Anderson v. Saul

          MEMORANDUM OPINION AND ORDER

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Michelle Anderson brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the Social Security Administration’s (SSA) denial of disability benefits. The SSA Commissioner has answered and filed the administrative record (hereinafter TR. __). The parties have consented to jurisdiction over this matter by a United States magistrate judge pursuant to 28 U.S.C. § 636(c).

         The parties have briefed their positions, and the matter is now at issue. Based on the Court’s review of the record and the issues presented, the Court REVERSES AND REMANDS the Commissioner’s decision.

         I. PROCEDURAL BACKGROUND

         Plaintiff’s applications for supplemental security income and disability insurance benefits were denied initially and on reconsideration. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 13-31). The Appeals Council denied Plaintiff’s request for review. (TR. 1-4). Ms. Anderson then filed an appeal in this Court, which remanded the matter for further administrative proceedings. (TR. 1010-1032). Following a second administrative hearing, the ALJ issued another unfavorable decision. (TR. 905-920). Plaintiff did not file an appeal with the Appeals Council, but instead filed the instant action. (ECF No. 1). Thus, it is in this posture that the case is before the Court once again, with the second decision of the ALJ being the final decision of the Commissioner.

         II. THE ADMINISTRATIVE DECISION

         The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since January 3, 2013, the alleged disability onset date. (TR. 908). At step two, the ALJ determined Ms. Anderson had the following severe impairments: osteoarthritis; right hip labrum repair; migraines; degenerative disc disease-lumbar spine; chronic obstructive pulmonary disease; mitral valve prolapse; depression; bipolar disorder; and anxiety. (TR. 908). At step three, the ALJ found that Plaintiff’s impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 909).

         At step four, the ALJ found that Plaintiff could not perform her past relevant work. (TR. 918). The ALJ further concluded that Ms. Anderson had the residual functional capacity (RFC) to:

[P]erform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can lift 20 pounds occasionally and 10 pounds frequently; stand/walk 6 hours in an 8 hour day; sit 6 hours in an 8 hour day with normal breaks; never climb ladders/ropes/scaffolds; occasional climbing ramps/stairs; occasionally balance, stoop, kneel, crouch, and crawl; no exposure to environmental irritants such as odors, fumes, dusts, and gases; simple, routine, repetitive tasks; occasional interaction with coworkers, supervisors, and the public; and free of production rate pace.

(TR. 912).

         Based on the finding that Ms. Anderson could not perform her past relevant work, the ALJ proceeded to step five. There, the ALJ presented the RFC limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 944-945). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles. (TR. 945). The ALJ adopted the testimony of the VE and concluded that Ms. Anderson was not disabled based on her ability to perform the identified jobs. (TR. 920).

         III. ISSUES PRESENTED

         On appeal, Ms. Anderson alleges the ALJ erred in failing to properly: (1) evaluate evidence related to Plaintiff’s migraine headaches and (2) evaluate Plaintiff’s subjective complaints. (ECF No. 13:4-13).

         IV. STANDARD OF REVIEW

         This Court reviews the Commissioner’s final “decision to determin[e] whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation omitted).

         While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

         V. THE ALJ’S CONSIDERATION OF EVIDENCE RELATED TO PLAINTIFF’S MIGRAINE HEADACHES

         The record contains evidence from Deaconess Family Care which documents Plaintiff’s treatment for migraine headaches from Dr. Douglas Brant and Advanced Registered Nurse Practitioner Lyn Brant, from January 2011 through October 2014. (TR. 349-375, 377-668, 676-692, 701-896). According to Ms. Anderson, the ALJ erred in failing to properly consider and evaluate: (1) evidence from Nurse Brant that Plaintiff’s migraines were “disabling” and (2) opinions from Dr. Brant regarding Plaintiff’s migraines and associated symptoms and limitations. (ECF No. 13:4-9). The Court agrees.

         A. Evidence from Nurse Brant

          On March 24, 2014, Ms. Anderson was seen by Nurse Brant, complaining of a migraine which rated 7/10 on the pain scale. (TR. 841). In summarizing the visit, Nurse Brant stated that “[Plaintiff’s] migraines are disabling.” (TR. 846). Plaintiff contends the ALJ erred in failing to consider this particular statement from Nurse Brant, ^[2] but the Commissioner disagrees, arguing: (1) the statement from Nurse Brant was not a “medical opinion, ” (2) Nurse Brant was not considered an “acceptable medical source, ” and (3) the statement concerned an issue of disability, which was reserved to the Commissioner. (ECF No. 16:11-13).^[3]

         As a threshold matter, the Court agrees with the Commissioner that Nurse Brant is not considered an “acceptable medical source” and therefore cannot give a “medical opinion” within the meaning of the Commissioner’s regulations. See 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1); SSR 06-3p, 2006 WL 2329939, at *2 (Aug. 9, 2006).^[4]However, Nurse Brant is considered a nonacceptable or “other” medical source, and, as such, her opinion is to be considered as evidence “show[ing] the severity of the individual’s impairment(s) and how it affects the individual’s ability to function.” SSR 06-3p, at *2.

         The Commissioner argues that Nurse Brant’s comment regarding Plaintiff’s headaches being “disabling” involved an issue reserved to the Commissioner, and therefore, is not entitled to “any special significance.” (ECF No. 16:12). The Court agrees that the issue of disability is one reserved to the Commissioner. See SSR 96-5P, 1996 WL 374183, at *3 (July 2, 1996). Even so, “opinions from any medical source on issues reserved to the Commissioner must never be ignored.” SSR 96-5P, 1996 WL 374183, at *3 (July 2, 1996) (emphasis added). Rather, “the ALJ must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.” Lackey v. Barnhart, 127 Fed.App’x 455, 457-458 (10th Cir. 2005). Here, the ALJ completely omitted any discussion of Nurse Brant’s statement that Plaintiff’s headaches were disabling. See TR. 905-20. Such inaction constitutes reversible error. See Victory v. Barnhart, 121 Fed.App’x 819, 825 (10th Cir. 2005) ALJ’s failure to mention treating source’s opinion on issue reserved to the Commissioner was “of course, clear legal error.”).

         B. Evidence from Dr. Brant

         Next, Ms. Anderson argues that the ALJ erred in failing to consider evidence from Dr. Brant regarding Plaintiff’s headaches and associated limitations-namely stress, photophobia, and phonophobia. (ECF No. 13:6-9).^[5] The Court agrees.

         1. The ALJ’s Duty to Consider Opinion Evidence

         Regardless of its source, the ALJ has a duty to evaluate every medical opinion in the record. Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004); 20 C.F.R. § 1527(c). The weight given each opinion will vary according to the relationship between the claimant and medical professional. Hamlin, at 1215. For example, in evaluating a treating physician’s opinion, the ALJ must follow a two-pronged analysis. First, the ALJ must determine, then explain, whether the opinion is entitled to controlling weight. Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).

         This analysis, in turn, consists of two phases. First, an ALJ must consider whether the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and consistent with other substantial evidence in the record. Policy Interpretation Ruling Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions, 1996 WL 374188, at 2 (July 2, 1996) (SSR 96-2p) (internal quotations omitted). If controlling weight is declined, the ALJ must assess the opinion under a series of factors which are considered when assessing any medical opinion, regardless of its source. These factors include: (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. Krausner v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011); 20 C.F.R. § 404.1527.

         Although the ALJ need not explicitly discuss each factor, the reasons stated must be “sufficiently specific” to permit meaningful appellate review. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007); SSR 96-2p, at 5. If the ALJ rejects an opinion completely, he must give “specific, legitimate reasons” for ...