Moomy v. Colvin

Filing 15

ORDER re: 1 Complaint. That the conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is reversed; That this case is remanded to the ALJ. That plaintiff is awarded her costs. By Judge Robert E. Blackburn on 5/28/15. (kfinn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 1:14-cv-01108-REB
RUTHANN MOOMY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER REVERSING DISABILITY
DECISION AND REMANDING TO COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],1 filed April 17, 2014, seeking
review of the Commissioner’s decision denying plaintiff’s claim for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. I have
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g). The
matter has been fully briefed, obviating the need for oral argument. I reverse and
remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she is disabled as a result of multiple sclerosis and
associated fatigue and cognitive dysfunction. After her current application for disability

1

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

insurance benefits was denied,2 plaintiff requested a hearing before an administrative
law judge. This hearing was held on August 23, 2012, and continued to November 16,
2012. At the time of these hearings, plaintiff was 57 years old. She has a Ph.D. in
economics and past relevant work experience as an investment advisor. She has not
engaged in substantial gainful activity since August 23, 2010, her amended alleged date
of onset.
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits. Although the evidence established that plaintiff suffered
from severe impairments, the judge concluded that the severity of those impairments
did not meet or equal any impairment listed in the social security regulations. The ALJ
found that plaintiff had the residual functional capacity to perform a range of sedentary
work with certain postural, environmental, and nonexertional limitations. After
consulting with a vocational expert, the ALJ found this residual functional capacity to be
consistent with the all the demands of plaintiff’s past relevant work as it is generally
performed in the national economy, and therefore found plaintiff not disabled at step 4
of the sequential evaluation. Plaintiff appealed this decision to the Appeals Council.
The Council affirmed. Plaintiff then filed this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if her
physical and/or mental impairments preclude her from performing both her previous

2

Plaintiff filed a prior application for benefits, which application was denied initially and then
again following an administrative hearing. Plaintiff did not appeal the denial of that application, but
instead filed the application which forms the basis of this appeal.

2

work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a quinquepartite sequential evaluation
process for determining whether a claimant is disabled:
1.

The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.

2.

The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.

3.

The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.

4.

If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.

5.

If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
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in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.
20 C.F.R. § 404.1520(b)-(f). See also Williams v. Bowen 844 F.2d 748, 750-52 (10th
Cir. 1988). The claimant has the initial burden of establishing a disability in the first four
steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294
n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that
the claimant is capable of performing work in the national economy. Id. 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. Secretary of Health & Human Services, 933
F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence 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). Further, “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).

4

Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
III. LEGAL ANALYSIS
Plaintiff’s primary argument on appeal is that the ALJ erred in his assessment of
the weight to be given to the various medical source opinions of record. More
specifically, plaintiff complains of the ALJ’s determination to discredit such opinions to
the extent they relied on plaintiff’s subjective complaints of fatigue and cognitive decline
with sustained effort. Contrary to the general thrust of this argument, the ALJ’s opinion
on the whole bespeaks a thorough and yeoman-like effort to vet and weigh the multiple
medical opinions of record and the evidence supporting or contradicting them. The ALJ
addressed the majority of these opinions thoughtfully and thoroughly, giving specific,
legitimate reasons tied to the evidence of record for his conclusions as to the weight
assigned to each. To that extent, it would not be proper for this court essentially to
reweigh the evidence. See Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir.
1993). See also Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir. 1988) (conflicts in the
evidence are for the ALJ to resolve).
Nevertheless, the majority of the medical source opinions, as well as the
treatment records and examination findings that support them, predate plaintiff’s alleged
date of onset – by a period of as much as three years in some instances. The only
exceptions are the opinions of plaintiff’s treating psychiatrist, Dr. Cynthia Smith,3 and

3

Plaintiff also received psychiatric treatment from Dr. Daniel Hoffman from May, 2009, through
October, 2010, which encompassed at least one visit post-dating her alleged date of onset. (See Tr. 265274.) Dr. Hoffman issued no opinion regarding plaintiff’s functional capacity, however. Although the
ALJ’s failure to acknowledge or discuss Dr. Hoffman’s treatment notes would not warrant remand on its

5

that of the consultative examiner, Dr. Peter Quintero, a neurologist.4 Dr. Quintero
suggested that, although plaintiff’s fatigue was “impossible to quantitate [sic] on
examination,” “she is a high functioning individual” and that her mental status
examination was “normal by usual standards, but not normal for her.” (Tr. 313.) Dr.
Smith, by contrast, stated that plaintiff was significantly restricted in most facets of the
mental demands of work, such that she would be unable to perform adequately for more
than 30% of the workday and was likely to be unable to complete a full work day five or
more days a month. (Tr. 396-400.) The ALJ gave Dr. Quintero’s opinion “significant
weight” (Tr. 25), but afforded Dr. Smith’s assessment “minimal weight.” (Tr. 27.)
Ultimately, however, neither of the reasons cited by the ALJ for affording Dr.
Smith’s opinion such little weight ultimately bear scrutiny. First, the ALJ stated that Dr.
Smith’s opinion was not supported by her underlying treatment notes, which he said “fail
to disclose any significant findings that would support the claimant’s allegations of
‘disability’ or the opined functional limitations[.]” (Tr. 27.) The court is unclear how the
ALJ could have arrived at such a conclusion, however, because Dr. Smith’s handwritten
notes, while copious, are almost completely illegible. (See Tr. 373-394.) The court has
been largely unable to decipher them, and it is not apparent that the ALJ had any better
luck, as his conclusion in this regard is completely unsubstantiated in any particular.

own, the ALJ may address those records on remand to the extent appropriate.
4

Plaintiff also continued to receive treatment from her treating neurologist, Dr. Allen Bowling,
after her alleged date of onset. However, despite Dr. Bowling’s opinion that plaintiff suffered from
debilitating fatigue (see Tr. 345), it appears that in fact he deferred treatment of plaintiff’s alleged
cognitive decline and fatigue to Dr. Smith (see Tr. 256). His own examination findings showed that the
underlying physical findings related to plaintiff’s multiple sclerosis were relatively mild and stable after the
alleged date of onset. (See Tr. 323-236, 255-256.) Here again, however, the ALJ is free to revisit Dr.
Bowling’s opinions on remand.

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Remand therefore is required to clarify the content of Dr. Smith’s notes so that the ALJ
may properly substantiate his conclusions as to the weight to be afforded her opinion.
See Cutler v. Weinberger, 516 F.2d 1282, 1285 (2nd Cir. 1975) (“Under the
circumstances this court has no way to determine whether the Secretary fully
understood some of the medical reports before him. Where the medical records are
crucial to the plaintiff's claim, illegibility of important evidentiary material has been held
to warrant a remand for clarification and supplementation.”). See also Manso-Pizarro
v. Secretary of Health & Human Services, 76 F.3d 15, 18 n.5 (1st Cir. 1996); Miller v.
Heckler, 756 F.2d 679, 680-81 (8th Cir. 1985).
The second reason offered by the ALJ for discounting Dr. Smith’s opinion of
plaintiff’s functional capacity was its purported inconsistency with the other evidence of
record, specifically, the clinical findings of Drs. Schneiders and Baroffio. (Tr. 27.)
These findings, however, were based on examinations that were undertaken in 2007
(Tr. 275-282, 283-284), 2008 (Tr. 366-369), and 2009 (Tr. 285-291), all well prior to
plaintiff’s alleged date of onset. This rationale seems to take inadequate account of the
fact that multiple sclerosis is a progressive disease. See Dunn v. Colvin, 2014 WL
4792113 at *5 (E.D.N.C. July 30, 2014), adopted, 1024 WL 4771620 (E.D.N.C. Sept.
23, 2014); Valley v. Astrue, 2012 WL 3257876 at *1 (E.D. Va. 8 Aug. 2012). The court
therefore cannot say with any confidence that plaintiff’s level of cognitive functioning at
some earlier time, but more than a year prior to her alleged date of onset, is
appropriately considered as indicative of her continuing status during her alleged period
of disability.

7

Accordingly, I find and conclude that the ALJ’s conclusion as to the weight to be
afforded Dr. Smith’s opinion is not supported by substantial evidence.5 The case
therefore must be remanded for further proceedings. However, to the extent plaintiff
may be seeking a directed award of benefits, I do not find that this case to be an
appropriate instance for the exercise of my discretion in that regard.6 See Nielson v.
Sullivan, 992 F.2d 1118, 1122 (10th Cir. 1993).
IV. ORDERS
THEREFORE IT IS ORDERED as follows:
1. That the conclusion of the Commissioner through the Administrative Law
Judge that plaintiff was not disabled is reversed;
2. That this case is remanded to the ALJ, who is directed to
a.

Seek further clarification and/or supplementation of Dr. Smith’s
treatment notes;

b.

Recontact any treating or examining physicians for further
clarification of their findings, seek the testimony of medical
experts, order further consultative examinations, or
otherwise further develop the record as he deems

5
Although remand is warranted on this basis, I find no reversible error in the ALJ’s classification
of plaintiff’s past relevant work. The ALJ solicited the opinion of a vocational expert on this very issue, and
the expert gave a thoughtful, cogent, and reasoned opinion as to why he believed plaintiff’s past relevant
work was more properly characterized as that of “Economic Analyst” rather than “Financial Planner.” (Tr.
56-57.) “‘A vocational expert is uniquely qualified to determine how jobs are categorized or classified in the
[Dictionary of Occupational Titles].’” Perotin v. Colvin, 2015 WL 2444424 at *5 (D. Colo. May 19, 2015)
(quoting Spencer v. Commissioner of Social Security, 2014 WL 4351418 at *4 (S.D. Ohio Sept. 2,
2014). His opinion constitutes substantial evidence in support of the ALJ’s conclusion as to the proper
classification of plaintiff’s past relevant work.
6

By this decision, I do not find or imply that plaintiff is or should be found to be disabled.

8

necessary;
c.

Reevaluate plaintiff’s residual functional capacity at step 4 of the
sequential evaluation process, articulating fully his findings in this
regard and properly weighing those medical opinions of record
which are contemporaneous with plaintiff’s alleged period of
disability, including but not limited to, those of Drs. Smith and
Quintero;

d.

If necessary and based on his determination at step 4, make
findings relevant to step 5 of the sequential evaluation; and

e.

Reassess the disability determination; and

3. That plaintiff is awarded her costs, to be taxed by the clerk of the court
pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1 and 28 U.S.C.
§ 2412(a)(1).
Dated May 28, 2015, at Denver, Colorado.
BY THE COURT:

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