Albertson v. Astrue

Filing 14

ORDER. It is ORDERED that the Commissioners final decision is VACATED and the case is REMANDED for further proceedings consistent with this Order. By Judge William J. Martinez on 5/31/2012. (sahsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-0071-WJM
VIRGINIA L. ALBERTSON,
Plaintiff,
v.
MICHAEL ASTRUE, Commissioner of Social Security
Defendant.

ORDER VACATING AND REMANDING
DECISION OF THE COMMISSIONER OF SOCIAL SECURITY

This matter is before the Court on Plaintiff Virginia L. Albertson’s appeal from the
Final Decision of Defendant Michael J. Astrue, the Commissioner of Social Security
(“the Commissioner”), denying Plaintiff’s application for supplemental security income.
Plaintiff has filed her Opening Brief (ECF No. 9), the Commissioner filed a Response
(ECF No. 10), and Plaintiff filed a Reply (ECF No. 12). The Commissioner has also
filed the administrative record with the Court. (ECF No. 6.) On June 17, 2011, this
action was reassigned to the undersigned. (ECF No. 13.) After carefully analyzing the
briefs and the administrative record, the Court VACATES the Commissioner’s Final
Decision and REMANDS for further proceedings consistent with this Order.
I. JURISDICTION
The Court has jurisdiction over this matter under 42 U.S.C. § 405(g).

II. BACKGROUND
Plaintiff is currently 48 years old. (ECF No. 6 at 127.) She suffers from
fibromyalgia, hypermobility syndrome, cervical degenerative disc disease, depression,
and a prolapsed mitral valve. (Id. at 260-262.) Plaintiff worked in the food service
industry until she stopped working entirely in October 2007. (Id. at 55, 176, 181, 198,
241.)
After Plaintiff’s application for supplemental security income was denied, she
requested a hearing before an administrative law judge. (Id. at 66-67.) On February
28, 2010, Administrative Law Judge Kathryn D. Burgchardt (the “ALJ”) presided over
Plaintiff’s hearing. (Id. at 8-24.)
On May 25, 2010, the ALJ issued a decision finding that Plaintiff was not
disabled within the meaning of the Social Security Act. (Id. at 8-24.) The ALJ made the
following findings of fact and conclusions of law (in line with the governing five-part test
to determine disability, described infra). Under Step 1, the ALJ determined that
although Plaintiff worked after her medical impairment onset date of February 3, 2007,
that work did not amount to “substantial gainful activity” and therefore did not preclude
her from being found disabled. (Id. at 11-12.) At Step 2, the ALJ determined that
Plaintiff had severe impairments consisting of degenerative disc disease of the lumbar
spine, status-post fibular fracture of the left lower extremity, major depression, anxiety
disorder, and somatization disorder. (Id. at 13.) Under Step 3, the ALJ found that
Plaintiff’s impairments did not meet or equal any Listing found at 20 C.F.R. §404,
Subpart P, Appendix 1, considering Listings 1.06, 12.04, 12.06, and 12.07. (Id. at 14.)

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Also under Step 3, the ALJ further determined that Plaintiff had a residual
functional capacity (“RFC”) for work that was simple and unskilled, not in close proximity
to co-workers, and with minimal direct contact with the public. (Id. at 15.) The ALJ
found that Plaintiff can lift or carry 10 pounds frequently and 20 pounds occasionally;
stand and/or walk with normal breaks for 6 out of 8 hours; sit with normal breaks for 6
out of 8 hours; push and pull with the upper extremities and lower extremities within the
weight restrictions; frequently climb (including ladders, ropes, and scaffolds), balance,
crouch, kneel, and crawl; and occasionally stoop. (Id.)
Under Step 4, the ALJ found that Plaintiff’s RFC did not allow her to return to her
past relevant work as a server, waitress, or food service manager. (Id. at 23.)
However, under Step 5, as a result of the RFC assessment, and considering Plaintiff’s
age, education, and work experience, the ALJ held that there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform (specifically,
small production assembler, cleaner, and office helper). (Id. at 23-24.)
Plaintiff appealed the ALJ’s decision (id. at 7), and the Appeals Council denied
her appeal (id. at 1). She then appealed that decision by initiating this administrative
appeal on January 10, 2011. (ECF No. 1.)
III. ANALYSIS
A.

Standard of Review
A district court’s review of the Commissioner’s determination that a claimant is

not disabled within the meaning of the Social Security Act is limited. Hamilton v. Sec’y
of Health & Human Servs., 961 F.2d 1495, 1497 (10th Cir. 1992). The review is limited

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to determining whether the Commissioner applied the correct legal standard and
whether the Commissioner’s decision is supported by substantial evidence. Id. at
1497-98; Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). Substantial
evidence is evidence a reasonable mind would accept as adequate to support a
conclusion. Brown, 912 F.2d at 1196. It requires more than a scintilla of evidence but
less than a preponderance of the evidence. Hedstrom v. Sullivan, 783 F. Supp. 553,
556 (D. Colo. 1992). “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). Also, “[t]he failure to apply the correct legal standard or to
provide [a reviewing] court with a sufficient basis to determine that appropriate legal
principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005) (citation and internal quotation marks omitted); see also
Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996) (“[T]he Secretary’s failure to
apply the correct legal standards, or to show us that [he] has done so, are . . . grounds
for reversal.”). Although a reviewing court should meticulously examine the record, it
may not weigh the evidence or substitute its discretion for that of the Commissioner. Id.
B.

Evaluation of Disability
The criteria to obtain disability insurance benefits under the Social Security Act

are that a claimant meets the insured status requirements, is younger than 65 years of
age, and is under a “disability.” Flint v. Sullivan, 951 F.2d 264, 267 (10th Cir. 1991).
The Social Security Act defines “disability” as the inability “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment

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[that] can be expected to result in death or [that] has lasted or can be expected to last
for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A).
There is a five-step sequence for evaluating disability. See 20 C.F.R. §
404.1520; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing five-step
analysis). If it is determined that a claimant is or is not disabled at any point in the
analysis, the analysis ends. Casias v. Sec'y of Health & Human Servs., 933 F.2d 799,
801 (10th Cir. 1991). First, the claimant must demonstrate that he or she is not
currently involved in any substantial, gainful activity. 20 C.F.R. § 404.1520(b). Second,
the claimant must show a medically severe impairment or combination of impairments
that significantly limits his or her physical or mental ability to do basic work activities. Id.
§ 404.1520(c). At the third step, if the impairment matches or is equivalent to an
established listing under the governing regulations, the claimant is judged conclusively
disabled. Id. § 404.1520(d). If the claimant’s impairment does not match or is not
equivalent to an established listing, the analysis proceeds to a fourth step. Id. §
404.1520(e). At the fourth step, the claimant must show that the “impairment prevents
[him or her] from performing work [he or she] has performed in the past.” Williams v.
Bowen, 844 F.2d 748, 751 (10th Cir. 1988) (citations omitted); see also 20 C.F.R. §
404.1520(f). If the claimant is able to perform his or her previous work, he or she is not
disabled. 20 C.F.R. § 404.1520(f). If the claimant is not able to perform his or her
previous work, the analysis proceeds to a fifth step. At the fifth step, the Commissioner
must demonstrate: (1) that based on the claimant’s residual functional capacity, age,
education, and work experience, the claimant can perform other work; and (2) the work

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that the claimant can perform is available in significant numbers in the national
economy. Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987); see also 20 C.F.R. §
404.1520(g).
C.

Discussion
In her briefs, Plaintiff argues, inter alia, that the ALJ erred by: (1) failing to give

proper weight to Dr. David Karli’s opinion regarding Plaintiff’s physical limitations; and
(2) giving weight to the opinion of a non-examining physician, Dr. Alan Ketelhohn, who
did not review the entire case file. Plaintiff also argues that the case should be
remanded in order for the ALJ to assess Plaintiff’s mental health evaluations which
were not previously available. The Court agrees with these contentions, and vacates
and remands on these bases.
“An ALJ must evaluate every medical opinion in the record.” Hamlin v. Barnhart,
365 F.3d 1208, 1215 (10th Cir. 2004). In determining what weight to give any medical
opinion, the ALJ must consider factors such as whether the physician personally
examined the claimant, whether the physician was a treating physician, the extent to
which the physician gave supporting explanations for her opinions, and the extent to
which the physician’s opinions are consistent with the record as a whole. See 20
C.F.R. § 416.927(d). “After considering the pertinent factors, the ALJ must give good
reasons in the notice of determination or decision for the weight he ultimately assigns
the opinion.” Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (quotation
marks and brackets omitted).

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First, the Court finds that the ALJ’s decision to give no weight to Dr. Karli’s
medical opinion regarding Plaintiff’s physical limitations may have been based on
factually inaccurate grounds. The ALJ gave no weight to Dr. Karli’s opinion because
she found that Dr. Karli failed to re-examine Plaintiff before issuing his opinion, after
having not seen her for nine months. (ECF No. 6 at 20.) However, on July 23, 2008,
Dr. Karli did in fact see Plaintiff for a medical evaluation that included range of motion
testing and an examination. (Id. at 412-413.) Thus, contrary to the ALJ’s finding, Dr.
Karli did perform some examination of Plaintiff on this date, and the ALJ’s stated basis
for giving Dr. Karli’s opinion no weight appears to be factually incorrect.
Further, the ALJ gave significant weight to the report of a non-examining medical
consultant, Dr. Alan Ketelhohn, who recommended finding that Plaintiff was not
disabled within the meaning of the Social Security Act. (Id. at 19; 382-387.) An ALJ
may rely on the reports of State agency medical consultants, even though they do not
have direct contact with the claimant, if those reports are based on a review of the
complete case file. See Hamilton, 961 F.2d at 1498 (holding that an ALJ may rely on
the reports of examining physicians that are based on objective findings); see also 20
C.F.R. § 404.1527(f)(2) (findings by reviewing medical consultants regarding the nature
and severity of a claimant’s impairment are treated as expert opinions and are entitled
to weight).
However, in this case, numerous medical reports were not available to Dr.
Ketelhohn when he made his assessment, including medical reports from Dr. John
Mark DiSorbio and the Buena Vista Family Practice dated after mid-2008, and various
medical reports from Drs. John Hughes, Edmund Casper, and Patricia Winter. (Id. at
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347-348, 407-410, 443-446, 453-455, 461, 487-488, 524, 542.) As such, Dr. Ketelhohn
could not have reviewed the full evidence of Plaintiff’s physical and mental limitations,
and it is proper to remand for the ALJ to reconsider the weight that should be accorded
to Dr. Ketelhohn’s opinion.
Finally, the ALJ found that had Plaintiff had “any therapy or any consistent
psychiatric medications” during the period under review, the ALJ may have been
persuaded to find Plaintiff “totally disabled under Social Security rules.” (Id. at 22.)
Approximately 14 days prior to that finding, Plaintiff began treatment with Patricia
Winter, Ph.D., a psychologist. (Id. at 560- 566.) Dr. Winter stated that Plaintiff was
very sedentary and depressed, had suicidal ideation, and would benefit from weekly
psychotherapy. (Id. at 542.) Dr. Winter also began Plaintiff on a course of treatment
that included the anti-depressant Celexa. (Id.) Since it now appears that Plaintiff has
received therapy and consistent psychiatric medications, remand is proper for the ALJ
to consider this evidence.
While the Court is not passing judgment on the proper weight that should be
accorded the various medical opinions described above, the ALJ’s failure to accurately
justify the weight which were accorded these opinions constitutes reversible error, and
this case will be vacated and remanded on that basis. See Hamlin, 365 F.3d at 1215;
Jensen, 436 F.3d at 1165; Winfrey, 92 F.3d at 1019.
Because the Court vacates and remands based on the ALJ’s failure to
adequately weigh the aforementioned medical opinions, the Court need not address the
other arguments raised by Plaintiff. See Madrid v. Barnhart, 447 F.3d 788, 792 (10th

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Cir. 2006) (where the ALJ’s error affected the analysis as a whole, court declined to
address other issues raised on appeal). The Court expresses no opinion as to
Plaintiff’s other arguments and neither party should take the Court’s silence as tacit
approval or disapproval of those arguments. The Court also does not intend by this
opinion to suggest the result that should be reached on remand; rather, the Court
encourages the parties and the ALJ to fully consider the evidence and all issues raised
anew on remand. See Kepler v. Chater, 68 F.3d 387, 391-92 (10th Cir. 1995) (“We do
not dictate any result [by remanding the case]. Our remand simply assures that the
correct legal standards are invoked in reaching a decision based on the facts of the
case.”) (citation and quotation marks omitted).
IV. CONCLUSION
For the foregoing reasons, it is ORDERED that the Commissioner’s final decision
is VACATED and the case is REMANDED for further proceedings consistent with this
Order.
Dated this 31st day of May, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

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