Whitten v. Astrue

Filing 21

ORDER the Commissioners decision is REVERSED and this case is REMANDED to the Commissioner for rehearing, by Judge William J. Martinez on 4/11/2013. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-0601-WJM
APRIL E. WHITTEN,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.

ORDER REVERSING ADMINISTRATIVE LAW JUDGE’S DECISION AND
REMANDING TO THE COMMISSIONER

This social security benefits appeal is before the Court under 42 U.S.C. § 405(g).
Plaintiff April Whitten (“Plaintiff”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”), denying her application for disability
insurance benefits and supplemental security income. The denial was affirmed by an
administrative law judge (“ALJ”), who ruled Plaintiff was not disabled within the meaning
of the Social Security Act (“Act”). This appeal followed.
For the reasons set forth below, the ALJ’s decision denying Plaintiff’s application
for Social Security disability benefits is reversed and the case is remanded to the
Commissioner for rehearing.

I. BACKGROUND1
Plaintiff April E. Whitten (“Plaintiff”) was born on February 22, 1967 and was 40
years old on the alleged disability onset date. (Admin. Record (“R.”) (ECF No. 9) at 19.)
Plaintiff is a graduate student studying to obtain a master’s degree in psychology, and
has past relevant work experience as a hair stylist. (R. at 16, 18.)
Plaintiff filed an application for disability insurance benefits and supplemental
security income on September 12, 2008, alleging that she had been disabled since
January 13, 2008 due to several impairments, including degenerative disc disease and
accompanying severe back pain. (R. at 10, 12.)
Plaintiff began treating with Dr. Patrick Timms, M.D., a specialist in
rheumatology, on June 9, 2009. (R. 306-07.) Dr. Timms diagnosed Plaintiff with
cervical, thoracic, and lumbar spondylosis and a disc herniation. (R. at 326, 341.) After
multiple appointments with Plaintiff, Dr. Timms opined on May 21, 2010 that Plaintiff
could sit for ten minutes at once and up to one hour per day, stand for ten minutes at
once and up to two hours per day, and lift or carry five pounds. (R. at 421-422.)
Plaintiff’s application for benefits was initially denied on November 25, 2008. (R.
at 10.) After requesting a hearing, Plaintiff’s claims were heard by ALJ Kathryn D.
Burgchardt in a video hearing on August 23, 2010. (R. at 10.) Plaintiff and vocational
expert Dennis J. Duffin testified at the administrative hearing. (Id.) Medical evidence
and opinions were provided by Dr. Timms, physical consultative examiner Dr. Justin

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The following background focuses only on the elements of Plaintiff’s medical history
that are relevant to the Court’s analysis, i.e., Plaintiff’s degenerative disc disease and back
pain. The Court omits all discussion of Plaintiff’s alcohol abuse and mental health history.
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Olswanger, D.O., psychological consultative examiner Dr. Steven D. Martin, M.D., and
state agency medical consultant James J. Wanstrath, Ph.D. (R. at 17-18, 342.)
At the hearing before the ALJ, Plaintiff testified that she was limited to sitting and
standing for thirty minutes each, could walk only half of one block, could lift only five
pounds, and lies down regularly to rest. (R. at 30, 46-47.) Plaintiff also testified that, as a
student, she attends school for two full days per week and studies in the morning on three
additional days per week. (R. at 32-33.) As the single mother of four children, two of
whom were ages five and six at the time of the hearing, Plaintiff testified that she cares for
her family, doing laundry, cooking, and cleaning, and stated that she takes her children to
and from school with the assistance of her parents, who drive her. (R. at 41-44.)
On August 23, 2010, the ALJ issued a written decision in accordance with the
Commissioner’s five-step sequential evaluation process.2 At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since January 13, 2008, the
alleged onset date. (R. at 12.) At step two, she found that Plaintiff suffered from
degenerative disc disease, a severe impairment. (Id.) At step three, the ALJ found that
Plaintiff’s degenerative disc disease did not meet any of the impairments or
combination of impairments listed in the social security regulations. (R. at 14.) The
ALJ assessed Plaintiff’s residual functional capacity (“RFC”), finding that she had the
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The five-step process requires the ALJ to consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment;
(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to
her past relevant work; and, if not, (5) could perform other work in the national economy. See
20 C.F.R. § 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.
1988.) The claimant has the burden of proof through steps one to four; the Social Security
Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).

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RFC to perform “sedentary” work as defined by the regulations, but imposing several
limitations, including lifting and carrying less than ten pounds frequently and ten pounds
occasionally, pushing and pulling with upper and lower extremities with the same weight
restrictions, standing and walking a total of two hours in an eight hour workday, sitting a
total of six hours in an eight hour workday, occasionally stooping and crouching, and no
climbing ladders, ropes, or scaffolds. (R. at 14-15.)
In establishing this RFC, the ALJ discussed Plaintiff’s testimony, noting
inconsistencies in Plaintiff’s statements regarding her disability, and finding that “[t]he
evidence strongly suggests that the claimant is capable of far more exertional activity
than she stated during her testimony.” (R. at 16-17.) The ALJ also discussed the
medical opinions, giving “little weight” to Dr. Timms’s opinion because “his limitations
are inconsistent with the medical evidence and suggest that he may have lost
objectivity in his effort to assist his patient [to] secure disability benefits.” (R. at 18.)
Given the RFC, at step four the ALJ found that Plaintiff could not perform her
past relevant work as a hair stylist. (R. at 18.) However, at step five, the ALJ found that
given Plaintiff’s age, education, work experience, and her RFC, there were jobs in
significant numbers in the national economy that Plaintiff could perform. (R. at 19.)
Accordingly, the ALJ found that Plaintiff was not disabled within the meaning of the Act,
and therefore was not entitled to benefits. (Id.)
The Appeals Council denied Plaintiff’s request for review on January 19, 2012.
(R. at 2.) Thus, the ALJ’s August 23, 2010 decision is the final administrative action for
purposes of review.
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II. STANDARD OF REVIEW
The Court reviews the Commissioner’s decision on Plaintiff’s entitlement to
disability benefits to determine whether substantial evidence in the record as a whole
supports the factual findings and whether the correct legal standards were applied.
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Id. “It requires more than a scintilla, but less than a preponderance.” Lax
v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Evidence is not substantial if it is
overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257,
1261-62 (10th Cir. 2005). In reviewing the Commissioner’s decision, the Court may
neither reweigh the evidence nor substitute its judgment for that of the agency. Salazar
v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). “On the other hand, if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
III. ANALYSIS
On appeal, Plaintiff raises three issues: (1) the ALJ failed to state a proper basis
for discounting the opinion of treating specialist Dr. Timms and giving it only little
weight; (2) the ALJ failed to state reasons for adopting some limitations, but not others,
from Dr. Timms’s opinion in formulating the RFC; and (3) the ALJ failed to properly
state the evidence she relied upon in formulating the RFC, specifically the portions of
Plaintiff’s testimony that were found credible, and failed to describe how that evidence
supported the RFC assessment. (ECF No. 17 at 7-8.) Because the Court finds that the
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ALJ failed to apply the correct legal standard in weighing Dr. Timms’s opinion, and that
this error was not harmless and requires remand, the Court will address this argument
first.
A.

Treating Physician’s Medical Opinion
Plaintiff contends that the ALJ failed to state reasons for giving little weight to the

opinion of Dr. Timms, Plaintiff’s treating specialist. (ECF No. 17 at 17-21.)
The opinion of a treating physician is generally “entitled to great weight because
it reflects expert judgment based on continuing observation of a patient’s condition over
a prolonged period of time.” Williams v. Chater, 923 F. Supp. 1373, 1379 (D. Kan.
1996). However, an ALJ may diminish the weight assigned to that opinion if it is
contradicted by other medical evidence, or otherwise inconsistent with substantial
evidence in the record. See Marshall v. Astrue, 315 F. App’x 757, 759-60 (10th Cir.
2009); 20 C.F.R. § 404.1527(d)(2). The analysis of how much weight to accord a
treating source opinion requires two steps:
An ALJ must first consider whether the opinion is well-supported by
medically acceptable clinical and laboratory diagnostic techniques. If the
answer to this question is “no,” then the inquiry at this stage is complete.
If the ALJ finds that the opinion is well-supported, he must then confirm
that the opinion is consistent with other substantial evidence in the record.
In other words, if the opinion is deficient in either of these respects, then it
is not entitled to controlling weight.
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (citing 20 C.F.R. §§
404.1527, 416.927).
If a treating physician’s opinion is not given controlling weight, the ALJ must
determine what weight, if any, the opinion deserves, considering the following factors:
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(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; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Id. at 1301 (internal quotations omitted). The ALJ need not explicitly discuss each
individual factor, as not every factor will apply in every case. See Oldham v. Astrue,
509 F.3d 1254, 1258 (10th Cir. 2007). Nevertheless, the treating physician’s opinion
“must be weighed using all of the factors,” the ALJ must “give good reasons” for the
weight to be assigned to a medical opinion, and “if the ALJ rejects the opinion
completely, he must then give specific, legitimate reasons for doing so.” Watkins, 350
F.3d at 1301 (internal citations omitted); see also 20 C.F.R. § 404.1527(d)(2); Soc. Sec.
Ruling (SSR) 96–2p, 1996 WL 374188, at *4. This requirement ensures that the ALJ’s
decision “make[s] clear to any subsequent reviewers the weight the adjudicator gave to
the treating source’s medical opinion and the reasons for that weight.” Oldham, 509
F.3d at 1258 (internal quotation marks omitted).
Here, Plaintiff argues that the ALJ failed to give proper reasons for discounting
Dr. Timms’s opinion and giving it only “little weight.” (ECF No. 17 at 14; R. at 18.) In
order to conclude that the medical opinions of Dr. Timms, a treating physician, were not
entitled to controlling weight, the ALJ was required to find that either his opinion was not
well-supported by medically acceptable diagnostic techniques, or that it was
inconsistent with other substantial evidence in the record. Watkins, 350 F.3d at 1300.
The ALJ indicated that Dr. Timms’s opinion was inconsistent with Plaintiff’s testimony
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regarding her limitations and her daily activities, and with the medical evidence. (R. at
18.) Therefore, the ALJ applied the correct legal standard in finding that Dr. Timms’s
medical opinion was not entitled to controlling weight.
After determining that a treating physician’s opinion does not control, the ALJ is
required to consider “all of the factors” articulated in Watkins in determining the weight
the opinion should be given. 350 F.3d at 1301. In the instant case, the ALJ explained
that Dr. Timms’s opinion was not consistent with Plaintiff’s testimony, found the
limitations he assigned to Plaintiff to be “extremely disproportionate” to his own medical
observations in the record, and described a conflicting assessment with another
physician in Dr. Timms’s practice. (R. at 18.) This indicates that the ALJ considered
factors (3) and (4), the evidence supporting the opinion and the consistency between
the opinion and the record—essentially the same considerations used to determine that
the opinion was not controlling. However, the ALJ’s decision did not discuss factors (1),
(2), and (5) regarding the nature, length, and extent of the treatment relationship, the
frequency of examination, and Dr. Timms’s status as a specialist.
While the ALJ is not required to expressly discuss each factor, all pertinent
factors must be considered, and the decision must articulate “good reasons” for the
weight that is ultimately assigned. 20 C.F.R. § 404.1527. Here, because Dr. Timms
was a specialist who saw Plaintiff multiple times as her treating physician, the Court is
unable to find that the factors the ALJ failed to discuss were not applicable to the case.
Whether the ALJ chose to grant Dr. Timms’s opinion the little weight that she did
because of his status as a specialist and his relatively short treatment relationship with
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the Plaintiff, or whether the ALJ completely ignored these factors and neglected to
consider them, the Court cannot guess. Although the stated inconsistencies with the
record are sufficient to explain why the ALJ did not give Dr. Timms’s opinion controlling
weight, the ALJ’s explanation fails to “make clear” to the Court the reasoning for the
weight ultimately given. Oldham, 509 F.3d at 1258. The existence of multiple factors in
the regulations indicates that a treating physician’s opinion should not be severely
discounted based upon one factor alone. See Watkins, 350 F.3d at 1301. Accordingly,
the Court finds that the ALJ erred in failing to apply the analysis required by 20 C.F.R.
§§ 404.1527 and 416.927 in weighing Dr. Timms’s opinion.
B.

Harmless Error
Even where the Court finds that the ALJ has erred in her analysis, the Court will

affirm the decision where the error is harmless. See Allen v. Barnhart, 357 F.3d 1140,
1145 (10th Cir. 2004). Courts must exercise caution in applying harmless error analysis
in the context of a Social Security disability appeal. Fischer-Ross v. Barnhart, 431 F.3d
729, 733-34 (10th Cir. 2005). Nevertheless, a finding of harmless error may be
appropriate in the “exceptional circumstance . . . where, based on material the ALJ did
at least consider (just not properly), [a court] could confidently say that no reasonable
administrative factfinder, following the correct analysis, could have resolved the factual
matter in any other way.” Allen, 357 F.3d at 1145. However, the Court cannot weigh
the evidence or make findings of fact in order to “save the decision,” as doing so would
“usurp[ ] the ALJ’s primary responsibility” to make those determinations. Id.

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In the instant case, the ALJ’s decision centered not on what medical evidence
supported her conclusions, but rather on the contradictions and inconsistencies the ALJ
found in the testimony and the medical opinions. (See R. at 15-18.) The bulk of the
discussion focused on Plaintiff’s testimony, explaining the ALJ’s findings that Plaintiff’s
stated limitations and disabling symptoms were not credible because they were
contradicted by Plaintiff’s other statements. (R. at 16-17.) Of the two medical opinions
regarding Plaintiff’s physical condition that the ALJ discussed, Dr. Timms’s opinion was
given little weight, and Dr. Olswanger’s opinion was simply “given weight,” without any
indication of how little or how much it was weighed. (R. at 18.) Apart from giving Dr.
Olswanger’s opinion weight of an unknown quantum, the ALJ failed to discuss which
evidence she did find credible, and which evidence she relied upon in reaching her
conclusions. See Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (an ALJ must
discuss uncontroverted and/or significantly probative evidence he rejects, “in addition to
discussing the evidence supporting his decision”).
The ALJ’s failure to state the evidence she relied upon prevents the Court from
determining whether, notwithstanding the errors found here, that evidence would have
been sufficient to convince any reasonable factfinder that Plaintiff was not disabled.
There may be medical evidence in the record that supports the ALJ’s ultimate
determinations, and the ALJ’s reasoning may be perfectly sound. However, without the
benefit of findings by the ALJ revealing her specific weighing of such evidence, the
Court cannot “say that no reasonable administrative factfinder, following the correct
analysis, could have resolved the factual matter in any other way,” nor may the Court
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usurp the ALJ’s factfinding role and substitute its own weighing of the evidence in order
to “save the opinion.” Allen, 357 F.3d at 1145. Accordingly, the Court cannot find that
the ALJ’s errors were harmless. These errors therefore require reversal.
C.

Other Arguments
Plaintiff raises two additional issues related to the sufficiency of the underlying

proceedings. Because the Court finds that the ALJ’s analysis of Dr. Timms’s medical
opinion failed to apply the proper legal standard, and that this error alone was not
harmless and requires remand, the Court need not address the other arguments raised
by Plaintiff. See Madrid v. Barnhart, 447 F.3d 788, 792 (10th Cir. 2006) (when 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 how the
evidence was considered. It is entirely possible that the ALJ could arrive at the same
conclusion and find that Plaintiff is not disabled under the Act. The Court does not
intend by this opinion to suggest the result that should be reached on remand; rather,
the Court encourages the parties, as well as the ALJ, to consider the evidence and the
issues anew.
Finally, the Court notes that according to Plaintiff’s testimony, she was being
treated for the impairment at issue by a Dr. Koonz, but no medical records from Dr.
Koonz were submitted into evidence in the proceeding before the ALJ. (R. at 16.) On
remand, the ALJ should attempt to obtain the relevant records from Dr. Koonz and
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weigh them with the other medical evidence as she sees fit. See Grogan v. Barnhart,
399 F.3d 1257, 1264 (10th Cir. 2005) (“When he considers an issue, an ALJ has the
duty to develop the record by obtaining pertinent, available medical records which come
to his attention during the course of the hearing.”) (internal quotation marks omitted);
Nagelschneider v. Astrue, 617 F. Supp. 2d 1115, 1119 (D. Colo. 2009) (“[T]o the extent
that medical records pertinent to plaintiff’s impairments exist that are not included in
plaintiff’s case record, the ALJ should obtain and consider such records as he deems
appropriate.”).
III. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is REVERSED
and this case is REMANDED to the Commissioner for rehearing.
Dated this 11th day of April, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

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