Quintero v. Colvin , 567 F. App'x 616 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2014
Elisabeth A. Shumaker
Clerk of Court
CYNTHIA QUINTERO,
Plaintiff-Appellant,
v. No. 13-1396
(D.C. No. 1:12-CV-01849-WJM)
CAROLYN W. COLVIN, Acting (D. Colo.)
Commissioner of the Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before McHUGH, PORFILIO, and O’BRIEN, Circuit Judges.
Plaintiff-appellant Cynthia Quintero applied for Social Security disability and
Supplemental Security Income benefits (SSI) in 2009. The Commissioner denied her
applications, and the district court affirmed the Commissioner’s decision. She then
appealed to this court. The sole issue on appeal is whether the administrative law
judge (ALJ) who determined her claim properly evaluated the medical evidence
*
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
concerning her alleged mental impairments. Because the ALJ failed to provide
adequate and acceptable reasons for the weight he assigned to the medical opinions,
we reverse and remand for further proceedings.
BACKGROUND
After the agency administratively denied her applications for benefits,
Ms. Quintero obtained a hearing before the ALJ. The ALJ concluded she had severe
impairments including degenerative disc disease, tendinitis of the left shoulder,
diabetes, and depression. But she further concluded the evidence showed
Ms. Quintero retained the residual functional capacity (RFC) to perform light work
with the following limitations: [she] would require simple, unskilled
work with a specific vocational preparation (SVP) of one or two; should
not work in close proximity to coworkers, meaning that the individual
could not function as a member of a team; should have minimal direct
contact with the public[.]1
Admin. R., Vol. I at 12.
Given this RFC, the ALJ found Ms. Quintero could perform a significant
number of jobs in the national economy. She therefore denied benefits at step five of
the sequential analysis.2
1
The ALJ also imposed certain specific physical restrictions as part of her RFC.
These are not at issue in this appeal, so we do not detail them here.
2
The Commissioner follows a five-step sequential evaluation process
to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748,
750-52 (10th Cir. 1988) (describing process). The claimant bears the burden
of establishing a prima facie case of disability at steps one through four. See id.at 751 n.2. If the claimant successfully meets this burden, the burden of proof shifts
to the Commissioner at step five to show the claimant retains a sufficient RFC to
(continued)
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The record contains three medical opinions concerning the effect of
Ms. Quintero’s mental impairments on her ability to work. Brett Valette, Ph.D.,
a consulting psychiatrist, administered a mental status exam to Ms. Quintero on
May 13, 2009. He noted her affect was sad. She reported feeling depressed,
helpless, hopeless, and worthless. Dr. Valette concluded Ms. Quintero
elicits symptoms of major depression, but is not being helped by
medication. This is in response to losing her job and not being able to
work and then feeling stuck, like she cannot improve herself because
she does not have any money for her [rotator cuff] surgery. . . . She had
some difficulties on the mental status examination with short-term
memory, with serial 3’s. She had trouble with general information. Her
abstractions were good. Her proverbs were good. Her judgment and
reasoning [were] adequate.
Id., Vol. II at 429. He diagnosed her with major depression, noted moderate to
severe psychosocial stressors, and assigned her a GAF score of 50.3
Based in large part on Dr. Valette’s examination and findings, agency
psychologist MaryAnn Wharry, Psy.D., prepared a psychiatric review technique form
(PRT) and a mental RFC assessment of Ms. Quintero. On the PRT form, Dr. Wharry
assigned Ms. Quintero “mild” difficulties in maintaining social functioning and
perform work in the national economy, given her age, education and work
experience. See id. at 751.
3
“The GAF is a 100-point scale divided into ten numerical ranges, which
permits clinicians to assign a single ranged score to a person’s psychological, social,
and occupational functioning.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 n.1
(10th Cir. 2012). A GAF score of 41-50 indicates “[s]erious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment
in social, occupational, or school functioning (e.g., no friends, unable to keep a job).”
Id. (internal quotation marks omitted).
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“moderate” difficulties in maintaining concentration, persistence, or pace. Id. at 440.
On the mental RFC assessment form, Dr. Wharry found her “moderately limited” in
her ability “to understand and remember detailed instructions,” “to carry out detailed
instructions,” “to maintain attention and concentration for extended periods,” and “to
complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods.” Id. at 444-45. Dr. Wharry
explained Ms. Quintero’s
[s]ymptoms may interfere with completion of a normal workday or
workweek or may cause inconsistent pace. However, when work does
not require more than simple instructions, ordinary routines and simple
work decision making, limitations of attendance and pace will not
prevent the completion of a normal workday/workweek or significantly
reduce pace. [Ms. Quintero] can perform at a consistent pace without
an unreasonable number and length of rest periods when work demands
are within [mental RFC] restrictions.
Id. at 446.
The third opinion in the file concerning the effect of Ms. Quintero’s mental
impairments on her ability to work came from José G. Vega, Ph.D. On June 20,
2009, he administered a mental status examination to Ms. Quintero. He noted she
had difficulty performing serial 7s and with simple arithmetical tasks, but could
count from 20 to 1 backwards without any errors. He stated he suspected she
“functions within the low average range of intelligence” and noted she presented
“with some difficulties with attention and concentration and some memory [deficits]
which would seem to be related due to [sic] her depression and anxiety.” Id. at 472.
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Dr. Vega diagnosed Ms. Quintero with “Major Depression, Recurrent,
Moderate”; “Posttraumatic Stress Disorder, Chronic,” resulting from previous abuse
she had suffered; and “Pain Disorder Associated with Both Psychological factors and
a General Medical Condition.” Id. at 473. He assigned her a GAF score of 50-55.4
He concluded:
As it relates to her functioning, the results of this evaluation would
indicate that she would have difficulties in everyday life or work-like
activities, particularly in the areas of social interaction, sustained
concentration and persistence, as well as some memory, which would
seem to be affected by her moderate to severe levels of depression and
anxiety. She does have difficulty with adaptation and being able to
adapt to situations.
Id.
Dr. Vega completed a mental RFC form, in which he assigned Ms. Quintero
“moderate,” “marked,” or “moderate-to-marked” limitations in every category
provided on the form. Id. at 468-69. His RFC form as completed included
limitations not only on Ms. Quintero’s abilities in the domains of “understanding and
memory” and “sustained concentration and persistence,” as Dr. Wharry’s did, but
also in the domains of “social interaction” and “adaptation.” Id.
4
A GAF score of 51-60 indicates “Moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or
co-workers).” Keyes-Zachary, 695 F.3d at 1162 n.1 (internal quotation marks
omitted).
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In her decision, the ALJ considered and discussed this medical evidence.
She made three somewhat inconsistent statements about Dr. Vega’s mental status
examination report and RFC form. First, she stated they “were not given controlling
weight as [Dr. Vega] was not a treating source.” Id., Vol. I at 15. Second, she
determined they were entitled to “little, if any weight” because they “were prepared
at the behest of [Ms. Quintero’s] counsel in anticipation of this hearing.” Id. Finally,
and inconsistently with the previous statement, she stated “to the extent that
Dr. Vega’s assessment was consistent with that of the independent consultative
examiner [Dr. Valette], his assessment was given great weight.” Id.
As for Dr. Valette’s assessment, the ALJ discussed it in a single
sentence providing no actual reason for assigning it any weight: “The
assessment of Dr. Valette was given great weight as his suggested restrictions
were incorporated in the residual functional capacity assessment above.” Id.
Based on these evaluations, the ALJ concluded:
Both Dr. Vega and Dr. Valette noted that claimant’s depressive
symptoms would cause some difficulties in the areas of social
functioning[5] and concentration, persistence and pace. Therefore, the
residual functional capacity assessment set forth above incorporated
restrictions regarding these areas; after which it was determined that
[Ms. Quintero] was able to work.
Id.
5
As previously noted, Dr. Wharry’s mental RFC form, which was based on
Dr. Valette’s findings, did not impose a significant limitation on social interaction.
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DISCUSSION
1. Standard of Review
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct
legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).
2. ALJ’s Weighing of Conflicting Medical Opinions
The Commissioner’s regulations require the ALJ to consider all medical
opinions in the record. See 20 C.F.R. §§ 404.1527(c), 416.927(c). She must also
discuss the weight she assigns to such opinions. See id. §§ 404.1527(e)(2)(ii),
416.927(e)(2)(ii) (“[T]he administrative law judge must explain in the decision the
weight given to the opinions of a State agency medical or psychological consultant or
other program physician, psychologist, or other medical specialist, as the
administrative law judge must do for any opinions from treating sources, nontreating
sources, and other nonexamining sources who do not work for us.”). The regulations
identify a number of specific factors the ALJ should consider in deciding the weight
to give to a medical opinion. Id. §§ 404.1527(c); 416.927(c).
Although there may be acceptable reasons in the record to discount Dr. Vega’s
opinions, the ALJ failed to articulate such reasons. First, the ALJ’s observation that
Dr. Vega was an examining rather than a treating physician was not a valid reason for
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rejecting the opinion. Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (ALJ’s
finding a physician’s opinion is not entitled to the conclusive weight of a treating
medical-source opinion “is not by itself a basis for rejecting [the opinion]—otherwise
the opinions of consultative examiners would essentially be worthless, when in fact
they are often fully relied on as the dispositive basis for RFC findings”).
Nor was it proper for the ALJ to assign little, if any, weight to Dr. Vega’s
assessment because it was prepared at counsel’s request for purposes of the hearing.
This reasoning, without more, does not justify rejection of a medical opinion.6 It
implies a consulting examiner’s opinion is necessarily less trustworthy when it is
sought or obtained by the claimant, a position this court long ago rejected in the
context of treating physicians’ opinions. See McGoffin v. Barnhart, 288 F.3d 1248,
1253 (10th Cir. 2002); Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987).
Moreover, rejecting Dr. Vega’s opinion on the ground the opinion was obtained by
Ms. Quintero’s counsel fails to follow the established legal rules for weighing
medical opinions. See 20 C.F.R. §§ 404.1527(c), 416.927(c) (setting forth
appropriate factors for weighing medical opinions). And the record reveals no
“exceptional basis in the facts of this case” for ignoring the general rule. Frey,
816 F.2d at 515.
6
Although the ALJ actually stated she assigned the opinion “little, if any
weight” rather than outright rejecting it, we have recognized such statements operate
as the equivalent of a rejection of the opinion. See Chapo, 682 F.3d at 1291
(construing the ALJ’s decision to assign little weight to an opinion as an effective
rejection of it).
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The ALJ’s other finding concerning Dr. Vega’s opinions contains a serious
inconsistency. Notwithstanding the ALJ’s global statement that Dr. Vega’s opinions
were entitled to little if any weight, she assigned great weight to those portions of it
she found consistent with Dr. Valette’s opinion. Certainly, the consistency of
Dr. Vega’s opinions with the record as a whole was a legitimate factor to be
considered in evaluating the opinions. See 20 C.F.R. § 404.1527(c)(4) (“Generally,
the more consistent an opinion is with the record as a whole, the more weight we will
give to that opinion.”); id. § 416.927(c)(4) (same). But here, the ALJ did not
evaluate Dr. Vega’s opinions against the record as a whole. She only compared them
in conclusory fashion to Dr. Valette’s opinion, and assigned great weight to portions
of Dr. Vega’s opinion—which she had previously rejected in toto—for no other
reason than their agreement with Dr. Valette’s opinion.
“An ALJ is not entitled to pick and choose through an uncontradicted medical
opinion, taking only the parts that are favorable to a finding of nondisability.” Haga
v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007). Granted, Dr. Vega’s opinions were
not entirely “uncontradicted,” because they did not entirely agree with Dr. Valette’s
opinion. But this brings us to a second problem: the ALJ provided no valid reason
for choosing Dr. Valette’s opinion over Dr. Vega’s in those instances where the
opinions differed. See Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002)
(“When there is conflicting medical evidence, the [Commissioner] must determine
credibility and resolve the conflict.” (internal quotation marks omitted)); Reveteriano
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v. Astrue, 490 F. App’x 945, 947 (10th Cir. 2012) (“[T]o the extent there are
differences of opinion among the medical sources, the ALJ must explain the basis for
adopting one and rejecting another, with reference to the factors governing the
evaluation of medical-source opinions set out in 20 C.F.R. §§ [404.1527(c)] and
[416.927(c)].”). Nor did the ALJ provide any reason whatsoever for the great weight
she assigned to Dr. Valette’s opinion. In sum, the ALJ provided us with no basis for
judicial review of the relative weights she assigned to these opinions.
Finally, because of the significant differences between the opinions of
Drs. Vega and Valette, and between the mental limitations Dr. Vega found and those
accepted by the ALJ, this error cannot be considered harmless. See Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1165 (10th Cir. 2012) (finding error harmless where ALJ
failed to assign weight to medical opinion, but where limitations assigned by
physician were not inconsistent with those found by ALJ).7 We note the
Commissioner attempts to rehabilitate the ALJ’s decision by offering belated
justifications for the weight assigned to the opinions, but the problems cannot be
fixed on appeal and must be repaired by the ALJ on remand. See Carpenter v.
7
The Commissioner argues Ms. Quintero has failed to challenge the ALJ’s
separate finding she was not a credible witness. The ALJ’s adverse credibility
finding, however, does not demonstrate the error Ms. Quintero did raise, concerning
the medical evidence, was harmless. Even given her credibility assessment, the ALJ
concluded, based on all the evidence, Ms. Quintero’s mental impairments would
cause her restrictions in the areas of social functioning and concentration,
persistence, and pace. The degree to which these and possibly other mental
restrictions would affect her ability to work required a proper analysis of the medical
evidence, which the ALJ failed to perform.
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Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008) (“Judicial review is limited to the
reasons stated in the ALJ’s decision; the magistrate judge should not have supplied
possible reasons for rejecting a physician’s opinion in order to affirm.”). We must
therefore remand to the ALJ for a proper evaluation of the opinions of Drs. Vega and
Valette.
The judgment of the district court is reversed and the case is remanded to the
district court with instructions to remand to the Commissioner for further
proceedings in accordance with this order and judgment.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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