Longmore v. Astrue
Filing
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OPINION AND ORDER. The Commissioner of Social Security's decision is reversed, and the case is remanded for further proceedings at Step 2, and if appropriate, Steps 3, 4, and 5. The Clerk shall enter a Judgment in accordance herewith. By Chief Judge Marcia S. Krieger on 5/13/13. (mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 12-cv-00593-MSK
THERESA R. LONGMORE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.1
OPINION and ORDER
THIS MATTER comes before the Court on Plaintiff Theresa R. Longmore’s appeal of
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. Having
considered the pleadings and the record, the Court
FINDS and CONCLUDES that:
I.
Jurisdiction
Ms. Longmore filed a claim for disability insurance benefits pursuant to Title II. She
asserted that her disability began on October 3, 2008. After her claims were initially denied, Ms.
Longmore filed a written request for a hearing before an Administrative Law Judge (“ALJ”).
This request was granted and a hearing was held on May 19, 2011.
After the hearing, the ALJ issued a decision with the following findings: (1) Ms.
Longmore met the insured status requirements of the Social Security Act through June 30, 2013;
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At the time Ms. Longmore filed her appeal, Michael J. Astrue was the Commissioner of Social
Security. Carolyn W. Colvin is substituted as the Defendant in this action to reflect her
designation as Acting Commissioner of Social Security, effective February 14, 2013.
(2) she had not engaged in substantial gainful activity since October 3, 2008; (3) she had the
following severe impairments: fibromyalgia, insomnia, scoliosis and degenerative changes of the
spine, chronic sinusitis, and a history of deep vein thrombosis requiring indefinite Coumadin
treatment; (4) none of these impairments, considered individually or together, met or were
equivalent to one of the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1 (“the
Listings”); (5) Ms. Longmore had the Residual Functional Capacity (“RFC”) to perform
sedentary work with the following limitations: lifting and carrying ten pounds both frequently
and occasionally; standing and/or walking, with normal breaks, for a total of six hours in and
eight hour workday; performing pushing and pulling motions with the upper and lower
extremities within the aforementioned weight restrictions; avoiding unprotected heights and
moving machinery; restriction to a “relatively clean” work environment, meaning a low level of
pollutants; occasional climbing, stooping, crouching and kneeling; no climbing ladders, ropes, or
scaffolds; no crawling; occasionally performing bilateral overhead reaching and, due to use of
blood thinners, avoidance of sharp objects such as kitchen knives; and (7) she was not disabled
because she was able to perform her past relevant work as a telephone solicitor as well as other
jobs in the national economy, including order clerk, receptionist, and information clerk.
The Appeals Council denied Ms. Longmore’s request for review of the ALJ’s decision.
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. Longmore’s appeal was
timely brought, and this Court exercises jurisdiction to review the Commissioner of Social
Security’s final decision pursuant to 42 U.S.C. § 405(g).
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II.
Material Facts
Having reviewed the record in light of the issues raised, the material facts are as follows.
According to the medical record, Ms. Longmore periodically complained of hoarseness and a
sore throat to her primary physician, Dr. Vecchiarelli. His treatment records indicate that she
complained of these symptoms several times in 2006 and 2007. In February and March 2008,
Dr. Vecchiarelli noted that Ms. Longmore had a sore throat, cough, and laryngitis. Beginning in
early October 2008, Ms. Longmore’s symptoms became worse, and she had a very hoarse voice.
Dr. Vecchiarelli’s assessment at that time was persistent hoarseness and cough, and his notes
periodically affirmed this assessment, with notes from December 2008, February 2009, March
2009, and September 2010 indicating laryngitis or hoarseness.
Beginning in October 2008, Ms. Longmore saw Dr. Cichon, an otolaryngologist, for
evaluation of her hoarseness. After performing a number of tests and concluding that surgery
was unnecessary, Dr. Cichon’s assessment was hoarseness with vocal cord swelling. Visits in
late October and November indicated no improvement in Ms. Longmore’s symptoms. In
December 2008, Dr. Cichon noted that Ms. Longmore’s situation was difficult and hypothesized
that she had a psychogenic dysphonia causing her hoarseness. He remarked that Ms. Longmore
“returns for follow-up of her persistent hoarseness. So far nothing has improved and nothing has
helped,” and recommended further testing with Dr. Ernster, another otolaryngologist. After
performing a partial stroboscopic exam in December 2008, Dr. Ernster concluded that an
“incomplete glottis closure occurs suggesting a form of muscle tension dysphonia.” He
recommended speech therapy.
Beginning in late December 2008 and continuing through March 2009, Ms. Longmore
attended speech therapy several times per week with Ms. Doumas. Based on an initial
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assessment that diagnosed hoarseness caused by a voice disorder, Ms. Doumas’ treatment
focused on vocal hygiene, vocal exercises, and reduced use of her voice. Although Ms.
Longmore consistently attended her treatment sessions, the medical records from these sessions
indicate that Ms. Longmore continued to suffer from hoarseness, voice weakness, breathiness,
and decreased adduction. Ms. Doumas noted on February 3, 2009, that Ms. Longmore’s voice
was breathy to almost aphonic and was getting worse despite frontal resonance and relaxation
exercises. On February 8 and 19, Ms. Doumas noted improved but inconsistent volume with
moderate harshness. However, Ms. Doumas indicated on February 23 that Ms. Longmore’s
voice harshness persisted and became worse when she spoke over one hour or had sinusitis.
Two days later, Ms. Doumas recommended reduced voice use but noted that Ms. Longmore’s
voice was improved for the one hour session. The results of a lung capacity test performed on
March 3 were within normal limits, but indicated that Ms. Longmore had vocal cord adduction
difficulty. Based on the numerous therapy sessions, Ms. Doumas’ final assessment on March 11
was that Ms. Longmore continued to have inconsistent endurance for her voice quality.
At Step 2, the ALJ did not find that Ms. Longmore’s vocal cord dysfunction was a severe
impairment. Additionally, there was no further reference to Ms. Longmore’s vocal cord
dysfuction in the remainder of the decision. The RFC finding did not reflect speaking limits and
the hypothetical questions posed to the vocational expert did not reflect functional limits
associated with a vocal cord impairment.
III.
Issues Presented
Ms. Longmore raises six challenges to the Commissioner’s decision: (1) the ALJ should
have considered Ms. Longmore’s vocal cord dysfunction to be a severe impairment at Step 2; (2)
the ALJ failed to properly evaluate Ms. Longmore’s cervical spine impairments and vocal cord
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dysfunction at Step 3; (3) the ALJ failed to properly evaluate the treating source opinions of Dr.
Vecchiarelli; (4) the ALJ did not properly assess Ms. Longmore’s credibility; (5) the ALJ’s
finding at Step 4 that Ms. Longmoe could perform her past relevant work as a telephone solicitor
is not supported by substantial evidence; and (6) the ALJ’s conclusion at Step 5 that Ms.
Longmore could perform other work identified by the vocational expert is not supported by
substantial evidence. As the Court concludes that Ms. Longmore’s first challenge warrants
reversal and remand for further proceedings at Step 2, and if necessary, Steps 3 through 5, it is
not necessary to to address her remaining challenges.
IV.
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). 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)).
Step 2 of the sequential disability evaluation analysis requires the ALJ to consider the
medical severity of the claimant’s impairments. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment
or combination of impairments is severe if it significantly limits a claimant’s physical or mental
ability to do basic work activities. 20 C.F.R. § 404.1521(a). Although the existence of a
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condition or ailment alone is not enough, a claimant need only make a de minimis showing of
impairment to satisfy the requirements of Step 2. Langley v. Barnhart, 373 F.3d 1116, 1123
(10th Cir. 2004) (citing Bowen v. Yuckert, 482 U.S. 137, 158, 107 S.Ct. 2287 (1987)).
A Step 2 finding is based on medical evidence alone, and does not include consideration
of evidence relating to age, education, and work experience. SSR 85-28; Williams v. Bowen, 844
F.2d 748 (10th Cir. 1988); 20 C.F.R. § 404.1508 (physical or mental impairments must be
established by medical evidence consisting of signs, symptoms, and laboratory findings, not only
by a claimant’s statement of symptoms). An error at Step 2 may be harmless if the ALJ finds
that some other impairment is severe and continues to the remaining steps in the sequential
disability evaluation, taking all impairments into account in determining the Claimaint’s
Residual Functional Capacity. Grotendorst v. Astrue, 370 Fed.Appx. 879, 883 (10th Cir. 2010);
see also Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008); 20 C.F.R. §§ 404.1523 and
1545.
V.
Discussion
At Step 2, the ALJ found that Ms. Longmore had several severe impairments. However,
the ALJ also found that Ms. Longmore’s vocal cord dysfunction was not a severe impairment.
The ALJ found that Ms. Longmore’s vocal cord dysfunction resulted in some hoarseness, but
that it was not severe because surgery was not required, Ms.Longmore underwent therapy in
2008 to improve vocal hygiene and relaxation, and recent records did not document this
impairment. Ms. Longmore contests the ALJ’s finding and argues that her vocal cord
dysfunction significantly limited her ability to perform basic work activities, in particular
speaking clearly. The Commissioner argues that the medical record does not support functional
limitations stemming from Ms. Longmore’s vocal cord dysfunction. The Commissioner also
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argues that this impairment lasted only ten months and thus did not meet the durational
requirement of a disability. Finally, the Commissioner argues that any error at Step 2 was
harmless.
The Court begins with the question of whether the ALJ failed to consider objective
evidence in the record that indicated that Ms. Longmore’s vocal cord dysfunction caused more
than minimal functional limitations and, if so, whether this error was harmless.
The decision reflects some consideration of the medical records which address Ms.
Longmore’s vocal cord dysfunction. However, a substantial amount of relevant evidence was
not addressed. Although Dr. Cichon did not recommend surgery for Ms. Longmore’s vocal cord
dysfunction, he noted swelling in Ms. Longmore’s vocal cords in October 2008. In December
2009, he indicated that Ms. Longmore “returns for follow-up of her persistent hoarseness. So far
nothing has improved and nothing has helped.” He observed that Ms. Longmore exhibited
strained vocal quality and hoarseness, might have had a psychogenic dysphonia, and referred her
to Dr. Ernster. After performing a partial stroboscopic exam, Dr. Ernster concluded that Ms.
Longmore had a form of muscle tension dysphonia and recommended speech therapy.
Ms. Longmore attended speech therapy from December 2008 to March 2009. An initial
evaluation diagnosed hoarseness caused by a voice disorder. The speech therapist, Ms. Doumas,
focused on vocal hygiene, vocal exercises, and reduced use of her voice. Despite this therapy,
Ms. Longmore did not make a great deal of progress and the treatment notes consistently indicate
that she suffered from hoarseness, voice weakness, breathiness, and decreased adduction.
During the month of February, Ms. Doumas noted both improvement and regression in Ms.
Longmore’s voice quality. At some points, Ms. Longmore was almost aphonic and had very
limited voice endurance despite her exercises. At other times she had improved, but inconsistent
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volume. Overall, she continued to have moderate harshness, prompting Ms. Doumas to iterate
her recommendation that she reduce her voice usage. Although the results of a lung capacity
test performed in March were normal, they also indicated that Ms. Longmore had vocal cord
adduction difficulty. Ultimately, Ms. Doumas’ final assessment was that Ms. Longmore
continued to have inconsistent endurance for her voice quality.
The speech therapist’s notes were supplemented by doctor’s notes that consistently
indicate hoarseness and vocal cord dysfunction. In addition to Dr. Cichon and Dr. Ernster’s
observations, Dr. Vecchiarelli, her treating physician, observed in October 2008 that Ms.
Longmore had a cough, hoarseness, sore throat and congestion. Dr. Vecchiarelli repeated these
observations in notes from November and December 2008, February 2009, and September
2010.2 Considering the de minimis standard for establishing a severe impairment, these records
indicate at least minimal impairment from vocal cord dysfunction. As such, they should have
been considered at Step 2.
Given the failure to consider all the medical evidence related to the functional limitations
caused by Ms. Longmore’s vocal cord dysfunction, the Court next determines whether this error
was harmless. As noted, an error at Step 2 may be harmless if the impairment at issue was
considered in subsequent analysis. Grotendorst, 370 Fed.Appx. at 883; 20 C.F.R. §404.1545(e).
In this case, there is no indication that the ALJ considered Ms. Longmore’s vocal cord
dysfunction after Step 2.
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The Commissioner notes that Ms. Longmore’s medical records only mention voice hoarseness
from March 2007 to August 2009. According to the Commissioner, Ms. Longmore did not meet
the minimum time period for an impairment to qualify as a disability, twelve months, because
she claims her disability began in October 2008, only ten months prior to August 2009.
However, Dr. Vecchiarelli noted that Ms. Longmore had a cough and hoarseness in his treatment
record from September 2010. Additionally, the ALJ’s Step 2 finding was not based on this
reasoning, making this a post hoc argument inappropriate for judicial review. See Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (ALJ’s decision should be evaluated solely on
the reasons stated in the decision).
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Although the decision includes the statement that the ALJ “[carefully] considered the
entire record,” this assertion is not supported in the decision. Taking the statement that the entire
record was considered at face value, one would expect further discussion of Ms. Longmore’s
vocal cord dysfunction, the medical evidence related to her vocal cord dysfunction, as well as
Ms. Longmore’s statements regarding her subjective symptoms. However, the analysis at Steps
3, 4, and 5 does not mention Ms. Longmore’s vocal cord dysfunction or any related medical
evidence or symptoms. No limitations stemming from Ms. Longmore’s vocal cord dysfunction
were included in the Step 4 RFC finding or in the questions posed to the vocational expert. Most
significant, is that the ALJ concluded that Ms. Longmore was able to perform her past relevant
work as a telephone solicitor, a job that is dependent upon her voice. It appears that Ms.
Longmore’s vocal cord dysfunction was not given further consideration after Step 2. As such,
the error at Step 2 was not harmless.
For the forgoing reasons, the Commissioner of Social Security’s decision is
REVERSED, and the case is REMANDED for further proceedings at Step 2, and if appropriate,
Steps 3, 4, and 5. The Clerk shall enter a Judgment in accordance herewith.
DATED this 13th day of May, 2013
BY THE COURT:
Marcia S. Krieger
United States District Judge
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