Birkle v. Colvin

Filing 21

ORDER AFFIRMING COMMISSIONER: The conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is AFFIRMED. By Judge Robert E. Blackburn on 3/12/2015. (alowe)

PUBLISH
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-03315-REB
LARRY D. BIRKLE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],1 filed December 10, 2013,
seeking review of the Commissioner’s decision denying plaintiff’s claims for disability
insurance benefits and supplemental security income benefits under Titles II and XVI of
the Social Security Act, 42 U.S.C. § 401, et seq. I have jurisdiction to review the
Commissioner’s final decision under 42 U.S.C. § 405(g). The matter has been fully
briefed, obviating the need for oral argument. I affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he is disabled as a result of Leriche’s syndrome,2
1

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.
2

“Leriche's syndrome is the term used for a group of symptoms that are caused by a certain type
of peripheral arterial disease of the legs. In Leriche's syndrome, blood flow in the aorta camera.gif is
blocked in the stomach area. This blocks blood flow to the legs.” WebMD, Leriche’s Syndrome, Topic
Overview (available at http://www.webmd.com/a-to-z-guides/leriches-syndrome-topic-overview) (last

degenerative joint disease of the hips and lumbar spine, and depression. After his
applications for disability insurance benefits and supplemental security income benefits
were denied, plaintiff requested a hearing before an administrative law judge. This
hearing was held on April 23, 2012. At the time of the hearing, plaintiff was 64 years
old. He has a high school equivalency diploma and past relevant work experience as a
demonstrator and telemarketer. He has not engaged in substantial gainful activity since
November 7, 2008, his amended alleged date of onset.
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits or supplemental security income benefits. Although the
medical evidence established that plaintiff suffered from severe impairments, the judge
concluded that the severity of those impairments did not meet or equal any impairment
listed in the social security regulations. Plaintiff’s depression was determined to be nonsevere. The ALJ found that plaintiff had the residual functional capacity to perform a
range of light work with certain postural and environmental restrictions. Based on these
findings, the ALJ concluded that plaintiff was capable of performing his past relevant
work as a telemarketer. He therefore found plaintiff not disabled at step 4 of the
sequential evaluation. Plaintiff appealed this decision to the Appeals Council. The
Council affirmed. Plaintiff then filed this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if his
physical and/or mental impairments preclude him from performing both his previous

accessed March 10, 2015). Symptoms include weakness or numbness in the legs and pain in the thighs,
hips, and buttocks (“intermittent claudication”). Id.

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work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a quinquepartite sequential evaluation
process for determining whether a claimant is disabled:
1.

The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.

2.

The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.

3.

The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.

4.

If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.

5.

If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
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the claimant’s age, education, work experience, and residual
functional capacity.
20 C.F.R. § 404.1520(a)(4)(i)-(v).3 See also Williams v. Bowen 844 F.2d 748, 750-52
(10th Cir. 1988). The claimant has the initial burden of establishing a disability in the first
four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287,
2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show
that the claimant is capable of performing work in the national economy. Id. 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. Secretary of Health & Human
Services, 933 F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
3

Throughout this opinion, although I cite to relevant sections of Part 404 of Title 20 of the Code of
Federal Regulations, which contain the Commissioner’s regulations relating to disability insurance
benefits, parallel regulations relating to supplemental security income benefits can be found at Part 416 of
that same title.

4

substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
III. LEGAL ANALYSIS
Plaintiff alleges that the ALJ erred in concluding that his depression did not
constitute a severe impairment, in assessing his residual functional capacity, and in
failing to develop the record regarding the requirements of plaintiff’s past relevant work
prior to determining that he still could perform that work. Finding no reversible error, I
affirm.
Plaintiff claims first that the ALJ erred in finding, at step 2 of the sequential
evaluation, that his depression was not a severe impairment because it did not cause
more than minimal limitations in plaintiff’s ability to perform the basic mental activities of
work. (Tr. 25.) See 20 C.F.R. § 404.1521(a) (“An impairment or combination of
impairments is not severe if it does not significantly limit your physical or mental ability
to do basic work activities.”). Although the threshold for showing severity is de minimis,
the mere existence of a medically determinable impairment per se is insufficient to meet
it. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). Plaintiff has shown no more
than that here.
As the ALJ noted, plaintiff never received any type of mental health treatment or
counseling; nor has any treating source ever indicated that he experiences any type of
psychologically significant symptoms. (Tr. 25.) The consultative examiner who
examined plaintiff at the request of the agency, although diagnosing plaintiff with a
depressive disorder, noted that “if this individual is to be given Social Security Disability,
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it needs to be based on his physical problems.” (Tr. 406.)4 Moreover, any potential
error in the failure to denominate depression as a severe impairment was rendered
harmless when the ALJ found other impairments to be severe and proceeded to
subsequent steps of the sequential analysis. See Dray v. Astrue, 353 Fed. Appx. 147,
149 (10th Cir. Nov. 17, 2009).5
Plaintiff complains of various alleged errors in the determination of his residual
functional capacity. Ultimately, none warrants remand.
Plaintiff first faults the ALJ for his reliance on the opinion of the non-examining
state agency physician, Dr. Kimberlee Terry, who reviewed the medical evidence of
record and concluded that plaintiff could sit up to six hours in an eight-hour day, stand
and walk up to two hours a day, and lift up to 20 pounds occasionally and 10 pounds
frequently. She also suggested certain other postural and environmental limitations.
(Tr. 82-84.) The ALJ assigned Dr. Terry’s opinion “great weight” (Tr. 30), and indeed,
her suggested restrictions were incorporated fully into his residual functional capacity
assessment (Tr. 26-27).
In challenging the ALJ’s reliance on this opinion, plaintiff notes that Dr. Terry

4

The non-examining state agency psychologist also stated that plaintiff’s mental impairment was
not severe. (Tr. 68.)
5

At step two, the issue is whether the claimant suffers from at least one “severe” medically
determinable impairment. See Dray, 353 Fed. Appx. 147, 149 (10th Cir. Nov. 17, 2009). “Thus, step two
is designed ‘to weed out at an early stage of the administrative process those individuals who cannot
possibly meet the statutory definition of disability.’” Id. (quoting Bowen v. Yuckert, 482 U.S. 137, 156,
107 S.Ct. 2287, 2298, 96 L.Ed.2d 119 (1987) (O'Connor, J., concurring)). Because the conclusion that a
claimant has at least one severe impairment requires the ALJ to proceed to the next step of the sequential
evaluation, “the failure to find a particular impairment severe at step two is not reversible error as long as
the ALJ finds that at least one other impairment is severe.” Id.

6

never examined plaintiff.6 This observation is accurate, but standing alone, irrelevant.
“State agency medical and psychological consultants are highly qualified physicians and
psychologists who are experts in the evaluation of the medical issues in disability claims
under the Act.” Social Security Ruling 96-6p, 1996 WL 374180 at *2 (SSA July 2,
1996). Although their opinions generally are entitled to less weight than those of
treating and examining sources, “[i]n appropriate circumstances, opinions from State
agency medical and psychological consultants and other program physicians and
psychologists may be entitled to greater weight than the opinions of treating or
examining sources.” Id. at *3.
Moreover, Dr. Terry’s opinion was largely consistent with the opinions of both the
consultative examiner and plaintiff’s own treating doctor. (See Tr. 397-401, 596-597)7
The ALJ examined each of these opinions and assigned them each weight based on
their consistency with the medical and other evidence of record, including plaintiff’s own
testimony. (Tr. 29-30.) It is the ALJ’s responsibility to resolve conflicts in the evidence,
and he appropriately discharged that duty in assessing the various medical opinions of
record here.8 See Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir. 1988).
6

Plaintiff further notes that Dr. Terry issued her opinion prior to the diagnosis of Leriche’s
syndrome. He does not explain, however, how this fact is of any consequence. Dr. Terry had available
evidence of plaintiff’s various medical complaints, and the fact that they had not yet coalesced into a firm
diagnosis at the time she reviewed the record presents no obvious barrier to her assessment of the
limiting effects thereof.
7

Although the ALJ gave slightly less weight to the consultative examiner’s opinion, he did so only
insofar as he found that the evidence supported a more restrictive residual functional capacity than that
suggested by the examiner. (See Tr. 30.)
8

Plaintiff further faults the ALJ for failing to address all the factors listed in the regulations going
to the weight to be assigned to medical source opinions. See 20 C.F.R. § 404.1527(c). Contrary to
plaintiff’s argument, the law requires that the ALJ consider these factors, not that he recite them as a
litany. See Mestas v. Astrue, 2010 WL 3604395 at *3 (D. Colo. Sept. 7, 2010). Moreover, plaintiff fails to

7

Plaintiff argues next that the ALJ failed to consider the combined effect of all his
impairments, severe and non-severe, in assessing his residual functional capacity. See
Social Security Ruling 85-28, 1985 WL 56856 at *1-2 (SSA 1985). The record belies
this assertion. The ALJ not only discussed the psychological consultative examiner’s
opinion that plaintiff would have no more than mild difficulties interacting with the public,
colleagues, and supervisors (Tr. 25), but also noted plaintiff’s own statements that he
could pay attention to and follow instructions, get along with authority figures, and
handle changes in routine and stress (Tr. 27, 247-248). Moreover, simply because the
ALJ found that plaintiff had mild restrictions in the four “paragraph B” criteria assessed
at step 2 of the sequential evaluation, he was not obligated to include a similar limitation
in his residual functional capacity determination. See Beasley v. Colvin, 520 Fed.
Appx. 748, 754 (10th Cir. April 10, 2013). I thus perceive no reversible error in the ALJ’s
implicit determination that plaintiff could perform the mental demands of his past
relevant work. See id.
Nor did the ALJ err in determining plaintiff’s residual functional capacity by
discrediting his subjective complaints of pain and functional limitations. Although
plaintiff argues that the ALJ did not apply the analysis required by Luna v. Bowen, 834
F.2d 163-64 (10th Cir. 1987), in the narrative portion of his residual functional capacity
analysis,9 a review of the ALJ’s opinion actually belies this argument. The ALJ not only
specify how this omission was material to the ultimate disability determination. See Williams v. Chater,
1995 WL 490280 at *2 (10th Cir. Aug.16, 1995).
9

In Luna, the Tenth Circuit outlined a tripartite test for evaluating subjective complaints of pain:
We must consider (1) whether Claimant established a pain-producing
impairment by objective medical evidence; (2) if so, whether there is a

8

specifically cited to the applicable standards (see Tr. 27), but also noted that he had
considered plaintiff’s allegations in light of a number of the credibility factors
contemplated by the regulations (see Tr. 28). The ALJ gave clear, specific, legitimate
reasons linked to specific evidence in the record for his credibility assessment. His
findings in this regard find support in the record, and his determination therefore is
entitled to substantial deference. White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001)
(“[C]redibility determinations ‘are peculiarly the province of the finder of fact,’ and should
not be upset if supported by substantial evidence.”). See also Qualls v. Apfel, 206
F.3d 1368, 1372 (10th Cir. 2000). Accordingly, I find no reversible error on this basis
either.
Finally, plaintiff maintains that the ALJ erred at step 4 by finding that plaintiff
could perform his past relevant work without adequately developing the record
regarding the requirements of that work. See Social Security Ruling 82-62, 1982 WL
31386 at *3 (SSA 1982); Henrie v. United States Department of Health & Human
Services, 13 F.3d 359, 361 (10th Cir. 1993). In this regard, plaintiff notes that although
the telemarketer job as he performed it required him to sit eight hours a day, the ALJ
determined that he had the residual functional capacity to sit for up to six hours a day.
Although the ALJ mistakenly stated that the vocational expert’s testimony that
plaintiff could perform the telemarketer job was based on the work as plaintiff performed
it (Tr. 31), in fact the vocational expert testified to the description of the job as set forth

“loose nexus” between the proven impairment and the Claimant’s
subjective allegations of pain; and (3) if so, whether, considering all the
evidence, both objective and subjective, Claimant’s pain is in fact
disabling.
Musgrave, 966 F.2d at 1375-76 (citing Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987)).

9

in the Dictionary of Occupational Titles (Tr. 56). The Dictionary of Occupational Titles
describes jobs as they are generally performed in the national economy, not as any
particular individual may have performed them in a specific instance. See 20 C.F.R. §
404.1566(d)(1); Bowman v. Astrue, 511 F.3d 1270, 1273 n.1 (10th Cir. 2008). Yet a
determination that a claimant can perform the requirements of his past relevant work
under either of these rubrics is sufficient to substantiate the Commissioner’s burden at
step 5. See Social Security Ruling 82-61, 1982 WL 31387 at *1 (SSA 1982);
Andrade v. Secretary of Health & Human Services, 985 F.2d 1045, 1050-51 (10th Cir.
1993).
The vocational expert here testified that a person limited to sitting six hours a day
could perform the telemarketer job. (Tr. 57.) There was no need to further develop the
record because the evidence was sufficient to permit a determination as to the demands
of plaintiff’s past relevant work. See Lohse v. Shalala, 1994 WL 263699 at *3 (10th Cir.
June 16, 1994) (duty to further develop record arises only “[i]f the vocational and
disability reports the claimant submits are not sufficient to match the claimant's past
relevant work with a job description in the Dictionary of Occupational Titles”). Thus, any
error in citing the correct basis for the step 5 determination was undoubtedly harmless.10
See Bernal v. Bowen, 851 F.2d 297, 303 (10th Cir. 1988) (mere fact of error does not
warrant remand if the ALJ’s determination is otherwise supported by substantial
evidence).

10

Even if the ALJ had relied on plaintiff’s description of the job as he actually performed it, there
was no reversible error. Although plaintiff suggested in his work history report that he sat for eight hours a
day at this job, he also stated that he spent two hours walking and one hour standing. (Tr. 237.) Plaintiff
confirmed at the hearing that he only worked an eight-hour day. (Tr. 44.)

10

IV. ORDERS
For these reasons, I find no reversible error in the ALJ’s disability determination,
which accordingly must be affirmed.
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated March 12, 2015, at Denver, Colorado.
BY THE COURT:

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