Carter v. Astrue

Filing 24

ORDER. Based on the record, the ALJ could easily have gone the other way. If this Court were reviewing the case de novo, we might come out differently. However, the ALJ appears to have read, understood, and applied the law. His determination that Ms . Carters testimony was not credible is entitled to deference, and there is evidence in the record that supports the decision. This Court cannot find that the Commissioners decision was not supported by substantial evidence, or that the Commissioner applied the incorrect legal standard. Therefore, because of the limited nature of our review, the Commissioners decision is affirmed. By Judge R. Brooke Jackson on 11/4/2011. (sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable R. Brooke Jackson

Civil Action No. 10-cv-01754-RBJ
SUSYN K. CARTER,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security Administration,
Defendant.

ORDER

The case comes before the Court on appeal from a Decision of the Commissioner of the
Social Security Administration. Plaintiff filed this appeal in the United States District Court for
the District of Colorado on July 23, 2010. The matter has been fully briefed by both sides, and
all parties request a decision be entered based on the briefs and the administrative record. This
Court has the authority to review the Commissioner of Social Security’s final decision under 42
U.S.C. § 405(g).
Standard of Review
This appeal is based on the administrative record and the briefs submitted by the parties.
When reviewing a final decision by the Commissioner, the role of the District Court is to
examine the record and determine whether it “contains substantial evidence to support the
Secretary’s decision and whether the Secretary applied the correct legal standards.” Rickets v.
Apfel, 16 F.Supp.2d 1280, 1287 (D. Colo. 1998) (citing Hamilton v. Secretary of Health and
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Human Services, 961 F.2d 1495, 1497 (10th Cir. 1992)). A decision cannot be based on
substantial evidence if “it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting it.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). More
than a scintilla, but less than preponderance is required. Zoltanski v. F.A.A., 372 F.3d 1195,
1200 (10th Cir. 2004). Although the evidence may support two inconsistent conclusions, that
“does not prevent an administrative agency’s finding from being supported by substantial
evidence.” Id. The Court cannot “reweigh the evidence or substitute [its] judgment for that of the
agency.” White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001).
Facts
Susyn Carter, now age 51, filed an application for Social Security Income (SSI) and
Disability Insurance benefits on April 4, 2007 at age 46. In her application, Ms. Carter reported
that she suffers from major depressive disorder, migraine headaches, degenerative disc disease,
low back pain, knee pain, carpal tunnel syndrome, hypertension, and obesity. Ms. Carter alleges
that she became disabled on February 15, 2006.
Ms. Carter’s claim for benefits was denied on July 25, 2007. Following a written request
for a hearing, Ms. Carter appeared and testified before an Administrative Law Judge (ALJ) on
March 19, 2009. The ALJ issued an opinion denying Ms. Carter’s application for disability
benefits on May 19, 2009. Ms. Carter appealed the ALJ’s decision to the Appeals Council, who
denied Ms. Carter’s request for review. This denial constituted the final decision of the
Commissioner. This appeal followed.
Conclusions
The ALJ found that Ms. Carter has several severe impairments: mild degenerative disc
disease, migraine headaches, a history of carpal tunnel syndrome, and bipolar disorder. Ms.

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Carter’s claim for SSI was denied, however, because the ALJ found that Ms. Carter has the
Residual Functional Capacity (RFC) to perform medium work that “does not require long
periods of long concentration, detailed instructions, or working closely with supervisors, coworkers, or the general public.” Tr. 19 (Finding 5). The ALJ found that with this RFC Ms.
Carter could perform unskilled work such as a sweeper/cleaner, cleaner/housekeeper, and
product assembler. Tr. 25 (Finding 10). Thus, the ALJ found that Ms. Carter was not disabled
within the meaning of the Social Security Act, 42 U.S.C. § 405(g).
Ms. Carter disputes the Commissioner’s conclusions for two main reasons. First, the
Commissioner’s conclusion regarding Ms. Carter’s RFC is not supported by substantial
evidence. Second, the Commissioner’s findings regarding Ms. Carter’s ability to perform
unskilled work is not supported by substantial evidence.
Residual Functional Capacity
Plaintiff’s Counsel contends that the Commissioner made three major errors in
determining Ms. Carter’s RFC. First, the Commissioner did not consider all of Ms. Carter’s
impairments in combination. Second, the Commissioner disregarded the opinion of Ms. Carter’s
treating mental health provider. And finally, the Commissioner improperly disregarded Ms.
Carter’s testimony regarding her migraines and headaches.
To qualify as disabled, a claimant’s pain must be so severe “by itself or in conjunction
with other impairments, as to preclude any substantial gainful employment.” Talley v. Sullivan,
908 F.2d 585, 587 (10th Cir. 1990) (citing Brown v. Bowen, 801 F.2d 361, 362-3 (10th Cir.
1986)). To make this determination, the Commissioner must look to the medical record and the
claimant’s credibility. Id. While the ALJ must consider all of the evidence, an ALJ “is not

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required to discuss every piece of evidence.” Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th
Cir. 1996).
Plaintiff’s counsel takes issue with the ALJ’s failure specifically to discuss the
restrictions on Ms. Carter’s persistence, pace and ability to do work reliably without
interruptions found by Drs. Frommelt and Parsons. Also, Plaintiff’s counsel argues that the ALJ
erred by failing to include Ms. Carter’s PTSD and obesity in this assessment of Ms. Carter’s
RFC.
In the ALJ’s findings regarding Ms. Carter’s RFC, the ALJ states that “[i]n making this
finding, the undersigned has considered all symptoms and the extent to which these symptoms
can reasonably be accepted as consistent with the objective medical evidence and other
evidence…” Tr. 20. In the discussion that follows, the ALJ discusses Ms. Carter’s depression,
migraines, ability to concentrate and complete ordinary tasks, motor skills, difficulty in social
situations, and various other symptoms. Tr. 20-23. The record before the Court does not offer
any indication that the ALJ did not in fact consider the entire medical record and relevant
testimony.
The ALJ gave little weight to the opinions and reports of Ms. Carter’s treating mental
health providers. Ms. Carter saw Nurse Gawron and Ms. Hillburn, a counselor, for mental health
treatment. The ALJ found that their opinions were not entitled to medical weight because neither
is a doctor or psychologist, and because their treatment notes failed to support their conclusions.
Under SSR 06-03p, a medical professional must be a Licensed Physician or a Licensed or
Certified Psychologist to qualify as an “Accepted Medical Source.” Only “Accepted Medical
Sources” can establish the existence of a medically determinable impairment and can give
“medical opinions,” and only the opinion of an “Accepted Medical Source” is entitled to

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controlling weight. Nurse Gawron and Ms. Hillburn qualify as “Other Medical Sources,” whose
opinions may only be used to show the severity of an impairment and how it affects the
individual’s ability to function. SSR 06-03p. Their opinions cannot establish the existence of
medically determinable impairments.

Nonetheless, certain factors, such as “how long the

source has known and how frequently the source has seen the individual,” may entitle the
opinions of “Other Medical Sources” to greater weight. Id.
Despite the strong preference for opinions by doctors and psychologists, this Court is
troubled by the amount of weight given to Drs. Frommelt and Parsons. These doctors only saw
Ms. Carter for one appointment each, while the staff at the Jefferson Center for Mental Health
saw Ms. Carter at least 23 times over the course of a year. Tr. 335-62. This gives the Court
pause, especially since Ms. Carter’s impairment is a mental health issue, which lends itself to
prolonged treatment and diagnosis. Despite this, the record does support the ALJ’s conclusions.
See Exhibit 11F, 12F. An ALJ must “give good reasons in the notice of determination or
decision for the weight assigned to a treating physician’s opinion.” Watkins v. Barnhart, 350
F.3d 1297, 1300 (10th Cir. 2003). Although this Court may have applied different weight to the
various reports in a de novo review, the ALJ has provided a basis for his determinations here.
The ALJ’s discussion of Ms. Carter’s migraines and headaches, as well as the weight that
he gives to the medical evidence regarding Ms. Carter’s migraines, is colored by his credibility
determinations. Ms. Carter claims that her disability began in February 15, 2009 following her
dismissal from her employment. The medical record shows that Ms. Carter did not seek
treatment for her migraines or depression for 10 months. In light of this the ALJ found that “this
significant gap in treatment belies her claims of constant and disabling headache pain and
depressive symptoms during that time.” Tr. 20. The ALJ wrote that “[a]fter careful

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consideration of the evidence, the undersigned finds that the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence, and limiting effect of these
symptoms are not credible.” Id. at 20-21. At the hearing Ms. Carter testified that she only has
headaches three to four times a month, rather than two a week. Tr. 21. Ms. Carter also testified
that she thought she could be a receptionist, and indeed had been looking for work, albeit
unsuccessfully. Id. This testimony supports the credibility determination made by the ALJ.
The Tenth Circuit has stated that “we generally treat credibility determinations made by an ALJ
as binding upon review.” Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988). That the ALJ
did not discuss every piece of evidence in the record in his opinion does not mean that he
impermissibly disregarded relevant evidence. Although the ALJ found that Ms. Carter was
impaired, he did not believe that her impairments were as severe as claimed.
Although one could come to a different conclusion regarding Ms. Carter’s residual
functional capacity based on the record, that “does not prevent an administrative agency’s
finding from being supported by substantial evidence.” Zoltanski, 372 F.3d at 1200. This Court
cannot “reweigh the evidence or substitute [its] judgment for that of the agency.” White, 287
F.3d at 905. The Court finds that the Commissioner’s conclusions regarding Ms. Carter’s
residual functional capacity are supported by substantial evidence.
Vocational Determination
Considering Ms. Carter’s RFC, age, education, and work experience in conjunction with
the Medical-Vocational Guidelines and the testimony of the Vocational Expert, the ALJ found
that Ms. Carter is capable of engaging in unskilled work. During the hearing the ALJ asked the
Vocational Expert (VE) to consider Ms. Carter’s age, education, work history, and RFC when

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testifying to jobs available in the economy. The VE testified that a person with Ms. Carter’s
limitations could perform unskilled jobs such as a sweeper/cleaner, cleaner/housekeeper, and
production assembler. Tr. 23-24. The VE also testified that these jobs were available in the
economy in significant numbers. Id. Ms. Carter objects to the questions posed to the VE by the
ALJ for three reasons. First, the ALJ’s questions did not include Ms. Carter’s restrictions on
persistence, pace and ability to complete a full day or week of work. Second, the ALJ’s
questions made no reference to Ms. Carter’s migraines. Finally, the questions posed to the VE
did not take into account Ms. Carter’s absenteeism
The medical evidence supporting the restrictions on Ms. Carter’s persistence, pace and
ability, as well as her likelihood of absenteeism due to illness, come from the reports of Nurse
Gawron and Ms. Hillburn. As discussed above, the ALJ gave little weight to these reports
because they were not supported by treatment notes and were contradicted by other evidence in
the record. Although the ALJ did not frame a specific question to the VE around Ms. Carter’s
migraines, the ALJ did ask the VE to consider Ms. Carter’s RFC in making his assessment. Ms.
Carter’s migraines, as well as her other impairments, are included in that RFC determination.
Therefore, the Court finds that the Commissioner’s conclusion that Ms. Carter could
perform alternate work is supported by substantial evidence.
Order
Based on the record, the ALJ could easily have gone the other way. If this Court were
reviewing the case de novo, we might come out differently. However, the ALJ appears to have
read, understood, and applied the law. His determination that Ms. Carter’s testimony was not
credible is entitled to deference, and there is evidence in the record that supports the decision.
This Court cannot find that the Commissioner’s decision was not supported by substantial

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evidence, or that the Commissioner applied the incorrect legal standard. Therefore, because of
the limited nature of our review, the Commissioner’s decision is affirmed.
DATED this 4th day of November, 2011.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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