United States District Court, D. Kansas
CHARLES J. POPE, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
Charles J. Pope claims that he became disabled in June 2011.
He suffers from several impairments, including post-traumatic
stress disorder, diabetes, coronary artery disease, and
hypertension. In the past, plaintiff worked as a high school
math teacher. He moved from being a fulltime instructor to
substitute teaching, but stopped working in May 2012.
Plaintiff 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
Administrative Law Judge (“ALJ”) found that
plaintiff was not disabled in a decision issued in December
2015, which stands as the final decision of the Commissioner
of Social Security. Plaintiff argues that the ALJ erred in
two ways: (1) He did not properly evaluate plaintiff's
mental residual functional capacity (“RFC”) and
transferrable skills; and (2) he did not properly evaluate
the medical opinion evidence, including the opinion of
plaintiff's treating psychiatrist, Dr. Sheeja Kumar. The
court has reviewed the record, and agrees with plaintiff on
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 issues the
court reaches are whether the ALJ properly evaluated
plaintiff's transferrable skills and Dr. Kumar's
plaintiff's RFC and transferrable skills. The ALJ found
that while plaintiff could not perform his former job, he had
transferrable skills of oral/written communication and
attention to detail. Based on these transferrable skills, the
ALJ found that plaintiff could perform the job of a mail
handler, an administrative clerk, or a job tracer. But when a
claimant is aged sixty or over (as plaintiff is),
“there must be very little, if any, vocational
adjustment required in terms of tools, work processes, work
settings, or the industry.” 20 C.F.R. Pt. 404, subpt.
P, App. 2 § 202.00(f) (2016). The ALJ is therefore
required to obtain vocational “testimony comparing
[plaintiff's] transferrable skills and the duties of the
new jobs to support a finding that [plaintiff] would have an
advantage over the other workers applying for the same
jobs.” Robinson v. Colvin, No. 12-0355, 2013
WL 5407857, at *5 (N.D. Okla. Sept. 25, 2013) (citing
Jensen v. Barnhart, 436 F.3d 1163, 1168 (10th Cir.
2005)). Here, the ALJ did not elicit any testimony about the
duties of a mail handler, administrative clerk, or job
tracer. The vocational expert provided only the job titles.
She did not provide information about the tools, work
processes, work settings, or the industries. Absent this
evidence, the ALJ could not properly evaluate how much
vocational adjustment would be required for these positions.
Remand for this analysis is required.
the ALJ's evaluation of the medical opinion evidence. Dr.
Kumar 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).
Kumar treated plaintiff at least twelve times, over the
course of two-and-a-half years. Dr. Kumar opined that
plaintiff suffered from PTSD and a Major Depressive Disorder,
with mood disturbance, emotional lability, persistent
irrational fears, hostility and irritability, feelings of
worthlessness, social isolation, and generalized persistent
anxiety. Dr. Kumar noted that plaintiff is moderately
restricted in activities of daily living, has a marked
restriction in maintaining social functioning, and has a
moderate deficit in maintaining adequate concentration,
persistence, or pace. Further, Dr. Kumar indicated that
plaintiff would miss work more than four days per month as a
result of his impairments. But the ALJ gave Dr. Kumar's
opinion limited weight, finding it inconsistent with Dr.
Kumar's own treatment notes and plaintiff's
activities of daily living. The ALJ gave great weight to the
opinions of two psychologists-George W. Stern, Ph.D and Carol
L. Adams, Psy.D. Both of these physicians acted as
non-examining psychological consultants.
took the first required step in evaluating Dr. Kumar'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-examining psychological consultants outweighed that
of Dr. Kumar. He merely noted that they were consistent with
plaintiff's treatment, mental status examinations, and
plaintiff's activities of daily living. 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
these reasons, the court must remand the case for further
consideration by the ALJ. Plaintiff asks the court to direct
an award of benefits, but the court declines to so order. The
court determines that, at a minimum, additional testimony by
a vocational expert and fact-finding by the ALJ are
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) ...