Yellin v. Astrue

Filing 22

ORDER Reversing Administrative Law Judge's Decision and Remanding to the Commissioner by Judge William J. Martinez on 01/02/14. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-CV-02789-WJM
LINDA KAY YELLIN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
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 Linda Kay Yellin (“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
Plaintiff filed an application for Social Security Disability Insurance (SSDI or
Title II) benefits on September 17, 2009 (Admin. Record ("Tr.") at Tr. 178-79). Plaintiff’s
claim was initially denied and she requested a hearing. A hearing was held on May 13,

2011 (Tr. 151). Plaintiff testified at the hearing (Tr. 61-95), as did her husband, Steven
Kliner (Tr. 96-99). A vocational expert (VE) also testified at the Defendant’s request (Tr.
99-104). On June 1, 2011, the ALJ issued an Unfavorable Decision (Tr. 39-57). On
August 24, 2012, the Appeals Council issued its Order declining to review the ALJ’s
Unfavorable Decision (Tr. 1-6). Following this, Plaintiff filed the instant Complaint to
Review Decision of Commissioner of Social Security. (ECF No. 1.)
Plaintiff, who was born on October 18, 1949, was nearly 59 years old as of her
alleged onset date of August 24, 2008. She was 61 years old as of the date of the
hearing (Tr. 62). Plaintiff completed high school and had several years of
postsecondary education (Tr. 198). Her past work was as an office manager, a
research administrator, an office administrator, and an executive assistant (Tr. 63-68,
191-193, 201-209, 213).
Plaintiff alleged that her disability began on August 24, 2008, when she slipped
and fell in a grocery store, injuring her cervical and thoracic spines, her knee and her
shoulder. As a result of these injuries, she suffered from chronic headaches, neck and
mid-back pain, fatigue, lapses in concentration, and numbness and tingling in her right
upper extremity (Tr. 190).
A.

Relevant Medical Evidence
Plaintiff sought physical therapy, after her fall in August 2008. Two months later,

in October, Plaintiff saw Sonja K. Stilp, M.D. with complaints of pain in her thoracic
spine (Tr. 314). She also claimed that she felt a generalized weakness and numbness
in the palm of her right hand, since her fall at the grocery store (Tr. 314). On exam, Dr.
Stilp found normal strength and reflexes, but moving Plaintiff’s neck through its range of
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motion caused pain (Tr. 314). MRIs of Plaintiff’s cervical and thoracic spines showed a
degree of degenerative disc disease, with narrowing of certain nerve passages (Tr. 315,
277-78). The doctor said that Plaintiff could continue physical therapy, but did not
prescribe any pain relievers or other medications (Tr. 315).
Plaintiff was able to seek an evaluation from Cathleen Van Buskirk, M.D., in
December 2008 (Tr. 273). She claimed to have headaches since her fall in August, and
she claimed to have pain at a level of seven on a scale of zero to 10 (Tr. 273). Plaintiff
was taking ibuprofen for this pain (Tr. 273). Dr. Van Buskirk found normal strength,
sensation, and reflexes, but found limited range of motion with Plaintiff’s neck (Tr. 273).
In a letter after this exam, Dr. Van Buskirk stated that Plaintiff should avoid lifting
more than 20 pounds or “maintaining her head in flexion or extension for prolonged
periods of time” (Tr. 276). She prescribed Plaintiff a muscle-relaxant medication to use
as needed (Tr. 279), and suggested that cervical facet injections might significantly
relieve Plaintiff’s pain (Tr. 276).
In February 2009, Plaintiff returned to Dr. Stilp. A nerve conduction study was
performed, which showed “normal” findings with no evidence of radiculopathy (Tr. 312).
The doctor discussed the benign findings of the nerve conduction study with Plaintiff,
and she prescribed a home cervical traction unit and commented that Plaintiff may
continue with acupuncture, since she felt it gave her some relief (Tr. 317). The doctor
discussed cervical facet injections as a possible therapy in the future if Plaintiff’s
symptoms did not improve further (Tr. 317).
In June 2009, Plaintiff began seeing chiropractor David Mamolen, D.C., for
treatment (Tr. 328). She complained of continuing pain and headaches, expressing
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frustration that she was limited in her ability to work with her “small farm and animals”
(Tr. 329). Plaintiff showed improvement with disc decompression with the chiropractor,
but the chiropractor felt that further treatment was required (Tr. 330). In a second letter,
chiropractor Dr. Mamolen said that Plaintiff had improved, but that her headaches
persisted (Tr. 347). He said that Plaintiff was “unable to hold a job” and was also
unable to care for her animals on her small farm (Tr. 347). Dr. Mamolen gave largely
similar opinions in a third letter the following year (Tr. 455-61).
Greth Brunsworth, M.D., saw Plaintiff in January 2010 (Tr. 427-38). Dr.
Brunsworth observed that Plaintiff had pain with movement, but there was no evidence
of radiculopathy (Tr. 437). Dr. Brunsworth’s report noted that “[Plaintiff] has severe
deficits in active range of motion of the cervical spine in all planes” (Tr. 430). Later in
the report—i.e., the assessment section—Dr. Brunsworth further noted Plaintiff “has
severe limitations in active range of motion of the cervical spine” (Tr. 437). In April
2011, Dr Brunsworth continued to note this limitation—i.e, that Plaintiff had limited range
of motion in her cervical spine, being “50% of normal” (Tr. 475).
After Plaintiff applied for disability, she was referred to a physician for an
examination. That physician, John Mars, M.D., saw Plaintiff in March 2010 (Tr. 360).
Dr. Mars reviewed records of Plaintiff’s treatment as well as MRIs and the benign
results of her nerve conduction study (Tr. 360). When meeting with Dr. Mars, Plaintiff
admitted she was still taking only ibuprofen and a muscle-relaxant for her pain (Tr. 361).
Plaintiff said she was able to walk one mile, shop, drive, perform light housecleaning,
and garden as a hobby (Tr. 361). On exam, Dr. Mars found that Plaintiff had limited
range of motion in her cervical spine (Tr. 362). He stated that Plaintiff could lift 25
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pounds, but should avoid “heavy lifting” above shoulder level and “repetitive overhead
reaching” due to the degeneration of her cervical spine (Tr. 362-63).
B.

The ALJ Decision
The ALJ applied the five step sequential evaluation process for the assessment

of disability under the Act. 20 C.F.R. § 404.1520.1 The ALJ found Plaintiff lacking in
credibility (Tr. 47), and he rejected the opinions of chiropractor Dr. Mamolen (Tr. 48-49).
The ALJ then found Plaintiff capable of light work, with further limitations to sitting or
standing for no more than 30 minutes at one time, avoiding lifting or reaching above
shoulder level, and avoiding climbing ladders or scaffolds (Tr. 46). Following evidence
from the vocational expert—based on the ALJ’s RFC determination—the ALJ went on to
find Plaintiff not disabled at step four of the sequential evaluation process (Tr. 51-52).
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 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

1

The five-step process requires the ALJ 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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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).
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 is
represented by counsel. Id. at 480.
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 issues for consideration: (1) the ALJ's RFC finding does not include all of the
limitations contained in the medical opinions that were adopted by the ALJ; (2) the ALJ's
hypothetical questions to the vocational expert did not precisely reflect Plaintiff's
limitations; (3) the ALJ’s analysis of the weight afforded to the opinion of David
Mamolen, D.C., is contrary to applicable law and not fully developed for the purposes of

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review.
Because the Court finds that the ALJ’s RFC was not supported by substantial
evidence, by not including all of the limitations contained in the medical opinions that
were adopted by the ALJ, the Court finds that this error requires remand. Since these
same limitations tainted the second issue—i.e. the ALJ's hypothetical questions to the
vocational expert—the Court similarly finds that this issue warrants remand. And for the
reasons stated below, the third issue also cuts in favor of Plaintiff, requiring remand and
reconsideration of Dr. Mamolen’s evidence.
A.

RFC Not Supported by Substantial Evidence
Plaintiff challenges the ALJ’s findings by contending that the ALJ erred in the

RFC formulation because it did not contain any restrictions regarding positioning of
Plaintiff's head/neck limitation. (ECF No. 15 at 10.) Failure to include this limitation,
Plaintiff says, would likely have an effect on her ability to perform past relevant work.
(Id.)
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.
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
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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).
In this case, the ALJ’s RFC is as follows:
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a), except
the claimant is able to lift a maximum of fifteen pounds, with
a frequent lift limit of five pounds, is able to stand or walk for
approximately four to six hours, and occasionally crawl,
squat, climb or bend. The claimant is limited to three-step
unskilled, routine predictable tasks, in an environment with
only occasional public interactions.
(R. at 19.)
Plaintiff challenges the ALJ’s determination on the basis RFC finding did not
accurately reflect the opinions of Dr. Van Buskirk—an opinion the ALJ found was
“generally consistent” with the opinions of other doctors in the record. (Tr. at 50).
Plaintiff contends that ALJ’s RFC formulation was deficient because it did not contain
any restrictions regarding positioning of Plaintiff's head/neck throughout the day; a
limitation that was noted in in Dr. Van Buskirk’s opinion, among others. Because this
limitation was not tracked to the RFC (without explanation), Plaintiff contends that this
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constitutes reversible error. The Court agrees. The reason is three-fold.
First, the ALJ credited the opinion of Dr. Van Buskirk with regard to lifting
limitations, but bypassed her recommendation that Plaintiff avoid maintaining her head
in flexed or extension positions for prolonged periods of time in December 2008 (Tr.
273). By not including the head/neck limitation, this constitutes error in formulation of
the RFC determination because it illustrates the ‘picking and choosing’ of evidence that
Tenth Circuit authorities have shunned. Those same authorities apply here.2 See
Hardman v. Barnhart, 362 F.3d 676 (10th Cir. 2004); Haga v. Astrue, 482 F.3d 1205,
1208 (10th Cir.2007) (stating that“[a]n 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”).
Second, and related to the first reason, the ALJ does not "explain how material
inconsistencies in the evidence in the case record were considered and resolved." SSR
96–8p. For example, the ALJ said that the record "did not establish that [Dr. Van
Buskirk] described deficits in flexion and extension persisted for 12 continuous months"
(Tr. 48). But this is inconsistent with evidence in the record that Plaintiff did continue to
experience severe deficits in range of motion of her cervical spine into April 2011 when
she began seeing Dr. Gronseth (noting severe deficits in active range of motion of
cervical spine in all planes at Tr. 430-437).3 This limitation was also noted by Dr. Mars

2

The Court notes that the ALJ tacitly noted that the head/neck limitation did not last
twelve months in duration, but this finding is incongruent with two other doctors in the record.
This is addressed at length with respect to the second reason going to this issue.
3

In April 2011, Dr Brunsworth continued to note this limitation—i.e, that Plaintiff had
limited range of motion in her cervical spine, being "50% of normal" (Tr. 475).

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during 2010, the Social Security consultative examiner, who found that Plaintiff had
limited range of motion in her cervical spine. (Tr. 362). Given that at least three
doctors indicated Plaintiff’s head/neck limitation—and that same limitation is not
identified in the RFC—this begs the question as to how the RFC determination can
viewed as being consistent with relevant evidence in the record? The short answer is: it
cannot. As such, the Court finds that this deficiency warrants remand since it may
have significant implications on the ALJ’s nondisability finding (or at the least it may
have tainted evidence supplied by the vocational expert).
And third, even if other evidence in the record could make good the ALJ’s RFC
determination, the fact that there are at least three doctors noting limitations with
respect to the positioning of Plaintiff's head/neck condition suggests that there is at least
an ambiguity in the record, which the ALJ should have addressed by seeking further
evidence. Indeed, given the non-adversarial nature of the proceedings, the ALJ has a
basic duty of inquiry to “fully and fairly develop the record as to material issues.” Baca 5
F.3d at 480. The duty exists even when the claimant is represented by counsel. Id. at
480. This case is no exception.4
Accordingly, because the RFC determination lacks a limitation that goes to the
types of jobs that Plaintiff could be employed in, the RFC is not based on substantial
evidence. As such, the ALJ’s decision is reversed and this case is remanded to the
Commissioner for further proceedings. See Richardson v. Perales, 402 U.S. 389, 390

4

Given the passing of time, the Court recommends that further evidence be elicited
from an additional medical professional to determine the continued existence of the head/neck
limitation so to mitigate any further the ambiguity in the record.

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(1971).
B.

The ALJ's hypothetical questions to the vocational expert did not precisely
reflect Plaintiff's limitations
Plaintiff next contends that the ALJ’s RFC was not supported by substantial

evidence in the record. (ECF No. 15 at 20.) Specifically, 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. Thompson v. Sullivan, 987
F.2d 1482 (10th Cir. 1993). Such error, Plaintiff says, derives from the RFC
determination. Plaintiff argues that the ALJ erred on the basis that it 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 by reference the omitted limitation
discussed in the RFC analysis above. And by way of example, and to show how this
omission constitutes cause for remand, the Court observes the following kinks in the
ALJ’s chain of reasoning: (1) Drs. Van Buskirk, Gonseth and Mars all indicated Plaintiff's
range of motion limitation (but this was not identified in the RFC); (2) the ALJ said that it
afforded all of these opinions weight and that they were “generally consistent” with each
other (Tr. 50), (but the ALJ failed to incorporate all of there limitations into the RFC
without explanation); and (3) the ALJ's hypothetical questions to the VE did not include
the head/neck limitation from the evidence because it had not been included in the RFC
findings.
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In sum, the ALJ’s error can be traced back to deficiencies in the RFC
determination. Because the ALJ did not provide the vocational expert with the correct
questions (because it did not contain the correct limitation), this mislead, or, at best,
confused the vocational expert into believing that Plaintiff could undertake positions that
she may well could not have had the correct question been proposed to the vocational
expert.
The Court concludes that because the ALJ's omission is material , 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 omission, 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.
C. The ALJ Erred in Failing to Properly Evaluate Factors Pursuant to SSR 06-03p
When Weighing David Mamolen, D.C.’s Opinion
Plaintiff contends that the ALJ committed reversible error by improperly rejecting
the opinion(s) of Dr. Mamolen in denying Plaintiff’s claim for disability benefits.
Specifically, Plaintiff contends that the ALJ failed to address the following factors
when weighing Dr. Mamolen’s opinion for the purpose of determining Plaintiff’s physical
limitations—including: “(1) How long the source has known and how frequently the
source has seen the individual; (2) How consistent the opinion is with other evidence;
(3) The degree to which the source presents relevant evidence to support an opinion;
(4) How well the source explains the opinion; (5) Whether the source has a specialty or
area of expertise related to the individual's impairment(s); and (6) Any other factors that
tend to support or refute the opinion.” See, SSR 06-03p, 71 Fed. Reg. 45,593, 45,595
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(Aug. 9, 2006). See also, Wall, 561 F.3d at, 1052 (stating that failure to apply correct
legal standards constitutes reversible error).
Tellingly, and relevant to this case, the above factors are set in the following
context as expressly stated in SSR 06-03p:
With the growth of managed health care in recent years and
the emphasis on containing medical costs, medical
sources who are not "acceptable medical sources," such as
nurse practitioners, physician assistants, and licensed
clinical social workers, have increasingly assumed a
greater percentage of the treatment and evaluation functions
previously handled primarily by physicians and
psychologists. Opinions from these medical sources, who
are not technically deemed "acceptable medical sources"
under our rules, are important and should be evaluated on
key issues such as impairment severity and functional
effects, along with the other relevant evidence in the file.
(emphasis added.)
While the Court observes that an ALJ’s application (and explanation) of the
above factors is dependent on the facts of each case, the Court finds that there is no
express reference to any of the above factors ((1)-(6)) in the ALJ’s decision.5 Without
clearly identifying the factors that were relevant to Dr. Mamolen, how can the Court
have any confidence that the factors were correctly applied? Notwithstanding there is
discussion in the ALJ’s decision that Dr. Mamolen’s opinion was not given weight
because it was “inconsistent with opinions from other medical doctors” (Tr. 51), the
Court finds that there is little mention of which doctors, nor what parts of those opinions
Dr. Mamolen’s evidence was inconsistent with. This can hardly be a proper application
of factor two. Indeed, the ALJ’s analysis begins to resemble boilerplate reasoning
5

The Court notes that the ALJ cited SSR 06-03p, but did not lay out those factors, nor
provide any proper application of same.

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which Tenth Circuit authorities seek to guard against, providing further basis for
remand.6 See Hardman, 362 F.3d at 679 (stating that "the use of [s]tandard boilerplate
language will not suffice [because it] fails to inform us in a meaningful, reviewable way
of the specific evidence the ALJ considered" in the decision).
Moreover, the ALJ said that Dr. Mamolen’s opinion was inconsistent with
Plaintiff’s own testimony. (Tr. 51.) But the Court questions this purported inconsistency
because the ALJ had previously held that Plaintiff’s testimony holds no weight. (Tr. 47.)
Specifically, if Plaintiff’s testimony is given no weight, it is impossible for any other
opinion to be inconsistent with it because it effectively holds no evidentiary value in the
record. Without further explanation of this inconsistency by the ALJ, this, too,
constitutes error.
Finally, and in the alternative to above reasoning, if one were to read that the ALJ
decision as indicating that the whole of Dr. Mamolen’s opinion was inconsistent with the
whole of the record, the Court finds that this is simply not the case. See Flaherty, 515
F.3d at 1070 (stating that a district court “meticulously examines the record as a whole,
including anything that may undercut or detract from the ALJ's findings.”)
As stated above, at least three doctors indicated that Plaintiff’s range of motion
limitation in the head/neck region. Similarly, in Dr. Mamolen’s opinion, there is reporting
6

Factor two requires assessment of “how consistent the opinion is with other evidence”
in the record. See SSR 06-03p. And while the Commissioner could contend that the ALJ
examined how inconsistent Dr. Mamolen's evidence was with other doctors in the record, the
ALJ failed to appreciate how it was potentially consistent with others. It is this latter inquiry
which is expressly mandated in the language of SSR 06-03p. (emphasis added.) The Court
may be splitting hairs on this point, but when there is a potential absence in the record that the
ALJ properly applied any of the other factors in SSR 06-03p, there is an expectation that the
one factor that the ALJ did apply, would be properly applied (and with some level of
transparency, which is clearly not the case here for the reasons stated above.)

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of pain in the left side of Plaintiff’s neck, with accompanying thoracic pain (Tr. 470-471).7
This is consistent with other evidence in the record. And what’s more, much of Dr.
Mamolen’s conclusions were drawn from evidence that was before doctors such as Dr.
Van Buskirk related to Plaintiff’s bulging discs etc. (Id.) Without delineating which parts
of Dr. Mamolen’s evidence were (in)consistent with the opinions of other doctors, it is,
again, near impossible for this Court to engage meaningfully in review of the ALJ’s
findings, which justifies remand of the ALJ’s decision. See Langley 373 F.3d 1116.
As such, the Court finds that the above deficiencies, in relation to Dr. Mamolen’s
opinion, demonstrate that the record has not been fully developed to enable this district
court to meaningfully review the ALJ’s findings—an error which warrants further
consideration upon remand. See SSR 06-03p; Langley v. Barnhart, 373 F.3d 1116
(10th Cir. 2004); see also Frantz v. Astrue, 509 F.3d 1299 (10th Cir. 2007).
D.

Harmless Error
Finally, it is worth addressing the fact that the Commissioner tacitly raises the

harmless error defense. (ECF No. 19 at 17-18.) The Commissioner argues that the
ALJ’s deficiencies were not harmful because the deficiencies were not prejudicial to
Plaintiff. (Id.) The Court, however, disagrees—particularly in light of the deficiencies
that have been addressed above.
Courts apply harmless error cautiously in the administrative review setting. See
Fischer–Ross v. Barnhart, 431 F.3d 729 (10th Cir. 2005). An error is only harmless

7

Given that Dr. Mamolen had been treating the patient for two years, this error seems
notable; ever more so in circumstances where non-medical opinions from chiropractors have
taken on more significance in recent years as noted in SSR 06-03p.

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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 critical omissions. As
such, the ALJ’s error is not harmless because the jobs identified by the vocational
expert are not predicated on the correct limitations that derive from Drs. Van Buskirk,
Gonseth and Mars’ opinions.
Given that the ALJ gave considerable weight to these opinions—and then failed
to provide the vocational expert with the precise physical limitations—the ALJ’s error is
anything but harmless. Indeed, the Court finds this type of error is more toward the
significant end of the spectrum.
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).
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. 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
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well as the ALJ, to consider the evidence and the issues anew.
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 2nd day of January, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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