Atilano v. Saul
Filing
33
MEMORANDUM DECISION - the Commissioners decision in this case is REVERSED AND REMANDED for the purposes of conducting additional proceedings. Signed by Magistrate Judge Paul Kohler on 2/26/21. (alf)
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FILED
2021 FEB 26
CLERK
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, SOUTHERN REGION
MEMORANDUM DECISION AND
ORDER
JESSICA ATILANO,
Plaintiff,
v.
Case #4:20-cv-00040-PK
ANDREW M. SAUL, Commissioner of
Social Security,
Magistrate Judge Paul Kohler
Defendant.
Plaintiff Jessica Atilano filed this action asking the court to remand the Commissioner of
Social Security’s decision denying her claim for disability and disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The Administrative Law Judge (ALJ)
determined Plaintiff did not qualify as disabled. After reviewing the record, the parties’ briefs,
and arguments presented at a hearing held on February 17, 2021, the court 1 will reverse and
remand the administrative ruling.
STANDARD OF REVIEW
Section 405(g) of Title 42 of the United States Code provides for judicial review of a
final decision of the Commissioner of the Social Security Administration. This court reviews the
ALJ’s decision to determine whether the record contains substantial evidence in support of the
ALJ’s factual findings and whether the ALJ applied the correct legal standards. 42 U.S.C.
§ 405(g); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Although the court considers
“whether the ALJ followed the specific rules of law that must be followed in weighing particular
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The parties consent to proceed before a magistrate judge in accordance with 28 U.S.C. § 636(c)
and Federal Rule of Civil Procedure 73.
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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 omitted).
The ALJ’s factual findings will stand if supported by substantial evidence. 42 U.S.C.
§ 405(g). The substantial evidence standard “requires more than a scintilla, but less than a
preponderance.” Lax, 489 F.3d at 1084. “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373
F.3d 1116, 1118 (10th Cir. 2004) (quoting Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir.
2003)). “A decision is not based on substantial evidence if it is overwhelmed by other evidence
or if there is a mere scintilla of evidence supporting it.” Id. (internal quotation marks omitted).
Rather than mechanically accepting the ALJ’s findings, the court will “‘examine the record as a
whole, including whatever in the record fairly detracts from the weight of the [ALJ’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) (quoting Casias v. Sec’y of Health & Human Servs.,
933 F.2d 799, 800–01 (10th Cir. 1991)). “‘The possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s findings from being
supported by substantial evidence.’” Lax, 489 F.3d at 1084 (quoting Zoltanski v. Fed. Aviation
Admin., 372 F.3d 1195, 1200 (10th Cir. 2004)). Moreover, the court may not substitute its
judgment for that of the ALJ. Langley, 373 F.3d at 1118.
In addition, the court reviews whether the ALJ applied the correct legal standards. The
court may reverse where the ALJ fails to do so. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th
Cir. 1994) (“[T]he failure to apply proper legal standards may, under the appropriate
circumstances, be sufficient grounds for reversal independent of the substantial evidence
analysis.”); Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (“[I]f the ALJ failed to
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apply the correct legal test, there is a ground for reversal apart from a lack of substantial
evidence.”). Sufficient grounds for reversal also arise where the ALJ fails “to provide this court
with a sufficient basis to determine that appropriate legal principals have been followed.”
Andrade v. Sec’y of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993) (citation
omitted).
APPLICABLE LAW
The Social Security 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). Under the Social Security Act, an
individual is considered 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 Social
Security Act, the ALJ employs a five-part sequential evaluation. The analysis requires the ALJ
to consider whether:
1) The claimant presently engages in substantial gainful activity;
2) The claimant has a medically severe physical or mental impairment;
3) The impairment is equivalent to one of the impairments listed in the appendix of the
relevant disability regulation which precludes substantial gainful activity;
4) The claimant possesses a residual functional capacity to perform his or her past work;
and
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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(a)(4); Bowen v. Yuckert, 482 U.S. 137, 140–42 (1987); Williams v.
Bowen, 844 F.2d 748, 750–51 (10th Cir. 1988). The claimant has the burden, in the first four
steps, of establishing the disability. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). At step
five, the burden shifts to the Commissioner to show the claimant retains the ability to perform
other work existing in the national economy. Id.
CASE HISTORY
Plaintiff, who was 28 years old at the time she alleges disability, filed for benefits in
February 2017. She alleges disability due to multiple impairments including, Chiari
malformation, Thyroidectomy, degenerative disc disease, neck and shoulder pain, chronic
sinusitis, intellectual disability, depression, and anxiety. (Tr. 192.) Plaintiff did not graduate from
high school and has not earned a GED. She has no past relevant work, having only worked part
time in a few positions including at Ross and at a gas station. She lives with her husband and
four kids.
Plaintiff and her attorney appeared at a May 29, 2019, administrative hearing where an
ALJ heard testimony from Plaintiff and a vocational expert (Tr. 39-68). The ALJ subsequently
issued a June 2019 decision that followed the regulatory five-step sequential evaluation in
determining Plaintiff was not disabled (see Tr. 17-32). See 20 C.F.R. § 416.920. The ALJ found
Plaintiff had the following severe impairments: degenerative disc disase, Chiari malformation,
migraine headaches, borderline intellectual functioning, affective/mood disorder, anxiety
disorder, and obesity. (Tr. 19.) None of her impairments, either alone or in combination, were
found to meet or equal a listing. The ALJ found Plaintiff had the residual functional capacity
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(RFC) to perform medium work with certain limitations. The ALJ then relied on vocational
expert testimony in finding that Plaintiff could perform work existing in significant numbers in
the national economy, including the representative occupations of (1) dining room attendant; (2)
hospital cleaner; (3) linen room attendant; (4) cashier; (5) fast food worker; and (6) sales
attendant.
Accordingly, the ALJ found Plaintiff was not disabled within the meaning of the Act (Tr.
31-32.) The Appeals Council denied Plaintiff’s subsequent request for review, thereby rendering
the ALJ’s decision the Commissioner’s final administrative decision for purposes of judicial
review. See 20 C.F.R. § 416.1481. This Court has jurisdiction under 42 U.S.C. §§ 405(g).
PLAINTIFF’S ARGUMENTS
On appeal, Plaintiff raises three questions that form the basis for her arguments:
1. Whether the ALJ erred in his evaluation of Ms. Atilano’s headaches?
2. Whether the ALJ erred in his evaluation of Dr. Kockler’s medical opinion?
3. Whether the ALJ erred by making inappropriate credibility findings?
ANAYLSIS
I.
Headaches
Ms. Atilano argues the ALJ erred in the evaluation of her headaches. She was diagnosed
with a Chiari malformation and the most common symptom associated with that disorder is
headaches. The ALJ found Plaintiff’s headaches to be a severe impairment, but according to
Plaintiff, the ALJ failed to properly take into account her headaches by not including any
headache limitations in sustaining work.
Plaintiff also takes issue with the ALJ’s step three determination, arguing the ALJ failed
to properly determine whether the migraine headaches met or equaled a Listing. In support she
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cites to Thomas v. Covlin, 69 F.Supp.3d 1174, 1178 (D.Colo. 2014), a case in this circuit from
the District of Colorado. In Thomas, the plaintiff alleged disability on the basis of a number of
ailments including migraine headaches. The court noted that although there is no separate listing
for migraines, “the Commissioner has stated that the most analogous listing is section 11.03,
which sets forth criteria for non-convulsive epilepsy.” Id. at 1178; see 20 C.F.R. Pt. 404, Subpt.
P, App. 1, § 11.02. None of the opinions in the record addressed the plaintiff’s migraines “or
assessed whether his complaints were medically equivalent to the [listings].” Id. Rather, there
was a “Single Decision Maker,” who is not a medical professional, finding that the migraines did
not equal a Listing. The court noted this does not satisfy the requirement for finding medical
equivalence supported by the opinion of a physician or psychologist. The court, then, reluctantly
remanded, finding the lack of a proper Step Three determination regarding migraines to be in
error.
“For a claimant to show that his impairment matches a listing, it must meet all of the
specified medical criteria. An impairment that manifests only some of those criteria, no matter
how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 891
(1990). The Commissioner argues Ms. Atilano failed to offer evidence that she meets all the
criteria of Listing 11.02. The burden of proof at step three is on the claimant, see Fischer-Ross v.
Branhart, 431 F.3d 729, 733 (10th Cir. 2005), and Plaintiff failed to meet the burden according to
the Commissioner. The Commissioner points to state agency physician Kim Heaton, who opined
Plaintiff did not meet or medically equal any listed impairment, including any neurological
disorders. (Tr. 78.) And, the ALJ assigned significant weight to the medical consultants’
opinions. (Tr. 27.) The Commissioner also points to the lack of evidence in the record regarding
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headaches, and instead, notes that it is mostly comprised of Plaintiff’s subjective complaints,
along with those of her friends and family.
As noted by the Thomas court, “At step 3 of the sequential evaluation, the ALJ must
determine whether the claimant's alleged impairments, singly or in combination, meet or
medically equal one of the impairments set forth in the Commissioner's Listing of Impairments
(the “listings”).” The ALJ did thoroughly analyze obesity (Tr. 19-20) and mental impairments at
step three. (Tr. 20-23.) And, there is no alleged errors at step three as to any other serious
impairment. The Thomas facts are slightly different than the instant case--the difference between
the absence of a physician’s report and the possible failure of an ALJ to base his decision on an
existing report. Nevertheless, the court finds the reasoning helpful and persuasive.
A close reading of the ALJ’s decision reveals there is not an analysis of the migraine
headaches at step three, which the ALJ found to be severe. The ALJ did not cite to Dr. Heaton or
analyze Listing 11.02. In short, the Commissioner’s arguments are interesting, but the court may
not “create or adopt post-hoc rationalizations to support the ALJ's decision that are not apparent
from the ALJ's decision itself.” Haga v. Astrue, 482 F.3d 1205, 1207–08 (10th Cir. 2007). See,
e.g., Allen v. Barnhart, 357 F.3d 1140, 1142-1145 (10th Cir.2004) (holding that district court's
“post hoc effort to salvage the ALJ's decision would require us to overstep our institutional role
and usurp essential functions committed in the first instance to the administrative process”).
“[A]n ALJ's findings at other steps of the sequential process may provide a proper basis
for upholding a step three conclusion that a claimant's impairments do not meet or equal any
listed impairment.” Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). The problem
in this case, however, is the fact that there is not a conclusion by the ALJ, or any analysis of the
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headaches at step three. This creates a gap the court cannot cross by inference. It is on this basis
the court will remand the case.
II.
Dr. Kockler’s opinions
Dr. Kockler offered two opinions. The first was based on a January 2017 examination
where he observed that Plaintiff was substantially normal in many respects. There were some
problems in a few areas, however, and these prompted the recommendation for Plaintiff to be
referred for vocational rehabilitation and career guidance and training. The ALJ performed a
thorough analysis of Dr. Kockler’s opinions, and the ALJ assigned “some weight” to Dr.
Kockler’s mental RFC assessment. (Tr. 29.)
In April 2019, over two years later, Dr. Kockler signed a Treating Source Statement of
Mental Limitations, wherein Dr. Kockler opined much more significant functional limitations
than before. The ALJ rejected that opinion finding it “unpersuasive” based on the fact that Dr.
Kockler had not seen Plaintiff in over two years at the time he signed the statement, and that it
was based only on conclusions without any rationale.
Plaintiff seeks to invoke the treating source analysis as to the 2019 opinion, and relies
heavily on it, arguing the ALJ erred in the evaluation of it. Plaintiff also points to the use of the
word “unpersuasive” as inconsistent with the requirements of the regulations in analyzing the
opinion. If the 2019 opinion had been properly adopted, Plaintiff asserts that she would have
been found disabled.
The court in not persuaded by Plaintiff’s arguments on this issue. A statement issued two
years later, without any further examinations, is tenuous, especially when it is substantially
different and more severe than what was offered previously. In addition, the ALJ offered credible
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explanations for discounting it. The ALJ assigned Dr. Kockler’s opinions “some weight” and the
use of the word unpersuasive later on is not a sufficient basis to remand.
III.
Credibility findings
Plaintiff attacks the ALJ’s credibility determination on the ground that the ALJ
mischaracterized her opioid use characterizing it as misuse and focusing on a warning she
received. Next, Plaintiff asserts it was improper to take into account any motivation for filing a
disability claim. The ALJ noted it was her third application for benefits, and this was improper to
include in any credibility determination. Finally, the record does not support the ALJ’s assertions
of noncompliance with her sleep apnea diagnosis.
An ALJ is to consider a claimant’s activities and treatment as part of his analysis. See 20
C.F.R. §§ 416.929. The ALJ did consider and cite to the record as a basis for discounting
Plaintiff’s alleged symptoms. These references included work at home and with her kids, a lack
of objective medical evidence supporting the level of disability she claimed, and instances where
treatment alleviated Plaintiff’s symptoms. On the entirety of the record, the court is not
persuaded that these two issues--the opioid use and mentioning multiple applications--warrants a
remand. There is sufficient evidence in the record, and evidence cited to by the ALJ in his
decision, that supports the weight the ALJ gave to Plaintiff’s allegations. The ALJ’s use of the
opioid and multiple application issue was not the best idea in this case, but the court is not
convinced that it overshadowed the decision. The noncompliance with sleep apnea presents a
little more difficult question as it appears the ALJ missed the mark on it, but the court is
similarly persuaded it is not enough to warrant a remand, because there is enough other evidence
that sufficiently supports the ALJ’s determination. Though, of course, the Commissioner may
consider these issues during the next phase of the case.
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CONCLUSION
Accordingly, IT IS HEREBY ORDERED that the Commissioner’s decision in this case
is REVERSED AND REMANDED pursuant to sentence four of 42 U.S.C. § 405 for the
purposes of conducting additional proceedings as set forth herein.
DATED this 26th day of February, 2021.
BY THE COURT:
_____________________________
PAUL KOHLER
United States Magistrate Judge
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