Naeve v. Colvin
ORDER vacating Defendant's denial of disability insurance benefits and remanding this case to Defendant for further proceedings as directed pursuant to sentencing four in 42 U.S.C. § 405(g). Entered by Judge Raymond P. Moore on 3/3/2016. (cpear)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13-cv-03459-RM
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
This matter is before the Court on Plaintiff Barbara Naeve’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”) under Title II 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
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; 10-11; 10-12; 10-13; 10-14; 10-15; 10-16.) The
parties have fully briefed the matter and it is ripe for adjudication. (ECF Nos. 15; 16; 19.)
For the reasons set forth below, the Court vacates Defendant’s denial of Plaintiff’s DIB
application and remands for further proceedings consistent with this Order.
Plaintiff applied for DIB in July 2010, alleging she was disabled as of May 31, 2007, due
to the following conditions that limit her ability to work: right arm injury and complex regional
pain syndrome (“CRPS”), and depression. (Admin. R. (“Tr.”) 84, 91, 185-93.) After Plaintiff’s
application was initially denied, Plaintiff requested a hearing before an ALJ. (Tr. 106-08, 11011.) The ALJ denied Plaintiff’s application. (Tr. 8-30.) Plaintiff requested review of the ALJ’s
decision and, in November 2013, the Appeals Council denied such review. (Tr. 1-7, 39.)
Plaintiff timely requested judicial review before the Court.
Background and Relevant Medical Evidence
Plaintiff was born in 1961. (Tr. 49.) Plaintiff completed eleventh grade. (Tr. 51.)
Plaintiff’s past relevant work history, as referenced in the Dictionary of Occupational Titles,
includes: administrative clerk, payroll clerk, and accounting clerk/bookkeeper. (Tr. 71-72.)
Plaintiff claims she became disabled on May 31, 2007 due to a combination of physical
and mental health impairments. (Tr. 84, 91, 185-93.)
In February 2007, Plaintiff experienced pain in her right fingers and wrist, which was not
resolved with splinting, stretching, or rest. (Tr. 1009.) In April 2007, Plaintiff filed a workers’
compensation claim based on her right arm impairment. (Tr. 1009.) Plaintiff was diagnosed
with a tendon-related impairment of the right wrist which was corrected with surgery in August
2007. (Tr. 407-10.) Plaintiff’s physician cleared her to return to work in December 2007 on
modified duty. (Tr. 465.)
The Court notes that Plaintiff filed a prior application for disability. Neither party addresses Plaintiff’s prior
disability application and thus, neither will the Court.
In January 2008, Plaintiff sought additional treatment for her right wrist pain and
paresthesia. (Tr. 705-09.) Plaintiff underwent additional treatment and surgery. (Tr. 613-19.)
In February 2009, Plaintiff was diagnosed with CRPS type II. (Tr. 610-12, 739-43.)
Plaintiff reported that pain block injections, medication, and therapeutic treatment was either
ineffective or caused intolerable side effects. (Tr. 697-703, 733, 1009.) Between 2009 and
2011, Plaintiff continued to complain of right arm pain which did not respond to treatment. (Tr.
756-808, 872, 1031-35, 1046-56.)
In March 2009, Douglas Hemler, M.D., examined Plaintiff and assigned Plaintiff a 15
percent whole person impairment rating based on her hypersensitivity and functional use of her
non-dominant hand and her behavioral reaction to that impairment. (Tr. 743.)
In December 2010, state-agency consultant Anthony LoGalbo, M.D., a physician, opined
that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently, mainly using
the left arm and “using right [arm] to assist and stabilize; occasionally lift, push, pull, reach,
handle, and finger with her right arm but with no repetitive use of the right arm. (Tr. 93-95.)
In December 2010, Edwin Healey, M.D. a physician, opined that Plaintiff was currently
unable to work due to her “chronic pain and psychological symptoms and sleep disorder.” (Tr.
In July 2011, John Hughes, M.D., a physician, opined that Plaintiff was capable of
gainful employment with the restrictions “on handwriting, typing, and grasping using the left
hand to 30 minutes out of each hour and the right hand 10 minutes out of each hour.” (Tr. 112432.)
On September 23, 2011, Plaintiff’s attorney memorialized a conversation between him
and Dr. Greg Reichardt regarding Plaintiff which Dr. Reichardt signed. (Tr. 1059-60.) Dr.
Reichardt opined that Plaintiff should not frequently (no more than 30 percent of the time) use
her right arm, should perform no more than occasional keyboarding with her right hand, and
should not work in cold environments; however, the restrictions state that Plaintiff could use her
left arm normally. (Tr. 1060.) Further, as a result of Plaintiff’s “chronic pain, she has
experienced depression, sleep difficulties and social withdrawal.” (Tr. 1060.)
In November 2011, Alan Lichtenberg, M.D., a physician, opined that Plaintiff was
permanently and totally disabled due to chronic pain, psychological symptoms, and a sleep
disorder. (Tr. 1100-15.)
In July 2012, Plaintiff received a pain block injection. (Tr. 1142-43.)
In November 2010, Plaintiff saw Doreen Hill, a mental health therapist, with complaints
of depression-related symptoms. (Tr. 1062-68.) Ms. Hill recommended therapeutic mind-body
exercises and therapy. (Tr. 1062-68.)
In November 2010, Plaintiff attended a state-ordered psychological evaluation with
Russell Thye, Ph.D., a psychologist. (Tr. 974-78.) Dr. Thye opined that Plaintiff would benefit
from therapy and medication management and would likely realize a reduction in symptoms; he
diagnosed Plaintiff with major depressive disorder with some possible cognitive decrease related
to depression and pain; he assigned Plaintiff a GAF score of 48. (Tr. 977-78.) Dr. Thye opined
that Plaintiff’s ability to complete simple tasks and basic work duties was likely moderately
impaired and her ability to do more complex tasks was likely markedly impaired. (Tr. 978.)
In December 2010, state-agency consultant Ellen Ryan, M.D. opined that Plaintiff
retained the ability to perform work not involving significant complexity or judgment; could do
work requiring up to three months’ time to learn; and was capable of lower semi-skilled work.
In February 2011, Dr. Pock, opined that without treatment, Plaintiff’s symptoms were
unlikely to improve and that in her current emotional condition it was unlikely she would be able
to work. (Tr. 1000-04.)
In March 2011, David Zierk, Psy.D., a psychologist, diagnosed Plaintiff with a GAF
score of 50-55 and opined that Plaintiff was currently capable of only sub-sedentary work. (Tr.
In April 2011, Plaintiff saw Stephen Moe, M.D., a psychiatrist, for evaluation of and
treatment for depression. (Tr. 1037-42.) Dr. Moe noted that Plaintiff’s behavior and actions did
not comport with depression. (Tr. 1040.) Dr. Moe opined that Plaintiff’s complaints had a
“factitious feeling.” (Tr. 1040-41.)
In June 2011, Plaintiff saw Elias Ruiloba, M.D. a psychiatrist, for medication
management and treatment of depression. (Tr. 1070-74.) Plaintiff reported that she had adverse
reactions to antidepressant medication. (Tr. 1070-74.) Dr. Ruiloba diagnosed Plaintiff with a
mood disorder related to her general medical condition and assigned her a global assessment of
function (“GAF”) score of 53. (Tr. 1071, 1073.)
In July 2011, Plaintiff saw Dr. Moe for a follow-up treatment visit. (Tr. 1084-87.)
Plaintiff brought Randolph Pock, M.D., a psychiatrist (Tr. 1000-04), to the visit. (Tr. 1084.) Dr.
Moe noted that Plaintiff was superficially tearful and vaguely hostile/passive-aggressive. (Tr.
1085.) Dr. Moe opined that he could not say whether Plaintiff had a major depressive disorder
or had developed symptoms as a result of somatization and/or factitious disorder. (Tr. 1085-86.)
Between August 2011 and November 2011, Plaintiff saw Dr. Ruiloba for three follow-up
visits. (Tr. 1075-79.) Plaintiff reported that the medications prescribed by Dr. Ruiloba caused
her adverse reactions. (Tr. 1075-79.) Dr. Ruiloba assigned Plaintiff GAF scores of 52 to 54.
(Tr. 1075, 1077-78.)
In December 2011, Dr. Pock opined that Plaintiff did not have the emotional capacity to
work and concluded she was permanently and totally disabled. (Tr. 1118-23.)
The ALJ’s Decision
On August 21, 2012, ALJ Charlotte A. Wright issued her decision in this matter denying
Plaintiff DIB. (Tr. 8-30.) In reaching her decision, ALJ Wright followed the five-step sequential
evaluation process for evaluating disability claims. (Tr. 13-22.) ALJ Wright found that Plaintiff
has met the disability insured status of the Act through March 31, 2013 and has not engaged in
substantial gainful activity since May 21, 2007, the alleged onset date. (Tr. 13.) ALJ Wright
found that Plaintiff has the following severe impairments: complex regional pain syndrome
(“CRPS”) right arm, status post first dorsal extensor compartment release right wrist, status post
right upper extremity cubital tunnel release, major depressive disorder. (Tr. 13-14.) ALJ Wright
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 Listing 12.04. (Tr. 14-15.) ALJ Wright found Plaintiff’s residual
functional capacity (“RFC”) to be as follows: “to perform light work as defined in 20 CFR
404.1567(b) except pushing and pulling is limited to occasional on the right side; the claimant
cannot perform tasks requiring repetitive use of the right arm; the claimant is limited to
occasional overhead reaching on the right; occasional in front and/or lateral reaching on the
right; occasional handling and fingering on the right; the claimant can occasionally climb ramps
and stairs; never climb ladders, ropes or scaffolds; frequently stoop or kneel; occasionally crouch
or crawl; the claimant retains the mental ability to do work not involving significant complexity
or judgment; the claimant can do work requiring up to three months[’] time to learn techniques,
acquire information and develop the facility needed for average job performance; and the
claimant is capable of lower semi-skilled (SVP3) work.” (Tr. 15-21.) ALJ Wright found that
Plaintiff has past relevant work and that she is unable to perform such work. (Tr. 21.)
Based on the vocational expert’s testimony, which in turn was predicated on ALJ
Wright’s hypotheticals and in consideration of Plaintiff’s age, education, and work experience,
ALJ Wright found that Plaintiff could perform jobs that exist in significant numbers in the
national economy, including: counter clerk and gate guard. (Tr. 21-22.)
Therefore, ALJ Wright concluded that Plaintiff was not disabled. (Tr. 22.)
Plaintiff appealed the ALJ’s decision at issue in this matter. (Tr. 39.) On November 6,
2013, the Appeals Council denied Plaintiff’s request for review. (Tr. 1-7.) Plaintiff appeals that
decision by bringing this lawsuit. (ECF No. 1.)
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.
C.F.R. citations are to part 404—which addresses DIB claims.
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
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.”).
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)
and 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 Act defines an individual as disabled “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); Barnhart v. Walton, 535 U.S.
212, 214-15 (2002).
There is a five-step sequence for evaluating a disability. See 20 C.F.R. § 404.1520;
Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing five-step analysis). If 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) (citation omitted).
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). 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). 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). If the claimant’s impairment does not match or is
not equivalent to an established listing, the analysis proceeds to fourth step. Id. at § 404.1520(e).
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). 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). 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) (citation omitted); see also 20 C.F.R. §
Plaintiff raises numerous issues for the Court’s consideration, including that: (1) the ALJ
erred by failing “to address or give controlling weight to attending physician evidence” (ECF
No. 15 at 3-6); (2) the ALJ erred by relying on Plaintiff’s failure to take pain medication or seek
medical treatment (ECF No. 15 at 6-9); (3) the ALJ erred by failing to consider Plaintiff’s pain
(ECF No. 15 at 9-10); (4) the ALJ erred in her residual function determination (ECF No. 15 at
11-15); (5) the ALJ erred in her assessment of the medical providers (ECF No. 15 at 15-18); the
ALJ erred by substituting her medical judgment for that of medical sources (ECF No. 15 at 1819).
Because the Court finds the ALJ committed legal error due to her failure to state and
adequately discuss the weight afforded to certain medical providers, the Court VACATES
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.
The ALJ Committed Reversible Error by Not Stating How Much Weight She
Gave to Certain Medical Providers’ Opinions and in Failing to Discuss
Adequately those Opinions.
The ALJ is required to weigh every relevant medical opinion he or she receives. See 20
C.F.R. §§ 404.1527(c)-(d); Watkins, 350 F.3d at 1301 (citation omitted); see SSR 96-8p, 1996
WL 374184, at *7 (July 2, 1996) (providing that an ALJ must explain why a medical opinion
was not adopted). “It is the ALJ’s duty to give consideration to all the medical opinions in the
record.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing 20 C.F.R. §§
404.1527(c), 927(c)); see also Lauxman v. Astrue, 321 F. App’x 766, 769 (10th Cir. 2009)
(unpublished) (holding that “an ALJ must consider the opinion of every medical source and
provide specific, legitimate reasons for rejecting it.”); Doyal v. Barnhart, 331 F.3d 758, 764
(10th Cir. 2003); SSR 96-5p, 1996 WL 374183, at * 1 (“opinions from any medical source about
issues reserved to the Commissioner must never be ignored”)). The ALJ “must also discuss the
weight [s]he assigns to such opinions.” Keyes-Zachary, 695 F.3d at 1161 (citing 20 C.F.R. §§
404.1527(e)(2)(ii)). “[W]hen deciding what weight to assign to an opinion, an ALJ must
consider the factors set forth at 20 C.F.R. § 404.1527(d). . . .” Lauxman, 321 F. App’x at 769;
see also Wade v. Astrue, 268 F. App’x. 704, 706 (10th Cir. Jan. 23, 2008) (unpublished). “The
opinion of an examining physician or psychologist is generally entitled to less weight than that of
a treating physician or psychologist, and the opinion of an agency physician or psychologist who
has never seen the claimant is generally entitled to the least weight of all.” Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
Medical opinions are defined as “‘statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of [a claimant’s]
impairment(s), including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant]
can still do despite impairment(s), and [a claimant's] physical or mental restrictions.’” Fuller v.
Astrue, 766 F. Supp. 2d 1149, 1156 (D. Kan. 2011) (citing 20 C.F.R. § 404.1527(a)(2)). Medical
opinions may not be ignored and all medical opinions must be evaluated by Defendant in
accordance with factors contained in the regulations. Id. (citing 20 C.F.R. § 404.1527(d); SSR
96-5p, 1996 WL 374183, at *2-3 (July 2, 1996)). Those factors are: (1) length of treatment
relationship and 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. Watkins, 350 F.3d at 1301 (citation omitted); 20
C.F.R. §§ 404.1527(d)(2-6). As to non-treating physicians, the ALJ is still required to consider
their opinions and to provide, specific, legitimate reasons for rejecting it. Doyal, 331 F.3d at
764; SSR 96-5p, 1996 WL 374183, at *1. Although the ALJ need not discuss each factor, see
Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2008), she “must be ‘sufficiently specific’ to
permit meaningful” review. Guilano v. Colvin, 577 F. App’x 859, 861-62 (10th Cir. 2014)
(unpublished) (citation omitted). The ALJ may not reject certain medical opinions on the
presumption that those providers were “paid for the report” (Tr. 19) or obtained at the request of
Plaintiff’s attorney. See Crowder v. Colvin, 561 F. App’x, 740, 743 (10th Cir. 2014)
(unpublished) (citation omitted).
In this matter, the ALJ did not give controlling weight to a treating source’s opinion.
(See generally Tr. 11-22.) The ALJ did not state how much weight she gave to the respective
opinions of Drs. Pock, Healey, Zierk, Hughes, and Lichtenberg. (See generally Tr. 11-22.)
Rather, the ALJ merely stated that “such evidence is certainly legitimate and deserves due
consideration.” (Tr. 19.) Such analysis is insufficient as the Court is unable to discern what the
ALJ means by “due consideration.” 20 C.F.R. § 404.1527(e)(2)(ii) (“[T]he administrative law
judge must explain in the decision the weight given to the opinions . . . of any treating, nontreating and non-examining sources. . . .”); see Keyes-Zachary, 695 F.3d at 1161 (citation
omitted); 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 the court was
“left to speculate what specific evidence led the ALJ to [his conclusion]”). Further, although the
ALJ is correct in her assessment that some of the opinions identified above state that Plaintiff “is
disabled” and that the “ultimate determination as to disability is a question reserved to the
Commissioner” (Tr. 19 (citing SSR 96-5p, 1996 WL 374183, at *2 (July 2, 1996)), that does not
mean that the ALJ may ignore other aspects to the medical providers’ opinions. Fuller, 766 F.
Supp. 2d at 1161 (citing SSR 96-5p, 1996 WL 374183, at *2-3). The ALJ errs when she does
not weigh all the medical opinions even though they may touch upon issues reserved solely to
“Although the ALJ need not discuss all of the evidence in the record, [s]he may not
ignore evidence that does not support [her] decision, especially when that evidence is
‘significantly probative.’” Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001) (quoting
Clifton, 79 F.3d at 1009-10). In this matter, the ALJ summarized the evidence from Drs. Pock,
Healey, Zierk, Hughes, and Lichtenberg. (Tr. 19.) The ALJ, however, failed to discuss how she
resolved conflicts in the evidence as contained within the opinions of Drs. Pock, Healey, Hughes,
and Lichtenberg in comparison to the opinions offered by Drs. Reichardt, Ryan, LoGalbo, and
Thye. Defendant argues that the “ALJ permissibly addressed the examiners’ opinions
collectively.” (ECF No. 16 at 13 n.13 (citing Oldham v. Astrue, 509 F.3d 1254, 1258-59).) In
Oldham, in contrast to this matter, the ALJ explicitly gave “very little weight” to the grouped
opinions. Oldham, 509 F.3d at 1258-59. Further, Defendant argues that “[i]t was not
unreasonable for the ALJ to give greater credence” to the treating sources’ findings and opinions
as well as state agency expert opinions based upon them. (ECF No. 16 at 14.) Nowhere,
however, does the ALJ state that she gave greater weight to these individuals’ opinions than to
the opinions of Drs. Pock, Healey, Hughes, and Lichtenberg. (See generally Tr. 11-22.) The
ALJ’s decision must be evaluated “based solely on the reasons given stated in the decision.”
Robinson, 366 F.3d at 1084. “‘Affirming this post hoc effort to salvage the ALJ’s decision
would require us to overstep our institutional role and usurp essential functions committed in the
first instance to the administrative process.’” Id. at 1084-85 (quoting Allen v. Barnhart, 357 F.3d
1140, 1142 (10th Cir. 2004); see also Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008)
(holding that a post hoc rationale is improper because it usurps the agency’s function of
weighing and balancing the evidence in the first instance and that judicial review is limited to the
reasons stated in the ALJ’s decision).
As such, the ALJ’s failure to state the weight afforded to and to adequately discuss the
opinions of Drs. Pock, Healey, Zierk, Hughes, and Lictenberg constitutes legal error.
The ALJ’s Error Is Not Harmless
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, 695 F.3d at 1166. 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.
The Tenth Circuit has previously held that
if the ALJ’s RFC is ‘generally consistent’ with the findings in a medical opinion,
or if the RFC is “more favorable” to the claimant than the opinion’s findings, then
there is no reason to believe that a further analysis or weight of the opinion could
advance the claimant’s claim of disability. In such a case, the error is harmless
because the claimant cannot show prejudice stemming from the ALJ’s failure to
give greater weight to the opinion.
Thompson v. Colvin, 551 F. App’x 944, 948 (10th Cir. 2014) (unpublished) (internal alterations
omitted and citation omitted).
In this matter, the ALJ’s RFC determination (Tr. 15-16) is not
more favorable to Plaintiff than the opinions of Drs. Pock, Healey, Zierk, Hughes, and
Lictenberg. Nor does the Court find the ALJ’s RFC determination (Tr. 15-16) consistent with
the opinions of Drs. Pock, Healey, Zierk, Hughes, and Lictenberg.
Thus, the ALJ’s failure to state the weight afforded to the opinions of Drs. Pock, Healey,
Zierk, Hughes, and Lictenberg is not harmless error.
Based on the foregoing, the Court:
VACATES Defendant’s denial of disability insurance benefits; and
REMANDS to Defendant for further proceedings as directed in this Order
pursuant to sentence four in 42 U.S.C. § 405(g).
DATED this 3rd day of February, 2016.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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