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Valdez v. Colvin

United States District Court, D. Colorado

May 13, 2014

LEONA C. VALDEZ, Plaintiff,
CAROLYN W. COLVIN, Acting Social Security Commissioner, Defendant.



This matter is before the Court on Plaintiff Leona C. Valdez's appeal of the Commissioner's decision denying her claim for disability benefits. Exercising jurisdiction under 42 U.S.C. § 405(g), this Court reverses the decision of the Administrative Law Judge ("ALJ").


Plaintiff suffers from fibromyalgia, a diffuse neuromuscular disorder often characterized by severe pain. She alleges that her fibromyalgia causes her, among other things, debilitating back pain and depression. She alleged an onset date for her disability of January 15, 2010. (AR at 140-43.) The agency initially denied her claim (AR at 81-83), and she then appeared before an ALJ at an administrative hearing in November 2011, (AR at 40-69).

To support her claim of disability, Plaintiff relied on the testimony of her primary care physician, Dr. Michael Rendler, who had treated her for a little over two years. Prior to the hearing, Plaintiff was also examined by two other medical professionals, Dr. Patrick Timms, a rheumatologist, and Dr. Brett Valette, a psychologist. These doctors reached somewhat differing conclusions about how Plaintiff's fibromyalgia caused her physical and mental impairments. As is explained in greater detail below, the ALJ considered the opinions provided by all three of these medical professionals.

On December 1, 2011, the ALJ issued a decision finding Plaintiff was not disabled. In particular, the ALJ determined that Plaintiff retained the Residual Functional Capacity ("RFC") to perform light work with a sit/stand option and that her RFC did not preclude her from performing her past work as a telemarketer, order taker, or property manager. (AR at 30, 34-35.)

The Appeals Counsel declined to review the ALJ's decision (AR at 1-6), making it final for purposes of review by this Court, see, e.g., Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). Plaintiff now appeals the ALJ's determination to this Court.


This Court's review of the ALJ's determination is limited to determining whether the ALJ's decision is supported by substantial evidence and whether the Commissioner-through the ALJ-applied the correct legal standards. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance. Wall, 561 F.3d at 1084. In reviewing the record and the arguments of counsel, the Court does not reexamine the issues de novo, Sisco v. United States Department of Health and Human Services, 10 F.3d 739, 741 (10th Cir. 1993), nor does it re-weigh the evidence or substitute its judgment for that of the Commissioner, Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). Thus, even when some evidence may have supported contrary findings, the Court "may not displace the agency's choice between two fairly conflicting views, " even if the Court may have "made a different choice had the matter been before it de novo." Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007).


Plaintiff advances three principal claims on appeal. First, she argues that the ALJ erred in the manner in which he discounted Dr. Rendler's opinions about her impairments. Second, she argues that, as a consequence of the way the ALJ misinterpreted Dr. Rendler's opinions, the ALJ's RFC assessment is not supported by substantial evidence. Third, Plaintiff claims that the ALJ erred in finding her not credible.

The Court largely agrees with Plaintiff on all three counts. As is explained in greater detail below, the ALJ improperly discounted Dr. Rendler's opinions about Plaintiff's physical and mental limitations. In turn, this error infects the ALJ's RFC assessment. Further, this Court finds that the ALJ has provided an insufficient basis for his adverse credibility finding, though not for the precise reasons Plaintiff advanced in her briefing. The Court considers each of Plaintiff's claims in turn.


Plaintiff's first claim is that the ALJ erred in according "no weight" to opinions provided by Dr. Rendler in his responses to two questionnaires about Plaintiff's fibromyalgia. In the first questionnaire, Dr. Rendler primarily discussed Plaintiff's physical limitations; in the second, he discussed her mental limitations.

The Court largely concurs in Plaintiff's assessment that the ALJ erred in how he considered each questionnaire. First, the ALJ applied the incorrect legal standard in considering Dr. Rendler's opinion in both questionnaires. Second, he provided insufficient or improper bases for discounting each of Dr. Rendler's opinions.

1. Correct Standard

As an initial matter, the ALJ failed to apply the proper legal standard in considering Dr. Rendler's opinions. Because Dr. Rendler was Plaintiff's treating physician, his opinion generally should receive "more weight" than other sources. 20 C.F.R. § 404.1527(d)(2). Further, in accord with the Tenth Circuit's decision in Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003), the ALJ should have considered a number of factors in deciding to accord "no weight" to Dr. Rendler's opinion.

Watkins provides a two-step process for considering the opinion of a treating physician. At Watkins step one, the ALJ determines whether the opinion is entitled to "controlling weight" by assessing whether it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques." Id. at 1300 (quoting SSR 96-2p, 1996 WL 374188, at *2). If the ALJ determines that the opinion is not entitled to "controlling weight, " he must proceed to the second Watkins step, in which he must consider a number of factors outlined in 20 C.F.R. § 404.1527 and 416.927, and then provide sufficient reasoning for the weight, if any, he assigns the opinion. Watkins, 350 F.3d at 1300.

The ALJ never referenced this two-step process, though he appears to have considered (albeit in an erroneous, ad hoc, and cursory manner) some of the factors addressed at Watkins steps one and two. See, e.g., (AR at 33.) On remand, the ALJ should fully consider this framework-in particular, the Watkins factors that he has relied upon in deciding how much weight to accord to the opinions of the various medical professionals who examined Plaintiff.[1]

2. Errors in Considering Dr. Rendler's Questionnaire Responses

Beyond not applying the proper framework for considering the opinion of a treating physician, there are a number of problems with the rationales the ALJ offered to discount Dr. Rendler's two questionnaire responses. The Court considers these flaws below.

a) Physical Limitations Questionnaire

First, the ALJ erred in his assessment of Dr. Rendler's responses in the physical limitations questionnaire. As relevant here, Dr. Rendler's opinion in this questionnaire generally supported Plaintiff's contention that the severity of her fibromyalgia leaves her physically incapable of operating in most work environments. In particular, Dr. Rendler suggested that Plaintiff's fibromyalgia: (1) would interfere constantly with her attention and concentration, (2) allowed her to sit for only about two hours in an eight-hour day, (3) limited her to standing or walking in combination for about two hours in an eight-hour day, (4) required that she receive a rest of between fifteen to thirty minutes every one to two hours during a workday, and (5) would cause her to be absent from work three or more times a month. (AR at 281-88.)

The ALJ's rationale for according no weight to this opinion was two-fold. First, the ALJ claimed that Dr. Rendler's opinion was "not supported by his own office notes or any objective findings or by the other evidence of record." Second, the ALJ reasoned that Dr. Rendler's opinion was "based on very little contact with [Plaintiff] as he sees her only three to four times a year." (AR at 32.)

Neither of these rationales is supported by substantial evidence.

(i) Office Notes and Objective Findings

First, contrary to the ALJ's position, Dr. Rendler's opinion was in fact supported by his office notes. For example, on October 10, 2010, Dr. Rendler made handwritten (and difficult-to-decipher) notes about a physical exam he conducted in which he found that Plaintiff's "back [was] tender to palpation, cervical, thoracic, and lumbar spine.[2]" (AR at 247.) Similarly, on February 14, 2010, Dr. Rendler noted that Plaintiff "does have sensitivity and tender areas to palpation in the periarticular areas." (AR 248); see also (AR at 251) (February 18, 2009 finding from Dr. Rendler that Plaintiff had "general weakness, tenderness to palpation... [and a] worse neck/back").

Further, these physical examinations would appear to constitute "objective finding[s]" that would support a doctor's conclusions about a claimant's alleged disabilities. At the least, if there were reason to question the objectivity of Dr. Rendler's physical examinations or their sufficiency for purposes of establishing that Plaintiff was disabled, the ALJ failed to provide such analysis.

Finally, this Court cannot credit the ALJ's vague assertion that "the other evidence of record" contradicts Dr. Rendler's position. The ALJ did not explain what "other" evidence he was referencing. Moreover, as was discussed above, it seems that the ALJ in fact forgot about at least some "other evidence of record"-namely, Dr. Rendler's examination notes-and this evidence in fact supports rather than contradicts the position Dr. Rendler took in the fibromyalgia questionnaire.[3]

(ii) Contact with Plaintiff

Second, the ALJ improperly discounted Dr. Rendler's opinion by concluding that because Dr. Rendler saw Plaintiff only "three to four" times a year, he was unable to offer an authoritative opinion about Plaintiff's disabilities.

As relevant here, when an ALJ is considering how to weigh the opinion of a treating source, the Social Security Administration regulations dictate that:

Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source.

20 C.F.R. § 404.1527(c)(2)(i).

This regulation imposes no quota for a minimum number of visits necessary to allow a doctor to form an opinion entitled to "more weight" by the ALJ. Rather, the regulation envisions a more holistic approach: if a treating source has seen a claimant "a number of times and long enough to have obtained a longitudinal picture of your impairment, " that opinion is entitled to more weight. See also 20 C.F.R. § 404.1502 (noting that an acceptable "frequency" of visits or treatments with a medical source will vary based on the "accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s).").

The ALJ's decision does not apply this standard and provides a cursory gloss to important facts that potentially bear upon the relationship between Plaintiff and Dr. Rendler. As an initial matter, over the course of their treating relationship, Plaintiff and Dr. Rendler had averaged approximately six visits annually-not just three to four. See (Doc. # 12 at 16 n.4) (citing AR at 247-48, 250-59, 287-88). Further, while the record reveals that these visits were concentrated in Plaintiff's first year of treatment and varied as to the amount of attention Dr. Rendler dedicated to examining Plaintiff, Dr. Rendler never wavered in his diagnosis about Plaintiff's fibromyalgia. Compare, e.g., (AR at 247) (describing an October 2010 visit that included a physical examination of parts of Plaintiff's body that were tender or painful to touch, in which Dr. Rendler concluded Plaintiff had fibromyalgia), with (AR at 250) (describing a February 2010 visit where Dr. Rendler seems to have checked only Plaintiff's vital signs, prescribed fibromyalgia medication, and filled out paperwork).

To be sure, Dr. Rendler's overall level of contact with Plaintiff and the limited number of in-depth examinations he performed may not be sufficient for Dr. Rendler to obtain a "longitudinal picture of [Plaintiff's] impairment, "[4] but the ALJ did not explain why this is the case. In short, if the ALJ wishes to discount Dr. Rendler's opinion on the basis of the frequency of his contact with Plaintiff, the ALJ needs to provide more analysis applying the standard announced in the regulations to the particular facts of this case.

b) Mental Limitations Questionnaire

The ALJ also erred in the manner in which he accorded "no weight" to Dr. Rendler's responses in a questionnaire about Plaintiff's limitations in her mental functioning. This questionnaire is a two-page check-the-box form in which Dr. Rendler described Plaintiff's level of mental impairment in a number of different categories. In completing the questionnaire, Dr. Rendler was limited to identifying a limitation as non-existent, slight, moderate, marked, or extreme. (AR at 279-80.)

Ultimately, Dr. Rendler determined that Plaintiff had some "marked" difficulties in mental functioning, which were principally related to her ability to remember and carry out instructions or engage in higher-level reasoning. Dr. Rendler further determined that Plaintiff had some slight and moderate limitations, principally related to her ability to make decisions, maintain concentration, and interact socially. Dr. Rendler did not provide much additional explanation for his conclusions and merely noted that "fibromyalgia and depression are conditions consistent with [the] limitations" he considered to be applicable. ( Id. )

In giving no weight to Dr. Rendler's opinion in this questionnaire, the ALJ reasoned as follows:

Dr. Rendler is not a qualified mental health practitioner and the number of marked limitations he indorses would require the claimant to be hospitalized. The claimant has never been hospitalized for psychiatric reasons. The assessment is contrary to the assessment of Dr. Valette, who is a qualified mental health practitioner.

(AR at 32.)

This analysis is deficient in a number of respects. As an initial matter, ALJ provides no authority in support of his position that because a physician concludes that a patient has a number of marked limitations in mental functioning, that patient requires "hospitalization."[5] Further, an ALJ, who is not a medical professional, is not qualified to determine when a disability is severe enough to require hospitalization. Cf. Winfrey v. Chater, 92 F.3d 1017, 1022 (10th Cir. 1996) (noting that an ALJ "[cannot] interpose his own medical expertise' over that of a physician").

Finally, the ALJ's two-sentence explanation of why he credited the opinion of Dr. Valette over that of Dr. Rendler insufficiently explains both why he accorded no weight to the opinion of a treating physician and why Dr. Valette's opinion is both more authoritative and dispositive as to a finding of non-disability. Cf. Watkins, 350 F.3d at 1301 (holding that if the ALJ completely rejects the opinion of a treating physician he must provide "specific, legitimate reasons" for doing so").

In sum, there may be legitimate reasons to discredit Dr. Rendler's mental functioning assessment and make the same finding as to Plaintiff's mental functioning, but if there are, the ALJ has yet to enunciate them with the requisite specificity.

3. Conclusion and Instructions on Remand

The ALJ's decision to discount Dr. Rendler's opinions in the two questionnaires is not supported by substantial evidence. Further, this case does not present one of those "exceptional circumstance[s]" in which the ALJ's errors are harmless. Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). To the contrary, Dr. Rendler made a number of specific findings about the limitations caused by Plaintiff's fibromyalgia in each questionnaire, and these limitations would significantly circumscribe Plaintiff's ability to work if they do indeed provide an accurate portrayal of her impairments.

This Court therefore remands this case for further consideration by the ALJ of Dr. Rendler's opinion on both of the questionnaires. On remand, the ALJ should evaluate Dr. Rendler's opinions in accord with the framework adopted by the Tenth Circuit in Watkins. [6]


Plaintiff's second claim is that "[t]he ALJ failed to properly analyze the medical evidence related to both Plaintiff's physical and mental limitations in assessing her RFC." (Doc. # 12 at 19.) Plaintiff alleges two deficiencies in the RFC analysis, which overlap with her arguments regarding the manner in which the ALJ discounted Dr. Rendler's opinion. The Court largely agrees with Plaintiff as to each of these arguments and considers them in turn.

First, Plaintiff alleges that the ALJ failed to consider some probative evidence in his RFC because he failed to discuss the aforementioned physical examination notes from Dr. Rendler. (Doc. # 12 at 20-21.) As discussed above, the ALJ erred in failing to consider these notes: on remand, in assessing Plaintiff's RFC, he must consider and describe the amount of weight he will accord them. Cf. Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) ("[T]he ALJ also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.").

Second, Plaintiff argues that the ALJ provided insufficient analysis to explain his interpretation of Dr. Valette's assessment of Plaintiff's mental limitations. (Doc. # 12 at 22-23.) Again, as explained above, the ALJ needs to provide more than a cursory analysis of the mental health evaluations from both Drs. Vallette and Rendler. Such an analysis will be a necessary part of any RFC completed by the ALJ.

In sum, the RFC assessment was a house built on a bad foundation. Because the ALJ did not properly consider the opinions of Drs. Rendler or Valette, see supra Part III.A, the RFC assessment itself is improper and will need to be reconsidered on remand.[7]


Plaintiff's third claim is that the ALJ erred in making his adverse credibility determination. In particular, Plaintiff takes exception to the fact that the ALJ found Plaintiff not credible because she had been receiving unemployment during the same time she had been requesting disability. (AR at 33.) Further, on Plaintiff's interpretation of the ALJ's opinion, Plaintiff's application for unemployment benefits was the only and dispositive rationale that the ALJ used in making his adverse credibility finding. Plaintiff claims that this rationale is insufficient by itself to discount Plaintiff's credibility.

This basis for attacking the ALJ's credibility determination fails. As an initial matter, Plaintiff concedes that at least when considered with other factors, the fact that a disability claimant has also applied for unemployment benefits can play into an ALJ's adverse credibility determination. (Doc. # 12 at 24); see also Lately v. Colvin, ___ F.Appx. ___, No. 13-1131, 2014 WL 1227632, at *3 (10th Cir. Mar. 26, 2014) (affirming an ALJ's adverse credibility finding that took into account her collection of unemployment benefits, among other factors).

Further, this Court cannot concur in Plaintiff's position that the only rationale the ALJ used to discount Plaintiff's credibility was the one related to her receipt of unemployment benefits. To the contrary, the ALJ made a number of other observations that could support an adverse credibility finding. See, e.g., (AR at 33) ("There are no objective findings to support the claimant's allegations for impairment due to migraine headaches."); ( id. ) ("The extreme limitations testified to by the claimant at the hearing are not supported by any objective evidence in the record or even by the statements made by the claimant to examining sources.")

At the same time, although these findings could figure into an adverse credibility finding, that does not mean that they did in this case. Indeed, the central deficiency in the ALJ's credibility determination is his failure to connect his disparate observations about Plaintiff to a finding as to her credibility.

"It is well established that an ALJ's findings with respect to a claimant's credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Hardman v. Barnhart, 362 F.3d 676, 678-79 (10th Cir. 2004) (internal quotation marks omitted). The ALJ's failure to explicitly link his credibility determination to specific findings about Plaintiff undermines his analysis on this matter. It must be corrected on remand.[8]


Accordingly, it is ORDERED that the ALJ's denial of social security disability benefits is REVERSED. This case is REMANDED to the Commissioner for proceedings consistent with this Order.

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