Brandon v. Colvin

Filing 38

ORDER AFFIRMING COMMISSIONER. re: 1 Complaint filed by Charles W. Brandon. By Judge Robert E. Blackburn on 9/14/15. (kfinn)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-01411-REB
CHARLES W. BRANDON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],1 filed May 19, 2014, seeking
review of the Commissioner’s decision denying plaintiff’s claim for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. I have
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g). The
matter has been fully briefed, obviating the need for oral argument. I affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he is disabled as a result of a traumatic brain injury suffered
in a December 2008 car accident. After his application for disability insurance benefits
was denied, plaintiff requested a hearing before an administrative law judge. This
hearing was held on September 18, 2012. At the time of this hearing, plaintiff was 35
years old. He has a ninth grade education and past relevant work experience as a
1

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

heavy equipment operator. He has not engaged in substantial gainful activity since
December 6, 2008, his alleged date of onset.
The ALJ found plaintiff was not disabled and therefore not entitled to disability
insurance benefits. Although the evidence established plaintiff suffered from severe
cognitive impairments, the judge concluded the severity of those impairments did not
meet or equal any impairment listed in the social security regulations. Plaintiff’s alleged
physical impairments were found to be not severe.2 The ALJ found plaintiff had the
residual functional capacity to perform a range of simple, unskilled, light work with
certain environmental limitations and which required no more than superficial contact
with supervisors and coworkers. Although this finding precluded plaintiff’s past relevant
work, the ALJ concluded that there were jobs existing in significant numbers in the
national and local economies that he could perform. He therefore found plaintiff not
disabled at step 5 of the sequential evaluation. Plaintiff appealed this decision to the
Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if his
physical and/or mental impairments preclude him from performing both his previous
work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,

2

Plaintiff does not challenge this aspect of the ALJ’s disability decision in this appeal.

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1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a five-step sequential evaluation process for
determining whether a claimant is disabled:
1.

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

2.

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

3.

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

4.

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

5.

If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.

20 C.F.R. § 404.1520(b)-(f). See also Williams v. Bowen 844 F.2d 748, 750-52 (10th
Cir. 1988). The claimant has the initial burden of establishing a disability in the first four

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steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294
n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that
the claimant is capable of performing work in the national economy. Id. A finding that
the claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. Casias v. Secretary of Health & Human Services, 933
F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
III. LEGAL ANALYSIS
In a single allegation of error, plaintiff complains that the ALJ improperly failed to

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afford more substantial weight to the opinion of his treating psychiatrist, Dr. Daniel
Slater. The opinion of a treating source is entitled to controlling weight when it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence in the case record.” 20 C.F.R. §
404.1527(c)(2); see also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). A
treating source opinion may not be rejected absent good cause for specific and
legitimate reasons clearly articulated in the hearing decision. Watkins, 350 F.3d at
1301. Good cause may be found where the treating source’s opinion is brief,
conclusory, or unsupported by the medical evidence. Frey v. Bowen, 816 F.2d 508,
513 (10th Cir. 1987). Because I conclude that the ALJ articulated specific, legitimate
reasons tied to the evidence of record for the reduced weight he assigned to Dr. Slater’s
opinion, however, I affirm.
Among other serious injuries, plaintiff suffered a traumatic brain injury (“TBI”)
(more particularly, diffuse axonal injury and subdural hematoma) as a result of a
December 2008 motor vehicle accident in which he was thrown 50 to 150 feet from the
car. (See Tr. 282, 371-372, 616.) He “had an extremely prolonged and complicated
hospital course” and spent more than two months in the hospital. (See Tr. 330-332.)
Shortly after discharge, he was evaluated for complaints of memory deficits and
irritability and referred to Dr. Slater, a TBI specialist. (Tr. 616-617.) The record reveals
that plaintiff saw Dr. Slater four times between May 2009 and April 2010 (Tr. 620-629)3

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Plaintiff probably saw Dr. Slater at least one additional time prior to May 2009. (See Tr. 620
(note from May 2009 visit noting that “plaintiff returns to the clinic today for followup care”) (emphasis
added.)

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and then not again for more than two years (Tr. 774-775).
Nevertheless, in February 2011, having not seen plaintiff in some ten months, Dr.
Slater authored a letter suggesting that plaintiff “continues to struggle with issues
including concentration, memory, and executive function.” He pointed out that plaintiff’s
post-trauma amnesia “is a very serious negative prognosticator for functional return” to
work and opined that plaintiff’s “chances for meaningful and competitive employment
are unfortunately poor.” (Tr. 749.) That August, Dr. Slater again reiterated that
plaintiff’s “prognosis for competitive meaningful employment is very poor given his
cognitive impairment resultant from his brain injury,” and suggested that plaintiff “is at
complete and total disability level.” (Tr. 773.) Finally, in a post-hearing letter to
plaintiff’s attorney, Dr. Slater outlined in more detail the reasons for his opinions. He
stated that plaintiff suffered from disinhibition and was able to process only “very simple
instructions.” He further stated that plaintiff suffered from post-injury fatigue and
headaches which would impact his ability to keep a consistent work schedule. Dr.
Slater suggested that “at least half of the days of work would be missed and possibly
more.” He thus reiterated that plaintiff had “a permanent and full disability.” (Tr. 797799.)
The ALJ gave Dr. Slater’s opinion little weight, principally on the ground that his
statements were unsupported by his own treatment notes. (Tr. 18-19.)4 This
conclusion finds considerable support in the record. At one of plaintiff’s early visits, Dr.

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The ALJ also appropriately noted that Dr. Slater’s bare, wholly conclusory statement that
plaintiff was “disabled” went to an issue reserved to the Commissioner and thus was entitled to no weight.
(Tr. 19.) See 20 C.F.R. § 404.1527(d)(1).

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Slater noted him to be “a little more articulate than his last visit with a fairly good insight
into his emotions as well as his impairments.” Dr. Slater prescribed medications and
suggested plaintiff was “appropriate for at least a driving evaluation” and “suspect[ed]
that he will be safe on the road,” and also stated that he was “hopeful” that plaintiff could
work again, although he “did not want to make any predictions at this early time.” (Tr.
620.) At plaintiff’s next visit in October 2009, Dr. Slater noted that plaintiff was
“markedly different than his initial presentation,” “smiling” and “joking” with “bright
affect.” Plaintiff reported that he was sleeping well, and Dr. Slater found him to be
“much more appropriate and much less focused on his inabilities. He seems very goaldirected and actually with some fair insight as to problems he still has with his memory.”
Discussing one of plaintiff’s prescription medications, Dr. Slater suggested continuing
that medication at least until plaintiff was “stable in terms of employment and other
issues.” (Tr. 623.)
Plaintiff did not see Dr. Slater again until March 2010, when he reported having
stopped all medications after being prescribed Vicodin for a broken clavicle and being
“concern[ed] that he would fail a drug test.” Plaintiff reported increased problems with
memory, and Dr. Slater restarted his medications, noting the good results he had
experienced with medications in the past. Dr. Slater also noted that plaintiff admitted to
drinking “quite heavily,” about a pint of whiskey a night. (Tr. 626-627.) The following
month, plaintiff was “doing much better” and was working for his uncle.” Dr. Slater
reported plaintiff’s “mood is much better, and he thinks his attention is much improved
on medications started at his last visit.” He also had reduced his alcohol consumption
substantially. (Tr. 629.)
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Plaintiff did not contact Dr. Slater again until June 2012, more than two years
later. At that time, plaintiff reported he had stopped working because his memory
problems were incompatible with work as a mechanic, and he was drinking heavily
again. Plaintiff apparently also had stopped his medications again, although he had
some expired medications that he had resumed taking more recently. (Tr. 774-775.)
When plaintiff returned to Dr. Slater the following month, he reported that, with the help
of medication, he was “doing well,” and said that he experienced “more positive
thinking, [was] consuming less alcohol, and . . . calms more readily.” (Tr. 783.)
This evidence more than adequately supports the ALJ’s decision to afford Dr.
Slater’s opinion little weight. Indeed, Dr. Slater’s own treatment records strongly
support a conclusion that plaintiff’s cognitive deficits were managed adequately with
medication and a reduction in his alcohol use. See Pacheco v. Sullivan, 931 F.2d 695,
698 (10th Cir. 1991) (impairment that can be controlled with treatment is not disabling).5
Where, as here, the ALJ has given specific, legitimate reasons tied to the evidence of
record for the weight he assigns to a treating source opinion, the disability determination
is not subject to reversal simply because he assigns little weight that opinion.
IV. ORDERS
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.

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. This same fact was noted by the consulting psychologist who examined plaintiff. (See Tr. 755
(“The medications are helping him with his memory, physical pain, and sleep without nightmares.”); Tr.
756 (“The medications are helping him, especially the Effexor and trazodone, with his memory and
sleeping.”).)

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Dated September 14, 2015, at Denver, Colorado.
BY THE COURT:

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