Morgan v. Colvin

Filing 20

ORDER: the decision of the Commissioner is REVERSED and REMANDED for further findings. by Judge R. Brooke Jackson on 2/23/15. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 13-cv-02625-RBJ
BEVERLY DIANE MORGAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner for the Social Security Administration,
Defendant.

ORDER

This matter is before the Court on review of the Commissioner’s decision denying
claimant Beverly Morgan’s application for Social Security disability benefits. Jurisdiction is
proper under 42 U.S.C. § 405(g). For the reasons explained below, the Court reverses and
remands the Commissioner’s decision for further findings.
I. Standard of Review
This appeal is based upon the administrative record and briefs submitted by the parties.
In reviewing a final decision by the Commissioner, the role of the District Court is to examine
the record and determine whether it “contains substantial evidence to support the
[Commissioner’s] decision and whether the [Commissioner] applied the correct legal standards.”
Rickets v. Apfel, 16 F.Supp.2d 1280, 1287 (D. Colo. 1998). A decision cannot be based on
substantial evidence if “it is overwhelmed by other evidence in the record. . . .” Bernal v.
Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Substantial evidence requires “more than a scintilla,
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but less than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Evidence
is not substantial if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374
(10th Cir. 1992).
II. Facts
Ms. Morgan, who was born on January 19, 1960, resides in Colorado and has previously
worked as a warehouse worker, mailroom sorter, and paper cutter.
A. Procedural History
On May 12, 2010, Ms. Morgan filed an application for Supplemental Security Income
disability benefits, alleging disability beginning on January 14, 2007. The claim was initially
denied on December 3, 2010. The claimant then filed a request for a hearing, which was held on
April 19, 2012 in front of Administrative Law Judge Timothy Snelling. The ALJ denied the
claimant’s application for benefits on May 17, 2012, and the Commission denied his request for
review on July 26, 2013. Ms. Morgan filed a timely appeal in this Court.
B. Medical History
The record contains evidence of Ms. Morgan’s degenerative disc disease/degenerative
joint disease of the lumbar spine and cervical spine, osteoarthritis of the right hip and right knee,
hypertension, gastroesophageal reflux disease (GERD), and an adjustment disorder with mixed
emotional features. See R. at 23–24. Most relevant to this appeal are the opinions of Dr.
Bekelman, Dr. Hanna, and Dr. Regan.
As of November of 2011, Dr. Bekelman had seen Ms. Morgan monthly since of May of
2009. R. at 1092, 1097. The doctor found that the patient’s prognosis was “poor” and “unlikely
to improve substantially.” R. at 1093. He noted that “anxiety, depression, and pain interfere
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with her ability to work,” and that she cannot handle “normal work stress.” R. at 1094.
Additionally, her mood would interfere with her ability to work with others. R. at 1094. Dr.
Bekelman also found that the claimant had “no useful ability to function” in a number of
categories related to the ability to work, including maintaining regular attendance and being
punctual, completing a normal workday without interruptions from psychologically based
symptoms, performing at a consistent pace without an unreasonable number of breaks, accepting
instructions, getting along with coworkers, responding appropriately to changes in a routine work
setting, and handling work stress. R. at 1094. The claimant was also “seriously limited” or
“unable to meet competitive standards” in a number of other categories. R. at 1094–95. The
doctor concluded that Ms. Morgan had none/mild restrictions in activities of daily living, marked
difficulties in maintaining social functioning, and marked deficiencies of concentration,
persistence, or pace. R. at 1096.
Dr. Hanna examined Ms. Morgan at National Jewish Health’s Gastroenterology Clinic.
R. at 1098. The doctor instructed her on an “antidumping diet” to address the symptoms
associated with the claimant’s dumping syndrome. R. at 1098–99. Specifically, he
recommended that she eat five to six meals a day and outlined a sample eating schedule with
meals at 9 am, 11 am, 1 pm, 3 pm, 5 pm, and 7 pm. R. at 1100.
Turning to Dr. Regan’s opinion, the doctor noted that Ms. Morgan reported several years
of groin, thigh, and hip pain, and that she was attending physical therapy for her back and hip.
R. at 592. She found that Ms. Morgan had osteoarthritis in her right hip, recommended that she
use a cane, and concluded that she could perform “a wide range of jobs that do not involve
prolonged periods of sitting and standing, where she has some flexibility to sit as needed.” R. at
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592–93.
C. The ALJ’s Decision
The ALJ issued an unfavorable opinion after evaluating all of the evidence according to
the Social Security Administration’s standard five-step process. At step one, he found that Ms.
Morgan had not engaged in substantial gainful activity since May 12, 2010, the application date.
R. at 23. Next, at step two, the ALJ found that the claimant had the following medically severe
combination of impairments: degenerative disc disease/degenerative joint disease of the lumbar
spine and cervical spine, osteoarthritis of the right hip and right knee, hypertension,
gastroesophageal reflux disease (GERD), and an adjustment disorder with mixed emotional
features. R. at 23–24. At step three, the ALJ concluded that Ms. Morgan did not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. at 24. He then found
that the claimant had the residual functional capacity (“RFC”) to perform a wide range of light
work, except she was limited to lifting and carrying 20 pounds occasionally and 10 pounds
frequently, sitting and standing/walking for six hours in an eight-hour workday, occasionally
climbing ramps and stairs and kneeling on the right knee, and no more than frequent interaction
with the general public. R. at 25–26. Additionally, the claimant could never climb ladders,
ropes, and scaffolds and had to avoid concentrated exposure to pulmonary irritants. R. at 25–26.
Turning to step four, the ALJ found that Ms. Morgan was not capable of performing any past
relevant work. R. at 29. Finally, at step five, he found that, considering the claimant’s age,
education, work experience, and RFC, there were jobs that exist in significant numbers in the
national economy that she could perform. R. at 30. He thus concluded that the claimant had not
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been under a disability. R. at 31.
III. Discussion
The claimant contends that the ALJ made three errors in his opinion denying benefits: (1)
he did not apply the correct legal standard in determining the weight that he afforded the
opinions of Dr. Bekelman and Dr. Hanna, (2) his decision did not apply the correct legal
standard and was not supported by substantial evidence in determining the credibility of Ms.
Morgan’s statements, and (3) his decision did not apply the correct legal standard and was not
supported by substantial evidence in determining the claimant’s RFC. As explained below, the
Court agrees with the first argument and a portion of the third argument.
A. The Opinions of Dr. Bekelman and Dr. Hanna
First, the claimant argues that the ALJ failed to apply the correct legal standard in
determining the weight afforded to the opinions of Dr. Bekelman and Dr. Hanna, both of whom
were treating physicians. Under SSR 96-2p, “[i]f a treating source’s medical opinion is wellsupported and not inconsistent with the other substantial evidence in the case record, it must be
given controlling weight; i.e., it must be adopted.” In order to reject a treating physician’s
opinion, an ALJ must provide “specific, legitimate reasons.” Miller v. Chater, 99 F.3d 972, 976
(10th Cir. 1996) (internal citation omitted).
Furthermore, even if a treating source medical opinion does not meet the controllingweight standard, it should not necessarily be rejected. SSR 96-2p. “Treating source medical
opinions are still entitled to deference and must be weighed using all of the factors provided in
20 C.F.R. § 404.1527 . . . In many cases, a treating source’s medical opinion will be entitled to
the greatest weight and should be adopted, even if it does not meet the test for controlling
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weight.” Id. The 20 C.F.R. § 404.1527 factors that the ALJ must weigh are:
(1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.
Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (citing 20
C.F.R. § 404.1527(d)). Although the ALJ must consider all of the factors, the Tenth Circuit has
made clear that he need not explicitly discuss each one. Oldham v. Astrue, 509 F.3d 1254, 1258
(10th Cir. 2007).
In the present case, the ALJ afforded “little weight” to Dr. Bekelman’s opinion. R. at 29.
The following excerpt contains his entire explanation for doing so:
The doctor apparently relied quite heavily on the subjective report of symptoms
and limitations provided by the claimant, and seemed to uncritically accept as true
most, if not all, of what the claimant reported. Although the doctor stated that the
claimant is ‘disabled,’ it is not clear that the doctor was familiar with the
definition of ‘disability’ contained in the Social Security Act and regulations. For
example, the doctor stated that the claimant would have difficulty doing simple
decisions and being aware of hazards. However, a person that lives alone is able
to make simple decisions and avoid normal hazards in the home.
R. at 29. Although the ALJ could have given a more detailed analysis of why the opinion was
not entitled to controlling weight, he did point out that Dr. Bekelman’s assessment was
inconsistent with the claimant’s living on her own; thus the opinion was inconsistent with other
substantial evidence in the record. Moreover, the finding that much of the doctor’s opinion was
based on the claimant’s assertions rather than objective medical evidence supports the decision
not to afford it controlling weight. See White v. Barnhart, 287 F.3d 903, 907 (10th Cir. 2001), as
amended on denial of reh’g (Apr. 5, 2002). For these reasons, the Court finds the ALJ’s
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explanation for why Dr. Bekelman’s opinion was not given controlling weight satisfactory.
However, the analysis does not stop there. After finding that the opinion should not be
afforded controlling weight, the ALJ was next required to weigh the relevant factors from 20
C.F.R. § 404.1527 to determine what weight to give it. SSR 96-2p. There is no indication in the
opinion that the ALJ considered the first, second, third, or fifth factors. See R. at 29. “Although
the ALJ’s decision need not include an explicit discussion of each factor, see Oldham, 509 F.3d
at 1258, the record must reflect that the ALJ considered every factor in the weight calculation.”
Andersen v. Astrue, 319 F. App’x 712, 718 (10th Cir. 2009). Here, it is unclear if the ALJ
considered the majority of the factors he was required to weigh in making the determination that
Dr. Bekelman’s opinion should be afforded little weight. For this reason, the ALJ failed to
follow the applicable legal standard, and his opinion must be remanded on this basis.
Turning to Dr. Hanna’s opinion, the claimant contends that the ALJ erred in failing to
discuss the doctor’s findings and his recommendation that Ms. Morgan eat several small meals
per day. In particular, she argues that her need for frequent meals is incompatible with an eighthour workday with limited breaks. The ALJ did not evaluate Dr. Hanna’s report or undertake an
analysis of what weight to afford it. 1 See R. at 23–31. “An ALJ must evaluate every medical
opinion in the record.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (citing 20
C.F.R. § 404.1527(d)). Moreover, because Dr. Hanna was a treating physician, the ALJ was
required to determine what weight to afford it under the framework described above. See
Goatcher, 52 F.3d at 289–90. Since the ALJ did not evaluate Dr. Hanna’s opinion, the Court

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The ALJ did cite Dr. Hanna’s opinion in support of the statement that Ms. Morgan “describes having constant
heartburn and experiences vomiting.” R. at 27. However, this does not amount to a discussion of what weight to
afford it; indeed, the government does not argue so in its brief. See ECF No. 17 at 20.

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must remand the decision on this basis. 2
B. The Credibility of Ms. Morgan’s Statements
Next, the claimant argues that the ALJ did not apply the correct legal standard in
assessing Ms. Morgan’s credibility and that the credibility assessment was not supported by
substantial evidence. “[T]he adjudicator must make every reasonable effort to obtain available
information that could shed light on the credibility of the individual’s statements.” SSR 96-7p.
The ALJ must consider a number of factors in making a determination about a claimant’s
credibility:
(1) The individual’s daily activities; (2) The location, duration, frequency, and
intensity of the individual’s pain or other symptoms; (3) Factors that precipitate
and aggravate the symptoms; (4) The type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken to alleviate pain or other
symptoms; (5) Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms; (6) Any measures other than
treatment the individual uses or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping
on a board); and (7) Any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.
SSR 96-7p (citing 20 C.F.R. § 416.929(c)(3)). In addition, the ALJ must “consider all of the
evidence presented, including information about [the claimant’s] prior work record, . . . evidence
submitted by [his or her] treating or nontreating source, and observations by [the Commission’s]
employees and other persons.” 20 C.F.R. § 416.929(c)(3). In reviewing an ALJ’s credibility
determination, courts must keep in mind that “[c]redibility determinations are peculiarly the

2

The government argues that the claimant has not shown why her eating requirements could not be satisfied during
the typical breaks in an eight-hour workday. ECF No. 17 at 20. However, because an RFC “is an assessment of an
individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and
continuing basis[, meaning] 8 hours a day, for 5 days a week, or an equivalent work schedule,” SSR 96-8p, the need
for frequent breaks could impact an individual’s RFC. Indeed, during questioning by the claimant’s attorney, the
vocational expert testified that frequent breaks for small meals would “typically not” be accommodated in the jobs
that the claimant could perform. R. at 71–72.

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province of the finder of fact, and [a court should] not upset such determinations when supported
by substantial evidence.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (internal
quotations and citations omitted).
In the present case, the ALJ found that “the claimant’s statements concerning the
intensity, persistence, and limiting effects of [the alleged] symptoms are not credible to the
extent they are inconsistent with the above [RFC] assessment.” R. at 27. In making this
determination, the ALJ relied on the following evidence: (1) despite reporting that she did few
chores, the claimant lived alone and had not reported any particular help in maintaining the
residence; (2) the claimant described “daily activities that are not limited to the extent one would
expect,” including picking up normal items when shopping; (3) she cancelled or missed doctor
appointments on a number of occasions; (4) her work history was sporadic, raising a question as
to whether her continuing unemployment was actually due to medical impairments; and (5)
although the claimant had taken appropriate medications, the dosage level was low and she took
only over-the-counter medication for her pain. R. at 27.
Thus the ALJ’s credibility assessment took some of the factors listed in SSR 96-7p into
account. In particular, he cited evidence related to the first factor (the fact that the claimant lived
alone and could pick up items while shopping) and the fourth factor (claimant’s low dosage of
appropriate medications and the fact that she took only over-the-counter medication for her
pain). Furthermore, her missed doctor appointments and sporadic work history constitute other
evidence in the record that may be considered under 20 C.F.R. § 416.929(c)(3). In sum, all of
the evidence on which the ALJ relied was appropriately considered and supports the ALJ’s

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conclusion. 3 The Tenth Circuit has held that “an ALJ need not make a formalistic factor-byfactor recitation of the evidence when making her credibility assessment.” Jones v. Colvin, 514
F. App’x 813, 823 (10th Cir. 2013). Moreover, “merely technical omissions in the ALJ’s
reasoning do not dictate reversal.” Id. at 824. Because the ALJ cited various pieces of evidence
in line with the requirements of 20 C.F.R. § 416.929(c)(3), the Court finds that the ALJ’s
credibility determination is free from legal error and is supported by substantial evidence. 4 Thus
the Court declines to remand the decision on this basis.
C. Ms. Morgan’s Residual Functional Capacity
Finally, the claimant contends that the ALJ’s RFC determination did not apply the correct
legal standards and was not supported by substantial evidence. As an initial matter, the Court
notes that on remand the RFC analysis may be impacted by any additional weight given to Dr.
Bekelman’s and Dr. Hanna’s opinions in light of the discussion above. Beyond this issue, the
claimant appears to make two specific arguments concerning the RFC determination: (1) the ALJ
did not follow the applicable law in relying on the fact that the claimant lives alone and (2) in
light of Dr. Regan’s opinion, the ALJ’s findings that Ms. Morgan can perform a wide range of
light work and sit/stand for six hours in an eight-hour workday are not supported by substantial

3

The government spends much of the relevant section of its brief citing additional evidence that the ALJ did not
discuss. See ECF No. 17 at 14–16. However, the Court cannot consider such post-hoc justifications for the ALJ’s
determination. See, e.g., Haga v. Astrue, 482 F.3d 1205, 1207–08 (10th Cir. 2007) (“the government supplies some
reasons that it believes would support the ALJ’s RFC finding. The ALJ did not provide these explanations,
however. . . . [T]his court may not create or adopt post-hoc rationalizations to support the ALJ’s decision that are not
apparent from the ALJ’s decision itself.”).
4
Furthermore, it does not appear that the ALJ failed to consider any significantly probative evidence on which he
chose not to rely. See Jones v. Colvin, 514 F. App’x 813, 823 (10th Cir. 2013) (ALJ must discuss probative
evidence that he rejects). Indeed, the claimant does not make any clear argument to this effect. See ECF No. 16 at
10–12. The only additional evidence that the claimant’s brief mentions concerns “the side effects of the medications
which limit the type and dose of medications which Ms. Morgan can tolerate.” Id. at 11. However, the claimant
provides no citation to the record to support her contention that such evidence should have been considered, see id.,
and, in any event, this single additional piece of information would not significantly alter the ALJ’s analysis.

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evidence. See ECF No. 16 at 12–13.
Beginning with the first argument, the ALJ pointed to the fact that the claimant lives
alone several times in his RFC assessment. See R. at 27–29. Specifically, he noted that:
•
•
•
•

The claimant alleged performing few, if any, household chores, but also reported that
she lives alone and does not have any particular help in maintaining her residence. R.
at 27.
The fact that claimant lived alone “verified Dr. Regan’s opinion regarding the
claimant’s ability to perform a wide range of jobs.” R. at 28.
In finding that Dr. Wanstrath’s opinion was entitled to great weight, the ALJ cited the
fact that the claimant lives alone as a factor supporting this determination. R. at 28.
In deciding to afford Dr. Bekelman’s opinion little weight, the ALJ noted that the fact
that Ms. Morgan lived alone was inconsistent with the doctor’s determination that she
would have difficulty making simple decisions and being aware of hazards. R. at 29.

These are proper uses of the fact that Ms. Morgan lives alone. In making a determination about a
claimant’s credibility, an ALJ must consider the entire case record if it undermines assertions
made in his or her testimony; here, the record includes the fact that the claimant lives alone. SSR
96-7p. See also Skaggs v. Apfel, 189 F.3d 478 (10th Cir. 1999) (fact that claimant lived alone
supported ALJ’s rejection of testimony concerning plaintiff’s limitations). Thus the ALJ
properly relied on this fact in assessing the claimant’s credibility with regard to the assertion that
she performs few, if any, household chores. Additionally, in determining what weight to afford a
physician’s opinion, the ALJ must consider whether the opinion is consistent with the record as a
whole. Goatcher, 52 F.3d at 288–90. In the second, third, and fourth instances listed above, the
ALJ relied on the fact that the claimant lives alone as a factor in his weight determinations; thus
these are also appropriate uses of that fact.
The claimant cites to Tenth Circuit case law for the proposition that sporadic
performance of household tasks or work does not establish that a person is capable of substantial

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gainful activity. 5 See, e.g., Frey v. Bowen, 816 F.2d 508, 516–17 (10th Cir. 1987) (“Nor does
the ALJ’s citation of ‘daily activities’ indicate substantial evidence refuting Frey’s complaint of
disabling pain or its credibility. . . . [S]poradic performance does not establish that a person is
capable of engaging in substantial gainful activity.”). While that is correct, living alone is not a
sporadic activity, unlike the examples discussed in the case law that the claimant cites (such as
performing a few household chores, working for an hour or so as a janitor, and jogging). See id.
Nor did the ALJ make the direct inference that because Ms. Morgan lives alone, she can perform
substantial gainful activity. See R. at 27–29. Rather, the opinion relies on the fact that the
claimant lives alone in specific instances in which the ALJ must consider whether particular
evidence is consistent with the record as a whole. For this reason, the Court finds that the ALJ’s
citations to the fact that the claimant lives alone did not violate the applicable legal standards.
Turning to the claimant’s second argument, the Court agrees that the ALJ’s conclusions
that Ms. Morgan can “perform a wide range of light work” and “stand[]-walk[] for six hours
each in an eight-hour day,” R. at 25, are not supported by substantial evidence. As the claimant
points out, Dr. Regan found that Ms. Morgan had osteoarthritis in her right hip, recommended
that she use a cane, and concluded that she could perform “a wide range of jobs that do not
involve prolonged periods of sitting and standing, where she has some flexibility to sit as
needed.” R. at 592–93. The ALJ discussed these findings in his RFC assessment and afforded
the opinion great weight, R. at 28, yet nevertheless concluded that Ms. Morgan could perform a
wide range of light work and stand-walk for six hours at a time, R. at 25. 6 Furthermore, Dr.
5

Some of the claimant’s case citations are incomplete. See ECF No. 16 at 13. Claimant’s counsel is reminded to
include information about the reporter in short-form citations, not just a party name and page number.
6
“[M]ost light jobs—particularly those at the unskilled level of complexity—require a person to be standing or
walking most of the workday.” SSR 83-14.

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Regan’s opinion appears to be the only evidence cited that is directly relevant to the claimant’s
ability to stand and walk, and the government does not point to any other evidence relevant to
this finding in its brief. See R. at 26–29; ECF No. 17 at 12–13. For this reason, the Court finds
that the conclusions that Ms. Morgan can perform a wide range of light work and stand-walk for
six hours in an eight-hour workday are overwhelmed by other evidence in the record. Thus the
decision must be remanded on this basis.
IV. Conclusion
The Court finds that the ALJ did not follow the applicable legal standards in determining
what weight to afford Dr. Bekelman’s and Dr. Hanna’s opinions. Additionally, part of the RFC
assessment is not supported by substantial evidence. Nonetheless, it is not clear that correction
of these errors will necessarily change the ALJ’s conclusion that benefits should be denied, and
thus the Court declines to award benefits at this time. See Salazar v. Barnhart, 468 F.3d 615,
626 (10th Cir. 2006). Therefore, the decision of the Commissioner is REVERSED and
REMANDED for further findings.
DATED this 23rd day of February, 2015.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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