Parker v. Colvin et al

Filing 20

ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE. ORDERED: The Commissioner's decision is VACATED and this case is REMANDED to the Commissioner for rehearing, by Judge William J. Martinez on 8/3/2017. (dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-2378-WJM
KELLY RENEE PARKER,
Plaintiff,
v.
NANCY BERRYHILL,1 Acting Commissioner of Social Security,
Defendants.

ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE

This is a social security benefits appeal under 42 U.S.C. § 405(g). Plaintiff Kelly
Renee Parker (“Parker”) challenges the final decision of Defendant, the Commissioner
of Social Security (“Commissioner”), denying her application for disability insurance
benefits. The denial was affirmed by an administrative law judge (“ALJ”), who ruled that
Parker was not disabled within the meaning of the Social Security Act. This appeal
followed.
For the reasons set forth below, the ALJ’s decision denying Parker’s application
for disability insurance benefits is VACATED and the case is REMANDED for further
proceedings consistent with this Order.
I. BACKGROUND
Parker was born in 1966, and was 44 years old on the alleged disability onset
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).

date. (Admin. Record (“R.”) (ECF No. 11) at 62.) Parker completed high school and
has previously worked as a disability advocate, advocacy coordinator, and mental
health advocate. (R. at 76–77.)
Parker filed an application for a period of disability and disability insurance
benefits on February 7, 2013, alleging that she has been disabled since June 1, 2011
due to multiple impairments, including: fibromyalgia, PTSD, depression, lupus, epilepsy,
anxiety, seizures, back pain, and leg pain. (R. at 61–63.) Parker’s application was
initially denied and she requested an administrative hearing in front of an ALJ, which
was held on February 26, 2015. (R. at 44, 77.) On March 30, 2015, the ALJ, Debra
Boudreau, issued a written decision in accordance with the Commissioner’s five-step
sequential evaluation process. (R. at 27–39.) 2
At step one, the ALJ found that Parker had not engaged in substantial gainful
activity since the alleged onset date. (R. at 29.)
At step two, the ALJ found that Parker suffered from the following severe
impairments: fibromyalgia, obesity, seizure disorder, PTSD, and depressive disorder.
(Id.)
At step three, the ALJ found that Parker’s impairments, while severe, did not
meet or medically equal any of the listed impairments listed in the Social Security

2

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
his 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).

2

regulations. (R. at 30.)
Before proceeding to step four, the ALJ assessed Parker’s residual functional
capacity (“RFC”). The ALJ concluded that Parker has the RFC to “perf orm a range of
light work[,]” specifically:
The claimant is able to occasionally lift and/or carry up to 20
pounds; frequently lift and/or carry up to 10 pounds. She
can stand and/or walk for about 6 hours in an 8-hour
workday and is able to sit for 6 hours in an 8-hour workday.
She is unable to climb ladders but can frequently climb stairs
and balance. The claimant is able to occasionally stoop,
kneel, crouch, and crawl. She should never work at
unprotected heights or in close proximity to dangerous
moving machinery. She cannot engage in any commercial
driving. From a mental standpoint, the claimant is able to
understand and remember moderately complex instructions
that can be learned and mastered within three months. She
is able to sustain concentration, persistence, and pace f or
those instructions as long as social interactions are not
frequent or prolonged. In that environment, she is able to
tolerate work changes that are typical of the low end of semiskilled work; plan and set goals; tolerate supervision; and
recognize and avoid work hazards.
(R. at 32.)
Next, at step four, the ALJ concluded that Parker “is unable to perf orm any past
relevant work.” (R. at 37.) Thus, the ALJ proceeded to step five and found that there
was work Parker could perform in the national and regional economy, specifically, the
unskilled jobs of outside deliverer (SVP-2), small parts assembler (SVP-2), and
surveillance system monitor (SVP-2). (R. at 37–38.) 3

3

Specific Vocational Preparation (“SVP”) is defined as the amount of lapsed time
required by a typical worker to learn the techniques, acquire the information, and develop the
facility needed for average performance in a specific job-worker situation.” Dictionary of
Occupational Titles (“DOT”), App.C.II., 1991 WL 688702 (4th ed. 1991). The DOT lists an SVP
time for each described occupation. See Social Security Ruling (“SSR”) 00-4p, 2000 WL
1898704, at *3 (Dec. 4, 2000). “Unskilled work corresponds to an SVP of 1–2; semi-skilled

3

Accordingly, the ALJ found that Parker was not entitled to disability insurance
benefits. (R. at 39.) Parker appealed to the Social Security Appeals Council, which
denied review. (R. at 1–4.) Parker then timely filed this action seeking review of the
ALJ’s March 30, 2015 decision. (ECF No. 1.)
II. STANDARD OF REVIEW
The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct
legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id. “It requires more than a scintilla, but less than a
preponderance.” Lax, 489 F.3d at 1084. Evidence is not substantial if it is
overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257,
1261–62 (10th Cir. 2005). In reviewing the Commissioner’s decision, the Court may
neither reweigh the evidence nor substitute its judgment for that of the agency. Salazar
v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). However, the Court will “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 v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). 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).

work corresponds to an SVP of 3–4; and skilled work corresponds to an SVP of 5–9 in the
DOT.” Id. Thus, the jobs identified by the ALJ are categorized as unskilled. (See R. at 38.)

4

III. ANALYSIS
On appeal, Parker makes a number of arguments as to why the ALJ and
Appeals Council decisions should be reversed: (1) “the ALJ failed in her duty to develop
the record”; (2) “the Appeals Council erred in failing to reverse and remand to the ALJ
based on the new and material evidence it was provided”; (3) “the ALJ failed to evaluate
Ms. Parker’s fibromyalgia as required by Social Security Ruling [(“SSR”)] 12-2p”;
(4) “the ALJ failed to consider whether Ms. Parker’s seizure disorder met or medically
equaled Listings 11.02 or 11.03”; (5) “the ALJ did not base her f indings regarding Ms.
Parker’s credibility in substantial evidence”; and (6) “the ALJ made inconsistent findings
at Step 5 when she found that Ms. Parker could work as an ‘outside deliverer’ even
though she was restricted from driving due to her seizure disorder, and failed to resolve
the inconsistencies between the vocational expert’s testimony and the DOT.” (ECF No.
14 at 18–32.)
The Court finds Parker’s second argument persuasive.4 Social Security
claimants may submit new evidence when seeking review from the Appeals Council, so
long as such evidence is “new and material” and “relates to the period on or before the
date of the administrative law judge hearing decision.” 20 C.F.R. § 404.970(b). The
Appeals Council “will then review the case if it finds that the [ALJ’s] action, findings, or
conclusion is contrary to the weight of the evidence currently of record.” Id.

4

Because this error alone requires remand the Court does not address the other
arguments raised by Parker. See Madrid v. Barnhart, 447 F.3d 788, 792 (10th Cir. 2006);
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.”).

5

Here, the Appeals Council specified that the treatment records from Dr. Mitchell
Burnbaum, Dr. Susan Bright, Colorado West Ophthalmology Associates, St. Mary’s
Hospital and Regional Medical Center, Arthritis Center of Colorado, Pelvic Health
Wellness Center, Grand Valley Neurology, and Delta Family Physicians qualified as
new, material, and chronologically relevant evidence. (R. at 6–7.) 5 The Appeals
Council further stated that these new treatment records were being made part of the
record. (R. at 6.)6
As a result, the Appeals Council was required to consider these new treatment
records as part of its “evaluat[ion of] the entire record” to determine whether to “review
the case.” 20 C.F.R. § 404.970(b). Thus, the Appeals Council noted that it “considered
the reasons [Parker] disagrees with the [ALJ’s] decision and the additional evidence”
but ultimately concluded that “this information does not provide a basis for changing the
[ALJ’s] decision.” (R. at 2.)
Parker now contends that “[t]he Commissioner acknowledges that some of the
ALJ’s findings regarding credibility are no longer supported in light of the new evidence
submitted to the Appeals Council . . . [and that a]t least a rem and is required for
consideration of credibility in light of this new evidence.” (ECF No. 16 at 6.) Parker
further argues that the “new and material evidence was directly contradictory to the

5

The Appeals Council, however, noted that it did not consider the records from Grand
Valley Neurology dated May 12, 2015, and the treatment records from Dr. Bright dated July 7,
2015, because “this new information is about a later time.” (R. at 2.)
6

“Because the Appeals Council considered these new treatment records, the records
are a ‘part of the administrative record to be considered [by this Court] when evaluating [the
ALJ’s] decision for substantial evidence.’” Martinez v. Barnhart, 444 F.3d 1201, 1208 (10th Cir.
2006) (quoting O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994)).

6

ALJ’s conclusions that Ms. Parker’s treatment was ‘sporadic,’ and that she had not
‘followed through’ on referrals to specialists, findings that directly impacted her finding
that Ms. Parker was not disabled.” (ECF No. 14 at 24.) The Commissioner responds
that “[w]hile the Appeals Council evidence undercut a handful of additional factors
considered by the ALJ . . . [nonetheless,] the Appeals Council ev idence did not indicate
changes in the period preceding the hearing that undercut any of the [ALJ’s] rationales
for discrediting Plaintiff’s subjective claims of disabling impairments.” (ECF No. 15 at
20–21.)
After considering the entire record, including the new treatment records before
the Appeals Council, the Court finds that it cannot agree with the Commissioner’s
argument regarding the effect of the new evidence. In the Court’s view, these new
treatment records undermine the ALJ’s assessment of Parker’s credibility, such that the
ALJ’s disability determination is no longer supported by substantial evidence. (See R.
at 33–37.)
In her March 30, 2015 decision, the ALJ stated that “[t]he claim ant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.” (R. at 34) However, a few
of those “reasons” noted by the ALJ have now been directly contradicted by the new
evidence submitted before the Appeals Council. For example, when assessing
Parker’s credibility, the ALJ noted that Parker’s “treatment history reflects sporadic
treatment, extended treatment gaps, and subjective complaints that are not consistent
with her allegations . . . [and] the record reflects a significant treatment gap since June
2013, which also suggests her pain is better-controlled than she alleges.” (R. at
7

34–35.) The new evidence submitted before the Appeals Council includes treatment
records dated 2014 through 2015 from Parker’s primary care physician, Dr. Susan
Bright; Parker’s neurologist, Dr. Joel Dean; Parker’s rheumatologist, Dr. Jessica Mears;
Parker’s ophthalmologist, Dr. Christopher Huot; and Parker’s gynecologist, Dr. Mark
Nishiya. (R. at 456–603.) Thus, the new evidence contradicts the ALJ’s finding of an
“extended treatment gap.”
The ALJ also noted that Parker “has not followed through with referrals to
rheumatology or physical therapy.” (R. at 35.) However, the new treatment records
reflect that Parker was seen by a rheumatologist, Dr. Mears, on at least four occasions
in 2014. (R. at 460–484.) The ALJ further found that the “[t]reatment records do not
reflect that the claimant has abnormal gait, limited range of motion, redness, or swelling
of significance.” (R. at 34.) However, Dr. Mears’s treatment notes repeatedly reflect
objective observations of swelling in all metacarpophalangeal joints, and as for range of
motion in the right and left knees, Dr. Mears notes that “extension elicits pain [upon]
inspection and palpation.” (R. at 470, 476, 482.)
In assessing Parker’s credibility the ALJ also considered the medical opinions of
record, including the consultative examiner Dr. Bret Barney, who opined that Parker has
minor manipulative limitations. (R. at 36, 433.) The ALJ gave Dr. Barney’s opinion
“some weight,” noting that the “undersigned does not accept that the claimant has
manipulative limitations—the record does not reflect that she has treated for, or even
complained of, hand pain of significance.” (R. at 36–37.) However, the treatment
records from Dr. Mears notes that Parker complained of joint stiffness, weakness, and
tenderness in her fingers on at least three occasions. (R. at 460, 468, 474.)
8

The Commissioner argues that the ALJ “provided a number of [other] good
reasons grounded in record evidence for finding that [Parker’s] complaints of disabling
pain, depression, and anxiety were not fully disabling” . . . [and] “the majority of them
remain supported by substantial evidence[.]” (ECF No. 15 at 18.) However, the Court
notes that “[b]ecause a credibility assessment requires consideration of all the factors
‘in combination,’ when several of the factors relied upon by the ALJ are found to be
unsupported or contradicted by the record, we are precluded from weighing the
remaining factors to determine whether they, in themselves, are sufficient to support”
the credibility determination. Bakalarski v. Apfel, 131 F.3d 151, at *3 (10th Cir. Dec. 3,
1997) (table decision) (quoting Huston v. Bowen, 383 F.2d 1125, 1132 (10th Cir.
1988)). Accordingly, this case must be remanded for a reevaluation of Parker’s
subjective complaints in light of the new evidence submitted before the Appeals
Council.7 Thus, the Court finds that the Appeals Council erred in failing to remand the
matter to the ALJ for consideration of this new evidence.

7

On March 28, 2016, the Commissioner issued a new SSR addressing the evaluation of
symptoms in disability claims. SSR 16-3p, 81 Fed. Reg. 14166 (Mar. 28, 2016). The new
Ruling supersedes SSR 96-7p by “eliminating the use of the term ‘credibility’ from our subregulatory policy . . . . In doing so, we clarify that subjective symptom evaluation is not an
examination of an individual’s character.” Id. at 14167. ALJ’s are now instructed to consider an
individual’s statements about the intensity, persistence, and limiting effects of symptoms, and to
evaluate whether the statements are consistent with objective medical evidence and other
evidence in the record. Id. at 14169. In determining whether the individual’s symptoms and
related limitations are consistent with the evidence in his or her record, the ALJs must explain
which symptoms they found consistent or inconsistent and explain how their evaluation of the
individual’s symptoms led to their conclusion. Id. at 14170. As Parker correctly notes, SSR 163p is now binding on all components of the Social Security Administration. (ECF 16 at 7); See
also 20 C.F.R. § 402.35(b) (“These rulings represent precedent final opinions and orders and
statements of policy and interpretations that we have adopted.”). Accordingly, on remand, the
Court orders the ALJ to assess Parker’s subjective statements of her symptoms under the
criteria listed under SSR 16-3p.

9

Further, the Court does not intend by this opinion to suggest the results that
should be reached on remand; rather, the Court encourages the parties and the ALJ to
fully consider all of the evidence in the record and all issues raised anew on remand.
See Kepler v. Chater, 68 F.3d 387, 391–92 (10th Cir. 1995) (“W e do not dictate any
result [by remanding the case]. Our remand simply assures that the correct legal
standards are invoked in reaching a decision based on the facts of the case.” (internal
quotation marks omitted)).
IV. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is VACATED and
this case is REMANDED to the Commissioner for rehearing.
Dated this 3rd day of August, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

10