Moore v. Commissioner, Social Security Administration

Filing 30

ORDER Plaintiff Bradley L. Moore, appeals from the Social Security Administration ("SSA") Commissioner's final decision denying his application for disability insurance benefits ("DIB"), filed pursuant to Title II of the S ocial Security Act, 42 U.S.C. §§ 401433. Jurisdiction is proper under 42 U.S.C. § 405(g). SSA's decision is REVERSED, and this case is REMANDED for proceedings consistent with this opinion, by Judge Lewis T. Babcock on 11/5/2018. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Action No. 1:17-cv-01375-LTB
BRADLEY L. MOORE,
v.

Plaintiff,

NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________________
ORDER
_____________________________________________________________________________
Plaintiff Bradley L. Moore, appeals from the Social Security Administration
(“SSA”) Commissioner’s final decision denying his application for disability
insurance benefits (“DIB”), filed pursuant to Title II of the Social Security Act, 42
U.S.C. §§ 401–433. Jurisdiction is proper under 42 U.S.C. § 405(g). Oral argument
would not materially assist me in the determination of this appeal.
After consideration of the parties’ briefs, as well as the administrative record,
I REVERSE and REMAND the Commissioner’s final order for further proceedings.
I.

STATEMENT OF THE CASE

Plaintiff is a 58 year-old man who has a GED. [Administrative Record (“AR”)
123] He seeks judicial review of SSA’s decision denying his application for DIB. Pl.’s
Br., ECF No. 21 at 1. Plaintiff filed his application in March 2014 alleging that his
disability began in March 2012 (although this was amended during an oral hearing
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to November 2012). [AR 115, 250]
The application was initially denied on May 14, 2014. [AR 156] The
Administrative Law Judge (“ALJ”) conducted two evidentiary hearings and issued a
written ruling on September 23, 2015. [AR 95–107, 113–19, 120–51] In that ruling,
the ALJ denied Plaintiff’s application on the basis that he was not disabled because,
considering his age, education, and work experience, he had the residual functional
capacity to perform jobs that exist in significant numbers in the national economy.
[AR 106] The SSA Appeals Council subsequently denied Plaintiff’s administrative
request for review of the ALJ’s determination, making SSA’s denial final for the
purpose of judicial review. [AR 1–3]; see 20 C.F.R. §404.981. Plaintiff timely filed
his complaint with this court seeking review of SSA’s final decision. ECF No. 1.
II.

RELEVANT MEDICAL HISTORY

In November 2012, Plaintiff fell and had an MRI showing foraminal
narrowing, osteophytes, and disc protrusion. [AR 751] He also had disc
degeneration, numbing in his arm, and a severely limited range of motion in his
neck. [Id.] Jaymi Devans, FNP, and others from the Salud Family Health Centers
saw Plaintiff over the proceeding years. [See e.g. AR 690, 698, 702, 718, 770]
Devans stated that Plaintiff was in a cervical collar which allowed no movement of
his head nor lifting of his arms and was in a great deal of pain. [AR 801] Devans
noted that Plaintiff’s lack of insurance limited his referral options. [AR 790]
Plaintiff was prescribed Oxycodone and told Devans he would attempt to
obtain Medicaid. [AR 788] He entered into a narcotics contract after finishing the

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medication early and continued his attempt to obtain Medicare after initial denial.
[AR 785–86] Plaintiff’s pain persisted and he sought pain management, even
though he would have to pay without insurance. [AR 779] Plaintiff began to taper
his medicine and managed his pain. [AR 772]
Past his date last insured, Plaintiff noted that his back and neck pain flared
when he had to take a flight. [AR 770] In early 2014, after being approved for
Medicaid, Plaintiff underwent a decompression and fusion surgery. [AR 363, 801,
816] A few weeks after the surgery, he was noted to be doing well and was happy as
he had regained function and sensation in his right arm and hand, but was with
similar pain as to before the surgery. [AR 712] However, Plaintiff fell again in mid2014, leading to severe back pain and seeking other options despite being on a high
dose of pain medication. [AR 706–08] Plaintiff had lumbar foraminotomy surgery
and subsequent infections related to the surgery. [AR 503–04, 698, 859] In 2015,
Plaintiff underwent another fusion surgery. [AR 834] This surgery failed and in
2016, he had yet another spinal fusion surgery. [AR 17–20]
III.

LEGAL STANDARDS

A. SSA’s Five-Step Process for Determining Disability
A claimant is “disabled” under Title II of the Social Security Act if he is
unable 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.” 42 U.S.C. § 423(d)(1)(A); see Bowen v. Yuckert, 482 U.S. 137,
140 (1987). SSA has established a five-step sequential evaluation for determining
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whether a claimant is disabled and thus entitled to benefits. 20 C.F.R. § 404.1520.
At step one, SSA asks whether the claimant is presently engaged in
“substantial gainful activity.” If he is, benefits are denied and the inquiry stops.
20 C.F.R. § 404.1520(b). At step two, SSA asks whether the claimant has a “severe
impairment”—that is, an impairment or combination of impairments that
“significantly limits [his] physical or mental ability to do basic work activities.”
20 C.F.R. § 404.1520(c). If he does not, benefits are denied and the inquiry stops. If
he does, SSA moves on to step three, where it determines whether the claimant’s
impairments “meet or equal” one of the “listed impairments”—impairments so
severe that SSA has determined that a claimant who has them is conclusively
disabled without regard to the claimant’s age, education, or work experience.
20 C.F.R. § 404.1520(d). If not, SSA goes to step four.
At step four, SSA determines the claimant’s residual functional capacity
(“RFC”)—that is, what he is still able to do despite his impairments—and asks
whether the claimant can do any of his “past relevant work” given that RFC.
20 C.F.R. § 404.1520(e). If not, SSA goes to the fifth and final step, where it has the
burden of showing that the claimant’s RFC allows him to do other work in the
national economy in view of his age, education, and work experience.
20 C.F.R. § 404.1520(g). At this step, SSA’s “grid rules” may mandate a finding of
disabled or not disabled without further analysis based on the claimant’s age,
education, and work experience. 20 C.F.R. Pt. 404, Subpt. P, App. 2.
In contrast with step five, the claimant has “the burden of establishing a

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prima facie case of disability at steps one through four.” Doyal v. Barnhart, 331
F.3d 758, 760 (10th Cir. 2003).
B. Standard of Review
My review concerns only whether SSA’s factual findings are supported by
substantial evidence and whether the correct legal standards were applied. Vigil v.

Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015). With regard to the law, reversal may
be appropriate when SSA either applies an incorrect legal standard or fails to
demonstrate reliance on the correct legal standards. Kellams v. Berryhill, 696 F.
App’x 909, 911 (10th Cir. 2017). With regard to the evidence, I must “determine
whether the findings of fact . . . are based upon substantial evidence, and inferences
reasonably drawn therefrom. If they are so supported, they are conclusive upon the
reviewing court and may not be disturbed.” Trujillo v. Richardson, 429 F.2d 1149,
1150 (10th Cir. 1970).
“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). The record must
demonstrate that the ALJ considered all the evidence, but an ALJ is not required to
discuss every piece of evidence. Clifton v. Chater, 79 F.3d 1007, 1009–10 (10th Cir.
1996). I examine the record as a whole and may not reweigh the evidence or
substitute my judgment for that of the ALJ. Flaherty v. Astrue, 515 F.3d at 1070.
IV.

THE ALJ’S RULING

In his ruling, the ALJ followed the five-step analysis outlined supra. The ALJ
concluded under the first step that Plaintiff had not engaged in substantial gainful
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activity during the period from alleged onset date of March 1, 2012 through his date
last insured of June 30, 2013. [AR 100] Under step two, the ALJ determined that
Plaintiff had the “following severe impairments: herniation of cervical
intervertebral disc with radiculopathy and hepatitis C.” [Id.]
The ALJ concluded under step three that the enumerated severe
impairments did not meet or medically equal an impairment in 20 C.F.R., Pt. 404,
Subpt. P, App. 1 (the “Listing”). [Id.] The ALJ found that Plaintiff had the RFC to
perform light work except that he was limited in that he could
[L]ift and/or carry 20 pounds occasionally and 10 pounds frequently,
stand and/or walk for 4 hours in an 8 hour workday, and sit for 6 hours
in an 8 hour workday. The claimant can never climb ladders, ropes, or
scaffolds, but can otherwise occasionally climb, stoop, kneel, crouch, and
crawl. The claimant was unable to reach overhead more than
occasionally. The claimant must avoid concentrated exposure to
extreme cold and hazards such as unprotected heights. The claimant
required a sit-stand option every 20 minutes, for up to 5 minutes. The
claimant was unable to move his head to the left, right, or up and down,
and must leave his head in a static posture.
[AR 101]
The ALJ found that Plaintiff was unable to perform past relevant work,
fulfilling step four. [AR 105] In the fifth and final step, the ALJ found that jobs
existed in significant numbers in the national economy that Plaintiff could perform.
[AR 106–07] The ALJ supported his decision based in part by the testimony of the
VE and related hypotheticals, and found that Plaintiff could be a merchandise
marker, cashier, or collator operator. [AR 107] Thus, the ALJ concluded that
Plaintiff is not disabled. [Id.]

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V.

ISSUE ON APPEAL

In appealing the ALJ’s decision, Plaintiff argues that the ALJ erred solely by
failing to properly evaluate the credibility of Plaintiff’s subjective complaints of
pain. Plaintiff argues that the ALJ erred in his evaluation of Plaintiff’s credibility
by: (1) ignoring Plaintiff’s attempt to seek care for his neck pain; (2) failing to
consider the effectiveness of Plaintiff’s pain medication; (3) failing to consider the
significance of Plaintiff’s struggle to obtain Medicaid; (4) selectively choosing parts
of the record without sufficient context; and (5) misinterpreting evidence from after
Plaintiff’s date last insured.
A. Plaintiff’s credibility determination
Subjective complaints of pain are considered by the ALJ in evaluating
whether a claimant has a disability. 20 C.F.R. § 404.1529. Credibility
determinations are particularly suited to the finder of fact and must be supported
by substantial evidence. Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010). A
claimant’s subjective allegation of pain is not by itself sufficient to establish
disability. Franklin v. Astrue, 450 F. App’x 782, 789 (10th Cir. 2011) (quoting

Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993)) (unpublished).
Instead, the ALJ must determine: (1) whether the claimant established a
pain-producing impairment by objective medical evidence; (2) if there was a “loose
nexus” between the impairment and the subjective allegations of pain; and (3) when
considering all the evidence, the pain was in fact disabling. Id. (quoting Musgrave v.

Sullivan, 966 F.2d 1371, 1375–76 (10th Cir. 1992)); see SSR 96-7p, 1996 WL 374186
at *4 (Jul. 2, 1996)) (“When evaluating the credibility of an individual’s statements,
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the adjudicator must consider the entire case record and give specific reasons for
the weight given to the individual’s statements.”).
The ALJ must consider a variety of factors in determining credibility,
including
1.[t]he individual’s daily activities; 2.[t]he location, duration, frequency,
and intensity of the individual’s pain or other symptoms; 3. [f]actors that
precipitate and aggravate the symptoms; 4.[t]he type, dosage,
effectiveness, and side effects of any medication the individual takes or
has taken to alleviate pain or other symptoms; 5.[t]reatment, other than
medication, the individual receives or has received for relief of pain or
other symptoms; 6.[a]ny measures other than treatment the individual
uses or has used to relieve pain or other symptoms (e.g., lying flat on his
or her back, standing for 15 to 20 minutes every hour, or sleeping on a
board); and 7.[a]ny other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.

Hamlin v. Barnhart, 365 F.3d 1208, 1220 (10th Cir. 2004) (citing SSR 96-7p, 1996
WL 374186 at *3) (alterations in original).
In the hearing, Plaintiff spoke to his experiences of pain and his ability to
work, both before and after his date last insured. He noted that in 2012 and 2013 he
was restricted from lifting over 25 to 50 pounds. [AR 125] Plaintiff stated that he
applied to work at two businesses “thinking maybe the [sic] had some kind of
program where they dealt with handicapped . . . and they told me because of the
medications and restrictions they couldn’t help me.” [AR 125]
He added that at the time of the hearing, his neck and arms seemed better,
but he had problems with his back and hip. [AR 127] Between his first fall and first
surgery, Plaintiff stated he could sit between 15 to 20 minutes and stand between
10 to 15 minutes before he was uncomfortable. [Id.] Additionally he would need to
lie down at various times “to get the pain to settle down enough to where the pain
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medicine would work.” [AR 129] At that time, Plaintiff was living in a camper and
stated he could cook by microwaving food, but he had difficulties doing laundry and
issues with shopping because he could not lift items off the shelf. [AR 139–40]
Before the first surgery, Plaintiff started having problems walking
accompanied by pain in his left hip and his back, which lead to him not sleeping.
[AR 133] He added that the back surgery he had in 2015 helped alleviate some pain
and he was generally in better shape, but he was still limited in his ability to walk
and was sore. [AR 134–37]
In his decision, the ALJ discussed Plaintiff’s credibility. The ALJ found that
Plaintiff’s “medically determinable impairments could reasonably be expected to
cause some of the alleged symptoms,” but his “statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible for the
reasons explained in this decision.” [AR 102]
The ALJ noted that much of the evidence in the record occurred after
Plaintiff’s date last insured (June 30, 2013), and as such was irrelevant. [Id.] The
ALJ found that “not only does the sparse objective medical evidence prior to the
date last insured fail to support fully the claimant’s allegations of disabling
symptoms and limitations, as discussed below, consideration of other relevant
factors also fails to support giving full credibility credit to the claimant’s alleged
symptoms and complaints.” [Id.]
Regarding Plaintiff’s initial fall, the ALJ noted that although Plaintiff alleged
this to be the catalyst of his inability to work, he was already unemployed and had

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been living in a trailer parked behind a friend’s home. [AR 103] The ALJ pointed to
the consistent notations which read that Plaintiff was alert and in no apparent
distress during his medical appointments. [Id.] The ALJ noted that Plaintiff
requested a referral to a pain management option instead of tapering his narcotic
medication. [Id.] The ALJ noted an appointment where Plaintiff sought treatment
for stomach pain, but did not mention his neck pain at that time. [Id.]
The ALJ added that, although Plaintiff “relayed having difficultly
remembering specific limitations prior the date last insured, [he] nonetheless
testified that between 2012 and 2013, he had work-related restrictions to include
lifting between 25 and 50 pounds and that he believed that he had restrictions with
bending and squatting.” [AR 103] The ALJ added that Plaintiff “had no difficulty
with cooking, and had applied for work at Home Depot and Walmart, thus further
suggesting that his limitations during this time were not as severe as to prevent all
work activity.” [AR 104]
Plaintiff argues that the ALJ seemed to disregard that Plaintiff sought care
for his neck pain and did not consider neither the effectiveness of Plaintiff’s pain
medication, nor the effect of Plaintiff’s attempts to obtain Medicaid. Pl.’s Opening
Br, ECF No. 21 at 7–8. I disagree.
Despite Plaintiff’s argument, the ALJ does not claim necessarily that
Plaintiff failed to seek treatment for his neck pain. And where the ALJ did intonate
this, he provided sufficient explanation. See Megginson v. Astrue, 489 F. App’x 260,
263 (10th Cir. 2012) (ALJ properly made an adverse credibility ruling when “clinical

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examinations routinely showed a normal gait and full (5/5) muscle strength, grip
strength, and range of motion in his right arm . . . .”) (unpublished).
The ALJ noted “sparse objective medical evidence” to support Plaintiff’s
claims. [AR 102] The ALJ added that “consideration of other relevant factors” lead
him to his conclusions on Plaintiff’s alleged symptoms. [Id.] Then, the ALJ
accurately recounted the medical records concerning Plaintiff’s neck pain. [AR 103,
733–51] He noted the medications prescribed and that Plaintiff was denied
Medicaid and was reapplying. [AR 103] He discussed the tapering of the
medications, the narcotics contract, and the medical appointments where Plaintiff
complained of neck pain, and the appointments where he did not. [Id.]
Plaintiff argues that he was motivated and actively sought treatment and
notes the ALJ should consider a claimant’s “persistent” attempt to find relief for his
pain. ECF No. 26 at 2–3 (quoting Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167
(10th Cir. 2012)). Although it was not an in-depth section of his decision, the ALJ
did just that, writing that Plaintiff “requested a referral to pain management and
indicated that he would try to find a way to pay for this expense out of pocket.” [AR
103]
Plaintiff additionally contends that the ALJ took Plaintiff’s attempt to work
out of context in that the ALJ did not note that Plaintiff was denied work because
he could not find a job that accommodated his disabilities. ECF No. 21 at 9.
However, his mere attempt at work is an appropriate consideration for the ALJ.

Newbold v. Colvin, 718 F.3d 1257, 1267 (10th Cir. 2013) (“The ALJ also noted that,
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on two separate occasions . . . [the plaintiff] had expressed an interest in returning
to work and school.”).
Plaintiff argues that the ALJ misinterpreted Plaintiff’s testimony when the
ALJ reasoned that Plaintiff’s ability to cook impinged Plaintiff’s credibility. ECF
No. 21 at 10. Plaintiff further claims that the ALJ did not consider other daily
activities where Plaintiff did need assistance. Id. It is true that the ALJ did not
specifically mention Plaintiff’s difficulties in doing laundry, shopping, and cleaning
up after his dogs. [AR 139–40] But these were the subject of brief conversation in
the hearing, and were not especially severe limitations. For example, Plaintiff
states he could not lift dog food off the shelf while shopping, but would still feed his
dogs. [AR 140] He also noted that he took care of the camper in which he lived and
that he provided for himself by putting a “microwave dinner in the oven.” [AR 139–
140]
The ALJ appropriately considered this information and provided sufficient
explanation, especially considering that the daily activities were not the only factor
on which he based the adverse credibility determination. Watts v. Berryhill, 705 F.
App’x 759, 764 (10th Cir. 2017) (holding that ALJ did not err when he described the
inconsistencies between the plaintiff’s complaints and her daily activities and did
not solely consider those daily activities) (unpublished).
As the Tenth Circuit has held, an ALJ does not necessarily err if he does not
discuss in detail testimony on a claimant’s “symptoms, limitations, daily activities,
and lack of improvement with treatment.” Megginson v. Astrue, 489 F. App’x at

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263. The ALJ need not recite a formalistic factor-by-factor recitation of the evidence,
but must merely set forth the specific evidence he relies upon in evaluating the
claimant’s credibility. Id. (quoting Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.
2000)). However, this inquiry does not end here because of the ALJ’s decision to
disregard essentially all the evidence after Plaintiff’s date last insured.
B. Considering evidence past date last insured
Plaintiff argues that the ALJ erred in multiple ways concerning his
consideration of Plaintiff’s evidence after his date last insured. First, Plaintiff notes
that the ALJ stated that the evidence after his date last insured was irrelevant, but
then inappropriately relied upon some of that evidence in his decision. Further,
Plaintiff contends that this tranche of evidence is in fact relevant, and the ALJ did
not explain why he felt it irrelevant. To this, SSA states that “[e]ven if the ALJ
should have considered subsequent records, they do not differ materially from the
records the ALJ considered in finding Plaintiff not disabled.” ECF No. 23 at 11.
A claimant must establish he had a disability on or before his date last
insured. Townsend v. Chater, 91 F.3d 160 (10th Cir. 1996); 42 U.S.C. § 423(a)(1). It
is the ALJ’s task to determine whether a claimant was capable of returning to his
past relevant work on or before that date last insured. Id. “[E]vidence documenting
a claimant’s condition after [his] date last insured may be considered if it relates to
the insured period.” White v. Berryhill, 704 F. App’x 774, 779 (10th Cir. 2017)
(citing Blea v. Barnhart, 466 F.3d 903, 913 (10th Cir. 2006)) (unpublished).
Here, the ALJ looked to treatment records the month beyond the date last
insured that identified that Plaintiff “had recently traveled via airline to take care
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of a family member earlier in the month, thus suggesting that [his] impairments at
the time of his date last insured were not as serious as alleged as part of his initial
application for benefits and subsequent appeal.” [Id.]
The ALJ specified that he considered evidence past the date last insured
because it related to Plaintiff’s overall credibility, but nonetheless found it
irrelevant to the finding of disability prior to the date last insured. [AR 104] The
ALJ explained that “while it is sometimes reasonable to infer that evidence, post
date last insured was present prior to the date last insured, the medical evidence,
activities of daily living, and history of conservative treatment weigh against that
inference.” [Id.] He continued that “evidence prior to the date last insured is more
persuasive in this case and demonstrates the claimant was able to perform work at
least at the light exertional level.” [Id.]
As summarized supra, Plaintiff had extensive medical concerns after his date
last insured, including multiple fusion surgeries. Plaintiff notes that these records
are, in relevant part, probative of his condition prior to his date last insured because
Plaintiff began to receive additional medical treatment after his date last insured as
he, at that point, was approved for Medicaid. ECF No. 21 at 12. Plaintiff argues that
his continuing treatment weighs against the ALJ’s decision and the ALJ should
have at least explained why this information was irrelevant. Id. I agree.
Plaintiff appropriately argues that there are legitimate reasons why relevant
medical evidence may not be contemporaneous with the period of the disability at
issue. Id.; Huston v. Bowen, 838 F.2d 1125, 1133 n.7 (10th Cir. 1988) (“[S]upporting

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medical evidence need not be developed simultaneously with the onset of disabling
pain in every case” and “[i]n some situations it will be enough if, at some point,
objective medical evidence is developed that, in combination with nonmedical
evidence, supports a finding of disability during the period at issue.”).
In Hardman v. Barnhart, the plaintiff had an MRI performed after his date
last insured. 362 F.3d 676, 677 (10th Cir. 2004). The court remanded, in part, so the
ALJ could consider that MRI because the court found it may substantiate the
plaintiff’s credibility on his pain. Id. at 681. In Hardman, the ALJ did not have the
opportunity to view the MRI at first because the it occurred after the ALJ’s decision
and SSA’s “Appeals Council considered the new MRI evidence, but concluded, without
explanation, that it did not provide a basis for changing the ALJ’s decision.” Id. at
678.
That procedural posture did not occur here, as the ALJ had the pertinent
evidence from after Plaintiff’s date last insured. [AR 103–04] However, the ALJ
stated he found evidence after the date last insured irrelevant, but did not provide
explanation why “evidence prior to the date last insured is more persuasive in this
case and demonstrates the claimant was able to perform work at least at the light
exertional level.” [AR 104] It escapes me how multiple fusion surgeries do not provide
at least some relevance to Plaintiff’s credibility concerning allegations of pain during
the relevant period. I presume that Plaintiff and his counsel pursued appropriate
actions regarding his state after his date last insured to which this case relates.
Thus, the ALJ “failed to discuss the significantly probative evidence

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supporting claimant’s allegations upon which he chose not to rely.” Hardman v.

Barnhart, 362 F.3d at 681. As explained supra, this evidence may lead the ALJ to
find Plaintiff’s subjective complaints of pain more credible. Therefore, the ALJ must
reconsider Plaintiff’s credibility after providing more analysis regarding the evidence
after his date last insured.
VI.

CONCLUSION

For the above reasons, SSA’s decision is REVERSED, and this case is
REMANDED for proceedings consistent with this opinion.

Dated: November 5, 2018, in Denver, Colorado.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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