Iorg v. Colvin

Filing 27

MEMORANDUM DECISION and ORDER. IT IS HEREBY ORDERED that the Commissioners decision in this case is REVERSED AND REMANDED. Signed by Magistrate Judge Paul M. Warner on 06/23/2014. (tls)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
CHARLES IORG,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 2:13-cv-199-PMW

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Magistrate Judge Paul M. Warner

Before the court is Charles Iorg’s (“Plaintiff”) appeal of the Commissioner’s final
decision determining that Plaintiff was not entitled to Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, see 42 U.S.C. §§ 401-434, and Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act, see id. §§ 1381-1383f. After careful
consideration of the written briefs and the complete record, the court has determined that oral
argument is not necessary in this case.
BACKGROUND
Plaintiff alleges disability due to various physical and mental impairments. In October
2010, Plaintiff applied for DIB and SSI, alleging disability beginning in January 2009.
Plaintiff’s applications were denied initially and upon reconsideration. 1 On June 4, 2011,
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), 2 and that hearing was

1

See docket no. 17, Administrative Record (“Tr.

2

See Tr. 53-54.

”) 29-30, 32-33, 40-52.

held on August 1, 2012. 3 On August 30, 2012, the ALJ issued a written decision denying
Plaintiff’s claims for DIB and SSI. 4 On February 14, 2013, the Appeals Council denied
Plaintiff’s request for review, 5 making the ALJ’s decision the Commissioner’s final decision for
purposes of judicial review. See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981,
416.1481.
On March 21, 2013, Plaintiff filed his complaint in this case, which was assigned to
preliminarily to Magistrate Judge Paul M. Warner. 6 On July 8, 2013, both parties consented to a
United States Magistrate Judge conducting all proceedings in the case, including entry of final
judgment, with appeal to the United States Court of Appeals for the Tenth Circuit. 7
Consequently, the case was assigned permanently to Magistrate Judge Warner pursuant to 28
U.S.C. § 636(c) and rule 73 of the Federal Rules of Civil Procedure. 8 See 28 U.S.C. § 636(c);
Fed. R. Civ. P. 73. After receiving an extension of time, 9 the Commissioner filed her answer and
the Administrative Record on July 9, 2013. 10

3

See Tr. 542-566.

4

See Tr. 12-28.

5

See Tr. 4-6.

6

See docket no. 3.

7

See docket no. 13.

8

See id.

9

See docket no. 7, 9.

10

See docket nos. 14, 17.
2

Plaintiff filed his opening brief on September 13, 2013. 11 The Commissioner filed her
answer brief on October 23, 2013. 12 Plaintiff filed his reply brief on October 30, 2013. 13
STANDARD OF REVIEW
This court “review[s] the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotations and
citation omitted). The Commissioner’s findings, “if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). “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.” Lax, 489 F.3d at 1084 (quotations and citation omitted).
“In reviewing the ALJ’s decision, [this court may] neither reweigh the evidence nor substitute
[its] judgment for that of the [ALJ].” Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006)
(quotations and citation omitted). “The failure to apply the correct legal standard 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)
(quotations and citation omitted).
A five-step evaluation process has been established for determining whether a claimant is
disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see also Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step process). If a

11

See docket no. 20.

12

See docket no. 24.

13

See docket no. 26.
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determination can be made at any one of the steps that a claimant is or is not disabled, the
subsequent steps need not be analyzed. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Step one determines whether the claimant is presently engaged in
substantial gainful activity. If [the claimant] is, disability benefits
are denied. If [the claimant] is not, the decision maker must
proceed to step two: determining whether the claimant has a
medically severe impairment or combination of impairments. . . . If
the claimant is unable to show that his impairments would have
more than a minimal effect on his ability to do basic work
activities, he is not eligible for disability benefits. If, on the other
hand, the claimant presents medical evidence and makes the de
minimis showing of medical severity, the decision maker proceeds
to step three.
Williams, 844 F.2d at 750-51 (quotations and citations omitted); see 20 C.F.R.
§§ 404.1520(a)(4)(i)-(ii), 416.920(a)(4)(i)-(ii).
“Step three determines whether the impairment is equivalent to one of a number of listed
impairments that . . . are so severe as to preclude substantial gainful activity . . . . If the
impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to
benefits. If not, the evaluation proceeds to the fourth step . . . .” Williams, 844 F.2d at 751
(quotations and citations omitted); see 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At
the fourth step, the claimant must show that the impairment prevents performance of his “past
relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). “If the claimant is able to
perform his previous work, he is not disabled.” Williams, 844 F.2d at 751. If, however, the
claimant is not able to perform his previous work, he “has met his burden of proof, establishing a
prima facie case of disability.” Id.
At this point, “[t]he evaluation process . . . proceeds to the fifth and final step.” Id. At
this step, the burden of proof shifts to the Commissioner, and the decision maker must determine
“whether the claimant has the residual functional capacity [(“RFC”)] . . . to perform other work
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in the national economy in view of his age, education, and work experience.” Id.; see 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If it is determined that the claimant “can make an
adjustment to other work,” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is not disabled.
If, on the other hand, it is determined that the claimant “cannot make an adjustment to other
work,” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is disabled and entitled to benefits.
ANALYSIS
In support of his claim that the Commissioner’s decision should be reversed, Plaintiff
presents several arguments. Among other things, Plaintiff argues that the ALJ erred by failing to
evaluate the opinions of Dr. Steven Barney, Ph.D. (“Dr. Barney”). That argument is dispositive
of Plaintiff’s appeal because it mandates reversal. Accordingly, the court will address only that
argument here and “will not reach the remaining issues raised by [Plaintiff] because they may be
affected by the ALJ’s treatment of this case on remand.” Watkins v. Barnhart, 350 F.3d 1297,
1299 (10th Cir. 2003); see also Gilbert v. Astrue, 231 Fed. App’x 778, 785 (10th Cir. 2007) (“In
light of the remand of this case, we do not reach the remainder of [the plaintiff’s] claims on
appeal . . . .”).
In deciding how much weight to give a treating source
opinion, an ALJ must first determine whether the opinion qualifies
for controlling weight. To make this determination, the ALJ . . .
must first consider whether the opinion is well[ ]supported by
medically acceptable clinical and laboratory diagnostic techniques.
If the answer to this question is “no,” then the inquiry at this stage
is complete. If the ALJ finds that the opinion is well[ ]supported,
he must then confirm that the opinion is consistent with other
substantial evidence in the record. If the opinion is deficient in
either of these respects, then it is not entitled to controlling weight.
Even if a treating physician’s opinion is not entitled to
controlling weight, treating source medical opinions are still
entitled to deference and must be weighed using all of the factors
provided in [20 C.F.R. §§ 404.1527 and 416.927]. Those factors
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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.
Under the regulations, the agency rulings, and [Tenth
Circuit] case law, an ALJ must give good reasons . . . for the
weight assigned to a treating physician’s opinion . . . that are
sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical
opinion and the reason for that weight. If the ALJ rejects the
opinion completely, he must then give specific, legitimate reasons
for doing so.
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quotations and citations omitted)
(sixth alteration in original); see also 20 C.F.R. §§ 404.1527(c), 416.927(c).
In this case, the ALJ made no reference in his decision to the opinions of Dr. Barney,
even though Dr. Barney conducted a consultative exam of Plaintiff and diagnosed him with
certain limitations. Notably, the Commissioner concedes that the ALJ did not address Dr.
Barney’s opinions. The Commissioner argues, however, that the ALJ’s failure in that regard was
harmless because, even when Dr. Barney’s diagnosed limitations are taken into account, Plaintiff
could still perform the jobs identified by the ALJ. The court disagrees. As Plaintiff has noted,
that conclusion is speculation on the part of the Commissioner. Further, such post hoc
rationalization to explain the ALJ treatment of Dr. Barney’s opinions is improper. See, e.g.,
Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007); Grogan v. Barnhart, 399 F.3d 1257,
1263 (10th Cir. 2005). As noted above, “an ALJ must give good reasons . . . for the weight
assigned to a treating physician’s opinion . . . that are sufficiently specific to make clear to any
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subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion
and the reason for that weight.” Langley, 373 F.3d at 1119 (quotations and citations omitted)
(first alteration in original). The ALJ failed to do so concerning Dr. Barney’s opinions.
Accordingly, the court concludes that the ALJ erred in that respect.
CONCLUSION AND ORDER
Based on the foregoing, the court concludes that the ALJ erred by failing to evaluate the
opinions of Dr. Barney. Accordingly, IT IS HEREBY ORDERED that the Commissioner’s
decision in this case is REVERSED AND REMANDED.
IT IS SO ORDERED.
DATED this 23rd day of June, 2014.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

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