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Hays v. Social Security Administration

United States District Court, D. New Mexico

March 6, 2019

JOHNNA HAYS, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, NANCY BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          ORDER OVERRULING DEFENDANT'S OBJECTIONS AND ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          JUDITH HERRERA, UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on the Social Security Administrative Record (ECF No. 14) filed May 3, 2018, in support of Plaintiff Johnna Hays' (“Plaintiff”) Complaint (ECF No. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title II disability insurance benefits; (2) the Magistrate Judge's Proposed Findings and Recommended Disposition (“PFRD”) (ECF No. 30), filed February 11, 2019; and (3) Defendant's Objections to Proposed Findings and Recommended Disposition (“Objections”) (ECF No. 31), filed February 25, 2019. The Court, having considered the pending Motion and Objections, the record, and the relevant law, finds that Defendant's Objections are not well taken and will overrule them, adopt the Magistrate Judge's PFRD, and grant Plaintiff's Motion.

         I. Introduction[1]

         On May 21, 2018, this Court issued an Order of Reference referring Plaintiff's Motion to United States Magistrate Judge Kirtan Khalsa for a recommended disposition. (ECF No. 20.) The Magistrate Judge filed a PFRD pursuant to the Order of Reference on February 11, 2019, recommending that the Court grant Plaintiff's Motion. (ECF No. 30.) Defendant timely filed Objections to the PFRD on February 25, 2019, and a response is not required. (ECF No. 31.) Plaintiff's Motion, the Magistrate Judge's PFRD, and Defendant's Objections are now before the Court.

         II. Analysis

         When a party files timely written objections to a magistrate judge's recommendation on a dispositive matter, the district court must conduct a de novo review, and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). De novo review requires the district judge to consider relevant evidence in the record and not merely to review the magistrate judge's recommendation. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “[A] party's objections to the magistrate judge's [PFRD] must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, & Contents, 73 F.3d at 1060.

         In the PFRD, Judge Khalsa recommended remand on the ground that the ALJ did not adequately evaluate the opinions of Plaintiff's treatment providers in accordance with the governing legal standards. (ECF No. 30 at 14-22.) Specifically, she determined that the ALJ failed to provide the Court with a sufficient basis to determine that the ALJ's reasons for rejecting the opinions of Plaintiff's treating source physician and her two treating therapists accorded with the governing legal principles, and that the rationale provided by the ALJ for rejecting those opinions was not supported by substantial evidence. (ECF No. 30 at 22.) Defendant objects to the PFRD arguing that: (1) the ALJ's decision was consistent with the opinions of Drs. Brimberg, Mihm, Simutis, and Adamo, and other evidence in the record; (2) Dr. Sievert's and LPAT Zomerhuis' opinions were unreliable because they opined that Plaintiff had extreme and work preclusive limitations even after she had returned to work; (3) the ALJ sufficiently evaluated the opinions of Plaintiff's treating sources; and (5) the ALJ's opinion was supported by substantial evidence and was not based on cherry-picked evidence. (ECF No. 31 at 1-4)

         The Court has considered Defendant's Objections and the relevant law, and, based on a de novo review of the record, finds that the Objections are without merit, and will adopt the Magistrate Judge's PFRD in whole.

         A. That the ALJ's decision is Consistent with the opinions of Drs. Brimberg, Mihm, Simutis, and Adamo Does Not Excuse Her Failure to Properly Evaluate the Opinions of Plaintiffs' Treatment Providers

         Defendant objects to the PFRD on the ground that that the ALJ's decision to reject the opinions of Plaintiff's treating psychiatrist, Dr. Sievert and her treating therapists, LPAT Zomerhuis and LPCC Rabka, was supported by the opinions of Drs. Brimberg, Mihm, Simutis, and Adamo. (ECF No. 31 at 2.) Dr. Brimberg evaluated Plaintiff once in September 2012. (ECF No. 30 at 13.) The examination lasted for fifteen minutes. (ECF No. 30 at 13.) Drs. Mihm, Simutis, and Adamo were consultative examiners who reviewed Plaintiff's records, but who neither examined, nor treated her. (AR. 85-92, 109-21, 660-64.) Dr. Sievert was Plaintiff's treating psychiatrist for more than two years. (ECF No. 30 at 7) LPCC Rabka and LPAT Zomherhuis were Plaintiff's therapists. (ECF No. 30 at 7-8.) LPCC Rabka saw Plaintiff seven times in 2013, and LPAT Zomherhuis treated Plaintiff twenty-four times from July 2013 through September 2014. (ECF No. 30 at 8.)

         Dr. Sievert was a “treating source” and a specialist in the area in which his opinion was given. (ECF No. 30 at 15, 17.) Pursuant to the governing regulations, the medical opinion of a treating source, particularly one who is specialist on the issue to which his opinions relate, and who has examined social security claimant is generally given more weight than the opinion of a medical source who has not examined her. 20 C.F.R. § 404.1527(c)(1), (5). This is because “these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations[.]” 20 C.F.R. § 404.1527(c)(2). Moreover, a treating doctor's opinion must be accorded controlling weight if it “is well-supported and not inconsistent with the other substantial evidence in the case record.” SSR 96-2p, 1996 WL 374188, at *1. While the ALJ may decide to give less than controlling weight to a treating source's opinion, she must make her reasons for doing so “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, ” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007), guided, generally, by the six factors[2] enumerated in Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003). The Court agrees with the Magistrate Judge's conclusion that the ALJ's decision does not satisfy these standards. (ECF No. 30 at 16-18.)

         While the ALJ was entitled to consider the fact that the medical opinions of Drs. Brimberg, Mihm, Simutis, and Adamo were inconsistent with those offered by Dr. Sievert as a basis for giving Dr. Sievert's opinions less than controlling weight, in so doing, she also was required to discuss other substantial evidence in the record-including the consistency of Dr. Sievert's opinions with those offered by Plaintiff's treating therapists, among other considerations. 20 C.F.R. § 404.1527(e) (indicating that medical or psychological consultative examiners' opinions are governed by 20 C.F.R. § 404.1513(a)); 20 C.F.R. § 404.1513(a)(2) (defining categories of evidence, including “[a] medical opinion” which “is a statement from a medical source about what [a claimant] can still do despite [her] impairments” and whether she has impairment-related limitations or restrictions); see Watkins, 350 F.3d at 1301 (requiring the ALJ to consider, among other things, the degree to which the physician's opinion is supported by relevant evidence, and the consistency between the opinion and the record as a whole); Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (stating that the ALJ is required to discuss the significantly probative evidence that she rejects). As set forth in the PFRD, it is not clear that the ALJ's decision comports with these legal standards. (ECF No. 30 at 16.)

         Relatedly, the opinions of Plaintiff's treating therapists as, “other sources, ” with “greater knowledge of [her] functioning over time” may, under some circumstances, outweigh the opinion of a medical source. SSR 06-03p, 2006 WL 2329939, at *6. (ECF No. 30 at 19.) While the ALJ may not necessarily have erred in rejecting the opinions of LPCC Rabka and LPAT Zomherhuis in favor of the opinions of Drs. Brimberg, Mihm, Simutis, and Adamo, the Court agrees with the Magistrate Judge's conclusion that the ALJ's reasons for doing so were not properly supported by citations to substantial evidence in the record or by a clear application of the governing legal principles. (ECF No. 30 at 19-22.) On remand, should the ALJ reject the opinions of LPCC Rabka and LPAT Zomerhuis, the ALJ's reasoning should be supported by substantial evidence in the record and should reflect the ALJ's application of governing legal standards, particularly those set forth in SSR 06-03p, 2006 WL 2329939, at *4-5, to these opinions.

         B. Defendant's Reliability Objection to the September 2016 Opinions ...


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