Houseman v. Astrue, et al

Filing 24

ORDER re: 9 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Michael J. Astrue, Reversing Administrative Law Judge's Decision and Remanding to the Commissioner for rehearing, by Judge William J. Martinez on 8/30/2013. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-2440-WJM
D'ANNA L. HOUSEMAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,

Defendant.

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

This is a social security benefits appeal brought under 42 U.S.C. § 405(g).
Plaintiff D'Anna L. Houseman (“Plaintiff”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”) denying her application for disability
and social security benefits. 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 denial of benefits is reversed and the
case is remanded to the Commissioner for rehearing.

I. BACKGROUND
A.

Procedural Background
Plaintiff filed her application for disability insurance on August 15, 2009 (Admin.

Record ("R.") 216- 218) Following the initial administrative denial on May 4, 2010 (R.
116-121), Plaintiff then requested a hearing before the ALJ on April 13, 2010. (R.
124-125). Two hearings were held in Colorado Springs on February 8, 2011 and June
1, 2011 before ALJ Kathryn D. Burgchardt. The ALJ issued an unfavorable decision on
July 27, 2011, finding Plaintiff “not disabled.” (R. 33-41, 42-74). The Appeals Council
declined to review the ALJ’s decision on July 18, 2012 (R. 1-5), making the ALJ’s
decision the Commissioner’s final decision for purposes of judicial review. This appeal
followed.
B.

Factual Background
Heavily contested before the Court are two medical conditions that the ALJ found

as non-severe—specifically: lichen planus, and chiari malformation type I. For the
purposes of background, examination of each condition is relevant to disposition of the
appeal.
With respect to lichen planus, Plaintiff was evaluated by physicians at the
University of Colorado dermatology clinic for erosive vulvovaginal and oral lichen planus
in March 2010.1 (R. 607.) The condition had been present for 17-18 years. (Id.) The

1

Plaintiff summarized lichen planus as a disorder of the skin and mucous membranes
resulting in inflammation, itching, and distinctive skin lesions. (ECF No. 13 at 12.) Erosive
lichen planus (ELP) affecting mucosal surface (i.e. the condition Plaintiff suffers from) is a
chronic autoimmune disease of unknown etiology. Treatment is difficult and aimed at palliation
rather than cure. (Id.)

2

physicians indicated that she had previously been treated with topical steroids without a
significant decrease in symptoms, that she could not tolerate those medications for a
long period of time due to atrophy, but that she had used “a topical oral steroid” on an
as-needed basis that appeared to reduce but not eliminate her inflammation. (R. 607).
The physicians noted lesions on Plaintiff’s genitals and in her mouth, and prescribed an
oral antifungal drug (Griseofulvin) as well as a steroid (dexamethasone elixir). (R. 608).
Two months later, Plaintiff underwent biopsies of her reproductive tract, which
confirmed lichnoid vaginitis. (R. 697).
Plaintiff underwent additional reproductive tract biopsies in February 2011. (R.
806.) Svetlana Tsirkin MD reported an “extremely scarred perineum” and that Plaintiff’s
vaginal tissue would bleed when touched, and noted that her condition was “worsening.”
(Id.) The biopsy had findings consistent with an early phase of lichen sclerosis
(scarring). (R. 809).
With respect to her chiari malformation type I condition, Plaintiff has a history of
migraine headaches. (ECF No. 13 at 19.) On February 26, 2010, Plaintiff was
examined by the consultative examiner Timothy R. Hudson MD. In his report, Dr.
Hudson observed that Plaintiff had “[b]alance difficulties secondary to her chiari
malformation.” (R. 533). Dr. Hudson's observed that Plaintiff exhibited “concentration
difficulties” and exhibited confusion during the relatively short examination, and reported
that there be follow up in regards to her migraines with [a] trained neurologist.” (R. 532)
On July 27, 2011, the ALJ issued a written decision in accordance with the
Commissioner's five-step sequential evaluation process. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since October 30, 2006. (R.
3

22.) The ALJ determined at step two that Plaintiff’s “fibromyalgia; migraines;
degenerative joint disease bilateral knees status post knee replacements; carpal tunnel
syndrome status post release” were severe impairments, but that her chiari and lichen
planus impairments were not. (R. 22-23). At step three, the ALJ concluded that
Plaintiff’s impairments did not meet the criteria of any of the per se disabling
impairments listed at 20 C.F.R. pt. 404, subpart P, app. 1. (R. 23).
The ALJ then found that Plaintiff could perform sedentary work with the following
limitations—i.e, that Plaintiff could lift or carry less than ten pounds frequently and ten
pounds occasionally; could stand and/or walk, with normal breaks, for a total of two
hours in an eight hour workday and could require the use of a cane; could sit with
normal breaks, for a total of six house in an eight hour workday; required the option to
sit or stand every half-hour to an hour for five minutes at a time; could perform pushing
and pulling motions with her upper extremities with the aforementioned weight
restriction, but should avoid pushing or pulling motion with her legs, moving machinery,
and extreme heat and cold; and could occasionally climb, stoop, crouch, kneel, and
crawl, and should not climb ladders, ropes, or scaffolds. (R. 23-24).
Based on this residual functional capacity finding, the ALJ determined at step
four that Plaintiff was not disabled because she could return to her past relevant work
as a receptionist. (R. 26-27). In addition, based on vocational expert testimony, the
ALJ made an alternative step five finding that Plaintiff was not disabled because she
could perform other work existing in significant numbers in the national economy. (R.
27-28). The ALJ found that Plaintiff had not been under a disability—and the claim for
benefits was, therefore, denied.
4

II. STANDARD OF REVIEW
The Court reviews adverse decisions of the Commissioner to determine (1)
whether substantial evidence in the record as a whole supports the factual findings, and
(2) whether the correct legal standards were applied. Wall v. Astrue, 561 F.3d 1048,
1052 (10th Cir. 2009). Substantial evidence is evidence that 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).
Although a district court will “not reweigh the evidence or retry the case,” a district
court “meticulously examines the record as a whole, including anything that may
undercut or detract from the ALJ's findings in order to determine if the substantiality test
has been met.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007); see also 42
U.S.C. § 405(g). 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). Moreover, the 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).
As the Tenth Circuit observed in Baca v. Dep't of Health & Human Servs., 5 F.3d
476, 480 (10th Cir. 1993), the ALJ also has a basic duty of inquiry to “fully and fairly
develop the record as to material issues.” Id. This duty exists even when the claimant,
as here, is represented by counsel. Id. at 480. See also Haga v. Astrue, 482 F.3d 1205,
5

1208 (10th Cir. 2007) (stating that “[a]n ALJ is not entitled to pick and choose through
an uncontradicted medical opinion, taking parts favorable to nondisability”).
III. ANALYSIS
The Appeals Council denied Plaintiff’s request for review on the ALJ’s decision.
Plaintiff then filed this action seeking review of that decision. On appeal, Plaintiff raises
several interrelated issues: (1) whether the ALJ failed to evaluate at step two of the
sequential evaluation process, Plaintiff’s lichen planus, obesity2 and Chiari malformation
type I to be severe impairments, (2) whether the failure to evaluate step two, then
tainted subsequent steps in the sequential evaluation process including, inter alia, (a)
the RFC and (b) questions to the vocational expert, and (3) whether the ALJ's RFC
finding does not include all of the limitations contained in the medical opinions that were
adopted by the ALJ, and relatedly, whether the ALJ engaged in ‘picking and choosing’
among medical reports to support a finding of disability.
Because the Court finds that the ALJ’s findings at steps two through four were
not supported by substantial evidence and did not include all of the limitations contained
in the medical opinions, the Court finds that this error requires remand. Since these
same deficiencies tainted the ALJ’s hypothetical questions to the vocational expert, the
Court also finds that this issue warrants remand. See Miller v. Chater, 99 F.3d 972, 978
(10th Cir. 1996) (recognizing that remand is appropriate where further fact finding is
needed).

2

The Court notes that it makes no adjudication on Plaintiff’s obesity condition, but
encourages review of this condition singly and in combination with others upon remand.

6

A.

Whether the ALJ Failed to Evaluate at Steps Two to Four of the Sequential
Evaluation Process
Plaintiff contends that the ALJ failed to evaluate the substantial evidence in the

record at steps two through five of the sequential evaluation process. Specifically, the
ALJ failed to properly evaluate and make findings with respect to Plaintiff's non-severe
impairments because she did not rely upon substantial evidence in the
record—including evidence of her treating physicians.
1.

Step Two Analysis

Pursuant to 20 C.F.R. § 404.1520, step two of the sequential evaluation process
requires that the ALJ assess a claimant’s medically determinable severe impairments.
An “impairment” is defined as an anatomical, physiological, or psychological abnormality
which can be shown by medically acceptable clinical and laboratory diagnostic
techniques. See 20 C.F.R. §§ 404.1508 and 416.908.
All a plaintiff needs to provide is a “de minimis” showing of medical severity. See
Williams v. Bowen, 844 F. 2d 749 (10th Cir. 1988). A “severe” impairment is one that
significantly limits the claimant’s physical or mental ability to perform basic work
activities. See 20 C.F.R. §§ 404.1521; 404.1529; 416.921 and 416.929. See Social
Security Rulings 85-28; 96-3p and 96-4p.
The ALJ found that Plaintiff had the following severe impairments: fibromyalgia,
migraines, degenerative joint disease bilateral knees status post keen replacements;
carpal tunnel syndrome status post release. (R. 22). The ALJ also determined that

7

Plaintiff’s lichen planus 3 and chiari malformation type I were non-severe impairments.
(R.22).
Much of Plaintiff’s argument in this Court focused on the ALJ’s finding that
Plaintiff’s lichen planus was not considered a severe impairment at step two of the
sequential evaluation process. (ECF No. 13 at 17.) Plaintiff contends that this finding is
not supported by substantial evidence and constitutes reversible error because it is
overwhelmed by evidence of treating physicians who proffer evidence to the contrary.
(Id.) The Court agrees.
The evidence of the treating physicians is addressed in detail in Plaintiff’s
briefing. (ECF No. 13 at 12-17.) The evidence is incorporated herein. To illustrate, the
Court summarizes the following medical reports to demonstrate the evidence of
Plaintiff’s condition (and severity of same):
•

•

•

Svetlana Tsirkin, MD — Report I dated February 17,
2011 (stating “Extremely scarred perineum, friable
vaginal tissue. ...”)
Svetlana Tsirkin, MD — Report II dated February 17,
2011(stating “pelvic exam under anesthesia. ... about
20 years, worsening ... Pain, itching, burning
...constant burning, especially noticing some burning
when voiding. ... treatment for years.)
Ronald S. Gibbs, MD – Report date June 29, 2010
(stating “... lichenoid vulvitis and vaginitis with a
history of a Candida albicans infection, and previous
episode of abnormal bleeding... an examination under
anesthesia, vaginal and vulvar biopsies, and an

3

Plaintiff has been diagnosed with chronic erosive lichen planus for over two decades.
(R. 56). The condition affects skin on her throat, gums and tongue making it difficult to talk (R.
57). In Plaintiff’s case, the lichen planus is so severe that it has created scar tissue in her
genitals requiring numerous surgeries. (R. 77-78). This condition limits Plaintiff with regard to
sitting, and causes frequent and lengthy bathroom breaks due to bleeding and clotting. (R.
57-58).

8

endometrial biopsy. ... pap smear that showed
ASCUS ... biopsy showed lichenoid vaginitis on one
biopsy, chronic inflammation on the other, and the
endometrial biopsy showed simply proliferative
endometrium. ...”)
(See R. 806-807; 832-835; 697-698.)
Notwithstanding the fact that the ALJ made a limited effort to analyze the medical
reports above, those same reports tend to show Plaintiff’s condition is one towards the
severe end of the spectrum;4 a condition that Dr. Tsirkin stated was worsening as of
February 17, 2011. (R. 832-835.) This undercuts the ALJ’s finding because it brings
into question whether the substantiality test has been satisfied when there is plentiful
evidence contradicting the ALJ’s decision. Indeed, the Court holds that the
substantiality test has not been met in this case, which further warrants a basis for
remand. Flaherty 515 F.3d at 1070 (stating that a court “meticulously examines the
record as a whole, including anything that may detract from the ALJ's findings to
determine if the substantiality test has been met.”)
Alternatively, and at best, the evidence in the record creates a potential
ambiguity because of the fluctuating symptoms exhibited by Plaintiff over time (a twenty
year period), but if anything this should have prompted the ALJ to seek further evidence
from additional physicians before finalizing her decision on July 27, 2011. Such
ambiguity should have compelled the ALJ to seek such evidence to “fully and fairly
develop the record.” See Baca, 5 F.3d 476, 480 (10th Cir. 1993) (stating that the ALJ

4

The Court has deliberately used this phraseology because upon remand, and
reconsideration of all the evidence (and possibly new evidence), the degree of severity will
ultimately be determined by the ALJ upon remand.

9

has a basic duty of inquiry to “fully and fairly develop the record as to material issues.”)
Accordingly, the Court holds that the ALJ’s finding that lichen planus was nonsevere is not supported by substantial evidence primarily because the ALJ has not
evaluated all of the medical opinions relevant to Plaintiff’s condition.5 Grogan, 399 F.3d
at 1261-62 (stating that “evidence is not substantial if it is overwhelmed by other
evidence in the record or constitutes mere conclusion.”) And because the finding does
not meet the substantiality test, the Court must remand for re-consideration.6

5

The corollary to this holding is that the ALJ’s finding is conclusory due to the limited
evaluation of Plaintiff’s condition, notwithstanding that there is an abundance of evidence in the
record by treating physicians. (See R. 806-807; 832-835; 697-698.) In substance, there is only
one paragraph dedicated to lichen planus by the ALJ. (R. 4.) To comply with her duty, the ALJ
will need to review all of the medical reports in greater detail upon remand (and assign
necessary weight to each). See Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004)
(“[A]n ALJ must give good reasons . . . for the weight assigned to a treating physician”opinion, .
. . to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reason for that weight.”) Here, the ALJ’s decision does not
conform with Langley because weight has not been assigned to all of the medical opinions. The
Court is left to second guess what weight was given to each opinion, which only reinforces the
need for remand. And to this point, and the materiality of this issue, the Court notes that the
ALJ well may need to obtain further medical evidence on Plaintiff’s condition so that the record
can be properly developed before a final ALJ decision is made. See Baca, 5 F.3d 476, 480
(10th Cir. 1993) (stating that the ALJ has a basic duty of inquiry to "fully and fairly develop the
record as to material issues.")
6

The Commissioner counters that because Plaintiff had endured lichen planus for two
decades, this justified the ALJ’s finding that the condition was not severe as defined under the
statute. (ECF No. 21 at 13.) But this point misses the mark. Dr. Tsirkin stated, among other
things, that Plaintiff’s condition was “worsening” as of February 17, 2011. (R. 832-835.) This
makes any past medical history of endurance less relevant, particularly when Plaintiff's
condition is viewed in the context of her other impairments. The record at 56-58 is also
illustrative of the specific and acute limitations the condition imposes on Plaintiff, which is only
reinforced by what is said in medical reports—noting that she had both oral and vaginal lesions.
(See R. 806-807; 832-835; 697-698.) The Court thus rejects what the Commissioner submits
at ECF No. 21 at 13.

10

2.

Step Three Analysis

Plaintiff contends that because ALJ erred at step two of the sequential evaluation
process, the ALJ similarly erred at step three. Because of this, Plaintiff contends that
the ALJ “never addressed any of the skin impairments found in Section 8.00 of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (ECF No. 13 at 22.) While
the Court finds in favor of Plaintiff on this issue, it will not go as far as substituting the
ALJ’s decision (at step three) without first remanding the decision for further
consideration. This is a better approach for two reasons. First, it allows the record to
be further developed as to the degree and severity of Plaintiff’s lichen planus condition
(singly and in combination with other conditions). Second, it affords the ALJ the
opportunity to draw a legal conclusion on whether the Section 8.00 listing impairments
are satisfied in view of reconsideration of the entire record. Remand is, therefore,
warranted for these reasons as well. See, Salazar v. Barnhart, 486 F.3d 615, 621 (10th
Cir. 2006).
3.

The RFC Analysis

Next, Plaintiff challenges the ALJ’s RFC determination on the argument that is
not supported by substantial evidence and fails to include limitations had the ALJ made
correct findings at step two of the sequential evaluation process. (ECF No. 13 at 27.)
The RFC assessment is made by the ALJ “based on all the relevant evidence in
[the claimant's] case record.” 20 C.F.R. § 404.1545(a)(1). The RFC is an assessment
of the most a claimant can do despite his or her limitations. Id. Examples of the types
of evidence required to be considered in making an RFC assessment are the claimant's
medical history, medical signs and laboratory findings, and medical source statements.
11

Soc. Sec. Ruling (SSR) 96–8p (July 2, 1996). An ALJ must make specific RFC findings
based on all of the relevant evidence in the case record. See Winfrey v. Chater, 92
F.3d 1017, 1023 (10th Cir. 1996); SSR 96–8p, 1996 WL 374184, at *5 (July 2, 1996):
The RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion,
citing specific medical facts . . . and nonmedical evidence . .
. the adjudicator must discuss the individual's ability to
perform sustained work activities in an ordinary work setting
on a regular and continuing basis . . . and describe the
maximum amount of each work-related activity the individual
can perform based on the evidence available in the case
record. The adjudicator must also explain how any material
inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.
SSR 96–8p.
The ALJ’s findings regarding the RFC must be supported by substantial
evidence. See Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Plaintiff challenges the ALJ’s RFC determination on four fronts. First, Plaintiff
contends that the ALJ’s error at step two creates a flawed analysis by the ALJ at step
four of the sequential evaluation process because the ALJ has not adequately
addressed the limitations and restrictions of Plaintiff’s lichen planus condition since it
has been classified as non-severe.
For reasons stated in steps two and three, the Court agrees with Plaintiff’s
position. In short, because the ALJ failed to (1) satisfy the substantiality test, and (2)
fully and fairly develop the record with respect to Plaintiff’s lichen planus condition,
those same errors infect the RFC determination. The limitations from that condition
have not been properly considered and the RFC determination is not predicated on
substantial evidence This constitutes reversible error; ever more so when such
12

limitations could be material to determining whether Plaintiff can perform past work.7
(ECF No. 13 at 14.)
The second argument is put in the alternative to the first, and intersects with the
arguments made at steps two and three. Specifically, the argument goes that even if
the lichen planus condition is considered ‘non-severe', Plaintiff contends that the ALJ
never examined the condition in combination with the impairments that were found by
the ALJ to be severe. (emphasis added.) (ECF No. 13 at 14-15, 29-30.) Without
undertaking this evaluation, Plaintiff contends that the ALJ could not have addressed all
of the limitations for the purposes of an RFC determination—thus the RFC
determination is based on substantial evidence. The Court agrees. See SSR 96–8p.
See also, Salazar, 486 F.3d at 621. There, the Court held that an “ALJ is required to
consider all of the claimant’s medically determinable impairments, singly and in
combination; the statute and regulations require nothing less.” (emphasis added.)
Failure to do so, the Court said, “is reversible error.” Id.
Here, there is no evaluation of how Plaintiff’s licen planus condition—when
combined with other severe conditions found in the record—impact and, therefore, limit
Plaintiff's activities. Among other things, there is no discussion by the ALJ of how
Plaintiff’s speech problems—resulting from oral lichen planus—would impact her ability

7

Any notion that Plaintiff did not show that she was limited by lichen planus is absurd.
Not only did Plaintiff endure "irregular uterine bleeding" (R. 23) but Plaintiff also indicated that
she would sometimes spit up blood. (R. 56.) Even assuming Plaintiff did not indicate that her
condition as limiting, the symptoms present ample evidence for reasonable inference to be
drawn that the condition was limiting. See Pinnt v. Chater, 988 F. Supp. 1354, 1360 (D. Colo.
1997) (stating that "the ALJ is entitled to draw reasonable inferences.") At best, it creates an
ambiguity in the record that would compel the ALJ to seek further evidence to “fully and fairly
develop the record.” See Baca, 5 F.3d 476, 480 (10th Cir. 1993)

13

to make phone calls and schedule appointments. (R. 56-58.) There was recent
evidence that Plaintiff had lesions in her mouth and spitting up blood. This has been
addressed earlier. And this alone should have been enough to warrant evaluation of
how Plaintiff’s condition, particularly in recent years, limit her ability to work as a
secretary. Because of evaluation of these limitations is lacking in the ALJ decision, this
requires separately reversal and remand of the ALJ decision. See also Langley, 373
F.3d at 1123-24.
Plaintiff’s third argument with respect to the RFC targets inconsistencies in the
ALJ’s reliance on the medical evidence. 8 Plaintiff contends that the ALJ’s decision did
not accurately reflect the opinions of Dr. Hudson with respect to Plaintiff’s chiari
condition that impacts the RFC. The Commissioner did not address this argument in
briefing and effectively forfeits the point. 9 See Phillips v. Calhoun, 956 F.2d 949,
953-54 (10th Cir.1992). But for the record, and to elucidate Plaintiff’s point, the ALJ
stated that she assigned “great weight” to Dr. Hudson’s opinion generally and stated
that she adopted his views with respect to Plaintiff’s impairments. (R. 26.)
Notwithstanding this, the ALJ then failed to consider Dr. Hudson’s views with
respect to Plaintiff’s mental impairments—i.e. (1) that Plaintiff had “[b]alance difficulties
secondary to her chiari malformation” (R. 533); and (2) that Plaintiff exhibited
“concentration difficulties” and exhibited confusion during the relatively short

9

The Commissioner’s brief solely concentrates on the evidence of Dr. Randall J. Bjork.
(ECF no. 21 at 14.) And while such evidence is favorable to the Commissioner’s position, it fails
to meet head on the evidence of Dr. Hudson who had been afforded great weight by the ALJ.
(R. 26.)

14

examination, and reported that there be follow up in regards to her migraines with [a]
trained neurologist.” (R. 532-33.) Despite affording Dr. Hudson’s opinion “great
weight”, these limitations did not make their way into the ALJ decision, nor the RFC
analysis. Given the “great weight” afforded to Dr. Hudson, these omissions provide an
independent basis for remand in so far that the RFC determination has not been based
on substantial evidence because it lacks limitations indicated by the consultive
examiner that are clearly in the record and have not been addressed by the ALJ.
Material inconsistencies such as this require explanation, and warrant remand. SSR 968p; see Richardson v. Perales, 402 U.S. 389, 390 (1971).
Finally, the Court also finds that the ALJ’s analysis, with respect to Dr. Hudson,
illustrates the ‘picking and choosing' of evidence that Tenth Circuit authorities seek to
guard against.10 This only reinforces the need for remand. The Court finds as much.
See Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir.2004) (stating that “[i]t is
improper for the ALJ to pick and choose among medical reports, using portions of
evidence favorable to his position while ignoring other evidence.”)
In sum, and for the reasons stated above, the Court finds that remand is
warranted because there is a lack of substantial evidence to support the RFC finding.
See generally Flaherty, 515 F.3d at 1070.

10

The Court also notes that the ALJ failed to resolve the apparent inconsistency with the
opinion she relied on, i.e., Dr. Bjork's opinion in 2007 that it was of “no consequence.” (R. 23).
This also demonstrates a deficiency in the ALJ decision because the adjudicator must explain
how any material “inconsistencies or ambiguities” in the evidence in the record were considered
and resolved for the purposes of the RFC determination. See SSR 96–8p.

15

B.

The ALJ's Hypothetical Questions to the Vocational Expert Did Not
Precisely Reflect Plaintiff's Limitations
Plaintiff contends that the ALJ erred with respect to the hypothetical questions

proposed to the vocational expert because they did not reasonably reflect Plaintiff’s
limitations. (ECF No. 13 at 38.) Such error, Plaintiff says, derives from the RFC
determination. As noted in Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008),
Plaintiff argues that Carpenter (like the present case) illustrates the problems
associated with an incomplete RFC assessment—i.e. the limitations omitted from the
RFC finding are also omitted from the hypothetical questions proposed to the vocational
expert at step five of the analysis resulting in a defective determination as to Plaintiff’s
abilities to do work in the existing economy. (Id.)
Plaintiff argues, therefore, that the ALJ erred on the basis that the vocational
expert’s opinion lacks precision as to all of Plaintiff’s medical limitations. See Hargis v.
Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (“Testimony elicited by hypothetical
questions that do not relate with precision to all of a claimant’s impairments cannot
constitute substantial evidence to support the [Commissioner’s] decision.”) The Court
agrees.
To support this finding, the Court incorporates all of the limitations that have been
omitted in the RFC analysis above. By way of example, however—and to show how
one of these omissions constitutes cause for remand—the Court reiterates that the ALJ
failed to address how severe and non-severe impairments (in combination) limited
Plaintiff for the purposes of the RFC determination. It follows that because the ALJ did
not provide the vocational expert with limitations that could have flowed from combined
16

impairment analysis (since the ALJ did not evaluate same), the correct questions were
not proposed to the vocational expert. The questions were thus predicated on a
defective RFC determination. This would have misled, or, at best, confused the
vocational expert into believing that Plaintiff could undertake certain tasks that she could
not do had the impairments been viewed in combination.
What compounds the issue further is the fact that there were two hearings and
two vocational expert opinions. (R. 33-41, 42-74.) Reconsideration by the ALJ,
therefore, has the added benefit of allowing for the correct questions be put to one final
vocational expert, predicated on a proper RFC determination.
Accordingly, the Court concludes that because the ALJ's deficiencies are
material (i.e. not precise), it is sufficient to taint the substantiality of the vocational
expert's testimony. See Hargis, 945 F.2d at 1492. Since the evidence is tainted by
these omissions, substantial evidence is lacking in this case for the ALJ to have made
the correct determination as to Plaintiff's claim to disability benefits. The Court finds that
remand is required to resolve these deficiencies. See Fischer–Ross v. Barnhart, 431
F.3d 729, 733 (10th Cir. 2005).
C.

Harmless Error
Finally, it is worth addressing the fact that the Commissioner concedes, in part,

that the ALJ has committed error. (ECF No. 21 at 5, 12-13.) The Commissioner
argues, however, that these omissions were not prejudicial because all the deficiencies
at step two were addressed in later stages of the analysis. (Id. at 5, 12-13.)
The Court disagrees—particularly in light of the deficiencies that have been addressed

17

above.11
Courts apply the harmless error doctrine cautiously in the administrative review
setting. Fischer-Ross., 431 F.3d at 733. An error is only harmless when the Court can
“confidently say that no reasonable administrative fact-finder, following the correct
analysis, could have resolved the factual matter in any other way.’ Id. at 733-34. Here,
the Court has no confidence that the factual deficiencies in this case could be resolved
another way because the deficiencies are material omissions from the steps two to four
of the sequential evaluation process. As such, the ALJ’s errors are not harmless
because the jobs identified by the vocational expert are not predicated on the correct
limitations that must derive from substantial evidence. Indeed, the Court finds this type
of error is more toward the significant end of the spectrum which does nothing to save
the decision from remand.
D.

Remaining Arguments
Plaintiff raises additional issues related to the sufficiency of the underlying

proceedings. Because the Court finds that the ALJ’s RFC was not supported by
substantial evidence and that this error alone requires remand, it need not address the
other arguments raised by Plaintiff—particularly in circumstances where the
Commissioner’s harmless error argument has been rejected. 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).

11

Plaintiff's reply brief also does much to negate the Commissioner's harmless error
argument. Those points, in the brief, are incorporated herein. (ECF No. 22 at 5-12.)

18

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.12 It is entirely possible that, given the passage of time, the
ALJ could arrive at the same conclusion and find that Plaintiff is not
disabled—particularly if all of the medical opinions are afforded proper evaluation, and
accorded weight. The Court notes that given the nature of Plaintiff’s lichen planus
condition, the Court has signposted that further medical (and recent) medical evidence
may be required to make the proper determination as to Plaintiff’s disability. The Court
ultimately, however, leaves that decision to the discretion of the ALJ to decide. See
Henderson v. Astrue, 383 Fed. Appx. 700, 702 (10th Cir. 2010).
IV. 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 30th day of August, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

12

The Court does not intend by this opinion to suggest that a favorable result for Plaintiff
should be reached on remand; rather, the Court encourages the parties, as well as the ALJ, to
consider the evidence and the issues anew.

19