Bills v. Colvin

Filing 20

ORDER by Magistrate Judge Kristen L. Mix on 3/21/16 re: 10 SOCIAL SECURITY ADMINISTRATIVE RECORD. IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not disabled is REVERSED and this matter is REMANDED for further proceedings consistent with this opinion.IT IS FURTHER ORDERED that Plaintiff is AWARDED her costs. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03354-KLM
RUBY BILLS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court1 on the Social Security Administrative Record
[#10],2 filed May 29, 2015, in support of Plaintiff’s Complaint [#1] seeking review of the
decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration, (“Defendant” or “Commissioner”) denying Plaintiff’s claim for disability
insurance benefits pursuant to Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401
et seq., and for supplemental security income benefits pursuant to Title XVI of the Act, 42
U.S.C. § 1381 et seq. On August 10, 2015, Plaintiff filed an Opening Brief [#14] (the
“Brief”). Defendant filed a Response [#17] in opposition, and Plaintiff filed a Reply [#18].
The Court has jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §§

1

The parties consented to proceed before the undersigned for all proceedings pursuant
to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. See [#16, #19].
2

“[#10]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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405(g) and 1383(c). The Court has reviewed the entire case file and the applicable law and
is sufficiently advised in the premises. For the reasons set forth below, the decision of the
Commissioner is REVERSED and this case is REMANDED for further proceedings.
I. Factual and Procedural Background
Plaintiff alleges that she became disabled at the age of fifty-one on January 14,
2011, due to a variety of impairments. Tr. 206, 210, 253 (stating “[a]sthma, copd, anxiety,
adhd, hip problems”).3 On July 18, 2011, Plaintiff filed applications for disability insurance
benefits under Title II and for supplemental security income under Title XVI. Tr. 249. On
April 1, 2013, an Administrative Law Judge (the “ALJ”) issued an unfavorable decision. Tr.
34.
The ALJ determined that Plaintiff met the insured status requirements of the Act
through December 31, 2012, and that Plaintiff had not engaged in substantial gainful
activity (“SGA”) since January 14, 2011. Tr. 27. The ALJ found that Plaintiff suffers from
three severe impairments: (1) scoliosis, (2) gastroesophageal reflux disease (“GERD”), and
(3) asthma. Tr. 27. However, the ALJ also found that these impairments, individually or
in combination, do not meet or medically equal “the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).” Tr. 29. The ALJ next concluded that
Plaintiff has the residual functional capacity (“RFC”) to perform light work. Tr. 29.
[In addition, s]he is further restricted as she can only frequently operate foot
controls; occasionally climb ramps and stairs, but cannot climb ladders or

3

The Court refers to the Transcript of the Administrative Proceedings, located at Docket
Nos. 10, 10-1, 10-2, 10-3, 10-4, 10-5, 10-6, 10-7, and 10-8, by the sequential transcript numbers
instead of the separate docket numbers.

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scaffolds; and cannot work at unprotected heights or in extreme cold. The
claimant cannot work where concentrated fumes, odors, gases, or chemicals
are present.
Tr. 29. Based on the RFC and the testimony of an impartial vocational expert (“VE”), the
ALJ found that Plaintiff was able to perform past relevant work including that of a car
jockey, a machine cellophane wrapper, and a hand packager. Tr. 32. In addition, the ALJ
found that “there are [other] jobs that exist in significant numbers in the national economy
that the claimant can perform . . . .” Tr. 33. Specifically, based on the testimony of the VE,
the ALJ concluded that Plaintiff could also perform the representative occupations of
collator operator, inserting machine operator, and merchandise marker. Tr. 33. She
therefore found Plaintiff not disabled at both step four and, alternatively, step five of the
sequential evaluation. Tr. 32-34. The ALJ’s decision has become the final decision of the
Commissioner for purposes of judicial review. 20 C.F.R. §§ 404.981, 416.1481.
II. Standard of Review and Applicable Law
Pursuant to the Act:
[T]he Social Security Administration is authorized to pay disability insurance
benefits and Supplemental Security Income to persons who have a
“disability.” A person qualifies as disabled, and thereby eligible for such
benefits, “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.”
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B)). Under the applicable legal standard, a claimant is disabled if he or she
is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . which has lasted or can be expected to last
for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a); see also
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Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)). The
existence of a qualifying disabling impairment must be demonstrated by “medically
acceptable clinical and laboratory diagnostic” findings.

42 U.S.C. §§ 423(d)(3),

423(d)(5)(A).
“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 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 Court reviews a final decision by the Commissioner by examining the
administrative record and determining “whether the [ALJ’s] factual findings are supported
by substantial evidence in the record and whether the correct legal standards were
applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However, the Court
“may neither reweigh the evidence nor substitute [its] judgment for that of the agency.”
Harper v. Colvin, 528 F. App’x 887, 890 (10th Cir. 2013) (quoting Barnett v. Apfel, 231 F.3d
687, 689 (10th Cir. 2000)). In other words, the Court does not reexamine the issues de
novo. Sisco v. U.S. Dep’t of Health & Human Servs., 10 F. 3d 739, 741 (10th Cir. 1993).
Thus, even when some evidence could support contrary findings, the Court “may not
displace the agency’s choice between two fairly conflicting views,” even if the Court may
have “made a different choice had the matter been before it de novo.” Oldham v. Astrue,
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509 F.3d 1254, 1257-58 (10th Cir. 2007).
A.

Legal Standard
The Social Security Administration uses a five-step framework to determine whether

a claimant meets the necessary conditions to receive Social Security benefits. See 20
C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof at steps one through
four, and if the claimant fails at any of these steps, consideration of any subsequent step
or steps is unnecessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (“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.”). The Commissioner bears the
burden of proof at step five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Step one requires the ALJ to determine whether a claimant is “presently engaged
in substantial gainful activity.” Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d
1140, 1142 (10th Cir. 2004)). If not, the ALJ considers at step two whether a claimant has
“a medically severe impairment or impairments.” Id. “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). Next,
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,” i.e., the
“Listings.” Wall, 561 F.3d at 1052 (quoting Allen, 357 F.3d at 1142). “If a claimant’s
impairments are not equivalent to a listed impairment, the ALJ must consider, at step four,
whether a claimant’s impairments prevent her from performing her past relevant work.”
Wall, 561 F.3d at 1052 (citing Allen, 357 F.3d at 1142). “Even if a claimant is so impaired,
the agency considers, at step five, whether she possesses the sufficient [RFC] to perform
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other work in the national economy.” Id.
B.

Substantial Evidence
An ALJ must consider all evidence and explain why he or she finds a claimant not

disabled. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, the ALJ need
not specifically “reference everything in the administrative record.” Wilson, 602 F.3d at
1148. “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. at 1140 (internal quotation marks omitted). “It
requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007). A decision by the ALJ is not based on substantial evidence
“if it is overwhelmed by other evidence in the record . . . .” Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005). In other words, the Court’s determination of whether the
ALJ has supported his or her ruling with substantial evidence “must be based upon the
record taken as a whole.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).
Further, evidence is not substantial if it “constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In addition, “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
Plaintiff requests judicial review of the ALJ’s decision denying her disability
insurance benefits and supplemental security income. Brief [#14] at 6. Specifically, Plaintiff
argues that: (1) the ALJ erred by failing to find that Plaintiff’s depression and anxiety were
medically determinable severe impairments and failing to assign restrictions related to them
in Plaintiff’s RFC; (2) the ALJ erred when she found that Plaintiff’s medically determinable
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impairment of psychophysiological insomnia was not severe; (3) the ALJ’s finding in the
RFC that Plaintiff could perform light work with no further sitting, standing, and walking
restrictions is not supported by substantial evidence; and (4) the ALJ erred when she found
that Plaintiff was capable of performing her past relevant work. Id. at 2.
A.

The ALJ’s Consideration of Plaintiff’s Alleged Impairments
The Court examines Plaintiff’s first two arguments simultaneously. Plaintiff argues

that her complaints of depression, anxiety, and psychophysiological insomnia are
medically-determinable severe impairments and that the RFC should have included
restrictions based on these impairments.
As noted, the ALJ found that Plaintiff suffers from three severe impairments: (1)
scoliosis, (2) GERD, and (3) asthma. Tr. 27. The ALJ also explicitly found that Plaintiff’s
medically determinable impairment of psychophysiological insomnia was non-severe. Tr.
28. Plaintiff here argues in part that the ALJ erred in determining which impairments were
severe and which were not severe. See Brief [#14] at 20-25.
The Tenth Circuit Court of Appeals has addressed how an ALJ’s error at step two
is often harmless:
The ALJ found at step two the alleged mental impairments (which he
identified as anxiety, depression, and a personality disorder not otherwise
specified) were medically determinable but non-severe. 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. See Carpenter v. Astrue, 537 F.3d 1264,
1266 (10th Cir. 2008) (“[A]ny error here became harmless when the ALJ
reached the proper conclusion that [claimant] could not be denied benefits
conclusively at step two and proceeded to the next step of the evaluation
sequence.”). The real problem occurs later in the analysis, where the ALJ is
required to consider the effect of all medically determinable impairments,
severe or not, in calculating the claimant’s RFC. See 20 C.F.R. § 404.1523
(“If we do find a medically severe combination of impairments, the combined
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impact of the impairments will be considered throughout the disability
determination process.”); id. § 404.1545(a)(2) (“We will consider all of your
medically determinable impairments of which we are aware, including your
medically determinable impairments that are not “severe,” . . . when we
assess your [RFC].”). Thus, we turn to the issue of whether the ALJ properly
evaluated the effect of [the claimant’s] mental impairments in assessing his
RFC.
Groberg v. Astrue, 415 F. App’x 65, 67 (10th Cir. 2011). Similarly, here, the ALJ found that
Plaintiff could not conclusively be denied benefits at step two and proceeded to steps three,
four, and five of his analysis. Thus, to the extent Plaintiff argues that the ALJ erred at step
two, such error is harmless.
The Court disagrees with Plaintiff that the ALJ failed to properly consider her
complaints of depression, anxiety, and psychophysiological insomnia at step four of the
analysis. Brief [#14] at 20-25. The ALJ repeatedly referenced and cited to evidence of
these impairments as she canvassed the record and summarized the effects of Plaintiff’s
asserted impairments in order to determine Plaintiff’s RFC. See, e.g., Tr. 30-32.
According to SSR 96–8p, 1996 WL 374184, at *5 (S.S.A. July 2, 1996):
In assessing RFC, the adjudicator must consider limitations and restrictions
imposed by all of an individual’s impairments, even those that are not
“severe.” While a “not severe” impairment(s) standing alone may not
significantly limit an individual’s ability to do basic work activities, it
may—when considered with limitations or restrictions due to other
impairments—be critical to the outcome of a claim. For example, in
combination with limitations imposed by an individual’s other impairments,
the limitations due to such a “not severe” impairment may prevent an
individual from performing past relevant work or may narrow the range of
other work that the individual may still be able to do.
Plaintiff argues that the ALJ did not appropriately account for Plaintiff’s depression, anxiety,
and psychophysiological insomnia. Brief [#14] at 20-25. In support, Plaintiff provides a list
of

evidence

demonstrating

Plaintiff’s

history

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of

depression,

anxiety,

and

psychophysiological insomnia. See, e.g., id.
Even though the ALJ did not find that Plaintiff’s depression, anxiety, and
psychophysiological insomnia were severe impairments during the relevant period, she
considered these impairments when determining Plaintiff's RFC. For example, the ALJ
stated:
The claimant submitted a Disability Report – Adult, alleging that her ability to
work was limited by asthma, COPD, anxiety, attention deficit hyperactivity
disorder (ADHD), and hip problems. In a later Disability Report – Appeal, the
claimant added that she cannot sleep through the night and has back
spasms. She no longer wants to be around people. . . . She only gets three
to four hours of sleep at night and is tired during the day. . . . She has
problems sleeping, because her breathing issues cause her to feel like she
is choking. . . . The claimant testified that her only mental restriction to
working is ADHD. . . . The claimant came into the hearing appearing to be
very “bouncy” and cheerful, but appeared bored at times. . . . The claimant
reported that her medications help her sleep. . . . In January 2011, the
claimant expressed disappointment that her depression and anxiety were not
severe enough to qualify for disability. . . . She filled out a Function Report
– Adult, with the only restrictions noted being difficulty sleeping. . . . [On]
September 20, 2011 . . . [Plaintiff] appeared to be moderately depressed [at
a consultative examination], with an [sic] decreased range and intensity of
affect, but no evidence of mood [liability]. . . . The consultative psychologist
opined that the claimant is not impaired in all basic work-related activities
solely based on her mood and anxiety. . . .
Tr. 30-32 (internal citations omitted).
The ALJ clearly complied with the requirement of SSR 96–8p that she consider
Plaintiff’s non-severe impairments at step four of the analysis. Beyond this, Plaintiff’s
argument “is merely an invitation to the [C]ourt to reweigh the evidence and substitute its
judgment for that of the ALJ.” Slaughter v. Colvin, No. 13-2203-JWL, 2014 WL 3557633,
at *6 (D. Kan. July 18, 2014). However, it is not the Court’s role to reweigh the evidence.
Perez–Leeds v. Colvin, 596 F. App’x 714, 716 (10th Cir. 2014). It is clear from a review of
the ALJ’s decision that she thoroughly explained why she chose not to put parameters on
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Plaintiff’s ability to work based on her alleged impairments of depression, anxiety, and
psychophysiological insomnia . See Tr. 30-32; Clifton, 79 F.3d at 1009. As noted above,
the ALJ need not specifically “reference everything in the administrative record.” Wilson,
602 F.3d at 1148. Here, the ALJ’s analysis of the record demonstrates that substantial
evidence supports her conclusion. See id. at 1140. The evidence analyzed and cited by
the ALJ is not overwhelmed by other evidence in the record, including the evidence cited
by Plaintiff. See, e.g., Brief [#14] at 20-25; Grogan, 399 F.3d at 1261-62.
Accordingly, the Court finds that the ALJ did not commit reversible error by failing
to impose RFC limitations based on Plaintiff’s alleged impairments of depression, anxiety,
and psychophysiological insomnia.
B.

The Medical Opinion of Dr. Mitchell
Plaintiff next argues that the ALJ’s finding in the RFC that Plaintiff could perform light

work with no further sitting, standing, and walking restrictions is not supported by
substantial evidence.

Specifically, she argues that the ALJ failed to consider the

consultative evaluation performed by Linda Mitchell, M.D. (“Dr. Mitchell”) on October 12,
2010. Brief [#14] at 26-27; Tr. 326-30. Dr. Mitchell opined in relevant part that “[t]he
number of hours the claimant should be able to stand or walk during a normal 8-hour
workday is about 4 hours.” Tr. 330. Plaintiff asserts that “Dr. Mitchell’s evaluation was
performed . . . only a few months before the alleged onset date, and constituted the only
physical consultative evaluation in the record.” Id. at 27. Therefore, Plaintiff argues, “the
ALJ could not simply ignore it and make RFC findings that had no evidence at all to support
them.” Id.
The ALJ found that Plaintiff retained the ability to perform light work. Tr. 29.
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However, “light work involves standing or walking six hours in an eight-hour work day.”
Diaz v. Chater, 62 F.3d 1428, *2 (Table) (10th Cir. Aug. 3, 1995) (citing SSR 83–12). The
ALJ did not place any further restrictions on Plaintiff in connection with walking or standing.
Tr. 29.

Thus, it appears that Dr. Mitchell’s opinion is that Plaintiff requires greater

restrictions than those imposed by the ALJ. See Tr. 29, 330.
An ALJ must provide explanation for rejecting medical evidence. Drapeau v.
Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001). This is not a case of harmless error
where the medical opinion does not contradict the ALJ’s RFC finding. See Akers v. Colvin,
556 F. App’x 754, 758 (10th Cir. 2014) (citing Mays v. Colvin, 739 F.3d 569, 578-79 (10th
Cir. 2014) (“[A]n ALJ’s failure to weigh a medical opinion involves harmless error if there
is no inconsistency between the opinion and the ALJ’s assessment of residual functional
capacity.”); see also Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004) (“When the
ALJ does not need to reject or weigh evidence unfavorably in order to determine a
claimant’s RFC, the need for express analysis is weakened.”). Dr. Mitchell’s opinion is that
Plaintiff’s impairments create greater restrictions than those imposed by the ALJ. Tr. 29,
330. Thus, the ALJ was required to discuss this medical opinion and state how heavily, if
at all, she weighed it.
Defendant argues that the ALJ need not have examined a medical opinion rendered
while Plaintiff was previously seeking disability benefits, especially because Plaintiff was
denied benefits at that time. Response [#17] at 8. However, the ALJ is obligated to
examine all medical opinions in the record. See 20 C.F.R. § 404.1527(b) (stating that the
Commissioner “will always consider the medical opinions in your case record . . . “).
Defendant improperly frames the issue as Plaintiff asking the Court “to intrude upon that
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previously adjudicated period.” Response [#17] at 8. The issue at the time of the previous
adjudication was whether Plaintiff’s combined impairments at that time entitled her to
benefits. The issue now is whether Plaintiff’s present combined impairments entitle her to
benefits, and those impairments may not be fully identical to the impairments previously
asserted. The ALJ must therefore state why this medical opinion is or is not entitled to
weight because it contradicts in part the stated RFC. See Drapeau, 255 F.3d at 1214;
Mays, 739 F.3d at 578-79. To the extent Defendant asserts reasons as to why Dr.
Mitchell’s opinion is not entitled to weight, such reasons are impermissible post hoc
rationalizations not explicitly or implicitly stated by the ALJ. See Robinson v. Barnhart, 366
F.3d 1078, 1084-85 (10th Cir. 2004) (stating that judicial review is limited to the reasons
stated in the ALJ’s decision); Allen v. Barnhart, 537 F.3d 1264, 1267 (10th Cir. 2008)
(stating that a magistrate judge’s post hoc rationale is improper because it usurps the
agency’s function of weighing and balancing the evidence in the first instance).
While the discrepancy between whether Plaintiff is limited to four hours or six hours
of walking and standing in an eight-hour work day may seem minor, it is significant in the
outcome of this claim. If the ALJ weighs and accepts Dr. Mitchell’s assessment in whole
or in part, then the four-hour standing/walking limitation may preclude “light work” jobs, and
Plaintiff would presumably be limited to sedentary work, which in turn would affect the ALJ’s
determinations regarding whether there are jobs which exist in significant numbers in the
national economy which Plaintiff can perform given the other limitations in her RFC. See
20 C.F.R. §§ 404.1567(b), 416 967(b); SSR 83–12. Even though the Court does not insist
on “technical perfection” in an ALJ’s Decision, the Court must be able to follow the ALJ’s
reasoning. See Keyes–Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). Here,
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the Court is unable to do so, and therefore this case must be remanded for further
proceedings.4
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not
disabled is REVERSED and this matter is REMANDED for further proceedings consistent
with this opinion.5
IT IS FURTHER ORDERED that Plaintiff is AWARDED her costs, to be taxed by the
Clerk of the Court pursuant to Fed. R. Civ. P. 54(d)(1), D.C.COLO.LCivR 54.1, and 28
U.S.C. § 2412(a)(1). See Knuutila v. Colvin, __ F. Supp. 3d __, __, 2015 WL 5116723, at
*5 (D. Colo. Aug. 31, 2015).

Dated: March 21, 2016

4

The Court does not reach Plaintiff’s remaining arguments, as they may be impacted by
the ALJ’s review of the issues on remand.
5

The Court finds that this case does not present a proper occasion on which to exercise
its discretion and direct the award of benefits. See Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th
Cir. 1993). By reversing the ALJ’s decision, the Court does not find or imply that Plaintiff is or
should be found disabled. See, e.g., Knuutila v. Colvin, __ F. Supp. 3d __, __, 2015 WL 5116723,
at *5 n.5 (D. Colo. Aug. 31, 2015).

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