Anderson v. Astrue

Filing 23

ORDER Affirming Commissioner. By Judge Robert E. Blackburn on 6/25/2013. (klyon, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-01282-REB
REGINA M. ANDERSON,
Plaintiff,
v.
CAROLYN W. COLVIN,1 Acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],2 filed May 16, 2012, seeking
review of the Commissioner’s decision denying plaintiff’s claims for disability insurance
benefits under Title II 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 fibromyalgia, headaches, back
pain, and anxiety. After her application for disability insurance benefits was denied,

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013,
and thus her name is substituted for that of Michael J. Astrue as the defendant in this suit. FED. R. CIV. P.
25(d)(1). By virtue of the last sentence of 42 U.S.C. § 405(g), no further action need be taken to continue
this lawsuit.
2

“[#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.

plaintiff requested a hearing before an administrative law judge. This hearing was held
on June 30, 2008, and resulted in an unfavorable decision. On appeal to this court, I
remanded with directions to consider new evidence concerning plaintiff’s more recent
diagnosis of fibromyalgia. A second hearing therefore was held on January 30, 2012.
At the time of this hearing, plaintiff was 58 years old. She has two years of college
education and past relevant work experience as a certified nurses aide, medical records
clerk, and receptionist. She has not engaged in substantial gainful activity since August
20, 2006, her alleged date of onset.
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits. Although the medical evidence established that plaintiff
suffered from severe 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
light, semi-skilled work with certain postural and environmental limitations, and thus was
capable of performing her past relevant work. He therefore found plaintiff not disabled
at step four 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
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
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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.
The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.

3.

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
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). 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
3

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).
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 claims the ALJ erred by failing to afford sufficient weight to the opinions

4

of her treating physician and failing to adequately account for the other medical opinions
of record, which in turn infected his determination of her residual functional capacity.3
Finding no such reversible error in the ALJ’s opinion, however, I affirm.
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); 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).
Plaintiff’s treating physician, Dr. Robert Spees, completed a Functional Capacity
Evaluation in April, 2008, in which he opined that plaintiff could lift and carry up to 10
pounds occasionally, sit for one hour at a time up to four hours in an 8-hour workday,
stand for less than 30 minutes for up to 3 hours a day, and walk for one hour at a time
up to two hours a day. (Tr. 365-366.) The ALJ afforded “little weight” to this opinion
because he found it to be inconsistent with Dr. Spees’s own treatment notes, “which
repeatedly show normal physical functioning, normal gait and station, no abnormal
strength and no decreased motion in the limbs or spinal components[.]” (Tr. 397.)

3

Plaintiff articulates several additional alleged errors, sprinkling random thoughts and brief
citations throughout her brief. I do not consider such inadequately briefed, and therefore undeveloped,
arguments. DeNunez v. Colvin, 2013 WL 1873284 at *3 n.3 (D. Colo. May 6, 2013). See also
D.C.COLO.LCivR 7.1 C. (requiring that a motion filed in this district “be supported by a recitation of legal
authority incorporated into the motion”).

5

Plaintiff suggests that it was error to rely on the lack of objective medical
corroboration because she suffers from fibromyalgia,4 a condition for which such
evidence typically is absent.5 See Wilson v. Astrue, 602 F.3d 1136, 1143 (10th Cir.
2010); Gilbert v. Astrue, 2007 WL 1068104 at *4 (10th Cir. April 11, 2007). Indeed, the
reason cited by Dr. Spees in support of his conclusions regarding plaintiff’s limitations
on lifting, sitting, standing, and walking were the overall, profuse tenderness of plaintiff’s
neck, trapezius, and cervical and lumbar spine. (Tr. 366.)
It is important to remember that in considering cases of fibromyalgia, the
symptoms of the disease “are entirely subjective.” Gilbert, 2007 WL 1068104 at *4
(citation and internal quotation marks omitted). See also Benecke v. Barnhart, 379
F.3d 587, 590 (9th Cir. 2004) (fibromyalgia “is diagnosed entirely on the basis of patients'
reports and other symptoms”). “Given accepted diagnostic protocols, a treating
physician's reliance on such complaints hardly undermines his opinion as to [the
claimant's] functional limitations.” Sanchez v. Astrue, 2009 WL 4810696 at *4 (D.
Colo. Dec. 10, 2009) (citation and internal quotation marks omitted). Moreover, it is

4

Fibromyalgia is “a rheumatic disease that causes inflammation of the fibrous connective tissue
components of muscles, tendons, ligaments and other tissue,” Benecke v. Barnhart, 379 F.3d 587, 589
(9th Cir. 2004), and results in “long-term but variable levels of muscle and joint pain, stiffness and fatigue,”
Brosnahan v. Barnhart, 336 F.3d 671, 672 n.1 (8th Cir. 2003). “Its cause or causes are unknown, [and]
there is no cure[.]” Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996).
5

The ALJ made reference to “variable trigger point findings, sometimes only in the upper body
and other times in all four quadrants of the body.” (Tr. 394.) See Social Security Ruling 12-2p, 2012 WL
3104869 at *2 (SSN July 25, 2012) (noting that one of the criteria supporting a finding of fibromyalgia is
“[a] history of widespread pain – that is, pain in all quadrants of the body (the right and left sides of the
body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic
spine, or low back) – that has persisted (or that persisted) for at least 3 months”). It is not clear what how
this reference supports the ALJ’s conclusion however, since a rheumatologist, Dr. Lawrence Zykowski
found plaintiff to suffer from fibromyalgia (see Tr. 644-645), a conclusion which the ALJ himself accepted
in finding that plaintiff had such an impairment (Tr. 391).

6

error in any event to discredit a medical source opinion simply because it relies on a
claimant’s subjective report of symptoms:
A medical finding of disability . . . 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 of pain. A medical opinion based on all of these
factors is medical evidence supporting a claim of disabling
pain, even if the objective test results, taken alone, do not
fully substantiate the claim.
Nieto v. Heckler, 750 F.2d 59, 60-61 (10th Cir. 1984). See also Sanchez, 2009 WL
4810696 at *4. Indeed, the Commissioner’s own regulations make clear that a lack of
objective medical evidence alone is not sufficient to discredit a claimant’s subjective
reports of disabling pain. See 20 C.F.R. § 404.1527(c)(2); Social Security Ruling 967p, 1996 WL 374186 at * 3 (SSA July 2, 1996).
Nevertheless, “[a] physician's opinion of disability premised to a large extent
upon the claimant's own accounts of his symptoms and limitations may be disregarded
where those complaints have been properly discounted.” See Morgan v.
Commissioner of Social Security Administration, 169 F.3d 595, 602 (9th Cir. 1999)
(citation and internal quotation marks omitted). In other words, when the ALJ has
properly discredited a claimant’s subjective complaints of pain, he need not accept a
medical source opinion premised on a contrary estimation of the claimant’s credibility
regarding her own functional and other limitations. The Tenth Circuit has outlined a
tripartite test for evaluating subjective complaints of pain:
We must consider (1) whether Claimant established a painproducing impairment by objective medical evidence; (2) if
so, whether there is a “loose nexus” between the proven
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impairment and the Claimant’s subjective allegations of pain;
and (3) if so, whether, considering all the evidence, both
objective and subjective, Claimant’s pain is in fact disabling.
Musgrave, 966 F.2d at 1375-76 (citing Luna, v. Bowen, 834 F.2d 161, 163-64 (10th Cir.
1987)). In applying these standards, the ALJ should consider a number of factors that
may either support or undermine the credibility of plaintiff’s subjective complaints.
See Social Security Ruling 96-7p, 1996 WL 374186 at * 3.6
The ALJ here rehearsed a number of these considerations. He pointed out that
plaintiff’s condition “has been managed most conservatively, with chiropractic care,
minimal medications and office visits sometimes separated by six months.”7 He noted

6

Such factors include:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's pain
or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back,
standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations and
restrictions due to pain or other symptoms.

Social Security Ruling 96-7p, 1996 WL 374186 at * 3.
7

Although the ALJ acknowledged plaintiff’s claim that she lacked medical insurance, see Ky v.
Astrue, 2009 WL 68760 at *4 n.4 (D. Colo. Jan. 8, 2009), he noted that there was community health care
readily available in her area, see Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992) (lack of
evidence that plaintiff sought out low-cost medical alternatives or was denied care due to lack of finances
supported determination that indigence was not responsible for failure to obtain treatment). (See Tr. 394395.)

8

that although plaintiff alleged frequent and debilitating headaches,8 as well as significant
side effects from her medications, she had failed to report any such matters to any
treating source. He also noted that Dr. Spees had recommended that plaintiff engage in
a walking program, suggesting that she was capable of more than sedentary activity.
(Tr. 394.) I perceive no error in the ALJ’s reliance on any of these considerations to
discredit plaintiff’s subjective complaints and, concomitantly, to assign diminished
weight to the opinion of her treating source based principally on such complaints.9 I
thus reject plaintiff’s suggestion that the ALJ’s assessment of Dr. Spees’s opinions was
infected with reversible error.
The ALJ also rejected the opinion of Dr. Lawrence Zyskowski that plaintiff was
“not likely to be available for gainful employment, especially with the chronicity [sic] of
her musculoskeletal pain.” (Tr. 642.) 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);

8

The ALJ also rejected a headache questionnaire which Dr. Spees completed in October 2010,
because it was based entirely on plaintiff’s own “headache diary,” not on his own observations or medical
findings. (Tr. 398; see Tr. 788-790.)
9

The ALJ noted that his ultimate determination of plaintiff’s residual functional capacity was
partially consistent with Dr. Spees’s findings. (Tr. 399.) Contrary to plaintiff’s argument, such a conclusion
does not evidence improper “cherry picking” of the record. The ALJ was under no obligation to base his
residual functional capacity assessment on any particular medical source’s opinion or to adopt a medical
source opinion in toto. 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), “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).

9

Sosa v. Barnhart, 2003 WL 21436102 at *5 (D. Kan. April 10, 2003), adopted, 2003
WL 21428384 (D. Kan. Jun. 17, 2003). For the reasons already discussed in relation to
Dr. Spees’s opinion, I perceive no reversible error in the ALJ’s determination to assign
no weight to Dr. Zyskowki’s brief, conclusory, and not-well-supported opinion. (Tr. 397398.)10
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated June 25, 2013, at Denver, Colorado.
BY THE COURT:

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The ALJ also noted that although Dr. Zyskowski completed a Functional Capacity Evaluation
on plaintiff’s behalf, plaintiff apparently complained to the doctor about the manner in which he completed
the form, and it was not submitted to the ALJ, a factor which the ALJ found as further undermining
plaintiff’s credibility. (Tr. 398.) I find no merit in plaintiff’s argument that the ALJ was required to develop
the record by seeking out this evaluation, as there is nothing to suggest that the evidence before him was
inadequate to allow him to make a determination. See 20 C.F.R. § 404.1512(e); White v. Barnhart, 287
F.3d 903, 908 (10th Cir.2001). Nor do I perceive any error in the negative inference drawn from the failure
to present the evidence, which I note plaintiff has made no attempt – either before the Appeals Council or
here – to make part of the record.

10