Michalik v. Colvin

Filing 20

ORDER re: 8 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Carolyn W. Colvin; Having considered and rejected both of Claimants assignments of error, it is ORDERED that the Commissioners decision through the Administrative Law Judge is AFFIRMED, by Magistrate Judge Kathleen M. Tafoya on 8/21/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–01337–KMT
MARC E. MICHALIK,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of the Social Security Administration,
Defendant.

ORDER

This case comes before the court on review of the Commissioner’s denial of PlaintiffClaimant Mark E. Michalik’s application for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) pursuant to Titles II and XVI of the Social Security Act
(“the Act”). Jurisdiction is proper under 42 U.S.C. § 405(g).
PROCEEDURAL BACKGROUND
Claimant applied for DIB in June of 2010 and SSI in August of 2012, alleging that he had
been disabled by a rare and painful skin disease since his birth on August 14, 1968. (See Doc.
No. 8, Social Security Administrative Record [“AR”] at 34; Doc. No. 12 [Opening Br.] at 2, filed
Oct. 7, 2014; Doc. No. 13 [Resp. Br.] at 1, filed Oct. 29, 2014.) The Commissioner denied both
applications. (Opening Br. at 1; Resp. Br. at 2.) Following the denials, Claimant requested and
received a hearing by an Administrative Law Judge (“ALJ”). At the hearing, the ALJ heard
testimony from the claimant about his symptoms and limitations and allowed the claimant to

revise the onset of his disability from the date of his birth to May of 2009. The ALJ also
consulted a vocational expert about what jobs might be available for a person with the claimant’s
limitations. After the hearing, the ALJ determined that Claimant was not disabled within the
meaning of section 1614(a)(3)(A) of the Act. (Opening Br. at 2.) The Appeals Council
subsequently denied Claimant’s request for review (AR at 1), making the ALJ’s decision the
final decision of the Commissioner for purposes of judicial review. See 20 C.F.R. §§ 404.981,
422.210(a). Claimant timely sought review by the Court.
STATUTORY AND REGULATORY BACKGROUND
Titles II and XVI of the Act award Social Security benefits to claimants who meet certain
eligibility requirements. 42 U.S.C. §§ 423, 1382. To receive either DIB or SSI, a claimant must
be disabled. 42 U.S.C. §§ 1382(a), 423(a). The Social Security Commissioner has established a
five-step sequential process for determining whether a claimant is disabled:
1.

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

2.

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

3.

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

4.

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

5.

If the claimant no longer retains the ability to perform past work, then the
ALJ must decide whether the claimant can perform any other gainful and
substantial work in the economy despite the claimant’s limitations.

2

See 20 C.F.R. § 404.1520(a)(4)(i)–(v); Williams v. Bowen, 844 F.2d 748, 750–52 (10th Cir.
1988). The claimant has the initial burden of establishing a disability in the first four steps of
this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). After that, the burden shifts to
the Commissioner to prove that, despite the claimant’s impairments, he or she is still capable of
performing substantial, gainful work in the national economy. Id. If at any point the
Commissioner conclusively finds that the claimant is or is not disabled during the five-step
review process, the analysis ends. See Casias v. Secretary of Health & Human Services, 933
F.2d 799, 801 (10th Cir. 1991).
STANDARD OF REVIEW
Review of the Commissioner’s disability decision by this court is limited to determining
whether the ALJ applied the correct legal standard, whether the decision is supported by
substantial evidence, and whether the decision comports with the relevant regulations and
caselaw. Hamilton v. Sec’y of Health and Human Servs., 961 F.2d 1495, 1497–98 (10th Cir.
1992); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990); Ellison v. Sullivan, 929 F.2d
534, 536 (10th Cir. 1990). An ALJ’s failure to apply the correct legal standard constitutes an
independent and sufficient basis for the Court to reverse the ALJ’s decision. Thompson v.
Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). Likewise, an ALJ’s failure to supply the Court
with a sufficient basis to determine that the ALJ followed appropriate legal principles is also
grounds for reversal. Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984) (quoting Smith v.
Heckler, 707 F.2d 1284 (11th Cir.1983)).
Substantial evidence is evidence a reasonable mind would accept as adequate to support a
conclusion. Brown, 912 F.2d at 1196. A finding is supported by substantial evidence if it is

3

supported by “more than a scintilla, but less than a preponderance” of evidence. Gossett v.
Bowen, 862 F.2d 802, 804 (10th Cir.1988) (quoting Campbell v. Bowen, 822 F.2d 1518, 1521
(10th Cir.1987)). Evidence is insubstantial when it is “overwhelmed by other evidence in the
record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992). The Court may not “reweigh the evidence” or “substitute its judgment” for that of the
Commissioner.” Jozefowicz v. Heckler, 811 F.2d 1352, 1357 (10th Cir. 1987). So long as there
is substantial evidence to support the ALJ’s decision, the decision must stand, even if the Court
would have reached a different result. See Ellison, 929 F.2d at 536.
ANALYSIS
Claimant alleges the ALJ erred in two ways. First, he argues that the ALJ failed to
follow the “Treating Physician Rule” when weighing the opinion of Claimant’s treating
physician, Dr. Bruckner. (See Opening Br. at 8–13.) Second, Claimant argues that the ALJ
failed to properly evaluate Claimant’s credibility on the question of Claimant’s ability to work.
(See id. at 13–16.)
1. Weighing the Treating Physician’s Opinion
Claimant contends that the ALJ erred when weighing the opinion of Claimant’s treating
physician, Dr. Bruckner. (See id. at 8–13.) Specifically, Claimant believes that the ALJ’s
decision to assign Dr. Bruckner’s opinion less than controlling weight constitutes reversible
error. (See id. at 9.)
The ALJ is entrusted with the difficult task of resolving evidentiary conflicts, weighing
medical source opinions, and, ultimately, determining whether claimants are disabled within the
meaning of the Act. See Richardson v. Perales, 402 U.S. 389, 399 (1971). Generally speaking,

4

a Claimant’s treating physician’s opinion is afforded the most weight of any medical opinion.
See 20 C.F.R. § 404.1527(c)(2). Indeed, when that physician’s opinion is well-supported by
medically accepted techniques and is consistent with other substantial evidence in the record, the
opinion must be given controlling weight by the ALJ. Watkins v. Barnhart, 350 F.3d 1297, 1300
(10th Cir. 2003). This heavy weighting of a treating physician’s opinion is commonly referred to
as the “Treating Physician Rule.” See, e.g., Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir.
2005).
Notwithstanding the Treating Physician Rule, the ALJ is permitted to discount a treating
physician’s opinion in appropriate circumstances. See Watkins, 350 F.3d at 1300–01; 20 C.F.R.
§ 404.1527(c). When the treating physician’s opinion is either inconsistent with other substantial
evidence or not well-supported by medically accepted techniques, the ALJ may discount the
opinion. See Watkins, 350 F.3d at 1300–01. When deciding how much to weight to assign a
treating physician’s opinion, the ALJ must consider six 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 that tend to support or contradict
the opinion.
Id.; 20 C.F.R. §§ 404.1527(c), 416.927. Then, in the ALJ’s written decision, the ALJ must
clearly state how much weight the ALJ assigned the opinion and why. See Watkins, 350 F.3d at
5

1300–01. Although the ALJ must “give good reasons” for that weight, the ALJ need not discuss
each of the six factors. Id. (quoting 20 C.F.R. § 404.1527(d)(2)); Oldham v. Astrue, 509 F.3d
1254, 1258 (10th Cir. 2007).
Here, when the ALJ discounted Dr. Bruckner’s opinion, he explained why he did so, gave
good reasons, and backed up his argument with references to the record. In the medical opinions
section of the written decision, the ALJ first acknowledged that Dr. Bruckner was Claimant’s
treating dermatologist, before stating that he afforded Dr. Bruckner’s opinion “less weight” than
the other medical opinions he considered. (AR at 25.) He reasoned that “[Dr. Bruckner’s]
reports and treatment notes do not support her opinion of such extreme limitations as she has
described, and in fact those limitations are also not even consistent with portions of the
claimant’s own reports.” (Id.) The ALJ then explained that Claimant’s “15+ year history of
substantial gainful activity” undermined Dr. Bruckner’s opinion that Claimant’s “skin condition
prevents him from safely participating in activities or work that increase the risk of trauma to the
skin.” (Id. at 25–26.) The ALJ added that the doctor’s opinion that Claimant “is not able to
work” is especially suspect given that there was “no evidence of any significant deterioration in
the claimant’s condition since he was laid off work in 2009.” (Id. at 26.) Next, the ALJ noted
the differences between the severity of the symptoms and limitations opined by Dr. Bruckner
(e.g., Claimant can stand for only one hour total) and the severity of the symptoms and
limitations noted by the claimant himself (e.g., Claimant can stand for two hours). (See id.) The
ALJ concluded by reiterating that he was knowingly giving Dr. Bruckner’s opinion less weight
than he might normally afford a treating source opinion from a specialist. (See id.)

6

The ALJ’s detailed explanation indicates not only that was he aware of the Treating
Physician Rule and applying it correctly, but that he was considering the six factors listed in 20
C.F.R. § 404.1527(c) when discounting the doctor’s opinion. The explanation made clear that
the opinion’s inconsistency with other evidence, including Claimant’s own reports and work
history, was his primary reason for affording the opinion less weight. (See, e.g., id. at 26–27).
Inconsistency with other evidence is a sufficient reason to discount a treating physician’s
opinion. See Watkins, 350 F.3d at 1300 (“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 respects, then it is not entitled to
controlling weight.”). Claimant insists that Dr. Bruckner’s opinion that Claimant cannot work is
consistent with Claimant’s work history. (Opening Br. at 9.) But even if Claimant’s work
history can be read as consistent with the claim that he cannot work, the Court’s inquiry on
review is whether there is substantial evidence for the conclusion the ALJ made, not the
conclusions that he could have made. See Jozefowicz, 811 F.2d at 1357 (holding that the Court is
not empowered to reweigh the evidence on review).
This court finds that the ALJ’s discounting of Dr. Bruckner’s opinion comports with the
Treating Physician Rule and is supported by substantial evidence.
2. The ALJ’s Assessment of Claimant’s Credibility
Claimant also contends that the ALJ’s decision finding Claimant’s testimony “not fully
persuasive” is neither supported by substantial evidence nor consistent with the applicable law.
(See Opening Br. at 13–16.)

7

Credibility determinations are the province of the ALJ, and the Court cannot upset those
determinations so long as they are supported by substantial evidence. Diaz v. Sec'y of Health &
Human Servs., 898 F.2d 774, 777 (10th Cir. 1990). Rather than bald conclusions in the guise of
findings, the ALJ must cite specific reasons for doubting the claimant’s credibility, especially
when subjective pain testimony is crucial. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.
1995). When evaluating the credibility of a claimant’s pain testimony, the ALJ should consider
a multitude of factors, including the extensiveness of the attempts to obtain relief, the frequency
of medical contacts, the nature of daily activities, subjective measures of credibility within the
ALJ’s judgment, and the consistency or compatibility of the testimony with objective medical
evidence. Branum v. Barnhart, 385 F.3d 1268, 1273–74 (10th Cir. 2004).
Here, the ALJ articulated specific, evidence-based reasons for not fully believing
Claimant’s testimony about his alleged inability to work. Addressing Claimant’s allegations of
persistent leg pain due to his rare skin disease, the ALJ noted that the severity of Claimant’s pain
is what matters, not merely the presence of pain. (See AR at 22). The ALJ then pointed out that
Claimant took no prescribed pain medication and had not complained of pain at his last visit with
his treating physician, Dr. Bruckner. (Id.) The ALJ then contrasted Claimant’s alleged
symptoms and limitations with the fact that Claimant had been born with the condition, had
worked for fifteen years with the condition, and had stopped working for reasons other than his
symptoms. (See id.) The ALJ noted that there was no evidence of a significant deterioration in
the claimant’s medical condition since he was laid off, and went on to describe, in detail, why the
evidence as a whole shows the opposite—that Claimant’s condition was substantially the same
from the date he was laid off until his examination by Dr. Bruckner. (See id. at 22–24.) The

8

ALJ then explained why Claimant’s significant daily activities further undermined his claims of
not being able to work. (See id. at 24–25.)
This court is satisfied that the ALJ’s lengthy and well-documented explanation is both
legally sound and factually sufficient. The ALJ offered far more than bald conclusions in the
guise of findings. He cited specific, well-supported reasons for his credibility determination and
clearly considered the extensiveness of Claimant’s attempts to obtain relief, the frequency of
medical contacts, the nature of daily activities, subjective measures of credibility within the
ALJ’s judgment, and the consistency or compatibility of the testimony with objective medical
evidence. It appears from the briefs that Claimant would have this court reweigh the evidence
and substitute its judgment for the ALJ’s. Doing so, however, would be beyond the Court’s
limited powers of review. See Jozefowicz, 811 F.2d at 1357 (listing court’s limited powers on
review).
The court therefore finds that the ALJ’s assessment of Claimant’s testimony is supported
by both substantial evidence and the law.
CONCLUSION
Having considered and rejected both of Claimant’s assignments of error, it is
ORDERED that the Commissioner’s decision through the Administrative Law Judge is
AFFIRMED.
Dated this 21st day of August, 2015.

9