R. BROOKE JACKSON, District Judge.
This matter is before the Court on review of the Commissioner's decision denying claimant Tammy Parks' application for Social Security disability benefits. Jurisdiction is proper under 42 U.S.C. § 405(g). For the reasons laid out below, the Court reverses and remands the Commissioner's decision.
This appeal is based upon the administrative record and briefs submitted by the parties. In reviewing a final decision by the Commissioner, the role of the District Court is to examine the record and determine whether it "contains substantial evidence to support the [Commissioner's] decision and whether the [Commissioner] applied the correct legal standards." Rickets v. Apfel, 16 F.Supp.2d 1280, 1287 (D. Colo. 1998). A decision cannot be based on substantial evidence if "it is overwhelmed by other evidence in the record. . . ." Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Substantial evidence requires "more than a scintilla, but less than a preponderance." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Evidence is not substantial if it "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).
Ms. Parks lives in Colorado Springs, Colorado and has previously worked as a nurse's aide, certified medical technician, massage therapist, and sales clerk. She injured herself while working in a nursing home in 1993, but she continued to work for a number of years.
On March 27, 2009, Ms. Parks filed a Title II application for benefits based on disability beginning on March 24, 2008. Four days later, she filed a Title XVI application for supplemental security income, again alleging disability beginning on March 24, 2008. Both claims were initially denied on May 28, 2009. The claimant then filed a request for a hearing, which was held on June 24, 2011 in front of Administrative Law Judge Richard J. Maddigan. During the hearing, Ms. Parks was represented by her attorney, Fred Newall. The ALJ denied the claimant's application for benefits on June 30, 2011, and the Commission denied her request for review on January 18, 2013. Ms. Parks filed a timely appeal in this Court.
The record contains evidence of Ms. Parks' degenerative disc disease (DDD) of the lumbar spine and her obesity. See R. at 24. Most relevant to the factual issues raised in this appeal is the evidence concerning Dr. Boatright's fibromyalgia diagnosis, the claimant's depression, and her daily activities.
Beginning with Dr. Boatright's diagnosis, the doctor reported that the claimant had 14 out of 18 trigger points (11 are required for a fibromyalgia diagnosis) and noted that "the patient's trigger point assessment is consistent with a diagnosis of fibromyalgia." R. at 391. Dr. Boatright recommended "NSAIDs for acute pain" and commented that "[t]he patient would also benefit from light physical therapy and possible antidepressant medication. The patient should follow up with a pain specialist if the pain is persistent." R. at 391.
Turning to the claimant's depression, Dr. Valette's report lists "dysthymia," or long-term depression, as an Axis I diagnostic impression and notes that Ms. Parks reported that she has been depressed "all her life." R. at 403-04. According to Dr. Valette, Ms. Parks also stated that she had had a deep period of depression that lasted three to four days the week prior to the exam, and that medication "has never really helped." R. at 403. The claimant also told the doctor that she feels hopeless and worthless, cries frequently, is irritable, and sometimes stays in bed, but that she is not suicidal. R. at 403. Dr. Valette opined that the claimant's depression may "[have] gotten worse because of [her] pain." R. at 404.
The claimants' treatment records from Aspen Pointe reflect a provisional diagnosis of "major depressive disorder, recurrent, moderate" and note that Ms. Parks reported over five current depressive symptoms that have persisted for more than two weeks. R. at 515. The doctor found that her symptoms "have a clinically significant impact on her ability to function in her daily activities." R. at 515.
Lastly, the record contains evidence concerning Ms. Parks' daily activities. Dr. Boatright reported that the claimant "is able to get in and out of bed, dress herself and bathe herself. The patient is able to drive, cook and clean for herself." R. at 388. Dr. Valette's report states that Ms. Parks wakes her daughters up to go to school, but "her daughters help her with all of her chores," including laundry, grocery shopping, cooking, and sometimes dressing and bathing. R. at 403-04. The claimant also reported to Dr. Valette that "the last time she could do chores independently was two years ago. . . . She says she has some friends, but she does not see them as much because of pain. She handles her money and bills. She has a driver's license and drives less because of pain." R. at 403-04.
The Social Security Administration uses a five-step process to determine whether a claimant qualifies for disability insurance benefits. The Administrative Law Judge assigned to this case, Richard J. Maddigan, determined that Ms. Parks met her step-one burden of showing that she had not engaged in substantial gainful activity since March 24, 2008, the alleged onset date. R. at 23. At step two, the ALJ found that Ms. Parks has the following severe impairments: degenerative disc disease (DDD) of the lumbar spine and obesity. R. at 24. At step three, the ALJ concluded that Ms. Parks does not have an impairment or combination of impairments that meets or medically equals the severity of any of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. R. at 28. Next, the ALJ determined that the claimant has the residual functional capacity (RFC) to "perform sedentary work, as defined in 20 C.F.R. 404.1567(a) and 416.967(a), including the ability to sit, stand, or walk without limitation, except the claimant can lift 10 pounds frequently and 15 pounds occasionally, cannot crawl, and is limited to unskilled activities, with a limited need to concentrate on detailed or complex issues." R. at 28. At step four, the ALJ found that Ms. Parks is unable to perform any relevant past work. Finally, at step five, the ALJ concluded that, considering Ms. Parks' age (36 years old), education (at least a high school education), work experience, and RFC, there are jobs that exist in significant numbers in the national economy that she can perform. R. at 35. The ALJ thus concluded that Ms. Parks had not been under a disability.
The claimant appears to make the following arguments for why this Court should remand the ALJ's decision: (1) The ALJ failed to consider Ms. Parks' obesity at step three, (2) similarly, the ALJ did not consider Ms. Parks' obesity in his RFC assessment, (3) the ALJ improperly rejected Dr. Boatright's fibromyalgia diagnosis, (4) the ALJ's RFC determination did not consider the combined impact of all of Ms. Parks' impairments, (5) the ALJ failed to consider the claimant's work history and motivation to work, (6) the ALJ's assessment of Ms. Parks' credibility is not supported by substantial evidence, (7) the ALJ's credibility analysis improperly considered Ms. Parks' daily activities, (8) the ALJ did not follow the applicable legal standards in analyzing the claimant's alleged pain, and (9) the ALJ's step-five analysis is flawed because the vocational expert ("VE") did not consider all of the claimant's impairments.
At step three, the ALJ considered the claimant's DDD of the lumbar spine and found that she does not have an impairment or combination of impairments that meets or medically equals the severity of any of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. The ALJ did not, however, consider the claimant's obesity, which he had found to be a severe impairment at step two. See R. at 24, 28. The Musculoskeletal System section of the Listing of Impairments in 20 C.F.R. § 404, Subpart P, Appendix 1, under which spinal impairments are considered, makes clear that
See also Branch v. Astrue, No. C 07-05530 SI, 2008 WL 3184490, at *4 (N.D. Cal. Aug. 4, 2008) (on similar facts, finding statement that "the objective medical evidence does not suggest that the cumulative effects of obesity meet the criteria set forth [in the listing]" insufficient and grounds for remand). In this context, "[a] failure to consider the impact of obesity can constitute reversible error." Cody v. Astrue, No. 09-3060, 2010 WL 3951987, at *8 (C.D. Ill. Oct. 6, 2010) amended in part, No. 09-3060, 2010 WL 4876734 (C.D. Ill. Nov. 17, 2010). Because the ALJ did not consider the combined effects of the claimant's DDD and obesity, he did not follow the applicable legal standard.
Although this error is likely harmless in light of the ALJ's findings at steps four and five, the Court remands the decision on other grounds explained below, and thus a harmless error analysis is not necessary here. On remand, the ALJ should expressly consider the claimant's DDD of the lumbar spine in combination with her obesity at step three.
The claimant also argues that the ALJ failed to consider her obesity in his RFC assessment. ECF No. 12 at 10. Specifically, the claimant points to the ALJ's step-two finding that "the claimant's obesity exacerbates her back impairment, and limits her ability to perform routine movement and necessary physical activity within a work environment." ECF No. 12 at 10 (quoting R. at 24). She argues that this conclusion is inconsistent with the ALJ's RFC determination, in which he found that the claimant can "sit, stand, or walk without limitation." ECF No. 12 at 10 (citing R. at 28). However, the Court notes that this finding is part of the larger determination that Ms. Parks can perform sedentary work. See R. at 28. Under 20 C.F.R. § 404.1567(a), "[a]lthough a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." Given this context, it is clear that a sedentary job would not require routine movement or physical activity to any significant extent. Thus the Court is satisfied that the ALJ's step-two finding does not undermine his RFC assessment.
Furthermore, the ALJ did explicitly consider Ms. Parks' obesity in the RFC analysis: "[T]he undersigned concludes that the evidence of degenerative changes to the claimant's lumbar spine, coupled with her obesity, would reasonably restrict the claimant to a range of work at the light level of exertion." R. at 34 (emphasis added). Although this mention of the claimant's obesity is brief, the Court's general practice "is to take a lower tribunal at its word when it declares that it has considered a matter." Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007). The Court sees no reason to depart from this principle here and accordingly finds that the ALJ's consideration of the claimant's obesity in the RFC assessment complies with the applicable legal standards. The Court therefore declines to remand the decision on this basis.
Next, Ms. Parks contends that the ALJ improperly rejected Dr. Boatright's fibromyalgia diagnosis. ECF No. 12 at 11-12. An ALJ may not substitute his own medical judgment for that of a physician. Winfrey v. Chater, 92 F.3d 1017, 1022 (10th Cir. 1996) (citing Kemp v. Bowen, 816 F.2d 1469, 1476 (10th Cir.1987) (an ALJ "can not interpose his own `medical expertise' over that of a physician")). See also Miranda v. Barnhart, 205 F. App'x 638, 641 (10th Cir. 2005) ("The ALJ's approach impermissibly put him in the position of judging a medical professional on the assessment of medical data."). In Winfrey, the Tenth Circuit held that the ALJ had "overstepped his bounds" when he rejected a physician's opinion because he did not believe that a particular test was an adequate basis on which to make a diagnosis. 92 F.3d at 1022. No other medical opinion had questioned the physician's reliance on the test, and thus the ALJ had no basis for doing so. Id.
The ALJ made an essentially identical error here. Dr. Boatright, a consultative examiner, reported that "the patient's trigger point assessment is consistent with a diagnosis of fibromyalgia" and recommended associated treatment. R. at 391. However, in his step-two analysis of the claimant's impairments, the ALJ noted that
R. at 25. The ALJ based this analysis of the shortcomings of Dr. Boatright's diagnosis on the American College of Rheumatology guidelines, which require that a patient display widespread pain in all four quadrants of the body and have at least 11 of 18 trigger points. R. at 24-25. Although Dr. Boatright's report did not specify which quadrants of the body were affected, the doctor stated that the trigger point assessment was consistent with a diagnosis of fibromyalgia.
Although this error is likely harmless in light of Dr. Boatright's functional assessment, the Court remands the decision on other grounds and thus does not engage in a harmless error analysis here. The ALJ should take another look at Dr. Boatright's fibromyalgia diagnosis on remand.
The claimant also argues that the ALJ failed to consider a number of Ms. Parks' other impairments—and their combined impact—in the RFC determination. Specifically, she contends that the ALJ did not consider her (1) cervical DDD, (2) disabling pain, neck and shoulder pain, and LUE pain and tingling, (3) decreased ROM in the cervical spine, (4) lumbago, (5) osteoarthritis, (6) thoracic DDD, (7) migraine headaches, and (8) depression.
As an initial matter, the Court notes that the ALJ did in fact consider the claimant's severe pain, although he did not specifically mention neck and shoulder pain or LUE pain and tingling. See R. at 29. It is not clear that the ALJ considered the remaining impairments: cervical DDD; neck and shoulder pain and LUE pain and tingling; decreased ROM in the cervical spine; lumbago; osteoarthritis; thoracic DDD; migraine headaches; and depression.
However, in cases where the claimant was represented by counsel at the administrative hearing, "the ALJ should ordinarily be entitled to rely on the claimant's counsel to structure and present claimant's case in a way that the claimant's claims are adequately explored." Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004) (internal citations and quotations omitted). In the present case, the claimant's attorney did not mention any of the remaining impairments listed above, except Ms. Parks' depression, at the hearing before the ALJ. See R. at 46-63. Furthermore, the ALJ relied on Dr. Boatright's functional assessment, which did not reflect limitations from any of the impairments listed above, for the hypothetical presented to the vocational expert. R. at 62. When the ALJ asked the claimant's attorney if there was anything else that he needed to consider in the hypothetical, the attorney replied that he might "get something from the treating psychologist or something, but otherwise no." R. at 62.
Under these circumstances, the Court cannot fault the ALJ if he did not consider this list of impairments (excluding depression). The claimant appears to have combed through the record in an attempt to find any hint of additional impairments that might undermine the ALJ's RFC assessment; the Court will not validate such an approach. See Turner v. Astrue, No. 1:10-CV-115-SA, 2011 WL 2788405, at *8 (D. Utah July 13, 2011) ("To remand this case under these circumstances would be to reward claimants who omit discussion of their alleged impairments at the administrative hearing and thereby inject alleged error into the administrative decision, providing claimants inappropriate incentives.") (citing Wall v. Astrue, 561 F.3d 1048, 1063 (10th Cir. 2009)).
As for the claimant's depression, the ALJ undertook a thorough analysis of Ms. Parks' mental impairments at step two, see R. at 25-27, but did not discuss any mental impairments in the RFC determination, see R. at 28-35.
Next, the claimant contends that the ALJ failed to consider her work history and motivation to work in his evaluation of her credibility and in his RFC assessment. ECF No. 12 at 12. The Court finds no error in the ALJ's analysis.
Beginning with Ms. Parks' credibility, the ALJ was required to base his conclusions "on a consideration of all of the evidence in the case record," including the claimant's "prior work record and efforts to work." SSR 96-7p. In his analysis, the ALJ noted that "the claimant procured and worked a job as a cashier beginning around the time of her alleged disability onset date, with no clear evidence that the claimant's impairment resulted in the claimant stopping said job one year later in 2009." R. at 32. The ALJ also noted that the claimant had applied for unemployment benefits, concluding that she must have believed she was capable of working to file the application. R. at 32. Thus the ALJ did consider her prior employment to some extent; furthermore, the opinion contains a detailed discussion of the reasons underlying the ALJ's credibility determination. See R. at 32-33. Tenth Circuit case law "does not require a formalistic factor-by-factor recitation of the evidence" in this context. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Indeed, the ALJ need only "set[] forth the specific evidence he relies on in evaluating the claimant's credibility." Id. Here, the ALJ's opinion satisfies this standard, and the Court finds that the ALJ followed the applicable law.
Similarly in the RFC analysis, the ALJ was required to base his assessment on all of the relevant evidence in the case record, including "[e]vidence from attempts to work." SSR 96-8p. As noted above, the ALJ found that Ms. Parks worked as a cashier around the time of her alleged disability onset date, "with no clear evidence that the claimant's impairment resulted in the claimant stopping said job," and he considered her application for unemployment benefits. R. at 32. Thus he considered evidence from her attempts to work, satisfying the applicable legal standard. The Court sees no basis for remand in the ALJ's discussion of claimant's work history and motivation to work.
The claimant also challenges the ALJ's findings about her credibility generally, arguing that "the findings of exaggeration are questionable." ECF No. 12 at 13. This appears to be an argument that the ALJ's credibility determination is not supported by substantial evidence. The claimant's brief, however, does little more than invite the Court to reweigh the evidence. See id. at 13-15. Under Tenth Circuit law, "[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Furthermore, "[c]redibility determinations are peculiarly the province of the finder of fact, and [the Court] will not upset such determinations when supported by substantial evidence." Diaz v. Sec'y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990).
The Court is satisfied that the ALJ's credibility determination is supported by substantial evidence. The ALJ noted that, despite claiming extreme limitations, Ms. Parks has been treated in a conservative manner and has in fact failed to follow through with recommended courses of treatment. R. at 32. Additionally, the claimant was able to perform part-time work as a cashier during part of the period for which she claims she was disabled, and, following that job, she applied for unemployment benefits, thus indicating that she was capable of working. R. at 32. Ms. Parks also claimed on multiple occasions that she had been diagnosed with conditions for which no medical records existed. R. at 32-33. Finally, as discussed below, the claimant's daily activities undermined her claims about the extent of her limitations. R. at 33. Given the evidence that the ALJ's opinion cites in support of the credibility determination, the Court is satisfied that the ALJ's findings are supported by substantial evidence.
The claimant's brief also argues that the ALJ improperly relied on Ms. Parks' performance of daily activities, which were merely "incidental," in assessing her credibility. ECF No. 12 at 15. The Tenth Circuit has held that the sporadic performance of daily activities does not constitute substantial evidence undermining a claimant's credibility. See Frey v. Bowen, 816 F.2d 508, 516-17 (10th Cir. 1987) (discussing activities such as performing a few household chores, working for an hour or so as a janitor, and jogging). However, the portion of the ALJ's opinion at issue here cites Ms. Parks' reported abilities to get out of bed, dress and bathe herself, drive, cook, clean, help her daughters get ready for school, do laundry, grocery shop, maintain friends, and handle money. See ECF No. 12 at 15-16 (citing R. at 33). The ALJ also noted that Ms. Parks maintains her household, including caring for her two daughters, by herself at least part of the time. R. at 33. Considered together, these activities are not sporadic, but rather paint a picture of a fairly active lifestyle. Thus the Court concludes that the ALJ properly applied the applicable law.
Furthermore, the ALJ's conclusion that Ms. Parks' daily activities undermine her credibility is supported by substantial evidence. In his analysis of the claimant's credibility, the ALJ relied on Dr. Boatright's representation that Ms. Parks "is able to get in and out of bed, dress herself and bathe herself. The patient is able to drive, cook and clean for herself." R. at 388. He also cited to Dr. Valette's report, which stated that the claimant
R. at 403-04. Although the ALJ's summary of this evidence somewhat exaggerates the extent to which Dr. Valette reported that Ms. Parks could perform daily activities, see R. at 33, the Court nonetheless finds that his conclusion was supported by substantial evidence, particularly in light of Dr. Boatright's report. See Wall, 561 F.3d at 1052 (substantial evidence requires "more than a scintilla, but less than a preponderance"). The Court is satisfied that Dr. Boatright's opinion and, to some extent, that of Dr. Valette provide a sufficient basis for the ALJ's conclusion. Thus the Court declines to remand the decision on this basis.
Ms. Parks next argues that the ALJ did not follow the applicable legal standard in evaluating her alleged pain. ECF No. 12 at 17-18. Under Tenth Circuit case law, an ALJ must follow a three-step process when assessing subjective complaints of pain:
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012). In the present case, the ALJ found that
Finally, the claimant argues that the hypothetical presented to the VE did not capture all of the claimant's limitations because of errors in the ALJ's RFC and credibility determinations. ECF No. 12 at 19. The ALJ's hypothetical inquiry to the vocational expert "must include all (and only) those impairments borne out by the evidentiary record." Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995). As the Court found above, the ALJ failed to consider the claimant's depression in the RFC analysis; thus, any additional limitation that may be included after considering the claimant's mental impairments must be reflected in the hypothetical presented to the VE. Additionally, any further limitation that the ALJ finds after properly considering Dr. Boatright's fibromyalgia diagnosis must also be included. Beyond these two issues, the Court found no additional errors in the ALJ's RFC analysis; the Court also concluded that the ALJ properly assessed the claimant's credibility. For these reasons, the ALJ's reliance on the VE's testimony was otherwise proper.
The ALJ's decision is reversed and remanded for further proceedings based on the written decision's failure expressly to consider the claimant's obesity at step three, its analysis of Dr. Boatright's fibromyalgia diagnosis, and its failure to discuss the claimant's mental impairments in the RFC assessment. It is not clear that correction of these errors will necessarily change the ALJ's conclusion that benefits should be denied. Therefore, the Court declines to award benefits at this time. See Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir. 2006).
