Caro v. Astrue

Filing 24

ORDER Affirming Commissioner. By Judge Robert E. Blackburn on 3/10/2014. (klyon, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-03069-REB
CARRIE LEE C. CARO,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],1 filed July 3, 2012, 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 arthritis in her right knee; pain
in her back, elbow, shoulders, and neck; shortness of breath; and depression. After her
applications for disability insurance benefits and supplemental security income benefits
were denied, plaintiff requested a hearing before an administrative law judge. This
1

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

hearing was held on April 8, 2011. At the time of the hearing, plaintiff was 47 years old.
She has high school education and past relevant work experience as a cashier, box
maker, motel housekeeper, truck driver, waitress, and bartender. She has not engaged
in substantial gainful activity since January 1, 2009, her alleged date of onset.
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’s degenerative joint disease of her right knee
constituted a severe impairment, the judge concluded that the severity of that
impairment did not meet or equal any impairment listed in the social security
regulations. Plaintiff’s alleged mental impairment was found non-severe.2 The ALJ
found that plaintiff had the residual functional capacity to perform light work with certain
postural, manipulative, and environmental limitations. Based on this finding, the ALJ
concluded that plaintiff could perform her past relevant work as a cashier. Alternatively,
the ALJ determined 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 both step 4 and step 5 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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A determination which plaintiff does not challenge in this appeal.

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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).3 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

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Throughout this opinion, although I cite to relevant sections of Part 404 of Title 20 of the Code of
Federal Regulations, which contain the Commissioner’s regulations relating to disability insurance
benefits, identical, parallel regulations can be found in Part 416 of that same title, relating to supplemental
security income benefits.

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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 assessing the credibility of her subjective reports of
pain, weighing the opinion evidence of record, and failing to include in his hypothetical
to the vocational expert all functional limitations supported by the evidence. Finding no
such reversible error, I affirm.
Plaintiff argues first that the ALJ misapplied the analysis required by Luna v.
Bowen, in which the Tenth Circuit 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
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 this regard, plaintiff claims the ALJ improperly discredited her subjective
complaints on the ground that they were not substantiated by the evidence of record.
(See Tr. 15.) Essentially, she claims that Luna precludes the ALJ’s consideration of the
lack of objective medical findings in assessing her credibility once he has determined
that she has a condition capable of producing pain.

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Plaintiff’s own citation to Luna clearly belies this interpretation. Luna stands for
the proposition that “a lack of objective corroboration of the pain's severity cannot justify
disregarding those allegations.” Luna, 834 F.2d at 165 (emphasis added).
Nevertheless, the Luna court expressly recognized that “the absence of an objective
medical basis for the degree of severity of pain may affect the weight to be given to the
claimant's subjective allegations of pain.” Id. The ALJ therefore was not prohibited
from considering the degree to which the evidence, including the objective medical
evidence, substantiated plaintiff’s subjective reports of pain and functional limitation.
Moreover, in general, “credibility 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) (citing Kepler v. Chater, 68 F.3d 387,
390-91 (10th Cir. 1995)). The ALJ here gave clear, specific, legitimate reasons linked to
specific evidence in the record for his credibility assessment. (Tr. 14-15.) His
determination therefore entitled to substantial deference. Id. at 910; see also Qualls v.
Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Accordingly, I find no reversible error on
that basis.
Plaintiff next argues that the ALJ failed to afford proper weight to the opinion of
her treating source, physician’s assistant Edward Medina. Mr. Medina actually issued
two functional capacity assessments. The first, dated June 18, 2010, was generally
consistent with the opinion of consultative examiner, Dr. Benjamin Loveridge, and the
ALJ afforded it “significant weight” with the express exception of its suggestion that
plaintiff was totally precluded from reaching overhead with the left upper extremity and

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its restrictions on standing and walking, which the ALJ found were not consistent with
the medical evidence of record.4 (Tr. 19.) On February 23, 2011, Mr. Medina authored
a second functional capacity assessment, co-signed by a Dr. John Wheeler, which
suggested remarkably more limited functionality on plaintiff’s work-related abilities.5 The
ALJ gave this opinion “no weight,” noting that the limitations suggested therein were not
supported by any objective evidence showing that plaintiff’s condition had worsened
appreciably in the eight months since Mr. Medina issued his first opinion. (Tr. 19).
Plaintiff maintains that the ALJ should have considered whether Mr. Medina’s
second opinion was entitled to controlling weight and, even if it was not, that he could
not reject automatically on that basis alone. This is an accurate statement of the law,
but it has no application to the facts of this case. The opinion of a treating source is
entitled to controlling weight 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.” 20 C.F.R. § 404.1527(c)(2); see also Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). However, Mr. Medina, a physician’s
assistant, is not considered an “acceptable medical source.” See Social Security
Ruling 06-03p, 2006 WL 2329939 at *1 (SSA Aug. 9, 2006). As such, he can neither
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Mr. Medina opined that plaintiff could frequently lift up to 10 pounds and occasionally lift up to
20 pounds; that she could sit for two hours at a time for a total of four hours in an eight-hour day, stand for
one hour at a time up to one hour a day, and walk for up to one hour at a time up to three hours total in a
day; that she would need to change positions and take frequent breaks; and that she could use her right
hand frequently for most manipulative requirements except pushing and pulling, which she could do
occasionally, but could never use the left hand. (Tr. 309-313.)
5

In this opinion, Mr. Medina suggested that plaintiff could sit and stand for no more than twenty
minutes at a time, up to four hours in an eight-hour workday; could frequently lift less than 10 pounds and
occasionally lift 10 pounds; would need two to three unscheduled breaks of up to five minutes during the
work day; and would be absent from work due to symptoms associated with her impairments more than
four days per month. (Tr. 416-419.)

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issue medical opinions, see 20 C.F.R. §404.1527(a)(2), nor be considered a treating
source whose opinion must be evaluated to determine whether it is entitled to
controlling weight, see 20 C.F.R. § 404.1513(d). See also Social Security Ruling 0603p, 2006 WL 2329939 at *2; Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007).6
The ALJ specifically noted that Mr. Medina was not an acceptable medical
source. (See Tr. 17.) Nevertheless, he did not reject Mr. Medina’s opinions out of
hand, but thoroughly discussed them and gave clear, specific, legitimate reasons tied to
the evidence of record for the weight he assigned them. (Tr. 19.)7 See Watkins, 350
F.3d at 1301; Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987). The evidence more
than adequately supports his conclusions that certain of the restrictions imposed by Mr.
Medina in his June, 2010, opinion were not supportable on the basis of the medical and
other evidence of record and that plaintiff suffered no appreciable deterioration in her
condition that would justify the significantly greater restrictions imposed by Mr. Medina
in February, 2011. (Tr. 19.) I thus find no reversible error in this regard either. See
White, 287 F.3d at 907-08.

On a related note, plaintiff suggests that the case must be remanded because

6

Nor does the fact that Dr. Wheeler co-signed the February, 2011, opinion entitle it to greater
consideration. There is no evidence suggesting that Dr. Wheeler had any treatment relationship with
plaintiff whatsoever. See 20 C.F.R. § 404.1502; Vendetti v. Astrue, 2010 WL 3516652 at *4 (D. Colo.
Aug. 31, 2010).
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Plaintiff further suggests the ALJ erred in not giving articulating why he apparently discredited
Mr. Medina’s June, 2010, opinion, that plaintiff would need “frequent breaks.” This statement was given in
response to a question predicated on the premise that the restrictions imposed on sitting, standing, and
walking did not equal or exceed 8 hours total. The total amount of these activities Mr. Medina suggested
plaintiff could perform in fact did total 8 hours, making this restriction inapplicable by its own terms. (See
Tr. 310.)

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the record contains no medical opinion suggesting that plaintiff’s impairment is not
medically equivalent to a listed impairment. See 20 C.F.R. § 404.1526; Social Security
Ruling 96-6p, 1996 WL 374180 at *3 (SSA July 2, 1996). See also Carbajal v.
Astrue, 2011 WL 2600984 at *2-3 (D. Colo. June 29, 2011). While plaintiff has
adequately stated the law, she has failed to demonstrate how any error in this regard
actually prejudiced her substantial rights. See Williams v. Chater, 1995 WL 490280 at
*2 (10th Cir. Aug.16, 1995) (“Procedural imperfection that does not affect a party's
substantive rights is not a basis for reversal.”); Bernal v. Bowen, 851 F.2d 297, 303
(10th Cir. 1988) (mere fact of error does not warrant remand if the ALJ’s determination is
otherwise supported by substantial evidence). She offers neither argument nor
evidence to suggest that a finding of equivalence might be warranted in this case, nor
attempts to demonstrate that the alleged error at step 3 was not rectified by the ALJ’s
findings at steps 4 and 5, which were based on the opinion of medical doctor (see Tr.
18-19 (discussing opinion of consultative examiner Dr. Benjamin Loveridge)), and which
confirm that plaintiff’s impairments were not of Listing-level severity, see Carbajal, 2011
WL 2600984 at *3 (citing Fischer–Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir.
2005)). Remand is not warranted on this basis.
Plaintiff’s final argument – that the ALJ’s hypothetical improperly failed to include
all limitations supported by the evidence of record, see Rutledge v. Apfel, 230 F.3d
1172, 1175 (10th Cir. 2000) – is premised on the viability of her earlier assignments of
error. As I have found nothing therein to suggest that the ALJ committed any reversible
error in assessing plaintiff’s functional limitations, I find this contention unavailing as

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well.
IV. ORDERS
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated March 10, 2014, at Denver, Colorado.
BY THE COURT:

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