Thomas v. Colvin

Filing 23

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-02033-REB
MAURICE THOMAS,
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 31, 2013, seeking
review of the Commissioner’s decision denying plaintiff’s claim for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. I have
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g). The
matter has been fully briefed, obviating the need for oral argument. I reverse and
remand on the limited grounds noted here.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he is disabled as a result of degenerative disc disease of the
spine, migraine headaches, bilateral shoulder impairments, and bilateral plantar fasciitis.
After his application for disability insurance benefits was denied, plaintiff requested a
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.

hearing before an administrative law judge. This hearing was held on March 16, 2012.
At the time of this hearing, plaintiff was 46years old. He has an associate’s degree in
engineering management and past relevant work experience as a communications and
cable maintenance worker, systems controller, and IT consultant. He has not engaged
in substantial gainful activity since January 1, 2008, his alleged date of onset.
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits. Although the evidence established that plaintiff suffered
from severe impairments, the judge concluded that the severity of those impairments
did not meet or equal any impairment listed in the social security regulations. Other
alleged impairments were found not severe. The ALJ found that plaintiff had the
residual functional capacity to perform a range of light to sedentary work with further
postural and environmental limitations. Based on this determination, the ALJ concluded
that plaintiff could return to his past relevant work as an IT consultant. Alternatively, the
ALJ found that even if plaintiff could not perform his past relevant work, there were other
jobs existing in significant numbers in the national and local economies that he could
perform. He therefore found plaintiff not disabled at both step four and step five of the
sequential evaluation. Plaintiff appealed this decision to the Appeals Council. The
Council affirmed. Plaintiff then filed this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if his
physical and/or mental impairments preclude him from performing both his previous
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
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Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a five-step sequential evaluation process for
determining whether a claimant is disabled:
1.

The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.

2.

The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.

3.

The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.

4.

If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.

5.

If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.

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20 C.F.R. § 404.1520(a)(4)(i)-(v). See also Williams v. Bowen 844 F.2d 748, 750-52
(10th Cir. 1988). The claimant has the initial burden of establishing a disability in the first
four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287,
2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show
that the claimant is capable of performing work in the national economy. Id. A finding
that the claimant is disabled or not disabled at any point in the five-step review is
conclusive and terminates the analysis. Casias v. Secretary of Health & Human
Services, 933 F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.

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III. LEGAL ANALYSIS
Plaintiff alleges several grounds of error in this appeal. Most of them appear to
be largely without merit. However, because the ALJ’s finding that plaintiff’s migraine
headaches were not medically equivalent to any listed impairment is not properly
supported, I am constrained to remand for further determination on that limited issue.
Plaintiff alleged disability on the basis of, inter alia, migraine headaches. At step
3 of the sequential evaluation, the ALJ must determine whether the claimant’s alleged
impairments, singly or in combination, meet or medically equal one of the impairments
set forth in the Commissioner’s Listing of Impairments (the “listings”). See 20 C.F.R. Pt.
404, Subpt. P, app. 1. The listings set forth medical criteria pursuant to which
impairments of various bodily systems will be considered presumptively disabling. 20
C.F.R. § 404.1520(d). See Sullivan v. Zebley, 493 U.S. 521, 532, 534-35, 110 S.Ct.
885, 893, 107 L.Ed.2d 967 (1990). Although there is no separate listing for migraines,
the Commissioner has stated that the most analogous listing is section 11.03, which
sets forth criteria for non-convulsive epilepsy. See 20 C.F.R. Pt. 404, Subpt. P, app. 1,
§ 11.03. See Empire Justice Center, SSA Q & A 09-036 Migraines (available at
http://www.empirejustice.org/issue-areas/disability-benefits/rules–regulations/ssa-qa-09036-migrains.html#.VCBxymctDTs) (last accessed Sept. 22, 2014). The ALJ stated that
he “considered the neurological listings at 11.00 based on the claimant’s severe
impairment for migraine headaches and finds the criteria of no listing is met or equaled.”
(Tr. 27.)
This finding, however, is not supported by substantial evidence. “While the ALJ

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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 at least one of the forms typically used by the Commissioner to assess
disability at the initial stages of the administrative process. See Social Security Ruling
96-6p, 1996 WL 374180 at *3. The ALJ noted that the record contained several such
opinions in this case. (Tr. 26 (citing Tr. 90-102 (Dr. Berkowitz), 971-984 (Dr. Glasco),
985-992 (Dr. McIlhenny), 993-1001 (Dr. LoGalbo)).)
Unfortunately, none of these opinions addressed plaintiff’s migraines or assessed
whether his complaints were medically equivalent to section 11.03 of the listings.2
“[L]ongstanding policy requires that the judgment of a physician (or psychologist)
designated by the Commissioner on the issue of equivalence on the evidence before
the administrative law judge or the Appeals Council must be received into the record as
expert opinion evidence and given appropriate weight.” Social Security Ruling 96-6p,
1996 WL 374180 at *3 (SSA July 2, 1996). Here, the finding that plaintiff’s migraines
2

The Commissioner’s suggestion that the opinion of Dr. Mark Berkowitz supports the ALJ’s
findings in this regard is unfounded. Dr. Berkowitz’s signature appears above the case analysis of the
criteria applicable to assessing whether psychological disorders are of listing-level severity. (See Tr. 96.)
The physical residual functional capacity assessment that follows, however, is signed by Valerie King,
SDM. (Tr. 99.) Moreover, even if Dr. Berkowitz had endorsed a finding of medical equivalence under
section 11.03, the court would question whether Dr. Berkowitz, a psychiatrist, would be qualified to make
such a determination.

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did not medically equal the listings was made by a Single Decision Maker (“SDM”).
(See Tr. 99.) See supra note 2. An SDM is not a medical professional, see
Velasquez v. Astrue, 2008 WL 791950 at *3 (D. Colo. Mar. 20, 2008) (Blackburn, J.),
and therefore, the opinion of an SDM does not satisfy the requirement that the finding of
medical equivalence be supported by the opinion of a physician or psychologist, see
Lindsey v. Commissioner of Social Security, 2013 WL 6095545 at *6 (E.D. Mich.
Nov. 20, 2013); Elliott ex rel. Elliott v. Astrue, 2011 WL 4485907 at *5-6 (D. Colo
Sept. 28, 2011). Accordingly, I am constrained to remand so that such an opinion can
be obtained.
This is unfortunate in this case, as none of plaintiff’s remaining arguments would
appear to merit remand otherwise. The record in this case is particularly voluminous,
containing multiple medical and other source opinions and years of treatment and other
records. The ALJ’s yeoman-like effort in analyzing this prodigious record is
extraordinarily thorough and detailed, and is to be commended as exemplary. Were I to
consider the other issues assigned as error here, I would be hard-pressed to find any
other error, let alone reversible error, in the ALJ’s decision. Nevertheless, because
these issues potentially might be impacted on remand, it would be prodigal to address
them now. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003); Gorringe
v. Astrue, 898 F.Supp.2d 1220, 1225 (D. Colo. 2012).
I thus will remand for the limited purpose of requiring the Commissioner to obtain
an opinion on medical equivalence as to plaintiff’s migraines. Although plaintiff
intimates that a directed award of benefits may be appropriate here, I find that this case

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to be a particularly inappropriate instance for the exercise of my discretion in that
regard.3 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 to:
a. Solicit the opinion of a medical expert as to whether the evidence
supports a conclusion that plaintiff’s migraine headaches are medically
equivalent to section 11.03 of the listings;
b. Reevaluate the determination at step 3 with respect to migraines in
light of this opinion; and
c. Reassess the disability determination; and
3. That plaintiff is AWARDED his costs, to be taxed by the clerk of the court
pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1 and 28 U.S.C.
§ 2412(a)(1).
Dated September 22, 2014, at Denver, Colorado.
BY THE COURT:

3

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

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