Cairns v. Social Security Administration, Commissioner of

Filing 24

ORDER the Commissioners decision is AFFIRMED. The Clerk shall enter judgment in favor of Defendant, by Judge William J. Martinez on 5/30/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-0901-WJM
LORI MICHELLE CAIRNS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING DECISION OF ADMINISTRATIVE LAW JUDGE

This social security benefits appeal is before the Court under 42 U.S.C. § 405(g).
Plaintiff Lori Michelle Cairns (“Plaintiff”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”), denying her application for disability
insurance benefits. The denial was affirmed by an administrative law judge, who ruled
Plaintiff was not disabled within the meaning of the Social Security Act (“Act”). This
appeal followed.
For the reasons set forth below, the ALJ’s decision denying Plaintiff’s application
for Social Security disability benefits is AFFIRMED.
I. BACKGROUND
Plaintiff Lori Michelle Cairns (“Plaintiff”) was born on March 31, 1972 and was 36
years old on the alleged disability onset date. (Admin. Record (“R.”) (ECF No. 13) at
73.) Plaintiff has at least a high school education and past relevant work experience as
a bookkeeper, property manager, office manager, and accountant. (R. at 20-21.)

Plaintiff filed an application for a period of disability and disability insurance
benefits on February 4, 2010, alleging that she had been disabled since March 1, 20091
due to several impairments, including brain injury, cognitive deficit, anxiety, depression,
post traumatic stress disorder, and pain in the neck and back. (R. 73.) Plaintiff’s claim
was reviewed by Disability Examiner Stanley Cook, with the assistance of Dr. Mark
Berkowitz, Psy.D. (R. 72-83.) Plaintiff’s application was initially denied on June 4,
2010. (R. 11.) After requesting a hearing, Plaintiff’s claims were heard by
Administrative Law Judge (“ALJ”) Michael G. Heitz on August 26, 2011. (R. 28.)
Plaintiff, consulting physician Dr. Robert Pelc, and vocational expert Martin Rauer
testified at the administrative hearing. (Id.)
On September 13, 2011, the ALJ issued a written decision in accordance with
the Commissioner’s five-step sequential evaluation process.2 At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since March 1, 2009.
(R. 13.) At step two, he found that Plaintiff suffered from neck pain, back pain,
headaches, cognitive deficit from mild traumatic brain injury, depression, anxiety
disorder, and post traumatic stress disorder, all of which were severe impairments. (R.
14.) At step three, the ALJ found that Plaintiff’s impairments, while severe, did not meet
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Plaintiff originally alleged an onset date of December 5, 2007, but this was later
amended to March 1, 2009. (R. 11.)
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The five-step process requires the ALJ to consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment;
(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to
her past relevant work; and, if not, (5) could perform other work in the national economy. See
20 C.F.R. § 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.
1988). The claimant has the burden of proof through steps one to four; the Social Security
Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).

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or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Id.) The ALJ assessed Plaintiff’s residual functional capacity (“RFC”),
finding that she had the ability to perform a range of “light” work as defined by the
regulations. (R. 15.) With regard to mental limitations, the ALJ found that Plaintiff had
a mild deficit in her ability to carry out, understand and remember simple instructions,
and a moderate deficit with regard to complex instructions and complex decisions. (Id.)
Given this RFC, at step four the ALJ found that Plaintiff could not perform her past
relevant work. (R. 20.) At step five, the ALJ found that there were jobs that exist in the
national economy that Plaintiff could perform with her limitations. (R. 21.) Specifically,
based on the vocational expert’s testimony, the ALJ found that Plaintiff could work as a
small product assembler and an electronics worker. (R. 21-22.) Accordingly, the ALJ
found that Plaintiff was not disabled within the meaning of the Act and therefore was
not entitled to benefits. (R. 22.)
On February 8, 2013, the Appeals Council denied Plaintiff’s request for review.
(R. 1.) Thus, the ALJ’s September 13, 2011 decision is the final administrative action
for purposes of review.
II. STANDARD OF REVIEW
The Court reviews the Commissioner’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. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id. “It requires more than a scintilla, but less than a

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preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Evidence 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 reviewing the Commissioner’s decision,
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). “On the other hand, 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).
III. ANALYSIS
This appeal is straight-forward. Plaintiff filed a five page opening brief, which
included only one page of argument, and failed to file a reply brief. (ECF No. 21.)
Plaintiff raises only two arguments. First, Plaintiff contends that the ALJ erred by failing
to afford appropriate weight to certain medical opinions offered by Dr. Mary Ann
Keatley, Plaintiff’s treating neurotherapist, and Dr. Mark Berkowitz, the original
examiner for the Social Security Administration. (Id. at 3-4.) Plaintiff also alleges that
her RFC fails to account for her inactility to stay on task. (Id. at 4-5.) The Court will
address each of these alleged errors below.
A.

Treating Physician
The opinion of a treating physician is generally “entitled to great weight because

it reflects expert judgment based on continuing observation of a patient’s condition over
a prolonged period of time.” Williams v. Chater, 923 F. Supp. 1373, 1379 (D. Kan.
1996). However, an ALJ may disregard that opinion if it is contradicted by other

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medical evidence, or otherwise inconsistent with substantial evidence in the record.
See Marshall v. Astrue, 315 F. App’x 757, 759-60 (10th Cir. 2009); 20 C.F.R.
§ 404.1527(d)(2). If a treating physician’s opinion is not given controlling weight, the
ALJ must determine what weight, if any, the opinion deserves, considering the following
factors:
(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
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.
Id. at 1301 (internal quotations omitted). The ALJ need not explicitly discuss each
individual factor. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
Nevertheless, the ALJ must consider every factor in determining the weight to be
assigned to a medical opinion, and “if the ALJ rejects the opinion completely, he must
then give specific, legitimate reasons for doing so.” Watkins, 350 F.3d at 1301; see 20
C.F.R. § 404.1527(d)(2); Soc. Sec. Ruling (SSR) 96–2p, 1996 WL 374188, at *4.
Plaintiff argues that the ALJ erred by failing to consider certain medical opinions
from Dr. Keatley, her treating neurotherapist. (ECF No. 21 at 4.) However, the failure
to mention a particular medical opinion does not mean that the ALJ failed to consider
that opinion altogether. “The record must demonstrate that the ALJ considered all of
the evidence, but an ALJ is not required to discuss every piece of evidence.” Clifton v.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

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The record here shows that the ALJ considered Dr. Keatley’s opinions, and that
he provided his justification for not giving those opinions controlling weight. (R. 18-19.)
The ALJ noted that some of the opinions offered by Dr. Keatley were outside of her
specialization (which was noted by Dr. Keatley herself). (R. 19.) The ALJ also found
that Dr. Keatley’s opinion as to the severity of Plaintiff’s symptoms was not supported
by the objective medical evidence in the record, including medical tests performed by
Dr. Keatley. (Id.) There is substantial evidence in the record to support both of these
findings, and these are both valid bases for assigning little weight to Dr. Keatley’s
opinions. See White v. Massanari, 271 F.3d 1256, 1260 (10th Cir. 2001) (ALJ may
discount opinions when they are inconsistent with other medical evidence); Watkins v.
Barnhart, 350 F.3d at 1301 (ALJ may consider whether a medical opinion falls within
the physician’s specialization). As such, the Court finds that Plaintiff has failed to show
that the ALJ erred in how he weighed Dr. Keatley’s medical opinions.
B.

Other Medical Opinions
Plaintiff alleges that the ALJ erred by ignoring evidence opinions of Mark

Berkowitz, who was the original examiner on Plaintiff’s Social Security application. (R.
72-83.) Specifically, Plaintiff points to Dr. Berkowitz’s opinion that she has “moderate”
difficulties in maintaining social functioning, as well as concentration, persistence and
pace at work. (R. 80.)
First, Plaintiff has failed to cite any authority that requires the ALJ to consider Dr.
Berkowitz’s opinions when determining whether Plaintiff is disabled. Dr. Berkowitz is
not a treating physician for Plaintiff, and has never personally evaluated her. His role in

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these proceedings was to review the medical evidence that Plaintiff provided with her
original application, and assist the evaluator in determining whether Plaintiff had shown
that she was disabled. The proceeding before the ALJ was an appeal of the denial of
benefits based on Dr. Berkowitz’s review of the evidence.
Moreover, Plaintiff asks the Court to pick out Dr. Berkowitz’s opinions that favor
her position, and to ignore the others. For example, Plaintiff ignores Dr. Berkowitz’s
opinions that she is not significantly limited in her ability to understand, remember, and
carry out short and simple instructions, and that she is able to perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances.
(R. 80.) Notably, Dr. Berkowitz’s opinions were relied on by the Commissioner to
initially deny Plaintiff’s application for benefits. Just as an ALJ must consider all
medical opinions when determining whether an applicant is disabled, the Court cannot
selectively choose only favorable medical opinions when reviewing the Commissioner’s
decision. See Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004). As such, the
Court finds that Plaintiff has failed to show that the ALJ erred by not considering Dr.
Berkowitz’s opinions.
C.

Plaintiff’s RFC
Though Plaintiff does not specifically challenge her RFC, her argument that the

ALJ failed to address the mental requirements of the work proposed for her is an
implicit challenge to the RFC. (See ECF No. 21 at 5.) With regard to Plaintiff’s mental
limitations3, the ALJ found as follows:

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Plaintiff does not challenge the ALJ’s assessment of her physical limitations.

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[T]he claimant has a “mild” deficit (defined as slightly limited
but generally able to function well) in her ability to carry out,
understand and remember simple instructions and make
judgments for simple decisions; and “moderate” deficits
(defined as more than slight limitation but able to function
satisfactorily) in her ability to carry out, understand and
remember complex instructions, make complex decisions,
interact with the public, supervisors and coworkers, and
adjust to usual situations and changes in her routine work
settings.
(R. 15.) Plaintiff contends that this RFC fails to account for the limitations noted by Drs.
Keatley and Berkowitz with regard to her ability to maintain employment in light of her
difficulties with memory, concentration, and persistence. (ECF No. 21 at 4.)
The Court acknowledges that there are medical opinions that attribute to Plaintiff
more severe limitations than the ALJ included in the RFC. (See, e.g., R. 288, 295,
310.) However, there is also substantial evidence in the record that supports the mild
and moderate limitations contained in the RFC. For example, Dr. Lemmon’s evaluation
showed that Plaintiff has above average working memory and average learning skills.
(R. 356-57.) Dr. Pelc testified at the hearing consistent with the RFC. (R. 45-47.)
Finally, the evidence regarding Plaintiff’s daily living activities is consistent with the
ALJ’s limitations in the RFC.
Plaintiff’s arguments on this point essentially ask the Court to reweigh the
medical evidence and arrive at a different conclusion than the Commissioner. The
Court cannot do this. Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005)
(reviewing court cannot reweigh medical evidence or substitute its judgment for that of
the Commissioner); White v. Barnhart, 287 F.3d 903, 905, 908, 909 (10th Cir. 2002)
(same). The Court finds that there is substantial evidence to support the RFC
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formulated by the ALJ. Therefore, Plaintiff has failed to show any error.
III. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is AFFIRMED.
The Clerk shall enter judgment in favor of Defendant.
Dated this 30th day of May, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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