Larsen v. Colvin

Filing 30

ORDER adopting in part and Rejects in part Report and Recommendations re 29 Report and Recommendations. The decision of the Commissioner is AFFIRMED in part, REVERSED in part, and REMANDED. Signed by Judge Clark Waddoups on 8/31/15. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

BLAIR J. LARSEN,
ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND
RECOMMENDATION

Plaintiff,
v.

Case No. 2:13-cv-00176
CAROLYN W. COLVIN,
Judge Clark Waddoups
Defendant.

This case arises out of Plaintiff Blair J. Larsen’s appeal of the decision of the Acting
Commissioner of Social Security (the Commissioner), which found him to be disabled beginning
on September 4, 2011, but denied him disability benefits before that date. (Dkt. 29, p. 1). The
case was assigned to United States District Court Judge Clark Waddoups, who then referred it to
United States Magistrate Brooke C. Wells pursuant to 28 U.S.C. § 636(b)(1)(B). (Dkt. No. 17).
Judge Wells recommended the court affirm the decision of the Commissioner in its entirety.
(Dkt. 29). For the reasons that follow, the court APPROVES and ADOPTS the Report and
Recommendation in part, and REJECTS it in part.
BACKGROUND
Mr. Larsen applied for disability benefits, alleging that he became disabled on
June 8, 2009 due to injuries to his left arm, chronic back pain, and problems with gout.
(Dkt. No. 29, p. 4). Although Mr. Larsen’s application was initially denied, Mr. Larsen requested
and received an administrative hearing before an administrative law judge (ALJ) in October
2011. (Id., p. 2).

In support of his disability claim, Mr. Larsen submitted three opinions from Dr. Joseph
L. Richey, his treating physician. The first was a form dated June 24, 2010, which reflected that
Dr. Richey diagnosed Mr. Larsen with degenerative lumbar disc disease, characterized Mr.
Larsen’s pain as moderately severe, and concluded that Mr. Larsen could not be expected to be
reliable in attending an eight-hour workday and could be expected to miss eight days of work per
month. (Tr., p. 357–60). In a subsequent November 2010 report, Dr. Richey recommended that
Mr. Larsen refrain from lifting more than twenty pounds,1 and in a May 2011 report, Dr. Richey
stated that lifting more than ten pounds increased Mr. Larsen’s lumbar discomfort.
(Id., p. 396, 401–02). Dr. Richey also opined in the May 2011 report that Mr. Larsen had “failed
conservative care in the form of physical therapy, activity modification, exercise, rest, massage,
chiropractic care, anti[-]inflammatory medications and narcotics.” (Id., p. 401). Dr. Richey thus
concluded that Mr. Larsen “has a function capacity disability and will never make it back in to
the competitive workforce,” and deemed him functionally disabled. (Id.).
In contrast, Consultative Examiner Dr. Justin R. Johnsen reached a different conclusion.
In an October 2010 physical consultative examination, Dr. Johnsen diagnosed Mr. Larsen with
only gout and arthritis. In Dr. Johnsen’s opinion, these conditions would only slightly limit Mr.
Larsen’s ability to lift heavy objects, bend repetitively, walk long distances, or do strenuous
activity. (Id., p. 373). Accordingly, Dr. Johnsen concluded Mr. Larsen could perform “most mild
or moderate activities.” (Id.).
In considering these competing medical opinions, the ALJ gave great weight to
Dr. Johnsen’s opinion, despite the fact that Dr. Johnson had not treated Mr. Larsen. The ALJ
reasoned that Dr. Johnsen is an expert in his respective field and his opinion was consistent with
the medical evidence of record. (Id., p. 19). The ALJ also expressly considered Dr. Richey’s
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Dr. Richey and PA-C Jordan L. Mecham cosigned the November 2010 opinion. (Tr., p. 17–19).

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November 2010 and May 2011 opinions, which reflected that by May 2011, Mr. Larsen could
not lift more than ten pounds and was functionally disabled. But although the ALJ agreed that
Mr. Larsen could not lift more than ten pounds, the judge determined that the “objective
evidence, as discussed elsewhere in this decision, did not support Dr. Richey’s conclusion that
Mr. Larsen was functionally disabled to the point that he is unemployable in all kinds of jobs.”
(Id.). The ALJ therefore gave Dr. Richey’s opinions “little weight.” (Id.) The ALJ did not
expressly consider Dr. Richey’s June 24, 2010 opinion that Mr. Larsen could be expected to be
absent eight days per month, despite the fact that a vocational expert (VE) testified that even
three to four absences per month would preclude work activity. (Id., p. 50–51).2 The ALJ did not
address the weight to be given to Dr. Richey as Mr. Larsen’s treating physician.
Ultimately, the ALJ found that Mr. Larsen had severe impairments of gout, a left rotator
cuff tear, a left bicep tear, and degenerative disk disease of the lumbar spine. (Id., p. 13).
Nevertheless, the ALJ determined that prior to September 4, 2011, Mr. Larsen retained the
residual function capacity (RCF) to perform the full range of light, unskilled work, subject to
certain limitations. (Id., p. 14). And, relying on testimony from the VE, the ALJ concluded that
there were available jobs in the economy that Mr. Larsen could perform prior to
September 4, 2011. The ALJ therefore denied Mr. Larsen disability benefits prior to that date.
After the Appeals Council affirmed the ALJ’s decision, Mr. Larsen appealed the partial
denial of benefits in the United States District Court for the District of Utah. He raised four
issues on appeal: 1) that the ALJ erred in assigning great weight to the opinion of Dr. Johnsen,
who failed to consider Mr. Larsen’s primary disabling impairment: lumbar disc disease; 2) the
ALJ improperly found Mr. Larsen could perform a job as a laundry aide, which does not exist in

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It appears that ALJ may not have considered the June 24, 2010 opinion to be from a treating physician.
(See Tr., p. 19).

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the occupational titles; 3) that the ALJ erred by failing to consider cervical disc disease among
Mr. Larsen’s severe impairments; and 4) that the ALJ improperly rejected Dr. Richey’s June
24, 2010 opinion. (Dkt. No. 29, p. 5). After considering all four arguments, Judge Wells
recommended this court affirm the Commissioner’s decision in its entirety. (Id., p. 9).
DISCUSSION
Mr. Larsen has not objected to the Report and Recommendation. Nevertheless, the court
has an independent obligation to consider it before approving or adopting it. Thus, reviewing
Judge Wells’s Report and Recommendation for clear error, see Summers v. State of Utah, 927
F.2d 1165, 1167 (10th Cir. 1991) (holding that in the absence of timely objection, the district
court may review a magistrate’s report under any standard it deems appropriate); Anderson v.
Herbert, No. 2:13-CV-211, 2014 WL 6769907, at *1 (D. Utah Dec. 1, 2014) (“In the absence of
objection, this court may review a magistrate judge’s decision under a ‘clear error’ standard.”),
the court perceives of no error in Judge Wells’s thorough and thoughtful resolution of
Mr. Larsen’s first three arguments. Therefore, it approves and adopts the Report and
Recommendation with respect to those issues. But the court finds Mr. Larsen’s fourth
argument—that the ALJ improperly omitted Dr. Richey’s opinion that Mr. Larsen was unable to
work eight days out of the month—has merit.
Although an ALJ is not required to discuss every piece of evidence, the record must
demonstrate he or she considered all of the evidence. Mays v. Colvin, 739 F.3d 569, 576 (10th
Cir. 2014). And an ALJ is required to consider all the medical opinions in the record and discuss
the weight he or she assigns to such opinions. Id. at 578. Where, as here, a medical opinion
comes from a treating physician, the regulations impose on an ALJ additional burdens. First, the
ALJ must determine whether to give the treating physician’s opinion controlling weight. Watkins

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v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003); see Doyal v. Barnhart, 331 F.3d 758, 762
(10th Cir. 2013) (recognizing that a treating physician’s opinion is given particular weight
because a “medical professional who has dealt with a claimant and his maladies over a long
period of time will have a deeper insight into the medical condition of the claimant than will a
person who has examined a claimant but once, or who has only seen the claimant’s medical
records”). This requires the ALJ to consider “whether the opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques” and is consistent with other substantial
evidence in the record. If so, the ALJ must give the opinion “controlling weight.” Id.
If the opinion is not entitled to controlling weight, the ALJ should next determine how
much weight to give the opinion, considering various factors. See id. at 1301 (explaining that
relevant factors include “(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.”). In conducting this analysis, an ALJ must give “good reasons in the
notice of determination or decision” for the weight he or she ultimately assigns and be
“sufficiently specific” to permit meaningful appellate review. Id. (citations omitted).
In this case, the Commissioner concedes that the ALJ failed to expressly consider
Dr. Richey’s June 24, 2010 opinion that Mr. Larsen could be expected to miss eight days of work
per month. Nevertheless, the Commissioner asserts the omission is harmless because the court

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can infer from the ALJ’s rejection of Dr. Richey’s May 2011 opinion that he would have
similarly assigned the June 24, 2010 opinion little weight. The court disagrees.
In determining that Dr. Richey’s opinions were entitled to little weight, the ALJ stated
that “the objective evidence . . . does not support [Dr. Richey’s May 2011 opinion] that [Mr.
Larsen] is functionally disabled to the point is in unemployable in all kinds of jobs.” (Tr., p. 19).
Even assuming this statement is sufficiently specific to discredit Dr. Richey’s May 2011
opinion,3 it tells the court nothing about whether Dr. Richey’s opinion—that Mr. Larsen would
have to miss eight days of work per month—is supported by medically acceptable diagnostic
techniques and consistent with other substantial evidence in the record. Nor does it provide
sufficiently specific information regarding what weight would be appropriate if the opinion were
not controlling. In the absence of any meaningful discussion from the ALJ in this respect, the
court is left to guess what weight the ALJ would have assigned the opinion if he had considered
it.4 This uncertainly prevents the court from concluding that the ALJ’s failure to consider the
opinion was harmless. See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (holding that
harmless-error analysis is appropriate where the court can “confidently say that no reasonable
administrative factfinder, following the correct analysis, could have resolved the factual matter in
another way”); cf. Lately v. Colvin, 560 F. App’x 751, 754 (10th Cir. 2014) (affirming an ALJ

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Mr. Larsen does not challenge the court’s decision to give Dr. Richey’s May 2011 opinion little weight.
Accordingly, we do consider this issue further. See Berna v. Chater, 101 F.3d 631, 632–33 (10th Cir. 1996)
(recognizing that parties may waive consideration of issues by failing to present them to the magistrate judge).
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It is not this court’s role to undertake the task of delving through the record to evaluate in the first instance
whether Dr. Richey’s opinion is entitled to controlling weight or some lesser degree of deference. See
Haga v. Astrue, 482 F.3d 1205, 1207–1208 (10th Cir. 2007) (“[T]his court may not create or adopt post-hoc
rationalizations to support the ALJ’s decision that are not apparent from the ALJ’s decision itself.”); see, e.g.,
Watkins, 350 F.3d at 1300 (remanding where the ALJ offered no explanation for the weight, if any, he gave to the
opinion of a treating physician, because the court of appeals could not “properly review the ALJ’s decision without
these necessary findings”); Drapeau v. Massanari, 255 F.3d 1211, 1213–14 (10th Cir. 2001) (reversing decision of
ALJ that failed to discuss the treating physician’s report and did not give any reason for giving greater weight to the
opinion of a consulting physician than to a treating physician, and rejecting the government’s argument that the
treating physician’s opinion was contradicted by the testimony of other non-treating physicians).

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decision that failed to discuss one doctor’s opinion because the court could ascertain from the
ALJ’s rejection of another doctor’s “nearly identical” opinion that the ALJ gave no weight to the
opinion, because both opinions addressed the issue of disability (which is reserved to the
Commissioner), and were internally inconsistent).5
Likewise, the nature of the June 24, 2010 opinion counsels against a finding that the
ALJ’s error in failing to consider it was harmless. The Tenth Circuit has held that “an ALJ’s
failure to weigh a medical opinion . . . [is] harmless error if there is no inconsistency between the
opinion and the ALJ’s assessment of [RFC].” Mays, 739 F.3d at 578–79. In such a case, “the
claimant is not prejudiced because giving greater weight to the opinion would not have helped
[him].” Id. at 579 (internal quotation marks and brackets omitted); accord Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012) (determining that the failure to expressly weigh a
consultative-examination report was harmless where the RFC was generally consistent with an
examiner’s and doctor’s findings, and where it differed, it was more favorable to the claimant).
Here, the ALJ’s failure to consider the June 24, 2010 opinion was prejudicial because if the
opinion were entitled to controlling weight, the result of the proceeding would have been
different. If Dr. Richey’s opinion that Mr. Larsen could be expected to be absent eight days per
month were controlling, it would compel a finding of disability prior to September 4, 2011. The
VE testified that three to four absences in a month would prohibit work entirely. Therefore, the
court concludes that the ALJ’s failure to consider and weigh Dr. Richey’s June 24, 2010 opinion
was not harmless error in these circumstances. Remand is necessary so that the ALJ can properly
weigh Dr. Richey’s June 24, 2010 opinion in the first instance.

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To the extent the Ninth Circuit’s unpublished decision in Zettelmier v. Astrue, 387 F. App’x 729, 731–32
(9th Cir. 2010) is persuasive, the case is distinguishable. Unlike Zettelmier, the Commissioner here has identified no
internal inconsistency in Dr. Richey’s June 24, 2010 opinion that would permit the court to confidently conclude
that no reasonable factfinder would assign the opinion controlling weight.

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CONCLUSION
For the foregoing reasons, the court APPROVES and ADOPTS in part and REJECTS in
part the Report and Recommendation. The decision of the Commissioner is AFFIRMED in part,
REVERSED in part, and REMANDED.
SO ORDERED this 31st day of August, 2015.
BY THE COURT:

_________________________________
Clark Waddoups
United States District Judge

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