Klein v. Astrue

Filing 19

ORDER Affirming Commissioner. By Judge Robert E. Blackburn on 3/13/2014. (klyon, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-03139-REB
CHRISTOF KLEIN,
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 November 30, 2012,
seeking review of the Commissioner’s decision denying plaintiff’s claim 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 he is disabled as a result of anxiety, depression, migraine
headaches, bipolar disorder, and attention deficit disorder. After his application for
disability insurance benefits was denied, plaintiff requested a hearing before an
administrative law judge. This hearing was held on June 6, 2011. At the time of the
hearing, plaintiff was 47 years old. He has a high school education with two years of
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.

college course work and past relevant work experience as a plumber. He has not
engaged in substantial gainful activity since November 20, 2006, his alleged date of
onset.
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits. Although the 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 a range of medium
work with postural and non-exertional limitations. Although this determination 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 he could perform. The ALJ
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 his
physical and/or mental impairments preclude him from performing both his 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
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

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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
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

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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 improperly discredited his subjective reports of pain and
associated functional limitation. Alternatively, he argues that the ALJ’s hypothetical to

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the vocational expert failed to include all the limitations supported by the evidence, thus
undermining the step 5 determination.2 Finding no such reversible error in the ALJ’s
decision, I affirm.
The ALJ considered plaintiff’s subjective reports regarding the effects of his
various impairments, but found that his complaints were inconsistent with the medical
evidence of record, as well as with plaintiff’s significant activities of daily living and the
course of his treatment. “[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) (citing Kepler v. Chater, 68 F.3d 387,
390-91 (10th Cir. 1995)). So long as the ALJ links his credibility assessment to specific
evidence in the record, his determination is entitled to substantial deference. Id. at 910;
see also Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
Insofar as plaintiff suggests the ALJ discounted his complaints regarding the
effects of his mental impairments due to a lack of neurological findings, he misstates the
record. See 20 C.F.R. § 404.1529(c)(2) (ALJ will not “reject your statements about the
intensity and persistence of your pain or other symptoms or about the effect your
symptoms have on your ability to work solely because the available objective medical
evidence does not substantiate your statements”). The ALJ referenced a lack of

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In a completely undeveloped allegation, plaintiff further suggests that the evidence is insufficient
to sustain the Commissioner’s step 5 burden to show that the alternative jobs identified by the vocational
expert exist in significant numbers in the local and national economies. Even if I were required to address
this patently inadequately briefed argument, see Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th
Cir. 1998), it is not borne out by the record, which plainly demonstrates that the number of alternative jobs
available is more than adequate (see Tr. 30, 69 (showing a total, across two jobs, of 275,300 jobs
nationally and 2,030 jobs in Colorado). 20 C.F.R. § 404.1566(a). See also Trimiar v. Sullivan, 966 F.2d
1326, 1330 (10th Cir. 1992) (refusing to impose bright line rule as to number of jobs sufficient to sustain
Commissioner’s burden at step 5).

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neurological findings only in discussing plaintiff’s allegedly disabling migraines. (See Tr.
26-27 (discussing examination findings of Drs. Renkin and Quintero).) With respect to
plaintiff’s other mental impairments, by contrast, the ALJ specifically recounted the
findings of the consultative examiner, Dr. Frederick Leidal, to which he assigned
“considerable weight” in assessing plaintiff’s mental functioning. (Tr. 28-29, 274-279.)3
The ALJ did recount the course of plaintiff’s mental health treatment, however, noting
that plaintiff’s mood was well stabilized and that there was no indication of significant
abnormalities in his mental functioning. (Tr. 28.) That determination is borne out by the
record, to which the ALJ made specific references.
The ALJ also discredited plaintiff’s subjective complaints regarding the limiting
effects of his impairments on the basis of his substantial activities of daily living.
Although activities of daily living do not necessarily translate to the ability to perform
work-related activities on a sustained basis, Thompson v. Sullivan, 987 F.2d 1482,
1490 (10th Cir. 1993), they do bear on a plaintiff’s credibility “to the extent that the level
of activity is in fact inconsistent with the claimed limitations,” Ouellette v. Apfel, 2000
WL 1262642 at *13 (N.D. Cal. Aug. 24, 2000). See also Nutting v. Astrue, 2009 WL
2475125 at *4 (D. Colo. Aug. 11, 2009). Plaintiff did not report sporadic or minimal
activity but acknowledged that he often worked full eight to ten hour days helping friends
with construction projects or odd jobs. I thus cannot fault the ALJ’s conclusion that

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Although plaintiff points out that Dr. Leidal diagnosed him with a somatoform disorder, there is
nothing in the record to suggest that the functional limitations Dr. Leidal imposed did not fully account for
this diagnosis. See WebMD, Mental Health, Somatoform Disorders (available at
http://www.webmd.com/mental-health/somatoform-disorders-symptoms-types-treatment) (last accessed
March 12, 2014) (“Somatoform disorders are mental illnesses that cause bodily symptoms, including pain.
The symptoms can't be traced back to any physical cause.”).

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plaintiff’s extensive daily activities undermined his assertion that he could not perform
substantial gainful activity. (Tr. 26.)
The ALJ also noted plaintiff’s admission that medication is effective at alleviating
his symptoms and causes no side effects. (Tr. 26, 48-49; see also Tr. 257-260, 262,
264, 266-269.) See Pacheco v. Sullivan, 931 F.2d 695, 698 (10th Cir. 1991)
(impairment that can be controlled with treatment is not disabling). Plaintiff insists the
ALJ should not have used this admission to discredit him because he had trouble
getting these medications consistently due to their costs. Although indigence may
adequately explain the failure to follow prescribed treatment, see Ky v. Astrue, 2009
WL 68760 at *4 n.4 (D. Colo. Jan. 8, 2009), nothing in the record in this case supports a
conclusion that plaintiff had long-standing difficulties in securing medications. The
record contains but a single reference suggesting that plaintiff had “not been taking his
medication correctly due to no funds” and was “awaiting meds from Canada.” (Tr. 265.)
The treatment notes thereafter support the conclusion that this was a temporary
setback, and that plaintiff thereafter took his medications regularly. (Tr. 257-264.)
Plaintiff did not testify that he was ever unable to obtain medications, much less that he
was indigent, see Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007), and, in fact,
the tenor of his testimony suggests that he had been taking his various medications
consistently for years (see Tr. 48-49). I thus perceive no error, much less reversible
error, in this respect.
Finally, plaintiff argues that the ALJ’s hypothetical to the vocational expert failed
to include a limitation accounting for the impact of stress on plaintiff’s ability to work. Dr.

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Leidal noted that plaintiff’s ability to withstand workplace stress was moderately
impaired, a limitation which the ALJ accepted. (Tr. 29, 279.) It is true that the ALJ did
not specifically reference this limitation in the hypothetical posed to the vocational
expert. (Tr. 68.) Nevertheless, both the hypothetical to the vocational expert and the
ALJ’s ultimate residual functional capacity assessment limited plaintiff to understanding,
remembering, and executing only routine or repetitive instructions and having only
occasional interaction with supervisors, co-workers, and the general public. (Tr. 25, 68.)
Plaintiff fails to articulate, much less demonstrate, how these limitations failed to
adequately account for the impact of stress on his work-related abilities. See Bernal v.
Bowen, 851 F.2d 297, 303 (10th Cir. 1988). Remand is not warranted on this basis
either.
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 13, 2014, at Denver, Colorado.
BY THE COURT:

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