Nurre v. Colvin

Filing 26

ORDER: the decision of the Commissioner is REVERSED and REMANDED for further findings. by Judge R. Brooke Jackson on 5/30/17. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 16-cv-01262-RBJ
BRENDA R. NURRE,
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 Brenda Nurre’s application for Disability Insurance
Benefits (“DIB”) under Title II of the Social Security Act. Jurisdiction is proper under 42 U.S.C.
§ 405(g). For the reasons 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
evidence in the record.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Substantial

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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
Ms. Nurre was born on February 25, 1977. R. 1894. She has a bachelor’s degree and
speaks English. Id.; R. 30. In the past, Ms. Nurre worked as an administrative assistant, bank
cashier/teller, and counter clerk. R. 1894. She also served a brief stint in the military. See R.
100. However, since her alleged disability onset date of July 1, 2008 through her date last
insured of March 31, 2009, Ms. Nurre has not held substantial gainful employment. R. 1886.
According to the record, Ms. Nurre suffers from numerous medical conditions, including
the following: “history of partial tear of supraspinatus muscle; status post right knee injury;
lumbrosacral strain; right tronchanteric bursitis; migraines; major depression; anxiety disorder;
premenstrual dysphoric disorder (PMDD)[.]” See, e.g., R. 1886.
A. Procedural History
On September 17, 2009 Ms. Nurre filed an application for DIB, alleging disability
beginning on July 1, 2008. See R. 13, 100–04. Her claims were initially denied on June 7, 2010.
R. 13, 58–60. Ms. Nurre subsequently requested a hearing, which was held before
Administrative Law Judge (“ALJ”) E. William Shaffer on July 19, 2011. R. 27–42. The ALJ
denied Ms. Nurre’s application on September 16, 2011. R. 13–23. Ms. Nurre then filed a
request for review with the Appeals Council. See R. 7–9. The Appeals Council rejected Ms.
Nurre appeal on September 26, 2012. R. 1–6. The ALJ’s decision, however, was subsequently

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reversed and remanded on March 31, 2014 by my colleague, Judge Philip Brimmer. R. 1969–
80; Nurre v. Colvin, 12-CV-03060-PAB, 2014 WL 1292878, at *6 (D. Colo. Mar. 31, 2014).
Plaintiff subsequently had a second hearing. R. 1902–30. In a remarkably similarly
decision to his first (almost word for word in parts), the ALJ again found that plaintiff did not
suffer from a disability. R. 1884–95. Plaintiff subsequently appealed that second decision to the
Appeals Council, which again denied her appeal. R. 1856–64. Ms. Nurre then filed her case in
this Court on May 25, 2016. ECF No. 1.
B. The ALJ’s Decision
The ALJ issued a second unfavorable decision after evaluating the evidence according to
the SSA’s standard five-step process. R. 1884–95. First, the ALJ found that Ms. Nurre had not
engaged in substantial gainful activity since her alleged onset date of July 1, 2008. R. 1886. At
step two, the ALJ found that Ms. Nurre had the following severe impairments: “history of partial
supraspinatus tear; status post right knee injury; lumbosacral strain; right tronchanteric bursitis;
migraines; major depression; anxiety disorder; premenstrual dysphoric disorder (PMDD)[.]” Id.
At step three, the ALJ concluded that Ms. Nurre did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. Id.
The ALJ then found that Ms. Nurre retained the residual functional capacity (“RFC”) to
perform “light work” as defined in 20 C.F.R. § 404.1567(b) with the following limitations:
The claimant could stand/walk and sit each six hours of an eight-hour workday,
could push and pull with upper and lower extremities within the light exertional
level, could not climb ladders, ropes or scaffolds, could occasionally stoop, kneel,
crouch and crawl, and needed to avoid concentrated exposure to temperature
extremes, vibrations, unprotected heights and unprotected running or operating
major manufacturing machinery. The claimant could perform unskilled work.
The claimant required decreased interpersonal contact with the general public, coworkers and supervisors no more than occasionally during the workday. For
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purposes of the claimant’s residual functional capacity, “occasional” means very
little up to one-third of the time.
R. 1888.
At step four, the ALJ concluded that Ms. Nurre was not capable of performing any of her
past relevant work. R. 1894. Nevertheless, at step five, the ALJ determined that there were
other jobs in the national economy that Ms. Nurre could perform, such as a mail clerk (nonpostal), electronics worker, and a small product assembler. R. 1895. Accordingly, the ALJ
found that Ms. Nurre was not disabled. Id.
III. ANALYSIS
Ms. Nurre makes four arguments on appeal. First, she contends that the ALJ did not
properly evaluate the opinions of Dr. Steven Bonney and Dr. Nancy Franzoso. ECF No. 12 at
20–28. Second, she argues that the ALJ did not have valid reasons for giving greater weight to
the opinions about plaintiff’s mental limitations by non-examining physicians compared to those
by plaintiff’s treating sources. Id. at 29–31. Third, she argues the ALJ failed to properly
consider and assess the limiting effects of plaintiff’s migraines. Id. at 32–34. And finally, she
contends that the ALJ improperly failed to follow the mental limitations contained within the
opinions to which he afforded the most weight. Id. at 34–37. Finding that at least plaintiff’s first
argument is persuasive and warrants reversal, the Court REVERSES and REMANDS the
Commissioner’s decision. 1

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Finding plaintiff’s first argument for reversal persuasive and acknowledging that plaintiff’s other
arguments (namely, plaintiff’s second argument) hinge on the ALJ’s assessment of the opinions of Dr.
Bonney and Dr. Franzoso, the Court does not reach plaintiff’s remaining arguments on appeal. See
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.”). On
remand, however, the Court recommends that the ALJ evaluate all of the issues plaintiff has raised.
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A. The ALJ Improperly Assessed the Opinions of Dr. Bonney.
An ALJ is required to review and assign “weight” to every medical opinion contained in
the record. See 20 C.F.R. § 404.1527(c) (“Regardless of its source, we will evaluate every
medical opinion we receive). “Weight” is assigned according to the six factors and framework
set out in 20 C.F.R. § 404.1527(c). Although an ALJ need not recite and assess each one of
those six factors with respect to every opinion in the record, the ALJ “must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the . . .
opinion and the reasons for that weight.” See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th
Cir. 2003) (finding that “the ALJ offered no explanation for the weight, if any, he gave to . . .
[the plaintiff’s] treating physician” and that a remand was therefore warranted). Those reasons,
however, must be “good ones.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
Here, the ALJ provided four main reasons for rejecting Dr. Bonney’s opinions about
plaintiff’s mental condition. 2 First, he found Dr. Bonney’s opinions were inconsistent with
respect to how long plaintiff suffered from “severe” limitations. R. 1891. Second, he explained
that the persuasiveness of Dr. Bonney’s opinions was weakened because, in the ALJ’s opinion, a
person with the limitations Dr. Bonney ascribed to plaintiff would normally be expected to be
institutionalized. Id. Third, he rejected Dr. Bonney’s opinions as mere “check form” ones. Id.
And finally, the ALJ explained that he assigned these opinions “little weight” because Dr.
Bonney’s notes and other evidence did not support the limitations he assigned to plaintiff. Id.

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Defendant tries to save the ALJ’s decision by arguing that the ALJ properly rejected Dr. Bonney’s
opinions because they relied entirely on plaintiff’s subjective complaints. See ECF No. 13 at 9. The ALJ,
however, did not make this fifth argument for rejecting Dr. Bonney’s opinions in his decision. Thus, this
argument is a post hoc attempt to save the ALJ’s decision and is one I cannot therefore consider. Grogan
v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005) (“[T]he district court may not create post-hoc
rationalizations to explain the Commissioner’s treatment of evidence when that treatment is not apparent
from the Commissioner’s decision itself.”) (citations omitted).
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While those reasons for giving Dr. Bonney’s opinions “little weight” are for the most part
clear enough, but see infra note 3, I nevertheless find that reversal is warranted because I am not
able to conclude that they are “good reasons.” See Doyal v. Barnhart, 331 F.3d 758, 762 (10th
Cir. 2003) (“[T]he regulations require that the ALJ ‘give good reasons’ in the notice of
determination or opinion for the weight that is given the treating physician’s opinion.”); Drapeau
v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (quotation omitted) (“When an ALJ decides
to disregard a medical report by a claimant’s physician, he must set forth ‘specific, legitimate
reasons’ for his decision.”) (emphasis added).
For starters, the ALJ’s decision is simply wrong that Dr. Bonney’s opinions on plaintiff’s
condition are internally inconsistent on how long plaintiff has suffered severe limitations. The
basis for that finding appears to the ALJ’s contrasting Dr. Bonney’s opinion in July of 2010 that
plaintiff’s mental impartments could be characterized at certain levels of severity since February
2007 with Dr. Bonney’s later opinion in June of 2011 that plaintiff was unable to complete fulltime work and needed to be off task for 99% of the day since February 2009. Compare R. 1387–
89 with R. 1850–51. In his latter opinion, however, Dr. Bonney explained that it was the
frequency of plaintiff’s bouts of depression that had worsened such that by February of 2009
plaintiff “was constantly and severely depressed” and could not attend work. R. 1851 (emphasis
added). Given that explanation, Dr. Bonney’s two opinions actually coincide—plaintiff suffered
from intermittent impairments since February of 2007 that increased in frequency starting in
2009. See id. The severity of these impairments, however, remained unchanged. See id.; R.
1850 (answering “yes” to the question of “whether the patient’s mental impairment remains at
the same severity since you complete[d] the form dated” July 13, 2010).

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Next, the ALJ contends that Dr. Bonney’s opinion lacks credibility because “an
individual with the level of limitations assessed in [his] July 2010 opinion would normally be
expected to be institutionalized.” R. 1891.

It is not clear from what source the ALJ draws

support for that comment. It seems to be simply the ALJ’s opinion, and if so, it is of
questionable significance. See McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (“In
choosing to reject the treating physician’s assessment, an ALJ may not make speculative
inferences from medical reports and may reject a treating physician’s opinion outright only on
the basis of contradictory medical evidence and not due to his or her own credibility judgments,
speculation or lay opinion.”) (emphasis in original) (internal quotation marks and citation
omitted).
The ALJ’s third reason—that Dr. Bonney’s opinions are mere “check forms”—is
undermined by the record. See R. 1387 (providing narrative explanation of the “clinical signs
and examination findings” Dr. Bonney observed that led to his opinion).
The ALJ’s fourth argument is that Dr. Bonney’s limitations are not supported by his own
notes and other evidence. I tend to agree with the plaintiff here that in reaching this conclusion
the ALJ cherry-picked from Dr. Bonney’s observations and the record. For instance, the ALJ
points out that Dr. Bonney apparently observed in January 2009 that plaintiff’s sleep had
improved substantially, and that this observation undermined his ultimate conclusion. 3

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I use the word “apparently” because the ALJ cites “Exhibit 5F” as the source for this piece of evidence.
“Exhibit 5F,” however, is over 1,000 pages long. See R. 281–1378. After glancing through this part of
the record, I am unable to find what page the ALJ is referencing here. See Phillips v. Colvin, 67 F. Supp.
3d 1286, 1291 (D. Colo. 2014) (“Although the ALJ claimed that [the physician’s] treatment notes did not
support the limitations he imposed, he failed to explain that conclusion with specific reference to the
evidence. Instead, he cited the entirety of Exhibit 3F, a document comprising more than 100 pages of
treatment notes . . . . Just as ‘[j]udges are not like pigs, hunting for truffles buried in briefs,’ . . . this court
is neither authorized nor inclined to search the administrative record in search of evidence which might
lend support to the ALJ’s decision.”) (quoting Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th
Cir. 1995)).
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However, on January 20, 2009 Dr. Bonney stated that plaintiff “reported poor sleep [with]
insomnia and wakening in the night”—an observation supportive of Dr. Bonney’s opinions that
the ALJ did not note. R. 1267; see also R. 1207 (reporting on March 31, 2009 that plaintiff’s
mood was “profoundly depressed and her affect restricted with frequent tears and handwringing”).
B. The ALJ Improperly Assessed the Opinion of Dr. Franzoso.
Plaintiff argues that the ALJ improperly rejected the opinion of Dr. Franzoso in reaching
his decision of no disability. I agree. With respect to Dr. Franzoso’s opinion that plaintiff was
profoundly depressed, the ALJ gave but one reason for assigning that opinion “limited weight:”
it was inconsistent with some of Dr. Franzoso and Dr. Bronney’s descriptions of plaintiff. R.
1892. That is, Dr. Franzoso’s opinion was inconsistent with his description of her as “generally
polite, cooperative and apologetic” and Dr. Bonney’s descriptions of plaintiff as “pleasant and
conversational.” See id. In reaching that conclusion, the ALJ essentially disregards contrary
medical evidence in the record that plaintiff did in fact suffer from severe depression. See, e.g.,
R. 1204–08. I find that a remand is warranted for that additional reason as well.
ORDER
For the reasons described above, the Court REVERSES and REMANDS the
Commissioner’s decision denying Ms. Nurre’s application for Disability Insurance Benefits.
DATED this 30th day of May, 2017.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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