Marquez v. Commissioner, Social Security Administration
ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE AND REMANDING FOR FURTHER PROCEEDINGS by Judge Daniel D. Domenico on 10/2/19. (pglov)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Daniel D. Domenico
Civil Action No. 18-cv-03078-DDD
RAMON ANGEL MARQUEZ,
ANDREW M. SAUL, Acting Commissioner of Social Security,1
ORDER VACATING DECISION OF ADMINISTRATIVE LAW
JUDGE AND REMANDING FOR FURTHER PROCEEDINGS
Plaintiff Ramon Marquez suffered traumatic brain injury in a motorcycle accident. He applied for, but was denied, social security benefits
by the Commissioner, and an administrative law judge ruled that, while
Mr. Marquez would be unable to perform past relevant work, he was
capable of light work and therefore “not disabled” within the meaning of
Title II of the Social Security Act (“Act”), 42 U.S.C. § 401, et seq. This
matter is before the Court on review of the Commissioner’s decision
denying Mr. Marquez’s application for disability insurance benefits and
supplemental security income, together with the entire administrative
record and the briefing of the parties. (Docs. 11, 15, 16.) For the reasons
On June 4, 2019, Congress confirmed Andrew M. Saul as the
Commissioner of the Social Security Administration (“SSA”). Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul
is substituted for Nancy A. Berryhill, former Acting Commissioner of
Social Security, as the Defendant in this suit. No further action needs
to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
stated below, the Commissioner’s decision is VACATED, and the case
is REMANDED for further fact finding.
A. Entitlement to Disability Insurance Benefits
To obtain disability insurance benefits under the Act, a claimant
must meet the insured status requirements, be younger than 65 years
of age, file an application for a period of disability, and have a “disability” within the meaning of the Act. 42 U.S.C. §§ 416(i), 423(a); Flint v.
Sullivan, 951 F.2d 264, 267 (10th Cir. 1991). The disability must also
have begun before expiration of the disability-insured status. 20 C.F.R.
§ 404.101; Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *8
(1983). Relevant here, a person has 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). To qualify for benefits, the disabling impairment must last—or be expected to last—at least twelve months. Barnhart v. Walton, 535 U.S. 212, 214–15 (2002). Evaluating the existence of
a disability is a five-step, sequential process that ends at any point at
which the claimant is found not disabled. See 20 C.F.R. § 404.1520;
Bowen v. Yuckert, 482 U.S. 137, 140–42 (1987); Casias v. Sec’y of Health
& Human Servs., 933 F.2d 799, 801 (10th Cir. 1991) (citation omitted).
First, the claimant must demonstrate that he or she is not currently involved in any substantial, gainful activity. 20 C.F.R. §
404.1520(b). Second, the claimant must show a medically severe impairment or combination of impairments that significantly limits his or
her physical or mental ability to do basic work activities. Id. at §
404.1520(c). Third, if the impairment matches or is equivalent to an
established listing under the governing regulations, the claimant is
judged conclusively disabled. Id. at § 404.1520(d). If the claimant’s impairment does not match or is not equivalent to an established listing,
the analysis proceeds to the fourth step. Id. at § 404.1520(e). Fourth,
the claimant must show that the “impairment prevents [him or her]
from performing work [he or she] has performed in the past.” Williams
v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988) (citations omitted); accord
20 C.F.R. § 404.1520(f). Fifth, the Commissioner must demonstrate: (1)
that based on the claimant’s residual functional capacity, age, education, and work experience, the claimant can perform other work; and (2)
the work that the claimant can perform is available in significant numbers in the national economy. Frey v. Bowen, 816 F.2d 508, 512 (10th
Cir. 1987) (citation omitted); see also 20 C.F.R. § 404.1520(g).
According to the “treating physician rule,” the Social Security Administration (“SSA”) Commissioner will generally give more weight to
medical opinions from treating sources than those from non-treating
sources. 20 C.F.R. § 404.1527(d)(2). “In deciding how much weight to
give a treating source opinion, an ALJ must first determine whether the
opinion qualifies for ‘controlling weight.’” Watkins v. Barnhart, 350 F.3d
1297, 1300 (10th Cir. 2003). To make this determination, the ALJ:
must first consider whether the opinion is well-supported
by medically acceptable clinical and laboratory diagnostic
techniques. If the answer to this question is ‘no,’ then the
inquiry at this stage is complete. If the ALJ finds that the
opinion is well-supported, he must then confirm that the
opinion is consistent with other substantial evidence in the
record. [I]f the opinion is deficient in either of these respects, then it is not entitled to controlling weight.
Id. (quotations omitted); see also 20 C.F.R. § 404.1527(d)(2) (noting that
although the SSA will consider evidence from treating medical sources,
the final responsibility in deciding these issues remains with the Commissioner). Even if a treating physician’s opinion is not entitled to controlling weight, “[t]reating source medical opinions are still entitled to
deference” and must be weighed using the following factors:
(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.
Watkins, 350 F.3d at 1301 (quotation omitted). Finally, “[u]nder the regulations, the agency rulings, and our case law, an ALJ must give good
reasons . . . for the weight assigned to a treating physician’s opinion,”
that are “sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical opinion
and the reason for that weight.” Id. at 1300 (quotations omitted). “[I]f
the ALJ rejects the opinion completely, he must then give specific, legitimate reasons for doing so.” Id. at 1301 (quotations omitted).
Finally, the ALJ’s responsibility to explain his decision concerning the evidence extends to any evaluation of a claimant’s credibility:
According to Social Security Ruling 96–7p, 1996 WL
374186 (July 2, 1996), which governs an ALJ’s evaluation
of a claimant’s description of symptoms, the evaluation
must contain specific reasons for a credibility finding; the
ALJ may not simply recite the factors that are described in
the regulations. It is well-established that an ALJ’s findings with respect to a claimant’s credibility should be
closely and affirmatively linked to substantial evidence
and not just a conclusion in the guise of findings.
Hardman v. Barnhart, 362 F.3d 676, 678–79 (10th Cir. 2004) (internal
B. Standard of Review by a District Court
Reviewing disability insurance benefits denials, district courts
decide whether “substantial evidence” supports the factual findings and
whether the correct legal standards were applied. Wall v. Astrue, 561
F.3d 1048, 1052 (10th Cir. 2009). Substantial evidence is evidence that
a reasonable mind might accept as adequate to support a conclusion. Id.
“It requires more than a scintilla, but less than a preponderance.” Lax
v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). A district court will “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,” but will “not reweigh the evidence or
retry the case.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007);
see also 42 U.S.C. § 405(g). Evidence is not substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d
1257, 1261–62 (10th Cir. 2005). And courts may not substitute their
judgment for that of the agency. Glass v. Shalala, 43 F.3d 1392, 1395
(10th Cir. 1994); Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006).
Any fact, “if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g).
On July 14, 2015, forty-year-old Ramon Marquez was involved in
a motorcycle accident. (R. 26, 36.) He was not wearing a helmet and
suffered a severe head injury. (R. 680.) He was in a coma for three weeks,
underwent two craniotomy procedures, and was hospitalized until late
August at St. Anthony’s Hospital. (R. 21–22, 307–647.) He was admitted
to Craig Hospital for inpatient rehabilitation, where he stayed until the
end of October. (R. 675–85). He then underwent outpatient physical
therapy, occupational therapy, speech therapy, and psychological treatment. (R. 664, 666, 669, 779.)
In November 2015, Mr. Marquez filed an application for SSA benefits, alleging disability beginning on July 14, 2015, due to a traumatic
brain injury and seizures that he alleges he suffered as a result of the
motorcycle accident. (R. 17, 159, 187.) On November 8, 2017, an Administrative Law Judge (“ALJ”) held a hearing on the claim. (R. 33–52.) In
a decision dated February 23, 2018, the ALJ denied the claim. (R. 1727.)
Using the five-step framework outlined above, the ALJ found at
step one that Mr. Marquez had not engaged in substantial gainful activity since July 14, 2015, the alleged onset date. (R. 19.) At step two, the
ALJ found that he had the following severe impairments: “mild neurocognitive disorder with behavioral disturbances and seizures, status
post-traumatic brain injury in motorcycle accident.” (R. 19.) At step
three, the ALJ found that he did not have an impairment or combination
of impairments equivalent to any of those listed. (R. at 20.) Before proceeding to step four, the ALJ assessed Mr. Marquez’s residual functional
capacity (“RFC”), finding that he could perform light work with certain
restrictions, but he was “limited to simple, routine and repetitive tasks;
no more than occasional interaction with supervisors and coworkers;
and, no more than incidental interaction with the public.” (R. 20.)
At step four, the ALJ determined that Mr. Marquez was unable
to perform his past relevant work as a computer support technician. (R.
26.) At step five, the ALJ found, with the assistance of a vocational expert, that there are other jobs existing in the economy that he could perform. (R. 26–27.) These included representative light unskilled jobs such
as merchandise marker, housekeeping cleaner, and street cleaner. (R.
27.) Accordingly, the ALJ concluded that Plaintiff “has not been under a
disability, as defined in the Social Security Act, from July 14, 2015,
through the date of this decision.” (Id.) The Appeals Council declined
Mr. Marquez’s request for review. (R. 1–8.) The ALJ’s decision is therefore final for purposes of judicial review.
Mr. Marquez argues that the ALJ committed legal error by according improper weight to the medical opinions, including those of his
treating physicians. He further asserts that the RFC determination is
not supported by substantial evidence, and that the ALJ erred at step
three in failing to consider Listing 11.02 for Epilepsy. He requests that
the court reverse the ALJ and find him entitled to disability benefits or,
alternatively, remand the case to the Commissioner for further proceedings. He also requests an award of attorney fees under the Equal Access
to Justice Act, 28 U.S.C. § 2412(d).
A. The Weighing of Medical Opinions and the RFC Assessment
The ALJ noted that Mr. Mares complained of disabling symptoms
and significant functional limitations, including cognitive difficulties
particularly regarding memory. (R. 21.) The ALJ found, however, that
Plaintiff had “experienced significant improvement in both physical and
mental functioning such that within 12 months of his injury he has regained a capacity to engage in work-related activities.” (R. 22.) The ALJ
gave “great weight” to the consultative opinion of William Morton,
Psy.D., which he reasoned “generally comports with the opinion of the
State agency’s psychological consultant” regarding Mr. Marquez’s mental impairments. (R. 23–25.) He gave “greater weight” to Dr. Morton’s
opinion than to a neuropsychological evaluation conducted by Joy
DeJong Lago, Ph.D. (R. 24.) He also gave “less weight” to an assessment
by Russell Thye, Ph.D. (R. 24–25.) As to Mr. Marquez’s physical impairments, the ALJ apparently adopted the findings of Kerry Kamer, D.O.,
though he did not state what specific weight he gave to that opinion. (R.
Plaintiff argues that the ALJ’s RFC determination ignored substantial evidence—the opinions of four physicians—and instead relied
on the least favorable consultative examiner, Dr. Morton, to justify his
findings. The Court agrees, and this error alone enough to required reversal and remand. “There are specific rules of law that must be followed
in weighing particular types of evidence in disability cases. Failure to
follow these rules constitutes reversible error.” Reyes v. Bowen, 845 F.2d
242, 244 (10th Cir. 1988) (internal citation omitted).
1. Dr. Lago
The Court first addresses the neuropsychological evaluation by
Dr. Lago dated January 13, 2017. (R. 1116–17.) Dr. Lago found “most
notable” the impairment that Mr. Marquez “demonstrated on measures
of new learning and memory,” which “suggests that Mr. Marquez will
have a very difficult time learning and retaining new information and
will need to rely on compensatory strategies in this regard.” (R. 1116.)
Dr. Lago also found other impairments in executive functioning and
opined that mood symptoms are a “salient concern.” (R. 1116.) She concluded that “in light of the significant cognitive impairment and
mood/personality changes, Mr. Marquez is not able to obtain and/or
maintain competitive employment.” Dr. Lago, in support of her opinion,
Specifically, the memory difficulties would make it difficult
for him to learn a new job, and his executive dysfunction
would hinder his ability to do the type of job that he did
previously, and he would have difficulty with independent
problem-solving. Additionally, his interpersonal difficulties would pose a challenge in the workplace.
The ALJ accorded greater weight to Dr. Morton’s opinion than Dr.
Lago’s. (R. 24.) But the ALJ did not state what weight, if any, that he
assigned to Dr. Lago’s opinion. This was error. An ALJ is required to
make clear what weight he is assigning each medical opinion. KeyesZachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). The regulations
also require an ALJ to consider several specific factors in weighing a
physician’s opinion. Doyal v. Barnhart, 331 F.3d 758, 764 (10th Cir.
2003). The ALJ did not reference these factors or state that he considered them with respect to Dr. Lago. The ALJ also did not give good reasons for his decision to give lesser weight to Dr. Lago’s opinion. See
Crampton v. Comm’r, SSA, No. 18-5078, 2019 WL 3034795, at *4 (10th
Cir. July 11, 2019) (“The ALJ need not explicitly discuss all six factors if
he otherwise provides good reasons for the weight given to the [physician’s] opinion.”).
The ALJ’s assessment betrays his lack of analysis. He first found
that “Dr. Lago did not offer any specific functional restrictions to support
this conclusory opinion, which seems to be based more on the claimant’s
subjectively described limitations than available objective findings and
treatment.” (R. 24.) But the opinion is not conclusory. It sets forth impairments based on testing and an evaluation. (R. 1116–17.) Dr. Lago
made “specific medical findings that could not be rejected in the absence
of conflicting evidence.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th
Cir. 1994). She set forth “Impressions and Recommendations” from a
neuropsychological evaluation and testing, and there is no indication
that they were based on Mr. Marquez’s subjectively described limitations. See Langley v. Barnhart, 373 F.3d 1116, 1121 (10th Cir. 2004) (An
ALJ may not reject the opinions of a treating physician “based merely
on his own speculative conclusion that the report was based only on
claimant’s subjective complaints.”). But even so, “[t]he practice of psychology is dependent, at least in part, on a patient’s subjective complaints.” Thomas v. Barnhart, 147 F. App’x 755, 759 (10th Cir. 2005).
And a “psychological opinion need not be based solely on objective ‘tests’,
those findings ‘may rest either on observed signs and symptoms or on
objective tests.’” Id. (citation omitted). The ALJ’s decision to reject or
give less weight to Dr. Lago because she considered Mr. Marquez’s responses impermissibly “put the ALJ in the position of judging a medical
professional on the assessment of medical data.” Id. at 759–60.
The ALJ also stated that “Dr. Morton provided a much better supported and explained opinion” than Dr. Lago. (R. 24.) Dr. Lago’s opinion
may be shorter in length than Dr. Morton’s, but both stated the results
of their testing and assessment in a comprehensive manner. An ALJ
may not summarily reject a physician’s “reports as based on inadequate
findings when they are comparable to those reports the ALJ found sufficiently detailed.” Teter v. Heckler, 775 F.2d 1104, 1106 (10th Cir. 1985).
And to the extent the ALJ believed that Dr. Lago’s report was incomplete or not properly supported, he should have contacted Dr. Lago or
taken other steps to obtain the necessary evidence. See 20 C.F.R. §
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2. Dr. Thye
Dr. Thye’s assessment of August 28, 2017, which details even
more significant impairments, is consistent with Dr. Lago’s opinion. (R.
1132–39.) The ALJ purported to give “less weight” to Dr. Thye’s opinion
(R. 25), but it’s not apparent that he gave it any weight at all or, if he
did, which portions of the opinion he gave weight to.2
Dr. Thye found that Mr. Marquez was in the borderline range of
intellectual functioning and diagnosed him with “Major neurocognitive
disorder due to TBI (provisional),” “Adjustment disorder with posttrauma anxiety,” and “Major depressive disorder, recurrent, moderate.”
(R. 1135.) Dr. Thye opined that Mr. Marquez had a number of marked
impairments due to processing, memory, and intellectual functioning issues which impacted his ability (1) “to accept instruction and constructive criticism and respond appropriately to co-workers and the public in
a working setting,” (2) “to sustain acceptable attendance and work without interruptions resulting from his psychological impairments,” (3) to
adapt to new situations, (4) to follow short, simple instructions or directions, and (5) to manage his own funds. (R. 1135, 1137–38.) To him, Mr.
Marquez was extremely impaired in his ability to understand, remember, and carry out more detailed and complex instructions, and his “ability to work would be limited to simple and repetitive tasks.” (R. 1135.)
Dr. Thye offered that Mr. Marquez “appears to need better social skills
and ability to manage anxiety and anger,” and that it’s common for those
with traumatic brain injury to struggle with impulse control. (R. 1138.)
The reasons the ALJ gave to discount these conclusions were erroneous. For example, the ALJ noted that Mr. Sanchez walks to the
The ALJ also erred by failing to state that he considered factors
relevant to weighing this opinion. See Watkins, 350 F.3d at 1301.
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library daily, works out, and plays disc golf—hobbies he surmised did
“not seem consistent with a disabling level of functional impairment.”
(R. 25.) By this estimation, the ALJ impermissibly imposed his lay judgment that this physical activity undermined the significant cognitive
limitations imposed by Dr. Thye. See McGoffin v. Barnhart, 288 F.3d
1248, 1252 (10th Cir. 2004) (“An ALJ may not make speculative inferences from medical reports and may reject a treating physician’s opinion
outright only on the basis of contradictory medical evidence and not due
to his or her own credibility judgments, speculation or lay opinion.” (emphasis in original)). The ALJ’s non-medical observation “is hardly obvious, and certainly not one that the ALJ (or this court, for that matter) is
qualified to make.” Romo v. Colvin, 83 F. Supp. 3d 1116, 1121 (D. Colo.
2015). Finally, the ALJ stated that he gave Dr. Thye’s opinion little
weight because it occurred in the same month as Dr. Kamer’s physical
exam, and “the claimant was observed by Dr. Kamer to have normal
cognition and mental status findings” and “to be a vague and self-limiting historian.” (R. 25.) But that conclusion cannot be informed by Dr.
Kamer’s report, in which “Psychiatric diagnoses/history/complaints are
not incorporated.” (R. 1156.)
3. Drs. Hager and Makley
The Court now turns to treating physicians Dr. Barbara Hager, a
neurologist, and Dr. Michael Makley, an attending physician at Craig
Hospital. According to Mr. Marquez, the ALJ erred by not assigning any
weight to their findings, even though they both found that Plaintiff was
facing permanent cognitive difficulties.
Dr. Hager’s records provide support for the findings of Drs. Thye
and Lago. Dr. Hager found, in an evaluation on June 16, 2016, that
Plaintiff was disinhibited and had mood irritations, headaches, memory
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loss with short term memory problems, seizures, and dizziness. (R.
1183.) She stated that, given the severity of the injury, she suspected
Mr. Marquez will continue to have lingering deficits. (Id.; see also R.
1189 (finding Mr. Marquez was “disinhibited, tangential” and “[f]requently cursing”; he had poor “short term memory, repeats stories he
had told in the past”; and he should not to drive due to “his impulsivity,
his head injury, and vision change”); R. 1191–93 (finding that he was
more disinhibited; he reported visitations from Jesus; he repeated
phrases during visits; and diagnosing mood disorder as a late effect of
traumatic brain injury).) These are medical findings that should have
been considered by the ALJ, as they corroborate Mr. Marquez’s complaints of significant impairment in memory and other mental deficits.
See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“[T]he
regulations require the ALJ to ‘consider all evidence in [the] case record
when [he] makes a determination or decision whether [claimant is] disabled,’ . . . and this court requires the ALJ to discuss ‘the significantly
probative evidence he rejects.’”) (citing Clifton v. Chater, 79 F.3d 1007,
1010 (10th Cir. 1996) (internal citations omitted)).
Dr. Makley, an attending physician at Craig Hospital, opined in
November 2015 that Mr. Marquez’s traumatic brain injury “resulted in
myriad disabilities that would prevent him from being able to work in
any capacity at this time.” (R. 661.) He stated that Mr. Marquez “is permanently disabled and not competent to manage his own affairs, medically and financially.” (Id.) The ALJ briefly considered, but rejected,
Dr. Makley’s opinion because it “did not provide any specific functional
restrictions or offer objective support for these conclusory opinions” and
“seem[ed] to ignore the claimant’s improvement.” (R. 25.) These reasons
may be enough to not giving Dr. Makley’s opinion controlling weight,
but the ALJ was still required to consider the opinion for the purpose of
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evaluating its consistency against that of the other medical providers.
Westbrook v. Massanari, 26 F. App’x 897, 900 (10th Cir. 2002); see also
Carpenter, 537 F.3d at 1269 (finding the ALJ erred by not “discuss[ing]
how he resolved the conflicts between his findings and the evidence”).
4. Dr. Morton
Finally, the ALJ erred with respect to Dr. Morton, to whom he
gave great weight, by failing to acknowledge Dr. Morton’s moderate-impairment conclusions in the RFC. An ALJ may not pick and choose from
a medical opinion, using only those parts favorable to a finding of disability. Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004). Dr.
Morton opined, consistent with Dr. Lago, that Plaintiff was in the borderline intellectual range of cognitive disabilities. He noted moderate
restrictions in interacting with supervisors, co-workers and the public,
which the ALJ addressed. But Dr. Morton also opined that Mr. Marquez
was limited in remembering and understanding instructions, procedures, and locations. (R. 1105.) The ALJ did not include these limitations in the RFC or the hypothetical question to the vocational expert
(“VE”), even though the ALJ stated that Dr. Morton’s limitations “appear to be supported by the evidence on which they are based.” (R. 24.)
This error also requires a remand. See, e.g., Jaramillo v. Colvin, 576 F.
App’x 870, 876 (10th Cir. 2014).
In sum, the ALJ’s failure to weigh the medical evidence and opinions of the medical providers means that the RFC is not supported by
substantial evidence. The work-related limitations that the ALJ did not
properly consider or weigh “would, if accepted, impact the determination
of RFC.” Krauser v. Astrue, 638 F.3d 1324, 1332 (10th Cir. 2011). Accordingly, the errors require reversal and a remand.
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B. The Step Three Analysis Regarding Listing 11.02 for
Mr. Marquez also asserts that, while the ALJ found that Plaintiff
suffered from seizures as a severe impairment at step two, he inexplicably did not analyze at step three whether those seizures met the requirements of Listing 11.02 for Epilepsy. Mr. Marquez’s medical records detail recurring seizures since the time of his accident, and he has been
treated and evaluated by numerous providers for this condition. He routinely saw Dr. Hager in the two years following his accident to deal with
the seizure disorder. (See Ex. No. 19F, R. 1158–1214.) Mr. Marquez also
reports periods of time where his seizures have occurred weekly causing
loss of consciousness and body control, as well as postictal confusion and
fatigue. (Id.; see also R. 218.) According to him, he meets Listing 11.02
because his records and statements clearly show that he was experiencing seizures at least once a month for at least three consecutive months.
Defendant disagrees, asserting that the evidence does not support this.
Since the ALJ assessed a neurocognitive disorder with seizures
at step two (R. 19), and the record shows that Plaintiff was diagnosed
with epilepsy and seizures (R. 1162, 1173, 1183), the ALJ should have
analyzed Listing 11.02 to determine if Plaintiff’s impairment met or
equaled this listing. See Burnett v. Comm’r of Social Security, 220 F.3d
112, 120 n. 2 (10th Cir. 2000 (It “is within the realm of the ALJ’s expertise to determine the closest applicable listed impairment based on the
medical evidence, when examining whether a claimant’s impairments
meet or equal a listed impairment.”). The ALJ was required to discuss
the relevant evidence and explain why he found that Plaintiff was not
disabled at step three. Clifton, 79 F.3d at 1009.
The Court does not, at this point, determine if the evidence supports a finding of equivalence under this listing; the ALJ should have
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considered the issue. Because the case is being remanded for other errors, the ALJ is instructed to also consider whether Plaintiff’s impairments meet or are equivalent to Listing 11.02.
C. Request for Attorneys’ Fees
Plaintiff’s request for attorneys’ fees under the Equal Access to
Justice Act, 28 U.S.C. § 2412(d), is denied without prejudice. The Local
Rules of this Court require that all motions be filed in a separate document. D.C.COLO.LCivR 7.1(d). Further, Plaintiff has not stated the
amount of fees requested or provided a “recitation of legal authority” in
support of his request. Id.
Based upon the foregoing, the ALJ’s decision is hereby VACATED. The case is REMANDED for the ALJ to properly weigh the
medical evidence, determine the RFC, and assess Plaintiff’s seizures at
DATED: October 2, 2019.
BY THE COURT:
Daniel D. Domenico
United States District Judge
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