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Taylor v. Colvin

United States District Court, D. Colorado

September 5, 2014

RONALD C. TAYLOR, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



Plaintiff Ronald Taylor alleges he suffers from, among other things, disabling diarrhea, irritable bowel syndrome (IBS), dementia, pain disorder, and foot- and ankle-related infirmities. An ALJ disagreed, reasoning that Plaintiff had some impairments but they were not severe enough to disqualify him from all work. On the way to reaching this determination, however, the ALJ failed to address the opinions of several of Plaintiff's treating physicians. This oversight constitutes reversible error and requires remand to the ALJ. Plaintiff challenges the ALJ's decision on a number of other grounds: for the reasons stated below, however, these other arguments either fail or will not be considered in light of the remand.[1]


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 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).



Plaintiff's first argument is that the ALJ erred in failing to consider a number of ailments as "severe" for purposes of step two of the five-step sequential analysis.

An impairment is "not severe if it does not significantly limit [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. ยง 404.1521(a); see also Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th Cir. 2003) ("[A] claimed physical or mental impairment must be of a nature and degree of severity sufficient to justify its consideration as the cause of failure to obtain any substantial gainful work.'"). Further, "while the showing a claimant must make at step two is de minimis, a showing of the mere presence of a condition is not sufficient." Cowan v. Astrue, 552 F.3d 1182, 1186 (10th Cir. 2008). Finally, an error at step two is usually "harmless when the ALJ reache[s] the proper conclusion that [the claimant] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence." Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008); see also Groberg v. Astrue, 415 F.Appx. 65, 67 (10th Cir. 2011) ("An error at step two concerning the severity of a particular impairment is usually harmless when the ALJ... finds another impairment is severe and proceeds to the remaining steps of the evaluation.").

The Government has a two-pronged defense to Plaintiff's step-two arguments: first, the ailments are not severe; second, even if they are severe, they were considered in the ALJ's RFC analysis and, pursuant to Carpenter, any error in failing to call them severe is harmless. The Court considers, by category, each ailment that Plaintiff alleges is severe or otherwise unduly discounted by the ALJ.[2]

1. Chronic Diarrhea and Irritable Bowel Syndrome

Plaintiff first alleges that the ALJ unduly discounted his chronic diarrhea and IBS in finding these impairments neither severe nor disabling.

As to these alleged impairments, Plaintiff's preferred narrative is that he has had constant, debilitating diarrhea since October 2006, as the result of a stab wound he suffered at that time. Plaintiff claims the medical evaluations provided by Dr. Scott Sutton, a treating physician, largely settle the question of the disabling effects of Plaintiff's diarrhea.

Dr. Sutton ultimately diagnosed Plaintiff with IBS, and his clinic has treated Plaintiff intermittently for diarrhea since October 2007. The record supplies notations from Dr. Sutton (or his colleagues) about Plaintiff's diarrhea complaints, but these notes are often based on Plaintiff's self-reporting, sometimes made in the context of Plaintiff asking that the diagnosis be specifically included in his disability paperwork, and never include an analysis of the severity-as opposed to the existence-of Plaintiff's symptoms. See, e.g., (AR 1313) (January 2012 evaluation noting that Plaintiff reported he had to use the bathroom for diarrhea twice while he was at the hospital for an orthotics appointment); (AR 967) (May 2010 record noting in the section for "GI" that Plaintiff represents he has had "diarrhea for years");[3] (AR 1069) (May 2011 record from a nurse noting that Plaintiff complained of black, bloody stool); (AR 1075) (August 2011 record from a nurse noting that Plaintiff has had diarrhea that caused a pain score of ten out of ten, that he has had diarrhea for "x 5 years, " and that he needs tests and medical records "for disability as well"); (AR 1336) (May 2012 record from Dr. Sutton assessing Plaintiff as having "diarrheal predominant irritable bowel syndrome" but specifically noting that the doctor had to profess a "lack of disability/functional capacity expertise").

In contrast, the Government-relying on the analysis provided by the ALJ in his opinion-can point to inconsistencies in Plaintiff's own testimony and the record evidence as to the severity and existence of Plaintiff's diarrhea. For example, at the hearing before the ALJ, Plaintiff first testified that he needed to use the bathroom three to five times an hour, four to five hours a day, for four to eight minutes each time and that this condition had persisted since he was stabbed in the abdomen in October 2006. (AR 62).[4] But only moments later, when confronted with a log he had kept ...

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