Morgan v. Colvin

Filing 28

ORDER by Judge Philip A. Brimmer on 3/30/15. ORDERED: The decision of the Commissioner that plaintiff Andrew M. Morgan was not disabled is AFFIRMED. (kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-02766-PAB
ANDREW M. MORGAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER

This matter is before the Court on plaintiff Andrew M. Morgan’s complaint
[Docket No. 1], filed on October 10, 2013. Plaintiff seeks review of the final decision of
defendant Carolyn W. Colvin (the “Commissioner”) denying plaintiff’s claim for disability
insurance benefits under Title II and supplemental security income under Title XVI of
the Social Security Act (the “Act”), 42 U.S.C. §§ 401-33 and 1381-83c. T he Court has
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g).
I. BACKGROUND
On January 26-27, 2011, plaintiff applied for disability insurance benefits and
supplemental security income under Titles II and XVI of the Act. R. at 12. Plaintiff
alleged that he had been disabled since November 17, 2004. Id. After an initial
administrative denial of his claim, plaintiff appeared at a hearing before an
Administrative Law Judge (“ALJ”) on August 9, 2012. Id. On August 30, 2012, the ALJ
denied plaintiff’s claim. Id. at 22.

The ALJ found that plaintiff had the severe impairments of degenerative disc
disease of the lumbar spine, panic disorder, and posttraumatic stress disorder. R. at
15. The ALJ found that these impairments, alone or in combination, did not meet or
medically equal one of the regulations’ listed impairments, id., and found that plaintiff
had the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b)
except he can lift and carry 20 pounds occasionally and 10 pounds
frequently; stand and/or walk 4 hours in an 8-hour workday; and sit 6 hours
in an 8-hour workday. [Plaintiff] can never climb ladders/ropes/scaffolds, but
can otherwise occasionally climb, balance, stoop, kneel, crouch and crawl.
[Plaintiff] should avoid hazards such as unprotected heights, moving
mechanical parts, and operation of a motor vehicle. Mentally, [plaintiff] can
understand, remember, and carry out simple instructions.
R. at 16. Based upon this RFC and in reliance on the testim ony of a vocational expert
(“VE”), the ALJ concluded that “there are jobs that exist in significant numbers in the
national economy” that plaintiff can perform. Id. at 21.
The Appeals Council denied plaintiff’s request for review of the ALJ’s partial
denial. R. at 1. Consequently, the ALJ’s decision is the final decision of the
Commissioner.
II. ANALYSIS
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and
whether the decision is supported by substantial evidence in the record as a whole.
See Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). T he district court may
not reverse an ALJ simply because the court may have reached a different result
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based on the record; the question instead is whether there is substantial evidence
showing that the ALJ was justified in her 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). Moreo ver,
“[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). The district 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. 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).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous
period of twelve months that prevents the claimant from performing any substantial
gainful work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2).
Furthermore,
[a]n individual shall be 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, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
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exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and
(5) whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point
in the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of
Health and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisf ied her burden
of establishing a prima facie case of disability under steps one, two, and four, the
burden shifts to the Commissioner to show the claimant has the residual functional
capacity (RFC) to perform other work in the national economy in view of her age,
education, and work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). W hile the
claimant has the initial burden of proving a disability, “the ALJ has a basic duty of
inquiry, to inform himself about facts relevant to his decision and to learn the claimant’s
own version of those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).

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C. The ALJ’s Decision
Plaintiff argues that the ALJ erred by (1) rejecting plaintiff’s subjective
complaints due to plaintiff’s failure to undergo a recommended surgery and (2) failing
to consider and/or mischaracterizing medical evidence in the record. See generally
Docket No. 13. Plaintiff also argues, in the alternative, that this case should be
remanded pursuant to sentence six of 42 U.S.C. § 405(g) because plaintiff obtained
new and material evidence of his disability shortly after the hearing. Id. at 21-23.
The relevant evidence of record is as follows.1 Plaintiff alleges he became
disabled on November 17, 2004, R. at 172, but alleges he stopped working because of
his condition on April 1, 2010. Id. at 222. In his disability report, plaintiff claimed that
he suffered from a broken spine, anxiety disorder, and PTSD. Id. In October 2010,
plaintiff reported to Dr. Jennifer Blair that he was experiencing neck pain after falling
down a flight of stairs. Id. at 364. A December 14, 2010 MRI revealed “grade 1-2
anterior spondylolisthesis”2 at the L5-S1 vertebrae and “severe narrowing of the
bilateral foramina, left greater than right.” Id. at 342-43. In January 2011, Dr. Mark
Robinson recommended a transforaminal lumbar interbody fusion surgery. R. at 379.
Plaintiff was initially scheduled for the surgery in February 2011, but he canceled the
surgery. Id. at 424. A subsequent MRI in August 2011 showed “stable severe bilateral

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Plaintiff does not challenge the ALJ’s findings concerning plaintiff’s mental RFC.
See generally Docket No. 13. As such, the Court only recites facts that are relevant to
the ALJ’s physical RFC determination.
2

Spondylolisthesis is “[f]orward movement of the body of one of the lower lumbar
vertebrae on the vertebra below it, or on the sacrum.” Stedman’s Medical Dictionary
spondylolisthesis (27th ed. 2000).
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neural foraminal narrowing including significant compression of the bilateral exiting L5
nerve roots.” Id. at 421. In January 2012, Dr. Robinson observed that plaintiff has
“severe narrowing of his exiting nerve roots” and “would benefit significantly from the
surgery.” Id. at 424-25.
Sometime before March 14, 2012, plaintiff was scheduled for surgery, but the
surgery was postponed due to weather. Id. at 433. Plaintiff testified at the hearing that
he never underwent the surgery. Id. at 40.
On April 19, 2011, Kirk Lima, a “single decision maker” (“SDM”), completed a
physical residual functional capacity assessment of plaintiff. R. at 54-56. The SDM
opined that plaintiff can occasionally lift 20 pounds and frequently lift 10 pounds, can
stand and/or walk for four hours and sit for about six hours in an eight-hour workday,
should climb ramps, stairs, ladders, ropes, or scaffolds only occasionally, and should
balance, stoop, kneel, and crouch only occasionally. Id. at 55. The SDM opined that
plaintiff has no manipulative, visual, communicative, or environmental limitations. Id. at
56. In July 2012, orthopedic surgeon Dr. Morris Susman reviewed the record to
evaluate plaintiff’s claimed limitations. R. at 419. Dr. Susman adopted the findings of
the SDM, but added the limitations that plaintiff should never climb ladders, ropes and
scaffolds, and should avoid concentrated exposure to hazards which could require
sudden body movement. Id.
In October 2012, following the ALJ’s adverse decision, plaintiff submitted
additional documents to the Appeals Council. See R. at 437-94. These records
showed that, on October 1, 2012, plaintiff complained to Dr. Blair that he had recently

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started a job as a diesel mechanic and started having “bad back pain.” Id. at 466. An
MRI performed in October 2012 found that plaintiff had “grade II spondylolisthesis” with
“moderate to marked bilateral facet joint hypertrophy with ligamentum flavum
thickening” and “severe bilateral foraminal stenosis and compression of bilateral L5
roots.” Id. at 439. Following the October 2012 MRI, plaintiff met with neurosurgeon
Joseph Morreale, who observed that plaintiff had a limited range of motion in the
lumbar spine due to pain, had “no gait disturbance,” and had “grade 2 isthmic
spondylolisthesis at L5-S1” with “significant compression of the L5 nerve roots
bilaterally.” Id. at 444-45. Dr. Morreale observed that he did “not see any way
[plaintiff] can continue to work with this.” Id. at 445. The Appeals Council found that
the documents submitted after the hearing concerned a time period after the ALJ’s
decision and thus did not affect it. Id. at 1-2.
1. The ALJ’s Credibility Determination
Plaintiff argues that the ALJ erred in finding that plaintiff’s subjective complaints
about the severity of his impairments were not credible. Docket No. 13 at 12.
Specifically, plaintiff argues that the ALJ discounted his subjective complaints because
plaintiff declined to undergo a recommended surgery, but did not conduct the inquiry
necessary to deny plaintiff benefits for failure to follow prescribed treatment. Id. at 13
(citing Teter v. Heckler, 775 F.2d 1104, 1107 (10th Cir. 1985)). 3 Plaintiff claims that he
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In Teter, the Tenth Circuit held that a court reviewing whether a claimant’s
noncompliance with prescribed treatment precludes recovery of disability benefits must
consider whether there is substantial evidence that (1) the treatment at issue is
expected to restore the claimant’s ability to work, (2) the treatment was prescribed, (3)
the treatment was refused, and (4) the refusal was without a justifiable excuse. Teter,
775 F.2d at 1107; see also Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987) (same).
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had a justifiable excuse for noncompliance, namely, the substantial risks associated
with the surgical procedures his treaters recommended. See Docket No. 13 at 16-17.
“Credibility determinations are peculiarly the province of the finder of fact” and
the Tenth Circuit will uphold such determinations, so long as they are supported by
substantial evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). Credibility
determinations may not be conclusory, but must be “closely and affirmatively linked” to
evidence in the record. Id. However, the “possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the] agency’s findings from being
supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (quotations omitted). The court may not “displace the agenc[y’s] choice
between two fairly conflicting views, even though the court would justifiably have made
a different choice had the matter been before it de novo.” Id.
The Commissioner argues that the four-factor inquiry that plaintiff refers to only
applies when an ALJ denies benefits on the basis of noncompliance and does not
apply here, where the ALJ used noncompliance with recommended treatment as a
basis for his credibility finding. Docket No. 14 at 11. The Court agrees with the
Commissioner. The Tenth Circuit has clarified that the factors outlined in Teter and
Frey do not apply where an ALJ considers evidence that a claimant did not follow
prescribed treatment in assessing the claimant’s credibility. See Qualls v. Apfel, 206
F.3d 1368, 1372 (10th Cir. 2000) (distinguishing Frey where “[t]he ALJ . . . did not
purport to deny plaintiff benefits on the ground he failed to follow prescribed treatment.
Rather, the ALJ properly considered what attempts plaintiff made to relieve his pain –

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including whether he took pain medication – in an effort to evaluate the veracity of
plaintiff’s contention that his pain was so severe as to be disabling”) (citations omitted);
see also Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996) (upholding credibility
finding because “[t]he failure to follow prescribed treatment is a legitimate
consideration in evaluating the validity of an alleged impairment”).
Plaintiff argues that the ALJ’s failure to consider his plausible justification for
noncompliance is relevant to credibility determinations as well. Docket No. 17 at 5
(citing Holbrook v. Colvin, 521 F. App’x 658, 662 n.5 (10th Cir. 2013)). The Holbrook
court noted that “noncompliance could lose its force” in determining credibility “if the
claimant asserted a plausible justification.” Holbrook, 521 F. App’x at 663 n.5. The
Court need not decide, however, whether the ALJ committed error in not specifically
discussing plaintiff’s alleged fear of the risks of surgery. As the Commissioner points
out, plaintiff’s decision to decline recommended surgery was only one of several
grounds that the ALJ cited in finding that plaintiff’s subjective complaints were not fully
credible. The ALJ also considered plaintiff’s “poor work record,” R. at 19, objective
findings that plaintiff’s pain was well managed with medication and that he had an
“intact balance/gait,” id., global assessment of functioning scores that indicated only
mild to moderate symptoms, id., and plaintiff’s reports to treaters that his anxiety was
only intermittent. Id. The Court finds that the ALJ’s credibility finding is “closely and
affirmatively linked” to evidence in the record, Kepler, 68 F.3d at 391, and is therefore
supported by substantial evidence.
2. Consideration of Medical Evidence
Plaintiff argues that the ALJ erred in failing to discuss significant medical
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evidence and in mischaracterizing the evidence of record as showing “rather
unremarkable objective exam findings.” Docket No. 13 at 19.
Plaintiff argues that the ALJ did not discuss plaintiff’s August 2011 MRI, which
showed “stable significant compression of the bilateral exiting L5 nerve roots,” id.
(citing R. at 420-21) (plaintiff’s emphasis removed), and Dr. Robinson’s January 2012
opinion that plaintiff had “severe narrowing of the exiting nerve roots” and would
benefit significantly from the surgery. Id. (citing R. at 424). The Court disagrees. The
ALJ’s RFC determination was based on Dr. Susman’s review of plaintiff’s record. R. at
20; see also id. at 419. Dr. Susman’s July 2012 review post-dates the August 2011
MRI and Dr. Robinson’s treating notes. Id. at 419. Based on his review of plaintiff’s
record, Dr. Susman adopted, with modifications, the SDM’s assessment of plaintiff’s
RFC. See id. at 419. Plaintiff does not point to anything in the report of the August
2011 MRI result or Dr. Robinson’s treatment record that contradicts Dr. Susman’s
findings as to plaintiff’s residual functional capacity. Moreover, Dr. Susman’s physical
RFC finding was the only such opinion on record from a medical source, and the ALJ
found that it was entitled to substantial weight because it was “consistent with and
supported by the objective findings of record.” Id. at 20. An ALJ is entitled to rely on a
State agency physician’s opinion so long as he explains the weight he is giving to it.
See Hamlin v. Barnhart, 365 F.3d 1208, 1216 (10th Cir. 2004). T he Court finds that
the ALJ did not err in his treatment of plaintiff’s medical records.
Plaintiff also argues that the ALJ mischaracterized medical evidence as
reflecting “rather unremarkable objective exam findings.” Docket No. 13 at 19. Plaintiff
does not point to any specific record that the ALJ mischaracterizes, but instead notes
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that plaintiff’s primary care provider is “a clinic for the uninsured or underinsured, which
potentially affected the qualify of care he received,” and points to the absence of notes
of testing as evidence of a “dearth of physical examinations of Plaintiff’s
musculoskeletal region.” Id. at 19-20. The legal effect of plaintiff’s argument is
unclear. Plaintiff appears to take issue with the ALJ’s conclusion that the objective
exam findings were “unremarkable” by pointing to a relative scarcity of such findings,
but plaintiff does not argue that the ALJ failed to develop a sufficient record. The
Court finds that the ALJ did not mischaracterize any medical evidence in a manner that
was prejudicial to plaintiff’s claim for benefits.
3. Sentence Six Remand
Plaintiff argues that, if the Court finds that the ALJ’s decision is supported by
substantial evidence, the Court should remand the case pursuant to sentence six of 42
U.S.C. § 405(g) (“sentence six”).
Sentence six provides that the Court “may at any time order additional evidence
to be taken before the Commissioner of Social Security, but only upon a showing that
there is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).
A sentence six remand is not a ruling on the merits of the ALJ’s decision. See Nguyen
v. Shalala, 43 F.3d 1400, 1403 (10th Cir. 1994).
The Commissioner argues that a sentence six remand is not appropriate
because plaintiff submitted Dr. Morreale’s notes and the October 2012 MRI to the
Appeals Council. Docket No. 14 at 18-19. The Court agrees. Sentence six applies
only to evidence that a party “fail[ed] to incorporate . . . into the record in a prior
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proceeding.” 42 U.S.C. § 405(g). Evidence presented to, and rejected by, the Appeals
Council is not new for sentence six purposes. DeGrazio v. Colvin, 558 F. App’x 649,
652 (7th Cir. 2014) (“The evidence that the Commissioner characterized as ‘new’ in
her motion . . . was not new for purposes of sentence six because it already had been
presented to the Appeals Council”); see also Ingram v. Comm’r of Soc. Sec. Admin.,
496 F.3d 1253, 1269 (11th Cir. 2007) (“Sentence six allows the district court to remand
to the Commissioner to consider previously unavailable evidence; it does not grant a
district court the power to remand for reconsideration of evidence previously
considered by the Appeals Council”). A sentence six remand is therefore inappropriate
in this case.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff Andrew M.
Morgan was not disabled is AFFIRMED.

DATED March 30, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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