Piper v. Colvin et al
ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE, by Judge William J. Martinez on 12/21/2016. (dhans, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-0382-WJM
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE
This is a Social Security Benefits appeal brought under 42 U.S.C. § 405(g).
Plaintiff Lydia Piper (“Piper”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”), denying her application for disability
insurance benefits. The denial was affirmed by an administrative law judge (“ALJ”),
who ruled that Piper 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 Piper's application
for disability insurance benefits is VACATED and this case is REMANDED for further
proceedings consistent with this order.
Piper was born on February 12, 1957, and was 55 years old on the alleged onset
date of May 17, 2012. (Administrative Record (“R.”) (ECF No. 11) at 71.) Piper
graduated from high school and has, in the last nineteen years, worked as a billing
manager and officer coordinator. (R. at 177.)
Piper applied for disability insurance benefits on December 13, 2012, with a
protective filing date of December 12, 2012. (R. at 146, 184.) Piper claimed that she is
disabled due to the following conditions: severe back injuries (resulting in surgery and
spinal injections), depression, leg numbness and sharp pain, low back pain, ruptured
discs, and nerve damage. (R. at 175.) Her application was denied on June 12, 2013.
(R. at 86.) Piper’s reported pain and functional limitations were further compromised by
an “additional back injury sustained in a motor vehicle accident on March 22, 2014.” (R.
at 29.) Piper requested and received a hearing in front of an ALJ, Patricia Hartman.
(R. at 89.) On August 6, 2014, the ALJ issued a written decision in accordance with the
Commissioner's five-step sequential evaluation process. (R. at 20.) 1
At step one, the ALJ found that Piper had not engaged in substantial gainful
activity since May 17, 2012. (R. at 26.)
At step two, the ALJ found that Piper suffered from “the following severe
impairments: hypertension and status-post L3-4 laminectomy and microdiscectomy with
recurrent herniations at L3-4 and L4-5.” (Id.) The ALJ did not find that any other
claimed condition was a severe impairment. (R. at 27.)
At step three, the ALJ found that Piper’s impairments, while severe, did not meet
The five-step process requires the ALJ to 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
or medically equal any of the impairments listed in the Social Security regulations. (R.
Before proceeding to step four, the ALJ assessed Piper’s residual functional
capacity (“RFC”). The ALJ concluded that Piper has the RFC “to perf orm light work,
except that she needs to be able to sit hourly for 5-10 minutes while remaining on task.”
(R. at 28.) Then, at step four, the ALJ concluded Piper could continue to perf orm her
past relevant work as an “office coordinator.” (R. at 32.)
The ALJ’s conclusion at step four was, by itself, sufficient to deny Piper’s
disability application. See 20 C.F.R. § 404.1520(a)(4). The ALJ nonetheless
proceeded to step five and alternatively found that other jobs exist in the national
economy that Piper can perform. (R. at 33.)
Accordingly, the ALJ found that Piper was not entitled to disability insurance
benefits. (Id.) Piper appealed to the Social Security Appeals Council (R. at 13), which
denied review (R. at 1). Piper then filed this action seeking review of the ALJ’s August
6, 2014 decision. (ECF No. 1.)
II. STANDARD OF REVIEW
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
preponderance.” Lax, 489 F.3d at 1084. 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 reviewing 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).
Piper argues that the ALJ erred by (1) not calling a medical expert to provide an
updated opinion on medical equivalence; (2) improperly basing her durational
requirement finding on her own lay opinion, rather than on the medical evidence; (3)
discounting the opinion evidence of Piper’s examining occupational therapist; (4) not
properly discussing the medical opinion evidence of Piper’s treating physician; and (5)
not basing her credibility finding in substantial evidence.
Updated Opinion on Medical Equivalence
Piper argues that the ALJ failed to consult a state agency medical expert to
opine on the issue of medical equivalence of her physical impairments to the listings
pursuant to SSR 96-6p. (ECF No. 14 at 15.)
SSR 96-6p provides that an ALJ “must obtain an updated medical opinion from a
medical expert . . . . when additional medical evidence is received that in the opinion of
the administrative law judge or the Appeals Council may change the State agency
medical or psychological consultant’s finding that the impairment(s) is not equivalent in
severity to any impairment in the Listing of Impairments.” SSR 96-6p, 61 Fed. Reg.
34468 (July 2, 1996).
The ALJ’s medical equivalence determination was based in part on the state
agency’s consultative physician’s report. (R. at 28.) In the May 7, 2013 report, Dr.
Timothy Moser noted that Piper could lift and carry twenty pounds occasionally and ten
pounds frequently, stand and walk six hours in an eight-hour day, and sit without
restriction. (R. at 334.) The ALJ also considered evidence in the record relating to
Piper’s subsequent involvement in a motor vehicle accident in March 2014. (R. at 28.)
To account for the intervening motor vehicle accident, the ALJ found that “some
additional restrictions are warranted in terms of her needing to sit hourly for five to ten
minutes while remaining on task because of her back condition.” (R. at 31.)
Piper contends that the need for an updated medical opinion was triggered when
the ALJ found “that the State agency doctor’s opinion was no longer supported.” (ECF
No. 14 at 19.) Specifically, Piper’s argument is based on the “ALJ’s own finding . . . .
that the evidence in the file at the time of her decision required a revision in the State
agency doctor’s opinion.” (ECF No. 18 at 4.) The Commissioner responds that the
“ALJ explained why the evidence does not show that [Piper]’s impairments met or
medically equaled the Listings.” (ECF No. 15 at 9.) The Commissioner contends that
the ALJ gave Dr. Moser’s “opinion ‘great weight’ because it was ‘supported by the
objective findings’ and ‘consistent with the record as a whole’, but she imposed
additional restrictions because she was giving [Piper] ‘the benefit of the doubt.’” (Id. at
10 (quoting R. at 31)) (emphasis in original.)
The ALJ “is responsible for deciding the ultimate legal question whether a listing
is met or equaled.” SSR 96-6p, 61 Fed. Reg. 34468 (July 2, 1996). Here, the ALJ
found that “no medical expert has opined that the claimant’s spinal impairment meets or
equals a medical listing.” (R. at 28.) This statement was made after the ALJ
considered all of the available evidence, including new evidence stemming from the
March 2014 motor vehicle accident. (Id.) SSR 96-6p does not specify whether and
where the ALJ must express, in her opinion, that new evidence may have changed the
state agency consultant’s medical equivalence opinion. See SSR 96-6p, 61 Fed. Reg.
34466–34468 (July 2, 1996). In fact, the ALJ here never expressed an opinion that she
thought the evidence demanded an updated opinion as to medical equivalence. (See
R. at 27–28.) Moreover, just because the ALJ found that additional restrictions were
warranted beyond what the state agency consultant found, does not mean, in her
opinion, that the state agency consultant’s determination as to medical equivalence has
changed. Accordingly, the Court finds no reversible error as to this issue.
Duration of Symptoms
Piper argues that the “ALJ impermissibly substituted her own lay judgment for
that of a medical expert when she assessed the likely duration of the exacerbation of
[her] symptoms after the March 2014 motor vehicle accident.” (ECF No. 18 at 4.)
Specifically, “[h]er assumption that this problem would improve before March 2015 (12
months after the intervening motor vehicle accident) was based solely on her own lay
assessment of the evidence.” (ECF No. 14 at 20.) Further, Piper contends that the
ALJ’s lay opinion is not substantial evidence, and may not be substituted for a medical
expert’s opinion. (ECF No. 18 at 4–5 (citing Sisco v. United States Dep’t Of Health &
Human Servs., 10 F.3d 739, 744 (10th Cir. 1993)).)
The ALJ concluded that “the available evidence to date does not support a
finding that the claimant’s increase in physical (and mental) symptoms since that time
are expected to cause greater functional restrictions than set forth above for the
requisite duration of 12 continuous months.” (R. at 30.) The Court is concerned that
this may be lay opinion as it is unclear what “available evidence to date” the ALJ is
relying upon in making her determination as to the duration of Piper’s exacerbated
symptoms. If this is in fact the ALJ’s lay opinion, then in the Court’s view the ALJ’s
finding is not supported by substantial evidence in the record and is legally flawed,
because an ALJ cannot substitute her lay opinion for that of a medical professional.
See Lax, 489 F.3d at 1089; see also Sisco, 10 F.3d at 744. Accordingly, the Court will
vacate and remand for the ALJ to more fully address the ambiguity in the record on this
Examining Occupational Therapist Opinion
Piper asserts that the ALJ improperly discounted the non-medical source opinion
of Ms. Kristine Couch. Ms. Couch, an occupational therapist, reviewed Piper’s medical
history and assessed her functional capacity in person over a two-day period following
the March 2014 motor vehicle accident. (R. at 722.) Ms. Couch found that Piper was
“limited to lifting no more than five pounds, could sit for only twenty-one minutes before
needing to change position, and could stand for fourteen minutes before needing to
change positions.” (ECF No. 14 at 21.) The ALJ found that the “restrictions given in
this report, which essentially limit the claimant to significantly less than sedentary level
work, appear based on the claimant’s subjective allegations.” (R. at 31–32.)
Piper argues that “per SSR 06-03p, her opinion on f unctioning is entitled to
weight, and the ALJ’s evaluation of her opinion must include consideration of the
factors cited in 20 C.F.R. § 404.1527(d).” (ECF No. 14 at 23.) As to the f actors, the
Commissioner responds that “there is a difference between what an ALJ must consider
and what she must explain.” (ECF No. 15 at 16 (citing Mounts v. Astrue, 479 F. App’x
860, 866 (10th Cir. 2012)).)
In Mounts, the Tenth Circuit noted that “we have held that it is not necessary for
the ALJ to address each factor expressly or at length . . . . What matters is that the
decision is ‘sufficiently specific to make clear to any subsequent reviewer the weight the
adjudicator gave to the . . . opinion and the reasons f or that weight.’” Mounts, 479 F.
App’x at 866 (citing Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2012)).
The ALJ provided multiple reasons for why she gave Ms. Couch’s opinion “little
weight.” (R. at 32.) However, contrary to Piper’s argument, the ALJ need not have
considered all of the factors cited in 20 C.F.R. § 404.1527(d). Rather, the ALJ’s
decision to discount Ms. Couch’s opinion because it appeared based on Piper’s
subjective allegations was sufficient in of itself. See Rivera v. Colvin, 629 F. App’x 842,
845 (10th Cir. 2015) (finding it appropriate for the ALJ to consider where the physician
got his information and to give the physician’s opinion less weight because he relied on
the claimant’s subjective complaints); see also Flaherty v. Astrue, 515 F.3d 1067, 1070
(10th Cir. 2007) (concluding that it was proper for the ALJ to give no weight to the
physician’s opinion because it was based on claimant’s subjective report). Accordingly,
the Court finds no reversible error as to this issue.
Treating Practitioner’s Opinion
Piper asserts that in making her RFC determination, the ALJ failed to discuss or
indicate what weight, if any, was given to Piper’s treating physician, Dr. Reider. (ECF
No. 14 at 25.) Dr. Reider treated Piper under the workers’ compensation system
between June 5, 2012, and December 31, 2012, just prior to and after Piper’s
laminectomy and microdiscectomy’s were performed. (Id.) During the course of the
physician-patient relationship, Dr. Reider found that Piper was unable to work at times,
or had limitations including no bending or twisting at the waist, and no
lifting/carrying/pushing ten plus pounds. (Id.) Piper contends that the ALJ’s failure to
discuss Dr. Reider’s opinion is reversible error. (Id. (citing Clifton v. Chater, 79 F.3d
1007, 1010 (10th Cir. 1996)).) The Commissioner responds that the “AlJ’s oversight is
not a basis for remand” because “these limitations would not prevent [Piper] from
performing her past work or other work as a receptionist.” (ECF No. 15 at 17 (citing
Lane v. Colvin, 643 F. App’x 766, 769 (10th Cir. 2016)).)
The Court agrees with Piper that the ALJ did not discuss in her order Dr.
Reider’s opinion at any length, however, the Court is convinced that the ALJ at least
considered his opinion. In making her RFC determination the ALJ noted that she “also
considered medical signs and findings and the opinions of the claimant’s treating and
examining sources.” (R. at 32.) When an “ALJ indicates [s]he has considered all the
evidence our practice is to take the ALJ at [her] word.” Wall, 561 F.3d at 1070.
Moreover, the record must only demonstrate that the ALJ considered all the evidence;
the ALJ need not discuss every piece of evidence. Clifton, 79 F.3d at 1009. However,
the ALJ is required to discuss evidence in cases where she chooses not to rely upon
significantly probative evidence or when considerable evidence is presented that
counters the agency’s position. Id. at 1010.
Notwithstanding the above proposition, the Court need not resolve whether the
ALJ should have expressly included in her RFC Dr. Reider’s limitations on
bending/twisting at the waist and carrying/pushing more than ten pounds, because the
capacity required to do the jobs identified by the ALJ is not contrary to Dr. Reider’s
limitations; thus, if this was error, it was harmless. Lane, 643 F. App’x at 769. An ALJ’s
error is harmless “where, based on material the ALJ did at least consider (just not
properly), we could confidently say that no reasonable administrative fact finder,
following the correct analysis could have resolved the factual matter in any other way.”
Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).
The ALJ determined that Piper is able to perform her past relevant work as an
office coordinator, as defined in the Dictionary of Occupational Titles (DOT), 169.167034. (R. at 32.) Additionally, during the hearing before the ALJ, the vocational expert
testified that Piper could perform the job of receptionist, as defined in the DOT,
237.367-038. (R. at 33.) As generally performed, the physical demands of these
occupations are sedentary. See Selected Characteristics of Occupations Defined in the
Revised DOT 1993 Edition (“SCODOT”), Part B–Index of Titles; see also 1991 WL
647430; 1991 WL 672192. “Sedentary work involves exerting up to 10 pounds of force
occasionally or a negligible amount of force frequently to lift, carry, push, pull, or
otherwise move objects, including the human body. Sedentary work involves sitting
most of the time, but may involve walking or standing for brief periods of time.”
SCODOT, App. C–Physical Demands. The occupations identified by the ALJ do not
require one to bend/twist at the waist, or push/carry more than ten pounds, and
therefore do not conflict with the limitations found by Dr. Reider. Because there is no
such conflict, the Court finds that any oversight by the ALJ was harmless error.
Piper asserts that the ALJ did not base her credibility assessment on substantial
evidence. (ECF No. 14 at 27.) Piper argues that the ALJ “failed to actually link any
specific piece of evidence to [her] credibility.” (Id. at 26.) Commissioner responds that
“the ALJ gave good reasons for finding [Piper]’s statements unreliable.” (ECF No. 15 at
“Credibility determinations are peculiarly the province of the finder of fact, and
[courts] will not upset such determinations when supported by substantial evidence.”
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). The ALJ must set “forth the
specific evidence he [or she] relies on in evaluating the claimant’s credibility.” Qualls v.
Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Here, the ALJ set f orth the factors from
SSR 96-7p and then spent the next few pages identifying evidence from the record that
related to the factors and supported her credibility assessment. (R. at 29–32.) See
also SSR 96-7p, 61 Fed. Reg. 34483 (July 2, 1996). For example, the ALJ’s discussion
references Piper’s June 2013 visit to Dr. Sundland, where she mentioned ongoing back
problems. (R. at 30.) However, the ALJ contrasts this with Piper’s report to her
physician that she had been exercising daily with an elliptical machine. (Id.) The ALJ
also references Piper’s January 2014 visit to Kaiser Permanente, in which she reported
ongoing back pain. (Id.) Similarly, the ALJ contrasts this with Piper’s report to the
physician that she walked two miles a day for exercise. (Id.) Thus, the Court finds that
the ALJ properly considered the relevant factors and the evidence in the record in
making her credibility determination.
However, on March 28, 2016, the Commissioner issued a new SSR addressing
the evaluation of symptoms in disability claims. SSR 16-3p, 81 Fed. Reg. 14166 (Mar.
28, 2016). The new Ruling supersedes SSR 96-7p by “eliminating the use of the term
‘credibility’ from our sub-regulatory policy . . . . In doing so, we clarify that subjective
symptom evaluation is not an examination of an individual’s character.” Id. at 14167.
ALJs are now instructed to consider an individual’s statements about the intensity,
persistence, and limiting effects of symptoms, and to evaluate whether the statements
are consistent with objective medical evidence and other evidence in the record. Id. at
14169. In determining whether the individual’s symptoms and related limitations are
consistent with the evidence in his or her record, the ALJs must explain which
symptoms they found consistent or inconsistent and explain how their evaluation of the
individual’s symptoms led to their conclusion. Id. at 14170.
As Piper correctly notes, SSR 16-3p is now binding on all components of the
Social Security Administration. (ECF 14 at 26) See also 20 C.F.R. § 402.35(b) (“These
rulings represent precedent final opinions and orders and statements of policy and
interpretations that we have adopted.”). Accordingly, on remand, the Court orders the
ALJ to assess Piper’s subjective statements of her symptoms under the criteria listed
under SSR 16-3p.
The Court does not intend by this opinion to suggest the results that should be
reached on remand; rather, the Court encourages the parties and the ALJ to fully
consider the evidence and all issues raised anew on remand. See Kepler, 69 F.3d at
391–92 (“We 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)).
For the reasons set forth above, the Commissioner’s decision is VACATED and
this case is REMANDED to the Commissioner for rehearing.
Dated this 21st day of December, 2016.
BY THE COURT:
William J. Martínez
United States District Judge
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