Wilson v. Astrue

Filing 24

ORDER Affirming ALJ's Decision Denying Social Security Benefits by Judge Christine M. Arguello on 12/9/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-00699-CMA
SHERRI L. WILSON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING ALJ’S DECISION DENYING SOCIAL SECURITY BENEFITS

This matter is before the Court on review of the Commissioner’s decision to deny
Plaintiff Sherri L. Wilson’s (“Plaintiff”) application for widow’s insurance benefits and
supplemental security income. Jurisdiction is proper under 42 U.S.C. § 405(g).
I. BACKGROUND
A.

MEDICAL EVIDENCE
Plaintiff was born on March 25, 1958. (AR at 83.) She has a high school

education and completed two years of college. (AR at 62.) Plaintiff reported that
she previously worked as a home care attendant. (AR at 173.) With regard to her
physiological ailments, Plaintiff’s chief complaint relates to her back pain. In 1999,
she was involved in a car accident in which her back was injured. Plaintiff underwent
surgery on her lower back in 2001, her left shoulder in 2003, and had bilateral carpal
tunnel release surgeries in 2008. (AR at 261-62, 270, 284.) She is prescribed

medications to manage her pain. (AR at 425, 432, 435-35, 438-39, 445-47.) Plaintiff
was also diagnosed with depression and was hospitalized following her husband’s
death. (AR. at 405.)
B.

PROCEDURAL HISTORY
Plaintiff filed applications for two types of disability benefits. On May 12, 2010,

she filed an application for supplemental security income and on July 13, 2011, she filed
an application for disabled widow’s benefits. In both applications, Plaintiff alleged a
disability onset date of April 2, 2010. After her initial applications were denied, Plaintiff
requested a hearing, which was held on November 3, 2011, before an Administrative
Law Judge (“ALJ”), who issued an unfavorable decision on November 9, 2011. (AR at
29.) The Appeals Council denied Plaintiff’s request for review. (AR at 1-3.) On March
18, 2013, Plaintiff filed her appeal of the Commissioner’s final decision. (Doc. # 1.)
Plaintiff filed her opening brief on July 12, 2013, the Commissioner responded on
August 13, 2013, and Plaintiff replied on August 28, 2013. (Doc. ## 15, 16, 17.)
C.

THE ALJ’S DECISION
The ALJ determined that Plaintiff met the non-disability requirements for disabled

widow’s benefits. In applying the five-step sequential evaluation process outlined in 20
C.F.R. §§ 404.1520 and 416.920 to determine whether Plaintiff was disabled, the ALJ
determined that:
1. Plaintiff had not engaged in substantial gainful activity since her alleged onset
date of April 2, 2010 [Step 1];
2. Plaintiff had the following severe impairments: degenerative disc disease of
the lumbar spine, depression, obesity, and chronic pain syndrome. The ALJ
further determined that Plaintiff’s symptoms of carpal tunnel syndrome and
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left shoulder impairment either were not medically determinable or were nonsevere [Step 2];
3. Plaintiff did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 [Step 3];
4. 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 the claimant can lift
and carry twenty pounds occasionally and ten pounds frequently; can stand
or walk for six hours of an eight-hour day and sit for two hours of an eighthour day; can frequently climb stairs and ramps; can occasionally climb
ladders, ropes, and scaffolding; can occasionally stop and crouch; can
frequently kneel or crawl; cannot have concentrated expos[ure] to
unprotected heights or moving or other hazardous machinery; and can
perform no more than simple, routine, and repetitive tasks” [Step 4]; and
5. Plaintiff was able to perform her past relevant work as a home attendant.
[Step 5].
II. STANDARD OF REVIEW
The Court reviews the ALJ’s decision to determine whether substantial evidence
in the record as a whole supports the factual findings and whether the correct legal
standards were applied. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
ASubstantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. It requires more than a scintilla, but less than
a preponderance.@ Id. (quoting Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)).
AEvidence is not substantial if it is overwhelmed by other evidence in the record.@
Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In so reviewing, the
Court may neither reweigh the evidence nor substitute its judgment for that of the
agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006).

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III. ANALYSIS
Plaintiff raises two arguments in support of her contention that the ALJ committed
errors in rendering his decision. Specifically, Plaintiff argues that the ALJ erred by:
(1) giving little weight to her treating physician’s opinion, and (2) giving controlling
weight to a non-examining medical consultant.
A.

WHETHER THE ALJ ERRED BY GIVING LITTLE WEIGHT TO THE OPINION
OF PLAINTIFF’S TREATING PHYSICIAN
According to the “treating physician rule,” the Commissioner will generally “give

more weight to medical opinions from treating sources than those from non-treating
sources.” Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004); see also 20 C.F.R.
§ 404.1527(c)(2). In deciding how much weight to give a treating physician’s opinion,
an ALJ must first determine if the opinion is entitled to controlling weight. See Watkins
v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). An opinion is so entitled if it is wellsupported by the medical evidence and is consistent with other substantial evidence in
the record. See id. Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Fowler v. Bowen, 876 F.2d
1451, 1453 (10th Cir. 1989) (internal quotation marks omitted).
Even if a treating physician’s opinion is not entitled to controlling weight,
however, “[t]reating source medical opinions are still entitled to deference and must be
weighed using all of the factors provided in 20 C.F.R. § 404.1527.” Id. Those factors
are:
(1) the length 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
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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 is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001); 20 C.F.R. § 404.1527(c).
Under Tenth Circuit case law, “an ALJ must give good reasons for the weight assigned
to a treating physician’s opinion that are sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical
opinion and the reason for that weight.” Langley, 373 F.3d at 1119 (internal quotation
marks and citations omitted).
In determining that Dr. Egan’s opinion regarding Plaintiff’s physical ailments was
entitled to little weight, the ALJ found that Dr. Egan’s opinion was not supported by
her own notes or other evidence in the record (AR at 36-37). See 20 C.F.R.
§ 404.1527(c)(3)(supportability); (c)(2)(consistency). Specifically, the ALJ observed
with record support that “Dr. Egan’s own treatment records show the claimant received
only conservative care and largely normal results from the claimant’s physical and
mental system exams.” (AR at 36.) Moreover, the ALJ appropriately discounted
Dr. Egan’s opinions that were provided as checkmarks on a form without sufficient
explanation, which is generally considered weak evidence. See Frey v. Bowen, 816
F.2d 508, 515 (10th Cir. 1987). An ALJ is not required to “discuss all the § 404.1527(c)
factors for each of the medical opinions before him,” Oldham v. Astrue, 509 F.3d 1254,
1258 (10th Cir. 2007), and in the instant case the reasons given by the ALJ are
“sufficiently specific to make clear . . . the reason” for the weight the ALJ gave to

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Dr. Egan’s opinion. See Langley, 373 F.3d at 1119. Plaintiff’s arguments relating to her
assertion that “Dr. Egan’s medical opinions are well supported by her notes and the
other medical evidence” essentially ask this Court to reweigh the evidence, which it is
not entitled to do. See Oldham, 509 F.3d at 1257-58 (reviewing court “may not displace
the agency’s choice between two fairly conflicting views,” even if the Court may have
“made a different choice had the matter been before it de novo”); Salazar v. Barnhart,
468 F.3d 615, 621 (10th Cir. 2006) (reviewing court may not reweigh the evidence or
substitute its judgment for that of the Commissioner). Accordingly, the ALJ did not err
in assigning Dr. Egan’s opinion little weight.
B.

WHETHER THE ALJ ERRED BY GIVING CONTROLLING WEIGHT TO A NONEXAMINING MEDICAL CONSULTANT
Plaintiff also contends that the ALJ erred by assigning controlling weight to non-

examining physician, Dr. LoGalbo. While it is true that only opinions from treating
sources can be given controlling weight, 20 C.F.R. § 416.927(c), the ALJ’s decision
states that he gave great, not controlling, weight to Dr. LoGalbo’s opinion. (AR at 36.)1
Generally, opinions of non-examining physicians who have never seen the claimant are
entitled to the least weight of all. Martinez v. Astrue, 422 F. App’x 719, 724 (10th Cir.
2011) (citing 20 C.F.R. § 416.927(d)(1); Soc. Sec. Ruling 96–6p, 1996 WL 374180, at
*2; Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004)). However, where an
ALJ otherwise reduces the weight given to a treating physician’s opinion, it is not error

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The Court rejects Plaintiff’s assertion that “in effect the ALJ gave this non-examining opinion
controlling weight.” There is nothing in the ALJ’s decision to indicate that is the case. Indeed,
the ALJ’s RFC was more limited than the RFC suggested by Dr. LoGalbo. Compare (AR at 89)
(claimant can sit for about 6 hours per workday) with (AR at 34) (claimant can sit for two hours).
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to rely on a non-examining physician’s opinion. See, e.g., Gonzales v. Colvin, 515
F. App’x 716, 719 (10th Cir. 2013).
Plaintiff takes issue with the fact that the ALJ did not offer specific examples in
support of his determination that Dr. LoGalbo’s opinions were supported by the record.
Curiously, to illustrate her assertion that Dr. LoGalbo’s opinion is inconsistent with the
record, Plaintiff points to the opinions of Dr. Egan and Dr. Greene, who both opined that
Plaintiff can sit for two hours in a workday, whereas Dr. LoGalbo opined that Plaintiff
could sit for 6 hours. However, the ALJ adopted the two hour sitting limitation in
Plaintiff’s RFC. (AR at 34.) Therefore, there is no evidence that the ALJ followed the
inconsistency Plaintiff points to as error. Irrespective of that point, the ALJ is entitled
to resolve any conflicts in the record. Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.
2007) (citing Richardson v. Perales, 402 U.S. 389, 399 (1971); Casias v. Sec’y of
Health & Human Servs., 933 F.2d 799, 801 (10th Cir.1991)). And as previously stated,
this Court’s review is limited and it may not reweigh the evidence. See Salazar, 468
F.3d at 621.
Next, Plaintiff argues that the ALJ erred when he stated that he gave weight to
Dr. LoGalbo’s opinion because he had access to Plaintiff’s medical history. Plaintiff
points out, and the Commissioner concedes, that when Dr. LoGalbo conducted his
review, he did not have the full record ultimately before the ALJ. However, an ALJ does
not err in according weight to the opinion of a reviewing physician who does not have
access to the complete record where the ALJ explicitly considers the medical evidence
to which the reviewing physician did not have access. See Gonzalez, 515 F. App’x at

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719 (“And although it is true that Dr. Twombly was privy to only an incomplete record,
the ALJ specifically addressed this point in finding that the more recent record evidence
failed to establish that Gonzales’s conditions had worsened since Dr. Twombly’s review.
The ALJ did not err in adopting the conclusion that Gonzales could still perform medium
exertional work.”); see also Soc. Sec. Ruling 96–6p, 1996 WL 374180, at *2 (The
opinions of State agency medical consultants “can be given weight only insofar as
they are supported by evidence in the case record, considering such factors as the
supportability of the opinion in the evidence including any evidence received at the
administrative law judge and Appeals Council levels that was not before the State
agency”). In his decision, the ALJ reviewed the additional records that Plaintiff
submitted. (See AR at 35-36.) Therefore, that Dr. LoGalbo did not have access to all
records Plaintiff ultimately submitted in support of her applications does not constitute
a basis for reversal.
Last, Plaintiff argues that the ALJ erred when he stated that Dr. LoGalbo’s
decision “reflects the examiner’s experience in providing medical opinions in the context
of a disability review.” (Doc. # 15 at 15 (citing AR at 36).) State agency physicians are
“highly qualified physicians . . . who are experts in the evaluation of the medical issues
in disability claims under the Act.” Soc. Sec. Ruling 96–6p, 1996 WL 374180, at *2.
Accordingly, the ALJ’s recognition of Dr. LoGalbo’s knowledge of Social Security
regulations was not error. See Gallegos v. Colvin, No. 11-CV-02861-PAB, 2013 WL
5303485, at *7 (D. Colo. Sept. 20, 2013).

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IV. CONCLUSION
For the foregoing reasons, it is ORDERED that the ALJ’s decision is AFFIRMED.
Each party shall bear its own costs and attorney’s fees.
DATED: December

09

, 2013
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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