Trevizo v. Astrue

Filing 17

ORDER. The decision of the ALJ is reversed. The case is remanded to the Commissioner for proceedings consistent with this order, namely that she develop a sufficient record on which to assess Ms. Trevizos RFC. By Judge R. Brooke Jackson on 03/11/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable R. Brooke Jackson
Civil Action No. 11-cv-02387-RBJ
VERONICA A. TREVIZO,
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
plaintiff Veronica A. Trevizo’s application for Disability Insurance Benefits pursuant to Title II
of the Social Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g). This dispute became
ripe for decision by this Court upon the filing of plaintiff’s Reply Brief on March 20, 2012. The
Court apologizes to the parties for the delay in resolving the case.
Facts
At the time Ms. Trevizo filed for disability insurance benefits she was a twenty-four year
old mother of two who had never worked and still lived with her mother. Ms. Trevizo left school
in ninth grade and did not complete her GED. In June 2009 Ms. Trevizo was diagnosed with
Multiple Sclerosis (MS), and following that diagnosis, she filed for Social Security disability
insurance benefits in October 2009 alleging disability due to MS and illiteracy. A hearing was
held in November 2010. The ALJ determined that Ms. Trevizo suffered from two severe
impairments: multiple sclerosis and a learning disorder.
1

Multiple Sclerosis
In June 2009 Ms. Trevizo was admitted to the emergency room with sudden onset facial
numbness. Ms. Trevizo also suffered from tingling and numbness in her lower extremities and
loss of balance. R. 231. After completing several examinations, doctors determined that Ms.
Trevizo suffered from MS. Unfortunately, the record is fairly sparse regarding details of Ms.
Trevizo’s symptoms and treatment of her MS. There are notes from the emergency room when
she was admitted to the hospital in the summer of 2009, and a few notes from a neurologist, Dr.
Gamuac, from early 2010. On February 18, 2010 Dr. Gamuac noted that Ms. Trevizo was not in
acute distress, was alert, oriented, and her memory was intact. R. 232. He also included in his
impressions that she was clinically stable but suffered from chronic pain and short-term memory
loss. Id. Similarly, on March 16, 2010 Dr. Gamuac found Ms. Trevizo to be clinically stable but
suffering from chronic pain. Id. Dr. Gamuac also completed a form describing Ms. Trevizo’s
restrictions. R. 286-88. On this form, Dr. Gamuac opined that Ms. Trevizo could lift/carry less
than 10 pounds occasionally, could sit for less than one hour at a time and 2-3 hours in an eight
hour work day, could stand for less than one hour at a time and 2-3 hours in an eight hour
workday, and would need to lie down 3-4 times per day for 15 to 20 minutes. Id.
At the hearing, Ms. Trevizo testified that she had trouble with fatigue, sitting, standing,
and walking. R. 33. Ms. Trevizo explained that she could sit for about 30 minutes, stand for
about 20 minutes, and lift about 5 pounds. R. 34. She explained that she goes to her children’s
school to volunteer once every week or two and takes walks around the block in the summer. R.
37. Ms. Trevizo also said that she had to lay down multiple times a day, because she would get
light-headed or dizzy. R. 43. At the time of the hearing, Ms. Trevizo said that Dr. Gamuac was
her primary doctor for her MS, and that she had been seeing him for 8-9 months. R. 39.

2

Learning Disability
Ms. Trevizo testified that she does not have a treating physician or psychologist for her
learning disability. R.39. Instead, two consultative exams were performed. Brett Valette, Ph.D.
performed a consultative psychological examination on Ms. Trevizo in December 2009. He
found that her affect was appropriate, her organization and character of speech were clear, her
thought process was clear, but that she had very poor verbal skills. R. 219. Dr. Valette
measured Ms. Trevizo’s performance on the Wechsler Adult Intelligence Scale and found that
she fell in the low end of the low average range of intellectual abilities. R. 219-20. Ms. Trevizo
had difficulties with verbal comprehension and working memory and her lowest score was in
abstract thinking. R. 220. Dr. Valette opined that Ms. Trevizo suffered from a major learning
disability, and that she was illiterate. Id. He assigned her a Global Assessment of Functioning
(GAF) score of 65.
Jose Vega, Ph. D. examined Ms. Trevizo in October 2010. Dr. Vega opined that Ms.
Trevizo functions within the borderline to low average range of intelligence and also has a
learning disability. R. 282. After administering a Mini Mental Status Examination, Dr. Vega
explained that Ms. Trevizo’s neurocognitive functioning was impaired. R. 281. He found that
she was able to follow a single step command but would have trouble following multi-step
commands. He found that her GAF score was 50-55 and she had marked to extreme limitations
in functioning. R. 283.
James Wanstrath, Ph. D., a state agency psychological consultant also assessed Ms.
Trevizo’s learning disability. He opined that her learning disability caused no restriction in daily
living, mild difficulties in maintaining social functioning, and moderate difficulties in
maintaining concentration. R. 59-60.

3

At the hearing, Ms. Trevizo testified that she had trouble reading and writing. R. 32. She
said that she could sign her name and read little words, but that she was unable to read a
newspaper or write a grocery list. Id. She explained that her seven year old now reads better
than she does. R. 45. Ms. Trevizo said that she could add and subtract numbers but could not
multiply or divide. R. 42-43. Finally, Ms. Trevizo testified that she forgets a lot of things and
struggles to stay in conversations because she forgets what was said. R. 45.
Administrative Law Judge’s Opinion
In her opinion, administrative law judge Kathryn D. Burgchardt applied the five step
analysis mandated by social security regulations to determine whether Ms. Trevizo is disabled.
At the first step she determined that Ms. Trevizo was not engaged in substantial gainful activity
since the date of Ms. Trevizo’s disability benefits application. At the second step the ALJ
determined that Ms. Trevizo suffered from two severe impairments: multiple sclerosis and a
learning disorder. At the third step the ALJ determined that Ms. Trevizo did not have an
impairment or combination of impairments that met or medically equaled those listed in 20 CFR
Part 404, Subpart P, Appendix 1.
Before going on to the fourth step, the ALJ assessed Ms. Trevizo’s residual functional
capacity (RFC). The ALJ found that Ms. Trevizo could perform simple unskilled work with the
following additional limitations: lift or carry up to 10 pounds frequently and 20 pounds
occasionally, stand or walk with normal breaks for a total of 6 hours in an 8 hour workday, and
sit with normal breaks for a total of 6 hours in an 8 hour workday. The ALJ also found that the
Ms. Trevizo should avoid unprotected heights, moving machinery, extreme heat, wetness, and
humidity. The ALJ also found that Ms. Trevizo is limited to only simple reading, writing, and
math. R. 17.

4

In arriving at this RFC, the ALJ considered the record as a whole as well as Ms.
Trevizo’s testimony. The ALJ determined that Ms. Trevizo’s impairments could reasonably be
expected to cause the alleged symptoms, but her statements concerning “the intensity,
persistence, and limiting effects of these symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity assessment.” R. 18. The ALJ explained
that “Dr. Gamuac has concluded that the claimant is limited to less than sedentary work, but this
is not given great weight because it is inconsistent with his treatment notes which show her
condition is compatible with the ability to work. Overall, the evidence shows the claimant is
capable of performing light work as set forth above.” Id.
When examining the restrictions caused by Ms. Trevizo’s learning disability, the ALJ did
not give Dr. Vega’s conclusions great weight, because she determined that they were not
consistent with the evidence including his written narrative and GAF of 50-55. R. 19. The ALJ
gave “more” weight to Dr. Valette’s findings. Id. The ALJ also gave substantial weight to Dr.
Wanstrath’s assessment, because it was consistent with the record as a whole. Id.
After completing the RFC, step four required the ALJ to determine if, based on the
restrictions in the RFC, Ms. Trevizo would be able to perform past relevant work. The ALJ
determined that Ms. Trevizo had no past relevant work. R. 19. Therefore, the analysis went to
step five which required the ALJ to determine whether there are jobs that exist in significant
numbers that Ms. Trevizo could perform based upon her age, education, work experience, and
residual functional capacity. Based upon the vocational expert’s testimony, the ALJ determined
that substantial work existed that Ms. Trevizo was capable of performing. R. 20-21.

5

Standard of Review
This appeal is based upon the administrative record and briefs submitted by the parties.
In reviewing a final decision by the Commissioner, the role of the District Court is to examine
the record and determine whether it “contains substantial evidence to support the Secretary’s
decision and whether the Secretary applied the correct legal standards.” Rickets v. Apfel, 16
F.Supp.2d 1280, 1287 (D. Colo. 1998). A decision cannot be based on substantial evidence if “it
is overwhelmed by other evidence in the record. . . .” Bernal v. Bowen, 851 F.2d 297, 299 (10th
Cir. 1988). Substantial evidence requires “more than a scintilla, but less than a preponderance.”
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2007). Evidence is not substantial if it
“constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).
Conclusions
Ms. Trevizo appeals the ALJ’s finding of no disability on four grounds: (1) in assessing
Ms. Trevizo’s RFC, the ALJ improperly imposed her own opinion of Ms. Trevizo’s physical
impairments over the opinions of experts; (2) the physical restrictions in the RFC are not
supported by evidence in the record; (3) the ALJ did not properly weigh the conflicting medical
opinions as to Ms. Trevizo’s learning disability; and (4) the ALJ gave significant weight to Dr.
Wanstrath’s opinion but did not follow his restrictions. Ms. Trevizo also requests that this Court
award benefits rather than remand back to the ALJ.
Restrictions Based on Physical Impairments
The record was rather sparse concerning Ms. Trevizo’s physical impairments caused by
her MS. It included notes from when she was admitted to the hospital in the summer of 2009, a
few treatment notes from Dr. Gamuac from early 2010, and a worksheet with restrictions
completed by Dr. Gamuac.

6

As the doctor who had been treating Ms. Trevizo for 8-9 months at the time of her
hearing, Dr. Gamuac was Ms. Trevizo’s treating physician. Treating physicians’ opinions are
generally given controlling weight. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).
“The treating physician's opinion is given particular weight because of his unique perspective to
the medical evidence that cannot be obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative examinations or brief hospitalizations.”
Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003).
Despite this standard, the ALJ determined that Dr. Gamuac’s opinion should not be
“given great weight because it is inconsistent with his treating notes which show her condition is
compatible with the ability to work.” R. 18. “In 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.” McGoffin v. Barnhart,
288 F.3d 1248, 1252 (10th Cir. 2002). Further, the ALJ is not entitled to pick and choose from a
medical opinion, using only those parts that are favorable to a finding of nondisability. Robinson
v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).
Looking at Dr. Gamuac’s treatment notes, there is not substantial evidence to support the
ALJ’s determination that Dr. Gamuac’s opinion about Ms. Trevizo’s work restrictions are
inconsistent with his treatment notes. His treatment notes say that she is “stable” and not in
“acute distress” but they also say that she suffers from “chronic pain.” R. 232. In determining
that these descriptors are “compatible with the ability to work” in direct contradiction to the
restrictions described by Dr. Gamuac, the ALJ improperly substituted her lay opinion for the
opinion of a treating physician. Lax v. Astrue, 489 F.3d 1080, 1089 (10th Cir. 2007).

7

Further, there are no other medical opinions or other evidence in the record to support the
ALJ’s conclusions about Ms. Trevizo’s RFC, including that she can stand for six hours in an
eight hour work day, sit for six hours in an eight hour work day, and does not need to lie down at
all during a work day. “The ALJ must make specific findings as to RFC, and these findings must
be supported by substantial evidence.” Adkins v. Barnhart, 80 Fed. App’x 44, 48 (10th Cir.
2003). An ALJ is required to “make every reasonable effort to ensure that the file contains
sufficient evidence to assess RFC.” Id. Upon determining that Dr. Gamuac’s opinion was not
entitled to controlling weight, the ALJ had an obligation to develop the record. “Finding no
substantial evidence upon which to base an RFC finding, the ALJ should have recontacted the
claimant’s physicians. If additional records do not exist or are insufficient to clarify the
inconclusive evidence already in the record, then the ALJ should order a consultative
examination.” Id. (citations omitted). On remand, the ALJ needs to develop the record so that
substantial evidence exists to support Ms. Trevizo’s RFC.
Restrictions Based on Learning Disability
In his opinion, Dr. Vega concluded that Ms. Trevizo has marked to extreme limitations in
functioning. R. 283. However, the ALJ did not give “great weight” to Dr. Vega’s opinion
because it was “inconsistent with the evidence including his own written narrative and GAF
score of 50-55.” R. 19. Ms. Trevizo argues that the ALJ was not qualified to assess whether Dr.
Vega’s opinion was consistent with a GAF of 50-55. I agree. “[A]n ALJ cannot substitute her
lay opinion for that of a medical professional.” Lax v. Astrue, 489 F.3d 1080, 1089 (10th Cir.
2007). An ALJ is not qualified to interpret test data in contradiction of a medical professional’s
own interpretation. See id. If the ALJ is not confident that Dr. Vega’s assessment that Ms.
Trevizo suffers from marked to extreme limitations in functioning is consistent with the GAF

8

score of 50-55, the ALJ needs to either contact Dr. Vega to clarify or seek an expert opinion.
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (holding ALJ had an obligation to
recontact treating physician if validity of his report was in question).
Ms. Trevizo also challenges the ALJ’s reliance on Dr. Wanstrath’s opinion. Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). As a non-examining, consulting medical
opinion, Dr. Wanstrath’s opinion was entitled to less weight than the opinions of treating
physicians or examining physicians. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir.
2004). Although a non-treating medical source’s opinion is typically accorded less weight than
treating source opinions, an ALJ can still consider these opinions. 20 C.F.R. § 416.927(e). If the
ALJ does accord the consultant’s opinion weight, it is important that the ALJ evaluate the
findings using factors including the consultant’s medical specialty and expertise, supporting
evidence in the case record, supporting explanations the consultant provides, and any other
factors relevant for weighing opinions. 20 C.F.R. § 416.927(e)(2)(ii).
In her opinion, the ALJ found that Dr. Wanstrath’s opinion should be accorded
“substantial weight” because “he is an acceptable medical source and his conclusion is consistent
with the record as a whole.” R. 19. This is a lot of weight to give Dr. Wanstrath’s opinion
compared to the weight she gave the two examining sources. The ALJ gave Dr. Vega’s opinion
“little weight,” and she did not specify how much weight she gave Dr. Valette’s opinion, only
that it was accorded “more weight” than Dr. Vega’s opinion. Id. This is not enough information
to understand the weight given or the reasons for those weights. On remand, if the ALJ again
determines that it is appropriate to assign Dr. Wanstrath’s opinion substantial weight, she needs
to first clarify what weight she assigned to Dr. Valette’s opinion, and then explain how the
factors listed above support assigning so much weight to Dr. Wanstrath’s opinion.

9

Remand
Ms. Trevizo argued that instead of remanding her case back to the ALJ, that this Court
should award benefits. “Outright reversal and remand for immediate award of benefits is
appropriate when additional fact finding would serve no useful purpose.” Dollar v. Bowen, 821
F.2d 530, 534 (10th Cir. 1987). At this point, there are numerous gaps in the record that require
filling before an award of benefits is appropriate. Therefore, the better course is to remand this
case back to the ALJ for additional fact finding and explanation consistent with this opinion.
Order
The decision of the ALJ is reversed. The case is remanded to the Commissioner for
proceedings consistent with this order, namely that she develop a sufficient record on which to
assess Ms. Trevizo’s RFC.
DATED this 11th day of March, 2013.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

10