Rustad v. Astrue

Filing 18

ORDER. ORDERED that the decision of the Commissioner that plaintiff was not disabled is REVERSED and REMANDED for further proceedings consistent with this opinion by Judge Philip A. Brimmer on 11/04/14. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-03117-PAB
JOHN RUSTAD,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER

This matter is before the Court on plaintiff John Rustad’s complaint [Docket No.
1] filed on November 29, 2012. Plaintiff seeks review of the final decision of defendant
Carolyn W. Colvin (the “Commissioner”)1 denying plaintiff’s claim for disability insurance
benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-433. 2
I. BACKGROUND
On June 10, 2009, plaintiff applied for disability benefits under Title II of the Act.
R. at 12. Plaintiff alleged that he had been disabled since March 1, 2007. Id. After an
initial administrative denial of his claim, plaintiff appeared at a hearing before an
Administrative Law Judge (“ALJ”) on April 28, 2011. Id. On July 14, 2011, the ALJ
issued a decision denying plaintiff’s claim. Id. at 21.
1

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W.
Colvin, who as of February 14, 2013 has been named as the Acting Commissioner, is
automatically substituted for Michael J. Astrue as the defendant in this suit.
2

The Court has determined that it can resolve the issues presented in this matter
without the need for oral argument.

The ALJ found that plaintiff had the following severe impairments:
glomerulonephritis, hemochromatosis and membranous nephropathy. R. at 14. The
ALJ found that these impairments, alone or in combination, did not meet one of the
regulations’ listed impairments, id., and ruled that plaintiff had the residual functional
capacity (“RFC”) to:
perform light work as defined in 20 C.F.R. § 404.1567(b) except that he can lift
and carry 20 pounds occasionally and 10 pounds frequently, sit for 2 hours at a
time and 6 hours in an 8 hour work day, stand and walk each for 1 hour at a
time, for a combined total of 6 hours in an 8 hour work day, operate foot controls
occasionally bilaterally, requires regular breaks (at approximately every two hour
point, thus with the opportunity to shift positions every 2 hours); does not require
an assistive device, can occasionally climb ramps and stairs, never climb ladders
or scaffolds, can frequently balance and kneel, occasionally stoop, crouch and
crawl and must avoid concentrate [sic] exposure to extreme cold, extreme heat
and to fumes and odors.
R. 16. Based upon this RFC and in reliance on the testim ony of a vocational expert
(“VE”), the ALJ concluded that, through the last date the plaintiff was insured, “there
were jobs that existed in significant numbers in the national economy” that plaintiff
could have performed. R. at 20.
The Appeals Council denied plaintiff’s request for review of this denial. R. at 1.
Consequently, the ALJ’s decision is the final decision of the Commissioner.
II. ANALYSIS
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). T he district court may not reverse
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an ALJ simply because the court may have reached a different result based on the
record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence 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). T he district
court will not “reweigh the evidence or retry the case,” but must “meticulously examine
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, 515
F.3d at 1070. Nevertheless, “if the ALJ failed to apply the correct legal test, there is a
ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
[a]n individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
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exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and
(5) whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point in
the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of
Health and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisf ied her burden of
establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the residual functional capacity
(RFC) to perform other work in the national economy in view of her age, education, and
work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). W hile the claimant has the
initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform
himself about facts relevant to his decision and to learn the claimant’s own version of
those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).

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C. The ALJ’s Decision
Plaintiff argues that the ALJ erred in (1) evaluating plaintiff’s treating physician’s
opinions of disability; (2) assessing plaintiff’s RFC; and (3) determining that plaintiff was
not credible. Docket No. 12 at 5. Plaintiff also argues that the Commissioner erred in
failing to take into account supplemental materials from Dr. Block and another treating
physician, Dr. Mooney, that were submitted to the appeals council. Id. at 10.
Defendant responds that the Court should def er to the ALJ’s decision to give
substantial weight to the testifying expert based on the expert’s qualifications. Docket
No. 13 at 9.
The relevant evidence of record is as follows. Plaintiff claimed that he became
unable to work on March 1, 2007 due to glomerulonephritis,3 hemochromatosis,4 and
high blood pressure. R. at 154, 177. Plaintif f was diagnosed with kidney disease in
1996, id. at 250, and was able to work through early 2007. Id. at 159. In December
2006, plaintiff saw Dr. Geoffrey Block, a kidney specialist, and reported that he had not
been feeling well for the past three months. Id. at 385. Specifically, plaintiff
complained of fatigue, occasional mild leg swelling, headaches, and feeling cold. Id.
During that time, plaintiff stopped working. Id. Dr. Block reported that plaintiff was not
experiencing a flare of his kidney disease due to high albumin levels and had no leg
3

Glomerulonephritis is “renal disease characterized by diffuse inflammatory
changes in glomeruli that are not the acute response to inf ection of the kidneys.”
Stedman’s Medical Dictionary glomerulonephritis (27th ed. 2000).
4

Hemochromatosis is a “disorder of iron metabolism characterized by excessive
absorption of ingested iron, saturation of iron-binding protein, and deposition of
hemosiderin in tissue, particularly in the liver, pancreas, and skin.” Stedman’s Medical
Dictionary hemochromatosis (27th ed. 2000).
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swelling. Id. Dr. Block recommended that plaintiff lose weight. Id. Dr. Block ordered
no change in plaintiff’s medications. Id.
In April 2007, plaintiff saw his primary care physician, Dr. Robert Carson. R. at
250. At that visit, plaintiff reported that he had been “doing well,” but noted an episode
of fatigue the previous November. Id. As of the April 2007 visit, plaintiff was
experiencing no headaches, dizziness, or lightheadedness. Id. Plaintiff did report
occasional edema.5 Dr. Carson noted that plaintiff was on “appropriate medications” for
his kidney disease and that his hemochromatosis was stable and his hypertension was
“fairly well controlled.” Id. at 251.
In May 2007, plaintiff reported to Dr. Block that he felt “a lot better” than he did
during his December 2006 visit. R. at 382. Plaintiff still complained of fatigue, but
“denie[d] any other systemic symptoms” and had no leg swelling. Id. Dr. Block noted
“falling albumin” that he found concerning, but said that it was unclear if plaintiff was
experiencing a flare of his kidney disease or whether his lab results were “the long term
consequence of having glomerular injury.” Id. at 384. Dr. Block placed plaintiff on a
new medication. Id.
In September 2007, plaintiff told Dr. Block that he was doing “extremely well.” R.
at 379. Plaintiff said that he did not tolerate the new medication and was not taking it.
Id. Dr. Block noted that plaintiff had no urinary symptoms and no leg swelling, id., and
that he believed that plaintiff was experiencing a “hyperfiltration/loss of renal mass

5

Edema is “an accumulation of an excessive amount of watery fluid in cells or
intercellular tissues” or “swelling.” Stedman’s Medical Dictionary edema (27th ed.
2000).
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issue” rather than a flare of his kidney disease. Id. at 381.
Plaintiff next saw Dr. Block in January 2009. R. at 375. At that visit, he reported
“generally feeling well” except for a lack of energy. Id. Dr. Block noted that while
plaintiff was experiencing “variability in his urine protein and a modest but stable
decrease in his serum albumin,” he had no other symptoms of severe kidney disease,
and his condition was either “modestly active membranous nephropathy” or the “result
of hyperfiltration injury” due to plaintiff’s fourteen years of chronic kidney disease. Id. at
377. Dr. Block noted that plaintiff’s condition was “very stable” and that he “lack[ed] []
symptoms.” Id.
In February 2009, plaintiff experienced a “relapse” in his kidney disease, and Dr.
Block altered his medication. R. at 373. The following month, Dr. Block reported an
“excellent decrease in [plaintiff’s] urine protein” in response to the new medication. Id.
at 368.
In March 2010, Dr. Block wrote a letter in which he discussed plaintiff’s ability to
work. R. at 422. Dr. Block stated that plaintiff’s disease is “characterized by often
severe leg swelling and fatigue,” and that plaintiff is “at risk for development of a blood
clot related to the heavy loss of protein in his urine.” Id. Dr. Block further wrote that
plaintiff would need “frequent unscheduled breaks during the day” to minimize the risk
of leg swelling, and that he “should not perform activities which would require prolonged
periods of immobilization (at a desk or in a chair) as this can be a predisposing risk for
blood clots.” Id. The next month, Dr. Block wrote a second letter that specified that
plaintiff “should not be on his feet in an eight hour work situation for more than two

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hours out of the eight, and should not be on his feet for more than thirty minutes at any
one time” due to “fatigue and the increased risk of swelling.” Id. at 434.
On April 20, 2011, state agency reviewing physician Karl Chambers completed a
Physical Residual Functional Capacity Assessment. R. at 464-471. Dr. Chambers
opined that “[t]jhe degree of limitation of ambulation by [Dr. Block] is not supported by
the overall clinical findings” and that Dr. Block’s opinion was therefore not entitled to full
weight. Id. at 471. Dr. Chambers further opined that plaintiff was able to stand and
walk for a total of four hours per day. Id. at 466.
At the hearing on plaintiff’s disability application, state medical expert Alan
Coleman testified at length about plaintiff’s condition. See R. at 35-37, 39-54. Dr.
Coleman specializes in internal medicine with a sub-specialty in nephrology. Id. at 45.
Dr. Coleman never treated plaintiff, id. at 36, and based his opinion on a review of
plaintiff’s medical records. See generally id. at 39-43. Dr. Coleman testified that while
plaintiff had “lost some kidney function,” he “hasn’t lost enough kidney function for it to
affect his health or to threaten him with a need for dialysis or transplantation.” Id. at 40.
Dr. Coleman testified that patients with membranous nephropathy generally fall into
three categories: about a third of patients get over the condition spontaneously within a
few years, about a third develop progressive kidney failure, and the final third “seem[] to
be fairly stable. They don’t get better and they don’t get worse[.]” Id. Dr. Coleman
opined that plaintiff was in the third, stable group. Dr. Coleman further explained that
when plaintiff’s condition is serious, patients “have enormous edema” whereas plaintiff’s
record indicated that he had only mild to moderate edema. Id. at 41. With respect to

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plaintiff’s ability to work, Dr. Coleman opined that plaintiff is “functioning at a level of
light activity” and could operate with “no limitations on standing and walking or sitting”
and that any limitations were “self-imposed because of [plaintiff’s] concern that his legs
are going to swell.” Id. at 48. With respect to fatigue, Dr. Coleman stated that plaintiff’s
disease “at this level doesn’t cause fatigue as far as we understand it.” Id. at 50.
The ALJ gave Dr. Block’s opinions “little weight” at step three, finding that the
opinions spoke generally about the symptoms associated with plaintiff’s disease, but
“did not say that [plaintiff] actually had these symptoms.” R. at 16. The ALJ further
noted an “absence of objective medical signs and findings” that plaintiff is “actually
manifesting severe leg swelling or fatigue.” Id. Conversely, the ALJ found that Dr.
Coleman’s assessment was “amply supported by the objective medical evidence” and
therefore gave it “great weight.” Id. at 15. The ALJ further found that plaintiff was not
credible as to the “intensity, persistence and limiting effects” of the symptoms of his
disease. Id. at 17.
1. Weighing Dr. Block’s Opinion
Plaintiff first argues that the ALJ erred by making a determination as to the
respective weight given to Dr. Block’s and Dr. Chambers’ opinions at the third step in
his evaluation rather than at the RFC stage. Docket No. 12 at 10-11.
The opinion of a treating physician is generally entitled to greater weight than
that of a non-treating physician because of the unique perspective derived from a
treating relationship. 20 C.F.R. § 404.1527(c)(2). Thus, an ALJ must accord controlling
weight to the opinion of a treating physician where that opinion is “well-supported by

9

medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence” in the record. Id. Moreover, the
opinion of a treating physician merits some measure of deference to be determined
based on an application of the factors listed in 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii). “The
ALJ must give specific, legitimate reasons for disregarding the treating physician’s
opinion that a claimant is disabled.” Goatcher v. U.S. Dep’t of Health & Human Servs.,
52 F.3d 288, 290 (10th Cir. 1995).
As “findings of a nontreating physician based upon limited contact and
examination are of suspect reliability,” Frey v. Bowen, 816 F.2d 508, 515 (10th Cir.
1987), when such findings conflict with the opinions of a treating physician, the ALJ
must examine the nontreating physician’s report “to see if it outweighs the treating
physician’s report, not the other way around.” Hamlin v. Barnhart, 365 F.3d 1208, 1219
n.13 (10th Cir. 2004) (citations omitted). “Unless a treating source’s opinion is given
controlling weight, the administrative law judge must explain in the decision the weight
given to the opinions of a State agency medical or psychological consultant.” 20 C.F.R.
§ 404.1527(e)(2)(ii).
The ALJ declined to give Dr. Block’s opinion controlling weight and gave specific
reasons for disregarding Dr. Block’s opinions concerning plaintiff’s risk of leg swelling.
R. at 16. The ALJ concluded that Dr. Block’s opinions constituted “literary obfuscation”
because his letters focused on symptoms associated with plaintiff’s condition rather
than the symptoms that plaintiff himself exhibited. See id. The ALJ further specified
that he gave Dr. Coleman’s opinion “great weight” because it was “amply supported by

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the objective medical evidence of record.” R. 15. While the ALJ performed this
analysis at step three of the five-step process and not at the RFC stage, the ALJ’s
decision was “sufficiently specific to make clear to any subsequent reviewers the weight
the adjudicator gave to the treating source’s medical opinion and the reasons for that
weight.” Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).
Plaintiff also argues that the ALJ ignored Dr. Block’s opinion about plaintiff’s
inability to perform work that required long periods of immobilization due to the risk of
blood clots. Docket No. 12 at 30; R. at 422. Def endant argues that the ALJ, in
formulating his RFC determination, “acknowledged certain limitations suggested by Dr.
Block, such as the requirement that Plaintiff avoid ‘prolonged periods of immobilization
(at a desk or in a chair)’ that might increase his risk for blood clots.” Docket No. 13 at
14. Plaintiff, however, correctly points out that “the ALJ never addressed the issue of
blood clots.” Docket No. 14 at 9 n.1; see R. at 14-21. Moreover, Dr. Coleman’s
testimony was silent as to plaintiff’s risk of blood clots and any limitations it might place
on his ability to perform work. See R. at 35-37, 39-54.
The Court finds that the failure to consider Dr. Block’s opinion as to plaintiff’s risk
for blood clots is grounds for remand. Although the ALJ is “not required to discuss
every piece of evidence,” he must “discuss the uncontroverted evidence he chooses not
to rely upon, as well as significantly probative evidence he rejects.” Clifton v. Chater, 79
F.3d 1007, 1009-10 (10th Cir. 1996) (citing Vincent ex rel. Vincent v. Heckler, 739 F.2d
1393, 1394-95 (9th Cir. 1984)). Dr. Block’s opinion that plaintif f’s condition required him
to avoid prolonged periods of immobilization is uncontroverted and at odds with the
ALJ’s RFC determination. Whereas Dr. Block opined that plaintiff must avoid prolonged
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periods of immobilization, the ALJ found that plaintiff was able to sit for six hours in an
eight hour day. R. at 16. The Court cannot determine that the ALJ’s failure to discuss
uncontroverted evidence relevant to this determination was harmless error.
2. RFC Determination
Plaintiff argues that the ALJ erred by failing to address Dr. Chambers’ opinion
that plaintiff was limited to four hours standing and walking in a day. Docket No. 12 at
23.6 Notwithstanding defendant’s assertion that plaintiff’s argument is “not fully
developed,” Docket No. 13 at 16, plaintiff is correct that the ALJ erred in failing to
discuss Dr. Chambers’ opinion. Dr. Chambers’ opinion differs materially from the ALJ’s
RFC finding. Compare R. at 466 (finding that plaintiff could stand and walk for four
hours) with id. at 16 (finding plaintiff can “stand and walk . . . for a combined total of 6
hours in an 8 hour work day”). The ALJ’s RFC determination is silent as to the weight it
put on Dr. Chambers’ opinion, and the ALJ’s findings instead appear to be based on his
assessment of plaintiff’s credibility as well as his review of Dr. Block’s opinion, which
stated that plaintiff could not be on his feet more than two hours in an eight hour day.
See generally id. at 17-19. This falls short of the requirement that the ALJ “explain
how any material inconsistencies or ambiguities in the evidence in the case record were

6

Plaintiff also argues that the ALJ erred in failing to take into account any of the
records of his primary care physician, Dr. Carson. Docket No. 14 at 3. Plaintiff has not
demonstrated that this is harmful error. Plaintiff says only that “Dr. Carson’s records
contain evidence consistent with and supporting Dr. Block’s opinions.” Id. Plaintiff
points to no evidence in Dr. Carson’s records, and the Court sees none, that w ould tend
to disprove the ALJ’s determination that plaintiff’s symptoms of leg swelling and fatigue
associated with his condition were mild and would not interfere with his ability to work.
Clifton v. Chater, 79 F.3d at 1009-10 (“an ALJ is not required to discuss every piece of
evidence”).
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considered and resolved.” SSR 96-8p, 1996 WL 374184 at *7 (July 2, 1996).
Plaintiff also argues that the ALJ’s determination regarding plaintiff’s ability to
perform a wide range of light occupations was not supported by the testimony of the VE
at the hearing. Docket No. 12 at 30. Indeed, the Court f inds substantial differences
between the ALJ’s RFC determination and the hypothetical posed to the VE, the
answer to which provided the basis for the ALJ’s determination that a significant
number of jobs existed in the national economy that plaintiff could have performed.
Specifically, the ALJ found that plaintiff would require “regular breaks (at approximately
every two hour point)” and “the opportunity to shift positions every 2 hours.” R. at 16.
However, the hypothetical posed to the VE made no mention of regular breaks or the
opportunity to shift positions at will. See generally id. at 73-75.7 Based on this
hypothetical, the VE found that plaintiff could perform the duties of a cashier. Id. at 75.
The failure to mention plaintiff’s need for breaks supports the need for remand.
Blevins v. Astrue, 2011 WL 843961 at *9 (D. Kan. Mar. 8, 2011) (remanding where “the
RFC . . . required that [p]laintiff should be able to shift positions at will, but that
requirement was not even suggested to the VE”) (internal citations and quotation
omitted); Gay v. Sullivan, 986 F.2d 1336, 1340 (10th Cir. 1993) (“testimony elicited by
hypothetical questions that do not relate with precision all of a claimant’s impairments
cannot constitute substantial evidence to support the Secretary’s decision”) (citations
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Although the ALJ did not ask the VE whether the ability to shift positions at will
precluded employment, he did ask whether plaintiff could perform the job of cashier if
he had to elevate his legs fifteen minutes per hour. Id. at 75. The VE responded that
this limitation would eliminate not only the job of cashier, but any other employment
possibility as well. Id. The ALJ did not include the requirement that plaintiff elevate his
legs in his RFC determination.
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and quotations omitted). This is particularly true here, since the testimony that the VE
did provide on the issue of breaks suggests that plaintiff’s need for frequent
unscheduled breaks may preclude him from obtaining employment. When asked
whether a need for “four or five unscheduled breaks a day” would preclude plaintiff from
performing light work, the VE responded that he “[does not] know of any employer
who’s going to put up with that”). R. at 79.
In light of the aforementioned errors, the ALJ’s decision will be reversed and
remanded. The ALJ’s consideration of Dr. Block’s opinion with respect to plaintiff’s risk
of blood clots, Dr. Chambers’ opinion on the limitations on plaintiff’s ability to stand and
walk, and the VE’s answer to a hypothetical consistent with plaintiff’s RFC will provide
the ALJ with the opportunity to reassess the totality of evidence supporting plaintiff’s
RFC. Therefore, the Court will not address plaintiff’s arguments that the ALJ erred in
determining that plaintiff was not credible as to the severity of his symptoms and that
the opinion of Dr. Mooney was ignored by the appeals council. See Watkins v.
Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“W e will not reach the remaining
issues raised by appellant because they may be affected by the ALJ’s treatment of this
case on remand”).
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff was not disabled
is REVERSED and REMANDED for further proceedings consistent with this opinion.

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DATED November 4, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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