Warren v. Colvin

Filing 18

OPINION AND ORDER REVERSING AND REMANDING DISABILITY DETERMINATION by Chief Judge Marcia S. Krieger on 3/9/18. (pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 16-cv-02706-MSK
KURTIS S. WARREN,
Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration,
Defendant.

OPINION AND ORDER REVERSING AND REMANDING DISABILITY
DETERMINATION

THIS MATTER comes before the Court as an appeal from the Commissioner’s Final
Administrative Decision (“Decision”) determining that the Plaintiff Kurtis S. Warren is not
disabled within the meaning of §§216(i) and 223(d) of the Social Security Act. Having
considered all of the documents filed, including the record (#14), the Court now finds and
concludes as follows:
JURISDICTION
The Court has jurisdiction over an appeal from a final decision of the Commissioner
under 42 U.S.C. § 405(g). Mr. Warren sought disability insurance benefits under Title II of the
Social Security Act based on mental and physical impairments that rendered him unable to work
as of January 17, 2012. The state agency denied his claim. He requested a hearing before an
Administrative Law Judge (“ALJ”), who issued an unfavorable decision. Mr. Warren appealed
to the Appeals Council, which denied his request for review, making the ALJ’s determination the
final decision of the Commissioner. Mr. Warren timely appealed to this Court.
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STATEMENT OF FACTS
The Court offers a brief summary of the facts here and elaborates as necessary in its
analysis.
Mr. Warren was born on August 14, 1963. He only attended school to the tenth grade and
has worked as a plumber’s assistant and a construction worker. At the time of the Decision, he
worked part-time at an assisted living facility managed by his wife. He contends that physical
and mental impairments prevent him from working on a full-time basis.
Mr. Warren suffers from multiple physical impairments. In 2000, he underwent lumbar
fusion surgery and was diagnosed in 2012 with degenerative disc disease. In 2013, he strained
his lower back while lifting a stove and later began experiencing neck pain. He now has
difficulty lifting and bending and complains of constant neck and back pain, which also radiates
down his legs and to his toes. In 2008, he underwent total knee replacement surgery for his left
knee and arthroscopy for his right knee. However, he still complains of knee pain. In December
2011, he began receiving treatment for chronic shoulder pain and has undergone surgery on both
shoulders. He has diminished range of motion in each shoulder and began reporting in 2013 that
he suffered from increasing pain in them. Mr. Warren also suffers from obesity, coronary artery
disease, hypertension, diabetes mellitus, and colitis.
In addition to his physical impairments, Mr. Warren began suffering from anxiety and
depression in 2011. His primary care physician, Dr. Robert Heyl, diagnosed him with bipolar
affective disorder. Dr. Heyl attempted to treat Mr. Warren’s condition with a variety of
medications but had difficulty developing an effective treatment regimen. In 2013, Mr. Warren
began receiving treatment from Dr. Lori Raney, a psychiatrist. Dr. Raney questioned Dr. Heyl’s
bipolar diagnosis and diagnosed Mr. Warren with generalized anxiety disorder and post-

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traumatic stress disorder. Later, she determined that Mr. Warren suffered from major depression
and not post-traumatic stress disorder.
Treatment and Opinions by Treating Professionals
As stated, Dr. Raney began treating Mr. Warren in 2013. She filled out a Mental Residual
Functional Capacity Statement and a questionnaire in support of Mr. Warren’s disability claim.
She opined that Mr. Warren’s mental health prognosis was limited because of his poor response
to medication and that his abilities to understand, remember, and carry out very short and simple
instructions, to make simple work-related decisions, and to ask questions or request assistance
preclude his performance for 5% of an eight-hour working day; his abilities to remember
locations and work-like procedures, to work in coordination with or in proximity to others
without being distracted by them, to interact appropriately with the general public, to get along
with others without distracting them or exhibiting behavioral extremes, to maintain socially
appropriate behavior, to adhere to basic standards for neatness and cleanliness, to respond
appropriately to changes in the work setting, to be aware of normal hazards and take appropriate
precautions, and to travel in unfamiliar places or use public transportation preclude his
performance for 10% of an eight-hour working day; and his abilities to understand, remember,
and carry out very detailed instructions, to maintain attention and concentration for extended
periods of time, to perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances, to complete a normal workday and workweek without
interruptions from psychologically based symptoms and perform at a consistent pace without an
unreasonable number and length of rest periods, to accept instructions and respond appropriately
to criticism from supervisors, and to set realistic goals or make plans independently of others
preclude his performance for 15% or more of an eight-hour working day.

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Dr. Raney further opined that Mr. Warren would likely be absent from work five days or
more each month; he would be unable to complete an eight-hour working day five days or more
each month; and compared to an average worker, he could only be expected to perform a job less
than 50% of the time on a sustained basis.
Dr. Heyl has treated Mr. Warren since 2000 for his physical and mental impairments. Dr.
Heyl filled out a Physical Medical Source Statement in support of Mr. Warren’s disability claim.
According to Dr. Heyl, Mr. Warren can sit for one to two hours at one time, stand for twenty
minutes at one time, and sit and stand/walk for less than two hours total in an eight-hour working
day; he must be able to walk for three to five minutes every ten minutes; he requires four to six
unscheduled breaks during a workday that would each last for fifteen to twenty minutes; he is
unable to lift more than twenty-five pounds but can lift five pounds continuously, ten pounds
frequently, and twenty pounds occasionally; he can bend or stoop occasionally and reach rarely
but should never crawl, kneel, or climb stairs or ladders; while he can use his hands for simple
grasping, he cannot use them to push, pull, or finely manipulate objects; he cannot reach or work
above shoulder level; he cannot use his legs for repetitive movement. Dr. Heyl further opined
that Mr. Warren would be absent from work for four or more days per month.
Opinions by Non-treating Professionals
Dr. Eugene P. Toner performed an orthopedic consultative examination for Mr. Warren.
He noted that Mr. Warren has full range of motion in his spine, has no weakness to his upper or
lower extremities, but has diminished range of motion in his shoulders and neck. He opined that
Mr. Warren is not capable of squatting or kneeling, should avoid overhead work, and should not
lift more than thirty pounds.
Ed Cotgageorge, Ph.D performed a psychological consultative examination for Mr.

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Warren on September 19, 2013, shortly before Mr. Warren began receiving treatment from Dr.
Raney. Dr. Cotgageorge opined that Mr. Warren’s abilities to follow simple and complex
commands and procedures and to manage funds are intact; his ability to sustain attention and
concentration is mildly to moderately impaired; his persistence and pace are moderately impaired
primarily because of his physical impairments; and his abilities to adapt and to interact socially
are markedly impaired.
Dr. Mark Suyeishi, the state agency psychological consultant, reviewed Mr. Warren’s file
but did not examine him. He opined that Mr. Warren’s abilities to remember locations and worklike procedures to understand, remember, and carry out very short and simple instructions, to
perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances, to sustain an ordinary routine without special supervision, to work in
coordination with or in proximity to others without being distracted by them, to make simple
work-related decisions, to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods, to ask simple questions or request assistance, to get along with
coworkers or peers without distracting them or exhibiting behavioral extremes, and to maintain
socially appropriate behavior and to adhere to basic standards of neatness and cleanliness are not
significantly limited; and that his abilities to understand and remember detailed instructions, to
maintain attention and concentration for extended periods, and to interact appropriately with the
general public are moderately limited. He further opined that Mr. Warren can perform work that
does not involve significant complexity or judgment, which could require up to three months to
learn the necessary skills to perform, but that he should have limited interpersonal contact.

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THE ALJ’S DECISION
The ALJ analyzed his case pursuant to the sequential five-step inquiry. At step one, the
ALJ found that Mr. Warren had not worked or engaged in substantial gainful activity from the
alleged onset date of January 17, 2012. At step two, the ALJ found Mr. Warren had medically
severe impairments of bilateral rotator cuff syndrome with right biceps tendinosis, degenerative
disc disease of the lumber and cervical spine, status post left knee replacement for degenerative
joint disease, degenerative joint disease of the right knee, obesity, bipolar disorder, and
generalized anxiety disorder. At step three, the ALJ found that Mr. Warren’s impairments did
not equal the severity of a listed impairment in the appendix of the regulations. At step four, the
ALJ first assessed Mr. Warren’s Residual Functional Capacity (“RFC”) and determined that:
[Mr. Warren] has the residual functional capacity (see 20 CFR 404.1567(b)) to lift
and/ or carry up to 20 pounds occasionally and 10 pounds frequently. He can
stand and/ or walk for about six hours and sit for at least six hours in an eighthour workday. He can never climb ladders and can only occasionally climb stairs.
He is able to balance frequently and can occasionally stoop, kneel, crouch, and
crawl. He must avoid all exposure to work at unprotected heights and must avoid
more than occasional exposure to dangerous moving machinery. He is able to
understand, remember, and carry out moderately complex instructions that can be
learned and mastered within a three-month period. He is able to sustain
concentration, persistence, and pace for these instructions as long as social
interactions are not frequent or prolonged. In that environment, he is able to
tolerate work changes typical of the low end of semi-skilled work and can travel
and recognize and avoid work hazards.
The ALJ then found that Mr. Warren could not perform his past relevant work. However, at step
five, the ALJ found that Mr. Warren could perform jobs that exist in significant numbers in the
national economy, and thus, he was not disabled.
ISSUES PRESENTED
Mr. Warren raises multiple objections to the ALJ’s decision: (1) the ALJ failed to follow
the appropriate legal standard when determining what weight to assign to the opinions of Dr.
Raney, Dr. Heyl, Dr. Toner, and Dr. Cotgageorge ; (2) the ALJ’s RFC determination is not
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supported by substantial evidence; and (3) the ALJ improperly assessed the credibility of Mr.
Warren’s subjective complaints.
STANDARD OF REVIEW
On appeal, a reviewing court’s judicial review of the Commissioner of Social Security’s
determination that claimant is not disabled within the meaning of the Social Security Act is
limited to determining whether the Commissioner applied the correct legal standard and whether
the Commissioner’s decision is supported by substantial evidence. Hamilton v. Sec’y of Health
&Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990); Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). If the ALJ
failed to apply the correct legal standard, the decision must be reversed, regardless of whether
there was substantial evidence to support factual findings. Thompson v. Sullivan, 987 F.2d 1482,
1487 (10th Cir. 1993). In determining whether substantial evidence supports factual findings,
substantial evidence is evidence a reasonable mind would accept as adequate to support a
conclusion. Brown, 912 F.2d at 1196; Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). It
requires more than a scintilla but less than a preponderance of the evidence. Lax, 489 F.3d at
1084; 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). Although a reviewing court must
meticulously examine the record, it may not weigh the evidence or substitute its discretion for
that of the Commissioner. Id.
ANALYSIS
Mr. Warren argues that the ALJ failed to properly consider the opinions of Dr. Raney,
Dr. Heyl, Dr. Cotgageorge, and Dr. Toner. He argues that the ALJ failed to apply the correct

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legal standard to Dr. Raney’s and Dr. Heyl’s opinions and should have given them controlling
weight. He further argues that the ALJ failed to consider evidence supporting Dr. Cotgageorge’s
and Dr. Toner’s opinions. The Commissioner responds that the ALJ reasonably evaluated the
medical opinions and evidence when determining what weight to give Dr. Raney’s, Dr. Heyl’s,
Dr. Cotgageorge’s, and Dr. Toner’s opinions. The Court will only address the ALJ’s failure to
give Dr. Raney’s opinions controlling weight because it requires reversal and remand of this
matter.
A treating physician's opinion must be given controlling weight if (1) it is well supported
by medically acceptable clinical and laboratory diagnostic techniques and (2) it is consistent with
the other substantial evidence in the record. Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir.
2007). If either of these requirements is not satisfied, however, then the opinion is not accorded
controlling weight. To give a treating provider's opinion less than controlling weight, the ALJ
must give specific and legitimate reasons. Drapeau v. Massanri, 255 F.3d 1211 (10th Cir 2001).
This requires that the ALJ be specific in describing how the opinion is unsupported by clinical
and laboratory diagnostic techniques, or identify how it is inconsistent with substantial evidence
in the record. Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).
If a treating physician's opinion is not given controlling weight, its relative weight must
be assessed in comparison to other medical opinions in the record. The factors considered for
assessment of weight of all opinions are:
(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.

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Allman v. Colvin, 813 F.3d 1326, 1331–32 (10th Cir. 2016). None of these factors are
controlling; not all of them apply to every case, and an ALJ need not expressly discuss each
factor in his or her decision. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). However,
“the record must reflect that the ALJ considered every factor in the weight calculation.”
Andersen v. Astrue, 319 Fed. App’x 712, 718-19 (10th Cir. 2009)(emphasis in original). Finally,
just as when an ALJ determines whether to give a treating provider’s opinion controlling weight,
the ALJ must provide legitimate, specific reasons for the relative weight assigned. Langley, 373
F.3d at 1119.
There is no dispute that Dr. Raney was Mr. Warren’s treating physician. Dr. Raney
opined that Mr. Warren’s mental limitations impaired his abilities to understand, remember, and
carry out instructions, to make decisions, to ask questions or request assistance, to remember
locations and work-like procedures, to work in coordination with or in proximity to others, to
interact appropriately with the general public, to get along with others, to maintain socially
appropriate behavior, to adhere to basic standards for neatness and cleanliness, to respond
appropriately to changes in the work setting, to be aware of normal hazards and take appropriate
precautions, to travel in unfamiliar places or use public transportation, to maintain attention and
concentration for extended periods of time, to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances, to complete a normal workday
and workweek, to accept instructions and respond appropriately to criticism from supervisors,
and to set realistic goals or make plans independently of others. She also opined that he would be
absent from work five days or more each month and would be unable to complete an eight-hour
working day five days or more each month.
The ALJ gave these opinions little weight stating,

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Dr. Raney's opinions are not well supported by her treatment notes. For instance,
she assigns a GAF of 45 in her opinion statements, but treatment notes reflect a
GAF of 55. She documented in December 2013, March 2014, and through
February 2015, that the claimant continued to cook at the nursing home while she
was adjusting his medications. She reflected in her medical source statement that
she wonders about cognitive abilities, but her psychiatric evaluation estimates the
claimant's intelligence to be in the normal range (Ex. 11F).
This explanation overlooks the obligation of the ALJ to first determine whether Dr.
Raney’s opinions were entitled to controlling weight before assigning them a relative weight. It
appears that the ALJ simply jumped to the assessment of relative weight. Doing so constitutes
legal error. See Krauser v. Astrue, 638 F.3d 1324, 1330-31 (10th Cir. 2011). But if the reasons
articulated by the ALJ would be sufficient for a determination that Dr. Raney’s opinions should
not be given controlling weight, then the error is harmless. Thus, the Court considers whether the
reasons given by the ALJ are sufficient for the determination that Dr. Raney’s opinions are not
entitled to controlling weight.
The ALJ failed to address the first factor governing whether Dr. Raney’s opinions are
entitled to controlling weight. There is no discussion in the Decision as to whether they are
supported by medically acceptable clinical and diagnostic techniques. Thus, the Court cannot
meaningfully review this factor.
However, if Dr. Raney’s opinions are not consistent with the substantial evidence in the
record – the second factor in the controlling weight analysis – then they are not entitled to
controlling weight, even if they are supported by medically acceptable clinical and laboratory
diagnostic techniques. With regard to whether a treating physician’s opinion is inconsistent with
the substantial evidence in the record, the ALJ must specifically identify “those portions of the
record with which [the treating physician’s] opinion was allegedly inconsistent.” See Krauser v.
Astrue, 638 F.3d 1324, 1331 (10th Cir. 2011). As noted above, the ALJ gave three reasons to
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find that Dr. Raney’s opinions are not supportable: (1) her medical source statement assigns a
GAF score of 45 to Mr. Warren, but treatment notes assign a score of 55; (2) Mr. Warren
continued to cook at the assisted living facility; and (3) she questioned Mr. Warren’s cognitive
abilities in her medical source statement even though her psychiatric evaluation of Mr. Warren
notes that his intelligence was within a normal range.
There is a significant problem with the ALJ’s criticism that Dr. Raney assigned Mr.
Warren different GAF scores in her treatment notes and her medical source statement. As the
ALJ herself noted, “An isolated GAF score is not standardized or based on normative data. It is
subjective and reflects merely an opinion on symptom severity or functioning from one
individual at one point in time based on upon [a patient’s] self reports.” R. 33 (emphasis added)
(citing Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric
Assoc., Text Revision, 2000 (DSM-IV)). Inasmuch as a GAF score merely assesses the severity
of a patient’s symptoms on a specific day, it is subject to change and may vary significantly over
the course of treatment. See Petree v. Astrue, 260 Fed. App’x 33, 41-42 (10th Cir. 2007). Dr.
Raney assigned a GAF score to Mr. Warren only twice. During her initial intake interview with
Mr. Warren on October 17, 2013 she assigned him a score of 55. R. 676. On March 6, 2015, she
assigned him a score of 45. R. 685. Given the nature of GAF scores, it was reasonable, and even
expected, for Dr. Raney to assign different GAF scores to Mr. Warren, especially given the fact
that seventeen months separate the scores. Thus, the two GAF scores are not inconsistent, do not
undermine the credibility Dr. Raney’s opinions, and do not support a finding that Dr. Raney’s
opinions are not consistent with the substantial evidence in the record.
Regarding the ALJ’s observation that Mr. Warren continued to cook, in her medical
source statement, Dr. Raney was asked to explain why she believed that Mr. Warren could

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perform part-time work at the assisted living facility as a cook but could not work perform
competitive work on a full-time basis. She responded, “He can set his own schedule & work
when he is able unlike competitive employment where he would have to adhere to time set by his
employer.” R. 688. This shows that Dr. Raney considered Mr. Warren’s work as a cook and
accounted for it when she formed the opinions contained in the medical source statement. And
inasmuch as Dr. Raney considered it, Mr. Warren’s work as a cook is not a basis to find that her
opinions are inconsistent with the substantial evidence in the record. Rather, the ALJ’s criticism
appears to substitute her own opinion for that of Dr. Raney, which is not permissible. See Hamlin
v. Barnhart, 365 F.3d 1208, 1222 (10th Cir. 2004).
Finally, the ALJ found that Dr. Raney’s opinion in her medical source statement
questioning Mr. Warren’s cognitive abilities is inconsistent with her treatment notes. During her
initial intake interview with Mr. Warren on October 17, 2013, Dr. Raney noted that she believed
his intelligence was within the normal range. R. 675, 678. In her medical source statement on
March 6, 2015, Dr. Raney stated, “[Mr. Warren] has slow cognition, inability to get motivated to
do work, daily chores … I have wondered if he has Borderline Intellectual Functioning but
unable to determine due to his level of depression.” R. 692. Notably, Dr. Raney’s statement that
Mr. Warren had normal intelligence was made the first time she met with him. Over the course
of the next seventeen months, she met with him multiple times, and Mr. Warren provided Dr.
Raney’s treatment notes from October 29, 2013, November 7, 2013, December 12, 2013,
January 9, 2014, April 10, 2014, July 10, 2014, September 4, 2014, November 13, 2014, March
13, 2014, and February 6, 2015. R. 677-83.
Without question, a doctor’s first impressions of a patient’s condition may be incorrect or
incomplete. Over the course of treatment, the doctor will gather additional information through

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tests, interviews, and/or examinations that will allow her to have a more complete and accurate
understanding of the patient’s impairments. The mere fact that a doctor’s ultimate opinion differs
from her first opinion is not a basis to reject her ultimate opinion. Indeed, a doctor’s ultimate
opinion, developed over the course of treatment as she obtains additional data about a patient’s
condition, will always be more reliable that her first opinion.
Such is the case with Dr. Raney’s opinion. Initially, she believed that Mr. Warren had
normal intelligence. However, she met with him at least ten more times over the course of
seventeen months. During those meetings, she had additional opportunities to speak with and
observe Mr. Warren, which would allow her to obtain additional information as to his cognitive
abilities. With this additional information, she recognized his slow cognition and began
questioning whether he has Borderline Intellectual Functioning. Inasmuch as this opinion is
based on information she did not have when she first met with him, it is more reliable than her
initial impression that he had normal intelligence. Thus, Dr. Raney’s differing opinions as to Mr.
Warren’s cognitive ability do not support a finding that her opinions are inconsistent with the
substantial evidence in the record.
Te ALJ’s reasons for assigning little weight to Dr. Raney’s opinions are insufficient to
demonstrate application of the correct legal standard that governing the evaluation of a treating
physician’s opinion. Failure to demonstrate application of the correct legal standard constitutes
legal error, requiring reversal and remand. Inasmuch as it has determined that this matter must be
reversed and remanded, the Court need not address Mr. Warren’s remaining arguments.1 See
Madrid v. Barnhart, 447 F.3d 788, 792 (10th Cir. 2006).

1

The Court expresses no opinion as to the ALJ’s treatment of Dr. Heyl’s, Dr. Toner’s,
and Dr. Cotgageorge’s opinions.
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CONCLUSION
For the foregoing reasons, the Commissioner’s decision is REVERSED and this matter
is REMANDED to the ALJ for further proceedings. The Clerk shall enter a judgment in this
matter.
Dated this 9th day of March, 2018
BY THE COURT:

Marcia S. Krieger
United States District Court

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