Gerow v. Colvin

Filing 27

MEMORANDUM DECISION AND ORDER - the Court REVERSES and REMANDS this case to the Commissioner. On remand, the Commissioner will specifically consider the evidence from Drs. Clark and Shaefer and how these opinions impact the ALJs findings as to Mr. Gerows RFC and credibility. Signed by Magistrate Judge Evelyn J. Furse on 12/19/2016. (las)

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

ANDREW GEROW,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 2:15-CV-00894-EJF

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

Magistrate Judge Evelyn J. Furse

Defendant.

All parties in this case have consented to having United States Magistrate Evelyn J. Furse
conduct all proceeding this this case, including entry of final judgment, with appeal to the United
States Court of Appeals for the Tenth Circuit. (See 28 U.S.C. § 636 (c); F.R.C.P. 73; Docket
(“Dkt”) 15). Plaintiff, Andrew Gerow, (“Mr. Gerow”) appeals the Commissioner of Social
Security’s decision denying his claim for Disability Insurance Benefits under Title II of the
Social Security Act (the Act), 42 U.S.C.§§401-433, as well as, Supplemental Security Income,
42 U.S.C. §§1381-1383f. (Dkt. 3). Having considered the parties’ briefs, the administrative
record, the arguments of counsel, and the relevant law, the Court REVERSES and REMANDS
the Commissioner’s decision for further consideration.
BACKGROUND
Mr. Gerow filed an application for Disability Insurance Benefits (“DIB”), as well as,
Supplemental Security Income (“SSI”) on October 9, 2014, alleging disability beginning June 1,
2003. (A.R. 182-188, 189-197). Mr. Gerow’s claim was initially denied on January 16, 2015,
and upon reconsideration on April 30, 2015. (A.R. 75-76, 117-118). Thereafter, Mr. Gerow
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timely requested a hearing before an Administrative Law Judge (“ALJ”) on May 14, 2015.
(A.R. 135-137).
A hearing was held on August 15, 2015 in St. George, Utah before Administrative Law
Judge, Christopher R. Daniels. (A.R. 27-44). At the hearing, Mr. Gerow’s onset date was
amended to December 31, 2008. (A.R. 12). The ALJ issued a decision finding Mr. Gerow not
disabled on August 31, 2015. (A.R. 7-26). The Appeals Council denied Mr. Gerow’s request for
review on November 20, 2015. (A.R. 1-3). This Appeals Council denial was the final
administrative decision of the Commissioner of Social Security in this case. Thus, the ALJ
decision stands as the final decision of the Commissioner.
Mr. Gerow brought this action to appeal the Commissioner’s decision pursuant to 24
U.S.C. § 405(g), which provides for judicial review of the defendant’s final decision.
A. Factual History
Mr. Gerow is treated by Dr. Stephen Clark. Dr. Clark diagnosed chronic back pain and
arthritis. (A.R. 304, 325). He prescribed methadone for Mr. Gerow’s physical pain. (A.R. 298).
Mr. Gerow has depression and anxiety that is treated with medication. (A.R. 298, 301). In
2009, Dr. Clark noted that Mr. Gerow was under his care for depression, chronic pain, and
abnormal liver function tests. (A.R. 319).
During this time, Mr. Gerow was also seen for issues with his prostate and urination.
(A.R. 320, 322, 325). Imaging studies show small cysts on his kidneys. (A.R. 331). X-rays of
Mr. Gerow’s knees show mild to moderate degenerative arthropathic changes. (A.R. 353). Xrays of the lumbar spine show mild scoliosis and spondylitic changes manifested as endplate
sclerosis, marginal spurring, and lower lumbar fact arthropathy. (A.R. 354). Due to his chronic

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pain, Mr. Gerow was referred to a sports medicine specialist who diagnosed a cramping
syndrome. (A.R. 334-335).
In May 2015, Dr. Clark noted Mr. Gerow was hearing voices. (A.R. 430). His chronic
headaches were worsening and he was experiencing vertigo. (A.R. 430). He had increased
urinary frequency and chronic abdominal pain. (A.R. 430).
Mr. Gerow was seen at Southwest Mental Health for counseling. (A.R. 436). He was
diagnosed with depressive disorder and a psychotic disorder. (A.R. 436). He noted side-effects
of increased appetite and somnolence with his medications. (A.R. 436, 445).
In June 2015, Mr. Gerow was reporting daily headaches, depression and anxiety, urinary
frequency, chronic pain of the legs and back, abdominal pain, and vertigo. (A.R. 427).
A physical consultative exam was performed by Dr. Joseph Nelson in September 2012.
(A.R. 346). Dr. Nelson opined that Mr. Gerow could perform up to light duty work. (A.R. 351).
Dr. Clark filled out a residual functional capacity form in 2014. (A.R. 369). He
diagnosed chronic low back pain and knee pain supported by x-rays. (A.R. 363). He noted
digestive system issues and abdominal pain. (A.R. 365, 370). He stated Mr. Gerow has chronic
headaches and fatigue. (A.R. 370). Dr. Clark diagnosed mental disorders including anxiety,
depression, delusions, paranoia, panic disorder, and suicidal ideation. (A.R. 367). These cause
Mr. Gerow to be withdrawn and have mood swings. (A.R. 367). Dr. Clark noted that a spinal
MRI and CT scan of the brain were recommended but Mr. Gerow does not have the financial
means to obtain this testing. (A.R. 375). He also noted that counseling and medication would
likely help his mental impairments, but again financial issues preclude Mr. Gerow from
obtaining this treatment.

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In September 2012, Mr. Gerow underwent a psychological consultative exam with Dr.
Tim Kockler, Ph.D. (A.R. 338). Dr. Kockler diagnosed dysthymic disorder, schizoid personality
disorder with avoidant features, rule out amphetamine abuse. (A.R. 342). He found that Mr.
Gerow’s mental status was in the below average range. (A.R. 342).
In May 2014, Mr. Gerow underwent a second psychological consultative exam with Dr.
Kockler. (A.R. 357). At this point he diagnosed delusional disorder, somatic type, depressive
disorder, and schizotypal personality disorder. (A.R. 362).
In July 2015, Mr. Gerow’s current treating psychiatrist, Dr. Schafer, diagnosed psychosis
and depressive disorder. (A.R. 456). He opined that due to his mental impairments, Mr. Gerow
would be off task 15% or more of an 8 hour workday in the following areas: maintain attention
and concentration for extended periods of time, perform activities within a schedule, sustain an
ordinary routine without special supervision, and complete a normal workday or workweek
without interruption from psychologically based symptoms. (A.R. 457). He stated that Mr.
Gerow would be off task 15% or more of the workday in accepting instructions and responding
appropriately to criticism from supervisors, and getting along with coworkers without distracting
them or exhibiting behavioral extremes. (A.R. 457). Dr. Schafer also opined that Mr. Gerow
would be limited in responding appropriately to changes in the work setting, traveling in
unfamiliar places or using public transportation, and setting realistic goals or making plans
independently of others. (A.R. 458).
B. Hearing Testimony
At the hearing, Mr. Gerow testified he was 42 years old. (A.R. 31). He is single and
lives with his father. (A.R. 31). The last time he lived by himself was ten years ago for about
one year. (A.R. 31). He completed high school and has not worked in eight years. (A.R. 32).
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He left his previous job due to headaches and leg pain. (A.R. 32). Mr. Gerow has daily
headaches severe enough that sometimes he is in bed for 2-4 hours of the day. (A.R. 34). They
are accompanied by dizziness and nausea. (A.R. 34). The medication he takes for the headaches
helps a bit, but makes him tired. (A.R. 34). He has pain and neuropathy in his legs and thighs.
(A.R. 34). He can stand for 15-20 at a time and sit for about 45-60 minutes at a time. (A.R. 36).
He takes olanzapine for his schizophrenia. (A.R. 37). It helps a bit, but the medication makes
him very tired. (A.R. 37). He rarely goes out and does not use a computer. (A.R. 38). He has a
driver’s license, but does not drive. (A.R. 38). He does not do any chores and does not cook
meals. (A.R. 39). He has severe stomach pain. (A.R. 40). He does not get along well with
people and has difficulty maintaining concentration. (A.R. 40). He sleeps 14-16 hours a day.
(A.R. 41).
C. ALJ Decision
In his decision, the ALJ found that Mr. Gerow had the severe impairments of arthritis,
delusional disorder, depressive disorder, and schizotypal personality disorder. (A.R. 12). At
step 3 he found that Mr. Gerow did not meet a listing. (A.R. 12-13). The ALJ found that Mr.
Gerow could perform medium work, with the following limitations: occasionally climb, balance,
stoop, kneel, crouch, and crawl; he is able to tolerate occasional hazards, perform unskilled work
(SVP 1-2) requiring no more than occasional interaction with co-workers, supervisors, and the
general public; he is able to adapt to changes consistent with unskilled work. (A.R. 14).
With this RFC, the ALJ found that Mr. Gerow could not perform any of his past relevant
work. (A.R. 19). However, the ALJ found that there was other work available that Mr. Gerow
could perform. (A.R. 19). Therefore, he found Mr. Gerow was not disabled. (A.R. 20-21).

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STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is limited to determining whether her
findings are supported by “substantial evidence and whether the correct legal standards were
applied. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
(quotation omitted). The Court may neither reweigh the evidence, nor substitute its judgment for
the Commissioner’s. Id.
In its review, the Court should evaluate the record as a whole, including that evidence
before the ALJ that detracts from the weight of the ALJ’s decision. Shepherd v. Apfel, 184 F.3d
1196, 1199 (10th Cir. 1999). However, the reviewing Court should not re-weigh the evidence or
substitute its own judgment for that of the ALJ. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.
2000). Further, 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 at 1084. Lastly,”[t]he failure to apply the correct legal
standard[s] 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).
In applying these standards, the Court has considered the Administrative Record, relevant
legal authority, and the parties’ briefs and oral arguments. The Court finds as follows:
ANALYSIS
Mr. Gerow raises three issues on appeal. 1) Whether the ALJ erred by failing to properly
evaluate the medical opinion evidence, specifically the opinions of Drs. Clark and Shaefer; 2)
Whether the ALJ erred by failing to include specific limitations in Mr. Gerow’s residual
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functional capacity assessment for his limitations in concentration, persistence, and pace; and 3)
Whether the ALJ failed to properly evaluate Mr. Gerow’s credibility. For reasons set forth
below, the Court remands the ALJ’s decision for further analysis regarding the opinions from
Mr. Gerow’s treating physicians, Dr. Stephen Clark and Dr. David Shaefer. The ALJ should also
explain how the RFC accommodates Mr. Gerow’s specific mental impairments. In addition, the
ALJ should further explain his analysis of Mr. Gerow’s credibility to ensure that his erroneous
evaluation of the treating physician opinions and Mr. Gerow’s RFC did not inform his credibility
determination.
I.

The ALJ Erred by Failing to Properly Evaluate the Treating Physician
Opinions.

Mr. Gerow challenges the ALJ’s evaluation of the opinions of Drs. Clark and Shaefer,
two of his treating physicians. The record contains notes and an opinion as to Mr. Gerow’s
diagnoses and limitations submitted by his treating physician Dr. Stephen Clark. (A.R. 363370). Dr. Clark diagnosed: degenerative disc disease, radiculopathy, chronic headaches, anxiety,
depression, and probable schizoaffective disorder. (A.R. 368). He opined that Mr. Gerow’s
impairments were not expected to improve. (A.R. 368). This was in part due to Mr. Gerow’s
inability to afford treatment. Dr. Clark noted that a spinal MRI and CT scan of the brain were
recommended but Mr. Gerow does not have the financial means to obtain this testing. (A.R.
375). He also noted that counseling and medication would likely help his mental impairments,
but again financial issues preclude Mr. Gerow from obtaining this treatment. Dr. Clark also
noted that compliance could be an issue in successfully using medication for his mental
impairments. (A.R. 375). Due to his mental impairments, Mr. Gerow has delusions, paranoia,
panic disorder, and suicidal ideation. (A.R. 367). He is withdrawn and has mood swings. (A.R.
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367). Dr. Clark opined that Mr. Gerow was unable to work due to these impairments. (A.R.
370).
When evaluating a treating source opinion, the Regulations set out a two-part test for the
ALJ to follow in determining what weight to afford the opinion. 20 C.F.R. § 404.1527(c)(2);
416.927(c)(2); Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003). First, the ALJ
must decide if the opinion “is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence in [the] case
record.” Id. If the treating source opinion satisfies both criteria, then the inquiry ends, and the
ALJ must give the opinion controlling weight. Id. If not, the ALJ must weigh the opinion using
all the factors in § 404.1527(c) and 416.927(c). Id. After considering these factors, the ALJ
must give “good reasons” for the weight he ultimately assigns the treating source opinion that are
“sufficiently specific to make clear to any subsequent reviewers the weight the adjudication gave
to the treating source’s medical opinion and the reasons for that weight.” Id. (quoting SSR 962p).
The Commissioner acknowledges that the opinion of Dr. Clark was not weighed by the
ALJ. (Dkt. 20 at 9). However, she argues that any error is harmless because the form submitted
by Dr. Clark “does not actually contain Dr. Clark’s opinion regarding Plaintiff’s functional
limitations.” (Dkt. 20 at 9). This Court does not agree. Dr. Clark’s form contained diagnoses,
discussed Mr. Gerow’s inability to obtain treatment due to finances, and did contain information
as to how his impairments would impact his ability to work. (A.R. 363-370). The ALJ should
have considered Dr. Clark’s conclusions as to Mr. Gerow’s ability to work.

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The acknowledged failure to evaluate this opinion is not harmless. The ALJ could have
reached a different decision had this form been clearly evaluated. Furthermore, the failure to
evaluate this opinion may have impacted the ALJ’s RFC and credibility assessments.
Mr. Gerow also challenges the ALJ’s evaluation of the opinion of Dr. David Shaefer, his
treating psychiatrist. In July 2015, Dr. Schaefer filled out a residual functional capacity
assessment. (A.R. 456). He opined that due to his mental impairments, Mr. Gerow would be off
task 15% or more of an 8 hour workday in the following areas: maintain attention and
concentration for extended periods of time, perform activities within a schedule, sustain an
ordinary routine without special supervision, and complete a normal workday or workweek
without interruption from psychologically based symptoms. (A.R. 457). He also noted that Mr.
Gerow would be off task 15% or more of the workday in accepting instructions and responding
appropriately to criticism from supervisors and getting along with coworkers without distracting
them or exhibiting behavioral extremes. (A.R. 457). Dr. Schafer also opined that Mr. Gerow
would be limited in responding appropriately to changes in the work setting, traveling in
unfamiliar places or using public transportation, and setting realistic goals or making plans
independently of others. (A.R. 458). Had these limitations been adopted by the ALJ, it would
have directed a finding of disabled. However, the ALJ gave this opinion “little weight”. (A.R.
18). The ALJ’s stated reasons for rejecting the opinion of a treating psychiatrist are 1) it was the
first time Dr. Schaefer had seen Mr. Gerow; 2) his findings were based on Mr. Gerow’s
subjective reports; and 3) his opinions are not supported by the objective medical evidence.
(A.R. 18).
The Commissioner acknowledges that the ALJ’s finding that Dr. Schaefer had only seen
Mr. Gerow once is erroneous, however, she argues that the ALJ “reasonably considered the short
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duration of their treatment relationship.” (Dkt. 20 at 13). This Court cannot agree. Had the ALJ
accurately characterized and understood Dr. Schaefer’s treating history with Mr. Gerow, the ALJ
may have given the opinion more weight which could impact the RFC assessment and credibility
evaluation. Therefore, the Court remands the ALJ’s decision to allow the opinion of Dr. Clark
to be analyzed and weighed and for further explanation of his reasons for assigning the opinions
of Dr. Shaefer little weight.
II.

The ALJ Erred by Failing to Explain How the RFC Accounts for Mr.
Gerow’s Mental Limitations.

Mr. Gerow argues that the ALJ’s RFC assessment failed to properly account for his
finding that Mr. Gerow had moderate difficulties in concentration, persistence, and pace, and
moderate difficulties in maintaining social functioning. (A.R. 13). The Commissioner argues
that the ALJ’s limitation to unskilled work adequately addressed these limitations. (Dkt. 20 at
20). As support for this premise, she cites to the case of Vigil v. Colvin, 805 F.3d 1199, 1204
(10th Cir. 2015). However, Vigil is clear that there are cases where a limitation to unskilled work
does not adequately address a claimant’s mental limitations. Id. citing Chapo v. Astrue, 682 F.3d
1285, 1290 n.3 (10th Cir. 2012). The Court finds this to be one of those cases. Social Security
Ruling 85-15 states that there is a distinction between mental functions and skill level:
Because response to the demands of work is highly individualized, the skill level
of a position is not necessarily related to the difficulty an individual will have in
meeting the demands of the job. A claimant’s condition may make performance
of an unskilled job as difficult as an objectively more demanding job….Any
impairment-related limitations created by an individual’s response to demand of
work …must be reflected in the RFC assessment.
In this case, the ALJ made very few specific findings as to how Mr. Gerow’s moderate
limitation in concentration, persistence, and pace would impact his RFC. This makes it difficult
for this Court to find that a limitation to simple work adequately addresses Mr. Gerow’s
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limitations. The ALJ did adequately address Mr. Gerow’s limitations in social functioning by
limiting him to no more than occasional interaction with co-workers, supervisors, and the general
public. However, the ALJ’s failure to specifically address Mr. Gerow’s impairments in
concentration, persistence, and pace in his RFC is an error that requires remand of the decision.
III.

On Remand the ALJ Will Re-examine Mr. Gerow’s Credibility in Light of
the Treating Source Opinions and Mental RFC Assessment.

Finally, Mr. Gerow argues that the ALJ did not properly evaluate his credibility due to
errors in the ALJ’s recital of Mr. Gerow’s treatment history and activities of daily living and his
failure to acknowledge Mr. Gerow’s difficulty in affording treatment, as well as, his reports of
medication side-effects. “When evaluating the credibility of an individual’s statements, the
adjudicator must consider the entire case record and give specific reasons for the weight given to
the individual’s statements.” Social Security Ruling (“SSR”) 96-7p; see also, McGoffin v.
Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002)(“findings as to credibility should be closed and
affirmatively linked to substantial evidence and not just a conclusion the guise of findings.”)
citing Huston v. Bowen, 838 F. 2d 1125, 1133 (10th Cir. 1988).
In this case, the Court finds that the ALJ’s analysis of Mr. Gerow’s credibility is weak
and may be impacted by the ALJ’s failure to properly evaluate the opinions of Mr. Gerow’s
treating physicians and his failure to properly evaluate Mr. Gerow’s mental RFC. For this
reason, the Court instructs that on remand, the ALJ will re-evaluate Mr. Gerow’s credibility in
light of his re-examination of the medical opinion evidence and Mr. Gerow’s mental RFC.
CONCLUSION AND ORDER
For the reasons set forth above, the Court REVERSES and REMANDS this case to the
Commissioner. On remand, the Commissioner will specifically consider the evidence from Drs.
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Clark and Shaefer and how these opinions impact the ALJ’s findings as to Mr. Gerow’s RFC and
credibility.

DATED this 19th of December 2016.

__________________________________
Evelyn J. Furse
United States Magistrate Judge

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