Johnson v. Colvin

Filing 22

ORDER the Commissioners decision is VACATED and this case is REMANDED to the Commissioner for rehearing, by Judge William J. Martinez on 7/23/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-1687-WJM
REBECCA S. JOHNSON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendants.

ORDER REVERSING 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).
Rebecca S. Johnson (“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 that 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 reversed and the case is remanded
to the Commissioner for rehearing.
I. BACKGROUND
Plaintiff was born on November 15, 1962 and was 42 years old on the alleged
disability onset date. (Admin. Record (“R.”) (ECF No. 12) at 16, 43.) Plaintiff has a high
school education and claimed disability due to back injury, depression, and social

anxiety. (Id. at 43, 54.)
Plaintiff filed an application for supplemental security income on November 12,
2009. (Id. at 43.) The application was denied on June 17, 2010 and, upon a req uest
for a hearing, her claims were heard by ALJ William Musseman on February 27, 2012.
(Id. at 8.) Plaintiff and vocational expert Martin L. Rauer testified at the hearing. (Id.)
On March 14, 2012, the ALJ issued a written decision in accordance with the
Commissioner’s five-step sequential evaluation process. 1 (Id.) At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since November 12,
2009. (Id. at 10.) At step two, he found that Plaintiff suffered from the severe
impairments of “degenerative disc disease of the lumbar spine; affective disorder; and
chronic obstructive pulmonary disease.” (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. (Id.) The ALJ assessed Plaintiff’s residual functional
capacity (“RFC”), finding that she had the RFC to perform light work as defined by the
regulations, except that she “can occasionally bend, squat and kneel. She cannot climb
ladders or scaffolds, and should avoid all exposure to temperature extremes, but may
have minimal exposure to dust, smoke, chemicals, and fumes.” (Id. at 12.)
At step four, the ALJ found that Plaintiff had no past relevant work. (Id. at 16.)

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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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At step five, the ALJ found that there were significant numbers of jobs in the national
economy that Plaintiff could perform. (Id. at 17.)
Accordingly, the ALJ found that Plaintiff was not disabled within the meaning of
the Act and, therefore, not entitled to benefits. (Id. at 18.) The Appeals Council denied
Plaintiff’s request for review. (Id. at 1.) Thus, the ALJ’s March 14, 2012 decision is the
final administrative action for purposes of review.
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 at 1084. 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 five issues: (1) the ALJ adopted a non-weighted
medical opinion; (2) the RFC does not account for Plaintiff’s severe limitations; (3) the

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RFC finding is not consistent with the evidence; (4) the RFC finding is not stated on a
function-by-function basis; and (5) the ALJ improperly rejected a treating source
opinion. (ECF No. 16 at iv.)
Plaintiff first argues that the ALJ relied on the opinion of the State agency
psychological consultant, Dr. Wanstrath, without assigning a particular weigh to his
opinion. (ECF No. 16 at 12.) Dr. W anstrath opined that Plaintiff had mild restrictions in
activities of daily living, mild difficulties in maintaining social functioning, and mild
difficulties in maintaining concentration, persistence or pace. (R. at 48.) Plaintif f
argues that the ALJ adopted Dr. W anstrath’s opinion because the ALJ’s findings were
consistent with Dr. Wanstrath’s opinion. (ECF No. 16 (citing R. at 11 (finding that
Plaintiff has mild restrictions in activities of daily living, mild difficulties in maintaining
social functioning, and mild difficulties in maintaining concentration, persistence or
pace)).) The ALJ, however, failed to weigh or even mention Dr. Wanstrath’s opinion.
(See generally R. at 8-18.)
“An ALJ must evaluate every medical opinion in the record.” Hamlin v. Barnhart,
365 F.3d 1208, 1215 (10th Cir. 2004); see also 20 C.F.R. § 416.927(c). Furthermore,
the social security regulations state that, unless the treating source opinion is given
controlling weight (which did not occur in this case), the ALJ “must” explain in the
decision the weight given to the opinions of state agency medical or psychological
consultants. 20 C.F.R. § 404.1527(e)(2)(ii). The social security rulings reiterate that an
ALJ “may not ignore [the opinions of state agency consultants,] and must explain the
weight given to these opinions in their decisions.” Social Security Ruling (“SSR”) 96-6P,
1996 WL 374180, at *1 (July 2, 1996). As the ALJ failed to mention Dr. Wanstrath’s
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opinion, it is clear that the ALJ did not satisfy these requirements in this case. (R. at 818.)
The Commissioner argues that the ALJ’s failure to evaluate Dr. Wanstrath’s
opinion is not reversible error “because giving great weight to [Dr. Wanstrath’s] opinion
would not have helped her.” (ECF No. 17 at 11 (quoting Keyes-Zachary v. Astrue, 695
F.3d 1156, 1162-63 (10th Cir. 2012)).) The Court finds Keyes-Zachary distinguishable
because there the ALJ discussed the doctor’s report at “som e length but never explicitly
stated whether he found it persuasive or what weight he assigned to it.” KeyesZachary, 695 F.3d at 1162. Here, however, it is unclear from the record whether the
ALJ considered or ignored Dr. Wanstrath’s opinion. (See generally R. at 8-18.)
In Victory v. Barnhart, 121 F. App’x 819 (10th Cir. 2005), the claimant had
submitted reports from a doctor about his examination and treatment of the claimant.
Id. at 825. The ALJ’s decision denying benefits completely omitted the doctor’s reports
and opinions, and gave no reason for the omission. Id. The Tenth Circuit stated: “This
was, of course, clear legal error.” Id. (citing 20 C.F.R. §§ 404.1527(c) and 4116.927(c) 2
(“Regardless of its source, we will evaluate every medial opinion we receive”); SSR 965P, 1996 WL 374183, at *1 (July 2, 1996) (“[O]pinions from any medical source about
issues reserved to the Commissioner must never be ignored.”). Based on this
precedent, and that fact that it is impossible for the Court to determine whether the ALJ
even considered Dr. Wanstrath’s opinion, the Court finds that the ALJ’s failure to weigh
Dr. Wanstrath’s opinion was legal error.
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At the time of the Victory decision, 20 C.F.R. § 404.1527(c) and 4116.927(c) were
codified at 20 C.F.R. §§ 404.1527(d) and 4116.927(d).

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Because the ALJ failed to weigh Dr. Wanstrath’s opinion, the Court must remand
this case. Robinson v. Barnhart , 366 F.3d 1078, 1085 (10th Cir. 2004) (remanding
when the ALJ did not “follow the correct legal standards in considering the opinion of
claimant’s . . . physician”); Threet v. Barnhart, 353 F.3d 1185, 1192 (10th Cir. 2003)
(failure to consider all relevant evidence in accordance with the regulations necessitates
remand).
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.

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Dated this 23rd day of July, 2014.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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