Robinson v. Social Security Administration
Filing
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OPINION AND ORDER by Magistrate Judge Paul J Cleary reversing and, remanding case (terminates case) (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
WILLIAM EUGENE ROBINSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
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Case No. 14-CV-465-PJC
OPINION AND ORDER
Claimant, William Eugene Robinson (“Robinson”), pursuant to 42 U.S.C. § 405(g),
requests judicial review of the decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying Robinson’s applications for disability insurance
benefits and supplemental security income (“SSI”) benefits under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401 et seq. In accordance with 28 U.S.C. § 636(c)(1) and (3), the
parties have consented to proceed before a United States Magistrate Judge. Any appeal of this
order will be directly to the Tenth Circuit Court of Appeals. Robinson appeals the April 17,
2014 decision of Administrative Law Judge Deborah L. Rose (“ALJ Rose” or “the ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly determined that Robinson was
not disabled. For the reasons discussed below, the Court REVERSES AND REMANDS the
Commissioner’s decision.
Claimant’s Background
Before summarizing Robinson’s testimony and the medical records contained in the
administrative transcript, the Court notes that Robinson raises only the issue of whether the
ALJ’s RFC determination that Robinson had the capacity to perform light work1 was supported
by substantial evidence. Plaintiff’s Opening Brief, Dkt. #17, p. 5. Robinson focuses this
argument on three sets of documents: Medical records of Richard A. Hastings II, D.O., an
examining physician, from March and April 2007 (R. 223-35); the consultative examination
report of Seth Nodine, M.D., dated June 16, 2009 (R. 267-74); and the decision of the first ALJ,
John Volz, dated October 7, 2010 (R. 21-30). Plaintiff’s Opening Brief, Dkt. #17. Because
Robinson has presented a narrow and focused argument, the Court deems it unnecessary to
summarize all of the medical records contained in the 1000-plus page administrative transcript.
(R. 223-1040). The decision to summarize only a portion of the record is also appropriate
because the second ALJ, ALJ Rose, found Robinson to be disabled as of his 55th birthday in
2011, pursuant to the “Grids,” the Medical-Vocational Guidelines set forth in 20 C.F.R. Part
404, Subpart P, Appendix 2. (R. 539-48). Thus, Robinson’s case is similar to a “closed period”
case, with the relevant time period being between his asserted onset date of October 1, 2008 and
his date last insured of December 31, 2009, or, at the latest, the date in 2011 when he began
receiving SSI benefits. (R. 124, 541). See Newbold v. Colvin, 718 F.3d 1257, 1260 n.1 (10th
Cir. 2013) (describing a “closed period” case).
Robinson was 57 years old at the time of the hearing before ALJ Rose on April 2, 2014.
(R. 124, 557). Robinson testified that beginning in 2002 he had worked as a self-employed
1
“Light work” is a defined classification of physical exertion requirements of work in the
national economy. 20 C.F.R. § 404.1567(b).
2
welder, mostly building fences for farmers and ranchers, but also repairing items for other
companies, such as oil companies. (R. 565). He last worked in September 2008, and his reason
for quitting was that he was no longer able to do the physical exertion required by the job. (R.
567-68). He said that there had been times that he had worked one day and then did not work for
two or three days in order to recuperate from the aggravation work caused of his physical
problems with his shoulder, neck, and back. Id.
Robinson testified that in the time period of 2008 and 2009, his problems were primarily
with his neck, left shoulder, left knee, and back. (R. 569). He said that he had been injured
while working for an oil company in 2006, and he had been granted workers’ compensation. (R.
570). He said that his workers’ compensation benefits stopped when the company declared
bankruptcy and went out of business. Id. Robinson said that he had never had surgery for any of
his conditions due to the loss of workers’ compensation benefits and no other available health
care resources. (R. 570-71).
Robinson described pain and limited range of motion in his shoulders, neck, lower back,
and left knee. (R. 571-73). Robinson said that he had experienced gout in his left knee since age
22, but it had been controlled by medication since 2002. (R. 573).
Robinson said that the maximum he could lift would be about ten pounds, due to pain in
his shoulder and neck. (R. 574-75). He thought he could only walk one block before he would
have shortness of breath that would require him to stop and rest. (R. 575). He said that he was
diagnosed with a lung condition in 2010. (R. 575-76). He did not do household chores. (R.
576-77). He had driven to the hearing, and he estimated that he drove fewer than 100 miles per
week. (R. 578).
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Robinson was seen at the Okmulgee Indian Health Center (the “Okmulgee Clinic”) on
October 26, 2006 for a complaint of left shoulder and arm pain that had been ongoing for four
weeks. (R. 247). He was diagnosed with tendonitis of the left acromioclavicular joint (the “AC
joint”), and medications were prescribed. Id. He returned on November 15, 2006 with the same
complaint, and he was apparently prescribed prednisone. (R. 245). On January 22, 2007,
Robinson said that he had reinjured the shoulder, and he was again prescribed medications. (R.
244).
Robinson was evaluated by Dr. Hastings on March 8, 2007 as part of a workers’
compensation proceeding. (R. 223-35). Robinson’s primary complaints were neck pain and left
shoulder pain. (R. 224-25). On examination, Dr. Hastings found pain, spasm, crepitation, and
motor weakness of the left shoulder that was not present in Robinson’s right shoulder. (R. 22526). Robinson also had limited range of motion of his left shoulder compared to his right
shoulder. Id. Dr. Hastings signed a form entitled “Certificate of Disability” dated March 8, 2007
stating that Robinson was to be off work “at present & continuing.” (R. 231).
An MRI of Robinson’s left shoulder completed on March 12, 2007 showed a partial
undersurface tear of the rotator cuff, as well as indications near the AC joint of “active
inflammation that may be painful.” (R. 232). An MRI of Robinson’s neck that same date
showed “very mild disc bulging and/or protrusion at each level from C3/4 to C6/7.” (R. 233).
Dr. Hastings noted these findings, as well as impingement syndrome of the left shoulder, in a
letter dated March 28, 2007. (R. 234-35).
In a final report dated April 2, 2007, Dr. Hastings wrote that Robinson had not met
maximum medical improvement and was in need of further evaluation and treatment. (R. 228).
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Dr. Hastings wrote that Robinson was temporarily totally disabled at the time of his examination
and continuing. Id.
Robinson returned to the Okmulgee Clinic on May 24, 2007, complaining of shoulder
pain, and his rotator cuff tear diagnosis was noted. (R. 243). On August 29, 2007, Robinson
complained that his left knee was bothering him, including pain, popping, and swelling. (R.
242). His rotator cuff tear was again noted, and he was diagnosed with left knee sprain. Id.
On March 16, 2009 at the Okmulgee Clinic, Robinson complained of bilateral shoulder
pain. (R. 236).
Agency consulting examiner Seth Nodine, M.D. examined Robinson on June 16, 2009.
(R. 267-74). Robinson’s chief complaints were his shoulders and his neck. (R. 267). On
physical examination, Dr. Nodine noted that Robinson had no acute distress at rest, but had pain
with range of motion of his cervical spine and shoulders. (R. 268). He noted pain and crepitus
with range of motion of Robinson’s shoulders, as well as pain, crepitus, and mild pain to
palpation of Robinson’s left knee. (R. 269). Dr. Nodine’s assessments were hypertension,
gastroesophageal reflux disease, gout, diabetes, “[c]hronic bilateral shoulder pain with torn
rotator cuff on left and cervical [degenerative joint disease] with bulging disc with chronic neck
pain as described above,” and chronic left knee pain. Id. On the accompanying range of joint
motion evaluation chart, Dr. Nodine noted that Robinson’s flexion and extension of his neck was
somewhat limited. (R. 270). All other joints were noted to be within normal limits. (R. 270-71).
On the backsheet, Dr. Nodine noted pain and somewhat limited range of motion of Robinson’s
neck. (R. 273). He noted that Robinson’s neck was positive for tenderness and muscle spasm.
Id.
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X-rays of Robinson’s cervical spine completed on August 20, 2009 showed mild
degenerative changes with no acute abnormalities. (R. 275). X-rays of Robinson’s left shoulder
showed “mild degenerative narrowing” of the AC joint. (R. 276). X-rays of his right shoulder
showed mild degenerative change of the AC joint. (R. 277). X-rays of Robinson’s left knee
were normal. (R. 277-78).
On August 20, 2009, Robinson returned to the Okmulgee Clinic with complaints of neck
and shoulder pain. (R. 284).
Nonexamining agency consultant Luther Woodcock, M.D., completed a Physical
Residual Functional Capacity Assessment on September 3, 2009. (R. 299-306). Dr. Woodcock
indicated that Robinson could perform work at the “light” exertional level. (R. 300). In the
section for narrative comments, Dr. Woodcock noted the March 2007 MRI reports and the x-rays
taken August 20, 2009. (R. 300-01). Dr. Woodcock briefly noted Dr. Nodine’s report, and he
summarized Robinson’s activities of daily living. Id. Dr. Woodcock found no postural,
manipulative, visual, communicative, or environmental limitations. (R. 301-03).
Procedural History
In April 2009, Robinson protectively filed applications seeking disability insurance
benefits and SSI benefits under Title II and Title XVI, 42 U.S.C. §§ 401 et seq. (R. 121-27).
The applications were denied initially and on reconsideration. (R. 68-76, 78-83). A hearing was
held before ALJ Volz on September 2, 2010. (R. 35-59). ALJ Volz issued an unfavorable
decision on October 7, 2010. (R. 21-30).
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Robinson appealed to this Court, and an Opinion and Order2 was entered September 25,
2013, reversing and remanding ALJ Volz’ 2010 decision. (R. 613-23). On remand, a hearing
was held before ALJ Rose on April 2, 2014. (R. 557-84). ALJ Rose issued a partially favorable
decision dated April 17, 2014. (R. 539-48). The 2014 decision of ALJ Rose after remand from
the federal court is a final decision for purposes of this appeal. 20 C.F.R. §§ 404.984, 416.1484.
Social Security Law and Standard Of Review
Disability under the Social Security Act is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment.” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Act 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 in the national economy.” 42 U.S.C. § 423(d)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a disability
claim. 20 C.F.R. § 404.1520.3 See also Wall v. Astrue, 561 F.3d 1048, 1052-53 (10th Cir. 2009)
2
Robinson v. Colvin, Case No. 12-CV-355-CVE-FHM, Northern District of Oklahoma;
Opinion and Order by Claire v. Eagan, United States District Judge, dated September 25, 2013,
Dkt. #22.
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Step One requires the claimant to establish that he is not engaged in substantial gainful
activity, as defined by 20 C.F.R. § 404.1510. Step Two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that significantly limit his
ability to do basic work activities. See 20 C.F.R. § 404.1520(c). If the claimant is engaged in
substantial gainful activity (Step One) or if the claimant’s impairment is not medically severe
(Step Two), disability benefits are denied. At Step Three, the claimant’s impairment is compared
with certain impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App.1 (“Listings”). A claimant
suffering from a listed impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry. If not, the evaluation proceeds to Step Four,
where the claimant must establish that he does not retain the residual functional capacity
(“RFC”) to perform his past relevant work. If the claimant’s Step Four burden is met, the burden
shifts to the Commissioner to establish at Step Five that work exists in significant numbers in the
national economy which the claimant, taking into account his age, education, work experience,
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(detailing steps). “If a determination can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not necessary.” Lax, 489 F.3d at 1084 (citation
and quotation omitted).
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g). This Court’s review is limited to two inquiries: first, whether the decision was supported
by substantial evidence; and, second, whether the correct legal standards were applied. Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted).
Substantial evidence is such evidence as a reasonable mind might accept as adequate to
support a conclusion. Wall, 561 F.3d at 1052 (quotations and citations omitted). Although the
court will not reweigh the evidence, the 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.” Id.
2010 Decision of ALJ Volz
In his 2010 decision, ALJ Volz found that Robinson met insured status requirements
through December 31, 2009. (R. 23). At Step One, ALJ Volz found that Robinson had not
engaged in any substantial gainful activity since his alleged onset date of October 1, 2008. Id.
At Step Two, ALJ Volz found that Robinson had severe impairments of degenerative disc
disease of the cervical spine, left rotator cuff tear, and chronic knee pain. Id. At Step Three, ALJ
Volz found that Robinson’s impairments did not meet any Listing. (R. 24).
and RFC, can perform. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Disability
benefits are denied if the Commissioner shows that the impairment which precluded the
performance of past relevant work does not preclude alternative work. 20 C.F.R. § 404.1520.
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ALJ Volz found that Robinson had the RFC to perform work at the sedentary exertional
level. Id. At Step Four, ALJ Volz determined that Robinson could not return to past relevant
work. (R. 28). At Step Five, ALJ Volz found that there were a significant number of jobs in the
national economy that Robinson could perform, taking into account his age, education, work
experience, and RFC. (R. 29-30). Therefore, ALJ Volz found that Robinson was not disabled
from October 1, 2008 through the date of his decision. (R. 30).
2014 Decision of ALJ Rose
In her 2014 decision, ALJ Rose found that Robinson met insured status requirements
through December 31, 2009. (R. 541). At Step One, ALJ Rose found that Robinson had not
engaged in any substantial gainful activity since his alleged onset date of October 1, 2008. Id. At
Step Two, ALJ Rose found that Robinson had severe impairments of degenerative joint disease of
the cervical spine, left shoulder partial rotator cuff tear, gout in the left knee, mild degenerative
joint disease in the shoulders and right foot, and mild interstitial fibrosis. Id. At Step Three, ALJ
Rose found that Robinson’s impairments did not meet any Listing. (R. 542).
ALJ Rose found that Robinson had the RFC to perform work at the light exertional level
with no more than occasional overhead reaching and no more than occasional exposure to
respiratory irritants. Id. At Step Four, ALJ Rose determined that Robinson could not return to
past relevant work. (R. 546). At Step Five, ALJ Rose made two findings. (R. 547-48). ALJ
Rose found that prior to Robinson’s 55th birthday in 2011, there were a significant number of jobs
in the national economy that Robinson could perform, taking into account his age, education,
work experience, and RFC. (R. 547). For the period of time after Robinson’s 55th birthday in
2011, ALJ Rose found that there no jobs in significant numbers in the national economy that
Robinson could perform, taking into account his age, education, work experience, and RFC. (R.
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548). Therefore, ALJ Rose found that Robinson was not disabled until the date of his 55th
birthday in 2011, but became disabled as of that date and remained disabled through the date of
her decision. Id. She found that Robinson was not under a disability through December 31, 2009,
Robinson’s last date insured. Id.
Review
As discussed at the outset of this Opinion and Order, Robinson raises only the issue of
whether RFC determination of ALJ Rose that Robinson had the capacity to perform light work
was supported by substantial evidence. Plaintiff’s Opening Brief, Dkt. #17, p. 5. The Court
agrees with Robinson that the ALJ did not provide legitimate reasons for giving Dr. Hastings’
opinion evidence “no weight.” For this reason, the April 17, 2014 ALJ decision is REVERSED
AND REMANDED.
An ALJ is required to discuss all opinion evidence and to explain what weight she gives it.
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). “Regardless of its source, we will
evaluate every medical opinion we receive.” 20 C.F.R. § 404.1527(c). An examining opinion is
presumptively entitled to more weight than the opinion of a nonexamining physician. Chapo v.
Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012). Any discounting or rejection of an examining
opinion must be based on an evaluation of the applicable regulatory factors in Section 404.1527.
Id. If the ALJ rejects opinions from an examining source, the ALJ is required to give specific
legitimate reasons for that rejection. Id.; Doyal v. Barnhart, 331 F.3d 758, 763-64 (10th Cir.
2003).
Here, the ALJ’s consideration of Dr. Hastings’ opinion evidence consists of one sentence:
The opinion at Exhibit 1F from Dr. Hastings who examined the claimant for a
workers’ compensation claim, was considered, but is given no weight because it
was completed over a year before the alleged onset date and does not cover any of
the period in question.
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(R. 546). Thus, the ALJ’s sole reason for giving Dr. Hastings’ opinion no weight was that it was
given more than a year before the alleged onset date.
The Court finds an unreported Tenth Circuit case that involved opinions given outside the
relevant time period to be instructive in the present case. Andersen v. Astrue, 319 Fed. Appx. 712
(10th Cir. 2009) (unpublished). In Andersen, the claimant’s insured status expired in 1998, and
two of his treating physicians gave opinion evidence in 1999 and 2000 regarding the scope of his
impairments. Id. at 716, 726-29. The Tenth Circuit found that the ALJ’s discounting of the
opinions because they were given outside of the relevant time period was not a specific legitimate
reason due to the nature of the opinion evidence. Id. The opinions did not diagnose a new
condition outside of the relevant period, but instead gave evidence of the scope of the impairment,
which had been diagnosed within the relevant period. Id. See also Hamlin, 365 F.3d at 1215-21
(discussing the insufficiencies of the ALJ’s discussion of treating physician opinion evidence
relating to different time periods); Lackey v. Barnhart, 127 Fed. Appx. 455, 458-59 (10th Cir.
2005) (unpublished) (rejecting Commissioner’s argument that opinion evidence of workers’
compensation physician given several months before alleged onset date was irrelevant).
The Court finds that the one reason given by ALJ Rose is not a legitimate reason given the
nature of the opinion evidence. Dr. Hastings’ opinion that Robinson was temporarily totally
disabled was based on objective medical evidence in the form of imaging of Robinson’s neck and
left shoulder, as well as his own examination of Robinson. The ALJ gave no explanation
regarding how Dr. Hastings’ finding that Robinson was temporarily totally disabled became a
stale or inapplicable opinion one year later, given the fact that Robinson received little to no
treatment for the conditions on which Dr. Hastings’ opinions were based. The ALJ did not, for
example, state that Robinson’s conditions had improved at the time of his alleged onset date of
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October 1, 2008, therefore resulting in the inapplicability of Dr. Hastings’ opinions. Given the
nature of Dr. Hastings’ opinions, plus Robinson’s lack of treatment throughout the relevant period
for the conditions underlying those opinions, the ALJ’s sole reason for giving those opinions no
weight was not sufficient. Andersen, 319 Fed. Appx. at 726-29; Lackey, 127 Fed. Appx. at 45859.
The Commissioner opens her argument by stating that the ALJ made a supported
credibility assessment. Commissioner’s Brief, Dkt. #22, pp. 4-6. Robinson rightly responds in
his Reply Brief that he did not appeal the credibility finding of ALJ Rose. The Court agrees that
the issue of Robinson’s credibility has no relevance to whether the ALJ correctly gave no weight
to the opinion evidence of Dr. Hastings. A finding that subjective complaints are not credible can
support giving less weight to a physician opinion. Knight ex rel. P.K. v. Colvin, 756 F.3d 1171,
1177 (10th Cir. 2014). In the present case, however, the ALJ did not state that she was giving Dr.
Hastings’ opinion evidence less weight because he relied on unreliable subjective complaints of
Robinson. (R. 539-48). Thus, the Commissioner’s inclusion of an argument based on Robinson’s
credibility is irrelevant or, to the extent it is an attempt to justify ALJ Rose’s decision regarding D.
Hastings’ opinion evidence, it is in the nature of post hoc justification of the ALJ’s decision, and
this Court will not usurp the ALJ’s function by making findings that are not contained in her
decision. Krauser v. Astrue, 638 F.3d 1324, 1328-30 (10th Cir. 2011) (post hoc justifications of
ALJ’s analysis of treating physician opinion were prohibited); Carpenter v. Astrue, 537 F.3d
1264, 1267 (10th Cir. 2008) (post hoc rationale is improper because it usurps agency’s function of
weighing and balancing evidence in the first instance).
The same is true of the Commissioner’s next argument, that the opinion evidence of Dr.
Hastings was not true medical opinion, citing Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir.
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2008). Commissioner’s Brief, Dkt. #22, p. 7. The Court has some sympathy for this position, but
the ALJ expressly referred to Dr. Hastings’ “opinion at Exhibit 1F.” (R. 546). Thus, it appears to
this Court that the ALJ did not reject Dr. Hastings’ statement that Robinson was temporarily
totally disabled because it was not a true medical opinion, but that instead ALJ Rose found that
there was opinion evidence contained within the documents relating to Dr. Hastings’ examination
and report on Robinson. See also Lackey, 127 Fed. Appx. at 458 (distinguishing between
workers’ compensation examining physician’s opinion of disability versus underlying diagnosis
and findings of limited range of motion). The Court will not, in a post hoc effort to save the
ALJ’s decision, invoke a rationale that appears to have been expressly rejected by the ALJ.
The Court also rejects the Commissioner’s related argument that Dr. Hastings’ opinion
evidence was consistent with the RFC determination of ALJ Rose and that therefore Robinson
was not harmed by a finding that the opinion was entitled to no weight. Commissioner’s Brief
Dkt. #22, pp. 7-8. This Court will not weigh Dr. Hastings’ opinion on behalf of the ALJ, but must
allow the ALJ to make that analysis on remand. See Martinez v. Astrue, 422 Fed. Appx. 719, 72627 (10th Cir. 2011) (unpublished) (“it would be improper for this court to reanalyze” opinion
evidence using correct standards). This is not a case in which this Court can say that a correct
weighing of Dr. Hastings’ opinions would make no difference because no reasonable factfinder
could have come to a different conclusion regarding Robinson’s RFC. Compare Marshall v.
Astrue, 315 Fed. Appx. 757, 760-62 n.2 (10th Cir. 2009) (unpublished) (ALJ’s analysis should
have been more thorough, but the error was harmless because no reasonable factfinder could have
found that physician opinion was supported by medically acceptable objective evidence).
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Because the ALJ gave insufficient reasons to support her attribution of no weight to the
opinion evidence of Dr. Hastings, the Court REVERSES and REMANDS the ALJ’s 2014
decision for further consideration.
Conclusion
The Court takes no position on the merits of Robinson’s disability claim, and “[no]
particular result” is ordered on remand. Thompson v. Sullivan, 987 F.2d 1482, 1492-93 (10th Cir.
1993). This case is remanded only to assure that the correct legal standards are invoked in
reaching a decision based on the facts of the case. Angel v. Barnhart, 329 F.3d 1208, 1213-14
(10th Cir. 2003), citing Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
Because this case is reversed based on the inadequacy of the ALJ’s evaluation of the
opinion evidence of Dr. Hastings, the undersigned declines to comment on any other aspects of
Robinson’s argument. On remand, the Commissioner should ensure that any new decision
sufficiently addresses all arguments made by Robinson.
Based on the foregoing, the decision of the Commissioner denying disability benefits to
Claimant is REVERSED AND REMANDED.
Dated this 17th day of August 2015.
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