United States District Court, W.D. Oklahoma
TESSA N. ROBNETT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
OPINION AND ORDER
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE
Tessa N. Robnett 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 application for
supplemental security income (“SSI”) under Title
XVI of the Social Security Act, 42 U.S.C. §§
1381-1383f. The parties have consented to the jurisdiction of
a United States Magistrate Judge. Upon review of the
administrative record and the arguments and authorities
submitted by the parties, the Court concludes that the
Commissioner's final decision should be reversed and this
matter remanded for further proceedings.
HISTORY AND ADMINISTRATIVE DECISION
protectively filed her SSI application on November 24, 2008,
alleging disability because of fibromyalgia, depression, and
thyroid problems beginning in February 2008. R. 420-23, 450,
455. Following denial of Plaintiff's application
initially and on reconsideration, a hearing was held before
Administrative Law Judge John Volz (referred to herein as
“ALJ Volz”) on February 25, 2010. R. 240-66. ALJ
Volz issued an unfavorable decision on March 18, 2010. R.
278-87. In February 2012, the SSA Appeals Council vacated ALJ
Volz's decision and remanded Plaintiff's case for
reconsideration in light of new and material evidence related
to her alleged mental impairment. R. 292-94.
Lantz McClain (referred to herein as “the ALJ”)
held a hearing on March 4, 2013, at which Plaintiff and a
vocational expert (“VE”) testified. R. 187-213.
On July 1, 2013, the ALJ held a supplemental hearing
“to obtain the benefit of a medical
expert['s]” opinion regarding Plaintiff's
mental impairments and limitations. R. 175-85. Ashok
Khushalani, a board-certified psychiatrist, testified at the
hearing as a medical expert after reviewing Plaintiff's
medical records available through May 2012. R. 178-84, 419.
The ALJ issued an unfavorable decision on August 30, 2013. R.
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);
accord 20 C.F.R. § 416.905(a). The Commissioner
uses a five-step sequential evaluation process to determine
entitlement to disability benefits. Wall v. Astrue,
561 F.3d 1048, 1052 (10th Cir. 2009); 20 C.F.R. §
416.920. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since November 24,
2008. R. 161. At step two, the ALJ found that Plaintiff had
“the following severe impairments: obesity, back pain,
fibromyalgia, bipolar disorder, and a personality disorder,
unspecified.” R. 161. At step three, the ALJ determined
that Plaintiff's severe 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. 161-63.
next assessed Plaintiff's residual functional capacity
(“RFC”) based on all of her impairments. R.
163-68. He found that Plaintiff's RFC allowed her to
perform light work, subject to certain limitations. R. 163,
169. More specifically, and as relevant to this appeal, the
ALJ found that Plaintiff “is able to perform simple,
repetitive tasks, relate to supervisors and co-workers only
on a superficial basis and should not work with the
public.” R. 163; see Pl.'s Br. (Doc. No.
16) at 2-11. At step four, the ALJ found that Plaintiff had
no relevant past work experience. R. 168.
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. R. 168-69. Relying on the VE's testimony
concerning the degree to which Plaintiff's
“additional limitations” eroded the unskilled
light occupational base, the ALJ concluded that Plaintiff was
“capable of making a successful adjustment to other
work that exists in significant numbers in the national
economy, ” such as housekeeping cleaner or merchandise
marker. R. 169; see R. 207-11. Therefore, the ALJ
concluded that Plaintiff had not been disabled within the
meaning of the Social Security Act between November 24, 2008,
and August 30, 2013. R. 159, 169. The Appeals Council
declined to review that decision, R. 1, and this appeal of
the Commissioner's final decision followed.
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).
argues on appeal that the ALJ did not properly consider all
of the relevant evidence regarding the limitations caused by
Plaintiff's mental impairments, including by failing to
give sufficient weight to opinions of treating psychiatrist
Alzira Vaidya, MD, and placing undue reliance on opinions of
nonexamining medical expert Ashok Khushalani, MD. Plaintiff
further argues that, as a result of these errors, the
ALJ's mental RFC determination is not supported by
substantial evidence in the record. See Pl.'s
Br. at 2-11; Pl.'s Reply Br. (Doc. No. 23) at 1-3.
Evaluation of Medical Source Opinions
SSA regulations govern the consideration of opinions by
“acceptable medical sources.” See 20
C.F.R. §§ 416.902, .913(a). The Commissioner
generally gives the greatest weight to the medical opinions
of a “treating source, ” which includes a
physician or psychiatrist who has “provided [the
claimant] with medical treatment or evaluation” during
a current or past “ongoing treatment
relationship” with the claimant. Id.
§§ 416.902, .927(c); Langley v. Barnhart,
373 F.3d 1116, 1119 (10th Cir. 2004).
considering the medical opinion of a claimant's treating
source, the ALJ must first determine whether the opinion
should be given “controlling weight” on the
matter to which it relates. See Watkins v. Barnhart,
350 F.3d 1297, 1300 (10th Cir. 2003); 20 C.F.R. §
416.927(c)(2); SSR 96-2p, 1996 WL 374188, at *1-4 (July 2,
1996). The opinion of a treating source is given such weight
if it is both well-supported by medically acceptable clinical
or laboratory diagnostic techniques and not inconsistent with
the other substantial evidence in the record.
Watkins, 350 F.3d at 1300 (applying SSR 96-2p, 1996
WL 374188, at *2); 20 C.F.R. § 416.927(c)(2); SSR 96-2p,
1996 WL 374188, at *2 (“[W]hen all of the factors are
satisfied, the [ALJ] must adopt a treating source's
medical opinion irrespective of any finding he or she would
have made in the absence of the medical opinion.”).
treating source opinion not afforded controlling weight is
still entitled to deference. See Watkins, 350 F.3d
at 1300; SSR 96-2p, 1996 WL 374188, at *4. “In many
cases, a treating source's medical opinion will be
entitled to the greatest weight and should be adopted, even
if it does not meet the test for controlling weight.”
SSR 96-2p, 1996 WL 374188, at *4. That an opinion is not
given controlling weight does not resolve the second,
distinct assessment-i.e., what lesser weight should be
afforded the opinion and why. See Watkins,
350 F.3d at 1300-01. In this second inquiry, the ALJ weighs
the medical opinion using a prescribed set of regulatory
(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.
Watkins, 350 F.3d at 1301 (internal quotation marks
omitted); 20 C.F.R. § 416.927(c)(2)-(6). The ALJ's
decision “‘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.'” Watkins, 350
F.3d at 1300 (quoting SSR 96-2p, 1996 WL 374188, at *5).
also must weigh other medical source opinions using the
relevant factors, keeping in mind that “[t]he
regulations provide progressively more rigorous tests for
weighing opinions as the ties between the source of the
opinion and the [claimant] become weaker.” SSR 96-6p,
1996 WL 374180, at *2 (July 2, 1996); see also 20
C.F.R. § 416.927(c)(3), (e). Relevant here, the weight
an ALJ assigns to the opinion of a physician or psychiatrist
who did not examine the claimant “will depend on the
degree to which [these sources] provide explanations for
their opinions” and “the degree to which these
opinions consider all of the pertinent evidence in [the
record], including opinions of treating and other examining
sources.” 20 C.F.R. § 416.927(c)(3). Indeed,
nonexamining source opinions “can be given weight only
insofar as they are supported by evidence in the case record,
considering such factors as the supportability of the opinion
in the evidence” and the other regulatory factors. SSR
96-6p, 1996 WL 374180, at *2; see also Lee v.
Barnhart, 117 F. App'x 674, 678 (10th Cir. 2004)
(“It follows that if the ALJ relies heavily on such
opinions . . . the opinions must themselves find adequate
support in the medical evidence.” (citing SSR 96-6p,
1996 WL 374180, at *2)). Again, the ALJ “must explain
the weight he is giving to” a nontreating source
opinion if the ALJ relies on that opinion. Hamlin v.
Barnhart, 365 F.3d 1208, 1223 (10th Cir. 2004);
accord 20 C.F.R. § 416.927(e)(2)(ii).
Dr. Vaidya's Treatment of Plaintiff and Opinions
Regarding Her Mental Limitations
entitled to SSI, Plaintiff must show that she was
“disabled” between November 24, 2008, the date
she filed her application, and August 30, 2013, the date the
ALJ issued his decision. R. 159, 169; see Romero v.
Barnhart, 135 F. App'x 172, 175-76 (10th Cir. 2005)
(citing 20 C.F.R. §§ 416.330, .335, .1476(b)(1)).
Plaintiff's medical records document a history of
depression, anxiety, bipolar disorder, and maladaptive,
impulsive behavior. See generally R. 564, 665,
693-716, 717-19, 911-27, 960, 972-73, 1021-25, 1030-37. Her
healthcare providers have prescribed various combinations of
psychotropic medications, as well as counseling and
coping-skills training, to manage those conditions since at
least December 2006. See, e.g., R. 638-40, 651-53,
660-64, 668-70, 947, 950, 955, 958, 970 (medication only); R.
697-98, 700, 717-18, 719-20, 852-58, 882-86, 908-09, 911-27,
1021-22, 1026-29, 1030-37 (medication and counseling).
March 31, 2009, Plaintiff went to Edwin Fair Community Mental
Health Center (“Edwin Fair”) because she was
“having difficulty dealing with daily
functioning.” R. 717. After initial intake evaluations
on that date and in early June 2009,  Plaintiff was seen by Edwin
Fair psychiatrist Dr. Vaidya on June 9, 2009. R. 719. Dr.
Vaidya noted that Plaintiff had recently been discharged from
the Oklahoma County Crisis Intervention Center
(“OCCIC”) with prescriptions for Abilify,
Trazodone, and Prozac but that Plaintiff did “not
appear medication compliant.” R. 719; see also
R. 704, 1034 (noting a three-day hospitalization at OCCIC
after Plaintiff attempted suicide in January 2009). A
mental-status exam was normal except for Plaintiff's
“anxious” mood and “constricted”
affect. R. 719. ...