Thomas v. Colvin

Filing 20

MEMORANDUM DECISION AND ORDER: The court concludes that the ALJ erred by failing to provide any analysis concerning his evaluation of the opinions of Dr. Kockler. The court also concludes that the ALJ erred by failing to consider Plaintiffs fathers lay witness statement. Accordingly, IT IS HEREBY ORDERED that the Commissioners decision in this case is REVERSED AND REMANDED. Signed by Magistrate Judge Paul M. Warner on 6/18/2014. (las)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
DALENE THOMAS,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 2:13-cv-296-PMW

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

Magistrate Judge Paul M. Warner

Before the court is Dalene Thomas’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. On
December 17, 2009, Plaintiff applied for DIB and SSI, alleging disability beginning on January
1, 2008. 1 Plaintiff’s applications were denied initially and upon reconsideration. 2 On September

1

See docket nos. 10-11, Administrative Record (“Tr.

2

See Tr. 83-86.

”) 149-162.

28, 2010, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), 3 and that
hearing was held on March 10, 2011. 4 On March 25, 2011, the ALJ issued a written decision
denying Plaintiff’s claims for DIB and SSI. 5 On December 8, 2011, the Appeals Council denied
Plaintiff’s request for review, 6 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 January 20, 2012, Plaintiff filed suit in this court to appeal the Commissioner’s final
decision determining that Plaintiff was not entitled to DIB and SSI. 7 On May 24, 2012, the
Commissioner filed an unopposed motion to remand Plaintiff’s case for further administrative
proceedings. 8 The court granted that motion. 9
In an order dated June 26, 2012, the Appeals Council remanded Plaintiff’s case to the
ALJ. 10 A remand hearing was then held on March 14, 2013. 11 On March 27, 2013, the ALJ
issued a second written decision denying Plaintiff’s claims for DIB and SSI. 12 The ALJ’s second
3

See Tr. 104-105.

4

See Tr. 36-82.

5

See Tr. 18-35.

6

See Tr. 1-6.

7

See Case no. 2:12-cv-92-BCW, docket no. 3.

8

See id. at docket no. 17; Tr. 576-578.

9

See Case no. 2:12-cv-92-BCW at docket no. 18; Tr. 574-575.

10

See Tr. 581-586.

11

See Tr. 492-530.

12

See Tr. 437-471.
2

decision became the Commissioner’s final decision for purposes of judicial review when
Plaintiff did not file exceptions with the Appeals Council, and when the Appeals Council did not
assume jurisdiction over Plaintiff’s case on its own. See 20 C.F.R. §§ 404.984(d), 416.1484(d).
On May 1, 2013, Plaintiff filed her complaint in this case, which was assigned to District
Judge Dee Benson. 13 The Commissioner filed her answer and the Administrative Record on
June 27, 2013. 14
On August 5, 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. 15 Consequently, the case was reassigned to
Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(c) and rule 73 of the Federal
Rules of Civil Procedure. 16 See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
Plaintiff filed her opening brief on August 23, 2013. 17 The Commissioner filed her
answer brief on September 27, 2013. 18 Plaintiff filed her reply brief on October 9, 2013. 19
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
13

See docket no. 3.

14

See docket nos. 8, 10-11.

15

See docket no. 15.

16

See id.

17

See docket no. 17.

18

See docket no. 18.

19

See docket no. 19.
3

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
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.

4

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
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 her claim that the Commissioner’s decision should be reversed, Plaintiff
presents several arguments. Plaintiff argues that the ALJ erred by failing to provide any analysis
5

concerning his evaluation of the opinions of Tim Kockler, Ph.D. (“Dr. Kockler”). Plaintiff also
argues that the ALJ erred by failing to consider a lay witness statement submitted by Plaintiff’s
father. Those two arguments are dispositive of Plaintiff’s appeal because they mandate reversal.
Accordingly, the court will address only those two arguments 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 . . . .”).
I. Dr. Kockler
Plaintiff argues that the ALJ erred in his evaluation of the opinions of Dr. Kockler.
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
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.
6

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 makes reference in his decision to the opinions of Dr. Kockler.
However, the ALJ provides no analysis of his treatment of those opinions. 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 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. Kockler’s opinions. Accordingly, the court concludes that the ALJ erred in that
respect.
II. Lay Witness Statement
Plaintiff also argues that the ALJ erred by failing to consider a lay witness statement
submitted by Plaintiff’s father. Pursuant to Social Security Ruling (“SSR”) 06-03p, lay
witnesses are considered “other sources.” See SSR 06-03p. SSR 06-03p provides that the
factors for evaluating the opinions of treating physicians apply with equal weight to the opinions
of “other sources.” See id.; see also 20 C.F.R. §§ 404.1527(c), 416.927(c).
In this case, as conceded by the Commissioner, the ALJ made no reference in his decision
to Plaintiff’s father’s lay witness statement. The Commissioner argues, however, that the ALJ’s
7

failure in that regard was harmless because Plaintiff’s father’s statement is largely consistent
with Plaintiff’s own testimony, which the ALJ determined was lacking in credibility. The court
cannot agree. As Plaintiff has noted, Plaintiff’s father’s lay witness statement provides
information about Plaintiff’s functional limitations that is not contained in Plaintiff’s testimony.
Accordingly, the court concludes that the ALJ erred by failing to address that lay witness
statement.
CONCLUSION AND ORDER
Based on the foregoing, the court concludes that the ALJ erred by failing to provide any
analysis concerning his evaluation of the opinions of Dr. Kockler. The court also concludes that
the ALJ erred by failing to consider Plaintiff’s father’s lay witness statement. Accordingly, IT IS
HEREBY ORDERED that the Commissioner’s decision in this case is REVERSED AND
REMANDED.
IT IS SO ORDERED.
DATED this 18th day of June, 2014.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

8