Robbins v. Colvin

Filing 15

ORDER Affirming ALJ's Decision Denying Social Security Benefits. The ALJ's denial of social security disability benefits is AFFIRMED. Each party shall bear its own costs and attorney fees. By Judge Christine M. Arguello on 02/12/2015. (athom, ) (Main Document 15 replaced on 2/13/2015) (athom, ). Modified on 2/13/2015 to replace document that has the correct signature date and to regenerate NEF (athom, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-02429-CMA
BRENDA ROBBINS,
Plaintiff,
v.
CAROLYN W.COLVIN, Acting Commissioner of Social Security,
Defendant.
ORDER AFFIRMING ALJ’S DECISION DENYING SOCIAL SECURITY BENEFITS
This matter is before the Court on review of the Commissioner’s decision to deny
Plaintiff Brenda Robbins (“Plaintiff”) application for social security disability benefits
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33. Jurisdiction is
proper under 42 U.S.C. § 405(g).
I. BACKGROUND
Plaintiff filed an application for disability benefits, alleging a disability onset date
of March 19, 2009. Plaintiff was born on May 4, 1973, and was 35 years old on the date
of her alleged disability onset. (AR at 8, 34.)1 After her initial application was denied,
Plaintiff requested a hearing, which was held on March 28, 2012, before an
Administrative Law Judge (“ALJ”). (AR at 8.)

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Citations to the Social Security Administrative Record, which is found at Doc. # 9, will be
to “AR” followed by the relevant page number.

Plaintiff testified that she has some college education and an accounting
certification, which she obtained in 2010 after attending courses for six months, twice
per week, for two hours a day. (AR at 35-36.) Previously, she delivered newspapers off
and on for several years. (AR at 36-37.) For about a year and a half, she worked at a
juvenile facility, where she supervised juveniles at night. She testified that she was
injured on the job twice, but did not receive worker’s compensation because her injuries
were considered preexisting. (AR at 37-38.) She did, however, collect unemployment
benefits, which required that she certify that she was ready, willing, and able to work
and look for employment. (AR at 50-51.)
Following that position, from May to October 2011, she delivered mail on a rural
route two days per week. She said that she stopped delivering mail because the job
was too physically demanding and that, although the route should have taken her six
hours to complete, it often took her ten hours. She left that position to work twice per
week, eight hours per day, at an insurance agency, a position she continued to hold at
the time of the hearing. (AR at 38-40.) She testified that, when the agency is busy, she
may work an additional day, but that she would not work full time because it would be
more than she could handle. (AR at 47-48.)
Plaintiff testified that when she is not working, she spends her time resting and
doing household chores, such as loading the dishwasher, washing laundry, going
grocery shopping, and cooking. She often gets help from her teenage daughters. She
stated that she has difficulty lifting items, but can lift a gallon of milk. (AR at 45.) She
bathes herself, but has a seat in the shower. (AR at 46.) She reported spending time

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with friends and her mother. (AR at 45.) She drives and can do so for up to a half an
hour. (AR at 53.)
In 1989, Plaintiff was in a motor vehicle accident and had ankle and femur
fixations that required multiple surgeries. In 2008, she had additional surgeries on her
ankles, following which, she has had to wear a brace on her right leg for most of the
day. (AR at 42-44.) Plaintiff stated that she has difficulty walking, particularly on
uneven terrain, and can walk approximately two to three blocks at a time. (AR at 44,
46.) Previously, she used a cane and a walker. (AR at 44.) She stated that she can
stand for ten to fifteen minutes, but has to alternate her legs due to back and hip pain.
(AR at 46-47.) Plaintiff testified that she has had right hip arthritis since 2002. She can
sit for approximately half an hour to an hour, and she has been so limited since 2009.
(AR at 52-53.) She has suffered from headaches since her accident in 1989 and was
diagnosed with occipital neuralgia, which is treated with Topamax. (AR at 52.) Plaintiff
stated that due to her chronic pain, she has to take a one-hour nap each day. (AR at
47.)
Plaintiff testified that since 2000, she has suffered from wrist pain due to carpal
tunnel syndrome, but that doctors told her that she would not benefit from surgery. (AR
at 43.) At times, she has had difficulty grasping small objects, such as buttons or
zippers, because her hands swell. (AR at 48.) She reported having difficulty reaching
overhead due to numbness and weakness. (AR at 49.) She testified that she can use a
computer for short periods of time, but has difficulty after about fifteen minutes and must
alternate typing with filing papers and doing stretching exercises. (AR at 49, 51.)

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Plaintiff testified that she takes Celexa, Percocet, Flexeril, Albuterol, and
Flonase. At the time of the hearing, she had been taking Ultram, Flonase, and
Topamax for five or six years and Albuterol for approximately twelve years. She
testified that her medications make her sleepy. (AR at 40-42.) She has had pain
injections in her shoulder, lower back, foot, and ankle. (AR at 48-49.) She stated that
on a scale of one to ten, she would rate her pain at a four or five on a good day, when
she’s taking her medications. (AR at 50.)
A vocational expert (“VE”) testified at the hearing. The ALJ posed a hypothetical
question to the VE that assumed an individual with the same age, education, and work
experience as Plaintiff and the residual functional capacity (“RFC”) ultimately assessed
by the ALJ. The VE testified that such a person could perform work as an address
clerk and micro film preparer. (AR at 56-58.)
On April 9, 2012, the ALJ issued an unfavorable decision, denying benefits. (AR
at 8-23.) The ALJ determined that Plaintiff met the insured status requirements of the
Social Security Act through September 30, 2014. In applying the five-step sequential
evaluation process outlined in 20 C.F.R. §§ 404.1520 and 416.920 to determine whether
Plaintiff was disabled, the ALJ determined that:
1. Plaintiff had not engaged in substantial gainful activity since her alleged onset
date of March 19, 2009 [Step 1];
2. Plaintiff had the following severe impairments: “headaches, fibromyalgia, low
back pain, osteoarthritis, carpal tunnel syndrome, asthma, neuropathy, foot
pain, anxiety disorder, and major depressive disorder” [Step 2];
3. Plaintiff did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 [Step 3];
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4. Plaintiff had the RFC “to perform work activities with the following limitations:
the claimant must avoid exposure to unprotected heights, open machinery,
and concentrated fumes, odors, and dust. The claimant must not climb
ladders or scaffolds. The claimant is able to lift and carry 10 pounds
frequently and 20 pounds occasionally. She is able to sit at least one hour at
a time and up to six hours in an eight-hour workday. The claimant is able to
stand and/or walk at least 15 minutes at one time and for a total of two hours
in an eight-hour workday. The claimant is able to occasionally stoop, kneel,
crouch, and operate left leg controls. The claimant is able to at least
frequently reach, handle, and finder. The claimant should avoid public
interaction. She is able to maintain the concentration, persistence, or pace
necessary to carry out, understand, and remember simple and routine, but
not complex instructions.” [Step 4]; and
5. Plaintiff was not able to perform her past relevant work, but “jobs exist in
significant numbers in the national economy, that the claimant can perform.”
[Step 5].
Plaintiff requested that the Appeals Council review this portion of the ALJ’s
decision, which it declined to do. (AR at 1-3.) On September 6, 2013, Plaintiff filed her
appeal to this Court of the Commissioner’s final decision. (Doc. # 1.) Plaintiff filed her
opening brief on May 19, 2014, and the Commissioner responded on June 12, 2014.
(Doc. ## 12, 13.)
II. STANDARD OF REVIEW
The Court reviews the ALJ’s decision to determine whether substantial evidence
in the record as a whole supports the factual findings and whether the correct legal
standards were applied. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. It requires more than a scintilla, but less than
a preponderance. Id. (quoting Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)).
Evidence is not substantial if it is overwhelmed by other evidence in the record. Grogan
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v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In so reviewing, the Court may
neither reweigh the evidence nor substitute its judgment for that of the agency. Salazar
v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006).
III. ANALYSIS
Plaintiff asserts that the ALJ’s decision should be reversed because the ALJ’s
(1) summary of the evidence was inaccurate and not supported by substantial evidence,
(2) credibility determination was based on the wrong legal standard, and (3)
determination that Plaintiff could perform her past relevant work was not supported by
substantial evidence. The Court will address each contention in turn.
A.

WHETHER THE ALJ SUMMARY OF THE EVIDENCE WAS INACCURATE AND
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Although couched as an argument that the ALJ’s decision was not supported by

substantial evidence, Plaintiff’s first argument essentially contests the weight assigned
to two consultant examiners, Dr. Carson and Dr. Mitchell. Specifically, Plaintiff argues
that the ALJ erred in giving Dr. Mitchell’s opinion less weight than Dr. Carson’s opinion.
The ALJ is required to weigh every relevant medical opinion he receives using
the factors in 20 C.F.R. § 404.1527(c). Those factors are:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
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.

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Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001); 20 C.F.R. § 404.1527(c).
After considering these factors, the ALJ must “give good reasons in [the] notice of
determination or decision” for the weight he ultimately assigns the opinion. 20 C.F.R. §
404.1527(d)(2). “Finally, if the ALJ rejects the opinion completely, he must then give
specific, legitimate reasons for doing so.” Watkins v. Barnhart, 350 F.3d 1297, 1301
(10th Cir. 2003) (quotation marks omitted).
In the instant case, the ALJ properly considered whether Dr. Mitchell’s opinion
was consistent with and supported by the record as a whole, the medical evidence, or
her own examination findings. See 20 C.F.R. §§ 404.1527(c)(3) (supportability);
404.1527(c)(4) (consistency); 404.1527(c)(6) (other factors). Plaintiff points out, and the
Commissioner concedes that the ALJ mistakenly stated that Dr. Mitchell examined
Plaintiff one month after Dr. Carson, when, in fact, Dr. Mitchell examined Plaintiff six
months before Dr. Carson’s examination. However, this mistake of fact does not
require reversal. First, the ALJ properly observed that Dr. Mitchell assigned severe
functional limitations despite her examination findings, which showed full strength in
Plaintiff’s upper and lower extremities; some decreased range of motion in her cervical
and dorsolumbar spine, but normal range of motion in her remaining joints; and
negative straight leg raise, carpal tunnel compression, and Tinel’s tests. (AR at 19.)
Second, the ALJ properly noted inconsistencies in Plaintiff’s self-reported symptoms.
(AR at 18.) Third, the fact that Plaintiff later reported dramatically increased activities of
daily living suggests that her functioning may have improved during the relevant time
period. See Wall, 561 F.3d at 1069 (a court should not reverse for error that, “based on

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a reading of the ALJ’s decision as a whole, would lead to unwarranted remands
needlessly prolonging administrative proceedings”). Accordingly, the Court determines
that this factual error does not require reversal. See Bernal v. Bowen, 851 F.2d 297,
302-03 (10th Cir. 1988) (mere fact of error does not warrant remand if the ALJ’s
determination is otherwise supported by substantial evidence).2
Plaintiff also contends that the ALJ erred when he assigned less weight to Dr.
Mitchell’s opinion than to Dr. Carson’s opinion, because both doctors performed
thorough evaluations and reviewed some, but not all, of Plaintiff’s medical records. In
essence, Plaintiff asks this Court to reweigh the evidence, which it cannot do. See
Salazar, 468 F.3d at 621. Plaintiff’s contentions are not persuasive and the Court
determines that the ALJ’s decision is supported by substantial evidence.
B.

WHETHER THE THE ALJ’S CREDIBILITY DETERMINATION WAS BASED ON
THE WRONG LEGAL STANDARD
Next, Plaintiff contends that the ALJ erred when he found Plaintiff’s complaints of

pain not credible. “[C]redibility determinations ‘are peculiarly the province of the finder
of fact,’ and should not be upset if supported by substantial evidence.” White v.
Barnhart, 287 F.3d 903, 909 (10th Cir. 2011) (quoting Kepler v. Chater, 68 F.3d 387,
390-91 (10th Cir. 1995)). Provided the ALJ links his credibility assessment to specific
evidence in the record, his determination is entitled to substantial deference. Id. at 910;
SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996) (ALJ’s decision “must contain specific
reasons for the finding on credibility, supported by evidence in the case record”).

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Similarly, the Court rejects Plaintiff’s argument that the ALJ was required to explain why Plaintiff was
sent to a second consultative examiner.

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Because the determination of credibility is left to the ALJ as the finder of fact, that
determination is generally binding on a reviewing court.
SSR 96-7p provides a non-exhaustive list of factors that an ALJ considers, in
addition to the objective medical evidence, when determining whether she finds
Plaintiff’s complaints of disabling pain credible. Those factors include: (1) Plaintiff’s
daily activities; (2) the location, duration, frequency, and intensity of pain or other
symptoms; (3) factors that precipitate and aggravate the symptoms; (4) medications and
any side effects; (5) treatment, other than medication, that the individual has received;
(6) measures other than treatment that Plaintiff uses to relive pain; and (7) any other
relevant factors. SSR 96-7P, 1996 WL 374186, *3. The ALJ is not required to set forth
a formalistic factor-by-factor recitation of the evidence, but must set forth only the
specific evidence she relied upon in evaluating Plaintiff’s testimony. See Qualls v.
Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
Plaintiff contends that the ALJ improperly found her complaints of pain not
credible because of a lack of objective evidence. Therefore, Plaintiff argues, the ALJ
applied an incorrect legal standard. While it is true that credibility determinations do not
turn solely on whether objective evidence demonstrates that a claimant experiences
pain, it is also true that “[a] claimant’s subjective allegation of pain is not sufficient in
itself to establish disability.” Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir.
1993). Instead, “[b]efore the ALJ need even consider any subjective evidence of pain,
the claimant must first prove by objective medical evidence the existence of a pain-

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producing impairment that could reasonably be expected to produce the alleged
disabling pain.” Id. (citations omitted). As the Tenth Circuit has explained:
[The court] must consider (1) whether Claimant established a painproducing impairment by objective medical evidence; (2) if so, whether
there is a “loose nexus” between the proven impairment and the
Claimant’s subjective allegations of pain; and (3) if so, whether,
considering all the evidence, both objective and subjective, Claimant’s
pain is in fact disabling.
Id. (citing Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987)).
In the instant case, the ALJ properly analyzed the record as a whole and
determined that Plaintiff’s complaints of pain and the severity of her impairments were
not credible. In so doing, the ALJ discussed Plaintiff’s activities of daily living, which
included spending time with her mother and friends, limited household chores, driving,
and working part time at an insurance agency. (AR at 14). The ALJ also considered
that many of Plaintiff’s ailments were long standing and did not previously prevent her
from working. The ALJ also explicitly discussed inconsistencies in Plaintiff’s statements
regarding her pain. For instance, the ALJ noted that Plaintiff told a treatment provider
that she had not experienced back or ankle pain prior to a slip and fall in February 2008.
However, her medical records show that she had a long history of back pain that was a
result of the 1989 motor vehicle accident and had undergone several surgeries on her
ankle and foot because of a fracture and arthritis. See 20 C.F.R. § 404.1529(c)(4); SSR
96-7P, 1996 WL 374186, at *5 (one strong indication of the credibility of an individual’s
statements is their consistency, both internally and with other information in the case
record). As a result, the ALJ observed that Plaintiff was not a “consistent historian
regarding her symptoms and limitations.” (AR at 16.)
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Plaintiff argues that the ALJ improperly considered evidence that pre-dated
Plaintiff’s alleged disability onset date. However, that evidence was relevant to whether
Plaintiff’s impairments caused the limitations she claimed, particularly considering that
she had long suffered many of her ailments, but continued to work. See Hamlin v.
Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (“even if a doctor's medical observations
regarding a claimant's allegations of disability date from earlier, previously adjudicated
periods, the doctor's observations are nevertheless relevant to the claimant's medical
history and should be considered by the ALJ”). The ALJ “clearly and affirmatively linked
his adverse determination of [Plaintiff’s] credibility to substantial record evidence . . .
and [this Court’s] limited scope of review precludes [it] from reweighing the evidence or
substituting [its] judgment for that of the agency.” Wall, 561 F.3d at 1070.
C.

WHETHER THE ALJ’S DETERMINATION THAT PLAINTIFF COULD
PERFORM HER PAST RELEVANT WORK WAS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE
Last, Plaintiff contends that the ALJ erred in finding that Plaintiff was capable of

returning to her past relevant work. This argument is without merit. First, the ALJ
specifically concluded that the “claimant cannot perform past relevant work.” (AR at 21.)
However, the ALJ did find that Plaintiff could perform representative occupations, such
as address clerk and micro film preparer. (AR at 21-22.)
Second, Plaintiff argues that the ALJ improperly relied on testimony from the VE
that was elicited in response to a hypothetical question that did not contain all of
Plaintiff’s limitations. However, Plaintiff does not state which limitations were excluded.
Rather, this argument appears to rehash previous arguments, already rejected by this

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Court, that the ALJ should have included additional limitations based on Dr. Mitchell’s
opinion. Accordingly, this argument is similarly without merit.
IV. CONCLUSION
Accordingly, it is ORDERED that the ALJ’s denial of social security disability
benefits is AFFIRMED. Each party shall bear its own costs and attorney fees.
DATED: February

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, 2015

BY THE COURT:

________________________
CHRISTINE M. ARGUELLO
United States District Judge

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