Morgan v. Colvin

Filing 15

ORDER REVERSING DISABILITY DECISION AND DIRECTING AWARD OF BENEFITS. By Judge Robert E. Blackburn on 9/18/2014. (alowe)

PUBLISH
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00795-REB

SANDRA J. MORGAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER REVERSING DISABILITY DECISION
AND DIRECTING AWARD OF BENEFITS
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],1 filed March 27, 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 the
decision and direct an award of benefits in plaintiff’s favor.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she is disabled as a result of headaches, fibromyalgia and
associated musculoskeletal pain, chronic sinusitis, and an affective disorder. The
1

“[#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.

present application for disability insurance benefits was filed in December 2001. The
initial denial of the claim was appealed to an administrative law judge (ALJ), who issued
an unfavorable determination in 2003. (Tr. 14-25.) After plaintiff appealed that decision
to this court, the Commissioner moved to remand, and the district court returned the
case to the agency for further proceedings. (Tr. 475-479, 481-482.) A second hearing
resulted in a partially favorable determination in 2006 (Tr. 454-466), and plaintiff again
appealed. The case was remanded again on the Commissioner’s motion. (Tr. 692693.) A third hearing, before a different ALJ, was held on June 28, 2011. At the time of
this most recent hearing, plaintiff was 62 years old. She has a high school general
equivalency diploma and past relevant work experience as an investigator, program
director, nurse assistant, recreational therapist, and kitchen supervisor. She has not
engaged in substantial gainful activity since April 15, 1999, her alleged date of onset.
The ALJ found that plaintiff was not disabled prior to her 55th birthday on
December 15, 2003, and therefore not entitled to disability insurance benefits prior to
that date, but that she was disabled thereafter.2 Although the medical evidence
established that plaintiff suffered from severe impairments, the ALJ 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 light work with various non-exertional limitations. Although this
finding precluded plaintiff’s past relevant work, the judge concluded that there were
other jobs that existed in significant numbers in the national economy she could
2

On that date, plaintiff’s age category changed to that of an individual of “advanced age.” Under
Rule 202.06 of the Commissioner’s Medical-Vocational Guidelines (the “Grids”), a person of that age with
plaintiff’s education and work experience would be considered presumptively disabled.

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perform. She therefore found plaintiff not disabled at step five of the sequential
evaluation. Plaintiff appealed that decision to the Appeals Council. The Council
affirmed. Plaintiff then filed this action in federal court.
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:
1.

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.

2.

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.

3.

The ALJ must then determine if the impairment meets or
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equals in severity certain impairments described in Appendix
1 of the regulations.
4.

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.

5.

If the claimant does not have the residual functional capacity
to perform his 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
functional capacity.

20 C.F.R. § 404.1520(a)(4)(i)-(v). 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.

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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’s primary argument on appeal is that the ALJ erred in failing to give
sufficient reasons for discrediting the opinion of her treating source, William Schroeder,
D.O.3 I agree, and conclude further that any honest assessment of Dr. Schroeder’s
opinion would require the Commissioner to afford it dispositive weight. I therefore direct
an award of benefits for the full period of alleged disability.
Plaintiff has a long history of recurrent, severe headaches of unknown etiology,
even prior to her alleged date of onset. She routinely sought emergency room
treatment for her symptoms, which included, most significantly, extensive vomiting.
(See Tr. 176-185, 196, 198-200, 205-206, 263.) Plaintiff began seeing Dr. Richard
Thomas in June 2000 for treatment of headaches occurring approximately every three
weeks. She was tried on various medications, which initially were effective but caused
not-insignificant side effects and seemed to quickly lose effectiveness. (See, e.g., Tr.

3

Plaintiff presents a host of other arguments, many of which are poorly developed and/or
inadequately substantiated. I would not consider these arguments, even if they were necessary to my
determination. Hulsey v. Astrue, 2010 WL 618472 at *4 (D. Colo. Feb. 19, 2010); Jack v. Astrue, 2010
WL 3615022 at *3 (D. Colo. Sept. 10, 2010).

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217, 218, 219, 223.) Plaintiff did report that injectable Imitrex was effective, but it
resulted in rebound headaches within a short time. Moreover, Dr. Thomas was
concerned with the amount of Imitrex plaintiff was using to control her headaches –
reported as up to three times a week – and the cumulative effects of the medication.
(Tr. 213.)
The medical evidence demonstrates that throughout the alleged period of
disability, plaintiff experienced some waxing and waning of her headaches. (See, e.g.,
Tr. 196, 198, 199-200, 205, 211-213, 217, 218, 225, 278, , 279, 282-283, 288, 287, 289,
290, 292, 317, 319, 321, 322, 323, 324, 341, 348, 351, 354, 356.) Nevertheless, her
symptoms were seldom quiescent for long – at best, it appears plaintiff went no more
than a few weeks at any one time without a significant headache. Within this general
framework, plaintiff’s headaches came with some regularity, about once every two to
three weeks on average, although sometimes more frequently, and typically lasting for
days at a time. She continued to use large doses of Imitrex despite its negative side
effects, claiming that she would kill herself without the injections. (Tr. 359.) Indeed, in
the summer of 2003, plaintiff had suicidal thoughts and reported that she had put a gun
to her head. (Tr. 427, 429.)
In March 2003, Dr. Schroeder issued an opinion in which he noted that plaintiff
suffered from “debilitating” headaches several times each month. He endorsed multiple
triggers and exacerbating circumstances and noted that plaintiff “is basically nonfunctional” while she was having a headache, needing hours or even days of complete
rest to relieve her symptoms. The side effects of her various medications were reported
to include drowsiness, fatigue, chest pain, and anxiety. He suggested that plaintiff
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restrict sitting, standing, and walking – albeit without specifying any particular limits on
those activities – and imposed a five-pound lifting restriction based on chronic lateral
epicondylitis (i.e., tennis elbow). He also stated that plaintiff was incapable of even low
stress jobs and would be absent from work more than four days per month due to her
impairments. (Tr. 371-373.) The ALJ afforded this opinion “little weight.” The reasons
she did so, however, ultimately do not bear scrutiny.
The ALJ first noted that Dr. Schroeder had not specified any particular limits on
plaintiff’s ability to sit, stand, or walk. (Tr. 680.) Given the remainder of Dr. Schroeder’s
opinion, however, it would be disingenuous to conclude from the absence of such a
statement that he believed plaintiff had any appreciable abilities in this regard. Even so,
where the evidence provided by a treating source is found inadequate to determine
whether the claimant is disabled, the ALJ
is required to recontact a medical source, including a treating
physician, to determine if additional needed information is
readily available. . . . The responsibility to see that this duty
is fulfilled belongs entirely to the ALJ; it is not part of the
claimant's burden.
White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001) (emphasis added). See 20
C.F.R. § 404.1512(e)(1) (“We will seek additional evidence or clarification from your
medical source when the report from your medical source contains a conflict or
ambiguity that must be resolved[.]”).4 The ALJ’s failure to make such an effort in this
case undermines her reliance on this factor as a valid basis for discrediting Dr.
Schroeder’s opinion.

4

Indeed, Dr. Schroeder specifically solicited further inquiries in a separate notation within his
opinion. (See Tr. 373.)

7

The ALJ also discredited Dr. Schroeder’s suggestion that plaintiff was incapable
of even low stress jobs, noting in this regard that plaintiff had worked part-time from
June 2000 to September 2001 as a meal site manager at a senior center. (Tr. 680.)
Plaintiff’s own description of her work at that job, however, paints a much less benign
picture. Plaintiff explained that as her headaches increased in frequency and severity in
this period, she frequently was required to take breaks due to pain and vomiting, and to
administer injections. She also frequently was absent, which the ALJ did not discuss at
all. (See Tr. 40-41, 117; see also Tr. 789-790 (high absenteeism at previous job as
well).) The failure to acknowledge and address these discrepancies between what the
work required and what plaintiff actually could do does not constitute substantial
evidence in support of the disability determination.5
The ALJ further suggested that plaintiff’s activities of daily living demonstrated a
greater degree of functional capacity than that attested to by Dr. Schroeder. However,
activities of daily living rarely translate well into a determination of what a claimant can
do on a sustained basis in the workplace. See Thompson v. Sullivan, 987 F.2d 1482,
1490 (10th Cir. 1993). The fairly minimal activities recited by the ALJ here hardly are
indicative of the ability to withstand the demands of competitive employment. Moreover,
the ALJ’s description of plaintiff’s activities of daily living dramatically understates the

5

Plaintiff frankly acknowledged that she had a long history of migraines – albeit of lesser
frequency and severity prior to her alleged date of onset – that encompassed the larger portion of her
working life. This history, and the fact that plaintiff attempted to continue working at some level even after
her headaches became worse, is in fact a factor in favor of her claim. See Tyson v. Apfel, 107 F.Supp.2d
1267, 1270 (D. Colo. 2000) (“Where a claimant has a good work history, she is entitled to substantial
credibility when she then asserts that she is unable to work.”).

8

record.6 Although plaintiff did report that she performed routine household chores, she
clarified that “it depends on whether or not I have a [headache] or tendinitis – most of
the time I am not able to finish the day to day chores” (Tr. 114), and that “on days when
I have a [headache] I just brush my teeth & wash my face” (Tr. 115). Thus, neither the
law nor the evidence substantiate this factor as a valid basis for discrediting Dr.
Schroeder’s assessment.
Finally, the ALJ described Dr. Schroeder’s treatment notes from March 2003 as
suggesting that plaintiff’s headaches “had improved in terms of frequency and severity.”
(Tr. 680.) This interpretation of the specific treatment record is utterly disingenuous, as
is the larger implication that plaintiff’s condition improved to any significant degree. On
March 4, 2003, Dr. Schroeder reported that while plaintiff’s headaches had “improved in
terms of frequency and severity,” they were “still a relatively severe problem for her.”
(Tr. 341.)7 Moreover, the longitudinal picture provided by Dr. Schroeder’s treatment
notes plainly shows that, although plaintiff sometimes could go a few weeks without
experiencing a headache, her condition was chronic and unremitting, requiring everincreasing dosages and ever-more powerful forms of medication. Such failure of a

6

In addition, none of the three exhibits cited globally by the ALJ appears to directly address this
particular issue. Exhibit 23F comprises nearly 30 pages of Dr. Schroeder’s treatment notes (Tr. 340-369),
and Exhibits 24F and 31F are identical copies of Dr. Schroeder’s functional capacity opinion (Tr. 370-373,
632-636). Even if these exhibits had been relevant to this finding, I continue to criticize the Commissioner
for what appears to be a trend of relying on sweeping, non-specific citations to the record in support of her
decisions. See Phillips v. Colvin, – F.Supp.3d –, 2014 WL 4636379 at *3 n.4 (D. Colo. Sept. 16, 2014);
Russ v. Colvin, – F.Supp.3d –, 2014 WL 4553235 at * (D. Colo. Sept. 15, 2014); Cira v. Colvin, –
F.Supp.3d –, 2014 WL 4437285 at *3 (D. Colo. Sept. 9, 2014); Guttierez v. Colvin, – F.Supp.3d –, 2014
WL 4437280 at *4 (D. Colo. Sept. 9, 2014).
7

Moreover, conspicuously absent from the ALJ’s finding in this regard was any consideration of
whether plaintiff’s headaches were still disabling even if they were less frequent and severe than
previously..

9

condition to respond to treatment is the essence of disability.8 See Chambliss v.
Massanari, 269 F.3d 520, 522 (5th Cir. 2001) (pain is disabling when it is “constant,
unremitting, and wholly unresponsive to therapeutic treatment”); Marr v. Colvin, –
F.Supp.3d –, 2014 WL 4494779 at *4 (D. Colo. Sept. 12, 2014).
In sum, this court finds that none of the reasons stated by the ALJ substantiates
her decision to afford minimal weight to Dr. Schroeder’s opinion. See Watkins v.
Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (treating source opinion may be rejected
only for good cause for specific, legitimate reasons clearly articulated in the hearing
decision). The opinion of a treating source is entitled to controlling weight when it is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with other substantial evidence in the case record.” 20 C.F.R. §
404.1527(d)(2); see also Watkins, 350 F.3d at 1300. The medical and other evidence
in the record, both that discussed by the ALJ and that she did not discuss, fully supports
Dr. Schroeder’s opinion as to the nature and severity of plaintiff’s limitations. Had his
opinion been afforded the weight to which it plainly was entitled, the Commissioner
would have been compelled to find her disabled from her alleged date of onset.
Even if there were some remote question in this court’s mind as to the propriety
of directing an award of benefits in this case, I nevertheless would exercise my
discretion in that regard here. See Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th Cir.
8

The ALJ’s assertion that plaintiff’s condition was treated conservatively with medication (Tr. 678)
assumes, improperly, that more aggressive treatments were available and potentially efficacious. No
medical source has ever so stated. Moreover, it appears that plaintiff has consistently tried different
medications and different treatment modalities, all with limited success. See Luna v. Bowen, 834 F.2d
161, 165-66 (10th Cir. 1987) (in evaluating credibility of complaints of pain and limitation, ALJ should
consider, inter alia, “a claimant's persistent attempts to find relief for his pain and his willingness to try any
treatment prescribed,” as well as “regular contact with a doctor”).

10

1993). Plaintiff filed her application for disability insurance benefits in 2001. See
Adamson v. Astrue, 2012 WL 4378120 at *4 (D. Colo. Sept. 25, 2012) (length of time
the matter has been pending relevant factor in determining whether to direct award of
benefits) (citing Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir. 2006). Nearly
thirteen years and three administrative hearings and decisions later, the Commissioner
still has been unable to articulate any justifiable basis for denying plaintiff a full award of
benefits. Moreover, plaintiff is now 65 years old. All these considerations lead me to
conclude that there is no reason to further delay an award of benefits to which plaintiff
plainly is entitled. See Railey v. Apfel, 1998 WL 30236 at *4 (10th Cir. Jan. 9, 1998);
Emory v. Sullivan, 936 F.2d 1092, 1095 (10th Cir. 1991); Nielson, 992 F.2d at 1122.
IV. ORDERS
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 JUDGMENT SHALL ENTER in favor of plaintiff against the
Commissioner;
3. That the Commissioner is DIRECTED to award plaintiff benefits as of the
alleged date of onset of her disability, April 15, 1999, through the date on which she
previously was adjudged disabled, December 15, 2003; and

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4. That plaintiff is AWARDED her costs, to be taxed by the clerk of the court
pursuant to FED. R. CIV. P. 54(d)(1) and D.C.COLO.LCivR 54.1, and as permitted by 28
U.S.C. § 2412(a)(1).
Dated September 18, 2014, at Denver, Colorado.
BY THE COURT:

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