United States District Court, D. Kansas
HOLLIE L. BLACKWELL, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
Hollie L. Blackwell claims that she became disabled on April
15, 2012. She suffers from fibromyalgia, chronic pain
syndrome, and degenerative disc disease. She also is being
treated for depression and anxiety. In the past, plaintiff
worked as a stocker, security guard, and police response
advocate. She left her most recent job in April 2012. She
filed this action pursuant to Title II of the Social Security
Act (“Act”), 42 U.S.C. § 405(g), claiming a
period of disability and disability insurance benefits.
Administrative Law Judge (“ALJ”) found that
plaintiff was not disabled in a decision issued in August
2015, which stands as the final decision of the Commissioner
of Social Security. Plaintiff argues that the ALJ erred in
several ways: (1) He failed to find that plaintiff's knee
pain and migraine headaches were severe impairments; (2) he
failed give controlling weight to the opinion of
plaintiff's treating psychiatrist, Dennis Owens; and (3)
he engaged in improper credibility analysis. 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 Fed.Appx. 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. Owens's
Owens 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 Fed.Appx. 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.
Owens. During that time period (February 2013 through June
2015), he saw plaintiff at least twenty-seven times-according
to Dr. Owens, every one to three months. The record appears
to generally reflect monthly visits, but many times the
handwriting is difficult to decipher. Dr. Owens reported that
plaintiff suffered from sleep disturbance, mood disturbance,
emotional lability, recurrent panic attacks, decreased
energy, anhedonia or pervasive loss of interests, difficulty
concentrating, social withdrawal, and generalized persistent
anxiety. He opined that plaintiff had moderate restrictions
in activities of daily living; marked restrictions in
maintaining social functioning; marked deficits of
concentration, persistence, or pace; and repeated episodes of
deterioration or decompensation in work-like settings.
Further, Dr. Owens indicated that plaintiff would miss work
more than four days per month as a result of her impairments.
But the ALJ gave Dr. Owens's opinion little weight,
finding it inconsistent with the overall medical evidence of
record, including Dr. Owens's own progress notes. The ALJ
gave considerable weight to the opinions of two
psychologists-George W. Stern, Ph.D and Carol L. Adams,
Psy.D. He also gave significant weight to the opinion of
Stanley I. Mintz, Ph.D. All three of these physicians acted
as nonexamining psychological consultants.
noted, the ALJ found that Dr. Owens's opinion was
inconsistent with his treatment notes. According to the ALJ,
Dr. Owens's treatment notes indicated that plaintiff was
more capable than Dr. Owens opined in his medical source
statement. The ALJ believed that Dr. Owens relied too heavily
on plaintiff's subject reports of symptoms and
limitations-reports that the ALJ found not credible. He also
noted that the handwriting on the Mental Impairment
Questionnaire was different from the handwriting in Dr.
Owens's treatment notes. The ALJ did not, however,
inquire about any handwriting discrepancy.
took the first required step in evaluating Dr. Owens'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). Neither did the ALJ explain why the reports of
the non-treating physicians outweighed that of Dr. Owens. 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.
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.
IS THEREFORE ORDERED that the decision of the Acting
Commissioner of Social Security is reversed and remanded
pursuant to sentence four of 42 U.S.C. § 405(g) ...