Fernandez v. Colvin

Filing 25

OPINION and ORDER AFFIRMING DECISION OF THE COMMISIONER, entered by Chief Judge Marcia S. Krieger on 8/19/15. (pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-03385-MSK
DANNY R. FERNANDEZ,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
OPINION, ORDER AND JUDGMENT AFFIRMING DECISION OF THE
COMMISSIONER
This matter is before the Court on a Complaint for review of a decision of the
Commissioner of Social Security (Decision) that denied certain benefits to the Plaintiff, Mr.
Fernandez. The Court has considered the record, the briefs filed by the parties, and oral
arguments. For the reasons stated below, the Court AFFIRMS the Decision of the
Commissioner.
I. Jurisdiction
It is undisputed that this matter was timely brought following a final determination of the
Commissioner. Accordingly, the Court exercises jurisdiction pursuant to 42 U.S.C. §404(g).
II. Procedural History
The procedural history with regard to Mr. Fernandez’s application for Social Security
Disability Insurance (SSDI) benefits is long and tortuous. He first applied for SSDI benefits in
1994 for disability resulting from impairments to his right knee, left shoulder, and low back. At
that time, he had undergone several surgeries on his knee as well as one on his shoulder, and he

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was unable to perform his past relevant work as a warehouse laborer. The ALJ who considered
his application rendered an unfavorable decision, the Appeals Council denied review, and Mr.
Fernandez appealed to this Court. Judge Walker D. Miller reversed the Commissioner’s
decision and remanded for consideration of a functional capacity evaluation obtained after the
decision and evidence of mental impairment.
A second hearing was held on April 18, 2002. This also resulted in an unfavorable
decision. The Appeals Council found no reason to assume jurisdiction, and again, Mr.
Fernandez sought review in this Court. The Commissioner’s decision was reversed again
because it did not reflect consideration of the evidence identified by Judge Miller in his order of
reversal and remand.
A third hearing was held on February 8, 2006. Again, an unfavorable decision resulted.
Again, the Appeals Council found no reason to review the ALJ’s determination, and Mr.
Fernandez appealed to this Court. Again, the decision was reversed and the matter remanded
because the decision did not demonstrate that the ALJ had considered the functional capacity
evaluation or applied the required legal standards in evaluating physician opinions.
A fourth hearing was held on April 3, 2008. Again, an unfavorable decision was issued.
The Appeals Council declined exercise of jurisdiction, and an appeal was again initiated in this
Court. Again, the determination was reversed and the matter remanded with specific instructions
as to the facts deemed established, the scope of evidence to be considered, and the issues to be
determined.
While his claim was on appeal, Mr. Fernandez filed an additional claim for Supplemental
Security Income benefits (SSI). The Appeals Council directed the ALJ to consider whether the
SSI claim should be consolidated with the matter remanded. The ALJ did so, and issued a

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partially favorable and partially unfavorable determination. With regard to the SSI claim, the
ALJ determined that Mr. Fernandez had been disabled from and after February 25, 2010, the
date the application was made. There is no dispute as to that determination.
But as to the 1994 claim, the ALJ found that Mr. Fernandez had not been disabled at any
time from March 13, 1996, the amended onset date, through December 31, 1996, his last date of
insurance for purposes of SSDI benefits. Mr. Fernandez filed exceptions to the partial denial
with the Appeals Council, but it declined jurisdiction to review or revise the Decision. Therefore
the Decision became that of the Commissioner and is the subject of this action.
III. The Decision
Despite the long history of Mr. Fernandez’s SSDI application, the issue addressed in the
most recent Decision was very narrow — was Mr. Fernandez disabled during an approximately
ten-month period from March 13, 1996 to December 31, 1996?
This question was further limited by the 2008 Remand Order. The Order provided that
the 2008 findings at Steps 1-31 would be binding, that the ALJ’s consideration would be
limited to Step 4 and if necessary Step 5. The ALJ was instructed to accept the 2008 RFC as a
description of Mr. Fernandez’s physical abilities, and to determine whether it should be modified
in light of Mr. Fernandez’s subjective complaints — primarily, pain. If the RFC was modified,
then the ALJ was to determine whether Mr. Fernandez could perform his past relevant work or
was able to perform other jobs, in accordance with Step 4 and 5 parameters. To avoid

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At Step 1, the finding was that Mr. Fernandez was last insured on December 31, 1996 and he
had no gainful employment from March 13, 1996 through December 31, 1996. At Step 2, the
finding was that Mr. Fernandez had the following severe impairments — back pain, right knee
instability, status post multiple surgeries, left shoulder instability, and depression. At Step 3, the
finding was that none of these impairments either singly or in combination met or equaled any of
the listed impairments.
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presentation of evidence not pertinent to the applicable time period, the Court also limited the
relevant evidence to that through December 1997 (one year past the pertinent period).
The 2008 RFC provided that Mr. Fernandez could perform a range of sedentary work, could
stand and walk for up to two hours in a regular eight–hour workday, sit without restriction, and
drive a vehicle for one to three hours at a time, while only frequently reaching with upper
extremities, avoiding repetitive use of his right lower extremity to operate foot controls, avoiding
activities involving bending, squatting, kneeling, or climbing, and with moderate limitations in
his ability to understand, remember, and carry out detailed instructions or to maintain
concentration and attention to tasks for extended periods. The ALJ found that from March 13 to
December 31, 1996, Mr. Fernandez’s impairments caused him pain, but the pain he experienced
was not disabling, and that it did not require modification to the 2008 RFC determination.
Finding no change in the 2008 RFC determination, the ALJ relied on the VE testimony
presented at the 2008 hearing, and found that although Mr. Fernandez could not perform his past
relevant work, there were jobs in significant numbers in the national economy that he could have
performed.
IV. Material Facts
In the Remand Order, the ALJ was directed to limit the evidence considered to that
before December 1997 (one year after the expiration of Mr. Fernandez’s insured status). Subject
to that limitation, the pertinent facts are as follows.
A. Left Shoulder
Mr. Fernandez injured his left shoulder in December 1990 and underwent surgical repair
by orthopedist Stewart K. Weinerman, M.D. in June 1991. In October 1991, Dr. Weinerman
found Mr. Fernandez was at maximum medical improvement with good range of motion,

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excellent stability, and excellent strength. As of February 1992, Mr. Fernandez exhibited no
instability and excellent range of motion with only some limitation in rotation, and according to
Dr. Weinerman, could do all activities, but needed to be careful with heavy lifting and overhead
activities with the left arm .
B. Right Knee
Between 1991 and 1997, Mr. Fernandez had four surgeries on his right knee, the last
three to address continuing problems with instability and pain. In 1991, C. Keith Fujisaki, M.D.,
performed anterior cruciate ligament (ACL) reconstruction surgery, and by February 1992, Dr.
Fujisaki concluded that Mr. Fernandez could perform work activity with limited lifting,
squatting, and kneeling.
The second surgery (arthroscopic ACL revision) was performed by Dr. Weinerman in
May 1993 due to instability. At a July 1993 follow-up six weeks post-surgery, Dr. Weinerman
reported that Mr. Fernandez was doing well and had progressed to weight-bearing on his own.
Mr. Fernandez’s knee remained unstable, and another arthroscopic ACL reconstruction
surgery was performed by Dr. Weinerman in late May 1994. Four months post-surgery, Mr.
Fernandez was released to do more weightlifting, ambulating, and bicycling At follow-ups with
Dr. Weinerman in October 1994, November 1994, January 1995, and February 1995, Mr.
Fernandez reported some instability in his right knee, which required him to wear a knee brace
routinely.
Instability returned (along with pain), and yet another surgery was performed by Dr.
Weinerman in November 1996. Both Dr. Weinerman and Mr. Fernandez felt that his knee was
more stable. In March 1997, Dr. Weinerman completed a physical capacity assessment in which
he found that Mr. Fernandez was capable of performing a range of sedentary work — Mr.

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Fernandez could lift up to ten pounds maximum; had no restrictions on sitting; could stand/walk
up to two hours at one time, and up to two hours total during the day; could drive one-three
hours at one time; had no manipulative restrictions; had no restrictions in bending, squatting,
kneeling, and climbing; and could frequently reach. Later that year, the assessment was revised
to limit Mr. Fernandez to “sedentary or “light duty” work due to reports of aching and pain with
moderate instability.
C. Low Back
In 1992, Mr. Fernandez was treated by chiropractor Peter So for complaints of
intermittent low back pain. Dr. So reported in October 1994 that Mr. Fernandez’s low back pain
was reduced approximately 60-70 percent.
D. Complaints of Pain
In his 1994 personal pain questionnaire, Mr. Fernandez reported aching, sharp, dull,
throbbing pain in his left shoulder with swelling pain in his right knee that worsened with
exercise, cold weather, and movement. He said that his pain was constant, occurring every hour,
every day, every week. He indicated that he was not taking medication but did use Icy Hot
sports cream, hot baths, ice packs, etc. He said that the pain limited his activities and that it had
restricted his ability to perform weight lifting and physical sports.
In his 1994 daily activities questionnaire, Mr. Fernandez reported that he could not do
every sport that he liked (water ski, play racquetball, football, tennis, or basketball, or roller
skate) because of his left shoulder and right knee, but he was able to ride a bike and hike with his
dog. He could make a bed, clean, vacuum, mow the lawn, pick up after the dog, fish, shoot
guns, and played pool. He prepared meals, paid bills, drove a car, and visited with friends and
family “all the time.”

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Mr. Fernandez testified at the February 1996 hearing that he experienced level “7” pain
in his right knee most of the time. The pain he experienced in his left shoulder and arm was
level “7,” but sometimes it was level “10.” In addition, he had level “6” or “7” pain in his lower
back. He took medication, but it didn’t relieve his pain. He used a brace on his knee, used Icy
Hot and other gels, and “did physical therapy on his own,” either by riding a bike or doing a lot
of walking (regularly one to two miles). He also testified that he spent most of the day lying
down or sitting, did not help his mother with household chores, but did rake and perform other
yard work. He said that he could stand for only 10-15 minutes before having to sit, could sit for
2 hours before he had to stand. When driving, he stopped every hour. He did no shopping and
only a little cooking, no cleaning, but did mow the yard. He went pheasant hunting and rode his
bike, walked the dogs for a couple of hours and shot pool.
E. Other Assessments
David Crosson, M.D., examined Mr. Fernandez in September 1994, at the request of the
State agency. Mr. Fernandez reported an ability to do all activities of daily living, and an ability
to lift 20 to 25 pounds. He had a mildly antalgic gait while wearing a brace for his right knee.
He had 1½ inches of quadriceps atrophy of the right leg compared to the left, and his right knee
was fairly unstable, but his lower extremities had no deficits in motor power, reflexes, or
sensation. Mr. Fernandez had no pain to palpation in his lumbar spine, only minor pain at the
extremes of range of motion testing, and a negative straight leg raising test. Mr. Fernandez
exhibited only mild tenderness in his left shoulder, with full range of motion and only minimal
crepitus and no evidence of measurable atrophy in the upper extremities. Also, x-rays of Mr.
Fernandez’s left shoulder were within normal limits. Dr. Crosson found that Mr. Fernandez had
no disc disease or arthritis. Dr. Crosson concluded that, while Mr. Fernandez had an unstable

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right knee, he could “get around quite nicely” with a knee brace, and was capable of performing
sedentary work.
In March 1996 (close to the time of Mr. Fernandez’s amended alleged onset of
disability), physical therapist Jolene Daulton completed a “functional capacity work readiness”
test. Ms. Daulton found that Mr. Fernandez was capable of medium-level lifting below the waist
and sedentary-level lifting above the waist, that due to his knee impairment, Mr. Fernandez was
limited to walking 15-30 minutes at a time, standing 15-30 minutes at a time, occasional
climbing stairs and ladders, no full kneeling, occasional kneeling on the left knee, no crawling,
occasional squatting and crouching, and occasional bending. Due to his shoulder impairment,
Mr. Fernandez was limited in his ability to reach overhead. In addition, Mr. Fernandez was
limited to sitting one hour at a time.
V. Analysis
A. Standard of Review
In Social Security appeals, the Court’s review is limited. It may only consider whether
the Decision is supported by substantial evidence and whether the correct legal standards were
applied. Doyal v. Barnhart, 331 F.3d 758 (10th Cir. 2003); Bernal v. Bowen, 851 F.2d 297 (10th
Cir. 1988). It may not examine the issues de novo, reweigh the evidence, or substitute its
judgment for that of the Commissioner. Sisco v. United States Dept. of Health and Human
Services, 10 F.3d 739 (10th Cir. 1993); White v. Barnhart, 287 F.3d 903 (10th Cir. 2001); Qualls
v. Apfel, 206 F.3d 1368 (10th Cir. 2000).
B. Step 4
There is no dispute that the ALJ applied the correct legal standard in accordance with the
Remand Order. Applying the tests of Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987), and Kepler

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v. Chater, 68 F.3d 387 (10th Cir. 1995),2 the ALJ expressly found that Mr. Fernandez had
impairments and experienced pain in his left shoulder and right knee related to the impairments.
After considering both objective and subjective evidence in the record, however, the ALJ found
that Mr. Fernandez’s shoulder and knee pain3 during 1996 was not disabling and that no
modification of the RFC was required.
Mr. Fernandez argues that this finding is not supported by substantial evidence.
Specifically, he contends that: (1) the ALJ considered medical evidence from before December
1996 through 1997, but improperly failed to consider his testimony at hearings in 2002, 2006, or
2008; (2) the ALJ did not fully discuss all of the medical treatment records for 1991, 1992, and
1993 that refer to pain, and misrepresented the contents of some medical records; and (3) in
assessing his credibility, the ALJ did not properly consider his medical records and engaged in
improper speculation that the orthopedists considered his pain when they made functional
capacity assessments. Careful review of the record and the Decision lead the Court to conclude
that none of these contentions constitute error requiring reversal.
In addressing Mr. Fernandez’s challenges, the Court is guided by several general legal
standards. First, pain does not necessarily create a disability. “[D]isability requires more than
mere inability to work without pain. To be disabling, pain must be so severe, by itself or in
conjunction with other impairments, as to preclude any substantial gainful employment.” Brown
v. Bowen, 801 F.2d 361, 362-63 (10th Cir. 1986). This requires a factual finding that must be
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The teachings of Luna and Kepler require answers to three questions: (1) whether the plaintiff established a painproducing impairment by objective medical evidence; (2) if so, whether there is a “loose nexus” between the proven
impairment and the plaintiff’s subjective allegations of pain; and (3) if so, whether considering all the evidence, both
objective and subjective, the plaintiff’s pain is in fact disabling. Kepler, 68 F.3d at 390.
3

The Decision does not directly address Mr. Fernandez’s back pain in the context of an
established impairment, but Mr. Fernandez makes no objection with regard to the ALJ’s ultimate
findings with regard to his back pain.
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supported by substantial evidence. Substantial evidence is relevant evidence that a reasonable
mind might accept as adequate to support a conclusion. Soliz v. Chater, 82 F.3d 373, 375 (10th
Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is more than a scintilla,
but less than a preponderance. Perales, 402 U.S. at 401. Simply because the evidence in the
record is subject to more than one interpretation does not mean that the findings are not
supported by substantial evidence. However, if the weight of the evidence points in only one
direction, a finding to the contrary is not supported by the weight of the evidence.
Second, to determine the effect of pain, the ALJ must consider both objective (medical)
evidence and subjective evidence (statements from Mr. Fernandez). In considering Mr.
Fernandez’s statements, the ALJ must assess their credibility. This requires consideration of Mr.
Fernandez’s medical records, daily activities, location, the duration, frequency, and intensity of
his pain, its treatment, his medication, and other factors that include consideration of his medical
treatment history. See 20 C.F.R. § 404.1529; see also SSR 96-7p. It also includes consideration
of any conflicts between Mr. Fernandez’s statements and the rest of the evidence of record. See
20 C.F.R. §§ 404.1529(c)(4). The Court gives great deference to credibility findings by the ALJ.
However, they must be “closely and affirmatively linked to substantial record evidence.” Wall v.
Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009).
Moving through Mr. Fernandez’s challenges seriatim, the Court begins with the
argument that the ALJ should not have limited himself only to evidence through 1997. The ALJ
cannot be faulted for limiting his review to evidence from that time period because he was
instructed to do so in the Remand Order. With regard to Mr. Fernandez’s testimony about the
pain he experienced in 1996, there is no evidentiary support for the proposition that testimony

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given in in 2002, 2006, or 2008 was more accurate than testimony given contemporaneously in
1996.
Mr. Fernandez’s second and third arguments both relate to medical treatment records.
First, he argues that the ALJ did not consider all of the medical records because he did not
discuss every record that included a reference to “pain,” and his conclusions that Mr. Fernandez
did not complain about pain are not entirely accurate. As examples, Mr. Fernandez points to a
limited number of records that contain the word “pain.” Although the ALJ did not discuss the
identified records, they were not contrary to his findings that Mr. Fernandez suffered from pain
in his back, shoulder, and his knee, particularly in the context of its continued instability, and
that the pain was related by a loose nexus to his impairments. The ALJ’s statement that “[Mr.
Fernandez] did not report pain” is arguably inaccurate or too general, but like the identified
records, it did not prevent a finding that Mr. Fernandez suffered pain related to his impairments.
Neither the failure to address the identified records nor the overstatement/inaccuracy in the
statement as to whether Mr. Fernandez’ complained of pain constitutes error requiring reversal
with regard to the first two steps of the Luna and Kepler analysis.
With regard to the third step in the Luna and Kepler analysis, Mr. Fernandez argues that
1) the identified records were not properly considered in assessing the credibility of his
statements as to the severity, intensity, and persistence of his pain; and 2) that the ALJ
improperly speculated that his orthopedists considered his pain in determining his functional
capacity.4 The Court finds no reversible error for either reason.
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When the evidence in the record is considered, these arguments become inconsistent. The
medical records that Mr. Fernandez contends were not, but should have been, considered are
treatment notes by his orthopedists that contain references to “pain.” He argues that the ALJ
should have specifically noted those references, but at the same time he argues that the ALJ
could not assume that the orthopedist who made such records would have considered Mr.
Fernandez’s pain as reflected in them when the orthopedist opined as to Mr. Fernandez’s
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The Decision contains an extensive review of Mr. Fernandez’s medical records covering
the time period of 1994 through 1997. With regard to Mr. Fernandez’s knee, the ALJ carefully
reviewed, recited, and summarized records of multiple surgeries to address continued instability.
He noted that each time, Mr. Fernandez experienced pain leading up to and following surgery,
then experienced a good recovery with significant function restored. Unfortunately, the
instability returned, bringing with it pain. During the ten month period at issue, Dr. Weinerman
observed instability (and pain), performed a “Clancy procedure” ACL reconstruction surgery and
by November 1996, observed that the knee was far more stable. Ultimately, Dr. Weinerman
opined in 1997 that Mr. Fernandez could return to work at a sedentary level of exertion, lift 10
pounds maximum, and occasionally lift and/or carry dockets, ledgers, and small tools. He could
stand/walk for 0-2 hours at one time, and 0-2 hours total during the day, could sit without
restriction, and could drive a car/truck for 1-3 hours at one time. He had no restrictions in the
use of his hands for repetitive actions, and had no restrictions in the use of his left leg for
repetitive movement, as in operating foot controls, and could use his right leg for repetitive
movement. He could frequently reach, but could not bend, squat, kneel, or climb.
With regard to his shoulder, Mr. Fernandez’s records show repair in 1991 by Dr.
Weinerman, with no further treatment. Indeed, as of late 1991, Dr. Weinerman found that Mr.
Fernandez had no instability, excellent strength and range of motion. In 1994, when examined
by Dr. Crosson, Mr. Fernandez had only mild tenderness in his left shoulder, full range of
motion, and no evidence of measurable atrophy. In March 1997, one year after Mr. Fernandez’s
amended alleged onset date, the only limitation Dr. Weinerman assessed due to Mr. Fernandez’s
left shoulder impairment was a restriction to frequent reaching.

physical abilities.
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Although the Decision might have included more examples from Mr. Fernandez’s
medical records, the ALJ’s credibility assessment is linked to substantial evidence in the record,
and the incidental references to “pain” in various medical records do not constitute such
overwhelming evidence to upset the determination.
Mr. Fernandez also objects to the ALJ’s assumption that with regard to functional
capacity assessments, his doctors “would have factored in any pain complaints made by the
claimant into their assessments,” and thus “their findings do not support a conclusion that the
claimant’s subjective complaints of pain were disabling and precluded all work.” If there is
error, it is in the first statement — that Mr. Fernandez’s doctors would have factored pain
complaints into the assessments. One cannot know with absolute certainty whether a doctor
considered pain in his assessment without inquiring of the doctor. But, it is fair to say that Mr.
Fernandez’s orthopedic physicians noted his pain in their records and performed surgeries, in
part, to address it. Thus, such physicians were presumptively familiar with all of Mr.
Fernandez’s signs and symptoms, and imposed limitations in accordance with his capabilities.
The ALJ also considered Mr. Fernandez’s own statements. He noted that although Mr.
Fernandez had knee and shoulder pain both before and during the period of review, he
nevertheless enjoyed an active lifestyle — he fished, played guitar, shot guns, used slingshots,
regularly visited family and friends, drove back and forth to Denver, as well as preparing simple
meals, cleaning, doing yard work, walking his dog, and riding a bicycle. Indeed, in February
1996, a month before the onset date, he reported that he went pheasant hunting, rode his bicycle,
played pool, and shot pistols.
Having carefully reviewed the record and the Decision, the Court is satisfied that the
ALJ’s findings are supported by substantial evidence, and his credibility determination was

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“closely and affirmatively linked to substantial record evidence.” Wall v. Astrue, 561 F.3d 1048,
1070 (10th Cir. 2009).
C. Step 5
Having determined that it was not necessary to modify the 2008 RFC (which determined
Mr. Fernandez’s condition in 1996), the ALJ also relied upon the testimony by the VE in 2008 as
to the availability of jobs that Mr. Fernandez could have performed during the operative time
period. The VE testified that a person with such RFC could perform the jobs of small products
assembly and electronics worker, which were light exertion jobs that did not require more than
two hours of walking in an eight-hour day or lifting of more than ten pounds. Even with some
erosion in the numbers of jobs due to the specific limitations in the RFC, there would remain
2,700 assembler positions in Colorado and 300,000 jobs nationally, and 2,200 electronics worker
jobs in Colorado and 190,000 jobs nationally. He further testified that sedentary positions were
also available in significant number. For example, an order clerk position, with 313 jobs in
Colorado and 17,900 jobs nationally.
Mr. Fernandez contends that it was error for the ALJ to rely on the VE testimony at the
2008 hearing. He contends that instead, the ALJ should have considered the testimony of the VE
at the 2011 hearing. The Court finds no error.
The 2011 RFC addressed Mr. Fernandez’s condition as of February 25, 2010, more than
14 years after the time period at issue on remand. There is no argument or evidence that Mr.
Fernandez’s condition in 1996 was the same as that determined in 2010. Mr. Fernandez’s
condition in 1996 was comprehensively determined in 2008, and the 2008 RFC was binding on
remand, subject to any modification that the ALJ found necessary due to Mr. Fernandez’s pain.

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Finding no modification was necessary, it was proper for the ALJ to rely upon the VE testimony
at the 2008 hearing.
VI. Conclusion
Finding no reversible error in the Commissioner’s Decision, it is adjudged and decreed
that the Decision denying benefits for the time period March 13, 1996 through December 31,
1996 is AFFIRMED.
Dated this 19th day of August, 2015.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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