Andersen v. Astrue , 319 F. App'x 712 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
April 3, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
TERRY D. ANDERSEN,
Plaintiff-Appellant,
v. No. 05-4305
(D.C. No. 2:04-CV-960-DAK)
MICHAEL J. ASTRUE, Commissioner (D. Utah)
of Social Security, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before MURPHY, HARTZ, and HOLMES, Circuit Judges.
Claimant Terry D. Andersen appeals from the district court’s order
affirming the decision of the Social Security Commissioner to deny his
application for disability insurance benefits (“DIB”). Mr. Andersen argues on
appeal that the administrative law judge (“ALJ”) failed to properly evaluate the
opinions of his treating physicians, posed inadequate hypothetical questions to the
*
In accordance with Fed. R. App. P. 43(c)(2), Michael J. Astrue is
substituted for Jo Anne B. Barnhart as defendant in this appeal.
**
This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
vocational expert, and erred in finding Mr. Andersen not totally credible. We
exercise jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g) and conclude
that the ALJ erred by failing to follow the proper procedures for considering the
opinions of Mr. Andersen’s treating physicians. Accordingly, we REVERSE and
REMAND for further proceedings.
I. BACKGROUND
Mr. Andersen protectively filed for DIB under Title II of the Social
Security Act in August of 2000. He claimed he had been unable to work since
May 4, 1993, primarily due to fatigue and shortness of breath following three
open heart surgeries and related impairments that include aortic valve disease,
several mini-strokes, and blindness in his left eye. After his application was
denied both initially and upon reconsideration, he requested and received a
hearing before an ALJ.
The hearing focused on the evidence surrounding Mr. Andersen’s abilities
on December 31, 1998, which was the date on which Mr. Andersen’s insurance
for disability benefits expired, in determining Mr. Andersen’s residual functional
capacity (“RFC”) for purposes of steps four and five of the now-familiar
sequential evaluation process. See, e.g., Williams v. Bowen, 844 F.2d 748, 750-52
(10th Cir. 1988). Following the hearing, the ALJ agreed that Mr. Andersen had
severe impairments due to his history of mitral valve disease and rheumatic heart
disease, his chronic obstructive pulmonary disease, and left eye blindness.
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However, the ALJ concluded that Mr. Andersen could perform a significant range
of light work, and because there were jobs in the national economy that he could
perform, he was not under a disability as defined in the Social Security Act.
In reaching this conclusion, the ALJ embraced the opinion of the non-
examining, agency physician, who discounted “several disability forms” from
“the remote past” that indicated Mr. Andersen could perform no work or was
limited to sedentary work. Aplt. App. at 18. The agency physician also concluded
that these forms “were not substantiated by the objective evidence and were
entitled to little weight.” Id. The agency physician found Mr. Andersen to have
an RFC for light exertional work based solely on a review of his medical records.
The ALJ appeared to concur with all of these opinions of the agency physician.
The ALJ also reviewed reports from Mr. Andersen’s treating physicians,
although not accepting the conclusions of these physicians as the ALJ had done
with the agency physician’s opinion. The ALJ observed that the medical records
from Mr. Andersen’s treating physician for 1998 were “very vague, sparse, and
not suggestive of disability.” Aplt. App. at 20. The ALJ also described—and
apparently rejected—two treating physician opinions from June 1999 and
September 2000. In June 1999, Mr. Andersen’s primary care physician opined
that Mr. Andersen was disabled. However, the ALJ determined “there are no
clinical reports to show this,” noting as well that the form showed only mild or
moderate symptoms. Id. In September 2000, Mr. Andersen’s cardiologist
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completed a form indicating severe restrictions with respect to how much Mr.
Andersen could stand or walk in the workplace, but the ALJ described the
assessment as “very confusing” and “inconsistent.” Id.In light of these assessments, the ALJ concluded, at the fifth step of the
applicable sequential process, that Mr. Andersen had an RFC for a limited range
of light work and was capable of performing jobs that are available in significant
numbers in the national economy. 1 The ALJ cited “the sparse and mild medical
reports” and Mr. Andersen’s lack of specific memory of his capabilities in 1998
during his testimony in 2002 in reaching the conclusion that Mr. Andersen had
failed to provide proof of total disability. Id.The Appeals Council denied Mr. Andersen’s request for review, rendering
the ALJ’s decision the final decision of the Commissioner. Bowman v. Astrue,
511 F.3d 1270, 1272 (10th Cir. 2008). Mr. Andersen then filed this action in
federal court, and the district court affirmed the ALJ’s decision. In part, the
district court held that the ALJ sufficiently discussed the opinions of Mr.
Andersen’s treating physicians and provided specific, legitimate reasons for
rejecting them. The district court also concluded that there was no duty to
recontact Mr. Andersen’s cardiologist about inconsistencies in his opinion
1
In coming to this conclusion, the ALJ relied on the testimony of a
vocational expert who indicated that some of the jobs that might be available to
Mr. Andersen included an office helper, information clerk, parking lot attendant,
and housesitter. The vocational expert’s testimony was elicited through
hypothetical questions posed by the ALJ.
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because the record as a whole was adequate for a decision. The district court
found sufficient indication that the ALJ reviewed the numerous echocardiogram
and heart catheterization results, noting both that the ALJ appeared to rely on
these results at step two in the applicable process and that the ALJ found that Mr.
Andersen had severe impairments. This appeal followed.
II. DISCUSSION
In our review of the ALJ’s decision, we must determine if the ALJ has
“applied the correct legal standards” and also if the ALJ’s “factual findings are
supported by substantial evidence in the record viewed as a whole.” Frantz v.
Astrue, 509 F.3d 1299, 1300 (10th Cir. 2007) (internal quotation marks omitted).
“The agency’s failure to apply correct legal standards, or show us it has done so,
is [] grounds for reversal.” Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.
2004).
In reviewing the ALJ’s decision, we may “neither reweigh the evidence nor
substitute our judgment for that of the agency.” Frantz, 509 F.3d at 1300(internal quotation marks omitted). We must avoid a “post hoc effort to salvage
the ALJ’s decision,” lest we “overstep our institutional role and usurp essential
functions committed in the first instance to the administrative process.” Robinson
v. Barnhart, 366 F.3d 1078, 1084-85 (10th Cir. 2004) (internal quotation marks
omitted). Indeed, we should evaluate an ALJ’s decision “based solely on the
reasons stated in the decision.” Id. at 1084.
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Accordingly, when an ALJ is considering a treating physician’s opinion,
the ALJ is required to “give good reasons in the notice of determination or
decision for the weight assigned to a treating physician’s opinion.” Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal quotation marks and
alteration omitted). These reasons must be specific and legitimate. Byron v.
Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984). We require a level of specificity
that is sufficient “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 (internal quotation marks omitted). In the
absence of these reasons, we cannot determine if there is relevant evidence that
adequately supports the ALJ’s conclusion or if the ALJ even applied the proper
legal standard to arrive at that conclusion. Clifton v. Chater, 79 F.3d 1007, 1009
(10th Cir. 1996). Thus, where an ALJ has failed to articulate these reasons, we
must remand. See id.; Watkins, 350 F.3d at 1301. “We cannot simply presume
the ALJ applied the correct legal standards,” and “we cannot meaningfully review
the ALJ’s determination absent findings explaining the weight assigned to the
treating physician’s opinion.” Watkins, 350 F.3d at 1301.
On appeal, Mr. Andersen argues that the ALJ erred in three ways: (1)
failing to give his treating physicians’ opinions appropriate evidentiary weight;
(2) posing inadequate hypothetical questions to the vocational expert; and (3)
finding Mr. Andersen’s testimony regarding his limitations not totally credible.
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We conclude that the ALJ erred in failing to properly determine the weight
ultimately assigned to Mr. Andersen’s treating physicians’ opinions. See Watkins,
350 F.3d at 1301. Accordingly, we must remand. See id. Because we remand on
this first issue, we will not reach the remaining issues because they may be
affected by the ALJ’s treatment of the case on remand. See Robinson, 366 F.3d at
1085.
A. Evaluation of Treating Physician Opinions
“Treating source medical opinions are [] entitled to deference,” and must be
either given controlling weight or assigned some lesser weight “using all of the
factors provided in 20 C.F.R. 404.1527 and 416.927.” Social Security Ruling
(“SSR”) 96-2p, 1996 WL 374188, at *4. To ensure that these opinions receive
proper deference, an ALJ reviewing the opinions of treating sources must engage
in a sequential analysis. Watkins, 350 F.3d at 1300.
First, an ALJ must determine whether the opinion deserves controlling
weight. Id. Controlling weight must be given if the opinion is both supported by
medically acceptable clinical and laboratory diagnostic techniques and not
inconsistent with the other substantial evidence in the record. 20 C.F.R. §
404.1527(d)(2). If both of these conditions are met, no other factors need be
considered and the inquiry is at an end. See id.; Watkins, 350 F.3d at 1300.
However, if one or both of these conditions is lacking, an ALJ is not free to
simply disregard the opinion or pick and choose which portions to adopt. Instead,
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the ALJ must proceed to a second determination, where the ALJ must both (1)
weigh the opinion “using all of the factors provided in 20 C.F.R. § 404.1527 and
416.927” and (2) “give good reasons in the notice of determination or decision for
the weight [the ALJ] ultimately assigns the opinion.” Watkins, 350 F.3d at 1300-
01 (internal quotation marks and alteration omitted).
As summarized in Watkins, the regulatory factors 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.
350 F.3d at 1301 (internal quotation marks omitted).
Although the ALJ’s decision need not include an explicit discussion of each
factor, see Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007), the record
must reflect that the ALJ considered every factor in the weight calculation. 2 See
2
In Oldham, we stated: “That the ALJ did not explicitly discuss all the
§ 404.1527(d) factors for each of the medical opinions before him does not
prevent this court from according his decision meaningful review.” 509 F.3d at
1258 (emphasis added). In a given case, of course, not all of the regulatory
factors may be relevant to the ALJ’s determination of the weight to assign to the
treating physician’s opinion. See id.; cf. SSR 06-03p, 2006 WL 2329939, at *5
(referring to regulatory factors generally applied in weighing opinion evidence in
the context of providing guidance as to non-medical sources; noting that “[n]ot
every factor for weighing opinion evidence will apply in every case”).
(continued...)
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2
(...continued)
Furthermore, in some cases, certain key factual circumstances may substantially
shape—if not definitively define the contours of—the lens through which the ALJ
considers the regulatory factors in the weight-assignment process. Indeed, the
regulations appear to contemplate this possibility in that they expressly include
along with the treatment-related and physician-related factors a component for
other “factors brought to the ALJ’s attention which tend to support or contradict
the opinion,” Watkins, 350 F.3d at 1301 (the sixth Watkins factor), and do not
purport to rank the factors in terms of importance. Offering an example, the
regulations note that these other factors may relate to “the extent to which an
acceptable medical source is familiar with the other information” in the
claimant’s record. 20 C.F.R. § 404.1527(d)(6) (emphasis added).
These principles animated our decision in Oldham, where “[t]he credibility
issue was critical to the determination of disability.” 509 F.3d at 1257. Powerful
evidence in the record—including videotapes that “showed her [Ms. Oldham]
engaging in physical activity far beyond the capacity that she had reported to her
various medical providers”—quite reasonably led the ALJ to seriously question
Ms. Oldham’s credibility. Id. Ms. Oldham did “no[t] contest the ALJ’s findings
that her ‘allegations, statements and presentations, including those made to
treating and examining doctors[,] [were] highly unreliable,’ . . . and that her
‘allegations regarding her limitations [were] not totally credible[.]’” Id.
(alterations in the original) (quoting Administrative Record, Vol. I, at 28, 44).
This overarching credibility issue led the ALJ to give “‘very little weight’ to
opinions from various treating physicians regarding her functional capacity,”
because those physicians did not have the benefit of the powerful contrary record
evidence that severely undercut Ms. Oldham’s disability assertions, but instead
had placed significant reliance upon Ms. Oldham’s unreliable statements. Id. at
1258. Coupled with the ALJ’s “citation to contrary, well-supported medical
evidence,” we concluded that the ALJ’s findings “satisfie[d] the requirement that
the ALJ’s decision 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.’” Id. (quoting Watkins, 350 F.3d at 1300).
In Oldham, on the record “in th[at] case,” id., we could be confident that
the ALJ considered all of the regulatory factors, although the ALJ “did not
explicitly discuss all” of them, id. (emphasis added), because we tacitly
(continued...)
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20 C.F.R. § 404.1527(d)(2) (“[W]e apply the factors listed in paragraphs (d)(2)(i)
and (d)(2)(ii) of this section, as well as the factors in paragraphs (d)(3) through
(d)(6) of this section in determining the weight to give the opinion.”); SSR 96-2p,
1996 WL 374188, at *4 (“Treating source medical opinions . . . must be weighed
using all of the factors provided . . . .” (emphasis added)). The decision must
articulate the ALJ’s reasoning such that later reviewers can identify both the
weight that was actually assigned to the opinion and the reasons for that weight.
See SSR 96-2p, 1996 WL 374188, at *5. 3
B. Mr. Andersen’s Treating Source Opinions
2
(...continued)
recognized that the lens through which the ALJ considered the factors was
substantially shaped and severely constricted by the “critical” factor of Ms.
Oldham’s established mendacity. Id. at 1257. Looking through a lens thus
shaped, the ALJ could have reasonably determined that most of the explicit
treatment-related and physician-related regulatory factors (as enumerated in
Watkins, factors 1, 2, and 5) were largely irrelevant and not worthy of discussion,
because the treating physicians offered their opinions based upon Ms. Oldham’s
false premises. And, as for the factors that focused on the opinions’ record
support and congruence with other record evidence (respectively, Watkins factors
3 and 4), the ALJ quite reasonably could have viewed them as unequivocally
supporting the decision to assign “very little weight” to the treating physicians’
opinions. And, as evident by the passage quoted above, the ALJ’s consideration
of these factors was patent in the reasons that the ALJ offered for that weight
assignment. Therefore, our decision in Oldham is entirely consistent with the
proposition that, although the ALJ’s decision need not include an explicit
discussion of each factor, the record must permit us to reach the conclusion that
the ALJ considered all of the factors.
3
This applies at least where the decision is not fully favorable to
claimant. The regulations contemplate a briefer explanation if the decision is
fully favorable and the opinion in question is of marginal importance to that
decision. See SSR 96-2p, 1996 WL 374188, at *5.
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Mr. Andersen was seen by at least four different physicians, including his
cardiologist, from 1993 to 2000. Over this period, these physicians uniformly
agreed that he was unable to work and provided largely consistent descriptions of
his physical limitations. However, the ALJ paid virtually no attention to these
congruous evaluations by Mr. Andersen’s treating physicians. Although the ALJ
may assign these opinions lesser weight or disregard them, this can only be done
when the ALJ has (1) made a ruling that the opinion is not entitled to controlling
weight and (2) after considering the pertinent factors, provided “good reasons”
for the weight ultimately assigned to the opinion. See Watkins, 350 F.3d at 1300-
01. We conclude that the ALJ’s analysis is insufficient for us to be satisfied that
the ALJ properly followed this process in giving the opinions so little weight. 4
1. Dr. Wren’s and Dr. Woods’s Opinions, 1993 to 1997
The administrative record in this case contains annual assessments of Mr.
Andersen’s condition for the years 1993 through 1997, which were apparently
completed at the request of his private disability insurer. Dr. Michael Wren, an
internist, completed an “attending physician statement” each year from 1993
through 1996, along with cardiovascular medical reports describing the results of
echocardiograms in 1993 and 1996. After 1996, two other physicians in the same
medical group succeeded Dr. Wren as Mr. Andersen’s primary care physician: Dr.
4
Although the ALJ never made a finding regarding whether the
opinions received controlling weight, it is clear that the ALJ did not give any of
the opinions of these four treating physicians controlling weight.
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Daniel Woods, who saw Mr. Andersen on October 27, 1997, and Dr. Charles
Hodges, who cared for Mr. Andersen thereafter. 5
In 1993, Dr. Wren concluded that Mr. Andersen likely could not return to
his former occupation. However, he determined that in a job that required less
vigorous activity, Mr. Andersen could work eight hours per day; walk for three or
four of those hours; and sit, stand, or bend without limitation. One year later, in
1994, Dr. Wren changed his assessment, concluding that Mr. Andersen could only
do sedentary work, that he could work only “perhaps one” hour per day, and that
he could only walk or stand for half an hour during that time. Dr. Wren’s 1995
and 1996 assessments matched his 1994 conclusions. Dr. Wren’s notes for his
1995 assessment state that “APS confirms current limits - shortness of breath with
minimal exertion” and that his last echocardiogram in 1993 “confirms valve
disease.” Aplt. App. at 102. 6
Dr. Daniel Woods saw Mr. Andersen on October 27, 1997, which is
memorialized by both his examination notes and a work assessment contained in
5
Dr. Hodges’s opinion will be addressed separately. See infra Section
II.B.2.
6
The ALJ may not have associated this note with Dr. Wren’s
assessment. By its placement in the record, it appears that the date was
determined to be “6/1/99,” the date of Dr. Hodges’s assessment, which cannot be
correct. Numerous indicia confirm its timing as either 1994 or 1995: (1) Mr.
Andersen, who was born in 1948, is listed as “age 46”; (2) the last test is listed as
taking place in December of 1993, indicating the visit must have occurred before
the June 1996 echocardiogram; and (3) the handwritten date also could be read as
“8/11/95,” the date of the 1995 assessment.
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the administrative record. Dr. Woods concluded that Mr. Andersen could sit for
one hour and walk or stand for half an hour. He also marked Mr. Andersen’s
limitations as “Class 4 - Moderate limitation of functional capacity: incapable of
minimal (sedentary) activity[] (75-100%).” Aplt. App. at 116.
The ALJ largely disregarded the opinions of Dr. Wren and Dr. Woods. 7
Accepting the non-examining agency physician’s view that these opinions “were
not substantiated by the objective evidence and were entitled to little weight,” the
ALJ further added that “[t]here are forms in the record with check off boxes but
there is no rational[e] or little reasoning for the limitations assessed.” Id. at 18.
Additionally, the ALJ concluded that these opinions were temporally distant and
of little utility.
It is apparent that the ALJ concluded that these opinions were not entitled
to controlling weight. Although ordinarily the ALJ should have made explicit
findings to this effect, see Watkins, 350 F.3d at 1300 (noting that “[a] finding at
this stage (as to whether the opinion is either unsupported or inconsistent with
7
We note that the record only provides one instance in which Dr.
Woods examined Mr. Andersen. However, neither the ALJ nor the Commissioner
raised any question about whether Dr. Woods should be deemed a treating
physician. Thus, for purposes of this appeal, we assume that Dr. Woods was one
of Mr. Andersen’s treating physicians, and we will not apply our general principle
that “the opinion of an examining physician who only saw the claimant once is
not entitled to the sort of deferential treatment accorded to a treating physician’s
opinion.” Doyal v. Barnhart, 331 F.3d 758, 763 (10th Cir. 2003). However, we
do not purport to usurp the ALJ’s role to make this determination in the first
instance, nor do we foreclose further consideration of this issue on remand.
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other substantial evidence) is necessary so that we can properly review the ALJ’s
determination on appeal”), we are not troubled by the substance of the ALJ’s
determination. Mr. Andersen’s medical tests do not conclusively show the
alleged limitations and there was contrary evidence in the record. Accordingly,
the ALJ was entitled to give the opinions less than controlling weight. See
Langley v. Barnhart, 373 F.3d 1116, 1120 (10th Cir. 2004).
Our conclusion that the ALJ could properly give the opinions less than
controlling weight does not end our analysis, however. An ALJ is not entitled to
completely reject altogether a treating physician’s opinion, without further
analysis, when the ALJ does not give it controlling weight. See id. Rather, the
treating physician’s opinion is “still entitled to deference and must be weighed
using all of the relevant factors.” Id. (internal quotation marks and alteration
omitted). It is not clear whether the ALJ undertook this distinct responsibility.
Indeed, we are not even certain if the “little weight” the ALJ purported to give
these opinions was actually some minimal consideration or no weight at all.
Regardless, we are not satisfied with the ALJ’s proffered reasons.
Although we may not reweigh the evidence, see Frantz, 509 F.3d at 1300,
we must assure ourselves that the ALJ gave the relevant material due
consideration. See Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d
288, 290 (10th Cir. 1995). As we have explained, the ALJ must provide
sufficient indication of what weight is assigned and “good reasons” for that
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weight. See Watkins, 350 F.3d at 1300-01. Here, the ALJ has failed to offer
“good reasons” for giving these opinions “little weight.” The ALJ has failed to
satisfy us that all of the § 404.1527(d) factors were properly considered and that
the apparent rationale for largely disregarding these opinions is sufficient.
With regard to the ALJ’s apparent rationales, the ALJ’s rejection of these
opinions based on their timing is insufficient because the ALJ narrowly construed
the relevant evidentiary period. To qualify for benefits, Mr. Andersen must be
found to have become disabled before his insured status expired at the end of
1998. See 42 U.S.C. § 423(a)(1)(A). Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical [] impairment . . . which has lasted or can be expected to last for a
continuous period of not less than 12 months.” Id. § 423(d)(1)(A). In light of
this criteria, the ALJ should not have treated only the few months surrounding
December 1998 as relevant. Indeed, because Mr. Andersen’s underlying medical
condition was undisputed and permanent, the ALJ could make inferences about
the progression of Mr. Andersen’s impairment, relying on earlier medical
evidence. See SSR 83-20, 1983 WL 31249, at *3 (“The available medical
evidence should be considered in view of the nature of the impairment (i.e., what
medical presumptions can reasonably be made about the course of the condition).
The onset date should be set on the date when it is most reasonable to conclude
from the evidence that the impairment was sufficiently severe to prevent the
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individual from engaging in SGA [substantial gainful activity] . . . for a
continuous period of at least 12 months . . . .”). 8 Therefore, to the extent that the
attending physician statements were discounted for being from the “remote past,”
we find this reason insufficient.
We also find that the ALJ’s apparent failure to consider any factor other
than supportability makes the ALJ’s reasoning insufficient. It is certainly correct
to consider the amount of objective support for the conclusions expressed in
treating physicians opinions and the reasoning the physicians provide. See 20
C.F.R. § 404.1527(d)(3) (noting that the more a medical source is supported by
other findings, the more weight the source is given). In this case, however, we
cannot uphold the ALJ’s decision based solely on supportability. There is no
indication that the ALJ considered any relevant factor under § 404.1527(d) other
than supportability before assigning these opinions so little weight. Although
supportability might prove determinative, that can only be decided after
consideration of the other factors. These include the fact of examination, the
length of the treatment relationship and frequency of examination, and the nature
8
Furthermore, Dr. Woods’s October 1997 opinion cannot be
considered “remote” from December 1998. The ALJ may have relied upon
factual error on this point. The state agency physician read the handwritten date
of this opinion as “1992,” but other indicia on the form confirm that it must have
been later (such as references to treatment in 1993 and a catheterization in 1996).
The record also contains Dr. Woods’s examination notes for the same date in
1997, lending further support to the conclusion that the agency physician misread
the date as being 1992.
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and extent of the treatment relationship. See 20 C.F.R. § 404.1527(d)(1)-(2).
These factors may not uniformly weigh in favor of Dr. Wren’s and Dr. Woods’s
opinions, but they would not be insignificant here. Regardless, they must be
considered. It is true that the ALJ is under no obligation to explicitly discuss each
factor in the decision. See Oldham, 509 F.3d at 1258. However, the ALJ’s
cursory treatment of the physicians’ opinions in this case does not satisfy us that
the ALJ considered all the relevant factors.
Even if we were persuaded that the ALJ had considered these other factors,
the ALJ also applied an incorrect legal standard in assessing supportability. The
ALJ appears to have discounted the opinions of Dr. Wren and Dr. Woods because
they used forms with check off boxes and little reasoning was articulated on those
forms. The Commissioner offers two arguments to support the proposition that
doing so was proper. However, we cannot agree.
The Commissioner first argues for a categorical position: the opinions
cannot be substantial evidence because these forms were completed without
examination findings or treatment notes. Some of these forms do lack such direct
explication. Explanatory material is certainly relevant in deciding the weight a
treating physician’s opinion should receive. See White v. Barnhart, 287 F.3d 903,
907-08 (10th Cir. 2001). However, we are unwilling to categorically reject forms
completed by treating physicians that lack such material. Although the
Commissioner suggests that this categorical rule is required by precedent, we
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cannot agree that our prior cases dictate such an extensive rule.
The Commissioner would broadly apply our statement in Frey v. Bowen,
that “evaluation forms, standing alone, unaccompanied by thorough written
reports or persuasive testimony, are not substantial evidence.” 816 F.2d 508, 515
(10th Cir. 1987). However, this holding is not as broad as the Commissioner
wishes. In Frey, the report “appear[ed] to be based on the most limited sort of
contact and examination” with “no indication of careful study of Frey’s history or
prior examinations.” Id. In contrast with other doctors’ objective tests and
measurements, the report at issue in Frey “consist[ed] solely of boxes checked on
the Secretary’s form to indicate his conclusion of no limitation on right arm use.”
Id. In that context, we observed that “findings of a nontreating physician based
upon limited contact and examination are of suspect reliability.” Id. (emphasis
added).
The Commissioner would have us construe Frey’s holding to include any
report primarily consisting of check boxes. However, to do so here would expand
Frey’s exclusion of check-box forms beyond those completed by nontreating
physicians. No controlling precedent obliges us to take this path. See Carpenter
v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008) (distinguishing Frey in part
because there we “dealt with a nontreating physician’s checkmarks on the
agency’s RFC form” (emphasis added)); cf. Hamlin, 365 F.3d at 1223 (applying
Frey’s rule to an “agency disability determination which listed a non-treating
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physician’s assessment of [claimant’s] RFC”); Drapeau v. Massanari, 255 F.3d
1211, 1213-14 (10th Cir. 2001) (applying Frey’s rule to a “consultative
physician” and other “nontreating physicians who opined that plaintiff’s
impairments did not meet any listing” without “any supporting explanation
whatsoever for their conclusions”). On the facts of this case, we decline to adopt
such an expansive interpretation of Frey.
“In contrast” to the physician in Frey, Dr. Wren and Dr. Woods actually
examined the patient (i.e., Mr. Andersen) and recorded their clinical
assessments—not on “the agency’s checklist RFC form,” Carpenter, 537 F.3d at1267—but rather on forms that apparently were designed by Mr. Andersen’s
disability insurer. These forms did not ask for extensive rationales, or provide
significant space for them. Thus, it is not surprising that the two physicians
recorded somewhat limited clinical comments. That they did so, however, does
not provide a sound foundation for the inference—which the ALJ apparently
adopted—that their assessments were of limited reliability, nor does it support the
notion that the results that they reported were based upon something less than “a
thorough physical examination.” Cf. id. (noting that “[i]n contrast” to Frey,
which “dealt with a nontreating physician’s checkmarks on the agency’s RFC
form,” the treating physician at issue “made notes or circled the medical terms for
her findings on her own medical form clearly set up to record the results of a
thorough physical examination; it was not the agency’s checklist RFC form”).
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Furthermore, we note that expanding the Frey rule in this case would be
particularly ill-advised because, in contrast to Frey, there were other materials
that could lend support to the conclusions in the forms. 9 Accordingly, we are not
persuaded by the Commissioner’s first argument.
The Commissioner’s second argument for why these opinions could
properly be rejected relies on the non-examining state agency physicians’ review
of the medical record. 10 Because the agency’s physician reached a conclusion that
was inconsistent with Dr. Wren’s assessments after a review of numerous other
reports in the record, the Commissioner suggests that Dr. Wren’s report could be
discounted. Although the non-examining state agency physician may have
reviewed Dr. Wren’s opinion in the context of other medical evidence and
treatment notes, 11 problematically, it is not clear what weight the ALJ gave to the
9
This supporting material includes: the cardiovascular medical reports
Dr. Wren completed in June 1993 and December 1995, the medical evidence to
which Dr. Wren was privy (including echocardiograms in May 1993, December
1993, June 1996, and July 1996), and Dr. Wren’s and Dr. Woods’s examination
notes. It is not clear whether the ALJ considered this material before rejecting
these opinions.
10
The Commissioner also argues that Dr. Wren’s assessments are
internally inconsistent. However, we are not free to supply reasons not relied
upon by the ALJ. See Robinson, 366 F.3d at 1084. Because the ALJ never
indicated that Dr. Wren’s assessments were internally inconsistent, this argument
must be disregarded.
11
The first agency physician review occurred on November 10, 2000.
Contrary to the treating physicians, this review assessed Mr. Andersen’s
exertional limits at light work: standing, walking, or sitting six hours in a
(continued...)
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agency physician’s assessment. “If an ALJ intends to rely on a nontreating
physician or examiner’s opinion, he must explain the weight he is giving to it.”
Hamlin, 365 F.3d at 1223 (citing 20 C.F.R. § 416.927(f)(2)(ii)). The ALJ did not
do so here. The ALJ’s only remark about the agency physician’s opinion was that
the ALJ “concurs with the DDS physician’s opinion.” Aplt. App. at 18. At
bottom, we conclude that the agency physician’s assessment is not enough to
demonstrate that the ALJ properly discounted Dr. Wren’s opinion. Even if we
were to reach a contrary conclusion, that would not ameliorate the basic problem
addressed above—the failure to consider, or to demonstrate consideration of, the
other factors under § 404.1527(d).
Therefore, we conclude that the ALJ did not apply the correct legal
standards to these treating physicians’ opinions, and further did not provide “good
reasons” for giving such “little weight” to these treating physicians’ opinions.
11
(...continued)
workday; occasional lifting up to twenty pounds; and frequent lifting up to ten
pounds. The medical consultant noted that from alleged onset to expiration of
insurance “claimant had stable valvular heart disease with minimal objective
findings and only sought care for disability form completion.” Aplt. App. at 212.
The consultant disagreed with the “alleged degree of limitations,” stating it was
“not supported” because “[t]he EF, physical exams lacking edema or signs of
failure and so forth indicate better than alleged function.” Id. at 216. After
compiling one page of notes regarding Mr. Andersen’s tests and doctor visits over
the years, the consultant dismissed the treating physicians’ opinions on the
grounds that “[t]hese are simply not substantiated by the objective evidence and
are given little weight in this RFC.” Id. at 217. A second review in March 2001
was more ambivalent, noting that “allegations [are] at least partially credible” but
concluding that “[u]nfortunately for this gentleman, we are dealing with a 12/98
DLI” and thus “will have to reaffirm prior decision.” Id. at 220-21.
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2. Dr. Hodges’s 1999 Assessment
Dr. Charles Hodges apparently became Mr. Andersen’s physician in
December 1997. See Aplt. App. at 120 (noting that Mr. Andersen “is a new
patient to me” on Dec. 11, 1997). He saw Mr. Andersen at least three times in
1998 for sinusitis and an embolus in his left eye in addition to ordering or
reviewing various heart tests. No assessment is in evidence for 1998, but Dr.
Hodges provided one on June 1, 1999. After reviewing an echocardiogram
completed on May 24, 1999, Dr. Hodges concluded that Mr. Andersen could work
zero hours per day and that he would “never” be able to resume work.
The ALJ characterized Dr. Hodges’s assessment as an “attempt[] to
retroactively say he is ‘disabled,’” and concluded that “there are no clinical
reports to show this.” Aplt. App. at 20. The ALJ found information on the June
1999 form to be contrary to Dr. Hodges’s conclusions because the form indicated
that the most recent echocardiogram “shows only mild or moderate symptoms”
and Mr. Andersen “is rated as ‘ambulatory.’” Id.
The ALJ provided no guidance as to what weight was actually assigned to
Dr. Hodges’s opinion. It can perhaps be inferred that the ALJ entirely rejected it.
However, because the ALJ (a) failed to indicate why Dr. Hodges’s opinion did not
receive controlling weight, (b) failed to specify what weight, if any, was given to
Dr. Hodges’s opinion, and (c) failed to explain the reasons for either assigning the
opinion little weight or rejecting it altogether, “we cannot simply presume the
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ALJ applied the correct legal standards.” Robinson, 366 F.3d at 1083 (internal
quotation marks and alteration omitted). We require the ALJ “to make clear to
any subsequent reviewers the weight the adjudicator gave to the treating source’s
medical opinion.” Watkins, 350 F.3d at 1300 (internal quotation marks omitted).
And “we cannot meaningfully review the ALJ’s determination absent findings
explaining the weight assigned to the treating physician’s opinion.” Id. at 1301.
Thus, we must remand. See id.On the other hand, it is possible to interpret the ALJ’s comments as
offering reasons for giving the opinion less than controlling weight. Indeed, the
ALJ’s statements regarding Dr. Hodges’s opinion could be seen as pertaining to
supportability, one of the six factors that must be considered when assigning a
treating physician’s opinion less than controlling weight. See id. at 1300-01.
However, even if we were to look past the ALJ’s failure to indicate what weight
was given to Dr. Hodges’s opinion, we still would have to remand; we could not
consider the ALJ’s statements to be “legitimate reasons” for discounting the
opinion. See id. at 1301.
The ALJ appears to have given far too little weight to Dr. Hodges’s
interpretation of the medical tests. Dr. Hodges noted the results of Mr.
Andersen’s echocardiogram to be “mild LV [left ventricular] dilatation,” “mild
LVH [left ventricular hypertrophy],” “moderate global hypokinesis,” and
“moderate calcific aortic stenosis.” Aplt. App. at 100. However, these “mild”
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and “moderate” modifiers do not necessarily mean that Mr. Andersen’s overall
condition is “mild” or “moderate.” Nor do they inherently contradict Dr.
Hodges’s assessment. Similarly, the ALJ was not correct in discounting the
opinion because Mr. Andersen was rated “ambulatory.” Rating Mr. Andersen as
“ambulatory” appears only to confirm that he could walk and was not “House
confined,” “Bed confined,” or “Hosp[ital] confined.” See Aplt. App. at 100. It
does not necessarily indicate that an individual with that rating can work.
Furthermore, the ALJ’s perfunctory dismissal of Dr. Hodge’s opinion does
not convince us that the ALJ even considered any of the other relevant factors.
Indeed, although the ALJ parenthetically noted that Dr. Hodges was a treating
physician, this notation does not convince us that the ALJ considered the length
or extent of the treatment relationship or the frequency of examination, which are
two of the relevant factors the ALJ was bound to at least consider. See 20 C.F.R.
§ 404.1527(d)(1)-(2). There is nothing to even suggest that Dr. Hodges’s
treatment history with Mr. Andersen—spanning more than a year, and including
multiple office visits covering the very period that the ALJ considered most
relevant—played any role in the ALJ’s decision.
Likewise we do not view the ALJ’s belief that Dr. Hodges’s opinion was an
“attempt[] to retroactively say he is ‘disabled’” to be a legitimate reason, on these
facts, for discounting the opinion. Aplt. App. at 20. Dr. Hodges’s assessment is
different in kind from situations presenting a “retrospective diagnosis without
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evidence of actual disability” that we have previously deemed insufficient. See
Potter v. Sec’y of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir.
1990) (per curiam). In Potter, there was not a single medical report that
identified a disability until nearly four years after the expiration of the claimant’s
insured status. Id. at 1347-49. At that time, a treating physician first provided a
diagnosis of a progressive disease and then noted that it was “conceivable” that
the earlier symptoms were part of this later diagnosis. Id. at 1348. In contrast,
Mr. Andersen’s underlying condition had been diagnosed during the period in
which he was insured, and Dr. Hodges’s 1999 form offered no attempt to
retroactively apply his current assessment to Mr. Andersen’s earlier infirmities.
Thus, in addition to being unable to conclude that the ALJ applied the
correct legal standards, we also are unable to conclude that any reasons that the
ALJ offered were “good,” “legitimate” reasons that could support giving Dr.
Hodges’s opinion little weight.
3. Dr. Mackie’s 2000 Assessment
In June 1996, Dr. R. William Mackie became Mr. Andersen’s cardiologist.
Dr. Mackie performed a physical exam and referred Mr. Andersen for an
echocardiogram that month. In 1998, Dr. Mackie worked with Dr. Hodges to
address Mr. Andersen’s left eye embolism that resulted in blindness in that eye.
Dr. Mackie also performed eleven more physical exams over a three-year period
from 1999 through 2001.
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On September 18, 2000, Dr. Mackie completed a RFC assessment. Some of
the limitations he marked appear to be somewhat inconsistent. He first indicated
that Mr. Andersen could continuously sit for four hours, stand for one hour, and
walk for fifteen minutes. He then indicated that during an eight hour workday,
Mr. Andersen could only sit for two hours and stand or walk for fifteen minutes.
Dr. Mackie marked fatigue and shortness of breath as symptoms that would be
“continually” present, and identified all of these limitations as present since May
1993. His explanatory notes are very brief: “Has Heart failure, severe Aortic
stenosis and Atrial fib[rillation] s/p embolism [in the left] eye.” Aplt. App. at
152.
The ALJ disposed of this opinion very briefly, stating only that it “is very
confusing and does not lend much to assist the undersigned in determining
claimant’s true residual functional capacity” with reference to the contrasting
sit/stand/walk time periods. Id. at 20. It can perhaps be inferred that Dr.
Mackie’s opinion also was discounted for completion “well after the date last
insured,” as the ALJ had noted with regard to Dr. Hodges’s 1999 assessment
earlier in the same paragraph. Id. Again, the ALJ failed to indicate what weight,
if any, was given to Dr. Mackie’s assessment. Furthermore, focusing on the
adequacy of the reasons for giving this assessment less weight, the ALJ neither
provided a sufficient explanation for a subsequent reviewer to understand the
weight actually assigned, nor provided “good reasons” for rejecting the opinion.
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Thus, we must remand. See Watkins, 350 F.3d at 1301.
The ALJ’s cursory discussion of Dr. Mackie’s assessment does not
convince us that the ALJ considered the multiple factors that would support
giving Dr. Mackie’s assessment some weight. First, as a cardiologist, he is a
specialist in this area, and “[w]e generally give more weight to the opinion of a
specialist about medical issues related to his or her area of specialty . . . .” 20
C.F.R. § 404.1527(d)(5). Furthermore, he had examined Mr. Andersen numerous
times, treated Mr. Andersen since 1996, and was familiar with Mr. Andersen’s
cardiological impairments from physical examination and tests. See id. §
404.1527(d)(1)-(2). It is possible that these factors are outweighed by weak
support or contrary evidence in the objective medical data, see id. §
404.1527(d)(3), but the ALJ does not rely on those grounds.
The confusing nature of Dr. Mackie’s responses to some questions on the
form also is not grounds for entirely disregarding his opinion. First, the disparity
between responses has little effect here—whether the broader or narrower sitting
and standing limitations are used, Mr. Andersen would still be limited to
sedentary work. Compare SSR 83-10, 1983 WL 31251, at *6 (explaining that
“the full range of light work requires standing or walking, off and on, for a total
of approximately 6 hours of an 8-hour workday”) with id. at *5 (explaining that at
the sedentary work level, “periods of standing or walking should generally total
no more than about 2 hours of an 8-hour workday”). Second, the differences may
- 27 -
be easily reconcilable upon a closer review of the form Dr. Mackie used. 12 Third,
the ALJ could have contacted Dr. Mackie for clarification, and indeed, the ALJ
may have had a duty to do so. See White, 287 F.3d at 908 (noting that the ALJ
has a duty to “recontact a treating physician when the information the doctor
provides is ‘inadequate to . . . determine whether you [the claimant] are
disabled’” (quoting 20 C.F.R. § 416.912(e)) (alteration in original)). White
clarifies that it is the inadequacy of the “evidence” received from the physician
rather than the inadequacy of the record as a whole, or the rejection of the
physician’s opinion, that gives rise to the duty to recontact a treating physician.
See id. at 905, 908. 13 Arguably, the evidence provided in this instance may not
have been adequate, or alternatively the ALJ may have had sufficient grounds to
reject the opinion. But when, as here, the sole reason provided for disregarding
12
For example, Dr. Mackie indicated that Mr. Andersen could—on a
continuous basis—stand for one hour and walk for fifteen minutes. In the next
question, he indicated that—during an 8-hour competitive workday—Mr.
Andersen would be able to “stand or walk” for fifteen minutes. Aplt. App. at 149.
One reasonable explanation for this difference is that, unlike the first question,
the second question lumps together standing and walking, allowing Dr. Mackie to
select only one time frame for both activities. Thus, Dr. Mackie’s selection of
fifteen minutes arguably would still be consistent with his previous answer that
Mr. Andersen could only walk for fifteen minutes on a continuous basis.
13
The district court erred in relying on White v. Massanari, 271 F.3d
1256, 1260-61 (10th Cir. 2001), in stating that the inadequacy of the record
triggers a duty to recontact. White was altered on precisely this point upon
consideration of the petition for rehearing. See 287 F.3d at 904-05. As the panel
clarified, it is not relevant to the recontact question whether “the record as a
whole is inadequate.” Id. at 905.
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the opinion is its confusing nature, we cannot find that reason adequate absent an
attempt to recontact the physician.
4. Summary
Although the ALJ’s conclusion that Mr. Andersen is capable of a limited
range of light work ultimately may be correct, the ALJ’s failure to indicate the
weight that these treating physicians’ opinions received, which is itself a failure
to apply the correct legal standard, requires us to remand. Furthermore, even if
we were to examine the apparent reasons that the ALJ had for giving these
opinions less than controlling weight, the analysis in the ALJ’s opinion is
insufficient for us to be satisfied that “good reasons” have been provided for
giving these opinions so little weight. Thus, it is clear that we must remand.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment affirming the ALJ’s
decision is REVERSED and the case is REMANDED with instructions to
remand to the Commissioner for additional proceedings in accordance with this
decision.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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05-4305 - Anderson v. Astrue
HARTZ, Circuit Judge, concurring:
Although I am basically in agreement with the analysis of the district court,
I concur in reversal because of the ALJ’s failure to explain the apparent decision
that medical evidence before 1998 was not relevant. See ALJ Op. at 5 (“The
medical record during this relevant time period, the latter part of 1998 . . . .”).