Garcia DeNunez v. Astrue et al

Filing 27

ORDER Affirming Commissioner. By Judge Robert E. Blackburn on 5/6/2013. (klyon, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-01478-REB
CELIA GARCIA DENUNEZ,
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 June 6, 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 result of degenerative disc disease,
degenerative joint disease, and depression. After her application for disability insurance

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 to 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.

benefits was denied, plaintiff requested a hearing before an administrative law judge.
This hearing was held on September 9, 2010. At the time of the hearing, plaintiff was
49 years old. She has a second grade education and past relevant work experience as
a housekeeper. She has not engaged in substantial gainful activity since January 29,
2009, 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. Other alleged impairments were found to be not severe, a finding that
plaintiff does not challenge in this appeal. The ALJ found that plaintiff had the residual
functional capacity to perform a reduced range of light work. Although this finding
precluded plaintiff’s past relevant work, the ALJ found that there were other jobs existing
in significant numbers in the national and local economies that she could perform. 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
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.

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
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

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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).
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.

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III. LEGAL ANALYSIS
Plaintiff maintains that the ALJ erred in failing to order a consultative psychiatric
evaluation or otherwise to ensure that the record contained a mental residual functional
capacity evaluation. She further contends the ALJ improperly discredited her subjective
reports of pain and functional limitation. Finding no reversible error in either regard, I
affirm.3
Plaintiff maintains that in considering depression, the ALJ’s determination of the
“paragraph B” criteria4 is not supported by substantial evidence because the record did
not contain a completed psychiatric review technique form. She contends that the ALJ
therefore was required to order a psychiatric consultative examination. This argument
is wrong in both its premise and its conclusion. The record does in fact contain a
medical opinion from a state agency physician, Dr. MaryAnn Wharry, regarding the
paragraph B criteria (Tr. 77) which corresponds in large part to the ALJ’s ultimate

3

In a single sentence of her opening brief, plaintiff also avers that the ALJ failed to properly credit
the opinion of her treating physician. I do not consider such inadequately briefed arguments. Jack v.
Astrue, 2010 WL 3615022 at *3 n.1 (D. Colo. Sept. 10, 2010). See also D.C.COLO.LCivR 7.1C
(requiring that a motion filed in this district “be supported by a recitation of legal authority incorporated into
the motion”). Nor do I consider the additional arguments plaintiff brings forward only in her reply brief.
See Butler v. Astrue, 2012 WL 1520154 at *3 n.3 (D Colo. April 30, 2012).
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Section 12.00 of the listings describes various mental disorders. Each of the nine diagnostic
categories identified therein is defined by three criteria: a statement describing the disorder (the capsule
definition), a set of medical findings (the paragraph A criteria) and a set of impairment-related functional
limitations (the paragraph B criteria). Alternative functional criteria (the paragraph C criteria) are included
for certain classes of disorders. A claimant’s impairment meets or equals a listed impairment, and
therefore is presumed to be disabling, if the diagnostic description of the capsule definition and the criteria
of both paragraphs A and B, or A and C, where appropriate, are satisfied. Id., § 12.00A.
Paragraph B requires proof that a medically determinable impairment has resulted “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.” See id, § 12.04B.

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determination on the level of functionality in each of the four described areas (Tr. 21).5
See Social Security Ruling 96-6p, 1996 WL 374180 at *2 (SSA July 2, 1996) (noting
that “State agency medical and psychological consultants and other program physicians
and psychologists are experts in the Social Security disability programs” and therefore
that ALJ must “consider their findings of fact about the nature and severity of an
individual's impairment(s)”). See also 42 U.S.C. § 421(h) (requiring Commissioner to
ensure, at the initial determination level, that a psychiatrist or psychologist has reviewed
the case file and undertaken the special psychiatric review technique); 20 C.F.R. §
404.1520a(e) (same).
Moreover, the ALJ’s ability to order a consultative examination is discretionary,
based on his determination whether the record is inadequate to allow him to make a
determination. See 20 C.F.R. § 1519a.6 Such was not the case here. The ALJ
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The ALJ actually found that plaintiff had moderate limitations in social functioning (Tr. 21), which
was more restrictive than the state agency doctor’s doctors conclusion that she had no such restrictions
whatsoever (Tr. 77). I certainly cannot fault the ALJ for ascribing to plaintiff more restrictions than found
by a medical source.
6

Under the regulations, the ALJ “may purchase a consultative examination to try to resolve an
inconsistency in the evidence, or when the evidence as a whole is insufficient to allow us to make a
determination or decision on your claim.” 20 C.F.R. § 404.1519a(b). Examples include instances where
(1) The additional evidence needed is not contained in the records of
your medical sources;
(2) The evidence that may have been available from your treating or other
medical sources cannot be obtained for reasons beyond your control,
such as death or noncooperation of a medical source;
(3) Highly technical or specialized medical evidence that we need is not
available from your treating or other medical sources; or
(4) There is an indication of a change in your condition that is likely to
affect your ability to work, but the current severity of your impairment is
not established.
Id.

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specifically tied his determination as to each of the separate paragraph B categories to
specific evidence of record. (See Tr. 21.) There is nothing in the record to suggest that
the evidence was inadequate to make this determination.
Even assuming arguendo that the ALJ erred in this regard, plaintiff fails to show
how any such error was more than harmless. See Bernal v. Bowen, 851 F.2d 297,
302 (10th Cir. 1988). Plaintiff fails to point to any evidence suggesting that her
depression is more debilitating than the ALJ found it to be, and the scant evidence
suggests that plaintiff’s depression is well-controlled on medication. (Tr. 58-59
(plaintiff’s testimony that medications prescribed by her psychiatrist were working); 326
(report to consultative examiner that she was “doing fairly well” with depression
medications)). I therefore find no reversible error in this regard. See Andrade v.
Secretary of Health and Human Services, 985 F.2d 1045, 1050 (10th Cir. 1993).
Plaintiff also suggests that the ALJ improperly discredited her subjective reports
of pain.7 “[C]redibility determinations ‘are peculiarly the province of the finder of fact,’
and should not be upset if supported by substantial evidence.” White v. Barnhart, 287
F.3d 903, 909 (10th Cir. 2001) (quoting Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir.
1995)). Contrary to plaintiff’s suggestion that the ALJ’s credibility finding is mere
boilerplate, he gave clear, specific, and legitimate reasons why he did not find plaintiff’s
testimony entirely credible. With the exception of the ALJ’s reliance on plaintiff’s
pecuniary interest in the outcome of the hearing – a factor which would apply in any

7

Although plaintiff further claims that the ALJ cherry-picked the record in this regard, she fails to
point to any contradictory evidence which might substantiate this allegation. In addition, although plaintiff
suggests error in the ALJ’s failure to consider the side effects of her medications, she did not report any
such difficulties to her doctors. See Kelley, 62 F.3d at 338.

7

appeal of a denial of benefits – all the factors considered by the ALJ were appropriate
and supported by the record. For example, the ALJ noted that plaintiff was able to sit
without apparent difficulty through the 90-minute hearing, despite her allegation that she
was significantly more limited in this respect. (Tr. 25.) See White, 287 F.3d at 909. He
also pointed out that plaintiff claimed not to have received unemployment benefits,
when in fact she had. (Tr. 24, 165-166.)8 This argument therefore does not warrant
reversal either.
THEREFORE, IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated May 6, 2013, at Denver, Colorado.
BY THE COURT:

8

Moreover, although not specifically cited by the ALJ, “in order to receive unemployment
benefits, [a claimant is] required to affirm that he was willing and able to work. Such affirmations are
inconsistent with claims of disability and thus negatively impact a claimant’s credibility.” See Moses v.
Astrue, 2012 WL 1326672 at *3 (D. Colo. April 17, 2012).

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