Grass v. Commissioner, Social Security Administration

Filing 32

ORDER by Magistrate Judge Scott T. Varholak on 4/2/2019. IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not disabled is REVERSED and this matter is REMANDED. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00749-STV
RUTH FAY GRASS,
Plaintiff,
v.
NANCY A. BERRYHILL, 1 Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff Ruth Fay Grass’s Complaint seeking
review of the Commissioner of Social Security’s decision denying Plaintiff’s application
for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under
Titles II and XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 401 et seq., and 138183c, respectively. [#1] The parties have both consented to proceed before this Court for
all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c) and
D.C.COLO.LCivR 72.2. [#23] The Court has jurisdiction to review the Commissioner’s
final decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This Court has carefully

1

Carolyn Colvin, in her capacity as Acting Commissioner of Social Security, is named as
the Defendant in the Complaint. [#1] Nancy A. Berryhill currently serves as the Acting
Commissioner of Social Security. [#29 at 1 n.1] Pursuant to Federal Rule of Civil
Procedure 25(d), Nancy A. Berryhill, as Commissioner Colvin’s successor, “is
automatically substituted as a party.” See also 42 U.S.C. § 405(g) (“Any action instituted
in accordance with this subsection shall survive notwithstanding any change in the person
occupying the office of Commissioner of Social Security or any vacancy in such office.”).

considered the Complaint [#1], the Social Security Administrative Record [#18, 20, 26,
27], the parties’ briefing [#28, 29, 30], and the applicable case law, and has determined
that oral argument would not materially assist in the disposition of this appeal. For the
following reasons, the Court REVERSES the Commissioner’s decision and REMANDS
for further proceedings.
I.

LEGAL STANDARD
A.

Five-Step Process for Determining Disability

The Social Security Act defines disability as the inability “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 2 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “This
twelve-month duration requirement applies to the claimant’s inability to engage in any
substantial gainful activity, and not just his underlying impairment.” Lax, 489 F.3d at 1084.
“In determining whether an individual’s physical or mental impairment or impairments are
of a sufficient medical severity that such impairment or impairments could be the basis of
eligibility . . ., the Commissioner [ ] shall consider the combined effect of all of the
individual’s impairments without regard to whether any such impairment, if considered
separately, would be of such severity.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).

2

“Substantial gainful activity” is defined in the regulations as “work that (a) [i]nvolves doing
significant and productive physical or mental duties; and (b) [i]s done (or intended) for pay
or profit.” 20 C.F.R. §§ 404.1510, 416.910; see also 20 C.F.R. §§ 404.1572, 416.972.
2

“The Commissioner is required to follow a five-step sequential evaluation process
to determine whether a claimant is disabled.” Hackett v. Barnhart, 395 F.3d 1168, 1171
(10th Cir. 2005). The five-step inquiry is as follows:
1. The Commissioner first determines whether the claimant’s work activity, if any,
constitutes substantial gainful activity;
2. If not, the Commissioner then considers the medical severity of the claimant’s
mental and physical impairments to determine whether any impairment or
combination of impairments is “severe;” 3
3. If so, the Commissioner then must consider whether any of the severe
impairment(s) meet or exceed a listed impairment in the appendix of the
regulations;
4. If not, the Commissioner next must determine whether the claimant’s residual
functional capacity (“RFC”)—i.e., the functional capacity the claimant retains
despite his impairments—is sufficient to allow the claimant to perform his past
relevant work, if any;
5. If not, the Commissioner finally must determine whether the claimant’s RFC,
age, education and work experience are sufficient to permit the claimant to
perform other work in the national economy.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Grogan v. Barnhart, 399 F.3d 1257,
1261 (10th Cir. 2005); Bailey v. Berryhill, 250 F. Supp. 3d 782, 784 (D. Colo. 2017). The
claimant bears the burden of establishing a prima facie case of disability at steps one
through four, after which the burden shifts to the Commissioner at step five to show that
claimant retains the ability to perform work in the national economy. Wells v. Colvin, 727
F.3d 1061, 1064 n.1 (10th Cir. 2013); Lax, 489 F.3d at 1084. “A finding that the claimant
is disabled or not disabled at any point in the five-step review is conclusive and terminates

3

The regulations define severe impairment as “any impairment or combination of
impairments which significantly limits [the claimant’s] physical or mental ability to do basic
work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c).
3

the analysis.” Ryan v. Colvin, 214 F. Supp. 3d 1015, 1018 (D. Colo. 2016) (citing Casias
v. Sec’y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991)).
B.

Standard of Review

In reviewing the Commissioner’s decision, the Court’s review is limited to a
determination of “whether the Commissioner applied the correct legal standards and
whether her factual findings are supported by substantial evidence.” Vallejo v. Berryhill,
849 F.3d 951, 954 (10th Cir. 2017) (citing Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th
Cir. 1994)).

“With regard to the law, reversal may be appropriate when [the

Commissioner] either applies an incorrect legal standard or fails to demonstrate reliance
on the correct legal standards.” Bailey, 250 F. Supp. 3d at 784 (citing Winfrey v. Chater,
92 F.3d 1017, 1019 (10th Cir.1996)).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. It requires more than a scintilla, but less than
a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quoting Lax,
489 F.3d at 1084). “Evidence is not substantial if it is overwhelmed by other evidence in
the record or constitutes mere conclusion.” Grogan, 399 F.3d at 1261-62 (quoting
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)).

The Court must

“meticulously examine the record as a whole, including anything that may undercut or
detract from the [Commissioner’s] findings in order to determine if the substantiality test
has been met.’” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quotation
omitted). The Court, however, “will not reweigh the evidence or substitute [its] judgment
for the Commissioner’s.” Hackett, 395 F.3d at 1172.

4

II.

BACKGROUND
Plaintiff was born in 1962. [AR 270, 1058, 1074] 4 Plaintiff completed two years of

college education and obtained an associate’s degree in business administration. [AR
350, 1074] Plaintiff can communicate in English. [AR 348, 1074-77, 1082-92, 1097-1105]
On or about February 8, 2013, Plaintiff completed a Title II application for DIB [AR 27073] and, on or about March 18, 2013, Plaintiff completed a Title XVI application for SSI
[AR 1058-63]. Plaintiff originally claimed a disability onset date of July 1, 2011 [AR 270,
1058], but subsequently amended that date to November 20, 2012 [AR 297]. [See also
AR 1072] Thus Plaintiff was 50 years old at the time of the amended alleged onset date.
[Id.] Plaintiff claims disability based upon the following physical impairments: chronic
abdominal pain, knee problems resulting in knee replacements, arthritis, carpal tunnel,
degenerative changes to the lumbar spine, shoulder pain, and obesity. [AR 29, 349,
1082, 1102] With the exception of 2001 when Plaintiff was caring for her mother, Plaintiff
worked full time between 1999 and 2011 in a variety of office positions, handling
procurement bookkeeping, reception, and customer service. [AR 351, 1075-77] Plaintiff
also worked as a car detailer and salesperson during this time. [AR 1077] In 2012,
Plaintiff worked at a feed lot, but was let go after approximately three weeks because the
employer said she “couldn’t handle the job.” [Id.]

4

All references to “AR” refer to the sequentially numbered Social Security Administrative
Record filed in this case. [#18, 20, 26, 27]
5

A.

Medical Background
1. Abdominal Pain

Plaintiff has chronic abdominal pain dating back to at least 1998. [See, e.g., AR
465-66, 473, 527, 579, 608, 738, 766] A medical record from September 28, 2010
(approximately two years prior to the alleged onset date) reflects that Plaintiff reported
recurrent abdominal pain that required her to manually manipulate her abdominal wall to
affect gut motility.

[AR 579]

The record notes that Plaintiff has “a long history of

abdominal wall hernias” and had undergone multiple surgeries, including a cesarean
section, an appendectomy, umbilical hernia repair, total abdominal hysterectomy with
bilaterally salpingo oophorectomy, cholecystectomy, incisional hernia repairs, and
panniculectomy. [Id.] In December 2010, Plaintiff had another surgery to remove a
ventral hernia. [AR 647]
At a December 2012 medical appointment, Plaintiff reported that she continued to
have “deep and constant pain” in her abdomen and reported her pain level as a five out
of 10. [AR 665] Plaintiff reported that she had undergone 17 abdominal surgeries in the
past. [Id.] An examination of her abdomen revealed that it was normal in appearance
and negative for tenderness. [AR 667] Plaintiff’s prescription for Tramadol, which she
had been taking for over a year for her abdominal pain, was renewed. [Id.]
Plaintiff saw her doctor for abdominal pain on June 3, 2013 and a CT of her
abdomen was ordered. [AR 743-44] The CT did not reveal any abnormal masses, fluid
collection, adenopathy, inflammatory process, or free air. [AR 747] At an October 21,
2013 medical visit, Plaintiff reported that she continued to experience abdominal pain,
which she described as “unbearable” without the use of tramadol.

6

[AR 772] At a

November 14, 2013 appointment, Plaintiff informed the medical provider that she
manually manipulates her abdomen a few times each day to decrease pain, which she
stated had nothing to do with bowel movements. [AR 783] The doctor assured her that
she could not harm herself by doing this and stated that he would be willing to provide a
note to an employer stating that it was related to her medical condition. [AR 783-84] On
November 23 ,2013, Plaintiff’s doctor provided her a note stating that Plaintiff “has a
medical condition that requires her to have a break every hour for 5 to 10 minutes while
she is working.” [AR 796]
On January 16, 2014, Plaintiff was seen for abdominal pain and burning and
reported that she had more persistent pain than usual in the prior week. [AR 797] Upon
examination, the doctor found no evidence of a new hernia but noted that Plaintiff was
tender in the epigastrium to the left upper quadrant and determined that the issue was
likely peptic in nature. [Id.] On April 30, 2014, Plaintiff reported worsening abdominal
pain in her left lower quadrant and mid lower quadrant, which is improved somewhat
through manual manipulation. [AR 815] At a July 11, 2014 appointment, Plaintiff reported
that her abdomen pain was doing better and an exam did not reflect any tenderness or
any palpated abdominal masses. [AR 857, 860]
On September 5, 2014, Plaintiff went to the emergency room for abdominal pain,
informing the medical provider that she was having significant pain in the left upper
quadrant and that manipulation of her stomach was not reducing the pain as it usually
did. [AR 866] Plaintiff reported her pain as a seven out of 10. [AR 867] At a follow-up
on September 26, 2014, Plaintiff reported that her abdominal pain was so severe that she

7

is overwhelmed by it and that it was preventing her from sleeping. [AR 879] Plaintiff was
prescribed a gastrointestinal cocktail to supplement the tramedol. [AR 882]
On January 12, 2015, Plaintiff reported severe abdominal pain that prevented her
from sleeping two nights in a row, but the doctor “c[ould] not see where her pain has
clearly changed.” [AR 952] On February 9, 2015, Plaintiff reported continued abdominal
pain, but it responded well to medication. [AR 971, 974] On March 25, 2015, Plaintiff
again reported intense abdominal pain that prevented her from sleeping approximately
four nights per week. [AR 983] On April 27, 2015, Plaintiff reported that her bloating
issues were doing better though she still had pain from time to time. [AR 992] On July
10, 2015, Plaintiff reported that she was still having a lot of trouble with abdominal pain
and regularly took tramadol.

[AR 997]

On August 25, 2015, Plaintiff visited the

emergency room complaining of abdominal pain. [AR 915] Plaintiff reported constant
piercing and burning pain, which she rated as a seven out of 10. [Id.] A May 16, 2016
abdominal CT scan was “essentially normal,” with no indication of obstruction or hernias.
[AR 1039] The doctor did not believe further surgery would be likely to alleviate the pain
Plaintiff was experiencing and expressed frustration that they could not figure out what
was causing Plaintiff’s pain. [Id.]
2. Shoulder Pain
Plaintiff’s records also reflect that Plaintiff has suffered from shoulder pain. At a
medical appointment in September 2010, Plaintiff reported that she had been
experiencing right should pain for several months. [AR 578] An MRI revealed significant
AC arthrosis, resulting in significant impingement. [Id.] On November 5, 2010, Plaintiff
had surgery on her right shoulder to treat the impingement. [AR 650-51]

8

At an October 21, 2013 medical visit, Plaintiff reported that she had been
experiencing left shoulder pain for approximately one week. [AR 772] Upon examination,
the doctor found limited range of motion and mildly positive signs of impingement. [AR
773] On November 4, 2013, Plaintiff was determined to have mild degenerative changes
and impingement in her left shoulder and was given a steroid injection. [AR 777, 778] At
a follow-up appointment on November 20, 2013, Plaintiff reported that the injection was
working well, with improved range of motion and pain level. [AR 786]
On January 28, 2014, Plaintiff reported that her left shoulder pain was not
improving with physical therapy and that her pain was worse with overhead movement
and during her sleep at night. [AR 800] An MRI on February 6, 2014 reflected moderate
joint effusion, a partial undersurface tear of the supraspinatus tendon, and mild
osteoarthritis resulting in mild impingement. [AR 803-04]
3. Knee Pain
Plaintiff also has suffered from knee pain. On January 18, 2010, Plaintiff was
evaluated for left knee pain and was determined to have left knee medial joint
degenerative joint disease, joint space narrowing, and sclerosis consistent with
osteoarthritis with the possibility of a degenerative meniscal tear. [AR 580] On November
8, 2012, Plaintiff went to the emergency room for right knee pain. [AR 669] At a medical
appointment on November 28, 2012, Plaintiff reported pain in both her left and right knees
and was using a cane for ambulation. [Id.]
On January 29, 2013, Plaintiff had arthroscopy on her right knee with no
complications. [AR 728] At a follow-up examination on March 25, 2013, Plaintiff reported
having pain in both knees and, upon examination, had moderate pain and decreased

9

range of motion in both knees. [AR 710-11] Plaintiff was given steroid injections in both
knees and the doctor discussed the possibility of total knee arthroplasty in the future. [AR
712]
On April 30, 2013, Plaintiff was admitted to the hospital for a right total knee
arthroplasty. [AR 764] The surgery was uneventful and Plaintiff was noted to be doing
“very well” following surgery. [Id.] Plaintiff was discharged from the hospital three days
after the surgery. [Id.] On June 12, 2013, Plaintiff had a follow-up appointment for her
right knee surgery. [AR 695] Plaintiff reported zero out of 10 on the pain scale and that
she was ambulatory. [Id.] Examination of the right knee revealed normal range of motion
and strength. [AR 696]
On July 16, 2013, Plaintiff was admitted to the hospital for a left total knee
arthroplasty. [AR 765] The surgery was uneventful and Plaintiff was noted to be doing
“very well” following surgery. [Id.] Plaintiff was discharged from the hospital three days
after the surgery. [Id.] On August 14, 2013, Plaintiff had a follow-up appointment for her
left knee surgery. [AR 685] Plaintiff continued to use a cane and reported swelling and
a pain level of six out of 10. [AR 685-86] Examination of the left knee revealed “minimal”
pain, normal knee stability, decreased flexion, and normal extension. [AR 686] At a
medical appointment on November 4, 2013, Plaintiff reported that her right knee had
recovered well, but that her left knee was recovering more slowly and she believed it may
be hyperextending slightly. [AR 775]
At a February 9, 2015 medical appointment, Plaintiff complained of pain in both
knees, especially when climbing stairs. [AR 971] On September 23, 2015, Plaintiff

10

reported knee pain at a level of eight out of 10 at its worst, and never below a five out of
ten. [AR 1016]
4. Back Pain
Plaintiff’s medical records also reflect that Plaintiff has experienced back pain. At
a well woman exam on March 1, 2010, Plaintiff reported that she has “a little bit of chronic
back pain,” which she believed to be attributable to her weight and breast size. [AR 581]
At a medical appointment on November 20, 2013, Plaintiff reported pain in her lower
thoracic spine and hip pain. [AR 786] Lumbar spine x-rays taken on November 21, 2013
reflected multilevel degenerative changes and chronic-appearing T12 anterior wedge
compression fracture. [AR 791]

A June 30, 2014 MRI reflected mild to moderate

degenerative disc disease and facet osteoarthritis. [AR 844] On July 30, 2014, Plaintiff
reported more severe back pain, which she described as shooting and sharp and 10 out
of 10 on the pain scale when it comes. [AR 863] An August 15, 2014 MRI of the thoracic
spine revealed only minimal multilevel thoracic spondylosis without significant spinal
canal or foraminal stenosis and gallstones. [AR 865]
On December 30, 2014, Plaintiff reported worsening lower back pain and spasms.
[AR 936] On January 20, 2015, Plaintiff received lumbar facet injections and experienced
great improvement. [AR 1042, 1043] On April 27, 2015, Plaintiff reported improvement
in her lower back pain. [AR 992] On November 12, 2015, Plaintiff had bilateral breast
reduction surgery. [AR 892]
5. Carpal Tunnel
On April 15, 2013, Plaintiff was evaluated for pain in her hands. [AR 705] Plaintiff
reported “sharp, stabbing, aching, burning pain with clicking” and continuous stiffness of

11

her left thumb. [AR 706] Plaintiff stated that she had experienced pain in her hands for
approximately two years. [Id.] Plaintiff reported that the pain was worse after repetitive
actions and interfered with her crocheting and crafts, but improved with pain medication
and rest. [Id.] Upon examination of her hands, Plaintiff was in severe pain and had limited
hand and finger range of motion in her right hand. [Id.] Radiology of her hands did not
reveal any fracture, dislocation, or degenerative joint disease. [AR 707] The doctor
assessed Plaintiff with DeQuervain’s tenosynovitis in the right hand and gave her a
steroid injection and brace for the right hand. [AR 708]
At a medical appointment on November 4, 2013, Plaintiff reported bilateral hand
pain while driving and at night and reported that her left fingertips tingled. [AR 775] It
was noted that Plaintiff was using her right hand to hold her cane and was not wearing a
brace. [Id.] On November 20, 2013, Plaintiff reported tingling in her left index and middle
fingers and was assessed with carpal tunnel syndrome and prescribed a left wrist splint.
[AR 786, 788]
On April 8, 2014, Plaintiff reported right wrist pain, but denied numbness or tingling
in her fingers. [AR 812] Plaintiff acknowledged that she was not wearing her brace as
much as she should and noted that she had been doing more crocheting to earn income,
which had aggravated the pain. [Id.] Plaintiff was given a steroid injection in the right
wrist. [AR 814] At a medical appointment on September 26, 2014, Plaintiff reported that
her carpal tunnel symptoms were better with the use of splints. [AR 879]
On September 23, 2015, Plaintiff saw a specialist for evaluation of bilateral arm
hand pain, primarily in the right arm. [AR 1013] Plaintiff received a steroid injection into
her left thumb and was assessed with multiple tendinitis and probable carpal tunnel

12

syndrome. [AR 1014] On March 16, 2016, Plaintiff was seen for pain in both hands with
the pain worse in the right hand. [AR 1041] On April 19, 2016, Plaintiff had surgery on
her right hand for carpel tunnel syndrome. [AR 1032] At a follow-up appointment on May
20, 2016, Plaintiff reported that she was pleased with the surgery and that she was no
longer having nighttime pain. [AR 1035] Plaintiff had full range of motion in her fingers
and mild sensitivity, but it was noted that Plaintiff was having pain in her left hand. [Id.]
6. Obesity
At the time of her application, Plaintiff reported that she was five feet, five inches
tall and weighed 250 pounds. [AR 349] Although Plaintiff’s medical records make
references to her attempts to lose weight, exercise has been difficult due to Plaintiff’s
abdominal pain and Plaintiff has remained obese throughout the relevant period. [See,
e.g., AR 430, 487, 549, 743, 815, 979]
B.

Procedural History

Plaintiff’s applications for DIB and SSI were initially denied on April 30, 2013. [AR
36-45, 46-55] Plaintiff’s application for DIB was subsequently reconsidered and was
again denied on October 17, 2013. [AR 59-71] On October 30, 2013, Plaintiff filed a
request for a hearing before an Administrative Law Judge (“ALJ”).

[AR 160] An initial

hearing was conducted before ALJ Kathryn Burgchardt on October 2, 2014, at which
Plaintiff and vocational expert (“VE”) Van Iderstein both testified. [AR 1070-93] Plaintiff
was represented by attorney James P. Guthro. [Id.; see also AR 403-06]
On December 18, 2014, the ALJ issued a decision denying Plaintiff benefits. [AR
1120-33] On December 23, 2014, the ALJ issued an amended decision, which “d[id] not
change the contents of the decision in any way” but rather “simply ensure[d] that [Plaintiff]

13

receive[d] the correct exhibit list.” [AR 128-39] Plaintiff requested a review of that
decision by the Appeals Council [AR 186], and Plaintiff’s attorney submitted a brief in
support of the request for review [AR 403-06]. On July 13, 2015, the Appeals Council
issued an order remanding Plaintiff’s case to the ALJ. [AR 140-43]
On remand, ALJ Burgchardt conducted a second hearing on June 8, 2016, at
which Plaintiff and VE Bonnie Sue Martindale both testified. [AR 1094-1115] Plaintiff
was again represented by attorney Guthro. [Id.] On July 27, 2016, the ALJ issued a
decision denying Plaintiff benefits. [AR 23-35] Plaintiff requested a review of that decision
by the Appeals Council [AR 21], and Plaintiff’s attorney submitted a brief in support of the
request for review [AR 1116-17]. On January 26, 2017, the Appeals Council denied
Plaintiff’s request for review. [AR 15-18]
Plaintiff then filed an appeal with this Court on March 24, 2017. 5 [#1] Because the
Appeals Council denied Plaintiff’s appeal, the ALJ’s July 27, 2016 decision is the final
decision of the Commissioner for purposes of this appeal. See 20 C.F.R. §§ 404.981,
416.1481, 422.210.
C.

The ALJ’s Decision

The ALJ denied Plaintiff’s applications for DIB and SSI after evaluating the
evidence pursuant to the five-step sequential evaluation process. [AR 26-35] At step

5

On August 23, 2017, Defendant moved the Court for an order remanding the case back
to the Commissioner for further administrative action, because some of the administrative
record could not be located. [#15] The Court granted the motion and remanded the case.
[#16] Almost a year later, on July 23, 2018, Defendant moved the Court to reopen the
case, because the Appeals Council located the paper folder associated with the case and
could “prepare[ ] a complete copy of the administrative record.” [#17] A copy of the
Administrative Record was filed contemporaneously with the motion to reopen. [#18] The
Court granted the motion and reopened the case. [#19] Defendant subsequently filed
three supplements to the Administrative Record. [See #20, 26, 27]
14

one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since
November 20, 2012, the amended alleged onset date. [AR 29] At step two, the ALJ
found that Plaintiff had the following severe impairments: “(1) Obesity; (2) Degenerative
changes of the lumbar spine; (3) Status post-bilateral knee replacements; (4)
Degenerative changes of the left shoulder; (5) Abdominal pain, status post multiple
abdominal surgeries; (6)[ ] Dequervain’s tenosynovitis of the right wrist[;] and (7) bilateral
carpal tunnel syndrome.” [Id.] At step three, the ALJ concluded that Plaintiff does not
have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in the appendix of the regulations. [Id.]
Following step three, the ALJ determined that Plaintiff retained the RFC to perform
“sedentary work” as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), but with the
following limitations:
[Plaintiff] can lift and carry less than 10 pounds frequently and up to 10
pounds occasionally; can stand and/or walk with normal breaks for two
hours in an eight-hour workday; can sit with normal breaks for six hours in
an eight-hour workday; can perform pushing and pulling with the upper and
lower extremities within the aforementioned weight limitations; can
occasionally climb, balance, stoop, crouch, kneel and crawl; can
occasionally climb[ ] ladders, ropes or scaffolds, and can perform activities
requiring bilateral manual dexterity for both gross and fine manipulation with
handling and reaching, but fine manipulation bilaterally is limited to
frequently.
[Id. at 30] The ALJ provided a narrative setting forth the evidence and medical opinions
considered in determining the RFC. [AR 30-34]
At step four, the ALJ found that Plaintiff could perform past relevant work as an
office manager, bookkeeper, and receptionist as generally performed in the national

15

economy. 6 [AR 34] Accordingly, the ALJ determined that Plaintiff was not under a
disability from July 1, 2011 (the originally claimed onset date) through July 27, 2016 (the
date of the ALJ’s decision). [AR 34-35]
III.

ANALYSIS
Plaintiff raises two challenges to the ALJ’s decision on appeal. First, Plaintiff

contends that the ALJ violated Plaintiff’s procedural due process rights by relying on a
medical opinion that was not part of the record until this appeal. [#28 at 39-41] Second,
Plaintiff argues that the ALJ’s RFC determination is not supported by substantial
evidence. [Id. at 41-46] Because the Court agrees that Plaintiff’s procedural due process
rights were violated based upon the ALJ’s reliance on a medical opinion that was not part
of the record at the time of the June 8, 2016 hearing, and that such violation requires
reversal and remand, the Court does not reach Plaintiff’s alternative argument. See
Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (declining to “reach the
remaining issues raised by appellant because they may be affected by the ALJ’s
treatment of [the] case on remand”).
A.

The Procedural Due Process Violation

The ALJ supported her determination that Plaintiff was not disabled, in part, by
giving “significant weight” to the medical opinion of a state agency physician. [AR 34] As
the ALJ explained,

6

At step four, a claimant will be determined to be “not disabled” when it is determined
that the claimant retains the RFC to perform either (1) the actual functional demands and
job duties of a particular past relevant job as performed by the claimant; or (2) the
functional demands and job duties of that job as generally required by employers
throughout the national economy. See Social Security Ruling 82-61, 1982 WL 31387
(1982); Andrade v. Sec’y of Health & Human Servs., 985 F.2d 1045, 1051 (10th Cir.
1993).
16

On October 15, 2013, State agency physician DMB, M.D. reviewed the file
and opined that the claimant could perform light work with occasional
postural activities. Exh. 6A, pp. 10, 11 [AR 68-69]. This opinion is given
significant weight. It was rendered after a thorough review of the record,
and is consistent with the record as a whole. Furthermore, State agency
medical and psychological consultants are highly qualified physicians and
psychologists who are experts in the evaluation of the medical issues in
disability claims under the [SSA]. SSR 96-6p. However, as this
assessment was performed several years ago, the undersigned finds that
the above reduced sedentary exertional level is more appropriate based
upon the evidence as a whole.
[Id.]
On appeal, Plaintiff contends that the ALJ’s reliance on the medical opinion of state
agency physician DMB (the “DMB Opinion”)—located in Exhibit 6A of the Administrative
Record [AR 59-71] 7—violated her right to procedural due process, because Exhibit 6A
“was never admitted into the record at [the June 8, 2016] hearing” and “Plaintiff never had
access to” Exhibit 6A. [#28 at 39, 40] Plaintiff argues that this violated her procedural
due process rights, because it denied her the opportunity at the June 8, 2016 hearing to
cross-examine the physician or to rebut the DMB Opinion. [Id. at 40]
“Social security hearings are subject to procedural due process considerations.”
Yount v. Barnhart, 416 F.3d 1233, 1235 (10th Cir. 2005). Pursuant to the SSA, “the
Commissioner shall give [the] applicant . . . reasonable notice and opportunity for a
hearing with respect to [the Commissioner’s disability] decision, and, if a hearing is held,
shall, on the basis of evidence adduced at the hearing, affirm, modify, or reverse the
Commissioner’s findings of fact and such decision.” 42 U.S.C. § 405(b)(1) (emphasis
added); see also 42 U.S.C. § 1383(c)(1)(A). The regulations further provide that “[t]he

7

Exhibit 6A consists of the Disability Determination Explanation for the Commissioner’s
denial of Plaintiff’s DIB claim at “the Reconsideration level,” prior to Plaintiff’s first hearing
before the ALJ. [AR 59]
17

administrative law judge must base the decision on the preponderance of the evidence
offered at the hearing or otherwise included in the record.” 20 C.F.R. §§ 404.953(a),
416.1453(a). The Tenth Circuit has made clear, however, that due process requires that
“[i]f the ALJ’s decision is based on evidence ‘otherwise included in the record,’ the
regulation must be construed to require that this evidence be gathered and presented to
the claimant prior to the hearing.” Allison v. Heckler, 711 F.2d 145, 147 n.2 (10th Cir.
1983).
1. Whether Plaintiff Had Notice of the DMB Opinion in Advance of the
June 8, 2016 Hearing
In response to Plaintiff’s procedural due process argument, Defendant first
challenges the factual predicate for the argument. [#29 at 12-13] Although Defendant
concedes that “[a]t the time the 2014 ALJ hearing notice was issued, the exhibit list that
was sent to Plaintiff included only Exhibits 1A and 2A, while [the DMB Opinion] is [Exhibit]
6A” [id. at 12 (citing AR 1134, 1144)], Defendant contends that “between the [2014]
hearing notice and the ALJ’s 2014 hearing decision, Exhibit 6A was added to the exhibit
list” [id. (citing AR 1120, 1132)]. Defendant thus concludes that the DMB Opinion “was
added to the record prior to the [June 8, 2016] administrative hearing and prior to the
[2016] ALJ decision.” [Id.]
Although initially compelling, a closer review of the Administrative Record reveals
a fundamental error in Defendant’s argument. Defendant’s contention that Exhibit 6A
was added to the exhibit list “between the [2014] hearing notice and the ALJ’s 2014
hearing decision” relies exclusively upon the exhibit list that was attached to the ALJ’s
Notice of Decision, dated December 18, 2014. [AR 1120-33] On December 23, 2014,
however, the ALJ issued an Amended Notice of Decision, which explicitly stated that it
18

“d[id] not change the contents of the decision in any way” but rather “simply ensure[d] that
[Plaintiff] receive[d] the correct exhibit list.” [AR 128-39] The Administrative Record filed
by Defendant does not include a copy of the exhibit list that was attached to the December
23, 2014 Amended Notice of Decision, but Plaintiff submitted a copy of that exhibit list
with her reply in support of this appeal. 8 [See #30-1] The exhibit list attached to the
Amended Notice of Decision—which the ALJ explicitly represented to be “the correct
exhibit list”—did not include Exhibit 6A but rather identified only Exhibits 1 and 2 under
the Part A exhibits. [Id.]
Although the exhibit list attached to the Amended Notice of Decision did not include
Exhibit 6A [#30-1], the ALJ’s decision attached to the Amended Notice of Decision cited
to Exhibit 6A and referenced the DMB Opinion [AR 138]. Plaintiff’s brief submitted in
support of her request for review of that decision argued that the ALJ erred in relying on
the DMB Opinion and Exhibit 6A, because “there is no Exhibit 6A,” “‘DMB, MD’ never
examined this claimant’s file,” and the ALJ’s decision thus “[was] based upon an apparent
conflation of two files.” [AR 403 (emphasis in original)] The Appeals Council granted the
request for review, vacated the ALJ’s December 2014 decision, and remanded the matter
back to the ALJ on other grounds without addressing Plaintiff’s arguments about the ALJ’s
reliance on the DMB Opinion and Exhibit 6A. [AR 142-43]

8

Defendant has not challenged the authenticity of the exhibit list submitted by Plaintiff
and represented to be the exhibit list that was attached to the Amended Notice of
Decision. To the extent an authentic copy of the exhibit list attached to the Amended
Notice of Decision had not been included in the record, remand would be required. See
Quintana v. Colvin, No. 14-CV-00930-KLM, 2015 WL 3412331, at *9 (D. Colo. May 28,
2015) (“A court has the authority to remand a case for further consideration if unable to
exercise meaningful or informed judicial review because of an inadequate administrative
record.” (quotation omitted)).
19

More importantly, after the ALJ issued her December 2014 decision and prior to
the June 8, 2016 administrative hearing, the Social Security Administration sent Plaintiff
a letter, dated August 31, 2015, stating that Plaintiff’s file was ready for review and
enclosing a copy of the exhibit list. [AR 407-08] Although the Administrative Record filed
by Defendant does not include a copy of the exhibit list that was attached to the August
31, 2015 Letter, Plaintiff submitted a copy of that exhibit list with her reply in support of
this appeal. 9 [See #30-2] The exhibit list attached to the August 31, 2015 Letter did not
include Exhibit 6A but rather identified only Exhibits 1 through 4 under the Part A exhibits.
[Id.] Plaintiff thus was not placed on notice, prior to the June 8, 2016 hearing, that Exhibit
6A was part of the record that would be considered by the ALJ.
Nor is it clear that Exhibit 6A was among the exhibits admitted into the record by
the ALJ at the June 8, 2016 hearing. [AR 1097] In introducing the evidence, the ALJ
stated:
Okay, so at this time I admit the information that we have into evidence. We
have additional extensive additional [sic] new evidence since our 2014
hearing. I believe 31F through 38F is new for this hearing, so that is now
admitted into evidence.
[Id.] The transcript of the June 8, 2016 hearing goes on to state: “Exhibits 1A through
38F, previously identified, were received into evidence and made part of the record.” [Id.]
Neither the ALJ nor the transcript either (1) specifically identify the number of Part A
exhibits being introduced or (2) identify where these exhibits were “previously identified.”
[Id.] The ALJ’s statements at the hearing and the transcript’s identification of the exhibits

9

Defendant has not challenged the authenticity of the exhibit list submitted by Plaintiff
and represented to be the exhibit list that was attached to the August 31, 2015 Letter. To
the extent an authentic copy of the exhibit list attached to the August 31, 2015 Letter had
not been included in the record, remand would be required. See Quintana, 2015 WL
3412331, at *9.
20

thus are entirely consistent with the exhibit list Plaintiff received with the August 31, 2015
Letter, which failed to identify Exhibit 6A as an exhibit that the ALJ would consider as part
of the disability determination.
Given that Plaintiff was not provided notice that Exhibit 6A was part of the record
either prior to or during the June 8, 2016 hearing, the Court does not find persuasive
Defendant’s contention that “[i]f Plaintiff believed the ALJ should not have considered [the
DMB Opinion], Plaintiff should have raised an objection to the ALJ” at the June 8, 2016
administrative hearing. [#29 at 12-13] Defendant has failed to point to anything in the
record that would have placed Plaintiff on notice—prior to or during the June 8, 2016
hearing—that the DMB Opinion contained in Exhibit 6A would be considered by the ALJ
in connection with her application. Moreover, after the ALJ issued her 2016 decision
denying Plaintiff benefits based, in part, on the DMB Opinion contained in Exhibit 6A,
Plaintiff renewed her objection to the Appeals Council that “[t]here is no record authored
by State Agency Physician DMB, M.D. and there is no Exhibit 6A.” [AR 1116-17]
2. Prejudice
Defendant further argues that, even if the DMB Opinion was not properly relied
upon by the ALJ, “any error was harmless because [the DMB Opinion] is nearly identical
to” another medical opinion in the record of which Plaintiff had notice and access prior to
the June 8, 2016 hearing. [#29 at 13] Specifically, Defendant refers to the opinion of “Dr.
S” contained in Exhibit 2A, the Disability Determination Explanation for the
Commissioner’s denial of Plaintiff’s DIB claim at “the Initial level.” [AR 46-55] Defendant
contends that “[l]ike [DMB], Dr. S. opined that Plaintiff could lift and carry 20 pounds
occasionally and 10 pounds frequently; sit, stand, and walk six hours in an eight-hour day;
and occasionally perform postural activities.” [#29 at 13 (citing AR 52-53)]
21

The ALJ, however, did not rely upon Dr. S’s opinion in reaching her conclusion that
Plaintiff was not disabled. [See AR 26-35] Indeed, for reasons not articulated in the
record, the ALJ did not even mention Dr. S’s opinion in her decision. Despite this silence,
Defendant asks this Court to adopt Dr. S’s opinion as a rationalization for the ALJ’s
decision. The Court is not permitted to do so. As the Tenth Circuit has made clear, this
Court “may not create or adopt post-hoc rationalizations to support the ALJ’s decision
that are not apparent from the ALJ’s decision itself.” Haga v. Astrue, 482 F.3d 1205,
1207-08 (10th Cir. 2007).
Moreover, courts in the Tenth Circuit have found that an applicant is denied due
process—and thereby prejudiced—where the ALJ relies upon evidence not made part of
the administrative record prior to the administrative hearing. See, e.g., Yount, 416 F.3d
at 1236 (finding that applicant was denied a full and fair hearing, because “[the applicant’s]
attorney was not able to rebut the report or to cross-examine the doctor, the vocational
expert, or [the applicant] in light of the additional evidence” added to the record after the
hearing); Allison, 711 F.2d at 147 (“An ALJ’s use of a post-hearing medical report
constitutes a denial of due process because the applicant is not given the opportunity to
cross-examine the physician or to rebut the report”); Blevins v. Colvin, No. CIV-15-159SPS, 2016 WL 5408130, at *3 (E.D. Okla. Sept. 28, 2016) (reversing and remanding
where ALJ relied upon documents not included in the administrative record until the
appeal); Quintana v. Colvin, No. 14-CV-00930-KLM, 2015 WL 3412331, at *9 (D. Colo.
May 28, 2015) (finding that “Plaintiff’s counsel could not meaningfully develop the record”
where ALJ relied upon a prior decision of the Commissioner that was not included in the
record in advance of the administrative hearing).

22

Because the ALJ relied upon a medical opinion that was not made part of the
record until after the June 8, 2016 hearing, the Court finds that Plaintiff’s counsel was
precluded from rebutting the DMB Opinion or examining Plaintiff, the vocational expert,
and/or DMB in light of that evidence at the hearing. Plaintiff thus was denied her due
process right to a full and fair hearing and the ALJ’s decision must be reversed.
B.

Plaintiff’s Request for Remand with an Immediate Award of Benefits

Plaintiff requests that “the Commissioner’s finding of not disabled be reversed and
the plaintiff [be] awarded benefits, absent a hearing on remand.” [#28 at 46] In support,
Plaintiff argues that “[t]his case has gone to hearing twice and the record is well
developed. In light of that and the significant delays in processing the claim, [P]laintiff
asks [the] Court to take the extraordinary step of finding her disabled.” [Id.]
“Outright reversal and remand for immediate award of benefits is appropriate when
additional fact finding would serve no useful purpose.” Sorenson v. Bowen, 888 F.2d
706, 713 (10th Cir. 1989) (quotation omitted). Here, Plaintiff contends that her procedural
due process rights were violated because the ALJ relied upon a medical opinion that was
not part of the record at the time of the hearing on her application and thus Plaintiff “[was]
not given the opportunity to cross-examine the physician or to rebut the [opinion].” [#28
at 40 (quoting Allison, 711 F.2d at 147)] Further fact finding thus is necessary to allow
Plaintiff the opportunity to rebut the medical opinion upon which the ALJ relied in
determining that she was not disabled. The Court thus declines Plaintiff’s request that
the Court make a finding that she is entitled to benefits.

23

IV.

CONCLUSION
Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that the

decision of the Commissioner that Plaintiff is not disabled is REVERSED and this matter
is REMANDED for further proceedings consistent with this Order.

DATED: April 2, 2019

BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge

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