Beaber v. Astrue et al

Filing 15

ORDER Reversing Disability Decision and Remand to Commissioner. By Judge Robert E. Blackburn on 3/3/2014. (klyon, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn

Civil Action No. 12-cv-02719-REB
STACIE BEABER,
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 October 12, 2012,
seeking review of the Commissioner’s decision denying plaintiff’s claim for disability
insurance benefits under Title II 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 case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she is disabled as a result of fibromyalgia, myofascial pain
syndrome, thoracic outlet syndrome, chronic pain syndrome, osteoarthritis, headaches,
and chronic fatigue. After her application for disability insurance benefits was denied,
plaintiff requested a hearing before an administrative law judge. This hearing was held
on April 27, 2011. At the time of the hearing, plaintiff was 40 years old. She has high
school education and past work experience as a software engineer. She has not
engaged in substantial gainful activity since February 19, 2009, her alleged date of
onset.
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance 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. Other impairments were found non-severe. The ALJ found that plaintiff
had the residual functional capacity to perform sedentary work with significant postural
and environmental 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 evaluation. Plaintiff appealed this decision to the
Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.

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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.

The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.

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4.

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.

5.

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.
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.”
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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 alleges that the ALJ committed numerous errors all relating back to his
improper assessment of the credibility of her subjective complaints of pain. I agree, and
therefore remand.3
“[C]redibility determinations ‘are peculiarly the province of the finder of fact,’ and
should not be upset if supported by substantial evidence.” White v. Barnhart, 287 F.3d
903, 909 (10th Cir. 2001) (quoting Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir.
1995)). So long as the ALJ links his credibility assessment to specific evidence in the
record, his determination is entitled to substantial deference. Id. at 910; see also
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). The ALJ here concluded that
plaintiff’s reports of disabling pain were not credible because they were inconsistent with
her activities of daily living. More specifically, the ALJ concluded that plaintiff’s ability to
care for her young son and go on a hike. (Tr. 17.) The ALJ also concluded that plaintiff
had not been fully compliant with her treatment program. (Tr. 16.)

3

Because I find these arguments sufficient to warrant remand, I do not consider plaintiff’s
alternative argument that the ALJ erred in accepting the opinion of a Single Decision Maker (“SDM”) with
regard to step 3 equivalence. See Carbajal v. Astrue, 2011 WL 2600984 at *2-3 (D. Colo. June 29,
2011). I also do not address whether the ALJ applied an incorrect date last insured. Nevertheless, these
issues should be addressed on remand.

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These findings represent gross misrepresentations of the record. There is very
little evidence to undermine plaintiff’s assertion that her physical and mental abilities are
substantially impacted by her multiple impairments and associated pain. Moreover, the
evidence clearly demonstrates that plaintiff’s pain and other symptoms frequently are
exacerbated by her attempts to perform routine activities.
Against that backdrop, the fact that plaintiff may occasionally be required to lift
her child to change a diaper and once attempted to hike says very little about the
credibility of her complaints. Nothing in the record suggests how often plaintiff lifts her
son, or indeed, that the referenced instance was anything more than an isolated, or at
best, infrequent, occurrence.4 Likewise, there is no evidence establishing the conditions
under which plaintiff went hiking, how far she actually hiked, whether the outing was a
regular or frequent occurrence, or, indeed, anything at all that would support the broad
inferences the ALJ drew from that limited evidence.
Moreover, the record clearly supports the conclusion that the very instances on
which the ALJ relied actually exacerbated plaintiff’s pain. It strikes this court as
particularly ironic that the ALJ would note expressly that the ability to hike requires not
only the stamina to walk for some distance, but also the ability to twist, bend, and
balance (Tr. 17), but fail to mention that plaintiff actually fell and injured herself during
the hike (Tr. 471). See Krauser v. Astrue, 638 F.3d 1324, 1333 (10th Cir. 2011)

4

Moreover, the ALJ’s miserly reading of the report submitted by plaintiff’s nanny (Tr. 16, 268-69)
exacerbates the error in relying on this paltry evidence. Far from being merely a “list[] [of] the activities
that the nanny is required to do”( Tr. 16), the nanny’s statement says that “[i]t was made clear to me when
I was hired that this job actually meant caring for an adult as well as a child. I do what [plaintiff] physically
can’t do” (Tr. 268). That statement clearly puts her lengthy listing of childcare and household
responsibilities in context, tends to support plaintiff’s subjective complaints, and undermines the ALJ’s
speculation that unspecified “other reasons” (Tr. 16) explain the nanny’s lengthy list of job responsibilities.

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(cautioning that court must be aware of “need to assess generality in light of specifics”
when considering ALJ’s recitation of claimant’s activities of daily living).
Similarly, the ALJ’s conclusion that the record shows “at least a few episodes of
non-compliance” with a suggested home exercise program is not supportable. (Tr. 16.)
A reading of the full record demonstrates plainly that the exercises plaintiff was given
made her pain worse. (Tr. 302, 303.)5 Moreover, the ALJ completely ignored plaintiff’s
long-standing, multifaceted attempts to find relief from her pain, including the use of
multiple medications and treatment modalities, as well as multiple surgeries.6 (See Tr.
352, 481.) See Hardin v. Barnhart, 362 F.3d 676, 680 (10th Cir. 2004). See also
Shaw v. Chater, 221 F.3d 126, 133 (2nd Cir. 2000) (plaintiff not properly discredited for
failing to seek treatment where treatment has proved unavailing).
Even under the deferential standard afforded credibility determinations, such
cherry-picking of the record is improper and does not substantiate the ALJ’s decision.
See Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004). The ALJ’s reliance
on these isolated instances caused him to commit legal error on several fronts. For one
thing, and even if these examples were supported by the record, the ability to engage in
limited household and other activities of daily living do not equate to the ability to
perform substantial gainful activity on a regular work schedule. See 20 C.F.R. §
404.1572(c); Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993). For

5

In addition, the record is replete with evidence suggesting that many everyday activities
increase plaintiff’s symptoms. (See, e.g., Tr. 240, 245, 287-288, 301, 303, 305, 309, 314, 324-326, 338339, 453, 484.)
6

Nor does it appear that he applied the tripartite analysis required to be followed in evaluating
subjective complaints of pain. See Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987).

7

another, the ALJ improperly relied on his own disbelief of plaintiff’s subjective
complaints of pain to undermine the opinions of her treating sources.7 McGoffin v.
Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (ALJ may reject physician opinion “only
on the basis of contradictory medical evidence and not due to his or her own credibility
judgments, speculation or lay opinion”) (citation and internal quotations marks omitted).8
These errors in evaluating the medical source opinions undermined his finding
regarding plaintiff’s residual functional capacity and infected his hypothetical to the ALJ.
For all these reasons, I find and conclude that the ALJ’s decision is not supported
by substantial evidence. See Sitsler v. Astrue, 410 Fed. Appx. 112, 117-18 (10th Cir.
Jan. 10, 2011) (reversing where “ALJ's [credibility] analysis was flawed both by his
reliance on mischaracterizations of the evidence and by his failure to consider [other]
uncontroverted evidence [supporting plaintiff’s claims of pain and limitation]”). Although
plaintiff asks for a directed award of benefits, I find it would not be proper to exercise my
discretion in that regard here. See Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th Cir.
1993).9
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the conclusion of the Commissioner through the Administrative Law
7

In addition, the ALJ failed to discuss the opinions and evidence submitted by two of plaintiff’s
treating sources, which error also should be rectified on remand.
8

Indeed, the credibility of plaintiff’s subjective reports of pain and functional limitation are
particularly vital in cases of alleged disability based on fibromyalgia, which is diagnosed entirely on the
basis of the patient’s subjective report of her symptoms. See Davis v. Astrue, 2010 WL 3835828 at *5-6
(D. Colo. Sept. 23, 2010).
9

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

8

Judge that plaintiff was not disabled is REVERSED;
2. That this case is REMANDED to the ALJ, who is directed to
a.

Reassess plaintiff’s credibility properly in light of all the evidence of
record and the deficiencies noted in this opinion;

b.

Reexamine and, if necessary, correct his determination of plaintiff’s
date last insured;

c.

Reevaulate all medical opinions of record, citing specific, legitimate
reasons specifically tied to the evidence of record for the weight
afforded to each of them;

d.

Recontact any treating source, seek the testimony of medical
experts, order consultative examinations, solicit further vocational
expert testimony, or otherwise further develop the record as he
deems necessary;

e.

Determine whether the evidence is sufficient to make a finding of
equivalence at step 3 of the sequential evaluation;

f.

Reassess plaintiff’s residual functional capacity; and

g.

Reassess the disability determination; and

3. That plaintiff is AWARDED her costs, to be taxed by the clerk of the court
pursuant to Fed. R. Civ. P. 54(d)(1), D.C.COLO.LCivR 54.1, and 28 U.S.C.
§ 2412(a)(1).

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Dated March 3, 2014, at Denver, Colorado.
BY THE COURT:

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