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Social Security ALJ Failed to Consider Treating Doctor Opinions

Daniell v. Astrue, Case No. 09-2310 (C.A. 10, Jun. 29, 2010)

Linda J. Daniell appeals from an order of the district court affirming the Commissioner’s decision denying her application for Social Security benefits. This case involves a small administrative record with a limited amount of medical evidence. Ms. Daniell submitted records from her two treating physicians, Dr. Julian Venegas and Dr. Michael Murphy. The remaining records are limited to consultative examinations and an assessment form that was prepared by a non-examining agency physician after he reviewed the records from one of the consultative examinations. After reviewing the records and holding a hearing, the Administrative Law Judge (ALJ) determined that Ms. Daniell had the residual functional capacity (RFC) to return to her past work as a secretary.

Ms. Daniell asserts that the ALJ’s RFC determination was flawed because the ALJ did not properly consider the opinions of her treating physicians. We agree.

The ALJ’s RFC determination appears to be based on the opinion of the agency’s non-examining medical consultant and conflicts with the opinions of Ms. Daniell’s treating physicians. When an ALJ considers medical opinions, the opinion of a non-examining physician is generally entitled to the least weight of all and the opinion of a treating physician is generally entitled to the most weight. The ALJ did not follow the sequential analysis for considering treating physician opinions, did not seek to develop the record further before rejecting those opinions, and did not offer any legally sufficient justification for favoring the opinion of the non-examining agency physician over the opinions of the treating physicians. Because of these legal errors, we must reverse and remand for further proceedings.

I. Background


Ms. Daniell filed an application for disability insurance benefits on December 1, 2004, alleging that she became disabled on October 11, 2004, due to an injury to her left ankle. Because Ms. Daniell had not received treatment for her ankle injury since 2000, Ms. Daniell was examined by a consultative examiner, Dr. John C. Lund, in January 2005. Dr. Lund confirmed that she had suffered an injury to her left ankle. He noted that her ankle was swollen and painful to the touch and her range of motion in that ankle was limited to about five degrees of flexion and extension, but he did not provide an assessment of her functional capacity. In February 2005, Dr. Edward Bocian, a state agency medical consultant, reviewed Ms. Daniell’s medical records and completed a form entitled “Physical Residual Functional Capacity Assessment.” Admin. R. at 93.
 

 

Judge(s): Briscoe, Tymkovich, Gorsuch
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Administrative Law , Civil Procedure
 
Circuit Court Judge(s)
Mary Briscoe
Neil Gorsuch
Timothy Tymkovich

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Michael D. Armstrong
Francesca Jane MacDowell Martone Law Firm

 
Defendant Lawyer(s) Defendant Law Firm(s)
Manuel Lucero, Esq. Office of the United States Attorney
Oneil Brown Social Security Administration
Mary Lin Social Security Administration

 

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Click the maroon box above for a formatted PDF of the decision.
-4- the alj next considered dr. murphy's opinion, noting that dr. murphy reasons for the limitations they assessed. dr. venegas or dr. murphy were inconsistent with `other substantial evidence.' acceptable clinical and laboratory diagnostic techniques.")). it is the alj's injections. (continued...) opinion, using only those parts that are favorable to a finding of nondisability." crawl, and crouch, although those opinions were inconsistent with the opinions of she was concerned about not having health insurance and therefore she wanted to bowen, 844 f.2d 748, 750-52 (10th cir. 1988) (explaining five-step process for on it for the portion of the rfc that ms. daniell could sit for six hours a day and why the claimant would not be able to lift up to ten pounds; and his opinion was -13- must give it controlling weight. her right foot. she should never climb ropes, ladders or scaffolds, again of ankle pain. at that visit, she also had him complete two forms where he explain what weight, if any, she was giving dr. venegas's opinion.1 before briscoe, chief judge, tymkovich, and gorsuch, from the alj's decision itself."). this new evidence was considered by the assessments provided by dr. venegas or dr. murphy. in considering the opinions of ms. daniell's treating physicians, the alj ms. daniell's rfc." aplt. br. at 25. further noted that "[l]ike dr. venegas, [dr. murphy] provided no specific reason than the opinions of dr. venegas and dr. murphy. the alj was critical of the although the alj stated that ms. daniell's rfc assessment was consistent alj relied exclusively on the medical consultant's rfc assessment in making the in march and once for a follow-up in august. she also went to see dr. mark opinion of a non-examining physician is generally entitled to the least weight of rather, the alj should give the treating physicians an opportunity to provide the administrative law judge (alj) determined that ms. daniell had the residual findings are supported by substantial evidence in the record and whether the and may be entitled to controlling weight. if a treating source's robinson, to deference and the alj must give good reasons in his or her decision for the evidence in this case is limited. when both treating physicians adopt similar pain medication. in september 2005, dr. venegas completed two forms that id. (quotations and citations omitted, emphasis added). as in robinson, the alj concluding that she was not disabled at step four of the analysis. see williams v. be used to support the alj's decision when it was not before the alj. see haga her ankle injury since 2000, ms. daniell was examined by a consultative additional needed information is readily available." id. (citing 20 c.f.r. of social security administration, clerk of court ms. daniell filed an application for disability insurance benefits on alj. after the hearing, the alj determined that ms. daniell suffered from the ms. daniell should be restricted to standing or walking less than two hours in an agree. we can properly review the alj's determination on appeal." id. at 1300. if the linda j. daniell, physicians as to ms. daniell's exertional and non-exertional limitations in favor michael j. astrue, commissioner -11- unanimously that oral argument would not materially assist the determination of and failed to provide sufficient reasons for this conclusion, and then failed to weight he ultimately assigns those opinions. id. instead, her rejection of the treating physician opinions appears based on her own of no more than six hours, can stand and walk for a total of no more opinions, and did not offer any legally sufficient justification for favoring the lay opinion." robinson v. barnhart, 366 f.3d 1078, 1082 (10th cir. 2004). the 2008--four months after the alj's decision.3 -2- dr. murphy further limited ms. daniell to no kneeling, stooping, crawling, or medical consultant, reviewed ms. daniell's medical records and completed a form december 1, 2004, alleging that she became disabled on october 11, 2004, due to although this new evidence is now o'dell v. shalala, 44 f.3d 855, 858-59 (10th cir. 1994), this new evidence cannot the alj further rejected dr. venegas's opinion that ms. daniell "would have residual functional capacity in initial claims," explains: is well-supported by medically acceptable clinical and laboratory diagnostic wait until her disability and insurance issues were resolved before proceeding rejecting the treating physician's opinion, noting that "[t]he alj's decision opinion of the non-examining agency physician over the opinions of the treating a reason for his opinion that the claimant in that case was unable to work. see -6- treating physicians, did not give specific reasons for the functional limitations he eight-hour workday because the alj's rfc assessment provided that ms. daniell crouching. the alj's rfc determination tracks the rfc assessment provided by 404.1512(e)(1) and 416.912(e)(1) ("we will seek additional evidence or the treating physicians. ms. daniell did not have any impairment or combination of impairments that individual examinations, such as consultative examinations or brief analysis we outlined in watkins. see 350 f.3d at 1300-01. in the decision, the entitled "physical residual functional capacity assessment." admin. r. at 93. in the record. see id. "a finding at this stage (as to whether the opinion is either alj erred in assessing ms. daniell's rfc. we will not reach the remaining -10- the alj did not follow the sequential analysis for considering treating physician reasons for why ms. daniell's condition would limit her functional abilities in contends that "the alj failed to show that the medical assessments by either entered for the court the alj appeared to give dr. venegas's opinion some weight by relying did not properly consider the opinions of ms. daniell's treating physicians. first, order and judgment* consultative examinations. after reviewing the records and holding a hearing, the correct legal standards were applied." doyal v. barnhart, 331 f.3d 758, 760 views of consulting physicians or those who only review the medical records and united states court of appeals all the necessary information, or does not appear to be based on medically the alj's consideration of the opinions of dr. venegas and dr. murphy is entitled to less weight than that of a treating physician, and the therefore ordered submitted without oral argument. this order and judgment is [t]he claimant can lift and carry up to ten pounds, can sit for a total suffered an injury to her left ankle. he noted that her ankle was swollen and plaintiff-appellant, entitled to the least weight of all. when the alj in that case stated that the treating physician's records did not give unsupported or inconsistent with other substantial evidence) is necessary so that examiner, dr. john c. lund, in january 2005. dr. lund confirmed that she had had checked the boxes indicating that ms. daniell was unable to stand or walk her standing/walking to less than two hours in an eight-hour workday. responsibility to seek additional evidence from a treating physician under these 1 recontact a medical source, including a treating physician to determine if we note that in its response brief on appeal, the government attempts to with the opinions of her treating physicians, dr. venegas and dr. murphy. both should have been evaluated based solely on the reasons stated in the decision"). assessed her physical and non-exertional limitations. alj did not give controlling weight to the opinion of dr. venegas or dr. murphy ms. daniell's alleged admissions or the rationale articulated by the government, physicians. because of these legal errors, we must reverse and remand for further outweighed the treating physician opinions. speculation. "in choosing to reject the treating physician's assessment, an alj alj did not identify any contradictory or substantial medical evidence that states that ms. daniell "can stand for 15 minutes at a time and a total of two to alj determines that the opinion is deficient in both of these respects, then it is of these doctors limited ms. daniell's lifting to less than five pounds and limited -14- five degrees of flexion and extension, but he did not provide an assessment of her appeals council when it was reviewing the alj's decision but the appeals council due to her ankle impairment. in october and november 2005, dr. venegas -8- the medical consultant." admin. r. at 20. in making the rfc assessment, the elisabeth a. shumaker for such severe work restrictions based on [ms. daniell's] ankle condition." id. further development of the record before rejecting their opinions. the medical in general, treating source opinions should be given more weight than the "when a treating physician's opinion is inconsistent with other medical we conclude that the alj did not follow the correct legal standards in than five pounds, explaining "[t]hat physician gave no particular reason why the opinion of the non-examining medical consultant over the opinions of v. degenerative posttraumatic arthrosis. the alj concluded, however, that circuit judges. treating physician's opinion outright only on the basis of contradictory medical social security ruling 96-8p, 1996 wl 374184, at *7 (july 2, 1996). ms. daniell dr. julian venegas and dr. michael murphy. the remaining records are limited painful to the touch and her range of motion in that ankle was limited to about inadequate to determine if the claimant is disabled, an alj is required to in robinson, we remanded the case under virtually identical circumstances brackets omitted). the alj did not explain why the opinion of the consultative commissioner's decision denying her application for social security benefits. format. compare admin. r. at 94-95 with id. at 103, 167. although the medical after examining the briefs and appellate record, this panel has determined haga, 482 f.3d at 1207-08; see also robinson, 366 f.3d at 1084-85 (rejecting functional restrictions should have been included in the alj's assessment of -9- part of the record because ms. daniell submitted it to the appeals council, see 2 attempted to alleviate ms. daniell's ankle pain by administering steroid injections (d.c. no. 1:08-cv-01088-cg) of this case on remand. we reverse the district court's decision and obtained from the objective medical findings alone or from reports of ms. daniell's own admissions that she could lift up to ten pounds and stand for contains a conflict or ambiguity that must be resolved, the report does not contain consultant provided some narrative on his form, see id. at 94-95, he, like the determination was "consistent with the opinions of the consultative examiner and but he observed no significant improvement in ms. daniell's condition after the pounds, could stand/walk for two hours, and could occasionally stoop, kneel, as we explained in watkins, when considering a treating source opinion, an we agree that the alj erred in assessing ms. daniell's rfc because she her residual functional capacity (rfc), in finding that she could return to her past social security ruling 96-8p, which provides guidance for "assessing the opinions of the treating physicians. third, the alj improperly favored the because that part of the opinion "appears to have been based on [ms. daniell's] alj went on to reject dr. venegas's opinion that ms. daniell could lift no more but can occasionally climb ramps and stairs, and balance, stoop, clarification from your medical source when the report from your medical source tenth circuit barnhart, 365 f.3d 1208, 1215 (10th cir. 2004) (internal quotation marks and of the opinion of the medical consultant who did not examine ms. daniell. functional capacity. in february 2005, dr. edward bocian, a state agency the alj did not properly consider the opinions of her treating physicians. we kneel, crouch, and crawl occasionally. she must avoid concentrated ms. daniell asserts that the alj's rfc determination was flawed because ultimately concluded that the new evidence did "not provide any new clinical or provide justification for the alj's rfc determination by arguing that the treating alj adopted the medical consultant's opinion that ms. daniell could lift up to ten united states court of appeals proceedings. claimant's ankle condition should prevent lifting of more than five pounds, or first noted that dr. venegas had opined that ms. daniell was able to sit for at not binding precedent, except under the doctrines of law of the case, res judicata, see id. because neither the alj nor the appeals council expressly relied on see id. laboratory findings which would warrant a change in the [alj's] decision." exposure to unprotected heights and hazardous moving machinery. individual's impairment(s) is well-supported by medically acceptable what weight, if any, the opinion deserves, considering certain factors identified in never examine the claimant. see robinson, 366 f.3d at 1084. as we explained in no. 09-2310 hospitalizations. the opinion of an examining physician is generally a medical record from a consultative doctor's examination that took place in june circuit judge robinson v. barnhart, 366 f.3d 1078, 1083 (10th cir. 2004). ultimate rfc determination. compare admin. r. at 17 with id. at 94-97. two to three hours. see aplee. br. at 29, 31. these alleged admissions are part of district court's attempt to supply possible reasons for giving less weight to or circumstances. see robinson, 366 f.3d at 1084. adopt post-hoc rationalizations to support the alj's decision that are not apparent had also given his opinion "by filling in a form with checked boxes" and that he kneeling, stopping, crouching, or crawling. the alj ultimately concluded that linda j. daniell appeals from an order of the district court affirming the ii. discussion -5- hours during the workday, and she could not lift even five pounds. id. the alj -7- may not make speculative inferences from medical reports and may reject a in this case erred in rejecting the opinions of ms. daniell's treating physicians in the alj did not follow the sequential analysis for considering treating physician on remand, the evidence may properly be considered. robinson, 366 f.3d at 1084. "if evidence from the claimant's treating doctor is to consultative examinations and an assessment form that was prepared by a filed remand the case to the district court with instructions to remand the case to the three hours in an 8 hour period," and "can lift 10 pounds." admin. r. at 185. finally, the alj improperly discounted the opinions of the treating opinions, did not seek to develop the record further before rejecting those medical opinions from treating sources about the nature and severity examiner and the non-examining medical consultant should be given more weight finally, the alj implicitly rejected the portion of dr. venegas's opinion that v. astrue, 482 f.3d 1205, 1207 (10th cir. 2007) ("[t]his court may not create or consistent with fed. r. app. p. 32.1 and 10th cir. r. 32.1. review of the medical records from ms. daniell's consultative examination in treating physicians for checking boxes on forms without providing specific with surgery. in may 2007, ms. daniell went back to dr. murphy complaining of an individual's impairment(s) are entitled to special significance the alj's rfc determination appears to be based on the opinion of the evidence, the alj's task is to examine the other physicians' reports to see if they opinions as outlined in watkins v. barnhart, 350 f.3d 1297 (10th cir. 2003). with the other substantial evidence in the case record, the adjudicator the appeals council denied review, making the alj's decision the than two hours and continuously for 15 minutes, can push and pull next, from march to october 2005, dr. venegas treated ms. daniell for in discounting dr. murphy's opinion that ms. daniell could only sit for four with the upper extremities in a manner consistent with the strength commissioner's final decision. ms. daniell appealed the alj's decision to the timothy m. tymkovich reports of symptoms to [dr. venegas], which are not fully credible." id. at 21. the alj made the following rfc determination: for the tenth circuit -3- the alj also rejected dr. murphy's opinion that ms. daniell could do no functional capacity (rfc) to return to her past work as a secretary. reasons for such severe functional limitations triggered the alj's duty to seek june 29, 2010 relevant work as a secretary, and in assessing her pain and credibility. evaluating claims for disability benefits). ms. daniell's two treating physicians. in march 2006, dr. murphy began treating ms. daniell. she saw him twice see id. defendant-appellee. district court and that court affirmed the alj's decision. this appeal followed. could stand and/or walk up to two hours per day. considering the opinions of ms. daniell's treating physicians and therefore the the alleged admissions are contained in the section of the medical record the regulations. see id. at 1300-01. treating physician opinions are still entitled 3 not entitled to controlling weight. see id. the alj's next step is to determine a secretary. as a result, the alj denied ms. daniell's application for benefits, -12- physician opinions were entitled to less weight because they conflicted with of ms. daniell's functional capabilities. accordingly, it appears as though the the treating physician's opinion is given particular weight because before discussing the treating physician opinions, the alj explained that her rfc equaled any impairment listed in 20 c.f.r. part 404, subpart p, appendix 1 and second, the alj's statement that dr. venegas and dr. murphy did not give with that of the consultative examiner, that doctor did not provide any assessment second, the alj failed to seek further development of the record before rejecting clinical and laboratory diagnostic techniques and is not inconsistent deficient in several respects. first, the alj failed to follow the sequential certain areas, but the medical consultant provided his assessment in the same "we review the commissioner's decision to determine whether the factual dr. murphy's opinion was entitled to "little weight." id. evidence and not due to his own or her own credibility judgments, speculation or medical opinion on an issue of the nature and severity of an given by means of checked boxes, without any explanation." admin. r. at 20-21. non-examining agency physician after he reviewed the records from one of the the alj presumably agreed with this portion of dr. venegas's opinion. but the (10th cir. 2003). on appeal, ms. daniell argues that the alj erred in assessing assessed. moreover, the medical consultant's opinion was based solely on a this case involves a small administrative record with a limited amount of medical favor of the opinion of the non-examining medical consultant without providing a even two hours out of an eight-hour workday, she could not sit for even four (d. n.m.) * all and the opinion of a treating physician is generally entitled to the most weight. had optimized all of her other treatment options. ms. daniell told dr. seibel that agency's non-examining medical consultant and conflicts with the opinions of the agency denied ms. daniell's application for benefits initially and on functional limitations, the alj should not reject those limitations out of hand. titled "history of functional status (as reported by claimant)," which the non-examining medical consultant. following severe impairment: status-post left ankle fracture, with severe we cannot use this new evidence as a basis to affirm the alj's decision. see (...continued) legally sufficient explanation for doing so.2 reconsideration. at her request, ms. daniell received a de novo hearing before an reflected his assessment of ms. daniell's physical and non-exertional limitations alj must first determine if the opinion is entitled to controlling weight. 350 f.3d ms. daniell's treating physicians. when an alj considers medical opinions, the this appeal. see fed. r. app. p. 34(a)(2); 10th cir. r. 34.1(g). the case is i. background of his unique perspective to the medical evidence that cannot be evidence. ms. daniell submitted records from her two treating physicians, hours a day. but "[t]he alj is not entitled to pick and choose from a medical issues raised by ms. daniell because they may be affected by the alj's resolution seibel in august 2006. he recommended surgery based on his opinion that she ankle osteoarthritis with pain. he prescribed anti-inflammatory medication and at 1300. in making this determination, an alj must consider whether the opinion admin. r. at 17. as ms. daniell explains, the alj's rfc determination conflicts that she had the residual functional capacity to perform her past relevant work as and collateral estoppel. it may be cited, however, for its persuasive value did not discuss or rely on these alleged admissions. the appeals council techniques and whether the opinion is consistent with other substantial evidence january 2005, and did not include a review of any of the medical records or commissioner for further proceedings in accordance with this decision. 2 severe problems working a full work day or work week because of her ankle pain" an injury to her left ankle. because ms. daniell had not received treatment for opinion of an agency physician who has never seen the claimant is as such, the opinions were entitled to controlling weight and their respective outweigh the treating physician's report, not the other way around." hamlin v. least six hours out of an eight-hour work day, which supported sedentary work. limitations just stated and with the lower extremities except just with


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