Paice v. Colvin
MEMORANDUM DECISION AND ORDER - The Court Reverses and Remands this case to the Commissioner. On remand, the Commissioner will obtain new evidence regarding Ms. Paice's mental limitations and their impact on her pain and her ability to work. Signed by Magistrate Judge Evelyn J. Furse on 9/27/2017. (las)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, NORTHERN DIVISION
DAVID PAICE, SURVIVING SPOUSE
OF LATRISHA PAICE, DECEASED
MEMORANDUM DECISION AND
Case No. 1:16-CV-00042-EJF
Magistrate Judge Evelyn J. Furse
ACTING COMMISSIONER OF SOCIAL
All parties in this case have consented to having United States Magistrate Judge Evelyn J.
Furse conduct all proceedings in this case, including entry of final judgment, with appeal to the
United States Court of Appeals for the Tenth Circuit. (See 28 U.S.C. § 636 (c); See also
F.R.C.P. 73; (ECF No. 13). Plaintiff, David Paice, Surviving Spouse of Latrisha Paice (“Ms.
Paice”), appeals the Commissioner of Social Security’s decision denying her claim for Disability
Insurance Benefits under Title II of the Social Security Act (“the Act”) (ECF No. 2). Having
considered the parties’ briefs, the administrative record, the arguments of counsel, and the
relevant law, the Court REVERSES and REMANDS the Commissioner’s decision for further
Ms. Paice filed an application for Disability and Disability Insurance Benefits on
August 27, 2010, alleging disability beginning on December 2, 2005 (See Tr. 16). Ms. Paice’s
claims were initially denied on January 20, 2011, and again upon reconsideration on February
24, 2011 (Tr. 126, 127). Thereafter, Ms. Paice timely requested a hearing before an
Administrative Law Judge (“ALJ”) on February 28, 2011(See Tr. 170-171).
A hearing was held on March 19, 2012, in Salt Lake City, Utah before an ALJ (Tr. 3981). The ALJ issued a decision finding Ms. Paice not disabled on April 2, 2012 (See Tr. 130151). The Appeals Council granted Ms. Paice’s request for review and issued an order
remanding the case to an administrative law judge on October 31, 2013 (See Tr. 152-156).
Among other things, the remand order from the Appeals Council stated that upon remand the
ALJ will: “[o]btain supplemental evidence from an appropriate medical expert to clarify the
nature, severity, and limiting effects of the claimant’s medically determinable mental
impairments” (Tr. 154-155).
A remand hearing was held on March 3, 2014, in Salt Lake City, Utah, before an ALJ
(Tr. 82-125). The ALJ issued a decision again finding Ms. Paice not disabled on April 25, 2014
(See Tr. 13-38). Ms. Paice passed away on October 31, 2015 (Tr. 10). On November 27, 2015,
Ms. Paice’s surviving spouse, David Paice, filed a Notice Regarding Substitution of Party Upon
Death of Claimant (Tr. 9). The Appeals Council denied Ms. Paice’s request for review on
February 19, 2016 (See Tr. 1-5). This Appeals Council denial was the final administrative
decision of the Commissioner of Social Security in this case. Thus, the ALJ decision stands as
the final decision of the Commissioner.
Mr. Paice brought this action to appeal the Commissioner’s decision pursuant to
42 U.S.C. § 405(g), which provides for judicial review of the defendant’s final decision.
A. Factual History
Ms. Paice was diagnosed with fibromyalgia (Tr. 662, 665, 668, 677). She was also
treated for insomnia (Tr. 675). In addition, during an abdominal ultrasound performed in July
2009, the doctor observed that Ms. Paice suffered from fatty liver disease (See Tr. 757).
Additionally, Ms. Paice also had esophagitis, a hiatal hernia, and gastritis (Tr. 761).
In July 2010, Ms. Paice saw a neurologist for pain in her face. Ms. Paice told the
neurologist that she experienced pressure, heat, and shock-like feelings in her head and neck (See
Tr. 623). Ms. Paice also reported that she had pain in her face and experienced tremors in her
upper lip and numbness and tingling in her bottom lip and on the left side of her face (See Tr.
623). At this time, it was noted she was experiencing difficulty speaking, swallowing,
coordination and balance issues, weakness, sensory changes, headaches, and joint pain and
stiffness (Tr. 624). She was eventually diagnosed with trigeminal neuralgia (Tr. 870). An MRI of
her brain confirmed that she had white matter changes in her brain (Tr. 625, 644-645, 716). In
his write up after completing the MRI and other tests, Ms. Paice’s doctor hypothesized that the
white matter changes were likely related to “chronic ischemic changes,” as opposed to
demyelinating disease (See Tr. 628). Moreover, her doctor believed that Ms. Paice’s headaches,
and the ineffectiveness of certain painkillers like Topamax and Pamelor to relieve her pain, were
a part of chronic pain syndrome (See Tr. 628). Ms. Paice’s headaches were severe enough that
despite her consistent use of pain medication she had to go to her doctor or the emergency room
for breakthrough pain (Tr. 637, 670, 706, 805, 852, 904, 906, 1010, 1022). She reported that the
headaches caused visual changes (Tr. 842). An MRI of her cervical spine showed some disc
bulging (Tr. 642).
Ms. Paice also had cardiac issues (Tr. 646, 649). In February 2010, Ms. Paice complained
of chest pain (Tr. 620). An echocardiogram in October 2010 showed impaired relaxation pattern
of left ventricle filling and mild mitral valve and tricuspid regurgitation (Tr. 635-636).
With regard to her mental impairments, the record shows that in March 2006, Ms. Paice
reported increased personal stress and had severe symptoms of anxiety and panic attacks (Tr.
991). Ms. Paice underwent a consultative psychological exam. She was diagnosed with pain
disorder and adjustment disorder with mixed anxiety and depressed mood (Tr. 772). She was
taking medication for her anxiety (Tr. 809). She was given a GAF score of 60, indicating
moderate impairment (Tr. 772). The Agency physician opined that she would be moderately
limited in her ability to “complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods” (Tr. 797).
In 2012, Ms. Paice’s treating physician, Nelson Astle, M.D., filled out a residual
functional capacity assessment (See Tr. 868). Dr. Astle had treated Ms. Paice since 1996
(Tr. 868). He opined that Ms. Paice could walk for 1 hour without interruption for a total of 4
hours of an 8-hour workday and she could lift no more than 5-10 pounds (See Tr. 865). He
stated that Ms. Paice would need to rest throughout the day due to fatigue and would miss at
least 2-3 days of work each month (Tr. 868). Dr. Astle reiterated in interrogatories that, in his
opinion, Ms. Paice had these impairments on or before December 31, 2010 (See Tr. 936).
B. Hearing Testimony
At the first ALJ hearing, Ms. Paice testified that she was 46 years old (Tr. 42). She stated
she could not work due to chronic pain, chronic fatigue, migraine headaches that lasted several
days, and brain lesions (Tr. 43). Ms. Paice stated that these impairments caused limitations with
concentration, short-term memory, and communication skills (Tr. 43). Ms. Paice stopped
working in 2005 due to her impairments (Tr. 51). Ms. Paice stated she would lie down for 1-4
hours a day three-to-five days a week due to her fibromyalgia (Tr. 45). Ms. Paice testified that in
2005 she would get two migraine headaches a month that could last 1-2 days (Tr. 60): these
progressively worsened through 2010 (Tr. 60). Ms. Paice took medication for depression and
anxiety (Tr. 64-65). Ms. Paice had numbness and tremors in her hands (Tr. 74).
A medical expert, Ronald Houston, Ph.D., testified as to Ms. Paice’s mental impairments
(Tr. 76). He stated that the mental impairments did not meet a listing, but that her pain disorder
would make performing a normal workday difficult (See Tr. 76-77). He opined she would be off
task 15-25% of the workday (See Tr. 77).
At the remand hearing, Ms. Paice testified that she was 48 years old, 5’3” and 175
pounds (Tr. 86). Ms. Paice stated that she drove for limited amounts of time, only when not
taking certain medications (Tr. 87). Ms. Paice completed high school, one year of college, and
an income tax course (Tr. 87). Ms. Paice testified that she could not work due to fibromyalgia,
chronic migraines, trigeminal neuralgia, memory and concentration problems, and brain lesions
(Tr. 89). She stated that her medications caused grogginess, fatigue, and memory loss (Tr. 89).
She testified she could lift about 10 pounds, sit for about an hour, stand for 20 minutes, and walk
about one block (Tr. 90).
Ms. Paice stated her fibromyalgia caused fatigue and sleep disturbances (Tr. 93).
Ms. Paice had migraines and tension headaches (Tr. 95-96). Ms. Paice had trigeminal neuralgia
that caused muscle spasms in her face (Tr. 98). Ms. Paice had panic attacks that caused
difficulty speaking, hyperventilation, and sweating (Tr. 102-103).
C. ALJ Decisions
The ALJ found that Ms. Paice had the severe impairments of:
Fibromyalgia, with additional diagnoses of a chronic pain disorder and a pain disorder
with both psychological factors and general medical condition; Degenerative disc disease
within the cervical region of the spine with more recent findings related to scoliosis
within the thoracic spine and additional changes in the lumbar region; Trigeminal
neuralgia; Migraine headaches with imaging confirming multiple hyperintensity lesions;
Affective disorder referenced as depression and an adjustment disorder with mixed
anxiety and depressed mood; Anxiety disorder; and Insomnia disorder secondary to the
(Tr. 19-20). At step 3, the ALJ found that Ms. Paice did not meet a listing (Tr. 21). The ALJ
found that Ms. Paice had the residual capacity to perform light work with the following
climbing ramps and stairs, kneeling, crouching, crawling, and bending are limited to
occasionally while climbing of ladders, ropes or scaffolds is entirely precluded. Further
assigned work is limited to simple unskilled repetitive work with no more than minimal
change in the task as assigned and requiring no contact with the public and only
occasional contact with coworkers and supervisors but with no coworkers situated in
close proximity to the assigned work area. Finally, hazards, specifically machinery and
unprotected heights, must be avoided in the work area and the level of noise in the work
environment must be no more than at the moderate level.
(Tr. 24). The ALJ found that with this residual functional capacity, Ms. Paice could not perform
her past relevant work (See Tr. 30). However, the ALJ found there was other work available in
the national economy that Ms. Paice could perform (Tr. 31). Therefore, the ALJ found that Ms.
Paice was not disabled (Tr. 32).
STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is limited to determining whether her
findings are supported by “substantial evidence and whether the correct legal standards were
applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
(citation omitted). The Court may neither reweigh the evidence, nor substitute its judgment for
the Commissioner’s. Id.
In its review, the Court should evaluate the record as a whole, including that evidence
before the ALJ that detracts from the weight of the ALJ’s decision. See Shepherd v. Apfel, 184
F.3d 1196, 1199 (10th Cir. 1999). However, the reviewing Court should not “reweigh the
evidence nor substitute its [own] judgment” for that of the ALJ. Qualls v. Apfel, 206 F.3d 1368,
1372 (10th Cir. 2000). Further, the Court “may not ‘displace the agenc[y]’s choice between two
fairly conflicting views, even though the Court would justifiably have made a different choice
had the matter been before it de novo.’” Lax, 489 F.3d at 1084. Lastly, “[t]he failure to apply
the correct legal standard[s] or to provide this court with a sufficient basis to determine that
appropriate legal principles have been followed [are] grounds for reversal.” Jensen v. Barnhart,
436 F.3d 1163, 1165 (10th Cir. 2005)(quoting Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.
In applying these standards, the Court has considered the Administrative Record, relevant
legal authority, and the parties’ briefs and oral arguments. The Court finds as follows:
Ms. Paice raises two issues on appeal: (1) the ALJ erred by failing to properly evaluate
the medical opinion evidence; and (2) the ALJ erred in her evaluation of the impact of Ms.
Paice’s pain on her residual functional capacity assessment.
I. The ALJ Erred by Failing to Obtain Supplemental Medical Evidence as
Directed by the Appeals Council.
Ms. Paice argued in her Opening Brief, that in the remand order, the ALJ was instructed
to obtain supplemental medical evidence regarding Ms. Paice’s mental impairments (ECF No. 16
at 13-14). The remand order from the Appeals Council stated that upon remand the ALJ will:
“[o]btain supplemental evidence from an appropriate medical expert to clarify the nature,
severity, and limiting effects of the claimant’s medically determinable mental impairments” (Tr.
154-155). This instruction to obtain supplemental medical evidence was the ALJ’s obligation,
not Ms. Paice’s. When the Appeals Council remands a case to the ALJ, the ALJ is required to
take any action ordered by the Appeals Council. See 20 C.F.R. § 404.977(b). The instruction
was clear that the ALJ was to obtain this evidence. Other portions of the remand order in this
case provide direction that the ALJ “may” take. For instance, later in the order it states that “the
Administrative Law Judge may request the treating and nontreating source to provide additional
evidence” (Tr. 155). However, the wording of the order makes clear that obtaining supplemental
evidence to supplement the medical opinion evidence regarding Ms. Paice’s mental impairments
was not optional.
Counsel for defense argues that additional evidence in the form of interrogatories was
obtained prior to the second hearing. However, not only did Ms. Paice obtain and submit this
evidence, but the evidence also supported Dr. Houston’s opinions, which the ALJ rejected in her
decision (See Tr. 1077-1078). Moreover, this evidence did not clarify the nature or severity of
Ms. Paice’s mental impairments. The record makes clear that the ALJ failed to obtain any sort
of supplemental evidence regarding Ms. Paice’s mental impairments and limitations as directed
by the Appeals Council. Such evidence could potentially impact both the ALJ’s evaluation of
the medical opinion evidence, as well as the evaluation of the Ms. Paice’s residual functional
capacity. Therefore, this case must be reversed and remanded on the issue of the ALJ’s failure to
follow the instructions of the Appeals Council and obtain supplemental opinion evidence
regarding Ms. Paice’s mental impairments.
CONCLUSION AND ORDER
For the reasons set forth above, the Court REVERSES and REMANDS this case to the
Commissioner. On remand, the Commissioner will obtain new evidence regarding Ms. Paice’s
mental limitations and their impact on her pain and her ability to work.
DATED this 27th day of September 2017.
BY THE COURT:
Evelyn J. Furse
United States Magistrate Judge
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