Mendiola v. Colvin et al

Filing 20

ORDER: the Commissioner's decision is REVERSED and REMANDED for further findings. by Judge R. Brooke Jackson on 1/30/17. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 16-cv-00653-RBJ
MANUEL B. MENDIOLA,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER

This matter is before the Court on review of the Social Security Administration (SSA)
Commissioner’s decision denying claimant Manuel B. Mendiola’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of the Social
Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g). For the reasons explained below,
the Court reverses and remands the Commissioner’s decision.
I.

Standard of Review.

This appeal is based upon the administrative record and the parties’ briefs. In reviewing
a final decision by the Commissioner, the District Court examines the record and determines
whether it contains substantial evidence to support the Commissioner’s decision and whether the
Commissioner applied the correct legal standards. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th
Cir. 1996). A decision is not based on substantial evidence if it is “overwhelmed by other

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evidence in the record.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Substantial
evidence requires “more than a scintilla, but less than a preponderance.” Wall v. Astrue, 561
F.3d 1048, 1052 (10th Cir. 2009). Evidence is not substantial if it “constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In addition, reversal may be
appropriate if the Commissioner applies an incorrect legal standard or fails to demonstrate that
the correct legal standards have been followed. Winfrey, 92 F.3d at 1019.
II.

Background.

Mr. Mendiola is 51 years old. See R. 230. He has a high school education and has
worked a variety of jobs in his life, including as a nurse’s aide, painter, cashier, lime kiln
operator, cleanup worker, cook, and, most recently, bartender. R. 280, 295–96.
In August 2008 Mr. Mendiola suffered a heart attack and had quintuple bypass surgery.
R. 379, 394. He has experienced intermittent chest pain and related symptoms since the surgery.
See, e.g., R. 429, 616, 657, 1155. In addition, he has diabetes and endures occasional abdominal
pain, low back pain, and difficulty breathing. See, e.g., R. 440, 690, 1116, 1170.
Mr. Mendiola is also an alcoholic. R. 396. On average he binge-drinks a twelve-pack of
beer and a pint of liquor once or twice a week. R. 44–45. He appears to use alcohol to treat his
chronic mild depression. R. 396–97. Unfortunately, Mr. Mendiola’s alcohol use has aggravated
many of his other health problems. He has not complied with the medication regimen for his
heart condition because he has been spending his copay money on alcohol. See R. 431, 469, 657,
1154–55, 1157–59. His alcohol use exacerbates his diabetes. R. 397. And his high alcohol
intake is a risk factor for his abdominal issues. R. 1146.

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A. Procedural History.
On September 21, 2012 Mr. Mendiola applied for supplemental security income benefits.
R. 276. On November 1, 2012 he applied for disability insurance benefits. R. 230. Both claims
alleged disability beginning August 19, 2011. R. 234, 241. The claims were initially denied on
April 8, 2013. R. 140. Mr. Mendiola requested reconsideration and the claims were again
denied on June 11, 2013. R. 155–56. Mr. Mendiola then requested a hearing, which was held in
front of Administrative Law Judge (ALJ) Stanley R. Hogg on August 13, 2014. R. 30. At the
hearing Mr. Mendiola asked to amend his alleged onset date to be five days later than originally
averred, moving that date to August 24, 2011. R. 35. The ALJ issued a decision denying
benefits on October 23, 2014. R. 11. The Appeals Council denied Mr. Mendiola’s request for
review on February 10, 2016, rendering the ALJ’s determination the final decision of the
Commissioner for purposes of judicial review. R. 1. Mr. Mendiola filed a timely appeal in this
Court. ECF No. 1.
B. The ALJ’s Decision.
The ALJ issued an unfavorable decision after evaluating the evidence according to the
SSA’s standard five-step process. R. 11–22. First, he found that Mr. Mendiola had not engaged
in substantial gainful activity since his alleged onset date of August 24, 2011. R. 13. At step
two, the ALJ found that Mr. Mendiola had the severe impairments of coronary artery disease,
hypertension, pancreatitis, asthma, chronic obstructive pulmonary disease, diabetes mellitus, and
degenerative disc disease. R. 14. The ALJ found Mr. Mendiola’s mental impairments of
depression and alcohol abuse to be nonsevere. Id. At step three, the ALJ concluded that Mr.
Mendiola did not have an impairment or combination of impairments that met or medically
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equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1. R. 17.
The ALJ then found that Mr. Mendiola retained the residual functional capacity (RFC) to
perform unskilled and low semi-skilled light work provided he is only occasionally required to
climb stairs, balance, stoop, kneel, crouch, or crawl and he avoids environments that are very
hot, very cold, or involve continuous exposure to dust, smoke, fumes, pollutants, or chemicals.
R. 16. The ALJ determined that Mr. Mendiola is capable of performing his past relevant work at
step four. R. 22. Therefore, the ALJ concluded that Mr. Mendiola was not disabled. Id.
III.

Discussion.

Mr. Mendiola contends that the ALJ erred at steps three and four by: (1) failing to obtain
an updated expert opinion on whether his conditions were medically equivalent to a listed
impairment; (2) overlooking his treating source’s medical opinion about his standing and
walking limitations; and (3) basing his credibility assessment on the wrong legal standard and
insubstantial evidence. The Court will discuss each argument in turn.
A. Medical Equivalence.
Mr. Mendiola argues that the ALJ should have had a medical expert offer an updated
opinion on whether his cardiac condition was medically equivalent to a listed impairment in 20
C.F.R. Part 404, Subpart P, Appendix 1. Although the ALJ is responsible for making the legal
determination of whether a listing is met or equaled, SSA policy requires the ALJ to receive into
the record a physician or psychologist’s opinion on the question of medical equivalence. Social
Security Ruling (SSR) 96-6p, 1996 WL 374180, at *3 (July 2, 1996). This requirement can be
satisfied by the signature of a State agency medical or psychological consultant on an SSA-8314

U5 (Disability Determination and Transmittal Form). Id. The record in this case contains four
such forms, two dated April 8, 2013 and two dated June 11, 2013. R. 73–74, 103–04. Still, the
ALJ must obtain an updated medical opinion if he believes that evidence submitted later on may
change these medical consultants’ findings. SSR 96-6p, 1996 WL 374180, at *3–4. Mr.
Mendiola asserts that medical records submitted after June 11, 2013 revealed these four opinions
were no longer supported by substantial evidence, warranting an updated expert opinion. I
disagree.
The ALJ did not abuse his discretion in declining to seek an updated opinion on medical
equivalence. As an initial matter, “[a]dopting [Mr. Mendiola’s] logic would ultimately require
an ALJ to include an updated medical expert opinion in evidence any time the record is
supplemented, effectively contravening the discretion given to the ALJ under SSR 96-6p.”
Shreve v. Colvin, No. 13-CV-00286-RBJ, 2014 WL 701507, at *6 (D. Colo. Feb. 24, 2014).
Second, substantial evidence supports the ALJ’s decision not to seek an updated opinion
because the documents submitted after June 11, 2013 were unlikely to change the medical
experts’ views. For example, the ALJ wrote that the evidence of record does not show that Mr.
Mendiola’s coronary heart disease has caused very serious limitations in his activities of daily
living, undermining his case for meeting Listing 4.04(C) (ischemic heart disease). R. 15. The
same is true of Listing 4.02 (chronic heart failure). See 20 C.F.R. pt. 404, subpt. P, app. 1, §
4.02(B). Yet Mr. Mendiola points only to treatment notes showing his ejection fraction
declining from roughly 50% to 37%, which still exceeds the 30% ejection fraction needed to
meet Listing 4.02. See id. § 4.02(A); ECF No. 14 at 19–21. He does not claim that this change
seriously impaired his activities of daily living or that his other ailments—such as chronic mild
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depression—are at least of equal medical significance to this criterion. See ECF No. 14 at 19–
21.
Similarly, the evidence of Mr. Mendiola’s psychological condition has not materially
changed since June 11, 2013. The medical experts considered a consultative psychological
examiner’s view that Mr. Mendiola was an alcoholic and would “likely experience severe
psychological problems” if he stopped drinking. See R. 76–77, 90–91, 107–08, 122–23; see also
396–97 (consultative psychological examiner’s opinion). These experts concluded that Mr.
Mendiola’s psychological problems do not meet or equal an affective disorder because they
cause only a mild restriction in his activities of daily living; mild difficulties in social
functioning; moderate difficulties in maintaining concentration, persistence, or pace; and no
repeated episodes of decompensation. R. 82, 96, 113, 128. In contrast, Listing 12.04
(depressive, bipolar, and related disorders) requires, among other things, either an extreme
limitation in one of those areas or marked limitations in two of those areas. 20 C.F.R. pt. 404,
subpt. P, app. 1, § 12.04(B).
Mr. Mendiola says that he might now meet or equal Listing 12.04 because Dr. Nienaber
prescribed him an antidepressant and admonished him to stop spending money on alcohol when
he cannot afford his medication. 1 But while the prescription of antidepressants may confirm a
diagnosis of depression, “the claimant must show more than the mere presence of a condition or
ailment.” Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). Mr. Mendiola needed to
demonstrate not just that he was prescribed medication, but “that his impairments would have

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Mr. Mendiola also cites his testimony at the hearing before the ALJ, but this testimony is not “medical
evidence” that could trigger the ALJ’s duty to obtain an updated medical opinion under SSR 96-6p. See,
e.g., 20 C.F.R. § 404.1512(b)(1)(i)–(ii).

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more than a minimal effect on his ability to do basic work activities.” Williams v. Bowen, 844
F.2d 748, 751 (10th Cir. 1988). And, contrary to Mr. Mendiola’s position, there is no reason to
think that a medical expert may have viewed Mr. Mendiola’s noncompliance with his medication
as equaling either an extreme limitation in his ability to perform daily activities, his social
functioning, or his maintenance of concentration, persistence, or pace, or a marked limitation in
two of those functional areas.
B. Dr. Nienaber’s Opinion.
Next, Mr. Mendiola argues that the ALJ erred by not giving Dr. William Nienaber’s
opinion controlling weight, or at least by not explaining why his opinion was not adopted in full.
Dr. Nienaber was Mr. Mendiola’s treating cardiologist. R. 19. Under SSA regulations, a
treating source’s medical opinion is entitled to controlling weight if it is well supported and not
inconsistent with other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). When such an opinion does not warrant controlling weight, the ALJ must give
good reasons for the weight given to the opinion. Id. Mr. Mendiola contends that, under either
standard, the ALJ’s RFC determination erroneously omitted Dr. Nienaber’s views about Mr.
Mendiola’s standing and walking limitations. I agree.
The ALJ failed to “first determine whether [Dr. Nienaber’s] opinion qualifies for
‘controlling weight.’” Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). Indeed, the
ALJ found that “Dr. Nienaber’s opinion . . . is supported by his treatment notes” and did not cite
any contradictory evidence. See R. 20. Had the ALJ considered whether Dr. Nienaber’s opinion
is entitled to controlling weight, he apparently should have found that it was. Remand is

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therefore appropriate for the ALJ to conduct the required sequential analysis of the weight due to
Dr. Nienaber’s opinion. See Watkins, 350 F.3d at 1300.
Moreover, even if the ALJ can justify giving Dr. Nienaber’s opinion only “great weight,”
the ALJ’s current handling of Mr. Mendiola’s standing and walking limitations is flawed. Dr.
Nienaber gave his opinion by filling out a Wyoming Department of Workforce Services form.
R. 1112. The form calls for a doctor to circle the maximum number of hours in an eight-hour
workday that a claimant can sit, stand, or walk. R. 1113. Dr. Nienaber indicated that Mr.
Mendiola can stand for up to one hour at a time for a total of four hours per day, and that he can
walk for up to one hour at a time for a total of three hours per day. Id. The ALJ did not include
these limitations in his RFC finding. See R. 16. According to the Commissioner, however, the
limitation to light work encompassed these restrictions because such work “requires standing or
walking, off and on, for a total of approximately 6 hours of an 8-hour workday,” SSR 83-10,
1983 WL 31251, at *6, and the ALJ took Dr. Nienaber’s opinion to mean Mr. Mendiola “could
stand four hours and walk three hours” for a total of seven hours a day, ECF No. 15 at 14.
The ALJ’s interpretation of Dr. Nienaber’s opinion is unreasonable. The Wyoming
Department of Workforce Services form is not a model of clarity, instructing a physician simply
to “[c]ircle full capacity for each activity.” R. 1112. That is easy enough for a claimant’s
capacity for sitting, which is completely independent from the ability to stand or walk. But the
same cannot be said of standing or walking.
Both standing and walking involve “being on one’s feet.” SSR 83-10, 1983 WL 31251,
at *6. Standing means “[r]emaining on one’s feet in an upright position at a work station without
moving about,” while walking means “[m]oving about on foot.” U.S. Dep’t of Labor, Selected
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Characteristics of Occupations Defined in the Dictionary of Occupational Titles app. C (1993).
For this reason, the SSA usually describes a claimant’s capacities for standing and walking as a
single ability. See, e.g., 20 C.F.R. §§ 404.1567(a), 416.967(a) (“Jobs are sedentary if walking
and standing are required occasionally . . . .”); SSR 83-10, 1983 WL 31251, at *6 (“[L]ight work
requires standing or walking, off and on . . . .”); R. 83, 97, 115, 130 (using a Disability
Determination Explanation form that asks how long Mr. Mendiola can “[s]tand and/or walk”).
So when these capacities are presented separately, as on Wyoming’s form, the estimates must be
understood as competing demands on an individual’s overall ability to work on his or her feet.
The only viable reading of Dr. Nienaber’s opinion is that Mr. Mendiola can stand for four
hours or walk for three hours a day—at most three to four hours of combined walking and
standing in an eight-hour workday. The Commissioner’s interpretation would instead
nonsensically keep Mr. Mendiola on his feet after four hours of standing if he moved about
instead of staying in one spot. It goes without saying that there is nothing in the record to
support this view. On the contrary, Dr. Nienaber’s treatment notes observed a diminished pulse
in Mr. Mendiola’s feet and legs in general. See R. 1155, 1164; see also R. Dean Hill & Robert
B. Smith, III, Examination of the Extremities: Pulses, Bruits, and Phlebitis, in Clinical Methods:
The History, Physical, and Laboratory Examinations (H. Kenneth Walker et al. eds., 1990),
https://www.ncbi.nlm.nih.gov/books/NBK350/ (“2 + suggest[s] a slightly more diminished pulse
than normal”). Physical activity, like walking, can trigger Mr. Mendiola’s cardiovascular
symptoms, reducing the amount of time he can spend on his feet. See, e.g., R. 429. Thus, there
are not “two fairly conflicting views” here. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.

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2007). The ALJ’s mistaken understanding of Dr. Nienaber’s opinion must be corrected on
remand.
On a related note, the ALJ’s RFC determination also fails to account for Dr. Nienaber’s
opinion about how long Mr. Mendiola can stand or walk at one time. The ALJ’s decision recites
Dr. Nienaber’s view that Mr. Mendiola can stand or walk for only one hour at a time, 2 but does
not say whether the ALJ accepted or rejected that opinion. See R. 19–20. Instead, the decision
later notes that Mr. Mendiola told a consultative physician he can stand for about two hours at a
time on “good days” and only forty-five minutes at a time on “bad days,” and declares that these
statements are “more or less consistent with his hearing testimony” that he can stand for
“[m]aybe an hour” and “sometimes [has] to use a cane.” R. 20, 47–48. The decision then
concludes that “normal breaks” (i.e., at approximately two-hour intervals) would accommodate
Mr. Mendiola’s limitations “in terms of what the claimant said he can do on good days and as far
as what is supported by the objective medical evidence in the record.” R. 20; see also SSR 969p, 1996 WL 374185, at *6 (July 2, 1996) (describing normal breaks in the morning, at
lunchtime, and in the afternoon as occurring at roughly two-hour intervals). This is the entirety
of the ALJ’s analysis; he does not cite to specific “objective medical evidence in the record.”
See R. 20.
On remand the ALJ must adopt Dr. Nienaber’s opinion about Mr. Mendiola’s continuous
standing and walking limitations if this opinion is well supported and consistent with the record,
or else the ALJ must identify substantial evidence in the record that overcomes Dr. Nienaber’s

2

I say stand or walk because, following the above analysis, that is the proper interpretation of Dr. Nienaber’s
opinion.

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opinion, Mr. Mendiola’s testimony, and Mr. Mendiola’s statements to the consultative physician
about his “bad days.”
C. Credibility Assessment.
Finally, Mr. Mendiola argues that the ALJ’s credibility assessment applies the wrong
legal standard and is not based on substantial evidence. Following SSR 96-7p, the ALJ
evaluated the credibility of Mr. Mendiola’s statements about the intensity, persistence, and
limiting effects of his symptoms. See R. 18–22. The ALJ found Mr. Mendiola’s statements not
fully credible based on his “significant” activities of daily living, attempts to get a job, successful
medical treatment, and inconsistent remarks compared with other evidence of record. See id.
Mr. Mendiola concedes that SSR 96-7p was in effect when the ALJ issued his decision.
However, he argues that the Commissioner and her lawyers are instead bound by the March 2016
ruling in SSR 16-3p, which superseded SSR 96-7p while his case was pending before this Court.
See SSR 96-7p, 1996 WL 374186 (July 2, 1996), superseded by SSR 16-3p, 2016 WL 1119029
(Mar. 28, 2016); see also 20 C.F.R. § 402.35(b) (“[Social Security Rulings] are binding on all
components of the Social Security Administration.”) (emphasis added).
The ALJ did not apply the wrong legal standard. It is true that the Tenth Circuit has not
squarely addressed whether SSR 16-3p applies to decisions issued before March 2016, and
district courts have reached conflicting conclusions. Compare Christensen v. Colvin, No. 1509856-EFM, 2016 WL 6648682, at *5 n.38 (D. Kan. Nov. 10, 2016) (applying SSR 96-7p), with
Abad v. Colvin, No. 16-CV-0700-WJM, 2017 WL 57259, at *8 (D. Colo. Jan. 5, 2017) (applying
SSR 16-3p), and Piper v. Colvin, No. 16-CV-0382-WJM, 2016 WL 7383402, at *6 (D. Colo.
Dec. 21, 2016) (same). But in two unpublished decisions, the Tenth Circuit recognized that SSR
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96-7p had been rescinded during the pendency of judicial proceedings and chose to apply it
anyway. See Paulsen v. Colvin, No. 15-1277, 2016 WL 6440368, at *1 (10th Cir. Nov. 1, 2016)
(unpublished); Shelton v. Colvin, No. 15-6220, 2016 WL 6087652, at *4 (10th Cir. Oct. 18,
2016) (unpublished). Moreover, this Court’s role in reviewing the Commissioner’s decision is to
determine, among other things, whether the ALJ “applied the correct legal standards.”
Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994) (emphasis added). This inquiry
requires the Court to gauge the ALJ’s compliance with the legal standards that existed at the time
of his decision, whether or not these standards have subsequently changed.
However, because the ALJ’s reconsideration of Mr. Mendiola’s standing and walking
limitations may change his view of Mr. Mendiola’s credibility, the Court will not review whether
the current credibility assessment is also supported by substantial evidence. Cf. Watkins v.
Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“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.”).
ORDER
For the reasons described above, the Court REVERSES and REMANDS the
Commissioner’s decision denying claimant Manuel B. Mendiola’s application for disability
insurance benefits and supplemental security income.
DATED this 30th day of January, 2017.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge
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