Archuleta v. Colvin
ORDER affirming the Commissioner's January 23, 2013, final decision. Entered by Judge Raymond P. Moore on 1/5/2016. (cpear)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13-cv-00689-RM
CAROLYN COLVIN, Acting Commissioner,
Social Security Administration,
Plaintiff Jerry Archuleta (Plaintiff), applied for Social Security Disability Insurance (DSI)
benefits and Supplemental Security Income (SSI) on January 5, 2009, alleging disability
beginning November 18, 2008. (ECF No.13, pp.80-83). He was last insured on June 30, 2010.
(ECF No. 13, p.115).
His claims were initially denied in October, 2009. (ECF No. 13, pp.18, 36-44). On
March 23, 2010, Plaintiff filed a timely request for an administrative hearing. (ECF No.13,
pp.18, 45). He was granted a hearing before an administrative law judge (ALJ), on November
10, 2011, where he appeared, testified, had witnesses testify and was represented by an attorney.
(ECF No.13, pp.515-580). The Administrative Law Judge (ALJ) denied Plaintiff’s application
for benefits on November 30, 2011. (ECF No.13, pp.18-29). This denial became the
Commissioner of Social Security’s (Commissioner) final decision on January 23, 2013, when
after considering Plaintiff’s supplemental material, the Appeals Council denied Plaintiff’s appeal
of the ALJ’s decision. (ECF 13, pp. 7-10). Plaintiff now seeks review of that final decision.
Plaintiff was born on November 1, 1962. (ECF No. 13, p.114). He was 46 years old on
November 18, 2008, his alleged disability onset date. (ECF No. 13, p.114).
Plaintiff completed 11th grade of high school in 1980 and has not attended any special
classes or attained any special job training, trade, or vocational school. (ECF 13, p.124). His
reported work history over the past 15 years includes work as a farm laborer and maintenance
worker at a metal products factory. (ECF No.13, pp.121-22, 563).
The record is unclear with regard to Plaintiff’s marital status. In his initial application for
DSI, Plaintiff reported that he was married in 1988 (ECF No. 13, p.81), however, his hearing
testimony indicates that he currently lives with his mother (ECF No.13, p.523). His mother
contradicted this in her testimony stating that he lived with her “sometimes.” (ECF No. 13, pp.
523, 554, 558). It appears that he does not have his own housing and relies on girlfriend(s) or his
mother for housing. Id.
Relevant Medical History
On November 18, 2008, Plaintiff was admitted to hospital with acute fractures of his
tibial plateau in his right knee subsequent to an altercation with police. (ECF No. 13, p.235). At
the time of admission Plaintiff was acutely intoxicated with a blood alcohol level of .304. Id.
He was discharged after surgical repair of his fractures, on December 8, 2008 with instructions to
follow up at his local clinic and to have a return appointment with his surgeon on December 15,
2008. (ECF No. 13, pp. 234-36). At discharge Dr. Kitchen considered Plaintiff “ambulatory
with walker (non-weight-bearing right lower extremity), capable of self-care and activities of
daily living . . . .” (ECF No. 13, p. 236). His mother had received instructions for his dressing
changes. (ECF No. 13, p.234). Plaintiff received various discharge medications including
Percocet for pain and a prescription for further post-discharge range of movement physical
therapy. (ECF No.13, p.234).
In April, 2009, Dr. Campbell evaluated Plaintiff regarding the functional impacts of his
medical conditions. (ECF No. 13, pp.374-78). Her summary noted that Plaintiff was seen for
chronic right leg pain at the Sierra Blanca Medical Center on February 12, 2009. (ECF No.13,
p.375). At that time his skin graft was not well healed, he was attending physical therapy and
requested pain medication. Id. He was given a short-term prescription for Percocet and advised
to establish with a clinic in Monte Vista to set up a long-term medication regime. Id. He was
next seen at the Rio Grande Medical Center on February 26, 2009 requesting Percocet and was
shifted to Ultram for pain. Id.
At Dr. Campbell’s consultation, Plaintiff reported that he was a “working alcoholic” and
currently used alcohol to augment his prescribed pain medications. (ECF NO. 13, p.374). After
a thorough examination, Dr. Campbell diagnosed Plaintiff with inter alia, a marked deformity
and probably unstable right knee and opined that he could not use stairs without support, should
limit bending, limit standing and walking to less than two hours a day, and could not kneel, squat
or stoop effectively. (ECF No.13, p.377). She further opined that he was not completely
independent in activities of daily living, needing assistance with accessing a bathtub and could
not stand long enough to prepare full meals or do household chores. Id.
The following month, on May 22, 2009, Plaintiff was referred by the Department of
Disability Determination Services, to Immaculate Wesley Psy.D., for a psychological evaluation
with diagnosis and GAF score. (ECF No. 13, p.382). Dr. Wesley found Plaintiff had poor
judgment, poor to fair insight, fair abstraction ability and estimated his IQ to be “at best” in the
average range. Id. She diagnosed Plaintiff with: chronic and severe alcohol dependency; pain
disorder associated with both psychological factors and a general medical condition; and an
adjustment disorder with mixed anxiety and depressed mood. (ECF No.13, pp.382-83). She
assessed his GAF score at 55, and opined that without physical and psychological therapy and
medication, he was at risk for “fall[ing] deeper into alcohol use.” (ECF No. 13, p.383). She
concluded that if clean and sober he might do well with some re-training but otherwise, without
help, his prognosis was extremely poor. Id.
On June 1, 2009, Plaintiff failed to keep his scheduled appointment with his surgeon, Dr.
Kitchen. (ECF No.13, p.405). On July 9, 2009, Plaintiff presented at Rio Grande Hospital
Clinic (RGHC) requesting a refill of his Percocet. ECF.No.13, p.465). He was seen by
Physician’s Assistant Bilak who evaluated Plaintiff, noting that he was currently incarcerated,
hypertensive and gave him antihypertensive medication to lower his blood pressure. Id. On July
24, 2009, Plaintiff presented at RGHC requesting pain medication. (ECF No. 13, p.464). Dr.
Howard prescribed 60 OxyContin and refilled Plaintiff’s prescription for Nexium (for
Dr. Kitchen saw and examined Plaintiff on August 11, 2009, when he also X-rayed
Plaintiff’s right tibia, fibula and knee. (ECF NO. 13, p.406). He noted Plaintiff had been “lost to
follow-up in April 2009”, that Plaintiff used a cane from time to time and some Percocet
although it was unclear where he obtained the Percocet. (ECF No.13, p.403). Dr. Kitchen noted
that Plaintiff had “essentially normal motor function below the knee other than his great toe.” Id.
Dr. Kitchen diagnosed Plaintiff with a significant mal-union and inward turning
deformity of his right tibia which he opined was a result of Plaintiff’s substantial noncompliance
with his recommended postoperative regimen by weight bearing and failing to follow his
prescribed physical therapy regime. (ECF No.13, pp.403-04). Because of Plaintiff’s poor
compliance to date, Dr. Kitchen did not recommend surgical repair of his deformity but instead
fitted Plaintiff with a double upright-hinged brace1 to help with stability during his normal
activities. Id. That same day Plaintiff (who was apparently still incarcerated), was seen by Dr.
Helgeson at RGHC for follow-up on his chronic leg pain and was given a refill of his OxyContin
and a prescription for Percocet. (ECF No. 13, p.463).
Approximately two weeks later, on August 28, 2009, Dr. Howard at RGHC saw plaintiff
who was requesting pain medication. (ECF No.13, p.462). His prescriptions for OxyContin,
Percocet and Nexium were refilled. Id. He next presented at the RGHC on September 10, 2009
where by Dr. Helgeson evaluated him, increased his OxyContin dosage and gave him a onemonth supply of both OxyContin and Percocet. (ECF No. 13, p.461).
Dr. Helgeson next saw Plaintiff on October 5, 2009, again increased his OxyContin
dosage, and provided prescriptions for OxyContin and Percocet for any break-through pain and
for follow-up in one month. (ECF No. 13, p.460). She re-evaluated Plaintiff at RGHC on
October 30, 2009, when she continued his pain medication and noted that she believed his
hypertension was related to the pain he gets when ambulating. (ECF No.13, p.459). On
December 14, 2009, Dr. Helgeson referred Plaintiff to Dr. Kitchen for re-evaluation because of
his lack of improvement in pain and refilled his Nexium, OxyContin and Percocet. (ECF No. 13,
There is no reference in the record of Plaintiff ever using this knee brace.
On January 26, 2010, Dr. Kitchen re-evaluated Plaintiff noting that Plaintiff had been
extremely noncompliant with post-operative instructions which had resulted in a significant malunion of his tibia, unchanged since his last evaluation four months ago in August 2009. (ECF
NO. 13, p.418). Dr. Kitchen further noted that since he had last seen Plaintiff, Plaintiff had
developed some early traumatic arthritis in his knee. Id. Dr. Kitchen recommended that Plaintiff
seek a second opinion regarding a surgical intervention to correct his tibial malformation. Id.
There is a gap in Plaintiff’s medical records from January 2010 until October 2010 when
Dr. Helgeson’s notes indicate that Plaintiff’s chronic pain had been managed by Dr. McMillan
who had been “working with vocational rehab.” (ECF No.13, p.454). Dr. Helgeson then
resumed managing Plaintiff’s chronic pain with monthly evaluations and refills of his pain
medications. (ECF No.13, pp. 440-454).
On March 14, 2011, Dr. Helgeson completed a Residual Functional Capacity
Questionnaire in which she opined that Plaintiff could: remain seated at a desk without needing
to elevate his legs; stand and walk for 15 minutes at a time for a total of one hour in an eighthour work day; would need rest breaks in bed or an easy chair every two hours during an eighthour work day; walk with assistance of a cane but was unable to walk one block on uneven
ground; use public transportation; carry out routine activities such as shopping and banking;
climb a few steps with use of a single handrail; lift and carry one to ten pounds frequently, 11-20
pounds occasionally but never 21-50 pounds; work on a sustained basis except that pain
interfered with his ability to complete a workday; and he would likely be absent from work more
than four days per month. (ECF No.13, pp.468-75).
On April 30, 2011, Dr. Boatright saw and evaluated Plaintiff. (ECF No. 13, pp.484-87).
After examination, Dr. Boatright concluded that plaintiff could sit and stand for six to eight
hours; walk for two to four hours; was limited in areas requiring balance or with unprotected
heights; should engage in no squatting or crawling; had no manipulative limitations and should
be able to carry 10 pounds continuously, 15 pounds frequently and up to 20 pounds occasionally.
(ECF No.13, p.487).
Dr. Shuck, an orthopedic surgeon, saw, examined and x-rayed Plaintiff on May 31, 2011,
noted that his right knee had moderate joint effusion, 100 degrees flexion and was diffusely
tender and noted that the x-ray showed “pronounced degenerative changes.” (ECF NO.13,
p.495). Dr. Schuck recommended a corticosteroid injection to ease the pain in Plaintiff’s right
knee and suspected that he would need a knee replacement in a year or two. (ECF No. 13,
p.497). Three days later on June 2, 2011, Plaintiff saw Dr. Helgeson for refills of his pain
medication and reported that the injection had caused increased pain. (ECF No.13, p.432). On
November 14, 20112, Dr. Schuck performed a total knee replacement from which Plaintiff had
an uneventful recovery and good result. (ECF No. 13, p.510).
Approximately three months after the ALJ’s decision was rendered, on March 4, 2012,
Plaintiff fell and fractured his right femur above the knee3. (ECF No.13, pp. 502-05). Dr.
Schuck performed a surgical fixation of the break and opined that Plaintiff would require a
walker or crutches for at least two months. (ECF No.16, pp. 224VV-224HHH).
The ALJ determined that Plaintiff had not engaged in substantial gainful activity since
November 18, 2008, his alleged onset date. (ECF No.13, p.20). She found that Plaintiff had a
severe impairment, right tibial fracture, status post failed open reduction and internal fixation and
The ALJ’s opinion is dated November 30, 2011. (ECF No. 13, p.29).
The Appeals Council noted that the supplemental material “is about a later date. Therefore it does not affect the
decision about whether you were disabled beginning on or before November 30, 2011. If you want us to consider
whether you are disabled after November 30, 2011, you need to apply again.” (ECF No. 13, p.8).
a non-severe impairment of arthritis in his left wrist and hand. Id. The ALJ stated that Plaintiff’s
claim of arthritis was non-severe because it was neither supported by medical diagnosis nor
treated since his alleged onset date. Id.
She found Plaintiff’s mental impairment of adjustment disorder did not cause more than
minimal limitation in Plaintiff’s ability to perform basic work activities and was thus also nonsevere. (ECF No. 13, p.21). She further noted after considerable discussion, that she gave little
weight to Plaintiff’s GAF score of 55 (indicative of moderate symptoms), because it appeared
inconsistent with the mental status exam findings she detailed. (ECF No. 13, pp.21-22).
The ALJ concluded that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of a listed impairment and retained the
residual functional capacity (RFC) to perform light work with the following exclusions: can only
lift and carry at the sedentary level of exertion; stand and/or walk for two out of eight hours; is to
have no exposure to unprotected heights; cannot climb ropes, ladders and scaffolds; can only
occasionally kneel, crawl and walk on uneven surfaces and must use a single point cane as
needed. (ECF No. 13, pp.23-27).
The ALJ opined that Plaintiff was unable to perform any past relevant work, was a
younger individual with limited education, able to communicate in English and could perform
the requirements of representative occupations such as call out operator, information clerk and
order clerk. (ECF No. 13, pp.27-28). The ALJ therefore opined that Plaintiff had not been under
a disability as defined by the Social Security Act from November 18, 2008 to November 30,
2011, the date of her decision. (ECF No. 13, pp. 28-29).
APPLICABLE LAW and STANDARD OF REVIEW
An individual seeking disability benefits bears the burden of proving a disability. 42
U.S.C. § 423(d)(5). The Act defines “disabled” as an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months. 42 U.S.C. §423(d)(1)(A).
To meet this burden, a plaintiff must provide medical evidence of both, an impairment
that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques and of the
severity of that impairment during the time of his/her alleged disability. 42 U.S.C. § 423(d)(3);
20 C.F.R. §§404.1512(b) and 416.912(b). A plaintiff is disabled only if his/her impairments are
of such severity that s/he is not only unable to do his/her previous work but cannot, considering
his/her age, education, and work experience, engage in any other kind of substantial gainful work
in the national economy. 42 U.S.C. §423(d)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a
disability claim. 20 C.F.R. §§404.1520; 416.920; Williams v. Bowen, 844 F.2d 748, 750-51 (10th
Cir. 1988). Step One is whether the claimant is presently engaged in substantial gainful activity.
If s/he is, disability benefits are denied. 20 C.F.R. §§ 404.1520, 416.920. Step Two is a
determination whether the claimant has a medically severe impairment or combination of
impairments as governed by 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant is unable to
show that his/her medical impairments would have more than a minimal effect on his/her ability
to do basic work activities, s/he is not eligible for disability benefits.
Step Three determines whether the impairment is equivalent to one of a number of listed
impairments deemed to be so severe as to preclude substantial gainful employment. 20 C.F.R.
§§ 404.1520(d), 416.920(d). If the impairment is not listed, s/he is not presumed to be
conclusively disabled. Step Four then requires the claimant to show that his/her impairment(s)
and assessed residual functional capacity (RFC) prevent him/her from performing work that s/he
has performed in the past. If the claimant is able to perform his/her previous work, the claimant
is not disabled. 20 C.F.R. §§ 404.1520(e) and (f), 416.920(e) and (f).
Finally, if the claimant establishes a prima facie case of disability based on the four steps
above, the analysis proceeds to Step Five where the Commissioner has the burden of proving that
the claimant has the RFC to perform other work in the national economy in view of his/her age,
education and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g).
In reviewing a decision of the Commissioner, the court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported
by substantial evidence. Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005).
Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to
support a conclusion. Castellano v. Sec of Health & Human Servs., 26 F.3d 1027, 1028 (10th
Cir.1994). The court may neither re-weigh the evidence nor substitute its judgment for that of
the Commissioner even if the court might have reached a different conclusion. Glass v. Shalala,
43 F.3d 1392, 1395 (10th Cir. 1994).
Plaintiff seeks review arguing that: (1) the denial is flawed in part because the ALJ failed
to utilize a medical expert at the hearing to address whether Plaintiff’s condition met a listing; (2)
the ALJ erred in refusing to allow Plaintiff’s counsel to cross-examine Dr. Boatright; (3) the
vocational findings of both the vocational expert (VE) and the ALJ were contrary to DOT
definitions; (4) the VE’s testimony as to the number of jobs available lacked substantial
evidence; (5) the ALJ erred in failing to give the treating physician’s opinion greater weight; (6)
the ALJ’s credibility findings are not supported by substantial evidence; (7) the RFC, as it
pertains to Plaintiff’s psychological limitations is not supported by substantial evidence and (8)
the new evidence requires a remand for further consideration. (ECF No. 17).
Defendant responds that: (1) the ALJ reasonably considered Plaintiff’s alleged mental
limitations in determining his RFC; (2) the ALJ reasonably found that Plaintiff’s impairments
did not meet or medically equal an impairment (3) the ALJ’s RFC determination was reasonable
based on her findings of Plaintiff’s credibility and consideration of the various medical opinions
including those of Dr. Helgeson and Dr. Boatright; (4) the ALJ reasonably relied on the VE’s
testimony regarding jobs Plaintiff could perform and (5) the new evidence does not upset the
ALJ’s decision. (ECF No. 18).
The ALJ did not commit reversible error in her determination that
Plaintiff’s condition did not equal a listing.
Plaintiff claims that the ALJ erred in her determination that Plaintiff’s condition did not
meet or equal a listing. The claim is made only summarily and focuses on the absence of a
medical source finding or opinion as to the lack of listing equivalency.
For cases before an ALJ, “the responsibility for deciding medical equivalence rests with
the administrative law judge . . . .” 20 C.F.R. §404.1526(e). In making an equivalence
determination, the agency considers “all evidence in [the] case record about [an] impairment and
its effect on you that is relevant to this finding.” 20 C.F.R. §404.1526(c). Normally this
includes “the opinion given by one or more medical . . . consultants designated by the
Commissioner.” Id. See also SSR 96-6 (“. . . longstanding policy requires that the judgment of a
physician . . . designated by the Commissioner on the issue of equivalence . . . must be received
into the record as expert opinion and given appropriate weight.”).
In this case there was no opinion as to the listing determination by a medical consultant.4
Nonetheless, there is no showing that the deficiency constitutes harmful error. The ALJ
considered Listing 1.02 (major dysfunction of a joint) as well as Listings 1.03 (reconstructive
surgery or surgical arthrodesis of a major weight bearing joint) and 1.06 (fracture of the femur,
tibia, pelvis, or one or more of tarsal bones), despite the fact that only Listing 1.03 was suggested
by Plaintiff at the hearing. (ECF No.13, p.519). And the ALJ based her decision on medical
evidence which supported her determination that Plaintiff lacked an “inability to ambulate
effectively.” (ECF No. 13, p.23; 20 C.F.R. pt 404, subpt P, app. 1, §1.03).
An “inability to ambulate effectively” is required to meet each of the considered listings
and is described in 1.00B2b(2) as follows:
“To ambulate effectively, individuals must be capable of sustaining a reasonable walking
pace over a sufficient distance to be able to carry out activities of daily living. They must
have the ability to travel without companion assistance to and from a place of
employment or school. Therefore, examples of ineffective ambulation include, but are
not limited to, the inability to walk without the use of a walker, two crutches or two
canes, the inability to carry out routine ambulatory activities, such as shopping and
banking, and the inability to climb a few steps at a reasonable pace with the use of a
single hand rail. The ability to walk independently about one’s home without the use of
assistive devices does not, in and of itself, constitute effective ambulation.”
In this case, there was substantial medical evidence that Plaintiff could ambulate
effectively. Dr. Helgeson, Plaintiff’s treating physician, opined that plaintiff needed to use a
cane only in his right hand, not both hands. (ECF No. 13, p.472). Dr. Helgeson also noted the
absence of any limitation on the ability to travel without companion assistance to and from a
place of work, the presence of an ability to use standard public transportation including the
The government explains in its brief that this was because of the case proceeding under a pilot program which
allowed non-physicians to complete forms and make determinations at the initial stages. (ECF No.18, p.13).
ability to get up the steps or stand on the bus or other transportation (Id. at 473), the presence of
an ability to carry out routine ambulatory activities such as shopping and banking and the ability
to climb a few steps at a reasonable pace with the use of a single hand rail5. Id.
When Plaintiff was initially discharged from hospital, he was considered “capable of selfcare and activities of daily living.” (ECF No. 13, p.236). Orthopedic surgeon Dr. Schuck noted
that Plaintiff “ambulates with a cane although he is able to ambulate without it.” (ECF No. 13,
p.494). Orthopedic surgeon Dr. Kitchen observed that Plaintiff had “essentially normal motor
functions below the knee other than his great toe.” (ECF No. 13, p.403). Dr. Boatright opined
that Plaintiff could “walk for approximately two to four hours . . . .” (ECF No. 13, p.487). And
Plaintiff testified before the ALJ that he could walk “at least a block with the cane.” (ECF
Given the medical record, and the absence of any argument beyond the technical
deficiency made in Plaintiff’s opening brief (ECF No. 17, pp16-17), I find that there was
substantial medical evidence supporting the ALJ’s listing determinations and the technical error
The ALJ did not err in not calling Dr. Boatright to appear at the hearing to
enable further development of the record and cross-examination by Plaintiff
or in discounting Dr. Helgeson’s RFC determination.
Plaintiff contends that the ALJ erred in failing to subpoena Dr. Boatright to appear for
cross-examination by Plaintiff, despite Plaintiff’s letter request. (ECF No.17, pp.24-28).
However, it is well established that a DSI/SSI hearing before an ALJ is a non-adversarial
proceeding. Casias v. Sec. of Health & Human Servs., 933 F.2d 799, 801( 10th Cir. 1991). Due
process does require that the hearing be complete and fair which means that the ALJ has a basic
Despite this Dr. Helgeson concluded that Plaintiff had a limited residual functional capacity – an opinion which the
ALJ discounted. (ECF No. 13, pp.26-27).
duty of inquiry to ascertain facts relevant to his/her decision and to learn the claimant’s version
of those facts. Id. The fairness requirement does not require cross-examination of medical
report authors in order to be a full and fair hearing. Id. (citing Richardson v. Perales, 402 U.S.
389, 401-02 (1971)).
Plaintiff’s complaints are in essence, that Dr. Boatright’s examination was unreasonably
brief, involved an area outside his expertise and contradicted Plaintiff’s treating physician’s
conclusions. (ECF Nos. 13, pp. 167-69, 174-78 and 17, pp.24-28). I note that the ALJ detailed
Plaintiff’s objections to Dr. Boatright’s opinion. (ECF NO.13, p.26). She then explained that
her RFC determination differed significantly from that of Dr. Boatright in “several respects and
is based on the record as a whole, not on a single physician’s opinion.” Id. In fact, the ALJ’s
RFC is more restrictive that Dr. Boatright’s. (Compare ECF No.13, p.23 with ECF No.13,
Additionally, the record demonstrates that Plaintiff had ample time and opportunity to
present medical evidence to rebut Dr. Boatright’s report which Plaintiff received well before the
hearing. As noted in detail above, the ALJ heard Plaintiff’s and his mother’s testimony as well
as Plaintiff’s attorney’s arguments regarding Plaintiff’s request for subpoena, at the hearing. The
ALJ thoroughly reviewed and discussed Dr. Boatright’s findings, Plaintiff’s objections to that
opinion and discussed other relevant medical reports including those of orthopedic specialists.
Id. The ALJ also conducted the required analysis of Plaintiff’s alleged pain and limitations.
I find nothing in the record that leads me to believe that issuing a subpoena to Dr.
Boatright or obtaining more medical expert opinions would have added anything of value to the
proceedings. Under the circumstances Plaintiff was not deprived of due process. The ALJ’s
refusal to subpoena Dr. Boatright did not constitute an abuse of her discretion.
As for Dr. Helgeson’s RFC determination, an ALJ is required to give the opinion of a
treating physician controlling weight only when it is both: (1) “well-supported by medically
acceptable clinical and laboratory diagnostic techniques;” and (2) “consistent with other
substantial evidence in the record. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003),
see also 20 C.F.R. §416.927(d)(2). The ALJ in this instance, discussed Dr. Helgeson’s findings
and treatment, and found that Dr. Helgeson’s opinion of Plaintiff’s RFC “is not consistent with
the record as a whole”; “is not clearly explained or persuasively reasoned” and therefore, gave it
little weight. (ECF No. 13, pp.23-27). Reducing the weight of an opinion on these bases is not
The ALJ’s consideration of Plaintiff’s mental health issues and credibility
The ALJ noted that she considered Plaintiff’s GAF score of 55 given by Dr. Wesley.
(ECF No. 13, pp.21-22, 379-83). The ALJ stated she gave little weight to that GAF score
because Plaintiff had not sought any treatment for a mental impairment and both the record and
Drs. Glasco and Raclaw’s findings did not support a conclusion of this level of severe mental
impairment. (ECF No.13, pp.21-22). She concluded that, based on the record, Plaintiff’s GAF
score was not representative of his long-term functioning and assigned no limitations in this area
of functioning. (ECF No. 13, p.22).
All in all, the claims of deficiency in the ALJ’s consideration of Plaintiff’s purported
mental health issues largely revolve around the failure to account for limitations in plaintiff’s
concentration, persistence and pace in developing Plaintiff’s RFC. And the “limitation” is
tethered to the following statement in the ALJ’s opinion:
“The claimant has a moderate impairment in concentration, persistence and pace. The
claimant was able to perform simple calculations and could recite 5 digits forward and in
reverse. In his function report, he describes himself as being able to follow instructions
very well. Exh.5E, p.6. Therefore, there is [sic] no limitations in the area of
(ECF No. 13, p.22).
It is apparent to the Court that the ALJ’s reference to a “moderate impairment” is a
scrivener’s error. The ALJ concluded that there were “no limitations” in this area of functioning.
The remainder of the discussion of Plaintiff’s mental issues is consistent and makes this clear.
The ALJ found no mental contribution to limitations of daily living activities. She found based
on plaintiff’s function report that, he got along with authority figures and had no problems with
friends, neighbors and family. She noted no episodes of decompensation, and then concluded
“Because the claimant’s medically determinable mental impairment causes no more than
“mild” limitation in any of the first three functional areas and “no” episodes of
decompensation which have been of extended duration in the fourth area, it is nonsevere
. . . .”
(ECF No. 13, p.22).
While far from a demonstration of precise draftsmanship, and apparently the product of
an over reliance on templates, the ALJ’s finding on the issue of concentration, persistence and
pace is that Plaintiff had no limitations in this area. And the finding was supported by substantial
Plaintiff neither sought nor received treatment for mental health issues. Dr. Helgeson
classified his capacity for various mental tasks – including following complex instructions and
maintaining attention – as “unlimited.” (ECF no. 13, p.474). She downgraded his ability to
perform at a persistent pace to “fair”, but only due to complaints of pain. Id. Dr. Campbell
noted that there was “no apparent cognitive deficit.” (ECF No. 13, p.377).
Properly construed, the ALJ’s decision was that Plaintiff had no limitations due to mental
impairment. Thus there was no error in failing to include such limitations in the ALJ’s RFC
The ALJ also enunciated clear reasons based on evidence in the record, for finding
Plaintiff not credible in his description of his level of debilitating pain and allegations of near
inability to perform tasks such as lifting and carrying up to 20 pounds, being able to stand and/or
walk for two out of eight hours. Id. (ECF No.13, pp.24-27). She detailed these as, e.g., his
documented extremity strength post-recovery; his stable pain management as documented in his
treatment record, his lack of compliance with physical therapy and doctor’s orders regarding
weight bearing; the lack of alternate treatment modalities; his trip to Arizona and his inconsistent
reports to various providers regarding his limitations resulting from his original injury. Id.
Similarly the ALJ detailed her reasons for giving Plaintiff’s mother’s testimony little
weight which included: that she is Plaintiff’s mother so expected to be sympathetic; her lack of
training to assess the severity of Plaintiff’s alleged limitations; her financial incentive to accept
his limitations as alleged and that her observations are not consistent with the record as a whole.
(ECF No. 13, pp.25-26).
I therefore find that the ALJ’s credibility findings are based on substantial evidence in the
record. Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th Cir
1990)(Credibility determinations are the province of the finder of fact, and will not be upset
when supported by substantial evidence).
ALJ’s reliance on Vocational Expert’s testimony was proper.
Plaintiff argues that the vocational expert (VE) was not qualified to give opinions
regarding the number of jobs available. Plaintiff contends that any vocational expert (VE) would
require either extra training in statistical analysis or, would have to have done their own local
market studies in order to be qualified to testify reliably about the number of jobs available in a
national or local economy. (ECF No.13, pp.562-63).
Defendant contends that the ALJ properly relied on the VE’s testimony regarding
plaintiff’s employability. (ECF No. 18, pp.23-26). Specifically Defendant argues that: (1) a
one-time finding of poor judgment does not preclude Plaintiff from performing work requiring a
reasoning level of three or four; (2) that the ALJ reasonably relied on the VE finding that
Plaintiff’s completion of tenth grade would allow him to meet the language level requirements of
levels three or four; (3) that the discrepancy between the VE’s testimony regarding the call-out
position and the DOT description of that position was explained by the VE and (4) that the VE’s
testimony regarding the availability of jobs in the national economy was reasonable. Id.
Plaintiff’s representative appears to object generally to testimony from any VE who is not
also an economist with extra training in statistical interpretation or who has done their own labor
market studies. (ECF No.13, p.563). The ALJ in this instance ascertained this VE’s
qualifications as represented in his curriculum vitae. Id. Further, the ALJ asked sufficient
questions regarding hypothetical individuals with various representative abilities of the VE to
support her opinion. (ECF No.13, pp.563- 66). She also allowed the Plaintiff’s representative to
extensively question the VE regarding specific physical and scholastic limitations. (ECF No. 13,
pp.566-79). The ALJ concluded by asking the VE whether his testimony was consistent with the
DOT except as otherwise noted. (ECF No. 13, p.579). The VE testified that it was and that he
based his opinion inter alia, on his work as “a voc rehab counselor for over 30 years in which
I’ve met and counseled with thousands of adult disabled workers.” Id. I find the ALJ’s reliance
on the VE’s testimony was reasonable and based on substantial evidence in the record.
Finally, in this instance while it may be that Plaintiff’s most recent injury has increased
his impairments to a level consistent with a finding of disability, that is a matter for another case.
In the instant matter, when the record is viewed as a whole, I find that there is substantial
evidence to support the ALJ’s ultimate conclusion and consequently find that the ALJ’s
determinations are supported by substantial evidence and free of legal error.
While Plaintiff argues essentially, that the ALJ should have weighed the evidence
differently, this court is not at liberty to re-weigh the evidence but is limited to determining
whether the correct legal standards were applied and the decision is supported by substantial
evidence in the record. After a complete review of the record, I find the ALJ’s findings are
supported by substantial evidence in the record, are free of harmful error and supported by the
correct legal standards.
For the reasons detailed above, the Commissioner’s January 23, 2013, final decision is
IT IS SO ORDERED
DATED this 5th day of January, 2016.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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