Harris v. Colvin
ORDER AFFIRMING COMMISSIONER. By Judge Robert E. Blackburn on 9/11/2014. (alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01107-REB
SHEERAH D. HARRIS,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
ORDER AFFIRMING COMMISSIONER
The matter before me is plaintiff’s Complaint [#1],1 filed April 25, 2014, seeking
review of the Commissioner’s decision denying plaintiff’s claim for supplemental security
income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 401, et seq. I
have jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g).
The matter has been fully briefed, obviating the need for oral argument. I affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she is disabled as a result of bipolar disorder, psychotic
disorder, PTSD, drug and alcohol dependence, borderline personality disorder, and
bulimia nervosa. After her application for supplemental security income benefits was
denied, plaintiff requested a hearing before an administrative law judge. This hearing
“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.
was held on December 12, 2011. At the time of the hearing, plaintiff was 29 years old.
She has a limited education and past relevant work experience as a food and beverage
order clerk. She has not engaged in substantial gainful activity since July 6, 2010, the
date of her application for benefits.
The ALJ found that plaintiff was not disabled and therefore not entitled to
supplemental security income benefits. Although the evidence established that plaintiff
suffered from severe impairments, the ALJ concluded that the severity of those
impairments did not meet or equal any impairment listed in the social security
regulations. Plaintiff’s migraine headaches were found not to constitute a severe
impairment. The ALJ found that plaintiff had the residual functional capacity to perform
a full range of work at all exertional levels that required the ability to understand,
remember, and carry out only simple instructions and involved only occasional
interaction with coworkers and supervisors and rare (or no) interaction with the general
public. Although this finding precluded plaintiff’s past relevant work, the ALJ concluded
that there were jobs existing in significant numbers in the national and local economies
that she could perform. She therefore found plaintiff not disabled at step five of the
sequential evaluation. Plaintiff appealed this decision to the Appeals Council. The
Council affirmed. Plaintiff then filed this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if her
physical and/or mental impairments preclude her from performing both her previous
work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a five-step sequential evaluation process for
determining whether a claimant is disabled:
The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.
The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.
The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.
If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.
If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
20 C.F.R. § 416.920(a)(4)(i)-(v). See also Williams v. Bowen 844 F.2d 748, 750-52
(10th Cir. 1988). The claimant has the initial burden of establishing a disability in the first
four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287,
2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show
that the claimant is capable of performing work in the national economy. Id. A finding
that the claimant is disabled or not disabled at any point in the five-step review is
conclusive and terminates the analysis. Casias v. Secretary of Health & Human
Services, 933 F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
III. LEGAL ANALYSIS
Plaintiff claims the ALJ erred in concluding that she did not meet the
requirements of the listing for affective disorders at step 3 of the sequential evaluation.
She also suggests error in the ALJ’s decision to afford little weight to the opinion of her
treating source, in the ALJ’s alleged failure not to consider the impact of migraines in
assessing her residual functional capacity, and in the ALJ’s assessment of her
credibility overall. Finding no such reversible error in the ALJ’s decision, I affirm.
At step 3 of the sequential evaluation, the ALJ considered whether plaintiff’s
various mental impairments met or equaled the criteria of the Commissioner’s Listing of
Impairments, which set forth standards under which various physical and mental
impairments will be considered presumptively disabling. 20 C.F.R. § 416.925(a); Social
Security Ruling 83-19, 1983 WL 31248 at *1 (SSA 1983). See also Bowen v. City of
New York, 476 U.S. 467, 471, 106 S.Ct. 2022, 2025, 90 L.Ed.2d 462 (1986). Mental
disorders are analyzed under section 12.00 of the listings, which defines each of the
nine diagnostic categories identified therein by three criteria: a statement describing the
disorder (the capsule definition), a set of medical findings (the paragraph A criteria) and
a set of impairment-related functional limitations (the paragraph B criteria). Alternative
functional criteria (the paragraph C criteria) are included for certain classes of disorders.
A claimant’s impairment meets or equals a listed impairment, and therefore is presumed
to be disabling, if the diagnostic description of the capsule definition and the criteria of
both paragraphs A and B (or A and C, where appropriate) are satisfied. See 20 C.F.R.,
Pt. 404, Subpt. P, App. 1, § 12.00A.
The ALJ concluded that plaintiff’s impairments did not meet the paragraph B
criteria of the listing because the evidence did not support a conclusion that plaintiff had
“marked” restrictions in any of the functional areas covered by paragraph B. (Tr. 26.)2
These findings were based on and consistent with the assessment of Dr. Donald
Glasco, a state agency psychological consultant.3 (Tr. 84-85.) Plaintiff points to
evidence in the record that she contends shows otherwise – evidence that she has lost
custody of all four of her children, is irritable and abrasive in most social interactions,
and is unable to follow rules or complete projects. Essentially, she suggests that the
evidence supports a conclusion different from the one reached by Dr. Glasco. The
court generally is neither inclined nor authorized to accept any invitation to reweigh the
evidence, see Thompson, 987 F.2d at 1487, and is particularly ill-equipped to do so
when the exercise would require the substitution of a judge’s lay opinion for a doctor’s
medical one, see Hamlin v. Barnhart, 365 F.3d 1208, 1221 (10th Cir. 2004).
In a related argument, plaintiff suggests that the ALJ erred in discrediting the
opinion of her treating source, psychiatric nurse Anna-Lisa Greenwade. I perceive no
reversible error in this regard, either. The ALJ properly noted that Ms. Greenwade was
At the administrative level, plaintiff also argued that she satisfied the paragraph C criteria, based
on evidence of repeated hospitalizations. See 20 C.F.R., Pt. 404, Subpt. P., App. 1, §12.04C(1) (requiring
“[m]edically documented history of a chronic affective disorder of at least 2 years' duration that has caused
more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently
attenuated by medication or psychosocial support” and, inter alia, “[r]epeated episodes of
decompensation, each of extended duration”). The ALJ rejected this argument as unsupported by the
evidence, and plaintiff does not challenge that determination here. (Tr. 26-27.)
Paragraph B requires proof that a medically determinable impairment has resulted “in at least
two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining
social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4.
Repeated episodes of decompensation, each of extended duration.” 20 C.F.R., Pt. 404, Subpt. P., App. 1,
not an “acceptable medical source,” see Social Security Ruling 06-03p, 2006 WL
2329939 at *1 (SSA Aug. 9, 2006), and thus could neither issue medical opinions, see
20 C.F.R. § 404.1527(a)(2), nor be considered a treating source whose opinion must be
evaluated to determine whether it is entitled to controlling weight, see 20 C.F.R. §
404.1513(d). See also Social Security Ruling 06-03p, 2006 WL 2329939 at *2;
Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007). (Tr. 27, 34.)
Nevertheless, the ALJ properly proceeded to evaluate Ms. Greenwade’s opinion,
applying the same factors as are generally used to assess treating source opinions.
Social Security Ruling 06-03p, 2006 WL 2329939 at *4; 20 C.F.R. § 416.927(c)(2)-(6).
She noted that Ms. Greenwade had only two prior contacts with plaintiff at the time she
authored her opinion. (See Tr. 33, 318.) The duration of the treating relationship is an
appropriate consideration in determining the weight to be afforded to a treating source
opinion. See 20 C.F.R. § 416.927(c)(2). In addition, Ms. Greenwade essentially
refused to issue any opinion as to the degree of impairment plaintiff experienced in
activities of daily living or social functioning, repeatedly noting that the degree of
limitation was “unknown” because Ms. Greenwade had “limited knowledge of patient.”
(Tr. 320-321.) Thus, and although plaintiff suggests that Ms. Greenwade had access to
18 months of previous treatment records from the clinic that might further support her
conclusions, such express disavowal of knowledge of these matters demonstrates that
she in fact did not review or consider that evidence.4
Plaintiff also points out that the ALJ failed to consider the opinions of Dr. Jacqueline Richman,
who undertook a psychological evaluation of plaintiff at the request of the Boulder County Department of
Social Services in connection with that agency’s determination whether plaintiff’s parental rights to one of
her children should be circumscribed or terminated. (Tr. 662-673.) Aside from the fact that opinion was
Lastly, plaintiff argues that the ALJ erred in assessing her residual functional
capacity. In this regard she complains of the ALJ’s general failure to credit her
subjective reports of pain and limitation, and more specifically of the ALJ’s alleged
failure to consider the impact of her migraine headaches in assessing her residual
functional capacity. Addressing these arguments in reverse order, I find no error.
Although the ALJ is required to consider the combined impact of all a claimant’s
medically determinable impairments, including those (such as plaintiff’s headaches in
this case) found to be not severe, in assessing her residual functional capacity, see 20
C.F.R. § 416.945(a)(2), plaintiff does not suggest how this alleged omission (to the
extent it occurred) prejudiced her. See Bernal v. Bowen, 851 F.2d 297, 303 (10th Cir.
1988). The ALJ thoroughly reviewed the scant medical evidence of the existence of
such an impairment, which indicated that plaintiff sought treatment just twice for
headaches, approximately one year apart. (Tr. 26, 341-342, 350-351.) At the second
of these appointments, plaintiff was prescribed Imitrex, and there is nothing in the
record to indicate that this treatment was not effective, especially considering that there
is no further evidence of complaints of or treatment for migraines.
Indeed, the only other evidence of record of this alleged impairment is plaintiff’s
own testimony. The ALJ, however, found plaintiff’s testimony regarding her limitations
generally not credible to the extreme extent plaintiff alleged. “[C]redibility
determinations ‘are peculiarly the province of the finder of fact,’ and should not be upset
authored in 2004, well before the period under consideration in this case, plaintiff offers no argument or
evidence suggesting what effect the assessment of plaintiff’s parenting and relational skills might have on
her work-related abilities. The failure to consider this evidence thus undoubtedly was harmless. See
Williams v. Chater, 1995 WL 490280 at *2 (10th Cir. Aug.16, 1995) ("Procedural imperfection that does
not affect a party's substantive rights is not a basis for reversal."). .
if supported by substantial evidence.” White v. Barnhart, 287 F.3d 903, 909 (10th Cir.
2001) (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)). So long as the
ALJ links her credibility assessment to specific evidence in the record, her determination
is entitled to substantial deference. Id. at 910; see also Qualls v. Apfel, 206 F.3d
1368, 1372 (10th Cir. 2000). The ALJ’s credibility determination in this case is
substantiated by her extraordinarily thorough and well-documented consideration of the
medical and other evidence before her. She gave specific, legitimate reasons for her
assessment of plaintiff’s credibility, precisely tied to the evidence of record. (Tr. 28-33.)
Nothing in this determination warrants reversal of the disability decision.
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated September 11, 2014, at Denver, Colorado.
BY THE COURT:
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