Mason v. Colvin

Filing 28

ORDER the Court AFFIRMS the Commissioners denial of benefits. The Clerk shall close this case and enter judgment in favor of Defendant, by Judge William J. Martinez on 2/12/2015. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2824-WJM
WILMA MASON,
Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security
Defendant.

ORDER AFFIRMING ADMINISTRATIVE LAW JUDGE’S DENIAL OF BENEFITS

This is a social security benefits appeal brought under 42 U.S.C. § 405(g) and 42
U.S.C. § 1383(c)(3). Plaintiff Wilma Mason (“Plaintiff”) challenges the final decision of
Defendant, the Commissioner of Social Security (“Commissioner”), denying her
application for disability insurance benefits, as well as supplemental security income
benefits. The denial was affirmed by an administrative law judge (“ALJ”), who ruled
Plaintiff was not disabled within the meaning of the Social Security Act (“Act”). This
appeal followed. For the reasons set forth below, the Commissioner’s decision is
affirmed.
I. BACKGROUND
Plaintiff was born on April 26, 1971 and was 39 years old on the alleged disability
onset date. (Admin. Record (“R.”) (ECF No. 15) at 35.) Plaintiff has at least a high
school education and is able to communicate in English. (Id.) Plaintiff has past
relevant work experience as a truck driver, assistant manager, retail, and amusement

park worker. (Id.)
Plaintiff filed an application for disability insurance benefits and supplemental
security income on October 14, 2010. 1 (R. at 22.) Her applications were initially denied
on January 21, 2011. (Id.) After a request for hearing, Plaintiff’s claims were heard in a
video hearing before ALJ Kim S. Nagle on June 19, 2012. (Id.) Plaintiff and vocational
expert Timothy Shaner testified at the administrative hearing. (Id.)
On June 29, 2012, the ALJ issued a written decision in accordance with the
Commissioner’s five-step sequential evaluation process. 2 At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since October 12, 2010, the
alleged onset date. (R. at 25.) At step two, she found that Plaintiff suffered from the
following severe impairments: degenerative disc disease with low back pain, obesity,
personality disorder, bipolar disorder, and marijuana dependence. (Id.) At step three,
the ALJ found that Plaintiff’s impairments, while severe, did not meet or medically equal
any of the impairments or combination of impairments listed in the social security
regulations. (R. at 26.)
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
1

Plaintiff’s application was filed under the name Wilma Bane, but Plaintiff changed her
name to Wilma Mason after marrying. (R. at 49-50.)
2

The five-step process requires 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 through steps one to four; the Social Security
Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).

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following limitations:
[T]he claimant would require the option to sit or stand
alternatively at will while at her workstation provided she is
not off-task more than 10% of the work period. She can
never climb ladders, ropes or scaffolds but can occasionally
balance, stoop, crouch, kneel and crawl. The claimant is
limited to jobs that can be performed while using a handheld assistive device required for ambulation, while the
contralateral extremity can be used to lift and carry up to her
exertional limitation. She should avoid concentrated
exposure to dangerous moving machinery and unprotected
heights. The claimant should avoid jobs that require
teamwork. She is capable of performing simple, work
related decisions with ordinary routines and simple
instructions. The claimant should have only occasional
interaction with the public, her co-workers and supervisors.
(R. at 30.)
At step four, the ALJ found that Plaintiff could not perform any of her past
relevant work. (R. at 34-35.) At step five, the ALJ found that there were significant
numbers of jobs in the national economy that Plaintiff could perform. (R. at 35.)
Specifically, the ALJ found that Plaintiff could work as a packager, assembler, or
surveillance systems monitor. (R. at 36.) Accordingly, the ALJ found that Plaintiff was
not disabled within the meaning of the Act and, thus, not entitled to benef its. (Id.)
The Appeals Council denied Plaintiff’s request for review on August 21, 2013.
(R. at 1.) Plaintiff then filed this action seeking review of the Commissioner’s decision.
(ECF No. 1.) Plaintiff’s Opening Brief was filed on March 14, 2014. (ECF No. 18.) The
Commissioner’s Response Brief (ECF No. 19) was filed on April 9, 2014, and Plaintiff’s
Reply Brief (ECF No. 20) was filed on April 25, 2014.
II. LEGAL STANDARD
The Court reviews the Commissioner’s decision to determine whether substantial
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evidence in the record as a whole supports the factual findings and whether the correct
legal standards were applied. 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. Id. “It requires more than a scintilla, but less than a
preponderance.” 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 Commissioner’s decision,
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). “On the other hand, 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).
III. ANALYSIS
In her appeal, Plaintiff raises three arguments with respect to the ALJ’s denial of
benefits: (1) the ALJ erred at step three by not properly evaluating whether Plaintiff’s
physical impairments met Listing 1.04; (2) the ALJ did not properly weigh the medical
opinion of Dr. Juanita C. Ainsley, Psy.D., in formulating the RFC; and (3) the restriction
in the RFC of a sit/stand option at will was not sufficiently specific to result in a reliable
answer from the vocational expert. (ECF No. 18 at 7-13.) The Court will address each
of these arguments in turn below.
A.

Listing 1.04
Plaintiff makes two arguments that the ALJ erred at step three: (1) the ALJ did

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not properly evaluate whether Plaintiff’s spinal and back impairments met Listing 1.04,
and (2) the ALJ should have consulted a medical expert to determine whether Listing
1.04C was met or equaled. (ECF No. 18 at 7-10.)
The analysis of a claim at step three requires consideration of whether a
claimant has an impairment that meets or equals any listing found at 20 C.F.R. § 404,
Subpart P, Appendix 1. If a claimant has such an impairment, he is deemed disabled
and no further analysis is required. See 20 C.F.R. § 404.1520(a)(4)(iii); (d). A
claimant’s impairment “meets” a Listing if such impairment matches all of the specified
criteria in one of the Listings. 20 C.F.R. § 404.1525(c)(3). A claimant’s impairment, or
combination of impairments, “equals” a Listing where the impairment “is at least equal
in severity and duration to the criteria of any listed impairment.” 20 C.F.R. §
404.1526(a). An ALJ is required “to discuss the evidence and explain why [s]he found
that [a claimant] was not disabled at step three.” Clifton v. Chater, 79 F.3d 1007, 1009
(10th Cir. 1997). In the absence of ALJ findings supported by specific weighing of the
evidence, the reviewing court “cannot assess whether relevant evidence adequately
supports the ALJ’s conclusion that the appellant’s im pairments did not meet or equal
any Listed Impairment, and whether he applied the correct legal standards to arrive at
that conclusion.” Id.
Plaintiff contends that the ALJ’s step three analysis was insufficient because the
ALJ failed to provide sufficient reasoning supporting her conclusion that Plaintiff’s
impairment did not meet or medically equal Listing 1.04, Disorders of the Spine. (ECF
No. 18 at 7-9.) Listing 1.04 requires a diagnosis of a disorder of the spine resulting in
compromise of a nerve root or the spinal cord, accompanied by one of three medical
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consequences. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04. Plaintif f argues that she
should have been found to meet or equal Listing 1.04C, which requires “[l]umbar spinal
stenosis resulting in pseudoclaudication, established by findings on appropriate
medically acceptable imaging, manifested by chronic nonradicular pain and weakness,
and resulting in inability to ambulate effectively, as defined in 1.00B2b.” Id. § 1.04C.
The relevant definition of an “inability to ambulate effectively” is as follows:
Inability to ambulate effectively means an extreme limitation
of the ability to walk; i.e., an impairment(s) that interferes
very seriously with the individual’s ability to independently
initiate, sustain, or complete activities. Ineffective
ambulation is defined generally as having insufficient lower
extremity functioning (see 1.00J) to permit independent
ambulation without the use of a hand-held assistive
device(s) that limits the functioning of both upper
extremities.
Id. § 1.00B2b. Plaintiff asserts that she was diagnosed with a disorder of the spine that
resulted in pseudoclaudication, and points to m edical evidence that she required an
assistive device to walk, as well as her own testimony that she had been using two
canes to walk without falling. (ECF No. 18 at 8-9.)
In this case, the Court finds that the ALJ’s analysis at step three applied the
correct legal standards and was supported by substantial evidence. The ALJ discussed
Plaintiff’s testimony that she requires a cane, but found that she did not require two
canes or a walker. (R. at 27.) Because the definition of an “inability to ambulate
effectively” requires the use of one or more devices which occupy both hands, the use
of a single cane does not meet that standard. See 20 C.F.R. Pt. 404, Subpt. P, App. 1
§ 1.00B2b1. On review of Plaintiff’s testimony that she uses two canes, the Court notes
that Plaintiff admitted that her physician said, “I won’t prescribe them for you,” and that
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instead, she purchased them at an auction. (R. at 57-58.) Plaintiff did not testify that
she required two canes to walk, only that she had been using the two canes she had
purchased. (Id.) The medical records support a finding that Plaintiff “does walk with a
cane”, but Plaintiff has pointed to no evidence that two canes are required due to
insufficient functioning of her lower extremities. (R. at 325); see 20 C.F.R. Pt. 404,
Subpt. P, App. 1 § 1.00B2b1. Accordingly, the ALJ’s finding that Listing 1.04C was not
met or equaled was supported by substantial evidence. See Lax, 489 F.3d at 1084.
Further, because the ALJ specifically discussed the evidence at issue, the Court finds
that the ALJ’s step three analysis was sufficient. See Clifton, 79 F.3d at 1009.
Plaintiff next argues that the ALJ should have consulted a medical expert to
determine whether Listing 1.04C was met or equaled. (ECF No. 18 at 9.) An ALJ must
seek a medical expert’s opinion at step three under two circumstances: (1) when no
additional medical evidence is received but the ALJ finds that “the symptoms, signs,
and laboratory findings reported in the case record suggest that a judgment of
equivalence may be reasonable; or [2] when additional medical evidence is received
that in the opinion of the [ALJ] or the Appeals Council may change the . . . finding that
the impairment(s) is not equivalent in severity to any impairment in the Listing of
Impairments.” Social Security Ruling (“SSR”) 96-6p, 1996 WL 374180, at *4 (July 2,
1996).
The Court finds that neither of these two circumstances applies here. The ALJ’s
discussion of the evidence at step three demonstrates that she did not make the
predicate finding that “a judgment of equivalence may be reasonable” to require an
expert’s opinion, and there is no indication that any additional medical evidence was
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received or that the ALJ opined that such evidence would change her step three
analysis. Because the ALJ’s decision at step three was supported by substantial
evidence, the Court finds no basis on which to require an updated medical opinion from
an expert.
Therefore, the Court finds that Plaintiff has failed to show any error in the ALJ’s
analysis of Listing 1.04 at step three.
B.

Dr. Ainsley’s Opinion
Plaintiff argues that the ALJ erred in her evaluation of Dr. Ainsley’s medical

opinion.3 (ECF No. 18 at 10-12.) In determining what weight to give any medical
opinion, the ALJ “must . . . consider a series of specific factors” listed in 20 C.F.R. §
404.1527(d) and § 416.927(d). Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir.
2004). Those sections of Title 20 of the Code of Federal Regulations provide as
follows:
How we weigh medical opinions. Regardless of its source,
we will evaluate every medical opinion we receive. Unless
we give a treating source’s opinion controlling weight under
paragraph (d)(2) of this section, we consider all of the
following factors in deciding the weight we give to any
medical opinion.
(1) Examining relationship. Generally, we give more weight
to the opinion of a source who has examined you than to the
opinion of a source who has not examined you.
(2) Treatment relationship. . . .
(3) Supportability. The more a medical source presents

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Because Dr. Ainsley was not a treating physician, the sequential process applicable to
treating physicians is not relevant here. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th
Cir. 2003).

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relevant evidence to support an opinion, particularly medical
signs and laboratory findings, the more weight we will give
that opinion. The better an explanation a source provides
for an opinion, the more weight we will give that opinion.
Furthermore, because nonexamining sources have no
examining or treating relationship with you, the weight we
will give their opinions will depend on the degree to which
they provide supporting explanations for their opinions. We
will evaluate the degree to which these opinions consider all
of the pertinent evidence in your claim, including opinions of
treating and other examining sources.
(4) Consistency. Generally, the more consistent an opinion
is with the record as a whole, the more weight we will give to
that opinion.
(5) Specialization. . . .
(6) Other factors. When we consider how much weight to
give to a medical opinion, we will also consider any factors
you or others bring to our attention, or of which we are
aware, which tend to support or contradict the opinion. For
example, the amount of understanding of our disability
programs and their evidentiary requirements that an
acceptable medical source has, regardless of the source of
that understanding, and the extent to which an acceptable
medical source is familiar with the other information in your
case record are relevant factors that we will consider in
deciding the weight to give to a medical opinion.
20 C.F.R. § 416.927(d); see also 20 C.F.R. § 404.1527(d). “After considering the
pertinent factors, the ALJ must give good reasons in the notice of determination or
decision for the weight he ultimately assigns the opinion.” Watkins v. Barnhart, 350
F.3d 1297, 1301 (10th Cir. 2003) (quotation marks and brackets omitted).
Plaintiff contends that the ALJ improperly “picked and chose” amongst the
medical opinions offered by Dr. Ainsley. (ECF Nos. 18 at 12; 20 at 2.) Specifically,
Plaintiff argues that the ALJ ignored the Global Assessment of Functioning (“GAF”)
score of 35 that Dr. Ainsley assigned to Plaintiff, while crediting the remainder of her
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uncontradicted opinion. (Id.) Plaintiff also contends that the ALJ erred in considering
Plaintiff’s refusal of psychological care until two weeks before the hearing, because the
ALJ may not “draw any inferences about an individual’s symptoms and their functional
effects from a failure to seek or pursue regular medical treatment without first
considering any explanations that the individual may provide, or other information in the
case record, that may explain infrequent or irregular medical visits or failure to seek
medical treatment.” SSR 96-7p, 1996 WL 374186, at *7 (July 2, 1996).
There is support for Plaintiff’s contention that an ALJ cannot “pick and choose”
from a medical opinion; however, that is true only when it is truly an “uncontradicted
medical opinion”. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007). Here, the
ALJ agreed that Dr. Ainsley’s opinion was “the only report regarding the claimant’s
psychological condition at the time,” but nevertheless pointed out conflicting evidence
regarding Plaintiff’s psychological functioning from Plaintiff’s own testimony about her
lifestyle and activities. (R. at 33.) The opinion of state agency physician Dr. Ellen
Ryan, M.D., also contradicts Dr. Ainsley’s GAF score, in that Dr. Ryan reviewed Dr.
Ainsley’s treatment notes and opinion but assigned only mild and moderate limitations
in her Mental RFC Assessment. (R. at 124-29.) When such conflicting evidence exists,
an ALJ is “entitled to resolve any conflicts in the record.” Haga, 482 F.3d at 1208. In
resolving these conflicts, an ALJ is permitted to disregard or discredit a medical opinion
that is contradicted by other evidence in the record. See Lopez v. Barnhart, 183 F.
App’x 825, 828 (10th Cir. 2006).
In this case, there is sufficient medical evidence in the record to permit the ALJ
to find that Plaintiff possessed a greater degree of psychological functioning than that
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assessed by Dr. Ainsley. A GAF score of 35 indicates some impairment in reality
testing or communication, or major impairment in several areas. See American
Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders p. 34 (4th ed.
2000). However, the ALJ’s discussion of the medical evidence indicates that she did
not find support for a GAF score indicating such severity of mental impairments. The
ALJ considered and gave significant weight to Dr. Ainsley’s treatment notes and
opinions apart from the GAF score, but found that they indicated “a greater degree of
functioning than that alleged.” (R. at 33.) The ALJ also noted that Plaintiff’s testimony
about the disabling effects of her psychological symptoms was contradicted by her
testimony about her lifestyle; for example, Plaintiff’s claim that she could not be around
people was contradicted by her regular grocery shopping and participation in an
empowerment group that meets regularly. (R. at 32.) This evidence is sufficient to
permit the ALJ to not fully credit Dr. Ainsley’s assessment of Plaintiff’s GAF score.
As to the ALJ’s reference to Plaintiff’s refusal of psychological treatment and
medications, the Court finds that the ALJ sufficiently considered any explanations
supported by the evidence of record for such refusal before drawing negative
inferences. See SSR 96-7p, 1996 WL 374186, at *7. The ALJ cited medical evidence
from February 2011, after the initial denial of Plaintiff’s claims, noting that Plaintiff
lacked any medication for her bipolar disorder and was offered a referral to a
psychiatrist, but that she “does not want to take any medication.” (R. at 408.) The ALJ
also noted that Plaintiff had state insurance, which would have provided access to such
medication. (R. at 32-33.) Finally, the ALJ noted that after Plaintiff began medication,
two weeks prior to the hearing, Plaintiff testified that it was working well, diminishing her
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symptoms. (Id.) Accordingly, the Court rejects Plaintiff’s speculative assertions that the
ALJ might have ignored other possible reasons for Plaintiff’s failure to seek
psychological treatment such as “lack of insight into her impairments or lack of
insurance, money, or availability of treatment in her area.” (ECF No. 18 at 11.) The
ALJ considered these alternative explanations and found that they were not supported
by the record. Accordingly, the ALJ’s decision to consider Plaintiff’s prior refusal of
psychological treatment and medication in weighing Dr. Ainsley’s opinion of Plaintiff’s
GAF score was not reversible error, nor was it a failure to follow SSR 96-7p.
The Court notes that its role is not to look at the m edical evidence anew; it may
“neither reweigh the evidence nor substitute [its] judgment for that of the agency.”
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Rather, the Court m ust affirm
the Commissioner’s decision if the legal standards were applied correctly and there is
substantial evidence supporting the ALJ’s findings. See Glenn v. Shalala, 21 F.3d 983,
988 (10th Cir. 1994). Having reviewed the relevant portions of the record, the Court
finds that the ALJ applied the correct legal standard, adequately explained her rationale
for the weight assigned to Dr. Ainsley’s opinion, and cited substantial evidence in the
record to support her findings. Thus, the Court sees no error in the manner in which
the ALJ weighed Dr. Ainsley’s opinions.
C.

Sit/Stand Option
Plaintiff contends that the ALJ’s RFC was insufficiently specific with respect to the

requirement for “the option to sit or stand alternatively at will while at her workstation
provided she is not off-task more than 10% of the work period.” (ECF No. 18 at 12-13

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(citing R. at 30).) Under SSR 96-9p, the extent to which the occupational base for
unskilled sedentary work will be eroded by a sit/stand option “will depend on the facts in
the case record, such as the frequency of the need to alternate sitting and standing . . . .
The RFC assessment must be specific as to the frequency of the individual’s need to
alternate sitting and standing.” SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996).
Here, Plaintiff argues that the lack of specificity in the RFC regarding the
frequency of alternating between sitting and standing tainted the vocational expert’s
testimony that there were sufficient jobs in the national economy that Plaintiff could
perform with that RFC. (ECF No. 18 at 13.) The Court finds no merit to this assertion.
In the ALJ’s hypothetical questions to the vocational expert, she defined the sit/stand
option as in the RFC: an option to sit or stand alternatively “at will”, with the caveat that
such alternate positions would not cause the claimant to be off-task more than ten
percent of the work period. (R. at 100.) The specificity of this definition is sufficient to
eliminate the concerns posed by Plaintiff that rapid or frequent alternation of position
would be disruptive to the pace of the job, and that unskilled jobs “are particularly
structured so that a person cannot ordinarily sit or stand at will”, because the ten
percent limit prevents the pace from being unduly affected and the vocational expert
would have to eliminate the jobs to which Plaintiff refers that prohibit sitting or standing
at will. (See ECF No. 18 at 13.)
Accordingly, the Court finds that the ALJ’s sit/stand option in the RFC suf ficiently
complies with SSR 96-9p, and did not taint the ALJ’s reliance on the v ocational expert’s
testimony at step five. Therefore, the Court finds no reversible error.

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IV. CONCLUSION
For the reasons set forth above, the Court AFFIRMS the Commissioner’s denial
of benefits. The Clerk shall close this case and enter judgment in favor of Defendant.
Dated this 12th day of February, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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