Soto v. Colvin
Filing
23
ORDER Affirming ALJ's Decision Denying Social Security Benefits. By Magistrate Judge Michael J. Watanabe on 3/16/2015. (emill)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02454-MJW
EUGENE M. SOTO,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
Defendant.
ORDER AFFIRMING ALJ’S DECISION DENYING SOCIAL SECURITY BENEFITS
MICHAEL J. WATANABE
United States Magistrate Judge
Upon consent of the parties and pursuant to the Order of Reference dated
March 12, 2015 (Docket No. 22), 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).
In this case, plaintiff, Eugene M. Soto, challenges the final decision of the
Commissioner of Social Security (“Commissioner”) denying plaintiff’s application for
Supplemental Security Income benefits (“SSI”) and disability insurance benefits (“DIB”)
pursuant to Titles II and XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 405(g)
and 1383(c)(3). Plaintiff had previously applied for DIB on October 13, 2009
(Administrative Record “AR” 170-73), alleging an onset date of October 30, 2007, but he
was denied at the initial application stage on January 27, 2010 (AR 66, 185). It appears
he did not seek review of that decision, but he later applied for SSI and DIB on April 14,
2011 (AR 65), alleging a disability onset date of March 4, 2011. However, he
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subsequently amended his alleged onset date to December 14, 2007. (AR 247). On
his application, he alleged disability due to osteoarthritis in both knees, anxiety stress,
chronic lower back pain, swelling of legs, and limited walking. (AR 65). After a hearing
before Administrative Law Judge (“ALJ”) Peggy S. Ball, plaintiff’s claim was denied in a
written decision dated June 18, 2012 (AR 16-26 - Docket No. 9-2 at 17-27). The
Appeals Council denied plaintiff’s Request for Review on May 24, 2013 (AR 6), and thus
the ALJ’s decision is the final decision of the Commissioner.
Plaintiff now appeals that final decision. More specifically, plaintiff raises the
following errors the ALJ allegedly committed in rendering her decision: (1) the severe
impairments the ALJ found plaintiff suffered was incomplete based on a wrong legal
standard and not supported by substantial evidence; (2) the Commissioner failed to
apply the correct legal standard in determining that plaintiff’s impairments did not meet
or medically equal any medical Listing, and her assessment was not based on
substantial evidence; (3) the ALJ failed to apply the correct legal standard in
determining that the functional capacity evaluation should be afforded no weight, and
this determination was not based upon substantial evidence; (4) the ALJ’s determination
that plaintiff could perform other work in the economy was based on a wrong legal
standard and not supported by substantial evidence; and (5) the ALJ failed to consider
the entire period of alleged disability.
The court has very carefully reviewed the Complaint (Docket No. 1), defendant’s
Answer (Docket No. 8), plaintiff’s Opening Brief (Docket No. 14), defendant’s Response
3
Brief (Docket No. 17),1 the entire case file, the AR (Docket No. 9), and the applicable
case law, statutes, and regulations. The court now being fully informed makes the
following findings, conclusions of law, and Order. The court finds, substantially for the
reasons stated in the defendant’s very thorough Response Brief (Docket No. 17), that
the ALJ’s decision denying benefits should be affirmed. The court adopts and
incorporates the Statement of the Facts section contained in the defendant’s Response
Brief.
STANDARD OF REVIEW
This court’s review of the ALJ’s determination is limited to determining whether
the ALJ’s decision is supported by substantial evidence and whether the Commissioner,
through the ALJ, applied the correct legal standards. 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 v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005).
In reviewing the record and the arguments of counsel, the court does not reexamine the
issues de novo, Sisco v. United States Dep’t of Health & Human Servs., 10 F.3d 739,
741 (10th Cir. 1993), nor does it re-weigh the evidence or substitute its judgment for that
of the Commissioner, Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). Thus,
1
Although the Joint Case Management Plan, as amended, permitted plaintiff to
file a Reply Brief by September 11, 2014 (see Docket No. 16), a Reply Brief was not
filed.
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even when some evidence may have supported contrary findings, the court “may not
displace the agency’s choice between two fairly conflicting views,” even if the court may
have “made a different choice had the matter been before it de novo.” Oldham v.
Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007). This court has applied this standard to
each of the challenges raised by plaintiff in this appeal.
An individual “shall be determined to be under a disability only if [her] physical or
mental impairment or impairments are of such severity that [she] is not only unable to
do [her] previous work but cannot, considering [her] 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); 1382c(a)(3)(B). The Commissioner
has developed a five-step sequential 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. “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 the fifth step,
the burden shifts to the Commissioner to show that the claimant can perform work that
exists in the national economy. Id.
Here, at step one, the ALJ determined that the plaintiff had engaged in some
substantial gainful activity since March 4, 2011, the alleged onset date. (AR 21). The
ALJ noted that the record shows that the plaintiff received wages of $3,492 for the first
quarter of 2011; $1,238 for the third quarter of 2011; $3,512 for the fourth quarter of
2011; and $3,696 for the first quarter of 2012. He also received $532 in unemployment
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compensation benefits in the third quarter of 2011. The ALJ further noted that the
Regulations stipulate that earnings of more than $1,000 per month are considered
demonstrative of substantial gainful activity, so it thus appeared that the plaintiff
performed substantial gainful activity for a substantial portion of the period at issue. The
ALJ stated, however, that “as the claimant is not found to be disabled, the undersigned
will forego any further development of this issue in order to avoid delay of issuance of
this decision.” (AR 21).
At step two, the ALJ found that since the alleged disability onset date, the plaintiff
has had a severe impairment, namely, osteoarthritis of the bilateral knees, and more
recently has also had the severe impairments of cervical strain and bulging lumbar
discs. (AR 21-22). Furthermore, the ALJ stated that the medical evidence also
indicated that plaintiff had varicose veins of the lower extremities, but she found that
there was no evidence that this impairment has caused significant functional limitations
on a continuing basis and thus that impairment was not severe. (AR 22).
Next, at step three of the sequential evaluation process, the ALJ found that the
plaintiff did not have an impairment or combination of impairments that meet or
medically equal the severity of one of the impairments contained in the Listings. (AR
22).
At step four, the ALJ must determine a claimant's residual functional capacity
(“RFC”).
. . . 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
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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 the claimant’s
work capability is further diminished in terms of jobs contraindicated by
nonexertional limitations.
...
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;
and pain. . . .
Williams, 844 F.2d at 751-52. In deciding that plaintiff is capable of making a successful
adjustment to other work that exists in significant numbers in the national economy, the
ALJ had to determine plaintiff’s RFC based on all the relevant medical and other
evidence in the case record. 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 20 C.F.R. §§ 416.946, 404.1546 (providing ALJ is responsible for assessing
RFC).
Here, the ALJ found that the plaintiff has the RFC to perform sedentary work as
defined in the Regulations, “with lifting and/or carrying up to 50 pounds occasionally and
25 pounds frequently; standing and/or walking up to four hours during an eight-hour
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workday; and no more than occasional kneeling, crouching, or crawling.” (AR 22). The
ALJ then determined that the plaintiff is capable of performing past relevant work as a
Telemarketer or as a Paraprofessional which do not require the performance of workrelated activities precluded by his RFC. (AR 25).
ANALYSIS
Substantial Gainful Activity. In the Response Brief, defendant asserts that the
ALJ reasonably found at step one of the sequential evaluation process that plaintiff was
performing substantial gainful activity since his alleged onset of disability in March 2011,
which precludes an award of disability benefits. Defendant notes that the plaintiff did
not dispute that dispositive finding, and thus defendant asserts that the court should
affirm the Commissioner’s finding that the plaintiff was not disabled within the meaning
of the Act. Plaintiff did not file a Reply Brief as allowed under the Joint Case
Management Plan, as amended, and thus did not contest defendant’s argument.
The regulations provide that “[i]f [the claimant is] working and the work [he is]
doing is substantial gainful activity, we will find that [he is] not disabled regardless of
[his] medical condition or [his] age, education, and work experience.” 20 C.F.R. §
404.1520(b). See Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (“If plaintiff
actually engaged in substantial gainful activity, he could not be found disabled,
regardless of the severity of his impairments.”). Furthermore, generally an individual
who reported earnings over $1,000 a month in 2011 and over $1,010 a month in 2012
would be considered to have engaged in substantial gainful activity. 20 C.F.R. §
404.1574. “At step one of the sequential analysis, the claimant has the burden of
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showing he is not performing substantial gainful activity.” Morris v. Apfel, 198 F.3d 258
(10th Cir. 1999) (citing 20 C.F.R. § 404.1571. Here, plaintiff was working and earning
more than the stated amounts for substantial gainful activity from August 2011 through
March 2012. Therefore, defendant asserts, and this court agrees, that the ALJ
reasonably found at step one that “it appears that [plaintiff] performed substantial gainful
activity for a substantial portion of the period at issue.’” (Docket No. 17 at 11). Although
the presumption raised by the Regulations is rebuttable, Geist v. Astrue, 2010 WL
3777335, at *3 (D. Colo. Sept. 20, 2010) (citing Franco v. Chater, 1996 WL 559641, at
*1 (10th Cir. Oct. 2, 1996)), plaintiff has presented no evidence, nor has he suggested
here, that any of these earnings were not directly related to his productivity. Thus, as
asserted by defendant, the ALJ could have stopped her evaluation of the plaintiff’s claim
at that step. See Fowler, 876 F.2d at 1453 n.3 (determination that plaintiff engaged in
substantial gainful activity may be made solely on the basis of earnings compared with
the standards set forth in the Regulations). The ALJ, however, continued along the
sequential evaluation process and alternatively found at step four that plaintiff was not
disabled because he retained the ability to perform his past relevant work.
Defendant asserts that plaintiff’s failure to designate the step one finding as an
issue for review forecloses plaintiff’s success in this appeal, regardless of the merits of
his arguments relating to step four. See Murrell v. Shalala, 43 F.3d 1388, 1389, 1390
(10th Cir. 1994) (Plaintiff did not challenge the merits of the finding of nondisability at
step five. Since the unchallenged step-five finding was a sufficient basis for the denial
of benefits, plaintiff’s success on appeal is foreclosed, regardless of the merit of his
arguments relating to step four). Therefore, defendant asserts that the court should
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affirm the Commissioner’s determination that plaintiff was not disabled.
The court finds that the Commissioner’s final decision could be affirmed based
on the finding at step one alone. Nevertheless, for plaintiff’s sake, the court will proceed
to address plaintiff’s arguments on appeal.
Severe Impairments. Plaintiff first asserts that the ALJ erred because the
severe impairments she found plaintiff suffered was incomplete based on a wrong legal
standard and not supported by substantial evidence. More specifically, plaintiff
contends that the ALJ failed to include plaintiff’s obesity. He notes that his treating
doctor diagnosed him with obesity and recommended diet and exercise, to the extent he
can exercise. (AR 359). In addition, his body mass index (“BMI”) was calculated at
36.0 (AR 340), and he notes that a person with a BMI of 31 or greater is considered
obese. Plaintiff asserts that the ALJ failed to consider his obesity in her RFC, so the
case should be reversed or remanded with instructions to consider all of his
impairments. At the end of this argument, plaintiff further contends that the ALJ also did
not consider more supportive evidence in portions of her decision and instead “cherrypicked the findings that tended to support a finding of ‘not disabled’ instead of
independently weighing all of the evidence.” (Docket No. 14 at 20).
Defendant, however, responds that plaintiff’s argument regarding the failure to
include his obesity as a severe impairment is of no consequence and need not be
considered by the court. As defendant notes, if a claimant does not have any severe
impairments, the claimant is found not disabled at step two. See 20 C.F.R.
404.1520(a)(4) (“If we can find that you are disabled or not disabled at a step, we make
our determination or decision and we do not go on to the next step. If we cannot find
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that you are disabled or not disabled at a step, we go on to the next step.”) However,
upon determining that a claimant has at least one severe impairment, the ALJ must
continue the analysis under the sequential evaluation process. Id. Defendant notes
that here, the ALJ found that plaintiff had several severe impairments and continued to
the next steps of the sequential evaluation process, evaluating all of plaintiff’s
impairments, both severe and non-severe, in assessing his limitations. Thus, defendant
asserts, and this court agrees, that any alleged error at step two was harmless. See
Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (any error at step two was
harmless where the ALJ determined that the claimant could not be denied benefits
conclusively at step two and proceeded to the next step of the evaluation sequence);
Rodriguez v. Colvin, 2014 WL 5473583, at *3 (D. Colo. Oct. 29, 2014) (because the ALJ
found certain impairments were severe and then proceeded to steps three and four of
the analysis, any error regarding the severity of another impairment was harmless).
Furthermore, defendant asserts that although plaintiff clings to the proposition
that the ALJ should have found that obesity was a severe impairment, plaintiff has not
identified how such a finding would have changed the outcome of the case. According
to defendant, in the end, plaintiff’s appeal hinges not on the accuracy of the step two
findings, but on whether the ALJ adequately considered any limitations resulting from
plaintiff’s alleged conditions when assessing his work-related abilities. As noted by
defendant, the existence of any condition alone is not enough for it to be disabling there must be some related functional loss. See SSR 02-1P (Titles II and XVI:
Evaluation of Obesity), 2000 WL 628049 at *6-7 (The agency “will not make
assumptions about the severity or functional effects of obesity combined with other
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impairments,” but rather will conduct an individualized assessment based on the
information in the case record.). This court agrees that plaintiff has not identified any
evidence of functional loss related to obesity, and there is no evidence in the record
which would have required restrictions beyond those already enumerated by the ALJ in
her RFC assessment. In fact, as noted by defendant, plaintiff did not allege any
functional loss related to obesity in his disability application, when submitting functional
reports to the agency, or while testifying at the administrative hearing. See Jimison ex
rel. Sims v. Colvin, 513 Fed. App’x 789, 798 (10th Cir. 2013) (unpublished) (“there is no
record indication of any functional limitations from [the claimant’s] obesity or of any
impairments possibly caused or exacerbated by her obesity that are inconsistent with
the RFC” assessed by the ALJ).
In sum, this court finds no merit to plaintiff’s first assignment of error.
Listings. In a Pre-Hearing Questionnaire, plaintiff’s counsel indicated that
plaintiff did not claim to meet or equal any listed impairments found at 20 C.F.R. 404,
subpt. P, app. I. (AR 64). Now, however, plaintiff asserts that at step three in the
sequential evaluation process, the ALJ failed to apply the correct legal standard in
determining that plaintiff’s impairments did not meet or medically equal any medical
Listing, and her assessment was not based on substantial evidence. He contends that
the ALJ did not discuss the evidence or her reasons for determining that he was not
disabled at step three. Instead, she “simply recited the medical listing verbatim and
stated without discussion that the impairments did not meet the listing.” (Docket No. 14
at 21, citing AR 22). Furthermore, plaintiff asserts that the ALJ’s finding that he meets
none of the criteria of the Listings in incorrect. More specifically, with respect to Listing
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1.02, major dysfunction of a joint(s) due to any cause, the ALJ found that plaintiff’s
impairment was not characterized by gross anatomical deformity (AR 22), but plaintiff
notes that on December 20, 2010, Dr. Duffey examined plaintiff and identified a genu
varus deformity. (AR 283). In addition, the ALJ found that plaintiff did not have “chronic
joint pain and stiffness with signs of limitation of motion of the affected joints” (AR 22),
yet plaintiff asserts that his chronic knee pain is “evident at every turn in this record,” for
which plaintiff cites examples from the record (Docket No. 14 at 21). Next, plaintiff
notes that the ALJ denied that he had “findings on appropriate medically acceptable
imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint”
(AR 22), but on January 26, 2006, x-rays of both knees showed worsening in degree of
medial joint space narrowing bilaterally, with greater narrowing on the left than on the
right, consistent with moderately advanced osteoarthritis. (AR 255). In addition, Dr.
Duffey reviewed plaintiff’s radiological history on December 20, 2010, and concluded
that plaintiff suffered from “fairly advanced joint space narrowing of the medial
compartment of both knees.” (AR 287). Finally, plaintiff notes that the ALJ emphasized
that the evidence had failed to show that his knee problems as detailed above resulted
in an inability to ambulate effectively. In this regard, plaintiff notes that under the
preamble to this Listing, “[t]o ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient distance to be able to carry out
activities of daily living,” for example, “the inability to walk a block at a reasonable pace
on rough or uneven surfaces.” Plaintiff notes that after he was put through a series of
standardized tests by Mr. Ward and Ms. Propst, they opined that he could not walk a
block at reasonable pace on rough or uneven surfaces. (AR 418). Plaintiff thus argues
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that the above analysis directs that he be found to meet Listing 1.02, and, therefore, this
case should be remanded for calculation of benefits only. He further asserts that a
similar analysis should have been made for Listing 1.04, Disorders of the Spine, but the
ALJ allegedly failed to provide an analysis for either impairment, which should result in a
remand with instructions to evaluate the Listings properly.
This court, however, agrees with the defendant that the ALJ specifically
considered the relevant listings, namely, Listing 1.02 (major dysfunction of a joint) and
1.05 (disorders of the spine), but she found that the evidence did not satisfy the criteria
of either listing (AR 22). She explicitly highlighted that the evidence did not show clinical
abnormalities “resulting in [the] inability to ambulate effectively” as required by the
Listings. More specifically, the ALJ found:
Regarding bilateral knee osteoarthritis, the undersigned has considered
Listing 1.02 Major dysfunction of a joint(s) (due to any cause): This Listing
is not met or medically equaled because the claimant’s impairment is not
characterized by gross anatomical deformity (e.g., subluxation,
contracture, bony or fibrous ankylosis, instability) and chronic joint pain
and stiffness with signs of limitation of motion or other abnormal motion of
the affected joint(s), and findings on appropriate medically acceptable
imaging of joing space narrowing, bony destruction, or ankylosis of the
affected joint(s), resulting in inability to ambulate effectively (emphasis
added). As defined in 1.00B2b.
As for the more recently diagnosed spinal impairments, Listing 1.04
Disorders of the spine is not met or medically equaled because the
medical evidence fails to establish that the claimant has a herniated
nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis, or vertebral fracture, resulting in
compromise of a nerve root (including the cauda equina) or the spinal cord
resulting in inability to ambulate or use the arms effectively
(emphasis added).
(AR 22) (emphasis in original). This court finds that the ALJ’s findings permit
meaningful review, and there is substantial evidence to support the ALJ’s determination.
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In particular, with regard to the ALJ’s finding that regarding the ability to ambulate
effectively, the Listings explain that
[t]o ambulate effectively, individuals must be capable of sustaining a
reasonable walking pace over a sufficient distance to be able to carry out
activities of daily living. They must have the ability to travel without
companion assistance to and from a place of employment or school.
Therefore, examples of ineffective ambulation include, but are not limited
to, the inability to walk without the use of a walker, two crutches or two
canes, the inability to walk a block at a reasonable pace on rough or
uneven surfaces, the inability to use standard public transportation, the
inability to carry out routine ambulatory activities, such as shopping and
banking, and the inability to climb a few steps at a reasonable pace with
the use of a single hand rail. The ability to walk independently about one’s
home without the use of assistive devices does not, in and of itself,
constitute effective ambulation.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00(B)(2)(b)(1). The court notes that the plaintiff
cites to the questionnaire completed by Mr. Ward and Ms. Propst in which a box was
checked indicating that plaintiff could not “walk a block at a reasonable pace on rough
[sic] uneven surfaces” (AR 418). As noted by defendant, however, the ALJ gave little
weight to that RFC assessment (see AR 22-25), but in any event, that questionnaire
also indicated that plaintiff could perform activities like shopping or banking; could travel
without assistance; did not require a wheelchair, walker, two canes, or two crutches to
ambulate; could use public transportation; could climb a few steps at a reasonable pace
with the use of a single handrail; could prepare meals and feed himself; could care for
his personal hygiene; and could sort, handle, and use papers/files. (AR 418).
Therefore, the ALJ’s finding that the evidence did not demonstrate an inability to
ambulate effectively within the meaning of the Listings is supported by substantial
evidence. In sum, the court finds no error with regard to the ALJ’s findings at step
three.
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RFC. Next, plaintiff argues that the ALJ failed to apply the correct legal standard
in determining that the functional capacity evaluation from Mr. Ward and Ms. Propst of
Optima Rehabilitation should be afforded no weight and that the ALJ’s determination
regarding this evaluation was not based upon substantial evidence. Plaintiff contends
the ALJ gave no weight to this assessment because she believed the opinion restricted
plaintiff from lifting any weight from the floor and because it precluded him from any
sitting, standing, or walking at all. (AR 24). Plaintiff notes, however, that the
assessment clarifies those limitations in the narrative portion of the form by indicating
that plaintiff would not be able to sit, stand, or walk for very long, and would need
breaks in between. Plaintiff contends that the ALJ did not address this clarification in
her decision and instead found the evidence inadequate. According to plaintiff,
inadequacy of evidence triggers the ALJ’s duty to recontact the treating physician, and
plaintiff asserts the ALJ had an obligation to do so in this case, “especially where there
was no other medical opinion in the file whatsover.” (Docket No. 14 at 24).
Furthermore, plaintiff asserts that if the ALJ believed the evidence was
insufficient to determine the severity of plaintiff’s physical limitations, she had the
authority and arguably the responsibility to order a consultative evaluation. Plaintiff
contends that his bilateral knee impairments and back impairments are well
documented and satisfy the de minimus standard of proving they more than minimally
interfere with his ability to perform work-related activities. He argues that the ALJ was
not satisfied with the opinions in the file, but instead of ordering a consultative exam,
she formulated her RFC without substantial evidence. Plaintiff contends this constitutes
reversible error and that the ALJ’s decisions should thus be reversed or remanded on
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these grounds.
This court does not agree with plaintiff’s assertions. As noted above, the ALJ
found that the plaintiff has the RFC to perform sedentary work as defined in the
Regulations, “with lifting and/or carrying up to 50 pounds occasionally and 25 pounds
frequently; standing and/or walking up to four hours during an eight-hour workday; and
no more than occasional kneeling, crouching, or crawling.” (AR 22). The ALJ then
determined that the plaintiff is capable of performing past relevant work as a
Telemarketer or as a Paraprofessional which do not require the performance of workrelated activities precluded by his RFC. (AR 25). In making this determination, the ALJ
specifically and adequately addressed the assessment by Optima Rehabilitation as
follows:
As for the opinion evidence, in May 2012, Dottie Propet [sic] Director of
Physical Therapy Services for Optima Rehabilitation, expressed the
opinion that the claimant is unable to lift any amount of weight from the
floor; and is unable to sit, stand, or walk for any time at all. These
limitations are not supported by the objective medical findings; e.g.,
normal lower extremity neurological exam by Dr. Castrejon less than one
month earlier. Additionally, Ms. Propet [sic] assessed limitations on the
claimant’s use of his hands, in the total absence of any supporting
objective medical signs or findings. Moreover, Ms. Propet’s [sic] opinion is
inconsistent with other substantial evidence of record; i.e., the claimant’s
recent performance of work activity, and his ability to sit through the
hearing. Therefore, the undersigned gives no weight to Ms. Propet’s
opinion (Exhibits 15F and 16F).
(AR 24). This court finds that the ALJ’s decision to give no weight to this questionnaire
is supported by substantial evidence. Furthermore, the court does not agree with
plaintiff’s contention that the ALJ should have recontacted Mr. Ward and/or Mr. Propst
or should have obtained a consultative exam. As noted by defendant, the ALJ’s duty to
develop the record further is triggered only when there is ambiguous evidence or when
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the record is inadequate for proper evaluation of evidence, which was not the case
here. See Cowan v. Astrue, 552 F.3d 1182, 1187 (10th Cir. 2008) (no need to further
develop the record because sufficient information existed for the ALJ to make her
disability determination).
Ability to Perform Other Work. Plaintiff next asserts that the ALJ’s
determination that plaintiff could perform other work in the economy was based on a
wrong legal standard and not supported by substantial evidence. More specifically,
plaintiff asserts that in finding that he was capable of performing other work in the
economy, the ALJ stated that she relied on the testimony of the vocational expert
(“VE”), but the VE was not apprised of all of plaintiff’s work-related functional limitations.
Plaintiff contends that the ALJ’s conclusion that plaintiff could perform the jobs of
telemarketer and paraprofessional was based on testimony from a VE, who was relying
on a hypothetical that did not include, “with precision,” all of plaintiff’s impairments, and
therefore the testimony could not be relied upon to determine he was not disabled.
Therefore, plaintiff asserts, the case should be remanded.
There is no merit to this argument, however, because as found above, the ALJ’s
RFC determination is supported by substantial evidence, and the ALJ used that
determination to form her hypothetical question to the VE.
Period of Disability. Finally, plaintiff contends that the ALJ failed to consider the
entire period of alleged disability because she indicated she evaluated his claim only
from March 4, 2011, forward (AR 26), even though he had amended his onset date to
December 14, 2007, in a response to the ALJ’s request for a pre-hearing memo. (AR
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247). Plaintiff thus asserts that this case should be remanded so the entire alleged
disability period can be evaluated.
Defendant responds that plaintiff’s arguments about his allegedly amended onset
date should be rejected for two reasons. First, defendant correctly notes that plaintiff
previously filed an application for benefits alleging disability beginning in October 30,
2007 (AR 170-74 - application filed in October 2009). Plaintiff’s application was denied
in late January 2010 (AR 185), and plaintiff did not appeal that denial. Therefore,
according to defendant, the determination that plaintiff was not disabled from October
2007 through January 2010 became final. See 20 C.F.R. § 404.905 (initial
determination is binding unless timely reconsideration is requested). “Res judicata
applies in the social security context when there has been a ‘previous determination or
decision . . . about [the claimant’s] rights on the same facts and on the same issue or
issues, and this previous determination has become final by either administrative or
judicial action.” Poppa v. Astrue, 569 F.3d 1167, 1170 (10th Cir. 2009) (quoting 20
C.F.R. § 416.1457(c)(1)). Second, and as defendant asserts, more importantly, plaintiff
was admittedly working as a telemarketer for four months from November 2010 through
March 2011 (AR 37), earning more than $1,000 monthly (see AR 151, 167, 174, 179,
183). Since that work was substantial gainful activity, he was thereby precluded from
collecting disability benefits during the remaining time period not previously adjudicated
on his prior disability claim - January 2010 through March 2011. According to
defendant, when a claimant demonstrates the ability to engage in substantial gainful
activity before approval of an award and prior to the lapse of the 12-month period after
onset, the claim must be denied. See SSR 82-52, 1982 WL 31376, at *2. Defendant
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thus asserts that as res judicata precludes a finding of disability prior to January 2010,
and plaintiff admittedly demonstrated the ability to engage in substantial gainful activity
from November 2010 through March 2011, the ALJ reasonably considered plaintiff’s
condition and functional abilities from March 2011 forward, through the date of her June
2012 decision. This court agrees.
CONCLUSION
This Court finds that the ALJ’s decision was supported by substantial evidence
and the ALJ committed no legal error in reaching her adverse finding.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the ALJ’s denial of disability benefits is AFFIRMED. It is
FURTHER ORDERED that each party shall pay its own costs and attorney fees.
Date: March 16, 2015
Denver, Colorado
s/ Michael J. Watanabe
United States Magistrate Judge
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