Deines v. Astrue

Filing 23

ORDER 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 3/26/12. (gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-00127-WYD
ROGER A. DEINES,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.

ORDER

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

INTRODUCTION AND BACKGROUND
Plaintiff was born in 1965. He was 37 years old on his alleged onset of disability

date and 42 years old on the date of the ALJ’s decision. (Transcript [“Tr.”], 47, 81.)
Plaintiff has a high school education and worked in the past as a ride operator (roller
coaster mechanic), heavy truck driver (furniture delivery), auto mechanic, plumber
apprentice, and structural steel worker. (Id. 97, 141.)
In March 2005, Plaintiff filed an application for disability benefits under Title II of
the Social Security Act, 42 U.S.C. §§ 401-433. (Tr. 81-83.) Plaintiff claimed that he
became disabled on January 18, 2003, due to chronic back problems, numbness in his

legs, hands, and arms, headaches, hypertension, and depression. (Id. 93-94.) After
Plaintiff’s claim was initially denied (id. 64-67), he requested a hearing. (Id. 63).
Following a hearing in February 2008 (Tr. 272-322), an administrative law judge
[“ALJ”] concluded in a decision dated March 8, 2008, that Plaintiff was not disabled. (Id.
29-47). At step one the ALJ found that Plaintiff met the insured status requirements of
the Act through December 31, 2006. (Id. 38.) The ALJ also found that Plaintiff had not
engaged in substantial gainful activity during the period from January 18, 2003, the
alleged onset date, through his date last insured of December 31, 2006. (Id.)
At step two, the ALJ found that Plaintiff had the following severe impairments:
dysthymic disorder, anxiety-related disorder, and obesity. (Tr. 38.) The ALJ found at
step three that Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the criteria one of the listed impairments. (Id.)
The ALJ then found that Plaintiff had the residual functional capacity [“RFC”] to:
lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit, stand, or walk a
total of 6 hours each in an 8-hour workday, with normal breaks; alternate between
sitting and standing/walking every 45 to 60 minutes if needed; unlimited in push and/or
pull activities, including operation of hand and/or foot controls; frequently climb ramps
and stairs; occasionally climb ladders and scaffolds; frequently balance, stoop, kneel,
crouch, and crawl; no concentrated exposure to extreme heat, wetness, humidity, or
vibration; limited to simple, routine, repetitive work, with only occasional face-to-face
contact with the public. (Tr. 40). Based on this, the ALJ found at step four that Plaintiff
was unable to perform any past relevant work. (Id. 45.)
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Finally, at step five, in response to a hypothetical question to the vocational
expert [“VE”], the VE testified that a person with Plaintiff’s RFC could perform the
requirements of representative unskilled jobs such as a production assembler and press
operator. (Tr. 46.) The ALJ thus found that Plaintiff was capable of making a
successful adjustment to other work that exists in significant numbers in the national
economy. (Id. 46-47.) Accordingly, the ALJ found that Plaintiff was not disabled from
January 18, 2003, through December 31, 2006, the date last insured. (Id.)
The Appeals Council declined review of the ALJ’s decision. (Tr. 6-8.) This
appeal followed. This Court has jurisdiction to review the final decision of the
Commissioner of Social Security under 42 U.S.C. § 405(g).
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
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.
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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

Plaintiff argues that the ALJ failed to properly weigh the treating physician’s
opinion. Plaintiff also takes issue with the RFC assessment, and argues that the ALJ
erred in discounting his pain complaints and credibility. Further, he contends that the
conclusion at step five is not supported by substantial evidence because the jobs cited
by the VE did not constitute a significant number, and that the ALJ erred by not
conducting a drug and alcohol abuse (DAA) analysis. Finally, Plaintiff argues that the
ALJ’s evaluation of Plaintiff’s credibility was flawed. I address these arguments below.
1.

Whether the ALJ Erred in Regard to Weighing the Medical
Evidence and the RFC

I first address Plaintiff’s argument that the ALJ erred in connection with the RFC.
RFC is “‘a term which describes the range of work activities the claimant can perform
despite his impairments.’” Southard v. Barnhart, No. 02-7102, 2003 WL 21733145, at
*2 (10th Cir. July 28, 2003) (unpublished) (quotation omitted).1 The ALJ must evaluate
a claimant’s physical and mental RFC for use in steps four and five of the sequential
evaluation process, and must make specific findings regarding same. 20 C.F.R.
§ 416.920(e); Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).

1

I cite this and the other unpublished opinions in this Order because the cases have persuasive
value with respect to material issues in the case. 10th Cir. R. 32.1(A).

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“In arriving at an RFC, agency rulings require an ALJ to provide a narrative
discussion describing how the evidence supports his conclusion.” Lawton v. Barnhart,
No. 04-1050, 2005 WL 281378, at *10 (10th Cir. Feb. 7, 2005) (unpublished) (citing
SSR 96-8p, 1996 WL 374184, at *7). Further, “[t]he ALJ must:
discuss the individual's ability to perform sustained work activities in an
ordinary work setting on a regular and continuing basis ... and describe
the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record.
Id. (quoting id.). The ALJ must also explain how any material inconsistencies or
ambiguities in the record were considered and resolved. Id. Further, the ALJ’s RFC
assessment “must include a discussion of why reported symptom-related functional
limitations and restrictions can or cannot reasonably be accepted as consistent with the
medical and other evidence.” Id. “A function-by-function evaluation is necessary in
order to arrive at an accurate RFC.” Id. (quotation omitted).
In developing the RFC, the ALJ must consider the limiting effects of all the
claimant’s impairments. 20 C.F.R. § 416.945; see also Bowman, 511 F.3d at 1272-73.
The ALJ must also address both the exertional and nonexertional capacities of the
individual. Southard, 2003 WL 21733145, at *3. “The ALJ’s findings must . . . be
specific because the hypothetical questions submitted to the VE must state the
claimant's impairments ‘with precision.’” Armer v. Apfel, Nos. 99-7128, 98-CV-424,
2000 WL 743680, at *2 (June 9, 2000) (unpublished) (quotation omitted).
I find that the ALJ erred with regard to the RFC assessment. First, I find that the
ALJ erred as to the physical component of the RFC by not describing how the evidence

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supports each conclusion [in the RFC], citing specific medical facts ... and nonmedical
evidence.’” SSR 96-8p, 1996 WL 374184, at *7 (emphasis added). While the ALJ
stated what evidence he relied on for the mental RFC, giving “substantial weight” to the
opinion of Dr. Houston (Tr. 44-45), the ALJ appeared to give no weight to the medical
evidence regarding Plaintiff’s physical functional limitations, including the medical
source statements and other medical findings of treating physician Dr. Reed. (Id. 4344.) Further, it is it is unclear what other evidence he relied on to support each of his
findings in the RFC related to Plaintiff’s physical abilities. This is reversible error that
requires remand. See Moon v. Barnhart, No. 04-7130, 2005 WL 3446576, at *2-3 (10th
Cir. Dec. 16, 2005) (unpublished) (remanding the case to the Commissioner where “the
ALJ never specified what he believed the credible medical evidence to be, either for the
purpose of rejecting the doctors’ RFC assessments or for the purpose of supporting his
own finding” and where the court was thus unable to determine what evidence the ALJ
relied on in connection with the RFC).
Second, I find that the ALJ failed to properly weigh treating physician Dr. Reed’s
opinions in connection with the RFC. The ALJ stated that he gave “lesser weight” to
Dr. Reed’s Medical Source Statement of January 2007. (Tr .43.) It is unclear from this
what actual weight was given Dr. Reed’s medical findings in that report; however, it
appears that the ALJ gave Dr. Reed’s opinions no weight. See Robinson v. Barnhart,
366 F.3d 1078, 1082 (10th Cir. 2004) (“‘[A]n ALJ must give good reasons . . . for the
weight assigned to a treating physician’s opinion,’ that are ‘sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator gave to the treating
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source’s medical opinions and the reason for that weight.’”). Further, the ALJ did not
discuss or state what weight he gave to the other opinions of Dr. Reed in the record,
both as to Plaintiff’s mental and physical RFC, as well as Dr. Reed’s medical findings. A
doctors’s statements about Plaintiff’s condition or impairments “are specific medical
findings” which the ALJ errs in rejecting in the absence of conflicting evidence.
Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). “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) (quotation omitted).
There is no indication in the record that the ALJ considered whether Dr. Reed’s
opinions were entitled to controlling weight or what other amount of deference should be
given to Dr. Reed’s opinions. (Tr. 43.) This was also reversible error that requires a
remand. The Tenth Circuit recently stated that its “case law, the applicable regulations,
and the Commissioner's pertinent Social Security Ruling (SSR) all make clear that in
evaluating the medical opinions of a claimant's treating physician, the ALJ must
complete a sequential two-step inquiry, each step of which is analytically distinct.”
Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). “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.”
Id. “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.
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Further, “[e]ven 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.” Krauser, 638 F.3d at 1330. “If this is not
done, a remand is required.” Id. Krauser cited the relevant ruling, which explains:
Adjudicators must remember that a finding that a treating source medical
opinion is not well-supported . . . or is inconsistent with the other substantial
evidence in the case record means only that the opinion is not entitled to
‘controlling weight’, not that the opinion should be rejected. Treating source
medical opinions are still entitled to deference and must be weighed using all
of the factors provided in [§§] 404.1527 and 416.927. In many cases, a
treating source’s medical opinion will be entitled to the greatest weight and
should be adopted, even if it does not meet the test for controlling weight.
Id. (quoting SSR 96-2p, 1996 WL 374188, at *4) (emphasis added). Thus, a deficiency
as to the conditions for controlling weight raises the question of how much weight to
give the opinion, it does not resolve the latter, distinct inquiry.” Id. (emphasis in
original).
In Krauser, the Tenth Circuit found that the ALJ’s assessment of a treating
physician’s opinion was “patently inadequate for the distinct reason that it ends halfway
through the required two-step analysis: the ALJ simply concluded that ‘Dr. Lambert's
opinion ... cannot be given controlling weight’ and then said no more about it.” Id.
(emphasis in original). Here, however, the ALJ did not even discuss or consider the first
step—whether Dr. Reed’s opinions and medical findings, in whole or in part, are entitled
to controlling weight, let alone the second step. Further, he did not consider the

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relevant factors in determining what weight to give Dr. Reed’s opinions and did not state
what actual weight he assigned those opinions.
I also find that the reasons given by the ALJ to reject Dr Reed’s January 2007
medical source statement are not valid. See Cowan v. Astrue, 552 F.3d 1182, 1188
(10th Cir. 2008) (an ALJ must give specific, legitimate reasons for rejecting a treating
physician’s opinion). The ALJ stated that Dr. Reed provided support for his opinion by
referencing “severe back pain” but that “he has no treatment notes supporting that
finding, and other substantive evidence of record does not demonstrate objective
clinical findings.” (Tr. 44.) The ALJ’s statement is, however, inaccurate. Dr. Reed’s
notes clearly substantiate Plaintiff’s back pain, and they document objective findings in
support of that pain. (See, e.g., Tr. 189-“he has tenderness to palpation from
approximately T-8 thru his L-spine and his SI joints bilaterally. Has some paraspinous
and muscle tenderness on the right side, greater than the left. . . ROM is decreased in
all areas secondary to pain. . . . Assessment: Back strain.”).
Further, the record demonstrates other objective clinical findings in the record
which support Dr. Reed’s assessment, contrary to the ALJ’s statement. (See, e.g., Tr.
at 193—x-ray results showing “Mild lumbar spondylosis, . . . disc space narrowing at L5S1 suggests degenerative disc disease at this level”; 183-84—Dr. Kahler’s assessment
noting that Plaintiff had pain over lumbar area and was very tender when touched all
over the lumbar area and finding “Thoracolumbar spondylosis with nerasthenias, “Mild
degenerative disc disease”; 165—Dr. Clifford’s diagnosis of myofascitis of the lumbar
and cervical areas as well as peripheral neuropathy). The ALJ’s rejection of Dr. Reed’s
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opinions regarding Plaintiff’s pain and impairments is an improper substitution of his
own judgment for that of the doctor in regard to what the medical evidence means. See
Langley v. Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004) (The Tenth Circuit is clear
that “‘[i]n choosing to reject the treating physician’s assessment, an ALJ may not make
speculative inferences from medical reports and may reject a treating physician’s
opinion outright only on the basis of contradictory medical evidence and not due to his
or her own credibility judgments, speculation, or lay opinion.’”) (quoting McGoffin v.
Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002)).
The ALJ also stated that “the record fails to suggest that the claimant can only
sit, stand, and walk for a combined total of 6 hours in an 8-hour day”, as found by
Dr. Reed. (Tr. 24.) However, this was error as it was a conclusory opinion unsupported
by any medical evidence that contradicts Dr. Reed’s findings. Langley, 373 F.3d at
1121. Further, there was medical evidence in the record that supported Dr. Reed’s
findings. For example, Dr. Clifford, an examining doctor, found that Plaintiff’s stated
physical capabilities, which were very limited and included being only able to sit for 20
minutes and stand 20 minutes, “are probably accurate.” (Id. 164-65.) The ALJ needed
to consider and properly weigh all of the medical evidence in the case. This must be
addressed on remand.
Finally, I find that the ALJ erred to the extent he relied on Plaintiff’s testimony as
describing greater physical functioning. Plaintiff testified, among other things, that he
could only sit about 20 minutes before he needs to get up and only stand about a half
hour. (Tr. 297.) His testimony was consistent with significant limitations in his physical
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abilities, and does not support the ALJ’s RFC. (Id. 297-301.) Indeed, RFC assesses an
individual's ability to do 8 hours a day, for 5 days a week, or an equivalent work
schedule. SSR 96-8p(1), 1996 WL 374184, at *1 (1996); see also Haga v. Astrue, 482
F.3d 1205, 1208 (10th Cir. 2007) (citing 20 C.F.R. § 416.945(c)). Plaintiff’s testimony
certainly does not support that. The ALJ appeared to selectively apply the evidence on
this issue, which is improper. Arrington v. Apfel, No. 98-7099, 1999 WL 446013, at *8-9
(10th Cir. July 1, 1999) (unpublished) (‘[i]n evaluating plaintiff’s testimony and
comparing it with ‘prior statements and other evidence,’ . . ., the ALJ was selectively
choosing from the record those statements he wished to rely on without properly
considering all the evidence. . . . [w]e have repeatedly held that an ALJ may not engage
in a selective evidentiary review”) (citing cases).
Finally in connection with weighing of the medical evidence, Plaintiff argues that
the ALJ should have done a drug and alcohol abuse [“DAA”] analysis. The ALJ did not
state why he did not conduct such an analysis. This also must be addressed on
remand. As the Commissioner notes, medical expert Dr. Houston testified at the
hearing that Plaintiff had a history of substance abuse. Plaintiff testified that he had not
abused drugs since 2004, but also testified that he had used medical marijuana. The
ALJ referenced Plaintiff’s use of drugs in connection with his credibility analysis. In light
of the foregoing, I direct the ALJ on remand to state on the record whether a DAA
analysis is appropriate and, if he finds it is appropriate, to conduct such an analysis.
See Salazar v. Barnhart, 468 F.3d 615, 622-24 (10th Cir. 2006).

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Based on the foregoing, I find that this case must be remanded for the ALJ to
properly weigh treating physician Dr. Reed’s opinions as well as the other medical
opinions and reassess the RFC in light of same.2 The ALJ must also provide a narrative
discussion describing how the evidence supports each of his findings in the RFC.
Finally, the ALJ must determine whether a DAA analysis is appropriate.
2.

Whether the ALJ Erred in Assessing Plaintiff’s Credibility

I also find that the ALJ erred in assessing Plaintiff’s credibility. Credibility
determinations are peculiarly the province of the finder of fact, and the court should not
“‘upset such determinations when supported by substantial evidence.’” Kepler v.
Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Diaz v. Sec. of Health & Human
Servs., 898 F.2d 774, 777 (10th Cir. 1990)). “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).
The ALJ found that Plaintiff’s “statements concerning his impairments and their
impact on his ability to work are barely credible in light of the medical evidence and the
discrepancies between the claimant’s allegations and the information contained in the
documentary reports.” (Tr. 41.) The ALJ also stated, “[i]n light of his statements that he
takes no prescription or over-the-counter medications, and the lack of significant
findings by the physicians, the undersigns finds the claimant’s complaints of disabling
pain not full credible.” (Id.) Among other reasons for his finding, the ALJ stated that

2

The ALJ should also consider the new evidence submitted to the Appeals Council,
including the letter of October 30, 2009, from Dr. Reed (Tr. 13), since it is now part of the
record. See Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004).

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“the record lacks objective clinical finding which would suggest a severe
musculoskeletal impairment expected to produce severe pain, and numerous examining
physicians have opined the claimant’s allegations are out of proportion with the clinical
findings of record.” (Id. 42.) He also noted that Plaintiff “has not received the type of
medical treatment one would expect for a totally disabled individual . . . .” (Id.)
The ALJ appeared to rely heavily on the lack of objective findings for the pain.
However, as explained previously, there were ample objective findings and medical
reports substantiating pain. The Commissioner attempts to downplay that evidence,
pointing out that when Plaintiff presented to Dr. Reed in 2004 with complaints of
persistent back pain, Dr. Reed found some tenderness in the mid-thoracic spine, but
normal strength and reflexes in all extremities. (Tr. 188). Also, among other evidence,
the Commissioner notes that the diagnostic x-rays ordered by Dr. Reed showed only
“mild” lumbar spondylosis, no acute abnormality, and disc space narrowing at L5-S1
suggesting degenerative disc disease (id. 193, 253), and that Dr. Kahler only found mild
thoracolumbar spondylosis and degenerative disc disease. (Id. 267-68).
The Commissioner relies on the above-cited evidence to argue that the record
lacked objective clinical findings that would suggest a severe musculoskeletal
impairment expected to produce severe pain. However, as explained previously, the
Commissioner cannot make speculative inferences about what the medical evidence
means or second guess the judgment of the medical doctors. See McGoffin, 288 F.3d
at 1252. Indeed, “[a]lthough the court “may not second-guess an ALJ's credibility
judgments, such judgment by themselves ‘do not carry the day and override the medical
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opinion of a treating physician that is supported by the record.’” Id. (quotation omitted);
see also Romero v. Astrue, No. 06-6305, 2007 WL 2110899, at *2 (10th Cir. 2007)
(unpublished) (“Dr. Haddock's conclusions concerning Ms. Romero's pain and limitation.
. . find support in the treatment records and therefore could not be cursorily dismissed
for the reason the ALJ gave: lack of medical evidence. . . .”). Thus, I reject the
Commissioner’s argument on this issue.3
Since the ALJ incorrectly found that there were no objective findings to
substantiate Plaintiff’s complaints of pain, the ALJ appeared not to conduct the proper
analysis required pursuant to Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). There are
three steps under Luna, whereby the ALJ must (1) consider whether Plaintiff
established a pain-producing impairment by objective medical evidence; (2) if so,
determine whether there is a loose nexus between the proven impairment and Plaintiff’s
subjective allegations of pain; and (3) if so, determine whether considering all the
evidence, both objective and subjective, Plaintiff is disabled by pain. Luna, 834 F.2d at
162-63. Since step one is met in this case, the ALJ should have proceeded to steps
two and three and considered all the evidence in regard to Plaintiff’s pain, including the
required factors. Id. at 165-66. Even “[i]f the ALJ finds that plaintiff’s pain, by itself, is
not disabling, that is not the end of the inquiry.” Harrison v. Shalala, No. 93-5238, 1994

3

I also note that even if there were a lack of objective findings, this would not be
dispositive. “[A]llegations concerning the intensity and persistence of pain or other symptoms
may not be disregarded solely because they are not substantiated by objective medical
evidence.” SSR 96-7p, 1996 WL 347186, at *6; see also Gatson v. Bowen, 838 F.2d 442, 447
(10th Cir. 1988) (“[O]bjective medical evidence of disabling pain need not consist of concrete
physiological data alone but can consist of a medical doctor’s clinical assessment as well. . . .”).

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WL 266742, at *5 (10th Cir. June 17, 1994) (unpublished). The ALJ “‘must show that
‘jobs exist in the national economy that the claimant may perform given the level of pain
[she] suffers.’” Id. (quoting Thompson v. Sullivan, 987 F.2d 1482, 1490-91 (10th Cir.
1993). “A vocational expert is ordinarily required to determine what limitation . . . pain
might impose on [Plaintiff’s] ability to do . . . work.” Id. This also must be addressed
on remand.
The ALJ also relied on the fact that “numerous examining physicians have opined
the claimant’s allegations are of proportion with the clinical findings of record” in finding
that Plaintiff was not credible. (Tr. 42.) The only doctor that he noted on this issue was
examining physician Dr. Kahler’s notation that the objective findings for the severity of
Plaintiff’s pain are exceeded by the amount of subjective complaints. (Tr. 184.) That is
also the only evidence I found in the record on this issue. Thus, the ALJ’s reference to
“numerous doctors” making this finding does not appear to be accurate.
Further, Dr. Kahler’s notation does not diminish the objective signs that were present
and noted by Dr. Kahler and the other medical doctors or necessarily mean that Plaintiff
has no pain. See Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir. 2006) (noting that
the ALJ “thought Johnson's complaints about pain exceeded the objective medical
evidence, yet pain can be severe to the point of being disabling even though it has no
diagnosable cause and thus is entirely in the patient's mind.”); O’Donnell v. Barnhart,
318 F.3d 811, 818 (8th Cir. 2003) (even if O'Donnell might have been magnifying her
pain, “that would not be a reason to discredit her allegations. . . . [a]n “ALJ cannot
simply ignore ... medical evidence that [claimant] suffers from pain having its origin in a
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psychological disorder”); see also Fuller v. Astrue, No. 10-20370JWL, 2011 WL 209527,
at *9 (10th Cir. Jan. 21, 2011) (unpublished).
Finally, the ALJ relied heavily on Plaintiff’s lack of treatment and failure to take
pain medications. (Tr. 41-42.) However, the ALJ did not conduct the proper analysis as
to those issues. The Tenth Circuit has stated that “the law requires an ALJ to apply a
particular analysis anytime he relies on a failure to pursue treatment as a basis to find
that claimant is not disabled. Fuller, 2011 WL 209527, at *17 (citing Ragland v. Shalala,
992 F.2d 1056, 1060 (10th Cir. 1993)). Before relying on a failure to pursue treatment,
“‘the ALJ should consider (1) whether the treatment at issue would restore claimant's
ability to work; (2) whether the treatment was prescribed; (3) whether the treatment was
refused; and, if so, (4) whether the refusal was without justifiable excuse.’” Id.
(quotation and internal quotation marks omitted). The ALJ must also assess whether
the claimant lacked the financial ability to pursue treatment or medication, as this may
constitute justifiable cause for failing to comply with prescribed treatment. Lee v.
Barnhart, No. 03-7025, 2004 WL 2810224, at *4 (10th Cir. Dec. 8, 2004) (unpublished).
I find the case of Robinson v. Barnhart, 366 F.3d 1078 (10th Cir. 2004)
instructive in this case. There, the Tenth Circuit found the ALJ's speculative conclusion
about lack of treatment to be “procedurally and legally deficient because he did not
make the findings necessary to deny the claim on the basis of claimant's noncompliance
with prescribed treatment, nor did he give claimant or her treating physician an
opportunity to explain the specific reasons for her failure to take medications to
determine if justifiable cause existed for her failure.” Id. at 1083-84. I find that this
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analysis applies equally here. On remand, the ALJ must conduct the full Luna analysis
and state valid reasons for accepting or rejecting Plaintiff’s complaints of pain.
Finally, I agree with Plaintiff that the ALJ improperly cut Plaintiff’s counsel off
about Plaintiff’s headaches. When Plaintiff’s attorney attempted to query Plaintiff
regarding the frequency and severity of his headaches, the ALJ interrupted repeatedly
and exclaimed” I don?t want to hear---, I don?t want to hear that---. There?s no medical
evidence to support that whatsoever”. The attorney responded, “Headaches are in the
file”, to which the ALJ said, “Not at that level.” (Tr. 308.) However, the ALJ has a duty
to develop the record as to material issues. Baca v. Dept. of Health & Human Servs., 5
F.3d 476, 479-80 (10th Cir. 1993). Since a social security hearing is “nonadversarial in
nature . . . the ALJ bears responsibility for ensuring that ‘an adequate record is
developed during the disability hearing consistent with the issues raised’ in that hearing”
Grogan v. Barnhart, 399 F.3d 1257, 1264 (10th Cir. 2005) (quotation omitted). This
failure to develop the record regarding headaches also must be rectified on remand.
3.

Whether the ALJ Erred at Step Five

Plaintiff also asserts that the VE cited jobs that covered a regional area
comprised of five states (Tr. 313, 319), and that the number of jobs cited were not
limited to a state or a “region”. He argues this is not a sufficient sample and does not
constitute substantial evidence at step five. I reject this argument. The issue is whether
there are jobs existing in significant numbers in either the region where Plaintiff lives or
several regions of the country, “regardless of whether such work exists in the immediate
area....’” Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009) (quoting 42 U.S.C.
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§ 423(d)(2)(A)). The VE’s testimony upon which the ALJ relied was not inconsistent
with this.4
Finally, Plaintiff argues that the VE did not cite to the SPV level of the jobs that
she found Plaintiff could do, and that the Tenth Circuit has stated that a level three
reason job is incompatible with a job that requires “simple and routine tasks”. Hackett
v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005). Again, I reject this argument. The
VE testified that the jobs he found a person with Plaintiff’s hypothetical RFC could do
were consistent with the Dictionary of Occupational Titles [“DOT”]. (Tr. 313-14.) His
finding specifically encompassed the RFC limitation to simple, routine and repetitive
work. (Id. 314.) Plaintiff has not shown that the VE’s findings were actually contrary to
the DOT, and my research of the DOT does not support Plaintiff’s argument. See
DICOT 737.684-034 (Production Assembler), 1991 WL 6880038; DICOT 363.685-010
(Press Operator), 1991 WL 673019 (both requiring level two reasoning).
Although I have rejected Plaintiff’s arguments relevant to step five, I find that the
ALJ may still need to reevaluate his findings at this step on remand. This is because I
have directed the ALJ on remand to reweigh the medical evidence and reassess the
RFC and Plaintiff’s pain. This may well require that the hypothetical question be
modified, which will then require a new step five finding. See Gay v. Sullivan, 986 F.2d
1336, 1340 (10th Cir. 1993) (testimony elicited by hypothetical questions that do not

4

The multi-factor analysis set forth in Trimiar v. Sullivan, 966 F.2d 1330 (2002) is not
applicable in this case because there were a significant number of jobs in the region described
by the VE. See Raymond, 621 F.3d at 1274 n. 2.

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relate with precision all of a claimant’s impairments cannot constitute substantial
evidence to support the Commissioner’s decision).
III.

CONCLUSION
Based upon the foregoing, I find that the ALJ did not properly assess Plaintiff’s

RFC and did not properly weigh the medical evidence. I also find that the ALJ did not
properly assess Plaintiff’s credibility regarding pain or develop the record as to Plaintiff’s
headaches. Once the ALJ reevaluates these issues on remand, the findings at later
steps of the sequential evaluation may also be impacted and need to be reassessed. It
is therefor
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 March 26, 2012
BY THE COURT:

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

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