WILLIAM J. MARTÍNEZ, District Judge.
This is a social security benefits appeal brought under 42 U.S.C. § 405(g). Plaintiff D'Anna L. Houseman ("Plaintiff") challenges the final decision of Defendant, the Commissioner of Social Security ("Commissioner") denying her application for disability and social security benefits. The denial was affirmed by an administrative law judge ("ALJ"), who ruled Plaintiff was not disabled within the meaning of the Social Security Act ("Act"). This appeal followed.
For the reasons set forth below, the ALJ's denial of benefits is reversed and the case is remanded to the Commissioner for rehearing.
Plaintiff filed her application for disability insurance on August 15, 2009 (Admin. Record ("R.") 216-218) Following the initial administrative denial on May 4, 2010 (R. 116-121), Plaintiff then requested a hearing before the ALJ on April 13, 2010. (R. 124-125). Two hearings were held in Colorado Springs on February 8, 2011 and June 1, 2011 before ALJ Kathryn D. Burgchardt. The ALJ issued an unfavorable decision on July 27, 2011, finding Plaintiff "not disabled." (R. 33-41, 42-74). The Appeals Council declined to review the ALJ's decision on July 18, 2012 (R. 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review. This appeal followed.
Heavily contested before the Court are two medical conditions that the ALJ found as non-severe—specifically: lichen planus, and chiari malformation type I. For the purposes of background, examination of each condition is relevant to disposition of the appeal.
With respect to lichen planus, Plaintiff was evaluated by physicians at the University of Colorado dermatology clinic for erosive vulvovaginal and oral lichen planus in March 2010.
Plaintiff underwent additional reproductive tract biopsies in February 2011. (R. 806.) Svetlana Tsirkin MD reported an "extremely scarred perineum" and that Plaintiff's vaginal tissue would bleed when touched, and noted that her condition was "worsening." (Id.) The biopsy had findings consistent with an early phase of lichen sclerosis (scarring). (R. 809).
With respect to her chiari malformation type I condition, Plaintiff has a history of migraine headaches. (ECF No. 13 at 19.) On February 26, 2010, Plaintiff was examined by the consultative examiner Timothy R. Hudson MD. In his report, Dr. Hudson observed that Plaintiff had "[b]alance difficulties secondary to her chiari malformation." (R. 533). Dr. Hudson's observed that Plaintiff exhibited "concentration difficulties" and exhibited confusion during the relatively short examination, and reported that there be follow up in regards to her migraines with [a] trained neurologist." (R. 532)
On July 27, 2011, the ALJ issued a written decision in accordance with the Commissioner's five-step sequential evaluation process. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since October 30, 2006. (R. 22.) The ALJ determined at step two that Plaintiff's "fibromyalgia; migraines; degenerative joint disease bilateral knees status post knee replacements; carpal tunnel syndrome status post release" were severe impairments, but that her chiari and lichen planus impairments were not. (R. 22-23). At step three, the ALJ concluded that Plaintiff's impairments did not meet the criteria of any of the per se disabling impairments listed at 20 C.F.R. pt. 404, subpart P, app. 1. (R. 23).
The ALJ then found that Plaintiff could perform sedentary work with the following limitations—i.e, that Plaintiff could lift or carry less than ten pounds frequently and ten pounds occasionally; could stand and/or walk, with normal breaks, for a total of two hours in an eight hour workday and could require the use of a cane; could sit with normal breaks, for a total of six house in an eight hour workday; required the option to sit or stand every half-hour to an hour for five minutes at a time; could perform pushing and pulling motions with her upper extremities with the aforementioned weight restriction, but should avoid pushing or pulling motion with her legs, moving machinery, and extreme heat and cold; and could occasionally climb, stoop, crouch, kneel, and crawl, and should not climb ladders, ropes, or scaffolds. (R. 23-24).
Based on this residual functional capacity finding, the ALJ determined at step four that Plaintiff was not disabled because she could return to her past relevant work as a receptionist. (R. 26-27). In addition, based on vocational expert testimony, the ALJ made an alternative step five finding that Plaintiff was not disabled because she could perform other work existing in significant numbers in the national economy. (R. 27-28). The ALJ found that Plaintiff had not been under a disability—and the claim for benefits was, therefore, denied.
The Court reviews adverse decisions of the Commissioner to determine (1) whether substantial evidence in the record as a whole supports the factual findings, and (2) whether the correct legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. "It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
Although a district court will "not reweigh the evidence or retry the case," a district court "meticulously examines the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007); see also 42 U.S.C. § 405(g). Evidence is not substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In reviewing the Commissioner's decision, the Court may neither reweigh the evidence, nor substitute its judgment for that of the agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). Moreover, the ALJ may "not make speculative inferences from medical reports and may reject a treating physician's opinion outright only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion." McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002).
As the Tenth Circuit observed in Baca v. Dep't of Health & Human Servs., 5 F.3d 476, 480 (10th Cir. 1993), the ALJ also has a basic duty of inquiry to "fully and fairly develop the record as to material issues." Id. This duty exists even when the claimant, as here, is represented by counsel. Id. at 480. See also Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (stating that "[a]n ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking parts favorable to nondisability").
The Appeals Council denied Plaintiff's request for review on the ALJ's decision. Plaintiff then filed this action seeking review of that decision. On appeal, Plaintiff raises several interrelated issues: (1) whether the ALJ failed to evaluate at step two of the sequential evaluation process, Plaintiff's lichen planus, obesity
Because the Court finds that the ALJ's findings at steps two through four were not supported by substantial evidence and did not include all of the limitations contained in the medical opinions, the Court finds that this error requires remand. Since these same deficiencies tainted the ALJ's hypothetical questions to the vocational expert, the Court also finds that this issue warrants remand. See Miller v. Chater, 99 F.3d 972, 978 (10th Cir. 1996) (recognizing that remand is appropriate where further fact finding is needed).
Plaintiff contends that the ALJ failed to evaluate the substantial evidence in the record at steps two through five of the sequential evaluation process. Specifically, the ALJ failed to properly evaluate and make findings with respect to Plaintiff's non-severe impairments because she did not rely upon substantial evidence in the record—including evidence of her treating physicians.
Pursuant to 20 C.F.R. § 404.1520, step two of the sequential evaluation process requires that the ALJ assess a claimant's medically determinable severe impairments. An "impairment" is defined as an anatomical, physiological, or psychological abnormality which can be shown by medically acceptable clinical and laboratory diagnostic techniques. See 20 C.F.R. §§ 404.1508 and 416.908. All a plaintiff needs to provide is a "de minimis" showing of medical severity. See Williams v. Bowen, 844 F.2d 749 (10th Cir. 1988). A "severe" impairment is one that significantly limits the claimant's physical or mental ability to perform basic work activities. See 20 C.F.R. §§ 404.1521; 404.1529; 416.921 and 416.929. See Social Security Rulings 85-28; 96-3p and 96-4p.
The ALJ found that Plaintiff had the following severe impairments: fibromyalgia, migraines, degenerative joint disease bilateral knees status post keen replacements; carpal tunnel syndrome status post release. (R. 22). The ALJ also determined that Plaintiff's lichen planus
Much of Plaintiff's argument in this Court focused on the ALJ's finding that Plaintiff's lichen planus was not considered a severe impairment at step two of the sequential evaluation process. (ECF No. 13 at 17.) Plaintiff contends that this finding is not supported by substantial evidence and constitutes reversible error because it is overwhelmed by evidence of treating physicians who proffer evidence to the contrary. (Id.) The Court agrees.
The evidence of the treating physicians is addressed in detail in Plaintiff's briefing. (ECF No. 13 at 12-17.) The evidence is incorporated herein. To illustrate, the Court summarizes the following medical reports to demonstrate the evidence of Plaintiff's condition (and severity of same):
(See R. 806-807; 832-835; 697-698.)
Notwithstanding the fact that the ALJ made a limited effort to analyze the medical reports above, those same reports tend to show Plaintiff's condition is one towards the severe end of the spectrum;
Alternatively, and at best, the evidence in the record creates a potential ambiguity because of the fluctuating symptoms exhibited by Plaintiff over time (a twenty year period), but if anything this should have prompted the ALJ to seek further evidence from additional physicians before finalizing her decision on July 27, 2011. Such ambiguity should have compelled the ALJ to seek such evidence to "fully and fairly develop the record." See Baca, 5 F.3d 476, 480 (10th Cir. 1993) (stating that the ALJ has a basic duty of inquiry to "fully and fairly develop the record as to material issues.")
Accordingly, the Court holds that the ALJ's finding that lichen planus was non-severe is
Plaintiff contends that because ALJ erred at step two of the sequential evaluation process, the ALJ similarly erred at step three. Because of this, Plaintiff contends that the ALJ "never addressed any of the skin impairments found in Section 8.00 of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1." (ECF No. 13 at 22.) While the Court finds in favor of Plaintiff on this issue, it will not go as far as substituting the ALJ's decision (at step three) without first remanding the decision for further consideration. This is a better approach for two reasons. First, it allows the record to be further developed as to the degree and severity of Plaintiff's lichen planus condition (singly and in combination with other conditions). Second, it affords the ALJ the opportunity to draw a legal conclusion on whether the Section 8.00 listing impairments are satisfied in view of reconsideration of the entire record. Remand is, therefore, warranted for these reasons as well. See, Salazar v. Barnhart, 486 F.3d 615, 621 (10th Cir. 2006).
Next, Plaintiff challenges the ALJ's RFC determination on the argument that is not supported by substantial evidence and fails to include limitations had the ALJ made correct findings at step two of the sequential evaluation process. (ECF No. 13 at 27.)
The RFC assessment is made by the ALJ "based on all the relevant evidence in [the claimant's] case record." 20 C.F.R. § 404.1545(a)(1). The RFC is an assessment of the most a claimant can do despite his or her limitations. Id. Examples of the types of evidence required to be considered in making an RFC assessment are the claimant's medical history, medical signs and laboratory findings, and medical source statements. Soc. Sec. Ruling (SSR) 96-8p (July 2, 1996). An ALJ must make specific RFC findings based on all of the relevant evidence in the case record. See Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996); SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996):
SSR 96-8p.
The ALJ's findings regarding the RFC must be supported by substantial evidence. See Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Plaintiff challenges the ALJ's RFC determination on four fronts. First, Plaintiff contends that the ALJ's error at step two creates a flawed analysis by the ALJ at step four of the sequential evaluation process because the ALJ has not adequately addressed the limitations and restrictions of Plaintiff's lichen planus condition since it has been classified as non-severe.
For reasons stated in steps two and three, the Court agrees with Plaintiff's position. In short, because the ALJ failed to (1) satisfy the substantiality test, and (2) fully and fairly develop the record with respect to Plaintiff's lichen planus condition, those same errors infect the RFC determination. The limitations from that condition have not been properly considered and the RFC determination is not predicated on substantial evidence This constitutes reversible error; ever more so when such limitations could be material to determining whether Plaintiff can perform past work.
The second argument is put in the alternative to the first, and intersects with the arguments made at steps two and three. Specifically, the argument goes that even if the lichen planus condition is considered `non-severe', Plaintiff contends that the ALJ never examined the condition in combination with the impairments that were found by the ALJ to be severe. (emphasis added.) (ECF No. 13 at 14-15, 29-30.) Without undertaking this evaluation, Plaintiff contends that the ALJ could not have addressed all of the limitations for the purposes of an RFC determination—thus the RFC determination is based on substantial evidence. The Court agrees. See SSR 96-8p. See also, Salazar, 486 F.3d at 621. There, the Court held that an "ALJ is required to consider all of the claimant's medically determinable impairments, singly and in combination; the statute and regulations require nothing less." (emphasis added.) Failure to do so, the Court said, "is reversible error." Id.
Here, there is no evaluation of how Plaintiff's licen planus condition—when combined with other severe conditions found in the record—impact and, therefore, limit Plaintiff's activities. Among other things, there is no discussion by the ALJ of how Plaintiff's speech problems—resulting from oral lichen planus—would impact her ability to make phone calls and schedule appointments. (R. 56-58.) There was recent evidence that Plaintiff had lesions in her mouth and spitting up blood. This has been addressed earlier. And this alone should have been enough to warrant evaluation of how Plaintiff's condition, particularly in recent years, limit her ability to work as a secretary. Because of evaluation of these limitations is lacking in the ALJ decision, this requires separately reversal and remand of the ALJ decision. See also Langley, 373 F.3d at 1123-24.
Plaintiff's third argument with respect to the RFC targets inconsistencies in the ALJ's reliance on the medical evidence.
Notwithstanding this, the ALJ then failed to consider Dr. Hudson's views with respect to Plaintiff's mental impairments—i.e. (1) that Plaintiff had "[b]alance difficulties secondary to her chiari malformation" (R. 533); and (2) that Plaintiff exhibited "concentration difficulties" and exhibited confusion during the relatively short examination, and reported that there be follow up in regards to her migraines with [a] trained neurologist." (R. 532-33.) Despite affording Dr. Hudson's opinion "great weight", these limitations did not make their way into the ALJ decision, nor the RFC analysis. Given the "great weight" afforded to Dr. Hudson, these omissions provide an independent basis for remand in so far that the RFC determination has not been based on substantial evidence because it lacks limitations indicated by the consultive examiner that are clearly in the record and have not been addressed by the ALJ. Material inconsistencies such as this require explanation, and warrant remand. SSR 96-8p; see Richardson v. Perales, 402 U.S. 389, 390 (1971).
Finally, the Court also finds that the ALJ's analysis, with respect to Dr. Hudson, illustrates the `picking and choosing' of evidence that Tenth Circuit authorities seek to guard against.
In sum, and for the reasons stated above, the Court finds that remand is warranted because there is a lack of substantial evidence to support the RFC finding. See generally Flaherty, 515 F.3d at 1070.
Plaintiff contends that the ALJ erred with respect to the hypothetical questions proposed to the vocational expert because they did not reasonably reflect Plaintiff's limitations. (ECF No. 13 at 38.) Such error, Plaintiff says, derives from the RFC determination. As noted in Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008), Plaintiff argues that Carpenter (like the present case) illustrates the problems associated with an incomplete RFC assessment—i.e. the limitations omitted from the RFC finding are also omitted from the hypothetical questions proposed to the vocational expert at step five of the analysis resulting in a defective determination as to Plaintiff's abilities to do work in the existing economy. (Id.)
Plaintiff argues, therefore, that the ALJ erred on the basis that the vocational expert's opinion lacks precision as to all of Plaintiff's medical limitations. See Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) ("Testimony elicited by hypothetical questions that do not relate with precision to all of a claimant's impairments cannot constitute substantial evidence to support the [Commissioner's] decision.") The Court agrees.
To support this finding, the Court incorporates all of the limitations that have been omitted in the RFC analysis above. By way of example, however—and to show how one of these omissions constitutes cause for remand—the Court reiterates that the ALJ failed to address how severe and non-severe impairments (in combination) limited Plaintiff for the purposes of the RFC determination. It follows that because the ALJ did not provide the vocational expert with limitations that could have flowed from combined impairment analysis (since the ALJ did not evaluate same), the correct questions were not proposed to the vocational expert. The questions were thus predicated on a defective RFC determination. This would have misled, or, at best, confused the vocational expert into believing that Plaintiff could undertake certain tasks that she could not do had the impairments been viewed in combination.
What compounds the issue further is the fact that there were two hearings and two vocational expert opinions. (R. 33-41, 42-74.) Reconsideration by the ALJ, therefore, has the added benefit of allowing for the correct questions be put to one final vocational expert, predicated on a proper RFC determination.
Accordingly, the Court concludes that because the ALJ's deficiencies are material (i.e. not precise), it is sufficient to taint the substantiality of the vocational expert's testimony. See Hargis, 945 F.2d at 1492. Since the evidence is tainted by these omissions, substantial evidence is lacking in this case for the ALJ to have made the correct determination as to Plaintiff's claim to disability benefits. The Court finds that remand is required to resolve these deficiencies. See Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005).
Finally, it is worth addressing the fact that the Commissioner concedes, in part, that the ALJ has committed error. (ECF No. 21 at 5, 12-13.) The Commissioner argues, however, that these omissions were not prejudicial because all the deficiencies at step two were addressed in later stages of the analysis. (Id. at 5, 12-13.) The Court disagrees—particularly in light of the deficiencies that have been addressed above.
Courts apply the harmless error doctrine cautiously in the administrative review setting. Fischer-Ross., 431 F.3d at 733. An error is only harmless when the Court can "confidently say that no reasonable administrative fact-finder, following the correct analysis, could have resolved the factual matter in any other way.' Id. at 733-34. Here, the Court has no confidence that the factual deficiencies in this case could be resolved another way because the deficiencies are material omissions from the steps two to four of the sequential evaluation process. As such, the ALJ's errors are not harmless because the jobs identified by the vocational expert are not predicated on the correct limitations that must derive from substantial evidence. Indeed, the Court finds this type of error is more toward the significant end of the spectrum which does nothing to save the decision from remand.
Plaintiff raises additional issues related to the sufficiency of the underlying proceedings. Because the Court finds that the ALJ's RFC was not supported by substantial evidence and that this error alone requires remand, it need not address the other arguments raised by Plaintiff—particularly in circumstances where the Commissioner's harmless error argument has been rejected. See Madrid v. Barnhart, 447 F.3d 788, 792 (10th Cir. 2006) (when the ALJ's error affected the analysis as a whole, court declined to address other issues raised on appeal).
The Court expresses no opinion as to Plaintiff's other arguments and neither party should take the Court's silence as tacit approval or disapproval of how the evidence was considered.
For the reasons set forth above, the Commissioner's decision is REVERSED and this case is REMANDED to the Commissioner for rehearing.
