OPINION AND ORDER
CHARLES B. GOODWIN, Magistrate Judge.
Plaintiff Tessa N. Robnett brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") denying Plaintiff's application for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The parties have consented to the jurisdiction of a United States Magistrate Judge. Upon review of the administrative record
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed her SSI application on November 24, 2008, alleging disability because of fibromyalgia, depression, and thyroid problems beginning in February 2008. R. 420-23, 450, 455. Following denial of Plaintiff's application initially and on reconsideration, a hearing was held before Administrative Law Judge John Volz (referred to herein as "ALJ Volz") on February 25, 2010. R. 240-66. ALJ Volz issued an unfavorable decision on March 18, 2010. R. 278-87. In February 2012, the SSA Appeals Council vacated ALJ Volz's decision and remanded Plaintiff's case for reconsideration in light of new and material evidence related to her alleged mental impairment. R. 292-94.
ALJ Lantz McClain (referred to herein as "the ALJ") held a hearing on March 4, 2013, at which Plaintiff and a vocational expert ("VE") testified. R. 187-213. On July 1, 2013, the ALJ held a supplemental hearing "to obtain the benefit of a medical expert['s]" opinion regarding Plaintiff's mental impairments and limitations. R. 175-85. Ashok Khushalani, a board-certified psychiatrist, testified at the hearing as a medical expert after reviewing Plaintiff's medical records available through May 2012. R. 178-84, 419. The ALJ issued an unfavorable decision on August 30, 2013. R. 159-69.
As relevant here, a person is "disabled" within the meaning of the Social Security Act if he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A); accord 20 C.F.R. § 416.905(a). The Commissioner uses a five-step sequential evaluation process to determine entitlement to disability benefits. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20 C.F.R. § 416.920. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 24, 2008. R. 161. At step two, the ALJ found that Plaintiff had "the following severe impairments: obesity, back pain, fibromyalgia, bipolar disorder, and a personality disorder, unspecified." R. 161. At step three, the ALJ determined that Plaintiff's severe impairments did not meet or equal any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 161-63.
The ALJ next assessed Plaintiff's residual functional capacity ("RFC") based on all of her impairments. R. 163-68. He found that Plaintiff's RFC allowed her to perform light work, subject to certain limitations. R. 163, 169. More specifically, and as relevant to this appeal, the ALJ found that Plaintiff "is able to perform simple, repetitive tasks, relate to supervisors and co-workers only on a superficial basis and should not work with the public." R. 163; see Pl.'s Br. (Doc. No. 16) at 2-11. At step four, the ALJ found that Plaintiff had no relevant past work experience. R. 168.
At step five, the ALJ considered whether there are jobs existing in significant numbers in the national economy that Plaintiff—in view of her age, education, work experience, and RFC—could perform. R. 168-69. Relying on the VE's testimony concerning the degree to which Plaintiff's "additional limitations" eroded the unskilled light occupational base, the ALJ concluded that Plaintiff was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy," such as housekeeping cleaner or merchandise marker. R. 169; see R. 207-11. Therefore, the ALJ concluded that Plaintiff had not been disabled within the meaning of the Social Security Act between November 24, 2008, and August 30, 2013. R. 159, 169. The Appeals Council declined to review that decision, R. 1, and this appeal of the Commissioner's final decision followed.
STANDARD OF REVIEW
Judicial review of the Commissioner's final decision is limited to determining whether factual findings are supported by substantial evidence in the record as a whole and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (internal quotation marks omitted). "A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004) (internal quotation marks omitted). The court "meticulously examine[s] the record as a whole," including any evidence "that may undercut or detract from the ALJ's findings," "to determine if the substantiality test has been met." Wall, 561 F.3d at 1052 (internal quotation marks omitted). While a reviewing court considers whether the Commissioner followed applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
Plaintiff argues on appeal that the ALJ did not properly consider all of the relevant evidence regarding the limitations caused by Plaintiff's mental impairments, including by failing to give sufficient weight to opinions of treating psychiatrist Alzira Vaidya, MD, and placing undue reliance on opinions of nonexamining medical expert Ashok Khushalani, MD. Plaintiff further argues that, as a result of these errors, the ALJ's mental RFC determination is not supported by substantial evidence in the record. See Pl.'s Br. at 2-11; Pl.'s Reply Br. (Doc. No. 23) at 1-3.
A. Evaluation of Medical Source Opinions
Specific SSA regulations govern the consideration of opinions by "acceptable medical sources." See 20 C.F.R. §§ 416.902, .913(a). The Commissioner generally gives the greatest weight to the medical opinions of a "treating source," which includes a physician or psychiatrist who has "provided [the claimant] with medical treatment or evaluation" during a current or past "ongoing treatment relationship" with the claimant. Id. §§ 416.902, .927(c); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).
When considering the medical opinion of a claimant's treating source, the ALJ must first determine whether the opinion should be given "controlling weight" on the matter to which it relates. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003); 20 C.F.R. § 416.927(c)(2); SSR 96-2p, 1996 WL 374188, at *1-4 (July 2, 1996). The opinion of a treating source is given such weight if it is both well-supported by medically acceptable clinical or laboratory diagnostic techniques and not inconsistent with the other substantial evidence in the record. Watkins, 350 F.3d at 1300 (applying SSR 96-2p, 1996 WL 374188, at *2); 20 C.F.R. § 416.927(c)(2); SSR 96-2p, 1996 WL 374188, at *2 ("[W]hen all of the factors are satisfied, the [ALJ] must adopt a treating source's medical opinion irrespective of any finding he or she would have made in the absence of the medical opinion.").
A treating source opinion not afforded controlling weight is still entitled to deference. See Watkins, 350 F.3d at 1300; SSR 96-2p, 1996 WL 374188, at *4. "In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight." SSR 96-2p, 1996 WL 374188, at *4. That an opinion is not given controlling weight does not resolve the second, distinct assessment—i.e., what lesser weight should be afforded the opinion and why. See Watkins, 350 F.3d at 1300-01. In this second inquiry, the ALJ weighs the medical opinion using a prescribed set of regulatory factors:
Watkins, 350 F.3d at 1301 (internal quotation marks omitted); 20 C.F.R. § 416.927(c)(2)-(6). The ALJ's decision "`must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'" Watkins, 350 F.3d at 1300 (quoting SSR 96-2p, 1996 WL 374188, at *5).
The ALJ also must weigh other medical source opinions using the relevant factors, keeping in mind that "[t]he regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the [claimant] become weaker." SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996); see also 20 C.F.R. § 416.927(c)(3), (e). Relevant here, the weight an ALJ assigns to the opinion of a physician or psychiatrist who did not examine the claimant "will depend on the degree to which [these sources] provide explanations for their opinions" and "the degree to which these opinions consider all of the pertinent evidence in [the record], including opinions of treating and other examining sources." 20 C.F.R. § 416.927(c)(3). Indeed, nonexamining source opinions "can be given weight only insofar as they are supported by evidence in the case record, considering such factors as the supportability of the opinion in the evidence" and the other regulatory factors. SSR 96-6p, 1996 WL 374180, at *2; see also Lee v. Barnhart, 117 F. App'x 674, 678 (10th Cir. 2004) ("It follows that if the ALJ relies heavily on such opinions . . . the opinions must themselves find adequate support in the medical evidence." (citing SSR 96-6p, 1996 WL 374180, at *2)). Again, the ALJ "must explain the weight he is giving to" a nontreating source opinion if the ALJ relies on that opinion. Hamlin v. Barnhart, 365 F.3d 1208, 1223 (10th Cir. 2004); accord 20 C.F.R. § 416.927(e)(2)(ii).
B. Dr. Vaidya's Treatment of Plaintiff and Opinions Regarding Her Mental Limitations
To be entitled to SSI, Plaintiff must show that she was "disabled" between November 24, 2008, the date she filed her application, and August 30, 2013, the date the ALJ issued his decision. R. 159, 169; see Romero v. Barnhart, 135 F. App'x 172, 175-76 (10th Cir. 2005) (citing 20 C.F.R. §§ 416.330, .335, .1476(b)(1)). Plaintiff's medical records document a history of depression, anxiety, bipolar disorder, and maladaptive, impulsive behavior. See generally R. 564, 665, 693-716, 717-19, 911-27, 960, 972-73, 1021-25, 1030-37. Her healthcare providers have prescribed various combinations of psychotropic medications, as well as counseling and coping-skills training, to manage those conditions since at least December 2006. See, e.g., R. 638-40, 651-53, 660-64, 668-70, 947, 950, 955, 958, 970 (medication only); R. 697-98, 700, 717-18, 719-20, 852-58, 882-86, 908-09, 911-27, 1021-22, 1026-29, 1030-37 (medication and counseling).
On March 31, 2009, Plaintiff went to Edwin Fair Community Mental Health Center ("Edwin Fair") because she was "having difficulty dealing with daily functioning." R. 717. After initial intake evaluations on that date and in early June 2009,
In March 2010, Dr. Vaidya endorsed two functional assessment forms prepared by an Edwin Fair case manager. R. 1021-22, 1024-25 (Exs. 26F, 27F); see also R. 165, 167 (the ALJ finding that Dr. Vaidya "signed off" on these assessments). Through the assessment forms, Dr. Vaidya opined that Plaintiff's bipolar disorder, severe depression, and "other suspected mental condition," R. 1022, caused marked limitations in Plaintiff's ability to:
and extreme limitations in Plaintiff's ability to:
See R. 1024-25. The March 2010 assessments elaborated on Plaintiff's "problems with disorganized thought processes, concentration, impulse control, memory, and obsessions," stating that Plaintiff
R. 1021. Noting that Plaintiff's "prognosis for recovery [was] low" because she has had "mental health problems since she was a child," the March 2010 assessments stated that "a small degree" of "improvement may be seen with medication." R. 1021-22.
Plaintiff next returned to Dr. Vaidya's office on July 13, 2010. R. 883. Dr. Vaidya noted that Plaintiff did "not appear medication compliant" and that Plaintiff reported she had stopped taking Abilify. R. 883; see also R. 1038. Dr. Vaidya observed that Plaintiff's mental status was within normal limits except for her "depressed" and "anxious" mood. R. 883. Dr. Vaidya prescribed a new bipolar medication, Lamictal, and refilled Plaintiff's Trazodone. R. 883.
After an absence,
On February 23, 2012, Plaintiff was discharged from Edwin Fair's care due to lack of contact with the facility. R. 908-09. Plaintiff returned to Edwin Fair on April 22, 2013. R. 1030-34, 1037. At that time, she reported psychiatric symptoms and behavioral problems similar to those she had reported in 2009 and 2011. Compare id., with R. 694-97, 704, 707 (Mar. and June 2009), and R. 911-13 (Aug. 2011).
C. The ALJ's Findings
The ALJ gave "little weight" to the opinion of Dr. Vaidya, as stated through the March 2010 assessments, that Plaintiff's mental impairments caused marked and extreme limitations. R. 167. The ALJ explained:
R. 167 (quoting R. 1030). In so finding, the ALJ also relied on the opinion of nonexamining consultant Dr. Khushalani, giving that opinion "great weight." R. 166, 168.
Ultimately, the ALJ included in the RFC the mental limitations that Plaintiff could "perform simple, repetitive tasks," "relate to supervisors and co-workers only on a superficial basis," and "should not work with the public." R. 163. The ALJ stated that this RFC accommodated severe "mental impairments [that] are moderate in nature" and was "supported by" Dr. Khushalani's testimony and the Edwin Fair records "as indicated" in his written decision. R. 168.
D. Whether the ALJ's Evaluation of Dr. Vaidya's Opinions Complied with the Relevant Legal Standards and Is Supported by Substantial Evidence
As noted, the regulations set out a mandatory standard for weighing medical source opinions about a claimant's impairments. See Watkins, 350 F.3d at 1300-01; 20 C.F.R. § 416.927(c). The ALJ's decision falls short of that standard—and the corollary requirement that each finding be supported by substantial evidence—in several respects.
First, the decision does not reflect whether the ALJ recognized that the opinions in the March 2010 assessments were those of a treating psychiatrist. Properly evaluating a medical opinion requires the ALJ to determine who gave the opinion, whether that person is an "acceptable medical source," and if so whether that source's "treatment relationship" with the claimant might entitle his or her medical opinion to special deference under the regulations. See Doyal, 331 F.3d at 762-63; 20 C.F.R. § 416.927(c)(2); cf. Winick v. Colvin, 2017 WL 33544, *2, *3-4 (10th Cir. Jan. 4, 2017) (rejecting possibility of harmless error where ALJ misidentified one of claimant's physicians "as an examining, rather than a treating" source). Plaintiff asserts that Dr. Vaidya was her "treating" psychiatrist at the time the March 2010 assessments were made, having seen Plaintiff at least three times before that date. See Pl.'s Br. at 6; R. 719-20, 856, 857; see also 20 C.F.R. §§ 416.902, .927(c)(2). Defendant Commissioner does not dispute that assertion. See Def.'s Br. (Doc. No. 21) at 14-17. And the Tenth Circuit has held that a functional assessment prepared by a case manager and signed by a psychiatrist must, absent evidence to the contrary, be considered the medical opinion of the psychiatrist and afforded the level of deference otherwise appropriate under the regulations. See McGoffin v. Barnhart, 288 F.3d 1248, 1251-52 (10th Cir. 2002) (recognizing assessment prepared by case manager and undisputedly endorsed by treating psychiatrist as treating source opinion and finding ALJ erred by rejecting opinion based upon "unfounded doubt that [the psychiatrist] agreed with the assessment he signed"). While the ALJ acknowledged that Dr. Vaidya had "sign[ed] off on" the March 2010 assessments, he at no point recognized that the opinions in those assessments must be considered as those of a treating source. R. 167. Nor can the undersigned infer such recognition through the discussion that the ALJ did provide, which omits the question of whether Dr. Vaidya's opinions were entitled to controlling weight and reflects no difference in the approaches applied to weigh the March 2010 assessments (presumptively a treating source opinion) and the testimony of Dr. Khushalani (a nonexamining medical source opinion), or for that matter the December 2011 case manager assessment (a nonacceptable medical source opinion). R. 167-68.
Second, the ALJ's reliance on Dr. Khushalani's July 2013 testimony is flawed. Dr. Khushalani testified that Plaintiff can "do simple tasks" and can have only "occasional public contact." R. 180. Compare id., with R. 168 (RFC determination that Plaintiff can "perform simple, repetitive tasks"; can "relate to supervisors and co-workers only on a superficial basis"; and cannot "work with the public"). Because Dr. Khushalani did not examine Plaintiff, the ALJ could credit his opinions "only insofar as they are supported by evidence in the case record." SSR 96-6p, 1996 WL 374180, at *2; see also Lee, 117 F. App'x at 678. Dr. Khushalani stated that he based his opinions on the December 2011 case manager assessment, which Dr. Khushalani said "suggests some amount of progress, perhaps with medications and compliance" when compared to the marked and extreme limitations assessed by Dr. Vaidya in March 2010. R. 180-82. Dr. Khushalani stated that his opinions followed the December 2011 assessment "exactly," R. 181, but that assessment includes additional and greater limitations, e.g., that Plaintiff cannot "concentrate for longer than 15 minutes on work related items," "has the ability to follow simple instructions for only a short amount of time," "has severe memory problems," if stressed "will yell at coworkers and become violent," and will "yell at others if [s]he starts to feel overwhelmed or act out violently." R. 885-86. Even if the December 2011 assessment was accepted as proof of progress from March 2010 to December 2011—rather than the two being considered as separate opinions, one entitled to deference as that of a treating psychiatrist and the other issued by a person who the regulations do not credit as an "acceptable medical source," 20 C.F.R. § 416.913(a)—the progress shown was not sufficient to constitute "support in the case record" for Dr. Khushalani's nonexamining opinion.
Third, the record does not support the ALJ's conclusion that certain observations and reports made at Edwin Fair in April and May 2013 are "inconsistent" with Dr. Vaidya's March 2010 assessments such that they "indicate that [Plaintiff's] mental status ha[d] improved" since March 2010. See R. 167. The ALJ sets forth the following specific examples of such "inconsistencies":
R. 167 (internal quotation marks omitted) (citing R. 1027-29, 1030-31, 1033, 1037).
Almost all of these cited observations and reports from April and May 2013 are similar to corresponding observations and reports made at the time of the March 2010 assessments. Plaintiff's April 2013 living arrangement and daily activities cited by the ALJ are comparable to what Plaintiff reported in the months before Dr. Vaidya's March 2010 assessments. See R. 709 (June 3, 2009 report that Plaintiff was "[l]iving with friends and has a boyfriend"), 1021 (March 2010 assessment noting that Plaintiff rarely left residence and had few daily activities other than playing videogames). While an unknown Edwin Fair employee noted in the April 2013 intake evaluation that Plaintiff experienced "moderate" problems in various areas, the same is true for the intake evaluation made at Edwin Fair in March/June 2009. R. 692-93. And on both of those occasions the evaluator assigned Plaintiff a Global Assessment of Functioning ("GAF") score of 50, which represents "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." R. 693, 1035; Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed., text rev. 2000) (DSM-IV). Both intake evaluations also contain the same quoted language: "The prognosis is good and measurable improvement in functioning is expected during this initial authorization period." R. 696, 1037. Finally, the observations that the ALJ cites from the April and May 2013 treatment sessions at Edwin Fair regarding a positive mood and affect also appear in notes from before and after Dr. Vaidya's March 2010 assessments. See R. 857 (July 21, 2009 progress note), 883 (July 13, 2010 progress note).
A finding that a claimant's medical condition "later improve[d]" can be a valid reason to afford little weight to a treating source's earlier, more restrictive medical opinion. Kruse v. Astrue, 436 F. App'x 879, 882-83 (10th Cir. 2011). That finding, however, must be supported by substantial evidence. "`In choosing to reject [a] treating physician's assessment, an ALJ may not make speculative inferences from medical reports and may reject a treating physician's opinion outright only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion.'" McGoffin, 288 F.3d at 1252 (emphasis omitted) (quoting Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)). Here, the observations and reports cited by the ALJ do not by themselves reflect a change of condition so clear or significant as would support the ALJ's decision to give little weight to Dr. Vaidya's March 2010 assessments.
In sum, the ALJ's analysis of the March 2010 assessments of Dr. Vaidya failed to follow proper legal standards and relied on findings not supported by substantial evidence in the record. The decision of the Commissioner is reversed and the case remanded for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). A separate judgment shall be entered.
R. 180. But see R. 179 (Dr. Khushalani's testimony that he reviewed Exhibits 1F through 27F, which contain Dr. Vaidya's and other Edwin Fair providers' observations of Plaintiff's mental status on eight visits between March 31, 2009, and November 1, 2011, as well as the December 2011 case manager assessment).