Longgrear v. Astrue
ORDER Reversing Disability Decision and Remanding to Commissioner. By Judge Robert E. Blackburn on 3/13/2014. (klyon, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00238-REB
AMALIA Q. LONGGREAR,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
ORDER REVERSING DISABILITY
DECISION AND REMANDING TO COMMISSIONER
The matter before me is plaintiff’s Complaint [#1],1 filed January 30, 2013,
seeking review of the Commissioner’s decision denying plaintiff’s claim for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. I
have jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g).
The matter has been fully briefed, obviating the need for oral argument. I reverse and
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she is disabled as a result of depression, anxiety, right upper
extremity tendonitis, and epicondylitis. After her application for disability insurance
benefits was denied, plaintiff requested a hearing before an administrative law judge.
“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.
This hearing was held on June 16, 2011. At the time of the hearing, plaintiff was 42
years old. She has high school education and past work experience as a sales
attendant, assembler, and brazer assembler. She has not engaged in substantial
gainful activity since March 22, 2007, her alleged date of onset.
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits. Although the medical evidence established that plaintiff
suffered from severe impairments, the judge concluded that the severity of those
impairments did not meet or equal any impairment listed in the social security
regulations. The ALJ found that plaintiff had the residual functional capacity to perform
a range of unskilled work at the medium level of exertion with various additional postural
and non-exertional restrictions. Although this finding precluded plaintiff’s past relevant
work, the ALJ concluded that there were jobs existing in significant numbers in the
national and local economies that she could perform. The ALJ therefore found plaintiff
not disabled at step five of the sequential evaluation. Plaintiff appealed this decision to
the Appeals Council. The Council affirmed. Plaintiff then filed this action in federal
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if her
physical and/or mental impairments preclude her from performing both her previous
work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a five-step sequential evaluation process for
determining whether a claimant is disabled:
The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.
The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.
The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.
If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.
If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
20 C.F.R. § 404.1520(b)-(f). See also Williams v. Bowen 844 F.2d 748, 750-52 (10th
Cir. 1988). The claimant has the initial burden of establishing a disability in the first four
steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294
n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that
the claimant is capable of performing work in the national economy. Id. 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. Secretary of Health & Human Services, 933
F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “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 reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
III. LEGAL ANALYSIS
Plaintiff alleges that the ALJ improperly assessed the medical source opinions of
record with respect to her physical impairments, failed to adequately develop the record
with respect to her mental impairments, and improperly discredited her subjective
reports of pain. Although I find no reversible error with respect to the ALJ’s assessment
of plaintiff’s physical residual functional capacity, I conclude that the ALJ erred in failing
to order a consultative examination to substantiate her determination of plaintiff’s mental
residual functional capacity, and therefore reverse.2
With respect to her physical residual functional capacity, plaintiff argues that the
ALJ improperly failed to consider the opinion of plaintiff’s treating doctor that plaintiff
was capable of sedentary work and that she further failed to explain the apparent
discrepancy between the lifting and handling restrictions she imposed and the opinion of
a consultative examiner. Assuming arguendo that error occurred in these respects, the
fact remains that one of the jobs identified by the vocational expert and relied on by the
ALJ to support her step 5 determination was sedentary and required no handling. (See
Tr. 20, 51 (discussing job of surveillance system monitor).) Although plaintiff maintains
that remand is still required to assess whether this job exists in significant numbers, see
Trimiar v. Sullivan, 966 F.2d 1325, 1330 (10th Cir. 1992), there was no reversible error
in this regard, see Bernal v. Bowen, 851 F.2d 297, 303 (10th Cir. 1988). While plaintiff
focuses myopically on the relatively low number of such jobs in Colorado, the Tenth
Circuit has made clear that “the controlling statutes, federal regulations, and case law all
Because I find the failure to order a mental consultative examination sufficient to warrant
remand, I do not consider plaintiff’s additional argument regarding the ALJ’s assessment of her credibility.
See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the remaining issues
raised by appellant because they may be affected by the [administrative law judge's] treatment of the case
on remand.”); accord Gorringe v. Astrue, 898 F.Supp.2d 1220, 1225 (D. Colo. 2012); Barthel, ex rel.
T.M.B. v. Astrue, 2009 WL 2476601 at *10 (W.D. Okla. Aug. 11, 2009).
indicate that the proper focus generally must be on jobs in the national, not regional,
economy.” Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009). Plaintiff does
not argue that the number of these jobs available nationally (13,500), either alone or
combined with those available regionally, does not constitute a significant number, nor
would such an argument have merit.
However, with respect to the ALJ’s assessment of plaintiff’s mental residual
functional capacity, I do perceive reversible error. The record clearly contains evidence
suggesting that plaintiff suffers from and has received treatment for anxiety and
depression (see Tr. 356-371, 403-420), and the ALJ herself concluded that these
impairments constituted severe impairments (see Tr. 12). Based on the language of the
Social Security Act itself, the Tenth Circuit has held that
when the record contains evidence of a mental impairment,
the Secretary cannot determine that the claimant is not
under a disability without first making every reasonable effort
to ensure that a qualified psychiatrist or psychologist has
completed the medical portion of the case review and any
applicable residual functional capacity assessment.
Andrade v. Secretary of Health and Human Services, 985 F.2d 1045, 1049 (10th Cir.
1993) (citing 42 U.S.C. § 421(h)). Although the regulations allow the ALJ to complete
the documents required to properly assess mental impairments herself,3 the ALJ may
The Andrade court thoroughly outlined the relevant procedures prescribed by regulation:
Social security regulations specify that a special procedure must be
followed when evaluating a mental impairment. See 20 C.F.R. §§
404.1520a & 416.920a. Part of this procedure entails recording pertinent
information on a standard document. Id. §§ 404.1520a(d) & 416.920a(d).
When a claimant's severe mental impairment does not meet a listed
mental impairment, the standard document must include an assessment
of the residual functional capacity. Id. §§ 404.1520a(c)(3) &
416.920a(c)(3). The document must be completed at the “initial,
do so only where there is other substantial evidence of record to support the ALJ’s
determination regarding the extent of the claimant’s mental impairment. Id. at 1049-50
(contrasting facts of that case with those considered in Bernal, 851 F.2d at 302-03).
See also Miller v. Astrue, 2008 WL 686963 at *9-10 (N.D. Fla. Feb. 6, 2008)
(reviewing cases to distinguish when medical opinion on mental impairments is
required), adopted, 2008 WL 740326 (N.D. Fla. March 12, 2008).
The ALJ noted plaintiff’s request that she order a consultative examination based
on the recommendation of consultative examiner Dr. Benjamin Loveridge, at the
conclusion of his assessment of plaintiff’s physical capacities, to “[r]efer specific
psychiatric recommendations to the appropriately trained mental health specialist.” (Tr.
395.) In this same document, however, Dr. Loveridge also stated that he “[w]ould
recommend no psychiatric evaluation.” (Tr. 395.) The ALJ seized on this latter
statement, together with Dr. Loveridge’s report that plaintiff scored 28 out of 30 on a
“mini mental status examination” (see Tr. 395), to deny the request for a consultative
In so doing, the ALJ erred. The ALJ has a duty, even where a claimant is
represented by counsel, to adequately develop the record. See Hawkins v. Chater,
reconsideration, administrative law judge hearing, and Appeals Council
levels.” Id. §§ 404.1520a(d) & 416.920a(d). At the initial and
reconsideration levels, the document must be completed and signed by a
medical consultant. Id. §§ 404.1520a(d)(1) & 416.920a(d)(1). The ALJ,
however, may complete the document without the assistance of a
medical advisor. Id. §§ 404.1520a(d)(1)(i) & 416.920a(d)(1)(i). When the
issue of a mental impairment arises for the first time at the ALJ hearing
level, the ALJ may choose to remand the case to the State agency for
completion of the document and for a new disability determination. Id. §§
404.1520a(d)(1)(iii) & 416.920a(d)(1)(iii).
Andrade, 985 F.2d at 1049.
113 F.3d 1162, 1164 (10th Cir. 1997); Henrie v. United States Department of Health &
Human Services, 13 F.3d 359, 360-61 (10th Cir. 1993). The very ambiguity in Dr.
Loveridge’s recommendations regarding whether a psychiatric evaluation was indicated
suggests at the very least that the ALJ should have sought clarification of his opinion.
See 20 C.F.R. § 1519p(b). See also Social Security Ruling 96-5p,1996 WL 374183
at *6 (SSA July 2, 1996).
Moreover, although Dr. Loveridge’s medical specialty is not apparent from the
record, his suggestion that plaintiff be referred “to the appropriately trained mental
health specialist” clearly implies that he is not such a specialist himself. In light of that
fact, the ALJ’s reliance on Dr. Loveridge’s suggestion that no mental health evaluation
was necessary is extraordinarily tenuous. Likewise, the bare statement that plaintiff
scored “28/30 with 2 points off for recall” on a “mini mental status exam” is too slender a
reed on which to conclude that plaintiff had no significant mental limitations as a result
of her mental impairments. The record contains nothing describing the test or its
purpose or otherwise outlining the parameters thereof. It therefore is not at all apparent
what plaintiff’s score on this test indicates about her mental capacity to do work-related
It appears that the ALJ may have felt confident in denying the request to further
develop the record due to her own assessment of plaintiff’s credibility regarding the
limitations of her mental impairments. (See Tr. 15-16 (noting that plaintiff’s anxiety was
well-controlled on medication, that she was noncompliant with repeated
recommendations to seek counseling, and that she was able to travel abroad despite
her professed anxiety at leaving the house and being in a crowd).) However, the ALJ’s
own disbelief of a plaintiff’s subjective reports, while not irrelevant, is not a sufficient
substitute for medical evidence. Although residual functional capacity ultimately is an
administrative determination reserved to the Commissioner, 20 C.F.R. § 404.1546;
Rutledge v. Apfel, 230 F.3d 1172, 1175 (10th Cir. 2000), “based on all of the relevant
medical and other evidence,” 20 C.F.R. § 404.1545(a)(3), “including medical records,
observations of treating physicians and others, and plaintiff's own description of his
limitations,” Noble v. Callahan, 978 F.Supp. 980, 987 (D. Kan. 1997), the ALJ’s
determination still must be grounded in some medical evidence, Anderson v. Shalala,
51 F.3d 777, 779 (8th Cir. 1995).4
Accordingly, substantial evidence does not support the ALJ’s decision not to
order a consultative examination or otherwise further develop the record regarding the
functional limitations occasioned by plaintiff’s mental impairments. Remand therefore is
required. Although plaintiff requests a directed award of benefits, I find it would not be
proper to exercise my discretion in that regard under the circumstances of this case.
See Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th Cir. 1993).5
Nor does the ALJ’s limitation of plaintiff to unskilled work save her failure to adequately develop
the record in this regard. There is no direct correlation between the skills necessary to do a job and the
mental demands of that same job. See Chapo v. Astrue, 682 F.3d 1285, 1290 n.3 (10th Cir. 2012) (noting
that limitation to unskilled work “just accounted for issues of skill transfer, not impairment of mental
functions – which are not skills but, rather, general prerequisites for most work at any skill level”) (citation
and internal quotation marks omitted).
By this decision, I do not find or imply that plaintiff is or should be found to be disabled.
THEREFORE, IT IS ORDERED as follows:
1. That the conclusion of the Commissioner through the Administrative Law
Judge that plaintiff was not disabled is REVERSED;
2. That this case is REMANDED to the ALJ, who is directed to
Order a consultative examination to provide evidence relevant to a
proper determination of plaintiff’s mental residual functional
Recontact any treating or examining source, seek the testimony of
medical experts, solicit further vocational expert testimony, or
otherwise further develop the record as she deems necessary;
Reevaluate plaintiff’s mental residual functional capacity; and
Reassess the disability determination; and
3. That plaintiff is AWARDED her costs, to be taxed by the clerk of the court
pursuant to Fed. R. Civ. P. 54(d)(1), D.C.COLO.LCivR 54.1, and 28 U.S.C.
Dated March 13, 2014, at Denver, Colorado.
BY THE COURT:
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