Lucero v. Astrue

Filing 20

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 3/27/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-02960-WYD
ROSS LUCERO,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
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
In May 2009, Plaintiff filed applications for disability benefits under Titles II and

XVI of the Social Security Act (“the Act”). (Administrative Record [“AR”] 160-66.)
Plaintiff was born on February 27, 1961, and was 43 years old on the alleged onset date
and 50 years old on the date of the ALJ’s decision. (Id. 28, 30, 160.) He has an 11th
grade education (id. 204), and worked as a cashier. (Id. 60, 206.) Plaintiff claimed that
he became disabled on April 25, 2004, due to back surgery. (Id. 199.) Relevant to this,
the record reveals that Plaintiff has a long history of congenital spine defects and back
injuries with episodes in 1984, 1998, 2000, 2003 and 2004. (Id. 336, 304.)

The Colorado Disability Determination Services denied Plaintiff’s claims (AR 63,
74, 87-100), and he requested a hearing before an ALJ. (Id. 101-02.) Following a
hearing in July 2011 (id. 35-62), an ALJ issued a decision dated August 17, 2011, in
which he concluded that Plaintiff was not disabled within the meaning of the Act. (Id.
14-34.)
At step one, the ALJ determined that Plaintiff met the insured status
requirements of the Act through December 31, 2009, and that he had not engaged in
substantial gainful activity since April 25, 2004, the alleged onset date. (AR 19.) At
step two, the ALJ found that Plaintiff had the following “severe” impairments:
degenerative lumbar disc disease status-post laminectomy, osteoarthritis right knee,
bilateral hip bursitis, chronic pain syndrome, and gout. (Id.) The ALJ found at step
three that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the criteria of one of the listed impairments in 20 C.F.R. pt. 404,
subpt. P, app. 1. (Id. 20).
The ALJ then assessed Plaintiff’s residual functional capacity [“RFC”]. He found
that Plaintiff could “lift and carry 20 pounds frequently and 30 pounds occasionally,
stand a total of 4 hours in an 8 hour workday, sit a total of 4 hours in an 8 hour workday,
with an opportunity to change positions every 60 minutes for a 3-minute position
change; can do occasional postural maneuvers; should avoid climbing ladders, ropes,
and scaffolds, should void exposure to unprotected heights, should not have any direct
exposure in the workplace to alcohol. (AR 21.)
At step four, the ALJ found that Plaintiff was unable to perform any past relevant
work. (AR 28.) At step five, relying on vocational expert testimony, the ALJ found that
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there were jobs existing in significant numbers in the national economy that Plaintiff
could perform. (Id. 29.) Thus, the ALJ concluded that Plaintiff was not disabled under
the Act at any time through the date of the decision. (Id. 30).
The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision
(AR 1-8), making the ALJ’s decision the Commissioner’s final decision. See 20 C.F.R.
§ 422.210(a). Plaintiff timely requested judicial review, and this appeal followed.
Plaintiff argues that the ALJ erred in assessing his credibility, and in rejecting
medical evidence because the doctors failed to consider Plaintiff’s motive of self-gain
when they evaluated his symptoms. Plaintiff also argues that the ALJ erred in preferring
the State’s consultative opinion over a treating physician’s opinion.
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
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reversal apart from substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487
(10th Cir. 1993).
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). A posthoc rationale is improper because it usurps 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). Thus, I will not consider post-hoc arguments of the Commissioner.
B.

The Merits of Plaintiff’s Arguments
1.

The RFC Assessment and the Weighing of the Medical Opinions

I first address the weighing of the medical evidence. The ALJ’s RFC was based
primarily on the functional assessment of Dr. Linda Mitchell, the consultative examiner
for the State agency, which the ALJ gave “substantial weight to.” (AR 26.) He stated
that “her opinions are consistent with the evidence and the observations of treating
physicians.” (Id.) The ALJ also noted the statement in a Med-9 form of Dr. Karen
Weber, one of Plaintiff’s physicians, that Plaintiff is “not totally disabled but does have
a physical or mental impairment that substantially precludes this person from engaging
in his/her occupation.” (Id.) He gave this opinion “considerable weight, because she
has seen the claimant over the course of a year and she referenced the claimant’s
specific impairments and symptoms.” (Id.)
I first find that the ALJ erred in connection with his reliance on state agency
physician Dr. Mitchell’s findings. While he relied on her opinion for the RFC, he failed to
include Dr. Miller’s finding that Plaintiff would need positional changes every 30 minutes.

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(AR 440.) This is significant because the vocational expert stated in response to a
hypothetical question that if a person with the RFC as found by the ALJ needed to
change positions every 30 minutes, it would make it difficult to sustain competitive
employment.” (AR 61.) Thus, the vocational expert did not identify any jobs that
Plaintiff could perform with this limitation. Probably in an effort to overcome this
obstacle, the ALJ stated in the RFC that Plaintiff would only need to change positions
“every 60 minutes for a 3-minute position change”. (Id. 21.) He did not explain how he
reached this finding or why he did not adopt Dr. Miller’s finding, even though he
purportedly gave “significant weight” to Dr. Miller’s report. This requires a remand.
Without such an explanation, I cannot conclude that substantial evidence in the record
exists to support the ALJ’s determination. See Confere v. Astrue, No. 06-4217, 2007
WL 1196520, at *3 (10th Cir. April 24, 2007) (unpublished) (remanding where the ALJ’s
RFC reflected some of the limitations identified by the state agency physicians, as the
ALJ should have explained why he rejected some of the limitations) (quoting Haga v.
Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)).1
More importantly, I find that the ALJ did not properly weigh the opinions of
treating physician Dr. Pham. The ALJ found that Dr. Pham’s opinion in a Medical
Source Statement (AR 482-485) was “not entitled to controlling weight.” (Id. 27.)
Dr. Pham noted that she had been seeing Plaintiff since 2009, and diagnosed him with
chronic lower back pain secondary to spinal stenosis at L4-L5 status post back surgery.
(Id. 482.) She opined that Plaintiff could not be expected to sit more than 2 hours or

1

I find unpersuasive the Commissioner’s reliance on Gallegos v. Apfel, 3 F. App’x 748, 749-50
(10th Cir. 2001) as support for the ALJ’s RFC finding. Moreover, this is an improper post hoc argument.

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stand and walk more than 2 hours. (Id. 483.) She further opined that Plaintiff should
rarely lift any weight and never lift more than 10 pounds, that he could rarely stoop and
never twist, crouch or climb ladders or stairs. (Id. 484). Dr. Pham’s opinion was the
only detailed description of Plaintiff’s functional abilities submitted by a treating source.
The ALJ stated as support for his decision not to give Dr. Pham’s opinion
controlling weight the following:
Dr. Pham’s functional capacity assessment includes that the claimant is not
able to site, stand, or walk for a total of 8 hours, the claimant and only rarely
lift and carry less than 10 pounds, can never lift more than that, can never
crouch, squat, climb stairs or ladders, and has significantly reduced ability to
use his upper extremities. These extreme limitations are not supported in the
record. The claimant himself has said that he can lift 20 pounds, has
admitted that he is fairly active every day, and he has helped his father repair
an automobile. The objective diagnostic imaging does not show cervical
abnormalities that would impede the claimant’s use of his upper extremities.
The claimant does not have ongoing lumbar or cervical nerve root
impingement, has straight leg raising tests are negative, he has normal
strength, tone, reflexes, and sensation, and he has stated that he enjoys
using the weights at physical therapy. However, a reading of the medical
records suggests that this treating source accepted at face value the
statements made and symptoms reported by the claimant. Indeed, there is
nothing in the medical treatment records to suggest otherwise. For example,
there is nothing in the medical treatment records to suggest that any source
conducted any type of validity testing. Nor is there anything in the records
to suggest that during treatment any treating source considered whether or
not the claimant’s subjective symptoms or self-reporting were motivated in
whole or in party by primary or secondary gain. Further, this treating source
opinion does not satisfy the regulatory requirement that it must be
“consistent” with “the other substantial evidence” in the record. In this case,
other physicians, including the consultative examiner, concluded that the
claimant’s limitations would not preclude the performance of substantial
gainful activity (Exhibit 8F).
(Id. 26-27.) Indeed, the ALJ found that all of “the treating source opinions are not
entitled to more weight than, much less controlling weight over, the opinions of the other
medical sources” as they “overstate the claimant’s functional limitations.” (Id. 28.)

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Turning to my analysis, when weighing a treating physician’s opinion the ALJ is
required to “complete a sequential two-step inquiry, each step of which is analytically
distinct”. Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). The initial
determination the ALJ must make is whether the treating physician’s medical opinion “is
conclusive, i.e., is to be accorded ‘controlling weight,’ on the matter to which it relates.
Id. “Such an opinion must be given controlling weight if it is well-supported by medically
acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other
substantial evidence in the record.” Id. “If the opinion is deficient in either of these
respects, it is not to be given controlling weight.” Id.
Here, while the ALJ stated that while he was not giving controlling weight to
Dr. Pham’s opinion, it is unclear what weight he actually gave, if any, that opinion. This
alone is error, as it does not allow me to meaningfully review the ALJ’s decision. See
Sissom v. Colvin, 512 F. App’x 762, 766-67 (10th Cir. 2013) (where the ALJ did not give
the doctor’s opinion “controlling weight” but did not articulate what weight, if any, he
gave to the opinion, simply assigning greater weight to the opinions of the nonexamining agency physicians, the court found error because the ALJ’s decision was not
sufficiently specific to make clear the weight the ALJ gave to the treating physician’s
opinion and the reasons for that weight).
I also find that the ALJ erred in his analysis of whether Dr. Pham’s opinion should
be entitled to controlling weight. First, he did not determine, as required in connection
with this analysis, whether Dr. Pham’s medical opinions were well-supported by
medically acceptable clinical or laboratory diagnostic techniques as to Plaintiff’s
impairments. Indeed, Dr. Pham noted the clinical findings, laboratory and test results
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that supported Plaintiff’s impairments on the form, including an MRI lumbar spine in
2003, spinal stenosis of L4-5 and L5-S1, and other findings. (AR 482.) The ALJ
completely ignored these findings.
Moreover, the record is replete with objective findings documenting Plaintiff’s
impairments and chronic low back pain. (See, e.g., AR 380—finding on physical exam
“Point tenderness over both greater trochanters”, 396—finding tenderness to palpation
in the paraspinal and upper and lower trapezius muscles” and muscular knots which
could be felt throughout the patient’s back, 400—tenderness over Plaintiff’s trochanteric
bursa on his hips bilaterally, 403—“Palpation along his spine revealed tenderness at the
level of C4-C5, which is unchanged from his previous exam. . .”, see also 408, 487.)
The ALJ selectively applied the evidence on this issue, noting only findings that
supported his decision. (Id. 27.) This was error. Carpenter, 537 F.3d at 1265 (the ALJ
may not “‘pick and choose among medical reports, using portions of evidence favorable
to his position while ignoring other evidence’”) (quoting Hardman v. Barnhart, 362 F.3d
676, 681 (10th Cir. 2004)).2
The ALJ did find that Dr. Pham’s opinion was inconsistent with other substantial
evidence in the record, but the only evidence it was actually in conflict with appears to
be that of consultative state agency physician Dr. Miller. The Tenth Circuit has made

2

The Commissioner also selectively applies the evidence in her response brief. I also note that
while the Commissioner argues that the ALJ’s decision was supported by substantial evidence because
Dr. Pham’s last office visit notes from March 2011 state that Plaintiff had no further or significant
neurological deficits (Def.’s Resp. Br. at 11), this is an inaccurate statement of the record. Instead, Dr.
Pham states that Plaintiff “has no further or significant neurological deficits from when I first saw him about
1 year ago.” (AR 494.) Thus, Dr. Pham was stating that nothing had changed from a year ago. He made
this clear in the notes from the physical examination, stating that the “[n]eurologic exam is essentially
unchanged.” (Id.)

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clear that “‘[w]hen a treating [source’s] opinion is inconsistent with other medical
evidence, the ALJ’s task is to examine the other [sources’] reports to see if they
outweigh the treating [source’s] report, not the other way around.’” Valdez v. Barnhart,
62 F. App’x 838, 841 (10th Cir. 2003) (quoting Goatcher v. United States Dep’t of Health
and Human Servs., 52 F.3d 288, 290 (10th Cir. 1995)). The ALJ appears to have
violated this rule.
Moreover, the ALJ failed to consider that Dr. Pham’s opinion is supported at least
in part by the opinion of treating physician Dr. McPherson, who suggested as early as
2003 that Plaintiff would be limited to sedentary work. (AR 334.) It was also consistent
with the findings of chronic low back pain and other medical findings of treating
physician Dr. Weber in the October 2010 Med-9 form. (Id. 444.) While the ALJ relied
on Dr. Weber’s opinion to support his RFC, this opinion does not provide substantial
evidence to support the RFC. Dr. Weber stated only that Plaintiff was not totally
disabled but was substantially precluded from his usual occupation. (Id. 442.) She did
not specify what type of work Plaintiff could do, i.e., sedentary or other work, or what
functional limitations Plaintiff may have in connection with his ability to work. (Id.)
Further, it does not appear that the ALJ gave the opinion of Dr. Pham and the
other treating physicians deference as required and weighed the relevant factors as to
the weight to be given their reports. As explained by the Tenth Circuit, “[e]ven if a
treating opinion is not given controlling weight, it is still entitled to deference; at the
second step in the analysis, the ALJ must make clear how much weight the opinion is
being given (including whether it is being rejected outright) and give good reasons, tied
to the factors specified in the cited regulations for this particular purpose, for the weight
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assigned.” Krauser, 638 F.3d at 1330. “If this is not done, a remand is required.” Id.
“Thus, a deficiency as to the conditions for controlling weight raises the question of how
much weight to give the opinion, it does not resolve the latter, distinct inquiry.” Id. at
1330-31. This is also error that requires remand.
I also find that several of the reasons given by the ALJ to give less weight to
Dr. Pham’s opinion are not supported by substantial evidence. First, as previously
found, the ALJ selectively applied the evidence in connection with the objective findings
that supported Dr. Pham’s opinion. Second, the fact that the ALJ found Dr. Mitchell to
be “a well-qualified physician with a working knowledge of the rules and regulations of
the Social Security Administration relating to physical impairments, who is experienced
in evaluating functional limitations and prescribing work restrictions as they relate to
disability claims filed with the Social Security Administration” (AR 27), is not a basis to
give greater weight to the agency physician’s opinion over that of the treating physician.
The ALJ also erred in finding that Dr. Pham’s opinion was based on Plaintiff’s
subjective complaints, i.e., that Dr. Pham took Plaintiff’s statements at face value. (AR
27.) An ALJ may not reject the opinions of a treating physician “based merely on his
own speculative conclusion that the[ir] report[s] w[ere] based only on claimant’s
subjective complaints.” Langley v. Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004).
“The ALJ [must have] a legal or evidentiary basis for his finding that [a treating
physician’s] opinions were based merely” on Plaintiff’s subjective complaints of pain. Id.
Here, while the ALJ stated that Dr. Pham and the other treating doctors did not conduct
any type of validity testing, she ignored the objective findings in the record that
supported their findings.
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Also problematic are the ALJ’s findings that (1) Dr. Pham’s and the other treating
providers’ opinions could be rejected because they did not consider whether Plaintiff’s
“subjective symptoms or self-reporting were motivated in whole or in party by primary or
secondary gain”, (2) and that Dr. Pham’s “extreme limitations are not supported in the
record” as Plaintiff “himself has said that he can lift 20 pounds, has admitted that he is
fairly active every day, and he has helped his father repair an automobile.” (AR 27.)
These are not valid factors to discount Dr. Pham’s opinion. A doctor’s statements about
Plaintiff’s condition or impairments “are specific medical findings”. Washington v.
Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). The ALJ errs in rejecting those opinions
in the absence of conflicting medical evidence. Id. Indeed, “‘[i]n choosing to reject the
treating physician’s assessment, an ALJ may not make speculative inferences from
medical reports and may reject a treating physician’s opinion outright only on the basis
of contradictory medical evidence and not due to his or her own credibility judgments,
speculation, or lay opinion’”. Langley, 373 F.3d at 1121 (emphasis in original) (quoting
McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002)).3
Based on the foregoing, I find that this case must be remanded for a proper
assessment and weighing of the medical evidence.
2.

The Credibility Assessment

Plaintiff also argues, and I agree, that the ALJ erred in assessing his credibility,
and that a remand is required on this basis as well. In so finding, I acknowledge that
“‘[c]redibility determinations are peculiarly the province of the finder of fact.’” Kepler v.

3

The Langley court rejected a similar argument, finding that the fact a doctor may advocate for his
patient’s cause is not a good reason to reject his opinion as a treating physician. 373 F.3d at 1121.

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Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Diaz v. Sec. of Health & Human
Servs., 898 F.2d 774, 777 (10th Cir. 1990)). “However, ‘[f]indings as to credibility
should be closely and affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.’” Id. (quotations omitted).
In the case at hand, the ALJ found that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, in
light of the mild findings on diagnostic imaging, the normal clinical examination findings,
the normal strength and neurological findings, and his level of activity, the claimant’s
statements concerning the intensity, persistence and limiting effects of these symptoms
are not fully persuasive to the extent they are inconsistent with the above” RFC. (AR
23.) I first find error with the ALJ’s findings that Plaintiff had “mild findings on diagnostic
imaging” and “normal clinical examination findings.” As discussed in the previous
section, there are many objective findings documenting Plaintiff’s impairments, and the
ALJ improperly selectively applied the evidence. Moreover, the ALJ’s finding of “mild”
findings on diagnostic imaging is an improper lay judgment of that of the ALJ. Dr. Pham
noted findings on diagnostic imaging which supported her opinion, including an MRI
Lumbar spine in 2003, spinal stenosis of L4-5 and L5-S1, and other findings (id. 482).
Exempla attending physician Dr. Weber found “chronic lower back pain secondary to
spinal stenosis of L4-L5; bilateral re-stenosis, spinal stenosis of L5-S1, herniated
nucleus pulposis of L4-L5 and right sided L5 neuroforaminal stenosis s/p [status post]
surgery” together with “radiculopathy” that “will need to be alleviated” with narcotics for
the indefinite future. (AR 444.) Why those findings might be “minimal”

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remains unexplained, and the ALJ was not entitled to second guess how those results
translated into medical findings.
I now turn to the ALJ’s other findings regarding credibility. The ALJ began his
discussion of credibility by noting that Plaintiff’s “pecuniary interest” raised the issue of
whether “personal gain influenced the witness’ evidence.” (AR 24.) Additionally, he
stated that “the record suggests that this claim has been on the claimant’s mind,” as
shown by his attempt to obtain medical evidence to support it and legal representation
to prosecute it. (Id.) Thus, the ALJ went beyond the record evidence to view Plaintiff’s
status as a disability claimant and his attempts to prove his claim, without more, as
impediments to credibility. The ALJ’s reliance on Plaintiff’s status as a disability
claimant to doubt credibility has no support in pertinent case law or Social Security
Rulings and was improper. Indeed, every disability claimant has a similar “pecuniary
motive” and most seek medical evidence and legal counsel. See Murillo v. Colvin, No.,
2013 WL 5434168, at *12 (C.D. Cal. Sept. 27, 2013) (“‘[g]enerally speaking [ ] every
claimant who applies for benefits seeks pecuniary gain, and this fact does not indicate a
lack of credibility”) (quotation omitted) (citing Ratto v. Sec'y, Dept. of Health & Hum.
Servs., 839 F. Supp. 1415, 1428–29 (D. Or.1993) (noting that “[i]f the desire or
expectation of obtaining benefits were by itself sufficient to discredit a claimant's
testimony, then no claimant ... would be found credible”)).4

4

The ALJ’s findings on this issue obtained greater weight because, as explained in the previous
section, he also rejected objective medical evidence for failing to take into account Plaintiff’s supposed
gain-seeking motives.

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I also find that the ALJ selectively applied the evidence, and even exaggerated
the evidence, as to Plaintiff’s activities in finding that they made him less credible. For
example, the ALJ noted that Plaintiff’s back pain was “exacerbated after helping his
father fix a carburetor (Exhibit 6F/26). (Id. 23.) He found that “[t]his strongly indicates
that the claimant’s pain flares after doing strenuous physical work or activity, which
demonstrates that he has done some strenuous activities.” (Id.) He further found that
“[t]his suggests that the claimant is capable of doing some work activity.” (Id.) The
actual evidence on this issue shows that Plaintiff had back pain after he helped his dad
with the carburetor, as “while he was leaning over the table the back started spasming
and he did have some locking of his back which relaxed when he stood up.” (AR 396.)
This is hardly indicative of strenuous activity supporting Plaintiff’s ability to work.
Moreover, “[s]poradic diversions do not establish that a person is capable of engaging in
substantial gainful activity.” Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984).
The ALJ also found Plaintiff to be inconsistent and therefore not credible because
of “his assertion of pain in a stocking/glove distribution (Exhibit 8F/1), which is not
medically consistent with the claimant’s impairments.” (AR 25.) He stated that “an
allegation of bilateral pain in this distribution is suggestive of a Waddell’s sign, or
exaggeration.” (Id.) I find this to be an improper ground for rejecting Plaintiff’s
credibility. No medical source identified the stocking glove distribution as a Waddell’s
sign or other evidence of exaggeration of malingering or mentioned any such evidence
at all. Even Dr. Mitchell, whose opinion the ALJ relied on, found that Plaintiff made an
“adequate effort throughout” his examination and that her “findings were commensurate
with [Plaintiff’s] complaints.” (Id. 437.) The ALJ is therefore not only trying to interject
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his own lay opinions, he is trying to impose opinions that differ sharply from the very
source he cites.
Moreover, a single Waddell’s sign is not sufficient to discount the credibility of a
social security claimant because Waddell’s signs do not by themselves suggest
symptom exaggeration or malingering. See Kirby v. Astrue, 568 F. Supp.2d 1225, 1227
(D. Colo. 2008) (“Every federal court considering the issue appears to have held that, in
order to be relevant, at least three of the five Waddell's signs must be present. . . .An
ALJ ruling based upon a finding of two or fewer Waddell's signs is not supported by
substantial evidence”). Finally, Plaintiff has cited authority that a stocking glove
distribution of pain is not, in fact, inherently a Waddell’s sign but is often present in
cases of peripheral nerve damage. McGraw-Hill Concise Dictionary of Modern
Medicine, The McGraw-Hill Companies, Inc. (2002).
The credibility finding was also based on the ALJ’s finding that Plaintiff’s “active
life style” which “is not sedentary” is inconsistent with his statement that he cannot work.
(AR 25.) The statement about Plaintiff’s “active life style” in a treatment note of
Dr. Pham’s was made in the context of determining whether Plaintiff was so sedentary
that he might have deep vein thrombosis in his legs (as Plaintiff was complaining of
bilateral calf pain and cramps). (Id. 458.) Dr. Pham concluded that deep vein
thrombosis was unlikely, in part because Plaintiff was “relatively active and not
sedentary.” The ALJ took the statements out of context, and ignored Plaintiff’s
complaints of being limited in his daily activities. (See AR at 211-218, 53-54.) Indeed,
other than cooking (id. 45), the ALJ did not ask Plaintiff about his activities.

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The ALJ also distorted the evidence. For example, the ALJ stated that Plaintiff
reported in 2009 that “his intermittent lower back pain is worse ‘after a hard work.’” (AR
23.) The actual statement from the doctor was that:
Obtaining more history from the patient, his lower back pain is worse at
night after a day of hard work. It has been present for several years. The
patient has had numerous hard labor occupations including construction in
the past and was having back pain with those as well.
(Id. 396.) Interpreting this statement as evidence of Plaintiff’s continued physical labor
belies common sense, particularly in light of the fact that there were no days of hard
work in the record since April 2005. (See, e.g., 199.) Indeed, this fact is undisputed.
As to Plaintiff’s complaint about drowsiness requiring him to lie down multiple
times a day, the ALJ found that Plaintiff loses credibility because “in the record, the
claimant did not complain of significant drowsiness enough to warrant a change of
medication.” (AR 25.) That argument, however, presumes that Plaintiff wanted or
needed his medication changed because it made him drowsy. As Dr. Fontana wrote in
a May 2004 treatment note, “when dealing with someone with pain, sedation is a
desired affect. That is one reason I chose these medicines.” (Id. 325.) The very point
of narcotic medication is sedation. Drowsiness is an inevitable but acceptable side
effect that nevertheless interferes with an ability to work full time.
The ALJ also stated that while Plaintiff testified that he has difficulty
concentration, he “observed the claimant throughout the hearing, and he did not
demonstrate or manifest any difficulty concentrating during the hearing.” (Id.) This also
was improper. The Tenth Circuit has long followed the general rule that the ALJ may

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not discredit a claimant’s allegations solely on the basis of personal observation. See,
e.g., Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000).
I further find that the ALJ’s finding of inconsistency regarding illegal drugs has no
foundation. The record contains no reference to the use of illegal drugs by Plaintiff. I
also question whether the ALJ properly considered all the evidence in finding that
Plaintiff gave inconsistent evidence about using alcohol, comparing his testimony that
he drinks one to two beers a month with a reference in Dr. Mitchell’s report that “[h]e
has a 12-pack of beer daily.” (AR 24-25.) Dr. Mitchell’s report appears to be directly
contradicted by all the other evidence in the record that suggests Plaintiff consumes
only minor amounts of alcohol, possibly varying over time, but still consistent with his
testimony. (See Pl.’s Opening Br. at n. 90.) . Nor is there any secondary evidence of
an alcohol problem, such as withdrawal, regular drinking activities, elevated liver
enzymes or legal or social problems, that would support a finding of heavy drinking.
The ALJ should reassess this issue on remand, keeping in mind that “‘a decision is not
based on substantial evidence if it is overwhelmed by other evidence or if there is a
mere scintilla of evidence supporting it.’” Salazar v. Barnhart, 468 F.3d 615, 621 (10th
Cir. 2006).
Finally, I find errors with the ALJ’s pain analysis, and direct that this be
reassessed on remand. The record in this case is replete with objective findings that
substantiate Plaintiff’s complaints of pain, which the doctors obviously corroborated
through their diagnoses of chronic pain. The record also demonstrates that Plaintiff
sought several modalities of treatment, including surgery, physical therapy, and
injections, and that he used narcotic medications to manage his chronic pain. Yet the
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ALJ appeared to completely discount Plaintiff’s complaints of pain, and did not appear
to consider whether and how his pain impacted his ability to work. I find this was error.
See Carpenter v. Astrue, 537 F.3d 1264, 1268 (10th Cir. 2008) (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”); Harrison v. Shalala, No. 93-5238,
1994 WL 266742, at *5 (10th Cir. June 17, 1994) (“[i]f the ALJ finds that plaintiff’s pain,
by itself, is not disabling, that is not the end of the inquiry. . . .The [Commissioner] must
show that ‘jobs exist in the national economy that the claimant may perform given the
level of pain [she] suffers.’” Id. (quoting Thompson, 987 F.2d at 1490-91).
The fact that Dr. Pham reported that Plaintiff’s low back pain was relatively well
controlled with physical therapy and medication (AR 495) does not mean that Plaintiff
suffered no pain, and the record is clear on this issue. Indeed, Dr. Pham noted in
August 2010 that while Plaintiff’s pain is “relatively well controlled” with medication, this
meant that “he will always have baseline pain but that these medications will take some
of the edge off the severe pain that he has had. (Id. 470.)
III.

CONCLUSION
Based upon the foregoing, I find that the ALJ erred in his assessment of the

treating physicians’ opinions and other medical evidence and in assessing Plaintiff’s
pain and credibility. Accordingly, it is

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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: March 27, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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