Gonzales v. Colvin

Filing 18

ORDER REVERSING DISABILITY DECISION AND REMANDING TO COMMISSIONER. By Judge Robert E. Blackburn on 9/22/2014. (alowe)

PUBLISH
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01864-REB
SANDRA GONZALES,
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 July 12, 2013, seeking
review of the Commissioner’s decision denying plaintiff’s claim for supplemental security
income benefits under Title 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 and
remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she is disabled as a result of bipolar disorder, depression,
anxiety, panic attacks, agoraphobia, a seizure disorder, ulcers, and pain in her back,

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.

shoulders, and neck following two car accidents and a cervical spinal fusion. After her
application for supplemental security income benefits was 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 48 years old. She attended three years of
college and has past work experience as an administrative assistant, assistant
manager, telemarketer, and waitress. Although plaintiff works part-time at a video store
in her small, rural Colorado hometown, this work does not rise to the level of substantial
gainful activity, and she has not engaged in substantial gainful activity since at least
January 28, 2010, the date of her application for benefits.
The ALJ found that plaintiff was not disabled and therefore not entitled to
supplemental security income benefits. Although the medical evidence established that
plaintiff suffered from severe physical and mental impairments,2 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 postural and non-exertional limitations.
Although this finding precluded plaintiff’s past relevant work, the ALJ concluded that
there were jobs existing in significant numbers in the national and local economies that
she could perform. He therefore found plaintiff not disabled at 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.

2

Specifically, the ALJ found that severe degenerative disc disease of the spine status post C3C4 posterior fusion, partial rotator cuff tear, obesity, mixed bipolar disorder with psychotic features, PTSD,
and an unspecified pain disorder, constituted severe impairments. (Tr. 27.) The remainder of plaintiff’s
alleged impairments were found to be not severe at step 2 of the sequential analysis. (Tr. 28-31.)

2

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
equals in severity certain impairments described in Appendix
1 of the regulations.

3

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
the claimant’s age, education, work experience, and residual
functional capacity.

20 C.F.R. §§ 416.920(a)(4) & (b)-(g). See also Williams v. Bowen 844 F.2d 748, 75052 (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.”
4

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 opens her appeal by suggesting that the ALJ erred at step 3 of the
sequential evaluation by failing to obtain an updated opinion on medical equivalence.
This argument is not supported by the record.3 Nevertheless, I agree that the ALJ gave
insufficient reasons for the weight assigned to the medical opinions of record and for
discrediting plaintiff’s subjective complaints, and therefore remand.
From at least 2009 onward, plaintiff received treatment for her various physical
complaints at the Guadalupe Health Clinic from Ted Morrison, PA-C. In January 2012,
Mr. Morrison issued an opinion stating that plaintiff could sit, stand, and walk for up to

3

“While the ALJ is responsible for deciding the ultimate legal question of whether a listing is met
or equaled, the ALJ must receive state agency doctors' judgments on the issue of medical equivalence
into the record as expert opinion evidence.” Carbajal v. Astrue, 2011 WL 2600984 at *2 (D. Colo. June
29, 2011) (citation and internal quotation marks omitted). See also Social Security Ruling 96-6p, 1996
WL 374180 at *3 (SSA July 2, 1996). The requirement that medical equivalence be established by the
opinion of a medical expert is satisfied, inter alia, by the signature of a State agency medical or
psychological consultant on a Psychiatric Review Technique Form, such that completed by Dr. James F.
Dyde in this case. (See Tr. 96-97.) Social Security Ruling, 96-6p, 1996 WL 374180 at *3. Although
plaintiff insists that an updated opinion was required because the record contained additional medical
evidence that might have changed Dr. Dyde’s findings that plaintiff’s mental impairments were not
equivalent in severity to any listed impairment, I disagree. The Commissioner’s guidelines do not require
the ALJ to obtain an updated medical opinion in these circumstances, but rather give him discretion to
determine whether, in his own opinion, an updated opinion is necessary. See Social Security Ruling,
96-6p, 1996 WL 374180 at *3-4. The ALJ expressly considered evidence post-dating Dr. Dyde’s
assessment, but found that it failed to describe limitations in the paragraph B functional areas greater than
those found by Dr. Dyde. The ALJ therefore was well within his discretion to determine, at least implicitly,
that the evidence was unlikely to change the state agency consultant’s medical opinion. See McCaffrey
v. Astrue, 2011 WL 4536980 at *5 (D. Colo. Sept. 30, 2011).

5

four hours a day, but could lift only 2 to 5 pounds, could use her left hand only
occasionally, would need to lie down periodically throughout the day, and would be
absent from work more than 2 days per month due to pain. (Tr. 399.) The ALJ gave
little weight to this opinion, noting that Mr. Morrison was not an acceptable medical
source and concluding that the limitations he endorsed were not supported by his own
treatment notes or the medical evidence.4 Although the first of these reasons is
accurate, it is not alone sufficient to justify rejection of Mr. Morrison’s opinion.
Moreover, the remainder of the ALJ’s reasons for the weight assigned the opinion do
not bear up under scrutiny.
Although the opinion of a treating source is generally entitled to controlling
weight, 20 C.F.R. § 416.927(c)(2); see also Watkins v. Barnhart, 350 F.3d 1297, 1300
(10th Cir. 2003), Mr. Morrison, a physicians assistant, is not considered an “acceptable
medical source,” see Social Security Ruling 06-03p, 2006 WL 2329939 at *1 (SSA
Aug. 9, 2006). As such, he can neither issue medical opinions, see 20 C.F.R. §
404.927(a)(2), nor be considered a treating source whose opinion must be evaluated to
determine whether it is entitled to controlling weight, see 20 C.F.R. § 404.913(a). See
also Social Security Ruling 06-03p, 2006 WL 2329939 at *2; Frantz v. Astrue, 509
F.3d 1299, 1301 (10th Cir. 2007). Nevertheless, the opinions of “other” medical sources

4

There is also the intimation in the ALJ’s opinion that Mr. Morrison’s opinion was suspect
because it had been solicited by plaintiff in support of her application for benefits. (Tr. 36 (noting that “Mr.
Morrison did not offer his opinion until after the claimant asked him to support her application for Medicaid
and Medicare”).) The fact that an opinion has been solicited to aid a claimant in supporting her claim for
benefits provides no basis for discrediting an otherwise well-supported source opinion, however. See
Hinton v. Massanari, 13 Fed. Appx. 819, 824 (10th Cir. 2001). See also McGoffin v. Barnhart, 288 F.3d
1248, 1253 (10th Cir. 2002) (observation that doctor naturally advocates for his patients not legitimate
grounds for discrediting medical opinion).

6

such as Mr. Morrison still must be considered and addressed, applying the same factors
as are generally used to assess treating source opinions. Social Security Ruling 0603p, 2006 WL 2329939 at *4 (SSA Aug. 9, 2006);5 20 C.F.R. §§ 416.913(d) &
416.927(c).
Among these relevant considerations are the length of the treatment relationship
and the frequency of examination. 20 C.F.R. § 416.927(c)(2)(i). Here, the ALJ claimed
that Mr. Morrison did “not see the claimant with the frequency necessary in order to
obtain an in-depth and detailed picture of the ‘longitudinal’ course of her impairments.”
(Tr. 36.) Given that the ALJ gave significant weight to the opinions of a consultative
examiner, who saw plaintiff but a single time, and a state agency physician, who merely
reviewed medical records, this reason is no reason at all. See Davis v. Astrue, 2010
WL 3835828 at *4 (D. Colo. Sept. 23, 2010). Moreover, it is belied by the record. Mr.
Morrison saw plaintiff on an average of once every month or two from 2009 until at least
March 2011 (Tr. 357-376, 424-432), and then about every 3 to 4 months thereafter (Tr.
405-423). In the absence of any indication that the nature of this plaintiff’s treatment
was inconsistent with this frequency of visits to her healthcare provider, any negative
inference from this factor is insupportable. See 20 C.F.R. § 416.902; see also Doyal v.

5

This ruling recognizes that, given the realities of modern-day managed healthcare,
medical sources who are not “acceptable medical sources,” such as
nurse practitioners, physician assistants, and licensed clinical social
workers, have increasingly assumed a greater percentage of the
treatment and evaluation functions previously handled primarily by
physicians and psychologists. Opinions from these medical sources, who
are not technically deemed “acceptable medical sources” under our rules,
are important and should be evaluated on key issues such as impairment
severity and functional effects, along with the other relevant evidence in
the file.

7

Barnhart, 331 F.3d 758, 764 (10th Cir. 2003).
The ALJ stated further that Mr. Morrison’s opinion was inconsistent with his own
treatment notes. However, the only specific instance he gave in support of this
conclusion was the observation that, on the day Mr. Morrison completed the residual
functional capacity assessment, “claimant did not exhibit any physical . . . deficits[.]” (Tr.
36 (emphasis in original).) This construction of the record is largely, albeit not entirely,
true. (See Tr. 411 (noting “[n]ormal range of motion, muscle strength, and stability in all
extremities with no pain on inspection,” but also tenderness with motion in both the
cervical and lumbar spine).) However, where Mr. Morrison had treated plaintiff for three
years at the time he rendered his opinion, citation to a single, unremarkable
examination does not warrant the broad conclusion drawn here. A more thorough
analysis of the Mr. Morrison’s treatment records as a whole was required, and indeed,
would have provided the longitudinal picture of plaintiff’s symptoms the ALJ claimed Mr.
Morrison lacked.
Finally, the ALJ discredited Mr. Morrison’s opinion as being inconsistent with the
opinion of the consultative examiner, Dr. Adam Summerlin. This purported reason is
merely a conclusion, not a finding. See Hardman v. Barnhart, 362 F.3d 676, 679 (10th
Cir. 2004). The fact of such a conflict is what gives rise to the need for the ALJ to weigh
the opinions in the first instance. The ALJ was required to explain why Dr. Summerlin’s
opinion was entitled to more weight than Mr. Morrison’s opinion.6 See Hamlin v.
Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004). Because the reasons he gave for
6

Moreover, an ALJ may not adopt one medical source opinion by default simply because he
discredits or rejects another. See Twarog v. Astrue, 2009 WL 77476 at *4 n.3 (D. Colo. Jan. 9, 2009).

8

discrediting Mr. Morrison’s opinion are either not legitimate or not borne out by the
record, his conclusion in this regard does not constitute substantial evidence.
I might be inclined to consider whether the errors in assessing plaintiff’s physical
residual functional capacity were harmless, were I not also concerned with similar – but,
if anything, more substantial – errors in the ALJ’s assessment of the medical opinions
as to plaintiff’s mental residual functional capacity. In that regard, the ALJ assigned little
weight to the opinion of the consultative examiner, Dr. Immaculate Wesley, who found
based on her examination that plaintiff’s “abilities as related to basic work activities
appear impaired,” including specifically memory, sustained concentration, persistence
and pace, and social interaction. She further stated that it was likely that plaintiff had a
cognitive disorder of organic origin, but further testing was required to confirm that
suspicion. (Tr. 381.) She assigned a GAF score of 41 (Tr. 380), indicating "serious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) [or]
any serious impairment in social, occupational, or school functioning (e.g., no friends,
unable to keep a job)." Lee v. Barnhart ,117 Fed. Appx. 674, 678 (10th Cir. Dec. 8,
2004) (quoting Diagnostic and Statistical Manual of Mental Disorders at 34 (Text
Revision 4th ed. 2000) (“DSM-IV”).7
The ALJ gave little weight to this opinion, emphasizing the alleged “limited clinical
benefit of the GAF scale” as merely a snapshot of plaintiff’s level of functioning at the
time of the examination. (Tr. 34.) This determination was too facile a rejection of the

7

“The GAF is a subjective determination based on a scale of 100 to 1 of ‘the clinician’s judgment
of the individual’s overall level of functioning.’” Langley v. Barnhart, 373 F.3d 1116, 1122 n.3 (10th Cir.
2004) (quoting DSM-IV at 32).

9

potential relevance of the GAF score in this particular instance. Although a low GAF
score does not mandate a finding of disability, see Seymore v. Apfel, 1997 WL 755386
at *1-2 (10th Cir. Dec. 8, 1997);Cox v. Apfel, 2000 WL 1472729 at *9 (D. Kan. Feb. 24,
2000), a “GAF score of fifty or less . . . does suggest an inability to keep a job,” Lee, 117
Fed. Appx. at 678, and is particularly probative when coupled with a description of how
the rating affects a claimant’s ability to work, Eden v. Barnhart, 2004 WL 2051382 at *2
(10th Cir. Sept. 14, 2004); Seymore, 1997 WL 755386 at *2. Here, Dr. Wesley
specifically stated that plaintiff’s symptoms would impair work-related functions (Tr.
381), and although I agree with the ALJ that the opinion is vague insofar as it does not
quantify the extent of plaintiff’s work-related impairments, the onus was on the ALJ to
recontact Dr. Wesley for further clarification, see 20 C.F.R. § 416.927(c)(3); Social
Security Ruling 96-5p, 1996 WL 374183 at *6 (SSA July 2, 1996).
Instead, the ALJ discredited Dr. Wesley’s conclusions as based merely on
plaintiff’s “self-serving” statements. (Tr. 34.) Of course, the fact that a medical source
relies on a plaintiff’s subjective reports of her symptoms provides no basis for
discrediting a medical opinion. See Nieto v. Heckler, 750 F.2d 59, 60-61 (10th Cir.
1984); Gutierrez v. Astrue, 2008 WL 5246300 at *4 (D. Colo. Dec. 15, 2008). The
ALJ’s own disbelief of plaintiff’s subjective complaints provides no basis on which to
discredit an otherwise valid medical source opinion,8 since the ALJ may not substitute
8

The ALJ also characterized Dr. Wesley’s examination as “isolated.” (Tr. 34.) To the extent he
intended thereby to discredit her opinion further based on the fact that she had seen plaintiff only once,
this reason is illogical given his decision to rely instead on the psychological assessment of the nonexamining state agency physician – who merely reviewed the medical record and did not examine plaintiff
personally at all – instead. See Daniel, 2008 WL 3833761 at *5 (D. Colo. Aug. 13, 2008) (“[D]iscounting a
consultative examiner's opinion because it is based on a one-time examination is both illogical, since such
is the inherent nature of a consultative examination, and ironic in this instance, given that the opinion to

10

his lay opinion on the effect of medical findings for that of a medical professional.9 See
Hamlin, 365 F.3d at 1221. See also McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th
Cir. 2002) (“[A]n 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.”) (emphasis in original). That error is compounded here because the reasons
which the ALJ gave for discrediting plaintiff’s testimony also are insupportable.
There is little support in the record for the ALJ’s conclusion that plaintiff had
exaggerated her symptoms. (Tr. 34.) Dr. Wesley expressly found otherwise, noting
that plaintiff was a “reliable” informant (Tr. 377) and concluding that plaintiff’s reports of
physical pain were not “intentionally produced or feigned” (Tr. 381). The statement of
the non-examining state agency consultant, Dr. James Dyde, suggesting that plaintiff
exaggerated her symptoms, on which the ALJ relied, appears unsubstantiated.10 Nor
does the letter plaintiff submitted prior to the hearing, to which the ALJ also referred,
clearly substantiate such a conclusion. (Tr. 327-339.) The letter begins:
John Nash: 1994 Nobel Prize

which the ALJ ultimately afforded the greatest weight was based on no examination at all.”) (footnote
omitted).
9

This same error infected the ALJ’s rejection of the opinion of Ms. Diane Fresquez (misidentified
in the opinion as “Ms. Sanchez”), LCSW, who examined plaintiff just prior to the hearing in January 2012.
(Tr. 400-402.) Ms. Fresquez reported that plaintiff was hearing voices telling her to kill herself and feeling
hopeless, and felt that her current medical management was not controlling her symptoms adequately.
She assessed a GAF of 46. It simply was improper for the ALJ to discredit this report based on his own
evaluation of the import of Ms. Fresquez’s examination findings.
10

It is unclear how Dr. Dyde arrived at his conclusion that plaintiff “has exaggerated her current
psych. symp based on past more severe symp.” (Tr. 98.) The medical evidence at the time of Dr. Dyde’s
review consisted almost exclusively of Dr. Wesley’s opinion (Tr. 95-96, 98), which as noted herein, did not
support a conclusion of malingering or symptom magnification (Tr. 377, 381).

11

I am not a genius
I am not a schizophrenic
Consider for but a moment is it not possible to be intelligent
and (mad)?
4.0 ACS
UCCS
UNM Law School.
BiPolar by definition is a chemical imbalance.
The greatest minds in the world do not understand all the
facets of the mind.
Mental Illness:
I have been robbed. . . .
(Tr. 327.)11 It is hard to fathom how this submission can be adequately summed up by
the ALJ’s benign characterization as merely “a bit disorganized,” let alone how it
supports a conclusion that plaintiff was exaggerating the impact of her mental
impairments. (Tr. 34 n.7.)
The ALJ also pointed to plaintiff’s report of having “weaned” herself off Prozac
and Depakote shortly after meeting with Dr. Wesley. (Tr. 34, 432.) The ALJ’s
apparent inference that plaintiff no longer needed medication to control her bipolar
symptoms, however, is unwarranted. Mr. Morrison explicitly told plaintiff at the time
she reported going off her medications “that she does have bipolar disorder, and that
she may well need the medications in the future.” (Tr. 432.)12 Just as "it is a
questionable practice to chastise one with a mental impairment for the exercise of poor

11

Elsewhere, plaintiff purports to quote at length the screenwriter of “A Beautiful Mind,” a movie
which she said “comes close to what I am attempting to explain.” (Tr. 338.) She ended the letter with the
phrase “Journey Into Chaos” above her signature. (Tr. 339.)
12

Indeed, it appeared that plaintiff had gone off Prozac at least once previously in July 2009, at
which time Mr. Morrison “had a long discussion about anxiety/depression, chronic bipolar” and plaintiff
agreed to continue taking Prozac. (Tr. 370.) In addition, statements plaintiff made to Dr. Wesley
demonstrate that this was a long-standing pattern. (Tr. 378 (“‘They would prescribe, I would feel better
then I’d stop the meds thinking I was better. I’d get depressed again[.]’ . . . .This cycling back and forth
went on for 15 or 20 years.”).)

12

judgment in seeking rehabilitation,” Gutierrez, 2008 WL 5246300 at *4 n.4 (citation and
internal quotation marks omitted), it appears unreasonable to this court to permit an
ALJ to draw negative inferences from the treatment decisions of a claimant with a
confirmed mental illness, at least where those decisions are both self-directed and
apparently contrary to medical advice.
Moreover, the Commissioner's regulations explicitly recognize that the level of
functioning for a claimant who suffers from mental impairments “may vary considerably
over time.” 20 C.F.R. Pt. 404, Subpt. P, app. 1, § 12.00D(2). See also Daniel v.
Astrue, 2008 WL 3833761 at *4 (D. Colo. Aug. 13, 2008). Thus, the ALJ’s suggestion
that plaintiff was not credible because of her allegedly inconsistent treatment history
and the supposed “positive management of her symptoms with medication” does not
bear up on closer examination. (Tr. 34.) Although it does appear that plaintiff’s mental
health treatment history was somewhat peripatetic, it is difficult to characterize it as
efficacious. Plaintiff reported a 15- to 20-year history of efforts to control her mental
health symptoms, noting that after being prescribed medications, “I would feel better
then I’d stop the meds thinking I was better. I’d get depressed again[.]” (Tr. 378.)
The medical evidence seems to bear out this pattern as well. For example, in
February 2011, just five months after going off Prozac, plaintiff agreed to start again
because she was having mood swings again. (Tr. 425.) Nevertheless, by September,
plaintiff reported hearing voices telling her to kill herself, and was immediately referred
to Spanish Peaks Mental Health Center. (Tr. 422.) It appears that plaintiff did
participate in therapy “on a regular basis” for a time, but stopped because of her

13

involvement as a plaintiff in a class action lawsuit in Denver. (Tr. 403.)13 Although the
ALJ noted that plaintiff stopped therapy at that time (Tr. 34), he failed to note that she
resumed treatment in January 2012, at which time she reported an increased
frequency of panic attacks and that she was hearing voices, and stated that was “the
worse she has been in a while” and that her medications were not working. (Tr. 400402.) The ALJ's failure to acknowledge the cyclical pattern of plaintiff's symptoms
suggests some level of “cherry picking” the record, which is improper. See Robinson
v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).
The ALJ also relied on plaintiff’s activities of daily living, specifically that she
attended church and held a part-time job, as a basis for discrediting her subjective
complaints. (Tr. 34.) In general, activities of daily living do not translate well into a
determination of what the claimant can do on a sustained basis in the workplace.
Thompson, 987 F.2d at 1490. Particularly here, where these two activities comprised
the entirety of plaintiff’s reported regular activities outside the home (Tr. 73), it is
difficult to draw a broader inference about her credibility therefrom. Moreover, it
appears that plaintiff does not attend church regularly (Tr. 73), and the submissions of
her manager and the owner of the small video store where she works part-time
suggest that her employer is highly accommodating of her impairments (see Tr. 319,

13

Although there are no mental health records from this period in evidence, it is the ALJ’s duty to
ensure that the record is adequately developed. See Carter v. Chater, 73 F.3d 1019, 1022 (10th Cir.
1996). See also Dennis v. Astrue, 2012 WL 882408 at *3 (D. Colo. March 14, 2012) (citing Hawkins v.
Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) (ALJ “must use reasonable good judgment to ensure that the
record fairly addresses the material issues”).

14

320).14 The Commissioner has specifically recognized that activities a claimant is able
to perform only in a highly structured and supportive environment are not particularly
compelling evidence of the ability to sustain employment in other, more competitive,
contexts. See 20 C.F.R., Pt. 404, Subpt. P, app. 1, § 12.00F. The ALJ’s failure to
address these circumstances undermines his conclusion that plaintiff’s part-time work
detracted from the credibility of the limitations she claimed.
Thus, although “credibility 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), the ALJ’s findings here are not so
supported. Remand is therefore required. Although plaintiff intimates that a directed
award of benefits may be appropriate here, I find that this case does not present a
proper occasion for the exercise of my discretion in that regard.15 See Nielson v.
Sullivan, 992 F.2d 1118, 1122 (10th Cir. 1993).
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, who is directed to:

14

For example, plaintiff’s employer accommodates her despite the fact that she is absent an
average of 3 to 5 days a month due to her physical and mental impairments. (Tr. 319.) The vocational
expert testified that missing only two days of work per month would not tolerated in the competitive
workplace. (Tr. 83.)
15

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

15

a. Reevaluate the medical opinions of record in light of the court’s order
herein, making specific findings regarding the weight assigned to each
such opinion and the reasons therefor;
b. Recontact any medical or other source, seek the testimony of medical
or vocational experts, order further consultative examinations, or
otherwise further develop the record as he deems necessary;
c. Reassess the credibility of plaintiff’s complaints, giving specific
reasons tied to the evidence of record for his determination in that regard;
d. Reevaluate his opinions at steps 4 and 5 of the sequential evaluation;
and
e. Reassess the disability determination; and
3. 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 28 U.S.C.
§ 2412(a)(1).
Dated September 22, 2014, at Denver, Colorado.
BY THE COURT:

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