Thomas v. Colvin

Filing 17

ORDER by Judge Philip A. Brimmer on 4/22/16. ORDERED that the decision of the Commissioner denying disability benefits to plaintiff is REVERSED and REMANDED for additional proceedings consistent with this opinion. (kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-01641-PAB
CARA ANN THOMAS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before the Court on the Complaint [Docket No. 1] filed by
plaintiff Cara Ann Thomas on June 11, 2014. Plaintiff seeks review of the final decision
of defendant Carolyn W. Colvin (the “Commissioner”) denying her claim for disability
benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-33. 1 The
Court has jurisdiction to review the Commissioner’s final decision under 42 U.S.C.
§ 405(g).
I. BACKGROUND
On November 4, 2010, plaintiff applied for disability insurance benefits under
Title II of the Act. R. at 12. Plaintiff alleged that she had been disabled since
November 20, 2009. Id. After an initial administrative denial of her claim, plaintiff
received a hearing before an Administrative Law Judge (“ALJ”) on October 26, 2012.
Id. On November 27, 2012, the ALJ issued a decision denying plaintiff’s claim. Id. at
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The Court has determined that it can resolve the issues presented in this matter
without the need for oral argument.

23. The ALJ found that plaintiff had the following severe impairments: fibromyalgia with
associated pain and fatigue, interstitial cysts,2 degenerative changes of the spine, and
depression. Id. at 14. The ALJ concluded that these impairments, alone or in
combination, did not meet one of the regulations’ listed impairments, id. at 15, and ruled
that plaintiff had the residual functional capacity (“RFC”) to
perform sedentary work as defined in 20 CFR 404.1567(a) except for the
following restrictions and limitations: the claimant should avoid hazardous
working conditions, and extremes in temperature. She should be able to
stand up a few minutes every hour and stretch out. The claimant could do
frequent hand work, but nothing fast paced. She could do occasional
overhead and occasional push/pull work. In deference to her mental
impairment she is limited to unskilled, low stress work.
Id. at 16-17. Based upon this RFC and in reliance on the testim ony of a vocational
expert (“VE”), the ALJ concluded that plaintiff was unable to perform any past relevant
work, id. at 22, but that “there are jobs that exist in significant numbers in the national
economy that the claimant can perform.” Id. On April 15, 2014, the Appeals Council
denied plaintiff’s request for review of this denial. R. at 1. Thus, 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

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Plaintiff notes that the ALJ incorrectly “refers to this impairment as ‘interstitial
cysts,’ but the correct name is interstitial cystitis” and that “[t]here are no ‘cysts’ involved
with this condition.” Docket No. 11 at 13, n.10 (em phasis in original).
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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).
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
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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 & 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
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

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those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
C. The ALJ’s Decision
Plaintiff argues that the ALJ erred in (1) not calling a medical expert to opine on
step-three issues; (2) not properly evaluating the medical opinion evidence of plaintiff’s
treating physician and psychologist; and (3) not basing her credibility finding in
substantial evidence. Docket No. 11 at 6-7.
Plaintiff first argues that the ALJ failed to consult a state agency medical expert
to opine on the issue of the medical equivalence of her physical impairments to the
Listings pursuant to SSR 96-6p, 1996 W L 374180, at *1-2 (July 2, 1996). Docket No.
11 at 15. Plaintiff contends that her physical impairments “were evaluated only by a
‘single decision maker.’” Id. at 15. The Commissioner responds that the ALJ consulted
the opinion of Dr. Irwin Matus, a state agency psychologist, whose opinion regarding
plaintiff’s limitations due to her fibromyalgia, depression, and anxiety was sufficient
under SSR 96-6p because SSR 12-2p, 2012 W L 3104869, at *4 (July 25, 2012),
“explains that [the ALJ] ‘may request evidence from other acceptable medical sources,
such as psychologists . . . to evaluate the severity and functional effects of
[fibromyalgia] or any of the person’s other impairments.’” Docket No. 14 at 10
(emphasis in original). Plaintiff replies that Dr. Matus, as a psychologist, does not have
the requisite expertise to assess plaintiff’s physical, as opposed to mental, limitations
and that, even if Dr. Matus “could opine on the psychological effects of her
fibromyalgia . . . that is not the case for interstitial cystitis.” Docket No. 15 at 3. 3
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There are no Listings for fibromyalgia or interstitial cystitis. SSR 02-2p
addresses interstitial cystitis and provides, in part:
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“At step three, the ALJ considers whether a claimant’s medically severe
impairments are equivalent to a condition listed in the appendix of the relevant disability
regulation.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quotation and
citation omitted). SSR 96-6p requires the agency to obtain the opinion of a physician or
psychologist on the issue of medical equivalence. See SSR 96-6p, 1996 WL 374180,
at *3. SSR 96-6p explains that, although the ALJ is not bound by the medical opinion,

Because there is no listing for [interstitial cystitis], we will find that an
individual with [interstitial cystitis] “meets” the requirements of a listing if
he or she has another impairment that, by itself, meets the requirements
of a listing. We also will find that a listing is met if there is an impairment
that, in combination with [interstitial cystitis], meets the requirements of a
listing. For example, [interstitial cystitis] may increase the severity of
coexisting or related impairments, including mental disorders, to the
extent that the combination of impairments meets the requirements of a
listing. This also may be true in the reverse; coexisting or related
impairments may increase the severity of [interstitial cystitis].
We also may find that [interstitial cystitis], by itself, is medically equivalent
to a listed impairment . . .
We also will find equivalence if an individual has multiple impairments,
including [interstitial cystitis], no one of which meets or equals the
requirements of a listing, but the combination of impairments is equivalent
in severity to a listed impairment.
2002 WL 32063799, at *5 (November 5, 2002).
SSR 12-2p addresses fibromyalgia and provides, in part:
At step 3, we consider whether the person’s impairment(s) meets or
medically equals the criteria of any of the listings in the Listing of
Impairments in appendix 1, subpart P of 20 CFR part 404 (appendix 1).
[Fibromyalgia] cannot meet a listing in appendix 1 because [fibromyalgia]
is not a listed impairment. At step 3, therefore, we determine whether
[fibromyalgia] medically equals a listing (for example, listing 14.09D in the
listing for inflammatory arthritis), or whether it medically equals a listing in
combination with at least one other medically determinable impairment.
2012 WL 3104869, at *6 (July 25, 2012).
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“longstanding policy requires that the judgment of a physician (or psychologist)
designated by the Commissioner on the issue of equivalence on the evidence before
the administrative law judge or the Appeals Council must be received into the record as
expert opinion evidence and given appropriate weight.” 1996 WL 374180, at *3. SSR
96-6p further provides that the requirement can be satisfied by the “signature of a State
agency medical or psychological consultant on an SSA-831-U5 (Disability
Determination and Transmittal Form).” Id; see Castaneda v. Astrue, 344 F. App’x 396,
398 (9th Cir. 2009) (unpublished) (noting that the ALJ complied with SSR 96-6p, in part,
because state’s non-examining medical expert signed the required SSA-831-U5 forms).
Dr. Matus’ evaluation considered plaintiff’s psychological impairments due to
fibromyalgia, affective disorders, and anxiety disorders. R. at 76. Plaintiff argues that
Dr. Matus was not “qualified to opine on the issue of medical equivalence regarding Ms.
Thomas’ . . . fibromyalgia.” Docket No. 15 at 3. However, pursuant to SSR 12-2p, an
ALJ “may request evidence from . . . psychologists . . . to evaluate the severity and
functional effects of [fibromyalgia].” 2012 WL 3104869, at *4. Plaintiff’s argument is
rejected.
Plaintiff also argues that the ALJ did not base her step three de cision as to
interstitial cystitis on a medical opinion. Geddes Shaw, a single decision maker who
does not appear to be a psychologist or physician, completed plaintiff’s physical
residual functional capacity assessment and signed the Disability Determination and
Transmittal Form. Id. at 78-79, 82. 4 There is no opinion in the record from a state
4

Mr. Shaw’s assessment appears to have been based on Listing 1.02 for major
joints dysfunction and Listing 12.04 for affective disorders. R. at 77.
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agency medical expert, physician, or even a psychologist regarding the equivalence of
plaintiff’s interstitial cystitis. Thus, the ALJ made her step-three finding on plaintiff’s
interstitial cystitis without any opinion from a medical expert on the issue of
equivalence.5
The Commissioner argues that plaintiff’s interstitial cystitis impairment cannot
meet or equal a Listing’s criteria because her symptoms from that impairment did not
last for at least twelve continuous months. Docket No. 14 at 8. See 20 C.F.R.
§ 404.1525(c)(4) (2011). Plaintiff responds that her interstitial cystitis is a chronic
condition that causes her pain every day and that she continues to treat several times a
year with a bladder installation procedure. Docket No. 15 at 6. T he ALJ evaluated
plaintiff’s impairments due to interstitial cystitis under the section 6.00 listings for genitourinary system impairments. R. at 15. The ALJ determined that the “limitations of the
claimant do not meet or medically equal the terms of any listing in this section because
the evidence fails to establish the required impairment of renal function, persistently
elevated creatinine levels, persistent anorexia with recent weight loss, the specified
hematocrit levels, or presence of nephrotic syndrome.”6 Id. The ALJ’s decision does

5

Because the record does not contain a medical opinion on the equivalence of
plaintiff’s interstitial cystitis, the Court need not reach plaintiff’s argument that a
psychologist may not opine on physical impairments. See Docket No. 15 at 3.
6

The ALJ’s determination that plaintiff’s impairments due to interstitial cystitis do
not meet the section 6.00 listings for genito-urinary system impairments is distinct from
the equivalency determination. See Fowler v. Comm. of Soc. Sec., 2013 WL 5372883,
at *12 (E.D. Mich. Sept. 25, 2013) (“SSR 96-6p treats equivalence determinations
differently from determinations as to whether an impairment meets a listing, requiring
expert evidence for the former but not the latter.”) (citation omitted); see also Galloway
v. Astrue, 2008 WL 8053508, at *5 (S.D. Tex. May 23, 2009) (“The basic principle
behind SSR 96-6p is that while an ALJ is capable of reviewing records to determine
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not discuss the duration of plaintiff’s symptoms due to interstitial cystitis. The Court
declines to consider a post hoc justification for not obtaining a state agency medical
opinion on the issue of equivalence regarding plaintiff’s interstitial cystitis. See Allen v.
Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). Moreover, the lack of a medical
opinion, as required by SSR 96-6p, on the equivalence of plaintiff’s impairments that
considers her interstitial cystitis is not rendered harmless by the ALJ’s findings at step
four and five. See Carbajal v. Astrue, No. 10-cv-02025-PAB, 2011 WL 2600984, at *3
(D. Colo. June 29, 2011); cf. Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir.
2005) (insufficiently detailed step three findings may be harmless error where the ALJ
makes detailed findings at other steps that confirm rejection of the listings). Although
the burden is on plaintiff to demonstrate that her impairment meets or equals a listing at
step three, SSR 96-6p requires the ALJ to develop the record by receiving a medical
opinion on this issue. Id. The Court will reverse and remand for the ALJ to correct this
error.
Because the Court is remanding on this issue, it will not address plaintiff’s other
objections to the ALJ’s decision. Cf. 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.”).
III. CONCLUSION
For the foregoing reasons, it is

whether a claimant’s ailments meet the Listings, expert assistance is crucial to an ALJ’s
determination of whether a claimant’s ailments are equivalent to the listings.”)
(emphasis in original) (citation and quotation marks omitted)).
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ORDERED that the decision of the Commissioner denying disability benefits to
plaintiff is REVERSED and REMANDED for additional proceedings consistent with this
opinion.

DATED April 22, 2016.
BY THE COURT:

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

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