Stephens v. Astrue

Filing 26

ORDER re: 1 Complaint. The conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is REVERSED. This case is REMANDED to the ALJ. Plaintiff is AWARDED her costs to be taxed by the clerk of the court. By Judge Robert E. Blackburn on 4/22/2013. (klyon, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-01162-REB
ESTATE OF TAMMY STEPHENS,
Plaintiff,
v.
CAROLYN W. COLVIN,1 Acting Commissioner of Social Security,
Defendant.

ORDER REVERSING DISABILITY
DECISION AND REMANDING TO COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],2 filed May 5, 2012, seeking
review of the Commissioner’s decision denying plaintiff’s claim for disability insurance
benefits and supplemental security income benefits under Titles II and XVI of the Social
Security Act, 42 U.S.C. § 401, et seq. I have jurisdiction to review the Commissioner’s
final decision under 42 U.S.C. § 405(g). The matter has been fully briefed, obviating the
need for oral argument. I reverse and remand.

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013,
and thus her name is substituted for that of Michael J. Astrue as the defendant in this suit. FED. R. CIV. P.
25(d)(1). By virtue of the last sentence of 42 U.S.C. § 405(g), no further action need to taken to continue
this lawsuit.
2

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s electronic case filing and management system (CM/ECF). I use this convention
throughout this order.

I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she was disabled as a result of rheumatoid arthritis, gout,
and chronic pain syndrome.3 After her applications for disability insurance benefits and
supplemental security income benefits were denied, plaintiff requested a hearing before
an administrative law judge. This hearing was held on January 19, 2011. At the time of
the hearing, plaintiff was 43 years old. She has a ninth grade education and past
relevant work experience as a nurses’ aide, janitor, child care monitor, and cake
decorator. She has not engaged in substantial gainful activity since September 26,
2008.4
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits or supplemental security income benefits. Although the
medical evidence established that plaintiff suffered from severe impairments, the judge
concluded that the severity of those impairments did not meet or equal any impairment
listed in the social security regulations. The ALJ found that plaintiff had the residual
functional capacity to perform sedentary work with various restrictions. Although this
finding precluded plaintiff’s past relevant work, the ALJ concluded that there were jobs
existing in significant numbers in the national and local economies that she could
perform. He therefore found plaintiff not disabled at step five of the sequential

3

Plaintiff died on July 18, 2012, after this case was filed. (See Unopposed Motion To
Substitute Party Plaintiff, Exh. A [#12], filed August 2, 2102.) Plaintiff’s estate thereafter was substituted
as the party plaintiff in this matter. (See Minute Order [#13], filed August 3, 2012.) For ease of reference,
I refer to plaintiff as Ms. Stephens, rather than her estate.
4

Although plaintiff alleged an onset date of August 1, 2007, the ALJ found that she had engaged
in substantial gainful activity beyond that date. (Tr. 22-23.) Plaintiff does not challenge that finding on
appeal.

2

evaluation. Plaintiff appealed this decision to the Appeals Council. The Council
affirmed. Plaintiff then filed this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if her
physical and/or mental impairments preclude her from performing both her previous
work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a five-step sequential evaluation process for
determining whether a claimant is disabled:
1.

The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.

2.

The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.

3

3.

4.

5.

The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.
If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.
If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.

20 C.F.R. § 404.1520(b)-(f). See also Williams v. Bowen 844 F.2d 748, 750-52 (10th
Cir. 1988). The claimant has the initial burden of establishing a disability in the first four
steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294
n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that
the claimant is capable of performing work in the national economy. Id. A finding that
the claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. Casias v. Secretary of Health & Human Services, 933
F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.

4

Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “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. 1992). Further, “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).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
III. LEGAL ANALYSIS
Plaintiff presents four separate, albeit interrelated, arguments in this appeal.
Because I concur with her suggestion that the ALJ erred by failing to provide good
reasons for the weight he assigned to the opinions of plaintiff’s treating sources, I do not
consider the remaining arguments.5
The opinion of a treating source is entitled to controlling weight when it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence in the case record.” 20 C.F.R. §
404.1527(d)(2); see also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). A
treating source opinion cannot be rejected absent good cause for specific and legitimate
reasons clearly articulated in the hearing decision. Watkins, 350 F.3d at 1301. Good
cause may be found where the treating source’s opinion is brief, conclusory, or
unsupported by the medical evidence. Frey v. Bowen, 816 F.2d 508, 513 (10th Cir.
1987).
5

Nevertheless, to the extent error occurred in any of these other respects, those issues may be
addressed on remand as well.

5

Here, the ALJ assigned little weight to the opinions of plaintiff’s treating sources,
Dr. Suzanne Metcalf and physician’s assistant Tara Clemens (see Tr. 555-558), on the
grounds that these opinions were unsupported by objective medical findings or other
credible evidence (Tr. 27.)6 There are several problems with his conclusion in this
regard. For one thing, a claim of disability cannot be rejected on the lack of objective
medical evidence alone. See 20 C.F.R. § 404.1529(c)(2). “A medical opinion based on
a physician's evaluation of the patient's medical history, observations of the patient, and
an evaluation of the credibility of the patient's subjective complaints of pain, is medical
evidence supporting a claim of disabling pain, even if objective test results do not fully
substantiate the claim.” Orender v. Barnhart, 2002 WL 1747501 at *6 (D. Kan. July
16, 2002) (citing Nieto v. Heckler, 750 F.2d 59, 61-62 (10th Cir. 1984)).7
Moreover, the ALJ failed to tie his findings to any particular evidence in the
record. The decision must articulate the ALJ's reasoning such that later reviewers can
identify both the weight that was actually assigned to the [medical source] opinion and
the reasons for that weight.” Andersen v. Astrue, 2009 WL 886237 at *3 (10th Cir. Apr.
3, 2009) (citations omitted); see also Social Security Ruling 96-2p, 1996 WL 374188
at *5 (SSA July 2, 1996). Contrary to this mandate, the ALJ did not review or discuss

6

I take no issue, however, with the ALJ’s determination not to rely on Ms. Clemens’s June, 2009,
statement that plaintiff was “unable to work effectively in any environment due to her medical conditions”
was conclusory and went to an issue reserved to the Commissioner. (Tr. 525.) See 20 C.F.R. §
404.1527(e); Sosa v. Barnhart, 2003 WL 21436102 at *5 (D. Kan. April 10, 2003), adopted, 2003 WL
21428384 (D. Kan. Jun. 17, 2003).
7

Nor can these opinions be disregarded simply because they are offered in the context of “checkoff forms,” see Andersen v. Astrue, 2009 WL 886237 at *6-7 (10th Cir. Apr. 3, 2009), which were provided
to the medical professionals by the claimant’s attorney, Hinton v. Massanari, 13 Fed. Appx. 819, 824
(10th Cir. 2001).

6

the copious treatment notes comprising plaintiff’s seven years of treatment with Dr.
Metcalf and Ms. Clemens at all. (See Tr. 326-415, 420-514, 526-554.) His statement
thus constitutes nothing more than a conclusion in the guise of findings, which does not
constitute substantial evidence in support of the disability determination. Hardman v.
Barnhart, 362 F.3d 676, 679 (10th Cir. 2004).
Although the Commissioner cites to various portions of the treatment records as
supporting of the ALJ’s decision, such post-hoc explanations are inappropriate.8 See
Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005). Nor was the ALJ’s error
harmless, as the record evidence does not patently support a finding of non-disability.
The Commissioner’s attempt to suggest otherwise by selectively citing to only those
portions of the record showing mild symptoms or minimal limitations is simply cherrypicking. See Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004). A more
thorough and intellectually honest review of the entire record suggests instead that
plaintiff’s symptoms seemed to wax and wane over time. Regardless, the ALJ was
required to actually discuss this evidence in the context of weighing the treating source
and other opinions of record, and the court is neither required nor inclined to accept his
mere ipse dixit that he did so. Cf. Cox v. Apfel, 2000 WL 1472729 at *8 (D. Kan. Feb.
24, 2000) (citing Hamilton v. Secretary of Health & Human Services, 961 F.2d 1495,

8

For example, the Commissioner suggests that Dr. Metcalf’s and Ms. Clemens’s opinions are
unworthy of credence because they relied on plaintiff’s subjective reports of pain. Assuming arguendo the
truth of this characterization of the medical record, the fact that a medical source opinion relies on a
patient’s subjective complaints, in itself, does not provide sufficient reason to discredit that opinion. “A
medical opinion based on a physician's evaluation of the patient's medical history, observations of the
patient, and an evaluation of the credibility of the patient's subjective complaints of pain, is medical
evidence supporting a claim of disabling pain, even if objective test results do not fully substantiate the
claim.” Orender v. Barnhart, 2002 WL 1747501 at *6 (D. Kan. July 16, 2002) (citing Nieto v. Heckler,
750 F.2d 59, 61-62 (10th Cir. 1984)).

7

1498-99 (10th Cir.1992)) (ALJ’s bare suggestion that he considered the entire record
need be accepted only when the record provides no reason to question its validity).
Accordingly, the disability determination must be reversed.9
THEREFORE, IT IS ORDERED as follows:
1. That the conclusion of the Commissioner through the Administrative Law
Judge that plaintiff was not disabled is REVERSED;
2. That this case is REMANDED to the ALJ, who is directed to
a.

Reevaulate the treating source and other medical and non-medical
opinions of record according to the legal standards set forth in the
regulations;

b.

Recontact any treating, examining, or reviewing sources for further
clarification of their findings, seek the testimony of additional
medical or vocational experts, order additional consultative or other
examinations, or otherwise further develop the record as she
deems necessary;

c.

Reevaluate his determinations at the step four and five of the
sequential evaluation process in light of his reconsideration of the
evidence, including reconsideration of the other issues raised in this
appeal but not addressed in this order; and

d.

9

Reassess the disability determination; and

By this decision, I do not find or imply that plaintiff is or should be found to be disabled.

8

3. That plaintiff is AWARDED her costs to be taxed by the clerk of the court
under FED. R. CIV. P. 54(d)(1) and D.C.COLO.LCivR 54.1, and as permitted by 28
U.S.C. § 2412(a)(1).
Dated April 22, 2013, at Denver, Colorado.
BY THE COURT:

9