Kimbrough v. Colvin

Filing 27

ORDER vacating Defendant's denial of disability insurance benefits and supplemental security income and remanding this case to Defendant for further proceedings as directed pursuant to sentence four in 42 U.S.C. § 405(g). Entered by Judge Raymond P. Moore on 1/27/2016. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13-cv-03449-RM
CHRISTIAN J. KIMBROUGH,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
Defendant.
ORDER
This matter is before the Court on Plaintiff Christian J. Kimbrough’s (“Plaintiff”) request
for judicial review pursuant to 42 U.S.C. § 405(g). (ECF No. 1.) Plaintiff challenges the final
decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration, by which she denied Plaintiff’s applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”) respectively under Titles II and XVI of the
Social Security Act (“Act”). An Administrative Law Judge (“ALJ”) ruled Plaintiff was not
disabled within the meaning of the Act and therefore not entitled to DIB or SSI.
Defendant provided the Court with the administrative record. (ECF Nos. 10; 10-1; 10-2;
10-3; 10-4; 10-5; 10-6; 10-7; 10-8; 10-9; 10-10.) The parties have fully briefed the matter and it
is ripe for adjudication. (ECF Nos. 16; 19; 20.)
For the reasons set forth below, the Court vacates Defendant’s denial of Plaintiff’s DIB
and SSI applications and remands for further proceedings consistent with this Order.

I.

BACKGROUND
In March 2011, Plaintiff applied for DIB and SSI alleging he was disabled as of May 6,

2008 (Tr. 159) due to the following conditions that limit his ability to work: bipolar II disorder
and an unresolved tibia fracture (Tr. 159). Plaintiff subsequently amended his disability onset
date to September 22, 2009. (Tr. 31.) After Plaintiff’s applications were initially denied (Tr. 6290), Plaintiff requested a hearing before an ALJ (Tr. 95-96) which occurred in August 2012 (Tr.
27-61). On August 28, 2012, the ALJ denied Plaintiff’s applications. (Tr. 11-22.) Plaintiff
requested review of the ALJ’s decision and, in October 2013, the Appeals Council declined
review of the ALJ’s decision. (Tr. 1-6.) Plaintiff timely requested judicial review before the
Court.
A.

Background and Relevant Medical Evidence

Plaintiff was born in 1977. (Tr. 31.) Plaintiff has a high school equivalent education.
(Tr. 31.) Plaintiff reported his past work as a tire changer, construction worker, kitchen helper,
carwash attendant, industrial cleaner, short-order cook, heating and conditioning repair person,
and small-engine maintenance person. (Tr. 57-58, 166.)
Plaintiff claims he became disabled on September 22, 2009 (Tr. 31) due to a combination
of physical and mental health impairments (Tr. 62, 83, 91, 135-143).
1.

Physical Impairments

In June 2011, Plaintiff underwent a physical consultative examination performed by
Nancy Cutter, M.D. (Tr. 393-99.) Plaintiff reported that he had been in a motorcycle accident in
October 2010, in which he sustained multiple injuries—including a back fracture, shoulder
injury, leg fracture, hip fracture, sternum fracture, and neck fracture. (Tr. 393.) Plaintiff stated
his leg fracture had not healed. (Tr. 393.)

Dr. Cutter opined that x-rays showed that Plaintiff’s leg fracture had healed. (Tr. 398.)
Dr. Cutter concluded Plaintiff
should be able to carry and lift 50 pounds occasionally and 20 pounds frequently.
He may need occasional postural limitation[s] for bending, squatting, crouching,
and stooping. There are no manipulative limitations recommended at this time. . .
. There may be workplace environmental conditions expected for unprotected
heights, ladders, stairs, and heavy machinery. He can handle rare complexity of
stress. He would need frequent every two hour rest breaks. . . . Please defer
specific psychiatric recommendations to the appropriately trained mental health
specialist.
(Tr. 398.)
At the hearing, Plaintiff testified that he still had pain in his left leg from the 2010
motorcycle accident. (Tr. 46-47.) Plaintiff also testified that he had back and neck pain for
which he took over-the-counter pain medication. (Tr. 48-49.) Plaintiff testified that he has other
physical limitations as a result of pain. (Tr. 46-50.)
2.

Mental Impairments

In December 2009, Plaintiff underwent a psychiatric evaluation at Southwest Colorado
Mental Health Center (“SCMHC”) performed by Steve Kitson, M.D. (Tr. 228-29.) Dr. Kitson
diagnosed Plaintiff with bipolar II disorder, polysubstance abuse dependence, and impulsecontrol disorder, and assigned him a global assessment of functioning (“GAF”) score of 60. (Tr.
229.) Dr. Kitson noted that Plaintiff had responded well to psychotropic medications in the past
and he recommended continuing them. (Tr. 229.)
In January 2010, Plaintiff underwent a psychological consultative examination performed
by Juanita Ainsley, Psy.D. (Tr. 230-35.) Dr. Ainsley diagnosed Plaintiff with intermittent
explosive disorder; bipolar disorder per Plaintiff’s history; post-traumatic stress disorder; rule out
attention deficit hyperactivity disorder; substance abuse per Plaintiff’s history; and paranoid
3

personality disorder. (Tr. 234.) Dr. Ainsley assigned Plaintiff a GAF score of 45. (Tr. 234.)
Dr. Ainsley opined that Plaintiff would be able to learn and remember instructions appropriately
at the unskilled labor level. (Tr. 234). Specifically, Dr. Ainsley found that Plaintiff had good
cognitive abilities, understood daily and practical situations, and was able to make realistic
judgments appropriate for decisions in a noncomplex and supportive work setting with little
interpersonal contact. (Tr. 234.)
In August 2011, MaryAnn Wharry, Psy.D., a non-examining State agency psychologist,
reviewed the record and completed a Psychiatric Review Technique Form (“PRTF”). (Tr. 6869.) Dr. Wharry found that Plaintiff had “moderate” restrictions in daily living, social
functioning, as well as in maintaining concentration, persistence, or pace. (Tr. 69.) Dr. Wharry
found that Plaintiff had no extended episodes of decompensation. (Tr. 69.) Dr. Wharry also
opined that Plaintiff retained the mental ability to do work of limited complexity and that he
could not work closely with the public, supervisors, or co-workers, but he could accept
supervision and relate to co-workers, if contact was not frequent or prolonged. (Tr. 73.)
At the hearing, Plaintiff testified that due to his bipolar disorder he was depressed, angry,
and anxious around people. (Tr. 40-41.) Plaintiff testified that he experiences manic episodes up
to three times per week. (Tr. 45.) Plaintiff testified that his medications are somewhat effective.
(Tr. 43-44.)
B.

The ALJ’s Decision

On August 28, 2012, ALJ William Musseman issued his decision in this matter denying
Plaintiff DIB and SSI. (Tr. 11-22.) In reaching his decision, ALJ Musseman followed the fivestep sequential evaluation process for evaluating disability claims. (Tr. 14-22.) ALJ Musseman
found that Plaintiff has met the disability insured status of the Act through June 30, 2012 and has
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not engaged in substantial gainful activity since May 22, 2009, the alleged onset date1. (Tr. 16.)
ALJ Musseman found that Plaintiff has the following severe impairments: affective disorder and
substance abuse disorder. (Tr. 16-17.) ALJ Musseman found that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals one of the listed
impairments in Appendix 1 of the Social Security Regulations, specifically considering Listings
12.04 and 12.09. (Tr. 17.) ALJ Musseman found Plaintiff’s residual functional capacity
(“RFC”) to be as follows: “to perform a full range of work at all exertional levels, but with the
following nonexertional limitations: requires non-complex tasks (SVP 2 or less) and minimal
supervision, and no dealing with the general public.” (Tr. 17-20.) ALJ Musseman found that
Plaintiff has past relevant work and that he is unable to perform such work. (Tr. 20.)
Based on the vocational expert’s testimony, which in turn was predicated on ALJ
Musseman’s hypotheticals and in consideration of Plaintiff’s age, education, and work
experience, ALJ Musseman found that Plaintiff could perform jobs that exist in significant
numbers in the national economy, including: industrial cleaner, construction flagger, and
production assembler. (Tr. 20-21.)
Therefore, ALJ Musseman concluded that Plaintiff was not disabled. (Tr. 21.)
C.

Procedural History

Plaintiff appealed the ALJ’s decision at issue in this matter. (Tr. 7-10.) On October 22,
2013, the Appeals Council denied Plaintiff’s request for review. (Tr. 1-6.) Plaintiff appeals that
decision by bringing this lawsuit. (ECF No. 1.)

1

It is not clear to the Court why the ALJ did not use the amended alleged onset date of September 22, 2009 (Tr. 31).

5

II.

LEGAL STANDARDS2
A.

Standard of Review

The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial
evidence is evidence that a reasonable mind might accept as adequate to support a conclusion.
Id. “It requires more than a scintilla, but less than preponderance.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007).
Although a district court will “not reweigh the evidence or retry the case,” it
“meticulously examine[s] 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 v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007); see also 42 U.S.C. ' 405(g). Evidence is not
substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005). In reviewing the Commissioner’s decision, the Court may not
substitute its judgment for that of the agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir.
2006). As the Tenth Circuit Court of Appeals observed in Baca v. Dep’t of Health & Human
Servs., 5 F.3d 476 (10th Cir. 1993), the ALJ also has a basic duty of inquiry to “fully and fairly
develop the record as to material issues.” Id. at 479-480 (citations omitted). This duty exists
even when the claimant is represented by counsel. Id. at 480 (citation omitted).
Also, “[t]he failure to apply the correct legal standard or to provide [a reviewing] court
with a sufficient basis to determine that appropriate legal principles have been followed is

2

Many C.F.R. citations are to part 404—which addresses DIB claims. All cited regulations have parallel citations
in part 416—which addresses SSI claims.

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grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (citation and
internal quotation marks omitted); see also Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.
1996) (“[T]he Secretary’s failure to apply the correct legal standards, or to show us that [he] has
done so, are . . . grounds for reversal.”).
B.

Evaluation of Disability

The criteria to obtain DIB under Title II of the Act are that a claimant meets the insured
status requirements, is younger than 65 years of age, files an application for a period of
disability, and is under a “disability” as defined under Title II of the Act. 42 U.S.C. §§ 416(i),
423(a); Flint v. Sullivan, 951 F.2d 264, 267 (10th Cir. 1991). In addition, the individual’s
disability must have begun before his or her disability-insured status has expired. 20 C.F.R. §
404.101; Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *8 (1983).
The criteria for SSI payments under Title XVI of the Act are determined on the basis of
the individual’s income, resources, and other relevant characteristics. 42 U.S.C. § 1382(c)(1). In
addition to being financially eligible, the individual must file an application for SSI and be under
a disability as defined in the Act. 42 U.S.C. § 1382.
The Act defines “disability” as the inability “to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment [that] can be expected to
result in death or [that] has lasted or can be expected to last for a continuous period of not
[fewer] than twelve months.” 42 U.S.C. § 1382c(a)(3)(A) (definition for benefits under SSI); see
also 42 U.S.C. § 423(d)(2)(A) (definition for benefits under DIB); Barnhart v. Walton, 535 U.S.
212, 214-15 (2002).
There is a five-step sequent for evaluating a disability. See 20 C.F.R. §§ 404.1520,
416.920(a)(4); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing five-step analysis). If
7

it is determined that a claimant is or is not disabled at any point in the analysis, the analysis ends.
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991). First, the
claimant must demonstrate that he or she is not currently involved in any substantial, gainful
activity. 20 C.F.R. §§ 404.1520(b), 416.920(a)(4)(i). Second, the claimant must show a
medically severe impairment or combination of impairments that significantly limits his or her
physical or mental ability to do basic work activities. Id. at §§ 404.1520(c), 416.920(a)(4)(ii).
Third, if the impairment matches or is equivalent to an established listing under the governing
regulations, the claimant is judged conclusively disabled. Id. at §§ 404.1520(d),
416.920(a)(4)(iii). If the claimant’s impairment does not match or is not equivalent to an
established listing, the analysis proceeds to the fourth step. Fourth, the claimant must show that
the “impairment prevents [him or her] from performing work [he or she] has performed in the
past.” Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988) (citations omitted); accord 20
C.F.R. §§ 404.1520(f), 416.920(a)(4)(iv). If the claimant is able to perform his or her previous
work, he or she is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(a)(4)(iv). Fifth, the
Commissioner must demonstrate: (1) that based on the claimant’s residual functional capacity
(“RFC”), age, education, and work experience, the claimant can perform other work; and (2) the
work that the claimant can perform is available in significant numbers in the national economy.
Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987); see also 20 C.F.R. §§ 404.1520(g),
416.920(a)(4)(v).
III.

ANALYSIS
Plaintiff raises numerous issues for the Court’s consideration, including that: (1) the

ALJ’s RFC determination is not supported by substantial evidence in the record or the applicable
law (ECF No. 16 at 25-31); (2) the ALJ failed to properly evaluate the consultative and
8

examining physicians’ opinions (ECF No. 16 at 31-33); and (3) the ALJ failed to properly assess
Plaintiff’s credibility (ECF No. 16 at 33-35).
Because the Court finds the ALJ committed legal error due to his failure to analyze
Plaintiff’s physical impairment in consideration of the applicable RFC, the Court VACATES
Defendant’s decision.
Because this error alone requires remand, the Court does not address the other arguments
raised by Plaintiff. See Madrid v. Barnhart, 447 F.3d 788, 792 (10th Cir. 2006) (when the ALJ’s
error affected the analysis as a whole, the court declined to address other issues raised on
appeal); Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“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.”). The Court expresses no opinion as to Plaintiff’s other arguments and neither
party should take the Court’s silence as tacit approval or disapproval of how the evidence was
considered. The Court does not intend by the opinion to suggest the result that should be reached
on remand; rather, the Court encourages the parties as well as the ALJ to consider all of the
evidence and the issues anew.
A.

The ALJ Committed Reversible Error by Failing to Analyze Plaintiff’s
Physical Impairment in Consideration of the Applicable RFC

In this matter, the ALJ acknowledged that Plaintiff’s DIB and SSI applications were, in
part, based upon Plaintiff’s tibia fracture. (Tr. 16.) The ALJ considered the consultative
examination performed by Dr. Cutter in assessing this alleged impairment3. (Tr. 16-17.) The
3

The Court notes that Dr. Wharry found Plaintiff to have a medically determinable impairment concerning the
fracture. (Tr. 68-69.) The Court notes that Breanne Bassett, SDM (“Single Decision Maker”), found Plaintiff to
have exertional and postural limitations. (Tr. 70-71.) The Disability Determination Explanation was signed by both
Dr. Wharry and Ms. Bassett. (Tr. 63-76.) As the SDM is not a medical professional, her opinion is entitled to no
weight. Cunningham v. Astrue, Case No. 09-2535-SAC, 2010 WL 4737795, at *4 (D. Kan. Nov. 16, 2010) (citation
omitted); Klobas v. Astrue, Case No. 08-cv-02324-REB, 2010 WL 383141, at *5 (D. Colo. Jan. 29, 2010) (citations

9

ALJ accorded Dr. Cutter’s opinion “little weight.” (Tr. 16.) Dr. Cutter noted “no abnormal
findings upon examination and [that] his fractures are healed.” (Tr. 16 (citing Tr. 393-99).) The
ALJ found4, however, that Dr. Cutter opined that Plaintiff “is limited to occasional postural
activities and needs breaks every two hours.” (Tr. 16.) The ALJ concluded that the alleged
disability due to a tibia fracture is an “impairment [that] is non-severe.” (Tr. 16-17.) The ALJ
did not discuss Plaintiff’s physical impairment, i.e., disability as a result of the tibia fracture, in
considering Plaintiff’s RFC. (See generally Tr. 17-20.)
The RFC is defined as the most that a claimant can do in a work setting despite the
claimant’s mental and physical limitations. 20 C.F.R. § 404.1545(a)(1). “The determination of
RFC is an administrative assessment, based upon all the evidence of how the claimant's
impairments and related symptoms affect her ability to perform work-related activities.” Young
v. Barnhart, 146 F. App’x 952, 955 (10th Cir. 2005) (unpublished). “The final responsibility for
determining RFC rests with the Commissioner, based upon all the evidence in the record, not
only the relevant medical evidence.” Id.
“‘The RFC assessment must include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical
evidence (e.g., daily activities, observations).’” Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir.
2014) (quoting SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996)). Also relying on SSR 96-8p,
the Tenth Circuit in Lawton v. Barnhart, 121 F. App’x 364, 374 (10th Cir. 2005) (unpublished)
described the analysis required in the RFC as follows:
omitted). Further, as a SDM’s opinion does not represent the first hand, direct observations of a lay witness, it does
not even constitute evidence from “other non-medical sources” per 20 C.F.R. § 404.1513(d)(4). Cunningham, 2010
WL 4737795, at *4. Thus, the Court does not consider Ms. Bassett’s exertional and postural limitations.
4
The Court notes that the ALJ’s finding does not exactly match Dr. Cutter’s functional assessment. (Compare Tr.
16 with Tr. 398.) Specifically, Dr. Cutter opined that Plaintiff “may need occasional postural limitation[s] . . . [and
that] [h]e would need frequent every [sic] two hour rest breaks.” (Tr. 398.)

10

The ALJ must discuss the individual's ability to perform sustained work activities
in an ordinary work setting on a regular and continuing basis ... and describe the
maximum amount of each work-related activity the individual can perform based
on the evidence available in the case record.
Id. (quoting SSR 96-8p, 1996 WL 374184, at *7). The ALJ must also explain how any material
inconsistencies or ambiguities in the case record were considered and resolved. Id. In this
matter, the ALJ did not explain how he considered and resolved the inconsistency (Tr. 398)
between Dr. Cutter’s functional limitation assessment (may need occasional postural limitations
and would need frequent two-hour rest breaks) and Dr. Cutter’s medical evaluation (Plaintiff’s
tibia fracture had healed). (See generally Tr. 17-20.) The ALJ cannot disregard or reject a
treating physician’s opinion solely because of its confusing nature; such reason is not adequate
absent an attempt to recontact the physician. Andersen v. Astrue, 319 F. App’x 712, 727 (10th
Cir. 2009) (unpublished). While this matter concerns a consultative examiner’s opinion, such
reasoning is equally applicable.
“The RFC assessment must include a discussion of why reported symptom-related
functional limitations and restrictions can or cannot reasonably be accepted as consistent with the
medical and other evidence.” SSR 96-8p, 1996 WL 374184, at *7. In this matter, the ALJ did
not discuss why Plaintiff’s reported pain related to his tibia fracture (Tr. 47-49) can or cannot
reasonably be accepted as consistent with Dr. Cutter’s functional assessment (Tr. 398). (Tr. 1720.) Further, the ALJ did not engage in an examination as to any physical limitations. A
function-by-function evaluation is necessary in order to arrive at an accurate RFC. SSR 96-8p,
1996 WL 374184 at *3-*4 (“[A] failure to first make a function-by-function assessment of the
[claimant's] limitations or restrictions could result in the adjudicator overlooking some of [the
claimant's] limitations or restrictions.”).
11

It is axiomatic that all of the ALJ’s required findings, including the RFC, must be
supported by substantial evidence. Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Thus, where the ALJ fails to point to specific evidence supporting each conclusion, the RFC
findings are not supported by substantial evidence and a remand is required. See Southard v.
Barnhart, 72 F. App’x 781, 784-85 (10th Cir. 2003) (unpublished); see also Moon v. Barnhart,
159 F. App’x 20, 23 (10th Cir. 2005) (unpublished) (remanding the case to the Commissioner
where “the ALJ never specified what he believed the credible medical evidence to be, either for
the purpose of rejecting the doctors’ RFC assessments or for the purpose of supporting his own
finding” and where the court was thus unable to determine what evidence the ALJ relied on in
connection with the RFC). In this matter, the ALJ did not identify any evidence in support of his
conclusion that Plaintiff is capable of performing “a full range of work at all exertional levels.”
(See generally Tr. 17-20.)
“[A]n ALJ is required to consider all of the claimant’s medically determinable
impairments, singly and in combination; the statute and regulations require nothing less” and a
failure to do so “is reversible error.” Salazar, 468 F.3d at 621 (citations omitted); accord 42
U.S.C. § 423(d)(2)(B); accord 20 C.F.R. § 404.1523. At Steps 4 and 5, the ALJ “must consider
the combined effect of all of the claimant’s medically determinable impairments, whether severe
or not severe.” Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (citing 20 C.F.R. §§
404.1545(a)(2), 416.945(a)(2)) (emphasis in original). “[T]he Commissioner’s procedures do
not permit the ALJ to simply rely on his finding of non-severity as a substitute for a proper RFC
analysis.” Wells, 727 F.3d at 1065 (citing SSR 96-8p, 1996 WL 374184, at *4). Although the
ALJ found Plaintiff’s tibia fracture to be a non-severe impairment (Tr. 16-17), this did not
excuse the ALJ from considering Plaintiff’s tibia fracture in relation to Plaintiff’s RFC. “[T]he
12

ALJ’s ‘RFC assessment must include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts . . . and nonmedical evidence.’” Wells,
727 F.3d at 1065 (citing SSR 96-8p, 1996 WL 374184 at *7).
When an ALJ does not provide an explanation for rejecting medical evidence, i.e., Dr.
Cutter’s proposed functional limitations, the Court cannot meaningfully review the ALJ’s
determination. Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001) (quoting Clifton v.
Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (holding “[i]n the absence of ALJ findings
supported by specific weighing of the evidence, we cannot assess whether relevant evidence
adequately supports the ALJ's conclusion”); Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.1995)
(holding ALJ's listing of factors he considered was inadequate when court was “left to speculate
what specific evidence led the ALJ to [his conclusion]”)).
Harmless error analysis is applicable if “no reasonable administrative factfinder,
following the correct analysis, could have resolved the factual matter in any other way.”
Fischer-Ross v. Barnhart, 431 F.3d 729, 733-34 (10th Cir. 2005). This analysis is applied
cautiously in the administrative context. Id. at 733. Where the court “can follow the
adjudicator’s reasoning in conducting [its] review, and can determine that correct legal standards
have been applied, merely technical omissions in the ALJ’s reasoning do not dictate reversal.”
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). In this matter, Defendant does
not advocate that the Court apply harmless error analysis. Further, the Court does not find the
harmless error analysis applicable in this matter. Specifically, the Court is unable to discern how
the ALJ’s affording Dr. Cutter’s opinion “little weight” comports with the finding that Plaintiff
has a medically determinable impairment in relation to the tibia fracture (the Court reserves for
the ALJ to consider again whether Plaintiff’s healed tibia fracture constitutes a medically
13

determinable impairment5); or Dr. Cutter’s opinion that Plaintiff have some exertional limitations
but that the ALJ then does not discuss his reason for rejecting such opinion.
IV.

CONCLUSION
Based on the foregoing, the Court:
(1)

VACATES Defendant’s denial of disability insurance benefits and supplemental

security income; and
(2)

REMANDS to Defendant for further proceedings as directed in this Order

pursuant to sentence four in 42 U.S.C. § 405(g).
DATED this 27th day of January, 2016.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

5

Defendant does not contest that the ALJ found Plaintiff’s tibia fracture to be a medically determinable impairment.
(See ECF No. 19 at 11 (“the ALJ reasonably concluded that Plaintiff’s leg impairment and any resulting pain was
not severe”).)

14