United States District Court, D. Colorado
ASHLEY M. PACE (KLINEBRIEL), Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
Brooke Jackson United States District Judge.
matter is before the Court on review of the
Commissioner's decision denying claimant Ashley M.
Pace's application for Disability Insurance Benefits
under Title II of the Social Security Act. Jurisdiction is
proper under 42 U.S.C. § 405(g). For the reasons
explained below, the Court reverses and remands the
Standard of Review.
appeal is based upon the administrative record and the
parties' briefs. 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 is not 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).
Regarding the application of law, “reversal may be
appropriate when the [Social Security Administration]
Commissioner either applies an incorrect legal standard or
fails to demonstrate reliance on the correct legal
standards.” Springer v. Astrue, No.
11-cv-02606, 2013 WL 491923, at *5 (D. Colo. Feb. 7, 2013).
Pace was born in 1983 and is now 33 years old. See
R. 162. She joined the U.S. Navy in 2005 and served in active
duty through 2008, after which she served in the Navy Reserve
until 2011. R. 41-42.
Pace began to develop several medical conditions during her
military service. R. 42. She experienced trauma while serving
in the Navy, triggering depression, anxiety, and
posttraumatic stress disorder (PTSD). R. 327. She suffers
from frequent diarrhea and has several bowel movements per
day-including occasional “accidents”-which were
eventually diagnosed as symptoms of lymphocytic colitis and
irritable bowel syndrome. See R. 68, 721, 1007,
1016. At the time of her hearing, Ms. Pace's treatment
involved periodic intravenous drug infusion in a hospital
over the course of several hours. R. 52, 1007. Additionally,
she has recurrent uveitis, an inflammatory eye condition that
blurs her vision. R. 49, 375, 432. She has also been
diagnosed with fibromyalgia. See R. 363.
being honorably discharged from the Navy, Ms. Paced worked as
an office manager for the Department of Veterans Affairs'
Everett Vet Center. R. 43-44. She took college classes during
this time without earning a degree. R. 31, 196. In January
2013, however, Ms. Pace suffered a mental breakdown at work.
R. 48. She took leave from her job, but ended up not
returning after her anxiety symptoms persisted and her
gastrointestinal problems and eye disorder flared up.
Id. She has not worked since then. R. 181.
December 6, 2013 Ms. Pace applied for Disability Insurance
Benefits, alleging disability beginning January 21, 2013. R.
162, 192. The claim was initially denied on April 22, 2014.
R. 65-76. Ms. Pace requested reconsideration, and her claim
was denied again on October 23, 2014. R. 77-92, 97. She then
requested a hearing, which was held in front of
Administrative Law Judge (ALJ) Kathryn D. Burgchardt on July
16, 2015. R. 24. The ALJ issued a decision denying benefits
on July 24, 2015. R. 11. The Appeals Council denied Ms.
Pace's request for review on November 9, 2015, rendering
the ALJ's determination the final decision of the
Commissioner for purposes of judicial review. R. 1. Ms. Pace
filed a timely appeal in this Court.
The ALJ's Decision.
issued an unfavorable decision after evaluating the evidence
according to the Social Security Administration's
standard five-step process. R. 16-23. First, she found that
Ms. Pace had not engaged in substantial gainful activity
since her alleged onset date of January 21, 2013. R. 16. At
step two, the ALJ found that Ms. Pace had the severe
impairments of uveitis, lymphocytic colitis, major depressive
disorder, and posttraumatic stress disorder. R. 16. At step
three, the ALJ concluded that Ms. Pace did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R.
then found that Ms. Pace retained the residual functional
capacity (RFC) to perform a range of unskilled light work
with the following restrictions: lifting or carrying at most
10 pounds frequently and 20 pounds occasionally; performing
pulling and pushing motions with the same weight
restrictions; standing or walking up to a total of four hours
and sitting up to a total of six hours, with normal breaks,
in an eight-hour workday; avoiding unprotected heights,
moving machinery, vibration, and concentrated noise; working
only in a “relatively clean” environment (i.e.,
with low levels of pollutants and stable temperatures); only
occasionally balancing, stooping, crouching, kneeling,
crawling, or climbing; at most frequently ascending ramps or
stairs, reaching overhead bilaterally, or using fine vision;
having “reasonable” restroom access; not working
in close proximity to coworkers or supervisors; and having
only minimal contact with the public. R. 18.
four, the ALJ concluded that Ms. Pace is unable to perform
any past relevant work. R. 22. Finally, at step five, the ALJ
determined that there were jobs that existed in significant
numbers in the national economy that Ms. Pace could perform.
R. 22. Therefore, the ALJ concluded that Ms. Pace was not
disabled. R. 23.
Pace contends that the ALJ made five errors in the RFC
determination. Specifically, Ms. Pace argues that the ALJ
improperly: (1) rejected the opinions of three of Ms.
Pace's mental health providers; (2) relied on the
opinions of nonexamining State agency psychological
consultants; (3) mischaracterized evidence of Ms. Pace's
daily activities; (4) inadequately assessed Ms. Pace's
limitations due to her irritable bowel syndrome; and (5)
failed to address Ms. Pace's migraines. The Court will
discuss each argument in turn.
Ms. Augustine's, Ms. Akers', and Ms. Sorden's
gave “little weight” to the Mental Impairment
Questionnaires filled out by Ms. Augustine, Ms. Akers, and
Ms. Sorden. R. 21, 909-25. Ms. Pace takes issue with the
ALJ's evaluation of these medical opinions, claiming that
the ALJ misapplied the relevant legal standards.
Pace first argues that the ALJ erred by failing to weigh
these three opinions using the factors provided in 20 C.F.R.
§ 404.1527(c) and analyzed in Watkins v.
Barnhart, 350 F.3d 1297 (10th Cir. 2003). The regulation
requires an ALJ to consider:
• The examining relationship between the individual and
the “acceptable medical source”;
• The treatment relationship between the individual and
a treating source, including its length, nature, and extent
as well as frequency of examination;
• The degree to which the “acceptable medical
source” presents an explanation and relevant evidence
to support an opinion, particularly medical signs and
• How consistent the medical opinion is with the record
as a whole;
• Whether the opinion is from an “acceptable
medical source” who is a specialist and is about
medical issues related to his or her area of specialty; and
• Any other factors brought to our attention, or of
which we are aware, which tend to support or contradict the
Security Ruling (SSR) 06-03p, 2006 WL 2329939, at *3 (Aug. 9,
Pace's argument is not quite right. The ALJ is required
to consider these factors only in assessing “medical
opinions.” 20 C.F.R. § 404.1527(c). “Medical
opinions are statements from . . . acceptable medical
sources.” Id. § 404.1527(a)(2).
“Acceptable medical sources” include licensed
physicians and psychologists, but do not cover many medical
sources like nurse practitioners or therapists. SSR 06-03p,
2006 WL 2329939, at *1-2. Ms. Augustine is a nurse
practitioner while Ms. Akers and Ms. Sorden are therapists,
so they do not qualify as “acceptable medical
sources” who can give “medical opinions.”
See R. 810, 836, 913, 925.
Security Ruling 06-03p clarifies that ALJs should still
consider all opinions from medical sources who are not
“acceptable medical sources” and that, at the
ALJ's discretion, the aforementioned factors can be
applied to these opinions. SSR 06-03p, 2006 WL 2329939, at
*4, 6. The Ruling then summarizes the minimum relevant
factors for considering such opinion evidence as follows:
• How long the source has known and how frequently the
source has ...