Drake v. Astrue
OPINION, ORDER AND JUDGMENT by Chief Judge Marcia S. Krieger on 3/19/2013. (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 11-cv-02747-MSK
TENIECKA N. DRAKE,
MICHAEL J. ASTRUE, as acting Commissioner of the Social Security Administration,
OPINION, ORDER AND JUDGMENT
THIS MATTER comes before the Court on Plaintiff Teniecka N. Drake’s appeal from
the Commissioner of Social Security’s final decision denying her application for Disability
Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-33, and
Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 138183c. Having considered the pleadings and the record, the Court
FINDS and CONCLUDES that:
Ms. Drake filed claims for disability insurance benefits pursuant to Title II and
supplemental security income pursuant to Title XVI. She asserted that her disability began
January 10, 2008. After her claims were initially denied, Ms. Drake filed a written request for a
hearing before an Administrative Law Judge (“ALJ”). This request was granted and a hearing
In her decision, the ALJ found that Ms. Drake met the insured status requirements of the
Social Security Act through December 31, 2008 and that Ms. Drake had not engaged in
substantial gainful activity since the asserted onset date of her disability. The ALJ also found
that Ms. Drake had the following severe impairments: Human Immunodeficiency
Virus / Acquired Immunodeficiency Syndrome (“HIV/AIDS”), bipolar disorder, anxiety
disorder, and obesity. The ALJ found that none of these impairments, whether considered
individually or in combination, met or were equivalent to one of the listed impairments in 20
C.F.R. Part 404, Subpt. P, App. 1 (“the Listings”). The ALJ found that Ms. Drake had the
Residual Functional Capacity (“RFC”) to perform light work, with moderate limitations in
maintaining concentration, persistence, and pace. Finally, the ALJ found that Ms. Drake was
able to perform two of her past jobs, cosmetics clerk and sales attendant, and was therefore not
Ms. Drake’s request for review of the ALJ’s decision was denied by the Appeals Council.
Consequently, the ALJ’s decision is the Commissioner’s final decision for purposes of judicial
review. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Ms. Drake’s appeal was
timely brought, and this Court exercises jurisdiction to review the Commissioner of Social
Security’s final decision pursuant to 28 U.S.C. § 405(g).
Having reviewed the record in light of the issues raised, the material facts are as follows.
Ms. Drake was diagnosed with HIV/AIDS in 2001 and subsequently received treatment for
HIV/AIDS from several doctors who prescribed a myriad of medications with recognized side
effects. Dr. Hofflin treated Ms. Drake from 2001 to 2008. In his medical notes, he recorded that
Ms. Drake reported nausea or vomiting in 2006, 2007, and 2008. From 2009 to 2010, Ms. Drake
was treated by several doctors working for the Veterans Administration Healthcare System,
including Drs. Kroll, Sanchez, Bessesen, and Kartalija. In 2009 she reported nausea, vomiting,
diarrhea, fatigue, and insomnia to Dr. Kroll, nausea, vomiting and diarrhea to Dr. Sanchez, and
vomiting to Dr. Bessesen. In 2010, Ms. Drake told Dr. Kartalija that she had nausea.
At the hearing, Ms. Drake testified that she had persistent and intermittent nausea,
vomiting and diarrhea which she attributed to her HIV/AIDS medications. She also stated that
she had periodic headaches, muscle aches, fatigue, dizziness, and insomnia, which she attributed
to either HIV/AIDS or her HIV/AIDS medication.
Ms. Drake raises four challenges to the Commissioner’s decision: (1) the ALJ erred in
failing to properly evaluate Ms. Drake’s subjective complaints because she failed to apply all of
the regulatory factors as required in Social Security Regulation (“SSR”) 96-7p; (2) the ALJ erred
in finding that Ms. Drake was not a credible witness; (3) the ALJ erred in rejecting the treating
physician’s opinions; and (4) the ALJ erred in finding that Ms. Drake was noncompliant with her
prescribed treatment. Ms. Drake’s arguments do not challenge the ALJ’s findings at Step 1, 2, or
3 in the established five-step disability evaluation sequence, but instead focus on the ALJ’s
analysis at Step 4. The Court finds no need to address Ms. Drake’s challenges seriatim because
the first three issues concern the ALJ’s determination at Step 4 focusing upon a core issue – did
the ALJ adequately consider the side-effects of Ms. Drake’s medication in evaluating the treating
physician’s opinion and Ms. Drake’s subjective symptoms.
Standard of Review
Judicial review of the Commissioner of Social Security’s determination that a claimant is
not disabled within the meaning of the Social Security Act is limited to determining whether the
Commissioner applied the correct legal standard and whether the decision is supported by
substantial evidence. Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). “Substantial
evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’ It requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007) (quotation omitted). On appeal, a reviewing court’s job is
neither to “reweigh the evidence nor substitute our judgment for that of the agency.” Branum v.
Barnhart, 385 F.3d 1268, 1270, 105 Fed. Appx. 990 (10th Cir 2004) (quoting Casias v. Sec’y of
Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)).
A treating physician’s opinion is given controlling weight if it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1517(c)(2). An ALJ must
give specific and legitimate reasons to reject a treating physician’s opinion or give it less than
controlling weight. Drapeau v. Massanari, 255 F.3d 1211 (10th Cir. 2001). Even if a treating
physician’s opinion is not entitled to controlling weight, it is still entitled to deference and must
be weighed using the following factors:
1) the length of the treatment relationship and the frequency of examination;
2) the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; 3) the degree to which
the physician’s opinion is supported by relevant evidence; 4) consistency between
the opinion and the record as a whole; 5) whether or not the physician is a
specialist in the area upon which an opinion is rendered; 6) other factors brought
to the ALJ’s attention which tend to support or contradict the opinion.
Watkins, 350 F.3d at 1300-01 (citation omitted); 20 C.F.R. § 404.1527. Having considered these
factors, an ALJ must give good reasons in for the weight assigned to a treating source’s opinion.
20 C.F.R. § 404.1517(c)(2). Finally, these reasons must be sufficiently specific to make clear to
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinions
and the reason for that weight. Watkins, 350 F.3d at 1301.
When considering whether a claimant is disabled, the ALJ must take into consideration of
all of a claimant’s symptoms, including subjective symptoms. 20 C.F.R. § 404.1529(a).
Subjective symptoms are those that cannot be objectively measured or documented. One
example is pain, but there are many other symptoms which may be experienced by a claimant
that no medical test can corroborate. By their nature, subjective symptoms are most often
identified and described in the testimony or statements of the claimant or other witnesses.
In assessing subjective symptoms, the ALJ must consider statements of the claimant
relative to objective medical evidence and other evidence in the record. 20 C.F.R.
§404.1529(c)(4). If a claimant has a medically determinable impairment that could reasonably
be expected to produce the identified symptoms, then the ALJ must evaluate the intensity,
severity, frequency, and limiting effect of the symptoms on the claimant’s ability to work. 20
C.F.R. § 404.1529(c)(1); SSR 96-7p.
In the 10th Circuit, this analysis has three steps: 1) the ALJ must determine whether there
is a symptom-producing impairment established by objective medical evidence; 2) if so, the ALJ
must determine whether there is a “loose nexus” between the proven impairment and the
claimant’s subjective symptoms; and 3) if so, the ALJ must determine whether considering all
the evidence, both objective and subjective, claimant’s symptoms are in fact disabling. Luna v.
Bown, 834 F.2d 161, 163-64 (10th Cir. 1987).1 The third step of the Luna analysis involves a
holistic review of the record. ALJ must consider pertinent evidence including a claimant’s
The ALJ need not follow a rote process of evaluation, but must specify the evidence considered
and the weight given to it. Error! Main Document Only.Qualls v. Apfel, 206 F3d 1368, 1372 (
10th Cir 2000).
history, medical signs and laboratory findings, as well as statements from the claimant, medical
or nonmedical sources, or other persons. 20 C.F.R. § 404.1529(c)(1). In addition, 20 C.F.R. §
404.1529(c)(3) instructs the ALJ to consider:
1) [t]he individual’s daily activities; 2) [t]he location, duration, frequency, and
intensity of the individual’s pain or other symptoms; 3) [f]actors that precipitate
and aggravate the symptoms; 4) [t]he type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken to alleviate pain or other
symptoms; 5) [t]reatment, other than medication, the individual receives or has
received for relief of pain or other symptoms; 6) [a]ny measures other than
treatment the individual uses or has used to relieve pain or other symptoms…; and
7) [a]ny other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
Inherent in the review is whether to what degree there are conflicts between the claimant’s
statements and the rest of the evidence. Id. Ultimately, the ALJ must make specific evidentiary
findings2 with regard to the existence, severity, frequency and effect of the subjective symptoms
on the claimant’s ability to work. 20 C.F.R. § 404.1529(c)(4). This requires specific evidentiary
findings supported by substantial evidence. Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir.
1988); Diaz, 898 F.2d at 777.
There is no disagreement that Ms. Drake suffered a severe impairment of HIV/AIDS, and
that she was treated with a variety of medications that had serious side effects. The medication
Often these findings are described as “credibility determinations”. Technically, the credibility assessment is as to
particular testimony or statements. But this characterization often improperly leads ALJs and claimants to focus
upon whether the claimant is believable or “telling the truth”. Such focus is reflected in ALJ references to the
“claimant’s credibility” and claimants’ umbrage on appeal at findings that suggest that they were untruthful.
Greater precision in distinguishing between the credibility of particular testimony as compared to general credibility
of a claimant is helpful for subsequent review. It is also worth recognizing determining the ontological truth or
falsity of a claimant’s statements is rarely necessary. Indeed, the searching inquiry required of the ALJ assumes that
the claimant experiences a symptom that cannot be objectively documented – pain, confusion, ringing in the ears,
tingling, nausea and the like. The focus of the inquiry need not be to determine whether the claimant is truthfully
reporting his or her experience, but instead to determine whether such symptom corresponds to a severe impairment
and whether its nature, intensity, frequency, and severity affects the claimant’s ability to work. Careful analysis
results in factual findings supported by substantial evidence. See e.g. Diaz v. Sec. of Health and Human Servs., 898
F.2d 774, 777 (10th Cir. 1990)
side effects were reported as subjective symptoms – nausea, vomiting and diarrhea which Ms.
Drake said occurred persistently and frequently.
As to assessment of the effects of HIV/AIDS, the Court finds that the ALJ used both the
proper analytical process and her factual findings were supported by substantial evidence.
However, the ALJ did not adequately evaluate the side effects of the medications taken by Ms.
Drake. This oversight appears in her assessment of the opinion of Ms. Drake’s treating
physician, Dr. Kartalija, and in assessment of Ms. Drake’s subjective symptoms.
A. Assessment of Dr. Kartalija’s Opinion
Dr. Kartalija completed an HIV Medical Assessment Form in which she noted that Ms.
Drake exhibited several side effects from HIV/AIDS medication that would limit her ability to
work. These included drowsiness or sedation, malaise, fatigue, dizziness, and insomnia. In this
same assessment, Dr. Kartalija determined that Ms. Drake had marked difficulties in timely
completing tasks due to limits in concentration, persistence, or pace; she would be unable to
handle sources of workplace stress, including public contact, complicated tasks, strict deadlines,
close interaction with coworkers or supervisors, and exposure to work hazards; she was limited
to less than two hours of sitting, standing, or walking per day; and she required six breaks of
twenty minutes each during an average workday.
The ALJ gave Dr. Kartalija’s opinion little weight because Dr. Kartalija’s opinion was
“at odds with the medical record,” which “reflects intact daily activities, excellent control of
HIV/AIDS without medication side effects, and stable mental symptoms….”.
The ALJ’s finding with regard to side effects of medication is unsupported by further
explanation or by substantial evidence. Ms. Drake testified about persistent and severe side
effects of her medication - nausea, vomiting, diarrhea, headaches, fatigue, and dizziness. These
symptoms are also reported in the opinions and records of Drs. Hofflin, Kroll, Sanchez,
Bessesen, and Kartalija. Dr. Kartalija’s opinion is premised, in part, on medication side effects.
Rejection of the opinion based on an inaccurate and unexplained finding that there were no side
effects constitutes error requiring a remand.
B. Assessment of Ms. Drake’s Subjective Symptoms
The ALJ also found that Ms. Drake’s subjective symptoms - vomiting, diarrhea, nausea,
and fatigue - were not “fully persuasive” considering “objective medical evidence, [Ms. Drake’s]
treatment noncompliance, her relative stability with treatment when she does comply, her daily
activities, her inconsistent report regarding her reasons for leaving her past work, and the
opinions given at least some weight above….”
Ms. Drake justifiably objects to the adequacy of these findings. The findings are general,
rather than specific, do not appear to be derived by application of the Luna analytical process and
do not reflect consideration of contrary evidence in the record. To the extent that the ALJ found
any support for the subjective symptoms, she was required to assess their effect on Ms. Drake’s
ability to work.
Giving the ALJ the benefit of the doubt, it appears that she only considered the “objective
medical evidence,” relative to HIV/AIDS, rather than considering evidence pertinent to
medication side effects. Indeed, there is no evaluation of any correlation between known side
effects of Ms. Drake’s medications and these symptoms or to Ms. Drake’s reports to her doctors
about these symptoms. For example, according to Dr. Hofflin’s notes, Ms. Drake reported
consistent vomiting on October 16, 2008, nausea on January 22, 2008, vomiting on December
19, 2007, nausea on December 4, 2006, and nausea, vomiting, and malaise in August of 2006.
Dr. Kroll’s notes indicate that Ms. Drake reported nausea and vomiting on May 5, 2009, as well
as fatigue and insomnia on January 27, 2009. Dr. Sanchez’s evaluation from December 15,
2009, reflects that Ms. Drake had symptoms of nausea, vomiting, and diarrhea. Dr. Kartalija’s
notes indicate that Ms. Drake reported nausea on June 15, 2010.
In briefing, the Commissioner correctly observes that some of the reports of nausea and
vomiting temporally correspond to early stages in Ms. Drake’s pregnancies. However, the ALJ
makes no observation about such circumstances. Without a complete analysis and explication by
the ALJ as to nature, severity, frequency and effect of nausea, vomiting, diarrhea and other
subjective symptoms, to what degree they are attributable to medication side effects and how
they affect Ms. Drake’s ability to work, the required Luna analysis is not complete and rejection
of Ms. Drake’s subjective symptoms as a limitation on her ability to work is not supported by
For the forgoing reasons, the Commissioner of Social Security’s decision is
REVERSED, and the case is REMANDED for consideration of the side effects of Ms. Drake’s
medications and subjective symptoms at Step 4 and further analysis at Step 5, if warranted.
DATED this 19th day of March, 2013
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
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