Barnes v. Colvin

Filing 22

ORDER AFFIRMING ALJ's DENIAL OF BENEFITS, by Judge William J. Martinez on 7/1/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-1427-WJM
ULYSSES BARNES,
Plaintiff,
v.
CAROLYN W. COLVIN, acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING ALJ’S DENIAL OF BENEFITS

This social security benefits appeal is before the Court under 42 U.S.C. § 405(g).
Plaintiff Ulysses Barnes (“Plaintiff”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”), denying his application for disability
insurance benefits and supplemental security income. The denial was affirmed by an
administrative law judge (“ALJ”), 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 Ulysses Barnes was born on December 12, 1952 and was 56 years old
on the alleged disability onset date. (Admin. Record (“R.”) (ECF No. 15) at 191.)
Plaintiff has a master’s degree in human resources and has past relevant work
experience as a user support analyst. (R. 39.)

Plaintiff filed an application for a period of disability and disability insurance
benefits on January 8, 2010, alleging that he had been disabled since August 10, 1999
due to injuries resulting from an accident. (R. 191-201.) Plaintiff later changed his
alleged onset date to July 17, 2009, as he admitted that he continued working for ten
years after his accident. (R. 29.) Plaintiff’s application was initially denied on April 9,
2010. (Id.)
After requesting a hearing, Plaintiff’s claims were heard by ALJ Blaine L. Boyens
on August 24, 2011. (R. 29.) Plaintiff, medical expert Dr. Robert E. Pelc, and
vocational expert Pat W. Pauline testified at the administrative hearing. (Id.) Medical
evidence was submitted from the Veteran’s Administration, Dr. William Boyd, Dr.
Milburn-Westfall, Dr. Boyd, Dr. Carol Ramsey, Dr. Daniel Wright, Dr. Richard Inman,
and Dr. Stephanie Knudson. (R. 34-38.)
On September 8, 2011, the ALJ issued a written decision in accordance with the
Commissioner’s five-step sequential evaluation process.1 At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since July 19, 2009. (R. 29.)
At step two, he found that Plaintiff suffered from the following severe impairments:
degenerative joint disease of the lumbar spine with mild scoliosis, degenerative disc
disease of the cervical spine, bilateral pes planus, mild left knee strain and possible

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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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chondromalacia, affective disorder, and anxiety disorder. (Id.) The ALJ found that
Plaintiff’s hip pain was not medically determinable. (R. 32) At step three, the ALJ
found that these impairments, while severe, did not meet or medically equal any of the
impairments or combination of impairments listed in the social security regulations. (Id.)
The ALJ assessed Plaintiff’s residual functional capacity (“RFC”), finding that he had
the RFC to perform “exertional lifting limitation of 50 lbs. occasionally and 25 lbs.
frequently; standing and/or walking for 6 hours total during an 8-hour workday. The
claimant is capable of work requiring accuracy and attention to detail, can interact and
respond appropriately to supervisors and co-workers so long as such contact is neither
frequent nor prolonged and less public contact in person.” (R. 33-34.)
Given this RFC, at step four the ALJ found that Plaintiff could perform his past
relevant work as a user support analyst, because such work would not require him to
perform activities that were restricted by his RFC. (R. 39.) Accordingly, the ALJ found
that Plaintiff was not disabled within the meaning of the Act and therefore was not
entitled to benefits. (Id.)
The Appeals Council denied Plaintiff’s request for review on April 11, 2013. (R.
1.) Thus, the ALJ’s September 8, 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).

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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
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
Plaintiff Ulysses Barnes raises four arguments on appeal: (1) the ALJ erred at
step two by finding that there was no medical evidence to support his impairment of
back pain; (2) the ALJ’s RFC was not supported by substantial evidence because the
ALJ erred in weighing the medical evidence; (3) the ALJ improperly discredited
Plaintiff’s testimony; and (4) the ALJ failed to make the requisite factual findings at step
four. (ECF No. 17.) The Court will address each of these arguments in turn below.
A.

Step Two
At step two, the claimant must demonstrate a medically severe impairment that

significantly limits the ability to perform basic work activities. See 20 C.F.R.
§§ 404.1520(a)(4)(ii), 404.1520(c), 404.1521(a), 416.920(a)(4)(ii), 416.920(c),
416.921(a). “Basic work activities” involve “the abilities and aptitudes necessary to do

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most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). Although the step two standard
requires only a “de minimis” showing of an impairment, the claimant must demonstrate
more than the mere presence of a condition or ailment. See Hinkle v. Apfel, 132 F.3d
1349, 1352 (10th Cir. 1997). The plaintiff bears the burden at step two and must
furnish supporting evidence. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987).
At step two, the ALJ found that Plaintiff had the following severe impairments:
degenerative joint disease of the lumbar spine with mild scoliosis, degenerative disc
disease of the cervical spine, bilateral pes planus, mild left knee strain and possible
chondromalacia, affective disorder, and anxiety disorder. (R. 31.) Although Plaintiff
had listed hip pain on his application, the ALJ found that “the record does not contain
any medical evidence to support the claimant’s hip pain and there is no diagnosis of a
hip disorder. Thus, the undersigned must conclude that this impairment is not
medically determinable.” (Id. at 32.)
Plaintiff contends that the ALJ’s assessment of his hip pain was error because it
ignored diagnostic imaging in the record which shows that he has degenerative joint
disease in his sacroiliac joints. (R. 403.) The Court acknowledges that such imaging is
in the record, and the ALJ explicitly discusses this imaging in his RFC analysis. (R. 35.)
This single test, however, does not show that the ALJ’s assessment of Plaintiff’s hip
pain was error. Plaintiff cannot point to anywhere in the medical records showing that,
before applying for benefits, he sought or received treatment for hip pain. Rather,
Plaintiff has been treated repeatedly for low back pain, which can be caused by or
contributed to by degeneration in the lumbar/sacroiliac joint. See Cumella v. Colvin,
936 F. Supp. 2d 1120, 1126 (D.S.C. 2013) (discussing lumbar degenerative disc
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disease and noting that it causes “pain that is centered on the lower back, although it
can radiate to the hips and legs”). Because the ALJ found that Plaintiff’s lumbar
degeneration was a severe impairment, it was not error for him to fail to include
Plaintiff’s hip pain as a separate impairment. See Allen v. Barnhart, 2007 WL 460996,
*5 (D. Kan. Jan. 9, 2007) (ALJ did not err in failing to include joint pain as a separate
medically determinable impairment where the ALJ had found that hepatitis C, which can
cause joint pain, was a severe impairment).
Moreover, were the Court to conclude that the ALJ erred in finding that Plaintiff’s
hip pain was not medically determinable, such error would be harmless. See Carpenter
v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“any error here [at Step Two] became
harmless when the ALJ reached the proper conclusion that [the plaintiff] could not be
denied benefits conclusively at Step Two and proceeded to the next step of the
evaluation sequence”). The ALJ proceeded beyond the step two analysis and
considered all of Plaintiff’s impairments, including his degenerative joint disease in the
lumbar region, when fashioning Plaintiff’s RFC. In fact, the ALJ specifically discussed
the imaging showing degeneration in the sacroiliac joint in the RFC analysis. (R. 35.)
The record does not contain any evidence showing that Plaintiff’s hip pain would restrict
his ability to work in any manner that is not already affected by his lower back pain.
Thus, there is no evidence that would cause the ALJ to have altered his RFC analysis,
or made different step four findings, if he had found that Plaintiff’s hip pain was
medically determinable. Therefore, the Court finds no reversible error in the ALJ’s step
two analysis.

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B.

Plaintiff’s Credibility
Plaintiff argues that the ALJ erred in finding that his subjective complaints were

not credible. (ECF No. 17 at 18.) Specifically, Plaintiff contends that the ALJ
mischaracterized evidence and failed to make specific findings regarding Plaintiff’s
credibility. (Id. at 19-21.)
An ALJ’s credibility determinations are generally treated as binding on review.
Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990). “Credibility determinations are
peculiarly the province of the finder of fact” and will not be overturned when supported
by substantial evidence. Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).
Therefore, the Court will usually defer to the ALJ on matters involving witness credibility.
Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). “However, ‘[f]indings as to
credibility should be closely and affirmatively linked to substantial evidence and not just
a conclusion in the guise of findings.’” Hackett, 395 F.3d at 1173 (quoting Huston v.
Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)).
Having reviewed the record, the Court finds that the ALJ did not incorrectly
characterize evidence or fail to link his credibility assessment to substantial evidence in
the record. In fact, the ALJ listed very specific reasons for discrediting Plaintiff’s
statements concerning the intensity, persistence, and limiting effects of his conditions:
(1) Plaintiff’s description of his daily activities did not comport with his self-described
limitations (R. 36); (2) Plaintiff’s treatment was conservative in nature compared with
the alleged intensity of his conditions (R. 36-37); (3) Plaintiff did not follow through with
recommended treatment (R. 37); and (4) the evidence showed that Plaintiff’s physical

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impairments existed at the same level of severity prior to the alleged onset date, yet
Plaintiff maintained regular employment (id.).
Significantly, the ALJ pointed out blatant inconsistencies between the record
evidence and Plaintiff’s testimony at the hearing. At the hearing, Plaintiff testified that
he did not know why he had lost his job, yet the record is replete with instances in which
Plaintiff told his medical providers that he lost his job when he was convicted of felony
theft. (R. 37.) Plaintiff also testified at the hearing that his medical impairments were
so severe that he could not possibly work, yet the medical record shows that Plaintiff
has been actively seeking employment and reporting to his medical providers that he
could perform certain jobs. (Id.) Plaintiff’s attempt to characterize these
inconsistencies as “minor at best” is preposterous. The ALJ was permitted to rely on
these blatant inconsistencies with regard to significant issues when determining
whether to credit Plaintiff’s subjective complaints of pain. See Wall, 561 F.3d at 1070.
On this record, the Court has little difficulty concluding that the ALJ met his
burden of linking his credibility assessment with substantial evidence in the record.
Plaintiff has failed to show any reversible error with regard to how the ALJ weighed
Plaintiff’s testimony.
C.

Weight of Medical Opinions
Plaintiff argues that the ALJ erred when weighing medical opinions used to

formulate his RFC. (ECF No. 17 at 15-16.) Specifically, Plaintiff contends that the ALJ
ignored medical evidence in the record that is contrary to the RFC, and that he failed to
properly defer to opinions from treating physicians. (Id.)

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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). Plaintiff contends that the ALJ should have given greater weight to the
restrictions imposed by Drs. Wright and Ingram, based on the fact that they were
treating physicians who had access to his entire VA medical file. (ECF No. 17 at 17.)
However, the record shows that Drs. Wright and Inman did not regularly treat Plaintiff’s
medical conditions; rather, they examined him once for purposes of his disability claim
with the Veteran’s Administration. (R. 360-65.) Notes from each of these doctors
specifically state that their evaluations are solely for purposes of the disability process,
and that Plaintiff’s primary treating physician is Dr. Stephanie Knudson. (R. 360.)
Thus, the ALJ did not err in refusing to evaluate the opinions of Drs. Wright and Inman
as those of treating physicians. See Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir.
2003) (“A physician’s opinion is therefore not entitled to controlling weight on the basis
of a fleeting relationship, or merely because the claimant designates the physician as
her treating source.”).
Plaintiff also argues that the ALJ improperly ignored Dr. Wright’s and Dr. Inman’s
opinions that Plaintiff was “limited to sedentary work”, needed “opportunity to stretch his
back”, and could lift no more than 10 pounds. (ECF No. 17 at 16 (citing R. 365).)
Because Drs. Wright and Inman were not treating physicians, the ALJ was not required
to give these opinions controlling weight. However, he was required to consider them,
as with all medical opinions. Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004)
(“An ALJ must evaluate every medical opinion in the record.”).
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The record shows that the ALJ considered Dr. Wright’s and Dr. Inman’s opinions
and gave good reasons for giving such opinions little weight. (R. 38.) Specifically, the
ALJ noted that their residual functional assessments were inconsistent with their
examination findings, and also “apparently relied quite heavily on the subjective report
of symptoms and limitations provided by the claimant, and seemed to uncritically accept
as true most, if not all, of what the claimant reported.” (Id.) There is substantial
evidence to support each of these bases for discounting the opinions. Dr. Wright’s
examination showed that Plaintiff has full strength in all muscle groups, had full range of
motion in the spine, and did not have any scoliosis, spasm, tenderness, or trigger
points, despite his spinal films confirming degenerative disc disease in the
lumbarthoracic and sacroiliac joints. (R. 363-64.) Dr. Inman’s examination showed full
strength in the upper and lower extremities, normal reflexes and sensation, and a
negative bilateral straight leg raise. (R. 357.) The only evidence which appears to
support the ten pound limitation on lifting is Plaintiff’s own statement that he cannot lift
more than ten pounds. (Id.) Given the prior discussion regarding Plaintiff’s credibility,
the Court finds that there is substantial evidence in the record to support the ALJ’s
weighing of the medical opinions of Drs. Wright and Inman.
Accordingly, the Court finds that the ALJ did not err in his assessment of the
medical evidence in the record. The Court further finds that Plaintiff has failed to show
any error in the ALJ’s RFC analysis.
D.

Step Four
Plaintiff argues that the ALJ erred at step four by failing to provide specific

findings showing that Plaintiff could return to the physical and mental demands of his
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past work. (ECF No. 17 at 22.)
Social Security Ruling 82-62 requires that the ALJ make findings regarding (1)
the claimant’s RFC, (2) the physical and mental demands of prior jobs or occupations,
and (3) the ability of the claimant to return to the past occupation given his RFC. Henrie
v. U.S. Dep’t of Health & Human Servs., 13 F.3d 359, 361 (10th Cir. 1993); Social
Security Ruling 82-62, 1982 WL 31386, at *4. The ALJ’s findings as to the physical and
mental demands of a prior job need not be specific to the particular position the
claimant previously held; rather, these findings may be made as to the position or
occupation in general. See Purcella v. Colvin, 2013 WL 3773841, *11 (D. Kan. July 17,
2013).
In this case, at step four, the ALJ found that Plaintiff could perform his past
relevant work as a user support analyst because “[t]his work does not require the
performance of work-related activities precluded by the claimant’s residual functional
capacity.” (R. 39.) This finding was based upon the vocational expert’s testimony at
the hearing that Plaintiff’s prior relevant work was classified as a sedentary, skilled
position. (R. 81-85.) The vocational expert also testified that someone with Plaintiff’s
RFC could perform the position of a user support analyst. (R. 84-85.)
The ALJ was permitted to rely on the vocational expert’s testimony to make his
step four finding that Plaintiff could perform his past relevant work. See 20 C.F.R.
§ 404.1560(b)(2) (vocational expert may offer evidence concerning demands of
claimant’s past relevant work). As such, the Court finds that the ALJ obtained enough
information to determine whether Plaintiff could return to his prior relevant work as a
user support analyst. See Wells, 727 F.3d at 1075 (the ALJ’s duty to make specific
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factual findings is dependent on the facts of each case).
The Court notes that Plaintiff was, at all relevant times, considered a person of
advanced age. See 20 C.F.R. § 404.1563(e). Had the ALJ found that Plaintiff could
not return to his prior relevant work and proceeded to step five of the sequential
analysis, the Plaintiff’s age would have been a significant factor in determining whether
Plaintiff could perform other jobs in the national economy, as there are restrictions on
how much an older claimant can be expected to learn new skills. See 20 C.F.R.
§ 404.1563(e). However, the ALJ’s analysis in this case ended at step four, with his
finding that the Plaintiff could still perform his prior relevant work. Because the ALJ did
not need to consider transferability of skills, the Plaintiff’s advanced age was not a
relevant factor to the analysis. See Leston v. Shalala, 13 F.3d 405 (10th Cir. 1993)
(“The regulations make abundantly clear that vocational factors such as age and
transferable skills do not come into play unless and until it is determined that the
claimant cannot do past relevant work.”); 20 C.F.R. § 404.1560(b)(3) (“If we find that
you have the residual functional capacity to do your past relevant work, we will
determine that you can still do your past work and are not disabled. We will not
consider your vocational factors of age, education, and work experience or whether
your past relevant work exists in significant numbers in the national economy.”).
Therefore, the Court finds that Plaintiff has failed to show that the ALJ committed
any reversible error in his step four analysis.

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IV. CONCLUSION
For the reasons set forth above, the Commissioner’s denial of benefits is
AFFIRMED.
Dated this 1st day of July, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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