CHARLES B. GOODWIN, Magistrate Judge.
Plaintiff Carrie Ann Perkins brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") denying Plaintiff's applications for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. United States District Judge Vicki Miles-LaGrange has referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. The Commissioner has answered and filed the administrative record (Doc. No. 11, hereinafter "R. __").
Plaintiff filed her application for DIB on March 6, 2013, alleging a disability onset date of January 19, 2013. R. 162-65, 200-02. Following denial of Plaintiff's applications initially and on reconsideration, an Administrative Law Judge ("ALJ") held a hearing. R. 31-64, 65, 80, 101-05, 107-09. The ALJ issued an unfavorable decision on April 21, 2015. R. 10-25. The SSA Appeals Council denied Plaintiff's request for review, making the ALJ's unfavorable decision the final decision of the Commissioner. R. 1-3; see also 20 C.F.R. § 404.981. Plaintiff then filed this action for judicial review.
As relevant here, a person is "disabled" within the meaning of the Social Security Act if he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). The Commissioner uses a five-step sequential evaluation process to determine entitlement to disability benefits. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 19, 2013, the alleged onset date. R. 12. At step two, the ALJ determined that Plaintiff had the severe impairments of: major depressive disorder, social anxiety disorder, generalized anxiety disorder, panic disorder with agoraphobia, hypertension, gastric disorders, blindness in her right eye, hearing loss in her right ear, headaches, a speech disorder, arthritis, intracranial schwannomas, and a history of Bell's palsy. R. 13. At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 13-16.
The ALJ next assessed Plaintiff's residual functional capacity ("RFC") based on all of her medically determinable impairments. R. 16-23. The ALJ found that Plaintiff has the RFC to perform sedentary work, with the additional specifications that Plaintiff
R. 16; see 20 C.F.R. § 404.1567(a) (defining "sedentary" work). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work and that transferability of job skills was not a material issue. R. 23.
At step five, the ALJ considered whether there are jobs existing in significant numbers in the national economy that Plaintiff—in view of her age, education, work experience, and RFC—could perform. Taking into consideration the hearing testimony of a vocational expert ("VE") regarding the degree of erosion to the unskilled sedentary occupational base that is caused by Plaintiff's additional limitations, the ALJ concluded that Plaintiff could perform occupations such as small-parts assembler, lens inserter, and cuff folder, all of which offer jobs that exist in significant numbers in the national economy. R. 23-24. On this basis, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, from January 19, 2013, through the date of the decision. R. 24.
Judicial review of the Commissioner's final decision is limited to determining whether factual findings are supported by substantial evidence in the record as a whole and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (internal quotation marks omitted). "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." Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004) (internal quotation marks omitted). The court "meticulously examine[s] the record as a whole," including any evidence "that may undercut or detract from the ALJ's findings," "to determine if the substantiality test has been met." Wall, 561 F.3d at 1052 (internal quotation marks omitted). While a reviewing court considers whether the Commissioner followed applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
Plaintiff asserts several claims of error: (1) the ALJ failed to fully develop the record; (2) the ALJ failed to properly analyze Plaintiff's RFC, including by (a) not properly weighing the medical source evidence, and (b) not properly evaluating Plaintiff's credibility; and (3) the ALJ failed to sustain his burden of proof at step five of the sequential evaluation process. See Pl.'s Br. (Doc. No. 15) at 3. Finding that the ALJ erred in his evaluation of the treating-source opinions of Craig Evans, MD, and therefore the decision of the Commissioner must be reversed and remanded, the undersigned limits discussion to certain of Plaintiff's arguments.
Plaintiff states that Robert Waller, PhD, a consulting psychologist who examined Plaintiff, opined that further development of the record was needed. See id. at 12 (citing R. 575). Plaintiff argues that "Dr. Waller's statement regarding further development renders his opinion incomplete and deficient by his own admission" and, accordingly, "it is necessary to remand the case to develop the record concerning mental impairments." Id.
As an initial matter, Dr. Waller in fact stated that "[a] comprehensive review of [Plaintiff's] history, psychodiagnostic testing, and acquisition of complete background records would be recommended to confirm the current diagnostic impressions." R. 575. Dr. Waller did not indicate that further development of the record was required or that his opinion was incomplete and deficient absent such confirmation. Compare Pl.'s Br. at 12, with R. 575.
Moreover, Dr. Waller's opinion is only one piece of medical evidence and the relevant question is whether the totality of the evidence before the ALJ was adequate to allow the Commissioner to make a decision. Specifically, an ALJ should obtain additional evidence if the evidence as a whole is insufficient to allow the ALJ to determine the claim, or the evidence in the record is inconsistent. See Maestas v. Colvin, 618 F. App'x 358, 361 (10th Cir. 2015) ("The ALJ's duty to further develop the record is triggered by conflicts, inconsistencies or inconclusive findings in the medical record requiring further investigation." (citing Hawkins v. Chater, 113 F.3d 1162, 1166-67 (10th Cir. 1997))); see also 20 C.F.R. § 404.1519a(b) (2013) ("We may purchase a consultative examination to try to resolve an inconsistency in the evidence, or when the evidence as a whole is insufficient to allow us to make a determination or decision on your claim."). Here, in addition to Dr. Waller's report, the record contains other medical evidence relevant to Plaintiff's mental impairments, which the ALJ considered when evaluating Plaintiff's mental impairments. See R. 15 (citing Exs. 5E, 1F, 10F, 15F, 19F), 20 (citing Exs. 1F, 4F, 6F, 10F, 13F, 15F, 19F), 22 (citing Exs. 2A, 4A, 1F, 13F, 17F).
The ALJ's decision does not suggest, and Plaintiff has not shown, that the evidence before the ALJ was inadequate to permit the ALJ to determine this case. Because Plaintiff has not shown that further medical evidence regarding Plaintiff's mental impairments was required prior to the Commissioner's determination being issued, Plaintiff's argument that the ALJ erred in failing to develop the record is without merit.
Plaintiff objects to the ALJ's reliance upon two state agency consultants who were referred to by the ALJ (and themselves) by their initials: "RC, Ph.D." and "PMM, Ph.D." Plaintiff asserts that she "does not have sufficient information to determine the professional qualifications of both [consultants], or whether they are even licensed in practice." Pl.'s Br. at 9 (citing R. 22); see also R. 76-78, 93-95.
As the Commissioner notes, beyond Plaintiff's unsupported speculation, there is no reason to believe the two psychologists in this case were not licensed psychologists. See R. 78, 95 (indicating RC and PMM held PhDs and showing each medical specialty code as "38"); Soc. Security Admin., Program Operations Manual System ch. DI, subchapter 24501.004 (May 5, 2015) (noting medical specialty code 38 corresponds to psychology); id. ch. DI, subchapter 39569.300(C)(2)(a)-(b) (Jan. 28, 2016) (noting that psychological consultants have to prove that they are licensed, both initially and on an ongoing basis). And Plaintiff does not allege that she raised any issue regarding identification at the administrative level, for example by asking for (and being denied) the psychologists' full names or asking for (and being denied) the opportunity to cross-examine them. R. 31-64. The ALJ did not err by failing to address an issue that was not raised in the administrative proceeding. Cf. Cowan v. Astrue, 552 F.3d 1182, 1188 (10th Cir. 2008) ("[I]n a counseled case, the ALJ may ordinarily require counsel to identify the issue or issues requiring further development."). The undersigned finds no error in the use of initials to designate the state agency consulting psychologists.
Plaintiff contends that the ALJ did not "follow the correct legal standards" in evaluating the medical opinions of Plaintiff's treating physician, Craig Evans, MD. Pl.'s Br. at 8-11. The undersigned agrees.
An ALJ must discuss the weight afforded to each medical opinion in the record, generally giving the greatest weight to the medical opinions of a "treating source," which includes a physician who "has provided [the claimant] with medical treatment or evaluation" during a current or past "ongoing treatment relationship." 20 C.F.R. § 404.1502; see id. § 404.1527(c);
20 C.F.R. § 404.1527(a)(2). Opinions as to whether someone is "disabled," "unable to work," or similar legal determinations are not treated as medical opinions. Id. § 404.1527(d). And though an ALJ must consider all medical evidence, if medical evidence falls outside the regulatory definition of "medical opinion," the ALJ need not afford it a specific weight. See Welch v. Colvin, 566 F. App'x 691, 693-94 (10th Cir. 2014); Cowan, 552 F.3d at 1189.
Dr. Evans completed a Treating Physician Mental Functional Assessment Questionnaire on March 26, 2013, in which he stated that Plaintiff had a mental condition that imposed more than minimal limitation. R. 288. Dr. Evans diagnosed Plaintiff with depression, noting Plaintiff's "crying constantly [and] inability to function in daily living." R. 288. When asked to describe Plaintiff's current functional limitations, Dr. Evans listed "inability to deal with daily living[;] poor coping abilities at this time[;] poor focus [and] concentration[;] insomnia issues[; and] emotional lability." R. 288.
Additionally, on August 5, 2014, Dr. Evans prepared a letter in which he expressed his support for Plaintiff's SSI application because he "believe[d]" that Plaintiff was "truly disabled because of [her] constellation of physical and emotional symptoms." R. 839. Dr. Evans summarized some of Plaintiff's health history, including negative impacts on her "psychological well-being," "[d]epression and emotional instability," "mental and emotional health issues," and Plaintiff's resulting inability "to function on [her] own." R. 839-40.
The ALJ gave "little weight" to Dr. Evans' opinions "because the issue of disability is reserved for the Commissioner. Moreover, these opinions give no specific function-byfunction work restrictions." R. 22.
The Tenth Circuit has explained that a "true medical opinion" is one that contains a doctor's "judgment about the nature and severity of [the claimant's] physical limitations, or any information about what activities [the claimant] could still perform." Cowan, 552 F.3d at 1189. Applying this standard, the Tenth Circuit has found that statements by treating physicians that do not provide information about a plaintiff's functional limitations are not true medical opinions. See, e.g., id. at 1188-89 (finding doctor's statement providing no information about the nature and severity of the claimant's physical limitations or the activities he could still perform was not a medical opinion); Welch, 566 F. App'x at 694 (finding that physicians' statements that did not include opinions on limitations resulting from plaintiff's impairments were not medical opinions); Sullivan v. Colvin, 519 F. App'x 985, 988 (10th Cir. 2013) (finding that physician's statements that plaintiff might have difficulty working in the majority of competitive environments and should locate work within a highly structured and supportive setting were not medical opinions about the nature and severity of her mental limitations).
Here, the ALJ is correct that certain of Dr. Evans' statements—including the entirety of the August 5, 2014 letter—reflect his view on the ultimate question of disability rather than provide his medical judgment about Plaintiff's ability to perform or not perform specific functions. These statements were properly disregarded by the ALJ as not constituting medical opinions. See Sullivan, 519 F. App'x at 988; 20 C.F.R. § 404.1527(d)(1) (prescribing that whether a claimant is "disabled" is a vocational opinion that is reserved for the Commissioner).
However, multiple statements by this treating physician reflect medical opinions and, as such, required consideration—and, absent explanation, deference—by the ALJ. See Langley, 373 F.3d at 1119 (noting that treating-source medical opinions are entitled to deference and must be weighed using the regulatory factors). As noted, in the March 26, 2013 Questionnaire, Dr. Evans opined that Plaintiff suffered from an "inability to deal with daily living[;] poor coping abilities at this time[;] poor focus [and] concentration[;] insomnia issues[; and] emotional lability." R. 288. These statements reflect "judgments about the nature and severity of [Plaintiff's] impairment[s], including . . . [her] mental restrictions." 20 C.F.R. § 404.1527(a)(2). Accordingly, by not undertaking to evaluate and weigh these opinions, the ALJ erred. See Langley, 373 F.3d at 1119.
Having reviewed the record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned Magistrate Judge recommends that the decision of the Commissioner be REVERSED AND REMANDED for further proceedings.
The parties are advised of their right to file written objections to this Report and Recommendation in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Any such objections must be filed with the Clerk of this Court by March 12, 2018. The parties are further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed 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 undersigned Magistrate Judge in this case.
