Abdelmeged v. Colvin

Filing 15

ORDER AFFIRMING COMMISSIONER re: 1 Complaint. By Judge Robert E. Blackburn on 8/26/15. (kfinn)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-01643-REB
ABDELRAOUF ABDELMEGED,
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 June 11, 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 post traumatic stress disorder,
anxiety, depression, hepatitis C, hypertension, and lower back pain. After his
application for disability insurance benefits was denied, plaintiff requested a hearing
before an administrative law judge. This hearing was held on January 18, 2013. At the
time of this hearing, plaintiff was 53 years old. He has a high school education and past
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.

relevant work experience as an Arabic interpreter and a food service worker. He has
not engaged in substantial gainful activity since November 9, 2009, 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
physical impairments, the judge concluded the severity of those impairments did not
meet or equal any impairment listed in the social security regulations. Other
impairments – most significantly, plaintiff’s alleged mental impairments – were found to
be not severe. The ALJ found plaintiff had the residual functional capacity to perform
light work. Because this determination did not preclude plaintiff’s past relevant work as
an interpreter and a food service worker as generally performed in the national
economy, the ALJ found plaintiff not disabled at step four 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,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of

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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
steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294

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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 series of related arguments, plaintiff alleges that the ALJ erred in assessing
the severity and impact of his alleged mental impairments. He also contends that the

4

ALJ’s decision to discredit is subjective complaints is not supported by substantial
evidence and that new evidence merits reversal of the disability decision. Finding none
of these arguments ultimately meritorious, I affirm.
Plaintiff, an Egyptian-born American citizen, served as an Arabic interpreter for a
private contractor working with U.S. military forces in Iraq from February 2008 through
November 2009. As a result of his exposure to the trauma of warfare and being treated
with hostility both by American forces and local Iraqis, plaintiff claims he suffers from
panic attacks and flashbacks, and has trouble with focus and memory. A treating
psychiatrist, Dr. Randolph Pock, diagnosed plaintiff with post-traumatic stress disorder
and stated that plaintiff was disabled as a result. Moreover, at the administrative
hearing, the vocational expert testified that a person who experienced panic attacks and
anxiety to the degree plaintiff suggested would not be able to perform either his past
relevant work or any other work in the national economy. (Tr. 103-104, 105-106.)
The ALJ considered plaintiff’s allegations regarding his mental impairments in
detail, but ultimately concluded at step 2 of the sequential evaluation that those
impairments did not cause more than minimal limitations in plaintiff’s ability to perform
the basic mental activities of work and thus were not severe within the meaning of the
regulations. (Tr. 29-32.)2 See 20 C.F.R. § 404.1521(a) (“An impairment or combination
of impairments is not severe if it does not significantly limit your physical or mental

2

Plaintiff’s implicit suggestion that the ALJ’s determination in this regard was informed by the
opinion of the state agency psychological consultant is belied by the record. The ALJ specifically noted
that Dr. Richard Kasper – who opined that plaintiff’s mental impairments were not severe because they
were not expected to last for at least 12 months – did not have the benefit of the entire medical record at
the time he rendered his opinion, and thus gave that opinion “very limited weight.” (Tr. 32; see also Tr.
118-128.)

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ability to do basic work activities.”). Although plaintiff maintains that this finding was
erroneous, he acknowledges that any such error ultimately was harmless because the
ALJ found other impairments to be severe and thus proceeded to subsequent steps of
the sequential analysis. See Dray v. Astrue, 353 Fed. Appx. 147, 149 (10th Cir. Nov.
17, 2009).3
Instead, plaintiff principally faults the ALJ for failing to afford controlling weight to
the opinion of Dr. Pock. (Tr. 348-355, 351-353.) The opinion of a treating source is
entitled to controlling weight when it is “well-supported 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 cannot 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).
That standard is satisfied on the record before me. The ALJ gave Dr. Pock’s
opinion “limited weight” because he found it conclusory and unsupported by objective

3

At step 2, the issue is whether the claimant suffers from at least one “severe” medically
determinable impairment. Dray, 353 Fed. Appx. at 149. “Thus, step two is designed ‘to weed out at an
early stage of the administrative process those individuals who cannot possibly meet the statutory
definition of disability.’” Id. (quoting Bowen, 107 S.Ct. at 2298 (O'Connor, J., concurring)). Because the
conclusion that a claimant has at least one severe impairment requires the ALJ to proceed to the next step
of the sequential evaluation, “the failure to find a particular impairment severe at step two is not reversible
error as long as the ALJ finds that at least one other impairment is severe.” Id.

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findings or treatment records.4 (See Tr. 31.) Plaintiff suggests that Dr. Pock was not
required to provide treatment records, relying on a “Fact Sheet” published by the Social
Security Administration which permits mental health professionals to “prepare a special
report detailing the critical current and longitudinal aspects of your patient’s treatment
and their functional status” as an alternative to providing medical records and session
notes. (See Social Security Administration, Medical/Professional Relations, Fact Sheet
for Mental Health Care Professionals: Supporting Individuals’ Social Security
Disability Claims (available at
http://ssa.gov/disability/professionals/mentalhealthproffacts.htm#footnote6) (last
accessed August 26, 2015).5
There are several problems with this argument. First, plaintiff offers nothing to
suggest to what, if any, extent these instructions cabin the ALJ’s consideration of the
evidence. Given their apparent conflict with well-established regulations regarding the
supportability of medical source opinions, the court is dubious that the Fact Sheet
usurps the general principle that “[t]he more a medical source presents relevant
evidence to support an opinion, particularly medical signs and laboratory findings, the
more weight [the ALJ] will give that opinion.” 20 C.F.R. § 404.1527(c)(3). Moreover,
nothing in the record indicates that Dr. Pock authored his summary reports in reliance
on the special dispensation of the Fact Sheet or that he otherwise was unwilling or

4

Dr. Pock’s statement that plaintiff is “disabled” goes to an issue reserved to the Commissioner,
and thus is entitled to no particular weight in and of itself. 20 C.F.R. § 404.1527(d)(1).
5

The stated purpose of this provision is to accommodate the privacy concerns sought to be
protected by the Health Insurance Portability and Accountability Act (“HIPPA”).

7

unable to provide his underlying treatment notes. See Romero v. Colvin, 2015 WL
3542783 at *8 (D. Colo. June 5, 2015).

More importantly, nothing in either the Fact Sheet or Dr. Pock’s summary reports
undermines the ALJ’s finding that plaintiff’s limited and sporadic mental health treatment
and his apparent unwillingness to continue regular treatment (despite early evidence
that it was helping) suggested that his mental impairments were not severe.6 As the
ALJ noted (Tr. 29), not only did plaintiff not list any mental health condition among the
myriad impairments he claimed limited his ability to work in either his initial Disability
Report (completed almost a year after he allegedly became disabled (Tr. 266)), or his
administrative appeal (Tr. 289), he also sought no treatment for his alleged mental
condition until late 2011, when his attorney referred him to Dr. Pock (Tr. 29-30, 348). In
addition, after an initial series of sessions with Dr. Pock, plaintiff visited him only twice
more in the following nine months. (See Tr. 30-31.) The ALJ properly noted that such
sporadic treatment is inconsistent with a conclusion that plaintiff’s mental impairments
were disabling.7 (Tr. 32.) See Romero, 2015 WL 3542783 at *8.
Relatedly, plaintiff argues the ALJ failed to consider the combined effect of all his
impairments, severe and non-severe, in assessing his residual functional capacity. See
6

Plaintiff suggests that the spotty nature of his mental health treatment is attributable to cultural
reasons. Nothing in the record supports this assertion, and the post-decision hearing notes to which
plaintiff cites suggest only that he stopped seeing Dr. Pock for financial reasons. (See Tr. 43.)
7

Plaintiff’s suggestion that the ALJ improperly cited Dr. Pock’s failure to specify any work-related
mental limitations and was required to recontact Dr. Pock for clarification or expatiation misunderstands
the ALJ’s responsibility to develop the record. The duty to recontact a medical source is triggered only
when the ALJ is unable to reach a conclusion regarding disability based on the evidence before him, not
merely because he rejects such opinion. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001).

8

Social Security Ruling 85-28, 1985 WL 56856 at *1-2 (SSA 1985). The record is to
the contrary. After reviewing and analyzing all evidence related to plaintiff’s mental
impairments, the ALJ expressly concluded that plaintiff’s mental impairments did not
warrant any further decrease in his residual functional capacity. (Tr. 32.) Lower
tribunals are taken at their word when they say they have considered a matter, Hackett
v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005), and nothing in the record suggests
that such deference is unwarranted here. Plaintiff’s mere disagreement with the ALJ’s
conclusion provides no basis for this court to reweigh the evidence in the manner he
implicitly requests, see Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
See also Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir. 1988) (conflicts in the evidence
are for the ALJ to resolve).8
Plaintiff further faults the ALJ for discrediting his reports regarding his own
limitations.9 In general, “credibility determinations ‘are peculiarly the province of the
finder of fact,’ and should not be upset if supported by substantial evidence.” White v.
Barnhart, 287 F.3d 903, 909 (10th Cir. 2001) (citing Kepler v. Chater, 68 F.3d 387,
390-91 (10th Cir. 1995)). Although not all the reasons cited by the ALJ for his
assessment of plaintiff’s credibility are equally persuasive, his ultimate determination is
well supported by the record. Among the specific, legitimate factors cited by the ALJ

8

The ALJ also expressly considered plaintiff’s mental impairments in the context of each of the
four areas of work-related mental functioning measured by the four “paragraph B” criteria. See 20 C.F.R.,
Pt. 404, Subpt. P, App. 1, § 12.00C (Tr. 32). His finding that plaintiff had no more than mild restrictions in
any of these areas did not obligate him to include any particular mental limitations in his residual functional
capacity determination. See Beasley v. Colvin, 520 Fed. Appx. 748, 754 (10th Cir. April 10, 2013).
9

The ALJ’s assessment of plaintiff’s subjective complaints focused almost exclusively on his
alleged physical impairments.

9

were (1) plaintiff’s inconsistent work history prior to his work as an interpreter, see Bean
v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995); (2) plaintiff’s request to be returned to
work without restrictions during the period of his alleged disability, see 20 C.F.R. §
404.1520(b); (3) plaintiff’s limited treatment history, see Huston v. Bowen, 838 F.2d
1125, 1132 (10th Cir. 1988); (4) the lack of objective medical evidence supporting the
degree of limitation alleged, see Luna v. Bowen, 834 F.2d 161, 165 (10th Cir. 1987); (5)
plaintiff’s receipt of unemployment benefits, see Moses v. Astrue, 2012 WL 1326672 at
*3 (D. Colo. April 17, 2012);10 and (6) evidence supporting an inference that plaintiff
exaggerated his symptoms,11 see Frey, 816 F.2d at 517. (See Tr. 27, 34-37.) As all
these reasons are legitimate and find specific support in the record, I afford the ALJ’s
credibility findings the substantial deference they are due. White, 287 F.3d at 910; see
also Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
Finally, plaintiff directs the court to new evidence which he claims warrants
reversal. In general, evidence that was not before the ALJ need not be considered
unless it is new, material, and relates to the period if time on or before the ALJ’s
decision. See 20 C.F.R. § 404.1570(b); Chambers v. Barnhart, 389 F.3d 1139, 1142

10

Although plaintiff refers to an opinion letter from the agency’s chief ALJ confirming that the
receipt of unemployment benefits is not a per se bar to the receipt of social security disability benefits, that
same missive affirms that the ALJ is not precluded from considering that factor as one among many,
either. (See Plf. Reply App., Exh. 1.) That same principle has been recognized in this district as well.
See Moses, 2012 WL 1326672 at *3 (“[I]n order to receive unemployment benefits, plaintiff was required
to affirm that he was willing and able to work. Such affirmations are inconsistent with claims of disability
and thus negatively impact a claimant's credibility.”) (internal citation omitted).
11

Specifically, the ALJ noted that during a January 2013 chiropractic visit, plaintiff checked every
symptom listed on the intake form. (Tr. 37, 378.) The examination performed that day, however, was
largely unremarkable, with plaintiff appearing in no apparent distress and having normal range of motion
throughout the spine. (See Tr. 379.)

10

(10th Cir. 2004). All the evidence on which plaintiff here relies fails to satisfy at least one
of these elements.
For example, the Appeals Council declined to consider mental health treatment
notes from the Aurora Mental Health Center (Tr. 39-77) because they concerned
treatment plaintiff received after the date of the ALJ’s decision (Tr. 2). Although records
which post-date the disability decision nevertheless should be considered if they “relate
back” to the time period of the decision and “provide[] additional insight into impairments
the claimant suffered while the ALJ was reviewing his case,” Hamm v. Colvin, 2015 WL
225408 at * 5 (W.D. Va. Jan. 16, 2015), the records presented here merely recount the
same historical triggers and symptoms plaintiff reported to Dr. Pock. They do not
undermine, however, the ALJ’s conclusion that plaintiff’s failure to seek more consistent
and aggressive treatment during the relevant time period warranted a conclusion that
his alleged mental impairments were not disabling during the period of time the ALJ
considered.
Plaintiff also argues that a transcript of a deposition of Dr. Pock submitted to the
Appeals Council warrants remand. (See Tr. 383-399.)12 Although plaintiff argues that
Dr. Pock’s deposition testimony “provides the additional explanations in support of Dr.
Pock’s opinion that the ALJ found lacking” (Reply Br. at 21), he fails to substantiate that
assertion in any particular. This court is neither required nor inclined to scour the record
in search of evidence to support a party’s arguments, and declines plaintiff’s implicit
12

Contrary to plaintiff’s suggestion, the Appeals Council did not find this evidence material.
(See Tr. 2 (“We found that this information does not provide a basis for changing the Administrative Law
Judge’s decision.”).) See Chambers, 389 F.3d at 1144 (evidence is material only if there is a “reasonable
possibility that [the evidence] would have changed the outcome”) (citation and internal quotation marks
omitted; alteration in original).

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invitation to do so here. See Gross v. Burggraf Construction Co., 53 F.3d 1531,
1546 (10th Cir. 1995); Buhendwa v. University of Colorado at Boulder, 2005 WL
2141581 at *3 (D. Colo. Aug. 22, 2005), aff’d, 214 Fed. Appx. 823 (10th Cir. 2007).
Nor does a Department of Labor (“DOL”) decision awarding plaintiff workers
compensation benefits undermine the validity of the ALJ’s determination as to plaintiff’s
claim for social security disability benefits. (See Compl., Exh. 1 [#1-1], filed June 11,
2014.) Assuming arguendo that plaintiff has shown good cause for his failure to submit
the evidence to the Appeal Council for its consideration, see 42 U.S.C. § 405(g)
(sentence six), that decision would not have been binding on the ALJ had it been
presented to him for consideration, see Grogan v. Barnhart, 399 F.3d 1257, 1262-63
(10th Cir. 2005). The decision merely shows that a different agency, operating under a
different statute and set of regulations, came to a different conclusion from that reached
here. The mere fact that there may be two permissible views of the evidence, however,
is not indicative that the ALJ’s choice between them was in error. Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007).
IV. ORDERS
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated August 26, 2015, at Denver, Colorado.
BY THE COURT:

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