Reed v. Colvin

Filing 20

ORDER that this case is REVERSED AND REMANDED to the Commissioner for further fact finding as directed in this Order pursuant to sentence four in 42 U.S.C. § 405(g), by Judge Wiley Y. Daniel on 9/29/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 13-cv-02052-WYD
CHAMBRE D. REED,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER

THIS MATTER is before the Court on review of the Commissioner’s decision that
denied Plaintiff’s application for supplemental security income. For the reasons stated
below, this case is reversed and remanded to the Commissioner for further fact finding.
I.

BACKGROUND
In May 2010, Plaintiff protectively filed an application for supplemental security

income. She alleged that she was disabled by limitations caused by injuries to her
back, shoulder and neck and obsessive compulsive disorder [“OCD”], and that her
disability began on September 1, 2007. (Administrative Record [“AR”] 153-56, 166.)
Plaintiff was born on April 17, 1986, and was 24 years old, which is defined as a
younger individual age 18-49, on the date the application was filed. (Id. 21.)
Following the initial denial of her application (AR 45-61), Plaintiff requested a
hearing before an Administrative Law Judge [“ALJ”]. The hearing was held on
December 18, 2011. (Id. 26-46.)

On January 13, 2012, the ALJ issued a decision finding that Plaintiff was not
disabled. (AR 11-25.) In the sequential evaluation process required by law, the ALJ
found at step one that Plaintiff had not engaged in substantial gainful activity since May
5, 2010, the application date. (Id. 16.) At step two, the ALJ found that Plaintiff has the
following severe impairments: recurrent OCD, obesity, anxiety, and back strain. (Id.)
At step three, the ALJ found that Plaintiff does not have an impairment or combination
of impairments that meets or medically equals one of the listed impairments. (Id.)
The ALJ then addressed Plaintiff’s residual functional capacity [“RFC”]. He found
that she has the RFC to perform light work as defined in 20 C.F.R. § 416.967(b) with the
option to alternate, at will, between sitting and standing; no more than occasional
bending, squatting, or kneeling; no over chest level work; no complex
tasks (SVP of 2 or less); and no dealing with the general public. (AR 18.)
At step four, the ALJ found that Plaintiff has no past relevant work. (AR 18.)
At step five, the ALJ relied on vocational expert testimony in finding that Plaintiff could
perform other work existing in significant numbers in the national economy. (Id. 31-32).
This included work as a photocopying - machine operator (DOT No. 207.685-014) and
counter clerk - photo finishing (DOT No. 249.366-010). (Id. 32.) Accordingly, the ALJ
found that Plaintiff was not disabled as defined in the Act. (Id.)
The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision
(AR 1-3), making the ALJ’s decision the Commissioner’s final decision. See 20 C.F.R.
§ 422.210(a). Plaintiff timely requested judicial review, and this appeal followed.
Plaintiff argues that the ALJ failed to properly determine her RFC and credibility.
Among other things, she asserts that the ALJ erred in the evaluation of the medical
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evidence regarding her OCD, agoraphobia, anxiety and other diagnoses, and failed to
properly evaluate the combined effects of her mental impairments. She further argues
that the underdeveloped nature of the step-three and RFC evaluations negatively
affected the rating of the degree of her mental functional limitations. Finally, Plaintiff
asserts that the ALJ erred in connection with evaluating her physical impairments, and
that the ALJ did not meet his burden at step five.
II.

ANALYSIS
A.

Standard of Review

A Court’s review of the determination that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standard and whether
the decision is supported by substantial evidence. Hamilton v. Sec. of Health and
Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). Substantial evidence is
evidence a reasonable mind would accept as adequate to support a conclusion. Brown
v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). “It requires more than a scintilla of
evidence but less than a preponderance of the evidence.” Gossett v. Bowen, 862 F.2d
802, 804 (10th Cir. 1988).
“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 substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487
(10th Cir. 1993). However, the court “must ‘exercise common sense’ in reviewing an
ALJ's decision and must not ‘insist on technical perfection.’” Jones v. Colvin, 514

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F. App’x 813, 823 (10th Cir. 2013) (quoting Keyes–Zachary v. Astrue, 695 F.3d 1156,
1166 (2012)).
The ALJ’s decision must be evaluated “based solely on the reasons given stated
in the decision.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). A posthoc rationale is improper because it usurps the agency’s function of weighing and
balancing the evidence in the first instance. Carpenter v. Astrue, 537 F.3d 1264, 1267
(10th Cir. 2008). Thus, I will not consider post-hoc arguments of the Commissioner.
B.

Plaintiff’s Arguments
1.

The Weighing of the Medical Evidence and RFC Assessment

I first address Plaintiff’s mental impairments. While the ALJ discussed several of
Plaintiff’s mental impairment diagnoses in his decision, he did not address whether all of
these impairments were severe at step two. Thus, the ALJ noted that consultative
examiner Dr. Victor A. Neufeld diagnosed depression, post traumatic stress disorder,
amnestic disorder, and “R/O” Learning Disability and Borderline IQ. (AR 20, 221.) He
also noted Dr. Marten’s additional diagnosis of agoraphobia with panic. (Id.) Yet the
ALJ ignored these impairments at step two and the later steps, which I find could have
significantly impacted the decision.
While the ALJ gave “little weight” to Dr. Neufeld’s opinion that Plaintiff has
“serious symptoms or functional impairments”, the diagnoses of mental impairments
that he and the other medical providers made were “specific medical findings” which
could not be rejected in the absence of conflicting evidence. Washington v. Shalala, 37
F.3d 1437, 1439 (10th Cir. 1994). The ALJ’s failure to consider these impairments at
step two and beyond is reversible error. Salazar v. Barnhart, 468 F.3d 615, 622 (10th
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Cir. 2006) (“It is beyond dispute that an ALJ is required to consider all of the claimant's
medically determinable impairments, singly and in combination; . . . .The ALJ’s failure to
consider Ms. Salazar’s borderline personality disorder, singly and in combination with
her other impairments, requires that we reverse.”).
The error in the ALJ’s failure to consider these diagnoses is illustrated by
Plaintiff’s symptoms associated with agoraphobia, which include anxiety and
hyperventilation while in public resulting in Plaintiff avoiding leaving her home. (AR 25960.) These symptoms resulted in Dr. Marten’s diagnosis of Agoraphobia with Panic,
which he found would “likely interfere with appropriate work and social functioning in
public settings as well.” Id. The ALJ’s failure to consider this impairment at step two
and beyond clearly impacted the decision. Indeed, it is difficult to determine how such
symptoms could not significantly impact Plaintiff’s ability to work. Accordingly, a remand
is required on this basis. On remand, the ALJ must consider all of Plaintiff’s mental
impairments and, if found severe at step two, consider whether they meet or equal the
listings at step three and the impact of these impairments in the RFC.1
Upon remand, even if the ALJ determines that certain impairments are not
severe at step two, they must still be considered when assessing RFC and making
conclusions at steps four and five.” Wells v. Colvin, 727 F.3d 1061, 1068-69 (10th Cir.

1

If found to be severe at step two, I agree with Plaintiff that the ALJ should consider at step three
whether Plaintiff’s agoraphobia, OCD and other impairments result in the “complete inability to function
independently outside the area” of her home. 20 C.F.R. Pt.404, Subpt. P, App. 1 § 12.06C. Further, the
ALJ should take into account the effect of Plaintiff’s home setting. Id., § 12.00F (highly structured and
supportive settings may . . . be found in your home. Such settings may greatly reduce the mental
demands placed on you . . . [if so] we must consider your ability to function outside of such highly
structured settings . . . The paragraph C criterion of 12.06 reflects the uniqueness of agoraphobia, an
anxiety disorder manifested by an overwhelming fear of leaving home).

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2013). Thus, in the RFC assessment, “the ALJ must consider the combined effect of all
medically determinable impairments, whether severe or not.” Id. at 1069.
Related to the above finding, I find error with the fact that while the ALJ found
Plaintiff’s OCD to be a severe impairment, he failed to assess how the OCD may impact
Plaintiff’s ability to work. The law is clear that in developing the RFC, the ALJ must
consider the limiting effects of all the claimant’s impairments. 20 C.F.R. § 416.945; see
also Bowman v Astrue, 511 F.3d 1270, 1272-73 (10th Cir. 2008).
On that issue, Plaintiff told Dr. Brett Valette she “feels like her ability to do her
daily routine or work or do her chores is affected by her OCD and her depression.” (AR
204.) She stated as to her OCD that she cannot use a public restroom, hand washes
over 100 times a day, changes her clothes 10 times a day, picks at her hair and her
eyebrows, has to go through a specific routine or she gets upset and anxious and
hyperventilates, and has “periods of depression feeling helpless and worthless, because
of her [“OCD”] and how it makes her housebound.” (Id. 203-04.) She said she cannot
work because “she says she just cannot be around people and she is so fearful of
germs.” (Id. 203.) Dr. Valette found Plaintiff to be credible, stating she was truthful, and
concluded that Plaintiff “endorse[s] significant symptoms of [OCD] that are affecting her
relationships, her ability to get chores done and her daily activities.” (Id.) He stated she
is much more isolative because of it.” (Id. 205.) While the ALJ mentioned Dr. Valette
and stated he assigned only moderate symptoms (id. 20)2, he improperly ignored these

2

Dr. Valette assigned a GAF score of 55, indicative of moderate symptoms. Keyes-Zachary, 695
F.3d at 1162 n. 1. “The GAF is a 100-point scale divided into ten numerical ranges, which permits
clinicians to assign a single ranged score to a person’s psychological, social, and occupational
functioning.” Id.

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findings. See Lee v. Barnhart, 117 F. App’x 674, 678 n. 2 (10th Cir. 2004)
(unpublished) (“The ALJ may not simply pick out portions of a medical report that favor
denial of benefits, while ignoring those favorable to disability.”).3
Plaintiff also reported to Dr. Brad Marten that she did not accomplish household
chores because “she avoids touching objects”, “she does not accomplish errands and
shopping due to her tendency to avoid people”, “she has given up shopping and
socializing due to panic/anxiety”, and she has a specific routine of showering and
dressing multiple times per day, of washing her hands 50-100 times per day and of
avoiding door knobs. (AR 252, 255.) Consistent with this, Dr. Marten diagnosed OCD
and stated Plaintiff’s tendency to avoid touching doorknobs and her report of
compulsive hand washing may negatively impact or interfere with work functioning. (Id.
259-60.) Yet the ALJ failed to address this in the RFC or to weigh Dr. Marten’s opinion.
While the ALJ stated that Dr. Marten did not render an opinion of the degree of
Plaintiff’s limitations regarding her ability to perform basic work-related activities, he
ignored Dr. Marten’s opinions that Plaintiff’s OCD and agoraphobia would impact
Plaintiff’s work functioning. This was error. Where the ALJ does not provide any
explanation for rejecting medical evidence, the court “cannot meaningfully review the
ALJ’s determination. Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001)
Moreover, Dr. Marten’s statements about Plaintiff’s condition or impairments are specific
medical findings that the ALJ errs in rejecting in the absence of conflicting evidence.

3

Moreover, the Tenth Circuit has made clear that the existence of a moderate impairment is not
the same as no impairment at all. Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007). Even moderate
impairments may decrease the ability to work. See Bowers v. Astrue, 271 F. App’x 731, 733-34 (10th Cir.
2008) (unpublished).

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Washington, 37 F.3d at 1439.4 If the ALJ believed that Dr. Marten’s findings were
inadequate to determine whether a disability existed, he was required to contact him.
See McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002); Thomas v. Barnhart,
147 F. App’x 755, 759-60 (10th Cir. 2005).
Next, I find error with the ALJ’s weighing of the medical evidence regarding
Plaintiff’s mental impairments in connection with the RFC assessment. The ALJ gave
“little weight” to an opinion of consultative psychological examiner Dr. Neufeld. On Axis
I, Dr. Neufeld diagnosed Anxiety nos with Agoraphobic and Social Phobia Features,
History of OCD, and probable Driving Phobia, Depression nos, Post Traumatic Stress
Disorder, R/O Learning Disability, and Amnestic Disorder, nos; “R/O Borderline IQ” on
Axis II; pain on Axis III; and a GAF score of 45, indicative of serious symptoms. KeyesZachary, 695 F.3d at 1162 n. 1. Dr. Neufeld noted that Plaintiff “described anxiety
features that significantly limit her function”, and opined that Plaintiff had “dramatic
impairment in her ability to learn and recall new verbal information” and “poor
comprehension and fund of information.” (AR 222.) He also questioned whether
Plaintiff could manage her own funds, and opined that Plaintiff “exhibited severe
memory impairment”, possible impairment in her ability to comprehend written
instructions, and moderate impairment in social interaction. (Id.) Finally, he stated he
suspected “her pain issues interfere significantly with persistence and pace”, and

4

While the ALJ stated that Dr. Marten expressed the opinion that Plaintiff’s symptoms and/or
functional limitations was moderate, noting the GAF score he assessed of 53 (AR 20), this did not allow
him to simply ignore Dr. Marten’s opinion as explained previously. See also Bowers v. Astrue, 271 F.
App’x 731, 733-34 (10th Cir. 2008) (noting that even moderate impairments may impact the ability to
work).

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recommended psychotherapy and “further testing to determine the severity of her
cognitive [sic] and memory.” (Id.)
The ALJ stated that he gave Dr. Neufeld’s opinion “little weight” as the “exam
was very brief.” (AR 20.) However, the examination does not appear to be any different
than that of Dr. Valette’s which the ALJ relied on to discredit Dr. Neufeld’s opinion. The
Tenth Circuit has indicated that an ALJ cannot summarily reject a physician’s report as
inadequate when it is comparable to a report the ALJ found sufficiently detailed. Teter
v. Heckler, 775 F.2d 1104, 1106 (10th Cir. 1985).
The ALJ also stated that he gave little weight to Dr. Neufeld’s opinion because
“his conclusion appears to be based on the claimant’s own report of her psychological
problems rather than on objective findings.” (AR 20.) Yet the ALJ ignored the many
objective findings that Dr. Neufeld made. In addition to those discussed in the previous
paragraph, Dr. Neufeld noted on examination that Plaintiff was slow to comprehend and
exhibited a flat affect. (Id. 221.) He also found that Plaintiff “was not able to do serial 7
or 3 subtractions”, “had difficulty learning 5 words over 2 trials and “could not recall any
of them on free recall and 0 more with category cue”, “had a limited fund of information”,
“was unable to answer a simple multiplication work problem”, and “did not recognize
why society pays taxes.” (Id.) As the Tenth Circuit has made clear, “[a] psychological
opinion need not be based on solely objective ‘tests’; those findings ‘may rest either on
observed signs and symptoms or on psychological tests.’” Thomas, 147 F. App’x at 759
(quoting Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004)). Further, “[t]he
practice of psychology is necessarily dependent, at least in part, on a patient’s
subjective statements.” Id. The ALJ’s approach of rejecting Dr. Neufeld’s opinion
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“because he based it, in part, on” Plaintiff’s responses to “his tests involving memory
and concentration impermissibly put the ALJ in the position of judging a medical
professional on the assessment of medical data.” Id. at 759-60.
Finally, the ALJ found that Dr. Neufeld’s opinion was “not consistent with the
substantial evidence of record”, pointing to Dr. Valette’s opinion that assessed a GAF
score of 55 indicative only of moderate symptoms or limitations. (AR 20.) See KeyesZachary, 695 F.3d at 1162 n. 1. However, Dr. Valette made findings regarding
Plaintiff’s symptoms and their impact on functioning that are supportive of Dr. Neufeld’s
opinion, as discussed previously. Dr. Marten also made findings that are supportive of
Dr. Neufeld’s findings. While their GAF scores of 53 (Dr. Marten) and 55 (Dr. Valette)
are slightly higher than the score of 45 assigned by Dr. Neufeld, all of the scores
indicate at least moderate symptoms, and all of the doctors assessed difficulties in
functioning. Thus, Dr. Neufeld’s opinion was not necessarily inconsistent with the
evidence. The Tenth Circuit is clear that an ALJ may not “‘ignore evidence that does
not support his decision, especially when that evidence is ‘significantly probative.’”
Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001) (quotation omitted).
Instead of giving weight to any of the examining mental health providers, the ALJ
chose to give “substantial weight” to the opinion of State agency psychologist
Dr. Caruso-Radin in assessing Plaintiff’s RFC. (AR 20.)5 Dr. Caruso-Radin opined from
her review of the record that Plaintiff had mild restriction of daily living; moderate
difficulties in maintaining social functioning; moderate difficulties in maintaining

5

The ALJ also gave “considerable weight” to Dr. Caruso-Radin’s opinion in finding that Plaintiff
“does not have a mental impairment or combination of impairments of Listing-level severity.” (AR 17.)

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concentration, persistence, or pace; and no episodes of decompensation. (Id. 54). She
also opined that Plaintiff retained the ability to “follow simple instructions, sustain
ordinary routines and make simple work-related decisions, can respond appropriately to
supervision, coworkers but would perform better with minimal to no interaction with the
general public.” (Id. 54, 57-58.) The ALJ gave “substantial weight” to this opinion (id.
20), and the RFC thus included “no complex tasks (SVP of 2 or less); and no dealing
with the general public.” (Id. 18.)
Given the fact that the ALJ did not properly assess and weigh the opinions of the
examining physicians, the ALJ on remand will have to reassess his reliance on the
opinion of Dr. Caruso-Radin. On remand, he must keep in mind that the “opinion of an
examining physician or psychologist is generally entitled to less weight than that of a
treating physician or psychologist, and the opinion of an agency physician or
psychologist who has never seen the claimant is generally entitled to the least weight of
all.” Robinson, 366 F.3d at 1084. Further, an ALJ’s reliance on an agency medical
consultant’s opinion is reasonable only insofar as that opinion is supported by evidence
in the case record. Lee, 117 F. App’x at 687 (citing SSR 96-6P, 1996 WL 374180, at
*2). In other words, the agency consultant’s opinion must itself “find adequate support
in the medical evidence.” Id.
I also, however, find error with the ALJ’s reason for giving Dr. Caruso-Radin’s
opinion substantial weight, i.e., that it was “supported by and consistent with the record
as a whole.” (Id. 20.) That reason was conclusory, as the ALJ failed to explain how her
opinion was supported by and consistent with the record. Accordingly, it cannot be
weighed to determine whether it is supported by substantial evidence. See Crawford v.
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Colvin, No. 12-5125, 2014 WL 1193336, at *2 (10th Cir. March 25, 2014) (holding the
court could not determine whether substantial evidence supported the ALJ’s decision
not to give a physician’s opinion controlling weight when the ALJ found the doctor’s
“opinions inconsistent with the other record evidence, but failed to identify those
inconsistencies with any clarity”); see also Krauser v. Astrue, 638 F.3d 1324, 1331 (10th
Cir. 2011) (noting as to conclusory finding by ALJ that “[i]t 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 himself to do in the proceedings on remand”).
Moreover, I question what in the record supports Dr. Caruso-Radin’s opinions.
There is no indication that she took into account Plaintiff’s OCD rituals and agoraphobia
described by the examining physicians, or the significant functional limitations that they
found as a result. It certainly seems that such symptoms could impact basic work
activities that she ignored such as responding appropriately to supervision, co-workers
and usual work situations and dealing with changes in a routine work setting. See 20
C.F.R. § 404.1521(b).6 The ALJ must consider on remand whether the totality of the
evidence as to Plaintiff’s agoraphobia and OCD overwhelms Dr. Caruso-Radin’s opinion
that Reed was able “to function independently outside the area of her home.” Musgrave
v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (“Evidence is not substantial if it is
overwhelmed by other evidence in the record. . .”).

6

It may have been that Dr. Caruso-Radin was basing her opinion, at least in part, on the fact that
Plaintiff’s previous claims were denied and “[t]here isn’t much change since the previous two denials.”
(AR 54.) However, that was improper, as each application must be considered separately and there is no
presumption of nondisability.

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While the Commissioner asserts that the evidence “‘manifested by the
overwhelming fear of leaving home” would only overwhelm Dr. Caruso-Radin’s opinion
“if Plaintiff were credible, as her testimony (and the testimony of her mother) was the
only evidence supporting her contentions” (Def.’s Resp. Br. at 20), this is not accurate.
Instead, as discussed above, the examining medical providers rendered opinions about
limitations Plaintiff would have as a result of her OCD and agoraphobia.
I now turn to Plaintiff’s physical impairments. The ALJ gave “little weight” to the
opinion of consultative examiner Ryan J. Otten, M.D. (AR 19.) Dr. Otten diagnosed
chronic neck pain; chronic low back pain; chronic shoulder pain, decreased mobility,
chronic bilateral knee pain, suspected osteoarthritis; morbid obesity; and generalized
deconditioning. (AR 249.) He gave the following Functional Assessment:
The number of hours the claimant should be able to stand or walk during a
normal 8-hour workday is about 2 to 4 hours. The number of hours the
claimant should be able to sit during a normal 8-hour workday is about 4
to 6 hours. Frequent postural difficulties are expected with bending,
squatting, crouching, and stooping. . . .The amount of weight the claimant
should be able to lift or carry frequently is less than 20 pounds or
occasionally is less than 30 pounds. Occasional manipulative difficulties
are expected with reaching, pushing, pulling, grasping, fingering, handling,
and feeling with both upper extremities. The claimant should have only
occasional exposure to heights, stairs and ladders. . . .
(Id.)
The ALJ found that Dr. Otten’s opinion “is not well supported by the objective
medical findings; i.e., normal gait; normal strength, sensation, and reflexes; and normal
straight leg raising test.” (Id.) The ALJ ignored, however, Dr. Otten’s findings of
decreased mobility; discomfort with cervical range of motion as well as dorsal lumbar
ranges of motion; and moderate tenderness to palpation noted in the cervical and

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lumbar areas, both over the spinal processes and in the left paraspinal regions. (Id.
248-249.) The ALJ may not “‘pick and choose among medical reports, using portions of
evidence favorable to his position while ignoring other evidence.’” Carpenter v. Astrue,
537 F.3d 1264, 1265 (10th Cir. 2008) (quoting Hardman v. Barnhart, 362 F.3d 676, 681
(10th Cir. 2004). Moreover, the ALJ was improperly substituting his lay judgment for
that of the doctor as to what Dr. Otten’s objective findings meant. 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.’” Langley v. Barnhart, 373
F.3d 1116, 1121 (10th Cir. 2004) (emphasis in original) (quoting McGoffin, 288 F.3d at
1252). Accordingly, I find that the ALJ erred in connection with Dr. Otten’s opinion, and
that this is another basis for remand.
Instead of assigning any weight to the opinions of examining physician Dr. Otten,
the ALJ chose to give “substantial weight” to the opinion of State agency medical
consultant Dr. Steinhardt. (AR 20.) Dr. Steinhardt opined that, based upon severe
obesity, sprain cervical spine, sprain thoracic and lumbar spine, Plaintiff could lift/carry
20 lbs. occasionally and 10 lbs. frequently; she could frequently climb ramps/stairs,
balance, kneel, and crouch and occasionally climb ladders/ropes/scaffolds, stoop and
crawl. (Id. 55-56.) Dr. Steinhardt thus opined from Plaintiff’s medical records that she
had the RFC to perform work consistent with light exertion. (Id. 55-57.)
The ALJ found that Dr. Steinhardt’s opinion was “supported by and consistent
with the record as a whole.” (AR 19-20.) He noted as to the record that Plaintiff’s
strength was good (id. at 19), and that “the medical evidence does not establish any
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underlying medically determinable impairment other than ‘back strain’”. (Id.) He cited
as an example the fact that “records from the claimant’s primary care provider
document some complaints of thoracic and lumbar strain, with no radicular or
myelopathic symptoms.” (Id.) Finally, he noted that “[e]xamination records document
normal gait, muscle strength, motor function, reflexes, fine motor and cerebellar
function, sensory function, and straight leg raising test.” (Id.) Again, however, the ALJ
ignored objective findings that supported Plaintiff’s complaints of symptoms relative to
her back impairment. In addition to those noted by Dr. Otten, which I discussed
previously, there is other evidence that supports these complaints. (See, e.g. AR
233—noting significant muscle tautness in the cervical, thoracic and lumbar
paravertebrals; 211—finding decreased range of motion of the lumbar, thoracic and
cervical spine regions and diagnosing Lumbago and Chronic pain syndrome).7
Also, despite the above objective findings and despite Dr. Otten’s diagnosis of
chronic pain, the ALJ rejected Plaintiff’s complaints of “pain or other symptoms of the
intensity, frequency or persistence alleged”, finding that Plaintiff was “less than fully
credible.” (AR 19.) However, a proper pain analysis requires the ALJ to consider not
only Plaintiff’s subjective accounts of the severity of pain, but the medical data and any
other objective indications of the degree of pain. Again, the ALJ erred by ignoring the
medical evidence and objective findings that supported Plaintiff’s complaints of pain. I

7

The record also documents complaints of chronic pain by Plaintiff. (See, e.g., 232—complaint of
thoracic and lumbar strain and pain, radiating from the bottom of her lower back up to her shoulders,
aggravated by prolonged standing, prolonged sitting, stretching and exercise and relieved by heat and
rest; 233—describing pain as numbing, tingling and stabbing with a 9 severity; 211—complaints of
worsening pain since motor vehicle accidents in September 2006 and December 2008, cervical thoracic
and low-back pain was noted from a 2 to a 6-7, exacerbated with bending, standing, sitting and relieved by
lying down and improved with heat).

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also note that since the ALJ assessed a light RFC and found Plaintiff’s back strain was
severe, he obviously gave some credibility to her back problems and her obesity. Yet
he failed to account for any problems associated with that in terms of pain in the RFC.
This appears to be inconsistent.
The above errors will require the ALJ to reconduct the five-step sequential
evaluation, beginning at step two. On remand, the RFC and hypothetical question
should take into account all of Plaintiff’s impairments.
3.

Credibility Findings

Plaintiff also argues, and I agree, that the ALJ erred in assessing her credibility.
Thus, a remand is required on this basis as well. In so finding, I acknowledge that
“‘[c]redibility determinations are peculiarly the province of the finder of fact.’” Kepler v.
Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Diaz v. Sec. of Health & Human
Servs., 898 F.2d 774, 777 (10th Cir. 1990)). “However, ‘[f]indings as to credibility
should be closely and affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.’” Id. (quotations omitted).
The ALJ found that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent” with the RFC assessment. (AR 1819.) I agree with Plaintiff that the ALJ erred as to some of the reasons given for this
credibility finding. Thus, the ALJ found as to Plaintiff’s physical complaints that she “had
absolutely no physical complaints at the hearing.” (Id. at 19.) Yet he diagnosed back
strain as a severe impairment, thus conceding that she did have physical impairments.
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Moreover, I find that the ALJ erred in not developing the evidence on this issue, i.e., he
did not ask her about her physical impairments. “The ALJ has a duty to fully and fairly
develop the record as to material issues.” Baca v. Dept. of Health & Human Servs., 5
F.3d 476, 479-80 (10th Cir. 1993)). When the ALJ considers an issue that is apparent
from the record, as Plaintiff’s physical impairments were, he has a duty of inquiry and
factual development with respect to that issue.” Id.
As to Plaintiff’s mental impairments, the ALJ found that “there is no evidence of
any treatment for any mental health by any mental health professional.” (AR 19.) “Her
only treatment has consisted of Prozac prescribed by her primary care provider.” (Id.)
However, there is evidence in the record that Plaintiff lacked funds or insurance to
afford such treatment. (AR 41, 201, 253.) The ALJ erred in not considering this in
assessing Plaintiff’s credibility. See SSR 96-7p, 1996 WL 374186, *7-8 (1996). A
claimant’s inability to afford treatment may constitute justifiable cause for failing to get
such treatment. See Threet v. Barnhart, 353 F.3d 1185, 1191 n. 7 (10th Cir.2003); Lee,
117 F. App’x at 681.8
The ALJ also found that Plaintiff “has not demonstrated that her prescription
medications are not effective or that they cause adverse side effects.” (AR 19.)
However, the record reflects that Plaintiff’s Prozac medication was only partially
effective for her depression per Dr. Marten’s report. Indeed, Dr. Marten indicated that
Plaintiff reported “current and recent symptoms of depression, including thoughts of
hopelessness, hypersomnia, isolation, irritability, lack of patience, and worry”, and

8

This lack of funds may also have impacted Plaintiff’s cancellation of some of her physical
therapy visits, another factor mentioned by the ALJ in finding Plaintiff not fully credible. (Id. 19.)

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diagnosed “Major Depressive Disorder, Single Episode” in only “partial remission.” (Id.
254, 259.) Further, there is no evidence that Prozac helped her agoraphobia or OCD,
and this medication was not a legitimate reason for undermining Plaintiff’s credibility as
to symptoms related to those impairments.
Finally, I find that the ALJ gave improper reasons for giving no weight to the
testimony of Plaintiff’s mother, Charlene Reed. The first reason for giving her opinion
no weight is that she “is not a mental health professional”. (AR 21.) However, this does
not allow the ALJ to simply reject her testimony. Instead, parents are considered “other
source” evidence who may have “special knowledge of the individual and may provide
insight into the severity of the impairment(s) and how it affects the individual’s ability to
function.” SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006). An ALJ is required to
properly consider and weigh this testimony. Id.; 20 C.F.R. §§ 404.1513(d)(4) and
416.913(d)(4); SSR 85-16 (“relevant, reliable information, obtained from ... family
members ... may be valuable in assessing” whether a mental impairment is disabling).
The ALJ also stated that Plaintiff’s mother’s “statements do not support
vocationally relevant limitations not already included in the” RFC. (AR 21.) Again, this
is not accurate. Plaintiff’s mother Ms. Reed testified in detail about the impacts of
Plaintiff’s OCD and agoraphobia, and how they severely limit Plaintiff’s functioning. (Id.
37-39.) For example, she testified that Plaintiff stays in her room and does not leave
three to four days a week, that she is afraid to touch things due to mold and mildew, and
that if her routine is upset, she must redo the entire routine again starting at step one.
(Id.) These limitations were clearly not accounted for in the RFC. Further, Plaintiff’s

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mother’s testimony is confirmation of the significant symptoms highlighted by
Drs. Valette, Neufeld and Marten that were improperly ignored by the ALJ.
III.

CONCLUSION
Based upon the foregoing, I find that the ALJ erred in her assessment at steps

two and three and in connection with the RFC. She did not adequately weigh the
medical evidence, and erred in assessing Plaintiff’s pain and credibility and the
credibility of Plaintiff’s mother. These errors impact the findings at later steps of the
sequential evaluation. Accordingly, it is
ORDERED that this case is REVERSED AND REMANDED to the Commissioner
for further fact finding as directed in this Order pursuant to sentence four in 42 U.S.C.
§ 405(g).
Dated: September 29, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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