Marr v. Colvin et al

Filing 17

ORDER REVERSING DISABILITY DECISION AND REMANDING TO COMMISSIONER. By Judge Robert E. Blackburn on 9/12/2014. (alowe)

PUBLISH
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01216-REB
KENDALL B. MARR,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER REVERSING DISABILITY
DECISION AND REMANDING TO COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],1 filed May 8, 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
remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he is disabled as a result of degenerative disc disease of the
cervical spine with associated upper extremity radiculopathy, migraines, and

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.

depression. After his application for disability insurance benefits was denied, plaintiff
requested a hearing before an administrative law judge. This hearing was held on
December 8, 2011. At the time of this hearing, plaintiff was 46 years old. He has
college and post-graduate degrees and past relevant work experience as a chiropractor
and retail supervisor. He has not engaged in substantial gainful activity November 14,
2008, his alleged date of onset.
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits. Although the evidence established that plaintiff suffered
from severe physical impairments, the ALJ concluded that the severity of those
impairments did not meet or equal any impairment listed in the social security
regulations. Plaintiff’s alleged mental impairment was found to be not severe. The ALJ
found that plaintiff had the residual functional capacity to perform a reduced range of
light work with postural limitations intended to account for his cervical complaints.
Based on that determination, the ALJ concluded that plaintiff could perform his past
relevant work as a supervisor. Alternatively, the ALJ found that, even if plaintiff’s past
relevant work were precluded, there were other jobs existing in significant numbers in
the national and local economies that he could perform. He therefore found plaintiff not
disabled at both step four and step five of the sequential evaluation. Plaintiff appealed
this 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 his
physical and/or mental impairments preclude him from performing both his previous
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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
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 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
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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.
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.
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III. LEGAL ANALYSIS
Plaintiff presents multiple assignments of error in this appeal. Because I find that
the ALJ’s assessment of plaintiff’s credibility is not adequately substantiated, and that
his own disbelief of plaintiff’s subjective complaints improperly colored other critical
aspects of his disability decision, I do not address the majority of these arguments,
which may be effected on remand by my determination herein. See Watkins v.
Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003); Gorringe v. Astrue, 898 F.Supp.2d
1220, 1225 (D. Colo. 2012).
“[C]redibility determinations ‘are peculiarly the province of the finder of fact,’ and
should not be upset if supported by substantial evidence.” White v. Barnhart, 287 F.3d
903, 909 (10th Cir. 2001) (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)).
So long as the ALJ links his credibility assessment to specific evidence in the record, his
determination is entitled to substantial deference. Id. at 910; see also Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000). Here the ALJ found plaintiff’s subjective reports of
pain not fully credible. The reasons given for that determination, however, either are
improper or not fully supported by the record.
The Tenth Circuit has outlined a tripartite test for evaluating subjective
complaints of pain:
We must consider (1) whether Claimant established a painproducing impairment by objective medical evidence; (2) if
so, whether there is a “loose nexus” between the proven
impairment and the Claimant’s subjective allegations of pain;
and (3) if so, whether, considering all the evidence, both
objective and subjective, Claimant’s pain is in fact disabling.
Musgrave v. Sullivan, 966 F.2d 1371, 1375-76 (10th Cir. 1992) (citing Luna v. Bowen,

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834 F.2d 161, 163-64 (10th Cir. 1987)). See also 20 C.F.R. § 404.1529(a). This test
recognizes that an impairment that can be thought to produce some pain may produce
disabling pain in a particular individual. Luna, 834 F.2d at 164. It therefore has
particular relevance in a case such as this, where plaintiff’s subjective experience of
pain appears to far exceed the objective medical evidence of his impairments.2 See
Large v. Apfel, 1999 WL 651390 at *3 (10th Cir. Aug. 26, 1999); Brock v. Shalala,
1995 WL 143114 at *1-2 (10th Cir. Mar. 29, 1995). The ALJ cited these standards, but
review of his decision leaves me in doubt as to whether he actually applied them.
The ALJ stated that, in light of the “weak” medical evidence in the case, plaintiff’s
“description of the severity of the pain has been so extreme as to appear implausible.”
(Tr. 27.) It is not clear to this court that the evidence of plaintiff’s impairments was quite
this insubstantial. For one thing, the ALJ seems to have cited to the evidence
somewhat selectively. For example, although the ALJ recounted the results of an
October 2008 cervical spine X-ray (Tr. 23, 218), he failed to account for the more
extensive findings obtained from a July 2008 MRI (Tr. 279),3 which plaintiff’s treating
physician, Dr. Michael Vu, confirmed were consistent with plaintiff’s complaints of neck

2

It appears that more recently, plaintiff’s diagnosis and treatment has focused on chronic pain
syndrome, rather than on his separate impairments individually. It is unclear to the court why plaintiff did
not allege chronic pain syndrome as an impairment in itself or why the ALJ did not consider such an
impairment even in the absence of such an allegation. See 20 C.F.R. § 404.1512(a) (Commissioner must
consider any impairment “about which we have evidence”); Prentice v. Apfel, 11 F.Supp.2d 420, 426
(S.D.N.Y.1998) (ALJ has duty “to investigate the disabling effects of an impairment if the record contains
evidence indicating that such an impairment might exist,” regardless whether claimant cites the
impairment as a basis for disability claim).
3

This test revealed (1) “[d]isc space narrowing and disc desiccation . . . with posterior annular
tearing and disc bulging seen at C5-6 and C6-7;” (2) “some extremely subtle left paracentral disc bulging
at C5-6 and more broad based disc bulging at C6-7;” (3) “[s]ome uncinate hypertrophy/spurring . . . on the
left at C5-6 producing some foraminal narrowing,” which were suggested to possibly involve
“[c]ompromise of the ventral rootlets of the left C6 nerve;” and (4) “[a]t C6-7, some uncinate hypertrophy is
seen bilaterally producing mild foraminal stenosis bilaterally, more prominent on the left.” (Tr. 279.)

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pain and radiculopathy. (See Tr. 431.) Similarly, the ALJ cited to the “negative” findings
of a July 2009 brain MRI (Tr. 23, 216), but failed to mention the results of an earlier MR
angiogram, which were not as clearly benign and suggested some physiologic genesis
for plaintiff’s headaches. (Tr. 242, 234.) The ALJ’s selective citation to the record in
this regard smacks of cherry-picking, which is improper. See Robinson v. Barnhart,
366 F.3d 1078, 1083 (10th Cir. 2004).
Because the record contains some objective evidence of an impairment capable
of producing the type of pain of which plaintiff complained, the ALJ was required to
consider whether these impairments were in fact disabling based on all the evidence of
record, both objective and subjective. Musgrave, 966 F.2d at 1375-76. The
Commissioner’s own regulations make clear that a lack of objective medical evidence
alone is not sufficient to discredit a claimant’s subjective reports of disabling pain. See
20 C.F.R. §§ 404.1529(c)(2) & (3). Thus, the ALJ’s assessment of the credibility of
plaintiff’s subjective reports of pain was critical. However, the reasons cited by ALJ in
support of his conclusions in this regard are insupportable.
The ALJ first reiterated his suggestion that the physical findings and clinical data
did not corroborate plaintiff’s complaints. As noted above, this finding is neither fully
accurate nor sufficient in itself to discredit plaintiff’s testimony. Moreover, although the
medical evidence the ALJ did review was recounted in some detail (Tr. 23-26), he
seems not to have actually analyzed any of it. Instead, the ALJ merely recited the
content of the record and then stated his ultimate conclusions, making his opinion
essentially unreviewable. By failing to specifically link his conclusions to any particular
evidence, the ALJ made it impossible for this court to tell in precisely what way the ALJ

7

believed the evidence failed to support plaintiff’s claims. This asserted reason thus
does not bear scrutiny.
The ALJ next noted that plaintiff’s treatment had been largely conservative, by
which it appears he meant that plaintiff had been unwilling to undergo a three-level
anterior cervical discectomy and fusion, one of three surgical options suggested by the
orthopedic surgeon with whom plaintiff consulted. (See Tr. 26, 259.) Although the
failure to pursue potentially helpful treatments may weigh against a claimant’s credibility
in appropriate circumstances, see Huston v. Bowen, 838 F.2d 1125, 1132 & n.7 (10th
Cir. 1988), there is nothing in the record to suggest that surgery would have been
efficacious in plaintiff’s case.4 Under those circumstances, it strikes this court as unfair
to conclude from plaintiff’s unwillingness to pursue invasive, extensive surgery that the
claimant’s pain is not as significant or impactful as alleged, especially where, as here,
the evidence would seem to indicate that plaintiff took exhaustive efforts to resolve his
symptoms short of surgery.
Moreover, it appears clear that the treatment plaintiff actually received was
neither particularly conservative nor as efficacious as the ALJ suggested. Plaintiff tried
multiple different medications for his cervical pain and headaches, including a trial of
morphine. (See Tr. 220, 234, 235, 289, 407, 411, 412, 414.) The willingness to resort
to such powerful medications can hardly be characterized as “conservative.” Even
more glaring, the ALJ’s suggestion that plaintiff’s “medications have been relatively

4

The other two surgical options offered were noted as being unlikely to resolve all plaintiff’s pain
complaints. (See Tr. 259 (posterior laminoforaminotomy would “address [plaintiff’s] radicular pain” but not
“any axial pain or headaches he may be experiencing secondary to this degenerative disc disease,” while
disc replacement would address “both radicular pain and perhaps a component of axial pain” unless pain
was “facet in origin in terms of his axial pain and/or headaches” in which case this option “would not
address the axial pain either”).)

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effective, when taken as prescribed” (Tr. 26) is simply belied by the record. Epidural
steroid injections plainly failed to resolve plaintiff’s neck pain for more than a week at a
time (see, e.g., Tr. 247, 307, 311), and any fair reading of the evidence plainly
demonstrates that none of the medications plaintiff tried worked, at least for long (see,
e.g., Tr. 304, 316, 406, 408-409, 413, 418, 457). The same can be said for plaintiff’s
ongoing attempts to treat his depression. The record suggests that plaintiff either
suffered not inconsequential side effects of the drugs he was given or that their
effectiveness waned fairly quickly. (See, e.g., Tr. 48-51, 459, 461.) The failure of a
condition to respond to treatment is the essence of disability. 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”).
The other reasons cited by the ALJ are even less substantial. The suggestion
that no treating or examining source has found plaintiff to be disabled (Tr. 26) is really a
nonsequitur, since any such statement would not be binding on the Commissioner in
any event. See 20 C.F.R. § 404.1527(d)(1); Sosa v. Barnhart, 2003 WL 21436102 at
*5 (D. Kan. April 10, 2003), adopted, 2003 WL 21428384 (D. Kan. Jun. 17, 2003).
Similarly, the suggestion that plaintiff’s report of his limited activities of daily living could
not be fully credited because it was not objectively verifiable is little more than a way of
restating the ALJ’s incredulity. (Tr. 27.) This same alleged shortcoming could be
applied to any claimant’s testimony regarding his daily activities. Moreover, as
discussed above, the medical and other evidence was not so paltry as to justify the lack
of weight the ALJ afforded plaintiff’s statements here.

9

The ALJ’s own assessment of plaintiff’s credibility clearly infected his assessment
of the opinions of Dr. Vu as well. Without providing a single example, the ALJ faulted
Dr. Vu for allegedly relying “quite heavily on the subjective reports of symptoms and
limitations provided by [plaintiff]” and “uncritically accept[ing] as true most, if not all, of
what the claimant reported” when, by the ALJ’s own estimation, “there exist good
reasons for questioning the reliability of [plaintiff’s] subjective complaints.” (Tr. 28.)
Such an observation, even if substantiated, provides absolutely no basis for rejecting a
medical source opinion:
A medical finding of disability . . . includes an evaluation of
the patient’s medical history and the physician’s
observations of the patient, and necessarily involves an
evaluation of the credibility of the patient’s subjective
complaints of pain. A medical opinion based on all of these
factors is medical evidence supporting a claim of disabling
pain, even if the objective test results, taken alone, do not
fully substantiate the claim.
Nieto v. Heckler, 750 F.2d 59, 60-61 (10th Cir. 1984); see also Orender v. Barnhart,
2002 WL 1747501 at *6-7 (D. Kan. July 16, 2002). Neither Dr. Vu nor any other medical
source has ever opined that plaintiff is malingering or otherwise exaggerating his
symptomology. See also McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002)
(ALJ may reject physician opinion “only on the basis of contradictory medical evidence
and not due to his or her own credibility judgments, speculation or lay opinion”) (citation
and internal quotations marks omitted).5

5

This finding should not be read to indicate that there are not other potential infirmities in Dr. Vu’s
statements that might have provided good cause for refusing to afford weight to his opinion. Neither the
Commissioner nor this court, however, is empowered to provide post hoc rationales for the ALJ’s decision.
See Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005). The additional reasons actually provided
by the ALJ for discrediting Dr. Vu’s statements are insufficient to support his conclusion in that regard.
Indeed, his observation that plaintiff asked to be transferred to another doctor, cited as a reason to
discredit a medical source opinion, borders on nonsensical.

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Although I do not completely discount the continuing viability of the harmless
error rule as applied to credibility determinations in appropriate cases, see, e.g., Murray
v. Colvin, 2014 WL 2860278 at *3 & n.2 (D. Colo. June 23, 2014), the ALJ’s errors in
assessing plaintiff’s credibility in this case are pervasive, see Bakalarski v. Apfel, 1997
WL 748653 at *3 (10th Cir. Dec. 3, 1997) (“Because a credibility assessment requires
consideration of all the factors in combination, when several of the factors relied upon
by the ALJ are found to be unsupported or contradicted by the record, we are precluded
from weighing the remaining factors to determine whether they, in themselves, are
sufficient to support the credibility determination.”) (citation and internal quotation marks
omitted). I therefore find and conclude this case must be remanded for further
proceedings. Although plaintiff requests a directed award of benefits, I find that this
would not be an appropriate case for the exercise of my discretion in that regard. See
Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th Cir. 1993).6
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 this case is REMANDED to the ALJ to
a. Reevaluate the various medical opinions of record, making specific
findings regarding the weight assigned to each such opinion and the
reasons therefor;

6

By this decision, I do not find or imply that plaintiff is or should be found to be disabled.

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b. Recontact any treating or examining source, seek the testimony of
medical or vocational experts, order consultative examinations, or
otherwise further develop the record as he deems necessary;
c. Reevaluate the credibility of plaintiff’s subjective complaints of pain and
limitation, providing legitimate reasons, specifically tied to the evidence of
record, for his conclusions in that regard; and
d. Reassess the disability determination; and
3. That plaintiff is AWARDED his 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 28 U.S.C.
§ 2412(a)(1).
Dated September 12, 2014, at Denver, Colorado.
BY THE COURT:

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