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Robnett v. Berryhill

United States District Court, W.D. Oklahoma

February 13, 2017

TESSA N. ROBNETT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.[1]



         Plaintiff 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[2] 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.


         Plaintiff 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.

         ALJ 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. 159-69.

         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); 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.

         The ALJ 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.

         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. 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.


         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 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.

         A. Evaluation of Medical Source Opinions

         Specific 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).

         When 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.”).

         A 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 factors:

(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).

         The ALJ 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).

         B. Dr. Vaidya's Treatment of Plaintiff and Opinions Regarding Her Mental Limitations

         To be 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).

         On 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, [3] 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. ...

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