Conrad v. Commissioner, Social Security Administration

Filing 20

ORDER. The decision of the Commissioner that plaintiff is not disabled is REVERSED and REMANDED for further proceedings consistent with this order, by Chief Judge Philip A. Brimmer on 6/1/20. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer

Civil Action No. 17-cv-03114-PAB
LOUIS CONRAD,
Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Complaint and Petition for Review [Docket
No. 1] filed by plaintiff Louis Conrad on December 22, 2017. Plaintiff seeks review of
the final decision of defendant Andrew M. Saul (the “Commissioner”)1 denying his claim
for disability insurance benefits under Title II of the Social Security Act (the “Act”), 42
U.S.C. §§ 401-34. The Court has jurisdiction to review the Commissioner’s final
decision under 42 U.S.C. § 405(g).2
I. BACKGROUND
In August 2016, plaintiff filed an application for disability insurance benefits

1

On June 4, 2019, the Senate confirmed Andrew M. Saul as Commissioner of
Social Security. Accordingly, Mr. Saul is substituted for Nancy A. Berryhill, former
Acting Commissioner of Social Security, as defendant in this lawsuit. See Fed. R. Civ.
P. 25(d).
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The Court has determined that it can resolve the issues presented in this
matter without the need for oral argument.

under Title II of the Act, alleging a disability onset date of August 11, 2015. R. at 94,
110, 175, 187. His claim was initially denied on January 20, 2017. R. at 113. On July
6, 2017, plaintiff appeared at a hearing before an administrative law judge (“ALJ”) to
testify regarding his disability. R. at 34. On July 13, 2017, the ALJ issued a decision
denying plaintiff’s claim. R. at 20, 29. Considering an alleged onset date of August 1,
2016, the ALJ found that plaintiff had the following severe impairments: anxiety,
obsessive-compulsive disorder, depression, schizophrenia, lumbago, and chronic
dependent edema of the right foot. R. at 20, 22. The ALJ concluded that these
impairments, alone or in combination, did not meet or medically equal of the
regulations’ listed impairments. R. at 22-23. The ALJ further determined that plaintiff
had the residual functional capacity (“RFC”) to perform light work as defined in 20
C.F.R. § 404.1567(b) with the following specific limitations:
can stand and/or walk for 6 hours in an 8-hour day; occasionally requires
use of a cane while walking; cannot climb stairs, ladders, ropes or
scaffolds; cannot be exposed to temperature extremes or unprotected
heights; limited to simple and routine work activities; and can have
occasional contact with supervisors and coworkers but no contact with the
public.
R. at 23. Based on this RFC and in reliance on the testimony given by a vocational
expert (“VE”) at the March 2016 hearing, the ALJ determined that plaintiff was unable to
perform his past relevant work but could perform other jobs existing in significant
numbers in the national economy, including the positions of merchandise marker,
electrical assembler, and laundry worker. R. at 27-28.
On November 16, 2017, the Appeals Council denied plaintiff’s request for review

2

of the ALJ’s decision. R. at 1-6.3 Accordingly, the ALJ’s decision is the final decision of
the Commissioner.
II. STANDARD OF REVIEW
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The district court may not reverse
an ALJ simply because the court may have reached a different result based on the
record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence is not
substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The district
court must not “reweigh the evidence or retry the case,” but must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515
F.3d at 1070. Nevertheless, “if the ALJ failed to apply the correct legal test, there is a
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In its letter denying plaintiff’s request for review, the Appeals Council declined
to consider new evidence that plaintiff had attempted suicide in July 2017. R. at 2.
The Appeals Council determined that the additional evidence did “not relate to the
period at issue” and therefore did “not affect the decision about whether [plaintiff was]
disabled beginning on or before July 13, 2017.” Id.
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ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
III. THE FIVE-STEP EVALUATION PROCESS
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous
period of twelve months that prevents the claimant from performing any substantial
gainful work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2).
Furthermore,
[a]n individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless of whether
such work exists in the immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and
(5) whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point in

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the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of
Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisfied her burden
of establishing a prima facie case of disability under steps one, two, and four, the
burden shifts to the Commissioner to show the claimant has the residual functional
capacity (RFC) to perform other work in the national economy in view of her age,
education, and work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). While the
claimant has the initial burden of proving a disability, “the ALJ has a basic duty of
inquiry, to inform himself about facts relevant to his decision and to learn the claimant’s
own version of those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
IV. DISCUSSION
Plaintiff argues that the ALJ erred by: (1) failing to properly evaluate all of the
relevant medical evidence, Docket No. 15 at 6-13; (2) rejecting the opinions of plaintiff’s
treating physician, id. at 14-16; (3) finding that plaintiff’s impairments did not meet or
medically equal a listed impairment, id. at 16-18; (4) finding that plaintiff’s subjective
reports of his symptoms were inconsistent with the medical evidence, id. at 18-19; and
(5) failing to demonstrate, at step five of the sequential evaluation, that plaintiff had the
residual functional capacity to perform work existing in the national economy. Id. at 20.
Because it is dispositive, the Court limits its discussion to the ALJ’s treatment of the
medical evidence.
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Plaintiff contends that the ALJ failed to address all of the evidence pertaining to
plaintiff’s psychological impairments. See Docket No. 15 at 8-13. At step two of the
sequential evaluation, the ALJ determined that plaintiff suffered from four severe
mental impairments: anxiety, obsessive-compulsive disorder, depression, and
schizophrenia. R. at 22. In considering the relevant medical evidence at subsequent
steps, however, the ALJ determined that plaintiff’s mental impairments did not give rise
to functional limitations that would mandate a finding of disability. See R. at 24-27.4
The ALJ based this conclusion on two sets of treatment records: records from
Denver Health Medical Center predating plaintiff’s alleged disability onset date of
August 1, 2016, and records from plaintiff’s treatment at the Mental Health Center of
Denver (“MHCD”) in March and April 2017. See R. at 25-26. The ALJ noted that,
although the earlier records “reflect[ed] treatment for schizoaffective disorder,
depressed type, with medication management,” plaintiff had experienced “[i]mproved
symptoms . . . in terms of better sleep and more stable mood with less
agitation/reactivity” on medication. R. at 25. The ALJ further observed that plaintiff
was described as “doing reasonably well on Seroquel” by July 2016. Id.
As to the more recent records from MHCD, the ALJ noted that plaintiff initially

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The ALJ determined at step three that plaintiff’s functional limitations did not
satisfy the “B” or “C” criteria for listings 12.03, 12.04, 12.06, and 12.08. R. at 23.
However, the ALJ’s step three discussion does not contain any independent analysis of
the evidence supporting the finding that plaintiff suffered from only mild to moderate
limitations in the relevant categories. See id. Instead, the ALJ appears to base his
conclusions at step three on his later assessment of plaintiff’s RFC. See id. (noting that
“[t]he factors documenting the mental impairments and the degrees of limitation are
reflected in the discussion of the medical evidence below”).
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presented with poor personal hygiene, anger, paranoia, and depression, but later
exhibited “improved mood,” good hygiene, normal behavior, and “organized thoughts”
after being placed on medication. R. at 26. The ALJ concluded that the evidence as a
whole showed plaintiff “to have improved mental symptoms when he takes prescribed
psychotropic medications” and did not support the “marked” and “extreme” functional
limitations assessed by Dr. Ken MacIntyre in his June 2017 report. Id.
The Court agrees with plaintiff that the ALJ failed to address all of the relevant
evidence in assessing the severity and limiting effects of plaintiff’s mental impairments.
While an ALJ need not “discuss every piece of evidence,” the ALJ is required to
discuss the “significantly probative evidence that he rejects” in reaching his
conclusions. Deardorff v. Comm’r, 762 F. App’x 484, 491 (10th Cir. 2019)
(unpublished) (quoting Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)). “It is
improper for the ALJ to pick and choose among medical reports, using portions of
evidence favorable to his position while ignoring other evidence.” Id. (quoting Hardman
v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004)). In discussing plaintiff’s medical
records in this case, the ALJ failed to address evidence showing that, despite
improvements in plaintiff’s mental impairments as a result of medication, plaintiff
continued to exhibit significant psychological symptoms. For example, the ALJ noted
that plaintiff showed “[i]mproved symptoms . . . in terms of better sleep and more stable
mood with less agitation/reactivity” at a treatment visit on April 19, 2016. R. at 25
(citing Exhibit B2F, pp. 20-21). However, progress notes from the same visit, which are
not addressed in the ALJ’s decision, indicate that “longer discussions lead to more
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anger,” plaintiff was only “[s]lightly less reactive to perceived slights,” and plaintiff was
continuing to experience suicidal thoughts, perseverative thought processes, loose
associations, paranoia, and auditory hallucinations. R. at 288. Similarly, although
plaintiff’s records from May and July 2016 support a finding that plaintiff was “doing
reasonably well on Seroquel,” R. at 25, those same records indicate that plaintiff was
continuing to exhibit psychological symptoms, including paranoia, difficulty
concentrating, suicidal and homicidal ideation, and visual and auditory hallucinations.
R. at 319, 398-99. There is no discussion of these symptoms in the ALJ’s analysis.
Regarding plaintiff’s treatment records from 2017, the ALJ’s summary suggests
that plaintiff experienced consistent and linear improvement as a result of his
medication. See R. at 26. Yet records from April 17 and April 19 indicate poor
hygiene, homicidal ideation, and the persistence of hallucinations. See R. at 456, 461.
The records also show that plaintiff had stopped taking Seroquel because it “made him
feel ‘nothing,’” R. at 454, and was experiencing significant fatigue as a result of his new
medication. R. at 453.
In summary, the ALJ “failed to discuss all of the significantly probative evidence
relevant to [plaintiff’s] mental impairment, discuss how he resolved the conflicts in this
evidence, or discuss how he resolved the conflicts between his findings and his
evidence.” Carpenter, 537 F.3d at 1269. This failure calls into question the ALJ’s
findings that plaintiff’s mental impairments did not meet or equal a listed impairment,
see R. at 23, that plaintiff’s statements regarding the limiting effects of his symptoms
were inconsistent with the objective medical evidence, R. at 25, and that the medical
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evidence did not support the “marked” or “extreme” functional limitations assessed by
Dr. MacIntyre in June 2017. R. at 26. As a result, the Court cannot conclude that the
ALJ’s ultimate determination – that plaintiff was capable of performing jobs existing in
significant numbers in the national economy – is supported by substantial evidence.
The Court will therefore reverse the ALJ’s decision and remand for the ALJ to consider
the conflicting evidence regarding plaintiff’s mental impairments in assessing whether
those impairments meet or equal a listed impairment at step three and in evaluating
plaintiff’s residual functional capacity. See Deardorff, 762 F. App’x at 490 (holding that
the ALJ erred by failing to discuss the significant evidence of the claimant’s headaches
and remanding for the ALJ to consider that evidence in assessing the claimant’s RFC);
Carpenter, 537 F.3d at 1270 (reversing and remanding due to the ALJ’s failure to
“adequately discuss the evidence and tie his conclusions to the evidence” at step
three).
The Court declines to address plaintiff’s remaining objections to the ALJ’s
decision because they may be affected by the ALJ’s treatment of the case on remand.
See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the
remaining issues raised by appellant because they may be affected by the ALJ’s
treatment of this case on remand.”). On remand, however, the ALJ should address
whether plaintiff is entitled to an earlier alleged onset date of August 11, 2015. See
Docket No. 15 at 1; R. at 175 (alleging a disability onset date of August 11, 2015); see
also Docket No. 16 at 10 n.3 (acknowledging “[i]t is unclear why” plaintiff’s alleged
disability onset date changed from August 11, 2015 to August 1, 2016). The ALJ
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should also consider the evidence of plaintiff’s July 2017 suicide attempt in evaluating
the severity of plaintiff’s mental impairments. See Docket No. 15 at 13; R. at 10-16.5
V. CONCLUSION
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff is not disabled is
REVERSED and REMANDED for further proceedings consistent with this order.

DATED June 1, 2020.
BY THE COURT:

____________________________
PHILIP A. BRIMMER
Chief United States District Judge

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Plaintiff submitted this evidence to the Appeals Council, R. at 271, which
declined to consider it on the basis that plaintiff’s suicide attempt post-dated the ALJ’s
decision and therefore did not relate to plaintiff’s alleged period of disability. See R. at
2. The Court disagrees with that conclusion. Because plaintiff’s suicide attempt is
pertinent to issues addressed in the ALJ’s decision – namely, the severity of plaintiff’s
mental impairments on medication – it is chronologically relevant. See Padilla v.
Colvin, 525 F. App’x 710, 712-13 (10th Cir. 2013) (unpublished) (finding psychological
evaluation chronologically relevant because, although it post-dated the ALJ’s decision,
it “corroborat[ed] an anxiety diagnosis reported” by the claimant’s doctor prior to the
administrative hearing). Additionally, the evidence is new – i.e., it was not available at
the time of the ALJ’s decision – and has a reasonable possibility of affecting the ALJ’s
decision on remand by casting doubt on the finding that plaintiff’s psychological
symptoms improved significantly with treatment. See id. at 712 (stating that “additional
evidence should only be considered it if is new, material, and chronologically pertinent”
(citing 20 C.F.R. § 416.1470(b))); Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir.
2003) (explaining that evidence is “new” if it is not duplicative or cumulative and
“material . . . if there is a reasonable possibility that it would have changed the
outcome” (internal quotation marks and bracket omitted)).
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