Coast v. Astrue

Filing 17

ORDER: The decision of the Commissioner is reversed. The case is remanded to the Commissioner for further proceedings. by Judge R. Brooke Jackson on 1/21/14. (rbjcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 12-cv-02887-RBJ
BARBARA E. COAST,
Plaintiff,
v.
CAROLYN W. COLVIN 1, Acting Commissioner of the Social Security Administration,
Defendant.

ORDER

This matter is before the Court on review of the Commissioner’s decision denying
plaintiff Barbara Coast’s application for disability insurance benefits pursuant to Title II of the
Social Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g). This dispute became ripe
for decision by this Court on April 25, 2013 upon plaintiff’s filing of a reply brief. The Court
apologizes to the parties and counsel for its delay in addressing the case.
Standard of Review
This appeal is based upon the administrative record and briefs submitted by the parties.
In reviewing a final decision by the Commissioner, the role of the District Court is to examine
the record and determine whether it “contains substantial evidence to support the
[Commissioner’s] decision and whether the [Commissioner] applied the correct legal standards.”

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
needs to be taken to continue this lawsuit.
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Rickets v. Apfel, 16 F.Supp.2d 1280, 1287 (D. Colo. 1998). A decision cannot be based on
substantial evidence if “it is overwhelmed by other evidence in the record. . . .” Bernal v.
Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Substantial evidence requires “more than a scintilla,
but less than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Evidence
is not substantial if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374
(10th Cir. 1992).
Procedural History
Ms. Coast applied for disability benefits on September 14, 2009. She alleges she first
became disabled on November 24, 2007 when she was diagnosed with bipolar disorder. Ms.
Coast’s date last insured was September 30, 2009. Her application was denied by the Social
Security Administration on April 30, 2010. Ms. Coast then requested a hearing before an
administrative law judge (ALJ), and the ALJ held a hearing on February 17, 2011. On April 22,
2011, ALJ Burgchardt issued an opinion denying benefits, and the Appeals Council denied Ms.
Coast’s request for review on September 5, 2012. Thereafter Ms. Coast filed a timely appeal
with this Court.
Facts
Since 2002, Ms. Coast has struggled to maintain a job. R. 309. Over the last several
years she has worked as a sales representative and has earned some money as a freelance artist.
R. 36-37. No one disputes that Ms. Coast has not been gainfully employed since her alleged
onset date of November 24, 2007. Ms. Coast has also been stressed by her divorce and recent
financial trouble including the loss of her health insurance. R. 30, 35.

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Mental Impairments
In 2002, Ms. Coast began receiving treatment from a psychiatrist, Dr. Honie B. Crandall,
during a period when Ms. Coast was struggling to keep her job. R. 309. Ultimately, Dr.
Crandall diagnosed bipolar disorder. This diagnosis is “manifested by mood swings including
immobilizing depression, hopelessness, complete lack of energy and motivation alternating with
hypomania with scattered thoughts, emotional lability, and insomnia.” Id. Dr. Crandall also
observed “frequent bouts of severe anxiety with panic episodes” and believes that while
medication has been helpful it fails to fully control these symptoms. Id.
On January 20, 2011, Dr. Crandall filled out a mental impairment questionnaire
indicating that Ms. Coast is markedly impaired in activities of daily living, moderately limited in
social functioning, extremely limited in concentration, persistence, or pace, and suffers repeated
episodes of decompensation within a twelve month period with each episode lasting at least two
weeks. R. 350. This document was introduced at the hearing as Exhibit 17F, and Dr. Crandall
confirmed that it accurately described Ms. Coast’s symptoms before September 30, 2009 (her
date last insured). R. 45-46.
Dr. Crandall’s treatment notes over the last several years reflect Ms. Coast’s fluctuating
symptoms. During some visits, Ms. Coast was unable to focus and maintain concentration, (R.
362-63), suffered from “severe mood swings with thought disorganization and waves of
hopelessness,” (R. 310), or was suicidal, (R. 308, 332). At other times, however, her thoughts
were more organized and appropriate, and she had positive energy. R. 329.
At the hearing before the ALJ, Ms. Coast testified that her bipolar disorder in
combination with her vision impairment (described below) caused her to curtail certain activities.

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For example, she testified that while she was able to do basic chores like cleaning and doing
laundry, (R. 38-39), she painted less and stopped going to the gym after the length of her
commute increased, (R. 32-33). She also testified about occasional social outings with her book
club or the local Water Color Society, although she also suggested it was difficult for her to
attend these gatherings. R. 34.
Physical Impairments
In January of 2008, Ms. Coast presented to Dr. Jonathan G. Williams complaining of
floaters and loss of vision in her right eye. R. 269. Dr. Williams diagnosed a retinal detachment
and recommended surgery. Id. A scar developed after the surgery that caused symptoms similar
to macular degeneration. R. 278. Medication to treat these symptoms stabilized but
unfortunately did not correct Ms. Coast’s vision. Id.
According to Dr. Ryan M. Rich, Ms. Coast’s treating ophthalmologist, the scarring and
associated symptoms limited her vision, “impl[ying] legal blindness” and probably causing the
“complete loss of stereo vision and deterioration of her depth perception.” Id. Dr. Rich
concluded that this condition could affect her activities of daily living. Id. In January of 2011,
Dr. Rich filled out a vision impairment questionnaire that concluded Ms. Coast could rarely do
work involving near acuity, never do work involving depth perception, and occasionally do work
involving far acuity and field of vision. R. 352-54. Ms. Coast testified at the hearing that her
vision impairment led her to avoid certain types of driving and to give up on her artwork and
hiking. R. 33-35. Finally, throughout Ms. Coast’s medical records there is evidence of other
documented physical problems, none of which appear to be independently severe. R. 232-34,
239-42, 243-46 (documenting fibromyalgia, degenerative disc disease, and thyroid problems).

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ALJ’s Opinion
The Social Security Administration uses a five part process to determine whether a
claimant qualifies for disability insurance benefits. At step one, the ALJ determined that Ms.
Coast had not engaged in substantial gainful activity since November 24, 2007 (her alleged onset
date). At step two, the ALJ found that Ms. Coast suffered from the following severe
impairments: bipolar disorder and reduced vision in the right eye due to the scar caused by
surgery to repair a retinal detachment. R. 13. She also found the following non-severe
impairments: degenerative disk disease, hypothyroidism, and hormone replacement therapy. Id.
At step three, the ALJ determined that none of these impairments—alone or in
combination—met or medically equaled one of the listed impairments. The ALJ compared Ms.
Coast’s impairments to the listing for affective disorders. According to the regulations, affective
disorders are
[c]haracterized by a disturbance of mood, accompanied by a full or partial manic
or depressive syndrome. Mood refers to a prolonged emotion that colors the
whole psychic life; it generally involves either depression or elation.” And “[t]he
required level of severity for these disorders is met when the requirements in both
A and B are satisfied, or when the requirements in C are satisfied.
20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.04 [hereinafter Listing 12.04].
The ALJ concluded that Ms. Coasts’ severe impairments nonetheless did not meet or
equal a listing because they failed to satisfy the B and, alternatively, the C criteria under Listing
12.04. R. 14. The paragraph B criteria require that the impairment result in at least two of the
following: “(1) Marked restriction of activities of daily living; or (2) Marked difficulties in
maintaining social functioning; or (3) Marked difficulties in maintaining concentration,
persistence, or pace; or (4) Repeated episodes of decompensation, each of extended duration.”

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Listing 12.04. Alternatively, a claimant can prove listing status without meeting the standards
under paragraphs A and B if the claimant meets the criteria in paragraph C: A “[m]edically
documented history of a chronic affective disorder of at least 2 years’ duration that has caused
more than a minimal limitation of ability to do basic work activities, with symptoms or signs
currently attenuated by medication or psychosocial support, and one of several additional factors.
Listing 12.04.
The ALJ interpreted Ms. Coast’s continuing ability to cook, clean, shop, visit the gym,
drive, do laundry, and paint to mean she only suffered a mild restriction in her activities of daily
living. She further reasoned that Ms. Coast’s ability to attend book club meetings a couple of
times per month and her attendance at art openings implied only a mild limitation in her social
functioning. And finally, the ALJ concluded that because Ms. Coast testified to difficulty in
completing tasks due to poor concentration she suffered from a moderate limitation in
concentration, persistence, and pace. R. 16. As a result, she could not meet at least two of the B
criteria. The ALJ ruled that alternatively Ms. Coast could not satisfy criteria C. She found no
evidence in the record of any of the three elements making up criteria C.
At step four, the ALJ noted that Ms. Coast is unable to perform any of her past relevant
work, but the ALJ nonetheless decided that Ms. Coast had a residual functional capacity (“RFC”)
to do work at all exertional levels with some non-exertional limitations. Specifically, the ALJ
found Ms. Coast capable of doing simple, unskilled work with a specific vocational preparation
of one or two but, due to her vision impairment, she should not perform conveyor belt work from
right to left. In reaching this conclusion, the ALJ decided that Ms. Coast’s testimony regarding
her limitations lacked credibility, and the opinions of two treating physicians were given little
weight. The RFC did not include any of Ms. Coast’s non-severe physical limitations nor did it

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reference the restrictions included in Dr. Crandall’s mental impairment questionnaire. At step
five, the ALJ asked a vocational expert to opine about the employment opportunities available to
a hypothetical person with the residual functional capacity assigned to Ms. Coast. The expert
indicated that such a person would be able to find employment in the national economy, and
accordingly, the ALJ concluded that Ms. Coast was not entitled to disability benefits under the
Act.
Analysis
Ms. Coast identifies several alleged errors in the ALJ’s decision, many of them
overlapping and interrelated. Boiled down to their simplest form, her arguments are that (1) the
ALJ improperly weighed certain medical evidence in the record, (2) the ALJ erred when she
decided Ms. Coast’s testimony lacked credibility, and (3) at step four the ALJ neglected to
consider the full range of Ms. Coast’s limitations in arriving at a residual functional capacity
assessment. This Court finds that the ALJ failed to engage in the proper analysis of medical
evidence from Ms. Coast’s treating physicians and remands for further proceedings.
Reevaluating the medical evidence may change the ALJ’s decision regarding residual functional
capacity at step 4. In any event, the Court also agrees that no matter how the ALJ comes out
regarding the opinions of Ms. Coast’s treating physicians, the analysis under step four must be
redone including all of Ms. Coast’s impairments including the exertional impairments that the
ALJ determined to be non-severe.
The Weight of the Treating Physicians’ Opinions
As mentioned above, at step three, the ALJ concluded that Ms. Coast’s impairments,
while severe, did not meet or equal a listed impairment. Ms. Coast argues that in reaching this

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conclusion, the ALJ improperly evaluated the opinions of her treating physicians. 2 This Court
agrees and holds that the ALJ failed to perform the requisite analysis before concluding that
some opinions were entitled to little weight and others ought to be discounted entirely. 3
Treating physicians’ opinions are generally given controlling weight. Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). However, before assigning a treating
physician’s opinion controlling weight, “[a]n ALJ must first consider whether the opinion is
well-supported by medically acceptable clinical and laboratory diagnostic techniques.”
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (quoting Watkins, 350 F.3d at
1300). Next, the ALJ must “confirm that the opinion is consistent with other substantial
evidence in the record. In other words, if the opinion is deficient in either of these respects, then
it is not entitled to controlling weight.” Id.
Even if a treating physician’s opinion is not entitled to controlling weight, it is still
entitled to deference and should be weighted using the factors outlined in 20 C.F.R. §§ 404.1527
and 416.927. Robinson, 366 F.3d at 1082 (quoting Watkins, 350 F.3d at 1300). The factors to be
considered are:
2

To be sure, Ms. Coast presents this argument under her challenge to the ALJ’s residual
functional capacity determination under steps 4 and 5, but it applies with equal force to the
ALJ’s evaluation of the medical evidence at step 3. The ALJ explicitly combined her analysis of
the paragraph B criteria under steps three and four: “the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in the ‘paragraph B’
mental function analysis.” R. 14. As a result, the decision about what weight to assign the
opinions of Ms. Coast’s treating physicians impacted both steps.
3

The Commissioner suggests that Ms. Coast has failed to “put flesh on the bones” of her
argument that she meets or equals a listing under step three, and thus this Court ought to find that
argument waived. Gov’t Br. 10 (citing Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.
2007) and United States v. Zannino, 895 F.3d1, 17 (1st Cir. 1990)). This argument is
unpersuasive, and the argument is not waived. Ms. Coast makes an adequate (and persuasive)
argument in her briefs that the ALJ improperly discounted the opinions of her treating
physicians. Because the low weight assigned to these opinions contributed to the ALJ’s
conclusion that Ms. Coast did not meet or equal a listing, the argument is preserved.
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(1) the length of the treatment relationship and the frequency of examination; (2) the
nature and extent of the treatment relationship, including the treatment provided and the
kind of examination or testing performed; (3) the degree to which the physician's opinion
is supported by relevant evidence; (4) consistency between the opinion and the record as
a whole; (5) whether or not the physician is a specialist in the area upon which an opinion
is rendered; and (6) other factors brought to the ALJ's attention which tend to support or
contradict the opinion.
Id. (quoting Watkins, 350 F.3d at 1301). Although an ALJ should consider all of these factors, it
is not necessary that she explicitly discuss every factor. Oldham v. Astrue, 509 F.3d 1254, 1258
(10th Cir. 2007).
An ALJ must give specific reasons for the weight assigned to a treating physician’s
opinion so that subsequent reviewers can determine the weight assigned and the reason for that
weight. Watkins, 350 F.3d at 1301. If an ALJ rejects a treating physician’s opinion completely,
she must then “give specific, legitimate reasons for doing so.” Langley v. Barnhart, 373 F.3d
1116, 1119 (10th Cir. 2004) (quoting Watkins, 350 F.3d at 1301).
Moreover, the ALJ is not entitled to pick and choose from a medical opinion, using only
those parts that are favorable to a finding of nondisability. Robinson, 366 F.3d at 1083. Finally,
“[t]he sporadic performance of household tasks or work does not establish that a person is
capable of engaging in substantial gainful activity.” Thompson v. Sullivan, 987 F.2d 1482, 1490
(10th Cir. 1993).
In Ms. Coast’s case, the ALJ ultimately discounted the opinions of Dr. Crandall and Dr.
Rich because they were inconsistent with the treatment notes prepared by those doctors and also
conflicted with Ms. Coast’s testimony regarding her activities of daily life. R. 17. I agree that
Ms. Coast’s testimony about taking care of her own household, occasional driving, and
occasional social events might constitute substantial evidence in the record regarding her
activities of daily life. The ALJ could therefore conclude that such evidence conflicted with the
unanimous opinions of Dr. Crandall and Dr. Rich that Ms. Coast suffered from marked
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impairment in her activities of daily life. Therefore, the ALJ did not err by deciding to give less
than controlling weight to the opinions of Dr. Crandall and Dr. Rich in light of the inconsistency
between their opinions and Ms. Coast’s testimony.
However, after making that decision, the ALJ neglected to engage in further analysis of
the opinions. Even where a treating physician’s opinion is not entitled to controlling weight, it is
“still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R.
§§ 404.1527 and 416.927. Watkins, 350 F.3d at 1300. While she was not required explicitly to
discuss every factor, see Oldham, 509 F.3d at 1258, it is unclear from the opinion whether any of
these factors was considered at this stage. Factors 3 and 4, specifically, seem like they would be
especially helpful in this context given that there seems to be substantial medical evidence
supporting Dr. Crandall and Dr. Rich’s opinions, even if there might be contradictory evidence
as well.
Essentially, as far as the ALJ’s decision shows, she collapsed together the decision not to
give the opinions controlling weight with the decision to give them “little weight.” R. 17. There
is no further discussion about why these opinions were unpersuasive. That is particularly
troublesome in light of the extensive medical evidence provided by both physicians and the
possibility that Ms. Coast’s bipolar disorder entails variable, fluctuating symptoms, explaining
why she would have occasional episodes of relatively unimpaired functioning. Pl. Reply Br. 7-8.
Failure to provide a more explicit analysis of these opinions before deciding not to defer
to them is reversible error. Watkins, 350 F.3d at 1300 (quoting SSR 96–2p, 1996 WL 374188, at
*4) (“[A]djudicators must remember that a finding that a treating source medical opinion is not
well-supported by medically acceptable clinical and laboratory diagnostic techniques or is
inconsistent with the other substantial evidence in the case record means only that the opinion is

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not entitled to ‘controlling weight,’ not that the opinion should be rejected.”). Indeed, some of
the information contained in Dr. Crandall’s opinion changed the vocational expert’s conclusions.
In response to a hypothetical question regarding the jobs available to a person matching the
description of Ms. Coast on Dr. Crandall’s mental impairment questionnaire, the vocational
expert testified that no work existed for such a person in the national economy. R. 51. 4 Because
the ALJ needed to weigh medical evidence unfavorably in order to determine Ms. Coast’s RFC,
express analysis of that evidence is particularly important. See Howard v. Barnhart, 379 F.3d
945, 947 (10th Cir. 2004) (“When the ALJ does not need to reject or weigh evidence unfavorably
in order to determine a claimant's RFC, the need for express analysis is weakened.”).
Because the ALJ failed to provide additional analysis regarding what weight to assign the
treating physicians’ opinions after she decided not to give them controlling weight, this Court
must remand the case. On remand, the ALJ should discuss any of the applicable six factors
enumerated in Watkins in a way that allows reviewing courts to understand specifically why she
assigned little weight to these opinions.
Credibility of Ms. Coast’s Testimony
Ms. Coast also argues that the ALJ erred by making a determination that Ms. Coast’s
testimony regarding her limitations lacked credibility. “Credibility determinations are peculiarly
the province of the finder of fact, and we will not upset such determinations when supported by

4

The ALJ pointed out that “[t]he assessment prepared by Dr. Crandall located at Exhibit 16F
was prepared after the expiration of claimant’s date last insured and was vague about the date the
alleged limitations were effective. Therefore, this assessment was given little weight.” R. 17
n.1. While Dr. Crandall did prepare notes in Exhibit 16F, the context of the ALJ’s statement
suggests the she meant to refer to Exhibit 17F which contains the mental impairment
questionnaire. Dr. Crandall testified at the hearing that the conclusions contained within Exhibit
17F applied to Ms. Coast’s condition prior to September 30, 2009 (her date last insured). R. 41,
45-46. Therefore while the document itself may be vague about the applicable dates, the
evidence is clear.
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substantial evidence.” Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th
Cir. 1990).
In this case, the ALJ weighed Ms. Coast’s testimony about her limitations due to bipolar
disorder and vision impairments against her testimony regarding her activities (household tasks,
occasional driving, and occasional social engagements, for example). It is not this Court’s role
to reweigh this evidence, and therefore the ALJ’s credibility determination regarding Ms. Coast’s
testimony will not be disturbed.
Inadequate Residual Functional Capacity Determination at Step Four
Ms. Coast argues that the ALJ lacked substantial evidence to find that there were other
jobs in the national economy that she could perform. This alleged failure resulted from
overlooking the combined effect of Ms. Coast’s non-severe, exertional impairments at step four. 5
At step four, the ALJ determines the claimant’s residual functional capacity and uses that
determination at step five to decide whether jobs exist in the national economy that the claimant
can perform. Williams v. Bowen, 844 F.2d 748, 760 (10th Cir. 1988). To establish that jobs
exist in the national economy, the Commissioner may pose hypothetical questions to a vocational
expert about a person with characteristics similar to the claimant and ask what jobs might be
available to such a hypothetical individual. However, “such inquiries must include all (and only)
those impairments borne out by the evidentiary record.” Evans v. Chater, 55 F.3d 530, 531 (10th
Cir. 1995). Moreover, even non-severe impairments need to be considered at every step of the
disability determination process. 20 C.F.R. § 404.1523 (“we will consider the combined effect
of all your impairments without regard to whether any such impairment, if considered separately,

5

Ms. Coast styles this as a challenge to the ALJ’s hypothetical questions to the vocational expert
at step five. This Court, however, agrees with the government [#14 at 15 n.9] that Ms. Coast is
actually challenging the ALJ’s residual functional capacity assessment at step four.
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would be of sufficient severity”); see also Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir.
2006) (failure to consider all impairments is “reversible error”); Langley, 373 F.3d at 1124-25.
In this case, the ALJ identified the following non-severe impairments at step two: back
and shoulder problems, degenerative disc disease, hypothyroidism, and menopausal symptoms.
R. 13. The only time the ALJ mentioned any of these non-severe impairments in her step four
analysis was to repeat her step two conclusion that “claimant’s allegations regarding back and
shoulder injuries were previously addressed as non-severe.” R. 15. There is no mention at all of
the degenerative disc disease, hypothyroidism, or menopausal symptoms. 6 Impairments, even if
they are not severe, must be included in a residual functional capacity assessment. 20 C.F.R.
§ 404.1523. Ignoring these issues makes it impossible to determine whether the RFC complied
with the regulations and presented an accurate picture to the vocational expert. For example,
jobs identified by the expert involve “occasional stooping and frequent reaching, handling, and
fingering.” Dictionary of Occupational Titles, Selected Characteristics of Occupations 239.567010, 211.462-010, 299.677-010. On review, this Court cannot be sure the expert would have
identified these jobs if the RFC properly contained all of Ms. Coast’s impairments.
Remedy
Ms. Coast urges this Court to remand her case with an order for immediate award of
benefits, or in the alternative to remand the case to the ALJ for further fact-finding. “[O]utright
reversal and remand for immediate award of benefits is appropriate when additional fact finding
6

The Commissioner argues that the ALJ did not err in ignoring these physical impairments
because Ms. Coast’s attorney stated at the hearing that Ms. Coast did not “have a physical
limitation that we’re referring as an impairment” other than the vision problems. R. 27-28. This
Court is not convinced that Ms. Coast’s attorney was suggesting that his client’s exertional
limitations did not exist, merely that he did not intend to argue they should lead to a finding of
severity by the ALJ. But in any case, what matters is not what the attorney said, but what the
ALJ found. And because she concluded those allegations were non-severe impairments, they
must be considered throughout the disability determination process.
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would serve no useful purpose.” Dollar v. Bowen, 821 F.2d 530, 534 (10th Cir. 1987). The
Court acknowledges that this case has languished for some time now, but unfortunately it cannot
be said that additional fact finding would serve no useful purpose. The ALJ must engage in the
requisite analysis before this or any other court can engage in meaningful review. Watkins, 250
F.3d at 1301 (10th Cir. 2003).
Conclusion
After examining the ALJ’s opinion, the record, and briefing from both parties, I am
convinced that the ALJ should have provided a detailed explanation of the factors that led her to
not only decline to give controlling weight to the opinions of Ms. Coast’s treating physicians but
to then decide that they were unpersuasive. Furthermore, any residual functional capacity
assessment must include all the impairments identified by the ALJ, even those non-severe
exertional impairments referenced in the ALJ’s decision.
Order
The decision of the Commissioner is reversed. The case is remanded to the
Commissioner for further proceedings before the ALJ.
DATED this 21st day of January, 2014.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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