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Davis v. Colvin

United States District Court, D. Colorado

September 4, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



Plaintiff Anthony Darnell Davis, a thirty-five-year-old Iraq war veteran, alleges he suffers from, among other things, disabling depression; post-traumatic stress disorder (PTSD); and pain in his wrist, back, shoulders, and feet. An Administrative Law Judge, disagreed, reasoning that while Plaintiff suffered from these and other impairments, they were not disabling. After the ALJ made his decision, Plaintiff submitted supplemental records from doctors and the Veterans Administration that strongly support his preferred interpretation of the severity of some of his ailments-in particular, his mental health functioning. This additional evidence casts sufficient doubt on the ALJ's original decision to require remand of this case for further consideration.


Like many Social Security Appeals, the parties present two competing narratives on how Plaintiff's physical and mental impairments affect his life and impact his disability claim. On the one hand, Plaintiff emphasizes medical findings that could be interpreted as indicative of more severe, constant, and therefore disabling impairments. In support of this position, he points to parts of the record in which medical professionals expressed graver concerns about the effects on his daily life of his musculoskeletal pain, his depression, his combat-related PTSD, and the lingering effects of an episode that occurred in July 2012, in which he suffered from a major depressive episode, contemplated suicide, and spent time in a mental health facility.[1] On the other hand, other parts of the record-referenced mainly by the Government- do not paint such a bleak prognosis for Plaintiff's physical or mental health.[2]

In considering these two competing portraits of Plaintiff's life and alleged disabilities, the ALJ endorsed more of the latter narrative and discounted much of the former. To be sure, the ALJ recognized that Plaintiff had one major depressive episode (in July 2012) and continued to deal with the challenge of his PTSD. The ALJ also acknowledged that Plaintiff had to endure some amount of musculoskeletal pain. However, the ALJ concluded that while these challenges limited the type of work Plaintiff could perform, they did not preclude all work and did not warrant a finding of disability. (AR at 12-21.)

After the ALJ rendered his decision, Plaintiff provided two additional records that he claims would have affected the ALJ's decision. The first is a post-decision letter dated May 4, 2013, in which Dr. Charles Salerno and Mary Ann Carter-respectively, a social worker and a medical doctor-suggest that he has suffered from "devastat[ing]" combat-related PTSD that renders him incapable of normal functioning for large portions of the work week. (AR 839.) Dr. Salerno and Ms. Carter-who apparently treated Plaintiff "weekly to biweekly" from May 2011 to October 2012[3]-also provide what is mostly a check-the-box evaluation of Plaintiff's mental residual functional capacity and conclude that he is precluded from performing most types of tasks. (AR 836-38.)

The second record is an opinion from the Department of Veteran Affairs (VA), finding that, as relevant here, Plaintiff is 70 percent disabled as a result of his PTSD but is only ten percent disabled as a result of many physical impairments (such as pain and lack of mobility in his wrists and shoulders). (Doc. # 15-1 at 4.) According to the VA, this yields an overall disability rating of 90 percent. ( Id. at 6.)


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

Substantial evidence is such relevant evidence as 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). This Court applies the above standard in considering each of Plaintiff's challenges to the ALJ's decision.



Plaintiff's first argument relates to a determination the ALJ made at step two of the five-part process for evaluating an alleged disability, when the ALJ must determine whether Plaintiff is suffering from any severe impairments. In this case, the ALJ concluded that Plaintiff had the following severe impairments: affective disorder, PTSD, spondylosis, obesity, and alcohol abuse, in remission. (AR 14)

Plaintiff argues this list should have also included a number of additional musculoskeletal impairments such as myofascial pain with fibromyositis nodules and active trigger points causing pain in his neck, shoulders, wrists, and knees; chronic residual pain. He also suggests-with no argument-that the list should have included ...

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