Qualls v. Commissioner, Social Security Administration

Filing 14

OPINION & ORDER reversing and remanding the Commissioner's final decision for additional proceedings as set forth in this order. Entered by U.S. District Judge S. Kato Crews on 3/27/2024. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:22-cv-02183-SKC
S.K.Q.,
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant.

OPINION & ORDER

This action is before the Court under Titles II and XVI of the Social Security
Act, 42 U.S.C. § 401 et seq., for review of the Commissioner of Social Security’s
(“Commissioner” or “Defendant”) final decision denying Plaintiff S.K.Q.’s1
applications for disability insurance benefits (DIB) and supplemental security income
(SSI). The Court has carefully considered the parties’ briefs, the social security
administrative record, and applicable law. For the following reasons, the Court
REVERSES and REMANDS the Commissioner’s final decision for additional
proceedings.

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This Opinion & Order identifies Plaintiff by initials only per D.C.COLO.LAPR 5.2.
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BACKGROUND
This action arises from Plaintiff’s applications for DIB and SSI under the Social
Security Act claiming she became disabled beginning June 1, 2019. After two delays
wherein the hearing was commenced and then suspended, Plaintiff appeared and
testified at a telephonic administrative law hearing on January 27, 2022, before
Administrative Law Judge Kathryn D. Burgchardt (ALJ). Rebecca Sharp, a nonattorney representative, represented Plaintiff at the hearing.
The ALJ issued her written decision on February 23, 2022. Dkt. 7-2.2 She
determined Plaintiff had not been under a disability from the June 1, 2019, onset
date through the date of her decision. Plaintiff then requested review by the Appeals
Council, which denied her request, and in doing so, the ALJ’s decision became the
final decision of the Commissioner of Social Security. 20 C.F.R. § 404.981; Nelson v.
Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff timely filed
this action. The Court has jurisdiction to review the final decision under 42 U.S.C.
§ 405(g).

The Court uses “Dkt. __” to refer to specific docket entries in CM/ECF and uses “AR:
__” to refer to documents in the administrative record. The administrative record may
be found at Dkt. 7.

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DIB/SSI FRAMEWORK3
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.’” Wilson v. Astrue, No. 10-cv-00675-REB, 2011 WL 97234, at *1 (D. Colo.
Jan. 12, 2011) (citing 42 U.S.C. § 423(d)(2)). “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.” Id. “[F]inding
that a claimant is able to engage in substantial gainful activity requires more than a
simple determination that the claimant can find employment and that he can
physically perform certain jobs; it also requires a determination that the claimant
can hold whatever job he finds for a significant period of time.” Fritz v. Colvin, 15-cv00230-JLK, 2017 WL 219327, at *8 (D. Colo. Jan. 18, 2017) (emphasis original)
(quoting Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994)).

Throughout this Opinion, while the Court may cite relevant sections of Part 404 of
Title 20 of the Code of Federal Regulations (which contain the Commissioner’s
regulations relating to disability insurance benefits), identical, parallel regulations
can be found in Part 416 of that same title, relating to supplemental security income
benefits.
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The Social Security Regulations outline a five-step process to determine 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 her past work despite any limitations.
5. If the claimant does not have the residual functional capacity to
perform her past work, the ALJ must decide whether the claimant
can perform any other gainful and substantial work in the economy.
This determination is made based on the claimant’s age, education,
work experience, and residual functional capacity.
Wilson, 2011 WL 9234, at *2 (citing 20 C.F.R. § 404.1520(b)–(f)); see also 20 C.F.R.
§ 416.920; Williams v. Bowen, 844 F.2d 748, 750–51 (10th Cir. 1988). Impairments
that meet a “listing” under the Commissioner’s regulations (20 C.F.R. § Pts. 404 and
416, Subpt. P, App. 1) and a duration requirement are deemed disabling at Step Three
with no need to proceed further in the five-step analysis. 20 C.F.R. § 416.920(a)(4) (“If
we can find that you are disabled or not disabled at a step, we make our determination
or decision and we do not go on to the next step.”). Between the Third and Fourth
steps, the ALJ must assess the claimant’s residual functional capacity (RFC). Id.
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§ 416.920(e). The claimant has the burden of proof in Steps One through Four. The
Commissioner bears the burden of proof at Step Five. Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007).
The ALJ’s Decision tracks the five-step process. At Step One, she found
Plaintiff had not engaged in substantial gainful activity since the alleged onset date.
AR: 17. At Step Two, she found Plaintiff has the following severe, medically
determinable impairments: Degenerative Disc Disease of the Cervical Spine, and
Disorder of the Right Upper Extremity. Id. at 18. She further concluded Plaintiff’s
medically determinable impairments of depression, anxiety, and post-traumatic
stress disorder were non-severe. Id. At Step Three, she found Plaintiff does not have
an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1. Id. at 20. She then found Plaintiff has the RFC
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except the claimant can only frequently handle and finger with the right,
dominant upper extremity; can only occasionally crawl and climb
ladders, ropes and scaffolds. She can only lift or carry up to 10 pounds
frequently and 20 pounds occasionally. She could stand and/or walk with
normal breaks for a total of 6 hours in an 8-hour workday. She could sit
with normal breaks for a total of 6 hours in an 8-hour workday. She can
perform pushing and pulling motions with upper and lower extremities
within the weight restrictions given.
Id.
At Step Four, the ALJ determined Plaintiff could perform her past relevant
work as a lender, mortgage officer, and account executive. Id. at 24. Accordingly, the
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ALJ did not proceed to Step Five and determined Plaintiff was not disabled during
the relevant period.
STANDARD OF REVIEW
In reviewing the Commissioner’s Final Decision, the Court’s
review is limited to determining whether the Commissioner applied the
correct legal standards and whether the agency’s factual findings are
supported by substantial evidence. Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. It is more than a scintilla, but less than a
preponderance.
Lee v. Berryhill, 690 F. App’x 589, 590 (10th Cir. 2017) (internal quotations and
citations omitted, citing inter alia Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175
(10th Cir. 2014)); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner . . .
as to any fact, if supported by substantial evidence, shall be conclusive”).
A court may not reverse an ALJ just because the court may have reached a
different result based on the record; the question instead is whether there is
substantial evidence showing the ALJ’s decision was justified. See Ellison v. Sullivan,
929 F.2d 534, 536 (10th Cir. 1990). “We review only the sufficiency of the evidence,
not its weight . . . . Although the evidence may also have supported contrary findings,
we may not displace the agency’s choice between two fairly conflicting views.” Lee,
690 F. App’x at 591-92. Nevertheless, “[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) (internal citation
omitted). A reviewing court must “meticulously examine the record as a whole,
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including anything that may undercut or detract from the ALJ’s findings in order to
determine if the substantiality test has been met.” Flaherty v. Astrue, 515 F.3d 1067,
1070 (10th Cir. 2007). In addition, “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) (internal citation omitted).
ANALYSIS
Plaintiff raises two issues: (1) “[t]he ALJ did not properly assess plaintiff’s
mental impairments;” and (2) “[t]he ALJ did not properly assess the plaintiff’s
allegations.” Dkt. 9. Because the first argument is sufficient on its own to warrant
reversal, the Court declines to address the second argument. 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 [administrative law
judge’s] treatment of the case on remand.”).
A.

State Agency Medical Consultants
Pertinent here, “RFC assessments by State agency medical. . . consultants. . .

are to be considered and addressed in the decision as medical opinions from
nonexamining sources about what the individual can still do despite his or her
impairment(s).” Social Security Ruling 96-6p, 1996 WL 374180, at *4 (July 2, 1996).
These consultants are considered “highly qualified” and “experts in Social Security
disability evaluation.” 20 C.F.R. §§ 404.1527(e)(2)(i). The ALJ must explain the
weight given to the consultant in her written decision. Id. §§ 404.1527(e)(2)(H). “In
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evaluating RFC assessments prepared by state consultants, the ALJ follows the same
process that applies to any opinion evidence, considering factors such as ‘the
supporting evidence in the case record.’” Brown v. Colvin, No. 4:12-CV-00247-FL,
2014 WL 1282255, at *15 (E.D.N.C. Mar. 27, 2014) (quoting 20 C.F.R. §§ 404.1527(a)(d), 416.927(a)-(d)).
B.

Dr. David Benson, Ph.D.
Dr. Benson is a state agency consultant who performed a detailed mental

status examination on Plaintiff. AR: 1192-1200. He diagnosed her with unspecified
anxiety disorder, persistent depressive disorder, and post-traumatic stress disorder.
Id. at 1199. In addition, Dr. Benson concluded Plaintiff had moderate limitations in
her ability to understand, remember, and carry out complex instructions. Id. He also
concluded Plaintiff had moderate impairments in her ability to respond appropriately
to usual work situations and the changes in routine work setting. Id.
In her decision, the ALJ did not find Dr. Benson’s opinion to be persuasive. Id.
at p.23. Although she noted Dr. Benson’s opinion was well supported with references
to objective findings from his examination, she concluded his opinion was not
consistent with Plaintiff’s minimal treatment, her reported activities and abilities, or
past exams that noted Plaintiff was cooperative, had a good mood and affect and
exhibited normal judgment and insight. Id. Plaintiff argues the ALJ’s conclusions in
this regard are not supported by substantial evidence. The Court agrees.

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The question is whether substantial evidence supports the ALJ’s rejection of
Dr. Benson’s opinions regarding Plaintiff’s moderate mental impairment limitations.
An ALJ is barred from making inferences from medical reports and may only reject
an opinion if there is medical evidence to the contrary. McGoffin v. Barnhart, 288
F.3d 1248, 1252 (10th Cir. 2002). “A medical opinion is a statement from a medical
source about what [a claimant] can still do despite [their] impairment(s) and whether
[a claimant has] one or more impairment-related limitations or restrictions in
the...ability to perform physical demands ... [and] mental demands of work
activities[.]” 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Under the regulations, the
ALJ does “not defer or give any specific evidentiary weight, including controlling
weight, to any medical opinion(s)...including those from [the claimant’s] medical
sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, “the ALJ considers the
persuasiveness of those opinions using five factors: supportability; consistency;
relationship with the claimant; specialization; and other factors such as ‘a medical
source’s familiarity with the other evidence in a claim.’” Mileto v. Comm’r, SSA, No.
21-1403, 2022 WL 17883809, at *2 (10th Cir. Dec. 23, 2022) (citing Id. §§ 404.1520c(c),
416.920c(c)).
With respect to the ALJ’s conclusion that Dr. Benson’s findings were not
consistent with Plaintiff’s reported activities and abilities, the Court notes the ALJ
offered no explanation as to which activities or abilities she was relying on. AR: 23.
But perhaps more importantly, to the extent the ALJ relies on her own assessment
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of Plaintiff’s function report and Plaintiff’s hearing testimony, the Court finds the
ALJ’s analysis to be lacking. First, Plaintiff’s function report is far more nuanced
than the ALJ’s analysis suggests. See Wells v. Colvin, 727 F.3d 1061, 1070 (10th Cir.
2013). For example, although the ALJ stated Plaintiff could “shop in stores, go out to
dinner and movies with friends, take community classes,” “prepare meals, dust, wash
dishes, shop, drive, [and] handle finances” (AR: 19), the function report supports far
more limited activities. To be sure, Plaintiff reported she could no longer “walk with
ease, run, work, entertain guests, hike, sit through a movie, drive/ride long
distances,” or complete general hygiene tasks. Id. at 412. The ALJ’s analysis fails to
account for or discuss Plaintiff’s more limited descriptions of her daily activities.
Second, the ALJ’s mischaracterization of Plaintiff’s function report was
compounded at the hearing. While the ALJ relied on Plaintiff’s testimony regarding
her activities and abilities, that testimony was the result of the ALJ’s crossexamination of Plaintiff, rather than the ALJ’s development of Plaintiff’s record
testimony with open-ended questions. The ALJ simply read Plaintiff a list of things
Plaintiff mentioned she enjoyed doing and then she asked Plaintiff to confirm the
point without engaging in any questions regarding her present ability to participate
in those activities.4 Id. at pp.55-56. Under these circumstances, the ALJ’s reliance on

Plaintiff’s representative allowed Plaintiff to explain her activities with more detail,
but much like Plaintiff’s function report, the ALJ did not acknowledge this testimony.
AR: 58-59.
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this testimony as the basis for concluding Plaintiff was capable of doing more than
she claimed is disingenuous and does not constitute substantial evidence.5
In addition, the Court agrees with Plaintiff that the ALJ erred when she failed
to address the medical evidence that was contrary to her conclusion. “Although an
ALJ is entitled to resolve conflicts in the record . . . she may not pick and choose
among medical reports, using portions of evidence favorable to [her] position while
ignoring other evidence, . . . or mischaracterize or downplay evidence to support her
findings.” Bryant v. Comm’r, SSA, 753 F. App’x 637, 641 (10th Cir. 2018) (cleaned
up). Here, the ALJ cited several medical records that note Plaintiff had a normal
mood and affect, but she does not address other medical records tending to support
Dr. Benson’s conclusions. And, as Plaintiff points out, these notations are cursory and
were made incidental to exams regarding physical ailments and, in at least one

The Court is also concerned with the ALJ’s apparent disregard for whether Plaintiff
would be permitted to testify regarding her abilities. When Plaintiff’s representative
raised concern over Plaintiff being allowed to testify, the ALJ was dismissive and
stated that Plaintiff had been given enough time to testify during the prior hearings,
despite the fact those two hearings lasted no more one hour combined. AR: 50-51, 6497. The Court also notes that during the second hearing, when Plaintiff’s
representative informed the ALJ that documents were missing from the record (albeit
because they were submitted two days late), the ALJ’s response was “That’s just too
bad. That’s just too bad at this point.” Id. at 81. The Court understands tone is
difficult to discern from a transcript, but these incidents are noteworthy and give the
Court pause about the potential short shrift the ALJ afforded Plaintiff’s testimony.
Finally, the Court is also concerned with the ALJ’s mischaracterization of Plaintiff’s
medical records as stating she had “good mood and affect,” when the notes state
“normal mood and affect.” The use of the word “good” may suggest Plaintiff had a
more euphoric mood than observed. These words are not interchangeable, and
accuracy is important.
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instance, the ALJ relied on the same encounter twice as support for her conclusions.
Compare AR: 687 with AR: 1093 (duplicate records from June 25, 2019).
The Court cannot conclude the foregoing errors are harmless. “To deem an
error harmless in the social-security context, the court must be able to say with
confidence that no reasonable administrative factfinder, following the correct
analysis, could have resolved the factual matter in any other way.” Jones v. Berryhill,
720 Fed. Appx. 457, 459 (10th Cir. 2017) (internal citations omitted). Because the
ALJ mischaracterized Plaintiff’s activities and abilities, did not consider the opposing
medical evidence in assessing Dr. Benson’s opinions, and cited several medical
records more than once, the Court concludes a reasonable administrative factfinder
applying the correct analysis could have resolved these issues in Plaintiff’s favor.
Further, the ALJ did not include any mental limitations in the RFC or in her
hypotheticals to the VE. Had she done so, it may have altered the VE’s assessment of
the jobs Plaintiff was or was not capable of performing.
*

*

*

For the reasons shared above, the Commissioner’s decision is REVERSED and
REMANDED for further proceedings consistent with this opinion. Plaintiff is
awarded her costs, to be taxed by the Clerk of Court pursuant to Fed. R. Civ. P.
54(d)(1).
In addition, given the ALJ’s expressed frustrations and impatience with
Plaintiff and her representative, the Court RECOMMENDS this matter be redrawn
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to a new ALJ on remand. Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir.1996) (“If there
is sufficient evidence of bias to entitle the claimant to review by a different
administrative law judge, ... then the transfer of the case to a different administrative
law judge is an automatic consequence of reversal. But we do not think that that point
was reached here, and we therefore do not order, but merely recommend, that the
case be transferred.”).

DATED: March 27, 2024.
BY THE COURT:

S. Kato Crews
United States District Judge

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