Holden v. Berryhill

Filing 27

MEMORANDUM DECISION AND ORDER - The Court REVERSES and REMANDS this matter to the Commissioner for further proceedings. Signed by Magistrate Judge Dustin B. Pead on 1/14/2019. (las)

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, SOUTHERN DIVISION
LINDA HOLDEN,
Plaintiff,
MEMORANDUM DECISION & ORDER
v.

Case No. 4:18-cv-00021-DBP
Magistrate Judge Dustin B. Pead

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

INTRODUCTION 1
Pursuant to 42 U.S.C. § 405(g), Plaintiff Linda Holden (“Plaintiff” or “Ms. Holden”)
seeks review of the Acting Commissioner of Social Security’s (the “Commissioner”) denial of
her claim for disability insurance benefits (DIB) and supplement security income (SSI) under
Titles II and XVI of the Social Security Act (the “Act”). (ECF No. 3.) Ms. Holden protectively
filed applications for DIB and SSI benefits on June 24, 2014, alleging disability beginning on
April 1, 2009. (A.R. 200-203, A.R. 204-212.) Her claims were denied initially, upon
reconsideration and in an April 25, 2017, opinion issued by Administrative Law Judge Gary
Vanderhoof (the “ALJ”). (A.R. 14-31, A.R. 72-73, A.R. 96-97.) The Appeals Council denied
Plaintiff’s request for review (A.R. 1-6), making the ALJ’s ruling the final decision for purposes

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All references to the Code of Federal Regulations (C.F.R.) are to the 2017 edition.
References are generally to Part 404 of the regulations, which addresses DIB claims under Title
II of the Social Security Act. The cited regulations have parallel citations in Part 416, which
addresses SSI claims under Title XVI.
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of judicial review. See 20 C.F.R. §§ 404.981, 422.210(a). Ms. Holden’s appeal to this court
followed. 2 Oral argument was held on December 18, 2018. (ECF No. 26.)
After consideration of the parties’ briefs, oral argument, the administrative record and
relevant legal authorities, for the reasons set forth herein, the court reverses and remands this
matter to the ALJ for further proceedings consistent with this ruling.
BACKGROUND
Plaintiff was born in 1967, completed one year of college, and worked as an office
manager and grocery clerk. (A.R. 227, 234, A.R. 267-75.) She alleges she became too disabled
to work full time in April of 2009 due to coronary artery disease, angina, headaches,
hypertension, nose bleeds and fibromyalgia. (A.R. 222, 226.) The record contains multiple
records showing Ms. Holden had coronary artery disease, previous cardiac events requiring
stents and follow-up care, and received primary care from Shivwits Clinic between April 2008
and November 2014. (A.R. 319-52, A.R. 395-421, A.R. 429-521, A.R. 585-697, A.R. 743-786.)
As relevant here, Plaintiff also received care from treating physician Claude Warner,
M.D., (“Dr. Warner”). In May 2014, Dr. Warner diagnosed Ms. Holden with fibromyalgia, along
with other impairments and conditions. 3 (A.R. 545-577, A.R. 733-742.) In January 2017, Dr.
Warner provided a “Fibromyalgia Treating Physician Data Sheet” (“Assessment”) opining that
Plaintiff could stand/walk for no more than 20 minutes at a time for up to 90 minutes of the

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All parties consented to United States Magistrate Judge Dustin B. Pead conducting all
proceedings, including entry of final judgment, with appeal to the United States Court of Appeals
for the Tenth Circuit. (ECF No. 25) ; See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
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On appeal, Plaintiff does not raise any arguments related to her other impairments or
conditions. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (The court “will
consider and discuss only those of [plaintiff’s] contentions that have been adequately briefed for
our review.”).
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workday, sit for 3-4 hours of the workday, lift no more than 10 pounds, had temperature
restrictions and would have difficulty sustaining full time work. (A.R. 787-793.)
Two state agency physicians reviewed Plaintiff’s medical record in September 2014 and
February 2015, and opined that Plaintiff’s hypertensive vascular disease and anxiety disorder
were severe impairments. (A.R. 78-79, A.R. 105-107.) The state agency physicians
acknowledged Ms. Holden’s fibromyalgia, but did not find it a severe impairment. (A.R. 78-79,
A.R. 105-107.)
THE ALJ’S DECISION
In his April 25, 2017 decision, the ALJ followed the familiar five-step sequential
evaluation for assessing disability. See 20 C.F.R. § 404.1520(a)(4). At Step 2, the ALJ found that
Plaintiff had the severe impairments of anxiety disorder, hypertension, and coronary artery
disease. At Step 3, the ALJ determined that Ms. Holden did not have an impairment or
combination of impairments that met or medically equaled a listing. (A.R. 19-21); see 20 C.F.R.,
pt. 404, subpt. P, app. 1.
At Step 4, the ALJ found that Plaintiff had the Residual Functional Capacity (“RFC”) to
perform light work 4 with the following limitations: occasionally perform postural activities;
stand for 2 to 3 hours total in an 8-hour workday; preclusion from working on ladders, ropes,
scaffolds, unprotected heights, or dangerous moving machinery; simple, non-detailed and noncomplex work; decision-making with occasional work changes; occasional interactions with coworkers and supervisors but not in enjoined projects; no work requiring a high production quota

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Light work “involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking or standing.” 20 C.F.R.
§ 404.1567 (b).
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or fast-paced activity like an assembly line, and limitation to unskilled work that is repetitive in
nature with simple, routine tasks and very few variables. (A.R. 21.) Regarding Plaintiff’s
fibromyalgia, the ALJ found that it was “not a medically determinable impairment because
neither of the two sets of criteria for diagnosing fibromyalgia described in section II.A and II.B
of SSR 12-2p is met.” (A.R. 27). Alternatively, the ALJ concluded that Plaintiff’s fibromyalgia
was “stable.” (Id.)
Based on vocational expert testimony, the ALJ found that Plaintiff could not perform her
past relevant work, but could perform other unskilled jobs available in the national economy.
(A.R. 28-30.) Representative occupations identified included addresser, document preparation
clerk and systems surveillance monitor. (A.R. 29.)
As a result, under the five-step disability framework, the ALJ concluded that Ms. Holden
was “not disabled.” (A.R. 29-30.)
STANDARD OF REVIEW
The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied. Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014) (citation omitted).
The ALJ’s findings “shall be conclusive” if supported by substantial evidence. 42 U.S.C.
§ 405(g); see also Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). Substantial evidence is
“more than a mere scintilla [;]” it is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420,
28 L. Ed. 2d 842 (1971) (quotation and citation omitted). When reviewing the record, the 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).

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A “failure to apply the correct legal standard or to provide this court with a sufficient basis to
determine that the appropriate legal principles have been followed [are] grounds for reversal.”
Jensen v. Barnhart, 436 F.3d 1164, 1165 (10th Cir. 2005) (quotations and citation omitted).
ISSUES
On appeal, Ms. Holden advances two main arguments. First she asserts the ALJ failed to
properly evaluate her fibromyalgia. Second, Plaintiff contends the ALJ’s conclusion that she can
perform work in the national economy is not supported by substantial evidence.

DECISION
I.

THE ALJ FAILED TO PROPERLY EVALUATE PLAINTIFF’S
FIBROMYALGIA

Dr. Warner diagnosed Plaintiff with fibromyalgia. On appeal, Ms. Holden contends the ALJ
erred in failing to evaluate the evidence showing that her fibromyalgia is a severe impairment
with functional limitations.
Social Security Ruling (“SSR” or “Ruling”) 12-2p describes evidence the ALJ must consider
in determining if a claimant’s fibromyalgia is a Medically Determinable Impairment (“MDR”).
See SSR 12-2p. In relevant part, SSR 12-2p states:
We will find that a person has an MDI of FM [fibromyalgia] if the physician
diagnosed FM and provides the evidence we describe in section II.A. or section
II.B., and the physician’s diagnosis is not inconsistent with the other evidence in
the person’s case record.
Id. The Ruling further explains that in order to meet section II.A., based on the 1990 American
College of Rheumatology Criteria for the Classification of Fibromyalgia, a claimant must show:
a history of widespread pain that lasts at least 3 months, at least 11 positive tender points on
physical examination, and evidence that other disorders that could cause the symptoms were

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excluded. Id. The Ruling also states, in order to meet section II.B., based on the 2010 ACR
Preliminary Diagnostic Criteria, a claimant must show: a history of widespread pain, repeated
manifestations of six or more fibromyalgia symptoms and evidence that other disorders that
could cause the symptoms were excluded. Id.
Upon review, the court concludes that the ALJ has not supported his findings with
substantial evidence or provided a sufficient basis to determine if the appropriate principles were
followed. Although there is no discussion of the ALJ’s reasons for not including fibromyalgia as
a severe impairment at Step 2 (A.R. 19), he does discuss fibromyalgia later in the decision. There
he concludes, without explanation, that Plaintiff’s fibromyalgia was “not a medically
determinable impairment because neither of the two sets of criteria for diagnosing fibromyalgia
described in sections II.A and II.B of SSR 12-2 is met.” (A.R. 26-27.) In reaching this
conclusion, however, the ALJ fails to apply any evidence to the criteria or explain what factors
of the criteria are not met. Further, to the contrary, Dr. Warner’s Assessment indicates that
Plaintiff met both the 1990 and the 2010 criteria, as required under sections II.A and II.B. (A.R.
788-789); see also SSR 12-2p.
Next, while acknowledging Dr. Warner as an acceptable medical source, the ALJ
states that “a physician’s diagnosis alone is not sufficient to support of a finding of fibromyalgia
as a medically determinable impairment.” (A.R. 26.) In so concluding, the ALJ does not
acknowledge, discuss or resolve conflict between evidence of record supporting Dr. Warner’s
diagnosis, including her Assessment and treatment notes (A.R. 553, A.R. 556-557) (finding
Plaintiff “clearly painful in the typical trigger points”). Nor did the ALJ reconcile his findings
with other records and tests in the record that identify symptoms and exclude disorders that could
cause fibromyalgia-like symptoms. See (A.R. 398-400, A.R. 410, A.R. 503-504, A.R. 542, A.R.

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552-553, A.R. 556-557, A.R. 559, A.R. 589, A.R. 598, A.R. 602, A.R. 703-704, A.R. 707-714,
A.R. 720, A.R. 737.)
Finally, although the ALJ rejects Plaintiff’s fibromyalgia as a severe impairment, he also
finds her fibromyalgia to be “stable”. (A.R. 27.) It is unclear how this reference to stability
reflects the severity of Plaintiff’s fibromyalgia. In general, the term “stable” describes a
condition that is unchanging, either for better or for worse. Therefore, the “stability” of Ms.
Holden’s “stability” fibromyalgia should not be considered a proper indicator of whether or not it
is a severe impairment.
The Commissioner urges the Court to conclude that, even if the findings are not
supported by substantial evidence, the ALJ’s decision is still adequate because other severe
impairments were found and included in the RFC. Yet, the court will not apply a harmless error
analysis. See Thomas v. Colvin, 826 F.3d 956, 959 (7th Cir. 2016) (“conjecture that the ALJ
would have reached the same conclusion had he explicitly addressed the alternative set of criteria
invokes an overly broad conception of harmless error of the type we have criticized
previously.”). Indeed, the effect of the ALJ’s failure to consider fibromyalgia as a severe
impairment or explain his decision not to do so, ultimately led to a failure to include in Ms.
Holden’s RFC any limitations ascribed to her fibromyalgia. 5
Overall, the ALJ does not support his determination that Ms. Holden’s fibromyalgia was
not a severe impairment with substantial evidence. The ALJ must provide explanation and offer

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Limitations related to Plaintiff’s fibromyalgia include: standing in 20 minute intervals
for a total of 1.5 hours in an 8-hour workday, sitting for 3 to 4 hours in an 8-hour workday,
lifting occasionally 10 pounds, tolerating concentrated exposure to extreme cold, tolerating
moderate exposure to extreme heat, interfering with attention and concentration 20% or more of
the workday, being off task 20% or more of the workday, being absent from work 4 days or more
per month, and being less than 50% as efficient as a normal worker. (A.R. 791-93, A.R. 703-04.)
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reasons, supported by evidence, for rejecting probative evidence of Plaintiff’s fibromyalgia. See
Revels v. Berryhill, 874 F.3d 648, 662 (Cir. 2017) (remanding where ALJ failed to properly
analyze claimant’s fibromyalgia under SSR 12-2p); Selian v. Astrue, 708 F.3d 409, 419-20
(reversing and remanding where ALJ failed to consider treating source opinion diagnosing
fibromyalgia and establish limitation per criteria in 12-2p). Accordingly, the decision is reversed
and remanded for further consideration of Plaintiff’s fibromyalgia consistent with the
requirements of SSR 12-2p and the evidence of record.
II.

THE ALJ’S FINDING THAT OTHER WORK EXISTS IN SIGNIFICANT
NUMBERS IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
At Step five of the sequential analysis, the burden of establishing that other work exists

shifts to the Commissioner or ALJ. See Daniels v. Apfel, 154 F.3d 1129, 1132 (10th Cir. 1998).
This burden can be met either by (1) the testimony of a Vocational Expert, or (2) by reference to
the Medical-Vocational Guides or grids. 6 Id. In this case, the ALJ relied on the testimony of a
Vocational Expert. (A.R. 66.)
Plaintiff contends the ALJ’s decision is in error because the job of “Addresser” is
obsolete, and the occupations of “Document Preparer” and “Systems Surveillance” require a
reasoning level that is not compatible with her RFC. See DOT 249.587-018, 379.367-010. The
Commissioner counters that any inconsistencies are the result of reasoning level comparisons
between different vocations that are related to a claimant’s educational background, as opposed
to the job’s mental or physical skill level requirements. See Mounts v. Astrue, 479 F. App’x 860,
868 (10th Cir. 2011) (unpublished) (“Job descriptions in the Dictionary of Occupational Titles

Grids are matrices of “four factors identified by Congress—physical ability, age,
education, and work experience—and set forth rules that identify whether jobs requiring specific
combinations of these factors exist in significant numbers in the national economy.” Heckler v.
Campbell, 461 U.S. 458, 461-62, 76 L. Ed. 2d 66, 103 S. Ct. 1952 (1983) (footnotes omitted).
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contain several elements required to perform a specific jobs, including a claimant’s GED, which
is the level of formal and informal education required to perform a specific job.”).
In Hackett v. Barnhart, the Tenth Circuit found that the jobs identified by the Vocational
Expert were not compatible with the Plaintiff’s RFC, noting that the RFC’s limitation to “simple
and routine work tasks . . . seems inconsistent with the demands of level-three reasoning.” 395
F.3d 1168, 1176 (10th Cir. 2005). As a result, the Hackett court remanded the issue to further
address “the apparent conflict between Plaintiff’s inability to perform more than simple and
repetitive tasks, and the level three reasoning required by the jobs identified as appropriate for
her by the VE.” Id.; see also Paulek v. Colvin, 662 Fed. Appx. 588, 594 (10th Cir. 2016); Lucy v.
Chater, 113 F.3d 905, 909 (8th Cir. 1997).
Here, the ALJ’s RFC limits Ms. Holden to “unskilled, repetitive” work that is “simple,
non-detailed and non-complex” and has a “routine task nature. . . [with]. . . very few variables.
(A.R. 21.) A reasoning level of 3, which all of the jobs cited by the ALJ require, demands the
ability to carry out detailed instructions and is therefore facially inconsistent with the Plaintiff’s
RFC. Hackett, 395 F.3d at 1176. Given this discrepancy, on remand, the ALJ should elicit
further explanation from the vocational expert that will resolve the conflict between jobs
identified and Plaintiff’s abilities as set forth in the RFC.
ORDER
Under the relevant standard of review, the court finds the ALJ’s conclusions were not
supported by substantial evidence. Accordingly, for the reasons set forth above, the Court
REVERSES and REMANDS this matter to the Commissioner for further proceedings
consistent with this Memorandum Decision and Order.

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Dated this 14th the day of January, 2019.
By the Court:

Dustin B. Pead
United States Magistrate Judge

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