Abachiche v. Commissioner, Social Security Administration

Filing 20

ORDER Vacating Decision of Administrative Law Judge and Remanding to Commissioner. Entered by Judge William J. Martinez on 9/14/2020. (afran)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 19-cv-1872-WJM
RACHEL ABACHICHE,
Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security,1
Defendant.

ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE AND
REMANDING TO COMMISSIONER

This matter is before the Court on review of Defendant Commissioner of the
Social Security Administration Andrew M. Saul’s (the “Commissioner’s”) decision
denying Plaintiff Rachel Abachiche’s application for a period of disability and disability
insurance benefits. For the reasons set forth below, the Commissioner’s decision to
deny Plaintiff’s application for disability insurance benefits is vacated, and this case is
remanded for further proceedings consistent with this Order.
I. BACKGROUND
Abachiche was born in 1977 and was 38 years old on the alleged onset date of
June 2, 2016. (Administrative Record (“R.”) [ECF No. 9] at 145.) Her highest level of
educational achievement was one year of college. (R. at 169.) For over 10 years
preceding the alleged onset date, she worked as a manager at McDonald’s. (R. at
1

Andrew M. Saul was sworn in as the Commissioner of Social Security on June 17,
2019, and is automatically substituted as the proper defendant under Federal Rule of Civil
Procedure 25(d) and the last sentence of 42 U.S.C. § 405(g).

169–70.)
Abachiche applied for a period of disability and disability insurance benefits on
September 1, 2016. (R. at 15, 145.) She claimed disability due to multiple sclerosis,
optic neuritis, restless leg syndrome, pain in legs, severe muscle weakness, insomnia,
fatigue, migraines, impaired cognitive functioning, and memory loss. (R. 168.) Her
application was denied on March 22, 2017. (R. at 81–84.) She req uested and received
a hearing in front of an Administrative Law Judge (“ALJ”), Lynn Ginsberg. (R. at 31–58,
86–101.) That hearing took place on May 22, 2018. (R. at 31–58.)
II. THE ALJ’s DECISION
On August 17, 2018, the ALJ denied Abachiche’s claim for benefits in a written
decision in accordance with the Commissioner’s five-step sequential evaluation
process.2 (R. at 12–30.) Before evaluating step one, the ALJ concluded that
Abachiche had “acquired sufficient quarters of coverage to remain insured through
December 31, 2021.” (R. at 17.)
Turning to the five-step process itself, the ALJ found at step one that Abachiche
had not engaged in substantial gainful activity since the alleged onset date. (R. at 17.)
At step two, the ALJ found that Abachiche had the following severe impairments:
relapsing and remitting multiple sclerosis; migraines; obesity; and restless leg

2

The five-step process requires the ALJ to consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment;
(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to
his or her past relevant work; and, if not, (5) could perform other work in the national economy.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750–51
(10th Cir. 1988). The claimant has the burden of proof through steps one to four; the
Commissioner has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).

2

syndrome. (R. at 18.) At step three, the ALJ found that Abachiche 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. § 404, Subpart P, Appendix 1. (R. at 19.)
Regarding Abachiche’s residual functional capacity (“RFC”), the ALJ found:
[T]he claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a),
specifically the claimant can lift and carry ten pounds
occasionally and less ten pounds frequently, can stand or
walk for two hours total, and can sit for six hours total in an
eight-hour workday with normal breaks. The claimant can
never climb ladders, ropes, or scaffolds, can occasionally
climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl. The claimant can frequently perform fine
manipulation and occasionally feel with the right upper
extremity. The claimant can have no exposure to
temperature extremes of hot and cold, unprotected heights,
or even terrain and no use of moving, hazardous machinery.
The claimant is limited to unskilled work at all reasoning
levels appropriate for unskilled work and should have only
occasional, superficial interaction with the public.
(R. at 19–20.)
At step four, the ALJ determined that, given Abachiche’s RFC, she is unable to
perform any past relevant work. (R. at 25.) At step five, taking into account
Abachiche’s age, education, work experience, and RFC, the ALJ determined that there
are jobs that exist in significant numbers in the national economy that Abachiche can
perform. (R. at 26.) Based on the hearing testimony from a vocational expert, the ALJ
determined that Abachiche could perform such jobs as electronics worker, hand
painter-stainer, and documents preparer. (R. at 26.) Consequently, the ALJ found that
Abachiche had not been under a disability, as defined in the Social Security Act, from
June 2, 2016, through the date of the decision. (R. at 27.)
3

III. STANDARD OF REVIEW
The Court’s review of a determination that a claimant is not disabled is limited to
determining whether the record contains substantial evidence to support the
Commissioner’s decision and whether the correct legal standards were applied.
Hamilton v. Sec’y of Health and Human Servs., 961 F.2d 1495, 1497–98 (10th Cir.
1992). “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.”
Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “Evidence is not substantial
if it is overwhelmed by other evidence or constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). T he Court 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.” Grogan, 399 F.3d
at 1262. However, the Court “may not reweigh the evidence nor substitute [its]
judgment” for the Commissioner’s. Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.
1994). Additionally, “[t]here are specific rules of law that must be followed in weighing
particular types of evidence in disability cases.” Reyes v. Bowen, 845 F.2d 242, 244
(10th Cir. 1988). “Failure to follow these rules constitutes reversible error.” Id.
IV. ANALYSIS
Abachiche advances three grounds for vacating the decision below: (1) the ALJ
failed to evaluate the medical evidence and medical or treating source opinions as
required by 20 C.F.R. § 404.1527; 3 (2) the ALJ failed to perform a proper pain analysis;
3

Section 404.1527 defines medical opinions as “. . .statements from acceptable medical
sources that reflect judgments about the nature and severity of your impairment(s), including

4

and (3) the ALJ failed to meet the Commissioner’s step five burden. (ECF No. 16.)
The Court need only address Plaintiff’s first argument, as it provides a basis for
vacating the decision of the Commissioner denying Plaintiff disability insurance
benefits, and remanding this case for further proceedings.
Abachiche argues that the ALJ failed to properly evaluate medical evidence and
medical source opinions provided by her treating neurologist, Ralph Round, M.D. (Id. at
8–9.) Specifically, Abachiche identifies three of Dr. Round’s treatment notes from 2016,
the year in which she had an exacerbation of her multiple sclerosis symptoms. First, in
April 2016, the Assessment section of Dr. Round’s treatment notes stated, among other
things, “Multiple sclerosis generally doing well although does have chronic fatigue which
is extreme,” “Now with major exacerbation and not improving as hoped with
Solumedrol,” “Not to go on upcoming trip for business as was planned,” and “Consider
temporary disability.” (R. at 295.)
Next, in May 2016, Abachiche saw Dr. Round again, and the Assessment
section of his treatment notes stated, among other things, “Multiple sclerosis with recent
major exacerbation,” “Still quite symptomatic weeks out,” and “May need to consider
extension of disability.” (R. at 292.)
Finally, in November 2016, Abachiche had a follow-up visit with Dr. Round.
Among other things, his treatment notes reflect Abachiche had: an unsteady gait;
muscle strength of 5/5 in all major muscle groups, except giveway in the right leg; tone:
spastic in right upper limb and right lower limb; hypoesthesia in right body distribution;

your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1).

5

and reflexes of 3+ right and 2+ left. (R. at 285.) The Assessment section of Dr.
Round’s treatment notes stated, among other things, “Multiple sclerosis
relapsing/remitting with significant secondary progression at this point” and “To remain
on disability for now.” (R. at 285.)
Abachiche argues that not once in discussing Dr. Round’s treatment records did
the ALJ acknowledge that Dr. Round endorsed Abachiche going on disability instead of
trying to work. (ECF No. 16 at 9.) Further, she contends it is “improper for the ALJ to
‘pick and choose among medical reports’ in such a manner, using only selective
portions of the evidence that would tend to support the ALJ’s conclusion.” (Id.)
Abachiche emphasizes that “Dr. Round did not retract his position at any point through
his 2018 examinations.” (Id. at 10.) She asserts that Dr. Round’s notes show that he
believed that an attempt by Abachiche to work was “contraindicated,” and that,
“[i]nstead of evaluating Dr. Round’s conclusion in light of the medical evidence, the ALJ
improperly substituted her own opinion about what the clinical findings meant.” (Id.)
Abachiche also argues the ALJ failed in her duty to develop the record because she did
not recontact Dr. Round for clarification. (Id.)
In response, the Commissioner argues the ALJ had no duty to weigh as opinion
evidence any statements by Dr. Round that did not reflect the nature of severity of
Abachiche’s limitations. (ECF No. 17 at 6.) As an initial matter, the Commissioner
argues it is not clear that Dr. Round’s notation was intended to be an endorsement of
disability and suggests the note may in fact reflect Abachiche’s reports. (Id. at 7 (citing
R. at 285).) Regardless, the Commissioner argues Dr. Round’s statement reflects no
information regarding Abachiche’s functional abilities and relates to a dispositive issue
6

reserved to the Commissioner.4 (Id.) Because only medical opinions must be
evaluated using the factors set forth in § 404.1527, the Commissioner argues the ALJ
did not err in not weighing the statement or in not recontacting Dr. Round. (Id. at 7–8.)
In addition to discussing evidence supporting his decision, an ALJ must discuss
“the uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects.” Clifton v. Chater, 79, F.3d 1007, 1010 (10th Cir. 1996).
The ALJ failed to do so here. The record demonstrates that on at least three
occasions, Abachiche’s treating neurologist made notations related to disability—all in
relatively vague levels of detail. (R. at 285, 292, 295.) W hile it is clear from her
recitation of the objective medical evidence that the ALJ considered Dr. Round’s
treatment notes (R. at 21–24), the ALJ failed to acknowledge the statements Dr. Round
made related to Abachiche’s disability—much less explain what impact, if any, the

4

Section 404.1527 provides:
(d) Medical source opinions on issues reserved to the
Commissioner. Opinions on some issues . . . are not medical
opinions, as described in paragraph (a)(1) of this section, but are,
instead, opinions on issues reserved to the Commissioner
because they are administrative findings that are dispositive of a
case; i.e., that would direct the determination or decision of
disability.
(1) Opinions that you are disabled. We are responsible for
making the determination or decision about whether you meet
the statutory definition of disability. In so doing, we review all
of the medical findings and other evidence that support a
medical source’s statement that you are disabled. A
statement by a medical source that you are “disabled” or
“unable to work” does not mean that we will determine that
you are disabled.

20 C.F.R. § 404.1527(d)(1).

7

statements had on her finding that Abachiche is not disabled.
The Court acknowledges the Commissioner’s argument that Dr. Round’s
statements do not explicitly make findings regarding Abachiche’s functional abilities, as
a treating physician would typically do in rendering a medical opinion. (ECF No. 17 at
7.) However, each statement related to Abachiche remaining on disability suggests Dr.
Round thought Abachiche could not work. The Commissioner argues it is “not clear
that Dr. Round’s notation was intended to be his endorsement of disability.” (Id.)
Instead, the Commissioner suggests Dr. Round might have been parroting his patient’s
reports. (Id.) Surely, the vagueness of Dr. Round’s statements is the crux of the issue.
Given the uncertainty surrounding Dr. Round’s statements, it is not sufficiently
clear to the Court that the ALJ could make a finding supported by substantial evidence
that Abachiche was not disabled without reopening the record and obtaining additional
medical evidence. The Tenth Circuit has held 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.” Carpenter v. Astrue, 537 F.3d 1264, 1265 (10th Cir.
2008) (quoting Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004)). Here, the
ALJ erred in failing to shore up the record to address Dr. Round’s statem ents prior to
making a finding of no disability.
Because the Court vacates and remands for the reasons stated above, the Court
need not address the other arguments Abachiche raises. See Madrid v. Barnhart, 447
F.3d 788, 792 (10th Cir. 2006). The Court expresses no opinion as to Abachiche’s
other arguments and neither party should take the Court’s silence as tacit approval or
disapproval of those arguments. The Court also does not intend by this opinion to
8

suggest the result that should be reached on rem and; rather, the Court encourages the
parties and the ALJ to fully consider the evidence and all issues raised anew on
remand. See Kepler v. Chater, 68 F.3d 387, 391–92 (10th Cir. 1995) (“W e do not
dictate any result [by remanding the case]. Our remand simply assures that the correct
legal standards are invoked in reaching a decision based on the facts of the case.”
(internal quotation marks omitted)).
V. CONCLUSION
For the reasons set forth above, the Court ORDERS that the decision of the
Commissioner denying Plaintiff Rachel Abachiche’s application for Social Security
disability benefits is VACATED, and this case is REMANDED for further proceedings
consistent with this Order. The Clerk shall enter judgment accordingly and shall
terminate this case. Abachiche shall have her costs, if any, upon compliance with
D.C.COLO.LCivR 54.1.
Dated this 14th day of September, 2020.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

9