Valdez v. Massanari , 62 F. App'x 838 ( 2003 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    FEB 20 2003
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    RUBEN VALDEZ,
    Plaintiff - Appellant,
    v.                                                 No. 01-1531
    (D.C. No. 00-N-1429)
    JO ANNE B. BARNHART, *                            (D. Colorado)
    Commissioner of Social Security
    Administration,
    Defendant - Appellee.
    ORDER AND JUDGMENT         **
    Before O’BRIEN and PORFILIO , Circuit Judges, and       KANE , *** Senior District
    Judge.
    *
    On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of
    Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
    Appellate Procedure, Ms. Barnhart is substituted for Larry G. Massanari as the
    appellee in this action.
    **
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    ***
    The Honorable John L. Kane, Senior District Judge, United States District
    Court for the District of Colorado, sitting by designation.
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument.
    Plaintiff Ruben Valdez appeals from the denial of his claim for social
    security disability insurance and supplemental security income (SSI) benefits,
    arguing that the administrative law judge (ALJ) improperly assessed his physical
    and mental impairments. We have jurisdiction under 
    28 U.S.C. § 1291
     and
    
    42 U.S.C. § 405
    (g). We review the agency’s decision on the whole record to
    determine only whether the factual findings are supported by substantial evidence
    and the correct legal standards were applied.     Goatcher v. United States Dep’t of
    Health & Human Servs. , 
    52 F.3d 288
    , 289 (10th Cir. 1995). We may “neither
    reweigh the evidence nor substitute our judgment for that of the agency.”      Casias
    v. Secretary of Health & Human Servs.     , 
    933 F.2d 799
    , 800 (10th Cir. 1991).
    Based on this standard of review, we affirm the denial of disability benefits and
    reverse the denial of SSI benefits.
    Plaintiff was born on February 12, 1950, and is fifty-three years old this
    year. In school, he completed the ninth grade in special education classes.     See
    Aplt. App. at 298, 329. He has had many short-term jobs.        See id. at 163-67. His
    past relevant work was as a construction laborer, which involved cleaning up and
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    sweeping floors, but very little lifting. His insured status expired on
    September 30, 1990. He filed a claim for disability and SSI benefits in 1989,
    which was denied by the agency on January 29, 1990. Plaintiff did not further
    pursue that claim. He filed the current applications in 1996, alleging a disability
    beginning on September 30, 1990, based on residuals from an accident in which
    a vehicle he was working under fell on him, crushing his right scapula; diabetes;
    pain in his legs; high blood pressure; and mental impairments.
    The ALJ reviewed the period from January 30, 1990, through
    September 30, 1990, for purposes of disability insurance benefits. The ALJ
    reviewed the period from January 10, 1996, through May 28, 1998, for purposes
    of SSI benefits. The ALJ denied both applications in a decision dated May 28,
    1998, and the Appeals Council denied review, making the ALJ’s decision the
    final agency decision.
    The district court affirmed the ALJ’s decision. The court reviewed the
    medical evidence and the ALJ’s reasoning. The court deferred to the ALJ’s
    credibility assessment, and decided that the ALJ’s conclusions about plaintiff’s
    impairments and limitations were consistent with the record as a whole.
    On appeal, plaintiff argues that the ALJ: (1) violated the treating physician
    rule when he rejected a treating psychologist’s opinion about plaintiff’s mental
    impairments based on his own opinion that plaintiff was not credible in describing
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    his symptoms; (2) failed to adequately and fully address plaintiff’s psychological
    residual functional capacity (RFC); (3) failed to consider plaintiff’s physical and
    mental impairments in combination; and (4) erred in finding that plaintiff could
    perform his past relevant work or other work because his hypothetical question to
    the vocational expert was faulty. Plaintiff’s arguments do not challenge the
    ALJ’s reasoning or conclusion with regard to his application for disability
    insurance benefits. We therefore affirm that denial. However, plaintiff’s issues
    have merit with regard to his SSI claim.
    I. Assessment of Plaintiff’s Evidence of Mental Impairments
    Because the time period for plaintiff’s SSI claim is not delimited by the
    expiration of his insured status, the ALJ was required to address plaintiff’s
    evidence of mental and physical impairments arising after September 30, 1990.
    This includes all of the evidence of plaintiff’s mental impairments. The ALJ
    denied plaintiff’s SSI claim first at step four, finding that despite the additional
    evidence relevant to the period under review, plaintiff retained the RFC for
    medium work and therefore could return to his past work.      See generally Williams
    v. Bowen , 
    844 F.2d 748
    , 750-52, (10th Cir. 1988) (discussing five-step
    evaluation). In the alternative, the ALJ found at step five that, based on the
    testimony of a vocational expert, there were jobs other than his past work that
    plaintiff could do. A central factor to the ALJ’s analysis was his determination
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    that plaintiff’s testimony concerning his symptoms was not credible. Because the
    ALJ did not believe plaintiff, he also rejected the conclusions of the psychologist
    who treated plaintiff, and of the psychiatrist and psychologist who examined
    plaintiff, because their opinions were based, in part, on his complaints. The ALJ
    relied instead on the less restrictive opinion of the agency’s psychologist who
    reviewed plaintiff’s medical records, but who never examined or treated plaintiff.
    This analysis was flawed.
    An ALJ is required to consider every medical opinion in the record.
    
    20 C.F.R. § 416.927
    (d). The weight an ALJ must give each opinion, however,
    varies according to the relationship between the medical professional and the
    claimant. See 
    id.
     An ALJ is required to give “controlling weight” to a treating
    source’s opinion, so long as it is “well-supported” and “is not inconsistent with
    the other substantial evidence in [the] record.”      
    Id.
     § 416.927(d)(2). “When a
    treating [source’s] opinion is inconsistent with other medical evidence, the ALJ’s
    task is to examine the other [sources’] reports to see if they outweigh the treating
    [source’s] report, not the other way around.”       Goatcher , 
    52 F.3d at 290
    (quotations omitted). If an ALJ rejects a treating source’s opinion, he must
    articulate “specific, legitimate reasons” for his decision.    
    Id.
     ; see 
    20 C.F.R. § 416.927
    (d)(2)-(6). The opinion of an examining physician or psychologist is
    generally entitled to less weight than that of a treating physician or psychologist,
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    and the opinion of an agency physician or psychologist who has never seen the
    claimant is generally entitled to the least weight of all.      See 
    20 C.F.R. § 416.927
    (d)(1), (2); Soc. Sec. Ruling 96-6p, 
    1996 WL 374180
    , at *2. If an ALJ
    intends to rely on a nonexamining source’s opinion, he must explain the weight he
    is giving it. 
    20 C.F.R. § 416.927
    (f)(2)(ii).
    The ALJ failed to follow these rules. Michael Schmidt, Ph.D., a
    psychologist, began treating plaintiff in November 1996, and had seen him about
    once every two weeks as of January 1998. Aplt. App. at 315. This makes
    Dr. Schmidt plaintiff’s treating source. Dr. Schmidt’s opinion was that plaintiff
    suffered with a borderline intellectual level, intermittent explosive disorder,
    antisocial personality disorder, and alcohol abuse in remission, and that plaintiff
    was disabled because he could not tolerate the stress of dealing with people or
    being supervised even by family members.            
    Id. at 315-16
    .
    Plaintiff was also examined by a psychiatrist, Dr. Thomas J. Hurley, and
    another psychologist, Brian L. Cox, Psy.D., in 1996. Dr. Hurley did not decide
    whether plaintiff could work or not, but found that plaintiff’s mental impairments
    included schizoaffective disorder (depressive type), mild mental retardation,
    alcohol dependence, and avoidant personality disorder.           
    Id. at 216-18
    . Dr. Cox
    also did not conclude whether plaintiff could work or not, but found that plaintiff
    suffered from attention deficit/hyperactivity disorder (combined type), disorders
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    of reading and written expression, alcohol dependency (early partial remission),
    post-traumatic stress disorder (mild), and dysthymic disorder.        
    Id. at 294
    .
    A Dr. Wanstrath, a psychologist, reviewed plaintiff’s records and filled out
    Psychiatric Review Technique and Mental Residual Functional Capacity
    Assessment forms for the agency.       See 
    id. at 140-54
    . Her opinion, based on
    plaintiff’s records, was that plaintiff suffered from dysthymia, antisocial
    personality disorder, and substance addiction disorder in recent remission, and
    that he was restricted from more than a little contact with the general public.     
    Id. at 143, 145, 146, 153
    . The ALJ’s findings of plaintiff’s diagnoses and
    restrictions match Dr. Wanstrath’s findings, although the ALJ did not state
    that he was accepting her opinion, let alone explain why.        See 
    id. at 28-29
    (findings 10, 12).
    The ALJ rejected Dr. Schmidt’s opinion, stating that it was based on
    plaintiff’s complaints, which the ALJ found were not credible. This approach
    impermissibly put the ALJ in the position of judging a medical professional on
    how he should assess medical data–plaintiff’s complaints. An ALJ may not
    substitute his lay opinion for a medical opinion.     See Sisco v. United States Dep’t
    of Health & Human Servs. , 
    10 F.3d 739
    , 744 (10th Cir. 1993).
    In addition, the reasons the ALJ gave for his adverse credibility
    determination are not supported by the record. The ALJ believed that plaintiff
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    did not receive enough medical treatment and his motivation for seeking treatment
    was only to support his claim for benefits. We reject both of these reasons.
    Plaintiff received regular treatment from Dr. Schmidt during most of the period
    under review for SSI benefits. Moreover, his claim for benefits must be
    supported by medical evidence proving his alleged mental impairments.         See
    
    42 U.S.C. § 423
    (d)(3); 
    20 C.F.R. §§ 416.908
    , 416.920a(b). A claimant’s
    perceived lack of motivation to receive treatment is relevant if he unjustifiably
    refuses treatment that would enable him to work.     See Thompson v. Sullivan ,
    
    987 F.2d 1482
    , 1489-90 (10th Cir. 1993). Even then, however, the ALJ must
    determine that such treatment was prescribed for the claimant and find out why
    the claimant refused it.   See 
    id.
     The ALJ made no such determination or inquiry
    in this case. The ALJ also believed that plaintiff changed his story regarding the
    existence and number of his past suicide attempts, hallucinations, and nightmares
    in order to escalate his symptoms as he was seen by each successive doctor.         See
    Aplt. App. at 26. The minor inconsistencies on these points do not support the
    claimed escalation, however, and none of the medical professionals believed that
    plaintiff exaggerated his symptoms. In addition, the most serious
    diagnosis–schizoaffective disorder–was made by the first mental health
    professional plaintiff saw, Dr. Hurley.
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    The ALJ rejected Dr. Hurley’s diagnosis of schizoaffective disorder
    because the agency psychologist believed that the opinions of Dr. Schmidt and
    Dr. Cox were sufficiently different from Dr. Hurley’s and sufficiently consistent
    with each other to refute it.   Id. at 24. But other than using Dr. Cox’s opinion in
    this way to defeat Dr. Hurley’s diagnosis, the ALJ otherwise disregarded
    Dr. Cox’s diagnoses and restrictions.      See id. at 24-26. The ALJ is not entitled to
    pick and choose through a medical opinion, using only those parts that are
    favorable to a finding of nondisability.    Switzer v. Heckler , 
    742 F.2d 382
    , 385-86
    (7th Cir. 1984).
    It is clear that the ALJ improperly rejected the treating and examining
    sources’ opinions and improperly credited the agency psychologist’s opinion
    without providing the required explanation. Because the ALJ failed to follow the
    proper procedure in assessing plaintiff’s medical evidence of mental impairments,
    the ALJ’s finding of nondisability must be reversed.
    II. Psychological Residual Functional Capacity
    Plaintiff next argues that the ALJ failed to adequately and fully address his
    psychological RFC. We agree.
    When a mental impairment is alleged, the ALJ must assess the claimant’s
    mental RFC. 
    20 C.F.R. § 416.945
    (c). When a claimant suffers from a severe
    mental impairment that does not meet or equal the criteria of the listings for
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    mental disorders, “[t]he determination of mental RFC is crucial to the evaluation
    of an individual’s capacity to engage in substantial gainful work activity.”   
    Id.
    Pt. 404, Subpt. P, App. 1, § 12.00(A). The ALJ must assess the mental abilities
    of “understanding, remembering, and carrying out instructions, and in responding
    appropriately to supervision, co-workers, and work pressures in a work setting.”
    Id. § 416.945(c). The rulings specify that
    [i]n assessing RFC, the adjudicator must discuss the individual’s
    ability to perform sustained work activities in an ordinary work
    setting on a regular and continuing basis (i.e., 8 hours a day, for 5
    days a week , or an equivalent work schedule), and describe the
    maximum amount of each work-related activity the individual can
    perform based on the evidence available in the case record. The
    adjudicator must also explain how any material inconsistencies or
    ambiguities in the evidence in the case record were considered and
    resolved.
    Soc. Sec. Ruling 96-8p, 
    1996 WL 374184
    , at *7 (emphasis added) (footnote
    omitted).
    In this case, the ALJ made no finding regarding plaintiff’s mental RFC,
    except to find that he could not “have any contact with the general public.” Aplt.
    App. at 29 (finding 12). Indeed, even if he had made a more explicit finding, it
    would be tainted from his failure to explain his rejection of Dr. Schmidt’s opinion
    of plaintiff’s diagnoses and restrictions.
    -10-
    Conclusion
    Because the ALJ improperly assessed plaintiff’s evidence of mental
    impairments, it follows that he failed to properly consider plaintiff’s combination
    of physical and mental impairments. And, because the ALJ improperly rejected
    Dr. Schmidt’s opinion of plaintiff’s diagnosis and restrictions, the limitations
    expressed in the hypothetical question he posed to the vocational expert are not
    supported by substantial evidence. This is also reversible error, because the
    hypothetical questions submitted to the vocational expert must state the claimant’s
    impairments “with precision.”   Hargis v. Sullivan , 
    945 F.2d 1482
    , 1492 (10th Cir.
    1991) (quotation omitted).
    Plaintiff’s motion to supplement his opening brief is granted. The district
    court’s judgment is AFFIRMED in part, and REVERSED in part, and the case is
    REMANDED for an immediate award of supplemental security income benefits.
    ENTERED FOR THE COURT
    PER CURIAM
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