr. Gelinas; and (3) improperly evaluated the medical opinions of Drs. Neumann and Rittenhouse. [Doc. 19 at 2]. In response, Defendant argues that the ALJ reasonably evaluated the medical evidence and Plaintiff's subjective complaints in determining her RFC. [Doc. 23 at 6]. In her reply brief, Plaintiff argues that Defendant failed to directly address the claims in her motion. [Doc. 25 at 4].
In reaching the conclusion that Plaintiff is not disabled, the ALJ appears to have relied more heavily on her assessment of Plaintiff's credibility than on the medical evidence itself. Unfortunately, that assessment was based on the ALJ's somewhat misleading selection of "activities" that create an impression that Plaintiff is more active than she claimed:
Doc. 15-3 at 29.
Many of the foregoing activities were taken from a single treatment note in the midst of Plaintiff's long medical record, which took place on a day when Plaintiff was obviously feeling very positive. See [Doc. 15-23 at 22]. After a visit with Plaintiff on April 26, 2013, Christina N. Doucette, P.A.-C, Plaintiff's long-term primary health care provider, described several changes that had been made to Plaintiff's medications since she'd seen her last, and observed that:
Id. at 29. In her conclusion, Ms. Doucette noted that she had seen "some positive improvements today," and that Plaintiff "expresses more interest and motivation today," as well. Id. at 30. Both Shanna V. Diaz, D.O., one of Plaintiff's treating psychiatrists, and Christopher A. Neumann, Ph.D., her treating psychologist, had noted similarly positive changes in Plaintiff on April 17, 2013. Id. at 33-36.
However, by May 3, 2013, one week after her visit with Ms. Doucette, Plaintiff's mental status had changed dramatically. From a visit with Plaintiff on that day, Dr. Diaz described Plaintiff's thought content as:
Doc. 15-23 at 20. Dr. Diaz noted that Plaintiff reported that she had been crying on and off since the previous day, wanted to discontinue her fluoxetine, had had periods of feeling afraid, had rubbed the skin off her face with a Brillo pad, had been pinching her leg and leaving small bruises, and that "she is tired of feeling this way and relating that `all the good jobs I've had with good bosses and nice people have ended when my depression hits.'" Id. at 19. Plaintiff's fluoxetine was changed by Dr. Diaz to Effexor at this visit, and her mood continued to appear relatively stable from that time into July 2013. Id.; see also, id. at 2, 4-7, 8, 10-12, and 18.
In August 2013, Plaintiff saw Ms. Doucette for low back pain, which Plaintiff described as "across her back and radiat[ing] down to behind her knees." [Doc. 15-25 at 20]. Although Plaintiff rated her back pain as 2 out of 10 at that visit, she stated that certain movements made it worse and reported that, although she had previously been able to walk for an hour at a time, she currently could only walk for about 15 minutes due to the pain. Id. Then, in September 2013, Plaintiff injured her right knee, reporting that she "may have twisted her knee during aerobics." Id. at 5. On October 7, 2013, Plaintiff went to the Emergency Room due to pain in her right knee, following-up the E.R. visit with Ms. Doucette on October 21, 2013. Id. at 10-12. During this visit with Ms. Doucette, Plaintiff indicated that:
Id. at 11. Ms. Doucette also noted that Plaintiff was then "working from 7:00-12:00 a.m. [sic] at a Baptist church helping in the kitchen" but that "[i]t has been difficult with her knee pain." Id. Ms. Doucette indicated that she would refer Plaintiff back to Dr. Diaz in psychiatry to reevaluate Plaintiff's medications and that, although Plaintiff was still seeing Dr. Neumann, they may want to consider more frequent appointments. Id. at 12.
At the hearing in November 2013, Plaintiff testified that, post-onset, she had worked at a childcare center in early 2012 (Doc. 15-4 at 10), in a church nursery on Sundays during Mass in mid-2012 (id.) and adding similar work for a synagogue nursery on Saturdays, beginning in late 2012 (id. at 11), and had worked as a cook at a childcare facility, five hours per day, for two months in early 2013.
In response to the ALJ's specific questions, Plaintiff agreed that she goes with her daughter to get groceries,
Quite simply, the ALJ's description of Plaintiff's activities does not fairly represent the evidence. Although the ALJ considers Plaintiff to be "not entirely credible" regarding her limitations, it appears from the lengthy medical records that Plaintiff is a remarkably candid reporter of her symptomology, both good and bad. If Plaintiff is not experiencing any pain, she reports that, as she did after both her left knee and wrist surgeries. See [Doc. 15-18 at 46 ("pain is minimal" approximately two weeks after knee surgery); [Doc. 15-16 at 5] (patient reports pain is "markedly less" than before, less than one month after wrist surgery). Similarly, at a visit with Ms. Doucette in August 2013, at which her chief complaint was low back pain, Plaintiff honestly rated her lower back pain at the time of the visit as 2 out of 10, then explained that the pain worsens with certain movements and that it had decreased her previous ability to walk. [Doc.15-25 at 20]. It is important to note that the ALJ found that Plaintiff had met the objective evidence threshold, as "[t]he medical evidence of record reflects that [she] suffers from conditions known in some circumstances to be productive of inability to perform physically strenuous or heavy work." [Doc. 15-3 at 26]. Thus, the ALJ must consider all relevant evidence in determining whether Plaintiff is "disabled." Significantly, the ALJ noted that there are "numerous factors that agency decision makers should consider when determining the credibility of subjective claims of pain, e.g., a claimant's persistent attempts to find relief, his willingness to try any treatment prescribed, and his regular contact with a doctor." Id. (citing Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987)). Oddly, however, the ALJ apparently did not consider the very factors that she referenced in her consideration of Plaintiff's credibility. The medical records strongly indicate that all three of the Luna factors apply to Plaintiff. First, Plaintiff persisted in seeking relief. In fact, her left knee injury was originally diagnosed as a "sprain" and treated only with Ibuprofen, yet an MRI, performed because of Plaintiff's continued complaints of pain, established that she had a torn meniscus that required surgery. Plaintiff has also demonstrated her willingness to try any treatment prescribed. Thus, Plaintiff has on many occasions discussed with her medical providers the techniques she uses to calm herself that were suggested to her by her therapists. She submitted to two successful surgeries. She attempts to walk and use portion control because her providers have told her that losing weight might help her with the pain. She has submitted to every test and procedure her doctors have prescribed and, more often than not, those tests and procedures have verified, rather than discounted, her complaints. Finally, Plaintiff has had almost constant contact with her medical and psychiatric providers. In the year between her overdose and the hearing, Plaintiff had seen her primary care provider and several mental health providers numerous times. In fact, Plaintiff had been seen by Ms. Doucette, her primary care provider, on a regular basis since at least May 2010 (See Doc. 15-11 at 49), in addition to spending three days in the hospital following an overdose. The ALJ's failure to discuss these factors with respect to Plaintiff's medical care seriously undermines her ultimate conclusion that Plaintiff was "less than credible."
It also appears that the ALJ picked through the medical records to find examples of activities that appear inconsistent with Plaintiff's claims. Because the ALJ must consider the whole record, she is prohibited from picking and choosing "among medical reports, using portions of evidence favorable to h[er] position while ignoring other evidence." Carpenter v. Astrue, 537 F.3d 1264, 1265 (10th Cir. 2008) (citation and internal quotation marks omitted). Thus, the ALJ stated that Plaintiff "walks, bikes, and has taken aerobics." [Doc. 15-3 at 29] (citing [Doc. 15-25 at 5, 10; Doc. 15-17 at 22; Doc. 15-23 at 22]). However, Plaintiff testified at the hearing that her walking time had been significantly reduced and she was limited to about 15 minutes of walking once a week. [Doc. 15-4 at 21]. On August 30, 2013, she reported to Ms. Doucette the same reduction in her ability to walk. [Doc. 15-25 at 20]. Although that minimal amount of walking caused her lower back and knee to hurt, she did it anyway because it helped remove her from her self-destructive thoughts. [Doc. 15-4. at 27]. Moreover, Plaintiff had been advised to walk by her care providers. See, e.g., [Doc. 15-17 at 20; Doc. 15-20 at 26; Doc. 15-24 at 6 and 21].
There appears to be only one superficial reference to Plaintiff "biking" in the entire record. At an initial evaluation of Plaintiff for physical therapy, in February 2012, the evaluator noted that Plaintiff "had injury to the back about ten years ago. She was doing some self[-]stretching and walking, biking." [Doc. 15-17 at 22]. Although it is vague, this statement appears to refer back to when Plaintiff injured her back ten years earlier, rather than evidence that she was biking in 2012. In any event, Plaintiff did not mention biking when asked about her activities, nor did any other provider. That the ALJ would use this single, non-specific reference as evidence of an activity of daily living that was inconsistent with Plaintiff's claimed activity level strongly suggests that the ALJ was picking and choosing "facts" that supported her conclusion, rather than performing an objective review of the evidence. Moreover, if the ALJ had the idea that Plaintiff was "biking," she could easily have asked her for information about that activity at the hearing. Details such as when the activity took place, whether it was on a bicycle or a stationary bike, for how long a period she did it, and how intense the exercise was could have been very helpful to the ALJ's determination of whether or not that activity rendered Plaintiff's claims "less than credible."
The ALJ similarly included a single reference to Plaintiff "planning to do a 5K with her daughters" as evidence of Plaintiff's "higher level of functioning." [Doc. 15-3 at 29]. This statement was taken from Ms. Doucette's notes of an April 2013 visit with Plaintiff, which was already discussed. Plaintiff was particularly upbeat around that time; feeling better and more positive. However, as previously noted, she was significantly less than that way a very short time thereafter. Again, no detail about this planned activity is in the record, so it cannot be determined when it was supposed to take place, or even whether Plaintiff actually took part in it. Moreover, the ALJ's statement regarding this activity conveniently omits that it was a 5K "walk," rather than a run. That someone with Plaintiff's psychological difficulties might plan to do something completely beyond her ability to do on an "up" day is hardly surprising. What is surprising is that the ALJ would use two isolated references to activities, about which no detail is given, as suggestive of Plaintiff's lack of credibility. Again, if the ALJ was concerned about this activity, she should have asked Plaintiff about it at the hearing, particularly since Plaintiff herself volunteered the information in the first place. If Plaintiff was attempting to exaggerate her pain and minimize her activity level, one would expect her to do so a little more consistently.
On the other hand, Plaintiff's participation in an aerobics class in which she injured her right knee, though also an isolated reference in her medical records, might well indicate a higher-than-claimed activity level. However, here again, there is virtually no context within which to make such a determination. The ALJ did not ask Plaintiff about this activity, either to describe the class or to inquire why Plaintiff would engage in such an activity. As it was in the records submitted for the hearing, it would have been simple and sensible for the ALJ to seek additional information from Plaintiff regarding activities she found troubling, rather than simply relying on them without any context. Simply stating that Plaintiff "had taken aerobics," without more, is misleading.
Finally, the ALJ noted that Plaintiff "admitted to" both "doing yoga" and "caring for her nieces 40 hours a week." [Doc. 15-3 at 29]. Doing yoga, particularly as Plaintiff described it as a relaxation technique, hardly seems like an "admission." This is an activity that Plaintiff actually described doing at the hearing, yet again the ALJ asked for no additional information regarding the exertion level of Plaintiff's yoga. Yoga does not necessarily require physical exertion. Similarly, the reference to Plaintiff "caring for her nieces" is made without context. It does not indicate how many nieces Plaintiff watched, nor how old they were. It also does not indicate just how much, or what kind of, "care" her nieces required. Finally, it does not indicate for how long, or how well, Plaintiff did this activity. Without such details, it is impossible to ascertain whether these activities indicate that Plaintiff has greater functionality than she claims. Accordingly, the ALJ's reliance on them to discredit Plaintiff's subjective pain reports is troublesome.
Although credibility is "peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence," it is also the case that credibility findings "should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (citations and internal quotation marks omitted). Here, as in Kepler, the link between the ALJ's determination that Plaintiff was not credible and the evidence in support of such determination is missing, leaving this Court with nothing but a conclusion. The ALJ's statements regarding Plaintiff's credibility are both too superficial and too incomplete to provide an adequate basis for denial of disability. This is legal error, and requires remand for additional consideration of the credibility issue.
The ALJ must base her RFC assessment on all of the relevant evidence in the record, such as medical history, laboratory findings, effects of treatment and symptoms, including pain, reports of daily activities, lay evidence, recorded observations, medical source statements, evidence from attempts to work, need for a structured living environment, and work evaluations, if any. Soc. Sec. Rep. 96-8p at *5. "The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id. at *7. The ALJ "must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved," and the RFC assessment must always consider and address medical source opinions. Id. Because the ALJ must consider the whole record, she is prohibited from picking and choosing "among medical reports, using portions of evidence favorable to his position while ignoring other evidence." Carpenter v. Astrue, 537 F.3d at 1265 (citation and internal quotation marks omitted). When there are multiple opinions regarding medical severity and functional ability from different sources, the ALJ must explain the weight given to each source's opinions. Hamlin, 365 F.3d at 1215 (citation omitted).
In her decision, the ALJ granted "the greatest weight" to the "opinions of the experts who prepared the State Agency (DDS) reports" on Plaintiff's claims at the Commission's initial and reconsideration stages [Doc. 15-3 at 30]. At the initial stage, Plaintiff's claims of physical impairments were reviewed by Karen Schnute, M.D., who concluded that Plaintiff was, at that time, capable of performing work at a medium exertional level. [Doc. 15-5 at 2-3 and 12]. Plaintiff's claimed mental impairments were reviewed at the initial stage by Thomas VanHoose, Ph.D., who concluded that her mental impairments were all non-severe. Id. at 12. At the reconsideration level, evaluations of Plaintiff's physical and mental impairments were provided by Allen Gelinas, M.D. and Arthur Hamlin, Psy.D., respectively. [Doc. 15-5 at 5-23]. Based on his review of additional medical evidence, Dr. Gelinas determined that Plaintiff was limited to work at a light exertional level with only occasional climbing, kneeling, crouching, and crawling. Id. at 16. Dr. Hamlin concluded that Plaintiff had a severe affective disorder, leading to mild restriction of her activities of daily living (hereinafter "ADL"), moderate difficulty with social functioning, and moderate difficulty with concentration, persistence, or pace. Id. at 13-14. Dr. Hamlin opined that Plaintiff "would likely have some difficulty adapting to change but should [be] able to function with a stable, low-stress work setting." Id. at 21.
Plaintiff contends that the ALJ failed to discuss a portion of Dr. Gelinas' evaluation that did not support her decision. After noting that Plaintiff's impairments had worsened since the initial evaluation, due to diagnoses of degenerative joint disorder of the lumbar spine and having had left knee surgery on May 9, 2012, and downgrading Plaintiff's physical RFC to "light work," Dr. Gelinas noted that Plaintiff "will retain capacity of this RFCF [sic] within 12 months from her knee surgery."
Plaintiff contends that the ALJ failed to appropriately weigh Dr. Neumann's opinions and to provide specific reasons for apparently discounting them. [Doc. 19 at 20-22]. As Plaintiff's treating psychologist, who saw Plaintiff on many occasions for therapy, Dr. Neumann is considered a "treating physician," whose opinions are generally given controlling weight. See 20 C.F.R. §§ 404.1527(d) and 416.927(c). This consideration is commonly called the "treating physician rule." See Soc. Sec. Rep. 96-2P, 1996 WL 374188 at *1 (1996) ("If a treating source's medical opinion is well- supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight; i.e., it must be adopted"). The Tenth Circuit Court of Appeals explains the "treating physician rule," as follows:
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (emphasis added) (citations and internal quotation marks omitted). See also Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (an examining medical-source opinion is given particular consideration and is presumptively entitled to more weight than a doctor's opinion derived from a review of the medical record).
Even where the ALJ determines that a treating source's opinion is not entitled to controlling weight, the opinion is still entitled to deference and must be weighed using the following factors:
Bainbridge v. Colvin, 618 F. App'x 384, 389-90 (10th Cir. 2015) (unpublished). In this case, the only opinions regarding Plaintiff's mental functioning were provided by Dr. Neumann, her treating psychologist, Dr. Rittenhouse, an examining psychologist, and Drs. VanHoose and Hamlin, who are both non-examining psychologists.
Indeed, the ALJ apparently disregarded Dr. Neumann's opinions entirely, without even indicating how much weight she had given them, and while also giving "the greatest weight" to the non-examining Disability Determination Services doctors. [Doc. 15-3 at 30]. Dr. Neumann was Plaintiff's treating psychologist, and the only treating medical source that provided an opinion on Plaintiff's mental functionality.
JoAn Rittenhouse, Ph.D. provided a consultative mental examination of Plaintiff in March 2012, between the initial denial of Plaintiff's claim and the reconsideration of it. [Doc. 15-17 at 31-33]. The ALJ gave Dr. Rittenhouse's opinions "limited weight," because "[t]he doctor apparently relied quite heavily on the subjective report of symptoms and limitations provided by the [Plaintiff], and seemed to uncritically accept as true most, if not all, of what the [Plaintiff] reported." [Doc. 15-3 at 30]. In addition, the ALJ described Dr. Rittenhouse's opinion as "quite conclusory, providing very little explanation of the evidence relied on in forming that opinion." Id. In her report, however, Dr. Rittenhouse gave brief personal, medical, and work histories for Plaintiff, followed by a mental status examination in which Dr. Rittenhouse related her appraisals of Plaintiff in the following categories: appearance, attitude, and behavior; orientation; mood; affect; thought process; thought content; speech; memory; judgment and insight; concentration and attention; intelligence; and emotional/mental symptoms. [Doc. 15-17 at 31-33]. Dr. Rittenhouse's statements about Plaintiff in these categories involved her observations ("[Plaintiff] is an obese woman, (5' 2", 220 pounds) who has a severe limp and unsteady gait," interaction with Plaintiff ("speech was somewhat slurred although understandable"), and testing ("[Plaintiff] failed both digit span tasks. She could give a clear and coherent statement of her current situation. She could not recall 3 objects on retest"). Dr. Rittenhouse listed her diagnostic impressions of Plaintiff as "Major depression, recurrent," and "[rule out] developmental learning problems," and described Plaintiff's current functioning as follows:
Id. at 33.
The ALJ's objection to Dr. Rittenhouse's opinion appears primarily to be that the opinion is too heavily reliant on Plaintiff's subjective reports. However, a psychologist's reliance, in part, on a patient's subjective reports is not a proper basis upon which to disregard her opinions. See Thomas, 147 Fed. App'x. at 759-60. Thus, to the extent that the ALJ discounted Dr. Rittenhouse's opinions simply because they included information provided by Plaintiff (Doc. 15-3 at 30), this is error. "The practice of psychology is necessarily dependent, at least in part, on a patient's subjective statements," and an "ALJ cannot reject [a medical source's] opinion solely for the reason that it was based on [the Plaintiff's] responses because such rejection impermissibly substitutes her judgment for that of [the medical source]." Thomas, 147 Fed. App'x. at 759-60; see also Angster v. Astrue, 703 F.Supp.2d 1219, 1230-31 (D. Colo. 2010) (same). In any event, the record in this case does not support a finding that Dr. Rittenhouse unduly relied on Plaintiff's subjective reports.
For the reasons stated above, the Court
