Terry v. Colvin
Filing
38
MEMORANDUM DECISION AND ORDER - The Court REMANDS the Commissioner's decision in this case. Signed by Magistrate Judge Evelyn J. Furse on 8/6/2015. (jwt)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
Crystal Terry,
MEMORANDUM DECISION AND ORDER
Plaintiff,
v.
2:14-CV-0632-EJF
Carolyn Colvin,
Defendant.
Magistrate Judge Evelyn J. Furse
Plaintiff Crystal Terry filed this action asking this Court1 to reverse or remand the final
agency decision denying her Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act, see 42 U.S.C. §§ 401–434. Ms. Terry alleged disability since July 23, 2012 due to
depression, headaches, and musculoskeletal impairments related to her neck, low back, hips, and
legs. The Administrative Law Judge (“ALJ”) determined that Ms. Terry did not qualify as
disabled within the meaning of the Social Security Act. (ECF No. 8, the certified copy of the
transcript of the entire record of the administrative proceedings relating to Crystal Terry
(hereafter “Tr. __”)14.) Having carefully considered the parties’ memoranda, the complete
record in this matter, and the oral argument, the Court REMANDS the Commissioner’s decision.
STANDARD OF REVIEW
42 U.S.C. §§ 405(g) provides for judicial review of a final decision of the Commissioner
of the Social Security Administration (“SSA”). The Court reviews the Commissioner’s decision
to determine whether the record as a whole contains substantial evidence in support of the
Commissioner’s factual findings and whether the SSA applied the correct legal standards. 42
1
On November 17, 2014, the parties consented to the undersigned magistrate judge handling this
case pursuant to General Order 07-001 and Fed. R. Civ. P. 73. (ECF No. 17.)
U.S.C. §405(g); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The Commissioner’s
findings shall stand if supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3).
Adequate, relevant evidence that a reasonable mind might accept to support a conclusion
constitutes substantial evidence, and “[e]vidence is insubstantial if it is overwhelmingly
contradicted by other evidence.” O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).2 The
standard “requires more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084.
“Evidence is not substantial if it is overwhelmed by other evidence—particularly certain types of
evidence (e.g., that offered by treating physicians)—or if it really constitutes not evidence but
mere conclusion.” Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (internal quotations
marks and citations omitted). Moreover, “[a] finding of ‘no substantial evidence’ will be found
only where there is a conspicuous absence of credible choices or no contrary medical evidence.”
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (internal quotation marks and citations
omitted).
Although the reviewing court considers “whether the ALJ followed the specific rules of
law that must be followed in weighing particular types of evidence in disability cases,” the court
“will not reweigh the evidence or substitute [its] judgment for the Commissioner’s.” Lax, 489
F.3d at 1084 (internal quotation marks and citations omitted). The court will “review only the
sufficiency of the evidence.” Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (emphasis
in original). The court does not have to accept the Commissioner’s findings mechanically, but
“examine the record as a whole, including whatever in the record fairly detracts from the weight
of the [Commissioner’s] decision and, on that basis, determine if the substantiality of the
evidence test has been met.” Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (internal
2
Courts apply the same analysis in determining disability under Title II and Title XVI. See
House v. Astrue, 500 F.3d 741, 742 n.2 (8th Cir. 2007).
quotation marks and citation omitted). “‘The possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence,’” and 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 (quoting Zoltanksi v. FAA, 372 F.3d
1195, 1200 (10th Cir. 2004)).
In addition to a lack of substantial evidence, the Court may reverse where the
Commission uses the wrong legal standards or the Commissioner fails to demonstrate reliance on
the correct legal standards. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Thomson
v. Sullivan; 987 F.2d 1482, 1487 (10th Cir. 1993); Andrade v. Sec’y of Health & Human Servs.,
985 F.2d 1045, 1047 (10th Cir. 1993).
FIVE STEP ANALYSIS
The Social Security Act (“Act”) defines “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Moreover,
the Act considers an individual disabled “only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” Id. §§ 423(d)(2)(A).
In determining whether a claimant qualifies as disabled within the meaning of the Act,
the SSA employs a five-part sequential evaluation. See 20 C.F.R. §§ 404.1520; Williams v.
Bowen, 844 F.2d 748, 750-53 (10th Cir. 1988); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
The analysis evaluates whether:
(1) The claimant presently engages in substantial gainful activity;
(2) The claimant has a medically severe physical or mental impairment or impairments;
(3) The impairment is equivalent to one of the impairments listed in the appendix of the
relevant disability regulation which preclude substantial gainful activity;
(4) The impairment prevents the claimant from performing his or her past work; and
(5) The claimant possesses a residual functional capacity to perform other work in the
national economy considering his or her age, education, and work experience.
See 20 C.F.R. §§ 404.1520. The claimant has the initial burden of establishing the disability in
the first four steps. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). At step five, the burden
shifts to the Commissioner to show that the claimant retains the ability to perform other work
existing in the national economy. Id.
Plaintiff raises the following issues: whether the ALJ failed to evaluate Ms. Terry’s
credibility properly; whether the ALJ erred by failing to evaluate the medical opinion evidence
properly; whether the ALJ erred by failing include all Ms. Terry’s impairments in her residual
functional capacity assessment; whether the ALJ erred by failing to consider Listing 1.04 properly.3
I. Evaluation of Ms. Terry’s Credibility
Ms. Terry argues the ALJ did not properly evaluate her credibility. The Court agrees
because the ALJ appears to have considered two factors without adequate support.
“‘Credibility determinations are peculiarly the province of the finder of fact, and [a court]
will not upset such determinations when supported by substantial evidence.’” Kepler v. Chater,
68 F.3d 387, 391 (10th Cir. 1995) (quoting Diaz v. Sec’y of Health & Human Servs., 898 F.2d
774, 777 (10th Cir.1990)). “However, ‘[f]indings as to credibility should be closely and
3
By addressing only these points of alleged error in her opening brief, Ms. Terry waived any
additional challenges to the ALJ’s decision. See Anderson v. Dep’t of Labor, 422 F.3d 1155,
1182 n.51 (10th Cir. 2005) (failing to raise appeal issues in opening brief waives those points
because doing so deprives the opponent of the opportunity to address the arguments).
affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.’”
Id. (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)).
In assessing Ms. Terry’s credibility the ALJ writes as follows:
(Tr. 23.) The Commissioner admits Ms. Terry’s medical records do not show she is obese. The
ALJ’s decision does not provide any explanation about how Ms. Terry’s erroneously attributed
obesity impacts her credibility. Without knowing how consideration of this erroneous fact
influenced the ALJ’s decision, the Court cannot determine whether this consideration constituted
harmless error.
For the reasons set forth above, the Court finds substantial evidence does not support the
ALJ’s evaluation of Ms. Terry’s credibility.
II. Evaluation of Treating Physician Medical Evidence
Ms. Terry argues the ALJ erred by failing to provide legitimate reasons for according no
weight to the opinion of her treating medical provider Dr. Root. The Court agrees.
An ALJ must evaluate every medical opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c). If
the ALJ finds a treating physician’s opinion “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and [] not inconsistent with the other substantial evidence
in [the] case record,” the ALJ must give the opinion controlling weight. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). When the ALJ does not give a treating physician’s opinion
controlling weight, the ALJ must consider certain factors. 20 C.F.R. §§ 404.1527(c) and
416.927(c) provide these factors:
(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.
See Watkins v. Barnhart, 350 F.3d 1297, 1300–01 (10th Cir. 2003) (citation omitted). To reject a
medical opinion, the ALJ must provide “‘specific, legitimate reasons.’” Drapeau v. Massanari,
255 F.3d 1211, 1213 (10th Cir. 2001) (quoting Miller v. Chater, 99 F.3d 972, 976 (10th Cir.
1996)). Yet the ALJ’s decision need not discuss explicitly all of the factors for each of the
medical opinions. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (stating that a
lack of discussion of each factor does not prevent the court from according the decision
meaningful review).
Here, the ALJ did not accord controlling weight to Ms. Terry’s treating medical
provider’s opinion. In deciding what weight to accord the treating physician the ALJ discussed
the potential for a treating physician to be biased. Then the ALJ indicated confirming such bias
is difficult; he points to no evidence in the record to support his concern but says bias is “more
likely in situations where the opinion in question departs substantially from the rest of the
evidence of record, as in the current case.” (Tr. 24.) The Commissioner acknowledged the error
in failing to cite to the record but urged the Court to find the error harmless in light of the ALJ
other reasons for discounting the opinion.
By not citing to the record, the ALJ provides a conclusion on the doctor’s credibility in
the guise of findings. Without further explanation, the Court cannot assess the extent to which
substantial evidence in the record support giving Dr. Root no weight.
This Court finds the ALJ erred by failing to support one of his reasons for according no
weight to Dr. Root’s opinion with an explanation and substantial evidence in the record.
III. Listing 1.04
Ms. Terry also contends that the ALJ erred at step three of the sequential evaluation
process by failing to evaluate whether her back problems qualifies as an impairment that meets
or equals Listing 1.04 after she specifically argued the issue in her pretrial brief.
Step three of the sequential evaluation process “asks whether any ‘medically severe
impairment,’ alone or in combination with other impairments,” meets or equals “any of a number
of listed impairments so severe as to preclude ‘substantial gainful employment.’” Fischer-Ross
v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). If the claimant’s impairment(s) meets or equals
the listing, the ALJ must find the impairment conclusively disabling. See 20 C.F.R. §
404.1520(d). If the impairment(s) does not meet or equal the listing, the claimant must establish
at step four that his impairment prevents him from performing work he previously performed.
See 20 C.F.R. § 404.1520(e), (f).
The Commissioner responds to Ms. Terry’s argument asserting that any failure to discuss
listing 1.04 constituted only harmless error because the evidence discussed at Steps Four and
Five show that the ALJ found Ms. Terry’s back issues did not meet the criteria for Listing 1.04.
The Commissioner supports her position by relying on Fischer-Ross v. Barnhart.
Unfortunately, the ALJ does not discuss the issue of nerve root or spinal cord
impingement and radiculopathy in Steps Four and Five. While the doctors’ opinions discussed
do address the issue, the lack of discussion by the ALJ makes it impossible to find the failure to
discuss Listing 1.04 harmless error.
IV. RFC Determination
Ms. Terry argues the ALJ erred by failing to include all of her impairments in her RFC
Assessment. The Court agrees.
A claimant’s residual functional capacity (“RFC”) reflects the ability to do physical,
mental, and other work activities on a sustained basis despite limitations from the claimant’s
impairments. See 20 C.F.R. §§ 404.1545, 416.945. In determining the claimant’s RFC, the
decision maker considers all of the claimant’s medically determinable impairments, including
those considered not “severe.” See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).
The ALJ acknowledges at Step Two that Ms. Terry has carpal tunnel syndrome but finds
it is not a severe impairment. The ALJ’s RFC omits any analysis of the impact of the carpal
tunnel syndrome on Ms. Terry’s RFC. Lacking any discussion of RFC, the Court cannot
evaluate whether sufficient evidence supports the ALJ’s finding.
Accordingly, the Court finds the ALJ failed to apply the proper legal standards in
determining Ms. Terry’s RFC.
Ms. Terry also argues the ALJ did not adequately account for her moderate restrictions
on concentration, persistence, and pace in determining the RFC. The Court encourages the ALJ
to consider the concerns raised in Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015). Because
the Court has remanded the RFC on other grounds, it need not make a finding as to whether the
ALJ erred in this additional respect.
CONCLUSION
Based on the foregoing, the Court finds that substantial evidence does not support the
Commissioner’s decision, and the Commissioner failed to apply the legal standards correctly.
Therefore, the Court REMANDS the Commissioner’s decision in this case.
DATED this August 6, 2015.
BY THE COURT:
________________________________
Evelyn J. Furse
United States Magistrate Judge
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