Sansing v. Astrue
ORDER ORDERED that the decision of the Commissioner that plaintiff was not disabled is AFFIRMED by Judge Philip A. Brimmer on 1/28/15. (kpreu)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-03195-PAB
CAROLYN W. COLVIN, Commissioner of Social Security,
This matter is before the Court on plaintiff Bobby Sansing’s complaint [Docket
No. 1] filed on December 6, 2012. Plaintiff seeks review of the final decision of
defendant Carolyn W. Colvin (the “Commissioner”) denying plaintiff’s claim for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act (the “Act”), 42 U.S.C. §§ 401-33 and 1381-83c. 1 The Court has
jurisdiction to review the Commissioner’s final decision pursuant to 42 U.S.C. § 405(g).
On March 2, 2010, plaintiff applied for disability benefits under Titles II and XVI
of the Act. R. at 11. Plaintiff alleged that he had been disabled since February 26,
2010. Id. After an initial administrative denial of his claim, plaintiff appeared at a
hearing before an Administrative Law Judge (“ALJ”) on February 17, 2012. Id. On
The Court has determined that it can resolve the issues presented in this matter
without the need for oral argument.
March 28, 2012, the ALJ issued a decision denying plaintiff’s claim. Id. at 19.
The ALJ found that plaintiff had the severe impairments of “degenerative disc
disease of the thoracic and lumbar spine.” R. at 14. The ALJ found that these
impairments, alone or in combination, did not meet one of the regulations’ listed
impairments, id. at 14-15, and ruled that plaintiff had the residual functional capacity
(“RFC”) to “perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b)
except he should never climb ladders, ropes or scaffolds and should occasionally climb
stairs and ramps, balance, stoop, kneel, crouch or crawl; he should avoid concentrated
exposure to temperature extremes and vibration and moderate exposure to unprotected
heights; and the work should be no greater than semi-skilled.” Id. at 15. Based upon
this RFC and in reliance on the testimony of a vocational expert (“VE”), the ALJ
concluded that plaintiff is capable of performing past relevant work as a convenience
store clerk. Id. at 18-19.
On October 9, 2012, the Appeals Council denied plaintif f’s request for review of
the ALJ’s denial. Id. at 1. Therefore, the ALJ’s decision is the final decision of the
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). T he district court may not reverse
an ALJ simply because the court may have reached a different result based on the
record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence 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). T he district
court will not “reweigh the evidence or retry the case,” but must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515
F.3d at 1070. Nevertheless, “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).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
[a]n individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and
(5) whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). 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. Sec’y of
Health and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisf ied her burden of
establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the residual functional capacity
(RFC) to perform other work in the national economy in view of her age, education, and
work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). W hile the claimant has the
initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform
himself about facts relevant to his decision and to learn the claimant’s own version of
those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
C. The ALJ’s Decision
Plaintiff argues that the ALJ erred by (1) applying the wrong legal standard in
holding that plaintiff did not meet or equal a listed impairment, (2) improperly weighing
medical opinions, (3) not developing the record at the hearing, (4) applying the wrong
legal standard in assessing plaintiff’s credibility, (5) applying the wrong legal standard in
assessing plaintiff’s RFC, and (6) improperly concluding that plaintiff is capable of
performing past work as a convenience store clerk. See Docket No. 13.
The relevant evidence of record is as follows. In his application for disability
benefits, plaintiff stated that he suffered from the following symptoms: “[h]erniated
disk/sciatic nerve/legs give out/arm, hands numb.” R. at 172. Shortly before plaintiff
applied for disability benefits, plaintiff fell and fractured four ribs. Id. at 219. Plaintiff
returned to work after the accident, but reported that he was “discharged or left off from
work” sometime before March 5, 2010 due to an incident where the trailer to his truck
swung into another lane. Id. at 231.
In March 2010, plaintiff was examined by Dr. Neiland Olson regarding complaints
of ringing type tinnitus.2 Dr. Olson noted that plaintiff’s gait is “obviously quite
defective.” R. at 295. In May 2010, plaintiff underwent an MRI of the lumbar spine,
which showed that he suffered from multilevel degenerative disk disease and a disk
Tinnitus is “[p]erception of a sound in the absence of an environmental acoustic
stimulus. The sound can be a pure tone or noise including (ringing, whistling, hissing,
roaring, or booming) in the ears.” Stedman’s Medical Dictionary tinnitus (27th ed.
herniation resulting in “left foraminal and left lateral recess stenosis 3 affecting the left L5
and left S1 nerve roots.” Id. at 255. In June 2010, Dr. Mark Carroll noted that plaintif f
had an “L5-S1 disc bulge with nerve root impingement” and referred plaintiff to another
doctor for pain management. Id. at 261-262. A note in plaintiff’s file dated June 21,
2010 indicates that plaintiff ceased treatment with Dr. Carroll because he could not
afford to come in for a follow-up appointment. Id. at 257.
In November 2010, Dr. Dowin Boatright performed a consultative examination of
plaintiff at the request of the state agency. R. at 279-85. Dr. Boatright noted that
plaintiff “appeared to sit comfortably” during the examination, but that plaintiff had
difficulty hearing. Id. at 281. Dr. Boatright further noted that plaintiff had a “slow rate of
gait,” displayed “some hesitancy” and could not “walk heel-to-toe without loss of
balance,” though plaintiff did not use any assistive device at the examination. Id. at
282. Plaintiff showed some discomfort in his hip joints and pain with internal rotation on
his right shoulder, but otherwise had normal range of motion in all areas examined. Id.
at 282-83. Dr. Boatright found that plaintiff had tenderness to palpation of the thoracic
spine, but no tenderness to palpation of the cervical, lumbar, or sacral spinous
processes, id. at 283, that plaintiff was sensate to soft touch, and his strength rated 5/5
at the upper and lower extremities. Id. at 284. Based on this examination, Dr. Boatright
found that there are no limitations on the number of hours that plaintiff could sit or stand
during an eight-hour work day. Id. Dr. Boatright recommended postural limitations,
including limitations on “bending, squatting, and crawling secondary to [plaintiff’s]
Stenosis is a “stricture of any canal or orifice.” Stedman’s Medical Dictionary
stenosis (27th ed. 2000).
degenerative changes in his back,” and environmental limitations, including limitations
on unprotected heights and areas requiring sensitive hearing, but found that plaintiff
was otherwise unlimited and should be able to lift twenty-five pounds frequently. Id.
In December 2010, Dr. Alicia Blando, a state agency physician, reviewed
plaintiff’s medical file and found that plaintiff could lift twenty-five pounds frequently,
could stand and sit about six hours in an eight-hour workday, could climb ramps or
stairs only occasionally, could never climb ladders, ropes, or scaffolds, could only
occasionally perform balancing, stooping, kneeling, crouching, or crawling, had no
manipulative or visual limitations, and that plaintiff’s hearing was limited. R. at 52-53.
Dr. Blando recommended that plaintiff should avoid concentrated exposure to extreme
temperatures and vibration and should avoid all exposure to hazards such as
machinery and heights. Id. at 53-54.
In February 2012, physical therapists Michael Moore and Barbara Kelly
performed a functional capacity evaluation of plaintiff at the recommendation of
plaintiff’s counsel. See R. at 308-29. Mr. Moore and Ms. Kelly noted that plaintiff gave
a “conditionally reliable effort,” and listed various functional limitations, including an
inability to “Stoop, Crouch, Kneel, Climb Stairs, Reach Immediate (L), Reach Overhead
(L), Reach Overhead (R), [and] High Lift.” Id. at 308. Mr. Moore and Ms. Kelly noted
that plaintiff had limited range of motion at the lumbar spine, knee, ankle, and wrists,
and had poor tolerance to sitting and standing for extended period of time, requiring
frequent position changes. Id. They stated that plaintiff was capable of performing low
lifting at the sedentary level, mid lifting, pushing, pulling, and carrying at the light level,
could reach with the right arm frequently, and occasional walking, carrying up to 20
pounds, handling, fingering, sitting, and standing. Id.
At the February 17, 2012 hearing, plaintiff testified that he occasionally drove to
doctor’s appointments and the grocery store, R. at 29, that he had taken a single
automobile trip in the previous 24 months where he drove or rode in the car two to three
hours per day, id. at 29-30, that he had been on unem ployment insurance until shortly
before the hearing, and that during that time he had represented that he was able to
work and had attempted unsuccessfully to obtain work as a shipping broker. Id. at 3234. Plaintiff testified that this job would not have required him to stand more than a
couple of hours each day and would have allowed him to work from home and set his
own schedule. Id. at 35.
1. Medical Listing 1.04(A)
Plaintiff argues that the ALJ erred in finding that plaintiff’s symptoms do not meet
or medically equal listing 1.04(A). “For a claimant to show that his impairment matches
a listing, it must meet all of the specified medical criteria. An impairment that manifests
only some of those criteria, no matter how severely, does not qualify.” Sullivan v.
Zebley, 493 U.S. 521, 530 (1990) (emphasis in original). Listing 1.04(A) describes
“[d]isorders of the spine (e.g., . . . degenerative disc disease . . .), resulting in
compromise of a nerve root (including the cauda equina) or the spinal cord. With: . . .
[e]vidence of nerve root compression characterized by neuro-anatomic distribution of
pain, limitation of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test (sitting and supine)[.]” 20
C.F.R. pt. 404, subpt. P, app. 1, § 1.04(A).
The ALJ found that plaintiff did not meet listing 1.04(A) because the medical
evidence showed nerve root “impingement” rather than compression, full range of
motion in the back, “excellent (5/5) muscle strength throughout, and no neurological
deficits.” R. at 15. Plaintiff argues that the distinction that the ALJ drew between nerve
impingement and nerve compression is not recognized by the regulations, which refer
interchangeably to impingement and compression, and that the ALJ ignored the results
of plaintiff’s functional consultative exam. Docket No. 13 at 15.
The Court finds that the ALJ did not err in finding that plaintiff’s symptoms do not
meet listing 1.04(A). In particular, the Court finds that the ALJ applied the correct legal
standard in finding that plaintiff did not suffer from limitation of motion in the spine and
did not suffer from muscle weakness as specified in the listing, and that this finding is
supported by substantial evidence. As plaintiff argues, the ALJ is required to “consider
all evidence in [the] case record” in determining whether a claimant is disabled. 20
C.F.R. § 404.1520(a)(3). The record does not reflect that the ALJ ignored any evidence
in reaching his conclusion. “When considering the weight of non-treating sources, the
ALJ must determine the appropriate weight given to the source by looking to the factors
that apply to all medical opinions.” Retana v. Astrue, No. 11-cv-00105-PAB, 2012 WL
1079229, at *4 (D. Colo. Mar. 30, 2012). 4 The ALJ explained that Dr. Boatright’s
The factors, as outlined in 20 C.F.R. § 404.1527(c)(2)-(6) include: “(1) the leng th
of the treatment relationship and the frequency of examination; (2) the nature and
extent of the treatment relationship, including the treatment provided and the kind of
examination or testing performed; (3) the degree to which the physician’s opinion is
supported by relevant evidence; (4) consistency between the opinion and the record as
a whole; (5) whether or not the physician is a specialist in the area upon which an
opinion, other than his contentions regarding plaintiff’s hearing, were well supported by
his findings and other objective evidence in the record, R. at 17, and that the state
agency physician’s opinion likewise was “well supported and consistent with the
objective evidence of mild lumbar disease and mild nerve root impingement, as well as
the clinical findings of excellent strength, normal neurological functioning, normal
movements of the spine, arms and legs, and equivocal gait observations[.]” R. at 17.
Plaintiff argues that the ALJ ignored the results of the functional consultative
exam performed by Mr. Moore and Ms. Kelly. Docket No. 13 at 15. The Court
disagrees. Mr. Moore and Ms. Kelly are classified as “other sources” from which
evidence can be considered to show the severity of a claimant’s impairment and how it
affects his ability to work. 20 C.F.R. § 416.913(d). “Opinion evidence from ‘other
sources’ is evaluated using the factors outlined in 20 C.F.R. § 416.927(d), as explained
in further detail in Social Security Ruling 06-03p, 2006 WL 2329939 (Aug. 9, 2006).”
Conger v. Astrue, 453 F. App’x 821, 824 (10th Cir. 2011). 5 The ALJ is not required to
discuss each factor outlined in 20 C.F.R. § 416.927(d), id. at 825, or explain the
reasons for the weight given to “other sources.” Id. Nonetheless, the ALJ did explain
that he gave Mr. Moore’s and Ms. Kelly’s conclusions from their examination of plaintiff
opinion is rendered; and (6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.” Siegle v. Barnhart, 377 F. Supp. 2d 932, 940 n.5 (D.
Colo. 2005) (citing Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001)).
The factors include: (1) the length of time the source has known the claimant
and how frequently the source has seen the claimant; (2) the consistency of his opinion
with other evidence; (3) whether there is relevant evidence to support the opinion; (4)
how well the opinion is explained; (5) the source’s qualifications; and (6) any other
factors that tend to support or detract from the opinion. SSR 06-03p, 2006 W L
2329939, at *4-5 (Aug. 9, 2006).
little weight and articulated his reasons for doing so. The ALJ noted that Mr. Moore and
Ms. Kelly wrote that plaintiff gave a “conditionally reliable effort” and failed pinch and
grip profiles. R. at 18. Mr. Moore and Ms. Kelly explained that failing the pinch and grip
profiles is “an indicator of submaximal effort.” Id. at 308. The ALJ further explained
that he gave little weight to Mr. Moore and Ms. Kelly’s opinion because of the
“dependence upon [plaintiff’s] decision as to whether he was capable of performing
some of the exercises” and “the discrepancy between the range of motion exhibits
during the test and that produced at the consultativ e evaluation and at physical
examinations performed by his primary care providers.” Id. at 18.
The medical opinions to which the ALJ gave weight constitute substantial
evidence for his finding. Because the Court finds that the ALJ did not err in finding that
plaintiff did not meet at least one of listing 1.04(A)’s criteria – namely, limitation of
motion of the spine – the Court need not address the other criteria. Sullivan, 493 U.S.
Plaintiff also argues that the ALJ erred in not considering whether plaintiff, due to
his obesity, medically equals listing 1.04(A). Docket No. 13 at 17. The Court
disagrees. Although the ALJ is required to consider whether a claimant’s obesity, in
combination with other limitations, is “equivalent in severity to a listed impairment,” SSR
02-1p, 2002 WL 34686281 at *5 (Sept. 12, 2002), an ALJ m ay not “make assumptions
about the severity or functional effects of obesity combined with other impairments.” Id.
at *6. In this case, the ALJ considered the f act that plaintiff is obese, but noted that
plaintiff “did not discuss work-related limitations related to obesity when he met with any
treating source and he provided no testimony concerning the effect of obesity on his
ability to work.” R. at 14. Based on this, the ALJ found no evidence that obesity limits
plaintiff’s ability to work. Although the ALJ did not repeat this analysis in his
determination that plaintiff does not suffer from an impairment or combination of
impairments that medically equals a listing, the record reflects that the ALJ sufficiently
considered the effect of plaintiff’s obesity. See Huffman v. Colvin, 2013 WL 5304053 at
*11 (D. Kan. Sept. 20, 2013) (finding no error in assessment of whether a plaintiff
medically equaled a listing where plaintiff “has not presented evidence her obesity
significantly limits her physical or mental ability to perform basic work activities.”).
2. Weight Given to Medical Opinions
Plaintiff argues that the ALJ erred in the weight he afforded to Dr. Boatright’s
opinion. First, plaintiff argues that the ALJ erred in rejecting the portion of Dr.
Boatright’s opinion that plaintiff should be restricted from tasks requiring sensitive
hearing. Docket No. 13 at 18. The Court disagrees. ALJs are instructed to consider
several factors in deciding how much weight to give a medical opinion, including
the length of the treatment relationship, the frequency of examination, the nature and
extent of the treatment relationship, the degree to which the physician’s opinion is
supported by relevant evidence, consistency between the opinion and the record as a
whole, specialization, and other factors tending to support or contradict the opinion.
Drapeau, 255 F.3d at 1213. The ALJ noted that Dr. Boatright’s opinion regarding
plaintiff’s hearing was based on a general assessment of plaintiff’s responsiveness,
whereas an audiogram performed in March 2010 at the Colorado Hearing and Balance
Clinic showed that plaintiff had 100% word discrimination. R. at 17 (citing R. at 295).
Although, as plaintiff points out, an ALJ “is not entitled to pick and choose throug h an
uncontradicted medical opinion, taking only the parts that are favorable to a finding of
nondisability,” Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007), Dr. Boatright’s
opinion was not uncontradicted. The Court cannot conclude that the ALJ erred in
concluding that Dr. Boatright’s opinion of plaintiff’s hearing, rendered at a general
consultative examination, was entitled to less weight than the audiogram that
specifically evaluated plaintiff’s hearing.
Second, plaintiff argues that Dr. Boatright’s opinion should have been given little
weight because it contains “internal inconsistencies.” Docket No. 13 at 19. 6 Plaintiff
argues that Dr. Boatright’s functional assessment “failed to account for [plaintiff’s] noted
pain on internal rotation of his right shoulder,” and that his assessment that plaintiff
could sit and stand without limitations was inconsistent with plaintiff’s “slow, waddling
gait.” Docket No. 13 at 19. The Court disagrees, and in any event, re-weighing the
evidence is beyond the Court’s purview on an appeal of the Commissioner’s decision.
Flaherty, 515 F.3d at 1070. Plaintiff provides no reason why, having found that plaintiff
suffers from certain symptoms, Dr. Boatright was required to conclude that those
symptoms created corresponding functional limitations. As the Commissioner argues,
Docket No. 16 at 19, there is no inherent inconsistency with finding that plaintiff suffers
some pain on internal rotation of the shoulder but is nonetheless capable of performing
reaching tasks, or that plaintiff has an abnormal or wobbly gait yet is still able to sit and
Plaintiff also argues that the ALJ erred affording little weight to the opinion of Mr.
Moore and Ms. Kelly as to plaintiff’s functional limitations. Docket No. 13 at 19. As
discussed above, the ALJ was not required to specify the weight he assigned to
opinions that were not from acceptable medical sources, but the ALJ nevertheless did
so and provided sufficient reasoning for his decision to discount Mr. Moore and Ms.
stand for extended periods of time.
Finally, plaintiff argues that Dr. Boatright’s opinion was “stale” and should have
been rejected in favor of Mr. Moore and Ms. Kelly’s more recent opinion. Docket No. 13
at 20. Plaintiff argues that the facts of this case are similar to those in Chapo v. Astrue,
682 F.3d 1285, (10th Cir. 2012), where the Tenth Circuit found that an ALJ committed
error in rejecting a more recent treating physician’s opinion in favor of a “patently stale”
opinion of an agency consulting physician. Id. at 1293. In Chapo, the court pointed to
numerous instances where objective findings in the record “underwent material
changes” between the two examinations and noted that the consulting physician whose
opinion the district court adopted had not been prov ided “material objective evidence
developed long after” his examination of the plaintiff. Id. at 1292. Here, plaintiff
submitted no evidence beyond the opinion of Mr. Moore and Ms. Kelly that his
symptoms underwent material changes between his 2010 and 2012 examinations and
did not testify to any worsening of his symptoms at the hearing. Accordingly, the Court
finds that the 2012 examination did not render the opinions of Drs. Boatright and
Blando “stale,” and the ALJ did not err in adopting the findings of those opinions.
3. Developing the Record
Plaintiff argues that the ALJ failed to develop the record sufficiently because the
ALJ did not ask plaintiff sufficient questions at the hearing. Docket No. 13 at 20.
Specifically, plaintiff argues that the ALJ’s failure to ask plaintiff questions “regarding his
impairments or their resultant work related limitations” is reversible error. Id. Although
the nonadversarial nature of social security proceedings “imposes a duty on the ALJ to
ensure that an adequate record is developed . . . consistent with the issues raised,”
Jimenez v. Astrue, 385 F. App’x 785, 788 (10th Cir. 2010) (quotations omitted),
plaintiff’s mere assertion that the record is insufficient is not grounds for reversal. A
claimant establishes the presence of an issue requiring further investigation by
submitting “some objective evidence . . . suggesting the existence of a condition which
could have a material impact on the disability decision requiring further investigation.”
Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). Plaintif f must satisfy his
burden in this regard before the ALJ’s duty to develop the record is implicated. Here,
plaintiff detailed his symptoms and resulting limitations in two questionnaires, see R. at
185-90, and plaintiff does not provide evidence or otherwise suggest that these
questionnaires were not an adequate representation of his condition. The ALJ
supplemented plaintiff’s questionnaires with questions about plaintiff’s daily activities,
see id. at 29-30, and asked plaintiff at length about his representation that he was
ready, willing, and able to work, which was made for the purpose of obtaining
unemployment insurance. See id. at 31-34. Moreover, where, as here, plaintiff is
represented by counsel, “the ALJ should ordinarily be entitled to rely on the claimant’s
counsel to structure and present claimant’s case in a way that the claimant’s claims are
adequately explored” and to “identify the issue or issues requiring further development.”
Hawkins, 113 F.3d at 1167-68 (citations omitted).
The Court finds that plaintiff has failed to meet his burden of showing an issue
that required further development. Simply pointing out that the testimony that the ALJ
elicited from plaintiff concerning his view of his functional limitations was not extensive
is insufficient for the Court to conclude that any alleged failure by the ALJ to develop
the record had a material impact on the disability decision such that further investigation
4. Credibility Determination
Plaintiff argues that the ALJ committed error in basing his credibility
determination on plaintiff’s lack of treatment. “Credibility determinations are peculiarly
the province of the finder of fact” and the Tenth Circuit will uphold such determinations,
so long as they are supported by substantial evidence.” Kepler v. Chater, 68 F.3d 387,
391 (10th Cir. 1995). Credibility determinations may not be conclusory, but must be
“closely and affirmatively linked” to evidence in the record. Id. In assessing a
claimant’s credibility, an ALJ must consider the following factors, in addition to the
objective medical evidence:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain or
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.
SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996); see also 20 C.F.R. § 404.1529(c)(4)
(“We will consider whether there are any inconsistencies in the evidence and the extent
to which there are any conflicts between your statements and the rest of the
evidence . . . .”). The Court may not “create post-hoc rationalizations to explain the
Commissioner’s treatment of evidence when that treatment is not apparent from the
Commissioner’s decision itself.” Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir.
The ALJ cited as the basis for his credibility finding “the absence of compelling
objective evidence or clinical findings, [plaintiff’s] conservative care and lack of regular
treatment,” and the ALJ’s determination of the validity of plaintiff’s functional capacity
evaluation, which described only a “conditionally reliable effort.” R. at 18 (referencing
id. at 308). Plaintiff points to only one of the factors considered by the ALJ, the lack of
regular treatment, as being invalid, and notes that the record contains ref erence to
plaintiff being unable to afford care. Docket No. 13 at 22.
Although plaintiff is correct that inability to afford care can excuse a plaintiff’s
failure to receive regular treatment, see SSR 96-7p, 1996 WL 374186 at *8, the Court
finds that the ALJ’s credibility determination is nonetheless supported by substantial
evidence. The ALJ found that plaintiff’s subjective complaints were inconsistent with
the medical evidence, which noted that he was able to perform numerous activities
without pain, and further noted that plaintiff’s functional capacity evaluation suggested
that he was not giving reliable effort. The inconsistency between plaintiff’s subjective
complaints and Dr. Boatright’s assessment of the plaintiff’s capacity and the notation
that plaintiff’s effort was only “conditionally reliable” constitute substantial evidence for
the ALJ’s credibility finding.7
5. Past Work
Plaintiff argues that the ALJ erred in concluding that plaintiff was capable of
performing past work as a convenience store clerk because the ALJ did not include any
reaching or hearing limitations in his hypothetical to the VE. Docket No. 13 at 25. T he
Court disagrees. As discussed above, the Court finds that the ALJ did not err in
discounting Dr. Boatright’s findings concerning plaintiff’s hearing limitations. Moreover,
the Court has found that the ALJ did not err in affording little weight to the functional
capacity evaluation, which was the only opinion from any treating source that called for
reaching limitations. Accordingly, the ALJ did not err in failing to relate these limitations
to the VE.
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff Bobby Sansing
was not disabled is AFFIRMED.
Plaintiff also argues that the ALJ erred in not properly considering plaintiff’s
subjective complaints of pain. Docket No. 13 at 23-24. The Court disagrees. The
ALJ’s credibility determination specifically discussed plaintiff’s “claims that his pain
prevents him from sustaining even light exertional activities,” R. at 18, and concluded
that this claim was inconsistent with the medical findings of Dr. Boatright and the state
agency consulting physician. Id.
DATED January 28, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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