Ruby-Phillips v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER - The Court reverses and remands the case to allowPlaintiff to cross-examine the VE. IT IS ACCORDINGLY ORDERED this 15th day of November, 2012, that the judgment of the Commissioner is reversed and remanded.Signed by District Judge Eric F. Melgren on 11/15/2012. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DEBORAH ANN RUBY-PHILLIPS,
Case No. 11-CV-2348-EFM
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM AND ORDER
Plaintiff Deborah Ann Ruby-Phillips (“Plaintiff”) seeks review of a final decision by the
Commissioner of Social Security (“Commissioner”) denying her application for disability
insurance benefits and supplemental security income benefits.
Plaintiff claims that the
Commissioner failed to assess the appropriate weight to Plaintiff’s treating physicians’ opinions,
failed to properly evaluate Plaintiff’s mental impairments, failed to properly evaluate Plaintiff’s
credibility, and relied on flawed testimony from the vocational expert. Because the Court finds
that the Commissioner failed to adequately weigh Plaintiff’s treating physician’s opinion and
failed to allow Plaintiff to cross-examine the vocational expert (“VE”), the Court reverses and
remands the case to the Commissioner.
Pursuant to 42 U.S.C. § 405(g), “[t]he findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive.” Upon review, the Court
must determine whether substantial evidence supports the factual findings and whether the
administrative law judge (“ALJ”) applied the correct legal standards.1 “Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It
requires more than a scintilla, but less than a preponderance.”2 The Court is not to reweigh the
evidence or substitute its opinion for the ALJ.3 However, the Court must examine the record as a
whole, including whatever in the record detracts from the ALJ’s findings, to determine if the
ALJ’s decision is supported by substantial evidence.4
Evidence is not substantial if it is
overwhelmed by other evidence or if it is a mere conclusion.5
To establish a disability, a claimant must demonstrate a physical or mental impairment
that has lasted or can be expected to last for a continuous period of twelve months and an
inability to engage in any substantial gainful work existing in the national economy due to the
impairment.6 The Commissioner uses a five-step sequential process to evaluate whether a
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quotations and citations omitted).
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (citations omitted).
Wall, 561 F.3d at 1052 (citing Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)).
Id. (citing Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005)); see also Gossett v. Bowen,
862 F.2d 802, 805 (10th Cir. 1988) (citation omitted).
42 U.S.C. § 1382c(a)(3)(A) (supplemental security income); see also id. § 423(d)(1)(A) (disability
claimant is disabled.7 The claimant bears the burden of proof during the first four steps.8 In
steps one and two, the claimant must demonstrate that she is not presently engaged in substantial
gainful activity and that she has a medically severe impairment or combination of impairments.9
“At step three, if a claimant can show that the impairment is equivalent to a listed impairment,
[s]he is presumed to be disabled and entitled to benefits.”10 If, however, a claimant does not
establish an impairment at step three, the process continues. The Commissioner assesses a
claimant’s residual functional capacity (“RFC”), and at step four, the claimant must demonstrate
that her impairment prevents her from performing her past work.11 The Commissioner has the
burden at the fifth step to demonstrate that work exists in the national economy that is within the
claimant’s RFC.12 The RFC is used to evaluate the claim at both step four and step five.13
Plaintiff Deborah Ann Ruby-Phillips applied for a Title II period of disability and
disability insurance benefits and a Title XVI supplemental security income on August 17, 2006,
alleging that her disability began on March 1, 2004.
Plaintiff claimed disability due to
depression, post-traumatic stress disorder (“PTSD”), lower- and upper-back problems, stroke,
20 C.F.R. § 404.1520(a); Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010).
Lax, 489 F.3d at 1084.
Id. (citations omitted).
Id.; see also 20 C.F.R. § 416.920(a)(4)(iv).
Lax, 489 F.3d at 1084; 20 C.F.R. § 416.920(a)(4)(v).
See 20 C.F.R. § 404.1520(a)(4)(iv)-(v).
neck problems, and high blood pressure.
Her applications were denied initially and on
Plaintiff requested a hearing before an administrative law judge, which occurred on May
12, 2009. On September 3, 2009, the ALJ issued an unfavorable decision finding that Plaintiff
was not under a disability. At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since March 1, 2004—her alleged disability onset date. At step two,
the ALJ determined that Plaintiff had the severe impairments of a depressive disorder, PTSD, a
history of polysubstance abuse and prescriptive medication addiction and abuse; and
degenerative disc disease of the cervical and lumbar spine with history of chronic neck and
lumbar pain, treated with narcotic pain medication. At step three, the ALJ found that the
evidence did not establish that the claimant, absent substance abuse, has an impairment or
combination of impairments that meets or equals a listed impairment. The ALJ concluded that
Plaintiff retained the RFC to perform light work with simple, routine, and repetitive tasks. Based
on this RFC, the ALJ found that Plaintiff was capable of performing work as a cashier, office
helper, and photocopy machine operator. For that reason, the ALJ concluded that Plaintiff was
not disabled under the Social Security Act.
Plaintiff requested review of the ALJ’s decision by the Appeals Council, which denied
her request on April 28, 2011. Thus, the decision of the ALJ stands as the final decision of the
Commissioner. Having exhausted her administrative remedies, Plaintiff seeks relief from this
Plaintiff claims that the ALJ erred (1) in failing to properly evaluate the opinions of
Plaintiff’s treating physicians; (2) in evaluating Plaintiff’s mental impairments; (3) in making her
credibility finding; and (4) in relying on the VE’s testimony. The Court will address each
argument in turn.
Evaluation of the Medical Opinion Evidence
Plaintiff argues that the ALJ erred in giving little weight to the opinions of Plaintiff’s
treating physician, Dr. Yoakam, and the government’s consultative examiner, Dr. Spencer.
According to Plaintiff, Dr. Yoakam’s opinion was entitled to controlling weight and Dr.
Spencer’s opinion was entitled to significant weight.
Dr. Yoakam’s Opinion
In January 2009, Plaintiff’s treating physician, Dr. Yoakam, completed a questionnaire
regarding Plaintiff’s impairments and the work-related limitations associated with these
impairments. Dr. Yoakam diagnosed chronic neck and back pain secondary to degenerative disc
disease, degenerative joint disease of both knees, chronic pain requiring narcotics, a borderline
personality disorder, PTSD, depression, polyarthralgias, a history of illicit drug use, and
hyperlipidemia. She opined that Plaintiff could stand or walk less than one hour in an eight hour
workday and needed to get up at least once per hour. She also opined that lifting caused Plaintiff
pain, that her symptoms would increase if she were placed in a competitive work environment,
and that her medical condition prevented her from keeping her neck in a constant position. Dr.
Yoakam opined that Plaintiff could not perform a full-time competitive job that required the
ability to keep the neck in constant position, that Plaintiff was capable of low work stress, that
Plaintiff would need to take frequent breaks throughout the day, and that Plaintiff would be
absent from work two or three times per month.
As noted above, the ALJ gave Dr. Yoakam’s opinion little weight.14 The ALJ found that
her opinion was “not consistent with the totality of the medical evidence, including physician’s
own treatment records,” and that it was not supported by the March 2009 letter to Plaintiff
advising her that Dr. Yoakam would be withdrawing from care because of Plaintiff’s violation of
the office’s narcotics pharmaceutical policy.15 The ALJ also noted that the Dr. Yoakam’s
findings were an opinion on the ultimate issue of disability, which is an issue reserved to the
The Tenth Circuit has explained the nature of the inquiry regarding a treating physician’s
medical opinion.16 The first step is to determine if the opinion is to be given “controlling
weight.”17 “[A]n opinion must be given controlling weight if it is well-supported by medically
acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other
substantial evidence in the record. If the opinion is deficient in either of these respects, it is not
to be given controlling weight.”18 If the ALJ determines that the treating source’s opinion should
not be given controlling weight, the second step requires the ALJ to state “how much weight the
opinion is being given (including whether it is being rejected outright) and give good reasons,
When discussing Dr. Yoakam’s opinion, the ALJ stated, “[T]he above opinion and assessment of Dr.
Box is being given little weight.” ALJ Decision, Doc. 6-3, p. 25. Given the context of this statement, the Court
assumes that the ALJ intended to use the name “Dr. Yoakam” instead of “Dr. Box” in her decision.
ALJ Decision, Doc. 6-3, p. 25.
Krauser v. Astrue, 638 F.3d 1324, 1330-31 (10th Cir. 2011).
Id. at 1330 (citing Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)).
Id. (citations omitted).
tied to the factors specified in the cited regulations for this particular purpose, for the weight
assigned.”19 Those factors are:
(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.20
When applying these factors, the ALJ’s decision must be “sufficiently specific to make clear to
any subsequent reviewers the weight he gave to the treating source’s medical opinion and the
reason for that weight.”21
In Krauser, the Tenth Circuit found that the ALJ erred when he simply stated that the
treating physician’s opinion was inconsistent with other evidence, including the physician’s own
records.22 The court found this analysis to be inadequate because it did not sufficiently reference
those portions of the record with which the treating physician’s opinion was inconsistent.23 The
Tenth Circuit remanded the case to the ALJ with the requirement that he specifically identify
what in the treating physician’s own records he found to be inconsistent with the treating
Id. at 1331 (citing 20 C.F.R. §§ 404.1527(d)(2-6)).
Id. (quotation omitted).
Id. at 1331, n.3.
Here, the ALJ erred because, like the ALJ in Krauser, she did not cite specific evidence
from the record to support her assessment that Dr. Yoakam’s opinion was inconsistent with the
medical evidence in the record. As the Tenth Circuit noted in Krauser, “it may be possible to
assemble support for this conclusion from parts of the record cited elsewhere in the ALJ’s
decision, but that is best left for the ALJ himself to do in the proceedings on remand.”25
Accordingly, the Court remands the case to the ALJ to identify what in Dr. Yoakam’s own
records and the other medical records she finds inconsistent with Dr. Yoakam’s opinion and
explain the inconsistency.
Dr. Spencer’s Opinion
Dr. Spencer evaluated Plaintiff in June 2009, after Plaintiff’s administrative hearing
before the ALJ. Plaintiff reported to Dr. Spencer that she had back, neck, and knee pain, which
she rated at a level seven on a scale of one to ten. On examination, she had some limitations in
the range of motion of her neck and complained of discomfort at the base of her cervical spine,
with maximal range of motion activity. Her back and neck did not show any gross deformities.
She manipulated door knobs without any difficulty and wrote a legible signature and was able to
pick up and stack coins. She insisted on using a walker to walk 100 yards and was able to climb
down from the examining table but did this cautiously and used the walker to push herself onto
Dr. Spencer assessed significant limitations for Plaintiff. He opined that Plaintiff could
lift and carry twenty pounds occasionally and ten pounds frequently. She could stand and walk
less than two hours total in an eight-hour workday and required a hand-held assistive device for
ambulation. Dr. Spencer also opined that Plaintiff could sit for less than six hours during the
workday and must alter sitting and standing to relieve pain or discomfort. Plaintiff was limited
in her ability to push and pull with lower extremities.
The ALJ gave Dr. Spencer’s opinion “little weight.” She found that it was largely based
on Plaintiff’s reported history to him and not supported by the totality of the evidence. Plaintiff
argues that Dr. Spencer’s opinion was based on his examination of Plaintiff, not just her
subjective complaints, and that there is no evidence in the record that contradicts his findings.
The Court finds that the ALJ did not err in giving Dr. Spencer’s opinion regarding
Plaintiff’s functional limitations little weight. As the ALJ noted, Dr. Spencer’s opinion appears
to be largely based on Plaintiff’s subjective account of her condition as it is not consistent with
Plaintiff’s past medical history. Dr. Spencer opined that Plaintiff could stand or walk less than
two hours and sit for less than six hours in the workday. However, the medical evidence shows
that Plaintiff had normal musculoskeletal exams and full range of motion in her lower
extremities. The October 2008 examination notes from Dr. Habib state that Plaintiff had full
range of motion in all joints in the lower extremities, no focal muscle bulk wasting, and strength
of 5/5 throughout. Treatment notes from Dr. Whitlow’s office from April 2007 through June
2007 stated that Plaintiff had normal musculoskeletal exams. And, Dr. Yoakam’s treatment
notes from July 31, 2008, state that Plaintiff’s musculoskeletal exam was normal.
The ALJ’s assessment is further supported by the fact that when Plaintiff was following
her medication regimen, she stated that her pain was controlled. Treatment records from Dr.
Whitlow’s office from June 2007 and January 2008 state that Plaintiff reported her back pain
was controlled with her current pain medication regimen. Furthermore, the medical records
contain many instances in which Plaintiff used her pain complaints in an attempt to obtain more
narcotic medication, which she abused. For example, Dr. Cristiano’s treatment records from
March 2005 state that Plaintiff was terminated from treatment because she was abusing her
prescription drugs and seeking early refills. Treatment records from Dr. Grote from July 2006
state that at one visit, Plaintiff pleaded with Dr. Grote for more pain medication because her pain
had become worse. Although the records stated that Dr. Grote did not trust her to use it
correctly, he refilled her prescription. Four days later Plaintiff returned to Dr. Grote’s office
stating that all of her medication was gone. In May 2007, Plaintiff presented to Dr. Whitlow’s
office twice for treatment, complaining of back pain. At the first visit, the musculoskeletal exam
was normal. At the second visit, Dr. Whitlow noted that Plaintiff had no spinal tenderness and
recommended that Plaintiff use over-the-counter pain medication.
Finally, Dr. Yoakam’s
treatment records also indicate that Plaintiff misused her medications. Accordingly, the Court
finds that the ALJ’s decision to give Dr. Spencer’s opinion little weight is supported by
substantial evidence in the record.
Evaluation of the Plaintiff’s Mental Impairments
Plaintiff contends that the ALJ erred in failing to indicate what weight she gave to the
opinions of Ms. Harper, Plaintiff’s treating mental health nurse practitioner, or Dr. Mintz, the
government’s consultative psychologist. She claims that, instead of relying on Ms. Harper or Dr.
Mintz, the ALJ only relied on the opinion of the non-examining state agency medical sources
when finding that Plaintiff’s mental impairments limited her to simple, routine work.
Ms. Harper, an advanced registered nurse practitioner, completed a Mental Health
Questionnaire regarding Plaintiff in July 2008. Harper stated that Plaintiff had periods of mood
lability, difficulty concentrating, mood swings, problems with memory, racing thoughts, and
panic attacks. She also opined that Plaintiff was not capable of maintaining employment and that
she had sever chronic pain, degenerative joint disease, and emotional limitations that would
interfere with her ability to sustain employment.
Ms. Harper is not an “acceptable medical source” under the regulations, and thus, her
opinion is not a medical opinion that the ALJ is required to evaluate as such.26 Regardless, the
ALJ was still required to explain the amount of weight she gave to Ms. Harper’s opinion:
The adjudicator generally should explain the weight given to opinions from these
‘other sources,’ or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome
of the case.27
Plaintiff argues that the ALJ did not even mention Harper’s opinion. But, this is not the
case. The ALJ specifically referred to the Mental Health Questionnaire dated July 7, 2008,
which was prepared by Harper, and thus was her opinion. Specifically, she noted that “this
medical source also noted that because of claimant’s severe and chronic pain, she would have
limitations (physical or emotional) that would interfere with employment.”28 The ALJ also
stated that she was giving little weight to Harper’s opinion because it was not supported by her
own treatment records and was not consistent with the totality of the medical evidence. This
explanation, along with the ALJ’s discussion of Plaintiff’s mental state in the treatment records
of Dr.Whitlow, Dr. Cristiano, and Dr. Mintz, allows the Court to sufficiently “follow the
20 C.F.R. §§ 404.1513, 416.913.
SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006); see also Bowman v. Astrue, 511 F.3d 1270,
1274 (10th Cir. 2008) (noting that SSR 06-03p requires ALJs to evaluate medical opinions from providers who are
not “acceptable medical sources” and explain the weight given to them).
ALJ Decision, Doc. 6-3, p. 26.
SSR 06-03p, 2006 WL 2329939, at *6.
The Court also finds that Plaintiff failed to show that the ALJ erred in assigning little
weight to Harper’s opinion. There are no other treatment notes from Harper in the record.
Furthermore, other medical records in the record show that, absent substance and medication
abuse, Plaintiff had normal psychiatric examinations. Progress reports from Dr. Whitlow’s
office from 2007 show benign psychiatric findings, and that claimant was oriented times three,
with intact recent and remote memory, judgment, and insight, and normal mood. In addition,
treatment records from Dr. Cristiano do not refer to significant mental symptoms. Thus, the
Court discerns no harmful error with respect to the ALJ’s treatment of Harper’s opinion.
With respect to Dr. Mintz’s opinions, Plaintiff argues that the ALJ erred in failing to
indicate what weight she gave them in her decision. Dr. Mintz examined Plaintiff twice—in
June 2005 and January 2009. Dr. Mintz’s treatment notes from the June 2005 examination state
that he diagnosed Plaintiff with episodic poly-substance abuse, episodic alcohol abuse, opioid
withdrawal, depressive disorder, and anxiety disorder.
He opined that Plaintiff’s “most
immediate problem area appears to be her addictive behaviors and anxiety.
depressed, her life style appears very chaotic, she do not appear stable to the point where she
would be able to function successfully in a full time employment setting consistently.”30 The
ALJ did not address this opinion in her decision. However, the ALJ did discuss Dr. Mintz’s
January 2009 opinion in detail, noting that Dr. Mintz found Plaintiff to be well-dressed and
groomed and oriented times three with no reports of hallucinations or delusions. The ALJ noted
that Dr. Mintz found that Plaintiff appeared depressed, that she appeared to function in the
average intellectual range with similar levels of memory functioning, and that her immediate
Dr. Mintz’s Treatment Records, Doc. 6-11, p. 390.
attention capability appeared in intact and she could do basic arithmetic. The ALJ further noted
that Dr. Mintz’s diagnostic impression was of a depressive disorder, not otherwise specified,
PTSD, alcohol abuse, in remission, and poly-substance abuse, in remission.
The ALJ did not specify the weight she gave to Dr. Mintz’s opinions. The Court finds
this error, however, to be harmless.31 The ALJ was not required to assign weight to Dr. Mintz’s
March 2005 opinion that Plaintiff would not be able to function successfully in a full time
employment setting because this was an opinion on the ultimate issue of disability, which is
reserved to the Commissioner.32 Furthermore, the ALJ clearly evaluated Dr. Mintz’s January
2009 opinion in her decision, and Dr. Mintz’s opinion is consistent with the limitations that the
ALJ placed in Plaintiff’s RFC when she limited Plaintiff to simple, routine, and repetitive job
The ALJ’s Credibility Determination
Plaintiff alleges that the ALJ’s credibility finding is not supported by substantial
evidence. At the administrative hearing in May 2009, Plaintiff testified that she experienced pain
in her back, neck, and knees. She stated that she could stand for ten minutes using her walker
and sit for thirty minutes if done right after taking her medications. She testified that her
depression causes crying symptoms and that she has short-term memory difficulties. When
describing her daily activities, Plaintiff stated that she has “bad days” about five days a week,
See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (approving harmless-error analysis when,
“based on material the ALJ did at least consider (just not properly), we could confidently say that no reasonable
administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way”);
Keyes-Zachary v. Astrue, 2012 WL 4076114, at *3 (D. Kan. Sept. 18, 2012).
20 C.F.R. §§ 404.1527(e), 416.927(e).
and on those days, she spends most of her day sitting in a recliner and only gets up to take food
An ALJ’s credibility determinations are generally treated as binding on review.33
“Credibility determinations are peculiarly the province of the finder of fact” and will not be
overturned when supported by substantial evidence.34 Thus, in reviewing the ALJ’s credibility
determinations, the Court usually defers to the ALJ on matters involving witness credibility.35
But, “ ‘findings as to credibility should be closely and affirmatively linked to substantial
evidence and not just a conclusion in the guise of findings.’ ”36
In evaluating a disability claim based on pain, the ALJ must first determine whether the
objective medical evidence demonstrates that a claimant suffers from an underlying medically
determinable physical or mental impairment.37 If so, the ALJ must consider the relationship
between the impairment and the alleged pain.38 If a loose nexus exists, the ALJ must then
consider all the evidence, both objective and subjective, in determining whether a claimant’s
disability is disabling.39 Factors that may be relevant in assessing the claimant’s testimony
include, but are not limited to:
Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990); Broadbent v. Harris, 698 F.2d 407, 413 (10th
Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010); accord Hackett v. Barnhart, 395 F.3d 1168,
1173 (10th Cir. 2005).
Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); but see Thompson v. Sullivan, 987 F.2d 1482,
1490 (10th Cir. 1993)(stating that “deference is not an absolute rule”).
Wilson, 602 F.3d at 1144 (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)).
Luna v. Bowen, 834 F.2d 161, 163 (10th Cir. 1987); Williams v. Bowen, 844 F.2d 748, 753 (10th Cir.
Luna, 834 F.2d at 164.
the levels of medication and their effectiveness, the extensiveness of the attempts
(medical or nonmedical) to obtain relief, the frequency of medical contacts, the
nature of daily activities, subjective measures of credibility that are peculiarly
within the judgment of the ALJ, the motivation of and relationship between the
claimant and other witnesses, and the consistency or compatibility of nonmedical
testimony with objective medical evidence.40
The regulations and Social Security Ruling 96-7p suggest factors that overlap and expand upon
those stated by the court:
daily activities; location, durations, frequency, and intensity of
symptoms; type, dosage, effectiveness, and side effects of medications taken to relieve
symptoms; and other factors concerning limitations or restrictions resulting from symptoms. The
ALJ is only required to “set forth the specific evidence he relies on in evaluating the claimant’s
credibility.”41 The ALJ is not required to make a “formalistic factor-by-factor recitation of the
Plaintiff asserts that the ALJ based her credibility findings solely on the fact that Plaintiff
had “exaggerated pain behavior” and that her pain complaints were based on her attempt to
obtain narcotic medication that was misused by Plaintiff. Plaintiff also asserts that there is not
substantial evidence to support the ALJ’s findings. The Court disagrees.
Contrary to Plaintiff’s assertion, the ALJ set forth the factors in 20 C.F.R. §§ 404.1529
and 416.929, which overlap those set forth in SSR 96-7p, when evaluating Plaintiff’s credibility.
The ALJ based her credibility findings not only on Plaintiff’s request for and misuse of narcotic
medication, but also her activities of daily living and the objective medical evidence.
Furthermore, the ALJ’s findings are supported by substantial evidence from the record.
Thomson, 987 F.2d at 1489 (citations omitted).
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
The ALJ found that there was nothing in the evidence of record and testimony to indicate
that Plaintiff had significant problems with the aspects of daily living. The ALJ noted that
Plaintiff reported that she is able to care for her personal needs, provides care to her thirteen year
old daughter, performs household chores, drives, and shops for groceries and personal items and
that Plaintiff’s aunt reported that Plaintiff had no problems caring for her personal needs. The
record shows that Plaintiff completed a Function Report in October 2008 for which she had the
memory and attention capacity to complete the form and provide two additional pages of
The ALJ also found that the objective medical evidence did not support the degree of
limitation that Plaintiff testified to during the hearing. Specifically, the ALJ noted that she
considered Plaintiff’s complaints of disabling orthopedic pain, but found that they are not
consistent with record. As the Court previously discussed, the medical evidence shows that
Plaintiff had normal musculoskeletal exams, full range of motion in her lower extremities, and
that her pain was controlled with her medication regimen.
Plaintiff argues that the ALJ’s credibility findings are not supported because no medical
source ever opined that Plaintiff “ ‘exaggerated’ her pain complaints.”43 The Court agrees that
no medical provider expressly stated that Plaintiff “exaggerated her pain complaints.” However,
the ALJ did not base her credibility findings solely on this statement. The ALJ also based her
credibility findings on Plaintiff’s attempts to obtain narcotic medication, which, as discussed
above is supported by substantial evidence in the record, and her lies about her medication use.
The ALJ stated:
Plaintiff’s Brief, Doc. 7, p. 25.
Claimant’s credibility has also come into question. Specifically, treatment
records of Dr. Yoakam refer to claimant’s lying about medication use and has
been noted to increase her opioid usage from “a secret stash.” Dr. Yoakam noted
to claimant that if she and claimant could not develop a trusting patient-physician
relationship, claimant would be terminated from their clinic. It has been noted by
the above physician that claimant was “obviously” misusing her medications.44
The ALJ properly considered Plaintiff’s drug-seeking behavior in evaluating Plaintiff’s
credibility and tied that behavior to substantial evidence in the record.45 Therefore, the Court
does not see any reason for discounting the ALJ’s assessment of Plaintiff’s credibility.
Whether the ALJ Relied on Flawed Vocational Expert Testimony
Plaintiff claims that the ALJ relied on flawed vocational expert testimony in determining
that Plaintiff could not perform her past work but that she could perform work as a cashier, office
helper, and photocopy machine operator. Specifically, Plaintiff argues that the ALJ violated
Plaintiff’s due process rights because the ALJ precluded her from cross-examining the VE. The
“Disability applicants must be afforded procedural due process protections in the hearing
setting.”46 As a part of procedural due process, claimants have the right to cross-examine
vocational experts.47 In this case, the ALJ cut off Plaintiff’s cross-examination of the VE after
one question, stating that she was going to hold a supplemental hearing in which Plaintiff could
cross-examine the VE. The ALJ, however, never held a supplemental hearing before issuing her
ALJ Decision, Doc. 6-3, pp. 24-25.
Poppa v. Astrue, 569 F.3d 1167, 1171-72 (10th Cir. 2009).
Glass v. Shalala, 43 F.3d 1392, 1396 (10th Cir. 1994).
Haddock v. Apfel, 196 F.3d 1084, 1090 (10th Cir. 1999) (citing Glass, 43 F.3d at 1396).
decision, thereby precluding Plaintiff from cross-examination. The Court finds that the ALJ’s
failure to allow cross-examination violates Plaintiff’s due process rights.
Defendant argues that any error the ALJ made in precluding cross-examination is not
reversible error under Glass v. Shalala48 because Plaintiff has not shown that cross-examination
would have altered the evidence before the ALJ. The Court finds Glass to be distinguishable
from this case. In Glass, the court rejected claimant’s argument that her procedural due process
rights were violated when the ALJ allowed the VE to testify when the claimant was not
present.49 Although the Court found that cross-examination would not alter the evidence before
the ALJ, the court also found that the claimant waived her right to cross-examination when,
during a subsequent hearing, the claimant’s counsel stated that he had no objections to the VE’s
testimony and nothing further for consideration.50 In this case, Plaintiff has not waived her right
to cross-examine the VE. Accordingly, the Court reverses and remands the case to allow
Plaintiff to cross-examine the VE.51
43 F.3d 1392 (10th Cir. 1994).
Id. at 1397.
Id. at 1396-97.
Because the Court finds that the ALJ did not go through the requisite analysis regarding Dr. Yoakam’s
opinion and did not allow Plaintiff to cross-examine the VE, it is unnecessary for the Court to consider Plaintiff’s
remaining claims regarding Plaintiff’s RFC and the ALJ’s decision that there is alternative work that Plaintiff could
IT IS ACCORDINGLY ORDERED this 15th day of November, 2012, that the
judgment of the Commissioner is reversed and remanded.
IT IS SO ORDERED.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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