Allen v. Astrue

Filing 21

Opinion and ORDER. The Court REVERSES the Commissioner's Decision to denybenefits. The Court REMANDS the matter for an immediate award of benefits. Upon application made within 14 days, Ms. Allen shall be entitled to an award of reasonable attorney fees pursuant to the EAJA The Clerk shall enter a Judgment in accordance herewith. By Chief Judge Marcia S. Krieger on 12/18/2013. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 12-cv-03086-MSK
JULIE A. ALLEN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration,
Defendant.1

OPINION and ORDER

THIS MATTER comes before the Court on Plaintiff Julie A. Allen’s appeal of the
Commissioner of Social Security’s final decision denying her application for Disability
Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-33. Having
considered the pleadings and the record, the Court
FINDS and CONCLUDES that:
I.

Jurisdiction
This is the third time Ms. Allen has appealed to the District Court from the

Commissioner’s denial of disability benefits. Two prior denial decisions have been reversed and
remanded for further proceedings. The most recent remand order expressly required the ALJ to
include a limitation relating to pace in the claimant’s RFC. See Judgment of March 23, 2011.

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At the time Ms. Allen filed her most recent appeal, Michael J. Astrue was the Commissioner of
Social Security. Carolyn W. Colvin is substituted as the Defendant in this action to reflect her
designation as Acting Commissioner of Social Security, effective February 14, 2013.

This was not done. Thus, the history of the Commissioner’s decisions and the Court’s remands
bears on the determination in this appeal.
Ms. Allen initially filed a claim for disability insurance benefits pursuant to Title II on
May 10, 2004, asserting that her disability began on August 20, 2003. After her claim was
initially denied, Ms. Allen filed a written request for a hearing before an Administrative Law
Judge (“ALJ”). A hearing was held on April 7, 2005, and the ALJ issued a decision which found
that Ms. Sutherland met the insured status requirements through December 31, 2006. Applying
the five-step disability evaluation process, the ALJ also found that: (1) Ms. Allen had not
engaged in substantial gainful activity since August 20, 2003; (2) her affective disorder was a
severe impairment; (3) she did not have an impairment or combination of impairments that met
or medically equaled any of the impairments listed in 20 C.F.R. Part 404, Subpt. P, Appx. 1 (“the
Listings”); and (4) Ms. Allen had the residual functional capacity (“RFC”) to perform work, with
no exertional limitations, that did not require complex tasks (SVP of 2 or less). Given this RFC,
the ALJ found that, although Ms. Allen could not perform her past work, she was not disabled
because she was capable of performing other jobs that existed in substantial numbers in the
national economy, including escort driver, mail clerk (non-postal) and hand packer. The Appeals
Council denied Ms. Allen’s request for review of that Decision and she appealed to the District
Court. The Commissioner was unable to locate the hearing transcript and therefore requested
remand of the case. The Commissioner subsequently located the hearing transcript, the District
Court nevertheless remanded Ms. Allen’s claim to the Commissioner for a new hearing. See
Order of September 11, 2007.
A second hearing was held before a different ALJ on March 6, 2008. The ALJ issued
another Decision that denied Ms. Allen disability benefits. This ALJ found that: (1) Ms. Allen

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had not engaged in substantial gainful activity since August 20, 2003; (2) she suffered from a
bipolar disorder that was a severe impairment; (3) this impairment did not meet or medically
equal an impairment in the Listings; and (4) Ms. Allen had the RFC to perform a full range of
work at all exertional levels but with moderate limitations in her ability to: understand,
remember and carry out detailed instructions; maintain attention and concentration for extended
periods; interact appropriately with co-workers, supervisors or the general public; and complete a
normal work day or work week without interruption from psychologically based symptoms.
Based on this RFC, Ms. Allen was unable to perform her past jobs, but was not disabled because
she could perform other jobs in the national economy, namely motel cleaner, bench assembler
and paper inserter. The Appeals Council denied Ms. Allen’s request for review. Ms. Allen
appealed to the District Court a second time.
At a hearing held on March 22, 2011, this Court made oral findings and conclusions on
the record, again reversing and remanding the matter. The remand order was expressly limited
further proceedings to “correction of the RFC to include reference to Claimant’s slow pace in
following instructions in accordance with Dr. Ryan’s opinion, and a new Step 5 determination
based upon the corrected RFC.” See Judgment of March 23, 2011.
Pursuant to this Court’s remand order, a third hearing was held on June 27, 2012 before
yet another ALJ. After the hearing, the ALJ issued a Decision with findings at Steps 1-3
identical to the second Decision, Rather than following the express directive in the Remand
Order to, “include reference to Claimant’s slow pace in following instructions in accordance with
Dr. Ryan’s opinion” the ALJ found Ms. Allen to have an RFC to perform a full range of work at
all exertional levels, but was limited to simple, unskilled tasks, involving a low stress
environment and contact with supervisors, co-workers and the general public that was

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neither frequent nor prolonged. This new finding was premised upon the ALJ’s assessment of
Dr. Ryan’s opinions. The Decision stated:

Pursuant to the remand order, the undersigned also considered Dr. Ryan’s finding
[that] the claimant can understand and follow instructions, and is accurate but
slow…. The undersigned notes [that] Dr. Ryan derived this finding from those of
an examining neuropsychologist, [Dr. Manguso]. Specifically, Dr. Manguso
noted [that] the claimant [did] not show any specific impairment in attention,
information processing speed, or visual spatial skills. However, the claimant was
functioning at a mildly reduced level of cognitive efficiency at the time of the
evaluation, which was typical for individuals with emotional/psychological
disturbance. The claimant was somewhat slow to take in and remember new
information, particularly detailed verbal information, and was accurate but
somewhat slow when attempting to solve novel problems or complete cognitively
challenging tasks requiring her to shift her mental set back and forth between two
activities…. The undersigned notes [that] Dr. Manguso noted only [that] the
claimant was “somewhat slow” when remembering or completing things that
were more complex in nature. Ostensibly, Dr. Ryan took this into account when
reaching her conclusion [that] the claimant could perform work that did not
require more than simple instructions, ordinary routines, and simple work
decisions. Because the District Court Judge has directed the undersigned to
include a limitation relating to pace in the claimant’s [RFC], the undersigned
incorporates an additional limitation, restricting the claimant to a low stress
environment. This is based on Dr. Manguso’s finding [that] the results of MMPI2 testing show the claimant has difficulty with elevated stress…. In reaching this
conclusion, the undersigned considered a series of questions the claimant’s
representative posed to the vocational expert. The representative couched her
questions on the premise that the claimant had a very slow pace, which would
reduce the claimant’s pace by either 50, 20, or even 10 percent, when the
evidence does not support this. As such, no weight is given to this line of
questioning. (emphasis in original)

Based on this RFC, again Ms. Allen was found to be unable to perform her past jobs. Again,
she was found to be able to perform other jobs in the national economy, including escort vehicle
driver, wholesale or retail marketer, and assembler. Again the Appeals Council denied Ms.
Allen’s request for review, making this Decision the Commissioner’s final decision for purposes
of judicial review. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Ms. Allen’s appeal

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was timely brought, and this Court once again exercises jurisdiction to review the Commissioner
of Social Security’s final decision pursuant to 42 U.S.C. § 405(g).
II.

Material Facts
The material facts are as follows.
Ms. Allen was born in 1963 and was 39 years old on her alleged onset of disability date

and 43 years old when her insured status expired in December 2006. She has a GED, two years
of college education and worked as a manager at an electronics company and a plumbing
company. She suffers from bipolar disorder.
A. Treatment
Ms. Allen was diagnosed with bipolar disorder by Dr. Gamblin in March 2004. He
prescribed her a mood stabilizing medication, Lamictal, and thereafter saw her periodically to
monitor and prescribe her medication. Ms. Allen’s primary source of counseling was Mr.
Zautke, L.C.S.W. He first saw Ms. Allen in February 2004 and treated her regularly thereafter.
As part of her treatment for her bipolar disorder, Ms. Allen was prescribed not just Lamictal, but
also Lithium, Topomax, Lovastatin and Ambien. Other than counseling and medication, Ms.
Allen did not receive other significant medical treatment. However, numerous medical
professionals examined her and/or offered opinions as to her functional limitations and her
ability to work.
B. Medical Opinions
Dr. Gamblin not only treated Ms. Allen, but also offered numerous opinions about her
mental status and ability to work. Many, including those from March, July, August, September
and December 2004, October 2007 and January 2008, were simply statements that Ms. Allen
was unable to work. However, he also offered opinions as to her functional limitations as well as

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her General Assessment of Functioning (“GAF”).2 In June 2004 he stated that he thought Ms.
Allen was unable to run her plumbing business, but did not know if she could do other work.
That same month he gave her a GAF of 65 and stated that her GAF had been as high as 72 in the
past year. In July, September and December 2004 he assigned her a GAF of 65. In March 2005,
Dr. Gamblin completed a mental RFC questionnaire in which he assigned her a GAF of 59 and
concluded that Ms. Allen had serious limitations in her ability to make simple work decisions,
perform at a consistent pace and respond appropriately to changes in routine work setting. He
also concluded that she was unable to maintain regular attendance at work, maintain a routine,
work with others or deal with work stress. Finally, he concluded that she would be unable to
complete a normal workday or workweek. In July 2005, Dr. Gamblin stated that “if returning to
employment causes loss of current financial disability benefits, return to employment may be
impossible. In my opinion it is unlikely that Ms. Allen can find employment that will replace the
income she is currently receiving as a result of her disability insurance policy.” In December
2005, Dr. Gamblin concluded that Ms. Allen’s bipolar disorder met the requirements of Listing
12.04 – Affective Disorders. Finally, Dr. Gamblin testified at the March 2008 hearing. He
stated that Ms. Allen was depressed at least half the time and was unable to function well even
on good days. He also testified that the GAF scores he had assigned to Ms. Allen did not
accurately reflect the extent of her impairment and should have been lower.
Based on his treatment of Ms. Allen, Mr. Zautke also offered an opinion as to her
functional limitations. He concluded in March 2004 that she was unable to work due to severe
depression.

2

A GAF score is used to subjectively rate the social, occupational and psychological functioning
of adults on a scale of 1-100. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders 32 (4th ed. Text Revision 2000).
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Other physicians and psychologists also examined Ms. Allen and set forth their
conclusions as to her functional limitations and ability to work. In September 2004, Dr. Jones
examined Ms. Allen. She told him that her memory and concentration were poor but that she
was able to watch an entire television show without distraction. She also stated that she was able
to perform all her household chores and care for her three children, but that she preferred to let
other do these tasks. Dr. Jones found that she had a normal mood and affect as well as adequate
concentration and memory. He wrote that her depressive symptoms were under control with
treatment and ranged from very mild to moderate. Ultimately, he diagnosed her with bipolar
disorder and personality disorder and assigned her a GAF of 65.
Ms. Allen was examined by Dr. Bermudez, a neuropsychologist, in May 2005. She
complained of anxiety, depression and claustrophobia. Dr. Bermudez concluded that she was
functioning at a high level of cognitive efficiency. He also concluded that her drive and work
motivation was low and that her examination results showed a low level of motivation with
regard to treatment.
One month later, Dr. Diamond examined Ms. Allen. He stated that he spoke to Dr.
Gamblin, who told him that Ms. Allen cold not return to her old job but might be able to perform
other work. Based on his examination, Dr. Diamond concluded that she had a GAF of 58, no
impairment in her memory, but moderate impairment in activities of daily living, social
functioning, concentration, persistence, pace and adaptation. He stated that she was able to
perform full-time employment but that she was not motivated to look for work because she was
receiving private disability benefits. However, if motivated he felt she had a good chance of
returning to work.

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Dr. Manguso evaluated Ms. Allen and produced a neuropsychological report in June
2006. She found that:
[Ms. Allen’s] memory functions are average to low average. She does not show
any specific impairment in attention, information processing speed, visual spatial
skills, language functions, or executive functions that would suggest organic
cerebral impairment. However, she is functioning at a mildly reduced level of
cognitive efficiency at this time that is typical of individuals with
emotional/psychological disturbance. She is somewhat slow to take in and
remember new information (particularly detailed verbal information). When
attempting to solve novel problems or complete cognitively challenging tasks
requiring her to shift her mental set back and forth between two activities, she is
accurate but somewhat slow.
Dr. Olin evaluated Ms. Allen in July 2006 and concluded that she did not exhibit
significant memory or concentration deficiencies. He assigned her a GAF score of 58 and found
that she was moderately impaired in activities of daily living and her ability to maintain
concentration, persistence and pace. Dr. Olin also wrote in his report that her receipt of private
disability payments was a major barrier to her returning to work.
Dr. Ryan, a state agency psychiatrist, reviewed Ms. Allen’s medical records. Dr. Ryan
found that Ms. Allen had mild restriction of activities of daily living, moderate difficulties in
maintaining social functioning, concentration, persistence or pace, and no episodes of
decompensation. Her mental RFC assessmentwas that:
[Ms. Allen] understands, can follow instructions, accurate but slow. She retains
the ability to engage in work that does not require more than simple instructions,
ordinary routines, & simple work decisions. She should work in an environment
where she is not required to serve the general public, supervisors and coworkers
OK if not frequent or prolonged.
C. Ms. Allen’s Testimony
Ms. Allen testified at all three of her administrative hearings. In summary, she stated that
she was unable to work due to depression, poor concentration and memory problems. Three or
four days per week she was very depressed and stayed in her bedroom. This depression made
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routine household and personal care difficult. Occasionally, she went out to eat and watched
movies at home, but she had trouble concentrating. She did not go shopping due to
claustrophobia and the number of people around. She rarely left home alone and did so only to
go to medical appointments or to pick up her child from school.
D. June 2012 Hearing
Ms. Allen’s attorney questioned the vocational expert at the hearing based upon the
additional limitation this Court ordered included in the RFC, namely Ms. Allen’s slow pace in
following instructions:
Q: If the individual’s ability to perform tasks was at a very slow pace, how would
that impact these jobs?
A: Can you describe vocationally relevant slow pace? Would it be slowing things
down by a percentage or anything like that?
Q: Let’s say – I am assuming that if the pace was 50 percent slower, that would
eliminate jobs.
A: That’s right.
Q: If it were 20 percent lower, what would that do to the jobs?
A: It would eliminate jobs.
Q: And, so if it were 10 percent lower?
A: That’s borderline.
Q: Okay. And, if the limitation on working with the general public was no work
with the general public, what would that do with these jobs?
A: Nothing.
III.

Issues Presented
Ms. Allen raises four challenges to the Commissioner’s Decision: (1) the ALJ’s RFC

assessment is inconsistent with his adoption of Dr. Ryan’s opinions and contrary to the Remand
Order; (2) the ALJ improperly gave great weight to Dr. Ryan’s opinions because they were
unsigned; (3) the ALJ improperly rejected her treating physician’s opinions; and (4) substantial

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evidence does not support the ALJ’s adverse credibility finding. In light of the limited scope of
the Court’s March 2011 remand, the Court need only consider Ms. Allen’s first challenge.3
IV.

Standard of Review
Judicial review of the Commissioner of Social Security’s determination that a claimant is

not disabled within the meaning of the Social Security Act is limited to determining whether the
Commissioner applied the correct legal standard and whether the decision is supported by
substantial evidence. Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003); 42 U.S.C.
§ 405(g). “Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). On appeal, a reviewing court’s job is
neither to “reweigh the evidence nor substitute our judgment for that of the agency.” Branum v.
Barnhart, 385 f.3d 1268, 1270, 105 Fed. Appx. 990 (10th Cir 2004) (quoting Casias v. Sec’y of
Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)).
The ALJ cannot substitute a personal medical judgment for that of a physician or
psychologist. Winfrey v. Chater, 92 F.3d 1017, 1022 (10th Cir. 1996) (citing Kemp v. Bowen,
816 F.2d 1469, 1476 (10th Cir. 1987) (ALJ cannot interpose his own medical expertise over that
of a physician)).
The question of whether or not to award benefits is within this Court’s discretion.
Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993). In determining whether an award of
benefits is appropriate, “outright reversal and remand for immediate award of benefits is
appropriate when additional fact finding would serve no useful purpose.” Sorenson v. Bowen,
3

In the Court’s March 2011 oral ruling, arguments identical to Ms. Allen’s second, third and
fourth challenges were considered and rejected. As noted above, the Court remanded Ms.
Allen’s claim solely for “correction of the RFC to include reference to Claimant’s slow pace in
following instructions in accordance with Dr. Ryan’s opinion, and a new Step 5 determination
based upon the corrected RFC.” See Judgment of March 23, 2011.
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888 F.2d 706, 713 (10th Cir. 1989) (citations omitted). Reversal and remand for immediate
award of benefits is appropriate when “the record fully supports a determination that Plaintiff is
disabled as a matter of law and is entitled to the benefits for which he applied.” Id. at 713.
Ultimately, “[t]he [Commissioner] is not entitled to adjudicate a case ‘ad infinitum until it
correctly applies the proper legal standard and gathers evidence to support its conclusion.’” Sisco
v. U.S. Dept. of Health and Human Svcs., 10 F.3d 739, 745 (10th Cir. 1993) (citing Thaete v.
Shalala, 826 F.Supp. 1250, 1252 (D.Colo. 1993)).
V.

Discussion 
Ms. Allen contests the adequacy of the RFC finding in the latest Decision, in particular

the substitution of Dr. Ryan’s findings with regard to pace (as directed on the prior remand) with
findings that Ms. Allen was limited to “simple, unskilled tasks, involving a low stress
environment and contact with supervisors, co-workers and the general public that was neither
frequent nor prolonged.” 4 Ms. Allen argues that this RFC conflicted with both this Court’s
remand instructions and Dr. Ryan’s opinion. The Court agrees.
In March 2011, the Court reversed and remanded the Commissioner’s Decision solely
“for correction of the RFC to include reference to [Ms. Allen’s] slow pace in following
instructions in accordance with Dr. Ryan’s opinion, and a new Step 5 determination based upon
the corrected RFC.” The rationale for this remand was twofold: First, the ALJ purported to
adopt Dr. Ryan’s opinion, but then did not incorporate all those limitations outlined in Dr.
Ryan’s opinion. Second, a “slow pace in following instructions” could significantly impact the
type of work Ms. Allen was able to perform.
4

Ms. Allen also argues that the RFC failed to include an additional limitation prohibiting all
public contact. Even if the ALJ erred in failing to include this limitation, any error was harmless.
The vocational expert testified at the June 2012 hearing that a limitation on all public contact
would not affect Ms. Allen’s ability to perform those jobs the vocational expert listed.
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Despite this Court’s instructions, the ALJ did not include Dr. Ryan’s complete opinion in
the new RFC finding or present it to a vocational expert. Instead, the ALJ reached behind Dr.
Ryan’s opinion (which had been adopted in the prior Decision), and essentially rejected
restrictions as to pace based on other medical records. Thus, the ALJ changed the limitation as
to pace of work, to a limitation with regard to conditions in the working environment – the new
limitation was to “a low stress environment.”
Putting aside the Claimaint’s indignation at the failure of the ALJ to follow the remand
order, the question is whether the new limitation reflects the limits contained in Dr. Ryan’s
opinion. The Court concludes that it does not.
A limitation to work in “a low stress environment” is not the same as a limitation with
regard to a “slow pace in following instructions”. The former pertains to the working
environment and the latter relates to the speed at which the tasks are performed. Although the
Court appreciates the ALJ’s effort in trying to understand what Dr. Ryan meant based on medical
records that Dr. Ryan reviewed. However, such interpretation injected the ALJ’s lay opinion
into the RFC and effectively perpetuated the problem with the prior Decision – purported
adoption of Dr. Ryan’s opinions without including all of them in the RFC.
The second Decision was reversed and remanded because the ALJ purported adopted Dr.
Ryan’s RFC opinion but inexplicably left out the “slow pace in following instructions”
limitation. See March 22, 2011 Hearing Transcript at 30-31. Rather than simply adopting the
entirety of Dr. Ryan’s opinion as instructed, however, the ALJ looked behind Dr. Ryan’s opinion
and made an independent assessment about Ms. Allen’s limitations based on other medical
reports. Essentially, the ALJ substituted the portion of Dr. Ryan’s opinion that had been omitted
in the earlier Decision with the ALJ’s personal opinion. This was impermissible. Winfrey v.

12

Chater, 92 F.3d at 1022 (the ALJ cannot substitute a personal medical judgment for that of a
physician).
The error is not harmless. As is evident in the testimony of the vocational expert, pace
limitations affect Ms. Allen’s ability to perform the three jobs the vocational expert - escort
vehicle driver, retail marker and assembler. See Hearing Transcript of March 22, 2011 at 31.
When Ms. Allen’s attorney asked the vocational expert about the impact of a “slow pace”
limitation on her ability to perform these jobs, the vocational expert testified that a 50% and 20%
reduction in pace would prevent Ms. Allen from performing these jobs, and even a 10%
reduction would be “borderline.” See Administrative Hearing Transcript of June 27, 2012 at 24.
In light of the ALJ’s error, the Court REVERSES the Commissioner’s Decision to deny
benefits. In light of the testimony of the vocational expert that reduction in pace, even at 10%,
would impair Ms. Allen’s ability to perform the jobs specified, the Court REMANDS the matter
for an immediate award of benefits. Upon application made within 14 days, Ms. Allen shall be
entitled to an award of reasonable attorney fees pursuant to the EAJA The Clerk shall enter a
Judgment in accordance herewith.
DATED this 18th day of December, 2013.
BY THE COURT:

Marcia S. Krieger
United States District Judge

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