United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
Muntaha Hassan claims that she became disabled on May 10,
2011. She suffers from type II diabetes with diabetic
retinopathy, carpal tunnel syndrome and other diabetic
neuropathies, obesity, and various mental impairments
diagnosed to include depressive disorder and anxiety
disorder. Plaintiff has not engaged in substantial gainful
activity since 2007. She filed this action pursuant to Title
XVI of the Social Security Act (“Act”), 42 U.S.C.
§§ 1381 et seq., requesting supplemental security
Administrative Law Judge (“ALJ”) found that
plaintiff was not disabled in a decision issued in March
2015, which stands as the final decision of the Commissioner
of Social Security. Plaintiff argues that the ALJ erred in
several ways: (1) He did not properly evaluate the medical
opinion evidence with respect to plaintiff's mental
impairments; (2) he failed to properly assess plaintiff's
residual functional capacity; and (3) the testimony of the
vocational expert does not support a finding that plaintiff
is not disabled. If the ALJ improperly evaluated the medical
opinion evidence regarding plaintiff's mental
impairments, then the court must remand the case. After
reviewing the record, the court makes the following rulings.
court applies a two-pronged review to the ALJ's decision:
(1) Are the factual findings supported by substantial
evidence in the record? (2) Did the ALJ apply the correct
legal standards? Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (citation omitted). The court's review
is limited; it may not reweigh the evidence or replace the
ALJ's judgment with its own. Bellamy v.
Massanari, 29 F.App'x 567, 569 (10th Cir. 2002)
(citing Kelley v. Chater, 62 F.3d 335, 337 (10th
Cir. 1995)). In evaluating whether a claimant is disabled,
the ALJ engages in a five-step process. See Williams v.
Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (identifying
five-step process) (citations omitted). The court will not
repeat that process here, though, as the only issue the court
reaches is whether the ALJ properly weighed Dr. Danielle
Skirchak is plaintiff's treating psychiatrist.
“‘Treating source medical opinions are [ ]
entitled to deference, ' and must be either given
controlling weight or assigned some lesser weight
‘using all of the factors provided in 20 C.F.R.
404.1527 and 416.927.'” Andersen v.
Astrue, 319 F.App'x 712, 718 (10th Cir. 2009)
(quoting Social Security Ruling (“SSR”) 96-2p,
1996 WL 374188, at *4)). The ALJ must give the opinion
controlling weight if it is (1) “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques”; and (2) “not inconsistent with the
other substantial evidence” in the record. 20 C.F.R.
§ 404.1527(c)(2). If the opinion fails either of these
tests, then the ALJ must consider a number of factors to
determine the weight to give the opinion:
(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 v. Barnhart, 350 F.3d 1297, 1301 (10th Cir.
2003). The ALJ's opinion need not explicitly discuss each
factor, see Oldham v. Astrue, 509 F.3d 1254, 1258
(10th Cir. 2007), but it must be clear that the ALJ
considered every factor, see 20 C.F.R. §
404.1527(c)(2) (“[W]e apply the factors listed in
paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well
as the factors in paragraphs (c)(3) through (c)(6) of this
section in determining the weight to give the
opinion.”); SSR 96-2p, 1996 WL 374188, at *4
(“Treating source medical opinions . . . must be
weighed using all of the factors provided . . . .”).
When a treating physician's opinion is inconsistent with
other medical evidence, the ALJ's task is to examine the
other physicians' reports to see if they outweigh the
treating physician's reports. Goatcher v. United
States Dep't of Health & Human Servs., 52 F.3d
288, 289-90 (10th Cir. 1995).
record includes over two years of treatment records by Dr.
Skirchak. During that time period (January 2013 through March
2015), she saw plaintiff at least fourteen times. She
diagnosed plaintiff with anxiety, PTSD, panic disorder, and
major depression, severe, with psychotic features. But the
ALJ gave Dr. Skirchak's opinion little weight, finding it
inconsistent with and unsupported by the medical evidence of
record. The ALJ gave great weight to the opinions of two
psychologists- George W. Stern, Ph.D. and Lauren Cohen, Ph.D.
Both Dr. Stern and Dr. Cohen acted as nonexamining
found that Dr. Skirchak's opinion was inconsistent with
her treatment notes. According to the ALJ, Dr. Skirchak's
treatment notes indicated that plaintiff was more capable
than Dr. Skirchak had opined in her medical source statement.
Dr. Cohen sent a request in November 2013 for Dr. Skirchak to
explain the discrepancy-i.e., whether plaintiff's
condition had suddenly and severely deteriorated between her
last examination and the time Dr. Skirchak completed the
medical source statement. The ALJ believed that Dr.
Skirchak's response was inadequate and non-responsive.
But as plaintiff points out, there is no indication that Dr.
Skirchak received the request from Dr. Cohen, as the letter
from Dr. Skirchak actually was provided in response to a
separate, in-person request from plaintiff. Indeed, the
letter was dated the same date as plaintiff's personal
request, and it was addressed “To whom it may
concern” instead of to Dr. Cohen.
took the first required step in evaluating Dr. Skirchak's
opinion-he considered whether it was consistent with the rest
of the record. But once he found it inconsistent, he failed
to evaluate any of the six factors identified above (except
consistency and supportability). Neither did the ALJ explain
why the reports of the non-treating physicians outweighed
that of Dr. Skirchak (other than to summarily state that they
were consistent with the medical evidence of record). The
court does not require factor-by-factor analysis, see
Oldham, 509 F.3d at 1258, but the ALJ must give some
indication that he considered the applicable factors in
addition to consistency and supportability.
these reasons, the court must remand the case for further
consideration by the ALJ. The court need not consider
plaintiff's other arguments, as they may be subject to
change upon further consideration by the ALJ.
THEREFORE ORDERED that the decision of the Acting
Commissioner of Social Security is reversed and remanded for