Montoya v. Astrue

Filing 16

ORDER. The Commissioner's decision is affirmed, by Judge Lewis T. Babcock on 4/13/11. (gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 10-cv-01262-LTB
MAX MONTOYA,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.
_________________________________________________________________________________
ORDER
_________________________________________________________________________________
Plaintiff, Max Montoya, appeals from the Social Security Administration (“SSA”)
Commissioner’s final decision denying his application for disability insurance benefits, filed
pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and his application for
supplemental security income, filed pursuant to Title XVI of the Social Security Act, 42 U.S.C.
§§ 1381-1383c. Jurisdiction is proper under 42 U.S.C. § 405(g). Oral arguments will not
materially aid in the resolution of this appeal. After consideration of the parties’ briefs, as well
as the administrative record, I AFFIRM the SSA Commissioner’s final order.
I. STATEMENT OF THE CASE
Plaintiff seeks judicial review of the SSA Commissioner’s decision denying his July
2008 applications for disability insurance benefits and supplemental security income.
[Administrative Record (“AR”) 158, 162] After an evidentiary hearing on June 23, 2009, an
Administrative Law Judge (“ALJ”) issued a written ruling on July 24, 2009, denying Plaintiff’s
applications on the basis that he was not disabled because his impairments and assessed residual
functional capacity (“RFC”) did not prevent him from performing work that he performed in the

past (Step Four). [AR 13] The SSA Appeals Council subsequently denied Plaintiff’s
administrative request for review of the ALJ’s determination on April 7, 2010, making the SSA
Commissioner’s denial final for the purpose of judicial review. [AR 3] Plaintiff timely filed his
complaint with this court seeking review of the Commissioner’s decision.
II. FACTS
Plaintiff was born on November 10, 1949, and was 57 years old on his alleged onset date,
and 59 years old on the date of the ALJ’s decision. [AR 37, 38, 162, 170] Plaintiff has a high
school equivalent education, and has worked as a street sweeper operator. [AR 38, 214, 228,
481] Plaintiff alleges that he became disabled on January 20, 2007, and was unable to work due
to colon cancer, mental problems, bad knees and arm, high blood pressure, memory problems,
asthma, attention deficit hyperactivity disorder (ADHD), and hepatitis C. [AR 213, 484]
The medical records related to Plaintiff’s physical impairments reveal that in April 2007,
Plaintiff underwent surgical repair of his colon; specifically, a sigmoid perforation with a
diverting ileostomy. [AR 370] Seven months later, in December 2007, he underwent a right
colectomy and ostomy takedown. [AR 419-21]
On October 9, 2008, Plaintiff participated in a physical consultive examination with Alan
Lichtenberg, M.D. [AR 484-90] Dr. Lichtenberg diagnosed Plaintiff with the following: status
post colon perforation with ostomy and re-attachment; right colectomy in December 2007 with
no indication of cancer; mental and behavioral disorder with paranoia, depression and ADHD;
Hepatitis C, inactive; history of ruptured left biceps, with good functional use; probable torn
ACL in the right knee, with good functional use; high blood pressure, well-controlled; and mild
allergies and asthma. [AR 488] Dr. Lichtenberg concluded that Plaintiff’s physical functioning
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was “very good” and that he had “very minimal limitations.” [AR 488] However, he noted that
Plaintiff may have some “major” psychiatric/psychological problems that would need to be
evaluated. [AR 489]
The records related to Plaintiff’s mental impairments begin with an examination by a
state-agency psychologist, Brett Valette Ph.D., in September 2008. [AR 481-83] Dr. Valette
diagnosed Plaintiff with polysubstance dependence in full remission as reported by the patient,
and nonspecific personality disorder with antisocial traits. Dr. Valette assigned a Global
Assessment Functioning (GAF) of 75. [AR 483] He concluded that Plaintiff’s trouble with
general information and abstractions was due to his failure to finish school, but that his judgment
and reasoning was adequate. It was Dr. Valette’s opinion that Plaintiff “probably struggles with
some generalized anxiety disorder being out of prison and having to deal with people.” [AR 483]
Also in September 2008, Ellen Ryan, M.D., a state-agency psychiatrist, reviewed the
medical records and completed a Psychiatric Review Technique Form. [AR 347-60] Dr. Ryan
opined that Plaintiff had: mild restriction of activities of daily living, moderate difficulties in
maintaining social functioning, and mild difficulties in maintaining concentration, persistence or
pace, with no episodes of decompensation. [AR 357] As to Plaintiff’s functional capacity, it was
Dr. Ryan’s assessment that he retained the mental ability to engage in work that was of limited
significant complexity and that required up to three months to learn techniques, and that
involved only limited interaction with co-workers or the public. [AR 343-46]
On February 2, 2009, Plaintiff began seeing Marilyn Smith, M.D., a psychiatrist at the
Stout Street Clinic. [AR 539-43] Dr. Smith’s treatment notes indicate that at his initial visit she
diagnosed Plaintiff with: psychosis, not otherwise specified (NOS); and bipolar disorder with
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psychosis vs. schizoaffective and panic disorder. Dr. Smith assigned Plaintiff a GAF score of
40. [AR 542] She prescribed Depakote. [AR 543] At a follow-up on April 28, 2009, Dr. Smith
indicated Plaintiff was diagnosed with Psychosis NOS, and assessed his mental status as: “alert
OX3, Pt. disorganized, friendship needed, lots of direction oral reassurances.” [AR 537] On
May 4, 2009, Plaintiff reported that Depakote helped to alleviate his symptoms, but he was still
paranoid. [AR 536] At that last visit, Dr. Smith assessed Plaintiff as “Alert. Disheveled. Speech
rapid and pressured. Loose. Anxious. Distractable OS1/H1” and assigned him a GAF score of
35. [AR 536]
After his third visit, Dr. Smith completed a Mental Impairment Questionnaire, on May
11, 2009, rating Plaintiff’s abilities in numerous areas of functioning. [AR 496] Dr. Smith
concluded that Plaintiff had “no useful ability to function” and was “unable to meet competitive
standards” for several mental abilities, including his ability to: remember work-like procedures;
understand, remember, and carry out very short and simple instructions; sustain an ordinary
routine without special supervision; work in coordination with or proximity to others without
being unduly distracted; make simple work-related decisions; complete a normal workday and
workweek without interruptions from psychologically based symptoms; respond appropriately to
changes in a routine work setting; deal with normal work stress; interact appropriately with the
general public; and maintain socially appropriate behavior. [AR 498-99] Dr. Smith indicated
Plaintiff’s impairments would cause him to be absent from work more than four days per month.
[AR 500-01]
Dr. Smith also completed a Psychiatric Review Technique Form on May 11, 2009, in
which she opined that Plaintiff had schizophrenic, paranoid and other psychotic disorders;
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affective disorders; and anxiety-related disorders. [AR 502] In rating Plaintiff’s functional
limitations, Dr. Smith opined that Plaintiff had marked restriction of activities of daily living,
extreme difficulties in maintaining social functioning, extreme difficulties in maintaining
concentration, persistence or pace, and four or more episodes of decompensation per month. [AR
512-15]
Robert Pelc, a clinical psychologist, reviewed the medical evidence and testified at the
June 2009 hearing as an impartial medical expert. [AR 44, 133] Dr. Pelc testified that the
records indicated a generalized anxiety disorder, a personality disorder NOS with antisocial
features, and a history of poly-substance addiction disorder. [AR 46] Although he found
references to other diagnoses of psychosis, Dr. Pelc could find no medical records to support
those conditions. [AR 46]
Dr. Pelc further testified that it was his opinion that Plaintiff had mild restriction of
activities of daily living; moderate difficulties in maintaining social functioning; moderate
difficulties in maintaining concentration, persistence or pace; and no extended episodes of
decompensation. [AR 47-50] He also testified that there was no evidence in the record that
would suggest the complete inability to function outside of the home environment. [AR 50] Dr.
Pelc testified that Plaintiff had mild limitations in the ability to understand, remember, and carry
out simple instructions; moderate limitations in the ability to understand, remember, and carry
out complex instructions; moderate limitations in the ability to make judgments on complex
work-related decisions; moderate limitations in the ability to interact generally with the public,
supervisors, and co-workers; and moderate limitations in the ability to respond appropriately to
usual work settings and to changes in a routine work setting. [AR 50-51]
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III. LAW
A five-step sequential evaluation process is used to determine whether a claimant is
disabled under Title II and Title XVI of the Social Security Act which is generally defined as the
“inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 137, 107 S.Ct. 2287, 96 L.Ed.2d 119
(1987).
Step One is whether the claimant is presently engaged in substantial gainful activity. If
he is, disability benefits are denied. See 20 C.F.R. §§ 404.1520, 416.920. Step Two is a
determination of whether the claimant has a medically severe impairment or combination of
impairments as governed by 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant is unable to
show that his impairment(s) would have more than a minimal effect on his ability to do basic
work activities, he is not eligible for disability benefits. Step Three determines whether the
impairment is equivalent to one of a number of listed impairments deemed to be so severe as to
preclude substantial gainful employment. See 20 C.F.R. §§ 404.1520(d), 416.920(d). If the
impairment is not listed, he is not presumed to be conclusively disabled. Step Four then requires
the claimant to show that his impairment(s) and assessed residual functional capacity (“RFC”)
prevent him from performing work that he has performed in the past. If the claimant is able to
perform his previous work, the claimant is not disabled. See 20 C.F.R. §§ 404.1520 (e)&(f),
416.920(e)&(f). Finally, if the claimant establishes a prima facie case of disability based on the
four steps as discussed, the analysis proceeds to Step Five where the SSA Commissioner has the
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burden to demonstrate that the claimant has the RFC to perform other work in the national
economy in view of his age, education and work experience. See 20 C.F.R. §§ 404.1520(g),
416.920(g).
IV. ALJ’s RULING
The ALJ ruled that Plaintiff had not engaged in substantial gainful activity since January
20, 2007, the alleged onset date (Step One). [AR 18] The ALJ next determined that Plaintiff had
the following severe impairments: status post colonectomy and an anxiety disorder (Step Two).
[AR 18] The ALJ further determined, however, that such impairments or combination of
impairments did not meet or medically equal a listed impairment – as set forth in 20 C.F.R. Part
404, Subpart P, Appendix 1 – deemed to be so severe as to preclude substantial gainful
employment (Step Three). [AR 20]
As a result, the ALJ went on to find that Plaintiff’s exertional RFC limitations were that
he could: lift and carry bilaterally up to 50 pounds occasionally, 20 pounds frequently, and 10
pounds continuously; when lifting with the left upper extremity alone, lift 20 pounds
occasionally and 10 pounds frequently; sit 4 hours at a time, 8 hours a day, with regular breaks
occurring every 2 hours; stand 2 hours at a time, 6 hours a day; walk 2 hours at a time, 6 hours a
day; occasionally climb ramps, stairs, ladders and scaffolding; frequently balance, stoop, kneel,
crouch and crawl; occasionally reach overhead with the left upper extremity, frequently in all
other directions; and no work at unprotected heights. Plaintiff’s mental RFC limitations were
that he could: understand, remember, and carry out instructions that can be learned within a
period of 30 to 60 days; and only occasionally interact with co-workers, the public, and
supervisors. [AR 23]
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The ALJ then found that Plaintiff was capable of performing his past relevant work as a
street sweeper/operator in that such work does not require the performance of work-related
activities precluded by Plaintiff’s RFC (Step Four). [AR 29] As a result, the ALJ concluded that
Plaintiff was not disabled at Step Four of the sequential process and, therefore, was not under
disability as defined by the Social Security Act. [AR 30]
V. STANDARD OF REVIEW
This court’s review is limited to whether the final decision is supported by substantial
evidence in the record as a whole and whether the correct legal standards were applied.
Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003); White v. Barnhart, 287 F.3d 903,
905 (10th Cir. 2001); Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). Thus, the function
of my review of the factual findings is to determine whether they “are based upon substantial
evidence and inferences reasonably drawn therefrom; if they are so supported, they are
conclusive upon [this] reviewing court and may not be disturbed.” Trujillo v. Richardson, 429
F.2d 1149, 1150 (10th Cir. 1970). With regard to the application of the law, reversal may be
appropriate when the SSA Commissioner either applies an incorrect legal standard or fails to
demonstrate reliance on the correct legal standards. See Winfrey v. Chater, 92 F.3d 1017, 1019
(10th Cir. 1996).
VI. ISSUES ON APPEAL
Plaintiff raises various challenges to the ALJ’s analysis and weight given to the medical
opinion evidence related to his mental impairments and functioning. His primary assertion is
that the ALJ erred in rejecting the opinion of his treating psychiatrist, Dr. Marilyn Smith, and in
relying on the opinion of Dr. Pelc, a non-examining consultant.
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Generally, the opinion of a treating physician is given more weight than that of an
examining consultant, and the opinion of a non-examining consultant is given the least weight.
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). A treating physician opinion must
be given controlling weight if it is supported by “medically acceptable clinical and laboratory
diagnostic techniques,” and it is not inconsistent with other substantial evidence in the record.
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004); see also 20 C.F.R. § 404.1527(d)(2)
and § 416.927(d)(2).
If the opinion of a treating physician is not entitled to controlling weight, it still must be
weighed using the appropriate factors. Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir.
2004). Those factors, set out in 20 C.F.R. § 404.1527(d)(2)(I-II) and § 416.927 , are:
(1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.
See also Social Security Ruling (SSR) 96-2p.
The ALJ is required to give specific reasons for the weight he assigns to a treating
physician opinion, and if he rejects the opinion completely, then he must give specific legitimate
reasons for that rejection. Langley v. Barnhart, supra, 373 F.3d at 1119. When a treating
physician’s opinion is inconsistent with other medical evidence, it is the job of the ALJ to
examine the other medical reports to see if they outweigh the treating physician’s report, not the
other way around. Hamlin v. Barnhart, supra, 365 F.3d at 1215 (quotation omitted).

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In determining the severity of Plaintiff’s mental impairment at Step Three of the
sequential process, the ALJ adopted the opinion of Dr. Pelc. In so doing, the ALJ found that
Dr. Pelc’s testimony is substantiated by detailed reference to evidence in the
treatment record and is consistent with the record as a whole. Dr. Pelc’s opinion
is supported by his knowledge and training as a clinical psychologist as well as
his experience as an expert witness before the Social Security Administration and
his knowledge of the disability program. Further, Dr. Pelc has the opportunity to
review the entire medical evidence record as well as hear the claimants’ testimony
at hearing before offering his opinion. For these reasons, the [ALJ] assigns great
weight to Dr. Pelc’s opinions and assessment. [AR 22]
The ALJ acknowledged Dr. Smith’s opinion that Plaintiff’s mental impairments did meet a listed
impairment – specifically Medical Listing 12.03, 12.04 and 12.06 – but the ALJ determined that
“this opinion is specifically rejected as inconsistent with the medical evidence and the record as
a whole.” [AR 22]
Thereafter, in assessing Plaintiff’s mental RFC, the ALJ analyzed Dr. Smith’s opinions –
as set forth in the Psychiatric Review Technique Form and Mental Impairment Questionnaire –
as follows:
The [ALJ] rejects the opinions and assessments made by Dr. Smith in the [forms]
as being inconsistent with Dr. Smith’s own treatment records and the record as a
whole. For example, in the Mental Impairment Questionnaire Dr. Smith indicated
that the claimant has a medically documented history of chronic organic mental,
schizophrenic etc., or affective disorder of at least 2 years’ duration that has
caused more than a minimal limitation of ability to do any basic work activity,
with symptoms or signs currently attenuated by medication or psychosocial
supported and a residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demand or change in the
environment would be predicted to cause the individual to decompensate. Dr.
Smith also indicated that the claimant has an anxiety related disorder and
complete inability to function independently outside the area of his home.
However, when presented with the same questions in the [Psychiatric Review
Technique Form], Dr. Smith did not indicate that the claimant suffered from those
conditions and/or symptoms.
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Dr. Smith indicated that the claimant has had very minimal response to the
prescribed medications. However, as previously indicated, that claimant told Dr.
Smith that he was better organized, less angry and less hyper on his medications
despite not taking them for a couple of weeks because they were stolen. It is also
noted that Dr. Smith completed these forms after 3 visits with the claimant.
Surely, that is not enough time to realize the therapeutic effect of the medications
to determine whether or not they are effective, especially since the claimant
indicated that he had not taken them consistently over the previous 2 weeks. Dr.
Smith also indicated in the forms that the claimant experiences hallucinations or
delusions. However, Dr. Smith’s contemporaneous treatment notes show that the
claimant specifically denied these symptoms. Dr. Smith indicated in the [Mental
Impairment] Questionnaire that the claim had sleep disturbance but Dr. Smith’s
contemporaneous treatment notes show that the claimant did not have any
difficulty with sleep. Although Dr. Smith indicated that the claimant has had 4
or more episodes of decompensation within a 12 month period, she only began
treating him 3 months earlier and prior to that the record is void of any evidence
of mental health care, counseling, emergency room visits or hospitalizations
in connection with his mental condition. One can only wonder on what basis
Dr. Smith based this opinion as it is not supported by the medical records. Dr.
Smith also indicated that the claimant is afraid to leave his apartment but the
claimant stated that he leaves his apartment at least once a day. The [ALJ]
also points out that the claimant leaves his apartment to work when there is
work available. [AR 27 – emphasis in original]
In addition, the ALJ relied on Dr. Pelc’s testimony at the hearing that:
[H]e found no support in the medical records for the marked limitation contained
in the forms completed by Dr. Smith. Dr. Pelc stated that a person with a GAF
score of 35 would generally have impairment in reality testing and
communication. The person would be illogical, obscure, irrelevant and would be
actively demonstrating significant thought disturbance that would lead to a
variety of problems in terms of their ability to perform basic activities of daily
living, interact adequately with others, maintain any scheduled activity. The
individual would be seriously compromised. Neither Dr. Pelc nor the [ALJ] finds
that the evidence of record, including the claimant’s presentation at hearing,
supports a finding that the claimant is at that level of compromise. Dr. Pelc
further stated that not only is there no support in the record for the opinions of Dr.
Smith, . . . these opinions are in sharp contrast to the level of functioning
described by the consultive examiners in their much more detailed reports. [AR
27-28 - emphasis in original]

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The ALJ went on to conclude that “Dr. Smith’s opinions regarding the claimant’s ability
to engage in work-related mental activities as well as the functional limitations caused by his
impairments can be viewed as a clear attempt at assisting the claimant to obtain benefits through
blatant misrepresentation of the facts. Such opinions should not only be disregarded it should
probably be investigated.” [AR 28] Thus, in failing to adopt Dr. Smith’s opinion and
conclusions, the ALJ relied on Social Security Ruling 00-02p, which requires that evidence in a
claim for benefits should be disregarded if there is reason to believe that fraud or similar fault
was involved in providing that evidence. The ALJ also ruled that ordinary credibility measures
alone, as discussed, provided him with a sufficient basis to disregard the opinion evidence of Dr.
Smith. [AR 29]
First, to the extent that Plaintiff argues on appeal that the ALJ erred in rejecting the
medical opinion of Dr. Smith, as his treating psychiatrist, I disagree. The ALJ’s rulings related
to his rejection of Dr. Smith’s opinions are thorough, and are supported by the record. It is clear
that the ALJ applied the law by complying with 20 C.F.R. § 404.1527 and§ 416.927, and in
applying the specific factors set forth in 20 C.F.R. § 404.1527(d) and § 416.927(d). See Watkins
v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)(ruling that the ALJ is required to “give good
reasons in the notice of determination or decision for the weight assigned to a treating
physician’s opinion”). The ALJ’s order in this case was sufficient “to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion
and the reasons for that weight.” Id.
Because the ALJ gave adequate specific and legitimate reasons for rejecting Dr. Smith’s
opinions, I find no error. See White v. Barnhart, supra, 287 F.3d at 907-08 (Tenth Circuit would
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not re-weigh evidence when the ALJ’s discounting of treating physician’s opinion was based on
legitimate factors such as lack of objective medical evidence supporting treating physician’s
opinion, inconsistencies in the treating physician’s records, and the relatively brief length of the
doctor-patient relationship); see also Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)
(finding no error where ALJ “provided good reasons in his decision for the weight he gave to the
treating sources’ opinions”).
Plaintiff also asserts that the ALJ erred in that his determinations related to Plaintiff’s
metal impairments are not supported by substantial evidence. Specifically, he argues that Dr.
Pelc’s opinion was insufficient to formulate Plaintiff’s mental RFC. Plaintiff asserts that Dr.
Pelc did not examine him, and he did not review the medical treatment records from Dr. Smith.
He also maintains that the only other evidence related to his mental impairments came from Dr.
Valette, a state-agency psychologist, whom examined Plaintiff once and concluded only that
Plaintiff “probably struggles with some generalized anxiety disorder being out of prison and
having to deal with people” without providing an opinion as to his level of functioning. [AR
483] In addition, Dr. Ryan, a state-agency psychiatrist, opined – based on her review of the
records – that Plaintiff had only mild or moderate restrictions, and that he retained the mental
ability to engage in work that was of limited complexity, requiring up to 3 months to learn, and
interaction with supervisors is OK, but less interaction with coworkers or public. [AR 345, 357]
While the evidence related to Plaintiff’s mental impairments is limited, that is primarily
because Plaintiff had not – except for three visits to Dr. Smith after he filed his applications –
sought or received any treatment for his mental health issues. It is clear from the record,
however, that Plaintiff’s reported limitations were inconsistent with the evidence regarding his
13

functional abilities as stated by the ALJ. I conclude that the medical evidence in the record is
sufficient to support the ALJ’s findings related to Plaintiff’s mental impairments. Much of the
evidence in this case was in conflict. The ALJ’s order revels that he considered and analyzed the
contrary evidence before reaching his decision, and I am unable to re-weigh that evidence and/or
substitute my judgment for his.
Finally, I reject Plaintiff’s argument that the ALJ erred in failing to re-contract the
Plaintiff’s treating medical providers for additional evidence under 20 C.F.R. § 404.1512(e) and
§ 416.912(e). While it is the ALJ’s duty to contact a treating psychologist or other medical
source when the evidence received from them is inadequate, that is not the case here. It is not
the rejection of the treating physician’s opinion that triggers the duty to re-contact the physician;
rather it is the inadequacy of the evidence the ALJ receives from the treating physician that
triggers the duty. White v. Barnhart, supra, 287 F.3d at 908. Nothing in the record here
indicates that the evidence received was inadequate or incomplete; rather the ALJ found that the
opinions of Dr. Smith were not supported by the medical record records, but instead were
improperly grounded in her desire to help Plaintiff obtain benefits. Id.

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Accordingly, IT IS THEREFORE ORDERED that the Commissioner’s decision is
AFFIRMED.

Dated: April

13 , 2011 in Denver, Colorado.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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