Pinard v. Colvin

Filing 21

OPINION AND ORDER re: 10 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Carolyn W. Colvin, by Magistrate Judge Michael J. Watanabe on 9/28/2017. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01120-MJW
CAROL PINARD,
Plaintiff,
v.
NANCY BERRYHILL1, Acting Commissioner of Social Security,
Defendant.
OPINION AND ORDER
MICHAEL J. WATANABE
United States Magistrate Judge
The government determined that Plaintiff is not disabled for purposes of
the Social Security Act. (AR2 25). Plaintiff has asked this Court to review that
decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties
have agreed to have this case decided by a U.S. Magistrate Judge under 28
U.S.C. § 636(c). (Docket No. 12).
Standard of Review
In Social Security appeals, the Court reviews the decision of the
administrative law judge (“ALJ”) to determine whether the factual findings are
supported by substantial evidence and whether the correct legal standards were
applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007).

1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 20,
2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill
is automatically substituted for Carolyn W. Colvin as the Defendant in this suit. See 42
U.S.C. § 405(g).
2
All references to “AR” refer to the sequentially numbered Administrative Record filed in
this case. (Docket Nos. 10 through 10-8).

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“Substantial evidence is such evidence as a reasonable mind might accept as
adequate to support a conclusion. It requires more than a scintilla, but less than
a preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009)
(internal quotation marks omitted). The Court “should, indeed must, exercise
common sense” and “cannot insist on technical perfection.” Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the
evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
Background
At the second step of the Commissioner’s five-step sequence for making
determinations,3 the ALJ found that Plaintiff “has the following severe
impairments: major depressive disorder (MDD), post-traumatic stress disorder
(PTSD), anxiety, and borderline personality disorder.” (AR 16). The ALJ then
determined that Plaintiff “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments” in the regulations. (AR 16). Because he concluded that Plaintiff did
not have an impairment or combination of impairments that meets the severity of
the listed impairments, the ALJ found that Plaintiff has the following residual
functional capacity (“RFC”):

3
The Social Security Administration uses a five-step sequential process for reviewing
disability claims. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 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 Cir. 2007).

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. . . [Plaintiff] has the residual functional capacity to perform a full
range of work at all exertion levels but with the following
nonexertional limitations: [Plaintiff] can perform unskilled work with
occasional interaction with co-workers, supervisors, and the public.
She should work primarily with objects rather than people.
(AR 17). The ALJ determined that “there are jobs that exist in significant
numbers in the national economy that [Plaintiff] can perform . . . .” (AR 24).
Plaintiff asserts four reversible errors: first, that the ALJ’s conclusion that
Plaintiff’s mental impairments did not meet the severity of the listings set forth at
20 C.F.R. Part 404, subpart P, App. 1, § 12.04; second, that the ALJ’s
determination regarding Plaintiff’s credibility was not supported by substantial
evidence; third, that the ALJ failed to give the proper weight to Dr. Grovert’s
opinion; and fourth, that the ALJ erred by concluding that there were jobs in the
national economy that Plaintiff could perform. (Docket No. 14 at 2).
Analysis
Plaintiff first argues that the ALJ erred when considering the listings set
forth at 20 C.F.R. Part 404, subpart P, App. 1, § 12.04 9 (“Listings”). Specifically,
Plaintiff maintains that “Listing 12.04 Paragraph C applies [ ] and any finding by
the ALJ other than one that [Plaintiff] meets or equals the Listing 12.04C is not
supported by substantial evidence.” (Docket No. 14 at 31).
For the relevant period, Listing 12.04 required Plaintiff to either meet the
requirements in both paragraphs A and B or to meet the requirements in
paragraph C. 20 C.F.R. Pt. 404, App. § 12.04 (effective Feb. 26, 2014 through
Dec. 8, 2014). The ALJ first considered paragraph B and then considered
paragraph C. (AR 16-17). The ALJ concluded that “[i]n this case, the evidence
fails to establish the presence of the ‘paragraph C’ criteria.” (AR 17). Plaintiff
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argues that the ALJ “made no findings . . . except to state that he had considered
it, to summarize its requirements, and to state that there was no evidence that
they applied.” (Docket No. 18 at 4).
For an ALJ to find that a severe impairment conclusively disables a
claimant at Step 3, the impairment must be “equivalent to one of a number of
listed impairments that the [Commissioner] acknowledges are so severe as to
preclude substantial gainful activity.” Williams v. Bowen, 844 F.2d 748, 751 (10th
Cir. 1988) (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)). “If the impairment is
listed and thus conclusively presumed to be disabling, the claimant is entitled to
benefits.” Id. “For a claimant to show that his impairment matches a listing, it
must meet all of the specified medical criteria. An impairment that manifests only
some of those criteria, no matter how severely, does not qualify.” Sullivan v.
Zebley, 493 U.S. 521, 530 (1990) (emphasis in original).
The ALJ must make his Step 3 determination solely on medical evidence.
See 20 C.F.R. § 404.1526(b). “[T]he step three analysis requires a comparison of
medical evidence regarding symptoms, signs, and laboratory findings with the
listed impairment sought to be established or the listed impairment most similar
to the claimant's.” Larson v. Chater, No. 95-2194, 1996 WL 709848, at *1 (10th
Cir. Dec.10, 1996). However, “an ALJ's findings at other steps of the sequential
process may provide a proper basis for upholding a step three conclusion that a
claimant’s impairments do not meet or equal any listed impairment.” FischerRoss v. Barnhart, 431 F.3d 729, 733 (10th Cir. 1995).

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Listing 12.04C, at the time of the ALJ’s decision, required Plaintiff to
satisfy the following requirements:
C. Medically documented history of a chronic affective disorder of
at least 2 years' duration that has caused more than a minimal limitation of
ability to do basic work activities, with symptoms or signs currently
attenuated by medication or psychosocial support, and one of the
following:
1.

Repeated episodes of decompensation, each of extended
duration; or

2.

A residual disease process that has resulted in such
marginal adjustment that even a minimal increase in
mental demands or change in the environment would be
predicted to cause the individual to decompensate; or

3.

Current history of 1 or more years' inability to function
outside a highly supportive living arrangement, with an
indication of continued need for such an arrangement.

20 C.F.R. Pt. 404, App. § 12.04 (effective Feb. 26, 2014 through Dec. 8, 2014).
With regard to Listing 12.04, the ALJ explained that “extended duration” “means
three episodes within 1 year or an average of once every 4 months, each lasting
for at least 2 weeks.” (AR 16). When considering Listing 12.04B, immediately
preceding the analysis of Listing 12.04C, the ALJ discussed Plaintiff’s testimony
and the exhibits and concluded that “the claimant has experienced no episodes
of decompensation, which have been of extended duration.” (AR 17). This
conclusion is supported by the record. As noted above, “an ALJ's findings at
other steps of the sequential process may provide a proper basis for upholding a
step three conclusion that a claimant's impairments do not meet or equal any
listed impairment.” Fischer-Ross, 431 F.3d at 733. Clearly then, the Court can

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credit the ALJ’s analysis of Listing 12.04B directly preceding his analysis of
Listing 12.04C.
With regard to Listings 12.04C2 and 12.04C3, the ALJ’s decision is less
clear. The ALJ restated the Listings themselves and stated that “[t]here is no
evidence” that Plaintiff’s symptoms meet the Listings, but he did not provide any
further analysis or discussion of the medical records as part of this analysis. (AR
17). The Court has reviewed the entire decision and there is discussion of the
various medical records and the weights the ALJ gave the various opinions
offered by certain medical providers. However, while the Court does not offer an
opinion as to the ALJ’s conclusion that “there is no evidence” that Plaintiff’s
symptoms meet Listing 12.04C, the Court cannot find specific stated support or
analysis for the ALJ’s conclusion that neither Listing 12.04C2 or 12.04C3 are
met.
For that reason, the Court concludes that this case must be remanded to
allow the ALJ to clarify his analysis under Listing 12.04C. Because the Court
concludes that this case must be remanded to allow the ALJ to clarify this issue
and further develop the record if necessary, the Court does not address the
remaining arguments raised by Plaintiff.

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Conclusion
For the reasons set forth above, the Commissioner’s decision is
VACATED and REMANDED for clarification of the Administrative Law Judge’s
analysis and such other proceedings as the Administrative Law Judge deems
appropriate.
Dated this 28th day of September, 2017.
BY THE COURT:
/s/ Michael J. Watanabe
MICHAEL J. WATANABE
United States Magistrate Judge

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