Flakes v. Colvin

Filing 18

ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE. The Commissioners decision is VACATED and this case is REMANDED to the Commissioner for rehearing. by Judge William J. Martinez on 07/17/2015. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-2473-WJM
ELLA M. FLAKES,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE

This is a Social Security benefits appeal brought under 42 U.S.C. § 405(g).
Plaintiff Ella M. Flakes (“Flakes”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”), denying her application for
supplemental security income benefits and disability insurance benefits. The denial
was affirmed by an administrative law judge (“ALJ”), who ruled that Flakes was not
disabled within the meaning of the Social Security Act. This appeal followed.
For the reasons set forth below, the ALJ’s decision denying Flakes’s application
for supplemental security income benefits and disability benefits is VACATED and this
case is REMANDED for further proceedings consistent with this order.
I. BACKGROUND
Flakes was born in September 1982 and was 26 years old on the alleged
disability onset date of June 6, 2009. (Administrative Record (“R.”) (ECF No. 11) at
105.) Flakes graduated from high school and has previously worked as a dining room

attendant, fast food cook, and sales clerk. (R. at 39–40.)
Flakes applied for disability insurance benefits and supplemental security income
on May 29, 2012, with a protective filing date of May 7, 2012. (R. at 11, 105, 110.)
Flakes claimed that she is disabled due to the following conditions: back and neck pain,
anxiety, blood clots in her legs, asthma, knee pain, depressive disorder, obesity, and
gastroesophageal reflux disease (GERD). (R. at 13, 136.) Her application was denied
on September 7, 2012. (R. at 63, 66.) Flakes requested and received a hearing in
front of an ALJ, E. William Shaffer. (R. at 69.) On June 4, 2013, the ALJ issued a
written decision in accordance with the Commissioner’s five-step sequential evaluation
process.1
At step one, the ALJ found that Flakes had not engaged in substantial gainful
activity since June 6, 2009, the alleged disability onset date. (R. at 13.)
At step two, the ALJ found that Flakes suffered from “the following severe
impairments: asthma, depressive disorder, anxiety disorder, obesity, and [GERD].” (Id.)
The ALJ did not find that any other claimed condition was a severe impairment. (R. at
13–14.)
At step three, the ALJ found that Flakes’s impairments, while severe, did not
meet or medically equal any of the impairments listed in the Social Security regulations.

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The five-step process requires the ALJ consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment;
(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to
her past relevant work; and, if not, (5) could perform other work in the national economy. See
20 C.F.R. § 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750–51 (10th Cir.
1988.) The claimant has the burden of proof through steps one to four; the Social Security
Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).

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(R. at 14.)
Before proceeding to step four, the ALJ assessed Flakes’s residual functional
capacity (“RFC”). The ALJ concluded that Flakes has the RFC “to perf orm a range of
light work . . . . [Flakes] is further limited to avoiding concentrated exposure to fumes,
odors, dusts, and gases; avoid[ing] concentrated exposure to unprotected heights and
unprotected major manufacturing machinery; and limited to unskilled work.” (R. at 15.)
Then, at step four, the ALJ concluded that Flakes is unable to perf orm any of her past
relevant work. (R. at 17.)
At step five, the ALJ found that other jobs exist in the national economy that
Flakes can perform, including fast food worker, survey worker, and marker (i.e., one
who marks merchandise, either to identify the object itself or to specify its price). (R. at
18–19, 43.) Accordingly, the ALJ found that Flakes was not entitled to Social Security
benefits. (R. at 19.)
Flakes appealed to the Social Security Appeals Council (R. at 7), which denied
review (R. at 1). Flakes then filed this action seeking review of the ALJ’s June 4, 2013
decision. (ECF No. 1.)
II. LEGAL STANDARD
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 such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id. “It requires more than a scintilla, but less than a

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preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). 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 rev iewing the Commissioner’s decision,
the Court may neither reweigh the evidence nor substitute its judgment for that of the
agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). “On the other hand, 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).
III. ANALYSIS
Flakes’s appeal focuses almost exclusively on alleged errors in the ALJ’s RFC
formulation and the effect of those errors at later stages of the five-step process. The
Court finds that two errors require remand.
A.

RFC Assessment: Treatment of Dr. Rodriguez’s Opinion
The ALJ’s RFC formulation was not, on this record, supported by substantial

evidence because it was inherently contradictory.
The RFC determination largely turned on Flakes’s mental capabilities. (See
R. at 16–17.) Flakes reported severe depression, anxiety, irritability, and difficulty
socializing. (R. at 34–39.) The ALJ, however, found this inconsistent with mental
health treatment records supposedly showing that Flakes’s difficulties were improving
with treatment. (R. at 17.)
On the other hand, Flakes’s report was supported by an examining psychologist,
Carlos Rodriguez, Ph.D. Through a detailed clinical interview that post-dated the

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mental health treatment records (compare R. at 312 with R. at 242–60), Dr. Rodriguez
found “cognitive deficits in environmental information, attention, calculation,
concentration and long-term memory,” as well as “deficits in abstraction ability and
basic social judgment.” (R. at 315.) “She also presents with evidence of . . . Major
Depression . . . .” (Id.) Dr. Rodriguez stated that his “prognosis for change” was
“guarded,” and that there was no discrepancy between his conclusions and Flakes’s
mental health treatment records. (R. at 316.) Dr. Rodriguez gave Flakes a GAF score2
of 45. (Id.)
Dr. Rodriguez also filled out a Social Security form titled “Residual Functional
Capacity Evaluation (Mental).” (R. at 317.) There, Dr. Rodriguez concluded that Flakes
had moderate limitations in the ability to remember and carry out very short and simple
instructions, but marked to extreme limitations in the ability to maintain attention and
concentration for extended periods. (Id.) Dr. Rodriguez also found moderate to
marked limitations in Flakes’s ability to work in coordination with or in proximity to others
without being distracted by them, and marked limitations in the ability to complete a

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As the Tenth Circuit has explained:
The GAF is a subjective determination based on a scale of 100 to
1 of “the clinician’s judgment of the individual’s overall level of
functioning.” American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders (Text Revision 4th ed.2000)
at 32. A GAF score of 51–60 indicates “moderate symptoms,”
such as a flat affect, or “moderate difficulty in social or
occupational functioning.” Id. at 34. A GAF score of 41–50
indicates “[s]erious symptoms . . . [or] serious impairment in
social, occupational, or school functioning,” such as inability to
keep a job. Id.

Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004) (alterations in original).

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normal workday and workweek without interruptions from psychologically-based
symptoms. (Id.) In addition, Dr. Rodriguez found marked to extreme limitations in the
ability to accept instructions and respond appropriately to criticism from supervisors,
and marked limitations in the ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes. (R. at 318.)
The ALJ concluded that Dr. Rodriguez’s report deserved “little weight” because it
was in “conflict with the [mental health treatment records].” (R. at 17.) However, earlier
in his analysis, the ALJ had already accepted Dr. Rodriguez’s conclusions regarding
concentration, persistence, and pace. (R. at 15 (citing Exhibit 11F/4, i.e., R. at 315).)
Thus, the ALJ had accepted some of Dr. Rodriguez’s conclusions but later found that
the most important parts of his analysis were contradicted by other evidence in the
record. The ALJ’s decision does not explain how both could be true. If Dr. Rodriguez’s
analysis is not credible, then it would seem that the ALJ should not have accepted his
conclusions about concentration, persistence, and pace; and if his conclusions about
concentration, persistence, and pace are acceptable, then there appears to be no basis
for later declaring the bulk of his report to be not credible. See Chapo v. Astrue, 682
F.3d 1285, 1291–92 (10th Cir. 2012) (“The ALJ accepted, at least to a limited extent,
the restriction recognized by Dr. Vega with regard to Ms. Chapo’s difficulty in dealing
with the public. But the ALJ fully discounted the bulk of Dr. Vega’s mental RFC
limitations with no explanation at all as to why one part of his opinion was creditable
and the rest was not. That is error under this circuit’s case law.”).
There may be an explanation for accepting some of Dr. Rodriguez’s conclusions
while rejecting most of his analysis. However, no such explanation appears in the
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ALJ’s opinion, and this Court may not infer one. See Robinson v. Barnhart, 366 F.3d
1078, 1084 (10th Cir. 2004) (“The ALJ’s decision should have been evaluated based
solely on the reasons stated in the decision.”). Accordingly, the Court finds that the
ALJ’s RFC assessment lacked substantial evidence and must be vacated for
reconsideration.
B.

Step Five: Accounting for Mental Impairments
The ALJ’s erroneous formulation of the RFC obviously affected the hypotheticals

he propounded to the vocational expert (VE) when determining whether jobs exist for
an individual such as Flakes. However, even if that error had not occurred, the Court
would still find error at Step Five. Specifically, the ALJ’s hypotheticals to the VE did not
properly account for even the moderate limitations in concentration, persistence, and
pace that the ALJ was willing to accept. Rather, the ALJ asked the VE to assum e
environmental limitations (such as avoiding exposure to fumes, working around
machinery, etc.) but said nothing about mental limitations. (R. at 40–41.) The ALJ did
ask the VE to assume “unskilled” work, but the Tenth Circuit has made clear that
“unskilled” work is not synonymous with work that may be performed by someone with
mental limitations:
Whenever a claimant’s residual functional capacity is
diminished by both exertional and nonexertional
impairments, the Secretary must produce expert vocational
testimony or other similar evidence to establish the
existence of jobs in the national economy. A severe mental
impairment is such a nonexertional impairment. Yet the
administrative law judge did not present to the vocational
expert any difficulties manifested by the claimant’s mental
impairment. Nor did the administrative law judge’s questions
relating to the claimant’s ability to transfer skills include the
possibility of problems arising from his existing mental
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impairment—comparison of mental demands required for a
job does not effectively aid evaluation of a claimant’s
depressive disorder absent evidence that the disorder is
caused or exacerbated by increased mental demands.
Finally, the vocational expert was not even apprised of the
claimant’s depression to determine whether his ailment
would affect his performance in the two jobs proffered by the
vocational expert regardless of whether the claimant would
suffer transitional problems. “[T]estimony elicited by
hypothetical questions that do not relate with precision all of
a claimant’s impairments cannot constitute substantial
evidence to support the Secretary’s decision.”
Hargis v. Sullivan, 945 F.2d 1482, 1491–92 (10th Cir. 1991) (citations om itted); see
also Chapo, 682 F.3d at 1290 & n.3 (10th Cir. 2012) (“W hile the jobs cited by the VE
happen to be unskilled, that just accounted f or issues of skill transfer, not impairment of
mental functions . . . .”). The Commissioner does not respond to this argument except
to declare that it “has no merit” and move on. (ECF No. 15 at 14.)
Accordingly, the ALJ did not have substantial evidence from which to conclude
that sufficient jobs exist for an individual with Flakes’s limitations. For this additional
reason, the ALJ’s decision must be vacated for reconsideration.
C.

Additional Arguments
Because the Court vacates and remands for the reasons stated above, the Court

need not address the other arguments raised by Flakes. See Madrid v. Barnhart, 447
F.3d 788, 792 (10th Cir. 2006). The Court expresses no opinion as to Flakes’s other
arguments and neither party should take the Court’s silence as tacit approval or
disapproval of those arguments. The Court also does not intend by this opinion to
suggest the result that should be reached on rem and; rather, the Court encourages the
parties and the ALJ to fully consider the evidence and all issues raised anew on
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remand. See Kepler v. Chater, 68 F.3d 387, 391–92 (10th Cir. 1995) (“W e do not
dictate any result [by remanding the case]. Our remand simply assures that the correct
legal standards are invoked in reaching a decision based on the facts of the case.”
(internal quotation marks omitted)).
IV. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is VACATED and
this case is REMANDED to the Commissioner for rehearing.
Dated this 17th day of July, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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