Trujillo v. Colvin

Filing 26

MEMORANDUM DECISION and ORDER ADOPTING 23 REPORT AND RECOMMENDATIONS re 2 Complaint and overruling 24 Objections to Report and Recommendations. Signed by Judge David Nuffer on 8/21/2015. (blh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
JESSICA L. TRUJILLO,

MEMORANDUM DECISION AND
ORDER OVERRULING OBJECTION
and
ADOPTING REPORT AND
RECOMMENDATION

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Case No. 1:14-cv-35-DN-DBP
District Judge David Nuffer

Defendant.
Plaintiff Jessica Trujillo objects 1 to the Report and Recommendation (R & R) issued on
February 26, 2015. The R & R recommends that “[t]he ALJ’s [Administrative Law Judge’s]
initial determination and the Commissioner’s final determination that Plaintiff should be denied
DIB [Disability Insurance Benefits] and SSI [Supplemental Security Income] should be
AFFIRMED.” 2 For the reasons discussed below, the objection is OVERRULED, the R & R is
ADOPTED, and the Commissioner’s decision denying benefits is AFFIRMED.
BACKGROUND
In February 2013, Magistrate Judge Brooke C. Wells remanded this case for further
proceedings after finding that ALJ Raul Pardo “improperly speculated as to the reasons behind
the Plaintiff’s treating physician’s opinions.” 3 On remand, a different ALJ, Robert Labrum,
updated the record and obtained medical expert testimony. 4 The updated record contained a

1

Plaintiff’ [sic] Objections to the Magistrate’s Report and Recommendation (Objection), docket no. 24, filed March
12, 2015.
2

Report and Recommendation (R & R) at 10, docket no. 23, filed February 26, 2015.

3

Memorandum Decision and Order Reversing and Remanding Decision of Commissioner at 10, Case No. 2:12-cv89-BCW (filed February 26, 2013); Administrative Record (R.) at 544, docket no. 12, filed May 22, 2014.

4

R. at 481-514.

September 2013 letter from Ms. Trujillo’s treating physician, Dr. Gardner, stating that numerous
tests and MRIs to diagnose multiple sclerosis (MS) “were either inconclusive or negative,” but
that treatment for MS had helped. 5 Dr. Gardner concluded, based on Ms. Trujillo’s history and
current symptoms, it was “nearly impossible for her to work.” 6 But ALJ Labrum did not
recontact Dr. Gardner, who is a family practitioner. Instead, the ALJ consulted a medical expert,
neurologist Dr. Steven Goldstein. 7 At the January 2014 hearing, Dr. Goldstein disagreed with Dr.
Gardner’s opinion that Ms. Trujillo was unable to work and testified that based upon the record,
Ms. Trujillo would be able to handle light work. 8
In January 2014, ALJ Labrum issued a decision finding Ms. Trujillo did not meet the
statutory requirements for disability, which became the Commissioner’s final decision for
purposes of judicial review. 9 Ms. Trujillo’s appeal of the Commissioner’s final decision denying
benefits was referred to Magistrate Judge Dustin B. Pead under 28 U.S.C. § 636(b)(1)(B). 10
After “[h]aving considered the parties’ briefs, the administrative record, the arguments of
counsel, and the relevant law,” 11 Judge Pead issued an R & R recommending that the
Commissioner’s decision denying DIB and SSI be affirmed because the decision is supported by
substantial evidence in the record and free from reversible legal error. 12

5

R. 930.

6

Id.

7

Id. at 638 (Curriculum Vitae for Steven Goldstein, M.D.).

8

Id. at 494.

9

R. 462-74; 20 C.F.R. §§ 404.984, 416.1484.

10

See Order of Recusal (“Magistrate Judge Brooke C. Wells recused. Case referral reassigned to Magistrate Judge
Dustin B. Pead under 28:636(b)(1)(B)”), docket no. 20, filed January 9, 2015.

11

R & R at 1.

12

Id. at 9.

2

Ms. Trujillo raises only one objection to the R & R. She claims that the ALJ erred by not
recontacting her treating physician and the magistrate judge “never addresses the issue.” 13 The
Commissioner filed a response to the objection urging the court to adopt the R & R and affirm
the ALJ’s final decision because “the record before the ALJ was sufficient to make a
determination regarding disability.” 14
STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1)(C), when a party files an objection to the R & R, the district
judge “shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. [The district judge] may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 15
Under de novo review, this court will review the Commissioner’s decision to determine whether
it is supported by substantial evidence and whether the correct legal standards were applied. 16
But the court will not reweigh the evidence or substitute its judgment for the Commissioner’s. 17
This is the same standard set forth in the R & R. 18
DISCUSSION
Ms. Trujillo argues that the ALJ erred when he did not recontact her treating physician,
Dr. Gardner, for a clarification of his opinion. Ms. Trujillo asserts that under a Notice of
Proposed Rulemaking (NPRM) in April 2011, the ALJ is expected to recontact the treating

13

Objection at 3.

14

Defendant’s Response to Plaintiff’s Objections to the Magistrate’s Report and Recommendation (Response) at 2,
docket no. 25, filed March 13, 2015.
15

28 U.S.C. § 636(b)(1)(C).

16

See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

17

Id.

18

R & R at 6-7.

3

physician when the opinion is inconsistent with the treatment notes, as found in this case. 19 The
portion of the NPRM which Ms. Trujillo relies upon states that when the medical source has
provided inconsistent or insufficient evidence, adjudicators would continue to recontact the
medical source when that is “the most effective and efficient way to resolve an inconsistency or
insufficiency.” 20 The NPRM cited by Ms. Trujillo goes on to state that
in some cases, there are other, more effective, ways to obtain the additional
information we need. It is sometimes inefficient and ineffective to require our
adjudicators to first contact your medical source(s). For example, when your
medical source(s) does not specialize in the area of the impairment you have
alleged and we need more evidence about its current severity, we may supplement
the evidence in your case record by obtaining a CE with a specialist (such as a
pulmonologist) who can perform the type of examination we need in order to
determine whether you are disabled under our rules. 21
This NPRM makes clear that the ALJ’s decision to recontact the treating physician is not
mandatory, but discretionary: “There are situations where we need the flexibility to determine
how best to resolve inconsistencies and insufficiencies in the evidence. This proposed change
would give our adjudicators the discretion to determine the best way to address these issues and
obtain the needed information more quickly and efficiently.” 22 Further, in February 2012, the
Social Security Administration (SSA) updated the regulations about recontacting treating
physicians in the final rules, emphasizing that the change is designed to provide the ALJs with
more flexibility and discretion. 23 The explanation in the final rule states:
We believe our adjudicators need more flexibility to conduct case development in
the most efficient way possible . . . . As we explained in the NPRM, “[d]epending
on the nature of the inconsistency or insufficiency, there may be other, more
19

Objection at 2-3 (citing Notice of Proposed Rulemaking, 76 Fed. Reg. 20,282-01, 20,283 (April 12, 2011)
(amending 10 C.F.R. § 404.1512(e)) (original cited in err as 70 Fed. Reg. 20,282-01, 20,283).
20

76 Fed. Reg. 20,283 (April 12, 2011).

21

Id.

22

Id.

23

77 Fed. Reg. 10,651-01, 10,653 (Feb. 23, 2012) (final rules).

4

appropriate sources from whom we could obtain the information we need.”
Therefore, adjudicators need more, not less, discretion than our current recontact
requirement provides to obtain the needed information from the most appropriate
source.
....
Moreover, we believe there should be a variety of methods available to our
adjudicators, and that they should have the flexibility to determine which method
of development would be the most appropriate given the facts in each case. We do
not believe there is any one method that is always the most suitable or efficient,
and therefore, do not believe we should require any of the suggestions made by
the commenters in all cases. 24
Because ALJs have discretion as to whether to recontact a medical source, ALJ Labrum
did not err when he failed to recontact Dr. Gardner. Further, “the ALJ reasonably relied on Dr.
Goldstein’s testimony in evaluating Dr. Gardner’s opinion.” 25 The updated record before ALJ
Labrum was sufficient to make a determination regarding disability without recontacting the
treating physician. Accordingly, the R & R correctly concludes that “the Commissioner’s final
decision is supported by substantial evidence in the record and free from reversible legal
error.” 26

24

Id. at 10,654.

25

R & R at 8 (citations omitted).

26

Id. at 9.

5

ORDER
IT IS HEREBY ORDERED that Ms. Trujillo’s objection 27 is OVERRULED.
IT IS FURTHER ORDERED that the R & R is ADOPTED, and the Commissioner’s
decision denying benefits is AFFIRMED. The clerk is directed to close this case.
Dated August 21, 2015
BY THE COURT:

____________________________
David Nuffer
United States District Judge

27

Docket no. 24.

6