Perito v. Commissioner of Social Security, et al

Filing 25

ORDER that this case is REVERSED AND REMANDED to the Commissioner for further fact finding as directed in this Order pursuant to sentence four in 42 U.S.C.§ 405(g), by Judge Wiley Y. Daniel on 12/18/2013. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-02567-WYD
DAVID PERITO,
Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security1,
Defendant.

ORDER

THIS MATTER is before the Court on review of the Commissioner’s decision that
denied Plaintiff’s application for disability insurance benefits [“DIB”] and supplemental
security income [“SSI”]. For the reasons stated below, this case is reversed and
remanded to the Commissioner for further fact finding.
I.

BACKGROUND
Plaintiff, born on April 24, 1968, filed applications for DIB and SSI in January

2006 claiming to be disabled since December 1, 2006. (Transcript [“Tr.”] 14, 199, 205.)
Plaintiff alleged disability due to a neck and back injury, headaches, and pain due to a
car accident. (Id. 283.) In a “personal pain questionnaire” dated January 25, 2008,
Plaintiff asserted that he experienced numbness and sharp/severe pain in his neck and
back, which was exacerbated by cold weather and various forms of movement,

1

P. 25(d).

Carolyn W. Colvin is substituted for Michael J. Astrue as the Defendant pursuant to Fed. R. Civ.

including standing, walking and sitting. (Id. 300.) He stated he experienced constant
pain, seven days a week, and noted no change in his condition over the past 12
months. (Id.)
After his claim was denied initially (Tr. 92), Plaintiff requested a hearing before an
administrative law judge [“ALJ”]. (Id. 95.) The ALJ conducted a hearing in December
2009, taking testimony from both Plaintiff and an independent vocational expert. (Id.
41–59.) She then issued a decision on April 21, 2010, finding Plaintiff not disabled. (Id.
65–75.)
Plaintiff requested review of the ALJ’s decision, and the Appeals Council granted
that request. (Tr. 81.) The Appeals Council determined that the expert testimony from
the hearing did not support the ALJ’s conclusions regarding the vocational effects of
Plaintiff’s limitations. (Id. 81–82.). Thus, it remanded the case to the ALJ to obtain
supplemental vocational evidence and issue a new decision. (Id. 82.)
The ALJ held another hearing in February 2011, taking testimony from a
vocational expert. On March 2, 2011, the ALJ issued a new decision, again determining
that Plaintiff was not disabled at the time of her earlier decision. (Tr. 23.) However, the
ALJ was able to view additional medical evidence that had accrued since she had
issued her first decision. Based on this evidence, the ALJ determined that Plaintiff had
become disabled as of January 4, 2011. (Id.)
More specifically, the ALJ followed the five-step, sequential evaluation process
for resolving disability claims. At step one, she determined that Plaintiff had not
engaged in substantial gainful activity since the alleged onset date. (Tr. 15.) At step
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two, she determined that Plaintiff had severe impairments of “right thoracic outlet
syndrome, cervical sprain/strain with ‘mild’ brachial plexopathy, degenerative disc
disease of the lumbar spine, status post lumbar discectomy and disc replacement,
dysthymia and generalized anxiety.” (Id.) At step three, the ALJ concluded that
Plaintiff’s impairments did not meet or equal the criteria of any of the listed impairments.
(Id. 16). See 20 C.F.R. pt. 404, subpart P, app. 1 (2012).
The ALJ then assessed Plaintiff’s residual functional capacity [“RFC”]. She found
that prior to January 4, 2011, Plaintiff could have performed work-related activities with
the following restrictions: could lift and/or carry 20 pounds occasionally and 10 pounds
frequently; could stand/walk for no more than 45 minutes out of each hour during an
eight-hour workday, could rarely bend, stoop, or twist; could perform routine and
repetitive tasks (including jobs with a specific vocational preparation (SVP) code of 3 or
lower); and should have no more than occasional interaction with supervisors,
coworkers and the public. (Tr. 16.) The physical restrictions were as identified in Dr.
Hughes’ 2009 report. (Id. 16, 514.) With regard to Plaintiff’s functioning from January
4, 2011 forward, the ALJ gave significant weight to a new 2011 opinion of Dr. Hughes,
adopting physical restrictions identical to those in the doctor’s report. (Id. 20, 572.)
At the fourth and fifth steps, the ALJ relied on vocational expert testimony to
determine that after January 4, 2011, Plaintiff’s limitations would have prevented him
from performing both his past work and any other work available in significant numbers
in the national economy. (Tr. 21–22.) However, she found that prior to January 4,
2011, Plaintiff could have still performed jobs such as small product assembler, mail
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clerk, and collator operator. Thus, the ALJ concluded that Plaintiff was disabled under
the Social Security Act as of January 4, 2011, but had not been disabled prior to that
date. (Id. 23.)
Plaintiff requested review of this partially favorable decision (Tr. 7), and the
Appeals Council declined. (Id. 1.) This made the ALJ’s second decision the
agency’s final decision for purposes of judicial review. See 20 C.F.R. §§ 404.981,
416.1481 (2012). Plaintiff then timely commenced this action.
II.

ANALYSIS
A.

Standard of Review

A Court’s review of the determination that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standard and whether
the decision is supported by substantial evidence. Hamilton v. Sec. of Health and
Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). Substantial evidence is
evidence a reasonable mind would accept as adequate to support a conclusion. Brown
v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). “It requires more than a scintilla of
evidence but less than a preponderance of the evidence.” Gossett v. Bowen, 862 F.2d
802, 804 (10th Cir. 1988).
“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 substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487
(10th Cir. 1993).
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B.

The Merits of Plaintiff’s Arguments

Plaintiff argues that the ALJ applied the wrong legal standard in assessing his
RFC and that the RFC was not based on substantial evidence. Plaintiff also argues that
the ALJ applied the wrong legal standard in assigning weight to his treating provider Dr.
Hughes’ January 4, 2011 opinion, and that her findings were not based on substantial
evidence. Finally, Plaintiff argues that the ALJ erred in assessing his credibility. I agree
that the ALJ erred in connection with her decision, and that this case must be remanded
for further fact finding.
I first address Dr. Hughes’ 2011 report. He opined therein that Plaintiff retains
the RFC for uninterrupted sitting, standing, and walking up to an hour at a time, but he
needs a break from sitting for 5 minutes before resuming sitting and a break of 10
minutes prior to resuming standing and walking. (Tr. 572.) Plaintiff can frequently lift up
to 10 pounds, and occasionally carry up to 10 pounds. (Id. 574.) In an 8 hour day, he
can tolerate up to 4 hours of seated work and 2 hours of standing and walking, but can
only sit, stand or walk for one hour at a time without interruption. (Id. 572, 575.) Feeling
and fingering bilaterally were limited to occasional, as were stooping, crouching,
kneeling, and crawling. (Id. 572, 576.) Plaintiff should never climb ladders or scaffolds,
should not have any exposure to unprotected heights, and was restricted in regards to
mechanical parts or a motor vehicle. (Id.)
The ALJ stated she gave “significant weight” to this opinion and assessed an
RFC beginning on January 4, 2011, consistent therewith. (Tr. 20.) Based on this RFC,
she found that Plaintiff was disabled beginning on January 4, 2011. However, the ALJ
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did not adopt Dr. Hughes’ 2011 opinion as to Plaintiff’s RFC prior to that date, even
though Dr. Hughes stated that all the limitations noted therein were present since
December 1, 2006. (Id. 578.) Instead, she gave “significant weight” to Dr. Hughes’
earlier opinion of March 31, 2009, finding that the limitations opined to therein “remained
the claimant’s residual functional capacity until January 4, 2011.” (Id. 20.) In the 2009
report, Dr. Hughes estimated that Plaintiff should rarely bend, stoop and twist and would
be limited to “lifting and carrying at 20 pounds on an occasional basis and 10 pounds on
a frequent basis” and “standing and walking to 45 minutes out of each hour during an 8hour workday”. (Id. 514.) Based on that assessment, the ALJ found that Plaintiff could
perform a range of light work, and identified jobs at step five that Plaintiff could do. (Id.
16-22.) Accordingly, she found that Plaintiff was not disabled prior to January 4, 2011.
(Id. 23.)
The ALJ did not discuss why she chose to reject Dr. Hughes’ 2011 opinion in
favor of his 2009 opinion as to Plaintiff’s RFC before 2011. She merely noted that
“Dr. Hughes based his new opinion on 2 evaluations of the claimant and a thorough
review of the objective medical evidence in the record.” (Tr. 20-21.) The ALJ also did
not discuss the fact that Dr. Hughes opined in his 2011 report that the limitations he
found existed as of December 2006, or that his 2011 report conflicts with his 2009
report in certain particulars. It is not clear whether the ALJ simply missed that portion of
the 2011 opinion or whether she rejected it. Without an explanation of why the ALJ
chose to ignore or reject the more significant findings in the 2011 report in favor of the
2009 report as to Plaintiff’s RFC before January 4, 2011, I cannot conclude that
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substantial evidence in the record exists to support the ALJ’s determination. See
Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004) (the ALJ’s analysis must be
“‘sufficiently specific’” so as to allow for meaningful review) (quotation omitted); see also
Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.2007) (“An ALJ is not entitled to pick and
choose through an uncontradicted medical opinion, taking only the parts that are
favorable to a finding of nondisability.”).
The ALJ’s failure to discuss Dr. Hughes’s opinion as it related back to 2006 was
not harmless error. If Dr. Hughes’ 2011 opinion had been given weight as to Plaintiff’s
RFC before the date of the report, the ALJ may have found Plaintiff to be disabled.
Indeed, it appears that the jobs listed by the VE and relied upon the ALJ for her decision
would have been eliminated due to the restriction to occasional fingering and handling.
Plaintiff points out that all of the jobs offered in response to the hypothetical adopted as
to the RFC required at least frequent fingering.
The Commissioner argues, however, that the ALJ had a good reason for not
accepting the more restrictive findings in Dr. Hughes’ opinion 2011 report—that
Dr. Hughes had issued a lengthy, detailed, well-supported opinion closer to the alleged
onset date, in 2009. She also argues that the ALJ reasonably determined that
Dr. Hughes’ 2011 opinion must primarily be based on the new physical examination,
given the fact that Plaintiff’s impairments were degenerative, and that the ALJ’s findings
were consistent with every other medical opinion in the record. However, the ALJ’s
decision must be evaluated “based solely on the reasons given stated in the decision”,
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004), and not on speculation.
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The Commissioner’s arguments are post-hoc rationales that are improper because they
usurp the agency’s function of weighing and balancing the evidence in the first instance.
Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008).2
Accordingly, I find that a remand is required so that the ALJ can properly
consider Dr. Hughes’ 2011 opinion as it pertains to Plaintiff’s RFC before the date of the
record. Moreover, there is another reason for reversal of the ALJ’s decision in regard to
Dr. Hughes’ opinions—the ALJ’s failure to adequately develop the record as to the
conflict between his two reports. The law is settled that an ALJ must “‘seek additional
evidence or clarification’” from a medical source when the source’s report “‘contains a
conflict or ambiguity that must be resolved.’” Robinson, 366 F.3d at 1084 (quoting 20
C.F.R. §§ 404.1512(e)(1) and 416(e)(1)).
Thus, on remand, the ALJ should contact Dr. Hughes and ask for an explanation
of the conflict between his 2009 and 2011 reports. The conflict is particularly important
in regard to Plaintiff’s fingering and feeling impairments because it impacts the jobs the
ALJ found Plaintiff could do prior to January 4, 2011. Not only did Dr. Hughes assess
limitations in fingering and feeling in his 2011 report, Plaintiff notes that the record is
replete with evidence that he experienced bilateral numbness and tingling in his hands
and arms. (Tr. 42-43, 297, 300, 344, 350, 356, 404, 512, 526, 551, 556, 572.) These
impairments must properly be considered by the ALJ. See 20 C.F.R. §§ 404.1545(e)

2

The Commissioner’s additional argument that Dr. Hughes’ finding that the limitations found in
his 2011 report date back to 2006 should not be credited because it was made in a fill-in-the-blank form is
baseless. That form was part of a comprehensive evaluation of Plaintiff’s impairments that were the
subject of a written report. See Anderson v. Astrue, 319 F. App’x 712, 721 (10th Cir. 2009).

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and 416.945(e) (an ALJ must consider the limiting effects of all a claimant’s
impairments, even those that are not severe”); see also SSR 96–8P, 1996 WL 374184,
at *5.
I also find that the ALJ erred in connection with her assessment of Plaintiff’s
credibility in connection with his complaints of pain. The record demonstrates more
than adequate evidence of an impairment that should reasonably be expected to
produce some pain. See Luna v. Bowen, 834 F.2d 161, 163-64 (1987). Indeed, the
ALJ acknowledged this in finding that Plaintiff’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms.” (Tr. 17.) However, the
ALJ went on to find that Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible prior to January 4, 2011, to the
extent they are inconsistent with the residual functional capacity assessment until that
date.” (Id.) I find that the ALJ’s pain analysis was deficient.
If there is a loose nexus between the proven impairment and the alleged pain, as
there certainly seems to be in this case, the ALJ must then consider all of the relevant
evidence in determining whether Plaintiff is disabled by pain. Luna, 834 F.2d at 163.
This “includes the medical data. . ., any other objective indications of the degree of pain,
and subjective accounts of the severity of the claimant’s pain.” Id. Other factors that
should be considered include “a claimant’s persistent attempts to find relief for his pain
and his willingness to try any treatment prescribed”. . ., regular contact with a doctor, . . .
the possibility that psychological disorders combine with physical problems . . ., the

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claimant’s daily activities, and the dosage, effectiveness, and side effects of
medication.” Id. at 165-66; see also Thompson, 987 F.2d at 1489.
In this case, the record is replete with objective findings that substantiate
Plaintiff’s complaints of pain. Further, the record demonstrates that Plaintiff was
prescribed and sought several modalities of treatment, including lumbar injections,
acupuncture, physical therapy, chiropractic care, and surgery to try and get relief from
his pain, and that he used narcotic medications. While the ALJ discussed some of
these things in passing, she erred in not explaining how these factors impacted her
decision regarding Plaintiff’s pain or whether she believed the pain impacted his ability
to work. See Carpenter, 537 F.3d at 1268 (finding that the ALJ’s pain analysis was
“improper boilerplate because he merely recited the factors he was supposed to
address and did not link his conclusions to the evidence or explain how
Mrs. Carpenter's repeated attempts to find relief from pain, and all the drugs she has
been prescribed for pain, resulted in a conclusion that she is unlimited in any regard by
pain or the side effects from her pain medication”).
Accordingly, I find that this case must also be remanded for a proper pain and
credibility assessment. In making this assessment, the ALJ should keep in mind that
minimal daily activities may not be relied on as substantial evidence that a claimant
does not suffer disabling pain.” Thompson, 987 F.2d at 1490. Further, the ALJ must be
careful not to selectively apply the evidence when considering Plaintiff’s activities and
the record overall. See Martinez v. Astrue, 422 F. App’x 719, 728 (10th Cir. 2011);
Arrington v. Apfel, No. 98-7099, 1999 WL 446013, at *8-9 (10th Cir. July 1, 1999).
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III.

CONCLUSION
Based upon the foregoing, I find that the ALJ did not properly analyze the

medical evidence submitted by Dr. Hughes, and failed to develop the record as to the
conflict between his two reports. I also find that the ALJ erred in connection with
assessing Plaintiff’s pain. Accordingly, it is
ORDERED that this case is REVERSED AND REMANDED to the Commissioner
for further fact finding as directed in this Order pursuant to sentence four in 42 U.S.C.
§ 405(g).
Dated: December 18, 2013
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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