Miller v. Colvin

Filing 37

MEMORANDUM DECISION AND ORDER ADOPTING 35 REPORT AND RECOMMENDATIONS: the case is remanded to the Commissioner. Signed by Judge David Nuffer on 3/21/16 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CYNTHIA K. MILLER,

MEMORANDUM DECISION AND
ORDER ADOPTING
REPORT AND RECOMMENDATION

Plaintiff,
v.

Case No. 2:14-cv-00558-DN-DBP
CAROLYN W. COLVIN, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,

District Judge David Nuffer

Defendant.
Defendant Carolyn W. Colvin (“Commissioner”) filed an Objection 1 to the Report and
Recommendation (“R & R”) issued on December 2, 2015. 2 The R & R recommends remand of
the ALJ’s decision denying Plaintiff Cynthia K. Miller’s claim for Disability Insurance Benefits
and Supplemental Security Income under Title II and Title XVI of the Social Security Act
(“Act”). 3 For the reasons discussed below, the court OVERRULES the objection and ADOPTS
the R & R. The case is REMANDED to the Commissioner.
BACKGROUND
Miller’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). 4 Magistrate Judge Pead
recommended the Commissioner’s decision be remanded for further consideration. 5 The
Commissioner filed an Objection, which is limited to a single issue. Miller did not file a response
to the Commissioner’s Objection.
1

Defendant’s Objection to the Report and Recommendation of the Magistrate Judge (“Objection”), docket no. 36,
filed December 11, 2015.
2

Docket no. 35.

3

42 U.S.C. §§ 401–33 and 1381–85.

4

See Docket Text Order Referring Case, docket no. 8, filed August 26, 2014.

5

R & R at 12.

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.” 6
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. 7 But
the court will not reweigh the evidence or substitute its judgment for the Commissioner’s. 8
DISCUSSION
Magistrate Judge Pead found that the “ALJ[] failed to address lay witness Cameron
Larson’s testimony[,]” and such a failure, according to the Tenth Circuit, requires remand. 9 The
Commissioner argues that “the Magistrate Judge mistakenly finds the ALJ did not consider
evidence in the record and misapplies the harmless error rule.” 10 The Commissioner
acknowledges that “[t]he ALJ did not mention Mr. Larson’s testimony[,]” but she contends that
the ALJ “did consider it. In fact, [the ALJ] wrote that she carefully considered the entire record
in determining Plaintiff’s residual functional capacity.” 11 The Commissioner argues that “[t]he
Court should take the ALJ at her word.” 12

6

28 U.S.C. § 636(b)(1)(C).

7

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

8

Id.

9

R & R at 11 (citing Blea v. Barnhart, 466 F.3d 903, 914–15 (10th Cir. 2006)).

10

Objection at 1.

11

Id. at 2.

12

Id.

2

The Commissioner also maintains that the Magistrate Judge is incorrect in finding that
the ALJ’s oversight was not harmless error. According to the Commissioner, “[t]he Magistrate
Judge applied the wrong standard. The question is not whether the Commissioner can show the
ALJ would not have given weight to the testimony had she given it more consideration. Instead,
the question is whether Plaintiff has shown harm.” 13 The Commissioner points out that [t]he
applicable law is that Plaintiff has the burden to show any error harmed her.” 14 The
Commissioner states that “Plaintiff did not show harm. The ALJ considered Plaintiff’s testimony
and found her not credible. As Mr. Larson’s statement was similar to Plaintiff’s and the ALJ
found Plaintiff was not entirely credible, any error was harmless.” 15 The Commissioner further
points out that Blea v. Barnhart 16—a case the Magistrate Judge relies upon for his decision to
remand—“does not require remand in this case.” 17 The Commissioner states that the facts in
Blea are different from the present case. 18 For example, the panel in Blea did not consider
whether the ALJ’s error in not considering lay testimony was harmless. Also, the Commissioner
contends that “it is not clear that the ALJ in Blea stated that had considered all of the
evidence.” 19
The essential facts of this case are similar to the facts in Blea. In Blea, the ALJ failed to
discuss or consider the lay testimony of the Plaintiff’s wife. 20 Specifically, the ALJ’s decision
failed to mention any of the particulars of the testimony of Plaintiff’s wife, and failed to mention
13

Id. at 3.

14

Id.

15

Id.

16

Blea v. Barnhart, 466 F.3d 903, 914–15 (10th Cir. 2006).

17

Objection at 4.

18

Id. at 5.

19

Id. at 4–5.

20

Blea, 466 F.3d at 915.

3

the fact that the wife testified regarding the nature and severity of her husband’s impairments.
The Commissioner argued there was no reversible error because the ALJ is not required to make
written findings about each witness’s credibility. The Tenth Circuit found that “the ALJ’s refusal
to discuss why he rejected her testimony violates our court’s precedent, and requires remand for
the ALJ to incorporate Mrs. Blea’s testimony into his decision.” 21 Thus, according to Blea, the
ALJ should at least indicate in his decision that he has considered each witness’ testimony.
In the present case, the ALJ did not discuss Mr. Larson’s statements or refer to it in any
other way in the written decision. The Commissioner argues that the ALJ did not err because she
was not required to specifically discuss all of the evidence. As Blea indicates, however, the ALJ
is not required to make specific written findings regarding the credibility of witnesses only if the
written decision reflects the ALJ considered the witness’s testimony. 22 A blanket assertion by the
ALJ that she considered the “entire record” is insufficient to meet the Tenth Circuit Blea
standard.
The ALJ’s failure to consider Mr. Larson’s statements is not harmless error. As the
Magistrate Judge correctly points out, during the relevant time period Mr. Larson was in a
unique position to observe Plaintiff’s symptoms on a daily basis because he lived with Plaintiff
prior to her alleged onset of disability date and continuing through the time of the hearing. 23
Mr. Larson’s statements are probative because they corroborate Plaintiff’s claims regarding the
intensity, persistence, and limiting effects of her symptoms. 24 Specifically, Mr. Larson’s
statements regarding the frequency, duration and expected days of incapacitation as a result of

21

Id.

22

Id.

23

R & R at 12 (citing docket no. 18, Supplement to Administrative Record (“Tr. ___) 1077).

24

Tr. 1078–80.

4

Plaintiff’s headaches and other pains support Plaintiff’s symptom allegations. Although there
may be reasons to discount Mr. Larson’s statements, that analysis of the weight that should be
accorded these statements is the province of the ALJ. Accordingly, the ALJ erred when she
failed to indicate in her written decision that she had considered Mr. Larson’s statements. The
remedy for this error is remand so the ALJ may properly consider Mr. Larson’s statements. 25
CONCLUSION
After review of all relevant materials de novo, IT IS HEREBY ORDERED that the
Commissioner’s Objection 26 to the R & R is OVERRULED and the R & R is ADOPTED in its
entirety. The case is REMANDED to the Commissioner. On remand, the Commissioner should
consider Mr. Larson’s testimony.
The Clerk shall close the case.
Dated March 21, 2016.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

25

See Blea, 466 F.3d at 915 (citing Baker v. Bowen, 886 F.2d 289, 291 (10th Cir.1989) (“[W]here the record on
appeal is unclear as to whether the ALJ applied the appropriate standard by considering all the evidence before him,
the proper remedy is reversal and remand.”)).

26

Defendant’s Objection to the Report and Recommendation of the Magistrate Judge (“Objection”), docket no. 36,
filed December 11, 2015.

5