Gonzales v. Astrue

Filing 17

ORDER AFFIRMING COMMISSIONER re: 1 Complaint filed by Irene Gonzales. The conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is AFFIRMED. By Judge Robert E. Blackburn on 9/24/12. (mjgsl, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-02344-REB
IRENE GONZALES,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.

ORDER AFFIRMING COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],1 filed September 6, 2011,
seeking review of the Commissioner’s decision denying plaintiff’s claims for disability
insurance benefits and supplemental security income benefits under Titles II and XVI of
the Social Security Act, 42 U.S.C. § 401, et seq. I have jurisdiction to review the
Commissioner’s final decision under 42 U.S.C. § 405(g). The matter has been fully
briefed, obviating the need for oral argument. I affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she is disabled as a result of a variety of physical and mental
impairments. After her applications for disability insurance benefits and supplemental
security income benefits were denied, plaintiff requested a hearing before an
administrative law judge. This hearing was held on August 25, 2010. At the time of the
1

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s electronic case filing and management system (CM/ECF). I use this convention
throughout this order.

hearing, plaintiff was 42 years old. She has a high school equivalency degree and two
years of college work and past relevant work experience as an election canvasser,
telemarketer, blood donor processor, and distribution clerk. She has not engaged in
substantial gainful activity since her amended alleged date of onset, November 5,
2008.2
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits or supplemental security income benefits. Although the
medical evidence established that plaintiff suffered from severe physical and mental
impairments, the judge concluded that the severity of those impairments did not meet or
equal any impairment listed in the social security regulations. The ALJ found that
plaintiff had the residual functional capacity to perform a range of light work with
physical and mental restrictions. Although these limitations precluded plaintiff’s past
relevant work, the ALJ concluded that there were other jobs existing in significant
numbers in the national and local economies that were within his residual functional
capacity. He therefore found plaintiff not disabled at step five of the sequential
evaluation. Plaintiff appealed this decision to the Appeals Council. The Council
affirmed. Plaintiff then filed this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if her
physical and/or mental impairments preclude her from performing both her previous

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After the hearing, plaintiff amended her alleged date of onset, acknowledging that she had
engaged in substantial gainful activity after her original alleged onset date. See 20 C.F.R. § 404.1520(b)
(claimant who is engaging substantial gainful activity is not disabled regardless of medical condition, age,
education, or work experience).

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work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a five-step sequential evaluation process for
determining whether a claimant is disabled:
1.

The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.

2.

The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.

3.

The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.

4.

If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.

5.

If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
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in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.
20 C.F.R. §§ 404.1520(b)-(f) & 416.920(b)-(f). See also Williams v. Bowen 844 F.2d
748, 750-52 (10th Cir. 1988). The claimant has the initial burden of establishing a
disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146
n.5, 107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the
Commissioner to show that the claimant is capable of performing work in the national
economy. Id. A finding that the claimant is disabled or not disabled at any point in the
five-step review is conclusive and terminates the analysis. Casias v. Secretary of
Health & Human Services, 933 F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

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Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
III. LEGAL ANALYSIS
Plaintiff argues on appeal that the ALJ erred in failing to afford appropriate weight
to the opinion of her treating physician and in not including additional mental limitations
in the residual functional capacity assessment. Finding no such reversible error in the
ALJ’s extraordinarily thorough and well-supported opinion, I affirm.
Plaintiff first argues that the ALJ failed to give adequate reasons for discounting
the opinion of her treating source, Dr. John Krotchko, that plaintiff was disabled. (See
Tr. 381.) There are at least two problems with this argument. First, the finding that a
claimant is disabled vel non is an issue reserved to the Commissioner, and although a
source statement on that issue must be considered, it is entitled to no particular weight.
See 20 C.F.R. §§ 404.1527(e) & 41.6.927(e); Sosa v. Barnhart, 2003 WL 21436102 at
*5 (D. Kan. April 10, 2003), adopted, 2003 WL 21428384 (D. Kan. Jun. 17, 2003).
Second, the opinion of a treating source is entitled to controlling weight only
when it is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with other substantial evidence in the case record”
and cannot be rejected absent good cause for specific and legitimate reasons clearly
articulated in the hearing decision. 20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2); see
also Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003). Good cause may be
found when a treating source opinion is brief, conclusory, or unsupported by the medical
evidence. Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987). The ALJ here rejected

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Dr. Krotchko’s assessment because it was not substantiated by a thorough analysis of
her particular capabilities. (See Tr. 24.)
Plaintiff argues that this reason, while specific, was not legitimate, insofar as the
ALJ had a duty to further develop record in this regard. See Hawkins v. Chater, 113
F.3d 1162, 1164 (10th Cir. 1997); Henrie v. United States Department of Health &
Human Services, 13 F.3d 359, 360-61 (10th Cir. 1993). Yet plaintiff acknowledges in
the very next paragraph that the ALJ in fact did solicit further explication from Dr.
Krotchko, who declined the invitation to provide more specifics, saying that,
While I am familiar with this patient’s medical conditions and
can supply a detailed and updated problem list, I am unable
to complete the medical assessment you sent me as it is
beyond my level of expertise and beyond the scope of this
clinic in terms of what we do and what services we provide
here. I am unable to obtain clinical documentation of the
patient’s disabilities to anywhere near the level of detail
which is called for by this assessment.
(Tr. 437.) Undeterred by this apparent dead end, plaintiff argues that the ALJ should
have ordered a consultative examination. 20 C.F.R. §§ 404.1512(e) & 416.912(e).
Although the ALJ has a duty to fairly develop the record and must use
reasonable good judgment to ensure that the record fairly addresses the material issues
in the case, he is not required to “exhaust every possible line of inquiry in an attempt to
pursue every potential line of questioning.” Hawkins, 113 F.3d at 1168. More
specifically, a consultative examination may be ordered if there is an inconsistency in
the evidence or “the evidence as a whole is insufficient to allow [him] to make a
determination.” See 20 C.F.R. §§ 404.1519a(b) & 416.919a(b). Neither of those
circumstances pertained here. For one thing, plaintiff already had undergone a
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consultative examination in January, 2009. (See Tr. 371-374.) For another, the record
contained more than sufficient evidence from other, non-examining sources to allow the
ALJ to make a well-supported determination of residual functional capacity.
Fundamentally, plaintiff’s argument is that the ALJ erred in relying on these nonexamining source opinions in formulating his residual functional capacity determination.
Here again, however, plaintiff misunderstands the relationship between administrative
determinations and medical ones. The ALJ was under no obligation to base his residual
functional capacity assessment on any particular medical source’s opinion. See Moses
v. Astrue, 2012 WL 1326672 at *4 (D. Colo April 17, 2012) (“[T]the ALJ was not
required to adopt or rely on any medical source opinion in making her residual
functional capacity assessment because the determination of residual functional
capacity is not a medical opinion.”). Instead, residual functional capacity is assessed
“based on all of the relevant medical and other evidence,” 20 C.F.R. § 404.1545(a)(3) &
416.945(a)(3), “including medical records, observations of treating physicians and
others, and plaintiff's own description of his limitations,” Noble v. Callahan, 978 F.Supp.
980, 987 (D. Kan. 1997). Although the ALJ’s determination must be grounded in some
medical evidence, see Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995), it
ultimately is an administrative determination reserved to the Commissioner, 20 C.F.R.
§§ 404.1546 & 416.946; Rutledge v. Apfel, 230 F.3d 1172, 1175 (10th Cir. 2000).
Moreover, reliance on the opinions of non-examining state agency physicians in
and of itself is not error, so long as those opinions are supported by substantial
evidence. “In appropriate circumstances, opinions from State agency medical and

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psychological consultants and other program physicians and psychologists may be
entitled to greater weight than the opinions of treating or examining sources.” Social
Security Ruling 96-6p, 1996 WL 374180 at *3 (SSA July 2, 1996). Other than the fact
that the agency doctors did not examine her personally, plaintiff points to nothing
specific in their opinions that allegedly conflicts with the medical evidence of record.
The ALJ exhaustively reviewed that evidence, and his determination of plaintiff’s
residual functional capacity is well-grounded in that analysis. There is thus no basis for
reversal on these grounds.
For similar reasons, I reject plaintiff’s suggestion that the ALJ erred in adopting
some, but not all, of the mental limitations suggested by a psychological consultative
examiner. (Tr. 375-378.) While the ALJ found that plaintiff had the mental residual
functional capacity to perform simple tasks and could have only occasional interaction
with supervisors and co-workers and no interaction with the general public (Tr. 18-19),
he did incorporate or discuss the examiner’s further observations that plaintiff “may
have limited attention and concentration,” that “fatigue may be an issue at work,” and
that “[s]tress may cause her to withdraw, miss work, or become increasingly irritable”
(Tr. 378).
Just as the ALJ is not bound by any particular source opinion as to a claimant’s
residual functional capacity, neither is he obligated to include in his assessment every
limitation possibly suggested by a medical source. See Jones v. Astrue, 2008 WL
2325184 at *5 (E.D. Ky. June 4, 2008); Powers v. Barnhart, 2004 WL 2862170 at *4
(D. Me. Dec. 13, 2004). Although the ALJ cannot ignore such opinions, of course, see

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Social Security Ruling 96-5p, 1996 WL 374183 at *1 (SSA July 2, 1996), plaintiff
points to nothing in the record suggesting that any potential limitations occasioned by
her limited attention and concentration, fatigue, and stress were not accounted for
adequately by the ALJ’s determination that plaintiff could perform no more than simple
tasks and should have limited to no contact with others.
The ALJ did an exceptionally thorough job of reviewing all the evidence of record
in this matter. I find and conclude that his determination of plaintiff’s residual functional
capacity is free from legal error and supported by substantial evidence.
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated September 24, 2012, at Denver, Colorado.
BY THE COURT:

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