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Tsosie v. Berryhill

United States District Court, D. New Mexico

September 12, 2017

LEROY TSOSIE, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          LAURA FASHING UNITED STATES MAGISTRATE JUDGE.

         THIS 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.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[2] 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. 2007).

         “Substantial 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)).

         II. Applicable Law and Sequential Evaluation Process

         To 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. §§ 404.1505(a), 416.905(a).

         When 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[3] 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. Id.

         III. Procedural History

         Mr. 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.[4] 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.

         The ALJ 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.

         At step 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. 1.[5]

         IV. Mr. Tsosie's Claim

         Mr. 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.

         VI. Analysis

         A. Relevant Law

         In 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 single source.

SSR 96-2P (S.S.A. July 2, 1996), 1996 WL 374188, at *2.

         If the 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 claimant's impairment(s);
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 ...


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