Schuster v. Colvin

Filing 23

ORDER Vacating Administrative Law Judge's Decision and Remanding Case to the Commissioner for re-hearing, by Judge William J. Martinez on 2/28/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-0718-WJM
TIFFANY SCHUSTER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration
Defendant.

ORDER VACATING ADMINISTRATIVE LAW JUDGE’S DECISION AND
REMANDING CASE TO COMMISSIONER

This is a social security benefits appeal brought under 42 U.S.C. § 405(g).
Plaintiff Tiffany R. Schuster (“Plaintiff”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”), denying her application for
supplemental security income benefits. The denial was affirmed by an administrative
law judge (“ALJ”), who ruled Plaintiff was not disabled within the meaning of the Social
Security Act (“Act”). This appeal followed.
For the reasons set forth below, the ALJ’s decision denying Plaintiff’s application
for supplemental social security income benefits is vacated, and the case is remanded
to the Commissioner for rehearing.
I. BACKGROUND
Plaintiff was born on May 14, 1963 and was 42 years old on the alleged disability
onset date. (Admin. Record (“R.”) (ECF No. 10) at 12, 22.) Plaintiff claimed disability
due to reflex sympathetic disorder, fibromyalgia, acid reflux, bone spurs in her feet, back

pain, and swelling in her leg, hands and fingers. (R. at 12.) Plaintiff has a high school
education and prior work experience as “a secretary, cashier, cafeteria cook, kitchen
helper, fast food worker and teacher’s assistant.” (R. at 22.)
Plaintiff filed an application for supplemental security income on June 5, 2007,
after having previously been denied benefits in 2005. (R. at 12, 251.) The application
was denied on November 2, 2007 and, upon a request for a hearing, her claims were
heard by ALJ Kathryn D. Burgchardt on December 16, 2009. (R. at 91.) The ALJ found
that Plaintiff was not disabled and denied her claim on March 23, 2010. (R. at 100.)
The Appeals Council remanded the case to the ALJ for re-hearing. (R. at 107.) The
ALJ held a second hearing on May 30, 2012. (R. at 12.) Plaintiff and vocational expert
Bruce Magnuson testified at the second hearing. (Id.)
On June 8, 2012, the ALJ issued a written decision in accordance with the
Commissioner’s five-step sequential evaluation process.1 (R. at 12-24.) At step one,
the ALJ found that Plaintiff had not engaged in substantial gainful activity since June 12,
2007. (R. at 14.) At step two, she found that Plaintiff suffered from the severe
impairments of “fibromyalgia; asthma; chronic obstructive pulmonary disease (COPD),
affective disorder and prescription opiate use.” (Id.) The ALJ did not find Plaintiff’s
reflex sympathetic disorder, migraines, gastroesopheageal reflux disease (GERD), bone

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The five-step process requires the ALJ to consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment;
(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to
her past relevant work; and, if not, (5) could perform other work in the national economy. See
20 C.F.R. § 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.
1988.) The claimant has the burden of proof through steps one to four; the Social Security
Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).

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spurs in feet, back pain, dental problems or swelling in legs, hands and fingers to be
severe impairments. (Id.) At step three, the ALJ found that Plaintiff’s impairments,
while severe, did not meet any of the impairments listed in the social security
regulations. (R. at 16.)
With respect to the Plaintiff’s residual functional capacity (“RFC”), the ALJ found:
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform light
work as defined in 20 CFR 416.967(b) with the following limitations:
the claimant would require unskilled work with a specific vocational
preparation (SVP) of one or two; should not work in close proximity to
coworkers (meaning the individual could not function as part of a
team); would require minimal to no direct contact with the public; could
lift or carry ten pounds frequently and twenty pounds occasionally;
could walk and/or stand (with normal breaks) for six hours in an eight
hour workday; could sit for six hours (with normal breaks) in an eight
hour workday; could perform pushing and pulling motions with her
upper and lower extremities within the aforementioned weight
restrictions; should avoid unprotected heights and moving machinery;
should be restricted to a relatively clean work environment (meaning
low levels of pollutants); could occasionally perform the postural
activities of climbing, stooping, crouching, kneeling and crawling and
should not climb ladders, ropes or scaffolds.
(R. at 17-18.)
Given the limitations in the RFC, at step four the ALJ found that Plaintiff could not
perform past relevant work. (R. at 22.) At step five, the ALJ found that there were
significant numbers of jobs in the national economy that Plaintiff could perform. (R. at 22.)
Accordingly, the ALJ found that Plaintiff was not disabled within the meaning of
the Act and, thus, not entitled to benefits. (Id.) The Appeals Council denied Plaintiff’s
request for review. (R. at 1.) Thus, the ALJ’s June 8, 2012 decision is the final
administrative decision for purposes of review to the Court.

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II. STANDARD OF REVIEW
The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct
legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id. “It requires more than a scintilla, but less than a
preponderance.” Lax, 489 F.3d at1084. Evidence is not substantial if it is overwhelmed
by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir.
2005). In reviewing the Commissioner’s decision, the Court may neither reweigh the
evidence nor substitute its judgment for that of the agency. Salazar v. Barnhart, 468
F.3d 615, 621 (10th Cir. 2006). “On the other hand, 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).
III. ANALYSIS
On appeal, Plaintiff raises three issues: (1) the ALJ did not properly weigh the
physicians’ medical opinions; (2) the RFC is not supported by substantial evidence or
applicable law; and (3) the ALJ did not properly assess Plaintiff’s subjective complaints
of disabling limitations. (ECF No. 15 at 1.) Plaintiff’s central argument is that the case
should be remanded, because the ALJ did not have the benefit of Social Security Ruling
(“SSR”) 12-2p, Titles II and XVI: Evaluation of Fibromyalgia when rendering her
decision. (Id. at 25.) The Commissioner argues that remand is not appropriate
because: (1) “the ALJ’s decision was consistent with SSR 12-2p”; and (2) “SSR 12-2p is
a policy interpretation ruling rather than a policy change.” (ECF No. 18 at 14 n.6.)
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After the ALJ issued her decision, the Social Security Administration (“SSA”)
published SSR 12-2p to assist fact finders in evaluating fibromyalgia. See SSR 12-2p,
2012 WL 3104869 (July 25, 2012). “Generally, if an agency makes a policy change
during the pendency of a claimant’s appeal, the reviewing court should remand for the
agency to determine whether the new policy affects its prior decision.” Frantz v. Astrue,
509 F.3d 1299, 1302 (10th Cir. 2007) (quoting Sloan v. Astrue, 499 F.3d 883, 889 (8th
Cir. 2007). Policy interpretation rulings, such as SSR 12-2p, may also provide cause for
remand where “the ALJ did not have the benefit of the Ruling when he arrived at his
decision” and the court cannot determine whether the evidence in the record “could
have led to a different result had the ALJ assessed it with reference to the new Ruling.”
Id. (remanding case when an SSR clarifying existing policy was published after the ALJ
announced his decision).
Once a claimant is determined to have an medically determinable impairment of
fibromyalgia, at step three the ALJ must consider whether it “meets or equals one of [the
SSA’s] listings.” 20 C.F.R. § 404.1520(a)(4)(iii); see also 20 C.F.R. § 404.1526(a).
Because fibromyalgia is not a listed impairment, SSR 12-2p clarifies that the ALJ must
“determine whether [fibromyalgia] medically equals a listing . . . , or whether it medically
equals a listing in combination with at least one other medically determinable impairment.”
SSR 12-2p, 2012 WL 3104869, at *6. The ALJ did not undertake this analysis.
Instead, the ALJ merely stated that “[n]o specific listing applied to fibromyalgia
and none was considered.” (R. at 16.) The Court, therefore, cannot determine whether
the ALJ would have found that Plaintiff was disabled if she had followed SSR 12-2p and
considered whether Plaintiff’s fibromyalgia “medically equals a listing” alone or in
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combination with another impairment. See Frantz, 509 F.3d at 1302.
The Court finds that remand on this issue is appropriate. See Frantz, 509 F.3d
at1302. Because this issue alone requires remand, the Court need not address the
other arguments raised by Plaintiff. See Madrid v. Barnhart, 447 F.3d 788, 792 (10th
Cir. 2006) (when the ALJ’s error affected the analysis as a whole, court declined to
address other issues raised on appeal); 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 ALJ’s treatment of this case on remand.”). The Court expresses
no opinion as to Plaintiff’s other arguments and neither party should take the Court’s
silence as tacit approval or disapproval of how the evidence was considered. The Court
does not intend by this opinion to suggest the result that should be reached on remand;
rather, the Court encourages the parties, as well as the ALJ, to consider the evidence
and the issues anew.
IV. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is VACATED and
this case is REMANDED to the Commissioner for rehearing.
Dated this 28th day of February, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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