Sitsler v. Barnhart

182 F. App'x 819
Court of Appeals for the Tenth Circuit·Decided June 1, 2006·No. No. 05-5197·Published·Cited by 6 cases

Opinion

[820] ORDER AND JUDGMENT*

MICHAEL R. MURPHY, Circuit Judge.

Plaintiff-appellant Greg Sitsler appeals from the order entered by the district court affirming the Social Security Commissioner’s decision denying his applications for disability insurance benefits and supplemental security income benefits under the Social Security Act. Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we reverse and remand for further proceedings.

I.

In a decision issued in December 2003, the administrative law judge (ALJ) denied plaintiffs applications for benefits at step five of the five-step sequential evaluation process for determining disability, finding that: (1) plaintiff suffered from severe physical impairments as a result of his “status post heat stroke,” Aplt.App., Vol. II at 21; (2) plaintiff suffered from a severe mental impairment in the form of an “adjustment disorder,” id.; (3) plaintiff did not retain the residual functional capacity (RFC) to perform the heavy physical exertion requirements of his past relevant work as a concrete finisher; but (4) plaintiff retained the RFC to perform the physical exertion requirements of some medium work; and (5) based on the responses to interrogatories submitted by the vocational expert, there are a significant number of jobs in the national economy that plaintiff can perform.

In March 2004, the Appeals Council denied plaintiffs request for review of the ALJ’s decision. Plaintiff then filed a complaint in the district court. In September 2005, the district court entered an order and a related judgment affirming the denial of plaintiffs applications for benefits. This appeal followed.

II.

Because the Appeals Council denied review, the ALJ’s decision is the Commissioner’s final decision for purposes of this appeal. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.2003). In reviewing the ALJ’s decision, “we neither reweigh the evidence nor substitute our judgment for that of the agency.” Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991). Instead, we review the ALJ’s decision only “to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Doyal, 331 F.3d at 760.

In this appeal, plaintiff claims the ALJ committed reversible error by failing to properly consider the medical opinions of Dr. Minor W. Gordon, the psychologist who performed two consultative examinations and diagnosed plaintiff as suffering from a mental impairment. We agree with plaintiff that the ALJ erred by failing to explain in his decision why he rejected Dr. Gordon’s opinions regarding the work limitations caused by plaintiffs mental impairment. We therefore reverse the district court and remand this matter to the Commissioner for further proceedings.

A. Dr. Gordon’s Opinions.

At the hearing before the ALJ, the medical expert called by the ALJ testified that, [821] in his opinion, plaintiff did not suffer from a medically determinable physical impairment. The expert suggested, however, that plaintiff may have a mental impairment. Based on the expert’s testimony and the arguments of plaintiffs counsel, the ALJ determined that plaintiff should be evaluated by a psychologist, with the evaluation to include a Minnesota Multiphasic Personality Inventory test (MMPI).

The psychological evaluation was subsequently performed by Dr. Gordon, and Dr. Gordon prepared a report dated March 10, 2003. In his report, Dr. Gordon diagnosed plaintiff as suffering from an “[adjustment disorder with depressed mood, moderate, secondary to his general physical condition to include chronic pain.” Aplt. App., Vol. II at 232. Dr. Gordon also completed a “Mental Medical Source Statement” for plaintiff. In his statement, Dr. Gordon opined that plaintiffs mental impairment had resulted in a “Moderate Limitation” on plaintiffs “ability to maintain attention and concentration for extended periods.” Id. at 235. According to Dr. Gordon’s statement, this meant that plaintiffs mental impairment would “[a]ffect[ ] but ... not preclude [his] ability to perform basic work functions.” Id. at 234.

In a letter dated April 10, 2003 to vocational expert Cheryl Mallon, the ALJ subsequently asked Ms. Mallon to assume a hypothetical person with the same general characteristics and limitations as plaintiff, which limitations included the “need[] to avoid mandatory attention and concentration for extended periods.” Id. at 100. In a letter dated May 1, 2003, Ms. Mallon responded to the ALJ’s hypothetical question, stating that such a person could perform four different jobs that exist in the national economy. Id. at 102.

After receiving copies of Ms. Mallon’s letter and Dr. Gordon’s psychological evaluation, plaintiffs counsel sent a letter to the ALJ in which he objected to the limited scope of Dr. Gordon’s evaluation. Specifically, plaintiffs counsel pointed out that Dr. Gordon had not administered an MMPI test as part of his evaluation. Id. at 108. Although there is no correspondence in the record setting forth the ALJ’s response to plaintiffs counsel’s objection, the ALJ apparently agreed with plaintiffs counsel’s assertion that Dr. Gordon’s first evaluation was deficient, because arrangements were subsequently made for Dr. Gordon to perform a second psychological evaluation.

As part of his second psychological evaluation, Dr. Gordon administered an MMPI test, and he also prepared a written report dated September 15, 2003. In his report, Dr. Gordon once again diagnosed plaintiff as suffering from an “[adjustment disorder with depressed mood.” Id. at 282. However, while Dr. Gordon assessed this disorder as being “moderate” in his first report, id. at 232, he assessed the disorder as being “moderate to severe” in his second report, id. at 282. In addition, as part of the second evaluation, Dr. Gordon also prepared another “Mental Medical Source Statement.” In his statement, Dr. Gordon reiterated his prior opinion that plaintiffs mental impairment had resulted in a “Moderate Limitation” on plaintiffs “ability to maintain attention and concentration for extended periods.” Id. at 284. Dr. Gordon also added additional limitations that were not included in his first report, however, and the new limitations included a “Moderate Limitation” rating for: (1) “[t]he ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances,” id.; (2) “[t]he ability to make simple work related decisions,” id.; and (3) “[t]he ability 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.1

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Sitsler v. Barnhart, 182 F. App'x 819 (10th Cir. 2006).

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