Harper v. Colvin

Filing 19

MEMORANDUM OPINION and ORDER by Magistrate Judge Nina Y. Wang on 02/24/16. The Court VACATES Defendant's denial of disability insurance benefits and supplemental security income; and the Court REMANDS to Defendant for further proceedings as directed in this Order pursuant to sentence four in 42 U.S.C. § 405(g), for the limited purpose of considering any applicable limitations associated with Plaintiffs social functioning but no other issues. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02047-NYW
DENNIS P. HARPER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration,
Defendant.

MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This action comes before the court pursuant to Titles II and XVI of the Social Security
Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83(c) for review of the Commissioner of Social
Security’s final decision denying Plaintiff Dennis P. Harper’s application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Pursuant to the Order of
Reference dated March 24, 2015 [#18], this civil action was referred to the Magistrate Judge “for
all purposes” pursuant to the Pilot Program to Implement the Direct Assignment of Civil Cases
to Full Time Magistrate Judges and Title 28 U.S.C. § 636(c). See [#18]. The court has carefully
considered the Complaint [#1, filed July 23, 2014], Defendant’s Answer [#6, filed Dec. 1, 2014],
Plaintiff’s Opening Brief [#10, filed Jan. 28, 2015], Defendant’s Response Brief [#11, filed Feb.
27, 2015], Plaintiff’s Reply Brief [#14, filed Mar. 13, 2015], the entire case file, the
administrative record, and applicable case law.

For the following reasons, I respectfully

REVERSE the Commissioner’s decision and REMAND for further consideration, on the
limited issue of limitations, if any, posed by Plaintiff’s social functioning.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB under Title II of the Act on February 18, 2011, and
an application for SSI under Title VI of the Act on April 10, 2012. See [#7-2 at 69]. After initial
and reconsideration denials, a video hearing was held before an Administrative Law Judge
(“ALJ”) on October 31, 2012. The ALJ issued a hearing decision on November 19, 2012, which
denied the application for disability benefits at the last step of the five-step sequence for
determining disability. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (summarizing
steps).
At step one, the ALJ determined that Mr. Harper has not engaged in substantial gainful
activity since July 27, 2009, the alleged onset date of his disability. [#7-2 at 71]. At step two,
the ALJ found that Mr. Harper “has the following severe impairments: Residuals of right wrist
fusion and right little finger fracture; and arthritis in right knee.” [#7-2 at 71]. The ALJ found
that Mr. Harper’s “medically determinable mental impairments of affective disorder and
alcoholism do not cause more than minimal limitations in [his] ability to perform basic mental
work activities and are therefore non-severe.” [#7-2 at 71]. At step three, the ALJ held that Mr.
Harper’s musculoskeletal impairments did not meet or medically equal the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. [#7-2 at 74]. At step four, the
ALJ concluded that Mr. Harper was unable to perform any past relevant work (including as a
pipe fitter, plumber supervisor, mine mechanic, and heating and air conditioning technician)
because the demands of his past relevant work exceed his residual functional capacity. [#7-2 at

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82]. At step five, the ALJ determined that considering Mr. Harper’s age, education, work
experience, and residual functional capacity, there are jobs that exist in significant numbers in
the national economy that he could perform, and therefore determined that a finding of “not
disabled” was appropriate. [#7-2 at 82-83].
On June 24, 2014, the Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision, thereby rendering the ALJ’s decision the final decision of the Commissioner. See [#7-2
at 2]; 20 C.F.R. § 404.981; Nelson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993). Plaintiff
filed this action on July 24, 2014. See [#1]. The court has jurisdiction to review the final
decision of the Commissioner. 42 U.S.C. § 405(g).
LEGAL STANDARDS
I.

Standard of Review
In reviewing the Commissioner’s final decision, the court is limited to determining

whether the decision adheres to applicable legal standards and is supported by substantial
evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation
omitted); Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The 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 his
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)
(internal citation omitted). “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

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Cir. 1992) (internal citation omitted). The 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 (internal citation omitted). 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) (internal citation
omitted).
II.

Social Security Disability Appeal Process
An individual is eligible for DIB benefits under the Act if he is insured, has not attained

retirement age, has filed an application for DIB, and is under a disability as defined in the Act.
42 U.S.C. §§ 416(i), 423(a)(1). Supplemental Security Income is available to an individual who
is financially eligible, files an application for SSI, and is disabled as defined in the Act. 42
U.S.C. § 1382. An individual is 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 . . . .” 42 U.S.C. §§
423(d)(2)(A); 1382c(a)(3)(B).
The Commissioner has developed a five-step evaluation process for determining whether
a claimant is disabled under the Act. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.
1988) (describing the five steps in detail). “If a determination can be made at any of the steps
that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Id. at
750. “Step one requires the agency to determine whether a claimant is ‘presently engaged in

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substantial gainful activity.’” Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d 1140,
1142 (10th Cir. 2004). Step two requires the agency to consider whether a claimant has “a
medically severe impairment or impairments.” Allen, 357 F.3d at 1142. “An impairment is
severe under the applicable regulations if it significantly limits a claimant’s physical or mental
ability to perform basic work activities.” Wall, 561 F.3d at 1052 (citing 20 C.F.R. § 404.1521).
At step three, the ALJ considers whether a claimant’s medically severe impairments “meets or
equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1.” Vigil v. Colvin, 805 F.3d
1199, 1203 (10th Cir. 2015).
If the claimant’s impairments are not equivalent to a listed impairment, at step four of the
evaluation process, the ALJ must determine a claimant’s Residual Functional Capacity (RFC)
and compare the RFC to the claimant’s past relevant work. The RFC is what a claimant is still
“functionally capable of doing on a regular and continuing basis, despite his impairments: the
claimant's maximum sustained work capability.” Williams, 844 F.2d at 751. “The claimant
bears the burden of proof through step four of the analysis.” Neilson v. Sullivan, 992 F.2d 1118,
1120 (10th Cir. 1993).
At step five, the burden shifts to the Commissioner to show that a claimant can perform
work that exists in the national economy, taking into account the claimant’s RFC, age, education,
and work experience. Neilson, 992 F.2d at 1120.
A claimant’s RFC to do work is what the claimant is still functionally capable of
doing on a regular and continuing basis, despite his impairments: the claimant’s
maximum sustained work capability. The decision maker first determines the type
of work, based on physical exertion (strength) requirements, that the claimant has
the RFC to perform. In this context, work existing in the economy is classified as
sedentary, light, medium, heavy, and very heavy. To determine the claimant’s
“RFC category,” the decision maker assesses a claimant’s physical abilities and,

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consequently, takes into account the claimant’s exertional limitations (i.e.,
limitations in meeting the strength requirements of work) . . . .
If a conclusion of “not disabled” results, this means that a significant number of
jobs exist in the national economy for which the claimant is still exertionally
capable of performing. However, . . . [t]he decision maker must then consider all
relevant facts to determine whether claimant’s work capability is further
diminished in terms of jobs contraindicated by nonexertional limitations.
…
Nonexertional limitations may include or stem from sensory impairments;
epilepsy; mental impairments, such as the inability to understand, to carry out and
remember instructions, and to respond appropriately in a work setting; postural
and manipulative disabilities; psychiatric disorders; chronic alcoholism; drug
dependence; dizziness; and pain….
Williams, 844 F.2d at 751-52.
ANALYSIS
Mr. Harper objects to the ALJ’s decision on four grounds: (1) the step two findings are
not supported by substantial evidence; (2) the medical source opinions were improperly weighed;
(3) the residual functional capacity assessment is not supported by substantial evidence where
the commissioner did not consider the combined effects of all of Plaintiff’s impairments; and (4)
the finding that Plaintiff can perform alternate work is not supported by substantial evidence.
I.

Plaintiff’s Challenge of the Step Two Findings.
Plaintiff argues that the ALJ’s finding in step two of the sequential evaluation process

that Plaintiff’s affective disorder was as non-severe impairment is not supported by substantial
evidence because the ALJ failed to consider record evidence showing the severity of his
disorder.

See [#10 at 8].

Defendant responds that any error in finding Plaintiff’s mental

impairments not severe was harmless because the ALJ went on to consider Plaintiff’s mental
impairments in assessing his residual functional capacity. [#11 at 9].

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In step two of the sequential evaluation process, the Commissioner must determine
whether a claimant’s impairments are “severe.” 20 C.F.R. § 404.1520(c); 416.920(c). An
impairment is “severe” if it has “more than a minimal effect” on a claimant’s ability to work.
Williams, 844 F.2d at 751. An impairment or combination of impairments is “not severe” when
medical and other evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s ability to do
work. 20 C.F.R. § 404.1521; 416.921. “The Supreme Court has adopted what is referred to as a
‘de minimus’ standard with regard to the step two severity standard: ‘[o]nly those claimants with
slight abnormalities that do not significantly limit any ‘basic work activity’ can be denied
benefits without undertaking’ the subsequent steps of the sequential evaluation process.”
Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004) (quoting Bowen v. Yuckert, 482 U.S.
137, 158 (1987) (O’Connor, J., concurring)); see also 20 C.F.R. §§ 404.1520(c), 404.1521(a).
Here, the ALJ determined that Mr. Harper had the following severe impairments:
residuals of right wrist fusion and right little finger fracture; and arthritis in his right knee. [#7-2
at 71]. However, the ALJ found that Plaintiff’s medically determinable mental impairments of
affective disorder and alcoholism do not cause more than minimal limitations in his ability to
perform basic mental work activities and are therefore non-severe. [#7-2 at 71-72]. The ALJ
acknowledged that Plaintiff’s records and hearing testimony reflect that he has alleged that he
experiences substantial mental limitations stemming from affective disorder (mood disorders and
anger issues) and chronic alcoholism. [#7-2 at 72]. Nevertheless, the ALJ found insufficient
record evidence to reach a conclusion that Plaintiff experiences significant limitations in his

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ability to mentally perform work-related activities as a result of these mental limitations. [#7-2
at 72].
Plaintiff alleges that the ALJ erred at step two because the finding that Plaintiff’s
affective disorder was not severe was not supported by substantial evidence. [#10 at 21].
Plaintiff points to evidence in the record showing that Plaintiff does not get along with other
people and has ongoing anger issues, hostility issues, and a history of domestic violence. [#10 at
8]. Plaintiff also points to a consultative psychologist’s statement that Mr. Harper’s depression
and anger curtailed his productivity, contributed to an inability to complete projects, and
impaired his ability to deal with coworkers. [#10 at 8]. Plaintiff further points to an agency
reviewing physician’s statement that Mr. Harper’s depression interfered with his ability to
maintain attention and concentration and to interact appropriately with coworkers. [#10 at 9].
On the basis of this evidence, Plaintiff argues that the medical opinion evidence and Plaintiff’s
treatment records make more than the required “de minimus” [sic] showing that Mr. Harper’s
affective disorder has more than minimal impact on his ability to perform basic mental work
tasks. [#10 at 9].
Defendant responds to Plaintiff’s argument by pointing out that even if there was an error
in the ALJ’s findings at step two, that error would have been harmless because the ALJ did not
conclude that Plaintiff was not entitled to benefits at step two and proceeded on in the process to
evaluate all of Plaintiff’s impairments, both severe and non-severe, in subsequent steps of the
sequential evaluation process. “An error at step two concerning the severity of a particular
impairment is usually harmless when the ALJ, as here, finds another impairment is severe and
proceeds to the remaining steps of the evaluation.” Groberg v. Astrue, 415 F. App’x 65, 67 (10th

8

Cir. 2011) (citing Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)); see also Fulton v.
Colvin, --- F. App’x ---, No. 15-6054, 2015 WL 6847808, at *2 (10th Cir. Nov. 9, 2015) (“To the
extent [claimant] asserts a step-two error in the ALJ’s failure to assess whether his panic disorder
with agoraphobia or avoidant personality disorder . . . were severe, such error was harmless
because the ALJ found at least one other severe impairment at step two.”) (internal citations
omitted); Wells v. Colvin, 727 F.3d 1061, 1068 (10th Cir. 2013). Here, the ALJ found the mental
impairments non-severe at step two, but found other severe impairments and advanced to step
three. See [#7-2 at 71-74]. The ALJ did not disregard the mental impairments later in the
sequential process, but addressed them in evaluating Plaintiff’s residual functional capacity at
step four. See [#7-2 at 74-81].
Nonetheless, the ALJ made findings at step two regarding the severity of Mr. Harper’s
mental impairments and his social functioning that are contradicted by the record evidence,
without an adequate explanation for his ultimate conclusions. For example, the ALJ stated at
step two that “the record reflects no evidence that the claimant pursued or initiated physical
fights,” that Mr. Harper has “the capacity to act independently and appropriately,” and that his
“chronic alcoholism appears to have not impaired his social functioning.”

[#7-2 at 73].

However, the Record shows that Mr. Harper was arrested for domestic violence and assault with
a deadly weapon. [#7-7 at 2]; see also [#7-7 at 27]. Mr. Harper became irate and threatened his
wife with a gun because he felt that she was playing music too loudly. [#7-7 at 2]. The record
also reflects that Mr. Harper broke his finger when he hit his stepson during another domestic
incident. [#7-2 at 99]. Regardless of whether these incidents occurred at work or at home, these
incidents directly contradict the ALJ’s statements at step two.

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While an error at step two in

properly assessing the severity of mental impairments might normally not constitute reversible
error, the court finds that the lack of substantial evidence supporting the ALJ’s conclusions about
Mr. Harper’s mental impairments at step two, coupled with the ALJ’s improper weighing of
medical source opinions regarding Mr. Harper’s mental impairments later in the sequential
evaluation process reflects the ALJ’s overall failure to adequately and fully consider and address
the record evidence regarding Mr. Harper’s mental impairments.
II.

Plaintiff’s Challenge of Commissioner’s Weighting of Medical Source Opinions.
Plaintiff argues that the ALJ did not properly weigh medical source opinions for two

reasons. First, Plaintiff argues that the Commissioner improperly rejected the only medical
opinion in the record regarding Plaintiff’s manipulative limitations. [#10 at 10].

Second,

Plaintiff argues that the Commissioner improperly rejected both medical source opinions
regarding Plaintiff’s mental functional limitations. [#10 at 12].
A.

The Commissioner’s Consideration of the Medical Opinion Regarding
Plaintiff’s Manipulative Limitations.

A claimant’s residual functional capacity is “the most he can do despite his limitations.”
20 C.F.R. § 404.1545(a). Between steps three and four of the sequential evaluation process, an
ALJ assesses a claimant’s residual functional capacity based on all the evidence in the record.
20 C.F.R. § 404.1545(a)(1); see 20 C.F.R. § 404.1520(a)(4) (noting that the ALJ assesses a
claimant’s residual functional between steps three and four). An ALJ’s residual functional
capacity finding does not have to directly correspond to any medical opinion. Chapo v. Astrue,
682 F.3d 1285, 1288 (10th Cir. 2012) (“[T]here is no requirement in the regulations for a direct
correspondence between a[] [residual functional capacity] finding and a specific medical opinion
on the functional capacity in question.”).
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Plaintiff takes issue with the ALJ’s failure to fully credit the determination of Dr. Ryan
Otten, a consultative physician who performed a physical examination relating to Plaintiff’s
residual functional capacity in June 2011, that Plaintiff “could only rarely use his dominant right
hand to perform the activities of grasping, gripping, fingering, handling, and feeling.” [#10 at
10]; see also [#7-7 at 90]. Dr. Otten defined “rarely” as meaning “less than two hours total
during a normal eight hour work day.” [#7-7 at 90]. Dr. Otten, who is not Mr. Harper’s treating
physician, was the only physician who addressed this issue in the medical records before the
ALJ.
The ALJ found that Mr. Harper was capable of occasional manipulative work with his
right hand. [#7-2 at 74]. The ALJ noted that “occasionally means occurring from very little up
to one-third of an 8-hour work day (cumulative, not continuous).” [#7-2 at 74 n.2]. The ALJ
specifically stated that he “afforded substantial weight to the conclusions of Dr. Ryan Otten.”
[#7-2 at 78]. The only discounting the ALJ gave to Dr. Otten’s opinion was that although Dr.
Otten opined that Plaintiff would only rarely (for less than two hours total during a normal work
day) be able to perform the activities of gripping, fingering, handling, and feeling with the right
hand, the ALJ nonetheless concluded that “the limitation to occasional use of the right upper
extremity sufficiently accommodates the claimant’s impairments.” [#7-2 at 79]. The ALJ based
this finding on Plaintiff’s demonstration both in his writing and by showing the ALJ at the
hearing his ability to oppose his thumb and forefinger in a manner consistent with at most
moderate handling limitations. [#7-2 at 79].
The court notes that Plaintiff’s challenge here amounts to the difference between a
finding by Dr. Otten that Mr. Harper could only use his right hand for less than two hours per

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eight hour workday and the ALJ’s ultimate conclusion that Mr. Harper could use his right hand
for no more than two and two-thirds hours per eight hour work day. The court disagrees with
Plaintiff that the ALJ failed to give appropriate weight Dr. Otten’s opinion. Indeed, the ALJ
specifically stated that he gave Dr. Otten’s opinion “substantial weight.” [#7-2 at 78]. However,
the ALJ reasonably discounted Dr. Otten’s opinion on the basis of evidence in the record
including that Mr. Harper had only slightly reduced grip strength and slightly reduced ranges of
motion in his fingers and thumb. See [#7-2 at 79]; [#7-7 at 89]. The ALJ also specifically noted
that Mr. Harper’s own statements about the activities he is able to do with his right (dominant)
hand and that he was able to complete numerous disability forms in neat handwriting with his
right hand. See [#7-2 at 79, 94]. Where, as here, the ALJ applied the appropriate legal standard
and reached a conclusion that is supported by substantial evidence, the court “may not ‘displace
the agenc[y’s] choice between two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been before it de novo.’” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (internal citation omitted).
B.

The Commissioner’s Consideration of the Medical Opinion Regarding
Plaintiff’s Mental Functional Limitations.

Plaintiff’s next argument is that the ALJ erred in improperly rejecting the two medical
source opinions in the record regarding his mental functional limitations. [#10 at 12]. One of
the two opinions is a consultative psychological examination performed on May 18, 2011 by Dr.
Minette Doss, the examining physician. [#7-7 at 75-83]. The second opinion is that of the
agency reviewing physician, Dr. Ellen Ryan. [#7-3 at 13-14].

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1.

The ALJ’s Consideration of Dr. Doss’s Opinion

Plaintiff argues that the ALJ improperly discounted Dr. Doss’s opinion because reliance
on a patient’s subjective reports is not a proper basis for disregarding a physician’s opinion, the
absence of a cognitive impairment is not a basis for discounting the limitations imposed by
Plaintiff's Affective Disorder and Intermittent Explosive Disorder, and a medical source opinion
must be evaluated under the applicable regulations, even if it addresses the ultimate issue of
disability. [#10 at 13-15].
a. The ALJ’s Opinion
During the May 8, 2011 consultative psychological examination, Dr. Doss noted that Mr.
Harper performed without any obvious cognitive impairment on an MMSE. [#7-7 at 75]. Dr.
Doss also noted that further informal screening of cognitive ability suggested average
intelligence. [#7-7 at 75]. Dr. Doss noted that Mr. Harper battles with alcoholism and double
depression stemming from his tragic childhood during which he likely first began to be afflicted
by Dysthymia. [#7-7 at 75-76]. Dr. Doss stated that Mr. Harper now suffers from Dysthymia, a
Major Depressive Disorder of a severe nature, and has anger control issues in the form of an
Intermittent Explosive Disorder. [#7-7 at 76]. Dr. Doss further noted that Mr. Harper has “quite
low” emotional intelligence.

[#7-7 at 76].

Dr. Doss stated regarding Mr. Harper’s

unemployment that “mentally and emotionally, what keeps him from working is low mood and
poor motivation.” [#7-7 at 77]. In making behavioral observations, Dr. Doss noted that Mr.
Harper was “adequately alert and responsive at this evaluation,” “appropriately conversant,” and
“fully participatory in the evaluation session.” [#7-7 at 78]. Mr. Harper “did not show any

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extremes of emotion or affect,” “was an easy person to interview,” and had a mood and
demeanor that was “serious and subdued.” [#7-7 at 78].
In the results of the evaluation section of the report, Dr. Doss again noted that Mr. Harper
scored in the No Cognitive Impairment range on the MMSE and was “judged to be of average
intelligence with no gross cognitive impairment.”

[#7-7 at 79].

Nonetheless, Dr. Doss

concluded the evaluation with the statements that Mr. Harper’s mood disorder curtails him from
initiating and following through on projects and his rage reaction may impair the ability to deal
with coworkers and may precipitate a very poor response to authority. [#7-7 at 81]. Dr. Doss
thus stated that “[a]ll of these factors make for an individual who would probably not be
successful in a work situation at this time.” [#7-7 at 81].
The ALJ considered Dr. Doss’s opinion and ultimately afforded it little weight. [#7-2 at
79]. The ALJ noted that Dr. Doss had concluded that Plaintiff “would be unreliable on the job,”
that he might not always be aware of normal hazards in order to be able to take appropriate
action, and that his mood disorder curtails him from initiating and following through on projects.
[#7-2 at 79]. The ALJ found, however, that Dr. Doss’s conclusions were unpersuasive because
they were based on Plaintiff’s subjective complaints and appear to overestimate the extent to
which he suffers functional limitations. [#7-2 at 79]. The ALJ provided several examples of
Plaintiff’s ability to function beyond the level described by Dr. Doss, including his MMSE score
reflecting no cognitive impairment, his marriage and work history with no reports of ever being
fired or laid off due to inability to get along with others. [#7-2 at 79]. The ALJ also noted that
Dr. Doss’s determination of whether Plaintiff would be able to be “successful in a work
situation” is an issue reserved for the commissioner. [#7-2 at 80]. The ALJ explained that

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“[w]hile a medical source statement is a medical opinion, the residual functional capacity is the
adjudicator’s ultimate finding as to what the claimant is able to do despite his limitations. [#7-2
at 80 (citing SSR 96-5p)].
b. Plaintiff’s Attacks on ALJ’s Opinion
Plaintiff first argues that the ALJ improperly discounted Dr. Doss’s opinion because
reliance on a patient’s subjective reports is not a proper basis for disregarding a physician’s
opinion. [#10 at 13]. For this proposition, Plaintiff relies on a decision from this District, Russ
v. Colvin, 67 F. Supp. 3d 1274 (D. Colo. 2014). In Russ v. Colvin, the court determined that an
ALJ had failed to provide adequate support for the weight it afforded to the opinions of a treating
physician where the ALJ had given the opinion little weight on the ground that it was
inconsistent with her own treatment notes and thus appeared to be based solely on the claimant’s
subjective complaints. Russ, 67 F. Supp. 3d at 1277-78. In reaching that conclusion, the court
stated that “even where substantiated, the observation that a physician has relied on a claimant’s
subjective reports of her symptoms provides absolutely no basis for rejecting a medical source
opinion.” Id. at 1278 (citing Nieto v. Heckler, 750 F.2d 59, 60-61 (10th Cir. 1984).
This court finds Russ v. Colvin to be distinguishable from the facts at hand. First, in
Russ, the opinion that the ALJ discounted was that of a treating physician, whose opinion “is
entitled to controlling weight when it is ‘well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the
case record.’” Russ, 67 F. Supp. 3d at 1278 (quoting 20 C.F.R. § 404.1527(c)(2)). “Even if a
treating physician’s opinion is not entitled to controlling weight, ‘[t]reating source medical
opinions are still entitled to deference and must be weighed using all of the factors provided in

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20 C.F.R. § . . . 416.927.’” Branum v. Barnhart, 385 F.3d 1268, 1275 (10th Cir. 2004) (quoting
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)). Second, in determining that the
treating physician’s conclusion was inconsistent with her treatment records, the ALJ in Russ
cited to the entirety of the doctor’s treatment notes without providing any specific reference to
information contained therein that was inconsistent with her final conclusion. Russ, 67 F. Supp.
3d at 1279. The Russ court ultimately concluded that the ALJ’s decision to discount the treating
physician’s opinion “lack[ed] an analysis specifically tied to the evidence in the record” and was
“merely a conclusion in the guise of a finding” that did “not constitute substantial evidence in
support of the disability decision.” Russ, 67 F. Supp. 3d at 1279.
In contrast to Russ, the medical opinion in dispute here is one of a consultative
examining physician, which is generally entitled to less weight than that of a treating physician.
Jones v. Colvin, 514 F. App’x 813, 819 (10th Cir. 2013) (quoting Robinson v. Barnhart, 366
F.3d 1078, 1084 (10th Cir. 2004) (“The opinion of an examining physician is generally entitled
to less weight than that of a treating physician, and the opinion of an agency physician who has
never seen the claimant is entitled to the least weight of all.” Moreover, the ALJ pointed to
specific portions of Dr. Doss’s evaluation that contradicted her statement regarding Mr. Harper’s
inability to work. See [#7-2 at 79]. In particular, the ALJ noted that Dr. Doss reported that Mr.
Harper’s performance on the MMSE was without cognitive impairment. See [#7-2 at 79]. The
ALJ also noted that Dr. Doss’s conclusion that Mr. Harper would be unable to be successful in a
work situation due to his anger issues was unsupported by the fact that he was capable of
working for many years without any reports of being laid off or fired for failure to get along with
others. [#7-2 at 79]. Here, the ALJ’s analysis is specifically tied to the evidence in record, and

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the fact that the ALJ’s determination to afford less weight to Dr. Doss’s opinion to the extent that
it was based in part on Mr. Harper’s statements where the ALJ had also determined that Mr.
Harper lacked credibility is not grounds for reversing the ALJ’s decision. See Butler v. Astrue,
410 F. App’x 137, 142-43 (10th Cir. 2011); Lopez v. Barnhart, 183 F. App’x 825, 828-29 (10th
Cir. 2006).
Furthermore, the court does not consider Plaintiff’s argument that the absence of a
cognitive impairment is not a basis for discounting the limitations imposed by Mr. Harper’s
Affective Disorder and Intermittent Explosive Disorder as grounds for reversal of the ALJ’s
determination. See [#10 at 14-15]. The court disagrees with Plaintiff’s representation of the
ALJ’s findings on this point. In particular, the ALJ’s basis for discounting Dr. Doss’s opinion on
Plaintiff’s problems dealing with people, which were allegedly due to anger issues, was due to
contradictory evidence in the record including Plaintiff’s ability to successfully work in the past
and remain married for 26 years despite anger issues and the fact that none of the doctors in the
record noted witnessing his anger issues. [#7-2 at 79-80].
Finally, the court finds that Plaintiff’s argument that a medical source opinion must be
evaluated under the applicable regulations, even if it addresses the ultimate issue of disability, is
not a basis for reversing the ALJ’s determination in this case. See [#10 at 15]. After stating all
of the reasons why he discounted Dr. Doss’s opinion regarding Mr. Harper’s ability to be
successful in the workplace, the ALJ concluded by stating: “Further, whether a claimant would
be able to ‘successful in a work situation’ is an issue reserved to the Commissioner.” [#7-2 at
80]. Plaintiff states that this is an improper basis for discounting Dr. Doss’s opinion. See [#10 at
15]. The court notes that the ALJ did not state that this was the sole basis for his decision to

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discount Dr. Doss’s opinion, and he previously stated several reasons for discounting her opinion
that were correct under the law and supported by substantial evidence. Accordingly, the ALJ’s
statement that the ultimate determination of a claimant’s ability to be successful at work is one
for the Commissioner is not a basis for finding error in the ALJ’s decision to discount Dr. Doss’s
opinion.
2.

The ALJ’s Consideration of Dr. Ryan’s Opinion

Plaintiff argues that the ALJ erred in only giving “some weight” to the opinion of Dr.
Ellen Ryan, the agency reviewing physician, on Mr. Harper’s moderate limitations in
concentration and social functioning. [#10 at 15]. The court finds that the ALJ erred in failing to
explain its basis for failing to adequately address his rejection of Dr. Ryan’s conclusion that Mr.
Harper should be limited in his interactions with others in the workplace.
The ALJ’s decision is largely consistent with Dr. Ryan’s opinion, and the ALJ
specifically stated that he afforded her opinion “some weight.” [#7-2 at 81]. The key distinction
is that while Dr. Ryan opined that Mr. Harper needed less interaction with coworkers and the
public, [#7-3 at 14], the ALJ did not explicitly state that a similar limitation should apply, see
[#7-2 at 81]. The ALJ stated that he gave Dr. Ryan’s conclusions “some weight” and that those
conclusions included a finding that Plaintiff’s allegations are “partially credible” and that despite
his affective disorder and alcohol abuse, his activities of daily living indicate only mild to
moderate impairments. [#7-2 at 81 (citing Exhibit 2A)]. The ALJ explained that Dr. Ryan
supported her conclusions by noting that although Plaintiff reported that he is a loner, he goes to
AA meetings and group therapy several times a week. [#7-2 at 81 (citing Exhibit 9F)]; see also
[#7-3 at 14]. The ALJ ultimately concluded that the record only supports a finding of mild

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impairments.

[#7-2 at 81].

While the court agrees that the Record supports the ALJ’s

determination that Plaintiff’s cognitive functioning has mild impairments, at best, the court
further includes that the ALJ did not fully develop the record on any limitations with respect to
Plaintiff’s social functioning, namely, his ability to appropriately interact with others.
“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)). The Tenth Circuit in Lawton
v. Barnhart described the analysis required in the RFC as follows:
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.
121 F. App’x 364, 374 (10th Cir. 2005) (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.
Here, the ALJ explained that Dr. Ryan reached the conclusion that Mr. Harper’s
allegations are “partially credible,” and that despite his affective disorder and alcohol abuse, his
activities of daily living indicate only mild to moderate limitations. [#7-2 at 81]. The ALJ did
not, however, explain why he discounted, or even mention Dr. Ryan’s finding that Mr. Harper
needed less interaction with coworkers and the public. While his ultimate conclusion may be
appropriate, the ALJ failed to explain why he discounted the agency reviewing physician’s
finding regarding Mr. Harper’s need for limited social interaction or whether he considered Mr.
Harper’s domestic issues in so finding. To the extent that the ALJ found that this limited social
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interaction was encompassed within his finding of a mild impairment, he should have so stated.
Because there is an unexplained failure by the ALJ to point specifically to the basis for his
rejection of Dr. Ryan’s opinion, the court finds that the ALJ’s rejection of that opinion is not
supported by substantial evidence. See Kimbrough v. Colvin, No. 13-CV-03449-RM, 2016 WL
319208, at *7 (D. Colo. Jan. 27, 2016) (“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.”).
Accordingly, the court finds that the ALJ’s decision must be reversed to the extent that
the ALJ failed to explain the basis for rejecting or failing to address Dr. Ryan’s opinion
regarding Mr. Harper’s need for limited social interaction in the workplace and to the extent that
the ALJ failed to adequately assess the record evidence regarding Mr. Harper’s anger issues and
social interactions at each step in the sequential evaluation process. Because the court remands
on this basis, the court does not address Plaintiff’s remaining arguments.

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, 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.”).
CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
(1)

The court VACATES Defendant’s denial of disability insurance benefits and

supplemental security income; and

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(2)

The court REMANDS to Defendant for further proceedings as directed in this

Order pursuant to sentence four in 42 U.S.C. § 405(g), for the limited purpose of considering any
applicable limitations associated with Plaintiff’s social functioning but no other issues.

DATED: February 24, 2016

BY THE COURT:

s/ Nina Y. Wang__________
United States Magistrate Judge

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