McCue v. Colvin
MEMORANDUM OPINION AND ORDER by Magistrate Judge Craig B. Shaffer on 09/21/15 re: 1 Complaint filed by Larry Don McCue. IT IS ORDERED that the Commissioners final decision is AFFIRMED and this civil action is DISMISSED, with each party to bear his own fees and costs. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Craig B. Shaffer
Civil Action No. 13-cv-03150-CBS
LARRY DON MCCUE,
CAROLYN W. COLVIN,
MEMORANDUM OPINION AND ORDER
Magistrate Judge Shaffer
This action comes before the court pursuant to Title II of the Social Security Act (“Act”),
42 U.S.C. §§ 401-33, for review of the Commissioner of Social Security’s final decision denying
Larry Don McCue’s (“Plaintiff”) application for Disability Insurance Benefits (“DIB”). Pursuant
to the Order of Reference dated June 25, 2014, 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). (See Doc. No. 22).
The court has carefully considered the Complaint (filed November 20, 2013) (Doc. No. 1),
Defendant’s Answer (filed February 7, 2014) (Doc. No. 7), Plaintiff’s Opening Brief (filed April
11, 2014) (Doc. No. 13), Defendant’s Response Brief (filed May 23, 2014) (Doc. No. 16),
Plaintiff’s Reply (filed June 11, 2014) (Doc. No. 17), the entire case file, the administrative
record, and applicable case law. For the following reasons, the court affirms the Commissioner’s
In August 2010, Plaintiff filed an application for disability benefits, alleging a disability
onset date of June 10, 2010. (See Social Security Administrative Record (hereinafter “AR”) at
147). Plaintiff alleged that his ability to work was limited by Post Traumatic Stress Disorder
(“PTSD”), mycobacterium avium complex (“MAC lung disease”), and hearing loss.1 (See AR at
172). Plaintiff was born on March 28, 1950, and was 60 years old on the date of his alleged
disability onset. (AR at 35, 147). He completed four years of college and obtained a business
degree, served in the military, and worked as a manager and salesman for a food brokerage
company. Id. at 46-47. In addition, Plaintiff worked briefly as a real estate broker. Id. at 47. After
his initial application was denied, Plaintiff requested a hearing, which was held on March 23,
2011, before an Administrative Law Judge (“ALJ”). See Id. at 41-75, 103.
Plaintiff was represented by counsel at the hearing and testified that he suffered from
PTSD and depression. (AR at 55). He stated that, following a trip to the Vietnam Veterans
Memorial in Washington, D.C., his symptoms became more severe and interfered with his ability
to socialize and interact with others, id. at 58, concentrate and focus on tasks, id. at 66, and help
with household chores, id. at 68. He stated that he did not think he could perform even a lowstress job that required only limited contact with other people. Id. at 67. However, Plaintiff also
testified that he attended church with his wife on a weekly basis, id. at 58, went shopping twice a
week, id. at 57, spent time with his daughters and grandchildren, id., could read the newspaper
every morning without difficulty, id. at 67, and could follow a sports game from beginning to
end with no trouble, id. at 68.
The ALJ concluded that Plaintiff’s MAC lung disease and hearing loss were not severe
impairments. (AR at 30). Plaintiff has not challenged these conclusions in his appeal.
Jamie Massey testified at the hearing as a vocational expert (“VE”). The VE testified that
Plaintiff’s prior work experience as a food sales representative and food sales manager was
classified as ranging from “sedentary” to “light” by the Dictionary of Occupational Titles
exertional guidelines. (AR at 70). The ALJ asked the VE to assume hypothetically that an
individual of Plaintiff’s age — with no exertional limitations, and the same education and past
work experience as Plaintiff — had the following non-exertional limitations: (1) can only have
occasional interaction with the public; and (2) can only have occasional interaction with coworkers and supervisors. Id. The VE testified that an individual with those limitations could not
perform the work involved in Plaintiff’s previous job. Id.
However, the VE identified three other jobs that someone with those limitations could
perform and testified about the number of each position in the regional and national economy:
(1) store laborer (6,500 Colorado; 394,000 National); (2) janitor/cleaner (15,700 Colorado;
1,025,000 National); and (3) housekeeper (9,700 Colorado; 533,000 National). Id. at 71. The
ALJ asked the VE whether a person would be unemployable if — due to symptoms or side
effects of medication — the individual was off task for more than ten percent of the workday. Id.
The VE testified that such an individual would not be able to obtain competitive employment. Id.
In response to questions from the ALJ, the VE further testified that an unskilled worker could
have no more than one absence per month before he would be precluded from employment. Id.
Plaintiff’s counsel then asked the VE how “occasional interaction” — as used by the ALJ
— was defined. Id. at 72. The VE testified that “occasional interaction” means “up to a third of
the workday.” Id. Plaintiff’s counsel then asked the VE to assume that the hypothetical
individual could have only rare interactions with co-workers, the public, and supervisors. Id. at
73. The VE testified that under those circumstances, the three previously identified jobs would
be eliminated. Id. at 73-74.
On April 27, 2012, the ALJ issued his decision denying benefits. Id. at 24-40. The ALJ’s
opinion followed the five-step process outlined in the Social Security regulations.2 At step one,
the ALJ found that Plaintiff had not engaged in substantial gainful employment since June 10,
2010. Id. at 29. At step two, the ALJ found that Plaintiff suffered from the following severe
impairments: major depressive disorder and PTSD. Id. At step three, the ALJ found that Plaintiff
did not have an impairment that met or medically equaled a listed impairment. Id. at 30-32.
The ALJ then assessed the following residual functional capacity (“RFC”):
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform a full
range of work at all exertional levels but with the following
nonexertional limitations: the claimant can have only occasional
interaction with the public, co-workers, and supervisors.
Id. at 32. In fashioning Plaintiff’s RFC, the ALJ discussed much of the medical evidence in
Plaintiff’s medical records. The ALJ noted that the objective medical evidence demonstrated that
Plaintiff’s symptoms had improved with counseling and medication. Id. at 33. In addition, the
ALJ noted that Plaintiff’s objective records demonstrated that, although Plaintiff presented as
sad, he had normal insight and judgment. Id. at 34. In addition, the ALJ credited the opinion of
Dr. James Wanstrath, a State agency consultant, who reviewed Plaintiff’s medical records and
prepared a mental RFC assessment. Id. at 35. Dr. Wanstrath concluded that Plaintiff’s symptoms
The five-step process requires the ALJ to 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 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); 20 C.F.R. §§ 404.1520 and 416.920; Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.
1988). After step three, the ALJ is required to assess the claimant’s functional residual capacity. 20 C.F.R.
§ 404.1520(e). The claimant has the burden of proof in steps one through four. The Social Security
Administration bears the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
were not disabling and that Plaintiff could “accept supervision and relate to coworkers if contact
is not frequent or prolonged.” Id. at 92. The ALJ also found Plaintiff’s allegations regarding his
limitations to be credible, but only to the extent that they were consistent with the RFC. Id. at 34.
At step four, based on the RFC set forth above, the ALJ found that Plaintiff could not
perform any past relevant work. Id. at 35. At step five, the ALJ found: “[c]onsidering the
claimant’s age, education, work experience, and residual functional capacity, there are jobs that
exist in significant numbers in the national economy that the claimant can perform.” Id. at 36.
Specifically, the ALJ found that Plaintiff could work as a store laborer, a janitor/cleaner, or a
housekeeper. Id. Because there were a significant number of jobs that Plaintiff could perform,
the ALJ found that Plaintiff did not meet the definition of “disabled” for purposes of the Social
Security Act. Id. at 36-37. Accordingly, Plaintiff’s application for disability benefits was denied.
Following the ALJ’s decision, Plaintiff requested review of the ALJ’s decision. Id. at 23,
231-40. The Appeals Council denied his request for review on October 10, 2013. Id. at 5-10.
The decision of the ALJ then became the final decision of the Commissioner. 20 C.F.R.
§ 404.981; Nelson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff
filed this action on November 20, 2013. The court has jurisdiction to review the final decision of
the Commissioner. 42 U.S.C. § 405(g).
STANDARD OF REVIEW
In reviewing the Commissioner’s final decision, the court is limited to determining
whether the decision adheres to applicable legal standards and is supported by substantial
evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation
omitted); Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The court may not reverse
an ALJ simply because it may have reached a different result 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)
(internal citation omitted). Moreover, “[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) (internal citation omitted). The 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 (internal citation omitted). 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) (internal citation
On appeal, Plaintiff argues that the ALJ erred in (1) assessing the medical evidence; (2)
concluding that Plaintiff’s condition did not meet one of the listed impairments (3) failing to give
enough weight to the VA disability determination; and (4) concluding that there are jobs that
exist in significant numbers in the national economy that Plaintiff can perform. These arguments
are not persuasive.
ALJ’s Consideration of the Medical Evidence
Although it is presented as several different arguments in his brief, Plaintiff’s primary
contention is that the RFC is not support by substantial evidence. (See Doc. 13 at 26-30, 31-33,
43-43). In support of his argument, Plaintiff makes a number of objections to the ALJ’s
assessment of his medical records. Id. The court is not persuaded by any of these arguments.
Plaintiff first claims the ALJ erred in assigning “great weight” to the opinions of Dr.
Wanstrath, the State agency psychological consultant. Id. at 27-30. And he contends that any
reliance on Dr. Wanstrath’s opinions is legal error because those opinions were formulated
without the benefit of subsequent medical records. Id. Contrary to Plaintiff’s suggestion,
however, “RFC assessments by State agency medical . . . consultants . . . are to be considered
and addressed in the decision as medical opinions from nonexamining sources about what the
individual can still do despite his or her impairments.” Social Security Ruling 96-6p, 1996 WL
374180, at *4 (July 2, 2996). These consultants are “highly qualified” and “are also experts in
Social Security disability evaluation.”3 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i). The
ALJ must explain the weight given to the consultant in his written decision. Id.
§§ 404.1527(e)(2)(H), 416.927(e)(2)(ii). “In evaluating RFC assessments prepared by state
consultants, the ALJ follows the same process that applies to any opinion evidence, considering
factors such as ‘the supporting evidence in the case record.’” Brown v. Colvin, No. 4:12-CV00247-FL, 2014 WL 1282255, at *15 (E.D.N.C. Mar. 27, 2014) (quoting 20 C.F.R.
§§ 404.1527(a)-(d), 416.927(a)-(d)). An ALJ may give significant weight to the opinion of a
state agency medical consultant “so long as it is consistent with the record.” Id. (citing Johnson
v. Barnhart, 434 F.3d 650, 657 (4th Cir. 2005)); see also Maroney v. Colvin, No. 13-cv-2279
Plaintiff suggests that Dr. Wanstrath’s opinions are, as a matter of law, incompetent, irrelevant,
and immaterial, and entitled to only minimal weight. The court disregards such unsupported ad hominem
attacks. Indeed, while the court recognizes the need for zealous advocacy, the court also notes that
throughout the Opening Brief and Reply Brief, Plaintiff’s counsel frequently employs vitriolic and
hyperbolic language that adds little to the substance of the arguments. These tactics are distracting and do
not advance Plaintiff’s cause, and the court notes that Plaintiff’s counsel has been cautioned on this matter
on previous occasion. See Phillips v. Colvin, No. 13-cv-03436-RM, 2015 WL 4639738, at *5 n.6 (D.
Colo. Aug. 5, 2015).
WJM, 2014 WL 4783380, at * (D. Colo. Sept. 25, 2014) (finding no error in the ALJ’s weighing
of the medical evidence where it was supported by the substantial evidence in the record). Thus,
the ALJ was entitled to look to, and rely upon, the opinions of Dr. Wanstrath in fashioning the
RFC. Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (a non-examining physician’s
opinion is an acceptable source, which the ALJ is entitled to consider).
Here, the ALJ explained that he was giving great weight to Dr. Wanstrath’s opinion
because it was based on objective medical evidence and was consistent with the credible portions
of Plaintiff’s testimony. Indeed, Dr. Wanstrath’s opinion was consistent with medical evidence
and testimony in the record demonstrating that Plaintiff had social relationships, good memory,
the ability to stay focused, logical thoughts and normal judgment, and even a reported
improvement in his symptoms. (See AR at 34, 57, 344, 350-51, 354). Plaintiff argues that Dr.
Wanstrath’s opinion was rendered prior to the inclusion of the 2011 treatment notes, but,
tellingly, does not specify which, if any, of the subsequent treatment notes dictates a different
outcome. Indeed, these notes do not undermine Dr. Wanstrath’s opinion; rather, they are
consistent with his conclusions. The 2011 treatment records demonstrate that Plaintiff had
normal thought processes, id. at 426, 428, 434, 442; was feeling better, id. at 434; and felt that
his medications were helping him, id. at 426, 427. The records also show that Plaintiff’s issues
with nightmares improved to the point that he reduced his medicine on his own. Id. at 441.
Because substantial evidence supports the ALJ’s decision to assign great weight to Dr.
Wanstrath’s opinion, Plaintiff’s arguments in this regard are rejected.
Plaintiff also contends that the ALJ failed to properly apply the treating source rule. (Doc.
13 at 31-33). His argument is problematic for a number of reasons. First, Plaintiff appears to
claim treating source status for his VA medical team as a whole, as opposed to the individual
medical professionals.4 The so-called “treating source rule” is embodied in the regulations at 20
C.F.R. § 404.1527(c), entitled “How we weigh medical opinions.” Medical opinions are defined
as “statements from physicians and psychologists or other acceptable medical sources that reflect
judgments.” 20 C.F.R. § 404.1527(a)(2). As it is relevant here, “acceptable medical sources” are
defined to include only licensed physicians and licensed or certified psychologists. 20 C.F.R.
§ 404.1513(a). Accordingly, the VA medical group, as an entity, is simply not capable of
offering a medical opinion.
Second, Plaintiff does not identify which opinions the ALJ failed to credit or which
opinions dictate a different outcome. (See Doc. 13 at 32). Rather, the record shows that the ALJ
considered all of Plaintiff’s medical records and discussed them in some detail. (AR at 29-35).
Moreover, the court has reviewed the record in its entirety and could not locate any treating
source opinions regarding functional limitations on Plaintiff’s ability to work.
Third, Plaintiff also seems to argue that Dr. Post was a treating source, and therefore, his
opinions regarding Plaintiff’s inability to work were entitled to greater weight. (Doc. 13 at 4243). As a preliminary matter, the court notes that Dr. Post’s conclusion — that Plaintiff was
unemployable — was an issue reserved for the Commissioner and not entitled to any special
significance. See Social Security Ruling 96-5p, 1996 WL 374183, at *1 (SSA July 2, 1996)
(“treating source opinions on issues reserved to the Commissioner are never entitled to
controlling weight or special significance”) (emphasis added). Furthermore, Plaintiff’s reliance
on the treating source doctrine, as it relates to Dr. Post, is misplaced. A treating source is a
Even reliance on the individual providers would be problematic for Plaintiff. Many of the
treatment notes are by Ms. Linda Perrin, who is a nurse and, therefore, not considered an “acceptable
medical source.” See Social Security Ruling 06-03p, 2006 WL 2329939 at *1 (SSA Aug. 9, 2006). As
such, she cannot issue medical opinions, see 20 C.F.R. § 404.1527(a)(2), nor be considered a treating
source whose opinions must be evaluated to determine whether they are entitled to controlling weight, see
C.F.R. § 404.1513(d). See also Social Security Ruling 06-03p, 2006 WL 2329939 at *2; Frantz v. Astrue,
509 F.3d 1299, 1301 (10th Cir. 2007).
medical professional capable of providing a detailed and longitudinal picture of a claimant’s
medical impairments. 20 C.F.R. § 404.1527(c)(2). It is a relationship that requires both duration
and frequency. Doyal v. Barnhart, 331 F.3d 758, 763 (10th Cir. 2003); see also Barker v.
Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (“The treating physician doctrine is based on the
assumption that a medical professional who has dealt with a claimant and his maladies over a
long period of time will have a deeper insight into the medical condition of the claimant than will
a person who has examined a claimant but once, or who has only seen the claimant’s medical
records.”). In this case, Dr. Post met with Plaintiff only once, which certainly fails to meet the
relationship requirements necessary to be considered a treating source.
Nonetheless, the opinions of “other sources” such as Dr. Post still must be considered,
applying the same factors as are generally used to assess treating source opinions. Social
Security Ruling 06-03p, 2006 WL 2329939 at *4 (SSA Aug. 9, 2006); 20 C.F.R. §§
404.1527(c)(2)-(6) & 416.927(c)(2)-(6). The regulations do not require the ALJ to specifically
discuss all of the factors. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). Among these
factors are whether the opinion is consistent with and supported by the other evidence of record.
See 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent an opinion is with the record as
a whole, the more weight we will give to that opinion.”). Here, the ALJ specifically invoked this
consideration. The ALJ noted that the opinions of the Department of Veteran Affairs — which
included Dr. Post’s assessment that Plaintiff is unemployable — were contradicted by the
evidence of record, including Plaintiff’s own testimony. (AR at 35). Thus, the ALJ did not reject
Dr. Post’s opinion simply because he was not a treating source.
Moreover, the ALJ’s determination regarding Dr. Post’s opinions has ample support in
the record. For example, contrary to Dr. Post’s conclusion that Plaintiff could not have social
contact, Plaintiff testified that he maintained social relationships with his daughters and
grandchildren, id. at 57; attended church every week, id. at 58; and went shopping twice a week,
id. at 57. And despite Dr. Post’s conclusion that Plaintiff could not sustain concentration,
Plaintiff testified that he regularly read the newspaper and watched sports games without any
trouble, id. at 67-68, and he had no difficulty concentrating during the hour-long disability
hearing. Id. at 31. Plaintiff’s medical records also contradicted Dr. Post’s findings because — as
discussed above — Plaintiff’s providers consistently noted that Plaintiff demonstrated logical
and goal oriented thought processes as well as normal insight and judgment. And in 2011,
Plaintiff reported that his medications were working and that he was feeling better. In addition,
Dr. Post’s assessment was internally inconsistent. Although Dr. Post noted that Plaintiff could
not sustain concentration adequately to maintain employment, id. at 402, he also noted that
Plaintiff’s attention and memory were normal. Id. at 398-99. And while Dr. Post concluded that
Plaintiff was unemployable due to PTSD, he also noted that there were not PTSD signs and
symptoms causing total occupational and social impairment. Id. at 402-03. Therefore, the ALJ
did not err in granting little weight to Dr. Post’s opinions.
Finally, Plaintiff argues that the ALJ did not give proper weight to the Global Assessment
Functioning (“GAF”) scores reflected in Plaintiff’s treatment records. “The GAF scale is used by
clinicians to report an ‘individual’s overall level of functioning.’” Weigel v. Astrue, 425 F. App’x
706, 708 n.3 (10th Cir. 2011) (quoting American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders 32 (Text Revision 4th ed. 2000)). While low GAF scores
can indicate serious functional impairments in social, occupational, or educational settings, see
Pisciotta v. Astrue, 500 F.3d 1074, 1076 n.1 (10th Cir. 2007), nothing in any of the medical
records indicate that these scores undermine the ALJ’s RFC determination. Nor do the medical
records indicate an impairment that would seriously interfere with Plaintiff’s ability to work.
“Standing alone, a low GAF score does not necessarily evidence an impairment seriously
interfering with a claimant’s ability to work.” Lee v. Barnhart, 117 F. App’x 674, 678 (10th Cir.
2004); see also Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) (“While a
GAF score may be of considerable help to the ALJ in formulating the RFC, it is not essential to
the RFC’s accuracy.”). Here, none of the providers explained how they calculated each GAF
score or how it impacted plaintiff’s functional capabilities. And the ALJ reasonably noted the
incongruity between Plaintiff’s apparent improvement and the decrease in GAF scores.
Therefore, it was reasonable to assign little weight to these GAF scores.
ALJ’s Evaluation of Listed Impairments at Step Three
Plaintiff also contends that the ALJ erred at step three when he concluded that Plaintiff
did not meet or equal either the paragraph “B” or paragraph “C” criteria of listing 12.04, 12.06,
or 12.08. (Doc. 13 at 33-41). Plaintiff argues that the ALJ’s findings in this regard were
unsupported. The court disagrees.
Appendix 1 of Subpart P, 20 C.F.R. § 404, lists impairments that preclude “substantial
gainful employment.” See 20 C.F.R. § 404.1520(d). At step three, the claimant bears the burden
of demonstrating — through medical evidence — “that his impairments ‘meet all of the specified
medical criteria’ contained in a particular listing.” Riddle v. Halter, 10 F. App’x 665, 667 (10th
Cir. 2001) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). “An impairment that
manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan, 493
U.S. at 530. If the claimant does not meet or equal a listing, the ALJ must discuss the evidence
and explain why he found that the claimant was not disabled. Clifton v. Chater, 79 F.3d 1007,
1009 (10th Cir. 1996).
Here, the ALJ provided detailed findings in concluding that Plaintiff’s condition did not
meet or medically equal the criteria of listings 12.04, 12.06, or 12.08. With regard to the “B”
criteria, the ALJ found that Plaintiff’s (1) activities of daily living are at most mildly restricted;
(2) social functioning was only moderately restricted; and (3) concentration, persistence, or pace
was only mildly limited by his impairments. (AR at 31). The ALJ also found that “[Plaintiff] has
experienced no episodes of decompensation, which have been of extended duration.” Id.
In arriving at these conclusions, the ALJ relied on Plaintiff’s own reports and testimony
regarding his capabilities. Indeed, Plaintiff reported having no trouble tending to his own
personal hygiene. Id. at 188. And Plaintiff reported that he performed yard work, helped his wife
with other household chores, paid bills, handled a savings account, and could drive a car by
himself. Id. at 68, 189-190. Furthermore, and contrary to his reports of difficulties with
socialization, Plaintiff reported that he went to church weekly, went shopping twice a week, and
saw his family on a regularly basis. Id. at 31, 68, 190-91. In addition, although Plaintiff testified
that he had trouble with concentration and staying focused, he also testified that he could watch a
sports game and read a newspaper with no difficulty. Id. at 67-68. The ALJ also noted that
Plaintiff was able to stay focused and provide relevant answers throughout the hearing. Id. at 31.
See Qualls v. Apfel, 260 F.3d 1368, 1373 (10th Cir. 2000) (“Although an ALJ may not rely
solely on his personal observations to discredit a plaintiff’s allegations, he may consider his
personal observations in his overall evaluation of the claimant’s credibility.”). And the ALJ’s
findings are further supported by Dr. Wanstrath’s conclusion — following a review of Plaintiff’s
mental health records — that Plaintiff did not meet the “B” or “C” criteria. Dr. Wanstrath noted
that Plaintiff had no psychosis, no paranoia, was still married, and still had meaningful social
relationships. Id. at 88-88, 387.
With regard to decompensation and the “C” criteria5, the ALJ noted Dr. Wanstrath’s
finding of three episodes of decompensation; however, the ALJ discounted those findings
because they were not supported by the evidence of record. Id. at 35. Indeed, the episodes relied
on by Dr. Wanstrath do not satisfy the regulatory definition. See 20 C.F.R. pt. 404, subpt. P, app.
1 § 12.00C4 (The term “repeated episodes of decompensation, each of extended duration” means
“three episodes within 1 year, or an average of once every 4 months, each lasting for at least 2
weeks.”). Dr. Wanstrath noted that Plaintiff quit his job in 2005 and had to be medicated for
depression and anxiety; however, this incident occurred outside of the disability period. Id. at 8788. Dr. Wanstrath’s notes also indicate that Plaintiff had suicidal intentions wherein he thought
about driving his car off of a bridge. However, this also occurred at some indeterminate point
prior to the disability onset date. Id. The only incident that took place within the disability period
was the incident following Plaintiff’s visit to the Vietnam Veterans Memorial on June 10, 2010.
Thus, the ALJ did not err in finding that Plaintiff did not have three extended periods of
On appeal, Plaintiff asserts that the ALJ failed to consider whether changes to his
medication during the relevant period could constitute episodes of decompensation, and he lists
three changes to his depression medication and his nightmare-reduction medication. (Doc. 13 at
38-39). In support of his argument that such occurrences could constitute episodes of
decompensation, he cites 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00C4, which notes that
As it relates to the “C” criteria, Plaintiff has only offered arguments regarding decompensation.
Although he states that he has demonstrated that he meets all three criteria, this argument is bare and
undeveloped. Thus, the court will not address it. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th
Cir. 2012) (“We will consider and discuss only those of [plaintiff’s] contentions that have been
adequately briefed for our review.”). To the extent Plaintiff relies on his own assertions that his wife is his
24/7 caretaker, he has not cited any medical evidence to support this allegation. See Sullivan, 493 U.S.
at 521 (“a claimant may be found to be disabled if medical evidence of his impairment matches
or is equal to one of a listing of impairments”) (emphasis added).
‘[e]pisodes of decompensation may be inferred from medical records showing significant
alteration in medication . . . .”
This court recognizes that significant changes in medication could be inferred as
indicating episodes of decompensation. But simply listing a number of medication alterations
throughout the relevant period is insufficient to create such an inference. One of Plaintiff’s
citations is merely to a list of medications with no explanations. (AR at 355). Plaintiff’s second
citation states, without more, that Plaintiff was still depressed and, therefore, his depression
medication was being increased. Id. at 405. There are no explanations provided to serve as
sufficient evidence of an episode of decompensation.6 See 20 C.F.R. pt. 404, subpt. P, app. 1
§ 12.00C4 (defining episodes of decompensation as “exacerbations or temporary increases in
symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties
in preforming activities of daily living, maintaining social relationships, or maintaining
concentration, persistence, or pace.”). Therefore, the court agrees with Defendant that this alone
is insufficient to support a conclusion that these changes constituted “significant alterations.”
For the foregoing reasons, the court concludes that the ALJ did not err in determining that
Plaintiff’s impairments did not meet or medically equal a listed impairment.7
This reasoning is equally applicable to the increases in Plaintiff’s nightmare medication. The
citations offer no explanation with which the court could infer an episode of decompensation. (See AR at
393). In fact, this citation indicates that Plaintiff’s symptoms were improving. Id.
In passing, Plaintiff asserts that the ALJ also erred in failing to further develop the record. (See
Doc. 13 at 35, 38). Plaintiff has not properly developed this argument, but even if he had, the court would
disagree. The record contains ample treatment records relating to Plaintiff’s mental health, and these
records sufficiently explore Plaintiff’s conditions. Although the nonadversarial nature of social security
proceedings “imposes a duty on the ALJ ‘to ensure that an adequate record is developed . . . consistent
with the issues raise,’” the ALJ met that duty here. See Jimenez v. Astrue, 385 F. App’x 785, 788 (10th
Cir. 2010) (quoting Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007)). Furthermore, in cases
such as this one, where Plaintiff was represented by an attorney at the disability hearing, “the ALJ should
ordinarily be entitled to rely on the claimant’s counsel to structure and present claimant’s case in a way
that the claimant’s claims are adequately explored,” and the ALJ “may ordinarily require counsel to
identify the issue or issues requiring further development.” Hawkins v. Chater, 113 F.3d 1162, 1167
ALJ’s Assessment of the VA Disability Finding
Plaintiff also argues that the ALJ failed to give proper consideration to the decision of the
Veteran’s Administration, which had previously awarded Plaintiff service-related disability
benefits after concluding that Plaintiff was totally disabled. (Doc. 13 at 30-31). The court rejects
this claim of error.
Although the findings of other agencies are entitled to weight and must be considered,
they are not binding on the Commissioner. See Musgrave v. Sullivan, 966 F.2d 1371, 1375 (10th
Cir. 1992). Here, Plaintiff contends that because the ALJ “specifically refused to give any weight
to the V.A. decision [he] thus did not consider it.” (Doc. 13 at 31). The record, however, directly
belies such an argument. In his decision, the ALJ stated that he had considered the entire record.
(AR at 32). And the ALJ specifically discussed why he was discounting the opinion of the
Department of Veteran Affairs. Id. at 35 (noting the different standards and procedures for
determining disability between the agencies, and concluding that the VA determination was
contradicted by the evidence). Thus, the court takes the ALJ at his word that he considered the
VA decision. Hackett v. Barnhart, 395 F.3d 1168, 1172-73 (10th Cir. 2005) (concluding that the
Appeals Council adequately considered the decision in a state compensation proceeding where
the Appeals Council wrote that it had considered the evidence and concluded that it did not
provide a basis for reversal). Plaintiff’s argument — that the VA determination deserved greater
weight than it was ultimately afforded — is little more than a request for this court to reweigh the
evidence, which it cannot do. See Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006).
(10th Cir. 1997). At the hearing in this case, Plaintiff’s counsel made no indication that further
psychological testing or development of the record was necessary to decide the matter.
Sufficient jobs in the national economy that Plaintiff can perform
At step five, the ALJ must consider vocational factors (the claimant’s age, education, and
past work experience) and determine whether the claimant is capable of performing other jobs
existing in significant numbers in the national economy. Thompson v. Astrue, 987 F.2d 1482,
1487 (10th Cir. 1993). Here, the ALJ found that “there are jobs that exist in significant numbers
in the national economy that the claimant can perform.” (AR at 36).
Plaintiff argues that this finding is not supported by the evidence. (Doc. 13 at 43-44). The
court disagrees. At the hearing, the ALJ heard testimony from the VE. The ALJ posed
hypotheticals to the VE that involved all of the aspects of the RFC ultimately adopted by the
ALJ. (AR at 70-72). The VE testified that someone with those restrictions could work as a store
laborer, janitor, or housekeeper. Id. at 71.
Plaintiff seems to contend that the hypothetical posed by the ALJ was erroneous because
the ALJ failed to include limitations regarding Plaintiff’s inability to interact with the public and
his need for more than one absence per month. (See Doc. 13 at 43-44). However, as discussed
above, the court has concluded that the RFC was based on and supported by substantial
evidence. Because the hypothetical question was based on the RFC, and because the RFC was
supported by the record, the court concludes that the ALJ did not err in posing its hypothetical.
Therefore, the court concludes that the ALJ’s step five finding — that there were
significant jobs in the state and national economies that Plaintiff could perform — is supported
by substantial evidence.
The court is satisfied that the ALJ considered all relevant facts and that the record
contains substantial evidence from which the Commissioner could properly conclude under the
law and regulations that Mr. McCue was not disabled within the meaning of Title II of the Social
Security Act and, therefore, not eligible to receive Disability Insurance Benefits. Accordingly, IT
IS ORDERED that the Commissioner’s final decision is AFFIRMED and this civil action is
DISMISSED, with each party to bear his own fees and costs.
DATED at Denver, Colorado, this 21st day of September, 2015.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge
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