Smith v. Colvin

Filing 25

ORDER by Judge Philip A. Brimmer on 3/30/16. ORDERED: The decision of the Commissioner that plaintiff was not disabled is REVERSED and REMANDED for further proceedings consistent with this opinion. (kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-02717-PAB
RODNEY P. SMITH,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER

This matter is before the Court on plaintiff Rodney P. Smith’s complaint [Docket
No. 1], filed on October 3, 2013. Plaintiff seeks review of the final decision of defendant
Carolyn W. Colvin (the “Commissioner”) denying plaintiff’s claim for disability insurance
benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-33 and
1381-83c.1 The Court has jurisdiction to review the Commissioner’s final decision
under 42 U.S.C. § 405(g).
I. BACKGROUND
On November 3, 2010, plaintiff applied for disability benefits under Title II of the
Act. R. at 21. Plaintiff alleged that he had been disabled beginning August 15, 2008,
id., but later changed his alleged onset date to April 19, 2009. Id. at 40. After an initial
administrative denial of his claim, plaintiff appeared at a hearing before an

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The Court has determined that it can resolve the issues presented in this matter
without the need for oral argument.

Administrative Law Judge (“ALJ”) on June 25, 2012. Id. at 21.2 On July 5, 2012, the
ALJ issued a decision denying plaintiff’s claim. Id. at 32.
The ALJ found that plaintiff had the severe impairments of cardiac arrhythmia,
cardiomyopathy, remote history of mitral valve prolapse, status post mitral valve
reconstruction/replacement, and anxiety disorder. Id. at 23. The ALJ found that these
impairments, alone or in combination, did not meet one of the regulations’ listed
impairments, id. at 23-25, and ruled that plaintiff had the residual functional capacity
(“RFC”) to
perform sedentary work as defined in 20 C.F.R. § 404.1567(a) with the
following specific restrictions and requirements: [plaintiff] is not required to
stoop, balance, crouch, or kneel more than occasionally; [plaintiff] is not
required to climb or crawl; [plaintiff] is not required to lift more than five
pounds occasionally and two and a half pounds frequently; [plaintiff] is not
required to walk for more than 20 minutes at one time without the opportunity
to sit; [plaintiff] is not required to work above shoulder level with the left (nondominant) upper extremity; [plaintiff] is not required to work at unguarded
heights or near unguarded hazardous mechanical equipment; [plaintiff] is not
required to do more than the lower-end of detailed instructions; [plaintiff] is
not required to have more than superficial interaction with the public;
[plaintiff] is not required to be exposed to extreme temperatures and high
humidity; [plaintiff] is not required to work near gas flames; [plaintiff] is not
required to work with power tools; and [plaintiff] is not required to work near
any equipment creating magnetic fields.
Id. at 25. In formulating this RFC, the ALJ relied in part on the testimony of Dr. H.C.
Alexander, a medical expert who testified at the hearing. See id. at 23, 28. Based
upon this RFC and in reliance on the testimony of a vocational expert (“VE”), the ALJ
concluded that “there are jobs that exist in significant numbers in the national economy
that the claimant can perform.” R. at 31.
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An impartial medical expert, Dr. H. C. Alexander, also testified at the hearing.
R. at 21.
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The Appeals Council denied plaintiff’s request for review of this denial. R. at 1.
Consequently, the ALJ’s decision is the final decision of the Commissioner.
II. ANALYSIS
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). T he district court may not reverse
an ALJ simply because the court may have reached a different result based on the
record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence 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). T he district
court will not “reweigh the evidence or retry the case,” but must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515
F.3d at 1070. Nevertheless, “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).

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B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
[a]n individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and
(5) whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). 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. Sec’y of
Health and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisf ied her burden of

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establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the residual functional capacity
(RFC) to perform other work in the national economy in view of her age, education, and
work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). W hile the claimant has the
initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform
himself about facts relevant to his decision and to learn the claimant’s own version of
those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
C. The ALJ’s Decision
Plaintiff argues that the ALJ erred (1) by improperly weighing the medical
evidence and medical source opinions in determining that plaintiff’s impairments did not
equal a listing; (2) by failing to afford proper weight to plaintiff’s treating physician, Dr.
Kelly Kim, (3) in determining plaintiff’s RFC, and (4) by failing to support his step five
finding with substantial evidence. See Docket No. 20. Plaintiff also argues that the
Appeals Council improperly rejected evidence submitted after the ALJ’s decision. Id. at
28-30.
The Court first addresses the weight given to Dr. Kim’s opinion.3 Two portions of
the ALJ’s decision are relevant to this discussion. First, at the hearing, Dr. Alexander

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The ALJ merged the discussion of whether plaintiff’s impairments equal a listed
impairment with his determination of plaintiff’s RFC, see R. at 23, 28. In both
discussions, the ALJ referred to the testimony of the medical expert who testified at the
hearing, Dr. Alexander, who characterized the findings of Dr. Kim. See id. Thus, the
discussion of the weight given to Dr. Kim’s opinion necessarily overlaps the interrelated
issues of the ALJ’s step three determination that plaintiff’s impairments did not
medically equal a listed impairment and the ALJ’s RFC determination.
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testified that, according to Dr. Kim,4 plaintiff suffered from class III congestive heart
failure. R. at 43, 45. Dr. Alexander testified that Dr. Kim’s opinion was “based on
symptoms and not objective findings,” id. at 45, and that there is “no objective evidence
of congestive heart failure[.]” Id. at 43. Dr. Alexander testified that the record provides
“ample support of some serious cardiomyopathy” and that, during an evaluation on
September 9, 2010, plaintiff’s “ejection fraction”5 of 27% showed that plaintiff was
“almost immobile.” Id. at 44. During a December 2011 evaluation at the University of
Colorado, however, plaintiff’s ejection fraction had improved to 35%, a level that, in Dr.
Alexander’s opinion, enabled plaintiff to perform a range of work consistent with a
sedentary RFC. Id. at 45. Ultimately, Dr. Alexander concluded that, while he did not
believe that the objective evidence supported such a finding, if the ALJ were to “accept
[Dr. Kim’s] statement based on symptoms and not objective findings,” plaintiff would
“equal a combination of [listings] 4.02 and 4.05[.]” 6 Id. at 45. Dr. Alexander did note,
however, that a May 4, 2011 overnight oxygen evaluation for hypoxemia provided
objective support for plaintiff’s symptoms. Id. at 44.

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Dr. Alexander referred generally to plaintiff’s “treating physicians.” R. at 43.
The medical evidence that Dr. Alexander cited, however, confirms that his reference to
the opinions of plaintiff’s “treating physicians” relates to Dr. Kim’s treatment notes. See
id. at 43-44 (referring to id. at 413-414, 602),
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An ejection fraction is “the blood contained in the ventricle at the end of diastole
that is expelled during its contraction, i.e., the stroke volume divided by end-diastolic
volume, normally 0.55 (by electrocardiogram) or greater; with the onset of congestive
heart failure, the ejection f[actor] decreases, sometimes to 0.10 or even less in severe
cases.” Stedman’s Medical Dictionary, ejection fraction (28th ed. 2005).
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Listing 4.02 describes “chronic heart failure,” while listing 4.05 describes
“recurrent arrhythmias.” 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 4.02, 4.05.
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The ALJ’s finding that plaintiff did not equal listings 4.02 and 4.05 required him to
reject Dr. Kim’s opinion that plaintiff suffered from class III congestive heart failure.7
The ALJ gave “little weight” to Dr. Alexander’s opinion that, accepting Dr. Kim’s opinion,
plaintiff’s impairments equaled listings 4.02 and 4.05. Although the ALJ did not
explicitly state that he rejected Dr. Kim’s assessment or give reasons for doing so, he
found, based on Dr. Alexander’s testimony regarding plaintiff’s RFC, that the objective
evidence in the record did “not show severity of heart problems sufficient to equal the
noted listings.” R. at 23.
Second, after the hearing, Dr. Kim submitted a short letter dated June 29, 2012
stating that plaintiff “qualifies for disability from a cardiac standpoint due to his Class IIIIV heart failure symptoms.”8 R. at 722. Dr. Kim further stated that plaintiff’s “heart
failure symptoms are experienced as fatigue and shortness of breath” and referred the
reader to his “last office note” for additional details. Id. The ALJ said that he gave
“[v]ery little weight” to Dr. Kim’s opinion that plaintiff “qualifies for disability” on the

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Dr. Kim described plaintiff as demonstrating “class III CHF symptoms” on May
20, 2011. R. at 602-03. As noted above, Dr. Alexander testified that, if the ALJ
accepted plaintiff’s treating physicians’ opinion that plaintiff suffers from class III
congestive heart failure, plaintiff would equal listings 4.02 and 4.05. See R. at 44-45.
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“Class III-IV” heart failure refers to the New York Heart Association Functional
Classification of heart failure. “Doctors usually classify patients’ heart failure according
to the severity of their symptoms. . . . [The New York Heart Association Functional
Classification] places patients in one of four categories based on how much they are
limited during physical activity.” Am. Heart Ass’n, Classes of Heart Failure, available at
http://www.heart.org/HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Classes-o
f-Heart-Failure_UCM_306328_Article.jsp. Class III heart failure means “[m]arked
limitation of physical activity. Comfortable at rest. Less than ordinary activity causes
fatigue, palpitation, or dyspnea.” Id. Class IV heart failure means “[u]nable to carry on
any physical activity without discomfort. Symptoms of heart failure at rest. If any
physical activity is undertaken, discomfort increases.” Id.
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ground that the conclusory opinion from a treating physician that a claimant is disabled
is an opinion “on an issue that is reserved to the Commissioner of the Social Security
Administration.” R. at 30. The ALJ also states that Dr. Kim did “not identify any
objective findings, physical examination findings, or imaging or testing results, nor are
any specific work-related functional restrictions pointed out.” Id.
Plaintiff argues, first, that the ALJ improperly discounted Dr. Kim’s opinion based
on plaintiff’s symptoms, Docket No. 20 at 20, and second, that Dr. Kim ’s opinion is
based on a lengthy treatment record that consistently documents plaintiff’s “complaints
of fatigue, shortness of breath, and palpitations, and objective diagnostic testing as well
as clinical examination findings.” Id. at 23. Defendant responds that the ALJ properly
discounted Dr. Kim’s opinion as relying on subjective symptoms, Docket No. 21 at 14,
and that the opinion reflected in Dr. Kim’s June 2012 letter was conclusory and
identified no objective findings. Id. at 20-21.
The Court first finds that the ALJ’s implicit rejection of Dr. Kim’s opinion on the
grounds that it relied on plaintiff’s subjective complaints was error. Both in formulating
his RFC finding and in finding that plaintiff did not medically equal listings 4.02 and
4.05, the ALJ simply recited Dr. Alexander’s characterization of the objective evidence.
See R. at 23, 26-28. The ALJ did not mention Dr. Kim’s treatment notes, except to
repeat Dr. Alexander’s assessment that the opinions reflected therein were based on
subjective reporting of symptoms. See id. at 23, 27-28. However, “a medical finding of
disability is not based solely on objective test results. It includes an evaluation of the
patient’s medical history and the physician’s observations of the patient, and
necessarily involves an evaluation of the credibility of the patient’s subjective
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complaints of pain.” Nieto v. Heckler, 750 F.2d 59, 61-62 (10th Cir. 1984); see also
Cross v. Colvin, No. 12-cv-03310-REB, 2014 WL 5002094, at *2 (D. Colo. Oct. 6, 2014)
(the notion “that the ALJ may discredit a physician’s opinion because it relies on a
claimant’s subjective complaints (which the ALJ herself found unworthy of credence) is
directly contrary to the law of this circuit”) (citing Nieto, 750 F.2d at 61-62). Where an
ALJ disregards the opinion of a treating physician solely because the physician relies
on a claimant’s subjective symptoms, remand is appropriate. Cf. Victory v. Barnhart,
121 F. App’x 819, 823 (10th Cir. 2005) (unpublished) (remanding where the ALJ
discounted treating physician’s opinion as based on the claimant’s subjective report of
her symptoms and “the ALJ’s finding ignores all of [the physician’s] examinations,
medical tests, and reports.”).
Second, the Court finds that the ALJ erred in failing to explain the weight given to
the opinion stated in Dr. Kim’s June 2012 letter that plaintiff suffers from “Class III-IV
heart failure symptoms” that are “experienced as fatigue and shortness of breath.” R.
at 722. The ALJ correctly noted that Dr. Kim’s conclusory opinion that plaintiff “qualifies
for disability” is an opinion on an issue that is reserved to the Commissioner. See 20
C.F.R. § 416.927(e)(2) (ALJs are “responsible for reviewing the evidence and making
findings of fact and conclusions of law”). Dr. Kim’s letter, however, was not limited to
opining that plaintiff “qualifies for disability.” Dr. Kim identified his diagnosis of plaintiff’s
condition, described the primary symptoms that plaintiff experiences as a result of that
condition, and referred to a specific treatment note as providing supporting evidence.
Dr. Kim’s precise diagnosis that plaintiff suffered from Class III-IV heart failure
symptoms is not itself determinative of disability, but the ALJ was at least required to
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examine the underlying evidence of heart problems, including Dr. Kim’s reliance on
plaintiff’s symptoms and his interpretation of those symptoms, in making a disability
determination. Although Dr. Kim’s letter was brief and did not link his findings to
specific exertional limitations, the ALJ was not entitled to dismiss Dr. Kim’s opinion
summarily.
The Tenth Circuit Court of Appeals has held that “in evaluating the medical
opinions of a claimant’s treating physician, the ALJ must complete a sequential twostep inquiry, each step of which is analytically distinct.” Krauser v. Astrue, 638 F.3d
1324, 1330 (10th Cir. 2011). First, the ALJ must decide whether a treating physician’s
opinion “is conclusive, i.e., is to be accorded ‘controlling weight,’ on the matter to which
it relates.” Id. (citing Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)).
Second, if the ALJ determines that a treating physician’s opinion is not entitled to
controlling weight, the opinion merits some measure of deference to be determined
based on an application of the factors listed in 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii),
including the length of the treatment relationship, the nature and extent of the
relationship, the extent of the supporting evidence, consistency with the record as a
whole, and the level of specialization of the treater. “The ALJ must give specific,
legitimate reasons for disregarding the treating physician’s opinion that a claimant is
disabled.” Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th
Cir. 1995). “If this is not done, a remand is required.” Krauser, 638 F. 3d at 1330.
Here, the ALJ did not discuss Dr. Kim’s letter except to discount the conclusion
that plaintiff “qualifies for disability.” See R. at 30. The ALJ did not mention the treating

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note to which Dr. Kim referred in his letter, see id. at 722, 585, or acknowledge any
other findings from Dr. Kim’s treating relationship with plaintiff, which dates back to at
least April 2009. See id. at 225-26. Even where an ALJ concludes – implicitly or
explicitly – that a treating physician’s opinion is not well-supported, remand is required
where the ALJ “never addressed in his decision whether the opinion was entitled to
less-than-controlling weight, and he never discussed any of the factors set forth in [20
C.F.R. §§] 404.1527 and 416.927.” Victory, 121 F. App’x at 824 (citation omitted).
The ALJ’s reconsideration of Dr. Kim’s opinion will provide the ALJ with the
opportunity to assess the totality of evidence in plaintiff’s case. Therefore, the Court will
not address plaintiff’s remaining evidence. Watkins, 350 F.3d at 1299 (“We will not
reach the remaining issues raised by appellant because they may be affected by the
ALJ’s treatment of this case on remand”).
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff was not disabled
is REVERSED and REMANDED for further proceedings consistent with this opinion.

DATED March 30, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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