Keeler IV v. Colvin

Filing 23

ORDER Affirming ALJ's Decision Denying Social Security Benefits. Each party shall pay its own costs and attorneys' fees. By Judge Christine M. Arguello on 09/04/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-02726-CMA
PRESTON J. KEELER IV,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING ALJ’S DECISION DENYING SOCIAL SECURITY BENEFITS
Plaintiff Preston J. Keeler, proceeding pro se, 1 claims he is disabled because he
suffers from myriad pain-related ailments that were triggered by a bad measles vaccine
and undiagnosed (and now chronic) Lyme disease. An Administrative Law Judge (ALJ)
disagreed, principally relying on a report from Dr. Michael Weaver, who asserted that
Plaintiff’s impairments were not disabling and that doctors who endorsed Plaintiff’s
position on the origin of his symptoms were relying on bad science. Plaintiff strenuously
disagrees with the ALJ’s reasoning, Dr. Weaver’s analysis, and the entire process that
has led to this appeal. None of these arguments are availing. Because the ALJ’s
determination is supported by substantial evidence, this Court affirms.
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Because Plaintiff is proceeding pro se, this Court interprets his “pleadings liberally, applying
a less stringent standard than is applicable to pleadings filed by lawyers.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). What
follows is this Court’s best attempt at interpreting Plaintiff’s somewhat disjointed briefing.

I. BACKGROUND
As the ALJ noted, this is a case in which there are “markedly divergent” medical
opinions about the extent and existence of Plaintiff’s impairments. (AR 27.) On the
one hand, Plaintiff urges that he suffers from chronic Lyme disease, chronic fatigue
syndrome, and generally debilitating pain. He claims his conditions derive in large part
from two causes: (1) a bad measles vaccine he received in 1984, which severely
damaged his immune system; and (2) untreated Lyme disease, which he contracted
from a tick bite in 1984, and which has ultimately led him to suffer from “chronic Lyme
disease.”
In support of his position, Plaintiff can point to some medical diagnoses that
suggest he is suffering from debilitating physical impairments. See, e.g., (AR 541-45,
548-52) (June 2011 opinions rendered by Dr. Ruben Zorilla who, although never stating
that he physically examined Plaintiff, asserts that Plaintiff has Lyme disease, suffers
from chronic muscular and joint pain, and would need lifelong treatment for these
ailments); (AR 557-63) (opinion from a non-treating physical therapist who performed
some examination of Plaintiff, suggested that Lyme disease caused Plaintiff’s ailments,
and concluded that Plaintiff was able to only minimally perform work-related tasks
because of pain).
On the other hand, the ALJ relied principally on the opinion testimony of
Dr. Michael Weaver, who conceded that Plaintiff suffered from some pain and
tenderness on palpation but concluded that: (1) there was no sound basis for
concluding that Plaintiff (still) suffered from Lyme disease or had received a bad

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vaccine; (2) the treatment records that Plaintiff provided did not reflect the severity or
frequency of the ailments from which Plaintiff claims to suffer, such as chronic pain or
a severely weakened immune system; and (3) lab results indicating Plaintiff had Lyme
disease came from a discredited clinic and were, therefore, not reliable. (AR 528-35.)
Notably, in discounting Lyme disease as a cause of Plaintiff’s pain, Dr. Weaver
relied on a report from the New England Journal of Medicine, which concluded that the
medical consensus on “chronic Lyme disease” is that it does not exist, even if this view
is not held by the wider public. See Henry Feder, Jr., et al., A Critical Appraisal of
“Chronic Lime Disease”, 357 New Eng. J. Med. 1422 (Oct. 2007), available at
http://www.nejm.org/doi/full/10.1056/nejmra072023.
Further, Dr. Weaver appears to have consulted Wikipedia in determining whether
or not, in line with Plaintiff’s allegations, a defective measles vaccine that Plaintiff
received in 1984 resulted in widespread fatalities and greatly weakened Plaintiff’s
immune system. Dr. Weaver noted that neither Wikipedia nor an authority affiliated
with the National Institutes of Health corroborated Plaintiff’s allegations. (AR 379-85,
386-91.) He further noted that there was a lack of evidence of “frequent, unusual, or
opportunistic infection” that would be present in someone with a compromised immune
system. (AR 535.) In light of this evidence, Dr. Weaver concluded that there was
significant evidence that cut against Plaintiff’s assertion that he had some sort of
immunodeficiency. (AR 535.)
Dr. Weaver’s opinion is largely supported by Dr. John Mars, who also examined
Plaintiff, accepted that Plaintiff suffered from chronic Lyme disease, but nevertheless

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concluded that Plaintiff could, among other things, lift and carry up to fifteen pounds,
sit without restriction, stand and walk for up to ten minutes each hour. See, e.g.,
(AR 481-84.)
The ALJ ultimately endorsed Dr. Weaver’s position, echoing the doctor’s concern
that Plaintiff’s infrequent trips to any medical professional undermined his claim that he
was suffering from constant and intense pain. The ALJ further noted that Dr. Weaver’s
position was supported by Dr. Mars and that, on the whole, the record evidence
supported a finding that Plaintiff had residual functional capacity to perform work,
notwithstanding his impairments. (AR 24-34.)
Plaintiff now challenges several aspects of this reasoning on appeal.
II. 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. 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. Wall, 561 F.3d at 1084. In
reviewing the record and the arguments of counsel, the Court does not reexamine
the issues de novo, Sisco v. United States Department of Health and Human Services,
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, even when some evidence may have supported contrary findings, the

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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).
III. ANALYSIS
Applying the above standard here, this Court finds that there was substantial
evidence to support the ALJ’s determination about the extent of Plaintiff’s disabilities.
In short, Dr. Weaver presents a “fairly conflicting view[],” Oldham, 509 F.3d at 1257-58,
to the contrary evidence provided by Plaintiff regarding his disability. Further,
Dr. Weaver’s view is well-supported: he relied on a preeminent medical journal in
discounting Plaintiff’s allegations of “chronic Lyme disease,” and he pointed to several
important inconsistencies in Plaintiff’s allegations about the severity of his symptoms.
For example, he noted the lack of a medical record that one would expect from a person
complaining of nearly constant and excruciating pain and a compromised immune
system. More broadly, Dr. Weaver’s conclusion that Plaintiff is not disabled is echoed
by Dr. Mars who reached a similar conclusion in determining the amount of physical
activity appropriate for Plaintiff in a given work day, even accepting that Plaintiff suffered
from Lyme disease.
To be sure, Plaintiff can point to contrary evidence in the record that conflicts with
ALJ’s endorsed narrative of Plaintiff’s life and disability. However, that is beside the
point. It is not the province of this Court to “displace the agency’s choice between two
fairly conflicting views” on whether Plaintiff has certain ailments or whether they are

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disabling, even if the Court may have “made a different choice [about how to view this
evidence] had the matter been before it de novo.” Oldham, 509 F.3d at 1258.
Plaintiff resists this conclusion on a number of grounds. The Court considers
each in turn.
First, Plaintiff asserts that the ALJ committed reversible error when he supported
Dr. Weaver’s opinion because Dr. Weaver relied on Wikipedia in discrediting Plaintiff’s
claim that his immune system was compromised by a bad measles vaccine. This Court
finds no per se prohibition on citing Wikipedia in judicial opinions. Further, Dr. Weaver
relied not only on this source, but also on an authority administered by the National
Institute of Health and his own observation that, if Plaintiff suffered from some sort of
immunodeficiency, it would be reflected by more frequent hospital visits or at least
some sort of medical diagnosis. (AR 535.) These additional bases for Dr. Weaver’s
determination are sufficient for purposes of this Court’s more deferential review of the
ALJ’s opinion. 2
Second, throughout his briefing, Plaintiff expresses frustration both with the
demeanor of various doctors who provided assessments of Plaintiff’s disability and the
processes and procedures the Social Security Administration has implemented to
assess his disability claim. See, e.g., (Doc. # 14 at 8) (noting that Drs. Weaver and
Mars examined Plaintiff only for a minimal amount of time and had a brusque approach
2

This position would hold even if, as Plaintiff suggests in his Reply brief (Doc. # 16 at 5), there
are documented episodes from 1984 of adverse effects to a measles vaccine. Indeed, what is
crucial here is not so much the existence of this episode in 1984 but its continued effect on
Plaintiff thirty years later: as to this latter issue, the dearth of medical evidence documenting
some sort of immunodeficiency is what is most fatal to Plaintiff’s contrary position.

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to the physical examination); (id. at 10) (suggesting that the SSA is an “incompetent
bureaucracy”); (Doc. # 16 at 3) (decrying the “disparaging tone[]” used by many medical
professional who assessed Plaintiff’s claim). Relatedly, Plaintiff alleges that the conduct
of these entities and actors rises to the level of intentional infliction of emotional
distress.
These arguments are unavailing. Whatever Plaintiff’s concerns about the
process used or the demeanor of the people who aided the ALJ in making his
determination, Plaintiff does not raise a valid argument about how this affected the
substance of what was decided by the ALJ. Further, to the extent that Plaintiff can
explore tort actions against any of these actors, this appeal is not the proper forum to
do so.
Third, Plaintiff suggests that the vocational expert was unqualified to render
an opinion about Plaintiff because she did not know the nuances of Plaintiff’s case
or his health condition. (Doc. # 14 at 11.) The Vocational Expert did not need these
qualifications: her only task is to provide the ALJ with a response about the availability
of certain jobs when prompted by a hypothetical question posed by the ALJ. 3

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In his Reply, Plaintiff raises two new arguments: (1) that the ALJ erred in insufficiently
considering the opinion of Dr. Zorilla, who concluded that Plaintiff had no ability to work and
who appears to have examined Plaintiff on several occasions; and (2) that the ALJ erred in
failing to consider as a severe impairment Plaintiff’s extreme light, sound, and body-temperature
sensitivity. Plaintiff has forfeited these arguments by failing to raise them in his opening brief.
See, e.g., Hanh Ho Tran v. Trustees of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir.
2004). Further, on the merits, they fail. First, the record establishes both that Dr. Zorilla had a
limited treating relationship with Plaintiff—indeed, it appears that Dr. Zorilla performed no actual
examinations of Plaintiff but rather just filled out reports—and that this doctor’s conclusions
conflict with the broader record evidence, which the ALJ concluded were more fully reflected in
Dr. Weaver’s opinion. (AR at 32-33.) Cf. Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir.
2003) (holding that factors to be considered in discounting a treating physician’s opinion include

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IV. 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 as to Plaintiff’s
disabilities.
Accordingly, it is ORDERED that the ALJ’s denial of disability benefits is
AFFIRMED. It is FURTHER ORDERED that each party shall pay its own costs and
attorneys’ fees.
DATED: September 4, 2014
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

the nature and extent of the treatment relationship and the extent to which the opinion is
consistent with the record as a whole). Second, Plaintiff’s allegation about sensitivity to sound,
light, and extreme temperatures is hardly documented in the record and Plaintiff makes no
coherent attempt to explain why based on such limited references, the alleged impairment
should be treated as severe. Cf. Cowan v. Astrue, 552 F.3d 1182, 1186 (10th Cir. 2008)
(noting that “a showing of the mere presence of a condition is not sufficient” to make it severe).

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