Brick v. Colvin et al
ORDER that the Commissioners decision is REVERSED and this case is REMANDED to the Commissioner for rehearing. It is further ORDERED that Plaintiff is awarded costs pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1, by Magistrate Judge Kathleen M. Tafoya on 3/8/2018. (jgonz, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 16-cv-01117–KMT
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
This matter comes before the court on review of the Commissioner’s denial of Plaintiff
Cecily Brick’s application for Social Security disability benefits pursuant to Titles II and XVI of
the Social Security Act.1 Jurisdiction is proper under 42 U.S.C. § 405(g).
Plaintiff filed her opening brief on August 22, 2016 (Doc. No. 14 [“Opening Br.”]),
Defendant filed her response on September 8, 2018 (Doc. No. 15 [“Resp.”]), and Plaintiff filed
her reply on September 26, 2016 (Doc. No. 18 [“Reply”]).
See generally Doc. No. 10, Social Security Administrative Record [“AR”].) Plaintiff initially
claimed she became disabled in December 2011, but amended her alleged onset date to January
2013 (AR 188, 239).
FACTUAL AND PROCEDURAL BACKGROUND
In denying Plaintiff’s claim, Commissioner found Plaintiff not disabled under the Social
Security Administration’s regulations (“SSA”). (AR 15-31, 35-51). In determining disability,
the ALJ used the five-step sequential evaluation process. 2 After reviewing the record, the ALJ
found that Plaintiff had severe impairments that included interstitial cystitis with recurrent
urinary tract infections, endometriosis and Nabothian cysts, and migraine headaches (AR 40).
However, the ALJ found that she did not have an impairment or combination of impairments
listed in or medically equal to one contained in 20 C.F.R. part 404, subpart P, appendix 1.
The ALJ assessed Plaintiff’s residual functional capacity (“RFC”), and found her capable
of working as follows: “The claimant the RFC to perform light work….She can occasionally
climb ramps and stairs, but cannot climb ladders or scaffolds. She can occassionaly stoop, knell,
crouch and crawl. She cannot work at unprotected heights or with dangerous, unprotected
machinery. The claimant is limited to work with a maximum specific vocational preparation
(SVP) two, this simple, routine and repetitive. She can have occasional interaction with
supervisors, coworkers and the public.” (AR 43). Based on this RFC, the ALJ found that
Plaintiff’s impairments would not preclude her from performing work that exists in significant
numbers in the national economy, including work as a cleaner/housekeeper and bench assembler
(AR 48). Consequently, the ALJ found that Plaintiff was not disabled. (AR 49).
Plaintiff sought timely review before this Court.
Step one determines work activity, step two determines severity of claimed impairments,
step three determines a presumptive disability, step four determines whether the claimant can
still perform her “past relevant work,” and step five determines if the claimant can do work other
than her past relevant work. See Williams v. Bowen, 844 F.2d 748 (10th Cir. 1988) (detailing five
steps). 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 (1987).
STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if her physical
and/or mental impairments preclude him from performing both his 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 effect 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).
Review of the Commissioner’s disability decision is limited to determining whether the
ALJ (1) applied the correct legal standard and (2) whether the decision is supported by
substantial evidence. Hamilton v. Sec’y of Health and Human Servs., 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. 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). The court “meticulously examine[s] 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.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations omitted). However,
the court may not reweigh the evidence or substitute its discretion for that of the Commissioner.
Thompson, 987 F.2d at 1487.
As the Tenth Circuit observed in Baca v. Dep’t of Health & Human Servs., 5 F.3d
476, 480 (10th Cir. 1993), the ALJ also has a basic duty of inquiry to “fully and fairly
develop the record as to material issues.” Id. This duty exists even when the claimant is
represented by counsel. Id. at 480. Moreover, the court may not affirm an ALJ’s decision based
on a post-hoc rationale supplied in an appellate brief, since doing so would “usurp essential
functions committed in the first instance to the administrative process.” Allen v. Barnhart, 357
F.3d 1140, 1142 (10th Cir. 2004). Although the Tenth Circuit has applied the doctrine of
harmless error in administrative appeals, it is only appropriate where “no reasonable
administrative factfinder, following the correct analysis, could have resolved the factual matter in
any other way.” Id. at 1145.
Plaintiff raises several issues for consideration—primarily challenging the ALJ’s
application of treating physician principles. Plaintiff also contends that the ALJ’s analysis
engaged in cherry-picking evidence that was consistent with the final outcome, while ignoring
evidence that was supportive of Plaintiff’s claim. The Court is persuaded by Plaintiff’s
A. The ALJ Erred in Application of Treating Physician Principles
Plaintiff challenges the ALJ’s treating physician analysis—specifically, the analysis and
the weight afforded to W. Paul Gessner M.D.’s medical opinion. Plaintiff contends that the ALJ
did not afford Dr. Gessner any weight—let alone controlling weight under 20 C.F.R. § 416.927.
In rebuttal to Defendant’s arguments, Plaintiff also contends that the ALJ failed to assign proper
weight to Dr. Gessner’s opinion under the multi-factor assessment in 20 C.F.R. 416.927(c)(2). It
is to the treating physician analysis the Court now turns.
An ALJ’s duty is to evaluate all medical opinions in the record, assign weight to each
opinion and discuss the weight given to the opinion. See 20 C.F.R. §§ 416.927(c),
416.927(e)(2)(ii); Keyes–Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). Where the
ALJ decides “the treating physician’s opinion is not entitled to controlling weight, the ALJ must
then consider whether the opinion should be rejected altogether or assigned some lesser weight.”
Id. If the ALJ declines to afford controlling weight to a treating physician, the ALJ “must”
consider the following specific factors:
(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.
Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995)(“the ALJ
must consider the following specific factors in [20 C.F.R. §§ 416.927(c)] to determine what
weight to give any medical opinion”); Lawton v. Barnhart, 121 F. App’x 364, 372 (10th Cir.
2005) (same); see also Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (internal
quotation marks omitted).3
“Under the regulations, the agency rulings, and our case law, an ALJ must give good
reasons for the weight assigned to a treating physician’s opinion.” Langley v. Barnhart, 373 F.3d
1116, 1119 (10th Cir.2004) (ellipsis omitted) (internal quotation marks omitted); see 20 C.F.R.
416.927(c)(2). The reasons must be “sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source's medical opinion and the reason
for that weight.” Langley, 373 F.3d at 1119 (internal quotation marks omitted). “If the ALJ
rejects the opinion completely, [s]he must then give specific, legitimate reasons for doing so.” Id.
(brackets omitted) (internal quotation marks omitted). And if an ALJ fails to explain how she
assessed the weight of the treating physician’s opinion, a court cannot presume she actually
applied the correct legal standards when considering the opinion. Robinson v. Barnhart, 366 F.3d
1078, 1083 (10th Cir. 2004).
In challenging the ALJ’s analysis, Plaintiff contends that the ALJ failed to apply binding
Tenth Circuit law—i.e., that a treating physician’s opinion is generally afforded controlling
weight upon two conditions being met. See Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir.
2007) (A treating physician's opinion is generally entitled to controlling weight if it “is  well
Note: Although the ALJ must consider the factors in 20 C.F.R. 416.927(c), the ALJ need not
address every factor when the factor does not “apply” in the “case.” Oldham v. Astrue, 509 F.3d
1254, 1258 (10th Cir. 2007). Where the factor does apply, however, failure to address same
constitutes legal error and warrants reversal and remand. Goatcher, 52 F.3d at 290; see also
Keyes–Zachary, 695 F.3d at 1161.
supported by medically acceptable clinical and laboratory diagnostic techniques and  is
consistent with the other substantial evidence in the record.”)
Here, Dr. Gessner was Plaintiff’s treating physician from February 15, 2012 through May
22, 2014. (AR 548-658, 859-897, and 534- 541). He diagnosed Plaintiff with interstitial cystitis
(“IC”)—a condition, inter alia, that requires frequency of urination and pressure on the patient’s
bladder. Plaintiff argues that Dr. Gessner’s opinion—being a treating physician—should have
been afforded controlling weight.
As to the first Pisciotta prong, the record reveals that test results of Plaintiff’s bladder and
urine were abnormal. Indeed, tests of urine have been positive for blood, nitrites and
urobilinogen. (AR 390, 397 and 412). In a report dated October 17, 2012, the University of
Colorado expressly states under the header, “Diagnostic Tests,” that Plaintiff was “positive for
blood.” (AR 390). Such tests led to Plaintiff use of urinary medications.4 (430). And while the
ALJ makes no mention to these precise tests or medications, it is assumed that they were
reviewed in detail since the ALJ found that IC was severe impairment at step two of the
sequential evaluation process. (AR 40). As such, there is little doubt that there is clinical and
diagnostic data to support Plaintiff’s condition as reported by Dr. Gessner.
As to the second Pisciotta prong, there is substantial evidence in the record from other
medical providers to support Dr. Gessner’s medical opinion. For example, Andrew Windsperger,
M.D. stated that Plaintiff exhibited symptoms of IC, thus supporting Dr. Gessner’s diagnosis
(AR 45). Similarly, Wayne Furr, M.D.—a specialist in gynecology—treating Plaintiff on
These medications included Terazosin, among others. (AR 899).
numerous occasions5 supports Dr. Gessner’s opinion. Tellingly, Dr. Furr was in agreement with
Dr. Gessner as to not only Plaintiff’s IC symptoms, but the limitations that would flow from
same. (AR 46).
In light of the above, the Court finds it hard to fathom how the ALJ did not find that Dr.
Gessner’s opinion should be afforded controlling weight—consistent with Pisciotta and the SSA
regulations themselves. See generally 20 C.F.R. § 416.927.
Even so, assuming arguendo that the Court is wrong in its conclusion vis-à-vis
controlling weight, there is nothing of substance in the ALJ’s decision that demonstrates that a
multifactor analysis was undertaken in accordance with § 416.927(c)(2) (i.e., the analysis
undertaken if the ALJ declines to afford a treating physician’s opinion controlling weight).
Defendant suggests that the multiple factors were assessed when weight was apportioned to Dr.
Gessner, but this nothing more than post-hoc analysis. (Resp. at 15). Indeed, the ALJ’s decision
must be evaluated based solely on the reasons articulated by the ALJ himself—not alternative
bases posited by Defendant in response briefing, well after a decision has been made. Such post
hoc rationalizations are inappropriate. See Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir.
2005); see also Barnhart, 357 F.3d at 1142 (“Affirming this post hoc effort to salvage the ALJ's
decision would require us to overstep our institutional role and usurp essential functions
committed in the first instance to the administrative process.”).
In sum, the errors in analyzing Dr. Gessner’s opinion warrant reversal and remand.
See AR 430-35, 492-512, 854-58, 547, and 839-49.
B. Remaining Issues
Plaintiff raises additional issues related to the sufficiency of the underlying proceedings.
Because the Court finds that the ALJ’s treating physician analysis is deficient in several respects,
the Court finds that correction of these errors could well alter the ALJ’s analysis of other
evidence in the record on remand. For example, Dr. Furr’s opinion was afforded “little weight”
(AR 46)—yet on reconsideration of same, the ALJ may find that Dr. Furr’s opinion is consistent
with Dr. Gessner and thus deserving of further weight. This will be left to the ALJ to consider in
accordance with this opinion. Additionally, and it is worth noting, that if the ALJ affords
heighted weight to Drs. Gessner and. Furr, this will likely alter the current RFC statement—a
statement that Plaintiff squarely challenges in her briefing. 6 Because of these shifting sands on
remand, the Court declines to address this issue at this time; though strongly recommends it be
addressed in detail by the ALJ. See Madrid v. Barnhart, 447 F.3d 788, 792 (10th Cir. 2006)
(when the ALJ’s error affected the analysis as a whole, court declined to address other issues).
For the reasons set forth above, the Commissioner’s decision is REVERSED and
this case is REMANDED to the Commissioner for rehearing.
Accordingly, it is
ORDERED that the Commissioner’s decision is REVERSED and this case is
REMANDED to the Commissioner for rehearing in accordance with this Order. It is further
The RFC assessment is made by the ALJ “based on all the relevant evidence in [the claimant's]
case record.” 20 C.F.R. § 404.1545(a)(1). Examples of the types of evidence required to be
considered in making an RFC assessment are the claimant's medical history, medical signs and
laboratory findings, and medical source statements. SSR 96–8p (July 2, 1996).
ORDERED that Plaintiff is awarded costs pursuant to Fed. R. Civ. P. 54(d)(1) and
Dated this 8th day of March, 2018.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?