Dilts v. Commissioner, Social Security Administration

Filing 20

ORDER: Case is reversed and remanded for further findings. By Judge R. Brooke Jackson on 12/18/18. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 17-cv-2974-RBJ
BRADLEY DILTS,
Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security,
Defendant.

ORDER

This matter is before the Court on review of the Social Security Administration (“SSA”)
Commissioner’s decision denying claimant Bradley Dilts’s application for disability insurance
benefits (“DIB”) under Title XVI of the Social Security Act. Jurisdiction is proper under 42
U.S.C. § 405(g). For the reasons below, the Court reverses and remands the Commissioner’s
decision.
STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if his physical
and /or mental impairments preclude him from performing both his previous work and any other
“substantial gainful work which exists in the national economy.” 42 U.S.C. §432(d)(2). To be
disabling, a claimant’s conditions must be so limiting as to preclude any substantial gainful work
for at least twelve consecutive months. See Kelly v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).
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

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decision and whether the Commissioner applied the correct legal standards. Winfrey v. Chater,
92 F.3d 1017, 1019 (10th Cir. 1996). The District Court’s determination of whether the ALJ’s
ruling is supported by substantial evidence “must be based upon the record taken as a whole.”
Washington v. Shalal, 37 F.3d 1437, 1439 (10th Cir.). A decision is not based on substantial
evidence if it is “overwhelmed by other evidence in the record.” Bernal v. Bowen, 851 F.2d 297,
299 (10th Cir. 1988). Substantial evidence requires “more than a scintilla, but less than a
preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). 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
A. Factual Background.
Mr. Dilts worked as a concrete supervisor, a concrete pointer, and a waterproofing and
caulking machine operator. R.36. He was 52 years old on the date of the ALJ’s decision, R. 36,
which the regulations define as “closely approaching advanced age.” 20 CFR § 404.1563(d).
Mr. Dilts contends that beginning in February 2014, pain in his neck and back arising from
cervical and lumbar disc degeneration and issues with a damaged shoulder and numb hand has
prevented him from engaging in substantial gainful employment.
The medical evidence before the ALJ showed that in March 2014, Mr. Dilts first
complained of neck, back, and shoulder pain to his primary care provider. R. 318. Over the next
two and half years, Mr. Dilts underwent multiple types of diagnostic imaging and tried various
treatments including chiropractic care, R. 251, physical therapy, R. 273, a steroid injection in his

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shoulder, R. 350, surgery on his shoulder, R.352, and two surgeries on his neck, R. 484-506,
610-12, 640. Mr. Dilts testified that despite these treatments, his conditions have worsened since
2013, and that he continued to experience pain and a lack of mobility that prevented him from
working consistently in this time. R. 52-63.
B. Procedural Background.
Mr. Dilts filed his claim for disability on January 7, 2015 alleging the following
conditions: neck pain, compressed discs, a numb hand, neuropathy, an upcoming neck surgery,
right arm rotator cuff issues, previous shoulder surgery, a damaged shoulder, and issues with his
lower back. R. 94-95. The disability adjudicator determined that though Mr. Dilts’s conditions
caused pain and fatigue and limited his ability to perform work, they did not prevent him from
performing lighter work. R. 104. Accordingly, his claim was denied on March 2, 2015.
Following the denial of his claim, Mr. Dilts timely requested a hearing by the Administrative
Law Judge (ALJ). R. 74-75. On October 17, 2017 Mr. Dilts appeared and testified before ALJ
Jennifer B. Millington in Denver, Colorado. R. 29-37. An impartial vocational expert, Cynthia
Ann Bartmann, also appeared at the hearing. R. 29. After the hearing, Mr. Dilts amended the
alleged date of onset of his disability from March 5, 2013 to February 18, 2014. R. 29.
C. The ALJ’s Decision.
The ALJ issued a decision denying benefits after evaluating the evidence according to the
Social Security Administration’s standard five-step process. See 20 C.F.R. § 416.920; see also
Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.2004). First, she found that Mr. Dilts had not
engaged in substantial gainful activity from his amended alleged onset date of February 18, 2014
through his date last insured was December 31, 2016. R. 31. At step two, the ALJ found that
Mr. Dilts had the following severe impairments: degenerative disc disease of the lumbar spine;

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degenerative disc disease of the cervical spine, status post cervical fusion; and obesity. R.31.
Mr. Dilts also alleged disability based on a left shoulder injury, testifying that he had difficulty
reaching overhead. R.31. The ALJ found that his July 2014 shoulder surgery was effective in
addressing his torn shoulder and that the pain in his neck and arms appear to relate to his ongoing
cervical spine condition instead. As a result, she concluded that his left shoulder injury was not a
severe impairment. R. 32. At step three, the ALJ found that Mr. Dilts did not have an
impairment or combination of impairments that met or medically equaled the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
At step four, the ALJ found that Mr. Dilts had the residual functional capacity (RFC) to
perform light work except he could only lift or carry a maximum of 10 pounds. Further, for
postural limitations, the ALJ found that Mr. Dilts could occasionally climb ramps and stairs,
climb ladders, ropes or scaffolds, balance, stoop, kneel, crouch, or crawl. R.32. She did not find
manipulative limitations (limitations in reaching, handling, or fingering). The ALJ concluded
that Mr. Dilts is unable to perform any past relevant work. R. 35–36. At step five, the ALJ
determined that there are jobs that exist in significant numbers in the national economy that Mr.
Dilts can perform. A vocational expert testified that a person who could do light work activities
but lift a maximum of 10 pounds (instead of the 20 pounds normally associated with light work)
and who could occasionally engage in postural activities would be able to perform the
requirements of the following occupations: small parts assembler, with 50,000 jobs in the United
States; production assembler, with 25,000 jobs in the United State; and bakery conveyor with
30,000 jobs in the United States. 1 R. 36. As a result, the ALJ concluded that Mr. Dilts was not
disabled. R. 37.

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However, the vocational expert estimated a 50% erosion from these usual job numbers for small parts
assembler and production assembler to account for Mr. Dilts’s 10 lbs lifting and carrying limitation.
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DISCUSSION
Mr. Dilts contends that the ALJ erred in three ways. First, Mr. Dilts argues that the ALJ
failed to properly evaluate the medical evidence and medical source opinions in determining the
RFC. He takes issue with the limited weight given to Mr. Newman’s Med-9 form and the
finding of no manipulative limitations. Second, Mr. Dilts argues that the ALJ failed to evaluate
Mr. Dilts’s subjective complaints of disabling pain as required by law in determining that he had
an RFC to perform a range of light work. He contends that his limited daily activities and
persistence in finding relief from his pain lend credibility to his testimony that he needs to lie
down often during the day and is not able to perform postural activities. Third, he contends that
the ALJ reached a conclusion at step five that is unsupported by substantial evidence - an
argument that is an extension of arguments one and two. ECF No. 14 at 16. I agree with Mr.
Dilts’s second argument. Although plaintiff requests a directed award of benefits, I find this case
does not represent an appropriate circumstance for the exercise of my discretion in that regard,
see Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th Cir. 1993), and remand the case.
A. Evaluation of the Medical Evidence and Source Opinions in RFC Determination.
1) Limited Weight Given to Mr. Newman’s Med-9 Form.
Mr. Dilts argues that it was not proper for the ALJ to give Physician Assistant Newman’s
opinion limited weight on the basis that he “was not an acceptable medical source.” R. 34. In
August 2014, Mr. Newman completed a Colorado Department of Human Services Med-9 form
in which he opined that Mr. Dilts would be disabled for at least 12 months due to chronic
cervicalgia. R. 353. The ALJ “gave little weight” to Mr. Newman’s statements because “it
addresses a different definition of disability than that of the Agency. In addition, Mr. Newman is
not an acceptable medical source and addresses an opinion reserved to the commissioner.” R.

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34. I agree with the Commissioner that these are proper bases for giving limited weight to an
opinion.
Regulations state that opinions on issues reserved to the Commissioner are not entitled to
special significance as medical opinions. 20 C.F.R. § 404.1527(d). An opinion that the claimant
is disabled is one such issue reserved to the Commissioner. The ALJ is responsible for making
the determination about whether a claimant meets the statutory definition of disability. 20 C.F.R.
404.1527(d)(1). On similar facts, the Tenth Circuit has held that a physician’s statement that he
did not know if a claimant would be able to ever return to work “was not a true medical opinion”
where it did not contain the doctor’s judgment “about the nature and severity of [the claimant’s]
physical limitations, or any information about what activities [the claimant] could still perform.”
Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir. 2008). Here, Mr. Newman’s statement that Mr.
Dilts would be disabled for at least 12 months is on an issue reserved to the Commissioner, and
therefore it is not entitled special significance.
2) Finding of No Manipulative Limitations.
Mr. Dilts argues that it was an unreasonable reading of the record to conclude that his
cervical impairments, combined with his shoulder injury, did not result in any manipulative
limitations. Because light jobs “require gross use of the hands to grasp, hold, and turn objects,”
“any limitation of these functional abilities must be considered very carefully to determine its
impact on the size of the remaining occupational base of a person who is otherwise found
functionally capable of light work.” SSR 83-14 (S.S.A. 1983).
In reaching this conclusion, the ALJ cited Dr. Weingarten’s opinion from an August 2016
consultation that Mr. Dilts has no deficits in handling and fingering. However, because the ALJ
also stated that she “[gave] limited weight to Dr. Weingarten’s opinion because the claimant was

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only two weeks post surgery at the examination,” R. 35, and Dr. Weingarten cautioned that
“[t]he physical exam in this assessment is . . . significantly limited[,]” R.369, Mr. Dilts contends
that Dr. Weingarten’s opinion was insufficient to support a conclusion of no manipulative
limitations.
However, Dr. Weingarten’s opinion was not the only thing the ALJ relied upon in
determining the existence of manipulative limitations. The ALJ noted a number of points in the
clinical history that could weigh upon manipulative limitations in her opinion: for example, a
finding of no upper extremity motor deficits in April 2016 and Mr. Newman’s 2014 report of
normal range of motion of Mr. Dilts’s arms and legs, though limited range of motion in his neck.
In turn, the ALJ also described findings of focal deficits upon sensory testing and motor testing
in July 2016, persistent issues with left hand numbness throughout this time period, and a report
of left arm numbness with pain and radiation in June 2015. R. 34-35. Mr. Dilts argues that
evidence in the record, especially latter medical findings, overwhelms Dr. Weingarten’s limited
assessment that he didn’t suffer from manipulative limitations. ECF No. 14 at 11.
Mr. Dilts highlights the following clinical findings in the record not noted by the ALJ.
First, in April 2016, Heather Duncan, a physician assistant with the Colorado Comprehensive
Spine Institute found mild atrophy in the muscles of the left hand. R. 531. In June and July
2016, Dr. Gallizi, the surgeon for Mr. Dilts’s second neck surgery, also found left grip strength
slightly decreased to 4/5 with “thenar wasting.” R. 610, 613. The record must demonstrate that
the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of
evidence. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). Rather, in addition to
discussing the evidence supporting her decision, the ALJ also must “discuss the uncontroverted
evidence [the ALJ] chooses not to rely upon, as well as significantly probative evidence [the

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ALJ] rejects.” Id. These findings are not “uncontroverted” or “significantly probative,” as they
describe only “mild” or slightly abnormal findings. The ALJ’s discussion of more serious
findings such as numbness in the arm and hand, deficits in sensory and motor testing, and limited
range of motion are sufficient for me to infer that the ALJ considered all evidence bearing on
manipulative limitations.
Mr. Dilts argues that though the medical exams reflected normal strength in his
extremities, the clinical findings were more often positive for abnormalities than not. The
evidence in the record is split with indicators of sensory deficits in the hand or arm at some
points by some medical providers and normal or only slightly abnormal findings at other points
by other medical providers. Consistently, Mr. Dilts’s testimony at the hearing focused on how
pain in his neck and back limited his activities rather than on manipulative limitations. See, e.g.
R. 53-56 (In response to question from ALJ “Tell me about your medical problems that keep you
from working now,” Mr. Dilts responds “obviously my neck” . . . “My back is just getting
progressively worse,” . . . “I’m finding myself laying down a lot”); but see 60-61 (in response to
question from his attorney Mr. Dilts affirms that he has difficulty reaching overhead and
“sometimes my left hand is still numb”). The ALJ cited findings in her RFC determination that
accurately reflect Mr. Dilts’s experience with various providers and their findings of abnormal
and normal manipulative functions. Because the ALJ relied on sufficient relevant evidence in
reaching her conclusion, while taking into account relevant contrary evidence, I uphold her
finding of no manipulative limitations.
Mr. Dilts also argues that the ALJ’s finding that he could perform occasional postural
activities was not based on substantial evidence. ECF NO. 14 at 6-11. Because this argument

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overlaps with his argument that the ALJ did not properly evaluate his subjective complaints of
disabling pain, I will address these issues together below.
B. Evaluation of Mr. Dilts’s Subjective Complaints of Disabling Pain.
Mr. Dilts argues that the ALJ failed to address his subjective pain complaints under the
three-step analysis of Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987).
Under Luna an ALJ faced with a claim of disabling pain is required to consider and
determine (1) whether the claimant established a pain-producing impairment by
objective medical evidence; (2) if so, whether the impairment is reasonably
expected to produce some pain of the sort alleged (what we term a “loose nexus”);
and (3) if so, whether, considering all the evidence, both objective and subjective,
the claimant's pain was in fact disabling.
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166–67 (10th Cir. 2012). A Social Security
Administration Ruling provides further guidance on how to evaluate statements regarding the
intensity, persistence, and limiting effects of symptoms in disability claims. SSR 16-3P (S.S.A.
Oct. 25, 2017). Symptoms, including pain, are defined as the claimant’s own statement of his
physical or mental impairment. Id. This guidance describes the process ALJs follow, which
ALJ Millington referred to in her decision:
First, we must consider whether there is an underlying medically determinable
physical or mental impairment(s) that could reasonably be expected to produce an
individual's symptoms, such as pain. Second, once an underlying physical or
mental impairment(s) that could reasonably be expected to produce an individual's
symptoms is established, we evaluate the intensity and persistence of those
symptoms to determine the extent to which the symptoms limit an individual's
ability to perform work-related activities . . . .
Id. , R. 32-33.
The Tenth Circuit has emphasized that a reviewing court should give particular deference
to an ALJ’s evaluation of a claimant’s subjective reports of limitations. Kepler v. Chater, 68
F.3d 387, 391 (10th Cir. 1995). At the same time an “ALJ ‘must articulate specific reasons for
questioning the claimant’s credibility’ where subjective pain testimony is critical.” Id. (quoting
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Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992)). The ALJ is not required to explicitly
state “I find this statement not credible” for each factual assertion but can instead list many
factual assertions, “often following them by a qualifying statement to indicate where [the ALJ]
believed [the claimant’s] testimony was contradicted or limited by other evidence in the record.”
Keyes-Zachary, 695 F.3d at 1169.
At his hearing, Mr. Dilts testified that he could sit for about 45 to 60 minutes, stand for
about 15 minutes, and walk for about 15 minutes at one time before experiencing pain. R.33.
He testified that he could not work a consistent 40 hour per week schedule as he needed to lay
down often to manage his pain. R.21. The vocational expert testified that jobs in the light work
category could require standing for up to six hours a day, though some could be accommodated
with a combination of standing and sitting. R. 71. Mr. Dilts testified that bending over to
perform simple household tasks like vacuuming caused him pain. R.62. “Occasional” postural
activities would require him to crouch, crawl, kneel, balance or stoop “from very little up to onethird of the time” he is at work. See SSR 83-14 (S.S.A. 1983). Here, we have one of those cases
where subjective pain testimony is critical.
The ALJ found that “the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of the symptoms are not entirely
consistent with the medical evidence and other evidence in the record . . . .” R. 35. Mr. Dilts
argues that the ALJ did not explain how she perceived his subjective reports to be inconsistent
with the medical evidence or identify what medical findings she relied upon in support of her
assessment.

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He cites Brownrigg v. Berryhill, where the Tenth Circuit reversed an ALJ’s pain and
credibility analysis in determining an RFC where he examined some of the objective medical
evidence and highlighted perceived inconsistencies between the claimant’s hearing testimony
and statements to medical providers but did not explain his reasons for discounting the
claimant’s pain allegations. Brownrigg v. Berryhill, 688 F. App'x 542, 546 (10th Cir. 2017).
Mr. Dilts argues that similarly here, the ALJ should have explained which aspects of Mr. Dilts’s
testimony she did not believe and why. He contends that the record reflects that he has been
persistent in his attempts to find relief from his pain since 2014, has regularly sought medical
treatment, and has shown a willingness to try any treatment prescribed. He argues that his
testimony about the symptoms he experiences is consistent with medical evidence as to the
degree of pain that could be reasonably expected from his medical conditions, and that he has
consistently complained of pain to his medical providers, none of whom have suggested Mr.
Dilts was exaggerating. I agree that the analysis of the limiting effects of Mr. Dilts’s pain,
especially his later back and neck pain, and the determination that he can perform occasional
postural activities require further explanation or reconsideration.
1) Objective Medical Evidence Weighing Upon Mr. Dilts’s Allegations of Pain.
Between February 2014 and the end of 2016, there are a number of clinical findings that
are consistent with Mr. Dilts’s described symptoms. In June 2014, after having Magnetic
Resonance Imaging (MRI) done, Mr. Dilts was examined by Peter Quintero in conjunction with
a prior disability application. R. 251. At this exam, Mr. Dilts stated that he was experiencing
neck and low back pain. R. 251. Dr. Quintero’s examination revealed decreased range of
motion of the cervical spine, right shoulder, and lumbosacral spine, but did not observe muscle
weakness, abnormal gait, nor abnormal grip strength. Dr. Quintero diagnosed Mr. Dilts with (1)

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chronic neck pain secondary to multilevel cervical arthritis, herniated cervical disc and cervical
stenosis; (2) chronic right shoulder pain – most likely secondary to rotator cuff tear; and (3)
chronic low back pain secondary to degenerative arthritis. R. 254.
After Dr. Quintero’s examination, Mr. Dilts underwent another MRI study which
revealed tears in the shoulder. R. 355. He underwent shoulder surgery in July 2014. R. 352.
Five months later, the orthopedist who performed the shoulder surgery, Dr. Rajesh Bazaz,
observed nearly normal shoulder function, and a follow-up MRI of Mr. Dilts’s shoulder showed
“a little bit of tendinitis” but otherwise normal shoulder functioning. R.446. In his appointment
with the orthopedist, Mr. Dilts reported that he was doing well until three weeks prior when he
attempted to split wood, further aggravating his right shoulder. R. 350. Dr. Bazaz administered
an injection into his shoulder to treat the inflammation. R. 350.
However, during this time of recovery from the shoulder surgery, Mr. Dilts continued to
report neck pain. In August 2014, Mr. Dilts presented to his examining clinician, Denis
Newman, for a refill of his Norco prescription for his chronic neck pain. R. 289. He requested a
consultation for spinal surgery. R. 289. At this appointment, he complained of frequent
headaches, fourth and fifth finger numbness, and chronic muscle spasms in his left trapezius
muscle. R. 289. In November 2014, Mr. Dilts saw Denis Newman again for a refill of pain
medication. R. 276.
In January 2015, Mr. Dilts visited the Neurosurgery Center of Colorado and was
evaluated by Family Nurse Practitioner (FNP) Kimberly Sexton. His reports of pain in his left
arm and neck and numbness in his hand remained constant. He also reported low back pain
going into his legs. R. 273. He had full strength in his lower extremities, although he walked
with a slow gait. R. 273. When Mr. Dilts indicated that physical therapy had been ineffective in

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relieving his pain, FNP Sexton suggested epidural steroid injections which Mr. Dilts declined.
He was referred for a follow up MRI. R. 273.
In March 2015, Mr. Dilts again visited Dr. Newman, reporting shoulder pain, neck pain,
fifth finger nerve pain, and dorsal numbness. R. 443. Dr. Newman observed a limited range of
motion in his neck. R. 444. In April, Dr. John Oro of the Neurosurgery Center reviewed Mr.
Dilts’s MRI scan, finding degenerative disks, slight anterolisthesis (spine condition involving
slippage of the upper vertebral body) and foraminal narrowing (narrowing of the cervical disc
space). R. 476. He discussed the possibility of surgical therapy to relieve pressure on the spinal
nerves and vertebral canal or steroid injections as treatment options. R. 477. Mr. Dilts indicated
that he was not interested in the injections but would be willing to try surgery. R. 484.
In August 2015, Mr. Dilts had neck surgery. R. 484-506. However, in August and
September he continued to report neck pain, left hand numbness, and mid and lower back pain to
his primary care provider, Denis Newman, and reported that his narcotic pain medicine was not
managing his pain. R. 418, 428. To investigate the source of the back pain, Mr. Newman
ordered x-rays of his low and mid back which both showed disc space narrowing, but “no
indication for intervention.” R 428, 434. He observed an “active painful range of motion” in the
cervical spine and lumbar spine, back pain with straight leg raises, and a normal gait. R.435.
Mr. Newman and Elizabeth Couture, another physician assistant at the clinic, tapered Mr. Dilts’s
narcotic pain medications from November 2015 to February 2016, while adding antiinflammatory medication and gabapentin (medication for nerve pain). R. 428, 433, 436, 440.
In April 2016, Mr. Dilts sought treatment at the Colorado Comprehensive Spine Institute,
where a doctor diagnosed Mr. Dilts with kyphotic deformity of his cervical spine with instability
“at C4-5 and at C7-T1 flexion/extension.” He reported not taking any pain medication at the

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time. R.529. He opined that the instability in his cervical spine required an anterior support
column and referred Mr. Dilts to Dr. Gallizzi for discussions about surgery. R.532. In August
2016, Mr. Dilts had a second neck surgery where he underwent a posterior fusion using rods,
pedicle screws and posterior instrumentation. R. 33, 367, 610-12, 640.
On August 30, 2016, Dr. Peter Weingarten, an orthopedic surgeon, examined Mr. Dilts as
part of his disability application. R.367. Because Mr. Dilts was told not to bend or twist in
recovering from surgery and was wearing a neck collar, Dr. Weingarten noted that “the physical
examination will be significantly limited.” R.368. Dr. Weingarten’s physical exam noted poor
balance and 50% range of motion in the lumbar spine but no muscle atrophy and good strength.
R. 368. His reviews of x-rays led him to conclude that Mr. Dilts was experiencing mild to
moderate degenerative changes in his thoracic spine, very severe disc space narrowing and
moderate degenerative changes in his lumbar spine. R.369. Dr. Weingarten concluded that
because the second operation was so recent, it would be 6 to 12 months before a satisfactory
assessment of prognosis could be made, and that Mr. Dilts should avoid vigorous activity in the
meantime. R. 367. He nonetheless opined that Mr. Dilts could never perform postural activities.
2) The ALJ’s Analysis of the Intensity, Persistence and Limiting Effects of Mr. Dilts’s
Symptoms of Neck and Back Pain.
In her Luna analysis, the ALJ states that during 2015, Mr. Dilts reported symptoms of
pain in his neck and back, as well as numbness in his left hand and leg to his medical providers.
In the next sentence, the ALJ noted that Mr. Dilts declined a steroidal injection as a treatment
option on two occasions. R. 33. The Commissioner argues that this fact reflected that Mr. Dilts
was not aggressively seeking treatment for his alleged pain, undermining his allegations. I
disagree. The record reflects that Mr. Dilts had been administered steroid injections before, and
found it to be an ineffective treatment. R. 347, 350, 411, 483 (treating physician stating in
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reference to a steroid injection to Mr. Dilts’s knee that “[i]t makes sense that the steroid injection
really did not help his symptoms because I do not really think his symptoms are intra-articular . .
. I wonder if they could have some neurologic causation.”)
Moreover, on the second occasion where Mr. Dilts declined an injection, the medical
provider discussed an injection as well as surgery as a treatment option for his neck, and Mr.
Dilts elected to pursue surgery. R. 412. A claimants’ choice of one treatment option between
two does not suggest that he is unconcerned about his condition nor does a decision to decline a
treatment after it proves ineffective. This is especially true in the context of a robust medical
record demonstrating Mr. Dilts consistently seeking care. However, it is unclear whether the
ALJ weighed the fact that Mr. Dilts declined an injection on two occasions as undermining his
allegations of pain in 2015. I remand this issue for further explanation about how the steroid
injection weighed in the Luna analysis or reconsideration.
In addition to the pain that Mr. Dilts reported in his back during 2015, the ALJ next
describes that Mr. Dilts’s reported ongoing pain in his neck along with numbness in his hand to
his medical provider in June 2015. Weighing against Mr. Dilts’s claims of pain was the fact that
“[a]n examination revealed full strength in his arms and normal grip strength . . . on August 13,
2015, the claimant had 5/5 strength in all extremities and intact sensation.” However, “[o]n June
17, 2015, the claimant had moderate pain with motion in his cervical spine along with tenderness
and moderately reduced range of motion in his lumbar spine. He had left arm numbness with
pain and radiation with straight leg raising.” On September 2015, the ALJ notes that he had an
active pain free range of motion in the lumbar spine, and a normal gait, balance, and motor skills,
and that a few months later x-rays showed only mild spondylosis and disc space narrowing.
R.34.

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However, the ALJ also describes how two months later, the claimant visited the
emergency room, and reported neck, right arm, low back, and right leg pain again. She describes
how an MRI of his cervical spine in March 2016 revealed “multilevel disc degeneration,” “a
broad based disc bulge with significant stenosis,” “a broad based disc bulge causing significant
central stenosis effacing the anterior CSF space with left uncovertebral joint hypertrophy and
moderate left foraminal stenosis,” and “severe disc degeneration with right focal paracentral disc
bulge.” R. 34. She describes how an MRI of his lumbar spine taken at the same time shows
“disc degeneration,” mild lateral and bilateral “recess stenosis,” “mild to moderate bilateral
foraminal stenosis,” and “contact of bilateral exiting L5 nerve roots.” R. 34.
This imaging is consistent with claimant’s allegations of debilitating pain that could limit
his postural activities or ability to stand for extended periods of time. However, there was no
explanation of how the results of imaging studies were weighed against Mr. Dilts’s previous
clinical findings of normal balance, gait and motor skills. The ALJ also describes how in April
2016, Mr. Dilts complained of pain in his neck and low back, but at this time the claimant had no
upper extremity motor deficits and though he walked with an antalgic gait, had no motor deficits
in his legs and negative straight leg test results. R. 35. However, the ALJ does not describe how
normal findings in the extremities were weighed against Mr. Dilts’s allegations of severe neck
and back pain.
There was also no explanation of how the ALJ weighed normal clinical findings against
the July 2016 abnormal clinical findings of “abnormal gait, painful range of motion in the
claimant’s neck, and focal deficits upon sensory and motor testing.” R.35. This is especially
necessary as the ALJ discussed that contemporaneous x-rays showed “severe degenerative disc

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disease at multiple levels of his cervical spine,” R. 35, and because these findings are consistent
with plaintiff’s testimony that his condition was worsening over time.
Mr. Dilts also takes issue with the fact that the ALJ did not mention Mr. Dilts’s daily
activities, in this analysis. R. 56-57. Factors under the regulations relevant to the determination
of the intensity, persistence and limiting effects of an individual’s symptoms include:
(i) Daily activities; (ii) The location, duration, frequency, and intensity of
your pain or other symptoms; (iii) Precipitating and aggravating factors; (iv)
The type, dosage, effectiveness, and side effects of any medication you take
or have taken to alleviate your pain or other symptoms; (v) Treatment, other
than medication, you receive or have received for relief of your pain or other
symptoms; (vi) Any measures you use or have used to relieve your pain or
other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes
every hour, sleeping on a board, etc.); and (vii) Other factors concerning
your functional limitations and restrictions due to pain or other symptoms.
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3P, 2017 WL 5180304, *7-8. An ALJ does
not need to engage in a formalistic factor-by-factor analysis. Poppa v. Astrue, 569 F.3d 1167,
1171 (10th Cir. 2009). Instead, an ALJ should discuss those factors that are “relevant to the
case.” SSR 16-3P, 2017 WL 5180304, *7-8. Here, Mr. Dilts reported that he was limited to
making simple meals occasionally, had difficulty doing laundry and grocery shopping, and that
he experienced pain in bending over to dress himself or to put food in his dog’s bowl. R. 214-22,
R. 56-57. Mr. Dilts’s daily activities are relevant to the case as they weigh upon his ability to
perform postural activities. Thus, an explanation was warranted as to if or how his daily
activities were evaluated in determining the RFC.
I remand to the ALJ with instructions to reconsider or explain further her determinations
of the persistence, intensity and limiting effects of Mr. Dilts’s pain with respect to the above
points, and to reconsider her determination of Mr. Dilts’s ability to perform occasional postural
activities.

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C. Does Substantial Evidence Support the RFC Determination at Step Five?
Mr. Dilts’s third argument is a continuation of arguments one or two. When a claimant
successfully meets their burden through step four, “the burden of proof shifts to the
Commissioner at step five to show that the claimant retains a sufficient RFC to perform work in
the national economy, given [his] age, education, and work experience.” Wells v. Colvin, 727 F.
3d 1061, 1064 n.11 (10th Cir. 2013) (citations omitted). Mr. Dilts argues that because the RFC
determination was flawed, an imprecise hypothetical was posed to the vocational expert so that
her testimony did not provide support for the Commissioner’s decision. If the ALJ changes her
RFC determination after reconsideration, I ask that she conduct a step five analysis based on
Mr.Dilts’s vocational profile and RFC, and if necessary, to obtain additional testimony from a
vocational expert for this task.
ORDER
For the reasons described above, the Court REVERSES and REMANDS the
Commissioner’s decision denying Mr. Dilts’s application for disability insurance benefits, and
instructs the ALJ to reconsider her decision or provide further explanation in accordance with the
dictates of this order.
DATED this 18th day of December, 2018.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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