Razo v. Colvin

Filing 26

MEMORANDUM OPINION AND ORDER by Magistrate Judge Nina Y. Wang on 11/3/15. For the reasons stated herein, IT IS ORDERED that the decision of the Commissioner is AFFIRMED. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv-00945-NYW
ANDREW RAZO,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This action comes before the court pursuant to Titles II and XVI of the Social Security
Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83(c) for review of the Commissioner of Social
Security’s (“the Commissioner”) final decision denying the application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) filed by Plaintiff Andrew Razo
(“Plaintiff” or “Razo”). Pursuant to the Order of Reference dated April 7, 2015, 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). [#25]. The court has carefully considered the Complaint filed on April 2, 2014 [#1],
Defendant’s Answer filed on September 15, 2014 [#9], Plaintiff’s Opening Brief filed on
December 29, 2014 [#16], Defendant’s Response Brief filed on February 27, 2015 [#19], the

entire case file, the administrative record,1 and applicable case law. For the following reasons,
the decision is AFFIRMED.
STANDARD OF REVIEW
To provide context for the background of the case, the court will first address the
standard of review. A five-step evaluation process governs whether a claimant is disabled under
the Act. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing the five steps
in detail). “If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Id. at 750. In order, the Administrative
Law Judge’s (“ALJ”) analysis proceeds as follows:
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 (which can be a
combination of medical conditions) 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. If the ALJ determines that
the impairment meets or equals in severity, then the analysis concludes and the
claimant is determined to be disabled.

1

See [#10-1 through #10-15 and #13] (the “Administrative Record” or “Record”). For
consistency and ease of reference, this Order utilizes the docket number assigned by the
Electronic Court Filing (“ECF”) system for its citations to the court file. For the Administrative
Record, the court then refers to the page number associated with the Record as cited by the
Parties, which is found in the bottom right-hand corner. For documents outside of the
Administrative Record, the court refers to the page number assigned in the top header by the
ECF system.
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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.

In order to perform the analysis under step 4, the ALJ must first

determine a claimant’s residual function capacity, defined as her ability to do physical
or mental work on a sustained basis, despite her impairments. The assessment of
residual function capacity must take into account all impairments, even if a particular
impairment is not considered severe.
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 function capacity.
20 C.F.R. § 404.1520(b)-(f). “The claimant bears the burden of proof through step 4 of the
analysis.” Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). At step 5, the burden shifts
to the Commissioner to show that a claimant can perform work that exists in the national
economy, taking into account the claimant’s “residual functional capacity, age, education, and
work experience.” Neilson, 992 F.2d at 1120.
In reviewing the Commissioner's final decision, the court is limited to determining
whether the ALJ applied the appropriate legal standards and supported his or her findings with
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 she may have reached a different result, as the issue on
appeal is whether the ALJ’s findings were supported by substantial evidence in the record. See
Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is more than a

3

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
and quotation 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 and quotation 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 omitted).
PROCEDURAL HISTORY AND BACKGROUND
I.

Procedural History
Mr. Razo originally applied for Disability Insurance Benefits (“DIB”) under Title II and

Supplemental Security Income (“SSI”) under Title XVI of the Act in December of 2007, alleging
a disability onset date of August 31, 2005. [#10-7 at 542-555]. On April 4, 2008, the Social
Security Administration initially denied Plaintiff’s application. [#10-4 at 272-273].
On June 5, 2008, Mr. Razo filed a written request for a hearing. [#10-5 at 340]. On
October 22, 2009, a hearing was held before Administrative Law Judge Jon L. Lawritson (ALJ).
[#10-3 at 264-271]. At that hearing, Mr. Razo requested that a closed period of disability
running from August 31, 2005 to July 20, 2009 be considered, as Mr. Razo then stipulated to
medical improvement subsequent to July 20, 2009. [Id. at 266]. Because Mr. Razo planned to
submit a narrative report from his hand surgeon on the day of the hearing that the state agency

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physician had not yet had an opportunity to review, the ALJ adjourned the hearing and
“postpone[d]” the case. [Id. at 269]. On May 4, 2010, an additional hearing was held. [Id. at
230-265].

Mr. Razo testified at the hearing, as did the Social Security Administration’s

Vocational Expert (“VE”) Martin Rohrer.

[Id.].

On June 22, 2010, the ALJ issued an

unfavorable decision, finding that Mr. Razo was not disabled from the alleged onset date through
the date of decision. [10-4 at 274-299].
Plaintiff subsequently requested that the Social Security Administration’s Appeals
Council review the ALJ’s June 22, 2010 decision. [#10-4 at 328-330]. On September 1, 2011,
the Appeals Council vacated the ALJ’s June 22, 2010 decision, and upon remand, directed the
ALJ to, inter alia, consider the “indications of anxiety, opioid dependence, bilateral knee
impairments and bilateral neuropathies” in the record (which included new materials submitted
at the Appeals Council level). [Id.]. The ALJ was also directed to “[o]btain evidence from a
medical expert to clarify the nature and severity of claimant’s impairments.” [Id. at 329].
On February 16, 2012, a hearing was held on remand. [#10-3 at 195-197]. Mr. Razo
testified, as did independent medical experts Alexander Rack, M.D. and Margaret Moore, Psy.D.
Dr. Rack testified about Plaintiff’s potential physical impairments and limitations, and Dr.
Moore testified about Plaintiff’s potential mental impairments. [Id. at 195-229]. Because the
ALJ determined that further medical expert testimony as to Mr. Razo’s physical condition,
impairments, and limitations was warranted, the ALJ adjourned the hearing. [Id. at 227-28].
On July 24, 2012, Harold Greenberg, M.D. provided additional medical expert testimony
concerning Plaintiff’s physical impairments and limitations. [#13 at 1588-1626]. The hearing
was adjourned again, with additional testimony from Mr. Razo and another VE contemplated.
[Id. at 1624-25]. On October 19, 2012, an additional hearing was held. [#10-3 at 156-94]. Mr.

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Razo testified, as did VE Deborah Christianson. [Id.]. On November 9, 2012, the ALJ again
issued an unfavorable decision, finding that Plaintiff was not disabled from the claimed onset
date of August 31, 2005 to the date of decision.2 [#10-2 at 102-138].
Mr. Razo appealed. [#10-2 at 1-5]. The Appeals Council then denied the Mr. Razo’s
request for review. [Id.]. The ALJ's decision is final for purposes of this court’s review. 20
C.F.R. § 404.981.
II.

Plaintiff’s Contentions of Error
Mr. Razo raises the following contentions of errors for review: (1) the ALJ failed to

apply the treating physician rule to the opinions of his hand surgeon, Mitchell Fremling M.D.,
with respect to Plaintiff’s upper extremity impairments; (2) the ALJ failed to properly consider
and making findings of fact as to purported non-exertional limitations—i.e., according to
Plaintiff, Mr. Razo’s pain, need to take time off work, and obesity—in determining Mr. Razo’s
RFC; (3) the ALJ failed to assign any limitations with respect to Mr. Razo’s social functioning in
the ALJ’s RFC determination; and (4) the ALJ erred at Step 5 in finding that there are jobs
existing in substantial numbers in the national economy that Plaintiff could perform
notwithstanding his functional limitations. Mr. Razo acknowledges that an unfocused review
medical records related to his assorted symptoms would be “unwieldy,” and therefore, focuses
his arguments on his alleged upper extremity and mental impairments. [#16 at 12, 13-17].
Therefore, the court focuses its discussion on those impairments in this Opinion and Order, as

2

While Mr. Razo initially limited his claim for disability to a closed period between August 31,
2005 to July 20, 2009, his later testimony, the ALJ’s decision, and the briefing all appear to
claim disability from the onset date of August 31, 2005 through the date of the ALJ decision,
November 9, 2012. The ALJ decision further notes that Mr. Razo meets the insured status
requirements of the Social Security Act through December 31, 2010. [#10-2 at 108].
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they are at the core of Plaintiff’s appeal, though it also addresses Mr. Razo’s contentions of error
related to his asserted non-exertional limitations.
II.

The ALJ’s Decision and Plaintiff’s Core Contentions of Error
As noted above, the Social Security Administration utilizes a five-step sequential

evaluation process for determining whether an individual is disabled. 20 C.F.R. § 416.920(a).
The steps are followed in order, and if it is determined that the claimant is or is not disabled at a
step of the evaluation process, the evaluation will not progress to the next step.
A.

Plaintiff’s Upper Extremity Impairments

At Step 2, the ALJ found that Mr. Razo’s severe impairments included “bilateral upper
extremity neuropathies.” [#10-2 at 108]. At Step 3, the ALJ found that Plaintiff’s upper
extremity neuropathies did not, alone or in combination with Plaintiff’s other impairments, equal
a listed impairment. [Id. at 108-113]. At Step 4, the ALJ determined that Plaintiff RFC’s would
allow Plaintiff to lift and carry up to 10 pounds at least occasionally, and to frequently use his
upper extremities for work activities, while noting that Plaintiff should never climb ladders,
ropes, or scaffolds. [Id. at 113-114].
Mr. Razo contends that the ALJ erred in failing to give controlling weight to the October
2009 opinion of Dr. Fremling, a physician who treated Mr. Razo’s upper extremity conditions
before and after October of 2009, including several months prior by means of decompression
surgery. [#16 at 21, 23-27]. In evaluating Mr. Razo’s upper extremity impairments, the ALJ
instead gave greater weight to the subsequent and less restrictive opinions of Dr. Graesser, Dr.
Rack, and Dr. Greenberg. [#10-2 at 121-24].

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B.

Plaintiff’s Mental Health Impairments

At Step 2, the ALJ found that Mr. Razo’s claimed anxiety disorder was a severe
impairment. [#10-2 at 108]. In determining what functional imitations if any this severe
impairment posed to Mr. Razo’s RFC at Step 4 , the ALJ gave “significant” weight to the
opinions provided by Dr. Moore during the February 16, 2012 hearing. [Id. at 124]. Dr. Moore
opined that Mr. Razo had a personality disorder that would impose moderate limitations on Mr.
Razo’s ability to interact with supervisors, co-workers, and the general public as an employee.
[Id.]. Dr. Moore also opined that Mr. Razo’s social limitations would be most significant when
Mr. Razo was confronted regarding potential substance abuse.

[Id.].

Because the ALJ

determined that Mr. Razo’s opiate dependence was in “full remission” as of at least June of
2011, and because the ALJ found that Mr. Razo himself had not indicated any difficulties with
social functioning, the ALJ declined to assign any limitations related to Mr. Razo’s mental health
impairments in determining Mr. Razo’s RFC. [Id.].
Plaintiff contends that the ALJ erred by failing to support these findings with substantial
evidence in the Record. [#16 at 30-32].
III.

Relevant Testimony
A.

May 4, 2010 Hearing

On May 4, 2010, Plaintiff testified as to his work history and then alleged impairments to
date. [#10-3 at 230-263]. Mr. Razo testified that he was born on October 8, 1965, and that he
had completed high school. [Id. at 234]. Mr. Razo testified that his last employed by the City of
Boulder in a maintenance position in August of 2005. [Id.]. Mr. Razo testified that he stopped
working in this position due to the severity of his congestive heart failure. [Id. at 235].

8

Mr. Razo testified that, at the time of his claimed disability onset in August 2005, he
weighed over 350 pounds. [Id. at 239]. Mr. Razo testified that he was five feet and ten inches
tall. [Id.]. Mr. Razo testified that, at some point subsequent to his claimed disability onset date,
he lost over 100 pounds due to pancreatitis. [Id.]. Mr. Razo also testified that, at the time of the
hearing, he weighed 335 pounds. [Id. at 252].
Mr. Razo testified that his right arm problems “probably” began in 2007 and persisted
through the “first part” of 2009. [Id. at 241]. Mr. Razo testified that, at the time of the hearing,
he was experiencing some issues with pain and weakness in his upper left extremity. [Id. at
248]. Mr. Razo noted that had had obtained at least some relief from a recent surgery on his
right upper extremity. [Id. at 249-51]. Mr. Razo testified that, at the time of the hearing, he
could “probably” lift only less than 10 pounds without experiencing pain. [Id. at 251].
Mr. Razo testified that after resolution of a number of physical maladies, including his
pancreatitis and abdominal pain, he no longer had the need to take prescription pain medication
at the time of the hearing. [Id. at 246-47]. Mr. Razo also testified that he took Advil three times
a day. [Id.].
Mr. Razo testified that, subsequent to the claimed onset date in August of 2005, he had
experienced problems with anxiety and panic attacks. [Id. at 247-48]. According to Mr. Razo,
these issues were in part related to “overwhelming domestic situations” and his “serious
illnesses.” [Id.]. Mr. Razo indicated that, at the time of the hearing, his problems with stress and
anxiety had been improving with time. [Id. at 254].
B.

February 16, 2012 Hearing

Upon remand, a hearing was held on February 16, 2012. [#10-3 at 195-229]. Dr. Rack
called upon to testify by the ALJ and provided testimony concerning Plaintiff’s upper extremity

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impairments. [Id.]. Dr. Moore provided testimony concerning Plaintiff’s mental impairments.
[Id.].
Dr. Rack testified that, from his “specialty point of view” as a neurologist, there was
“very little” present in Mr. Razo’s medical records that Dr. Rack considered to be “of major
significance.” [Id. at 200]. Although Dr. Rack declined to opine as to the significance of Mr.
Razo’s “general medical and orthopedic” impairments, Dr. Rack noted that his review of Mr.
Razo’s medical records indicated that Mr. Razo was “morbidly obese.” [Id. at 200-201]. Dr.
Rack also testified that he did not doubt that Mr. Razo’s morbid obesity might exacerbate a
number of Mr. Razo’s other impairments, including Mr. Razo’s neuropathies and back problems.
[Id. at 203]. Dr. Rack also testified that, although the surgeries to Mr. Razo’s upper extremities
might impose significant restrictions during the time necessary for recovery, the “nature” of the
underlying upper extremity abnormalities treated would not preclude Plaintiff from
“function[ing] in a fairly reasonable way.” [Id.].
Dr. Moore testified that, in her view based on review of Mr. Razo’s medical records to
date, his “major problem” in terms of mental impairment was addiction to prescription
medications.

[Id. at 209].

Dr. Moore also provided a secondary diagnosis of personality

disorder, which Dr. Moore based in part on indications in Mr. Razo’s medical records of
tumultuous domestic relations, and in part on indications in the medical records that Mr. Razo
was dependent on prescription painkillers and anti-anxiety medications. [Id. at 209-210].
Dr. Moore further testified that, in her view, Mr. Razo had “significant limitations”
arising from his “personality issues,” primarily in the “social realm.” [Id. at 211]. When asked
whether these limitations would impair Mr. Razo’s ability to interact appropriately with
supervisors, co-workers, and the general public, Dr. Moore testified that “when he is at his worst

10

I think it is because he is being confronted about his substance abuse. So again some moderate
limitations in terms of the social factors with public and supervisors.” [Id.].
C.

July 24, 2012 Hearing

On July 24, 2012, Dr. Greenberg provided testimony as a medical expert. [#13 at 15901626]. Dr. Greenberg testified that, with the exception of periods of time for recovery from
surgery that would not be anticipated to last more than a “couple” months, Mr. Razo would be
able to lift 10 pounds occasionally. [Id. at 1597]. Dr. Greenberg also testified that Mr. Razo
would be able to “fairly frequently” use his upper extremities except during recovery periods.
[Id. at 1599]. Dr. Greenberg testified that Mr. Razo would be capable of work involving
sedentary levels of activity, and testified that greater levels of functional limitation reflected in
an October 2009 opinion by Mr. Razo’s treating surgeon Dr. Fremling may have reflected Mr.
Razo’s condition soon after surgical intervention, but were not warranted in light of the medical
record as a whole except during periods of recovery from surgery. [Id. at 1610-1612].
D.

October 19, 2012 Hearing

On October 19, 2012, Mr. Razo and Vocational Expert Deborah Christianson (“Ms.
Christianson”) testified. [#10-3 at 156-194]. Mr. Razo testified that he could “probably” only
“less than 10 pounds” at a time for “not very long.” [Id. at 163]. Mr. Razo also complained of
cramping in his hands. [Id. at 163-64]. Mr. Razo testified that he would have difficulty opening
a door if he needed to reach out to do so, and that he no longer had the strength to pinch small
objects. [Id. at 165]. Mr. Razo testified that, on a scale of 0 to 10, he would rate the pain in his
right elbow as a “seven or eight.” [Id. at 182]. However, Mr. Razo also testified that, since
2008, his need for pain medication “really dwindled a lot.” [Id. at 177].

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Mr. Razo testified that, during the course of a typical week, he would attend a counseling
appointment for one hour, hand therapy for half an hour, and knee treatment for two hours. [Id.
at 180]. Mr. Razo also testified that, since the claimed onset date, he would attend at least one
medical appointment per week, and estimated that, on average, he would attend three or four.
[Id. at 180-81].
Mr. Razo testified that his current weight was 325 pounds. [Id. at 166]. Mr. Razo also
testified that his mental health was “worse” than it had been in 2010, although his problems with
anxiety were the “same.” [Id. at 174].
III.

Relevant Medical History
A.

Plaintiff’s Upper Extremity Impairments

The following facts and opinions are gleaned from Plaintiff’s medical records contained
in the Administrative Record. On March 13, 2008, Mr. Razo reported hand pain during a visit to
his physician Dr. Fanestil. [#10-11 at 959]. On March 18, 2008, Mr. Razo again visited Dr.
Fanestil, chiefly complaining of problems with anxiety. [Id. at 960]. The treatment records
indicate an ulnar nerve injury, and state that Mr. Razo’s “5th finger” was “feeling somewhat
better.” [Id.].
On April 29, 2008, Mr. Razo visited Dr. J. William Wagner, a neurologist at Northwest
Neurology, for a consultation regarding Mr. Razo’s right upper extremity impairments, which
apparently arose from a fall several months earlier. [#10-13 at 1159]. The treatment records
indicate the Mr. Razo’s right upper extremity strength was “normal proximally,” and that his grip
strength was “good.” [Id. at 1160]. An electrodiagnostic study indicated reduced ulnar motor
conduction in Mr. Razo’s right elbow, proximally and distally reduced ulnar motor amplitudes,
prolonged distal median sensory latency, and denervation of the right first dorsal interosseus.

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[Id. at 1157]. The associated clinical impression was right carpal tunnel syndrome and right
ulnar neuropathy. [Id.].
On May 20, 2009, Mr. Razo again visited Dr. Wagner for a subsequent evaluation. [Id. at
1156]. The treatment records state that Mr. Razo reported that the numbness in his right fifth
finger was slowly improving. [Id.]. Mr. Razo also reported that he did not have elbow pain and
did not believe he had weakness in his right hand. [Id.]. The June 2009 electrodiagnostic study
results indicated reduced conduction velocity in Mr. Razo’s right elbow, with prolonged wave
latency and mildly reduced ulnar amplitudes. [Id. at 1154]. Dr. Wagner’s evaluative notes
indicate a clinical impression of ulnar neuropathy at Mr. Razo’s right elbow. [Id.].
On June 23, 2009, Mr. Razo visited the emergency room at Avista Adventist Hospital
complaining of pain in his right hand that Mr. Razo believed arose from his previously diagnosed
ulnar nerve injury. [Id. at 1162]. He reported tingling and decreased sensation in his right hand.
[Id. at 1163].
On July 10, 2009, Mr. Razo underwent surgery performed by Dr. Fremling to his upper
right extremity, including decompression of his ulnar nerve at the right elbow and a transposition
of the ulnar nerve with step-out flexor muscles at the right forearm. [Id. at 1167-68]. In October
of 2009, Dr. Fremling opined that Mr. Razo was limited to lifting less than 10 pounds frequently
or occasionally. [Id. at 1175-76]. Dr. Fremling also opined that Mr. Razo would be limited to
reaching less than 5 pounds for less than 5 minutes per hour, to handling less than 10 pounds, to
fingering less than 20 minutes per hour, and to pushing and pulling less than 10 pounds less than
20 minutes per hour. [Id. at 1176].
On February 1, 2010, Mr. Razo visited Dr. Wagner for a follow-up appointment. [Id. at
1261]. The treatment records reflect that Mr. Razo reported that although some numbness

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remained in his right elbow, the pain had significantly decreased, and movement and strength
had both improved in his right upper extremity. [Id.]. However, Mr. Razo also noted that since
October of 2009, he had been experiencing numbness and shock sensations in his left elbow,
pain and weakness in his left thumb, and weakness in his left hand. [Id.]. The treatment records
indicate an initial clinical impression of left ulnar neuropathy or carpal tunnel syndrome. [Id.].
A February 2010 electrodiagnostic study included findings of prolonged left distal median
sensory latency, mildly slowed left ulnar conduction velocity, and mildly prolonged left ulnar fwave latency. [Id. at 1263].
On February 2, 2010, Mr. Razo underwent a neurological evaluation performed by
Kristin Graesser, M.D. [Id. at 1233-1236]. Dr. Graesser noted some weakness in Mr. Razo’s
right hand.

[Id. at 1234-35].

Dr. Graesser noted that Mr. Razo was experiencing “some

improvement” due to surgery and with other therapy. [Id. at 1235]. Dr. Graesser opined that Mr.
Razo would be able to lift or carry objects of up to 50 pounds occasionally. [Id.]. In the
accompanying medical source statement, Dr. Graesser opined that Mr. Razo could lift objects up
to 50 pounds frequently. [Id. at 1237-42]. Dr. Graesser also opined that Mr. Razo could carry
objects of up to 20 pounds frequently, and up to 50 pounds occasionally. [Id.]. At that time, the
clinical finding is reflected as “right hand weakness.” [Id.]
On or before April 12, 2010, Dr. Fremling determined that surgery on Mr. Razo’s left
upper extremity was appropriate. [Id. at 1259-60]. On May 21, 2010, Mr. Razo underwent
surgery to his left upper extremity including an endoscopic carpal tunnel release, radial tunnel
release, and cubital tunnel release with submuscular transposition of the left ulnar nerve. [Id. at
1269-70].

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On June 3, 2010, Mr. Razo visited Dr. Fremling for a post-operative appointment. [Id. at
1273]. Mr. Razo noted that his left hand was doing well. [Id.]. Dr. Fremling’s treatment notes
reflect that Mr. Razo was advised that he would not be able to use his left hand and arm for work
for a minimum of two months. [Id.]. On July 19, 2010, during a subsequent post-operative
appointment with Dr. Fremling, Mr. Razo’s treatment records indicate that Mr. Razo
“complain[ed] of pain in his hands, pain at the palm, and intermittent numbness in his fingertips
which he did not have immediately postoperatively.” [Id. at 1271]. Dr. Fremling noted that
upon examination, “his range of motion [wa]s good.” [Id.].
On September 30, 2010, Mr. Razo visited Dr. Wagner for a follow-up appointment and
underwent an additional electrodiagnostic study of his right upper extremity. [Id. at 1276-78].
The results of the study indicated right carpal tunnel syndrome “new compared to a prior EMG
of June 2009” and stable or “perhaps slightly improved” right ulnar neuropathy. [Id. at 1276].
On November 15, 2010, Mr. Razo visited Dr. Fremling complaining of tenderness in his
left palm and numbness in his right little finger. [#10-14 at 1358]. Dr. Fremling’s treatment
notes reflect that although examination results reflected recurrent right carpal tunnel syndrome,
the results did not call for further treatment unless Mr. Razo became symptomatic. [Id.]. As to
Mr. Razo’s right little finger, the treatment notes reflect that the condition had not improved after
prior decompression surgery, indicating that the nerve had been damaged by compression
neuropathy prior to operation. [Id.]. The treatment notes also reflect Dr. Fremling’s opinion that
maximum medical improvement might not be realized until two years after decompression
surgery. [Id.]. On October 10, 2011, Mr. Razo returned to Dr. Fremling and complained of
numbness and pain in his right little finger and right ring finger. [Id. at 1419]. The treatment
notes reflect a recent nerve conduction study indicating recurrent cubital tunnel syndrome. [Id.].

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A number of treatment options were addressed, including “doing nothing.” [Id.]. Two months
later, Mr. Razo visited Dr. Fremling and complained of cramping in his hands on December 19,
2011. [Id. at 1418]. Examination results indicated continued numbness in the ulnar nerve
distribution in Mr. Razo’s right hand. [Id.]. Dr. Fremling stated that, despite multiple nerve
decompressions, there had not yet been dramatic improvement in Mr. Razo’s symptoms. [Id.].
On July 18, 2012, Mr. Razo visited Dr. Fremling, complaining of pain in his right elbow
and his left hand. [#10-15 at 1568]. Steroidal therapy, which the treatment record notes indicate
had been employed with success in the past, was provided. [Id.].
B.

Plaintiff’s Mental Health Impairments

Since at least June of 2008, there are indications that Mr. Razo suffered from an anxiety
Disorder. [#10-11 at 879]. From April of 2009 through June of 2011, Mr. Razo was treated for
mental health issues by Boulder Mental Health. [#10-15 at 1467-1536]. These treatment records
reflect that Mr. Razo’s mental health functioning was correlated with domestic issues. [Id.]. Mr.
Razo also testified that his anxiety had worsened since 2010 mostly due to his concerns about his
physical condition. [#10-2 at 115; #10-3 at 174].
ANALYSIS
I.

ALJ’s Declination to Give Dr. Fremling’s October 2009 Opinion Controlling Weight
Plaintiff contends that the ALJ erred by failing to give controlling weight to Mr. Razo’s

treating physician Dr. Fremling’s October 19, 2009 “Medical Opinion Re: Ability to Do WorkRelated Activities.” [#16 at 23-27, #10-13 at 1175-77]. The ALJ instead gave greater weight to
the subsequent opinions of non-treating physicians, including testifying medical examiners Dr.
Rack and Dr. Greenberg. [#10-2 at 123-125]. The ALJ’s decision expressly found that Dr.
Fremling’s opinion was entitled to “little weight” because it was “inconsistent with the evidence

16

as a whole and other opinions in the record.” [Id. at 122]. The ALJ also noted that Dr.
Fremling’s October 2009 opinion was provided only three months after Mr. Razo’s
decompression surgery in July of 2009. [Id.].
“Under the regulations, the agency rulings, and [Tenth Circuit] case law, an ALJ must
‘give good reasons in [the] notice of determination or decision’ for the weight assigned to a
treating physician's opinion.” Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)
(quoting 20 C.F.R. § 404.1527(d)(2)) (additional citation omitted). Moreover, the decision
“‘must be sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that weight.’” Id.
(quoting SSR 96–2p, 1996 WL 374188, at *5).
Here, the ALJ’s decision provides express findings as to the weight given to Dr.
Fremling’s October 19, 2009 opinion (i.e., little), and provides good reasons in support. Put
simply, Dr. Fremling’s October 2009 opinion was provided so soon after Mr. Razo’s July 2009
decompression surgery that the degrees of limitation reflected in Dr. Fleming’s opinion could
well have arisen from the surgical intervention itself, and might be expected to dissipate as Mr.
Razo continued to recover. Indeed, Dr. Greenberg testified in 2012 that the record as a whole—
including medical records reflecting Mr. Razo’s recovery subsequent to the fall of 2009—
established as much. [#13 at 1614-15]. The opinions of Dr. Graesser and Dr. Rack, which were
also provided several months (in the case of Dr. Graesser) or more than a year after (in the case
of Dr. Rack) October of 2009, also found less restrictive limitations as Mr. Razo apparently
continued to recover from upper extremity surgical interventions.

[#10-13 at 1235] (Dr.

Graesser opining in February of 2010 that Mr. Razo could lift up to 50 pounds occasionally and
that “[h]e has no limitations on my examination in ambulation, bending, crawling, stooping,

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crouching or balancing”), [#10-3 at 203] (Dr. Rack testifying in February of 2012 that “the
nature of the abnormality within the nervous system per se, does not of itself extend to such a
great degree that one would consider the patient unable to function in a fairly reasonable way”).
A treating physician’s opinion is entitled to controlling weight “if it is not inconsistent
with other substantial evidence in the record.” Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir.
1995). Because Dr. Fremling’s October 2009 opinion included functional limitations that were
inconsistent with substantial evidence in the record of subsequent improvement—including
subsequent opinions by other physicians who evaluated medical record evidence post-dating Dr.
Fremling’s October 2009 opinion—the ALJ did not err in declining to give Dr. Fremling’s
opinion controlling weight. See, e.g., Redmon v. Colvin, No. 11 C 8526, 2014 WL 2566514, at
*5-*6 (N.D. Ill. June 4, 2014) (finding subsequent evidence of medical improvement provides
good reason not to give controlling weight to treating physician opinion).
II.

ALJ’s Findings as to Claimed Non-Exertional Limitations
A.

ALJ’s Findings as to Pain

Plaintiff argues that the ALJ erred by purportedly failing to “specifically address Mr.
Razo’s pain as a disabling factor in and of itself.” [#16 at 28-29]. But the ALJ’s expressly found
that Plaintiff’s allegations of disabling pain were not credible, based on evidence in the Record
that Plaintiff exaggerated his symptoms of pain because of his apparent addiction to opiates, and
engaged in other drug-seeking behavior. [#10-2 at 115-118]. Plaintiff asserts the ALJ erred
because “the ALJ never conducted a Luna analysis of Mr. Razo’s pain.” [#16 at 29]. However,
the “mere absence of a rote recitation of the Luna factors [set forth in Luna v. Bowen, 834 F.2d
161, 165–66 (10th Cir.1987)]” is not error by itself. Jimison ex rel. Sims v. Colvin, 513 F.
App’x. 789, 796 (10th Cir. 2013) (unpublished).

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The ALJ specifically noted instances where Plaintiff’s reports of pain were not correlated
with clinical findings. For instance, in July 2007, Plaintiff complained of persistent knee pain
secondary to his gout [#10-2 at 115 citing #10-12 at 1047], but the clinical examination
demonstrated a flex of approximately 90 degrees. [Id.]. A later x-ray noted by the ALJ
demonstrate no acute deformity or abnormality. [#10-2 at 116 citing #10-12 at 1045]. The ALJ
also engaged in a detailed discussing regarding his credibility determination. [#10-2 at 115-119].
Based on the briefing before it, the court can discern no error in the ALJ’s determination that
Plaintiff’s pain was not disabling.
B.

Medical Appointments

Plaintiff argues that the ALJ erred in failing to make express RFC findings as to
Plaintiff’s ability to attend work consistently, given Plaintiff’s testimony that he regularly
attended several medical appointments for around several hours per week. [#16 at 29]. Yet
Plaintiff points to no evidence in the record that demonstrates that he is required to attend several
medical appointments around several hours per week, every week, and the ALJ specifically
found that Plaintiff’s statements regarding the intensity, persistence, and limiting effects of his
symptoms were not credible to the extent that they were not consistent with the above-residual
function capacity assessment. [#10-2 at 115]. The ALJ further noted that Dr. Wagner, one of
Mr. Razo’s treating physicians, did not address any impairment that limited his ability to work,
and only indicated that he believed Mr. Razo was unable to work for up to six months starting in
September 2012. [Id. at 124 citing #10-15 at 1550-52]. In addition, while Dr. Wagner noted that
Mr. Razo was “unable to work” pending further treatment including ‘massage therapy,
acupuncture, and meds” [#10-2 at 124 citing #10-15 at 1550], the ALJ assigned Dr. Wagner’s
opinion little weight as it “provides no functional limitations that would result in the claimant

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being ‘unable to work.’” [#10-2 at 124]. Indeed, Dr. Wagner did not specify the frequency of
the treatments recommended to Plaintiff. [#10-15 at 1550].
A claimant has the burden to prove his RFC at step 4 of the sequential evaluation. See
Reno v. Astrue, Civil Action No. 12-1121-JAR, 2013 WL 474298, at *1 (D. Kan. Feb. 7, 2013)
(citing Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir.1993)). It was Mr. Razo’s burden to
show the frequency of his healthcare appointments and any disruption they would cause, and he
simply has failed to establish that the ALJ failed to properly account for either the frequency or
the disruption in his determination of Plaintiff’s RFC. Accordingly, this court finds that any
failure by the ALJ to account for his ability to attend work due to his medical appointments does
not require reversal because there is no evidence that the condition imposed any restriction on his
functional capabilities as reflected in the RFC. See Morin v. Colvin, No. 4:14-cv-000769-NKL,
2015 WL 4928461, *9-*10 (W.D. Mo. Aug. 18, 2015).
C.

ALJ’s Consideration of Plaintiff’s Obesity

Plaintiff contends that the ALJ failed to account for his obesity in the RFC, and a proper
consideration would have resulted in greater restrictions and a finding that Mr. Razo was
disabled. [#16 at 29]. The ALJ properly noted that Plaintiff had been diagnosed as morbidly
obese, and therefore, Social Security Ruling 02-1p, 2000 WL 628049, required the ALJ to assess
the impact of that obesity. At step 2, the ALJ must decide whether the claimant’s obesity is
severe either alone or in combination with other impairments. See Wrenn v. Astrue, No. 11–
981–HE, 2012 WL 5289417, *6 (W.D. Okla. Sept. 12, 2012). The ALJ did find that Mr. Razo
suffered from a severe impairment of morbid obesity at step 2. [#10-2 at 108]. At step 3, the
ALJ found there was no listing for morbid obesity, and that claimant’s obesity in conjunction

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with other impairment did not indicate that his obesity met or equals a listed impairment. [Id. at
113].
If a claimant is obese, the ALJ should discuss the “possible ramifications” of the
claimant’s obesity” as to other impairments. Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir.
2004). In the instant case, the ALJ’s decision provides that the “medical source opinions” relied
upon “included the effects of claimant’s obesity in the limitations provided.” [#10-2 at 120].
The RFC determined by the ALJ indicates that Mr. Razo can perform sedentary work; can lift
and carry up to 10 pounds occasionally; can stand and walk no more than hour at a time; and for
no more than four hours in an eight hour day. [Id. at 113-14]. While Plaintiff asserts that it was
error for the ALJ not to account for obesity in his determination of Mr. Razo’s RFC, “the
problem with this argument is that there is no record of any functional limitations” from Mr.
Razo’s obesity or any of his impairments potentially caused or exacerbated by his obesity that
are not accounted for within the RFC. See Jimison, 513 F. App’x at 798. Indeed, apart from his
bald assertion that a proper assessment of his obesity would have resulted in additional
limitations and a finding of disability, Mr. Razo points to no record citation to support a
conclusion that his obesity would further limits his ability to function in a manner not already
accounted for through the RFC. See Rios v. Astrue, 848 F. Supp. 2d 1283, 1289-90 (D. Colo.
2012). Therefore, the court concludes that the ALJ did not err. See Jimison, 513 F. App’x at
798; Wood v. Colvin, No. CIV-12-1395-M, 2014 WL 837149, *10 (W.D. Okla. Mar. 4, 2014).
III.

ALJ’s Findings as to Mr. Razo’s Social Functioning
The ALJ’s decision gave “significant” weight to Dr. Moore’s opinions with respect to

Mr. Razo’s mental impairments. [#10-2 at 124]. Dr. Moore testified that Mr. Razo’s social
functioning with supervisors, co-workers, and the general public would be at least moderately

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limited, but that these social limitations would be greatest in situations where Mr. Razo was
“confronted about his substance abuse” arising from his addiction to pain medication. [Id.; #103 at 211]. The ALJ declined to include any specific limitations on Mr. Razo’s social functioning
in the ALJ’s RFC determination, finding that Mr. Razo’s substance abuse was in remission, and
that Mr. Razo’s own testimony does not indicate “any difficulty getting along with others.”
[#10-2 at 124]. However, the ALJ did note that “[r]egarding the claimant’s mental limitations,
the undersigned has taken into account some of the claimant’s allegations regarding his pain and
anxiety. Accordingly, giving the claimant the benefit of the doubt despite multiple notations of
pain exaggeration and malingering, the undersigned has limited the claimant to understanding,
remembering and carrying out simple instructions, despite Dr. Moore’s opinion that he could
perform all types of tasks.” [Id. at 125].
The Commissioner argues that the ALJ’s finding that Mr. Razo’s social impairments
would pose no limitation on his RFC is supported by substantial evidence. [#19 at 18-19].
“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 and quotation omitted). In discussing whether Mr.
Razo’s impairments or combination of impairments met the severity of one of the listed
impairments, the ALJ noted Dr. Moore attributed limitations with respect to social functioning
were predominantly related to a divorce and custody dispute with his ex-wife. [#10-2 at 109].
The ALJ also noted that it was the opinion of Dr. Moore that Mr. Razo could understand,
remember and carry out all types of instructions, without limitation. [Id.]. The ALJ also noted
that The ALJ further noted that Plaintiff’s anxiety had been controlled by medication, citing to
Dr. Moffat’s notes. [Id. citing #10-9 at 676 (“He has been doing relatively well with regard to

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the anxiety issues”)]. The ALJ noted that by April 2008, Dr. Fanestil, one of Plaintiff’s treating
physicians, was reflecting Mr. Razo’s self-report that he was “doing good.” [#10-2 at 109]. He
also notes that as of May 2008, Plaintiff reported that he was “okay” and was looking for jobs.
[Id. at 110 citing #10-11 at 973]. The ALJ noted that Plaintiff had not indicated any difficulty
getting along with others [#10-2 at 124]. That conclusion is supported by the ALJ’s discussion
regarding Mr. Razo’s self-report that he was able to drive his kids to and from school on a daily
basis [id. at 110] and Plaintiff’s testimony provided at the hearings on May 4, 2015 and October
19, 2012. [Id. at 114-15]. The ALJ also noted that Mr. Razo had testified that he had stopped
abusing his narcotic medication after his kidney stone was removed. [Id. at 115].
Despite Plaintiff’s arguments, Plaintiff fails to point to any evidence in the record that
supports more specific limitations to his social functioning that are not accounted for in the RFC.
He fails to identify any testimony that he provided to the ALJ to demonstrate that he had
limitations to his social functioning. [#16 at 30-32]. Indeed, most of Plaintiff’s arguments
amount to speculation as to what, if any, social restrictions Mr. Razo may had, without any
citation to the record of medical evidence that the ALJ improperly disregarded. [Id.]. And
contrary to Plaintiff’s argument that the ALJ’s determination that Mr. Razo’s social functional
limitations are moot were based solely on the ALJ’s interpretation of one sentence in Dr.
Moore’s testimony, the ALJ cites to numerous instances in the record where Plaintiff and his
treating physicians were reporting that his anxiety was under control and his drug-seeking
behavior had resolved, as discussed above. Therefore, this court finds that the ALJ did not err by
failing to assign specific social functioning restrictions in the determination of Mr. Razo’s RFC.

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IV.

The ALJ’s Determination at Step 5
Plaintiff contends that at step 5, the ALJ erred because he failed to:

(1) obtain a

reasonable explanation for a conflict between the VE’s testimony and the Dictionary of
Occupational Titles related to the limitations associated with “sedentary work”; (2) precisely
account for claimant’s impairments in the hypothetical questions posed to the VE; and (3) failed
to account for the frequent manipulation necessary to perform the jobs identified by the VE.
[#16 at 32]. The Commissioner argues that the ALJ reasonably relied upon the VE’s response to
the hypothetical questions, and even if the court found error, any error is harmless because at
least two of the jobs that the VE identified were sedentary in nature. [#19 at 19-20].
At step 5 of the sequential analysis, the ALJ must determine whether there are jobs that
exist in significant numbers in the national economy that Plaintiff can perform. If not, the
claimant is determined to be disabled. If there are jobs that exist in significant numbers that
appropriately account for Plaintiff’s age, education, work experience, and RFC, then the claimant
is determined to be not disabled.

The burden rests upon the Commissioner at this stage.

Fischer–Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); see also Bowen v. Yuckert, 482
U.S. 137, 146 n. 5, (1987).
In reviewing the ALJ’s determination, keeping in mind that the court’s role is not to
reweigh the evidence, the court finds no error. Contrary to Plaintiff’s argument, the ALJ
specifically asked the VE whether her testimony differed from the DOT. [#10-3 at 192]. The VE
responded by explaining that some of the answers are not covered by the DOT, and she based her
answers upon her experience, training, and education. [Id.]. Nothing in the ALJ’s questions or
the VE’s responses appear ambiguous about the additional walking and standing limitations,
despite the definition of “sedentary work.” The ALJ found that Mr. Razo could not perform a

24

full range of sedentary work. [#10-2 at 126]. In posing questions to VE Christianson, the ALJ
did not instruct VE Christianson to consider a full range of sedentary work for Mr. Razo.
Instead, the ALJ specifically inquired about Plaintiff’s particular limitations:
ALJ: I'd like you to now assume another individual who could -- of the same
age, education and work experience as the claimant who could lift and carry no
more than 10 pounds. Who could stand and walk no more than one hour at a time
for a total of four hours during an eight hour workday. The person could sit
without limitation. The person could frequently use their upper extremities for
work activities. The person would be able to understand, remember and carry out
only simple instructions. Could such a person as I've just described perform work
that you gave me in response to my first hypothetical?
VE: Okay. Your Honor, what I would say to that is I believe that that would
eliminate all but the assembler, and that position, those numbers would be eroded
up to 50 percent.
ALJ: Okay. So would there be other work such a person could perform?
VE: One moment. Another example might be an addresser. That DOT code
number is 209.587-010. That is sedentary, SVP 2. And those jobs occur nationally
at a rate of approximately 25,000, locally approximately 280. And let's see here,
and another example might be a final assembler. That DOT code number is
713.687-018, sedentary, SVP 2. National numbers approximately 14,000, and
locally approximately 150.
[#10-3 at 187]. The ALJ expressly noted in his decision that the VE stated that the assembler of
small products occupation would be eroded an additional 50% due to Mr. Razo’s additional
standing and walking limitations, which were not covered by the DOT. [#10-2 at 126]. Finally,
Plaintiff’s final argument regarding his limitations regarding frequent manipulation is a recasting
of his argument regarding the ALJ’s purported failure to properly account for his upper extremity
symptoms – and for the reasons above, the court is not persuaded that the ALJ erred when he
declined to include additional limitations in the RFC.

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CONCLUSION
For the reasons stated herein, IT IS ORDERED that the decision of the Commissioner is
AFFIRMED.

DATED November 3, 2015

BY THE COURT:

s/ Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge

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