Raygor v. Saul

RANDY JAMES RAYGOR, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Defendant.

Civil Action No. 18-cv-02192-NRN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 6, 2019

OPINION AND ORDER

N. Reid Neureiter United States Magistrate Judge

The government determined that Plaintiff Randy James Raygor was not disabled for purposes of the Social Security Act for the period from November 19, 2013 through August 22, 2017, the date of the decision. (AR¹ 40-41.) Mr. Raygor has asked this Court to review that decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c). (Dkt. #11.)

Standard of Review

In Social Security appeals, the Court reviews the decision of the administrative law judge ("ALJ") to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007)."Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009) (internal quotation marks omitted). The Court "should, indeed must, exercise common sense" and "cannot insist on technical perfection." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985). Ultimately, the Court must review the record as a whole, and "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also Casias, 933 F.2d at 800-01.

Background

At the second step of the Commissioner's five-step sequence for making determinations,² the ALJ found that Mr. Raygor "has the following severecombination of impairments: schizoaffective disorder; depression; anxiety; and, substance (cannabis) abuse." (AR 34.) The ALJ found that these "medically determinable impairments cause more than minimal functional limitations on basic work-related activities and are considered severe." (AR 34.)

The ALJ then determined at step three that Mr. Raygor "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments" in the regulations. (AR 34-35.) Because she concluded that Mr. Raygor did not have an impairment or combination of impairments that meets the severity of the listed impairments, the ALJ found that Mr. Raygor has the following residual functional capacity ("RFC"):

. . . to perform a full range of work at all exertional levels but with the following nonexertional limitations: can perform simple unskilled work activities; can solve problems and can perform work without distracting others or being distracted by others; can interact appropriately with coworkers, supervisors and the public but cannot perform tasks requiring teamwork; and, can maintain attendance in order to perform sustained work activities.

(AR 35.)

The ALJ concluded that Mr. Raygor had past relevant work as a cook helper. (AR 39.) At step five, the ALJ found that, in comparing Mr. Raygor's residual functional capacity with the physical and mental demands of being a cook helper, Mr. Raygor was able to perform as a cook helper as it is generally performed in the national economy, and that there are other jobs existing in the national economy that Mr. Raygor is able to perform. (AR 39.) Accordingly, Mr. Raygor was deemed not to have been under a disability from the alleged onsetdate of November 19, 2013, through August 22, 2017, the date of the decision. (AR 40-41.)

Analysis

Mr. Raygor argues that the ALJ's decision should be reversed because she improperly weighed the medical opinion evidence and improperly assessed the consistency of Mr. Raygor's statements with the medical evidence. The Court agrees.

I. Medical Opinion Evidence

An ALJ must "give consideration to all the medical opinions in the record" and "discuss the weight" she assigns to them. Mays v. Colvin, 739 F.3d 569, 578 (10th Cir. 2014) (internal quotation marks omitted). "An ALJ must evaluate every medical opinion in the record, although the weight given each opinion will vary according to the relationship between the disability claimant and the medical professional." Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (citing 20 C.F.R. § 401.1527(d)). The applicable regulations governing the consideration of medical opinions distinguish among "treating" physicians, "examining" physicians, and "nonexamining" (or "consulting") physicians. See 20 C.F.R. § 416.927(c). Generally, "the opinions of physicians who have treated a patient over a period of time or who are consulted for purposes of treatment are given greater weight than are reports of physicians employed and paid by the government for the purpose of defending against a disability claim." Sorenson v. Bowen, 888 F.2d 706, 711 (10th Cir. 1989). See also Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003).

The evaluation of a treating source's opinion is a two-step process. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). "The initial determination the ALJ must make with respect to a treating physician's medical opinion is whether it is conclusive, i.e., is to be accorded 'controlling weight,' on the matter to which it relates." Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). "Such an opinion must be given controlling weight if it is well-supported by medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record." Id. Second,

Even if a treating opinion is not given controlling weight, it is still entitled to deference; at the second step in the analysis, the ALJ must make clear how much weight the opinion is being given (including whether it is being rejected outright) and give good reasons, tied to the factors specified in the cited regulations for this particular purpose, for the weight assigned.

Id. The factors the ALJ must consider are:

(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.

Allman v. Colvin, 813 F.3d 1326, 1331-32 (10th Cir. 2016). Neither the regulations nor the Court require a factor-by-factor recitation, but the ALJ's findings must be "sufficiently specific to make clear" the weight assigned to the source opinion and the reasons for that weight. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (internal quotation marks omitted).

Mr. Raygor argues that the ALJ rejected the opinion of his treating physician in favor of two non-examining physicians' opinions, while engaging in improper picking and choosing. See Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004) ("It is improper for the ALJ to pick and choose among medical reports, using portions of evidence favorable to his position while ignoring other evidence."). See also Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) ("[I]n addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects."); Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001)

Here, the ALJ considered opinions from three sources: treating psychiatrist Dr. Leone (AR 705-18); Dr. Robert Pelc, Ph.D (AR 795-799), who answered medical interrogatories for the ALJ, and Dr. Gayle Frommelt, Ph.D., the State agency's psychological consultant (AR 90-100 & 102-112). The Court will address these opinions below.

A. Dr. Leone

Mr. Raygor argues Dr. Leone's opinion was entitled to deference because he was Mr. Raygor's treating physician. Dr. Leone was Mr. Raygor's treating physician from 2014 through 2017,³ and signed two separate reports on April 24,2017. One report addressed Mr. Raygor's "Schizophrenia, Paranoid and Other Psychotic Mental Disorders" (AR 705) and the second addressed his "Affective Disorders." (AR 711.) These reports are forms that Dr. Leone was asked to fill out, and each report states "This document only concerns psychotic mental disorders. Other impairments and limitations resulting from a combination of impairments should be considered separately." (AR 706 & 712.) The ALJ found fault with Dr. Leone's "opinion," describing it as "somewhat internally inconsistent" because he found marked deficits in social functioning and maintaining concentration, persistence and pace in one report while finding moderate functional limitations with regard to work related mental activities in another report. (AR 35.) The ALJ also found that the report failed to address the impact of "the claimant's well-documented and admitted substance use on his overall mental functioning." (AR 35.)

An ALJ is required to go further to examine the record of a treating physician's actual treatment of a claimant to determine whether the evidence supported the limitations endorsed in his opinion. Phillips v. Colvin, 67 F. Supp. 3d...