Elliot v. Astrue

Filing 18

ORDER. This case is REVERSED AND REMANDED to the Commissioner for further fact finding pursuant to sentence four in 42 U.S.C. § 405(g). By Chief Judge Wiley Y. Daniel on 9/28/2011. (sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 10-cv-01548-WYD
ERIN ELLIOTT on behalf of
WILLIAM ELLIOTT, deceased
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.

ORDER

THIS MATTER is before the Court on review of the Commissioner’s decision that
denied William Elliott’s claim for disability insurance benefits. For the reasons stated
below, this case is reversed and remanded for further fact finding.
I.

INTRODUCTION AND BACKGROUND
William Elliott [hereinafter “Mr. Elliott”], born in October 1973, was 28 years old

on March 31, 2002, the date he alleged that he became disabled. (Transcript [“Tr.”]
143.) He obtained a general equivalency degree [“GED”] and had past relevant work
experience installing windshields. (Id. 149, 153.)
Mr. Elliott filed his application for disability benefits in March 2006 alleging that he
became disabled on March 31, 2002, due to a neurological disease. (Tr. 143-44, 148.)

Specifically, it is alleged that Mr. Elliott had focal amyotrophy.1 As of October 2002, just
shortly after Mr. Elliott’s date last insured of September 30, 2002, a physical therapist
indicated that the condition appeared to primarily affect Mr. Elliot’s left arm and shoulder
and right leg. The condition progressed over time and, by 2007, involved both upper
extremities and his right leg. (Tr. 225.)
Mr. Elliott’s application was denied at the initial determination stage. (Tr. 27,
258.) A hearing was held before an ALJ on December 3, 2007. (Id. 334-58.) The ALJ
concluded in a decision dated January 20, 2009, that Mr. Elliott was not disabled
because his medically determinable impairment was not severe. (Id. 28B.)
Mr. Elliott passed away on July 26, 2008, prior to the ALJ’s decision. His death
occurred when he fell off a boat and drowned. Plaintiff asserts that Mr. Elliott drowned
because he had insufficient muscle strength to save himself when he fell off the boat.
(See Pl.’s Opening Brief at 6.). The reason for his death is, however, immaterial to
resolution of this case as it occurred almost six years after his date last insured.
Mr. Elliott’s wife was properly substituted at the administrative level as a party who
would be adversely affected were the action dismissed. The Appeals Council

1

Plaintiff explains that “focal amyotrophy” is a motor neuron disease. According to the National
Institute of Neurological Diseases, the motor neuron diseases [“MNDs”] are a group of progressive
neurological disorders that destroy motor neurons, the cells that control essential voluntary muscle activity
such as speaking, walking, breathing, and swallowing. Normally, messages from nerve cells in the brain
(called upper motor neurons) are transmitted to nerve cells in the brain stem and spinal cord (called lower
motor neurons) and from them to particular muscles. Upper motor neurons direct the lower motor neurons
to produce movements such as walking or chewing. Lower motor neurons control movement in the arms,
legs, chest, face, throat, and tongue. When there are disruptions in these signals, the muscles do not
work properly; the result can be gradual weakening, wasting away, and uncontrollable twitching (called
fasciculations). Eventually, the ability to control voluntary movement can be lost. http://www.ninds.
nih.gov/disorders/motor_neuron_diseases/detail_motor_neuron_diseases.htm#138743144.

-2-

substituted Mrs. Elliott as the claimant, accepted review, and remanded the case to the
ALJ for further evaluation. (Tr. 28B-28D.)
An ALJ held a subsequent hearing on July 27, 2009 (Tr. 359-81). A decision was
issued on December 1, 2009, in which the ALJ concluded that Mr. Elliott was not
disabled under the Act at step five because other work existed in the national economy
that he could perform. (Tr. 14-25.)
More specifically, under the sequential evaluation required by law, the ALJ found
at step one that Mr. Elliott had not engaged in substantial gainful activity from his
alleged onset date, March 31, 2002, through the expiration of his disability insurance
(date last insured or “DLI”) of September 30, 2002. (Tr. 21, Finding 2.) He determined
at step two that Mr. Elliott’s focal amyotrophy was a “severe” impairment. (Id., Finding
3.) At step three, the ALJ found that Mr. Elliott’s impairment did not meet or equal
Listing 11.00 in 20 C.F.R pt. 404, subpt. P, app. 1. (Id., Finding 4.)
The ALJ next considered Mr. Elliott’s symptoms and alleged limitations. (Tr. 2223.) Following the two-step pain analysis, the ALJ determined that Mr. Elliott’s
statements concerning the intensity, persistence, and limiting effects of his symptoms
were not credible to the extent they were inconsistent with the residual functional
capacity [“RFC”] assessment. (Id. 22.) He also determined that Mr. Elliott retained the
RFC to perform less than the full range of light work. (Id. 21-22.) Specifically, the ALJ
found that Mr. Elliott could lift and carry 20 pounds occasionally, 10 pounds frequently;
sit, stand, walk for six hours in an eight-hour workday; occasionally push and pull with
the upper extremities; occasional use of the lower extremities; not climb ladders, ropes
-3-

or scaffolds; occasionally climb ramps and stairs, balance, stoop, crouch, and crawl;
and occasionally reach, handle, and finger on the left. (Id., Finding 5.)
At step four, the ALJ found that Mr. Elliott’s RFC precluded him from performing
his past work as an auto glass installer. (Tr. 23, Finding 6.) However, he found at step
five that Mr. Elliott could perform other work that existed in significant numbers in the
national economy. (Id. 24, Finding 10). This included work as a “call-out operator,”
“counter clerk photo finisher,” and “furniture rental consultant”. (Id. 24-25.) As such, the
ALJ found that Mr. Elliott was not disabled under the Act. (Id. 25, Finding 11.)
The Appeals Council declined review on May 26, 2010. (Tr. 8-10). This appeal
followed. This Court has jurisdiction to review the decision pursuant to 42 U.S.C.
§ 405(g).
Plaintiff argues that the ALJ failed to base his step three finding in substantial
evidence by failing to consider all the applicable Listings involving neurologically based
muscle atrophy and by failing to consult a medical expert on the issue of whether
Mr. Elliott’s impairments equaled any Listing. She also argues that the ALJ’s RFC and
credibility assessments are not supported by substantial evidence. I address these
arguments below.
II.

ANALYSIS
A.

Standard of Review

A Court’s review of the determination that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standard and whether
the decision is supported by substantial evidence. Hamilton v. Sec. of Health and
-4-

Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). Substantial evidence is
evidence a reasonable mind would accept as adequate to support a conclusion. Brown
v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). “It requires more than a scintilla of
evidence but less than a preponderance of the evidence.” Gossett v. Bowen, 862 F.2d
802, 804 (10th Cir. 1988).
“Evidence is not substantial if it is overwhelmed by other evidence in the record
or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992). Further, “if the ALJ failed to apply the correct legal test, there is a ground for
reversal apart from substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487
(10th Cir. 1993).
B.

Whether the ALJ’s Decision is Supported by Substantial Evidence
1.

Whether the ALJ Erred at Step Three

Step three requires a finding of disability when the claimant has an impairment
that “meets or equals” one of the impairments listed at 20 C.F.R. §404, Subpart P,
Appendix 1 (“the Listings”). 20 C.F.R. §404.1520(a)(4)(iii). An ALJ is required “to
discuss the evidence and explain why he found that [a claimant] was not disabled at
step three.” Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1997). The claimant must
point to objective medical evidence in the record that supports a finding that he or she
meets a listing. See Bernal v. Bowen, 851 F.2d 297, 300 (10th Cir. 1988).
Plaintiff asserts that three Listings are relevant to the impairments involving
Mr. Elliott’s neurological condition, consisting of muscle atrophy caused by problems
with the nerves that serve particular muscles—Listings 1.04A, 11.00(C), and 14.04.
-5-

She further asserts that while her husband’s impairment may not have precisely met the
requirements of all these Listings, there was substantial evidence that implicated all
three Listings and that a medical expert should have been retained. Plaintiff also
argues that the ALJ erred in considering only whether Mr. Elliott’s impairment met or
equaled one listing, Listing 11.00(C), and not the other two relevant Listings.
I first address Listing 11.00(C), the only Listing considered by the ALJ. The ALJ
found that Mr. Elliott’s impairment did not meet or equal this Listing because he had “the
use of his fingers, hands, and arms during the period at issue.” (Tr. 21.) The period at
issue as referenced in the ALJ’s statement is the period from March 31, 2002 through
September 30, 2002. The Commissioner did not specifically address in his response
the adequacy of the ALJ’s consideration of this Listing. I agree with Plaintiff that the
ALJ erred at step three in connection with his consideration of Listing 11.00(C).
I first find that the ALJ erred as he did not consider probative evidence on the
issue of whether Mr. Elliott met the Listing. The Tenth Circuit has made clear that
although the ALJ need not discuss all of the evidence in the record, he may not ignore
evidence that does not support his decision, especially when that evidence is
‘significantly probative.’” Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001)
(quoting Clifton, 79 F.3d at 1009-1010). Further, “[t]he ALJ must evaluate ‘all relevant
evidence to obtain a longitudinal picture of [the claimant's] overall degree of functional
limitation.’” Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (quoting 20
C.F.R. §§ 404.1520a(c)(1), 416.920a(c)(1)). This is particularly true in this case since

-6-

the Commissioner concedes that evidence of record for the relevant time period is
sparse. (See Def.’s Resp. Br. at 19).
The evidence that the ALJ failed to properly consider is the opinion of Liza Blom,
a physical therapist, issued on October 23, 2002, only 23 days after the expiration of
this period. Ms. Blom described Mr. Elliott’s extensive difficulty with the use of his left
upper extremity and his problems maintaining his balance given the atrophy in his
quadriceps muscle. (Tr. 201.) She opined that Mr. Elliott has limited ability to raise his
arm overhead independently and to turn his wrist outward. (Id.) She also opined that
“[t]his has led to his inability to maintain his humerous bone in his shoulder socket.”
(Id). She referenced the fact that Mr. Elliott had difficulty even getting his left arm on the
steering wheel after physical therapy sessions. (Id.) She further opined that the muscle
atrophy in Mr. Elliott’s right leg resulted in an inability to tolerate repeated resistance”
and that in therapy, Mr. Elliott’s right calf muscle failed to support body weight after
certain exercises. (Id.) Ms. Blom concluded from her evaluation that “the disruption to
Mr. Elliott’s neuromuscular system . . .limit[s] the type of work and activities that he is
able to perform as in the examples given above.” (Id.)
Ms. Blom’s observations are supported by her notes, which extend in time from
June 25, 2002 – October 23, 2002, during the period at issue. (Id. 202-13.) Further,
Ms. Blom’s report makes it apparent that the evaluation which forms the basis for her
opinions occurred in July and August, also during the relevant time period. The ALJ
briefly mentions only parts of Ms. Blom’s report (Id. 23), i.e., only some of her
statements regarding Plaintiff’s upper extremity and none regarding his leg, and does
-7-

not discuss Ms. Blom’s report at all in connection with his step three findings. The ALJ’s
selective application of Ms. Blom’s report is improper. Carpenter, 537 F.3d at 1265.
This evidence supports Plaintiff’s contention that Mr. Elliot did not have meaningful use
of this left upper extremity during the period at issue and was directly relevant to
whether Mr. Elliott had the use of arms during the period. This was probative evidence
directly relevant to whether Plaintiff met the Listing. The ALJ’s failure to properly
consider this evidence requires a remand.
Further, Listing 11.00(C) requires consideration, not only of the problems with the
use of fingers, hands, and arms, but also the degree of interference with locomotion. I
agree with Plaintiff that the ALJ did not give any consideration to Mr. Elliott’s lower
extremity problem when doing the step three assessment. This also is error which
requires a remand for the issue to be properly addressed.
Further, Ms. Blom’s opinion is relevant, even though dated shortly after the
expiration of Mr. Elliott’s insured status. First, the report states that it was based on an
evaluation within the relevant time period. Second, the Tenth Circuit has stated that
“evidence bearing upon an applicant's condition subsequent to the date upon which the
earning requirement was last met is pertinent evidence in that it may disclose the
severity and continuity of impairments existing before the earning requirement date or
may identify additional impairments which could reasonably be presumed to remanded
so that this evidence can be properly considered and weighed.” Baca v. Dep’t of Health
& Human Servs., 5 F.3d 476, 479 (10th Cir. 1993).

-8-

I now turn to the Listings that the ALJ did not consider in his decision. The issue
is whether Mr. Elliott’s impairments are medically equivalent to these Listings since
Plaintiff concedes that her husband’s impairments did not precisely meet the
requirements of the Listings. An impairment(s) is medically equivalent to a listed
impairment . . .if it is at least equal in severity and duration to the criteria of any listed
impairment.” 20 C.F.R. § 1526(a). The ALJ can find medical equivalence in three
ways: (1) the impairment(s) is described in appendix 1, but the claimant does not
exhibit all of the findings or he exhibits all the findings, but one or more is not as severe
as specified in the particular listing; (2) the impairment(s) is not described in appendix 1,
but the findings related to the impairment are at least of equal medical significance to a
listed impairment; or (3) the findings related to a combination of impairments are at least
of equal medical significance to a listed impairment. 20 C.F.R. § 404.1526(b).
The determination of medical equivalence is based on the medical findings. Puckett v.
Chater, 100 F.3d 730, 733 (10th Cir. 1996).
It is undisputed that the ALJ gave no consideration to the issue of whether
Mr. Elliott’s impairment met or equaled Listing 1.04A. This Listing requires that there be
a disorder of the spine resulting in compromise of a nerve root that results in “evidence
of nerve root compression characterized by neuro-anatomic distribution of pain,
limitation of motion of the spine, motor loss (atrophy with associated muscle
weakness…) accompanied by sensory or reflex loss….” Id. (emphasis added). While
Mr. Elliott’s condition did not precisely meet this Listing, in that his motor loss, muscle
atrophy, limitation of motion, and reflex loss were not caused by a specific nerve root
-9-

compression, Plaintiff argues that the EMG evidence obtained in 2000 at University
Hospital resulted in findings consistent with motor neuropathy or cervical radiculopathy
affecting the left C5-6 myotomes. (Tr. 236.)
The ALJ also did not consider Listing 14.04(B)(3-4). That Listing requires a
diagnosis of systemic sclerosis or scleroderma, which Mr. Elliott did not have. However,
Plaintiff argues that the ALJ should have considered whether Mr. Elliott had a condition
that was functionally equivalent to this Listing. Scleroderma can be severe enough to
cause disability because it can cause functional limitations resulting from muscle
atrophy and irreversible damage in either or both upper extremities (subparagraph B3)
or the lower extremities (subparagraph B4). In Mr. Elliott’s case, he had muscle atrophy
and irreversible damage in one upper and one lower extremity.
I find that the ALJ erred in not considering these Listings and in failing to obtain
the opinion of a medical expert on the issue of whether Mr. Elliott’s impairments were
medical equivalent to these Listings. “Whether a claimant’s impairment equals a listing
is a medical judgment, and an ALJ must consider an expert’s opinion on the issue.”
Barnett v. Barnhart, 381 F.3d 664, 670-671 (7th Cir. 2004) (citing 20 C.F.R.
§ 404.1526(b)); see also SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996)
(“longstanding policy requires that the judgment of a physician. . . designated by the
Commissioner on the issue of equivalence on the evidence before the [ALJ] . . . must be
received into the record as expert opinion evidence and given appropriate weight.”)
The Commissioner asserts that medical equivalence was properly considered by
a medical expert based on the fact that SSA 832-U5 forms were completed in the case.
-10-

It is true that “[t]he signature of a State agency medical. . .consultant on [such a form]
ensures that consideration by a physician … designated by the Commissioner has been
given the question of medical equivalence.” SSR 96-6p, 1996 WL 374180, at *3.
However, I find that the SSA 832-U5 forms in this case did not constitute a medical
opinion on the issue of functional equivalence.
As noted by Plaintiff, the first SSA form was filled out in connection with
Mr. Elliott’s prior claim filed in 2003. (Tr. 258-59.) The form was signed by a single
decision maker [“SDM”] who is not a medical professional and whose opinion is thus not
entitled to weight. See Klobas v. Astrue, No. 08-cv-02324-REB, 2010 WL 383141, at *5
(D. Colo. Jan. 29, 2010) (unpublished); Cunningham v. Astrue, No. 09-2535-SAC, 2010
WL 4737795, at *4 (D. Kan. Nov. 16, 2010) (unpublished). On that form, the SDM
made a note, “refer to RFC by Dr. Dyde dated 4/4/03.” (Tr. 258.) In fact, the RFC form
dated April 4, 2003 is signed by Dr. Ketelhohn, not Dr. Dyde. (Id. 317-324.)
Nonetheless, the SDM asked Dr. Ketelhohn whether Mr. Elliott’s impairments
could meet a listing. (Tr. 325.) The issue of medical equivalence was not specifically
asked about. (Id.) If Dr. Ketelhohn responded to the SDM’s question by addressing
medical equivalence, this would obviously constitute a proper medical opinion on the
issue. Dr. Ketelhohn responded, however, only by referring to the RFC form he filled
out as to Mr. Elliott’s impairments. (Id.) The Commissioner asserts that Dr. Ketelhohn
effectively answered the SDM’s question in his RFC finding when he found that
Mr. Elliott retained the ability to perform a reduced range of light work. (Id. 318). I
disagree. The RFC form addresses the issue of Mr. Elliott’s limitations from his
-11-

impairments, not whether his impairment meets or equals a Listing. Any interpretation
of the RFC to determine how it meets or equals a Listing would require a medical
judgment that Dr. Ketelhohn did not make. Thus, the first SSA 832 form did not comply
with the Commissioner’s obligation to have a medical expert opinion on the issue of
equivalence.
A SSA 832-U5 form was again completed in the course of Mr. Elliott’s second
claim filed in 2006. (Tr. 27-28.) On this form, dated April 20, 2006, no medical expert is
referred to or cited. Therefore, this form also cannot provide support for the ALJ’s
finding on medical equivalence.
I also agree with Plaintiff that at the time Dr. Ketelhohn reviewed the file and
completed the RFC form, the file was incomplete. The medical records in the file at that
time (marked as exhibits beginning with “PF” in the record) consisted solely of the
records dated December 10, 2002 – January 7, 2003 from Dr. Treihaft. There was
extensive medical evidence added to the file in between the time of Dr. Ketelhohn’s
assessment in 2003 and the ALJ’s decision in 2009; namely, the evidence from
Ms. Blom, University Hospital, Dr. Nay, and the updated records from Dr. Treihaft.
Exhibit 10F is particularly significant in that it contains the results of objective diagnostic
testing performed well before the expiration of Mr. Elliott’s insured status. Whether
there is objective evidence of neurological damage is a key question in determining
whether a claimant meets or equals the Listings at issue.
SSR 96-6p indicates that the opinions of State agency medical experts are to be
given weight because they are opinions of experts who have access to the complete
-12-

file. That is not the situation here, since the file in 2003 did not contain all the relevant
evidence as to whether Mr. Elliott met or equaled a Listing. This provides another
reason the SSA-832-U5 from the 2003 claim can not be relied on in determining
whether Mr. Elliott’s impairments met or equaled a Listing. Thus, even if
Dr. Ketelhohn’s RFC had answered the question of medical equivalence in 2003, there
was evidence in the file that Dr. Ketelhohn had not considered relevant to the
equivalence issue. I find that this evidence required that a medical expert be brought in
by the ALJ in 2009. While the Commissioner argues that whether to ask for a medical
expert based on new evidence is left to discretion of the ALJ under SSR 96-6p, I find an
abuse of discretion in not seeking a medical expert under the circumstances of this case
since there is not substantial evidence to support the medical equivalence finding. See
Cannon v. Astrue, No. 4:08-CV-160-D, 2010 WL 902485, at *11 (E.D.N.C. 2010) (March
11, 2010) (unpublished) (holding that updated medical opinion is not required where the
determination of the ALJ that the additional medical evidence would not change the
finding on medical equivalence is supported by substantial evidence); see also Birnell v.
Apfel, 45 F. Supp. 2d 826, 837 (D. Kan. 1999) (“When significant new evidence
regarding the . . . health of a claimant arises at the hearing level, the ALJ should
procure the assistance of a medical advisor. . .”).
Based on the foregoing, I find that this case must be remanded at step three.
The ALJ must consider whether Mr. Elliott’s impairments met or equaled Listing
11.00(C) as well as whether the impairments were medically equivalent to Listings
1.01A and 14.04(B)(3-4) based on all the evidence. The ALJ must obtain a medical
-13-

expert to opine on the issue of medical equivalence. In so finding, I reject the
Commissioner’s argument that any error at step three is harmless. The ALJ’s failure to
conduct a proper step three analysis may well have changed the outcome of the case.
2.

Whether the RFC Finding was Supported by Substantial Evidence

Plaintiff also argues that the ALJ’s finding that Mr. Elliott could have done
“occasional” reaching or handling with his left upper extremity is not supported by
substantial evidence. I find that this issue also must be reassessed on remand, given
the fact that the ALJ did not properly weigh Ms. Blom’s opinion as discussed in the
previous section. Ms. Blom refers to the extensive description of the atrophy and
weakness in Mr. Elliott’s left shoulder and arm. (Tr. 201.) She described Mr. Elliott’s
inability to reach overhead “independently,” meaning that he would have to use his
other arm to assist that maneuver. She stated that the wasting in Mr. Elliott’s muscles
was also so severe that he risked dislocating his shoulder with simple movements. (Id.)
In considering this issue on remand, the ALJ must also properly consider and
weigh Mrs. Elliott’s testimony. She described how, during Mr. Elliott’s brother’s wedding
in July 2001, she and the brother had to help Mr. Elliott dress because he could not
fasten the buttons on his tuxedo. She also related how, in a photograph from that event
showing Mr. Elliott’s arm on his brother’s shoulder, his brother had to lift his arm up
enough to put it there. (Tr. 363.) Plaintiff also described how Mr. Elliott’s gait was so
unsteady that he fell during the wedding reception. (Id. 364.) Further, she described
how, after November 2001, Mr. Elliott could no longer go hunting because he could not
lift the gun and hold it. (Id. 365.) She also testified how he could not lift anything past
-14-

the middle of his body. (Id. 366.) She described how his shoulder was bone on bone,
just a lump without muscles, and that he had pain down his back, as well as tingling in
his hands in the 2001-2002 time period. (Id. 370.) During that time, she stated that he
also had problems walking and had difficulty sleeping. (Id. 371-372.)
Mrs. Elliott’s testimony, as well as the objective observations of the physical
therapist based on an evaluation of Mr. Elliott during the relevant time frame, indicate
that Mr. Elliott could barely use his left arm at all. Given that, the ALJ’s finding that
Mr. Elliott could occasionally reach or handle with his left upper extremity in a work
situation, that is, for up to one-third of the workday, seems extremely suspect. This
evidence also indicates that Mr. Elliott’s ability to walk and stand was significantly
compromised. The ALJ did not give any reason to discount the evidence from either the
physical therapist or Mrs. Elliott, and this must be adequately addressed on remand,
since it directly contradicts his RFC finding.
As noted previously, while ALJ need not discuss every piece of evidence before
him, he must discuss substantial evidence such as this testimony from Mrs. Elliott and
the observations of the physical therapist. An ALJ’s decision is not supportable if he
does not discuss the significant, otherwise probative evidence that he does not rely on
in evaluating the claim. Frantz v. Astrue, 509 F.3d 1299, 1303 (10th Cir. 2007).
3.

Whether the Credibility Assessment s Supported by Substantial
Evidence

Finally, Plaintiff argues that the factors cited by the ALJ are insufficient to support
his finding that Mr. Elliott’s allegations of the intensity, persistence, and limiting effects

-15-

of his symptoms were “not credible to the extent they are inconsistent with the above
residual functional capacity assessment.” (Tr. 22.) I note that credibility determinations
are peculiarly the province of the finder of fact, and will not generally be upset by the
court. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). “However, ‘[f]indings as to
credibility should be closely and affirmatively linked to substantial evidence and not just
a conclusion in the guise of findings.’” Id. (quotations omitted).
As support for his finding that Plaintiff was not fully credible, the ALJ cited the fact
that Mr. Elliott did not take any medications for muscle cramping or pain. (Id.)
However, Plaintiff points out that the record indicates that Mr. Elliott’s physicians
repeatedly told him there was no medication to treat his disorder. Accordingly, this
cannot be used as a basis to find Mr. Elliott not credible.
The ALJ also states that in Exhibit 6E (Disability Report – Appeal, Tr. 166-170)
Mr. Elliott indicated that his problems with bathing, dressing, and cutting food developed
“well after Sept 2002.” (Tr. 22.) In fact, Exhibit 6E says nothing of the sort. The other
exhibit the ALJ cites in that same paragraph (Exhibit 2E, Tr. 148-154) also does not
support his finding that Mr. Elliott’s difficulties developed “well after Sept 2002”.
The ALJ further states that Mr. Elliott testified that his leg did not start to give out
on him until 2004 (2 years after the expiration of Mr. Elliott’s insured status). (Tr. 23.) In
fact, Mr. Elliott initially testified that his leg “came along” in 2004, but “maybe a little
earlier” and in his next sentence stated that it was actually “starting to go” in 2002. (Tr.
348). The ALJ may not selectively pick out testimony that supports his credibility finding
while ignoring other relevant testimony that does not. See Carpenter, 537 F.3d at 1265.
-16-

The medical evidence supports the 2002 date as well, including the extensive
description of Mr. Elliott’s lower extremity problems in the observations of both physical
therapist Liza Blom, MPT (Tr. 201) and Dr. Treihaft (id. 250-252) in 2002.
Finally, the ALJ referred to Mr. Elliott’s household activities and the fact that he
took care of his children. However, the ALJ again selectively applied the evidence on
that issue, ignoring the limitations that Mr. Elliott testified to. (Tr. 354-55.) Further, the
fact that Mr. Elliott took care of his children does not necessarily mean that this was
demanding physically, when there is nothing in the record to support that. See Martinez
v. Astrue, No. 10-5097, 2011 WL 1549517, at *9 (10th Cir. April 26, 2011). Indeed,
Mr. Elliott testified that he had problems with heavy lifting in regard to the care of his
children. (Tr. 354.) Again, these activities do not necessarily make Mr. Elliott unworthy
of belief. Martinez, 2011 WL 1549517, at *9.
In short, many of the factors cited by the ALJ to support his credibility finding are
not supported in substantial evidence and are not entitled to any deference. Thus,
Mr. Elliott’s credibility also needs to be reassessed on remand.
III.

CONCLUSION
Based upon the foregoing, I find that the ALJ erred at step three in that he did not

properly assess whether Mr. Elliott’s impairments met or equaled the Listings. The ALJ
also erred by not having medical expert testimony on this issue. I also find that the ALJ
erred in assessing certain aspects of Mr. Elliott’s RFC and in assessing Mr. Elliott’s
credibility. Accordingly, this case must be remanded to the Agency for further fact
finding on these and the other issues discussed in this Order. It is therefore
-17-

ORDERED that this case is REVERSED AND REMANDED to the Commissioner
for further fact finding pursuant to sentence four in 42 U.S.C. § 405(g).
Dated: September 28, 2011
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

-18-