United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
FASHING UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on plaintiff Leroy Tsosie's
Motion to Reverse and Remand to Agency for Rehearing with
Supporting Memorandum (Doc. 17), which was fully briefed
February 13, 2017. See Docs. 21, 22, 23. The parties
consented to my entering final judgment in this case. Docs.
3, 6, 16. Having meticulously reviewed the entire record and
being fully advised in the premises, I find that the
Administrative Law Judge (“ALJ”) failed to
properly weigh the March 25, 2014 medical opinion of treating
physician Dr. Randolph L. Copeland. I therefore GRANT Mr.
Tsosie's motion and remand this case to the Commissioner
for further proceedings consistent with this opinion.
Standard of Review
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). If substantial evidence supports the
Commissioner's findings and the correct legal standards
were applied, the Commissioner's decision stands, and the
plaintiff is not entitled to relief. Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004).
“The failure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that
appropriate legal principles have been followed is grounds
for reversal.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005) (internal quotation marks and
brackets omitted). The Court must meticulously review the
entire record, but may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir.
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. 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.” Id. While the Court
may not reweigh 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).
“‘The possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the] findings
from being supported by substantial evidence.'”
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
Applicable Law and Sequential Evaluation Process
qualify for disability benefits, a claimant must establish
that 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. §§
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. §§ 404.1520, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). At the first four
steps of the evaluation process, the claimant must show: (1)
the claimant is not engaged in “substantial gainful
activity;” (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 (3) the
impairment(s) either meet or equal one of the
Listings of presumptively disabling impairments;
or (4) the claimant is unable to perform his or her
“past relevant work.” 20 C.F.R. §§
404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan,
399 F.3d at 1260-61. If the claimant cannot show that his or
her impairment meets or equals a Listing but proves that he
or she is unable to perform his or her “past relevant
work, ” the burden of proof shifts to the Commissioner,
at step five, to show that the claimant is able to perform
other work in the national economy, considering the
claimant's residual functional capacity
(“RFC”), age, education, and work experience.
Tsosie was born in 1962, earned his GED in 1993, and has past
relevant work as a construction worker and construction
framer. AR 20, 44, 219, 266-67. Mr. Tsosie filed applications for
supplemental security income and disability insurance
benefits on August 26, 2011-alleging disability since January
1, 2011 due to a broken left ankle. AR 219-26, 227-30, 266.
The Social Security Administration (“SSA”) denied
his claims initially on December 2, 2011. AR 80-84. The SSA
denied his claims on reconsideration in two undated letters.
AR 88- 94. Mr. Tsosie requested a hearing before an ALJ. AR
95-98. On January 18, 2013, Dr. Randolph Copeland diagnosed
Mr. Tsosie with degenerative disc disease. AR 452. On May 17,
2013, ALJ John Morris held a hearing. AR 29-33. Mr. Tsosie
asked for a continuance to allow his representative
additional time to prepare, which ALJ Morris granted. AR 32.
On July 16, 2014, ALJ Donna Montano held a hearing. AR 34-56.
ALJ Montano issued her unfavorable decision on October 31,
2014. AR 7-26.
found that Mr. Tsosie met the insured status requirements of
the Social Security Act through September 30, 2013. AR 12. At
step one, the ALJ found that Mr. Tsosie had not engaged in
substantial, gainful activity since January 1, 2011.
Id. At step two, the ALJ found that Mr. Tsosie
suffered from the following severe impairments: status-post
left ankle fracture and degenerative disc disease of the
lumbar spine. Id. At step three, the ALJ found that
neither of Mr. Tsosie's impairments, alone or in
combination, met or medically equaled a Listing. AR 13.
Because the ALJ found that Mr. Tsosie's impairments did
not meet a Listing, the ALJ assessed Mr. Tsosie's RFC. AR
14-19. The ALJ found that Mr. Tsosie had the RFC to perform
light work, except that he is limited to occasional climbing
and crouching. AR 14.
four, the ALJ concluded that Mr. Tsosie was unable to perform
his past relevant work as a construction worker or
construction framer. AR 20. At step five, the ALJ found that
Mr. Tsosie could perform unskilled, light jobs that exist in
significant numbers in the national economy-such as hand
cleaner/polisher, small products assembler, and laundry
folder. AR 20- 21. Consequently, the ALJ found Mr. Tsosie was
not disabled. AR 21. On December 15, 2014, Mr. Tsosie
requested review of the ALJ's unfavorable decision by the
Appeals Council. AR 6. On March 24, 2016, the Appeals Council
denied the request for review. AR 1-5. Mr. Tsosie timely
filed his appeal to this Court on May 31, 2016. Doc.
Mr. Tsosie's Claim
Tsosie raises only one argument for reversing and remanding
this case: (1) the ALJ committed legal error in failing to
apply the treating physician rule to the opinion evidence
from Rudolph L. Copeland, M.D. Doc. 17 at 7. The Commissioner
argues in response that Mr. Tsosie is simply asking the Court
to reweigh the evidence, and that because a reasonable person
could agree with the ALJ's decision, the Court should
affirm it. Doc. 21 at 1-2. Because I agree that the ALJ erred
in analyzing the March 25, 2014 opinion of treating
orthopedic surgeon Dr. Randolph Copeland, I grant Mr.
Tsosie's motion to remand to give the ALJ an opportunity
to remedy her errors.
analyzing whether a treating physician's opinion is
entitled to controlling weight, the ALJ must perform a
two-step process. “The initial determination the ALJ
must make with respect to a treating physician's medical
opinion is whether it is conclusive, i.e., is to be accorded
‘controlling weight, ' on the matter to which it
relates.” Krauser v. Astrue, 638 F.3d 1324,
1330 (10th Cir. 2011) (quoting Watkins v. Barnhart,
350 F.3d 1297, 1300 (10th Cir.2003)). In making this initial
determination, the ALJ must consider whether the opinion
“is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is consistent with the
other substantial evidence in the record.”
Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir.
2007) (citing 20 C.F.R. § 404.1527(d)(2)); Watkins
v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). If
the opinion meets both criteria, the ALJ must give the
treating physician's opinion controlling weight.
Id. To give anything less than controlling weight,
the ALJ must demonstrate with substantial evidence that the
opinion (1) is not “well-supported by medically
acceptable clinical and laboratory diagnostic techniques,
” or (2) is “inconsistent with other substantial
evidence” in the record. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). “Under the regulations,
the agency rulings, and our case law, an ALJ must ‘give
good reasons in [the] notice of determination or
decision' for the weight assigned to a treating
[source's] opinion.” Watkins, 350 F.3d at
1300 (quoting 20 C.F.R. § 404.1527(d)(2) and citing SSR
96-2p, 1996 WL 374188, at *5; Doyal v. Barnhart, 331
F.3d 758, 762 (10th Cir. 2003)).
It is not unusual for a single treating source to provide
medical opinions about several issues; for example, at least
one diagnosis, a prognosis, and an opinion about what the
individual can still do. Although it is not necessary in
every case to evaluate each treating source medical opinion
separately, adjudicators must always be aware that one or
more of the opinions may be controlling while others may not.
Adjudicators must use judgment based on the facts of each
case in determining whether, and the extent to which, it is
necessary to address separately each medical opinion from a
SSR 96-2P (S.S.A. July 2, 1996), 1996 WL 374188, at *2.
ALJ does not assign a treating source's opinion
controlling weight, step two of the analysis requires the ALJ
to apply the six factors listed in the regulations to
determine whether a treating source's opinion should be
rejected altogether or assigned some lesser weight:
I. Examining relationship: more weight is
given to the opinion of a source who has examined the
claimant than to one who has not;
II. Treatment relationship: more weight is
given to the opinion of a source who has treated the claimant
than to one who has not; more weight is given to the opinion
of a source who has treated the claimant for a long time over
several visits and who has extensive knowledge about the
III. Supportability: more weight is given to
a medical source opinion which is supported by relevant
evidence (such as laboratory findings and medical signs), and
to opinions supported by good explanations;
IV. Consistency: the more consistent the
opinion is with the record as a whole, the more weight it
should be given;
V. Specialization: more weight is given to
the opinion of a specialist giving an opinion in the area of
his/her specialty; and
VI. Other factors: any other factors that
tend to contradict or support an opinion.
See 20 C.F.R. §§ 404.1527(c)(1)-(6),
416.927(c)(1)-(6); see also Oldham v. Astrue, 509
F.3d 1254, 1258 (10th Cir. 2007); Watkins, 350 F.3d
at 1301. As the first two factors make clear, even if an ALJ
determines that a treating source opinion is not entitled to
controlling weight, the opinion still is entitled to
deference. SSR ...