Glenn v. Colvin
Filing
19
ORDER REVERSING AND REMANDING ALJ'S DECISION DENYING SOCIAL SECURITY BENEFITS. This case is remanded to the Commissioner for proceedings consistent with this Order. By Judge Christine M. Arguello on 05/20/2014. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-01830-CMA
DEBRA GLENN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Social Security Commissioner,
Defendant.
ORDER REVERSING AND REMANDING ALJ’S DECISION
DENYING SOCIAL SECURITY BENEFITS
This matter is before the Court on review of the Commissioner’s decision to deny
Plaintiff Debra A. Glenn’s (“Plaintiff”) application for social security disability benefits
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33. Jurisdiction is
proper under 42 U.S.C. § 405(g).
I. BACKGROUND
A.
MEDICAL EVIDENCE
Plaintiff was born on January 1, 1972, and was 37 years old on the date of her
alleged disability onset. (AR at 22, 36.) 1 She received a high school education up to
the tenth grade, and obtained a GED. (AR at 37.) Plaintiff reported that she previously
worked as a housekeeper, cashier, and store manager. (AR at 38-39.) With regard to
1
Citations to the Social Security Administrative Record, which is found at Doc. # 7, will be
to “AR” followed by the relevant page number.
her physiological ailments, Plaintiff’s complains that she suffers from back and neck
pain, a bulging disc in her back, back spasms, numbness in her right leg, carpal tunnel
syndrome, and headaches. (AR at 41-42, 167.) In 2005, she was diagnosed with
osteoblastoma and underwent surgery to remove the tumor and to fuse her spine.
Plaintiff has not had a recurrence of the cancer. (AR at 368-75.) Plaintiff testified that
she is awaiting surgery on a bulging disk and is prescribed medications to manage her
pain. (AR at 42.) Plaintiff was also diagnosed with depression and anxiety. She takes
antidepressants with no side effects. (AR at 42-43, 49, 213.) Plaintiff testified that for
the past year, she has smoked a pack of cigarettes every four days. Prior to that, she
smoked two packs of cigarettes per day. (AR at 43.)
B.
PROCEDURAL HISTORY
Plaintiff filed an application for disability benefits, alleging a disability onset date
of September 1, 2009. After her initial application was denied, Plaintiff requested a
hearing, which was held on August 24, 2011, before an Administrative Law Judge
(“ALJ”), who issued an unfavorable decision on September 13, 2011. (AR at 22-31.)
The ALJ determined that Plaintiff met the insured status requirements of the
Social Security Act through June 30, 2011. In applying the five-step sequential
evaluation process outlined in 20 C.F.R. §§ 404.1520 and 416.920 to determine whether
Plaintiff was disabled, the ALJ determined that:
1. Plaintiff had not engaged in substantial gainful activity since her alleged
onset date of June 30, 2011 [Step 1];
2. Plaintiff had the following severe impairments: history of osteoblastoma in
2005, without recurrence and a history of spinal fusion at the T11-L2 level
with residual pain [Step 2];
2
3. Plaintiff did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 [Step 3];
4. Plaintiff had the residual functional capacity (“RFC”) “to perform light work as
defined in 20 C.F.R. 404.1567(b) and 416.967(b) except the claimant requires
a sit/stand option. The claimant can crouch, kneel, and crawl frequently. She
can occasionally climb stairs, balance, and stoop, but cannot climb ladders,
ropes, or scaffolds. The claimant is to avoid concentrated exposure to
extreme cold and unprotected heights.” [Step 4]; and
5. Plaintiff was able to perform her past relevant work as a cashier, telephone
order clerk, retail manager, and a returns clerk [Step 5].
The Appeals Council denied Plaintiff’s request for review. (AR at 1-3.) On July
11, 2013, Plaintiff filed her appeal of the Commissioner’s final decision. (Doc. # 1.)
Plaintiff filed her opening brief on November, 20, 2013, the Commissioner responded
on December 6, 2013, and Plaintiff replied on January 14, 2014. (Doc. ## 10, 11, 14.)
II. STANDARD OF REVIEW
The Court reviews the ALJ’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. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
ASubstantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. It requires more than a scintilla, but less than
a preponderance.@ Id. (quoting Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)).
AEvidence 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 so reviewing, 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).
3
III. ANALYSIS
Plaintiff raises three arguments in support of her contention that the ALJ
committed errors in rendering her decision. Specifically, Plaintiff argues that the ALJ
erred in: (1) assigning no weight to her treating physician’s opinion, (2) failing to conduct
a proper legal analysis and misstating the evidence such that the decision is not
supported by substantial evidence, and (3) assessing Plaintiff’s credibility.
A.
WHETHER THE ALJ ERRED BY ASSIGNING NO WEIGHT TO THE OPINION
OF PLAINTIFF’S TREATING PHYSICIAN
Plaintiff argues that the ALJ erred when she assigned no weight to the opinion of
Dr. Eidson, Plaintiff’s treating physician. Specifically, Plaintiff argues that Dr. Eidson’s
opinion was entitled to controlling weight. Alternatively, she argues that the ALJ should
have assigned some weight to Dr. Eidson’s opinion rather than outright rejecting it.
Dr. Eidson treated Plaintiff monthly beginning on May 7, 2010. On June 9, 2011,
he completed a Lumbar Spine Medical Source Statement, known in Social Security
lexicon as an RFC form. Dr. Eidson indicated that, “per patient” report, Plaintiff could
sit for 30 minutes at a time, stand for five minutes at a time, and tolerate moderate or
normal work stress. Dr. Eidson further opined that, in an eight hour work day, Plaintiff
could stand or walk for less than two hours and sit for about four hours, she needed
an option to shift positions at will, to walk every 30 minutes, and to take unscheduled
breaks approximately every two hours. Dr. Eidson stated that Plaintiff could lift 10 lbs.
rarely, but never more than that amount; she could twist rarely, stoop, and crouch
occasionally, but never climb ladders or stairs. He also opined that her impairments
would likely result in Plaintiff’s absence from work more than four days per month.
4
According to the “treating physician rule,” the Commissioner will generally “give
more weight to medical opinions from treating sources than those from non-treating
sources.” Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004); see also 20 C.F.R.
§ 404.1527(c)(2). In deciding how much weight to give a treating physician’s opinion,
an ALJ must first determine if the opinion is entitled to controlling weight. Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). An opinion is entitled to controlling
weight if it is well-supported by the medical evidence and is consistent with other
substantial evidence in the record. Id. Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Fowler v.
Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (internal quotation marks omitted).
Whether a treating physician is entitled to controlling weight is subject to a
sequential analysis. An ALJ must first consider whether the opinion is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R.
§ 404.1527(c)(2). If the answer to this question is “no,” then the inquiry at this stage is
complete. If the ALJ finds that the opinion is well-supported, she must then confirm that
the opinion is “not inconsistent with other substantial evidence in [the] case record.” Id.
In other words, if the opinion is deficient in either of these respects, then it is not entitled
to controlling weight. Watkins, 350 F. 3d at 1300.
Even if a treating physician’s opinion is not entitled to controlling weight,
however, “[t]reating source medical opinions are still entitled to deference and must be
weighed using all of the factors provided in 20 C.F.R. § 404.1527.” Id. Those factors
are:
5
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician’s opinion is supported by
relevant evidence; (4) consistency between the opinion and the record as
a whole; (5) whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001); 20 C.F.R. § 404.1527(c).
Under Tenth Circuit case law, “an ALJ must give good reasons for the weight assigned
to a treating physician’s opinion that are sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical
opinion and the reason for that weight.” Langley, 373 F.3d at 1119 (internal quotation
marks and citations omitted).
In weighing Dr. Eidson’s opinion, the ALJ stated:
Although there is a treating relationship between claimant and
Dr. E[id]son, this opinion is not supported by the evidence of record.
Dr. E[id]son’s restrictions stand in contrast to the relatively benign clinical
findings and conservative treatment provided throughout the claimant’s
relationship with Dr. E[id]son.
(AR at 30.)
The ALJ does not identify which clinical findings she considers “relatively
benign.” However, one can infer that she is referring to the MRI and physical
examinations, which were precisely what Dr. Eidson relied upon in rendering his
opinion, as indicated on his RFC form. Cf. Krauser v. Astrue, 638 F.3d 1324, 1331 (10th
Cir. 2011) (“It may be possible to assemble support for this conclusion from parts of the
record cited elsewhere in the ALJ’s decision, but that is best left for the ALJ [her]self
to do in the proceedings on remand.”) The Tenth Circuit has repeatedly warned that
6
assigning no weight to a treating physician is particularly problematic when there is no
contrary opinion in the record. In Kemp v. Bowen, the court explained:
In the case of Mrs. Kemp there was not even evidence from a consulting
physician retained by the agency to contradict the medical diagnosis,
findings, and conclusions of her treating physician, Dr. Brown. While the
ALJ is authorized to make a final decision concerning disability, he can
not [sic] interpose [her] own “medical expertise” over that of a physician,
especially when that physician is the regular treating doctor for the
disability applicant.
816 F.2d 1469, 1476 (10th Cir. 1987); see also Chapo v. Astrue, 682 F.3d 1285, 1291
(10th Cir. 2012) (ALJ erred in assigning no weight to an uncontroverted consulting
examiner’s opinion). Similarly, here, Dr. Eidson was Plaintiff’s treating physician and
no contrary medical opinion exists in the record. Under these circumstances, although
the ALJ was entitled to not give Dr. Eidson’s opinion controlling weight pursuant to 20
C.F.R. § 404.1527(c)(2), it is problematic that she chose to give no weight at all, despite
the absence of a contrary medical opinion. See Lamb v. Barnhart, 85 Fed. Appx. 52,
57 (10th Cir. 2003) (remanding for lack of substantial evidence in RFC determination
where no doctors had specifically addressed the plaintiff’s exertional limitations); Baker
v. Barnhart, 84 Fed. Appx. 10, 14 (10th Cir. 2003) (same).
When evidence from Plaintiff’s treating doctor is deemed insufficient to determine
whether a claimant is disabled, the Commissioner should contact the treating doctor to
determine if additional information is available. See 20 C.F.R. 404.1512(e); Fleetwood
v. Barnhart, 211 F. App’x 736, 742 (10th Cir. 2007). If recontacting the physician does
not adequately provide substantial evidence, the ALJ may order a consultative
examination. See 20 C.F.R. 404.1512(e). In particular, a consultative examination
7
should be ordered when “[a] conflict, inconsistency, ambiguity, or insufficiency in the
evidence must be resolved” and the Commissioner is “unable to do so by recontacting
your medical source.” See 20 C.F.R. 404.1512(b)(4). Accordingly, the Court remands
this case to the ALJ to develop a record that demonstrates that her RFC is based on
substantial evidence. The ALJ may develop the record by seeking clarification or
supplemental information concerning Plaintiff’s functional limitations, or by ordering
a consultative examination. 2
In addition, the ALJ discredited Dr. Eidson’s opinion because it was “based on
the claimant’s self-report as opposed to objective findings . . . .” (AR at 30.) This
explanation presents two separate problems. First, the RFC form indicates only three
specific instances in which Plaintiff’s self-report may have informed Dr. Eidson’s opinion.
It does not demonstrate that the remaining opinions were also the product of Plaintiff’s
self-report. Second, the ALJ’s decision does not explain how Dr. Eidson’s opinion is
inconsistent with his objective findings. Yet, the RFC form indicates Dr. Eidson’s clinical
findings: that Plaintiff had an abnormal musculoskeletal exam and an MRI indicating
postsurgical changes and moderate central disc herniation. In her review of the
medical evidence, the ALJ acknowledged that during her visits to Dr. Eidson, Plaintiff
consistently complained of back pain and a physical examination showed “periodic
2
With respect to the ALJ’s suggestion that Dr. Eidson’s opinion was inconsistent with the record
due to a “conservative treatment” regimen, other courts have determined that it is improper to
discount a treating source opinion on this basis. See, e.g., Burgess v. Astrue, 537 F.3d 117,
129 (2d Cir. 2008) (district court erred in discounting treating source opinion because he did not
prescribe stronger pain medication, among other treatments); Shaw v. Chater, 221 F.3d 126,
134 (2d Cir. 2000) (district court erred in ruling that the treating physician’s “recommend[ation
of] only conservative physical therapy, hot packs, EMG testing—not surgery or prescription
drugs—[w]as substantial evidence that [the claimant] was not physically disabled”). Although
these precedents are not binding on this Court, they are persuasive.
8
tenderness, weakness, reduced sensation, and reduced lumbar range of motion.”
(AR at 28.) Without specific references to the those portions of the record that are
inconsistent, it is difficult for this Court to determine how the ALJ arrived at her
conclusion that Dr. Eidson’s opinion was inconsistent with his objective findings.
Likewise, the ALJ claims that Dr. Eidson’s opinion “departs substantially from the
remainder of the medical record”, but does not explain how this is so. See Krauser,
638 F.3d at 1331 (reversing ALJ decision that stated treating source’s opinion was
inconsistent with the record “in conclusory fashion, without reference to those portions
of the record with which [the doctor’s] opinion was allegedly inconsistent”).
As further explanation for assigning no weight to Dr. Eidson’s opinion, the ALJ
stated:
The possibility exists that a doctor may express an opinion in an effort to
assist a patient with whom he sympathizes for various reasons. Notably,
it is also possible that a doctor may provide supportive notes or reports in
order to satisfy patient requests and avoid unnecessary doctor/patient
tension. While it is difficult to confirm such situations when the[y] occur,
they appear to be more likely when the physician opinion in question
departs substantially from the remainder of the medical record.
(AR at 30.)
In Frey v Bowen, the Tenth Circuit held that an ALJ could not reject a treating
physician’s opinion on the ground that “a family doctor naturally advocates his patient’s
cause” because “[i]t is a conclusory statement that contradicts our established legal
rule, without suggesting some exceptional basis in the facts of this case.” 816 F.2d 508,
515 (10th Cir. 1987) (internal quotation marks omitted). Recently, in Crowder v. Colvin,
the Tenth Circuit reiterated that holding and determined that an ALJ erred when he
9
rejected a consultant examiner’s opinion because the claimant’s attorney requested the
examination. No. 13-1222, 2014 WL 1388164, *2 (10th Cir. Apr. 10, 2014). Despite
the ALJ’s assertion that opinion was inconsistent, which the court separately found
unpersuasive, the court determined that there was no exceptional basis for ignoring the
general rule. Id. Similarly, here, the ALJ has not stated, no does the record reveal an
“exceptional basis in the facts of this case” for discrediting Dr. Eidson’s opinion because
of an alleged bias, thereby ignoring the rule that a treating physician’s opinion is entitled
to deference. The ALJ seems to recognize as much—she insinuated Dr. Eidson
fabricated his findings, yet acknowledged that “it is difficult to confirm such situations”.
(AR at 30.)
The Tenth Circuit has previously admonished an ALJ for discounting a treating
physician’s opinion “based upon [her] own speculative conclusion that the report was
based only on claimant’s subjective complaints and was ‘an act of courtesy to a
patient.’” Langley, 373 F.3d at 1121. The court explained, “ ‘[i]n choosing to reject the
treating physician’s assessment, an ALJ may not make speculative inferences from
medical reports and may reject a treating physician’s opinion outright only on the basis
of contradictory medical evidence and not due to his or her own credibility judgments,
speculation, or lay opinion.’ ” Id. (emphasis in original) (quoting McGoffin v. Barnhart,
288 F.3d 1248, 1252 (10th Cir. 2002)). Because the Court has determined that a
remand is necessary, the ALJ should specifically address whether there is an
“exceptional basis in the facts of this case” for ignoring the treating physician rule.
10
B.
WHETHER THE ALJ’S DECISION IS SUPPORTED BY SUBSTANTIAL
EVIDENCE
Plaintiff contends that the ALJ erred by failing to conduct the proper legal
analysis of the medical evidence and by misstating the evidence in the record such that
her decision is not supported by substantial evidence.
After considering the evidence in the record, the ALJ concluded that:
Although the claimant’s impairments are severe, the evidence does not
support the assertion that they preclude her from completing basic work
related activities within the parameters of the [RFC] described above.
I have placed the claimant at a light exertional level with a sit/stand option
and additional postural limitations due to her back condition, documented
by abnormal diagnostic findings. 3
(AR at 30.) The Court is unable to discern how the ALJ arrived at this conclusion and is
required to scrutinize whether the ALJ’s decision is supported by substantial evidence.
See Wall, 561 F.3d at 1052.
The ALJ reviewed the record to find support for Plaintiff’s claims of chronic pain.
The ALJ first discussed the MRI results which demonstrated stable presentation of postoperative levels and confirmed a moderate disc bulge and central disc herniation at L5S1, without noted stenosis or cord compression. The ALJ noted that Plaintiff was
prescribed medication for her pain. Clinical findings showed a stiff gait, reduced lumbar
range of motion, tenderness to palpitation, weakness, and reduced sensation. The ALJ
also noted that Plaintiff was diagnosed with osteoblastoma in 2005, and underwent
removal surgery and a spinal fusion at T11-L2, but has not experienced a recurrence
of bone cancer. (AR at 28-29.)
3
The ALJ also did not “accommodate[] the claimant’s alleged mental impairment.” (AR at 30.)
Plaintiff does not contest this portion of the RFC.
11
The ALJ was not persuaded that Plaintiff was impaired to the degree found by
Dr. Eidson. The ALJ found that Plaintiff
received acupuncture therapy . . . [but,] has not had any hospital visits
or admissions for her conditions, . . . has not received massage therapy,
completed a physical therapy series, had pain mitigating injections, or
received chiropractic adjustments. Moreover, she has neither sought
nor been referred to specialists in spinal care. The claimant’s history of
largely conservative treatment does not support allegations of disabling
conditions.
(AR at 29.) While this Court is cautious not to reweigh the evidence in the record, see
Salazar, 468 F.3d at 621, it shares Plaintiff’s concern that in various instances, the ALJ
misstated the record evidence. For instance, the record demonstrates that Plaintiff
received both massage therapy and a chiropractic adjustment in November 2008
(AR at 253), and that Dr. Eidson referred her to Dr. Cohen, a neurologist. 4 (AR at 279,
289, 382-83.)
Moreover, despite a thorough, albeit at times flawed, analysis of the record, the
ALJ fails to explain why or how her findings support her determination that Plaintiff can
frequently crouch, kneel, and crawl; can occasionally climb stairs, balance, and stoop;
but cannot climb ladders, ropes, or scaffolds. See (AR at 26). The ALJ gave no weight
to both Dr. Eidson and the single decision maker’s opinions, which were the only pieces
of the record to touch upon Plaintiff’s ability to do these things. Without references to
4
Dr. Cohen reported that Plaintiff presented to him with “constant pain in the back radiating
down the right leg” due to the removal of spinal osteoblastoma. He conducted an examination
and noted normal strengths in both arms, mild atrophy of the right calf, somewhat shorter right
leg than right, normal strengths in the legs, except for mild weakness of right plantar and
dosiflexion. Ultimately, he assessed “chronic lumbar canal stenosis post surgery with S1 over
L5 symptoms and signs.” However, he concluded that he could not “improve upon her current
use of daily” pain medications. (AR at 382.) The ALJ’s decision does not specifically mention
this diagnosis. On remand, she should do so.
12
the portions of the record that support these limitations, this Court “cannot determine the
source, medical or otherwise, for most, if not all, of the limitations contained in the ALJ’s
RFC findings.” Allen v. Astrue, No. 09-1271, 2010 WL 2925169, at *4 (D. Kan. July 21,
2010). To the extent there is very little medical evidence directly addressing Plaintiff’s
RFC, “the ALJ made unsupported findings concerning her functional abilities.”
Fleetwood v. Barnhart, 211 F. App’x 736, 740 (10th Cir. 2007). “Without evidence to
support [her] findings, the ALJ was not in a position to make an RFC determination.” Id.
This Court is mindful that the ALJ need not follow a medical opinion, and that at
step four, it is Plaintiff’s burden to show that her impairments render her unable to
perform her past relevant work. See Castine v. Astrue, 334 Fed. App’x 175, 179 (10th
Cir. 2009) (order and judgment). However, because this case is being remanded, the
Court instructs the ALJ to reassess Plaintiff’s RFC, include record support for her
assessment, and scrupulously represent the record in her decision.
C.
WHETHER THE ALJ ERRED IN ASSESSING PLAINTIFF’S CREDIBILITY
Finally, because this issue is likely to arise on remand, the Court will address
Plaintiff’s contention that the ALJ erred when she determined that Plaintiff was not
credible.
“[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. 2011) (quoting Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir.
1995)). Provided the ALJ links her credibility assessment to specific evidence in the
record, her determination is entitled to substantial deference. Id. at 910; SSR 96-7p,
13
1996 WL 374186, at *2 (July 2, 1996) (ALJ’s decision “must contain specific reasons
for the finding on credibility, supported by evidence in the case record”). Because the
determination of credibility is left to the ALJ as the finder of fact, that determination is
generally binding on a reviewing court.
Plaintiff contends that the ALJ erred by failing to properly apply the factors
delineated in SSR 96-7p in assessing her credibility. That regulation provides a nonexhaustive list of factors that an ALJ’s must consider in addition to the objective medical
evidence. Those factors include: (1) Plaintiff’s daily activities; (2) the location, duration,
frequency, and intensity of pain or other symptoms; (3) factors that precipitate and
aggravate the symptoms; (4) medications and any side effects; (5) treatment, other
than medication, that the individual has received; (6) measures other than treatment
that Plaintiff uses to relive pain; and (7) any other relevant factors. SSR 96-7P, 1996
WL 374186, *3. Though the ALJ did not recite the list of factors, her analysis addressed
several of these considerations, as well as other relevant factors. See (AR at 27) (daily
activities); (AR at 27) (medications and side effects); (AR at 29) (treatment history). The
ALJ is not required to set forth a formalistic factor-by-factor recitation of the evidence,
but must set forth only the specific evidence he relied upon in evaluating Plaintiff’s
testimony. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). The Court finds
that the ALJ’s analysis was sufficient. However, on remand, she should reconsider
Plaintiff’s credibility in light of the factual errors discussed in this order.
Plaintiff takes particular issue with the ALJ’s decision to discredit her based
on her testimony regarding tobacco use. The ALJ explained:
14
At the hearing, the claimant testified that she has smoked only one pack of
cigarettes every four days for the year leading up to the hearing. However,
the medical evidence indicates that the claimant reported a pack per day
habit at a primary care visit as recently as December of 2010, eight
months prior to the hearing. (Exhibit 3F).
(AR at 29.) As Plaintiff points out, the December 27, 2010 treatment record notes that
Plaintiff smokes “approximately one pack per day” but then goes on to state that she
smokes 4-5 cigarettes per day. (AR at 275-76.) Although these two statements are
contradictory, the ALJ is entitled to resolve inconsistencies in the record. Haga v.
Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
Plaintiff also contends that the ALJ erred in relying on Plaintiff’s appearance
and demeanor. “Although an ALJ may not rely solely on [her] personal observations to
discredit a plaintiff’s allegations, she may consider [her] personal observations in [her]
overall evaluation of the claimant’s credibility.” Qualls, 206 F.3d at 1373 (citing Teter v.
Heckler, 775 F.2d 1104, 1106 (10th Cir.1985) (where other evidence corroborates
claimant’s pain as genuine, ALJ may not reject claimant’s allegations solely on basis
of her demeanor); SSR 96–7p, 1996 WL 374186, at *8 (ALJ may not accept or reject
claimant’s allegations based solely on ALJ’s personal observation of claimant, but ALJ
should consider personal observations in overall evaluation of claimant’s credibility)).
Here, the ALJ properly considered her personal observations of Plaintiff as part of her
overall assessment of Plaintiff’s credibility. Therefore, the ALJ did not err in assessing
Plaintiff’s credibility. 5
5
Plaintiff asks this Court not to remand this case and instead enter a finding of disability and
award benefits. However, the Court is not is a position to find Plaintiff disabled as a matter of
law. See Sorenson v. Bowen, 888 F.2d 706, 713 (10th Cir. 1989) (“Outright reversal and
15
IV. CONCLUSION
Accordingly, it is ORDERED that the ALJ’s denial of social security disability
benefits is REVERSED. This case is REMANDED to the Commissioner for
proceedings consistent with this Order.
DATED: May
20
, 2014
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
remand for immediate award of benefits is appropriate when additional fact finding would serve
no useful purpose.”)
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?