Perone v. Astrue

Filing 16

ORDER affirming SSA Commissioner's final order, by Judge Lewis T. Babcock on 10/23/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE

Civil Case No. 11-cv-01568-LTB
JULIE A. PERONE,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Plaintiff, Julie A. Perone, appeals from the Social Security Administration (“SSA”)
Commissioner’s final decision denying her application for disability insurance benefits, filed
pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433. 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 Commissioner’s decision denying her application
for Social Security disability insurance benefits. Plaintiff initially filed her application in the
State of Florida in February 2007, but her request for a hearing was denied by a Florida
Administrative Law Judge (an “ALJ”). After moving, Plaintiff filed a new application in
November 2008, requesting that she be allowed to reopen her initial application here in
Colorado. [Administrative Record (“AR”) 238]

Her new application was denied at the administrative level on May 14, 2008. [AR 57, 60]
An ALJ subsequently conducted a hearing on November 17, 2009, and issued a written ruling on
January 5, 2010, denying Plaintiff’s application on the basis that Plaintiff was not disabled
because she could perform her past work as a card dealer from June 1, 2005 – her alleged
amended onset date – through December 31, 2007 – her date of last insured (Step Four). [AR 1122, 230] On April 20, 2011, the SSA Appeals Council denied Plaintiff’s request for
reconsideration, making the denial final for the purpose of judicial review. [AR 1] Plaintiff
timely filed her complaint with this court seeking review of the SSA Commissioner’s final
decision.
II. FACTS
Plaintiff was born on December 10, 1964, and was 44 years old at the time of her
hearing. [AR 28, 57, 158, 210] She graduated from high school, and had trained to deal
blackjack. [AR 28] Her prior work history consists of being a blackjack dealer. [AR 39-40, 206]
Plaintiff alleges that she became disabled on June 1, 2005, due to pain in her lower back from
bulging discs and degenerative disc disease. [AR 69, 205]
The medical records reveal that prior to her alleged onset date, Plaintiff was treated for
chronic back pain by Michael D. Daubs, M.D., in 2001 and 2002. [AR 380-99] A January 2001
MRI of the lumbar spine showed degenerative changes and small disc protrusion at L3/L4 and
L4/L5 without significant neural impingement. [AR 398-99, 381, 395]
In August 2002, Plaintiff saw Thomas Dunn, M.D., an orthopedic surgeon, who
examined Plaintiff and diagnosed disc disruption of the lumbar spine – which limited her ability
to sit, stand, bend, stoop, or lift – with chronic right piriformis tendinitis. [AR 267, 276] At that
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time he opined that although Plaintiff was able to perform some activities, based on her
diagnosis and the severity of her symptoms, “she reasonably is at a total permanent disability
status.” [AR 267] In May 2003, Dr. Dunn indicated that Plaintiff “remain[ed] off work on a
permanent disability status” and “[b]ecause of chronicity of pain and the need for narcotic
analgesics and muscle relaxants, she is considered unemployable.” [AR 273] In January 2004,
Dr. Dunn concluded that Plaintiff did not have a surgical lesion and he recommended treatment
with a physiatrist. [AR 269]
Plaintiff then began seeing Joseph M. Gnoyski, M.D. – a physical medicine and
rehabilitation specialist – on April 21, 2004, for pain management. [AR 313-15] At that time she
reported a two-and-one-half-year history of chronic pain in her lower back and right leg treated
with pain medications, injections every three months, and a TENS unit. [AR 313] At that time
she was taking Lortab, Soma, and Arthrotec. [AR 314] Dr. Gnoyski diagnosed: piriformis
syndrome on the right, status post multiple injections for right piriformis, and three bulging
lumbar discs as reported by Plaintiff. [AR 315]. He refilled her prescriptions and recommended
physical therapy.
From June 2004 through April 2005, Dr. Gnoyski treated Plaintiff for her pain with
injections, physical therapy, a TENS unit, and continued prescription medications. [AR 333-44]
During that time, Plaintiff underwent a whole body bone scan in August 2004, the results of
which were unremarkable – “no abnormal uptake is seen in the spine.” [AR 316] A November
2004 MRI showed degenerative disc disease with diminished signal intensity and diminished
disc space; specifically, L4/L5 bilateral foraminal stenosis and L3/L4 disc protrusion. [AR 33738, 333] Dr. Gnoyski’s examination in December 2004 revealed full strength in the muscles of
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the legs and hips, symmetrical reflexes, and good mentation, affect, attention, and concentration.
[AR 337] Dr. Gnoyski continued to manage Plaintiff’s medications in 2005; a February 2005
examination showed her strength for quadraceps and dorsiflexors at 4-/5 with pain, and a April
2005 examination was marked by a severe antalgic gait. [AR 335-36, 333-34]
Plaintiff’s amended alleged onset date is June 1, 2005. The medical records at that time
show that she was seeking continued treatment from Dr. Gnoyski. Thereafter, on July 20, 2005,
Plaintiff reported only temporary relief from injections and complained of severe pain, moderate
depression, and mild anxiety. [AR 331] Dr. Gnoyski continued her medications and referred her
to Charlie C. Huynh, M.D., for an epidural steroid injection [AR 329-32] The next day, Dr.
Huynh examined Plaintiff and found she had an antalgic gait, weakness (“4/5”) in the right hip
flexor and knee extensor muscles, absent reflexes in the right lower extremity, and tenderness
over the sacroiliac joint. [AR 329]
On October 17, 2005, Plaintiff saw Dr. Gnoyski, and reported that she had been
bedridden with “excruciating” low back pain. [AR 327] Later that month, Dr. Huynh
administered an epidural steroid injection to Plaintiff in the right sacroiliac joint, which provided
temporary relief. [AR 323-25] Plaintiff underwent MRI of the lumbar spine on October 24,
2005, which showed bulging discs at two levels with mild canal stenosis and mild foramina
narrowing. [AR 321-22]
In December 2005, Dr. Gnoyski noted that Plaintiff’s MRI showed possible internal disc
disruption. [AR 325-26] He referred her back to Dr. Dunn, who examined Plaintiff on December
28, 2005, and found she had mild paralumbar muscle spasms, limited range of motion of her
back, and no neurological deficits. [AR 266] Dr. Dunn diagnosed probable disc disruption
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contributing to mechanical back pain, and he concluded that her pathology posed no threat to her
neurologic status and she did not require surgery as long as she could live with her symptoms.
[AR 266]
The next month, on January 13, 2006, Plaintiff complained of “horrible pain” to Dr.
Gnoyski. [AR 345] His examination revealed severe antalgia, marked sensitivity in the buttock
area, reduced strength in the hip flexor, quadriceps, and dorsiflexor muscles, and good
mentation, affect, attention, and concentration. [AR 345] A January 25, 2006, examination
revealed full strength in the upper extremities, reduced (“4/5”) strength in the lower extremities,
and no other neurological deficits. [AR 347]
In March 2006, Plaintiff underwent electro-diagnostic studies, which showed no
radiculopathy, plexopathy or neuropathy. [AR 349-53] During a June 2006 examination,
Plaintiff reported her pain was improving, but was still at 8-9/10 and Dr. Gnoyski noted an
antalgic gait. [AR 319-320] In September 2006, Dr. Gnoyski examined Plaintiff and found she
was walking better overall and she doing “quite a bit better” after receiving chiropractic
massages. [AR 353] In December 2006, Dr. Gnoyski found Plaintiff had muscle spasms in the
lumbosacral region, a limp on the left, and normal mood, affect, cognitive functioning, and
coordination. [AR 367-68] During this time, Dr. Gnoyski continued Plaintiff’s prescription
medications, and encouraged her to get physical therapy and routine exercise, and to continue
chiropractic services. [AR 367-79]
In March through December of 2007, Dr. Gnoyski continued to treat Plaintiff’s pain with
medications and injections. [AR 369-378] His notes indicate no significant examination
findings, although Plaintiff reported having problems with general tasks, such as grocery
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shopping. [AR 369] In June 2007, Dr. Gnoyski noted that Plaintiff walked with severe antalgic
on the right, had negative straight leg raising tests, and had full strength in all muscle groups.
[AR 371-72] During this time Plaintiff again saw Dr. Dunn, in October of 2007, who indicated
in his notes that an August 2007 MRI showed disc disruption contributing to “axial mechanical
back pain.” [AR 265, 439] In September and December of 2007, Dr. Gnoyski found she had full
strength in the lower extremities and negative straight leg raising tests bilaterally. [AR 375-79]
On December 21, 2007, Anthony Ruggeroli, M.D., performed a discography as referred
by Dr. Dunn. The diagnosis was significant degenerative changes at L4-5 and a 2-level lumbar
disc disruption which showed a “a positive concordant pain pattern at the L3-L4 level.” [AR
264, 436-8] In her examination as follow-up to the discography, Dr. Dunn found that Plaintiff
was neurologically intact, had no motor or sensory deficits, and had full strength in the lower
extremities. [AR 264, 435] He opined that Plaintiff was a candidate for anterior-posterior
reconstructive surgery, based on her discography results, and he indicated that she was going to
take some time to consider this option. [AR 264, 435]
Plaintiff’s date last insured for disability insurance benefits was December 31, 2007.
Anthony LoGalbo, M.D., a state agency medical consultant, reviewed her medical records and
filled out a Physical Residual Functional Capacity Assessment for Plaintiff as of December 31,
2007, her date of last insured. [AR 473-80] Dr. LoGalbo opined that Plaintiff could lift 20
pounds occasionally and 10 pounds frequently; could stand and/or walk for six hours and sit for
six hours in an eight-hour workday; could occasionally climb ramps and stairs, stoop, kneel,
crouch, and crawl; and could never climb ladders or scaffolds. [AR 473-80]

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Dr. Gnoyski continued to treat Plaintiff with medications through 2008. [AR 496-505]
An April 2008 examination found seated straight leg raising negative bilaterally to 90 degrees,
symmetrical reflexes, no muscle atrophy, and 4/4 strength in manual muscle testing. [AR 49698] In June 2008, Dr. Gnoyski opined – in a Medical Source Statement of Ability to WorkRelated Activities (Physical) – that Plaintiff could lift 10 occasionally; sit for two hours (20
minutes continuously), stand for one hour (15 minutes continuously), and walk for one hour (15
minutes continuously) in an eight-hour workday; occasionally reach, push/pull, and use foot
controls; frequently finger and feel; occasionally climb stairs and ramps, balance, and stoop; and
never climb ladders or scaffolds, kneel, crouch, or crawl. [AR 441-47, 490-95] In addition, he
opined that Plaintiff had “too much pain” to concentrate or sit/stand for prolonged periods, and
she was “unable to work.” [AR 446]
In January 2009, Dr. Gnoyski added Cymbalta to Plaintiff’s medication regimen, and in
April 2009, Plaintiff indicated that her pain “was down to about 5/10.” [AR 452, 457] At this
time Dr. Gnoyski assessed Plaintiff with major depression. [AR 453, 450] A July 20, 2009 MRI
revealed degenerative disc disease at L3/L4, but with no significant protrusion, and at L4/L5,
with moderate to severe protrusion and with formainal stenosis. [AR 463] In an August 2009
examination, Dr. Gnoyski found Plaintiff had negative straight leg raises bilaterally, symmetrical
reflexes, no muscle atrophy, and mildly reduced (“4/5”) strength in the right hip flexor and
quadriceps muscles. [AR 459-60] In September 2009, Dr. Gnoyski noted that the addition of
methadone to Plaintiff’s regimen had not alleviated her symptoms. [AR 467] In an October 2009
examination, Dr. Gnoyski found Plaintiff had intact attention and concentration, negative straight
leg raising tests bilaterally, symmetrical reflexes, and full strength in all muscles of the lower

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extremities. [AR 471]
At the ALJ’s hearing in November of 2009, Arthur Lorber, M.D., testified as a medical
expert that he believed Plaintiff was “significantly addicted to prescription narcotics and other
addictive medications.” [AR 31] He testified that he had treated “tens of thousands of patients
with back pain and similar degree of degenerative spondylosis” as Plaintiff without high doses of
addictive narcotics, and that a patient treated with such medications would generally complain of
increased pain and request increasingly higher doses of narcotics because a patient’s body
becomes habituated to narcotics. [AR 36-37] Dr. Lorber testified that Plaintiff’s long-term
treatment with high doses of narcotics was inappropriate given the degree of her pathology. [AR
38] Dr. Lorber testified that Dr. Gnoyski’s June 2008 opinion as to Plaintiff’s residual
functional capacity, was not supported by the evidence in the record. [AR 33] Rather, he opined
that Plaintiff could: occasionally lift 20 pounds and frequently lift 10 pounds; stand and/or walk
for six hour and sit for six hours; occasionally bend, stoop, kneel, and crouch; never crawl,
balance, work at unprotected heights, or climb ladders or scaffolds; and should avoid exposure to
constant vibration. [AR 31-32].
In a response letter to Plaintiff’s attorney after the hearing, dated June 15, 2010, Dr.
Gnoyski indicated that Plaintiff has “chronic persistent pain.” [AR 243] He opined that she had
only a “physiological dependency” on opioids, as opposed to an addiction. [AR 243-44]. He
stated that due to “the chronicity of her pain, the severity of her pain, [and] the tolerance to pain
medications” it was his opinion that Plaintiff remained “markedly debilitated;” specifically, she
had decreased ability to stand upright, transfer, and walk, and she could not “perform activities
to the point where she can be consistently productive throughout the day and do so in a
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competitive fashion so that she can market any services.” [AR 244]
Plaintiff testified at the hearing her pain had become increasingly worse since June 2005,
and that her pain was mild in June 2005 compared to its current level. [AR 42-43] She testified
that she could stand comfortably for about 10 minutes and could walk for three or four minutes,
but on some days was unable to walk. [AR 47] She further testified that back surgery had been
recommended to her but she elected not to have it because she feared it might worsen her
condition. [AR 48]
III. LAW
A five-step sequential evaluation process is used to determine whether a claimant is
disabled under Title II 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
she is, disability benefits are denied. See 20 C.F.R. § 404.1520. 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). If the claimant is unable to show that her impairment(s)
would have more than a minimal effect on his ability to do basic work activities, she is not
eligible for disability benefits. Step Three then assesses 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). If the impairment is not listed, the claimant is not
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presumed to be conclusively disabled. Step Four then requires the claimant to show that her
impairment(s) and assessed residual functional capacity (“RFC”) prevent her from performing
work that she has performed in the past. If the claimant is able to perform her previous work, the
claimant is not disabled. See 20 C.F.R. § 404.1520(e)&(f).
Finally, if the claimant establishes a prima facie case of disability based on the four steps
discussed, the analysis proceeds to Step Five where the Commissioner has the burden of proving
that the claimant has the RFC to perform other work in the national economy in view of her age,
education and work experience. See 20 C.F.R. § 404.1520(g).
IV. ALJ’s RULING
The ALJ ruled that Plaintiff had not engaged in substantial gainful activity during the
period from her alleged onset date – June 1, 2005 – through her date last insured – December 31,
2007 – or at any time relevant to his decision (Step One). [AR 13] The ALJ then determined that
Plaintiff had a severe impairment of degenerative disc disease of the lumbar spine (Step Two).
[AR 13] However, because the ALJ determined that she did not have a impairment or
combination of impairments that meets or equals a listed impairment through the date of last
insured, and all relevant times to his decision (Step Three), the ALJ went on to assess Plaintiff’s
RFC from the alleged onset date to the date of last insured. [AR 13-15]
The ALJ evaluated the evidence and found that from the alleged onset date through the
date of last insured, Plaintiff retained the RFC to perform work activities, with normal breaks
and with the following restrictions: “she could lift 20 pounds occasionally and 10 pounds
frequently; sit 2 hours per occasion and at least 6 hours in an 8-hour day; and stand/walk a total
of 2 hours per occasion and at least 6 hours in an 8-hour day. The claimant could not climb
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ladders or scaffolding or work at unprotected heights. She could occasionally climb
ramps/stairs, stoop, kneel, crouch, and crawl, but frequently balance. The claimant could not
operate foot controls with the right lower extremity. Additionally, she should avoid concentrated
exposure to extreme cold and vibrations; and should not walk on rocky surfaces” (Step Three).
[AR 14] In light of Plaintiff’s RFC, based on the testimony of a vocational expert, the ALJ
found that she was able to perform her past relevant work as a card dealer (Step Four). [AR 20]
Thus, the ALJ denied Plaintiff’s application because she was not under a disability, as defined by
the SSA, at Step Four of the sequential evaluation process. [AR 21-22] On review, the Appeals
Council accepted new additional evidence submitted by Plaintiff, but “found no reason” to
reconsider the ALJ’s decision. [AR 1]
V. STANDARD OF REVIEW
We review the SSA Commissioner’s decision only to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
standards were applied. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)(quotation omitted).
Thus, “[w]e consider whether the ALJ followed the specific rules of law that must be followed in
weighing particular types of evidence in disability cases, but we will not reweigh the evidence or
substitute our judgment for the Commissioner’s.” Id. (quotation omitted); Oldham v. Astrue, 509
F.3d 1254, 1257 (10th Cir. 2007)(“we review only the sufficiency of the evidence, not its
weight”).

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VI. APPEAL
A. Appeal Council
As an initial matter, I first address Plaintiff’s contention that the Appeals Council erred
when it accepted her new evidence, filed by her attorney after the ALJ’s determination, but
deemed it insufficient to remand or reverse the ALJ’s decision.
Following the ALJ’s ruling, Plaintiff’s counsel requested a letter from Dr. Gnoyski –
Plaintiff’s treating physician – responding to the testimony provided by Dr. Lorber, who testified
as a medical expert at the hearing in front of the ALJ that he believed Plaintiff was addicted to
prescription narcotics, and that Dr. Gnoyski’s June 2008 RFC assessment was not supported by
the evidence in the record. [AR 31] Plaintiff subsequently submitted Dr. Gnoyski’s two-page
responsive letter, dated June 15, 2010, to the Appeals Council. As discussed above, that letter
opined that Plaintiff had only a “physiological dependency” on opioids, as opposed to an
addiction. [AR 243-44] In addition, Dr. Gnoyski indicated it was his opinion that Plaintiff
remained “markedly debilitated” in that she had decreased ability to stand upright, transfer, and
walk, and she could not be “be consistently productive throughout the day and do so in a
competitive fashion so that she can market any services.” [AR 244] Plaintiff also submitted to
the Appeals Council records from Dr. Gynoski for three office visits in April, June, and
November, 2008. [AR 496-505]
The Appeals Council received and made this evidence part of the record. In addition, it
received Plaintiff’s “letter of contentions” from her attorney, dated June 30, 2010, consisting of a
brief in support of Plaintiff’s request for review, which sets forth the claims of error raised here.
[AR 237-242] However, the Appeals Council found no reason under their rules – including that
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the ALJ’s decision was not supported by substantial evidence or that new and material evidence
shows that the decision is contrary the weight of all the evidence now in the records – to review
the ALJ’s decision. [AR 1]
To the extent that Plaintiff is asserting that the Appeals Council failed to consider her
new evidence, I disagree. The Appeals Council stated it “considered the reasons you disagree
with the decision and the additional evidence listed on the enclosed Order of Appeals Council.”
[AR 1] The Appeals Council found, however, “this information does not provide a basis for
changing the Administrative Law Judge’s decision.” [AR 2] As a result, I conclude that the
Appeals Council adequately “considered . . . the additional evidence” meaning that it
“evaluate[d] the entire record including the new and material evidence submitted.” 20 C.F.R.
§404.970(b); Martinez v. Barnhart, 444 F.3d 1201, 1207 (10th Cir. 2006)(rejecting the
claimant’s argument that the Appeals Council erred by failing to specifically discuss the
additional evidence submitted and accepted ).
However, because Appeals Council accepted and considered the new evidence, it is a
“part of the administrative record to be considered [by this court] when evaluating [the ALJ’s]
decision for substantial evidence.” Id. at 1208 (quoting O’Dell v. Shalala, 44 F.3d 855, 859 (10th
Cir. 1994)). As a result, I evaluate the entire record – including Dr. Gynoski’s 2010 letter
relating his opinions regarding Plaintiff’s dependency on opioids and ability to sustain
employment, and the 2008 treatment records for three office visits – in conducting my review for
substantial evidence on the issues presented. Id. In so doing, I disagree with Plaintiff that the
new evidence requires a remand to the ALJ for reconsideration.

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B. Credibility
Plaintiff argues that the ALJ erred when assessing her credibility with regard to her
reported level of pain and her resulting limitations. She asserts that the ALJ abdicated his
responsibility to evaluate the evidence and, instead, “merely adopted the opinion of the medical
expert,” Dr. Lorber, who opined the Plaintiff’s “habituation and addiction to the narcotic drugs
prescribed for her pain was driving her,” not her pain, when determining her credibility.
When a claimant has a back problem producing pain, as here, the ALJ is “required to
consider her assertions of severe pain and to decide whether he believed them.” Kepler v.
Chater, 68 F.3d 387, 391 (10th Cir. 1995)(quoting Luna v. Bowen, 834 F.2d 161, 163 (10th Cir.
1987)). In so doing, the ALJ should consider factors such as:
the levels of medication and their effectiveness, the extensiveness of the attempts
(medical or nonmedical) to obtain relief, the frequency of medical contacts, the
nature of daily activities, subjective measures of credibility that are peculiarly
within the judgment of the ALJ, the motivation of and relationship between the
claimant and other witnesses, and the consistency or compatibility of nonmedical
testimony with objective medical evidence.
Kepler v. Chater, supra, 68 F.3d at 391 (quoting Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th
Cir. 1991)). When determining Plaintiff’s RFC, the ALJ first found that her underlying
impairments could reasonably expected to produce her pain and, thus, the ALJ evaluated “the
intensity, persistence and limiting effects of the claimant’s symptoms” to determine the extent to
which they limit her “ability to do basic work activities.” [AR 15] When statements about the
effect of her pain are not substantiated by objective medical evidence, the ALJ recognized that
he must make a finding on her credibility. [AR 15]

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As a result, the ALJ summarized Plaintiff’s testimony regarding her pain location and
levels, as well as her need to lie down during the day and her limitations on her ability to sleep,
sit and stand. [AR 15] The ALJ also summarized Plaintiff’s reported limitations on her ability to
perform activities of daily living such as cooking, household chores, and grocery shopping. [AR
15] He also discussed her husband’s statement about her diminished ability to perform activities
of daily living. [AR 16]
The ALJ then assessed the evidence of record – pursuant to the rulings in Luna v. Bowen,
supra and Social Security Ruling (“SSR”) 96-3p – to determine that Plaintiff’s subjective
complaints concerning the intensity, persistence and limiting effects of her pain were not
credible. Specifically, the ALJ ruled that “it appears the clinical findings of record are relatively
minimal when compared to the claimant’s severe subjective complaints and do not support the
level of symptomology that claimant alleges.” [AR 17] The ALJ referred to evidence in the
record that revealed that although Plaintiff was diagnosed with moderate degenerative disc
disease, she generally had normal objective exam testing in 2006 and early 2007. And although
her more recent medical evidence showed some strength decrease, it mostly showed “near
normal testing and findings.” [AR 17] As late as August 2009 she reported being able to
perform activities of daily living, and the ALJ noted that she sat at the hearing for about an hour
without getting up. [AR 17]
When discussing the evidence from Dr. Gynoski, Plaintiff’s treating physician, the ALJ
noted that progress notes after the October 2005 “indicate a waxing and waning of the claimant’s
symptoms with complaints of severe pain with improvement and exam findings of antalgia and
positive straight leg raise.” [AR 17] Then, in December 2005, Dr. Dunn found only mild spasm,

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limited range of motion of the back, no neurological deficits, and claimant reported she could
live with her current symptoms (rather than pursue a surgical option). [AR 18] The ALJ then
noted the lack of findings in a January 2006 examination, and that electrodiagnostic studies in
March 2006 revealed no radiculopathy or neuropathy. [AR 18] The ALJ also noted that
Plaintiff’s gait in 2006 was inconsistent: in February 2006 she reported no leg pain and her
station and gait were normal, in June 2006 she had an antalgic gait and was favoring her right
side, and in September of 2006 she reported walking better overall. [AR 18] In 2007, Plaintiff
indicated she was having problems performing activities of daily living during a March
appointment, but no significant exam findings were reported, and in June while she had some
antalgia on the right, she was able to walk on her heels and toes and straight leg raise was
negative bilaterally. [AR 18] After a MRI and discography in December 2007, a January 2008
examination showed she was neurologically intact with no motor or sensory deficits, and
strength of the bilateral lower extremities was 5/5. [AR 18] As such, the ALJ found that such
records “do not reflect any significant clinical findings that would support the claimant’s severe
subjective complaints” or Dr. Gnoyski’s opinion in June 2008 indicating that Plaintiff was
unable to work. [AR 18]
Plaintiff argues that the ALJ’s finding on her credibility was an abuse of discretion. In
so doing, Plaintiff refers to the following evidence. First, she asserts that the ALJ did not
consider Dr. Gnoyski’s letter – dated June of 2010 and made part of the record after the ALJ’s
decision – indicating that Plaintiff’s pathology does produce chronic pain, and that she has tried
many different treatments without relief. In addition, the ALJ did not consider Plaintiff’s
treatment records from 2008 – when he noted that Dr. Gnoyski’s RFC assessment was

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apparently not supported by an examination or treatment records – because they were also not
before the ALJ at that time. Likewise, the ALJ’s determination that Plaintiff was able to sit
during the hearing was not supported by the record, as she actually needed to stand during the
hearing. Finally, she notes her indications in the medical record that she could live with her
symptoms were based on her reluctance to surgery as a treatment option.
I conclude, however, that the ALJ’s order reveals an adequate assessment of Plaintiff’s
credibility. To the extent that Plaintiff argues that the ALJ merely adopted the opinion of the Dr.
Lorber, and the ALJ failed to evaluate the evidence, I disagree. The record is clear that the
ALJ’s credibility determination was supported by substantial evidence unrelated to the opinion
of Dr. Lorber. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000)(ruling that in assessing
credibility, all that is required is that the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility; it does not require a formalistic factor-by-factor recitation
of the evidence).
C. Medical Opinion Evidence
Plaintiff next argues that the ALJ did not properly evaluate the medical opinion evidence;
specifically, she contends that the ALJ improperly discounted the opinion of Dr. Gnoyski – as a
treating physician – by only giving it little weight and, instead, giving greater weight to the
opinions of non-examining physicians.
The ALJ here found that Dr. Gnoyski’s opinions were not entitled to controlling weight
by ruling that they were not well-supported by medically acceptable clinical and laboratory
diagnostic techniques. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003); 20
C.F.R. § 404.1527. While an ALJ need not give “controlling weight” to the opinion of a treating

17

physician, such medical opinions are still entitled to deference and must be weighed using the
following factors:
(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.
Id. at 1301 (citing 20 C.F.R. § 404.1527(c)). It is not necessary for the ALJ to address each
factor expressly or at length. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)
(observing that “not every factor for weighing opinion evidence will apply in every case”).
Rather, what matters is that the decision is “sufficiently specific to make clear to any subsequent
reviewer[ ] the weight the adjudicator gave to the . . . opinion and the reasons for that weight.”
Id. (quotation omitted).
The ALJ found that Dr. Gnoyski’s opinions – as set forth in his assessment of her RFC
limitations and his conclusion that she was unable to work – were unpersuasive. In a form
entitled Medical Source Statement of Ability to Work-Related Activities (Physical), and dated
June 23, 2008, Dr. Gynoski indicated that Plaintiff could: lift 10 occasionally; sit for two hours
(20 minutes continuously), stand for one hour (15 minutes continuously), and walk for one hour
(15 minutes continuously) in an eight-hour workday. He also assessed limitations related to her
ability to reach, push/pull, and use foot controls; climb stairs and ramps, balance, and stoop; and
climb ladders or scaffolds, kneel, crouch, or crawl. [AR 441-47, 490-95] Notably, he opined
that Plaintiff had “too much pain” to concentrate or sit/stand for prolonged periods, and he
concluded she was “unable to work.” [AR 446]

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The ALJ based his rejection of Dr. Gynoki’s opinions on his conclusion that the medical
records, as discussed above, did not reflect any significant clinical findings that would support it.
The ALJ found that Dr. Gnoyski’s RFC assessment and opinions of Plaintiff’s capacity to work
were “not consistent with the treatment records, exam findings, and other objective evidence of
record, including Dr. Gnoyski’s own treatment records.” [AR 18] The ALJ determined that:
[w]hile examinations certainly show evidence of a degenerative back condition
with subjective complaints of chronic pain, diagnostic imaging, including repeat
and recent MRIs, fails to show any significant findings or pathology that would
warrant such severe work restrictions. The claimant has at most moderate
degenerative disc disease with no diagnostic neuropathy or radiculopathy.
[AR 18]
In addition, the ALJ found that Dr. Gnoyski’s opinion that “the claimant experiences too much
pain to concentrate” is not supported by the record, which consists of numerous examinations
that include findings of normal speech, mood and affect, including Dr. Gnoyski’s own findings
that her cognitive functioning was normal and her thought processes were not impaired. [AR 1819]
The ALJ further discounted Dr. Gnoyski’s RFC opinion on the basis that: he is not a
specialist in orthopedics; the RFC assessment was dated June 2008, after her last date of insured,
and was apparently without a supporting examination or treatment records as the “record appears
to be void of any treating source medical evidence from 2008;” and Dr. Gnoyski “has not
demonstrated an understanding of the [SSA] disability program and its evidentiary
requirements.” [AR 19] As a result, the ALJ gave “little weight to this assessment and finds it
inconsistent with the better explained assessment for the medical expert at the hearing, which is
considered more persuasive.” [AR 19]

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Plaintiff argues that the ALJ’s rejection of Dr. Gnoyski’s June 2008 RFC assessment
constitutes reversible error on the basis that the factors for assessing whether to give his opinion
deference, as set forth in 20 C.F.R. § 404.1527(c), weigh in favor of accepting his opinion over
the opinions of non-examining physicians. For example, Plaintiff notes that Dr. Gnoyski has
treated Plaintiff since August of 2004, and that although he is not an orthopedist, Dr. Gnoyski’s
specialty is physical medicine and rehabilitation which “deals specifically with patents such as
claimant, who need to learn to manage their pain,” not just provide surgical options.
However, it is not this court’s job to re-weigh the evidence. My review of the record
reveals that the evidence relied upon by the ALJ supports his conclusion that Dr. Gnoyski’s
June 2008 opinions related to Plaintiff’s ability to work are not supported by medically
acceptable clinical and laboratory diagnostic techniques. I reject Plaintiff’s assertion to the
extent she argues that Dr. Gnoyski’s opinion is, in fact consistent with the medical evidence
because it is clear from the record that Plaintiff suffers from pain associated with the objective
diagnosis of degenerative disc disease of her lumbar spine. The ALJ found, however, while
Plaintiff does in fact suffer pain associated with her diagnosed degenerative disc disease, the
record evidence does not support that her pain rises to the level of limitation expressed by Dr.
Gnoyski’s RFC assessment in June of 2008. I conclude that the ALJ’s order provides adequate
“specific, legitimate reasons” for rejecting Dr. Gnoyski’s June 2008 opinion. See Watkins v.
Barnhart, supra, 350 F.3d at 1301; Castellano v. Secretary of Health & Human Services, 6 F.3d
1027, 1029 (10th Cir. 1994)(a treating physician’s opinion may be rejected if his conclusions
are not supported by specific findings).

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D. RFC Determination
Finally, Plaintiff argues that the ALJ’s RFC determination is not supported by the
evidence in the record. Specifically, she maintains that the hypothetical questions posed to the
vocational expert at the hearing “did not include all of her [RFC] limitations” as opined by Dr.
Gnoyski and, as such, the conclusion that she could perform her past relevant work – based on
an RFC assessed by the state agency physician (Dr. LoGalbo) and the medical expert’s
testimony at the hearing (Dr. Lorber) – is not supported by the evidence. However, because I
have found no error by the ALJ in assessing the opinion evidence related to Plaintiff’s RFC – as
discussed above – Plaintiff’s argument here is unavailing.

ACCORDINGLY, I AFFIRM the SSA Commissioner’s final order.

Dated: October

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, 2012, in Denver, Colorado.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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