Barber v. Commissioner, Social Security Administration

Filing 20

OPINION AND ORDER REVERSING AND REMANDING THE COMMISSIONER'S DECISION entered by Judge Marcia S. Krieger on 8/9/19. The Commissioners decision is REVERSED AND REMANDED. Upon reconsideration, the Commissioner shall consider all pertinent evidence through the 2016 hearing date. Judgment shall enter in favor of Ms. Barber. (rkeec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Marcia S. Krieger
Civil Action No. 18-cv-01189-MSK
PATRICIA BARBER,
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant.

OPINION AND ORDER REVERSING AND REMANDING
THE COMMISSIONER’S DECISION

THIS MATTER comes before the Court on the Plaintiff’s Complaint (# 1), the
Plaintiff’s Opening Brief (# 15), the Defendant’s Response (# 16), and the Plaintiff’s Reply
(#17). For the following reasons, the Commissioner’s decision is reversed, and the matter is
remanded for further proceedings.
I.

JURISDICTION

The Court has jurisdiction over an appeal from a final decision of the Commissioner
under 42 U.S.C. § 405(g).
II.
A.

BACKGROUND

Procedural History
Plaintiff Patricia Barber (“Ms. Barber”) seeks judicial review of a final decision by the

Defendant Commissioner (“Commissioner”) denying both her claim for disability insurance
benefits (“DIB”) and application for supplemental security income (“SSI”) under the Social
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Security Act. In October 2011, Ms. Barber filed for DIB, claiming she became disabled as of
August 16, 2010. (# 11-5 at 109; # 11-13 at 598). In July 2012, Ms. Barber filed for SSI.
(#11-5 at 136). Following an initial hearing before an Administrative Law Judge (“ALJ”), Ms.
Barber received an unfavorable decision in January 2013. (# 11-2 at 15-18). Ms. Barber
appealed that decision to this Court, where it was reversed and remanded for a new hearing. 1
(#11-14 at 662-78). In March 2016, Ms. Barber received a new hearing before an ALJ
(“remand hearing”), which again resulted in an unfavorable decision (“Decision”). (# 11-13 at
593-96). Ms. Barber appealed that Decision to the Appeals Council. However, on April 4,
2018, the Appeals Counsel denied her Request for Review. (# 11-12 at 586-92). Ms. Barber
now appeals the final agency action to this Court.
B.

Factual Background
The Court summarizes only the medical evidence relevant to its decision. Here, the

dispositive issue concerns the weight given to the treating physician’s 2016 opinion as to Ms.
Barber’s restrictions which considered her new diagnosis of muscular dystrophy and related nonepileptic seizures. At the time of her alleged onset of disability, Ms. Barber was 48 years old.
However, at the time of the remand hearing, she was 54 years old, which is categorized as
“closely approaching advanced age.” (# 11-13 at 606). Ms. Barber has a high school
education and was previously employed as an adjustment clerk, bookkeeper, and teacher’s aide.
(# 11-13 at 606).

1

The District Court found the ALJ erred in his analysis of what weight to afford Dr. Murillo’s
opinion as a treating physician and his failure to address Dr. Tendler’s opinion. (# 11-14 at
678).
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In August 2010, Ms. Barber was hospitalized for a seizure with no clear etiology. (# 118 at 290-91). In July 2011, despite undergoing a treatment program for epilepsy, Ms. Barber
reported having continued seizures that were intensifying. (# 11-8 at 496-98). Ms. Barber
underwent EEG and CT testing, which revealed the seizures were likely not caused by epilepsy
(“definite epileptiform abnormalities”) or other “intracranial abnormalit[ies].” (# 11-18 at 845,
878).
In June 2012, Sergio Murillo, M.D. began treating Ms. Barber for her “non epilipteic
[sic] seizures” among other conditions. (# 11-11 at 548-49). On August 23, 2012, Dr. Murillo
issued a “Seizures Medical Source Statement” noting Ms. Barber was having 20 seizures per
month with about one-minute warning before the onset of an impending seizure. (# 11-11 at
560-63). Dr. Murillo opined that Ms. Barber’s seizures were “non-convulsive” and caused a
loss of consciousness. Migraine headaches, short attention span, and memory problems
accompanied the seizures. (# 11-11 at 560, 563). Following a seizure, Ms. Barber experienced
confusion, severe headaches, muscle strain, irritability, exhaustion, difficulties communicating,
and disorientation. (# 11-11 at 561). Due to the seizures and the after-effects, Dr. Murillo
opined that Ms. Barber was incapable of even “low stress” work and was unable to “concentrate,
drive, operate machinery, cook or be in public.” (# 11-11 at 561). As to Ms. Barber’s
limitations, Dr. Murillo opined that she could sit for four hours with a 10-20 minute break, stand
less than two hours in an eight-hour work day, lift 20 pounds occasionally, and could not kneel
or work at a high altitude or at “heights.” (# 11-11 at 561-63). Dr. Murillo opined that Ms.
Barber’s impairments would cause her both “good days” and “bad days,” and that she would
likely miss “more than four days per month” from full time work. (# 11-11 at 563).

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In July 2012, Michael Greenberg, M.D., an agency non-examining physician, completed
a Case Analysis. (# 11-11 at 533). After reviewing Ms. Barber’s records and EEG test results,
he concluded there was insufficient evidence “to establish ongoing non-epileptic seizures.”
(#11-11 at 533).
Following the initial 2013 hearing before the ALJ, Dr. Murillo continued treating Ms.
Barber and recommended she undergo a muscle biopsy test to assess her continued complaints of
muscle cramping and spasms. Based on his examinations spanning several years, Dr. Murillo
suspected that Ms. Barber “may actually have a distal free [muscular disorder] [r]ather than a
seizure disorder.” (# 11-21 at 1234-37). In May 2014, Gary Edward Lane, M.D. performed
the muscle biopsy on Ms. Barber. (# 11-21 at 1202-03). On January 15, 2016, Dr. Murillo saw
Ms. Barber for a “follow-up after [the] muscle biopsy” and noted that he had “some answers to
her case.” (# 11-21 at 1107). The muscle biopsy revealed Ms. Barber had muscular dystrophy,
and Dr. Murillo opined that her seizures were related to this diagnosis. Dr. Murillo found Ms.
Barber “has tonic clonic modular activity to the part of muscular claudication presenting with
‘seizure’ like pattern,” which helps to “explain the symptoms and problems Ms. Barber has been
having since August 2010[.]” (# 11-21 at 1229). In February 2016, Dr. Murillo completed an
updated residual functional capacity (“RFC”) assessment based on Ms. Barber’s new diagnosis
of muscular dystrophy and related non-epileptic seizures (“2016 opinion”). (# 11-21 at 122931). He opined Ms. Barber could not: lift more than 20 pounds; sit more than two hours per
work day; and be on her feet for more than .5 hours per work day. Dr. Murillo also limited Ms.
Barber’s reaching, handling, and fingering to rarely and found that her “condition interfere[d]
with her ability to remember instructions and to focus and concentrate on tasks[.]” (# 11-21 at

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1230-31). Dr. Murillo ultimately found Ms. Barber unable to do any full time work. (# 11-21
at 1231).
C.

The ALJ’s 2016 Decision
In June 2016, the ALJ issued a Decision unfavorable to Ms. Barber. At step one, the

ALJ found she had not engaged in substantial gainful activity since August 16, 2010. (# 11-13
at 598). At step two, the ALJ found Ms. Barber had the following severe impairments: seizure
disorder, obesity, lumbar spine degeneration, and muscular dystrophy. (# 11-13 at 598). At
step three, the ALJ found Ms. Barber did not have an impairment that met or medically equaled
the presumptively disabling conditions listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (#
11-13 at 600-01). The ALJ further found that Ms. Barber had the RFC to perform light work 2
with the following limitations: no work at unprotected heights, no hazardous work areas, no
moving machinery, and no complex tasks as defined as SVP 2 or less. (# 11-13 at 601). At
step four, the ALJ found Ms. Barber was unable to perform any of her past relevant work. (#
11-13 at 606). At step five, the ALJ concluded that, considering Ms. Barber’s age, education,
work experience, and RFC, she could perform the following jobs in the national economy: small
product assembler, cafeteria attendant, and power screw driver operator. (# 11-13 at 606-07).
In crafting Ms. Barber’s RFC, the ALJ gave little weight to Dr. Murillo’s opinion and little
weight to Dr. Greenberg’s opinion. (# 11-13 at 605).
III.

STANDARD OF REVIEW

Though the Court’s review is de novo, the Court must uphold the Commissioner’s

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“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).
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decision if it is free from legal error and the Commissioner’s factual findings are supported by
substantial evidence. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).
Substantial evidence is evidence a reasonable person would accept to support a conclusion,
requiring “more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007). The Court may not reweigh the evidence, it looks to the entire record to
determine if substantial evidence exists to support the Commissioner’s decision. Wall v. Astrue,
561 F.3d 1048, 1052 (10th Cir. 2009).
IV.

DISCUSSION

Ms. Barber asserts two issues in her appeal. First, she contends that the ALJ’s Decision
did not state valid reasons for rejecting treating physician Dr. Murillo’s 2016 RFC opinion,
which was rendered after additional medical testing revealed Ms. Barber had muscular dystrophy
and no other medical professional issued a conflicting opinion of physical restrictions. 3 Second,
Ms. Barber contends the ALJ’s Decision failed to assess the testimony of a lay witness.
Because the first argument is dispositive and requires remand, the Court will focus on it.
A treating physician’s opinion is generally entitled to controlling weight if it is “well
supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.” Romo v. Commissioner,
748 Fed. Appx. 182, (10th Cir. 2018) (citing 20 C.F.R. § 404.1527(c)(2)); 4 Pisciotta v. Astrue,

3

Ms. Barber does not challenge the Decision’s assessment of Dr. Murillo’s 2012 opinion.

4

Pursuant to a change in the Social Security Administration’s regulations, effective March 27,
2017, treating physician opinions will no longer be given controlling weight. However, the
prior rule remains applicable to claims—like Ms. Barber’s—filed before that date. Rescission
of Social Security Rulings 96–2P, 96–5P, and 06–3P, 2017 WL 3928298, at *1 (2017).
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500 F.3d 1074, 1077 (10th Cir. 2007). However, even if a treating physician’s opinion is not
entitled to controlling weight, it is still entitled to deference, and the ALJ must consider:
(1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the physician
is a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (internal quotations omitted). In
applying these factors, the ALJ must make findings and reasoning sufficiently specific so the
weight given is clear to subsequent reviewers. Id.
Here, the ALJ’s Decision determined that Dr. Murillo’s 2016 opinion was not entitled to
controlling weight, and instead gave it “little weight.” (# 11-3 at 605). In the Decision, the
ALJ stated:
In spite of Dr. Murillos’s status as the claimant’s treating physician, the
undersigned cannot assign controlling weight to his opinion because it is not wellsupported by medically acceptable clinical and laboratory diagnostic techniques
and is inconsistent with the other substantial evidence of record. As discussed
above, Dr. Murillo is not a neurologist or other neurological specialist. As
evidenced by his notes that the claimant may need to go to the University, and may
need an EEG, he is unlikely to have reviewed the previous EEG’s and other
treatment notes. This also indicates that the only objective testing Dr. Murillo has
performed is the muscle biopsy. Dr. Murillo’s opinion is also inconsistent with his
examinations of the claimant in which the claimant denied muscle cramps, joint
pain, joint swelling, presence of joint fluid, back pain, stiffness, muscle weakness,
arthritis, gout, loss of strength, muscle aches, difficulty in concentration, poor
balance, headaches, disturbances in coordination, numbness, tingling, brief
paralysis, visual disturbances, seizures, weakness, and memory loss (exhibit 23F/23, 11-12, 22 [except headaches], and 31). Therefore, the undersigned gives this
opinion little weight.
(# 11-13 at 604).
When an ALJ rejects a treating physician’s opinion, he must identify specific, good
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reasons for weight given to the opinion. See Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th
Cir. 2004). This requires identification of specific evidence in the record that the ALJ found to
be inconsistent with Dr. Murillo’s opinion, as well as demonstration that consistent evidence was
considered. See Clifton v. Chater, 79 F.3d 1007 (10th Cir. 1996). As to the ALJ’s first
inquiry—whether the opinion is supported by medically acceptable clinical and laboratory
diagnostic techniques—the ALJ acknowledged that Dr. Murillo performed an objective medical
test, the muscle biopsy. The record contains no evidence from any medical provider contesting
the validity of a muscle biopsy test for establishing the existence of Ms. Barber’s muscular
dystrophy. Moreover, the ALJ accepted that diagnosis when he found at step two that Ms.
Barber had the severe impairments of muscular dystrophy and a seizure disorder. (# 11-13 at
598). The Court now turns to the ALJ’s second inquiry—whether Dr. Murillo’s opinion is
inconsistent with the other substantial evidence in record. Importantly, the record contains no
medical opinions (other than Dr. Murillo’s) that addressed Ms. Barber’s RFC in light of her new
diagnosis of muscular dystrophy and its possible connection to her seizure disorder. Put another
way, Dr. Murillo is the only physician who examined Ms. Barber and issued updated restrictions
following her muscular dystrophy diagnosis. Dr. Greenberg’s opinion that there was
insufficient evidence to establish ongoing seizures was rendered before Ms. Barber underwent
the muscle biopsy and was eventually diagnosed with muscular dystrophy. 5 The Court finds the
ALJ’s Decision not to give controlling weight to Dr. Murillo’s 2016 opinion was error and not
supported by substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2).
If, however, Dr. Murillo’s 2016 opinion was not entitled to controlling weight, the ALJ’s

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Dr. Greenberg’s opinion was ultimately rejected by the ALJ’s Decision.
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Decision properly continued to weigh it pursuant to the 20 C.F.R. § 404.1527(c)(2) factors. The
Decision ultimately concluded that Dr. Murillo’s opinion was entitled to “little weight” and
specifically pointed to exam findings where Ms. Barber denied having various symptoms that
contradicted Dr. Murillo’s RFC opinions. However, upon a closer review of the entire
examination exhibit, which documents examinations from 2012 through 2016, there are notes
from Ms. Barber’s office visits with Dr. Murillo where she complains of seizures, headaches,
muscle cramps, pain and/or weakness (# 11-21 at 1109, 1118, 1120, 1121, 1138, 1143, 1152,
and 1156). Clearly, there is conflicting evidence as to the severity of Ms. Barber’s symptoms
reported to Dr. Murillo over the course of her four years of treatment. However, the ALJ’s
Decision only referred to the specific records where Ms. Barber “denied muscle cramps, joint
pain, joint swelling, presence of joint fluid, back pain, stiffness, muscle weakness, arthritis, gout,
loss of strength, muscle aches, difficulty in concentration, poor balance, headaches, disturbances
in coordination, numbness, tingling, brief paralysis, visual disturbances, seizures, weakness, and
memory loss.” (# 11-13 at 604). While this Court may not reweigh the medical evidence and
must defer to the ALJ’s resolution of evidentiary conflicts, the ALJ’s failure to identify any
conflicting medical evidence or consider the longitudinal record was improper. Carpenter v.
Astrue, 537 F.3d 1264, 1265 (10th Cir. 2008) (holding that “[i]t is improper for the ALJ to pick
and choose among medical reports, using portions of evidence favorable to his position while
ignoring other evidence.”).
The ALJ’s Decision also offered several additional reasons to support the determination
to give Dr. Murillo’s 2016 opinion “little weight” in the form of conclusory statements. First,
the Decision stated that Dr. Murillo is not a neurologist or specialist. While it is true that a

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physician’s specialty is a proper factor to consider pursuant to 20 C.F.R. § 404.1527(c)(5), here,
the ALJ does not identify a conflicting opinion from a specialist or articulate a reason why Dr.
Murillo’s opinion should be discredited because he is not a specialist. Indeed, the
Commissioner’s policy states that “all licensed physicians” are “acceptable medical sources” for
giving opinions on a claimant’s impairments and his or her ability to function. SSR 06-03p,
2006 WL 2329939, at *2 (2006). Second, the Decision addressed Dr. Murillo’s February 2015
treatment note recommending “imaging and [an] EEG” test, if Ms. Barber’s seizure disorder
continues in the future and speculated that it is unlikely that Dr. Murillo reviewed Ms. Barber’s
previous EEG tests and other treatment notes. (# 11-21 at 1120). Such conclusory and vague
statements are insufficient to allow this Court to engage in meaningful review. Indeed, the
Decision noted and both parties agree that in this case, the EEG test is not useful . (# 11-13 at
605; # 16 at 11; and # 17 at 4). Thus, without more discussion, the Court cannot say that the
ALJ’s speculation that Dr. Murillo did not review Ms. Barber’s prior EEG tests is a valid reason
for discrediting his opinion.
Finally, the Court notes that while the ALJ gave “little weight” to Dr. Murillo’s RFC
opinion, the ALJ’s own RFC assessment was actually consistent with a portion of Dr. Murillo’s
opinion. Both the ALJ’s RFC and Dr. Murillo’s RFC included a lifting restriction of no more
than 20 pounds. Because the ALJ essentially agreed with a portion of Dr. Murillo’s RFC
limitations, the Court finds the ALJ erred in fully discrediting Dr. Murillo’s opinion “with no
explanation at all as to why one part of [the] opinion was creditable and the rest was not. That is
error under this circuit’s case law.” Chapo v. Astrue, 682 F.3d 1285, 1291-92 (10th Cir. 2012).
The Court finds the Decision’s rejection of Dr. Murillo’s 2016 opinion contravenes

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applicable legal standards and that the ALJ’s RFC and disability conclusions at step four and five
of the sequential analysis are not supported by substantial evidence. Thus, the finding that Ms.
Barber is not disabled is reversed, and the matter is remanded for reconsideration on steps three,
four, and potentially five of the sequential analysis, applying the proper legal standards to the
opinion of Dr. Murillo and engaging specifically in a determination of whether his 2016 medical
opinion is entitled to controlling or deferential weight. See Langley, 373 F.3d at 1119; Robinson
v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Thus, the Court need not reach Ms. Barber’s
other specific claim of error in the ALJ’s analysis. The Court expresses no opinion as to the
ultimate determination of whether Ms. Barber is or should be found to be disabled.
V.

CONCLUSION

For the foregoing reasons, the Commissioner’s decision is REVERSED AND
REMANDED. Upon reconsideration, the Commissioner shall consider all pertinent evidence
through the 2016 hearing date. Judgment shall enter in favor of Ms. Barber.
Dated this 9th day of August, 2019.
BY THE COURT:

Marcia S. Krieger
Senior United States District Judge

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