Madrid v. Colvin

Filing 22

ORDER. The decision of the Commissioner that plaintiff was not disabled is REVERSED and REMANDED for further proceedings consistent with this opinion, by Judge Philip A. Brimmer on 3/12/18. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-01106-PAB
ALEXANDER MADRID,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before the Court on the Complaint [Docket No. 1] filed by
plaintiff Alexander Madrid on May 13, 2016. Plaintiff seeks review of the final decision
of defendant Nancy A. Berryhill (the “Commissioner”) denying his claim for disability
insurance benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C.
§§ 401-33. The Court has jurisdiction to review the Commissioner’s final decision
under 42 U.S.C. § 405(g).1
I. BACKGROUND
On October 24, 2013, plaintiff applied for disability insurance benefits under
Title II of the Act. R. at 20. Plaintiff alleged that he had been disabled since July 1,
2006. Id. After an initial administrative denial of his claim, plaintiff received a hearing
before an Administrative Law Judge (“ALJ”) on September 30, 2015. Id. At the
hearing, plaintiff amended the alleged disability onset date to July 1, 2012. Id. On
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The Court has determined that it can resolve the issues presented in this matter
without the need for oral argument.

October 15, 2015, the ALJ issued a decision deny ing plaintiff’s claim. Id. at 20-27. The
ALJ found that plaintiff had the following severe impairments: traumatic brain injury and
a cognitive disorder not otherwise specified. Id. at 23. The ALJ concluded that these
impairments, alone or in combination, did not meet one of the regulations’ listed
impairments, id. at 24, and found that plaintiff had the residual functional capacity
(“RFC”) to perform medium work as defined in 20 CFR § 404.1567(c). Id. The ALJ
also concluded that “[plaintiff] is limited to simple, routine work with an SVP of 1-2 and
minimal changes in duties. He cannot perform production-rate work and needs to use a
list as a memory aid.” Id. Based upon this RFC the ALJ concluded that plaintif f was
capable of performing his past relevant work as a laborer. Id. at 27.
After the ALJ’s decision, plaintiff submitted additional evidence to the Appeals
Council that was not before the ALJ at the time of the decision. R. at 222-235. On
March 17, 2016, the Appeals Council denied plaintif f’s request for review of the ALJ’s
denial of his claim. Id. at 1. Given the Appeals Council’s denial, the ALJ’s decision is
the final decision of the Commissioner.
II. ANALYSIS
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). T he district court may not reverse
an ALJ simply because the court may have reached a different result based on the

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record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in his decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence 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). T he district
court will not “reweigh the evidence or retry the case,” but must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515
F.3d at 1070. Nevertheless, “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).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
[a]n individual shall be determined to be under a disability 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, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.

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42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and (5)
whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). 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. Sec’y of
Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisf ied [his] burden
of establishing a prima facie case of disability under steps one, two, and four, the
burden shifts to the Commissioner to show the claimant has the residual functional
capacity (RFC) to perform other work in the national economy in view of [his] age,
education, and work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). W hile the
claimant has the initial burden of proving a disability, “the ALJ has a basic duty of
inquiry, to inform himself about facts relevant to his decision and to learn the claimant’s
own version of those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).

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C. The ALJ’s Decision
Plaintiff argues that the ALJ erred by (1) incorrectly evaluating the severity of
plaintiff’s mental impairment; (2) failing to give adequate consideration to the VA rating
decision that plaintiff’s brain injury and cognitive impairment rendered him permanently
and totally disabled; and (3) finding that plaintiff can return to his past relevant work.
Docket No. 13 at 5-6. The Court will address only the first of these arguments, which is
dispositive. Cf. Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“W e will not
reach the remaining issues raised by appellant because they may be affected by the
ALJ’s treatment of this case on remand”).
Plaintiff raises several objections to the ALJ’s treatment of the medical evidence
that he used to define plaintiff’s RFC. First, plaintiff argues that the ALJ failed to take
into account plaintiff’s mental limitations as identified by psychologist Donna Peters.
Second, he claims that the ALJ failed to provide sufficient reasons for discounting Dr.
Peters’ medical opinion. Docket No. 13 at 22. Third, he argues that the ALJ erred by
failing to discuss Dr. Angelica Munger’s medical opinion. Docket No. 13 at 20.
1. Psychologist Donna Peters
The Court will discuss plaintiff’s first two arguments regarding Dr. Peters
together. Psychologist Donna Peters examined plaintiff and prepared a report dated
February 15, 2013. R. at 253-265. She adm inistered several tests to plaintiff, including
the Saint Louis University Status Examination (“SLUMS”) and the Repeatable Battery
for the Assessment of Neuropsychological Status (“RBANS”). Id. at 255-56. Plaintiff
scored 21/30 on the SLUMS. Id. at 255. On the RBANS, Dr. Peters found that plaintiff

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had profoundly impaired immediate memory and delayed memory, low-average
language and attention, and average visuospacial construction. Id. at 256. Plaintiff’s
total RBANS score was in the severely impaired range. Id.
Dr. Peters concluded that plaintiff had “significant cognitive impairment
secondary to dementia pugilistica.” Id. at 256.2 She also concluded that plaintiff “has
difficulties tracking in conversations and difficulty following verbal directions and
commands. He has to have verbal directions repeated multiple times for retention.”
With respect to plaintiff’s ability to work, Dr. Peters concluded as follows:
[Plaintiff] is likely not able to be employed in any traditional job. He would
struggle to learn a new trade and his work opportunities are likely limited.
[Plaintiff] would struggle with learning new information and would likely
need to work in a position that includes repetitious activities.
Id. at 257.
“An ALJ must evaluate every medical opinion in the record.” Hamlin v. Barnhart,
365 F.3d 1208, 1215 (10th Cir. 2004). An ALJ m ust also determine what weight to give
medical opinions. In determining what weight to give a medical opinion, the ALJ
“must . . . consider a series of specific factors” listed in 20 C.F.R. § 404.1527(d). Id.
Those factors include:

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According to Dr. Peters’ report, “dementia pugilista is a form of dementia that
poses long-term serious threat to individuals involved in heavy contact sports, such as
boxing, and who have sustained multiple concussions throughout their lives. Dementia
pugilistica is also known as punch-drunk syndrome or boxers’ dementia. The dementia
can develop after a latent period of years, sometimes more than a decade before
symptoms of the condition arise. . . . Signs and symptoms of dementia pugilistica
include progressively declining cognitive ability, short-term memory loss, physical
tremors, loss of physical coordination, difficulties in speech, changes in gait.” R. at 25657. Plaintiff began boxing at age ten. R. at 254. While in the U.S. Army from 1980 to
1984, he participated in approximately fifty boxing matches. R. at 255.
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(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician’s opinion is supported by
relevant evidence; (4) consistency between the opinion and the record as
a whole; (5) whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (interna l quotation marks
omitted). Although the ALJ does not need to discuss each f actor, see Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007), the ALJ m ust consider every factor in
determining the weight to assign a medical opinion and “give good reasons in the notice
of determination or decision for the weight he ultimately assigns the opinion.” Watkins,
350 F.3d at 1301 (internal quotation marks and brackets omitted); Romo v. Berryhill,
No. 16-cv-02248-WJM, 2017 WL 3911071, at *5 (D. Colo. September 7, 2017).
The ALJ did not discuss Dr. Peters’ conclusions in detail. He noted plaintif f’s
score on the SLUMS test, but did not mention the results of the RBANS testing. R. at
26. The ALJ found that, although plaintiff does “exhibit some cognitive defects . . . the
claimant was given a Global Assessment of Functioning [] score of 55, indicating no
more than a moderate functional impairment.” Id. at 26. The ALJ, however, was not
entitled to focus on plaintiff’s Global Assessment of Functioning while ignoring evidence
that plaintiff has specific impairments in memory and language. See Hardman v.
Barnhart, 362 F.3d 676, 681 (10th Cir. 2004) (“It is improper for the ALJ to pick and
choose among medical reports, using portions of evidence favorable to his position
while ignoring other evidence.”).

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In relating Dr. Peters’ opinion to plaintiff’s RFC, the ALJ was required to express
plaintiff’s mental impairments “in terms of work-related functions” or “[w]ork-related
mental activities.” Jaramillo v. Colvin, 576 F. App’x 870, 876 (10th Cir. 2014)
(unpublished). The ALJ found that plaintiff was limited to “simple routine work with an
SVP of 1-2 and minimal changes in duties,” so long as such work was not productionrate and plaintiff could use a list as a memory aid. R. at 24. None of these limitations
takes into account the deficits that Dr. Peters identified in plaintiff’s ability to understand
verbal instructions, and the ALJ provided no explanation or citation to the record
concerning how a memory aid could or would address plaintiff’s “profoundly impaired”
immediate or delayed memory. Because the ALJ erred in incorporating plaintiff’s
mental impairments in the RFC, the ALJ correspondingly failed to include plaintiff’s
impairments in the hypothetical posed to the Vocational Examiner (“VE”). See Evans v.
Chater, 55 F.3d 530, 532 (10th Cir. 1995) (explaining that a hypothetical inquiry to a VE
“must include all (and only) those impairments borne out by the evidentiary record”);
Jaramillo, 576 F. App’x at 876 (“The limitation to simple, routine, repetitive, and
unskilled tasks the ALJ included in his hypothetical to the VE did not clearly relate the
moderate impairments [in plaintiff’s ability to carry out instructions, attend and
concentrate, and work without supervision].”). This was reversible error. Id.
2. Angelica Munger, M.D.
On February 15, 2013, plaintiff was examined by Angelica Munger, M.D. R.
at 265. Dr. Munger diagnosed plaintiff with traumatic brain injury and tension

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headaches. Id. at 267, 276. Dr. Munger also noted the following “functional status” for
plaintiff:
Basic ADLs - Able to dress, eat, write, cook and do his personal hygiene.
Driving - Limited to 45 minutes due to low back pain.
Sitting - limited to 30 minutes due to low back pain.
Standing - Limited to 30 minutes due to low back pain.
Walking - Limited to one mile due to low back pain.
Running - Limited to half a mile due to low back pain.
Stairs - Able to climb one flight without difficulty.
Lifting - Limited to 25 pounds due to low back pain.
Id. at 268. The ALJ made no mention of Dr. Munger’s opinion.
As noted above, an ALJ is required to consider every medical opinion in the
record and provide specific, legitimate reasons for rejecting it. Doyal v. Barnhart, 331
F.3d 758, 764 (10th Cir. 2003). The ALJ failed to do so here. The Commissioner
argues that the ALJ’s failure to consider Dr. Munger’s opinion does not warrant reversal
for two reasons: first, because plaintiff waived his argument by failing to “explain what
aspects of the ALJ’s decision are inconsistent with Dr. Munger’s medical opinions” and,
second, because Dr. Munger found that plaintiff’s traumatic brain injury and tension
headaches did not diminish plaintiff’s ability to work. Docket No. 14 at 7-8.
As to the first argument, plaintiff’s opening brief describes Dr. Munger’s findings
in depth and states that the ALJ failed to mention or discuss Dr. Munger’s opinion.
Moreover, plaintiff cites Dr. Munger’s opinion in support of plaintiff’s various arguments.
Docket No. 13 at 10-11, 20, 22, and 27. T he Court finds that plaintiff has sufficiently
stated his argument so as to avoid waiver. Defendant argues that, in the absence of
inconsistencies between Dr. Munger’s medical evaluation and the ALJ’s opinion, the
ALJ was not required to expressly consider Dr. Munger’s opinion. Docket No. 14 at 7.
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While it is true that, “[w]hen 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,” Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004), the ALJ is still
required to acknowledge the relevant medical evidence. See Keyes-Zachary v. Astrue,
695 F.3d 1156, 1161-65 (10th Cir. 2012) (f inding no error where the ALJ described
several non-contradictory medical opinions, but did not expressly assign a weight to
each). Moreover, the ALJ failed to incorporate or discuss Dr. Munger’s findings with
respect to plaintiff’s headaches and back pain. The ALJ made no finding with respect
to plaintiff’s headaches and found that “[t]he available medical record does not contain
any documentation of [pain-related] complaints, however, and no diagnoses or
objective findings to substantiate the existence of any severe back, hand or other
musculoskeletal conditions.” R. at 23.
With respect to the Commissioner’s second argument, that the ALJ did not err
because Dr. Munger found that plaintiff’s impairments did not affect plaintiff’s ability to
work, the Court may not “create or adopt post-hoc rationalizations to support the ALJ’s
decision that are not apparent from the ALJ’s decision itself.” Haga v. Astrue, 482 F.3d
1205, 1207-08 (10th Cir. 2007).
It was error for the ALJ to fail to consider Dr. Munger’s medical opinion. On
remand, the ALJ should determine the appropriate weight to be given to Dr. Munger’s
diagnoses and the impact the limitations identified in her report have on plaintiff’s RFC.
III. CONCLUSION
For the foregoing reasons, it is

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ORDERED that the decision of the Commissioner that plaintiff was not disabled
is REVERSED and REMANDED for further proceedings consistent with this opinion.

DATED March 12, 2018.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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