Vigil v. Colvin
MEMORANDUM OPINION AND ORDER DISMISSING CASE with each party to bear his own fees and costs, by Magistrate Judge Craig B. Shaffer on 09/16/14, and Affirming the Commissioner's Final Decision. Civil Case Terminated. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Craig B. Shaffer
Civil Action No. 13-cv-01896-CBS
KENNETH G. VIGIL,
CAROLYN W. COLVIN,
MEMORANDUM OPINION AND ORDER
Magistrate Judge Shaffer
This action comes before the court pursuant to Titles II and XVI of the Social
Security Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83(c) for review of the
Commissioner of Social Security’s final decision denying Plaintiff, Kenneth G. Vigil’s,
application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”). Pursuant to the Order of Reference dated March 6, 2014, this civil action was
referred to the Magistrate Judge “for all purposes” pursuant to the Pilot Program to
Implement the Direct Assignment of Civil Cases to Full Time Magistrate Judges and
Title 28 U.S.C. § 636(c). (See Doc. #22). The court has carefully considered the
Complaint (filed July 17, 2013) (doc #1), Defendant’s Answer (filed October 18, 2013)
(doc. #10), Plaintiff’s Opening Brief (filed December 2, 2013) (doc. #14), Defendant’s
Response Brief (filed February 18, 2014) (doc. #17), Plaintiff’s Reply Brief (filed March
3, 2014) (doc. 18), the entire case file, the administrative record, and applicable case
law. For the following reasons, I affirm the Commissioner’s decision.
On June 28, 2010, Kenneth Vigil filed an application for DIB under Title II of the
Act and an application for SSI under XVI of the Act. (See Record (Doc. #11-2) at 11;
(Doc. #11-5) at 6 of 17). Mr. Vigil has a Tenth Grade education and has tried without
success to obtain his GED. (See Record (Doc. #11-11) at 47 of 100). His professional
work experience consists exclusively of jobs involving manual labor, such as a
fiberglass maker, spot welder, brick maker, and hog farmer. (See Record (Doc. #11-2)
at 38 of 41). Plaintiff alleges he became disabled on July 28, 2006 at the age of 42 due
to injuries sustained to his left knee and ankle while at work. The claim was denied at
the initial determination stage on October 4, 2010, and Plaintiff requested a hearing.
(See Record (Doc. #11-2) at 11). Administrative Law Judge William Musseman (“ALJ”)
held a hearing on February 28, 2012, at which Plaintiff was represented by counsel and
testified that he could not work due to knee and back problems and poor stability, all of
which prevent him from standing longer than fifteen minutes or lifting more than twenty
Mr. Vigil further testified that he takes medication and has tried physical
therapy but nonetheless struggles with bending, lifting, and squatting. Finally, Plaintiff
testified that he suffers from depression and anxiety, is uncomfortable leaving his
house, and is easily distracted. Nora W. Dunne testified as a vocational expert (“VE”).
The ALJ posed three hypothetical scenarios to the VE. First, he questioned whether
jobs exist for a person of Plaintiff’s age with Plaintiff’s education, who is limited to an
exertional level in a full range of light; with only occasional bending, squatting, and
kneeling; who cannot use ladders or scaffolds; who can only occasionally use foot or leg
controls; who cannot perform complex tasks, defined as specific vocational preparation
“svp” 2 or less; and who cannot deal with the general public. (See Record (Doc. #11-2)
at 39 of 41). The VE testified that an individual with those limitations could not perform
the work involved in Plaintiff’s previous jobs, but that jobs compatible with such
limitations exist in the national economy. See id. The VE listed housekeeper, retail
marker, and poultry boner as examples. See id. The ALJ posed a second hypothetical
in which he changed the requirement of light to that of sedentary and added a sit/stand
option. See id. at 40 of 41. In the third hypothetical he added a limitation that the
person would be off task at least 75 percent of the normal workday. See id. The VE
testified that no jobs exist in the national economy that would be compatible with the
limitations described in either hypothetical two or three. See id. The ALJ issued his
written decision on March 9, 2012, concluding that Mr. Vigil was not disabled.
Plaintiff requested review of the ALJ’s decision, which the Appeals Council
denied on May 22, 2013. (Record (Doc. #11-2) at 2). The decision of the ALJ then
became the final decision of the Commissioner.
20 C.F.R. § 404.981; Nelson v.
Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff filed this
action on July 17, 2013. The court has jurisdiction to review the final decision of the
Commissioner. 42 U.S.C. § 405(g).
STANDARD OF REVIEW
In reviewing the Commissioner's final decision, the court is limited to determining
whether the decision adheres to applicable legal standards and is supported by
substantial evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632
(10th Cir. 1996) (citation omitted); Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir.
2003). The court may not reverse an ALJ simply because he may have reached a
different result based on the record; the question instead is whether there is substantial
evidence showing that the ALJ was justified in his decision. See Ellison v. Sullivan, 929
F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is more than a mere scintilla and
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal citation
omitted). Moreover, “[e]vidence 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) (internal citation omitted).
The court will not “reweigh the
evidence or retry the case,” but must “meticulously examine the record as a whole,
including anything that may undercut or detract from the ALJ's findings in order to
determine if the substantiality test has been met.” Flaherty, 515 F.3d at 1070 (internal
citation omitted). Nevertheless, “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) (internal citation omitted).
Mr. Vigil’s Challenge to ALJ’s Decision
An individual is eligible for DIB benefits under the Act if he is insured, has not
attained retirement age, has filed an application for DIB, and is under a disability as
defined in the Act. 42 U.S.C. §§ 416(i), 423(a)(1). Supplemental Security Income is
available to an individual who is financially eligible, files an application for SSI, and is
disabled as defined in the Act. 42 U.S.C. § 1382. An individual is determined to be
under a disability only if his “physical or mental impairment or impairments are of such
severity that [he] is not only unable to do [his] previous work but cannot, considering
[his] age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy….” 42 U.S.C. §§ 423(d)(2)(A);
The Commissioner has developed a five-step evaluation process for determining
whether a claimant is disabled under the Act. See Williams v. Bowen, 844 F.2d 748,
750-52 (10th Cir. 1988) (describing the five steps in detail). “If a determination can be
made at any of the steps that a claimant is or is not disabled, evaluation under a
subsequent step is not necessary.” Id. at 750. At step four of the evaluation process,
the ALJ must determine a claimant's Residual Functional Capacity (RFC) and compare
the RFC to the claimant’s past relevant work. The RFC is what a claimant is still
“functionally capable of doing on a regular and continuing basis, despite his
impairments: the claimant's maximum sustained work capability.” Williams, 844 F.2d at
“The claimant bears the burden of proof through step four of the analysis.”
Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).
At step five, the burden shifts to the Commissioner to show that a claimant can
perform work that exists in the national economy, taking into account the claimant’s
RFC, age, education, and work experience. Neilson, 992 F.2d at 1120.
. . . A claimant’s RFC to do work is what the claimant is still functionally
capable of doing on a regular and continuing basis, despite his
impairments: the claimant’s maximum sustained work capability. The
decision maker first determines the type of work, based on physical
exertion (strength) requirements, that the claimant has the RFC to
perform. In this context, work existing in the economy is classified as
sedentary, light, medium, heavy, and very heavy. To determine the
claimant’s “RFC category,” the decision maker assesses a claimant’s
physical abilities and, consequently, takes into account the claimant’s
exertional limitations (i.e., limitations in meeting the strength requirements
of work). . . .
If a conclusion of “not disabled” results, this means that a significant
number of jobs exist in the national economy for which the claimant is still
exertionally capable of performing. However, . . . [t]he decision maker
must then consider all relevant facts to determine whether claimant’s work
capability is further diminished in terms of jobs contraindicated by
Nonexertional limitations may include or stem from sensory
impairments; epilepsy; mental impairments, such as the inability to
understand, to carry out and remember instructions, and to respond
appropriately in a work setting; postural and manipulative disabilities;
psychiatric disorders; chronic alcoholism; drug dependence; dizziness;
Williams, 844 F.2d at 751-52.
The ALJ first determined that Plaintiff was insured for disability through
September 30, 2010.
Next, following the five-step evaluation process, the ALJ
determined that Mr. Vigil: (1) had not engaged in substantial gainful activity since July 8,
2006; (2) has severe impairments of “degenerative changes of the lumbar spine, status
post-left knee anterior cruciate ligament repair, obesity, major depressive disorder, and
generalized anxiety disorder”; and (3) does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments
in Title 20, Chapter III, Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526). At step four, the ALJ found that Plaintiff has the ability to perform
light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), cannot perform past
relevant work, but, in accordance with step five, is capable of making a successful
adjustment to other work in the national economy. (See Record (Doc. #11-2) at 11-21).
Mr. Vigil objects to the ALJ’s decision on four grounds: (1) the ALJ failed to
support his RFC finding with substantial evidence in the record; (2) the ALJ failed to
adequately evaluate and weigh the opinions of the treating, examining, and nonexamining physicians; (3) the ALJ failed to adequately develop the record on the issues
of disability and restrictions; and (4) the ALJ failed to properly assess the credibility of
Plaintiff’s testimony. (See doc. #1 at 2).
ALJ’s Assessment of Plaintiff’s Physical Impairments
The ALJ found that Mr. Vigil has an RFC to perform light work, except that he
“can only occasionally bend, squat, and kneel; is unable to climb ropes, ladders, or
scaffolds; can occasionally operate foot or leg controls; is unable to perform complex
tasks, such that he is limited to jobs with svp of 1 or 2; and cannot deal with the general
public.” (See Record (doc. #11-2) at 11-21). RFC determinations are for the ALJ to
make “based on the entire case record, including the objective medical findings and the
credibility of the claimant’s subjective complaints.” Poppa v. Astrue, 569 F.3d 1167,
1170-71 (10th Cir. 2009). See also 20 C.F.R. § 416.946 (providing ALJ is responsible
for assessing residual functional capacity).
In reaching his RFC finding, the ALJ
summarized the exam results for Mr. Vigil’s left knee and lumbar spine, reviewed the
treatment for his knee and back pain, and weighed the opinions of several physicians.
Mr. Vigil objects that the ALJ’s RFC finding is not supported in the record and that the
ALJ imposed his interpretation of the medical data over that of consultative examiner
Dr. Adam Summerlin.
ALJ’s RFC Finding as to Plaintiff’s Physical Impairments
Plaintiff injured his left knee in July 2006 while at work (See Record (Doc. #11-7)
at 20 of 77), but ceased working in December 2006 for reasons unrelated to his health.
(See Record (Doc. #11-6) at 15 of 57). Initial examinations following the injury showed
a left-sided limp and decreased strength and range of motion with no laxity. (See
Record (Doc. #11-7) at 8, 9, 64, 65 of 77). Within a month, Plaintiff had recovered full
range of motion, was carrying up to twenty pounds, pushing and pulling 100 pounds,
was working twelve-hour shifts, and “doing a lot of walking.” (Record (Doc. #11-7) at 4,
5, 6, 63 of 77; (Doc. #11-10) at 6 of 90). He was restricted to no crawling, kneeling
squatting, or climbing (see Record (Doc. #11-7) at 63 of 77), though these restrictions
were reduced by September 21, 2006. Id. at 69 of 77. October 2006 exams revealed a
normal low back and left leg and no evidence of low back radiculopathy or large fiber
peripheral neuropathy. (See Record (Doc. #11-7) at 25-26 of 77). Plaintiff continued to
seek routine care for his knee and lower back during early 2007, and was restricted to
carrying no more than twenty pounds. (See Record (Doc. #11-7) at 36-37, 38, 40-41,
42, 43-44, 45, 48 of 77).
In February 2007, x-rays of Plaintiff’s left ankle showed an old toe fracture and a
heel spur (See Record (Doc. #11-7) at 51 of 77), and an MRI of his left knee showed an
anterior cruciate ligament (ACL) tear.1 See id. at 50 of 77. Orthopedic surgeon Ronald
Royce, D.O. surgically repaired the tear on May 17, 2007. (See Record (Doc. #11-8) at
6-8 of 17).
Plaintiff was then prescribed physical therapy and medications.
Record (Doc. #11-9) at 46, 2-20 of 47; (Doc. #11-10) at 10-11, 13-16, 81-82 of 90). In
The ALJ found that Plaintiff had “not sought any significant ongoing treatment for his left ankle and foot
pain, [and] did [not] allege it limited his ability to perform basic work activities,” therefore the ALJ find it
was a non-severe impairment. (Record (Doc. #11-2) at 14 of 41).
the several months following Plaintiff’s surgery, his physical therapists noted that he had
progressed well, no longer needed a crutch, and had some limitations with range of
motion that should improve with continued therapy. (Record (Doc. #11-7) at 54 of 77;
(Doc. #11-9) at 2, 3, 20 of 47). Plaintiff was incarcerated in the fall of 2007 and did not
resume treatment for his knee until 2010. (See Record (Doc. #11-9) at 30 of 47).
Plaintiff saw Dr. Summerlin in August 2010, shortly after he submitted his DBI
and SSI claims.
Dr. Summerlin observed that Plaintiff limped, had some muscle
spasms in his back, mild swelling in his left ankle possibly caused by joint fluid, and
some decreased sensation in his left calf, but walked without an assistive device,
moved on and off the examination table without difficulty, and tested negative for nerve
root irritation in his lower back.
reflexes, and no atrophy.
Plaintiff exhibited full strength, intact deep tendon
(See Record (Doc. #11-9) at 30-33 of 47). An x-ray of
Plaintiff’s left knee showed some mild osteoarthritis. See id. at 35 of 47. A subsequent
x-ray of Plaintiff’s lower back showed moderate degenerative changes with mild
See id. at 40 of 47.
Dr. Summerlin opined that Plaintiff’s physical
impairments prevented him from lifting more than twenty pounds, limited his ability to
stoop, crouch, kneel, and crawl, and restricted him from standing or walking more than
four hours a day. (See Record (Doc. #11-9) at 32-33 of 47).
In December 2010, Plaintiff began seeing providers at Southern Colorado Family
Medicine (“SCFM”) following a visit to the facility’s emergency room precipitated by
kidney stones. (See Record (Doc. #11-10) at 34-37 of 90). During these visits, Plaintiff
demonstrated reduced range of motion in his knee, but was observed as having a
normal gait, normal stability, normal lower extremities, no crepitus, and no pain during
the examination. (See Record (Doc. #11-10) at 27-33 of 90.) One provider noted that
Plaintiff had “not…seen a physician on a regular basis for the past several years and is
applying for disability.” (Record (Doc. #11-10) at 27 of 90). Another provider informed
Plaintiff that he would not “do lawyer paperwork” for disability. (Record (Doc. #11-10) at
33 of 90). A January 2011 MRI of Plaintiff’s low back showed no evidence of spinal
stenosis. Nonetheless, later that month Plaintiff complained to Lee Fonseca, a nurse
practitioner at Parkview Medical Center, that he could not work due to back pain. Mr.
Fonseca observed that Plaintiff had slightly diminished low back mobility and some
tenderness, but had retained a normal gait and, again, tested negative for nerve root
irritation in his lower back. (See Record (Doc. #11-10) at 2 of 90). Mr. Fonseca refused
to sign a disability form on the basis that Plaintiff “has absolutely no evidence of
clinically significant central or neural foraminal stenosis, his nuero[logical] exam is
completely stable.” (Record (Doc. #11-10) at 3 of 90). He recommended that Plaintiff
lose weight, stop smoking, and take anti-inflammatory medication, and instructed
Plaintiff that a follow-up appointment was unnecessary unless his condition worsened.2
In the following months, Plaintiff saw several other physicians. In February 2011,
Elaine Russin, MD at SCFM observed that Plaintiff appeared comfortable, favored his
left leg slightly when walking, and had some tenderness and diminished reflexes of the
legs, but had normal strength, normal tone, and normal stability. Dr. Russin prescribed
medication and recommended water therapy and stretching. (See Record (Doc. #11
Plaintiff argues that Mr. Fonseca is not an acceptable medical source (see 20 C.F.R. § 404.1513(a)),
and his opinion should not qualify for greater weight than that of Dr. Summerlin. (See Doc. #18 at 5).
However, Mr. Fonseca’s findings were but only one source of credible evidence the ALJ considered in
determining that Dr. Summerlin’s opinion was not consistent with Plaintiff’s medical history.
10) at 23-26 of 90). In April 2011, Jeremy Brown, MD at SCFM observed that Plaintiff
had some decreased range of motion and tenderness of his back, full passive range of
motion and decreased active range of motion of his left leg, and normal leg stability,
strength, and tone. Dr. Brown recommended stretches for muscle spasms, osteopathic
manipulative therapy, and weight loss. (See Record (Doc. #11-11) at 90-92 of 100).
Plaintiff received steroid injections in his back and knee during this time. (See Record
(Doc. #11-10) at 18, 60-61 of 90; (Doc. #11-11) at 36, 87-89 of 100).
Plaintiff returned to SCFM in June 2011 after falling; no changes in Plaintiff’s
knee or back were observed. (See Record (Doc. #11-11) at 38, 84-86 of 100). The
following month, Plaintiff visited Dr. Brown requesting a surgical evaluation for his knee.
The subsequent MRI showed evidence of the ACL surgery, intact tendons, minimal
effusion, and a normal meniscus. (See Record (Doc. #11-11) at 35 of 100). In August
2011, Plaintiff told an SCFM provider that a back injection had offered only temporary
relief, but denied any radiating pain or altered sensation, and the provider noted that an
MRI of Plaintiff’s lower back was normal. Plaintiff appeared comfortable at that time
with full extremity strength and displayed no signs of radiculopathy.
recommended water therapy and medication. (See Record (Doc. #11-11) at 78-80 of
100). In September 2011, Dr. Brown noted some crepitus of the knee and decreased
range of motion in Plaintiff’s back, but observed normal lower extremity range of motion,
stability, strength, and muscle tone.
He recommended osteopathic manipulative
therapy and another left knee MRI, which showed an intact graft from the ACL surgery
and a small amount of joint fluid. (See Record (Doc. #11-11) at 29, 75-77 of 100). One
month later, a different SCFM physician observed that Plaintiff had some crepitus in his
left knee, increased laxity with inward pressure, decreased muscle tone of some knee
muscles, and back spasms with reduced range of motion, but appeared comfortable.
This physician recommended continued conservative treatment and that Plaintiff quit
smoking. (See Record (Doc. #11-11) 72-74 of 100). Plaintiff was observed as having a
normal gait, strength, tone, and stability in November 2011 and January 2012. (See
Record (Doc. #11-11) at 65-71, 96-98 of 100).
The ALJ also noted that Plaintiff was experiencing very little pain prior to his
incarceration in 2008, and had met many of his physical therapy goals. Plaintiff did not
receive treatment while in prison, despite the availability of such services free of charge,
and began seeing providers regularly in December 2010 after his release.3
After reviewing the record, the ALJ determined that Plaintiff was limited in his
ability to lift, carry, or engage in infrequent bending, kneeling, or squatting, but that the
limitations on walking and standing were not supported.
The ALJ's summary of
Plaintiff’s medical records and treatment demonstrates his consideration of the relevant
medical evidence (see Record (Doc. #11-2) at 5-8 of 41).
Weight Attributed to Dr. Summerlin’s Opinion
An ALJ may reject medical opinions in the record and reach his own conclusion
as to a claimant's RFC, so long as that conclusion is based on substantial evidence.
See Boss v. Barnhart, 67 Fed. Appx. 539, 542 (10th Cir. 2003); Eggleston v. Bowen,
851 F.2d 1244, 1247 (10th Cir. 1988) (ALJ may resolve conflicting medical evidence);
cf. Moon v. Barnhart, 159 F. Appx. 20, 22–23 (10th Cir. 2005) (finding an RFC
“While [Plaintiff] has sought significantly more treatment in 2011, it is unclear why he suddenly needs
this intensive level of treatment when he was previously without treatment of any kind for almost 3 years
and his objective studies reveal no significant changes in his conditions.” (Record (Doc. #11-2) at 7-18 of
assessment was not based on substantial evidence where ALJ adopted an opinion that
tempered two physicians’ medical opinions without explaining what credible evidence
he used to reject the doctors’ opinions or what evidence supported his RFC).
evaluating medical opinions, the ALJ should consider 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.
20 C.F.R. § 404.1527; see also Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.
Dr. Summerlin was not a treating physician and therefore his opinion was not
entitled to more weight. See 20 C.F.R. § 404.1527(c)(2) (“Generally, we give more
weight to opinions from your treating sources[.]”).
Instead, the ALJ considered Dr.
Summerlin to be a consultative examiner because he saw Plaintiff once in August 2010.
(See Record (Doc. #11-2) at 19 of 41); (Doc. #11-9 at 30 of 47). The ALJ noted the
doctor’s observations that Plaintiff demonstrated normal range of motion of the knee,
normal gait, and normal strength and tone, as well as his findings of some mild
osteoarthritis in Plaintiff’s left knee and moderate degenerative changes in Plaintiff’s
lower back with mild scoliosis, as evidenced by x-rays. (See Record (Doc. #11-2) at 1617, 19 of 41; (Doc. #11-9) at 31-33 of 47). The ALJ then weighed Dr. Summerlin’s
diagnosis of lumbrosacral radiculopathy and osteoarthritis of the left knee against the
opinions, diagnoses, and recommendations of the other physicians and providers who
had treated Plaintiff.
See 20 C.F.R. § 404.1527(c) (the ALJ must consider every
medical opinion, regardless of its source). Dr. Summerlin is the only provider of at least
seven between August 2006 and January 2012 who diagnosed Plaintiff with
radiculopathy. Indeed, Plaintiff’s October 2006 exams specifically showed a normal low
back and left leg with no evidence of low back radiculopathy or large fiber peripheral
neuropathy; and in August 2011, an SCFM provider observed that Plaintiff had a normal
back with no signs of radiculopathy following the administration of an MRI. While the
range of motion in Plaintiff’s knee and back fluctuated during his approximately threeyear history of medical treatment and he developed some crepitus and joint fluid, he
maintained normal gait, strength, and tone, remained free from nerve root irritation and
stenosis, and was routinely described as “comfortable” by providers.
Contrary to Plaintiff’s argument, the ALJ did not substitute his judgment for that of
Dr. Summerlin. Nor did the ALJ neglect to consider Dr. Summerlin’s abnormal findings.
The ALJ considered the record as a whole and found that Dr. Summerlin’s opinion was
inconsistent with Plaintiff’s medical history and treatment. The ALJ additionally found
that the doctor’s failure to “reconcile the apparent discrepancy between [ ] essentially
normal findings and his opinion” detracted from the persuasiveness of his opinion.
(Record (Doc. #11-2) at 19 of 41). See White v. Barnhart, 287 F.3d 903, 907-08 (10th
Cir. 2001) (court’s rejection of a treating physician’s opinion was appropriate where
limited examinations did not support a restrictive functional assessment, the opinion
was inconsistent with the findings of consulting physicians, and the treatment
relationship was relatively brief); see also Oldham, 509 F.3d at 1258 (holding ALJ’s
citation to “contrary, well-supported medical evidence” in the record satisfies the
requirement that the ALJ’s decision be “’sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the [medical opinion] and the
reasons for that weight.’”) (citation omitted).
The ALJ found that Mr. Vigil has severe mental impairments of major depressive
disorder and generalized anxiety disorder. (See Record (Doc. #11-2) at 13 of 41). The
ALJ further found that Plaintiff has moderate difficulties in social functioning, moderate
difficulties with regard to concentration, persistence or pace, and no restriction in
activities of daily living. See id. at 14 of 41. To reach these conclusions, the ALJ
summarized the results of Plaintiff’s mental status exams, reviewed the treatment
Plaintiff received for his depression and anxiety, and weighed the opinions of
psychologist Carlos Rodriguez, PhD and psychoanalyst Mark Jankelow.
attributed little weight to Dr. Rodriguez’s opinion that Plaintiff could not work for twelve
months due to his mental and physical impairments.4 The ALJ gave no weight to Mr.
Jankelow’s opinion that Plaintiff had “marked and extreme limitations in every area of
mental and emotional functioning,” would not be able to participate in full-time work, and
is incapable of staying on task for 75 percent of the time. (See Record (Doc. #11-2) at
19 of 41); (Doc. #11-11) at 93-95 of 100). Mr. Vigil objects that the ALJ should have
On July 18, 2011, Plaintiff saw Dr. Rodriguez, who completed a standardized Colorado Department of
Human Services “Med-9 Form” stating that Plaintiff was unable to work for twelve consecutive months
due to depression, anxiety, and complications with his left heel. (See Record (Doc. #11-10) at 75 of 90).
Dr. Rodriguez was the only acceptable medical source who saw Plaintiff for mental health complaints.
See 20 C.F.R. § 404.1513 (defining medical source). The ALJ attributed little weight to Dr. Rodriguez’s
opinion, however, finding that it was not supported by explanation, exam findings, treatment history, or
any other evidence. See Chapo v. Astrue, 682 F.3d 1285, 1289 (10th Cir. 2012) (holding the ALJ
“properly gave no weight to the ‘Med-9 Form,’ which lacked any functional findings.”). The ALJ further
noted that Dr. Rodriguez saw Mr. Vigil only once, and therefore lacked the relationship that would have
provided insight into Plaintiff’s ability to function over a twelve-month period. Plaintiff does not object to
the ALJ’s designation of little weight to Dr. Rodriguez’s opinion (see Doc. #1 and #14), therefore the court
will consider the designation undisputed.
granted Mr. Jankelow’s uncontroverted medical opinion more weight, and that the ALJ’s
rejection of Mr. Jankelow’s restrictions resulted in an inaccurate assessment of the
severity of Plaintiff’s mental impairments.
Mr. Vigil further objects that the ALJ
improperly found that Plaintiff has no limitations in dealing with coworkers or
supervisors, and did not account for Plaintiff’s concentration and memory deficits in his
instructions to the VE.
Plaintiff did not allege a mental impairment on his application for benefits. (See
Record (Doc. #11-6) at 15, 23, 42 of 57). He first sought treatment for anxiety and
depression in September 2011 following his release from prison. (See Record (Doc.
#11-11) at 57, 59 of 100). In October 2011, Plaintiff saw Mr. Jankelow, who observed
that Plaintiff appeared to have a dysthemic mood and affect, fair to poor insight,
moderate stress level, and below average intellect, though was alert and oriented,
maintained appropriate eye contact, and had normal speech, thought processes, and
Mr. Jankelow diagnosed Plaintiff with major depressive disorder,
generalized anxiety disorder, and post-traumatic stress disorder, and assessed a Global
Assessment of Functioning (“GAF”) score of 58. (See Record (Doc. #11-11) at 45-50 of
100). In November 2011, Plaintiff returned to Mr. Jankelow who noted that Plaintiff had
a lower stress level and otherwise appeared unchanged. (See Record (Doc. #11-11) at
40-43 of 100). Following a final visit in January 2012, Mr. Jankelow opined that Plaintiff
had marked and extreme mental limitations in every area of work-related mental
functioning. (See Record (Doc. #11-11) at 93-95 of 100).
Plaintiff also underwent several mental status exams in 2011. One exam from
September 2011 indicated no problems with Plaintiff’s recent or remote memory (See
Record (Doc. #11-11) at 62 of 100); while Mr. Jankelow determined in October 2011
that Plaintiff could recall only one out of three items on delayed recall, was unable to
spell “world” in reverse, and could not name the current or former President of the
United States. (See Record (Doc. #11-11) at 48 of 100). However, Plaintiff could spell
“world” forward and remember three out of three items on immediate recall. See id.
Furthermore, all the exams showed that Plaintiff had normal thought processes and
normal thought content. (See id.; Record (Doc. #11-11) at 41, 47, 62 of 100). Finally,
Plaintiff’s GAF scores ranged from 58-61, indicating moderate to mild symptoms. (See
Record (Doc. #11-2) at 18 of 41 (citing American Psychiatric Association, Diagnostic &
Statistical Manual of Mental Disorders 32 (4th ed. 1994)); (Doc. #11-11) at 41, 49, 63 of
Weight Attributed to Mr. Jankelow’s Opinion
The ALJ did not err in attributing no weight to Mr. Jankelow’s opinion. First, he
found that Mr. Jankelow is not an acceptable medical source because his is not a
Second, Mr. Jankelow did not have the treatment history with Plaintiff
necessary for him to predict Plaintiff’s twelve-month trajectory because he treated
Plaintiff on only a few occasions. See 20 C.F.R. § 404.1527(d) (explaining how agency
weighs medical source opinions). Third, the ALJ found that Mr. Jankelow’s opinion of
marked and extreme impairments suggested that Plaintiff suffers from limitations that
would require repeated if not chronic psychiatric hospitalization, yet Plaintiff had never
been hospitalized in a psychiatric facility and had no previous treatment of a psychiatric
nature. (See Record (Doc. #11-11) at 46 of 100). Indeed, while initial exams showed
The ALJ may consider a claimant’s GAF score as evidence along with the rest of the record. See Petree
v. Astrue, 260 Fed. Appx. 33, 42 (10th Cir. 2007).
that Plaintiff had a “depressed mood and blunt affect,” his last mental status exam found
his mood to be “euphoric”6 and his affect unremarkable. (Record (Doc. #11-11) at 41,
62 of 100).
The ALJ found these results to indicate that Plaintiff’s medications and
therapy “have been effective in alleviating his depression and anxiety.” (Record (Doc.
#11-2) at 18 of 41. Finally, the ALJ determined that Mr. Jankelow’s opinion was not
supported by the “fairly benign mental status exam findings” and Plaintiff’s “fairly routine
treatment history.” (Record (Doc. #11-2) at 20 of 41). Accordingly, the ALJ discussed
“specific, legitimate reasons” for his assessment of weight (Drapeau v. Massanari, 255
F.3d 1211, 1213 (10th Cir. 2001)) and, notwithstanding his finding that Mr. Jankelow
was not an acceptable medical source, he considered the 20 C.F.R. § 404.1527 factors
that apply to all medical opinions. See Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th
Plaintiff argues that Mr. Jankelow’s opinion is uncontroverted and should have
been given greater weight because “[n]o other source offered a conflicting opinion.”
(Doc. #18 at 7). Yet, the only other source to treat Plaintiff for mental health was Dr.
Rodriguez, who completed a one-page standardized form following his only visit with
Mr. Vigil appears to suggest that Mr. Jankelow’s opinion should receive
greater weight simply because there are no other professional findings. However, there
is no requirement in the social security regulations that the ALJ must arrive at or adopt
the same conclusion as at least one medical source opinion. McDonald v. Astrue, No.
10—cv—00871—CMA, 2011 WL 1398928, at *5 (D. Colo. April 13, 2011) (citing Billups
v. Barnhart, 322 F.Supp.2d 1220, 1227 (D. Kan. 2004) (noting no requirement that the
The ALJ noted that “euthymic” was likely the intended descriptor instead of “euphoric.” (See (Record 112) at 18).
RFC assessment be linked to a medical source opinion provided the assessment is
supported by substantial evidence in the record).7 The ALJ rejected Mr. Jankelow’s
opinion because he found it was not well-supported by “medically acceptable clinical
and laboratory diagnostic techniques” and not consistent with the other substantial
evidence. See 20 C.F.R. §§ 404.1508, 404.1527(c)(2). This satisfies the applicable
ALJ’s Instruction Regarding Plaintiff’s Social Restrictions and
Concentration and Memory Impairments
The ALJ determined that Plaintiff suffered moderate social limitations during his
assessment of whether Plaintiff’s mental impairments satisfied the “paragraph B” criteria
used to evaluate the severity of mental impairments at steps two and three of the
sequential evaluation process. The “paragraph B” criteria are: “[a]ctivities of daily living;
decompensation.” 20 C.F.R. pt. 404, subpt. P, app. 1, Listing 12.00C. The limitations
identified in the “paragraph B” criteria are not an RFC assessment. Beasley v. Colvin,
520 Fed. Appx. 748, 754 (10th Cir. 2013) (citing Social Security Ruling (“SSR”) 96-8P,
1996 WL 374184 (S.S.A.)). “Once an impairment is determined to be severe, it must be
reflected in the RFC.”
Id. (citing Hargis v. Sullivan, 945 F.2d 1482, 1488 (10th
The ALJ’s finding of moderate difficulties in social functioning in the
Plaintiff analogizes the uncontroverted opinion of Mr. Jankelow to the uncontroverted opinion of Dr.
Vega in Chapo v. Astrue, 682 F.3d 1285, 1290-91 (10th Cir. 2012). However, the ALJ in Chapo
dismissed Dr. Vega’s examining-source opinion with the sole explanation that the doctor had been in a
professional relationship with the claimant for “merely two months” at the time of the hearing. Id. at 1291.
In contrast, Mr. Jankelow is not an acceptable medical source. Moreover, the ALJ provided many
reasons for attributing little weight to his opinion, including that the objective medical evidence did not
support the findings of marked and extreme limitations in every area of mental and emotional functioning.
The ALJ determined Plaintiff exhibited only moderate difficulties with regard to social functioning
because he “is able to go shopping, use public transportation, and did not endorse any problems getting
“paragraph B” criteria did not necessarily dictate a work-related functional limitation for
the purposes of the RFC assessment.
Furthermore, the ALJ considered the
findings of Plaintiff’s mental status exams, which showed that Plaintiff maintains normal
eye contact; is always cooperative, pleasant, and polite; is appropriate, alert, and
oriented; and has organized and logical thoughts. (See Record (Doc. #11-11) at p. 41
of 100). The ALJ found these results indicated that Plaintiff interacts well with certain
individuals, such as those with whom he has established a rapport and is familiar, and
his mental impairments should not impede his ability to interact with co-workers and
supervisors. (See Record (Doc. #11-2) at 18-19 of 41).
As with Plaintiff’s social functioning limitations, the ALJ determined that Plaintiff
exhibited moderate difficulty with regard to memory and concentration in the process of
evaluating the “paragraph B” criteria. Therefore the finding of moderate difficulty in
memory and concentration did not necessarily require reflection in the RFC. Indeed,
the ALJ found that Plaintiff “retain[ed] enough memory and concentration to perform at
least the simple tasks associated with unskilled labor,” based on Plaintiff’s own
representation that he paid attention fine and followed written and oral instructions
“good,” along with the evidence from Plaintiff’s medical reports. (Record (Doc. #11-2) at
18 of 41; (Doc. #11-6) at 28 of 57).
Moreover, the Social Security Administration
Program Operations Manual System (“POMS”) instructs that a claimant’s ability to
concentrate is “not critical” to performing unskilled work.9 POMS states that “[t]he basic
mental demands of competitive, remunerative, unskilled work include the abilities (on a
along with neighbors, friends, and family in his function report.” (See Record (Doc. #11-2) at 14 of 41;
(Doc. #11-6) at 25-28 of 57).
See Social Security Administration Program Operation Manual System § DI 25020.010(B)(3), available
at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425020010 (last visited September 9, 2014).
sustained basis) to: (1) understand, carry out, and remember simple instructions; (2)
make judgments that are commensurate with the functions of unskilled work, i.e., simple
work-related decisions; (3) respond appropriately to supervision, coworkers and work
situations; and (4) deal with changes in a routine worksetting.”
Id. at § DI
25020.010(A)(3)(a). A substantial loss of ability to meet these basic mental demands
“severely limits the potential occupational basis and thus, would justify a finding of
inability to perform other work even for persons with favorable age, education and work
experience.” Id. at § DI 25020.010(A)(3)(b). POMS does not define “substantial loss,”
but the court has no reason to find that moderate limitations in memory and
concentration necessarily qualifies as a complete inability to perform in the area.
Accordingly, the ALJ did not err by failing to instruct the VE on Plaintiff’s moderate
difficulties with regard to social functioning, memory, and concentration.
ALJ’s Assessment of Plaintiff’s Credibility
Plaintiff objected in the Complaint to the ALJ’s assessment of his credibility (doc.
#1 at 2), but failed thereafter to brief the argument. (See Doc. #14, 18). Nonetheless, I
will address the ALJ’s assessment below.
“A claimant's subjective allegation of pain is not sufficient in itself to establish
disability. Before the ALJ need even consider any subjective evidence of pain, the
claimant must first prove by objective medical evidence the existence of a painproducing impairment that could reasonably be expected to produce the alleged
disabling pain.” Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (citations
omitted). Plaintiff met the initial burden. He had an anterior ligament tear in his left
knee that was repaired by surgery in March 2007; exam findings showed some
limitations in Plaintiff’s ability to lift, carry, or engage in frequent bending, kneeling, or
squatting; and Plaintiff has been observed walking with a limp. Furthermore, Plaintiff is
The ALJ found that Plaintiff’s weight, while not in and of itself disabling,
significantly limits his ability to perform basic work activities when combined with his
other impairments. (See Record (Doc. #11-2) at 16 of 41).
The ALJ was required to consider all the relevant objective and subjective
evidence and “decide whether he believe[d] the claimant's assertions of severe pain,”
Luna v. Bowen, 834 F.2d 161, 163 (10th Cir. 1987). “Findings as to credibility should be
closely and affirmatively linked to substantial evidence....” Huston v. Bowen, 838 F.2d
1125, 1133 (10th Cir. 1988). “Credibility determinations are peculiarly the province of
the finder of fact, [however,] and we will not upset such determinations when supported
by substantial evidence.” Diaz v. Secretary of Health & Human Servs., 898 F.2d 774,
777 (10th Cir. 1990). The ALJ considered Plaintiff’s testimony that he could not work
due to knee and back problems; was unstable on his feet; takes medications and has
attended physical therapy; has difficulty bending, lifting, and squatting; can stand for
fifteen minutes; can lift twenty pounds; suffers from depression and anxiety and does
not like to leave his house; and struggles with concentration. (See Record (Doc. #11-2)
at 16 of 41). The ALJ then reviewed the medical evidence of and treatment received for
Plaintiff’s back and knee pain and the findings from Plaintiff’s mental status exams and
the treatment he received for depression and anxiety. (See Record (Doc. #11-2) at 1619 of 41).
He concluded that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms”; however, the statements
concerning the “intensity, persistence and limiting effects” of the symptoms were not
credible to the extent they were inconsistent with the RFC assessment. (Record (Doc.
#11-2) at 16 of 41). For example, a September 2010 x-ray of Plaintiff’s lumbar spine
“revealed moderate disc space narrowing at L4-5 and mild scoliosis.” Id. (citing Doc.
#11-9 at 40 of 47). A January 2011 MRI of Plaintiff’s lumbar spine “revealed mild
diffuse osteophytes mildly encroaching on the thecal sac and mild disc desiccation at
L4-5.” Id. (citing Doc. #11-10 at 39 of 90). An August 2011 MRI of Plaintiff’s left knee
“revealed intact cruciate ligament, medial meniscus, and medial collateral ligaments.”
Id. (citing Doc. #11-11 at 35 of 100). An MRI of Plaintiff’s knee taken one month later
“revealed an intact anterior cruciate ligament graft and a small amount of joint fluid.”
(Record (Doc. #11-2) at 17 of 41) (citing Doc. #11-11 at 29 of 100).
determined there was no objective medical evidence of current problems with the
ligaments or menisci in Plaintiff’s knee; and the objective evidence pertaining to
Plaintiff’s lumbar spine demonstrated “only moderate disc height loss at L4-5 and mild
diffuse osteophytes in the rest of the lumbar spine.” Id. The ALJ concluded that,
“[o]verall, these objective findings are far less extreme than the claimant’s allegations
would lead one to expect, and are significantly inconsistent with the claimant’s
The ALJ similarly found that the objective evidence did not support Plaintiff’s
allegations regarding nervousness, reluctance to leave his house, and a limited ability to
perform daily activities. The ALJ cited mental status exams that showed Plaintiff to
have normal eye contact and to always be cooperative, pleasant, and polite. (Record
(Doc. #11-2) at 18 of 41) (citing Doc. #11-11 at 41, 47, 62 of 100). He then determined
that Plaintiff’s testimony of limited daily activities could not be objectively verified with
any reasonable degree of certainty, and that even if Plaintiff’s activities were as limited
as he alleged, it was difficult to “attribute that degree of limitation to the claimant’s
medical condition, as opposed to other reasons, in view of the relatively weak medical
evidence…”10 The ALJ’s evaluation of Plaintiff’s subjective complaints is supported by
substantial evidence in the record.
The court is satisfied that the ALJ considered all relevant facts and that the
record contains substantial evidence from which the Commissioner could properly
conclude under the law and regulations that Mr. Vigil was not disabled within the
meaning of Titles II and XVI of the Social Security Act and therefore not eligible to
receive Disability Insurance Benefits or Supplemental Security Income benefits.
Accordingly, IT IS ORDERED that the Commissioner’s final decision is AFFIRMED and
this civil action is DISMISSED, with each party to bear his own fees and costs.
DATED at Denver, Colorado, this 16th day of September, 2014.
BY THE COURT:
___s/Craig B. Shaffer__________
United States Magistrate Judge
Though not addressed by the ALJ, the record includes notes taken during an initial psychiatric
appointment in October 2011 that Plaintiff had recently been mountain biking in an effort to increase his
exercise. (See Record (Doc. #11-11) at 45 of 100).
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