United States District Court, D. Colorado
MICHAEL S. RICHARDS, Plaintiff,
v.
NANCY A. BERRYHILL, acting Commissioner of Social Security, Defendant.
ORDER AFFIRMING DENIAL OF SOCIAL SECURITY DISABILITY
BENEFITS
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on review of the Social Security
Commissioner's decision denying Plaintiff Michael
Richards' (“Plaintiff”) application for
disability benefits. Jurisdiction is proper under 42 U.S.C.
§ 405(g).
Plaintiff
argues that the administrative law judge's
(“ALJ”) determination that Plaintiff is not
entitled to disability benefits amounts to reversible legal
error for several reasons: (1) the ALJ should have found that
Plaintiff's anxiety and depression are severe
impairments; (2) the ALJ's determination that
Plaintiff's impairments do not meet and are not medically
equivalent to a listed impairment was just “one
boilerplate statement”; (3) in assessing
Plaintiff's residual functional capacity, the ALJ erred
by determining that medical evidence conflicted with
Plaintiff's subjective statements; (4) the ALJ did not
understand the medical evidence; (5) the ALJ did not properly
weight medical opinion evidence; and (6) the ALJ did not
consider all proper evidence in finding that Plaintiff could
perform his past relevant work. (Doc. # 22.)
For the
reasons set forth below, the Court affirms the decision of
the Commissioner to deny Plaintiff's application for
disability benefits.
I.
BACKGROUND
Plaintiff,
born on April 1, 1963, was almost fifty years old on February
17, 2013, the alleged date of the onset of his disability.
(AR at 57-58.)[1] For the five years before this alleged
onset of disability, Plaintiff worked as a delivery driver
for a pharmacy, delivering prescription medications to
homebound patients. (AR at 199-200.) Plaintiff had previously
processed customer orders and managed projects for telecom
companies. (AR at 199-202.)
On
August 27, 2013, Plaintiff filed an application for
disability benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401-34. (AR at 135-36.) Plaintiff
alleged that following the onset of disability on February
17, 2013, he stopped working on July 24, 2013, due to cardiac
heart failure. (AR at 175, 181.) According to Plaintiff, he
needed his wife's assistance and had to rest to talk,
dress, and shower, and became “very fatigued and short
of breath with any activity.” (AR at 228.)
Plaintiff's
application for disability benefits was denied on March 14,
2014, because the Social Security Administration determined
Plaintiff was able to perform past relevant work. (AR at 73.)
Plaintiff requested a hearing before an ALJ on March 26,
2015. (AR at 76.)
Plaintiff,
with the assistance of counsel, appeared before ALJ Lowell
Fortune on April 30, 2015. (AR at 33-55.) An impartial
vocational expert, Martin Rauer, also appeared at the
hearing. (Id.) At the beginning of the hearing,
Plaintiff amended the alleged onset date of his disability to
July 3, 2013. (AR at 35.)
Plaintiff
explained at the hearing that he had not worked since the
alleged onset date “[p]rimarily because of shortness of
breath, fatigue, and headaches.” (AR at 40.) According
to Plaintiff, beginning in February 2013, he was treated
three times over six months for pneumonia, which
“actually turned out to be congestive heart
failure.” (AR at 45.) He experienced “severe
heart failure” in July 2013, and had open-heart surgery
in August 2013. (AR at 52.) As a result of the “heart
disease and the phrenic nerve being cut during the surgery,
” he claims to be short of breath when he walks and
carries on conversations. (AR at 943-45.)[2] Plaintiff added
that “anxiety came on shortly after [his] heart
surgery.” (AR at 52.) Plaintiff also complained of
migraines and headaches, which he attributed to “two
traumatic brain injuries that [he] received in auto
accidents” and related “neck and nerve
damage.” (AR at 48.) At his counsel's request,
Plaintiff estimated that he experiences headaches four times
per week and a migraine once per week. (AR at 943.) Finally,
Plaintiff answered his counsel's question about
psychiatric treatment by describing that he experiences
“sadness [and] despair” and has depression, which
got “significantly worse” since he was diagnosed
with heart failure. (AR at 947, 950.)
On June
18, 2015, the ALJ issued a written decision, in which he
concluded that Plaintiff was not disabled under sections
216(i) and 223(d) of the Social Security Act. (AR at 12-32.)
The ALJ concluded that Plaintiff is capable of performing
past relevant work as a customer order clerk or project
manager and thus did not qualify for disability benefits. (AR
at 27.) On July 27, 2015, Plaintiff requested that the
Appeals Council review the ALJ's decision. (AR at 8.) On
September 29, 2016, the Appeals Council denied
Plaintiff's request for review. (AR at 1-7.) When the
Appeals Council declined review, the ALJ's decision
became the final decision of the Commissioner. Blea v.
Barnhart, 466 F.3d 903, 908 (10th Cir. 2006). Plaintiff
initiated the instant action on November 29, 2016. (Doc. #
1.)
II.
STANDARD OF REVIEW
When
reviewing the Commissioner's decision, the Court is
limited to determining “whether the findings are
supported by substantial evidence and whether the Secretary
applied the correct legal standards.” Pacheco v.
Sullivan, 931 F.2d 695, 696 (10th Cir. 1991); see
also 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . . .”).
First, the Supreme Court has defined “substantial
evidence” as “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. of N.Y. v.
NLRB, 305 U.S. 197, 217 (1938). “Substantial
evidence is more than a scintilla, but less than a
preponderance . . . .” Campbell v. Bowen, 822
F.2d 1518, 1521 (10th Cir. 1987).
In
reviewing the record to make the substantial evidence
determination, the Court “may not reweigh the evidence
nor substitute [its] judgment for the Secretary's.”
Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.
1994). In addition, the Court “may not displace the
agency's choice between two fairly conflicting views,
even though the [C]ourt would justifiably have made a
different choice had the matter been before it de
novo.” Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (quotation marks and citation omitted).
Also, the Court “defer[s] to the ALJ on matters
involving the credibility of witnesses.” Glass v.
Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).
Second,
in addition to the absence of substantial supporting
evidence, “[f]ailure to apply the correct legal
standard or to provide this court with a sufficient basis to
determine that appropriate legal principles have been
followed is grounds for reversal.” Byron v.
Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984); see
also Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th
Cir. 1993). “There are specific rules of law that must
be followed in deciding whether evidence is substantial in
these disability cases.” Frey v. Bowen, 816
F.2d 508, 512 (10th Cir. 1987).
However,
not every error in evaluating evidence or applying the
correct legal standard warrants reversal or remand.
“Courts may not reverse and remand for failure to
comply with a regulation without first considering whether
the error was harmless.” Bornette v. Barnhart,
466 F.Supp.2d 811, 816 (E.D. Tex. 2006); see also Allen
v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004)
(recognizing that the Tenth Circuit has “specifically
applied [the principle of harmless error] in social security
disability cases” and collecting cases). Harmless error
exists where it is “inconceivable” that a
different administrative conclusion would have been reached
absent the error. Frank v. Barnhart, 326 F.3d 618,
622 (5th Cir. 2003).
III.
ANALYSIS
To
determine whether a claimant is disabled as defined in 20
C.F.R. § 404.1505, the Social Security Administration
has established a five-step sequential evaluation process. 20
C.F.R. § 404.1520; see Bowen v. Yuckert, 482
U.S. 137, 140-41 (1987). If a determination is made at any of
the steps that the claimant is or is not disabled,
“evaluation under a subsequent step is not
necessary.” Williams v. Bowens, 844 F.2d 748,
750 (10th Cir. 1988).
Plaintiff
argues that the ALJ erred in six ways. (Doc. # 22.) The Court
addresses each in turn and concludes that reversal is not
warranted.
A.
WHETHER PLAINTIFF'S ANXIETY AND DEPRESSION ARE MEDICALLY
DETERMINABLE, SEVERE IMPAIRMENTS
The
second step of the five-step evaluation requires the decision
maker to determine “whether the claimant has a
medically severe impairment or combination of
impairments.” Yuckert, 482 U.S. at 140-41;
see 20 C.F.R. § 404.1520(a)(4)(ii). That
determination is controlled by the severity regulations, 20
C.F.R. §§ 404.1520(c), 416.920, which establish two
regulatory requirements. First, the complained-of condition
must be “medically determinable.” A
“medically determinable” impairment is one that
“result[s] from anatomical, physiological, or
psychological abnormalities that can be shown by medically
acceptable clinical and laboratory diagnostic
technique.” 20 C.F.R. § 404.1521. Second, the
condition must be “severe.” A “severe
impairment” is one that “significantly limits
[the claimant's] physical or mental ability to do basic
work activities.” 20 C.F.R. § 404.1520(c); see
also Yuckert, 482 U.S. at 141.
In this
case, the ALJ determined that Plaintiff has the following
medically determinable, severe impairments: “chronic
heart disease; pericarditis, status post surgery; unilateral
diaphragm paralysis; sleep apnea; asthma; and migraine
headaches.” (AR at 14.) The ALJ concluded that
Plaintiff's alleged “depressive disorder” and
“anxiety disorder” do “not satisfy both
regulatory requirements” and, therefore, he did not
identify Plaintiff's alleged depression and anxiety as
qualifying impairments. (AR at 15.)
Plaintiff
argues on appeal that the ALJ erred by not including
depression and anxiety as medically determinable, severe
impairments. (Doc. # 22 at 1.) Plaintiff contends that the
record contradicts the ALJ's determination because
“[Plaintiff's] treatment providers . . . show a
longitudinal treatment record for Anxiety and Depression,
beginning . . . in 2012.” (Id.)
Plaintiff's “depression and anxiety are severe
impairments, ” he asserts, because the conditions
“have more than a minimal effect on his
functioning.” (Id. at 2.) To support this
assertion, Plaintiff cites to a consultation report from July
24, 2013, in which the authoring nurse practitioner included
“depression post 2 [motor vehicle crashes]” in
Plaintiff's medical history. (Id.) (citing AR at
343).
The
Court concludes that there is substantial evidence in the
record supporting the ALJ's finding at the second step
that Plaintiff's alleged depression and anxiety are not
medically determinable, severe impairments. See (AR
at 15.) In regard to Plaintiff's anxiety, the ALJ
concluded that the condition “is not medically
determinable” because Plaintiff “has never been
diagnosed with anxiety;” specifically, “no such
diagnosis was made by Dr. Huff, ” Plaintiff's sole
mental health provider. (Id.) The ALJ therefore
reasoned that because Plaintiff's anxiety was not
“demonstrable by medically acceptable clinical and
laboratory diagnostic techniques, ” it was not
medically determinable. (Id.); see 20
C.F.R. § 404.1521. Substantial evidence supports the
ALJ's analysis. Dr. Huff did not diagnose Plaintiff with
anxiety; he only noted that Plaintiff complained of feeling
anxious. (AR at 613-17; 917-21.) Plaintiff's subjective
complaints do not establish that Plaintiff's anxiety is
medically determinable. Moreover, Plaintiff does not cite to
any evidence in the record which establishes a
diagnosis of anxiety by a medically
acceptable clinical and laboratory diagnostic technique.
See generally (Doc. ## 22, 24.) Providers' notes
of Plaintiff's subjective statements about his symptoms
do not suffice. See, e.g., (AR at 762.)
Regarding
Plaintiff's depression, the ALJ concluded that it is
“not severe” and “does not impose more than
a minimal effect on [Plaintiff's] ability to perform
basic work functions.” (AR at 15); see 20
C.F.R. § 404.1520(c). The ALJ observed that Plaintiff
“has only received sporadic or intermittent treatment
for his depression.” (Id.) Substantial
evidence supports the ALJ's conclusion that
Plaintiff's depression is not severe. The record shows
that Plaintiff was treated by Dr. Huff only nine times over
the course of thirteen months (July 2013 to August 2014). (AR
at 613-16, 917-21.) Dr. Huff wrote in his progress notes that
Plaintiff's orientation was “fully intact”
and his thought process was “logical” during
these visits. (AR at 917-21.) Moreover, other providers noted
Plaintiff exhibited a “normal” and
“appropriate” mood and affect. E.g., (AR
at 434, 620, 749, 889.) The Court is not persuaded otherwise
by Plaintiff's unsubstantiated argument that the effects
of depression “objectively prove more than minimal
mental work-related limitations in concentration[, ]
persistence[, ] or pace.” (Doc. # 24 at 3.)
For
these reasons, the Court concludes that substantial evidence
supports the ALJ's determination that Plaintiff's
anxiety and depression are not medically determinable, severe
impairments. Accordingly, the Court need not reach the
Commissioner's alternative argument that any alleged
error was harmless. See (Doc. ## 23 at 9-10, 24 at
3.)
B.
WHETHER THE ALJ'S CONCLUSION THAT PLAINTIFF'S
IMPAIRMENTS DO NOT MEET AND ARE NOT MEDICALLY EQUIVALENT TO A
LISTED IMPAIRMENT WAS AN INSUFFICIENT “BOILERPLATE
STATEMENT”
At step
three of the five-step evaluation, the decision maker
determines whether the claimant's impairment (or
combination of impairments) “is equivalent to one of a
number of listed impartments that [the Commissioner]
acknowledges are so severe as to preclude substantial gainful
activity.” Yuckert, 482 U.S. at 142;
see 20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920. The list of such impairments is found
at Appendix 1 of 20 C.F.R. 404, Subpt. P.
In this
case, the ALJ found that Plaintiff's severe impairments,
considered individually and collectively, do not meet or
medically equal the severity of any of the listed
impairments. (AR at 15.) The ALJ briefly stated that none of
Plaintiff's treating or examining doctors had
“identified findings equivalent in severity to the
criteria of any listed impairment” and that the
evidence does not “show medical findings that are in
[sic] the same or equivalent of those of any listed
impairment.” (AR at 16.)
Plaintiff
argues that the ALJ's finding amounted to “one
boilerplate statement.” (Doc. # 22 at 3.) Plaintiff
relies on Clifton v. Chater, 79 F.3d 1007, 1009
(10th Cir. 1996), in which the Tenth Circuit remanded for
additional proceedings at step three of a disability benefits
appeal because “the ALJ did not discuss the evidence or
his reasons for determining that appellant was not disabled
at step three, or even identify the relevant Listing or
Listings; he merely stated a summary conclusion that
appellant's impairments did not meet or equal any Listed
Impairment.” (Doc. # 22 at 4.) “Such a bare
conclusion, ” according to the Tenth Circuit, “is
beyond meaningful judicial review.” Clifton,
79 F.3d at 1009. The Tenth Circuit explained that the ALJ was
required by 42 U.S.C. 405(b)(1) “to discuss the
evidence and explain why he found that appellant was not
disabled at step three.” Id. Presumably
applying Clifton to his own case, Plaintiff argues
that the ALJ's “failure to make findings at this
step is reversible and indefensible legal error.” (Doc.
# 22 at 4.)
The
Court finds that the ALJ did err by failing “to discuss
the evidence and explain why he found that [Plaintiff] was
not disabled at step three.” See Clifton, 79
F.2d at 1009 (citing 42 U.S.C. 405(b)(1)). However, the
ALJ's error does not warrant reversal or a remand.
Clifton does not require reversal where “the
ALJ's factually substantiated findings at steps four and
five of the evaluation process alleviates
any concern that a claimant might have been
adjudged disabled at step three.” Fischer-Ross v.
Barnhart, 431 F.3d 729, 730 (10th Cir. 2005). Such a
reading of Clifton “would lead to unwarranted
remands needlessly prolonging administrative
proceedings.” Id.
Fischer-Ross
is instructive. In that case, like here, the ALJ's
analysis at step three was a single sentence and did not
discuss particular evidence.[3] Id. at 731-32.
The ALJ
proceeded to steps four and five, concluding “in
alternative determinations that [the claimant] was not
disabled because under step four she retained the residual
functional capacity (RFC) to perform both her past work as a
cashier/checker and desk clerk and under step five retained
the RFC to perform various other clerical and office
jobs.” Id. at 732. The Commissioner argued
that remand was unnecessary because “an ALJ's
findings at other steps of the sequential process may provide
a proper basis for upholding a step three conclusion that a
claimant's impairments do not meet or equal any listed
impairment.” Id. at 733. The Tenth Circuit
agreed:
Clifton does not remotely suggest that findings at
other steps of an ALJ's analysis may never
obviate the lack of detailed findings at step three.
Clifton sought only to ensure sufficient development
of the administrative record and explanation of findings to
permit meaningful review. . . . But where an ALJ provides
detailed findings, thoroughly reviewed and upheld by the
district court, that confirm rejection of the listings in a
manner readily reviewable, requiring reversal would extend
Clifton beyond its own rationale. Neither
Clifton's letter nor spirit require a remand for
a more thorough discussion of the listings when confirmed or
unchallenged findings made elsewhere in the ALJ's
decision confirm the step three determination under review.
Id. at 734. The Tenth Circuit then considered the
ALJ's findings at steps four and five and concluded that
the detailed findings, “coupled with indisputable
aspects of the medical record, conclusively preclude[d] [the
claimant's] qualification under the listings at step
three. No reasonable factfinder could conclude
otherwise.” Id. at 734-35. The court
contrasted the ALJ's thorough findings with those in
Clifton, where the “only finding mentioned . .
. was an RFC for a ‘limited range of sedentary'
work.” Id. at 734 (quoting Clifton,
79 F.3d at 1009). Therefore, the Tenth ...