Joe Whitcomb
In a case we recently won at the federal district court, the entire record contained only two opinions offered by the same treating source on the same day regarding the claimant's ability to perform work. The Administrative Law Judge ignored the only uncontroverted medical opinion in the record.
ALJ misreads the doctor's opinion
In rejecting one of these opinions from his treating physician, the ALJ stated erroneously that the opinion offered that the claimant could sit for a total of 0 to 1 hour, walk a total of 0 to 30 minutes, and stand a total of 0 to 30 minutes. However, the opinion actually stated that the claimant could perform those activities for an hour or thirty minutes at one time respectively. The doctor also opined in that statement that the claimant would require a 15-minute break each hour. These statements are completely consistent with the claimant's testimony regarding his abilities and the accommodations that were made for him at his job. In rejecting the doctor's opinion, the ALJ misread the opinion and failed to discuss all of the limitations, specifically the need for a 15-minute break per hour, which the doctor offered. The ALJ also did not follow the proper course for analyzing the doctor's opinion.
10th Circuit ruling
The 10th Circuit ruled in Krauser v. Astrue “The ALJ must complete a sequential two-step inquiry, each step of which is analytically distinct… The initial determination the ALJ must make with respect to a treating physician's medical opinion is whether it is conclusive, i.e., is to be accorded “controlling weight,” on the matter to which it relates. Krauser v. Astrue, 638 F.3d 1324 (10th Cir. 2011); citing Barnhart, 350 F.3d 1297, 1300 (10th Cir.2003). “Such an opinion must be given controlling weight if it is well-supported by medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record.” Id. (applying SSR 96–2p, 1996 WL 374188, at *2); 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2).
“If the opinion is deficient in either of these respects, it is not to be given controlling weight. [However] even if a treating opinion is not given controlling weight, it is still entitled to deference; at the second step in the analysis, the ALJ must make clear how much weight the opinion is being given (including whether it is being rejected outright) and give good reasons, tied to the factors specified in the cited regulations for this particular purpose, for the weight assigned.” Watkins, 350 F.3d at 1300–01. If this is not done, a remand is required. Id. at 1301. Emphasis added.
Second inquiry
“This second inquiry is governed by its own set of factors, summarized as follows:(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.” Krauser v. Astrue, 638 F.3d 1324 (10th Cir. 2011).
ALJ misread opinion
In the present case, the ALJ ignored the only medical opinion of a treating source, based on a misreading of the opinion, and did not perform any of the analysis directed in Watkins or Krauser. In remanding this case to the ALJ, the district court judge ruled "Nevertheless, a medical opinion from a treating physician—which generally merits controlling weight—must be thoroughly evaluated in accordance with case law and Social Security regulations, and if it is to be rejected, such rejection must follow an analysis of the requisite factors. See Watkins, 350 F.3d at 1301 (holding that where a treating physician’s medical opinion is found not to be controlling, the ALJ must “give good reasons” for the weight to be assigned to it, and “if the ALJ rejects the opinion completely, he must then give specific, legitimate reasons for doing so.”) (internal citations omitted); 20 C.F.R. § 404.1527(d)(2); Soc. Sec. Ruling (SSR) 96–2p, 1996 WL 374188, at *4.
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