Opinion
Civil Action No. 18-cv-3302-WJM
10-19-2020
Mia M. TONDER, Plaintiff, v. Andrew M. SAUL, Commissioner of the Social Security Administration, Defendant.
Frederick W. Newall, Frederick W. Newall, Attorney at Law, Colorado Springs, CO, for Plaintiff. J. Benedict Garcia, U.S. Attorney's Office-Denver, Jessica Milano, Narissa C. Webber, Social Security Administration-Ogc-Denver Office of the General Counsel - Region VIII, Denver, CO, for Defendant.
Frederick W. Newall, Frederick W. Newall, Attorney at Law, Colorado Springs, CO, for Plaintiff.
J. Benedict Garcia, U.S. Attorney's Office-Denver, Jessica Milano, Narissa C. Webber, Social Security Administration-Ogc-Denver Office of the General Counsel - Region VIII, Denver, CO, for Defendant.
ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT
William J. Martínez, United States District Judge
This matter is before the Court on the Commissioner of the Social Security Administration Andrew M. Saul ("Commissioner")’s Motion to Alter or Amend Judgment ("Motion"). (ECF No. 28.) For the reasons set forth below, the Motion is denied.
I. BACKGROUND
On December 21, 2018, after Plaintiff Mia Tonder's claim for supplemental security income was denied by the Commissioner, Plaintiff appealed that decision to this Court. (ECF No. 1.) On January 10, 2020, the Court entered an order vacating the decision of the Commissioner and remanding for further proceedings before the administrative law judge ("ALJ"). (ECF No. 26.) On February 7, 2020, the Commissioner filed the instant Motion, in which he argues that the Court's prior order rests on clear legal error, and asks the Court to vacate the final judgment in this case and affirm his decision denying Plaintiff's claim for supplemental security income. (ECF No. 28.) The Court assumes familiarity with the administrative record, the relevant details of which are set forth only as necessary below.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 59(e) permits a Court to alter or amend a judgment on timely motion by a party. "Rule [59(e)] was adopted to make clear that the district court possesses the power to rectify its own mistakes in the period immediately following the entry of judgment." White v. N.H. Dep't of Emp't Sec. , 455 U.S. 445, 450, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (internal quotation marks and brackets omitted). Accordingly, the Court may amend the judgment in its discretion to correct clear error, including a misapprehension of the controlling law, or to prevent manifest injustice. Servants of the Paraclete v. Does , 204 F.3d 1005, 1012 (10th Cir. 2000).
III. ANALYSIS
In its order vacating the decision of the Commissioner, the Court concluded that certain findings material to the ALJ's determination of Plaintiff's residual functional capacity ("RFC") were not supported by substantial evidence. (ECF No. 26 at 5–14.) The Commissioner argues that this was error.
In its prior order, the Court specifically took issue with the ALJ's sole reason for giving significant weight to the medical opinion of Dr. Paul Barrett, a state-agency medical consultant involved in conducting Plaintiff's initial disability determination. Dr. Barrett concluded that Plaintiff has the following exertional limitations: she can only stand, walk, and sit (with normal breaks) for a total of about 6 hours in an 8-hour workday; frequently lift and/or carry 10 pounds; and occasionally lift and/or carry 20 pounds. (R. at 252–53.) As to postural limitations, Dr. Barrett opined that Plaintiff can frequently balance; occasionally crawl, crouch, kneel, stoop, and climb ramps and stairs; and that Plaintiff can never climb ladders, ropes, or scaffolds. (R. at 253.) The ALJ found Dr. Barrett's "assessment to be a correct reflection of the claimant's abilities to perform work related activities," which is reflected in the ALJ's RFC finding:
[T]he claimant has the residual functional capacity to perform a reduced range of light work as defined in 20 CFR 416.967(b) except the claimant can occasionally carry 20 pounds, and frequently carry 10 pounds. She can stand and/or walk for six hours in an eight hour workday but must use a cane for standing and walking. She can sit for six hours in an eight-hour workday. She can never climb ladders, ropes, or scaffolds. She can only occasionally stoop, kneel, crouch, crawl, or climb ramps and stairs.
(R. at 15.)
The ALJ's rationale for giving significant weight to Dr. Barrett's opinion was as follows:
Dr. Barrett's opinion is consistent with the overall medical evidence of record. For example, the claimant consistently complained about back pain, but as of November 2016, she was just then undergoing appropriate medical therapy for her chronic back pain. Dr. Sandbach noted that the claimant was applying for disability and had never done the suggested physical therapy or pain management and indicated that she was now putting forth the effort. As such, I give significant weight to this opinion.
(R. at 20.)
The Court concluded that substantial evidence did not support the ALJ's determination that Dr. Barrett's opinion is "consistent with the overall medical evidence of record." (ECF No. 26 at 8.) In reaching this conclusion, the Court examined the opinions of Dr. Carmen Wong (a state-agency consultative examiner), Dr. Emily Sandbach (Plaintiff's primary-care physician), and a certified physical therapist ("CPT") who treated Plaintiff. The Court found all three of these opinions to be inconsistent with that of Dr. Barrett. (Id. at 8–13.) Because "consisten[cy] with the overall medical evidence of record" was the ALJ's only stated reason for giving Dr. Barrett's opinion significant weight, the Court further concluded that the ALJ did not properly weigh Dr. Barrett's medical opinion, and vacated the Commissioner's decision on that basis. (Id. at 13–15.)
The Commissioner argues that the Court's analysis was improper for three interrelated reasons: (1) the Court did not consider the fact that the ALJ had afforded little or no weight to the medical opinions which the Court found to be inconsistent with Dr. Barrett's opinion; (2) the Court erred in determining that Dr. Barrett's opinion was inconsistent with those of Dr. Wong and Dr. Sandbach; and (3) the Court erred in limiting its analysis to the medical opinions of record, and should have considered other record evidence.
As the Commissioner points out, the ALJ variously afforded "no weight," "minimal weight," or "little weight" to all aspects of the opinions of Dr. Wong, Dr. Sandbach, and the CPT. The thrust of the Commissioner's first argument is that, because the ALJ essentially discounted these medical opinions, and because the Court did not take issue with the ALJ's weighing of these opinions, any inconsistency between these opinions and Dr. Barrett's should have little bearing on whether substantial evidence supports the ALJ's conclusion that Dr. Barrett's opinion is consistent with the overall medical evidence of record. The Court agrees.
The problem for the Commissioner, however, is that this argument cuts both ways. The Commissioner argues that the opinions of Dr. Wong and Dr. Sandbach, properly understood, are actually consistent with Dr. Barrett's. The Court will assume for purposes of the current Motion that this is true, but as the Commissioner has persuasively argued, the ALJ permissibly discounted these opinions. Thus, if any inconsistency between these opinions and Dr. Barrett's has little bearing on whether substantial evidence supports the ALJ's conclusion that Dr. Barrett's opinion is consistent with the overall medical evidence, by the Commissioner's sound logic, any consistency between these opinions should have little bearing on that determination as well. For this reason, the Commissioner's first argument, standing alone, is not a basis for altering or amending the final judgment in this case. Additionally, because the Court will assume for purposes of this order that the opinions of Dr. Wong and Dr. Sandbach are consistent with that of Dr. Barrett, the Court need not, and will not, address the Commissioner's second argument.
The Commissioner does not argue that the Court erred in determining that the CPT's opinion is inconsistent with that of Dr. Barrett.
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As to the Commissioner's third argument, he contends that in determining whether substantial evidence supported the ALJ's weighing of Dr. Barrett's opinion, the Court erred in looking only to the medical opinions of Dr. Wong, Dr. Sandbach, and the CPT. The Commissioner is correct that under the regulations, medical opinions are just one type of medical evidence that the ALJ should consider. See 20 C.F.R. § 404.1513(a). Medical evidence also includes "medical signs" and "laboratory findings," as well as "evidence from a medical source that is not objective medical evidence or a medical opinion, including judgments about the nature and severity of your impairments, your medical history, clinical findings, diagnosis, treatment prescribed with response, or prognosis." Id. § 404.1513(a)(1) & (3).
Again, however, in support of his conclusion that Dr. Barrett's opinion is consistent with the overall medical evidence of record, the ALJ gave but one example: while Plaintiff had consistently complained about her chronic back pain, she did not begin physical therapy or "pain management" until November 2016. (R. at 20.) Assuming that this single piece of evidence is consistent with Dr. Barrett's opinion, standing alone, it is not enough to constitute substantial evidence supporting the conclusion that Dr. Barrett's opinion is consistent with the overall medical evidence of record.
Thus, the Commissioner's third argument is premised on the assumption that it was incumbent on the Court to comb through an 868-page administrative record and speculate as to what else the ALJ might have thought was consistent with Dr. Barrett's opinion. But as the Tenth Circuit has held in at least three published decisions, an ALJ's failure to specify the portions of the record with which a medical opinion is purportedly consistent or inconsistent is reversible error. See Langley v. Barnhart , 373 F.3d 1116, 1122–23 (10th Cir. 2004) ; Hamlin v. Barnhart , 365 F.3d 1208, 1217 (10th Cir. 2004) ; Krauser v. Astrue , 638 F.3d 1324, 1331 (10th Cir. 2011). While it is true that these cases involved the ALJ's failure to properly weigh the opinion of a treating physician, and Dr. Barrett was not one of Plaintiff's treating physicians, the Court concludes that the reasoning in these cases applies equally here.
A treating medical source's opinion must be given "controlling weight" if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and "consistent with other substantial evidence in the record." Langley , 373 F.3d at 1119 ; 20 C.F.R. § 404.1527(c)(2). Thus, an ALJ is required to determine whether a treating medical source's opinion is consistent with other substantial evidence in the record. Langley , 373 F.3d at 1119. An ALJ must support a decision not to give a treating source's opinion controlling weight by specifically identifying portions of the record that are purportedly inconsistent with that opinion. Id. at 1122–23. Failure to do so is reversible error because it precludes a court from being able to "meaningfully review" that finding. Id.
In contrast, an ALJ is not generally required to explicitly address whether a non-treating medical source's opinion is consistent with other evidence in the record. See Oldham v. Astrue , 509 F.3d 1254, 1258 (10th Cir. 2007). But in this case, consistency was the only factor the ALJ chose to address in weighing Dr. Barrett's opinion. Given that the ALJ chose not to consider any other factor in this analysis, the Court holds that the Tenth Circuit's reasoning in Langley, Hamlin , and Krauser applies equally here: without a sufficient explanation as to why Dr. Barrett's opinion, even though it is not the opinion of treating medical source, is "consistent with the overall medical evidence of record," the Court cannot meaningfully evaluate that finding. See Langley , 373 F.3d at 1122–23. Indeed, speculating as to what the ALJ might have thought was consistent with Dr. Barrett's opinion may improperly take the Court into the realm of providing post hoc rationalizations of the ALJ's decision. See Haga v. Astrue , 482 F.3d 1205, 1207–08 (10th Cir. 2007). Arguably, the Tenth Circuit's reasoning in Langley , 373 F.3d at 1122–23, suggests that if it is "obvious" that certain portions of the record are consistent with a medical opinion, and if those portions of the record together constitute substantial evidence supporting a finding of consistency (or inconsistency, depending on the circumstances), a reviewing court should not reverse for the ALJ's failure to specifically point the court to that evidence. Even so, in the Court's view, there is insufficient record evidence which is so obviously consistent with Dr. Barrett's opinion such as to save the ALJ's failure to provide a sufficiently specific reason for affording that opinion the weight that he did.
First, as to medical-opinion evidence, even if the opinions of Dr. Wong and Dr. Sandbach are consistent with Dr. Barrett's, the Court will not disturb the ALJ's presumably proper decision to afford those opinions little or no weight. The other opinions in the record spoke only to Plaintiff's cognitive limitations, so it is far from clear that they can reasonably be considered consistent with Dr. Barrett's, who opined only as to Plaintiff's physical limitations. And in any event, the ALJ afforded those opinions minimal weight as well. (R. at 19–20.)
As to non-opinion evidence, the Commissioner points to the ALJ's discussion of Plaintiff's physical examinations that were "within normal limits." However, almost all of this evidence (for example, treatment notes indicating that Plaintiff's "skin is warm" or that Plaintiff is "oriented to person, place, and time") is completely irrelevant to Dr. Barrett's assessment of Plaintiff's physical limitations, which arise primarily from her back pain and obesity. The Commissioner does not explain what about this evidence is consistent with Dr. Barrett's opinion, and it is not otherwise obvious.
The Commissioner also points to results from two MRIs that he asserts reflect "stable and mild findings." But even if this evidence is obviously consistent with Dr. Barrett's opinion, the Court does not believe that these two imaging results—alone or in combination with anything else the Court may consider—constitute substantial evidence supporting the ALJ's weighing of that opinion. While substantial evidence review is a deferential standard, this evidence is not enough for a "reasonable mind" to "accept as adequate" the ALJ's conclusion that Dr. Barrett's opinion is consistent with the overall medical evidence of record. Adams v. Chater , 93 F.3d 712, 715 (10th Cir. 1996).
In sum, the Court remains of the view that the ALJ failed to provide "specific, legitimate" reasons justifying the weight he gave to Dr. Barrett's opinion. See Chapo v. Astrue , 682 F.3d 1285, 1291 (10th Cir. 2012). While "[i]t may be possible to assemble support for this conclusion from parts of the record cited elsewhere in the ALJ's decision, ... that is best left for the ALJ himself to do in the proceedings on remand." Krauser , 638 F.3d at 1331 (footnote omitted). Accordingly, the Court cannot conclude that it committed clear legal error, and the Commissioner's Motion is therefore denied. See Servants of the Paraclete , 204 F.3d at 1012. The Court does not intend by this order to suggest the result that should be reached on remand; rather, the Court encourages the parties as well as the ALJ to consider the evidence and the issues anew.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS that the Commissioner's Motion to Amend or Alter Judgment (ECF No. 28) is DENIED.