Phillips v. Colvin
ORDER REVERSING DISABILITY DECISION AND DIRECTING AWARD OF BENEFITS. By Judge Robert E. Blackburn on 9/16/2014. (alowe)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01634-REB
DANNY L. PHILLIPS,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
ORDER REVERSING DISABILITY DECISION
AND DIRECTING AWARD OF BENEFITS
The matter before me is plaintiff’s Complaint [#1],1 filed June 21, 2013, seeking
review of the Commissioner’s decision denying plaintiff’s claims for disability insurance
benefits and supplemental security income benefits under Titles II and XVI 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
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he is disabled as a result of degenerative disc disease,
“[#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.
diabetes, hypertension, trigger fingers in both hands, diffuse pain throughout his body,
and obesity. After his applications for disability, insurance benefits and supplemental
security income benefits were denied, plaintiff requested a hearing before an
administrative law judge. This hearing was held on February 28, 2012. At the time of
the hearing, plaintiff was 53 years old. He has a high school education and past
relevant work experience as a construction laborer. He has not engaged in substantial
gainful activity since October 28, 2008, his alleged date of onset.
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits or supplemental security income benefits. Although the
medical evidence established that plaintiff’s degenerative disc disease and obesity
constituted severe 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 other alleged impairments were found to be non-severe. The
ALJ found that plaintiff had the residual functional capacity to perform unskilled light
work with a sit/stand option and additional postural restrictions. Although this finding
precluded plaintiff’s past relevant work, the ALJ determined that 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 step 5 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 him 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(a)(4)(i)-(v).2 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
Throughout this opinion, although I cite to relevant sections of Part 404 of Title 20 of the Code of
Federal Regulations, which contain the Commissioner’s regulations relating to disability insurance
benefits, identical, parallel regulations can be found in Part 416 of that same title, relating to supplemental
security income benefits.
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 erred, inter alia, by rejecting the opinions of both his
treating source and the consultative examiner. I concur, and find that these opinions,
properly considered and weighted, support a conclusion that plaintiff in fact is disabled.
I therefore direct an award of benefits in plaintiff’s favor.
Plaintiff has received treatment for a variety of medical complaints at a
succession of medical clinics in the Pueblo, Colorado, area since at least 2007. (See
Tr. 442-544.) His treating physician, Dr. David Krause, submitted an opinion in support
of plaintiff’s claims for benefits stating that, as a result of Type II diabetes,
hypothyroidism, chronic back pain, and degenerative arthritis of the hands, plaintiff
could lift less than 10 pounds, sit for no more than 30 to 60 minutes at one time for a
total of no more than 2 hours a day, and be on his feet for no more than 30 minutes at a
time for no more than 2 hours a day. He further suggested that plaintiff should rarely
stoop, squat, or kneel and never crawl, and that he could perform work that required
handling and fingering only rarely (i.e., no more than 10 repetitions per day) and
reaching no more than one hour per day. (Tr. 580-581.)
The opinion of a treating source is entitled to controlling weight when it is “wellsupported 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(c)(2); see also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). A
treating source opinion may not be rejected absent good cause for specific, legitimate
reasons clearly articulated in the hearing decision. Watkins, 350 F.3d at 1301;
Goatcher v. United States Department of Health & Human Services, 52 F.3d 288,
290 (10th Cir. 1995); Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987). Good cause
may be found when a treating source opinion is brief, conclusory, or unsupported by the
medical evidence. Frey, 816 F.2d at 513.
The ALJ stated that he gave this treating source opinion little weight because Dr.
Krause failed to cite any objective medical findings in support of his conclusions and
because his conclusions allegedly were inconsistent with his own treatment notes.
Neither of these conclusions bears scrutiny. It is true that Dr. Krause’s opinion, as such,
did not pinpoint the objective medical evidence supporting the limitations he imposed,
but the form on which he issued that opinion did not include any inquiry in that regard.
Moreover, the Tenth Circuit has made clear that medical opinions may not be
disregarded merely because they are expressed on a check-box type form, especially
where they have been completed by a treating source. See Andersen v. Astrue, 2009
WL 886237 at * 6-7 (10th Cir. Apr. 3, 2009); Angster v. Astrue, 703 F.Supp.2d 1219,
1228 n.2 (D. Colo. 2010). The ALJ was required to go further to examine the record of
Dr. Krause’s actual treatment of plaintiff to determine whether the evidence supported
the limitations endorsed in his opinion.
Although the ALJ claimed that Dr. Krause’s treatment notes did not support the
limitations he imposed, he failed to explain that conclusion with specific reference to the
evidence. Instead, he cited the entirety of Exhibit 3F, a document comprising more than
100 pages of treatment notes. (Tr. 18.)3 Just as “[j]udges are not like pigs, hunting for
truffles buried in briefs,” Gross v. Burggraf Construction Co., 53 F.3d 1531, 1546
(10th Cir. 1995) (citation and internal quotation marks omitted), this court is neither
authorized nor inclined to search the administrative record in search of evidence which
might lend support to the ALJ’s decision.4 Lacking an analysis specifically tied to the
evidence in the record, the ALJ’s determination is merely a conclusion in the guise of a
finding, and does not constitute substantial evidence in support of the disability decision.
See Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004).
Moreover, even if Dr. Krause’s opinion was not entitled to controlling weight, it
still was entitled to deference, and should have “be weighed using all of the factors
provided in 20 C.F.R. 404.1527 and 416.927.” Social Security Ruling 96-2p, 1996 WL
374188 at *4 (SSA July 2, 1996). See also Langley v. Barnhart, 373 F.3d 1116, 1119
(10th Cir. 2004). Among these considerations is the consistency of the opinion with the
other evidence of record. See 20 C.F.R. § 404.1527(c)(2). In this case, Dr. Krause’s
opinion is buttressed to a substantial degree by the findings of the consultative
Earlier in his opinion, the ALJ had examined some of the medical evidence relevant to Dr.
Krause’s treatment. (See Tr. 16-17.) However, there is little in this recitation of the evidence that
obviously undercuts Dr. Krause’s opinion. For one thing, the evidence relates largely to a period of time
prior to plaintiff’s alleged date of onset. Thus, any negative inference the ALJ may have intended to draw
from the fact that plaintiff received relief from his symptoms and was able to continue to perform heavy
exertion has no bearing on the issue whether he was disabled thereafter. Moreover, the records cited
point to objective medical findings that suggest impairments capable of producing the type of pain plaintiff
in fact claimed to experience and do not plainly support a conclusion that treatment was effective to any
particular extent. See Musgrave v. Sullivan, 966 F.2d 1371, 1375-76 (10th Cir. 1992) (citing Luna v.
Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987)). See also 20 C.F.R. § 404.1529(a).
This is now the fourth case in less than two weeks in which the court has reversed a disability
decision due to an ALJ’s use of such global citations and concomitant failure to link his or her opinion to
specific evidence in the administrative record. See Russ v. Colvin, Civil Action No. 13-cv-01319, Order
Reversing Disability Decision and Remanding to Commissioner at 8 [#22], filed September 15, 2014);
Cira v. Colvin, 2014 WL 4437285 at *3 (D. Colo. Sept. 9, 2014); Guttierez v. Colvin, 2014 WL 4437280
at *4 (D. Colo. Sept. 9, 2014).
examiner, Dr. Ryan Otten. Following his examination, Dr. Otten opined that plaintiff
could stand or walk for only two hours a day and would have frequent difficulties with
bending, squatting, crouching, and stooping. He further endorsed frequent manipulative
difficulties with the upper extremities. He imposed no limitation on the ability to sit,
however, and suggested that plaintiff could lift and carry up to 10 pounds frequently and
20 pounds occasionally. (Tr. 552.) The ALJ accepted Dr. Otten’s lifting and carrying
restrictions, but rejected the remaining restrictions, saying they were unsupported by the
results of Dr. Otten’s own examination and the other medical evidence of record. (Tr.
This finding, too, is unsubstantiated and therefore erroneous. Although residual
functional capacity is an administrative determination, not a medical one, 20 C.F.R. §§
404.1546 & 416.946; Rutledge v. Apfel, 230 F.3d 1172, 1175 (10th Cir. 2000), the
ALJ’s determination must be grounded in some medical evidence, see Anderson v.
Shalala, 51 F.3d 777, 779 (8th Cir. 1995). The ALJ’s own lay assessment of the
conclusions to be drawn from Dr. Otten’s medical examination, however, is not medical
evidence, see Hamlin v. Barnhart, 365 F.3d 1208, 1221 (10th Cir. 2004), nor does his
own disbelief of plaintiff’s subjective complaints of pain and limitation provide a basis on
which to reject Dr. Otten’s medical opinion, see McGoffin v. Barnhart, 288 F.3d 1248,
1252 (10th Cir. 2002). Nor did the ALJ specify – even by such a global reference as was
used to discredit Dr. Krause’s opinion – what other medical evidence of record
contradicted Dr. Otten’s conclusion. For all these reasons, the ALJ’s determination of
the weight to be afforded Dr. Otten’s opinion is not supportable either.
The ALJ ‘s errors in this regard are compounded by the fact that it is impossible
to determine precisely what functional limitations he did find supported by the evidence.
The ALJ stated only that plaintiff had the capacity for light work, without specifying
plaintiff’s abilities to lift, carry, sit, stand, or walk. “Light work” may consist of various
different combinations of these vocational requirements, however:
Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of
20 C.F.R. § 1567(b). Indeed, the Commissioner recognizes that expressing residual
functional capacity merely by reference to a broad exertional category, as was done
here, may lead to errors at steps 4 and 5 of the sequential evaluation process. She
thus requires that residual functional capacity be expressed instead as a function-byfunction assessment of the claimant’s ability to do work-related activities. Social
Security Ruling 96-8p, 1996 WL 372184 at *3-4 (SSA July 2, 1996).
The problems with an assessment which does not follow this guideline is
manifest in this case. Although the ALJ apparently adopted Dr. Otten’s lifting and
carrying restrictions (see Tr. 18), it is not clear how much sitting, standing, and walking
he concluded plaintiff was capable of performing. Both Drs. Krause and Otten stated
that plaintiff could stand and walk for no more than two hours in a day, which would be
incompatible with most unskilled light work. See Social Security Ruling 83-10, 1983
WL 31251 at *5 (SSA 1983) (primary difference between light and sedentary work is
that light work typically “requires a good deal of walking or standing” and that
“[r]elatively few unskilled light jobs are performed in a seated position”). The ALJ also
apparently rejected any limitations on plaintiff’s ability to perform tasks requiring pushing
or pulling with the upper or lower extremities, although such limitations were endorsed
by both Drs. Krause and Otten, and find some support in the record.5 See id., 1983 WL
31251 at *6 (unskilled light jobs typically “require use of arms and hands to grasp and to
hold and turn objects”).
Moreover, because the ALJ did not include any specific functional parameters in
his hypothetical question to the vocational expert (see Tr. 37-38), it is not possible to
say that plaintiff actually could perform the alternative light jobs the vocational expert
identified in response. See Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991)
(“[T]estimony 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.”) (citation and internal quotation marks omitted). The Commissioner therefore
has failed to sustain her burden at step 5 of the sequential evaluation as well.
Plaintiff argues that I may direct an award of benefits as of the date he turned 55
in September 2013, since even under the ALJ’s determination, a person of that age who
is capable of performing only light, unskilled work should be found disabled under the
Commissioner’s Medical-Vocational Guidelines (the “Grids”).6 Reliance on the Grids,
The opinion of the state agency doctor suggested that plaintiff could sit, stand, and walk for a
total of six hours a day and had no push/pull restrictions (Tr. 61), but the ALJ specifically rejected that
opinion on the ground that the record supported greater exertional and non-exertional limitations than
those endorsed by the examiner (Tr. 18). Here again, however, the ALJ’s failure to specify the precise
nature or degree of any such additional functional limitation makes his ultimate determination impossible
The Grids are tables that direct a determination of “disabled” or “not disabled” based on
intersecting considerations of a claimant’s age, work experience, education, and residual functional
capacity. See Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
however, would be inappropriate, since they do not contemplate a sit/stand option in
unskilled jobs, such as the ALJ imposed here. See Abeyta v. Astrue, 2011 WL 93721
at *3 (D. Colo. Jan. 10, 2011. See also Social Security Ruling 83-12, 1983 WL 31253
at *4 (SSA 1983) (“Unskilled types of jobs are particularly structured so that a person
cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to sit or
stand, a [vocational specialist] should be consulted to clarify the implications for the
Nevertheless, I believe that plaintiff is entitled to a directed award of benefits in
this case. The medical opinions of Dr. Krause and Dr. Otten support a conclusion that,
at best, plaintiff can perform sedentary work with significant postural and manipulative
limitations. The Commissioner has failed to point to any evidence in the record
suggesting that plaintiff is capable of more than this level of work-related functionality.7
Yet when the ALJ queried the vocational expert as to whether there were any jobs in the
national or local economies compatible with such restrictions, her clear answer was that
there were not. (Tr. 39.) Given this evidence, and in light of plaintiff’s age and the
length of time his applications have been pending, I find that further remand would
serve merely to 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); Nielson v. Sullivan, 992
F.2d 1118, 1122 (10th Cir. 1993); Emory v. Sullivan, 936 F.2d 1092, 1095 (10th Cir.
1991); Adamson v. Astrue, 2012 WL 4378120 at *4 (D. Colo. Sept. 25, 2012).
Again, because the ALJ specifically rejected the opinion of the state agency examiner, the
Commissioner cannot invoke that opinion in support of the disability determination now.
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 and against the
3. That the Commissioner is DIRECTED to award plaintiff benefits from his
alleged date of onset; and
4. 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 as permitted by 28
U.S.C. § 2412(a)(1).
Dated September 16, 2014, at Denver, Colorado.
BY THE COURT:
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