United States District Court, D. Colorado
ORDER
KRISTEN L. MIX, MAGISTRATE JUDGE.
This
matter is before the Court[1] on the Social Security
Administrative Record [#11], [2] filed November
13, 2018, in support of Plaintiff’s Complaint [#1]
seeking review of the decision of Defendant Nancy A.
Berryhill, Acting Commissioner of the Social Security
Administration, (“Defendant” or
“Commissioner”) denying Plaintiff’s claim
for disability insurance benefits pursuant to Title II of the
Social Security Act (the “Act”), 42 U.S.C. §
401 et seq., and for supplemental security income benefits
pursuant to Title XVI of the Act, 42 U.S.C. § 1381 et
seq. On December 24, 2018, Plaintiff filed an Opening Brief
[#16] (the “Brief”). Defendant filed a Response
[#17] in opposition, and Plaintiff filed a Reply [#18]. The
Court has jurisdiction to review the Commissioner’s
final decision under 42 U.S.C. §§ 405(g) and
1383(c). The Court has reviewed the entire case file and the
applicable law and is sufficiently advised in the premises.
For the reasons set forth below, the decision of the
Commissioner is REVERSED and
REMANDED.
I.
Background
Plaintiff
alleges that he became disabled at the age of thirty-three on
December 10, 2015. Tr. 12, 22.[3] On December 16, 2015, Plaintiff
filed applications for disability insurance benefits under
Title II and for supplemental security income under Title
XVI. Tr. 12. On February 21, 2018, an Administrative Law
Judge (the “ALJ”) issued an unfavorable decision.
Tr. 23.
The ALJ
determined that Plaintiff met the insured status requirements
of the Act through December 31, 2021, and that Plaintiff had
not engaged in substantial gainful activity
(“SGA”) since December 10, 2015, the alleged
onset date. Tr. 14. The ALJ found that Plaintiff suffers from
six severe impairments: (1) degenerative disc disease with
stenosis, (2) congenital pes cavus, (3) status-post spinal
cord stimulator, (4) obesity, (5) depression, and (6)
anxiety. Tr. 14. However, the ALJ also found that these
impairments, individually or in combination, do not meet or
medically equal “the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).” Tr. 15. The ALJ next concluded that
Plaintiff has the residual functional capacity
(“RFC”) to perform light work with the following
limitations: (1) he can occasionally bend, stoop, squat,
crouch, and crawl; (2) he can frequently push and pull with
the upper extremities; and (3) he is limited to occasional
work interactions with the public. Tr. 16. Based on the RFC
and the testimony of an impartial vocational expert
(“VE”), the ALJ found that Plaintiff could
perform no past relevant work, but that he was able to
perform the representative occupations of mail clerk, office
helper, marker, document preparer, eyeglass frame polisher,
and surveillance system monitor. Tr. 21-22. She therefore
found Plaintiff not disabled at step five of the sequential
evaluation. Tr. 23. The ALJ’s decision has become the
final decision of the Commissioner for purposes of judicial
review. 20 C.F.R. §§ 404.981, 416.1481.
II.
Standard of Review and Applicable Law
Pursuant to the Act:
[T]he Social Security Administration is authorized to pay
disability insurance benefits and Supplemental Security
Income to persons who have a “disability.” A
person qualifies as disabled, and thereby eligible for such
benefits, “only if his physical or mental impairment or
impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy.”
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003)
(quoting 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B)). Under the applicable legal standard, a
claimant is disabled if he or she is unable “to engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment . . .
which has lasted or can be expected to last for a continuous
period of not less than twelve months.” 42 U.S.C.
§ 423(d)(1)(a); see also Wall v.
Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20
C.F.R. § 416.905(a)). The existence of a qualifying
disabling impairment must be demonstrated by “medically
acceptable clinical and laboratory diagnostic”
findings. 42 U.S.C. §§ 423(d)(3), 423(d)(5)(A).
“When
a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the
combined effects of the impairments in making a disability
determination.” Campbell v. Bowen, 822 F.2d
1518, 1521 (10th Cir. 1987) (citing 42 U.S.C. §
423(d)(2)(C)). However, the mere existence of a severe
impairment or combination of impairments does not require a
finding that an individual is disabled within the meaning of
the Act. To be disabling, the claimant’s condition must
be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months.
See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir.
1995).
The
Court reviews a final decision by the Commissioner by
examining the administrative record and determining
“whether the [ALJ’s] factual findings are
supported by substantial evidence in the record and whether
the correct legal standards were applied.” Wilson
v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010).
However, the Court “may neither reweigh the evidence
nor substitute [its] judgment for that of the agency.”
Harper v. Colvin, 528 Fed.Appx. 887, 890 (10th Cir.
2013) (quoting Barnett v. Apfel, 231 F.3d 687, 689
(10th Cir. 2000)). In other words, the Court does not
reexamine the issues de novo. Sisco v. U.S. Dep’t
of Health & Human Servs., 10 F.3d 739, 741 (10th
Cir. 1993). Thus, even when some evidence could support
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).
A.
Legal Standard
The
Social Security Administration uses a five-step framework to
determine whether a claimant meets the necessary conditions
to receive Social Security benefits. See 20 C.F.R.
§§ 404.1520, 416.920. The claimant bears the burden
of proof at steps one through four, and if the claimant fails
at any of these steps, consideration of any subsequent step
or steps is unnecessary. Williams v. Bowen, 844 F.2d
748, 750 (10th Cir. 1988) (“If a determination can be
made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not
necessary.”). The Commissioner bears the burden of
proof at step five. Bowen v. Yuckert, 482 U.S. 137,
146 n.5 (1987).
Step
one requires the ALJ to determine whether a claimant is
“presently engaged in substantial gainful
activity.” Wall, 561 F.3d at 1052 (quoting
Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.
2004)). If not, the ALJ considers at step two whether a
claimant has “a medically severe impairment or
impairments.” Id. “An impairment is
severe under the applicable regulations if it significantly
limits a claimant’s physical or mental ability to
perform basic work activities.” Wall, 561 F.3d
at 1052 (citing 20 C.F.R. § 404.1521). Next, at step
three, the ALJ considers whether a claimant’s medically
severe impairments are equivalent to a condition
“listed in the appendix of the relevant disability
regulation, ” i.e., the
“Listings.” Wall, 561 F.3d at 1052
(quoting Allen, 357 F.3d at 1142). “If a
claimant’s impairments are not equivalent to a listed
impairment, the ALJ must consider, at step four, whether a
claimant’s impairments prevent [him or her] from
performing [his or her] past relevant work.”
Wall, 561 F.3d at 1052 (citing Allen, 357
F.3d at 1142). “Even if a claimant is so impaired, the
agency considers, at step five, whether [he or she] possesses
the sufficient [RFC] to perform other work in the national
economy.” Id.
B.
Substantial Evidence
An ALJ
must consider all evidence and explain why he or she finds a
claimant not disabled. Clifton v. Chater, 79 F.3d
1007, 1009 (10th Cir. 1996). However, the ALJ need not
specifically “reference everything in the
administrative record.” Wilson, 602 F.3d at
1148. “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Id. at 1140 (internal quotation
marks omitted). “It requires more than a scintilla, but
less than a preponderance.” Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007). A decision by the ALJ is
not based on substantial evidence “if it is overwhelmed
by other evidence in the record . . . .” Grogan v.
Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In
other words, the Court’s determination of whether the
ALJ has supported his or her ruling with substantial evidence
“must be based upon the record taken as a whole.”
Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.
1994). Further, evidence is not substantial if it
“constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In
addition, “if the ALJ failed to apply the correct legal
test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
III.
Analysis
Plaintiff
makes two primary arguments in his assertion that the ALJ
committed reversible error. First, Plaintiff argues that the
“RFC is not supported by substantial evidence because
the ALJ failed to properly weigh the opinion evidence of
record.” Brief [#16] at 14-19. Second,
Plaintiff argues that the “ALJ erred by failing to
include mental limitations in the RFC to account for her PRT
analysis, and also failed to include limitations
corresponding to the opinions given great weight.”
Id. at 19-21.
A.
Step Four: Opinion Evidence Provided by Dr. Hargett and PA
Prochnio
First,
Plaintiff argues that the “RFC is not supported by
substantial evidence because the ALJ failed to properly weigh
the opinion evidence of record.” Brief [#16]
at 14-19. This argument consist of a number of sub-arguments,
but all appear to be aimed toward the ALJ’s step four
RFC analysis. See id.
Plaintiff
argues that the ALJ failed to properly weigh the opinions of
psychologist Harl Hargett, Ph.D. (“Dr. Hargett”),
and Kirk Prochnio, PA-C (“PA Prochnio”).
Id. With respect to their medical opinions, the ALJ
stated:
The undersigned also considered the more limiting opinion of
the claimant’s psychologist Harl Hargett, Ph.D. This
opinion indicates that the claimant can only stand and sit
for up to a 1/3 of each eight-hour workday and can only lift
up to twenty pounds occasionally and up to five pounds
frequently, along with the ability to only infrequently to
occasionally perform manipulative activities or postural
activities. He also indicated that the claimant would be off
task up to 70 percent of the time and need excessive breaks.
He would also need to alternate positions every thirty
minutes. Dr. Hargett also indicated that the claimant had
marked limitation in his ability to function in the mental
demands of work and would be off task 60 percent of a typical
day due to mental symptoms. He described many marked
limitations in areas of understanding and memory, sustaining
concentration and persistence, interacting socially, and
adapting.
There is also a more limiting opinion from Kirk Prochnio,
PA-C. According to Mr. Prochnio, the claimant can sit
occasionally in eight-hours and occasionally lift up to five
pounds and infrequently twenty or more. The claimant is
limited to no more than occasional manipulative and
infrequent postural abilities with the need to lie down
during the day and shift positions and be off task more than
fifty percent of a typical day.
The extreme limitations noted by these treatment providers
are not supported by the relatively mild findings upon
imaging. They are not consistent with the examinations [sic]
findings, including the longitudinal evidence showing
relatively intact strength, sensory perception, motor
function, and gait. They are not necessarily consistent with
the claimant’s admissions of improvement []or with his
relatively active daily activities, including his ability to
be a caretaker to his two young kids or his ability to work
part-time. Moreover, Dr. Hargett’s statement in regards
to the claimant’s physical functioning is out of his
area of expertise as he is not a physician. Additionally, Mr.
Prochnio is not a qualified medical source. He did not
adequately explain physical ...