Medina v. Commissioner, Social Security Administration

Filing 18

ORDER. The decision of the Commissioner that plaintiff is not disabled isREVERSED and REMANDED for further proceedings consistent with this order, by Judge Philip A. Brimmer on 9/27/18. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-00615-PAB
LINETIA A. MEDINA,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before the Court on the Complaint [Docket No. 1] filed by
plaintiff Linetia A. Medina on March 8, 2017. Plaintif f seeks review of the final decision
of defendant Nancy A. Berryhill (the “Commissioner”) denying her claim for
supplemental security income under Title XVI of the Social Security Act (the “Act”), 42
U.S.C. §§ 1381-83c. The Court has jurisdiction to review the Commissioner’s final
decision under 42 U.S.C. § 405(g).1
I. BACKGROUND
On March 5, 2013, plaintiff applied for supplemental security income under Title
XVI of the Act. R. at 12. Plaintiff alleged that she was disabled as of that same date.
Id. After an initial administrative denial of her claim, plaintiff received a hearing before
an Administrative Law Judge (“ALJ”) on September 1, 2015. Id. On September 17,
2015, the ALJ issued a decision denying plaintiff’s claim. R. at 25. The ALJ found that
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The Court has determined that it can resolve the issues presented in this
matter without the need for oral argument.

plaintiff had the following severe impairments: post-traumatic stress disorder, bipolar
disorder with major depressive disorder, anti-social personality disorder, and ulcerative
colitis. R. at 15. The ALJ concluded that these impairments, alone or in combination,
did not meet one of the regulations’ listed impairments, id., and ruled that plaintiff had
the residual functional capacity (“RFC”) to
perform light work as defined in 20 CFR 416.967(b) except the claimant
has additional limitations. The claimant is limited to frequently stooping
and crawling. She is limited to understanding, remembering, and carrying
out simple instructions that can be learned and mastered within 30 days.
She can sustain concentration, persistence and pace f or those
instructions as long as social interaction with others are not frequent or
prolonged. She can tolerate supervision, routine work changes, plan and
set simple goals, plan, travel, and avoid work hazards.
R. at 17. Based upon this RFC and in reliance on the testim ony of a vocational expert
(“VE”), the ALJ concluded that plaintiff is capable of performing jobs that exist in
significant numbers in the national economy. R. at 24-25. Specifically, the VE
identified three positions that plaintiff could perform: small product assembler, vending
machine attendant, and machine operator. R. at 25. Each of these positions is
performed at a light exertional level and is classified as semiskilled, with a specific
vocational preparation (“SVP”) level of two. Id.
On January 26, 2017, the Appeals Council denied plaintif f’s request for review
of the ALJ’s denial of her claim. R. at 1. Given the Appeals Council’s denial, the ALJ’s
decision is the final decision of the Commissioner.
II. STANDARD OF REVIEW
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
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the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). T he district court may not reverse
an ALJ simply because the court may have reached a different result based on the
record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence 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). T he district
court will not “reweigh the evidence or retry the case,” but must “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, 515
F.3d at 1070. Nevertheless, “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).
III. THE FIVE-STEP EVALUATION PROCESS
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
[a]n individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
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unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and (5)
whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point in
the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of
Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisf ied her burden of
establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the residual functional capacity
(RFC) to perform other work in the national economy in view of her age, education, and
work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). W hile the claimant has the
initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform

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himself about facts relevant to his decision and to learn the claimant’s own version of
those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
IV. DISCUSSION
Plaintiff claims that the ALJ erred in the following ways: (1) lacking valid reasons
for assigning little weight to the opinions of Thomas L. Firnberg, M.D., plaintiff’s treating
psychiatrist, on plaintiff’s mental limitations; (2) improperly weighing Dr. Firnberg’s
opinion against the conflicting opinion of Gayle Frommelt, Ph.D., a state agency
psychologist; and (3) failing to account for the opinion of Stephen Adams, M.D.,
plaintiff’s treating physician, that plaintiff’s ability to stand and walk would be limited
when her ulcerative colitis flares up. Docket No. 14 at 3. Because it is dispositive, the
Court addresses whether the ALJ gave good reasons for assigning little weight to Dr.
Firnberg’s opinion.
The Tenth Circuit’s “case law, the applicable regulations, and the
Commissioner’s pertinent Social Security Ruling (SSR) all make clear that in evaluating
the medical opinions of a claimant’s treating physician, the ALJ must complete a
sequential two-step inquiry, each step of which is analytically distinct.” Krauser v.
Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). In the f irst step, the ALJ must consider
whether the treating physician’s opinion is entitled to controlling weight. If the treating
physician’s opinion is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
case record, [the ALJ] will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2); see
also SSR 96-2p, 1996 WL 374188, *1 (July 2, 1996).

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If the opinion is not given controlling weight, the ALJ will proceed to the second
step of the inquiry. In the second step, “[t]reating source medical opinions are still
entitled to deference and must be weighed using all of the factors provided in 20 CFR
[§§] 404.1527 and 416.927. In m any cases, a treating source’s medical opinion will be
entitled to the greatest weight and should be adopted, even if it does not meet the test
for controlling weight.” SSR 96-2p, 1996 WL 374188, *4. The factors that must be
applied in determining what weight to give an opinion 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.
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quoting Watkins v.
Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003)); see also 20 C.F.R. § 404.1527(c).
“[A]n ALJ must give good reasons for the weight assigned to a treating physician’s
opinion, that are sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion and the reason for
that weight.” Langley, 373 F.3d at 1119 (internal quotation marks and alterations
omitted). Failure to apply this analytical framework and to provide sufficiently specific,
legitimate reasons tied to the factors for the weight given to a treating physician’s
opinion warrants reversal. Watkins, 350 F.3d at 1300-01.
On May 6, 2015, Dr. Firnberg completed a “Residual Functional Capacity
Evaluation (Mental)” questionnaire for plaintiff. R. at 784. He noted that he had
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examined plaintiff on nine occasions, including that day, and stated that he was “still
working to optimize [plaintiff’s] medication regimen.” R. at 786. Dr. Firnberg opined
that plaintiff was moderately limited in all of the areas listed on the form, would be off
task more than 30% of the work week, and would miss three or more days of work per
month due to her impairments. R. at 784-85. The ALJ gave Dr. Firnberg’s opinions
“little weight” based on a letter Dr. Firnberg wrote to plaintiff’s counsel on December 9,
2014. As support for finding that the letter supports giving little weight to Dr. Firnberg’s
later opinions, the ALJ explained:
Dr. Finberg [sic] also stated on December 9, 2014, that the claimant was
receiving treatment and had been doing well with her medications ([R. at
783]). He stated that her medications had been effective in reducing her
depression, anxiety, and irritability and he was “confident” that she would
continue to progress as her treatment continued ([R. at 783]).
R. at 21 (citing R. at 783).
Plaintiff argues that the ALJ did not give good reasons for assigning little weight
to Dr. Firnberg’s opinion because the ALJ “mischaracterized Dr. Firnberg’s statements”
in the December 9, 2014 letter and nothing in the letter “suggest[s] that his treatment
had reduced plaintiff’s symptoms to less than disabling levels.” Docket No. 14 at 14.
Defendant responds that “it was reasonable for the ALJ to consider that Dr. Firnberg’s
opinion was inconsistent with his other statements” because “Dr. Firnberg wrote in
December, a month after his opinion, that Plaintiff was doing well on her medications.”
Docket No. 15 at 7 (citing R. at 21, 783).2
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Defendant raises other arguments in favor of the weight given Dr. Firnberg’s
opinion, Docket No. 15 at 6-9, but the Court m ust reject them because the ALJ did not
rely on the reasons now advanced by defendant. See Stookey v. Colvin, 2014 WL
3611666, at *4 (D. Kan. July 22, 2014) (citing Grogan v. Barnhart, 399 F.3d 1257, 1263
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The body of Dr. Firnberg’s December 9, 2014 letter states in full:
I write this memorandum in regard to your client, Linetia Medina, with her
permission. She is in psychiatric treatment with me here for Post
Traumatic Stress Disorder and has been complying well with treatment.
We continue to gradually adjust her medications in order to control her
residual symptoms of depression, anxiety, & irritability. The irritability
causes her problems in relationships with others. I feel confident that we
will get her more stable as treatment progresses.
R. at 783. As plaintiff argues, there is nothing in this letter that contradicts or
undermines Dr. Firnberg’s later opinions about plaintiff’s limitations. While Dr. Firnberg
stated that plaintiff was “complying well with treatment,” i.e., taking her pills and doing
as instructed, he indicates that plaintiff nonetheless had “residual symptoms of
depression, anxiety, & irritability” that continued to “cause[] her problems in
relationships with others.” Id. Additionally, Dr. Firnberg was not certain that plaintiff’s
condition will improve; he only opined that he was “confident that we will get her more
stable” and notes that they “continue[d] to gradually adjust her medications.” Id.; see
also R. at 786 (Dr. Firnberg stating in his May 6, 2015 opinion that he was “still working
to optimize [plaintiff’s] medication regimen.”).
“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.” McGoffin v. Barnhart, 288
F.3d 1248, 1252 (10th Cir. 2002) (internal quotation marks omitted). As plaintiff argues,
the ALJ effectively rejected Dr. Firnberg’s opinion because he did not adopt any of his

(10th Cir. 2005)).
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limitations. Docket No. 14 at 13 (citing Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir.
2012)). The ALJ rejected Dr. Firnberg’s opinion solely on the basis of his December 9,
2014 letter. R. at 21. But the Court finds that there is no contradiction between the
letter and Dr. Firnberg’s opinions and, to the extent that the ALJ concludes based on
the letter that plaintiff was “doing well with her medications” and “would continue to
progress,” such speculation does not provide a basis to reject the opinions of a treating
physician. Id. (citing R. at 783); see also McGoffin, 288 F.3d at 1252; Langley, 373
F.3d at 1121 (finding that there was “no legal[] or evidentiary basis” to find a doctor’s
opinion was unsupported based on the ALJ’s interpretation of the underlying evidence).
Because the ALJ did not provide legitimate reasons for rejecting Dr. Firnberg’s
opinions, the Court will reverse. Watkins, 350 F.3d at 1300-01.
The Court declines to address plaintiff’s remaining objections to the ALJ’s
decision because they may be affected by the ALJ’s treatment of the case on remand.
See Watkins, 350 F.3d at 1299 (“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”). One issue that warrants clarification by the ALJ on remand is the ALJ’s
reasons for giving “substantial weight” to the opinions of Dr. Frommelt and whether it
has any basis other than the ALJ’s assumption that an agency generally has more
“familiarity with the regulations and expertise crafting residual functional capacity
assessments” as stated in relation to Dr. Adams’ opinion. R. at 21; see also Docket No.
14 at 18 n.4 (arguing that the basis for the weight accorded to the opinions of Dr.
Frommelt is unclear or applies to only physical limitations based on the statement’s
location in the decision).
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V. CONCLUSION
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff is not disabled is
REVERSED and REMANDED for further proceedings consistent with this order.

DATED September 27, 2018.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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