Armijo v. Colvin

Filing 20

ORDER ; The ALJs denial of social security disability benefits is AFFIRMED. Each party shall bear its own costs and attorneys fees, by Magistrate Judge Kathleen M. Tafoya on 3/16/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13–cv–02520–KMT
DEANNA J. ARMIJO,
Plaintiff,
v.
CAROLYN COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY
ADMINISTRATION,
Defendant.

ORDER

This case comes before the court on review of the Commissioner’s denial of Plaintiff
Deanna J. Armijo’s application for Disability Insurance Benefits (“DIB”) pursuant to Title II of
the Social Security Act, 42 U.S.C. §§ 401-33 (“the Act”). Jurisdiction is proper under 42 U.S.C.
§ 405(g).
FACTUAL AND PROCEDURAL BACKGROUND
In May, 2010, Plaintiff filed an application for DIB under Title II of the Act.
(Administrative Record [“AR”], Doc. No. 11, at 140-41.) Plaintiff claimed she became disabled
on December 31, 2009, due to bilateral knee impairments. (Id. at 140, 170.) After the State
agency denied Plaintiff’s claim (id. at 65-78), she requested a hearing before an administrative
law judge (“ALJ”) (id. at 79). A hearing was held on November 15, 2011, at which Plaintiff and
an impartial vocational expert (VE) testified. (Id. at 31-64.)

On December 20, 2011, the ALJ issued a written decision in accordance with the
Commissioner’s five-step sequential evaluation process. 1 At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since October 12, 2010, the alleged onset
date. (Id. at 19.) At step two, the ALJ found that Plaintiff suffered from the following severe
impairment: bilateral knee pain. (Id.) At step three, the ALJ found that Plaintiff’s impairment,
while severe, did not meet or medically equal any of the impairments or combination of
impairments listed in the social security regulations. (Id. at 20.)
The ALJ then found that Plaintiff had the residual functional capacity (“RFC”) to
perform sedentary work as defined in the social security regulations, but with the following
limitations:
[n]ot required to stoop or crouch more than occasionally; not required to climb, crawl,
kneel, and balance; not required to sit for more than 45 minutes at one time without the
opportunity to stand; not required to push or pull with the feet; and not required to work
at unguarded heights or near unguarded hazardous mechanical equipment.
(Id. at 20.)
At step four, the ALJ found that Plaintiff could not perform any of her past relevant work.
(Id. at 24.) At step five, however, the ALJ found that there are a significant number of jobs in
the national economy that Plaintiff could perform. (Id. at 24-25.) Specifically, the ALJ found
that Plaintiff could work in representative occupations such as a Front Desk Receptionist,

1

The five-step process requires that the ALJ consider whether a claimant (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment;
(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to
her past relevant work; and, if not, (5) could perform other work in the national economy. See
20 C.F.R. § 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.
1988). The claimant has the burden of proof on steps one through four; the Social Security
Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).
2

Surveillance System Monitor, or a Call Out Operator. (Id. at 25.) Accordingly, the ALJ found
that Plaintiff was not disabled within the meaning of the Act, and thus, not entitled to benefits.
(Id. at 25-26.)
The Appeals Council denied Plaintiff’s request for review on July 11, 2013. (Id. at 1-3.)
Plaintiff then filed this action seeking review of the Commissioner’s Action on September 16,
2013. (Compl., Doc. No. 1.) Plaintiff’s Opening Brief was filed on March 28, 2014 (Doc. No.
14.) The Commissioner’s Response Brief was filed on May 1, 2014. (Doc. No. 15.) Pursuant to
the Joint Case Management Plan entered on February 5, 2014 (Doc. No. 13), Plaintiff’s Reply
Brief, if any, was due on May 21, 2014. Plaintiff did not file a reply brief. Accordingly, this
matter is ripe for the court’s review and ruling.
STANDARD OF REVIEW
This appeal is based upon the administrative record and briefs submitted by the parties.
In reviewing a final decision by the Commissioner, the role of the district court is to examine the
record and determine whether it “contains substantial evidence to support the Secretary’s
decision and whether the Secretary applied the correct legal standard.” Ricketts v. Apfel, 16 F.
Supp. 2d 1280, 1287 (D. Colo. 1998). The ALJ’s decision must be evaluated “based solely on
the reasons stated in the decision.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir.2004).
Substantial evidence is evidence a reasonable mind would accept as adequate to support a
conclusion. Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). Substantial evidence
requires “more than a scintilla, but less than a preponderance” of the evidence. Gossett v.
Bowen, 862 F.2d 802, 804 (10th Cir.1988).

3

“Evidence is not substantial if it is overwhelmed by other evidence in the record or
constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).
Further, “if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from
a lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
However, the court “must ‘exercise common sense’ in reviewing an ALJ’s decision and must not
‘insist on technical perfection.’” Jones v. Colvin, 514 F. App’x 813, 823 (10th Cir. 2013)
(quoting Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012)).
ANALYSIS
A.

Whether the ALJ Applied the Correct Legal Standard to and Properly Evaluated the
Opinion of Nurse Practitioner Frankie Cordova
Plaintiff argues that, in considering Plaintiff’s RFC, the ALJ applied the wrong legal

standard in evaluating the medical opinion evidence of Nurse Practitioner Frankie Cordova, one
of Plaintiff’s treatment providers, with respect to Plaintiff’s RFC. The court disagrees.
“The determination of [residual functional capacity] is an administrative assessment,
based upon all the evidence of how the claimant’s impairments and related symptoms affect her
ability to perform work-related activities.” Young v. Barnhart, 146 F. App’x 952, 955 (10th Cir.
2005) (citing Social Security Ruling 96-5p, 1996 WL 374183, at *2, 5). When the ALJ is
deciding a claimant’s RFC, he must consider all medical opinions included in the record. 20
C.F.R. § 404.1527(c). Here, the ALJ did not altogether fail to consider Ms. Cordova’s opinion.
Instead, in his written opinion, the ALJ acknowledged Ms. Cordova’s opinion as follows:
In October 2011, the claimant’s treatment provider, Frankie Cordova, FNP, opined that
the claimant suffered from severe pain and that this pain was severe enough to interfere
with attention and concentration needed to perform even simple work tasks. Ms.
Cordova also indicated that the claimant was incapable of even “low stress” jobs and
must use a cane or other assistive device in order to ambulate. Ms. Cordova then found
4

the claimant to be able to sit for 15 minutes, stand for 0-10 minutes, and would require
the ability to shift positions at will, take unscheduled breaks, and elevate her legs with
prolonged sitting.
(AR at 23.)
In reviewing her opinion, the ALJ noted that Ms. Cordova, as a nurse practitioner, was
not an acceptable medical source pursuant to the Commissioner’s regulations. See 20 C.F.R. §
416.913(d) (explaining that “other sources” include nurse practitioners); Social Security Ruling
(“SSR”) 06-03p, 2006 WL 2329939, at *1-2 (SSA Aug. 9, 2006) (listing “acceptable medical
sources” and “other sources”). As such, Ms. Cordova can neither issue medical opinions, see 20
C.F.R. § 404.1527(a)(2), nor be considered a treating source whose opinion must be evaluated to
determine whether it is entitled to controlling (i.e. determinative) weight, see 20 C.F.R. §
404.1513(d). Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007). See also SSR 06-03p,
2006 WL 2329939, at *2.
Nevertheless, the Commissioner has recognized that given the realities of modern-day
managed healthcare,
medical sources who are not “acceptable medical sources,” such as nurse
practitioners, physician assistants, and licensed clinical social workers, have
increasingly assumed a greater percentage of the treatment and evaluation functions
previously handled primarily by physicians and psychologists. Opinions from these
medical sources, who are not technically deemed “acceptable medical sources” under
our rules, are important and should be evaluated on key issues such as impairment
severity and functional effects, along with the other relevant evidence in the file.
SSR 06–03p, 2006 WL 2329939, at *3. Accordingly, such opinions still must be considered,
applying the same factors as are generally used to assess treating source opinions. Id. at *4. See
also 20 C.F.R. §§ 404.1527(c)(2)-(6) & 416.927(c)(2)-(6); Frantz, 509 F.3d at 1302. These
factors include: (1) the length of the treatment relationship; (2) the frequency of examination; (3)

5

the nature and extent of the treatment relationship; (4) the support of the provider’s opinion
afforded by the medical evidence of record; (5) the consistency of the opinion with the record as
a whole; and (5) the specialization of the provider. 20 C.F.R. §§ 404.1527(c)(2)-(6) &
416.927(c)(2)-(6); SSR 06-03p, 2006 WL 2329939, at *4-5. The regulations do not require that
the ALJ expressly discuss each factor. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
Here, the ALJ found that only “little weight can be afforded to Ms. Cordova’s opinions as
she is not an acceptable medical source for purposes of the Social Security Administration.”
(AR at 23.) If that were the end of the ALJ’s analysis of Ms. Cordova’s opinion, the court would
be inclined to agree that it constituted error. Frantz, 509 F.3d at 1302.
However, the ALJ went on to discuss the consistency of Ms. Cordova’s opinion with
other evidence in the record. “Medical evidence may be discounted if it is internally inconsistent
or inconsistent with other evidence.” Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007)
(internal quotation marks and citation omitted).
First, the ALJ reasonably concluded that Ms. Cordova’s opinion was inconsistent with
her contemporaneous examination findings. More specifically, in contrast to Ms. Cordova’s
opinion that Plaintiff’s knee pain imposed significant limitations on Plaintiff’s ability to perform
even low stress jobs (AR at 299), the October 2011 medical records prepared by Ms. Cordova
state that Plaintiff had normal range of motion in all extremities (id. at 305).
Plaintiff is correct that, contrary to Ms. Cordova’s objective findings, at least two other
treating physicians found that Plaintiff had a poor range of motion. (AR at 255-56 (findings of
Dr. Robinson in March 2010); 265-68 (findings of Dr. Summerlin in August 2010).) However,
the ALJ did not rely on the October 2011 medical records prepared by Ms. Cordova to

6

affirmatively find that Plaintiff had a good range of motion. Instead, the ALJ relied on the
October 2011 medical records only to discount Ms. Cordova’s opinion, based on the
inconsistency between those records and Ms. Cordova’s opinion. 20 C.F.R. 404.1527(c)(3)
(more weight is given to an opinion that is supported by relevant evidence, particularly medical
signs and laboratory findings); Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027,
1029 (10th Cir. 1994) (ALJ reasonably discounted treating physicians opinion where it was not
supported by his own office records).
The ALJ also gave Ms. Cordova’s opinion “little weight” because it was “inconsistent
with the claimant’s own stated abilities.” (AR at 23.) An ALJ reasonably discounts a treating
physicians’ opinion when it was inconsistent with statements from the claimant. Pisciotta, 500
F.3d at 1078-79 (ALJ reasonably discounted a treating physicians’ opinion when it was
inconsistent with statements from the claimant and his mother).
The court finds that the ALJ permissibly discounted Ms. Cordova’s opinion based on
inconsistencies with Plaintiff’s own stated abilities. First, while Ms. Cordova opined that
Plaintiff’s pain would constantly interfere with the attention and concentration necessary to
perform even simple work tasks and that Plaintiff was incapable of even “low stress” jobs (id. at
299), Plaintiff stated in July 2010 that she had no difficulty paying attention, following written or
spoken instructions, and was able to handle stress and changes in routine (id. at 193-94).
Further, while Ms. Cordova indicated that Plaintiff could not walk even one city block without
resting (id. at 299), Plaintiff stated in July 2010 that she could walk three blocks at a time
without resting (id. at 193).

7

Moreover, the court finds that there is substantial evidence in the record to support the
ALJ’s RFC findings. More specifically, after examining Plaintiff, Dr. Adam Summerlin
concluded that Plaintiff was capable of lifting 20 pounds occasionally and 10 pounds frequently
and was able to engage in occasional climbing, balancing, and stooping, but was unable to kneel,
crouch, or crawl. (AR at 256; see also id. at 23.) Plaintiff does not challenge the ALJ’s decision
to afford Dr. Summerlin’s opinion substantial weight based on his examining status and the
consistency of his opinions with the record. (see id. at 23.)
Further, the State Agency medical consultant, Dr. Kaseil Steinhardt, opined that Plaintiff
was capable of a sedentary exertional level of work with postural and environmental limitations.
(Id. at 23.) Once again, Plaintiff has not challenged the ALJ’s decision to afford “some weight”
to Dr. Steinhardt’s opinion. (see id. at 23-24.)
Ultimately, in arguing that the ALJ improperly discounted Ms. Cordova’s opinion,
Plaintiff requests that the court find that Ms. Cordova’s opinion outweighs the other medical
evidence in the record. It is not within this court’s purview to reweigh the evidence or substitute
its judgment for that of the ALJ. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
B.

Whether the ALJ’s Determination that Plaintiff could Perform Other Work in the
Economy was Supported by Substantial Evidence
In determining that Plaintiff was capable of performing other work in the economy, the

ALJ relied on the testimony of the VE to determine that Plaintiff was capable of performing
significant other work in the national economy. Plaintiff argues that the ALJ erred because the
hypothetical questioning of the VE did not apprise the VE of all of Plaintiff’s work-related
functional limitations.

8

Testimony elicited by hypothetical questions “must include all (and only) those
impairments borne out by the evidentiary record.” Evans v. Chater, 55 F.3d 530, 532 (10th Cir.
1995) (citations omitted). See also Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 2000)
(“[T]estimony elicited by hypothetical questions that do not relate with precision all of a
claimant’s impairments cannot constitute substantial evidence to support the Secretary’s
decision.”). Plaintiff does not state what limitations, if any, were excluded from the hypothetical
questions posed to the VE. (See Opening Brief at 14-15.) As such, the court finds that this
argument is without merit.
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’s fees.
Dated this 16th day of March, 2015.

9