Harris v. Colvin

Filing 33

MEMORANDUM DECISION AND ORDER - The Court REVERSES and REMANDS this case to the Commissioner. On remand, the Commissioner will specifically reconsider the evidence of Dr. Pasimio. The Court expressly makes no opinion as to whether the ALJs findings at any step of the evaluation process will change. Nonetheless, on remand the ALJ should address the aforementioned errors and evaluate the evidence as instructed above. Signed by Magistrate Judge Dustin B. Pead on 6/16/2017. (las)

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

MICHAEL S. HARRIS,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 2:16-CV-00933-DBP

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

Magistrate Judge Dustin B. Pead

Defendant.

INTRODUCTION
All parties have consented to United States Magistrate Judge Dustin B. Pead conducting
all proceedings in 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. (Dkt. 14).
Plaintiff Michael S. Harris, (“Mr. Harris”) appeals the Commissioner of Social Security’s
decision denying his claim for Disability Insurance Benefits and Supplemental Security Income
under Titles II and XVI of the Social Security Act, 42 U.S.C.§§401-433. (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.
PROCEDURAL BACKGROUND
Mr. Harris filed an application for Disability and Disability Insurance Benefits, as well as
Supplemental Security Income, on October 30, 2012, alleging a disability beginning on August
30, 2012. (A.R. 156-158). Mr. Harris’s claims were initially denied on January 23, 2013, and
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upon reconsideration on July 23, 2013. (A.R. 68-69, 94-95). Thereafter, Mr. Harris timely
requested a hearing before an Administrative Law Judge (“ALJ”) on September 25, 2013. (A.R.
113-114).
An administrative hearing was held on November 7, 2014, in St. George, Utah before
Administrative Law Judge, Norman L. Bennett. (A.R. 25-51). Thereafter, on February 23, 2015,
the ALJ issued a written decision. (A.R. 6-24). In his decision, the ALJ found that Mr. Harris
suffered from the severe impairments of right shoulder rotator cuff tear and degenerative disc
disease of the cervical spine. (A.R. 11). He concluded Mr. Harris could perform sedentary
work including lifting and/or carrying ten pounds occasionally and five pounds frequently,
standing and walking two hours in an eight hour day, sitting six hours in an eight hour day, and
performing no work above right shoulder level and occasional turning of the head from side to
side. (A.R. 12). With this residual functional capacity (RFC), the ALJ found that Mr. Harris
could not perform any past relevant work, but that there was other work available that he could
perform. (A.R. 24-25). Ultimately, the ALJ concluded that Mr. Harris was not disabled. (A.R.
26).
On July 30, 2016, the Appeals Council denied Mr. Harris’s request for review of the
ALJ’s decision. (A.R. 1-4). The Appeals Council’s denial was the final administrative decision
of the Commissioner of Social Security, and Mr. Harris brought his current action to appeal the
Commissioner’s decision pursuant to 24 U.S.C. § 405(g).

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STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is limited to determining whether his
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). The reviewing Court may 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 should “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. A “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).
ANALYSIS
Mr. Harris began seeing Dr. Edward Pasimio in 2014. During his time with Mr. Harris,
Dr. Pasimio observed reduced range of motion in the shoulder and chronic cervical spine muscle
spasms. (A.R. 558, 565). Dr. Pasimio prescribed a straight cane (A.R. 712), and opined that Mr.
Harris could not lift more than 10 pounds, could not perform repetitive activities with the right
upper extremity and could do no repetitive bending, stooping, or twisting. (A.R. 562). Dr.
Pasimio stated that Mr. Harris could not lift with his injured arm. (A.R. 567). Dr. Pasimio also
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filled out a RFC assessment in which he opined that Mr. Harris was limited in his ability to use
his upper extremities and that his impairments would interfere with his ability to concentrate 510% of the workday. (A.R. 710). He further concluded that Mr. Harris would be absent from
work 4 or more days each month due to his impairments and would be less than 50% efficient as
an average worker due, in part, to his constant need for pain medication that affected his mental
acuity. (A.R. 711).
On appeal, Mr. Harris raises one main issue. Specifically, Mr. Harris asserts that the ALJ
erred in his evaluation of the medical opinion evidence from his treating physician Dr. Pasimio.
For the reasons set forth below, the Court agrees and remands the ALJ’s decision for further
analysis.
The ALJ Erred In His Evaluation of the Opinion Evidence from Dr. Pasimio.
Mr. Harris challenges the ALJ’s evaluation of the opinion of his treating physician Dr.
Edward Pasimio. When evaluating a treating source opinion, the Regulations set out a two-part
test for the ALJ to follow in order to determine 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 assigned to the treating source opinion and the
reasons stated must be “sufficiently specific to make clear to any subsequent reviewers the

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weight the adjudication gave to the treating source’s medical opinion and the reasons for that
weight.” Id. (quoting SSR 96-2p).
Mr. Harris submitted three opinions from Dr. Pasimio as to his functional limitations.
In evaluating these opinions, the ALJ stated as follows:
Accordingly, I find that the opinions of Dr. Hensen (sic)and Dr. Pasimio that the
claimant was unable to work is reserved to me. (Exhibits 9F, 25F). Their
opinions are also inconsistent with examination findings in Exhibit 27F, and with
Dr. Pasimio’s opinions in 19F/10 and 26F/10 that the claimant was limited to
lifting five pounds, performing no overhead reaching with the right upper
extremity and no climbing. Dr. Pasiomio’s (sic) opinions in Exhibit 19F/10 and
26F/10 are overall consistent with the opinion of Dr. Johnsen and are given
considerable weight.
(A.R. 16). The ALJ concluded Dr. Pasimio’s opinions were entitled to considerable
weight. The ALJ did not, however, sufficiently explain why he failed to incorporate all of
Dr. Pasimio’s stated limitations in his residual functional capacity assessment.
Specifically, the ALJ failed to discuss why he did not accept Dr. Pasimio’s opinion that
Mr. Harris could not lift with his right arm. Id.
The court recognizes that the ALJ is not required to accept the entirety of Dr. Pasimio’s
opinion and that it is well within the ALJ’s purview to adopt some parts of the opinion while
rejecting others. That said, in doing so the ALJ is required to explain why he has accepted, and
given great weight to, some portions of Dr. Pasimio’s opinions while rejecting others. An ALJ
must discuss “any uncontroverted evidence he chooses not to rely on, as well as significantly
probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (citing
Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394095 (9th Cir. 1984), and is not entitled to
pick and choose adopting only the evidence that supports his theory. Instead, the ALJ must look
to all the evidence of record. See Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004); see
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also Wilson v. Colvin, 541 Fed. App. 869, 872-874 (10th Cir. Oct. 16, 2013) (“ALJ’s failure to
weigh [the doctor’s] opinion and explain why he accepted some, but not all, of its moderate
restrictions, was not harmless error.”).
The first opinion that the ALJ gave considerable weight was a work status evaluation
filled out in August 2014. In it, Dr. Pasimio opined that Mr. Harris had the following limitations:
1) No lifting greater than 5 pounds; 2) No repetitive use of arm overhead; 3) No lifting with
injured arm; 4) No overhead activity right upper extremities; 5) No climbing; and 6) No reaching
above the shoulder. (A.R. 567). A second opinion from December 2014 was also given
“considerable weight”. It stated that Mr. Harris had the following limitations: 1)No lifting
greater than 10 pounds; 2) No repetitive use of arm overhead; and 3) No lifting with the right
arm. (A.R. 722). Both of these opinions provided that Mr. Harris should not lift with his injured
arm. (A.R. 567, 722). However, no such limitation was adopted or addressed by the ALJ.
In response, the Commissioner argues that the ALJ adequately evaluated Dr. Pasimio’s
opinions and explained his decision to give weight to some parts of the evaluation and not
others, based upon Dr. Pasimio’s own inconsistent opinions as well as inconsistencies between
Dr. Pasimio’s evaluations and Mr. Harris’s testimony. In making this argument, the
Commissioner admits that the ALJ’s decision does not contain a “contemporaneous discussion”
of inconsistencies, but encourages the Court to view the record as a whole. The Court is not
persuaded. Although the Commissioner outlines specific reasons why Dr. Pasimio’s
opinions are inconsistent, none of the inconsistencies raised are sufficiently addressed in the
ALJ’s decision such that they are clear to subsequent reviewers as to the weight given to the
opinion and the reasons for that weight. Rather, the ALJ must expressly evaluate Dr. Pasimio’s

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opinions, detail which portions of the opinion are entitled to weight and explain why those
portions are entitled to the weight given.
In this case, Dr. Pasimio’s conclusions could impact the ALJ’s findings regarding Mr.
Harris’s residual functional capacity and therefore any error, in the ALJ’s failure to explicitly
Discuss why portions of Dr. Pasimio’s opinions are not accorded any weight, is not harmless.
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 reconsider the evidence of Dr.
Pasimio. The Court expressly makes no opinion as to whether the ALJ’s findings at any step of
the evaluation process will change. Nonetheless, on remand the ALJ should address the
aforementioned errors and evaluate the evidence as instructed above.

DATED this 16th of June, 2017.

__________________________________
Dustin B. Pead
United States Magistrate Judge

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