Walsh v. Astrue

Filing 21

ORDER AFFIRMING DENIAL OF SOCIAL SECURITY DISABILITY BENEFITS. The ALJ's denial of social security disability benefits is affirmed. Each party to pay its own costs and attorneys' fees, by Judge Christine M. Arguello on 5/27/11. (gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 10-cv-01520-CMA
KEVIN WALSH,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.

ORDER AFFIRMING DENIAL OF SOCIAL SECURITY DISABILITY BENEFITS

This matter is before the Court on Plaintiff Kevin Walsh’s appeal of the
Commissioner’s March 30, 2009 decision denying his claim for Disability Insurance
Benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-34. Jurisdiction
is proper under 42 U.S.C. § 405(g).
I.

BACKGROUND
Plaintiff Kevin Walsh was born in 1983, and was 19 years old on his alleged

onset disability date of October 1, 2002. He has at least a high school education and
has previously worked as a grocery store bagger, beverage distributor and stocker,
busser, and order taker; however, Plaintiff has no past relevant work. (AR 23, 134).

Plaintiff alleges disability due to mental illness, specifically, schizophrenia and
depression. (AR 133).
Plaintiff applied for Disability Insurance (Title II) benefits on June 21, 2007. (AR
91-94).1 Plaintiff alleged an onset disability date of October 1, 2002. (AR 133). His
claims were initially denied on August 23, 2007. (AR 66). Plaintiff subsequently
requested a hearing, which was held on August 21, 2008. (AR 26-65).
A.

HEARING BEFORE THE ALJ

At the hearing, Plaintiff testified as to the nature of his disabilities and his daily
activities. Plaintiff stated that he was working about fifteen hours per week for his
family’s beverage distribution business, for which he gets paid about $9.00 per hour,
which amounts to over $2,000 per quarter. (AR 31-32). Plaintiff also stated that for the
last three years he has been pursuing a creative arts and technologies degree at San
Juan College, which would allow him to pursue a career in graphic design, and he
hopes to earn his degree in about one more year. (AR 34-35). Plaintiff has problems
concentrating and thinking clearly, but earns Bs and Cs in school. (AR 35-36). Plaintiff
lives at home with his parents. (AR 36).
Conflicting testimony was offered as to the extent of Plaintiff’s ability to socialize
with others. Plaintiff responded in the affirmative when asked if he gets along with
people okay. (AR 38). Plaintiff also stated that he has friends with whom he plays

1

Claimant also filed a Title XVI application on June 14, 2007, for benefits under Title XVI, but his
application was denied for excess resources and Plaintiff did not request a hearing. Accordingly, Plaintiff’s
appeal solely concerns his Title II application. (See AR 14).

2

video games and spends time at their homes and with them at malls. (Id.) However,
Plaintiff stated that he has not seen his friends in a few months because he has been
“busy lately.” (AR 44). Plaintiff also responded in the affirmative when asked if he
exercises a lot. (AR 38) Specifically, Plaintiff exercises at the recreation center and
does “a lot of snowboarding.” (AR 38-39). Plaintiff also testified that he goes to music
concerts “every once in a while,” goes to movies about once a month with friends or
family, and goes out to eat about once a month with his family. (AR 40-41, 44).
Plaintiff testified that he sees a doctor, who prescribes medications, for his
emotional problems about once a month. (AR 41-42). The treatment has helped
Plaintiff. In the past, he had delusions and auditory hallucinations, but he no longer has
this problem. (AR 42).
Plaintiff’s mother, Linda Walsh, also testified. (AR 45-53). She stated that
Plaintiff is not a self-starter, but usually does what he is instructed to do, provided that
the instructions are simple and clearly defined. (AR 45). Ms. Walsh described Plaintiff
as “quiet and reclusive”; she has not seen Plaintiff in contact with any of his friends
since high school and she has never seen him spend time at venues where a lot of
young people gather. (AR 46). However, Plaintiff is comfortable attending summer
picnics and barbecues with the extended family, which he attends “more than 50
percent of the time,” if the gathering is away from home, and which he attends more
frequently if the gathering is at home. (AR 48). Ms. Walsh also described Plaintiff as

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prone to setting unrealistic goals and commented that Plaintiff’s progress in college was
“slow and not very on track.” (AR 47).
Ms. Walsh briefly described Plaintiff’s first psychotic episode, which occurred
when Plaintiff was 19 and resulted in his being fired from his summer job; Plaintiff did
not understand why he was terminated and, prior to the termination, his job had made
him irritable, in part because his duties kept shifting. (AR 50). Ms. Walsh also stated
that Plaintiff appears to get easily overwhelmed or stressed by tasks; in the family
business, he is most successful if he is given very simple tasks with very clear
instructions and tasks that do not require him to be away from home for more than three
to four hours. (AR 51).
Plaintiff’s father, Tim Walsh, also testified at the hearing in connection with the
extent of Plaintiff’s employment at the family business and Plaintiff’s socialization. (AR
54-60). With respect to Plaintiff’s social activities, Mr. Walsh stated that Plaintiff attends
about two concerts a year, but usually by himself. (AR 57). Mr. Walsh also stated that
Plaintiff’s medication “has certainly helped” but it has made Plaintiff lethargic. (AR 58).
With respect to Plaintiff’s employment prospects, Mr. Walsh expressed concern about
Plaintiff’s ability to keep a job and suggested that Plaintiff would have trouble with
punctuality or competency. (AR 58).

4

B.

VOCATIONAL EXPERT TESTIMONY

Martin Rower, a vocational expert testified at the hearing. He opined on three
hypotheticals posed by the ALJ, as well as a hypothetical question posed by Plaintiff’s
attorney. (AR 60-64). First, the ALJ presented the following hypothetical:
Moderate limitations on detailed instructions, understanding and
following through on them[,] . . . at attention and concentration of the
task for extended periods . . . “
(AR 61). The vocational expert opined that such an individual could perform entry level
jobs at SVP 1 and 2, such as a small product assembler, cafeteria attendant, and
electronics worker. (AR 62).
Next, the ALJ presented the following hypothetical:
Same vocational profile. Assume additionally the following. A lot of
psychological things that may not be proper for the hypothetical.
There are no delusions or hallucinations. There is no chronic grossly
disorganized behavior. But he does have problems with his thinking,
some logical thinking. Those are some of the psychological
statements not specified on the RFC [Residual Functional Capacity]
. . . . He does not have restrictions in activities of daily living. But he
does have severe limitations in social functioning . . . . I think that
would give you severe problems due to public, coworkers,
supervisors. Moderate limitation in attention and concentration at
some place and time. One or two decompensations2 . . . . No physical
disabilities or problems. He would have a problem on regular
attendance. Says schedule problems would be a problem.
(AR 62). In response, the vocational expert concluded that all those limitations would
render the individual “unable to perform in a competitive labor market.” (Id.)

2

The ALJ clarifies that the decompensations are anxiety-related and result in a social withdrawal;
the shorter episodes last about one week, one episode lasted one month. (AR 62, 259). Plaintiff’s first
episode occurred when he was 19.

5

The ALJ then presented a third hypothetical, namely an individual who could not
sustain a forty-hour work week, at eight hours a day. (Id.) The vocational expert opined
that such an individual would be unable to perform in a competitive labor market. (Id.)
Plaintiff’s attorney then presented the following modified version of the ALJ’s first
hypothetical:
[A]dding a marked limitation in the ability to accept instructions and
respond appropriately to criticism from the supervisors, marked
problem in the ability to get along with coworkers or peers without
distraction[.]
(AR 63-64). The vocational expert opined that such an individual would be unable to
perform in a competitive labor market.
C.

THE ALJ’S DECISION3

On March 30, 2009, the ALJ issued a decision, finding that Plaintiff was not
disabled. (AR 20-24). The ALJ determined that:
(1)

Plaintiff has not engaged in substantial gainful activity since October 1,
2002, the alleged onset date;

(2)

Plaintiff has the following severe impairments: schizophrenia, anxiety, and
history of polysubstance abuse;

(3)

Plaintiff does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1;

3

Due to the death of the ALJ who presided at the hearing, a different ALJ issued the decision,
based on a review of the hearing’s transcript and the record.

6

(4)

Plaintiff has the RFC to perform sedentary to heavy work (no external
limitations), except moderate limitations on understanding and following
through on detailed instructions, in concentration and attention to tasks,
and ability to follow schedule within customary tolerances;

(5)

Although Plaintiff’s medically determinable impairments could reasonably
be expected to produce the alleged symptoms, Plaintiff’s statements
concerning the intensity, persistence and limiting effects of those
symptoms are not credible to the extent they are inconsistent with
Plaintiff’s RFC;

(6)

Plaintiff has no past relevant work. However, considering Plaintiff’s age,
education, work experience, and residual functional capacity, jobs exist in
significant numbers in the economy that Plaintiff can perform]; and

(7)

Plaintiff has not been under a disability, as defined under the Social
Security Act, from October 1, 2002, the alleged disability onset date,
through the date of the decision.

(AR 16-24).
On May 26, 2009, Plaintiff filed a request with the Appeals Council for review (AR
10), which the Council denied on April 29, 2010. (AR 1-5). On June 28, 2010, Plaintiff
filed a civil action, seeking judicial review of the denial of Social Security benefits. (Doc.
#1). The Social Security Administrative Record was filed with the Court on September
10, 2010. (Doc. #9). On November 9, 2010, Plaintiff filed his Opening Brief. (Doc.

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#14). Defendant, the Commissioner of Social Security, responded on December 14,
2010. (Doc. #15). Plaintiff did not file a Reply. On May 23, 2011, oral argument was
presented before this Court, and the Court took the matter under advisement. (Doc.
#20).
In this appeal, Plaintiff contends that the ALJ erred in two respects: (1) the ALJ
failed to assess correctly the opinions of Plaintiff’s treating and examining physicians;
and (2) the ALJ failed to determine correctly Plaintiff’s RFC. (Doc. #14).
II.

STANDARD OF REVIEW
A.

Standard of Review

The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct
legal standards were applied. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. It requires more than a scintilla, but less than a
preponderance.” Id. (quoting Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)). The
Court does not re-weigh the evidence or substitute its judgment for that of the
Commissioner. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). “If the evidence
is susceptible to more than one rational interpretation, the court may not substitute its
judgment for that of the Commissioner.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th
Cir. 2001) (unpublished) (citing Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999);
Morgan v. Comm’r, 169 F.3d 595, 599 (9th Cir. 1999)).

8

B.

Evaluation of Disability

The qualifications for disability insurance benefits under the Social Security Act
are that the claimant meets the insured status requirements, is less than sixty-five years
of age, and is under a “disability.” Flint v. Sullivan, 951 F.2d 264, 267 (10th Cir. 1991).
The Social Security Act defines a disability as an “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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A)
(2006) (emphasis added). “[A] medical finding of disability is not based solely on
objective test results. It includes an evaluation of the patient’s medical history and the
physician’s observations of the patient, and necessarily involves an evaluation of the
credibility of the patient’s subjective complaints [.]” Nieto v. Hecker, 750 F.2d 59, 61-62
(10th Cir. 1984).
III.

ANALYSIS
A.

Assessment of the Opinions of Plaintiff’s Treating and Examining
Physicians
1.

Dr. Lynn Partridge, the Treating Psychiatrist

Plaintiff takes issue with the fact that the ALJ accorded the opinions of Plaintiff’s
treating psychiatrist, Dr. Lynn Partridge moderate weight, rather than controlling weight.
(Doc. #14 at 30).4 Plaintiff also takes issue with the ALJ’s reliance on Plaintiff’s

4

All page number citations refer to the court’s CM/ECF docketing system and not to the
document’s original numbering.

9

activities such as attending college courses and spending much time playing video
games and asserts that these activities fail to undermine Plaintiff’s assertions
concerning his social impairments and fail to show an ability to perform in a competitive
labor market. Specifically, Plaintiff asserts that he is only taking one credit hour at a
time and his penchant for playing video games “shows a reclusiveness and obsession
with non-productive repetitive activity.” (Id. at 31-32). Plaintiff also complains that the
ALJ’s decision to downgrade Dr. Partridge’s marked and extreme assessments of
Plaintiff’s limitations to moderate is unsupported by the record. (Id. at 32). Finally,
Plaintiff finds fault with the ALJ’s conclusion that no evidence of decompensation exists,
even in the face of Dr. Partridge’s notation of three instances of such in Plaintiff’s past.
(Id.)
Pursuant to 20 C.F.R. § 404.1527(d)(2), the ALJ must consider certain factors
when assessing treating medical source opinions. The opinion of a treating source is
generally given controlling weight. However, an ALJ can disregard that opinion, but only
if it is contradicted by other medical evidence or otherwise inconsistent with substantial
evidence in the record. See Marshall v. Astrue, 315 F. App’x 757 (10th Cir. 2009)
(unpublished); 20 C.F.R. § 404.1527(d)(2); see also S.S.R. 96-2P, at *2 (1996) (“It is an
error to give an opinion controlling weight simply because it is the opinion of a treating
source if it is not well-supported by medically acceptable clinical and laboratory
diagnostic techniques or if it is inconsistent with the other substantial evidence in the

10

case record.”). The analysis of how much weight to accord a treating source opinion is
sequential.
An ALJ must first consider whether the opinion is well-supported by
medically acceptable clinical and laboratory diagnostic techniques. If
the answer to this question is “no,” then the inquiry at this stage is
complete. If the ALJ finds that the opinion is well-supported, he must
then confirm that the opinion is consistent with other substantial
evidence in the record. In other words, if the opinion is deficient in
either of these respects, then it is not entitled to controlling weight.
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal quotation and
citation omitted); see also 20 C.F.R. § 404.1527(d)(3) (“The more a medical source
presents relevant evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight we will give that opinion. The better an explanation
a source provides for an opinion, the more weight we will give that opinion.”).
If a treating source’s5 opinion is not given controlling weight, the ALJ must “give
good reasons” and consider a list of regulatory factors. Watkins, 350 F.3d at 1301
(reversing denial of benefits where the ALJ failed to articulate the weight, if any, he gave
the treating source’s opinion, and the reasons for assigning that weight or for rejecting
the opinion); see also 20 C.F.R. § 404.1527(d)(2).6 Though the ALJ must consider all

5

“Treating source means [the claimant’s] own physician, psychologist, or other acceptable
medical source who provides [the claimant], or has provided [the claimant], with medical treatment or
evaluation and who has, or has had, an ongoing treatment relationship with [the claimant].” 20 C.F.R. §
404.1502.
6

These regulatory factors include: (1) the length of the treatment relationship and 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. 20 C.F.R. §§ 404.1527(d)(2)(I),

11

these factors, he need not discuss all of them. See Andersen v. Astrue, 319 F. App’x
712, 718 (10th Cir. 2009) (unpublished). The ALJ’s decision must be specific enough to
make clear to subsequent reviewers the weight given to the treating physician’s opinion
and the reasons for that weight. See Watkins, 350 F.3d at 1300-01; Miller v. Chater, 99
F.3d 972, 976 (10th Cir. 1996); Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).
In the instant case, on August 11, 2008, Dr. Partridge responded to questions
from Plaintiff’s attorney concerning Plaintiff’s impairment. (AR 257-265). In particular,
Dr. Partridge opined that Plaintiff experiences incoherence, loosening of associations,
illogical thinking, or poverty of content of speech associated with blunt affect or flat
affect, and noted that Plaintiff currently suffers from emotional withdrawal and/or
isolation. (AR 258). Dr. Partridge further noted that Plaintiff has severe difficulties in
maintaining social functioning. (Id.) In support, Dr. Partridge noted that Plaintiff has not
had any interaction with friends for over a year, most of Plaintiff’s social activity was
limited to his immediate family, and Plaintiff does not initiate social activities.
Additionally, Dr. Partridge assessed the following mental limitations:
(1)

Understanding and memory:
•
ability to understand and remember very short and simple
instructions: MODERATE
•
ability to understand and remember detailed instructions:
EXTREME

(2)

Sustained concentration and persistence:
•
ability to carry out very short and simple instructions: MODERATE
•
ability to carry out detailed instructions: MARKED

(d)(2)(ii), (d)(3)-(d)(6).

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•
•

•

ability to maintain attention and concentration for extended periods:
MARKED
ability to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances:
MODERATE
ability to work in coordination with or in proximity to others without
being distracted by them: EXTREME

(3)

Social interaction:
•
ability to interact appropriately with the general public: MODERATE

(4)

Adaptation:
•
ability to set realistic goals or make plans independently of others:
EXTREME

(AR 263-264).
In the March 30, 2009 Decision, the ALJ concluded that Plaintiff had moderate
difficulties in social functioning, despite also acknowledging Dr. Partridge’s conclusion
that Plaintiff has severe limitations in maintaining social functioning. (AR 17). Even
though Dr. Partridge is a treating source, the ALJ accorded his opinions moderate
weight, rather than controlling weight, because Dr. Partridge’s opinion was “not entirely
credible based on the overall evidence.” Specifically, the ALJ looked to the bulk of Dr.
Partridge’s treatment notes from September 2006 through August 2007, and pointed to
the very few notations concerning Plaintiff’s mood, anxiety, self-esteem, and cognitive
abilities. (AR 201-225). In particular, the ALJ noted that on May 31, 2007, Dr. Partridge
reported that an increased dosage of Zyprexa reduced Plaintiff’s anxiety, and Plaintiff’s
mood and anxiety improved. (AR 18, 206). By August 2007, Plaintiff was more selfdirected and only mildly anxious. (AR 18, 202). Plaintiff’s judgment and attention was

13

good, and his thought process was logical and goal directed with some repetitiveness.
(AR 18).
With respect to Plaintiff’s concentration, persistence or pace, the ALJ concluded
that Plaintiff has moderate difficulties, despite the fact that Dr. Partridge assessed
Plaintiff’s concentration as fair. (AR 18, 202). In sum, the ALJ gave Plaintiff the benefit
of the doubt that he is distracted by intrusive thoughts and obsesses on the likelihood of
his inability to care for himself in the long term and that he gets anxious and distracted
around others. However, the ALJ reasonably pointed to Plaintiff’s improved condition
within twelve months of treatment by Dr. Partridge and Plaintiff’s ability to take a college
class. (AR 19).
The Court finds that the ALJ analyzed Dr. Partridge’s opinion according to the
applicable law: she clearly articulated the weight she accorded Dr. Partridge’s opinion
and the reasons for that weight. As previously noted, the Court may not substitute its
judgment for that of the Commissioner. Further, the Court finds that the ALJ’s treatment
of Dr. Partridge’s opinion is supported by substantial evidence in the record, including
evidence that Plaintiff has been earning Bs and Cs in college (AR 36), Plaintiff’s own
testimony concerning his socialization with others, i.e., spending time at the mall with
friends and playing video games at friends’ houses (AR 38), exercising in a public
recreational center facility (AR 39) in addition, there is a paucity of evidence concerning

14

Plaintiff’s inability to obtain and sustain competitive employment.7 Accordingly, the
Court finds no error in the ALJ’s treatment of Dr. Partridge’s opinion.8
a.

Regulatory Requirements/Listings

Plaintiff asserts that he would have met the regulatory requirements for the “A”
and “B” criteria for a listed impairment under 20 C.F.R. Part 404, Subpart P, Listing
12.03 (Schizophrenic, Paranoid and other Psychotic Disorders) if the ALJ gave
controlling weight to Dr. Partridge’s assessed marked and extreme limitations and if the
ALJ credited Dr. Partridge’s notation of three episodes of decompensation experienced
by Plaintiff. (Doc. #14 at 32).

7

The record contains only one instance in which Plaintiff was unable to sustain competitive
employment (termination from Kentucky Fried Chicken for reasons he cannot explain). (See, e.g., AR 50)
(“He called us when we were out camping and told us that he had been fired from that job. He seemed
distressed by that but he didn’t seem to understand why it had occurred.”). Additionally, much of the
evidence concerning Plaintiff’s inability to obtain competitive employment rests on speculation. (See, e.g.,
AR 58) (“I don’t know. I know he’s trying for some things but I don’t know if he’d be able to keep a job . . . .
I think with another employer he might have trouble with punctuality or competency.”).
8

Plaintiff also takes issue with the ALJ’s conclusion that the lack of “treatment notes from 2003,
2004, 2005, or January to August 2006 . . . impacts negatively on the claimant’s allegations that he has
been disabled since 2002.” (ALJ Decision at AR 21; Plaintiff’s Opening Brief, Doc. #14 at 30-31).
However, Plaintiff acknowledges that the lack of treatment notes is due to the fact that treatment records
from a Dr. Braunstein, a psychiatrist from Alpine Clinic, who treated Plaintiff during this time period were
not obtained. (Doc. #14 at 30 n.8). The Court reminds Plaintiff that he bears the burden of presenting
evidence to establish his disability. See 20 C.F.R. § 404.1512(a) (“In general, you have to prove to us that
you are . . . disabled.”); Groberg v. Astrue, No. 09-4203, 2011 WL 538870, at *1 (10th Cir. Feb. 17, 2011)
(unpublished) (“The claimant bears the burden of establishing a prima facie case of disability at steps one
though four.”) (citing Williams v. Bowen, 844 F.2d 748, 751 n.2 (10th Cir. 1988)). The Commissioner has
no obligation to seek additional evidence or supplement the record unless the Commissioner is unable to
make a disability determination based on the evidence presented. See 20 C.F.R. § 404.1512(e) (“When
the evidence we receive from your treating physician or psychologist or other medical evidence is
inadequate for us to determine whether you are disabled, we will need additional information to reach a
determination or a decision,” and will take action to obtain such information.). In the instant case, it is
apparent to this Court that the ALJ needed no further information to resolve Plaintiff’s disability claim.

15

As set forth in the regulatory Listing 12.03, schizophrenic, paranoid, and other
psychotic disorders are “[c]haracterized by the onset of psychotic features with
deterioration from a previous level of functioning. The required level of severity for
these disorders is met when the requirements in both A and B are satisfied, or when the
requirements in C are satisfied.” 20 C.F.R. Part 404, Subpart P, 12.03 (emphasis
added).
In order to satisfy the requirements of 12.03(A), a claimant must present
evidence of “[m]edically documented persistence, either continuous or intermittent, of”
one or more symptoms such as blunt affect, flat affect, or emotional withdrawal and/or
isolation. 20 C.F.R. Part 404, Subpart P, 12.03(A).
In order to satisfy the requirements of 12.03(B), the claimant’s symptoms must
result “in at least two of the following: 1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in
maintaining concentration, persistence, or pace; or 4. Repeated episodes of
decompensation, each of extended duration[.]” 20 C.F.R. Part 404, Subpart P, 12.03(B)
(emphasis added).
The regulations clarify that a “marked limitation may arise when several
activities or functions are impaired, or even when only one is impaired, as long as the
degree of limitation is such as to interfere seriously with [the claimant’s] ability to
function independently, appropriately, effectively, and on a sustained basis.” 20
C.F.R. Part 404, Subpart P, 12.00(1)(C) (emphasis added).

16

In the instant case, as already discussed, the ALJ concluded that Plaintiff has
mild limitations in activities of daily living, and moderate limitations in concentration,
persistence, or pace, and social functioning, and the Court finds no error in this
conclusion. Therefore, because Plaintiff does not have marked restrictions in activities
of daily living, maintaining social functioning, or in concentration, persistence, or pace,
Plaintiff’s symptoms do not satisfy the requirements of 12.03(B). However, for the sake
of completeness, the Court will next consider whether the record contains evidence of
repeated episodes of decompensation.
b.

Episodes of Decompensation

With respect to the episodes of decompensation, the ALJ did not credit the three
cited episodes because they were not during the relevant period. (AR 19).
In order to establish the required level of severity of a schizophrenic disorder
under Listing 12.03(C), a claimant must present evidence of a “[m]edically documented
history of a chronic schizophrenic, paranoid, or other psychotic disorder of at least 2
years’ duration that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or psychosocial
support, and one of the following:
1.

Repeated episodes of decompensation, each of extended duration;
or

17

2.

A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause the
individual to decompensate; or

3.

Current history of 1 or more years’ inability to function outside a
highly supportive living arrangement, with an indication of continued
need for such an arrangement.”

20 C.F.R. Part 404, Subpart P, 12.03(C) (emphasis added). In the instant case, the
parties dispute whether the record contains evidence of “repeated episodes of
decompensation, each of extended duration.”
As clearly articulated in 20 C.F.R. Part 404, Subpart P, Appendix 1, “[t]he term
repeated episodes of decompensation, each of extended duration in these listings
means three episodes within 1 year, or an average of once every 4 months, each
lasting for at least 2 weeks.” Listing 12.00 (emphasis in the original). If a claimant has
experienced “less frequent episodes of longer duration, [the Commissioner] must use
judgment to determine if the duration and functional effects of the episodes are of equal
severity and may be used to substitute for the listed finding in a determination of
equivalence.” (Id.)
In the instant case, Dr. Partridge’s records reflect three episodes of
decompensation, each between two and three years apart. Two episodes lasted one
week, one episode lasted one month. (AR 62, 259). As such, these episodes of

18

decompensation fail to meet the regulatory definition of “repeated episodes of
decompensation, each of extended duration” and, therefore, the ALJ correctly gave “no
weight” to Dr. Partridge’s notation of/opinions concerning these episodes. Plaintiff has
failed to cite to any authority that would suggest otherwise.
Accordingly, the Court finds that the ALJ correctly concluded that Plaintiff failed
to meet the regulatory requirements of 12.03(A) and (B), or (C), and, therefore,
Plaintiff’s impairment or combination of impairments does not meet or medically equal
one of the regulation’s listed impairments.
2.

Ed Cotgageorge, Ph.D., a Consultative Psychologist

Next, Plaintiff asserts that the ALJ erred in analyzing the opinions of a
consultative psychologist, Ed Cotgageorge, Ph.D. In particular, Plaintiff contends that
the ALJ merely “presumes that Dr. Cotgageorge’s opinion is based on claimant’s
‘exaggerated’ self reporting,” and such “speculative inferences” are improper. (Doc. #14
at 33-34).
The Commissioner must give substantial weight to the treating physician’s
opinion and less weight to the opinions of doctors, such as Dr. Cotgageorge, who have
examined but not treated the claimant. See Reid v. Chater, 71 F.3d 372, 374 (10th Cir.
1995); Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir. 1987); Higgins v. Barnhart, 294
F. Supp. 2d 1206, 1211 (D. Kan. 2003). The opinions of examining sources, such as Dr.
Cotgageorge, are to be evaluated based upon the same regulatory factors as treating
source opinions, which are set forth in 20 C.F.R. §§ 404.1527(d); 416.927(d). See Doyal

19

v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003); Goatcher v. Dep’t of Health & Human
Servs., 52 F.3d 288, 290 (10th Cir. 1995). Though the ALJ must consider all
these factors, he need not discuss all of them. See Andersen v. Astrue, 319 F. App’x
712, 718 (10th Cir. 2009) (unpublished). The ALJ’s decision must be specific enough to
make clear to subsequent reviewers the weight given to the medical source’s opinion
and the reasons for that weight. See Watkins v. Barnhart, 350 F.3d 1297, 1300-01
(10th Cir. 2003); Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996); Frey v. Bowen, 816
F.2d 508, 513 (10th Cir. 1987).
In the instant case, the Court finds that the ALJ’s March 30, 2009 Decision is
specific enough to make clear to this Court the weight given to Dr. Cotgageorge’s
opinion (i.e., “little weight”) and the reasons for that weight. In particular, the ALJ
reasonably concluded and noted that much of Dr. Cotgageorge’s opinion appeared to
be based on Plaintiff’s subjective complaints, which complaints do not comport with the
reality of Plaintiff’s daily activities, abilities to function, and Dr. Partridge’s
contemporaneous observations of Plaintiff’s improving condition.
Accordingly, the Court finds no error in the ALJ’s assessment and treatment of
Dr. Cotgageorge’s opinion.
B.

ASSESSMENT OF PLAINTIFF’S RFC

Plaintiff asserts that the ALJ erred in determining that Plaintiff has the RFC “to
perform sedentary to heavy work (no external limitations) as defined in 20 CFR
404.1567(b) except moderate limitations (but ability still there to perform tasks

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satisfactorily) on understanding and following through on detailed instructions, in
concentration and attention to tasks, and ability to follow schedule within customary
tolerances.” (March 30, 2009 Decision at AR 20; Plaintiff’s Brief, Doc. #14 at 35).
Plaintiff asserts that the ALJ ignored Dr. Partridge’s treatment notes, which
“document[ed] an increasing lack of social interaction by claimant with any person other
than his family.” (Id. at 36). Plaintiff further contends that the evidence in the record
concerning his “activities do not show an ability to get along with coworkers, supervisors
or others. Nor do they show an ability to understand and carry out complex
instructions.” (Id. at 37). Finally, Plaintiff asserts that, “[b]ecause the combination of
limitations would disable the claimant, it is important that the RFC assessment fairly
reflect [sic] all of claimant’s limitations.” (Id.)
“The [Commissioner] must consider the combined effects of impairments that
may not be severe individually, but which in combination may constitute a severe
medical disability.” Hargis v. Sullivan, 945 F.2d 1482, 1491 (10th Cir. 1991) (remanding
case where ALJ failed to correctly evaluate the claimant’s mental impairments in
combination with the effects of his pain). When evaluating mental impairments, the
Commissioner must follow the “special technique” set forth in 20 C.F.R §§
404.1520a(a), 416.920a(a). When employing the “special technique” at Steps 2 and 3,
the ALJ “must first evaluate [the claimant’s] pertinent symptoms, signs, and laboratory
findings to determine whether [he has] a medically determinable mental impairment[ ]”

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and, if she so finds, “specify the symptoms, signs, and laboratory findings that
substantiate the presence of the impairment[.]” 20 C.F.R. § 404.1520a(b)(1).
If the ALJ finds a medically determinable impairment, she is then required to rate
the degree of a claimant’s functional limitations caused by those limitations in the areas
of activities of daily living; social functioning; concentration; persistence, or pace;
and episodes of decompensation. 20 C.F.R. § 404.1520a(c); Stokes v. Astrue, 274
F. App’x 675 (10th Cir. 2008) (unpublished). The ALJ’s written decision must incorporate
her pertinent findings and conclusions. 20 C.F.R. § 404.1520a(e)(3).
Further, the consideration of the amount of treatment a claimant receives is to
play no role in the ALJ’s determination of an impairment’s severity. “This is because the
lack of treatment for an impairment does not necessarily mean that the impairment does
not exist or impose functional limitations. Further, attempting to require treatment as a
precondition for disability would clearly undermine the use of consultative
examinations.” Grotendorst v. Astrue, 370 F. App’x 879, 883 (10th Cir. 2010)
(unpublished).
In the instant case, for the reasons already discussed, the Court finds no error in
the ALJ’s determination of Plaintiff’s RFC. Contrary to Plaintiff’s assertion, the ALJ did
not ignore Dr. Partridge’s treatment notes concerning Plaintiff’s social interaction with
others; in fact, the ALJ noted documented improvements of Plaintiff’s condition.
Further, the ALJ has given Plaintiff the benefit of the doubt concerning the effects of his
limitations and, accordingly, assessed “moderate” limitations in Plaintiff’s ability to

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understand and follow detailed instructions, maintain concentration and attention to
tasks, and to follow a schedule with customary tolerances.
IV.

CONCLUSION
Accordingly, IT IS ORDERED THAT:
(1)

The ALJ’s denial of social security disability benefits is AFFIRMED; and

(2)

Each party shall pay its own costs and attorneys’ fees.

DATED: May 27, 2011
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District

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