Garcia v. Colvin

Filing 20

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 3/20/2015. (alowe)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-00078-REB
SYLVIA J. GARCIA,
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 January 9, 2014,
seeking review of the Commissioner’s decision denying plaintiff’s claim for supplemental
security income benefits under Title 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 she is disabled as a result of chronic back pain related to
osteoarthritis of the lumbar spine and depression. After her application for

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.

supplemental security income benefits was denied,2 plaintiff requested a hearing before
an administrative law judge. This hearing was held on January 14, 2013. At the time of
the hearing, plaintiff was 49 years old. She has an associates degree and past relevant
work experience as an electronics assembler, lock assembler, construction cleaner, and
driver. She has not engaged in substantial gainful activity since September 30, 2011,
the date of her application for benefits.
The ALJ found that plaintiff was not disabled and therefore not entitled to
supplemental security income benefits. Although the evidence established that plaintiff
suffered from severe impairments, the ALJ concluded that the severity of those
impairments did not meet or equal any impairment listed in the social security
regulations. Other impairments were found to be non-severe. The ALJ found that
plaintiff had the residual functional capacity to perform light, unskilled, low-stress work
which did not require frequent or prolonged contact with supervisors, co-workers, or the
general public. Although this finding precluded plaintiff’s past relevant work, the ALJ
concluded that there were jobs existing in significant numbers in the national and local
economies that she could perform. The ALJ therefore found plaintiff not disabled at
step 5 of the sequential evaluation. Plaintiff appealed this decision to the Appeals
Council. The Council affirmed. Plaintiff then filed this action in federal court.

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Plaintiff initially also filed an application for disability insurance benefits under Title II. However,
at the hearing, she amended her alleged onset date to January 1, 2012, which was several years after her
date last insured. Because plaintiff thus did not have disability insured status as of the alleged date of
onset, she withdrew her request for a hearing as to the Title II application. (Tr. 13.) No error attributable
to the ALJ’s decision to dismiss the request for hearing of that application is asserted in this appeal.

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II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if her
physical and/or mental impairments preclude her from performing both her previous
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.

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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
the claimant’s age, education, work experience, and residual
functional capacity.

20 C.F.R. § 416.920(a)(4)(i)-(v). 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.”
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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
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 claims the ALJ erred in (1) failing to adequately account for her deficits in
the ability to maintain concentration, persistence, and pace; (2) weighing the medical
source opinions of record regarding plaintiff’s work-related mental functionality; and (3)
mischaracterizing her residual functional capacity as light when in fact it was sedentary.
Finding no such reversible error in the ALJ’s decision, I affirm.
Plaintiff first argues that in determining her residual functional capacity at step 4
of the sequential evaluation, the ALJ did not adequately account for the moderate
difficulties in maintaining concentration, persistence, and pace he found at step 2. (See
Tr. 17.) More particularly, she points out that the limitation to unskilled work is an
inadequate proxy for deficits in work-related mental functioning. See Chapo v. Astrue,
682 F.3d 1285, 1290 n.3 (10th Cir. 2012) (limitation to unskilled work “just accounted for
issues of skill transfer, not impairment of mental functions – which are not skills but,
rather, general prerequisites for most work at any skill level”) (citation and internal
quotation marks omitted); Cira v. Colvin, – F.Supp.3d –, 2014 WL 4437285 at *3 (D.
Colo. Sept. 8 2014) (“There is no direct correspondence between the skills necessary to
do a job and the mental demands of that same job.”). Although plaintiff has correctly

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stated the legal principle, it is not applicable in this case because the ALJ does not
appear to have limited plaintiff to unskilled work as a means of accounting for her ability
to perform the mental demands of work.
Initially, it is important to remember that the ALJ is not required to include every
mental limitation found at step 2 of the sequential evaluation in his residual functional
capacity assessment:
The adjudicator must remember that the limitations identified
in the “paragraph B” and “paragraph C” criteria are not an
RFC assessment but are used to rate the severity of mental
impairment(s) at steps 2 and 3 of the sequential evaluation
process. The mental RFC assessment used at steps 4 and
5 of the sequential evaluation process requires a more
detailed assessment by itemizing various functions
contained in the broad categories found in paragraphs B and
C of the adult mental disorders listings in 12.00 of the Listing
of Impairments, and summarized on the [Psychiatric Review
Technique Form].
Social Security Ruling 96-8p, 1996 WL 374184 at *4 (SSA July 2, 1996). See also
Beasley v. Colvin, 520 Fed. Appx. 748, 754 (10th Cir. April 10, 2013) (“The ALJ was
under no obligation to include limitations in social functioning in [the claimant’s residual
functional capacity] based solely on his finding that she had ‘moderate difficulties’ in
social functioning as part of the distinct step-three analysis.”). Here, in assessing
plaintiff’s residual functional capacity, the ALJ noted that despite her claims of inability
to focus, plaintiff engaged in fairly substantial activities of daily living, including, inter
alia, maintaining her own funds and managing a checkbook, playing Bingo, driving a
car, and caring for her grandchildren. (Tr. 21-22.) The ALJ found such activities belied
any suggestion that a lack of attention or concentration significantly impaired plaintiff’s

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mental functioning:
[E]ven minimal operation of a motor vehicle requires
substantial attention and concentration, in order to
remember, understand and carry out complex functions, and
to integrate such complex functions into independent
situational awareness and projective judgment every few
seconds. It is certainly not a simple and routine set of
functions. The claimant’s ability to drive indicates adequate
cognitive function. . . . The fact that the claimant is able to
engage in such a wide variety of activities, to interact
appropriately with friends and family, and to go so often out
of her home, indicates that she is capable of sustaining
some level of work-related activities throughout a regular
work schedule.
(Tr. 22.)
It therefore is apparent that the ALJ did consider the impact of plaintiff’s alleged
deficits in concentration, persistence, and pace at step 4, but rejected them as having
no substantial impact on her residual functional capacity. Cf. Apodaca v. Colvin, 2014
WL 1309023 at *2 n.4 (D. Colo. April 1, 2014) (noting that the holding in Beasley “does
not mean, however, that the ALJ's step 4 assessment may be totally divorced – without
explanation – from his prior determination of the nature and severity of the claimant's
impairments.”). Viewed in this context, the ALJ’s limitation to unskilled work appears to
be intended to account – and appropriately so – for plaintiff’s lack of transferable skills,
not her mental functioning. Accordingly, remand is not warranted on this basis.
Plaintiff further faults the ALJ for affording more weight to the opinion of the nonexamining state agency psychiatrist, Dr. Ellen Ryan, than that of the consultative
psychological examiner, Dr. Carlos Rodriguez. Plaintiff tacitly concedes that the ALJ
articulated specific, legitimate reasons for assigning little weight to the opinion of Dr.

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Rodriguez, and review of the ALJ’s decision bears out this observation. (See Tr. 20-21,
23.) However, she suggests that having done so, the ALJ then merely adopted Dr.
Ryan’s opinions by default, without specifically providing reasons linked to the evidence
or considering the factors listed in 20 C.F.R. § 416.927. See Gonzales v. Colvin, –
F.Supp.3d –, 2014 WL 4723878 at * 5 n.6 (D. Colo. Sept. 22, 2014) (“[A]n ALJ may not
adopt one medical source opinion by default simply because he discredits or rejects
another.”) (citing Twarog v. Astrue, 2009 WL 77476 at *4 n. 3 (D. Colo. Jan. 9, 2009)).
Review of the ALJ’s decision belies this assertion. The ALJ considered both Dr.
Rodriguez’s and Dr. Ryan’s opinions in the context of a lengthy discussion of the
medical and other evidence related to plaintiff’s mental functioning. In that regard, the
ALJ noted and discussed plaintiff’s lack of specialized mental health treatment, her
failure to avail herself of readily available counseling,3 the fact that plaintiff herself
reported that her medications were effective, and her substantial activities of daily living.
(Tr. 21-23.) Having considered these evidence-based factors, the ALJ concluded that
Dr. Ryan’s assessment of plaintiff’s abilities was more consistent with the record as a
whole, and therefore entitled to great weight. These same considerations led the ALJ to
find that Dr. Rodriguez’s opinion did not accurately reflect plaintiff’s true level of

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Plaintiff suggests that Dr. Ryan’s opinion was “stale” because it was completed prior to the time
plaintiff began counseling with Spanish Peaks Mental Health Center (Tr. 268-279.). She does not,
however, suggest how the failure to consider this evidence prejudiced her in any particular. See Williams
v. Chater, 1995 WL 490280 at *2 (10th Cir. Aug.16, 1995); Bernal v. Bowen, 851 F.2d 297, 302 (10th Cir.
1988). It appears unlikely that this evidence would have altered Dr. Ryan’s opinion, as plaintiff received
only limited counseling and was terminated from treatment after three months for failure to keep
appointments. (Tr. 268.)

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functionality.4 Although the opinion of a consultative examiner is generally entitled to
more weight than that of a non-examining physician who only reviews the records,
see Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004), “[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,” Social Security Ruling 96-6p, 1996 WL
374180 at *3. Such was the case here.
Lastly, plaintiff claims that the ALJ improperly characterized her residual
functional capacity as including the ability for light work, when in fact, the vocational
expert specified that the physical restrictions suggested by the ALJ actually were more
consistent with sedentary work and proffered alternative jobs in the sedentary category.
(Tr. 40.) Plaintiff argues this error is consequential because if she were properly limited
to sedentary work, she would be considered disabled under the Commissioner’s
Medical-Vocational Guidelines, colloquially known as the Grids.5 See 20 C.F.R. Pt. 404,
Subpt. P, App. 2.
Initially, this argument strikes the court as misplaced, since the non-exertional
restrictions imposed by the ALJ would appear to preclude resort to the Grids. See
Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (“[T]he grids may not be
applied conclusively in a given case unless the claimant's characteristics precisely

4

In addition, the ALJ also had the benefit of Dr. Ryan’s review and assessment of Dr.
Rodriguez’s opinion.
5

The Grids are tables that direct a determination of “disabled” or “not disabled” based on
intersecting considerations of a claimant’s age, work experience, education, and residual functional
capacity. See Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

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match the criteria of a particular rule.”) (internal citations and quotation marks omitted).
More particularly,
resort to the grids is particularly inappropriate when
evaluating nonexertional limitations such as pain and mental
impairments. In that case, the grids may serve only as a
framework to determine whether sufficient jobs remain within
a claimant's range of residual functional capacity.
Hargis v. Sullivan, 945 F.2d 1482, 1490 (10th Cir. 1991) (internal citations omitted).
Indeed, the ALJ did not rely on the Grids – either exclusively or as a framework
for his decision – in making his determination at step 5. Instead, he relied on the
opinion of the vocational expert, who testified that the sedentary jobs she identified were
compatible with the description of the capabilities that the ALJ ultimately incorporated
into plaintiff’s residual functional capacity. The purpose of the Grids is to provide a
“shortcut” and thus “eliminate the need for calling in vocational experts.” Trimiar v.
Sullivan, 966 F.2d 1326, 1332 (10th Cir. 1992) (citations and internal quotation marks
omitted). Solicitation of and reliance on the testimony of a vocational expert thus
obviates the need to reference the Grids at all.6
In addition, although plaintiff invokes the Grid Rule for individuals age 50 and
older, at the time of the ALJ’s decision, she was only 49 years old.7 Although a 50-year
old who has no transferable job skills and the capacity for sedentary work would be

6

Where non-exertional impairments are present, the ALJ may still use the Grids as a “a
framework for consideration of how much the individual's work capability is further diminished in terms of
any types of jobs that would be contraindicated by the non-exertional limitations.” Thompson, 987 F.2d at
1492 (citation and internal quotation marks omitted); see also 20 C.F.R. Pt. 404, Subpt. P, App. 2, §
200.00(e)(2). The ALJ did not do so in this case, however. (See Tr. 24.)
7

Under the Commissioner’s regulations, a claimant under age 50 is considered a “younger
person,” whereas someone age 50 to 54 is categorized as a “person closely approaching advanced age.”
See 20 C.F.R. § 416.963(c) & (d).

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considered presumptively disabled under Grid Rule 201.14, a 49-year old would not,
under Grid Rule 201.21. Although plaintiff points out that she is now 50, the disability
decision relates only to the time period through the date of the ALJ’s decision, at which
time plaintiff was still only 49 years old. (Tr. 25.) Plaintiff presents no authority for her
tacit assumption that this post-decision change in her circumstances renders the ALJ’s
decision infirm or should have retroactive effect.
Accordingly, the ALJ’s error in characterizing plaintiff’s residual functional
capacity as permitting light, as opposed to sedentary, work is ultimately harmless.
Remand thus is not warranted on this basis either. See Williams v. Chater, 1995 WL
490280 at *2 (10th Cir. Aug.16, 1995) (“Procedural imperfection that does not affect a
party's substantive rights is not a basis for reversal”); Bernal v. Bowen, 851 F.2d 297,
302 (10th Cir. 1988) (where ALJ’s opinion is otherwise amply supported by the record,
error which does not prejudice claimant will not warrant remand).
IV. ORDERS
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated March 20, 2015, at Denver, Colorado.
BY THE COURT:

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