Osborn v. Colvin
Filing
20
ORDER affirming the Commissioner's final order, by Judge Lewis T. Babcock on 12/17/2015. (ebuch)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 14-cv-00966-LTB
PAUL A. OSBORN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________________
ORDER
_____________________________________________________________________________
Plaintiff, Paul A. Osborn, appeals from the Social Security Administration (“SSA”)
Commissioner’s final decision denying his application for supplemental security income, filed
pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§1381-1383c. Jurisdiction is proper
under 42 U.S.C. §405(g). Oral argument would not materially assist me in the determination of
this appeal. After consideration of the parties’ briefs, as well as the administrative record, I
AFFIRM the Commissioner’s final order.
I. STATEMENT OF THE CASE
Plaintiff seeks judicial review of the Commissioner’s decision denying his application for
supplemental security income filed in August of 2012. [Administrative Record (“AR”) 16, 129]
After the application was initially denied on April 11, 2013 [AR 64], an evidentiary hearing was
held on June 24, 2013. [AR 29] An Administrative Law Judge (“ALJ”) issued a written ruling
on June 27, 2013. [AR 16] In that ruling the ALJ denied his application on the basis that he was
not disabled because Plaintiff had the residual functional capacity (“RFC”) to perform work
existing in significant numbers in the national economy (Step Five). [AR 16-25] The SSA
Appeals Council subsequently denied Plaintiff’s administrative request for review of the ALJ’s
determination, making the SSA Commissioner’s denial final for the purpose of judicial review.
[AR 1] See 20 C.F.R. §416.1481. Plaintiff timely filed his complaint with this court seeking
review of the Commissioner’s final decision.
II. FACTS
Plaintiff was born on August 6, 1991. [AR 33] He was twenty-one years old on the date
of the ALJ’s decision, and had obtained his GED. [AR 21,35] Plaintiff has no past relevant
work. [AR 158-59, 182] In his application, Plaintiff alleged he is disabled due to bipolar II
disorder, panic attacks, hallucinations, PTSD, and major depression. [AR 154] He indicated that
he became disabled commencing on January 1, 2005, but his alleged onset date was
subsequently amended to August 28, 2012 – the application date – as SSI benefits are not
payable prior to the month following the month in which the application was filed pursuant to 20
C.F.R. §416.200 and §416.202(g). [AR 16]
A. Prior Medical Evidence
The medical records prior to Plaintiff’s application date reveal that he suffered from
various mental problems and had been diagnosed with bipolar disorder, adjustment disorder,
depression, anxiety and marijuana abuse. [AR 273, 277, 283] It appears that Plaintiff had
received on and off treatment for his mental health issues, starting in 2007 at age 15, from
psychologist Don Marinelli, Ph.D. [AR 268-99] The records also reveal that the year prior to his
application date for SSI benefits, Plaintiff received psychiatric treatment/medication
management from Joey Learner, M.D. (from July 2011 through Feb 2012). [AR 259-67]
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Also during the year before he applied, Plaintiff was placed on two psychiatric holds at
Boulder Community Hospital. [AR 209, 231] On October 10, 2011 he was involuntarily held for
suicidal and homicidal threats. [AR 208-21] At discharge, on October 13, 2011, he had arranged
for intake at Centennial Peaks Hospital for intensive outpatient treatment. His diagnosis upon
discharge was bipolar disorder, mixed, cannabis dependence, and his Global Assessment of
Functioning (“GAF”) score was assessed at 60. [AR 209] On February 19, 2012, Plaintiff was
placed on a 72-hour mental health hold for increased agitation, anger and some violence after
discontinuing his medications and 6 months of homelessness. [AR 230-42] Upon discharge, on
February 23, 2012, his diagnosis was bipolar disorder, most recent episode mixed, and an
assessed GAF score of 55. He was to followup with Centennial Peaks Hospital. [AR 231]
The records from the outpatient program at Centennial Peaks reveal only an initial
assessment on February 27, 2012, and then an unsigned treatment plan on March 5, 2012. [AR
243-58] The discharge notes indicate that Plaintiff was not able to complete the program as he
needs intensive case management and mental health treatment. The discharge diagnosis was
cannabis dependence, and bipolar D/O, with as assessed GAF of 40. [AR 244]
B. Relevant Medical Records
The medical records for the time period after Plaintiff’s application was filed are
minimal. On October 20, 2012, his psychologist, Dr. Marinelli, authored a “To Whom it May
Concern” letter indicating his opinion that “[w]hen compliant with his treatment plan, especially
his medication regiment, [Plaintiff] can function safely and appropriately in the community.
However, his high levels of anxiety and depression and his low self-esteem significantly
interfere with his ability to consistently participate in young adulthood.” [AR 269]
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In March of 2013, Plaintiff underwent a psychological examination with consultive
examiner Stuart Kutz, Ph.D. [AR 301-07] After a mental status exam, Dr. Kutz indicated:
Mentally, he certainly seems capable of basic activities of daily living as well as
chores, although his underlying personality disorder and tendency towards
instability may make this less than optimal at times. However, . . . he functions
rather well in a structured environment and where his needs are met. And so he is
capable of functioning at a higher level than what he seems to present. [AR 307]
Dr. Kutz indicated Plaintiff’s primary diagnosis as a personality disorder, NOS, with
borderline features. He also diagnosed a mood disorder, NOS and anxiety disorder, NOS. He
assessed a GAF score of 55 “indicating a moderate level of social and occupational impairment”
and noted that “[r]elative to a competitive work setting throughout an eight-hour day, his
attention/concentration, persistence and pace in task completion, and social adaptation would
seem moderately impaired.” [AR 307]
Douglas Hanze, Ph.D., a state agency psychologist, reviewed Plaintiff’s medical records
and opined, at the initial determination stage, that:
[Plaintiff’s] symptoms may interfere with completion of a normal workday or
workweek or may cause inconsistent pace. However, when work does not require
more than simple instructions, ordinary routines and simple decision making,
limitations of attendance and pace will not prevent the completion of a normal
workday/workweek or significantly reduce pace. [Plaintiff] can perform at a
consistent pace without an unreasonable number and length of rest periods when
work demands are within [RFC] restrictions. [He] should have limited
interpersonal contact. [AR 59]
C. Hearing Testimony:
At the hearing on this matter, Plaintiff testified that he had been diagnosed with posttraumatic stress disorder (PTSD), bipolar disorder, depression, panic attacks, and anxiety, and
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that he was last hospitalized because he was homeless, not taking his medications, and having
problems with depression. [AR 36-38]
Plaintiff testified that he had a driver’s license, but did not drive because he got panic
attacks, trouble focusing, had hallucinations, and that he had not left his apartment in a year. [AR
34-36, 45-46] When asked about his medications, he indicated that he had stopped taking them
and was instead using dietary supplements, which he thought helped a lot. [AR 36] He indicated
that he keeps appointments with his therapist, but that they were conducted over the phone
because he has problems leaving the house. [AR 45-6] Plaintiff testified that he issues with
short-term memory and getting along with other people, and that he had daily panic attacks
which last from 45 minutes to three hours. [AR 39-40] He indicated that has hallucinations and
he sees “things other people don’t” all the time. [AR 41]
Plaintiff testified that he showers daily, but doesn’t groom himself due his low selfesteem. [AR 41] He goes to the grocery store once or twice a month, and cooks his own dinner,
but does not use a stove. [AR 41-42] He receives help cleaning his apartment from his parents.
[AR 42] He also testified that he spent an hour or two on the computer every day. [AR 42-3] He
indicated he is not able to enjoy his hobbies of playing guitar or skateboarding, but he can care
for his pet cat. [AR 43-4]
A vocational expert also testified. [AR 46] She testified that a hypothetical individual of
Plaintiff’s age, education, and past work, and RFC that was limited to: “simple, routine, and
repetitive work with a maximum SVP-2;” “[c]ould not perform at a production rate pace” but
could “perform goal-oriented work;” “[o]ccasional interaction with supervisors and coworkers;”
“[n]o interaction with the public;” and “[c]an tolerate few changes in the routin[e] work setting”
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could work as an industrial cleaner, floor waxer, laundry worker, and cleaner housekeeper. [AR
47-8]
II. LAW
I review the ALJ’s application of the five-step sequential evaluation process used to
determine whether a claimant is disabled under Title XVI of the Social Security Act, which is
generally defined as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287,
96 L.Ed.2d 119 (1987).
Step One is whether the claimant is presently engaged in substantial gainful activity. If
he is, disability benefits are denied. See 20 C.F.R. §416.920. Step Two is a determination of
whether the claimant has a medically severe impairment or combination of impairments as
governed by 20 C.F.R. §416.920(c). If the claimant is unable to show that his impairment(s)
would have more than a minimal effect on his ability to do basic work activities, he is not
eligible for disability benefits. Step Three determines whether the impairment is equivalent to
one of a number of listed impairments deemed to be so severe as to preclude substantial gainful
employment. See 20 C.F.R. §416.920(d). If the impairment is not listed, he is not presumed to
be conclusively disabled. Step Four then requires the claimant to show that his impairment(s)
and assessed residual functional capacity (“RFC”) prevent him from performing work that he has
performed in the past. If the claimant is able to perform his previous work, the claimant is not
disabled. See 20 C.F.R. §416.920(e)&(f). Finally, if the claimant establishes a prima facie case
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of disability based on the four steps as discussed, the analysis proceeds to Step Five where the
SSA Commissioner has the burden to demonstrate that the claimant has the RFC to perform
other work in the national economy in view of his age, education and work experience. See 20
C.F.R. §416.920(g).
IV. ALJ’s RULING
The ALJ ruled that Plaintiff had not engaged in substantial gainful activity since the date
he filed his application (Step One). [AR 18] The ALJ further determined that Plaintiff had the
following severe impairments: bipolar disorder and cannabis dependence (Step Two), but that
he did not have an impairment or combination of impairments that met or medically equaled a
listed impairment deemed to be so severe as to preclude substantial gainful employment (Step
Three). [AR 18-19]
The ALJ then determined that Plaintiff had the RFC to perform a full range of work at all
exertional levels, but that he cannot climb ladders or scaffolds or work at unprotected heights.
He is also limited to simple, repetitive and routine tasks with a maximum of SVP of 2, and he
cannot perform at a production rate pace, although he can perform goal-oriented work. Finally,
he can have only occasional interaction with supervisors and co-workers, but no interaction with
the public, and he can tolerate few changes in a routine work setting. [AR 20] After ruling that
Plaintiff had no past relevant work (Step Four), the ALJ went on to determine that Plaintiff could
perform work existing in significant numbers in the national economy considering his age,
education, work experience and RFC (Step Five). [AR 23] As a result, the ALJ concluded that
Plaintiff was not disabled at Step Five of the sequential process and, therefore, was not under
disability as defined by the SSA. [AR 24-25]
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V. STANDARD OF REVIEW
This court’s review is limited to whether the final decision is supported by substantial
evidence in the record as a whole and whether the correct legal standards were applied.
Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003); White v. Barnhart, 287 F.3d 903,
905 (10th Cir. 2001); Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). Thus, the function
of my review is “to determine whether the findings of fact . . . are based upon substantial
evidence and inferences reasonably drawn therefrom; if they are so supported, they are
conclusive upon [this] reviewing court and may not be disturbed.” Trujillo v. Richardson, 429
F.2d 1149, 1150 (10th Cir. 1970). “Substantial evidence is more than a scintilla, but less than a
preponderance; it is such evidence that a reasonable mind might accept to support the
conclusion.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987)(citing Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d. 842 (1971)). I may not re-weigh the
evidence or substitute my judgment for that of the ALJ. See Casias v. Secretary of Health &
Human Servs., 933 F.2d 799, 800 (10th Cir. 1991); Jozefowicz v. Heckler, 811 F.2d 1352, 1357
(10th Cir. 1987); Cagle v. Califano, 638 F.2d 219, 220 (10th Cir. 1981).
With regard to the application of the law, reversal may be appropriate when the SSA
Commissioner either applies an incorrect legal standard or fails to demonstrate reliance on the
correct legal standards. See Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). Thus, “if
the ALJ failed to apply the correct legal test, there is a ground for reversal apart from lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir.1993).
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VI. ISSUES ON APPEAL
A. Assessed Impairments
I first address Plaintiff’s contention that the ALJ erred when assessing his mental
impairments – specifically his anxiety and personality disorder – and concluding that he did not
have an impairment, or combination of impairments, that met or medically equaled a listed
impairment deemed to be so severe as to preclude substantial gainful employment at Step Three
of the sequential process.
At Step Two, the ALJ found that Plaintiff had the severe impairments of bipolar disorder
and cannabis dependence. [AR 18] The ALJ also noted Plaintiff’s allegation of disability due to
post-traumatic stress disorder (PTSD), but found that “no definitive diagnosis of this impairment
from an acceptable medical source is present in the record.” [AR 18] Finally, the ALJ
determined that Plaintiff’s “diagnoses of anxiety and personality disorder are better addressed”
under the assessed severe mental impairments of bipolar disorder and cannabis dependence. [AR
18] The ALJ then concluded, at Step Three of the sequential process, that Plaintiff’s mental
impairments do not meet or medically equal a listed impairment. [AR 18]
Plaintiff asserts that the ALJ’s analysis failed to adequately consider his medically
determinable mental impairments of anxiety (under Listing 12.06) and personality disorder
(under Listing 12.08). See 20 C.F.R. part 404, subpart P, appendix 1. Specifically, he argues
that the ALJ’s failure to specifically address these impairments – by instead determining that
they are “better assessed” under the Listings for bipolar disorder (Listing 12.04) and cannabis
dependence (Listing 12.09) – constitutes error because the ALJ was required to consider all of
Plaintiff’s medically determinable impairments, both singly and in combination, at all steps of
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the sequential evaluation. See Clifton v. Chater, 79 F.3d 1007 (10th Cir. 1996).
“It is beyond dispute that an ALJ is required to consider all of the claimant’s medically
determinable impairments, singly and in combination.” Salazar v. Barnhart, 468 F.3d 615, 621
(10th Cir. 2006); see also Langley v. Barnhart, 373 F.3d 1116, 1123-24 (10th Cir. 2004).
“[T]he statute and regulations require nothing less” and a failure to do so “is reversible error.”
Salazar v. Barnhart, supra, 468 F.3d at 621 (citing 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. §§
416.920(a), 416.923, 416.945)(ruling that the ALJ’s failure to consider the claimant’s borderline
personality disorder, “singly and in combination with her other impairments, requires that we
reverse” as a misapplication of the law); see also Clifton v. Chater, supra, 79 F.3d at 1009
(reversing when the ALJ “did not discuss the evidence or his reasons for determining that
[claimant] was not disabled at step three” as a “bare conclusion [was] beyond meaningful
judicial review”). However, an ALJ’s failure to discuss the applicability of a specific Listing is
rendered harmless if findings elsewhere in his or her decision unambiguously negates a claim
that an impairment satisfies that Listing. Carpenter v. Astrue, 537 F.3d 1264, 1268 (10th Cir.
2008) (citing Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005)). A claimant has the
burden to present evidence establishing his or her impairments meet or equal listed impairments.
Fischer-Ross v. Barnhart, supra, 431 F.3d at 733.
When assessing whether Plaintiff has a medically severe impairment or combination of
impairments, the ALJ did not specifically discuss his anxiety or personality disorder diagnoses as
she determined that they “are better addressed under the above severe mental impairments” of
bipolar disorder and cannabis dependence. [AR 18] The ALJ analyzed only Listing 12.04,
addressing Mood Disorders/Depressive Syndrome, and Listing 12.09, addressing Substance
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Abuse. [AR 19]
I agree with the Commissioner, however, that the ALJ’s failure to specifically address
whether Plaintiff’s medically determinable impairments of anxiety and borderline personality
meet the requisite Listings (Listing 12.06 for the assessment of Anxiety-Related Disorders or
Listing 12.08 addressing Personality Disorders) did not constitute reversible error, because the
ALJ found that Plaintiff did not meet either the Paragraph B or Paragraph C criteria. The ALJ
found that Plaintiff did not meet the Paragraph B criteria (in that he did not have two areas of
marked restriction/difficulties or repeated episodes of decompensation) and thus he could not
meet the requirements of Listing 12.06 (which requires a Paragraph B finding). See 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.06. In addition, the ALJ found that there was no evidence “of a
complete inability to function independently outside the area of his home” [AR 19] and thus he
could not meet the requirements of Listing 12.08 which requires either a Paragraph B finding or
a complete inability to function outside of the home. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.08. “A claimant will only be presumed disabled if an impairment, or a combination of
impairments, meets or equals all the requirements of a listing.” Best-Willie v. Colvin, 514 F.
App’x 728, 734 (10th Cir. 2013)(not selected for publication)(citing Sullivan v. Zebley, 493 U.S.
521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990)). Thus, while the ALJ did not specifically
address whether Plaintiff’s anxiety and personality disorder met the relevant listed impairment,
such error was harmless. See Carpenter v. Astrue, supra, 537 F.3d at 1268; Fischer-Ross v.
Barnhart, supra, 431 F.3d at 733.
Furthermore, to the extent that Plaintiff argues that the ALJ’s analysis “does not
accurately reflect the significant limitations of his combined impairments” at Step Three, I
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disagree. First, this assertion is made by Plaintiff without any evidentiary support or argument.
See generally Deason v. Colvin, 2015 WL 5675305 (D. Colo. Sept. 28, 2015)(unpublished)
(noting that the claimant failed to specify any listing for which she believes her impairments
satisfy all medical criteria). In addition, the ALJ’s order indicates that she considered Plaintiff’s
impairments in combination when determinating they do not meet or equal a Listing, and the
evidence of record is sufficient to support this finding. Id.
B. Weighing of Opinion Evidence
Plaintiff also asserts that the ALJ erred in weighing the opinion evidence of record when
deciding whether his mental impairments meet or medically equal a listed impairment and when
assessing the non-physical limitations in his RFC. Plaintiff first takes issue with the ALJ’s
analysis of his treating physician opinions.
The opinion of a treating physician is generally “entitled to great weight because it
reflects expert judgment based on continuing observation of a patient’s condition over a
prolonged period of time.” Williams v. Chater, 923 F.Supp. 1373, 1379 (D. Kan. 1996). When
deciding how much weight to give a treating source opinion, an ALJ must first determine
whether the opinion qualifies for “controlling” weight. Watkins v. Barnhart, 350 F.3d 1297,
1300 (10th Cir. 2003); see also 20 C.F.R. § 416.927(d)(2). The analysis of how much weight to
accord a treating source opinion is sequential: an ALJ must first consider whether the opinion is
well-supported by medically acceptable clinical and laboratory diagnostic techniques. If the
answer to this question is “no,” then the inquiry at this stage is complete. If the ALJ finds that
the opinion is well-supported, he must then confirm that the opinion is consistent with other
substantial evidence in the record. “In other words, if the opinion is deficient in either of these
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respects, then it is not entitled to controlling weight.” Watkins v. Barnhart, supra, 350 F.3d at
1300; see also Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004)(quoting Social
Security Ruling (“SSR”) 96-2p).
If a treating physician’s opinion is not given controlling weight, the ALJ must determine
what weight, if any, the opinion deserves, considering the following factors:
(1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ's attention which tend to support or contradict the opinion.
Watkins v. Barnhart, supra, 350 F.3d at 1301.
The ALJ determined that Dr. Marinelli was a treating physician in that he had provided
Plaintiff individualized psychotherapy intermittently since 2007, he “has a longitudinal treatment
history with the claimant, and [he] is an acceptable medical source pursuant to the Regulations.”
[AR 22] It was Dr. Marinelli’s opinion that “[w]hen compliant with his treatment plan,
especially his medication regiment, [Plaintiff] can function safely and appropriately in the
community. However, his high levels of anxiety and depression and his low self-esteem
significantly interfere with his ability to consistently participate in young adulthood.” [AR 21]
The ALJ gave “great weight to Dr. Marinelli’s opinion as it is consistent with the above RFC and
the medical evidence of the record as a whole.” [AR 21-22] In reviewing the ALJ’s ruling, I
note that to the extent Plaintiff asks that I consider Dr. Marinelli’s subsequent “To Whom It May
Concern” letter, dated October 29, 2013 and attached to his Opening Brief [Doc #61-1], I note
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that this letter is not part of the Administrative Record in that the Appeals Council correctly
ruled that it post-dates the ALJ’s decision and “[t]herefore, it does not affect the decision about
whether [Plaintiff] were disabled beginning on or before June 27, 2013” (the date of the ALJ’s
decision). [AR 2] See 20 C.F.R. §416.1470(b)(requiring that newly-submitted evidence shall
only be considered where it relates to the period on or before the date of the ALJ hearing
decision).
Plaintiff takes issue with the ALJ giving this opinion “great” weight as opposed to
“controlling” weight, and in failing to discuss why she did not do so. However, it is clear that
the ALJ did not discount or in any way minimize Dr. Marinelli’s opinion. To the contrary, the
ALJ gave it full or controlling weight in that the general concerns raised by him – including
Plaintiff’s inability to “consistently participate in young adulthood” – were incorporated into the
ALJ’s assessment of the severity of Plaintiff’s mental impairments and in his RFC. Plaintiff’s
assertion that Dr. Marinelli’s “uncontroverted opinion supports a finding of disability” is a mischaracterization. Dr. Marinelli did not state any opinion about Plaintiff’s functional abilities or
limitations related to his ability to work. Rather, he opined that despite Plaintiff’s need for shortterm hospitalizations to help manage his bipolar condition, he was able to live independently of
his parents and could function safely and appropriately in the community when on medications.
[AR 269] The ALJ’s order reveals that she fully accepted Dr. Marinelli’s opinion as to the
impact of Plaintiff’s mental health impairments, and her failure to indicate as such (that she was
giving it “controlling weight”) does not constitute error. See generally Pacheco v. Colvin, 83 F.
Supp.3d 1157, 1162 (D. Colo. 2015)(noting that the term “reduced weight,” when the ALJ’s
order is view in context, “was meant to convey the ALJ’s assessment that [a treating physician’s]
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opinion was not entitled to controlling weight”).
Plaintiff also contends that the ALJ erred in assessing the opinion of his “long-term
treating psychiatrist” Dr. Lerner. Plaintiff asserts that it is Dr. Lerner’s opinion that Plaintiff was
“very disorganized, changing topics, interrupting, disjointed thoughts, some paranoia,” was
disheveled, appeared to have lost weight, and was “making accusations about charging for
visits.” [AR 260-67, 265] These observations – made in Dr. Lerner’s progress/treatment notes
outside of the relevant time period – do not constitute an opinion as to Plaintiff’s limitations
related to his mental impairments or his functional capacity. [AR 265] As the Regulations
indicate, “[m]edical opinions are statements from ... medical sources that reflect judgments about
the nature and severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.”
20 C.F.R. § 416.927(a)(2). As a result, the ALJ’s “failure” to weigh Dr. Lerner’s clinical notes
as to Plaintiff’s symptomology, which pre-date his onset date, as a treating physician’s opinion is
not error. See Welch v. Colvin, 566 F. App’x 691, 693-94 (10th Cir. 2014)(not selected for
publication)(ruling that none of the physicians identified by the plaintiff “provided medical
opinions about her that, given her impairments, the ALJ was required to weigh”); McDonald v.
Astrue, 492 F. App’x 875, 884 (10th Cir. 2012)(not selected for publication)(indicating treatment
notes do not qualify as medical opinions).
Plaintiff also contends that the ALJ erred when weighing the non-treating physician
opinions of record in assessing whether his mental impairments meet or medically equal a listed
impairment and when determining his RFC.
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“When considering the weight of non-treating sources, the ALJ must determine the
appropriate weight given to the source by looking to the factors that apply to all medical
opinions.” Retana v. Astrue, 2012 WL 1079229 (D.Colo. 2012)(not reported). “If an ALJ
intends to rely on a nontreating physician or examiner’s opinion, he must explain the weight he
is giving to it.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004)(citing 20 C.F.R.
§416.927(e)(2)(ii)).
Plaintiff first challenges the ALJ’s giving “great weight” to the opinion of the examining
consulting psychologist, Dr. Kutz. In her order, the ALJ first summarized Dr. Kutz’s
examination results, specifically noting that “[h]e over-elaborated attempting to make his case
for his level of dysfunction” based on Dr. Kutz’s findings that:
He presents as somewhat dramatic, overelaborating on symptoms and frequently
returning the focus to his dysfunction. There are certainly questions regarding the
credibility of some of his symptom reports. He seems to readily admit to some
significant dysfunction, such as psychosis, although when he is asked for details,
there are no clear indications of such, or the statements that he makes do not seem
compatible with his nonpsychotic presentation. [AR 22]
The ALJ noted Dr. Kutz’s opinion as to Plaintiff’s functionality as follow:
Dr. Kutz opined that [Plaintiff’s] basic cognitive functions were adequate and he
seemed to function intellectually within the average range. He opined that
[Plaintiff] could perform basic activities of daily living, although his instability
might make this less than optional at times. Dr. Kutz noted that [Plaintiff’s]
medical records suggested he functioned well in a structured environment and
could [function] at a higher level than his presentation. [AR 22]
The ALJ then set forth Dr. Kutz’s ultimate opinion that:
His mental disorders are chronic. He seems basically stable as this point. Any
instability would seem to arise from his underlying personality disorder and
associated impulsivity, reactivity and immaturity. Relative to a competitive work
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environment setting throughout an eight-hour day, his attention, concentration,
persistence and pace in task completion, and social adaptation would seem
moderately impaired. His understanding and memory do not show any
impairment. [AR 22]
The ALJ gave great weight to this opinion – that acknowledged that Plaintiff “had
functional limitations, but also noted throughout his report that [Plaintiff] magnified his
symptoms and lacked credibility”– as Dr. Kutz was an examining and acceptable medical source,
whose opinion was based on his own observations and objective findings, and the opinion was
consistent with the assessed RFC, and the medical evidence in the record as a whole. [AR 22]
Plaintiff’s brief lacks specific challenge to the ALJ’s findings related to Dr. Kutz. As an
initial matter, I note that Dr. Kutz’s opinion is not inconsistent with the opinion of Plaintiff’s
treating physician Dr. Marinelli, who opines that although his anxiety, depression and low selfesteem significantly interfere with his ability to consistently participate in young adulthood,
Plaintiff “can function safely and appropriately in the community” when compliant with his
medication and treatment plan. Accordingly, the ALJ did not improperly favor the opinion of
the medical consultant over the opinion of the treating physician. See e.g. Daniell v. Astrue, 384
F. App’x 798, 801 (10th Cir. 2010)(not selected for publication). Instead, Plaintiff contends that
the ALJ “ignored” Dr. Kutz’s assessment that Plaintiff’s clinical presentation was due to his
personality disorder and, in so doing, the ALJ erred when assessing the severity of his
personality disorder. However, as discussed above, I have found that the ALJ’s assessment of
Plaintiff’s impairments medically determinable impairments (including his borderline
personality disorder) did not constitute reversible error. In addition, I conclude that ALJ’s
assessment and weight given to Dr. Kutz’s opinion applied the correct legal test and is supported
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by substantial evidence.
Finally, Plaintiff contends that the ALJ erred in giving the opinion of Dr. Hanze, the state
agency psychological consultant, “probative” weight. The ALJ based this determination on the
fact that it is “generally consistent with the above RFC and the medical evidence in the record as
a whole” and that “Dr. Hanze reviewed the entire medial record and in an acceptable medical
source who is familiar with our program of disability.” [AR 22-3] in challenging this
determination, Plaintiff again takes issue with the ALJ’s conclusion that his anxiety and
personality disorder were better addressed under Listing 12.04 and 12.09, which was in contrast
to Dr. Hanze’s analysis that assessed them under Listing 12.06 (for anxiety disorder) and Listing
12.08 (for personality disorders). However, as discussed, I find that the ALJ did not commit
reversible error in her assessment of Plaintiff’s medically determinable impairments under the
Listings.
To the extent that Plaintiff contends that the ALJ acted improperly to “pick and choose
among medical reports, using portions of evidence favorable to [her] position while ignoring
other evidence,” as is prohibited under Carpenter v. Astrue, 537 F.3d 1264, 1265 (10th Cir.
2008), I disagree. The limitations found by Dr. Hanze in his initial determination of this matter
(mild restriction of activities of daily living, moderate limitations in maintaining social
functioning, moderate difficulties maintaining concentration, persistence or pace, and had no
repeated episodes of decompensation of extended duration) were consistent with those found by
the ALJ except that she found marked (or greater) limitations in maintaining social functioning.
Specifically, the ALJ determined that, when viewing the medical evidence of record in a light
most favorable to Plaintiff, the ALJ gave Plaintiff “the benefit of the doubt and finds marked
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restrictions in social functioning.” [AR 23]
Furthermore, I note that Plaintiff’s unsupported argument that Dr. Hanze’s opinion is
inconsistent with the other opinions and medical records is not borne out by the record. Rather,
Dr. Hanze’s opinions as to Plaintiff’s functional abilities are consistent with the opinions of Dr.
Marinelli and Dr. Kutz that although Plaintiff’s impairment cause him various limitations, as a
general rule he can sufficiently function – particularly when he follows his treatment regiment –
in a structured environment. In conclusion, I find no error in the ALJ’s assessment and weight
given to the medical opinions contained in the record as she applied the correct legal standards
and her findings are supported by substantial evidence in the record. See Oldham v. Astrue, 509
F.3d 1254, 1257-58 (10th Cir. 2007)(ruling that even when some evidence may have supported
contrary findings, the Court “may not displace the agency’s choice between two fairly
conflicting views”).
C. RFC Assessment
Plaintiff next asserts that the RFC assigned to him by the ALJ is not supported by
substantial evidence. He does not take issue with the ALJ’s RFC’s assessment that he could
physically perform a full range of exertional work with some limitations; rather, he argues that
he could not mentally perform the sustained requirements of work.
Plaintiff argues that the opinions of his treating and examining physicians reflected
“chronic mental health issues resulting in great difficulty with mood stabilization, anxiety,
difficulty with interpersonal relationships and remaining complaint with prescribed treatment.”
He also contends that his assessed GAF scores – ranging from 25-60 – largely indicate the
existence of severe to moderate impairments. Finally, Plaintiff argues that to the extent that the
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ALJ attributed his problems to his cannabis dependence, such reliance was in error as the ALJ
did not conduct the requisite drug and alcohol abuse analysis.
My review is limited as to whether the evidence is sufficient to support the ALJ’s
findings. While the record is clear that Plaintiff’s mental health issues impinge on his functional
abilities, the evidence does not show that he is limited in his ability to do sustained work.
Plaintiff’s attempt to point to evidence he argues supports his inability to do sustained work –
such as his difficulty with mood stabilization, anxiety, interpersonal relationships and remaining
complaint with his medications – is accounted for in the RFC mental limitations that he can
perform only simple, repetitive and routine tasks with a maximum of SVP of 2, he cannot
perform at a production rate pace, and he can have only occasional interaction with supervisors
and co-workers, no interaction with the public, as well as that he can tolerate few changes in a
routine work setting. [AR 20]
Moreover, to the extent that Plaintiff relies on his record GAF scores, I note that most of
scores were assessed in connection with a hospitalization and, at any rate, were assessed prior to
Plaintiff’s onset date of August 28, 2012. Furthermore, GAF scores are not, standing alone,
significant probative evidence because a GAF score does not necessarily indicate problems
related to an ability to work or an ability to do sustained work. Lopez v. Barnhart, 78 F.App’x
675, 677-8 (10th Cir. 2003)(not selected for publication); see also Zachary v. Barnhart, 94
F.App’x 817, 819 (10th Cir. 2004)(not selected for publication)(finding the ALJ was not
required to discuss the claimant’s GAF rating in his RFC determination). Finally, I note that the
ALJ’s order does not indicate that she relied upon Plaintiff’s cannabis dependence when
assessing his RFC limitations. I conclude that the ALJ’s RFC assessment, as related to
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Plaintiff’s functional limitations due to his mental health impairments including his ability to
perform sustained work, is supported by substantial evidence.
D. Credibility Determination
Plaintiff also argues that the ALJ erred by improperly discrediting his subjective
complaints in that she did not link her credibility finding – that his statements and testimony
regarding the severity of his symptoms was not fully credible – to the record evidence. [AR 23]
Courts are to ensure that the ALJ’s factual findings underlying the credibility
determination are “closely and affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).
Credibility determinations are peculiarly the province of the finder of fact, and courts will not
upset such determinations when supported by substantial evidence. McGoffin v. Barnhart, 288
F.3d 1248, 1254 (10th Cir. 2002).
In assessing Plaintiff’s credibility, the ALJ found that while his medically determinable
impairments could reasonable be expected to cause the alleged symptoms, his statements
concerning the intensity, persistence and limiting effects of these symptoms were not entirely
credible. [AR 23] In so doing, the ALJ noted that while she appreciated his ongoing mental
health struggles, his statements regarding the severity of his symptoms was not credible based on
the following rationale:
Dr. Kutz [and Plaintiff’s doctors during his hospitalizations] all noted that
[Plaintiff’s] brief periods of decompensation were related to his noncompliance
with medications. Dr. Kutz reported [Plaintiff] was dramatic, embellished his
symptoms, and was not reliable. Contrary to his doctor’s advice, [Plaintiff]
testified that he is not currently taking any psychotropic medications. He testified
that he has not used marijuana since high school yet the record shows that he was
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still using marijuana in February 2012. The [ALJ] finds no objective findings in
the medical record that would prevent him from returning to work within the
restriction outlined in the above RFC. [AR 23]
I conclude that, contrary to Plaintiff’s assertions, the ALJ’s credibility determination is
sufficient linked to evidence in the record. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.
2000)(deciding the ALJ’s credibility assessment met legal standards when ALJ set forth specific
evidence relied on in evaluating credibility).
E. Step Five Determination
Finally, Plaintiff asserts that the ALJ’s ruling at Step Five of the sequential process – that
Plaintiff’s RFC allowed him to perform work that exists in significant numbers in the national
economy – was not supported by substantial evidence.
Plaintiff appears to be arguing that his RFC should have contained moderate limitations
of concentration, persistence and pace beyond those included by that ALJ (of only simple,
repetitive and routine tasks with a maximum of SVP of 2, and he cannot perform at a production
rate pace, although he can perform goal-oriented work). However, as discussed, I find no error
by the ALJ in her determination of Plaintiff’s RFC. Thus, because the vocational expert’s
testimony took into account his RFC limitations as assessed, it constituted sufficient evidence of
the existence of jobs available to him at Step Five. Sandoval v. Barnhart, 209 F.App’x 820, 825
(10th Cir. 2006)(noting that “[h]ypothetical questions to a vocational expert need only include
those limitations that the ALJ finds are established by substantial evidence”)(citing Evans v.
Chater, 55 F.3d 530, 532 (10th Cir. 1995)).
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ACCORDINGLY, for the foregoing reasons, I AFFIRM the Commissioner’s final order.
Dated: December
17 , 2015, in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE
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