Mestas v. Commissioner, Social Security Administration

Filing 21

ORDER Reversing Disability Decision and Remanding to Commissioner. Entered by Judge Robert E. Blackburn on 7/19/2021. (lrobe)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 20-cv-01865-REB
MARGARET JENNIFER MESTAS,

Plaintiff,
v.
KILOLO KIJAKAZI,1 Acting Commissioner of Social Security,
Defendant.

ORDER REVERSING DISABILITY
DECISION AND REMANDING TO COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],2 filed June 24, 2020, seeking
review of the Commissioner’s decision denying plaintiff’s claim for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. I have
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g). The
matter has been fully briefed, obviating the need for oral argument. I reverse and
remand.

1

On July 9, 2021, President Joseph R. Biden appointed Kilolo Kijakazi as Acting Commissioner
of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should
be substituted for Andrew M. Saul, former Commissioner of Social Security, as the defendant in this suit.
No further action need 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).
2

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

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I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges she is disabled as a result of degenerative disc disease of the
cervical and lumbar spine, degenerative joint disease of the knees, osteoarthritis of the
hands, and obesity. After her application for disability insurance benefits was denied,
plaintiff requested a hearing before an administrative law judge. This hearing was held
on June 12, 2019. At the time of the hearing, plaintiff was 50 years old. She has a high
school education and past relevant work experience as a cashier, janitor, and
housekeeper. She has not engaged in substantial gainful activity since at least May 13,
2017, her alleged date of onset.
The ALJ found plaintiff was not disabled and therefore not entitled to disability
insurance benefits. Although the evidence established plaintiff suffered from severe
impairments, the judge concluded the severity of those impairments did not meet or
equal any impairment listed in the social security regulations. The ALJ found plaintiff
had the residual functional capacity to perform a reduced range of light work with certain
postural and manipulative limitations. Although this finding precluded plaintiff’s past
relevant work, the judge determined there were other jobs existing in sufficient numbers
in the national and local economies she could perform. He therefore found plaintiff not
disabled at step five of the sequential evaluation. Plaintiff appealed this decision to the
Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if her
physical and/or mental impairments preclude her from performing both her previous
work and any other “substantial gainful work which exists in the national economy.” 42
2

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U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a quinquepartite sequential evaluation
process for determining whether a claimant is disabled:
1.

The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.

2.

The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.

3.

The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.

4.

If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.

5.

If the claimant does not have the residual functional capacity
to perform his past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.
3

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20 C.F.R. § 404.1520(b)-(f). See also Williams v. Bowen 844 F.2d 748, 750-52 (10th
Cir. 1988). The claimant has the initial burden of establishing a disability in the first four
steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294
n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that
the claimant is capable of performing work in the national economy. Id. A finding that
the claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. Casias v. Secretary of Health & Human Services, 933
F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence 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). Further, “if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
4

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III. LEGAL ANALYSIS
In a single point of error, plaintiff alleges the ALJ committed legal error by failing
to address the persuasiveness of her treating medical source’s opinions of her physical
functional capacity. The Commissioner acknowledges the ALJ’s oversight, but claims
the failure to discuss this medical opinion was harmless error. I cannot so find, and
therefore must reverse.
On October 13, 2017, Dr. Mandy Monford completed a physical assessment of
plaintiff wherein she opined plaintiff’s symptoms related to chronic low back pain and
diffuse arthritis would “constantly” interfere with the attention and concentration required
to complete even simple work-related tasks. She suggested further that plaintiff could
sit for no more than two hours total during an eight-hour work day; could not stand or
walk at all; could never carry any amount of weight; could never use her hands or
fingers to grasp, turn, or twist objects, or for fine manipulation; could use her arms to
reach no more than ten percent of the day; would need to take unscheduled breaks
every 20 minutes during the work day; and would be absent from work due to her
impairments more than four times a month. (Tr. 295-296.) If accepted, this opinion
clearly would preclude all competitive employment. In particular, absences of four or
more times a month would preclude competitive employment, as the vocational expert
testified at the hearing, and a limitation to no more than occasional handling and
fingering would preclude light work. (Tr. 62-63.)
In concluding plaintiff had the residual functional capacity for unskilled light work
that required, inter alia, frequent handling and feeling, the ALJ completely ignored this
opinion. (Tr. 15.) See 20 C.F.R. § 404.1567(b) (light work requires ability to lift up to 20
5

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pounds at a time and lift and carry up to 10 pounds frequently); Social Security Ruling
83-14, 1983 WL 31254 at *4 (SSA 1983) (“[M]ost light jobs – particularly those at the
unskilled level of complexity – require a person to be standing or walking most of the
workday.” ). See also Social Security Ruling 83-10, 1983 WL 31251 at *5-*6 (SSA
1983) (“frequently” means “occurring from one-third to two-thirds of the time”). Indeed,
as the Commissioner concedes, he apparently overlooked this aspect of Dr. Monford’s
opinion entirely.3
Dr. Monford’s opinion constitutes a “medical opinion” within the meaning of the
Commissioner’s regulations. 20 C.F.R. § 404.1513(a)(2) (“A medical opinion is a
statement from a medical source about what you can still do despite your impairment(s)
and whether you have one or more impairment-related limitations or restrictions” in the
ability to perform the various demands of work). The ALJ is required to articulate in his
findings “how persuasive [he] find[s] all of the medical opinions” of record. 20 C.F.R. §
404.1520c(b). See also Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (ALJ
must “discuss the uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects”). The ALJ’s failure to do so here thus
constitutes error.
Nevertheless, the Commissioner asserts this error was harmless because Dr.
Monford’s opinion predated plaintiff’s recovery from an acute knee injury and substantial
evidence in the record allegedly otherwise supports the ALJ’s residual functional
capacity determination. I cannot agree. The failure to discuss a medical opinion

3

The ALJ did address Dr. Monford’s contemporaneous mental residual functional capacity
report. (Tr. 14; see Tr. 292-294.)

6

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constitutes harmless error only “if there is no inconsistency between the opinion and the
ALJ's assessment of residual functional capacity,” since “[i]n that case, the claimant is
not prejudiced because [discussing] [the opinion] would not have helped her.” Mays v.
Colvin, 739 F.3d 569, 579 (10th Cir. 2014) (citation and internal quotation marks
omitted; alteration in original). See also Miller v. Saul, 2020 WL 7022355 at *11 (D.
Colo. Nov. 30, 2020); Schoonmaker v. Berryhill, 2017 WL 4422597 at *3-4 (W.D.
Okla. Oct. 5, 2017).
Such is plainly not the case here. Dr. Monford’s opinion plainly would preclude
all work at any exertional level. I thus cannot find this error harmless. Moreover, the
Commissioner’s attempt to back-fill the ALJ’s decision by reference to her alleged
recovery from an acute knee injury still fails to address the manipulative limitations Dr.
Monford endorsed, which at best could reduce plaintiff’s residual functional capacity
below the light level, or Dr. Monford’s opinions as to the effect of plaintiff’s symptoms on
her ability to stay or task and maintain required attendance, which would preclude
competitive employment entirely. (See Tr. 62-63.)4
Accordingly, this matter must be remanded to allow the ALJ to consider and
address the persuasiveness of Dr. Monford’s opinion. See 20 C.F.R. §
404.1520c(b)(2).
4

At the hearing, the vocational expert testified that a person limited to only occasional fingering
and handling and who needed an assistive device for walking and standing would be incapable of light
work. (Tr. 63.) Although plaintiff testified she used a cane “a handful of times a month” to walk and
balance (see Tr. 58-59), the ALJ found she “has not been regularly observed to use an assistive device
to aid in ambulation” (Tr. 16), by which I assume he meant that no medical source had noted her using
any such device. To the extent the ALJ meant by this finding to infer that plaintiff’s testimony not credible,
he should more clearly so state. Moreover, and even if this opinion is supportable, because the
hypothetical propounded to the vocational expert was compound, it is not clear to what extent
manipulative limitations alone would affect his opinion. This matter likewise can be further clarified on
remand.

7

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IV. ORDERS
THEREFORE IT IS ORDERED as follows:
1. That the conclusion of the Commissioner through the Administrative Law
Judge that plaintiff was not disabled is reversed;
2. That this case is remanded to the ALJ, who is directed to
a. Evaluate the persuasiveness of Dr. Monford’s October 13, 2017,
physical assessment in light of the various factors which bear on that
determination;
b. Further develop the record as he deems necessary, including, but not
limited to, recontacting Dr. Monford for clarification or an updated opinion
and/or obtaining further vocational expert testimony;
c. Reconsider his determinations at steps four and five of the sequential
evaluation in light of this evidence; and
d. Reassess the disability determination; and
3. That plaintiff is awarded her costs, to be taxed by the clerk in the time and
manner required under Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1 and 28
U.S.C. § 2412(a)(1).
Dated July 19, 2021, at Denver, Colorado.
BY THE COURT:

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