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Richards v. Colvin

United States District Court, D. Colorado

November 27, 2017

NANCY A. BERRYHILL, acting Commissioner of Social Security, Defendant.



         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.)


         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.


         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.)


         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 ...

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