Howard v. Commissioner, Social Security Administration

Filing 19

ORDER: the decision of the Commissioner is REVERSED and REMANDED for further findings. by Judge R. Brooke Jackson on 11/17/17. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 17-cv-00276-RBJ
LAURA LEE HOWARD,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security
Defendant.

ORDER

This matter is before the Court on review of the Social Security Administration
Commissioner’s partial denial of claimant Laura Lee Howard’s application for disability
insurance benefits and supplemental security income benefits under Titles II and XVI of the
Social Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g). For the reasons explained
below, the Court REVERSES and REMANDS the decision for further consideration.
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

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evidence in the record.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Evidence is not
substantial if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th
Cir. 1992). Reversal may also 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.
BACKGROUND
1. Medical Background.
Ms. Howard is 57 years old and lives in Fountain, Colorado. R. 145, 490. After
receiving two years of college education, Ms. Howard worked as a veterinary technician at an
equine veterinary hospital from 1999 until 2005. R. 174. From 2005 until her alleged disability
onset date of July 5, 2011, Ms. Howard worked as a part-time bookkeeper at her ex-husband’s
legal process server business. R. 179. She described the bookkeeping job as one that was
“tailor-made” for her because she was permitted to work from home on days when she felt too
unwell to go into the office. R. 37. Ms. Howard stated that this job ended in 2011 when her exhusband terminated her as a result of their divorce. R. 37. She has not sought employment since
2011 and states that this is because her health impairments limit her ability to work. Id.
Ms. Howard claims that she suffers from the following ailments: degenerative disc
disease of the cervical and lumbar spines; degenerative joint disease of the right hip; chronic pain
syndrome (neck, shoulders, back, and back of legs); hypertension; carpal tunnel syndrome; left
adrenal adenoma; left hip degenerative changes; allergies; arthritis; and chronic recurring
headaches. R. 173, 327. She has undergone several surgeries to treat some of these issues. In
2010, Ms. Howard had bunion removal surgery on her right foot. R. 297. In December 2010
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and January 2011 Ms. Howard underwent carpal tunnel release surgeries on both hands. R. 327.
And in November 2015 Ms. Howard underwent a right hip replacement surgery. R. 332.
Ms. Howard claims that her ailments make it difficult to do “everyday things” such as
getting dressed, using the restroom, and getting into cars. R. 48–49. She claims that she cannot
sit or stand for periods of longer than twenty minutes without the pain becoming so bad in her
back and legs that she has to change positions. R. 398. In addition, she claims that her pain
and/or medications cause “brain fog,” which she describes as including short-term memory
issues and an inability to concentrate. R. 393–95.
2. Procedural History.
Ms. Howard applied for disability insurance benefits and supplemental security income
benefits on July 3, 2012. R. 145–58. After her applications were administratively denied on
November 15, 2012, Ms. Howard requested a hearing before an administrative law judge
(“ALJ”). R. 72–77, 78–79. On October 16, 2013 a hearing was held before ALJ Debra
Boudreau in Colorado Springs, Colorado. R. 31–57. The ALJ issued a decision denying
benefits on October 24, 2013. R. 15–27. Ms. Howard timely appealed the decision to the
Appeals Council, which denied review on January 27, 2015. R. 1–6, 13–14. However, in
response to the Commissioner’s voluntary request for a reversal of the Social Security
Commission’s November 2012 decision, on September 2, 2015 the United States District Court
reversed and remanded Ms. Howard’s claims for further proceedings. R. 436–42. The Appeals
Council issued an order with remand instructions to the ALJ on October 6, 2015. R. 443–48.
On April 12, 2016, in accordance with the remand order, a second hearing was held
before the ALJ. R. 383–416. During this hearing, medical expert Dr. Arthur Lorber noted that
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he had not received two of the exhibits prior to the hearing and therefore could not make a
finding at that time. R. 412. As a result, the ALJ scheduled a supplemental hearing to ensure
that Dr. Lorber had adequate time to review all of the exhibits; this hearing was held on August
25, 2016. R. 342–382, 415. During the supplemental hearing, the ALJ expressed her concerns
about the credibility of treating physician Dr. Sheldon Ravin’s opinions about Ms. Howard’s
claim. 1 After raising these concerns, the ALJ kept the case open to give Ms. Howard the
opportunity to submit additional exhibits in which Dr. Ravin could clarify his opinions. R. 371–
72, 380.
On November 21, 2016 the ALJ issued a partially favorable decision, finding that Ms.
Howard was disabled and entitled to benefits for only a portion of the period in which Mr.
Howard claimed disability. R. 319–41. Ms. Howard appealed the decision to the Appeals
Council but it declined review. ECF No. 1 at ¶ 2. Because the Appeals Council declined review
of this decision, it serves as the Commissioner's final decision for purposes of this Court’s
review. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). Ms. Howard filed a timely
appeal in this Court, and the issues have been fully briefed. ECF Nos. 1, 15–17.
3. The ALJ’s Decision.
The ALJ’s November 2016 decision was partially favorable. R. 319. In making this
determination, the ALJ followed the Social Security Administration’s standard five-step process.
First, the ALJ found that Ms. Howard had not engaged in substantial gainful activity since her
alleged onset date of July 5, 2011. R. 327. At the step two, the ALJ found that Ms. Howard had

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During the hearing, the ALJ noted that Dr. Ravin’s residual functioning capacity (“RFC”) opinions did
not list examination dates and only “sort of” referenced exam findings, and she alluded to her belief that
Dr. Ravin’s “extreme” opinions were unrealistic. R. 371.

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two severe impairments: degenerative disc disease of the cervical and lumbar spines, and
degenerative joint disease of the right hip. R. 327. At step three, the ALJ concluded:
1. From the alleged onset date of July 5, 2011 through September 21, 2014, Ms. Howard
did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments alleged onset date of disability
(“a Listing”). Further, the ALJ found that Ms. Howard had the residual functioning
capacity (“RFC”) to perform light work during this time period.
2. From September 22, 2014 through March 10, 2016, Ms. Howard’s right hip
degenerative joint disease became severe enough that it did meet Listing 1.02A. As
such, Ms. Howard is entitled to disability benefits for this period.
3. From March 11, 2016 onward, Ms. Howard’s right hip no longer met a Listing. The
ALJ held that medical evidence and Ms. Howard’s own testimony showed that Ms.
Howard’s hip had medically improved and positively impacted Ms. Howard’s ability
to engage in substantial gainful activity. Therefore, Ms. Howard’s right hip
impairment no longer meets or medically equals a Listing. Additionally, the ALJ
found that none of Ms. Howard’s other impairments meet a Listing. Finally, the ALJ
determined that Ms. Howard has an RFC to perform light work.
R. 328–32.
At step four, the ALJ found that from the alleged onset date of July 5, 2011 until
September 21, 2014, and beginning again in March 11, 2016 until present, Ms. Howard had and
again has the capability to perform her past relevant work as a bookkeeper. R. 334. Therefore,

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she is not entitled to disability benefits for the periods before and after September 22, 2014
through March 10, 2016. R. 334. Based on this finding, the ALJ did not proceed to step five.
ANALYSIS
Ms. Howard contends that the ALJ erred in the following ways: (1) failing to follow the
Appeals Council’s remand instruction to consider Ms. Howard’s chronic pain syndrome; (2)
failing to evaluate the combined effect of Ms. Howard’s impairments in determining whether she
was disabled prior to September 22, 2014 or after March 10, 2016; (3) failing to properly
consider medical sources’ opinions; and (4) failing to assess Ms. Howard’s credibility in
accordance with substantial evidence. The Court will discuss each argument in turn.
1. Compliance with the Appeals Council’s Order.
Ms. Howard argues that the ALJ failed to follow the Appeals Council’s explicit
instruction to consider Ms. Howard’s chronic pain syndrome on remand, and that the failure to
follow this instruction constitutes reversible error in and of itself. 2 I disagree.
The Appeals Council’s remand order stated in relevant part:
“The Appeals Council hereby vacates the final decision of the Commissioner of
Social Security and remands this case to an Administrative Law Judge for
resolution of the following issue:
. . . In this case, the Administrative Law Judge found that the claimant had
numerous medical determinable impairments, none of which was severe in nature.
Evidence of record, however, suggests that the claimant’s degenerative disc
2

I note that there has been some disagreement as to whether federal courts have jurisdiction to hear
challenges concerning an ALJs' compliance with Appeals Council instructions. Compare Gallegos v.
Apfel, No. 97–2267, 1998 WL 166064, at *2 (10th Cir. Apr. 10, 1998) (unpublished) (holding that the
Court did not have jurisdiction to hear such a case), with Rice v. Apfel, No. 99–1422, 2000 WL 1701446,
at *6 (10th Cir. Nov. 14, 2000) (unpublished) (hearing such a case). However, in accordance with the
reasoning espoused in my decision in Gonzales v. Colvin, I find that I have jurisdiction to review this
claim. 213 F. Supp. 3d 1326, 1330 (D. Colo. 2016) (After Gallegos, “subsequent Tenth Circuit opinions
have assessed ALJs’ adherence to Appeals Council remands without second-guessing the court's ability to
hear these cases, suggesting that the approach in Gallegos is not the law of this circuit.”).

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disease of the lumbar and cervical spine may cause more than minimal limitations
in the claimant’s ability to perform basic work activities . . . . Doctors also appear
to have diagnosed the claimant with a chronic pain disorder and fibromyalgia, but
the decision does not address these conditions (Exhibit 11F). Further evaluation
of the nature, severity, and limiting effects of the claimant’s physical impairments
is necessary.”
R. 445 (emphasis added).
Ms. Howard interprets this as an explicit instruction from the Appeals Council that the
ALJ should “address whether or not Ms. Howard’s chronic pain syndrome was a severe or nonsevere impairment.” ECF No. 15 at 6. But, as Ms. Howard points out, the ALJ failed to
reference chronic pain syndrome at any point in her decision. Id. Ms. Howard argues that I
should thus find reversible error on the basis of the ALJ’s failure to comply with the Appeals
Council’s order alone. Id. at 8–9.
Ms. Howard’s argument fails under established Tenth Circuit law. It is true that in the
event the Appeals Council orders a remand, an ALJ “shall take any action that is ordered by the
Appeals Council.” 20 C.F.R. § 404.977(b). However, in Miller v. Barnhart, the Court held that
when the ALJ’s decision stands as the final decision of the Commissioner, federal courts should
review the ALJ’s decision under the usual Social Security appeals standards “rather than
focusing on conformance with the particular terms of the [Appeals Council’s] remand order.”
175 F. App’x 952, 956 (10th Cir. 2006) (unpublished). An ALJ’s decision stands as the final
decision of the Commissioner when the Appeals Council declines to review the ALJ’s decision.
In this case, as noted above, the ALJ’s decision became the final decision of the
Commissioner when the Appeals Council declined Ms. Howard’s appeal. It would therefore be
improper for me to focus my review on the ALJ’s “conformance with the particular terms” of the
Appeals Council’s remand order, which is precisely what Ms. Howard asks me to do. Miller,
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175 F. App’x at 956. Instead, I must review the ALJ’s decision in accordance to the “usual”
standard of review, namely the substantial evidence standard. Id. As such, I deny Ms. Howard’s
request to reverse and remand the ALJ’s decision on the basis of the ALJ’s noncompliance with
the Appeals Council’s order alone.
2. Consideration of All Impairments.
Next, Ms. Howard argues that the ALJ’s failure to consider her chronic pain syndrome at
steps two, three, and four was reversible error under the substantial evidence standard. ECF No.
15 at 14–17. This argument is different from the issue discussed above, because here Ms.
Howard argues that the ALJ’s failure to consider chronic pain syndrome undermined the overall
evaluation of the evidence, not that the ALJ’s failure to follow the Appeals Council’s directive to
consider chronic pain syndrome was an error in itself. See id. After reviewing the relevant case
law, I hold that (1) the ALJ’s failure to consider chronic pain syndrome at step two was harmless
error, but (2) the ALJ’s failure to discuss chronic pain syndrome at steps three and four warrants
remand.
A. Step Two.
At step two, an ALJ is required to determine whether any of the claimant’s impairments
are “severe.” An impairment is severe if it “significantly limits [a claimant's] physical or mental
ability to do basic work activities.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016)
(citing 20 C.F.R. § 404.1520(c), § 416.920(c)). If an ALJ determines that the claimant does not
have a severe impairment at step two, the ALJ must find that the claimant is not disabled and
deny benefits. Id. However, if the ALJ determines that one or more of the claimant’s

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impairments are severe at step two, the ALJ must proceed to step three of the five-step disability
determination analysis. Id.
Here, the ALJ determined that Ms. Howard had two severe impairments at step two:
degenerative disc disease of the cervical and lumbar spines, and degenerative joint disease of the
right hip. R. 327. As such, the ALJ proceeded to step three of the analysis. Nevertheless, Ms.
Howard alleges the ALJ’s failure to consider her chronic pain syndrome at step two is reversible
error. Id. at 14.
Ms. Howard’s argument is unavailing under the Tenth Circuit’s decision in Allman v.
Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016), where the Court held that an ALJ’s “failure to find
a particular impairment severe at step two is not reversible error when the ALJ finds at least one
other impairment severe.” This is so because an ALJ’s finding that even a single impairment is
severe means that the ALJ may not deny benefits at step two, but instead must proceed to step
three where she will consider the combination of all of the claimant’s impairments, not just those
deemed to be severe. Id. Therefore, the claimant suffers no harm from an oversight at step two
if another impairment is deemed severe because the ALJ will consider all of the impairments
anew once she arrives at step three. While it certainly would have been prudent for the ALJ to
consider Ms. Howard’s chronic pain syndrome diagnosis at step two—particularly in light of the
Appeals Council’s directive—the ALJ’s failure to do so is not reversible error under Allman
because she determined that two of Ms. Howard’s other impairments were severe. See id. at
1330.

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B. Steps Three and Four.
Ms. Howard further argues that the ALJ’s failure to consider chronic pain syndrome at
steps three and four is reversible error. I agree.
At step three, the ALJ is required to ask whether any of the claimant’s impairments
determined to be severe at step two—either alone or in combination with other impairments—are
“equivalent to one of a number of listed impairments that the [Commissioner] acknowledges are
so severe as to preclude substantial gainful activity.” Lax v. Astrue, 489 F.3d 1080, 1085 (10th
Cir. 2007) (referencing 20 C.F.R. Part 404, Subpart P, Appendix 1) (emphasis added). If a
claimant can show that her combined impairments are equivalent to a listed impairment
(“Listing”), she is presumed to be disabled and is entitled to benefits. Williams v. Bowen, 844
F.2d 748, 751 (10th Cir.1988). If a claimant’s combined impairments do not meet a Listing at
step three, the ALJ’s analysis continues to step four. Step four requires the claimant to show
“that the impairment or combination of impairments prevents him from performing his past
work.” Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.2005) (emphasis added).
As is apparent from these standards, it is incumbent upon the ALJ to consider all of a
claimant’s health impairments—including those deemed non-severe—when determining if she is
disabled. Though an ALJ is not required to discuss every piece of evidence in the record in her
decision, the ALJ must discuss uncontroverted evidence she chooses not to rely upon and any
significantly probative evidence she rejects. Clifton v. Chater, 79 F.3d 1007, 1009–10 (10th Cir.
1996) (citing Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984)).
Here, the record is filled with unconverted evidence concerning Ms. Howard’s chronic
pain syndrome. When Ms. Howard filed her initial claim for disability on July 3, 2012, the first

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disabling condition she listed was “chronic pain syndrome.” R. 66. The administrative record
includes over twenty medical documents showing Ms. Howard’s chronic pain syndrome
diagnosis and related treatment. 3 At no point was this diagnosis contested as invalid or as
subject to doubt. Further, Ms. Howard discussed her chronic pain at each of her three hearings
before the ALJ. R. 342–82, 383–416, 449–75. Finally, the Appeals Council expressly noted that
Ms. Howard was diagnosed with a chronic pain disorder and directed the ALJ to “further
evaluat[e] the nature, severity, and limiting effects” of the impairment in the remand order. R.
445.
Despite all of this uncontroverted evidence, the ALJ did not discuss Ms. Howard’s
chronic pain syndrome diagnosis at any point in the 17–page determination. 4 This is reversible
error. Had the ALJ considered this evidence, perhaps the ALJ might have found that Ms.
Howard’s chronic pain syndrome in combination with her other impairments met a Listing at
step three, or that the combined effect of the impairments rendered Ms. Howard unable to
perform her past job as a bookkeeper at step four. Alternatively, in the event that the ALJ did
3

Ms. Howard’s chronic pain syndrome diagnosis appears in the record at the following locations:
Dr. Ravin’s treatment notes: 08/05/16 (R. 840), 07/11/16 (R. 841–42), 05/11/16 (R. 847–48),
04/6/16 (R. 849–50), 04/21/14 (R. 670), 03/11/14 (R. 685), 01/21/14 (R. 668), 10/23/13 (R.
665), 09/11/13 (R. 254–55), 06/24/13 (R. 256–57), 03/25/13 (R. 259–60), 01/02/13 (R. 266),
10/02/12 (R. 267), 07/09/12 (R. 193).
Nurse Practitioner Leah Derksen’s treatment notes: 04/17/12 (R. 194), 02/16/12 (R. 195),
12/05/11 (R. 196), 08/29/11 (R. 197), 04/18/11 (R. 199), 06/06/11 (R. 198).
Dr. Ronald Laub’s treatment notes: 08/24/11 (R. 216–17), 06/29/11(R. 219–20), 05/09/11 (R.
222–23), 03/14/11 (R. 225–26), 01/26/11 (R. 228–29).

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The ALJ did use the word “pain” a few times throughout her decision, but it was mentioned in the
context of symptoms that Ms. Howard self-reported during appointments or at the hearings. Even in
giving the benefit of the doubt to the ALJ, I cannot interpret these passing references to “pain” as the
ALJ’s consideration of Ms. Howard’s chronic pain syndrome. See R. 319–41.

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consider the evidence but found it unpersuasive or objectionable, the ALJ still had a duty to
explain her reasons for rejecting it. Chater, 79 F.3d at 1009–10. Based on the ALJ’s decision
before me, I simply have no way of knowing if or how the ALJ evaluated this evidence.
Without having an explanation from the ALJ concerning her treatment of the evidence of
Ms. Howard’s chronic pain syndrome, I cannot assess whether the ALJ's conclusion complies
with the substantial evidence standard. Therefore, the case must be remanded for the ALJ to set
out her specific findings as it relates to Ms. Howard’s chronic pain syndrome.
3. Consideration of Medical Sources’ Opinions.
In addition, Ms. Howard argues that the ALJ erred in her treatment of medical source
opinions. Specifically, Ms. Howard takes issue with the ALJ’s reliance on medical examiner Dr.
Lorber’s opinions instead of the opinions of Ms. Howard’s treating physician, Dr. Ravin.
Because this case will be remanded for the ALJ to consider the impact that Ms. Howard’s
chronic pain syndrome has on her overall disability, the ALJ will necessarily need to reconsider
the medical source opinions on remand. Therefore, at this point I will just make two brief
comments without deciding the issue.
First, in regard to chronic pain syndrome evidence, the ALJ failed to discuss Dr. Laub’s
or Nurse Practitioner Derksen’s diagnoses of Ms. Howard’s chronic pain syndrome. See R. 319–
41. An ALJ is required to evaluate every medical opinion she receives. 20 C.F.R. §§
404.1527(c), 416.927(c). The failure to do so is reversible error. Id. Therefore, I order the ALJ
to discuss her treatment of Dr. Laub’s and Nurse Practitioner Derksen’s medical opinions in her
forthcoming determination.

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Second, despite Ms. Howard’s argument to the contrary, I find that the ALJ properly
defended her decision to not give controlling weight to treating physician Dr. Ravin’s medical
opinions. While the opinion of a treating source is generally given controlling weight, 20 C.F.R.
§§ 404.1527, 416.927, an ALJ can give less than controlling weight to the treating source’s
opinions if she “gives good reasons in [the] notice of determination.” Id. Here, in explaining
why she found that Dr. Ravin’s opinions were not entitled to controlling weight, the ALJ noted:
(1) Dr. Ravin’s assessments of Ms. Howard’s disability were submitted via “fill-in-the-blank”
forms without much elaboration; (2) Dr. Ravin’s Listing assessments are internally inconsistent
(i.e., in January 2014, Dr. Ravin determined that Ms. Howard has met Listing 1.04 since July
2011, but in July 2016, Dr. Ravin opined that Ms. Howard has met Listing 1.04 since “20042005.”); (3) Dr. Ravin’s conclusions are not supported by his notes and do not cite to objective
findings (“[T]he extreme limitations that Dr. Ravin assessed are significantly disproportionate to
the evidence as a whole, including his own treatment notes.”); (4) Dr. Ravin is a general
practitioner, thus his opinions about Ms. Howard’s orthopedic issues should be given less weight
than the opinions of Dr. Lorber, who is an orthopedic specialist; and (5) Dr. Ravin is less familiar
with the Social Security Administration’s disability program than Dr. Lorber, particularly in
terms of the definitions and evidentiary requirements. R. 328–30. Notwithstanding any changes
to this assessment that may occur during the ALJ’s reconsideration of the evidence on remand, I
find that the ALJ properly articulated her reasons for not giving Dr. Ravin’s opinions controlling
weight.
4. Credibility Determination.

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Finally, Ms. Howard argues that the ALJ’s determination that Ms. Howard is not fully
credible is not supported by substantial evidence. ECF No. 15 at 16. The ALJ determined that
Ms. Howard’s statements “concerning the intensity, persistence and limiting effects of [her]
symptoms are not entirely consistent with the medical evidence and other evidence in the
record.” R. 330. Ms. Howard contends that her complaints are indeed supported by the medical
evidence, and that the ALJ’s flawed credibility finding unfairly impacted the overall assessment
of her claim. ECF No. 15 at 16.
However, because the ALJ’s assessment of Ms. Howard’s credibility will inevitably be
impacted by the ALJ’s reassessment of the total body of evidence on remand, it is unnecessary
for me to decide this issue at present.
ORDER
For the reasons described above, the Court REVERSES and REMANDS the
Commissioner’s decision partially denying Ms. Howard’s application for disability insurance
benefits supplemental security income benefits.
DATED this 17th day of November, 2017.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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