Wilkins v. Colvin et al
ORDER REVERSING DISABILITY DECISION AND REMANDING TO COMMISSIONER: the conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is reversed. This case is remanded to the ALJ. By Judge Robert E. Blackburn on 2/1/17. (kfinn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15-cv-02347-REB
NANCY A. BERRYHILL,1 Acting Commissioner of Social Security,
ORDER REVERSING DISABILITY
DECISION AND REMANDING TO COMMISSIONER
The matter before me is plaintiff’s Complaint [#1],2 filed October 22, 2015,
seeking review of the Commissioner’s decision denying plaintiff’s claim for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. I
have jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g).
The matter has been fully briefed, obviating the need for oral argument. I reverse and
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he is disabled as a result of chronic abdominal pain of
unknown etiology, degenerative changes of the lumbar spine statue post cervical fusion,
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 21, 2017,
and thus her name is substituted for that of Carolyn Colvin as the defendant in this suit. FED. R. CIV. P.
25(d)(1). By virtue of the last sentence of 42 U.S.C. § 405(g), no further action need be taken to continue
“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.
anxiety, and a cognitive disorder. After his application for disability insurance benefits
was denied, plaintiff requested a hearing before an administrative law judge. This
hearing was held on May 9, 2015. At the time of the hearing, plaintiff was 54 years old.
He has a college degree with additional post-graduate work and past relevant work
experience as a senior systems engineer. He has not engaged in substantial gainful
activity since September 29, 2011, his alleged date of onset.
The ALJ found plaintiff was not disabled and therefore not entitled to disability
insurance benefits. Although the evidence established plaintiff suffered from severe
physical impairments, the judge concluded the severity of those impairments did not
meet or equal any impairment listed in the social security regulations. Plaintiff’s anxiety
was found not to constitute a severe impairment, and his cognitive disorder was
determined not to constitute medically determinable impairment at all. The ALJ found
plaintiff had the residual functional capacity to perform a full range of light work. As
those restrictions were not inconsistent with plaintiff’s past relevant work, the ALJ found
him not disabled at step four of the sequential evaluation. Plaintiff appealed this
decision to the Appeals Council. The Council affirmed, refusing to consider new
evidence plaintiff submitted on appeal on the ground that it related to a period of time
outside that considered by the ALJ. Plaintiff then filed this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if his
physical and/or mental impairments preclude him from performing both him previous
work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a quinquepartite sequential evaluation
process for determining whether a claimant is disabled:
The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.
The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.
The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.
If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.
If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
20 C.F.R. § 404.1520(b)-(f). See also Williams v. Bowen 844 F.2d 748, 750-52 (10th
Cir. 1988). The claimant has the initial burden of establishing a disability in the first four
steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294
n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that
the claimant is capable of performing work in the national economy. Id. A finding that
the claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. Casias v. Secretary of Health & Human Services, 933
F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
III. LEGAL ANALYSIS
Plaintiff advances multiple allegations of error in this appeal. I find his arguments
regarding the ALJ’s failure to obtain a medical opinion on the issue of equivalence
dispositive. Nevertheless, for the reasons set forth herein, I remand with instructions to
reconsider other aspects of the disability decision as well.
Plaintiff suffers from chronic abdominal pain. Although he has consulted with
specialists in a wide range of fields and tried numerous and varied treatment modalities
in an attempt to address this pain, its causes remains mysterious, and treatments have
been only minimally efficacious. In addressing at step three of the sequential evaluation
whether this impairment met or medically equaled one of the impairments set forth in
the Commissioner’s Listing of Impairments (the “listings”),3 see 20 C.F.R. Pt. 404,
Subpt. P, app. 1, the ALJ noted there was no a specific listing addressing chronic
abdominal pain syndrome, but stated it did not satisfy the requirements of any other
closely analogous listed impairment. (Tr. 329.) Because that determination is not
supported by substantial evidence, remand is required.
When an alleged impairment is included in the listings, the ALJ must make a
determination as to medical equivalence. See 20 C.F.R. § 404.1526(a) (impairment is
equivalent to listed impairment “if the medical findings are at least equal in severity” to
the medical criteria for “the listed impairment most like [the claimant's] impairment”).
See also Sullivan v. Zebley, 493 U.S. 521, 531, 110 S.Ct. 885, 891, 107 L.Ed.2d 967
The listings set forth medical criteria pursuant to which impairments of various bodily systems
will be considered presumptively disabling. 20 C.F.R. § 404.1520(d). See Sullivan v. Zebley, 493 U.S.
521, 532, 534-35, 110 S.Ct. 885, 893, 107 L.Ed.2d 967 (1990).
(1990). “While the ALJ is responsible for deciding the ultimate legal question of whether
a listing is met or equaled, the ALJ must receive state agency doctors' judgments on the
issue of medical equivalence into the record as expert opinion evidence.” Carbajal v.
Astrue, 2011 WL 2600984 at *2 (D. Colo. June 29, 2011) (citation and internal
quotation marks omitted). See also Social Security Ruling 96-6p, 1996 WL 374180 at
*3 (SSA July 2, 1996). The requirement that medical equivalence be established by the
opinion of a medical expert is satisfied, inter alia, by the signature of a State agency
medical or psychological consultant on at least one of the forms typically used by the
Commissioner to assess disability at the initial stages of the administrative process.
See Social Security Ruling 96-6p, 1996 WL 374180 at *3. Because there is no such
opinion in the administrative record in this case, the ALJ’s opinion as to equivalence
cannot withstand scrutiny.
The Commissioner argues this error was harmless because plaintiff fails to raise
a colorable dispute as to whether the record warrants a finding of equivalence. I cannot
agree. For one thing, it appears to misstate the nature of the relative burdens as
between the parties. “Although the Commissioner is correct that the burden is on
plaintiff to demonstrate her impairment meets or equals a listing at step three, [Social
Security Ruling] 96-6p requires the ALJ to develop the record by receiving a medical
opinion on the issue.” Carbajal, 2011 WL 2600984 at *3.4 See also Social Security
Ruling 96-6p, 1996 WL 374180 at *3 (SSA July 2, 1996) (“[L]ongstanding policy
The Commissioner also argues the error is harmless because the opinion of the consultative
examiner otherwise supports the ALJ’s disability determination. See Carbajal, 2011 WL 2600985 at *3. I
address whether this opinion was entitled to the weight afforded it below.
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.”) (emphases added).
Moreover, the error in failing to obtain such an opinion in this case is
compounded by the fact that the ALJ’s reasoning on equivalence is wholly opaque, and
nothing in his analysis at step four of the sequential evaluation provides further
illumination. It therefore is not possible for the court – with no more medical expertise
than either plaintiff or the ALJ – to determine whether the same result would have been
reached had the ALJ obtained the required opinion. There certainly may be cases in
which the medical evidence in support of a claimant’s alleged impairments is so scant or
tenuous, or the ALJ’s discussion (either at step three or elsewhere in this disability
decision) so thorough, that the failure to obtain a medical opinion as to equivalence
might indeed to considered harmless. See Fischer-Ross v. Barnhart, 431 F.3d 729,
733-34 (10th Cir. 2005) (harmless error analysis appropriate “where, based on material
the ALJ did at least consider (just not properly), we could confidently say that no
reasonable administrative factfinder, following the correct analysis, could have resolved
the factual matter in any other way”) (citation and internal quotation marks omitted).
This is not such a case. Remand therefore is required.
When the court has found an issue dispositive on the question of remand, it
generally will not consider other issues that may be impacted by a subsequent
administrative decision. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir.
2003). Here, by contrast, a properly substantiated finding of non-equivalence would
implicate plaintiff’s remaining arguments concerning error at subsequent steps of the
sequential evaluation. Because some of these allegations of error also are meritorious,
the court finds it both efficient and proper to address them now.
The court finds no reversible error in the ALJ’s well-supported conclusion at
step two of the sequential evaluation that plaintiff’s anxiety did not constitute a severe
mental impairment, especially where the ALJ found other impairments to be severe and
proceeded to subsequent steps of the sequential evaluation.5 See Dray v. Astrue, 353
Fed. Appx. 147, 149 (10th Cir. Nov. 17, 2009); Ghini v. Colvin, 82 F.Supp.3d 1224,
1231 (D. Colo. 2015). Nor would the court be troubled by the ALJ’s apparent failure to
consider the impact of this non-severe impairment in combination with plaintiff’s
acknowledged severe impairments in assessing his residual functional capacity at step
four, Social Security Ruling 96-8p, 1996 WL 374184 at *5 (July 2, 1996); Langley v.
Banhart, 373 F.3d 1116, 1123-24 (10th Cir. 2004), if he had he made any effort to
develop the testimony of the vocational expert as to the mental demands of plaintiff’s
past relevant work. As it was, however, the entirety of the ALJ’s questioning of the
vocational expert was limited to having her recite the Dictionary of Occupational Titles
The ALJ’s concomitant conclusion that plaintiff’s alleged cognitive impairment did not constitute
a medically determinable impairment at all also is supported by substantial evidence. (Tr. 327.) No
doctor has ever diagnosed plaintiff with a cognitive disorder, and reports of his visits for psychiatric care
reveal he had intact short- and long-term memory, logical and linear thought process, appropriate
attention span and concentration, and good insight, judgment, and fund of knowledge. (Tr. 1209-1210,
1233.) Plaintiff’s own complaints of cognitive symptoms are insufficient to establish a medically
determinable impairment. 20 C.F.R. § 404.1508. Moreover, because this condition properly was found
not to constitute a medically determinable impairment, the ALJ was precluded from considering its effect
in combination with any other impairment, severe or non-severe, at step four. Social Security
Ruling 96-8p, 1996 WL 374184 at *2 (SSA July 2, 1996); Gibbons v. Barnhart, 85 Fed. Appx. 88, 91
(10th Cir. Dec. 18, 2003).
classification of plaintiff’s job. (Tr. 363.) Given that plaintiff’s past relevant work was
skilled,6 the ALJ should have made some effort to develop the record as to the mental
demands of that work and their compatibility vel non with plaintiff’s non-severe (but not
nonexistent) mental impairment. The ALJ’s consideration and resolution of those issues
should be made manifest on remand.
Plaintiff also challenges the ALJ’s treatment of the opinions of his primary care
physician, Dr. Sarah Chess. In September 2011 (Tr. 833-823) and again in February
2012 (Tr. 472-473), Dr. Chess completed paperwork on behalf of plaintiff in which she
noted he suffered from idiopathic abdominal wall pain of unknown etiology which
rendered his functionality “very limited,” leaving him unable to “walk, bend, [or] drive
without significant pain” (Tr. 473). The ALJ afforded minimal weight to these opinions,
however, characterizing them as “vague” and noting they were not linked to any
supporting objective medical evidence and appeared to be based largely on plaintiff’s
own subjective complaints. (Tr. 333.)7
As noted by the vocational expert at the hearing, plaintiff’s past relevant work had an Specific
Vocational Preparation (“SVP”) of 7. See Dikeman v. Halter, 245 F.3d 1182, 1186 (10th Cir. 2001) (“SVP
is defined as ‘the amount of lapsed time required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in a specific job-worker situation.’“)
(citation omitted). Under the Commissioner’s regulations, “[s]killed work corresponds to an SVP of 5-9 in
the DOT.” Social Security Ruling 00-4p, 2000 WL 1898704 at * 3 (SSA Dec. 4, 2000). See also
Dictionary of Occupational Titles, Components of the Definition Trainer, App. C, § II (SVP of 7
describes a job that requires over two years and up to and including four years to learn) (available at
http://www.occupationalinfo.org/ appendxc_1.html#II) (last accessed January 30, 2017).
After the hearing, plaintiff sought a more detailed opinion from Dr. Chess in an attempt to
address the ALJ’s conclusion that her earlier opinions were too vague. (See Tr. 287-289.) The Appeals
Council refused to consider this evidence, finding that it applied only to the period of time after the date of
the ALJ’s decision. (Tr. 2.) See 20 C.F.R. § 404.970(a)(5); Threet v. Barnhart, 353 F.3d 1185, 1191
(10th Cir. 2003). Although the opinion was signed after the date of the ALJ’s decision, Dr. Chess clearly
stated therein that plaintiff’s “first date of disability was 9/29/11” (Tr. 287), plainly suggesting that her
opinion also covered the period of time considered in the disability decision. Because the Appeals
Council did not suggest this evidence was not considered because plaintiff failed to show good cause for
not including it in the record previously or, alternatively, because there was not a reasonable probability
The opinion of a treating source is generally entitled to controlling weight so long
as it is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with other substantial evidence in the case record.”
20 C.F.R. § 404.1527(d)(2); see also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th
Cir. 2003). Good cause may be found where the treating source’s opinion is brief,
conclusory, or unsupported by medical evidence. Frey v. Bowen, 816 F.2d 508, 513
(10th Cir. 1987). Even if a treating source opinion is not given controlling weight, it is still
entitled to deference “and must be weighed using all of the factors provided in 20 C.F.R.
404.1527 and 416.927.” Social Security Ruling 96-2p, 1996 WL 374188 at *4 (SSA
July 2, 1996). See also Langley, 373 F.3d at 1119.8 In all events, a treating source
opinion may not be rejected absent good cause for specific, legitimate reasons clearly
articulated in the hearing decision. Watkins, 350 F.3d at 1301; Goatcher v. United
States Department of Health & Human Services, 52 F.3d 288, 290 (10th Cir. 1995);
Frey, 816 F.2d at 513.
Plaintiff first argues that if the ALJ indeed found Dr. Chess’s opinion vague or
unsupported, he had a duty to recontact her for further clarification. See 20 C.F.R. §
404.1520b(c)(1). The duty to recontact arises when the evidence the ALJ receives from
the treating physician is inadequate to allow him to determine whether the claimant is
disabled, not simply because he rejects that opinion. White v. Barnhart, 287 F.3d 903,
that it would have changed the outcome of the ALJ’s decision, see 20 C.F.R. § 404.970(a)(5), its
determination was in error.
These factors include: the physician’s length of treatment of the claimant; the physician’s
frequency of examination; the nature and extent of the treatment relationship; the support of the
physician’s opinion afforded by the medical evidence of record; the consistency of the opinion with the
record as a whole; and the specialization of the treating physician. 20 C.F.R. § 404.1527(c)(2).
908 (10th Cir. 2001). Contrary to the Commissioner’s argument, however, the ALJ here
did not reject Dr. Chess’s opinions because they were unsupported, but rather because
she allegedly failed to provide a more “detailed explanation of the objective evidence”
supporting them. (Tr. 333.) Given that rationale – that the opinion, but necessarily the
record, was inadequate – and the extensive record evidence of Dr. Chess’s care and
treatment of plaintiff during the duration of his impairments, the ALJ should have
requested the more detailed opinion he felt he lacked.
Moreover, the observation that Dr. Chess’s opinions were based largely on
plaintiff’s subjective complaints does not constitute a valid reason for rejecting those
opinions in the context of this case. While no clear cause has yet been identified as the
source of plaintiff’s pain,9 the Commissioner herself recognizes that pain may outstrip
the objective medical evidence in a given case. See 20 C.F.R. § 404.1529; Social
Security Ruling 96-7p, 1996 WL 374186 at *4-*5 (SSA July 2, 1996). See also
Musgrave v. Sullivan, 966 F.2d 1371, 1375-76 (10th Cir. 1992) (citing Luna v. Bowen,
834 F.2d 161, 163-64 (10th Cir. 1987)) (setting forth tripartite test for evaluating
subjective reports of pain).10 Even the most cursory review of Dr. Chess’s extensive
treatment notes shows plaintiff has complained of intractable pain consistently for years
and has engaged in extensive and varied (yet largely unsuccessful) efforts to identify
More recently, at least one doctor has suggested that plaintiff’s pain might be myofascial (Tr.
1161), and Dr. Chess has suspected a neuropathic cause (Tr. 1193).
Of course, this recognition does not prohibit the ALJ from considering the lack of objective
medical findings in assessing plaintiff’s credibility. “Instead, Luna stands for the more limited proposition
that ‘a lack of objective corroboration of the pain's severity cannot justify disregarding those allegations.’”
Zagorianakos v. Colvin, 81 F.Supp.3d 1036, 1044 (D. Colo. 2015) (quoting Luna, 834 F.2d at 165)
(emphasis in original). Because the ALJ – despite characterizing plaintiff’s subjective complaints as
“sincere” (Tr. 330) – in fact does appear to have disregarded those complaints entirely, Luna error exists.
and address the source of his pain.
In light of this history, the ALJ’s decision to place more weight on the opinion of
the consultative examiner, Dr. Marshall Meier, which suggested plaintiff was
malingering, seems especially suspect. (See Tr. 332, 1031-1032.)11 While I cannot find
plaintiff was denied due process by the ALJ’s alleged failure to fully allow plaintiff to
rebut Dr. Meier’s observations at the hearing,12 I do concur with him that the ALJ’s
assessment of his credibility appears to have been unduly infected by Dr. Meier’s
alleged observations. No treating or other examining source has ever opined that
plaintiff is malingering or exaggerating his symptoms, and his history of extensive efforts
to identify the source of his pain and treat his symptoms might be considered to suggest
otherwise. Thus, although credibility determinations are generally the exclusive
province of the ALJ, see White, 287 F.3d at 909, that determination should be made
only after affording plaintiff an opportunity to present his version of what occurred during
his visit to Dr. Meier.
Although remand thus plainly is required, I find this case does not represent an
Dr. Meier claimed that while plaintiff “did appear in significant distress throughout the exam,”
afterwards he observed plaintiff in the parking lot walking to his car. According to Dr. Meier, plaintiff’s gait
“sped up,” he “had less difficulty moving his arms,” and he walked “a significant distance, approximately
200 yards, with much less distress than he appeared to have in the exam room.” (Tr. 1031.) In a
statement to the Appeals Council, plaintiff challenged these statements, averring he had parked no more
than 50 yards from the building and had been required to stop several times on his way to the car due to
pain. He further questioned Dr. Meier’s ability to recognize him from behind at a distance and with what
plaintiff characterized as an obstructed view. (Tr. 570, 573, 575.)
Claimants are entitled to procedural due process in social security hearings. Yount v.
Barnhart, 416 F.3d 1233, 1235 (10th Cir. 2005). Nevertheless, even if the ALJ’s statements at the
hearing could be construed to suggest he found plaintiff’s allegations credible and Dr. Meier’s opinions
not credible, those statements do not constitute a final administrative decision reviewable by this court.
42 U.S.C. § 405(g); 20 C.F.R. § 404.900(a)(5). See also Conkle v. Astrue, 487 Fed. Appx. 461, 462
(10th Cir. Oct. 12, 2012); Westbrook v. Massanari, 26 Fed. Appx. 897, 903 (10th Cir. Feb. 8, 2002).
appropriate circumstance for the exercise of my discretion to direct an award benefits.
See Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th Cir. 1993).13
THEREFORE IT IS ORDERED as follows:
1. That the conclusion of the Commissioner through the Administrative Law
Judge that plaintiff was not disabled is reversed;
2. That this case is remanded to the ALJ, who is directed to
a. Obtain the opinion of a medical expert on medical equivalence with
respect to plaintiff’s physical impairments;
b. Reconsider her determination at step three of the sequential
c. Recontact Dr. Chess and any other treating or examining physician for
further clarification of her findings, seek the testimony of medical experts,
order further consultative examinations, or otherwise further develop the
record as he deems necessary, consistent with this opinion;
d. Reassess the various medical source opinions of record, citing
legitimate reasons specifically tied to the evidence of record for his
determinations of the weight to be given to each;
e. Reevaluate the determination of plaintiff’s residual functional capacity,
fully articulating the reasons for his determination in that regard, including
his conclusions as to plaintiff’s credibility, as well as considering explicitly
By this decision, I do not find or imply that plaintiff is or should be found to be disabled.
the functional impact of all plaintiff’s impairments, both severe and nonsevere, in combination;
f. Further develop the record as to the mental demands of plaintiff’s past
g. Reassess his determination at step four of the sequential evaluation
whether plaintiff can perform his past relevant work, proceeding to step
five, if necessary; and
h. Reassess the disability determination; and
3. That plaintiff is awarded his costs, to be taxed by the clerk of the court
pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1 and 28 U.S.C.
Dated February 1, 2017, at Denver, Colorado.
BY THE COURT:
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