Davis v. Colvin et al

Filing 29

ORDER Reversing and Remanding ALJ's Decision Denying Social Security Benefits. The ALJs denial of disability benefits is REVERSED and this case is REMANDED for further proceedings consistent with this order. By Judge Christine M. Arguello on 09/04/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-02271-CMA
ANTHONY DARNELL DAVIS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER REVERSING AND REMANDING ALJ’S DECISION
DENYING SOCIAL SECURITY BENEFITS

Plaintiff Anthony Darnell Davis, a thirty-five-year-old Iraq war veteran, alleges he
suffers from, among other things, disabling depression; post-traumatic stress disorder
(PTSD); and pain in his wrist, back, shoulders, and feet. An Administrative Law Judge,
disagreed, reasoning that while Plaintiff suffered from these and other impairments, they
were not disabling. After the ALJ made his decision, Plaintiff submitted supplemental
records from doctors and the Veterans Administration that strongly support his preferred
interpretation of the severity of some of his ailments—in particular, his mental health
functioning. This additional evidence casts sufficient doubt on the ALJ’s original
decision to require remand of this case for further consideration.
I. BACKGROUND
Like many Social Security Appeals, the parties present two competing narratives
on how Plaintiff’s physical and mental impairments affect his life and impact his

disability claim. On the one hand, Plaintiff emphasizes medical findings that could be
interpreted as indicative of more severe, constant, and therefore disabling impairments.
In support of this position, he points to parts of the record in which medical
professionals expressed graver concerns about the effects on his daily life of his
musculoskeletal pain, his depression, his combat-related PTSD, and the lingering
effects of an episode that occurred in July 2012, in which he suffered from a major
depressive episode, contemplated suicide, and spent time in a mental health facility. 1
On the other hand, other parts of the record—referenced mainly by the Government—
do not paint such a bleak prognosis for Plaintiff’s physical or mental health. 2

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See, e.g., (AR 803, 809) (medical records recording “tenderness on palpation” and “spasms”
for muscles in Plaintiff’s shoulder); (AR 698-705) (November 2012 record from Dr. Adrienne
French who indicated, among other things, that Plaintiff tested positive on some clinical tests
designed to register pain in his shoulders and wrists); (AR 179) (report of Plaintiff’s July 2012
major depressive episode, in which he presented to a mental health facility with suicidal
ideation, depression, and PTSD symptoms and stayed in the facility for seven days); (AR 338343) (self-reporting from Plaintiff about his low quality of life and references to the July 2012
episode).
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See, e.g., (AR 701-04) (November 2012 report from Dr. French concluding that none of
Plaintiff’s reported physical conditions—including migraines, sleep apnea, spondylosis of
the thoracic and lumbar spine, chronic bilateral wrist strain, bilateral knee condition, bilateral
shoulder strain, bilateral plantar fasciitis, breast surgery residuals, chronic diarrhea, and bilateral
hand tremor—affected his ability to perform his usual occupation or his ability to engage in usual
daily activities); (AR 675) (November 2012 report from an examining physician stating that
Plaintiff reported he could walk for two miles and lift and carry up to thirty pounds); (AR 160)
(July 2012 discharge report from attending physician at the mental health facility, in which she
describes Plaintiff as “not gravely disabled” and in stable condition after his major depressive
episode); (AR 710) (October 2012 psychiatric examination report completed by Dr. Brad Mallory
noting, inter alia, that Plaintiff suffered from PTSD but concluding that his mental health outlook
was good because of his compliance with treatment and his supportive wife); (AR 834) (January
2013 report from Dr. Grenier assigning Plaintiff a GAF score of 63, which is indicative of no
more than mild mental health symptoms); (AR 45-46) (report from a nonexamining state
psychologist who reviewed the record as of December 2012 and found that Plaintiff had
no restriction of activities of daily living, moderate difficulties in maintaining social functioning,
mild difficulties in maintaining concentration, and no extended episodes of decompensation).

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In considering these two competing portraits of Plaintiff’s life and alleged
disabilities, the ALJ endorsed more of the latter narrative and discounted much of the
former. To be sure, the ALJ recognized that Plaintiff had one major depressive episode
(in July 2012) and continued to deal with the challenge of his PTSD. The ALJ also
acknowledged that Plaintiff had to endure some amount of musculoskeletal pain.
However, the ALJ concluded that while these challenges limited the type of work
Plaintiff could perform, they did not preclude all work and did not warrant a finding
of disability. (AR at 12-21.)
After the ALJ rendered his decision, Plaintiff provided two additional records that
he claims would have affected the ALJ’s decision. The first is a post-decision letter
dated May 4, 2013, in which Dr. Charles Salerno and Mary Ann Carter—respectively,
a social worker and a medical doctor—suggest that he has suffered from “devastat[ing]”
combat-related PTSD that renders him incapable of normal functioning for large
portions of the work week. (AR 839.) Dr. Salerno and Ms. Carter—who apparently
treated Plaintiff “weekly to biweekly” from May 2011 to October 2012 3—also provide
what is mostly a check-the-box evaluation of Plaintiff’s mental residual functional
capacity and conclude that he is precluded from performing most types of tasks.
(AR 836-38.)
The second record is an opinion from the Department of Veteran Affairs (VA),
finding that, as relevant here, Plaintiff is 70 percent disabled as a result of his PTSD
3

As the Government notes (Doc. # 20 at 23), Plaintiff has never clarified the exact nature of
treating relationship he has with these medical professionals. The Court presumes he will do
so on remand.

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but is only ten percent disabled as a result of many physical impairments (such as pain
and lack of mobility in his wrists and shoulders). (Doc. # 15-1 at 4.) According to the
VA, this yields an overall disability rating of 90 percent. (Id. at 6.)
II. STANDARD OF REVIEW
This Court’s review of the ALJ’s determination as to Plaintiff’s disabilities is
limited to determining whether the ALJ’s decision is supported by substantial evidence
and whether the ALJ applied the correct legal standards. Wall v. Astrue, 561 F.3d
1048, 1052 (10th Cir. 2009).
Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. It requires more than a scintilla but less
than a preponderance. Wall, 561 F.3d at 1084. In reviewing the record and the
arguments of counsel, the Court does not reexamine the issues de novo, Sisco v.
United States Department of Health and Human Services, 10 F.3d 739, 741 (10th
Cir. 1993), nor does it re-weigh the evidence or substitute its judgment for that of the
Commissioner, Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). Thus, even
when some evidence may have supported contrary findings, the Court “may not
displace the agency’s choice between two fairly conflicting views,” even if the Court
may have “made a different choice had the matter been before it de novo.” Oldham
v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007). This Court applies the above
standard in considering each of Plaintiff’s challenges to the ALJ’s decision.

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III. ANALYSIS
A.

PHYSICAL IMPAIRMENTS
Plaintiff’s first argument relates to a determination the ALJ made at step two of

the five-part process for evaluating an alleged disability, when the ALJ must determine
whether Plaintiff is suffering from any severe impairments. In this case, the ALJ
concluded that Plaintiff had the following severe impairments: affective disorder,
PTSD, spondylosis, obesity, and alcohol abuse, in remission. (AR 14)
Plaintiff argues this list should have also included a number of additional
musculoskeletal impairments such as myofascial pain with fibromyositis nodules and
active trigger points causing pain in his neck, shoulders, wrists, and knees; chronic
residual pain. He also suggests—with no argument—that the list should have included
impairments such as disruptive sleep apnea, severe headaches, and dizziness and
fatigue.
An impairment is “not severe if it does not significantly limit [a claimant’s] physical
or mental ability to do basic work activities.” 20 C.F.R. § 404.1521(a); see also
Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th Cir.2003) (“[A] claimed ‘physical or
mental impairment must be of a nature and degree of severity sufficient to justify its
consideration as the cause of failure to obtain any substantial gainful work.’”). Further,
“while the showing a claimant must make at step two is de minimis, a showing of the
mere presence of a condition is not sufficient.” Cowan v. Astrue, 552 F.3d 1182, 1186
(10th Cir. 2008).

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The ALJ committed no reversible error in limiting his finding of severe physical
impairments to those listed above. First, Plaintiff presents no actual argument as to
why his non-musculoskeletal impairments should have been considered severe. To the
extent that he alleges error as to these impairments (i.e., those related to sleep apnea,
for example), he has waived the argument for want of sufficient briefing. See KeyesZachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (“We will consider and discuss
only those contentions that have been adequately briefed for review.”); Murrell v.
Shalala, 43 F.3d 1388, 1390 (10th Cir. 1994) (reasoning, in the Social Security context,
that “perfunctory complaints [that] fail to frame and develop an issue sufficient to invoke
appellate review” are forfeited and collecting further authorities in support of this
proposition).
Second, substantial evidence—principally, Dr. Adrienne French’s evaluation of
Plaintiff (referenced in footnote two above) combined with Plaintiff’s self-reporting in
November 2012 of his ability to carry thirty pounds and walk two miles—supports the
ALJ’s decision to consider these impairments non-severe. See (AR 702-04). To be
sure, as was mentioned above, Plaintiff seeks to emphasize the parts of the record
where other health care professionals noted that Plaintiff had pain (or at least reported
he had pain) in his shoulders and wrists. See (Doc. # 18 at 6-8.) But reports of such
ailments by themselves do not make them severe. Cowan, 552 F.3d at 1186. Further,
weighing the import of reports that suggest Plaintiff is enduring more pain against those,
such as the one prepared by Dr. French, that suggest he is in less pain, is a task to be

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undertaken by the ALJ and one not to be revisited by this Court. See Salazar, 468 F.3d
at 621.
Relatedly, at Step Four of the Five-Part analysis, the ALJ in fact acknowledged
that Plaintiff had “tenderness to palpation as well as muscle spasm and pain on range of
motion,” relying on reports for Plaintiff’s outpatient care from July 2012. (AR 18 (citing
AR 251).) The ALJ further accepted that Plaintiff “had evidence of myofascial tightness
and tenderness with trigger points” and “pain in range of motion testing.” (AR 18).
At the same time, the ALJ concluded “given the minimal findings on examination and
the conservative nature of the treatment [as to these impairments], no additional
limitations” to Plaintiff’s residual functional capacity were warranted. (AR 18.)
Plaintiff advances no specific argument as to why these rationales for discounting
the severity of Plaintiff’s shoulder and wrist pain—i.e., that treatment was conservative
and there were minimal findings—are deficient or inaccurate. Further, these rationales
are consistent with Dr. French’s evaluation of Plaintiff’s impairments. Thus, any alleged
error at Step Two became harmless, because the ALJ considered these ailments at
Step Four and rejected them as inconsistent with the weight of the record evidence.
See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“any error here became
harmless when the ALJ reached the proper conclusion that [the claimant] could not
be denied benefits conclusively at step two and proceeded to the next step of the
evaluation sequence”).

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B.

MENTAL IMPAIRMENTS
Plaintiff next challenges the ALJ’s evaluation of his mental impairments,

suggesting he meets the requirements of a listing of impairments under §§ 12.04 and
12.06. More broadly, Plaintiff challenges the ALJ’s determination that he had only
moderate difficulties in social functioning.
Plaintiff argues the ALJ erred in reaching these conclusions and adopting this
reasoning, but his attorneys provide very little in the way of actual argument or analysis
to support his position. Rather, all these attorneys have done is: (1) copied and pasted
the relevant law and regulations regarding listing impairments or the general
requirements for determining a social functioning RFC; and (2) copied and pasted,
in block-quote form, parts of several pages of record evidence that concern his prior
mental health evaluations. (Doc. # 18 at 11-19.) This copy-and-paste job falls well
below the standard this Court considers necessary to evaluate a legal claim, and
Plaintiff flirts with forfeiture in the manner he has presented this claim. Cf. KeyesZachary, 695 F.3d at 1161.
In spite of his attorneys’ inadequate briefing, this Court must remand because the
additional evidence provided after the ALJ made his decision casts sufficient doubt on
how Plaintiff’s mental impairments—specifically, his PTSD and depression—affect his
ability to work.
As an initial matter, this Court notes that there was considerable evidence in the
record before the ALJ to support the ALJ’s conclusion that Plaintiff’s mental health
impairments are not disabling. For example, in the fall of 2012, two treating physicians,

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Drs. Mallory and Grenier, gave Plaintiff a generally positive mental health prognosis and
nowhere concluded that Plaintiff’s depression and PTSD were disabling. See (AR 710,
834.) Plaintiff’s apparent strategy when confronted with this evidence is to simply
ignore it—it is nowhere cited in his opening brief or reply—even if this record evidence
undergirded the ALJ’s decision to find no disabling mental health impairments, see
(AR 18-19), and even if the Government raises these same arguments in its Response,
(Doc. # 20 at 13-14.)
At the same time, there was also evidence in that record to support Plaintiff’s
claim that his combat-related PTSD—combined with depression—was disabling. See,
e.g., (AR 778) (report from one mental health professional noting that when Plaintiff was
prompted to remember his time in Iraq and his need “to protect my men,” that “[t]ears
started running down his face” before he “abruptly shifted to anger, slammed his fists
into the table[,] got up and lifted it suddenly a few feet, knocking items on to the floor”).
Further, as noted above, Plaintiff now supplements such supportive evidence
with further records from other physicians and the VA. First, there is the
aforementioned record signed by Dr. Salerno, who appears to have been treating
Plaintiff’s mental health needs almost weekly for over a year and attests to the
debilitating effects of his PTSD. Second, there is the aforementioned record from the
VA, which determined—based on a review of somewhat different evidence 4 than what
was presented to the ALJ—that Plaintiff was disabled.

4

The Government notes that some of the records reviewed by the VA were the same as those
reviewed by the ALJ. (Doc. # 20 at 24 (noting that the VA opinion appears to rely on the same
examinations of Plaintiff rendered by Drs. Mallory, French, and Struck).) At the same time, it

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The Tenth Circuit has directed that remand is appropriate if this Court finds that
the ALJ’s decision “might reasonably have been different” if the new evidence had been
before him. Cagle v. Califano, 638 F.2d 219, 221 (10th Cir. 1981). That standard is
met here: both records under consideration suggest that Plaintiff’s mental impairments
are disabling, and such findings—if presented to the ALJ in the first instance—must be
considered, must generally be granted greater weight, and can be discounted only if the
ALJ provides specific reasons for doing so. 5
To be sure, this additional evidence does not mandate a finding of disabling
mental health impairments—an ALJ can discount both the opinions of a treating
physician and another agency, if such a position is supported by substantial evidence—
but these two records deserve to be considered in the first instance by the ALJ.

appears that the VA relied on additional records, including a more comprehensive list of service
treatment records, an audio examination of Plaintiff, and what is referred to as a “Commander’s
Performance and Functional Statement.” (Doc. # 15-1 at 11.) Further, although the effective
date of the VA’s finding of disability post-dates the date of the ALJ’s decision, the VA appears to
rely only on records that predate the ALJ’s decision. The Court presumes that Plaintiff will
provide this record evidence to the ALJ on remand.
5

While it is well established that a treating physician’s assessment must be considered and be
accorded controlling weight absent a showing of specific reasons to disregard it, see, e.g.,
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003), the Tenth Circuit rule for how the
ALJ must consider VA disability findings is less clear. The Tenth Circuit has held that the ALJ
must consider the VA’s finding of disability, Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir.
2005), and it has held that another agency’s findings of disability are entitled to at least some
weight, see Baca v. Dep’t of Health & Human Servs., 5 F.3d 476, 480 (10th Cir.1993). At the
same time, the Tenth Circuit does not appear to have determined exactly how much weight to
give a finding from the VA and what showing is necessary to disregard this finding. See, e.g.,
McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (holding that a VA’s determination
of disability is accorded “great weight” in the Ninth Circuit because of the similarities in the
disability programs but suggesting that some circuits—including the Tenth—have not yet
addressed this issue). This Court need not resolve this matter here as the combined effect of
the unconsidered record evidence merits remand. The Court leaves it to the ALJ to address this
matter in the first instance (if necessary).

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Cf. Kanelakos v. Astrue, 249 F. App’x 6, 8 (10th Cir. 2007) (remanding to the ALJ
because the VA’s 100 percent disability finding was insufficiently explained). The Court
therefore grants a limited remand solely for the purpose of further exploring whether
Plaintiff’s mental health impairments are disabling.
Further, the ALJ’s credibility assessment, his analysis at Step 5, and his analysis
of the cumulative effect of all of Plaintiff’s severe and non-severe impairments are
based at least in part on his assessment of the severity of Plaintiff’s mental health
functioning. Plaintiff alleges a number of errors with these specific findings from the
ALJ, but this Court declines to address them at this time, in light of the fact that the
mental health finding upon which these findings rely has been called into question
by the new evidence discussed above. 6
Finally, on remand, the ALJ should reconsider both whether Plaintiff’s mental
impairments equal one of the listings outlined by Plaintiff in his briefing and whether,
regardless of whether the impairments equal a listing, they are otherwise sufficiently
disabling to preclude Plaintiff from working.

6

For this reason, the Court also declines to address a number of sub-arguments that Plaintiff
raises in his briefing—such as, whether the ALJ should have consulted a medical expert in
determining whether Plaintiff’s severe and non-severe impairments cumulatively met a listing
requirement, whether the ALJ failed to adequately develop the record in light of Plaintiff’s pro se
status at the hearing before the ALJ, and whether the ALJ improperly rejected the opinion of the
Disability Determination Services consultant. Again, the ALJ’s resolution of these matters is
linked to the mental health functioning assessment and must be revisited on remand.

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IV. CONCLUSION
The ALJ must reconsider this case in light of the new evidence presented after
he made his original decision. Accordingly, it is ORDERED that the ALJ’s denial of
disability benefits is REVERSED and this case is REMANDED for further proceedings
consistent with this order.
DATED: September 4, 2014
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District Judge

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