Opinion
Case No. 04-2272-JWL.
December 3, 2004
MEMORANDUM AND ORDER
Plaintiff Violet Thygesen brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of defendant Jo Anne B. Barnhart, the Commissioner of Social Security ("the Commissioner"), denying Ms. Thygesen's application for disability insurance benefits under Title II of the Social Security Act, as amended. Plaintiff argues that when assessing her residual function capacity ("RFC"), the Administrative Law Judge ("ALJ") erred by not applying the correct legal standard when discounting the opinions of three of her treating physicians and that the ALJ failed to consider substantial evidence when determining plaintiff's RFC, leading to an improper RFC and an incorrect finding that plaintiff could perform work that existed in significant numbers in the national economy. As explained below, the court agrees that the ALJ applied the incorrect legal standard and reverses and remands this case to the Commissioner for further proceedings consistent with this Memorandum and Order. The court however cannot say whether there is substantial evidence as a reasonable mind might accept for the determination of plaintiff's RFC and ability to perform work that exists in significant numbers in the national economy without knowing what amount of deference will be given to the opinions of the treating physicians, which are subject to remand.
In her reply memorandum, plaintiff raises two new arguments, that the ALJ erred by not seeking to develop the record further before rejecting the findings, medical source statements and opinion of Roger Cicala, M.D., Susan Lee, M.D., and Stanley Butts, Ph.D. and that the ALJ erred by finding that Ms. Thygesen had the RFC for "light work" and therefore did not apply the Medical-Vocational Grid Rule 201.14, which would have directed a finding of disabled. However, a party is prohibited from raising new arguments and issues in a reply brief. Boilermaker-Blacksmith Nat. Pension Fund v. Gendron, 67 F. Supp.2d 1250, 1257 n. 4 (D. Kan. 1999), and a court is not to consider issues first raised in a reply brief, Plotner v. AT T Corp., 224 F.3d 1161, 1175 (10th Cir. 2000). Thus, the court declines to address these arguments first advanced in the plaintiff's reply brief. See United States ex rel. Hafter D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 n. 5 (10th Cir. 1999).
I. BACKGROUND
On February 29, 2000, plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, claiming disability since January 1, 1997. Initially and on reconsideration, the claim was denied. On October 12, 2000, plaintiff timely filed a Request for Hearing.
At plaintiff's request, an administrative hearing took place in Kansas City, Kansas on March 28, 2002 to consider plaintiff's claim, and both plaintiff and her attorney, Sharon Meyers, were present. At the hearing conducted by ALJ John J. Rubin, the issue of disability was considered for the time period beginning January 1, 1997 through the decision date, June 18, 2002.
On June 18, 2002, the ALJ rendered a decision in which he found that plaintiff met the special earnings requirements of Title II of the Social Security Act on January 1, 1997; that plaintiff had not engaged in substantial gainful activity since January 1, 1997; that plaintiff suffered from a severe combination of impairments in the form of degenerative disc disease of the lumbar spine, with sacroiliac and lumbar facet arthropathy and disc bulging at L4-5, L5-S1, osteopenia, fibromyalgia, restless leg syndrome, irritable bowel syndrom, major depressive disorder which was recurrent and moderate, and chronic pain disorder with psychogenic overlay, secondary to general medical condition; that none of plaintiff's impairments or combination of impairments equaled any of the criteria in the listing of impairments; that plaintiff could not perform past relevant work; and that plaintiff's vocational profile and RFC allowed her to perform jobs that existed in significant numbers in the national economy. Thus, the ALJ determined that plaintiff was not disabled and denied benefits. The Appeals Council denied plaintiff's request for review, and therefore the ALJ's decision stands as the Commissioner's final decision.
II. STANDARD OF REVIEW
On appeal, this court's review of the Commissioner's determination that a claimant is not disabled is limited. Hamilton v. Sec'y of HHS, 961 F.2d 1495, 1497 (10th Cir. 1992). The court examines whether the decision is supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001); Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." White, 271 F.3d at 1257 (quotation omitted); accord Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996) (same). The court neither reweighs the evidence nor substitutes its judgment for that of the Commissioner. White, 271 F.3d at 1257; Qualls, 206 F.3d at 1371. This deferential standard of review, however, does not apply to the Commissioner's application of the law. Reversal may be appropriate when the Commissioner either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996); Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).
III. ANALYSIS
"The Commissioner follows a five-step sequential evaluation process to determine whether a claimant is disabled." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003); see also 20 C.F.R. § 404.1520 (explaining this five-step process). In this case, the ALJ determined plaintiff was not disabled at step five. At step five, the Commissioner has the burden of proof in showing that the claimant retains the functional capacity to do other work that exists in the national economy. See Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Here, plaintiff argues that the ALJ committed reversible error by giving "no weight" to the opinions of plaintiff's treating physicians and by failing to consider substantial evidence that detracted from the weight of his decision. The court agrees that reversal and remand is appropriate here as the ALJ used the incorrect legal standard when considering the treating physicians' opinions. The court however cannot say whether or not there is substantial evidence as a reasonable mind might accept for the determination of plaintiff's RFC and ability to perform work that exists in the national economy without knowing what amount of deference will be given to the opinions of the treating physicians, which are subject to remand.
A. WEIGHT GIVEN TO MEDICAL OPINIONS
Plaintiff argues that the ALJ used the incorrect legal standard, improperly rejecting the opinion of Plaintiff's treating physicians, Roger Cicala, M.D., Susan Lee, M.D. and Stanley Butts, Ph.D. Under the Social Security Administration's regulations, a treating physician's opinion concerning the nature and extent of a claimant's disability is entitled to "controlling weight" if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and is "not inconsistent with the other substantial evidence in [the claimant's] case record." Doyal, 331 F.3d at 762 (quoting 20 C.F.R. § 416.927(d)(2)). If a treating physician's opinion is inconsistent with other medical evidence, the ALJ must then examine the consulting physician's report "to see if [it] `outweigh[s]' the treating physician's report, not the other way around." Goatcher v. U.S. Dept. of Health Human Services, 52 F.3d 288, 290 (10th Cir. 1995) (quotation omitted).
Even if the opinion is not entitled to controlling weight, it is still entitled to deference and must be weighed using the following six factors:
(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.Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quotation omitted); accord Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (same); see also 20 C.F.R. §§ 404.1527(d), 416.927(d) (listing these factors); Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *4 (July 2, 1996) [hereinafter SSR 96-2p] (treating source opinions that are not entitled to controlling weight are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. §§ 404.1527 and 416.927). After considering these factors, the ALJ must give good reasons for the weight he ultimately assigns to the opinion of the treating physician. Watkins, 350 F.3d at 1300; Doyal, 331 F.3d at 762; SSR 96-2p, at *5. In the end, the ALJ must give specific, legitimate reasons for disregarding a treating physician's opinion that a claimant is disabled. Goatcher v. United States Dep't of Health Human Servs., 52 F.3d 288, 290 (10th Cir. 1995).
Here, the ALJ gave "no weight" to the findings, medical source statements and medical opinions of Drs. Cicala, Lee and Butts finding that their opinions were wholly unsupported by objective medical/clinical findings, and that the exhibits provided in support of the finding of a disability were merely checklists. (Tr. 21-23). Given this reasoning, the ALJ found that the opinions were not entitled to controlling weight. See Doyal, 331 F.3d at 762. However, the ALJ failed to consider all of the six factors set out by Langley, 373 F.3d 1116, to determine what amount of deference to give the doctors' opinions, specifically failing to consider the length of the treatment relationship and the frequency of examinations and the nature and extent of the treatment relationship, including the treatment provided and the kind of examinations or testing performed. ( See Tr. 21-23).
Since the ALJ did not use these two factors to discount the opinions of Drs. Cicala, Lee and Butts, the incorrect legal standard was relied on in giving "no weight" to these physicians' opinions and reversal is appropriate. See Winfrey, 92 F.3d at 1019.
B. FORMULATING THE RESIDUAL FUNCTIONAL CAPACITY
Plaintiff also argues that the ALJ failed to consider substantial evidence, consisting of the opinions of William Regan, M.D., a Disability Determination Services ("DDS") physician, Dr. Cicala and Dr. Lee regarding plaintiff's ability to concentrate as well as evidence that plaintiff would have to miss work three to four times a month provided by Drs. Cicala, Lee, Butts and Linda Klein, M.D., when assessing plaintiff's RFC, leading to an improper RFC and an incorrect finding that plaintiff could perform work that existed in significant numbers in the national economy. Defendant responds by arguing that the ALJ considered all of the evidence in the record while formulating the RFC, and determined plaintiffs's RFC after making the credibility determination that he should not include all of plaintiff's alleged limitations.
While examining whether the ALJ's determination was supported by substantial evidence, the court cannot reweigh the evidence nor substitute its judgment for that of the ALJ. White, 271 F.3d at 1257; Qualls, 206 F.3d at 1371. The court's examination is limited to determining if there is relevant evidence as a reasonable mind might accept as adequate to support a conclusion. White, 271 F.3d at 1257.
Above, the court found that reversal is appropriate for the deference given to the opinions of Drs. Cicala, Lee and Butts as the ALJ used the incorrect legal standard. Therefore, the court cannot say whether or not there is substantial evidence as a reasonable mind might accept without knowing what amount of deference will be given the to opinions of Drs. Cicala, Lee and Butts.
IV. CONCLUSION
The court finds that the ALJ applied the incorrect legal standard to the opinions of Drs. Cicala, Lee and Butts and reverses and remands this case to the Commissioner for the correct legal standard to be applied to the weight assigned to these treating physicians' opinions. The court, however, cannot say whether or not there is substantial evidence as a reasonable mind might accept for the determination of plaintiff's RFC and ability to perform work that exists in the national economy without knowing what amount of deference will be given to the opinions of the treating physicians that are subject to remand.
IT IS THEREFORE ORDERED BY THE COURT that the Commissioner's decision denying Ms. Thygesen's request for SSI is reversed and remanded for further proceedings consistent with this Memorandum and Order.
IT IS SO ORDERED.