Strong v. Colvin
ORDER by Magistrate Judge Kristen L. Mix on 3/16/16 re: 11 SOCIAL SECURITY ADMINISTRATIVE RECORD IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not disabled is AFFIRMED. (lgale, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02938-KLM
ANTHONY R. STRONG,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court1 on the Social Security Administrative Record
[#11],2 filed December 22, 2014, in support of Plaintiff’s Complaint [#1] seeking review of
the decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration, (“Defendant” or “Commissioner”) denying Plaintiff’s claim for disability
insurance benefits pursuant to Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401
et seq. On March 25, 2015, Plaintiff filed an Opening Brief [#16] (the “Brief”). Defendant
filed a Response [#17] in opposition, and Plaintiff filed a Reply [#18]. The Court has
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and
1383(c). The Court has reviewed the entire case file and the applicable law and is
sufficiently advised in the premises. For the reasons set forth below, the decision of the
The parties consented to proceed before the undersigned for all proceedings pursuant
to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. See Order of Reference [#28].
“[#11]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
Commissioner is AFFIRMED.
I. Factual and Procedural Background
Plaintiff alleges that he became disabled at the age of forty-seven on January 2,
2012, due to a variety of impairments. Tr. 125.3 On January 27, 2012, Plaintiff filed an
application for disability insurance benefits under Title II. Tr. 125. On April 30, 2013, an
Administrative Law Judge (the “ALJ”) held a hearing on Plaintiff’s application. Tr. 37.
Plaintiff, his wife Kelly Strong (“Ms. Strong”), and an impartial vocational expert (“VE”)
testified at the hearing. Tr. 38. On June 18, 2013, the ALJ issued an unfavorable decision.
The ALJ determined that Plaintiff met the insured status requirements of the Act
through June 30, 2013, and that Plaintiff had not engaged in substantial gainful activity
(“SGA”) since January 2, 2012 (the alleged onset date of his disability). Tr. 20. The ALJ
found that Plaintiff suffers from three severe impairments: (1) migraines, (2) chronic pain
syndrome, and (3) “organic mental disorder, status post history of multiple concussions.”
Tr. 20. However, the ALJ also found that these impairments, individually or in combination,
do not meet or medically equal “the severity of one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).” Tr. 23. The ALJ
next concluded that Plaintiff has the residual functional capacity (“RFC”) to perform “light
work,” with the following limitations:
The claimant can lift and carry 10 pounds frequently and 20 pounds
occasionally. He can stand and/or walk, with normal breaks, for a total of 6
hours in an 8-hour workday, and can sit, with normal breaks, for a total of 6
The Court refers to the Transcript of the Administrative Proceedings, located at Docket
Nos. 11, 11-1, 11-2, 11-3, 11-4, 11-5, 11-6, 11-7, and 11-8, by the sequential transcript numbers
instead of the separate docket numbers.
hours in an 8-hour workday. He can perform pushing and pulling motions
with his upper and lower extremities within the aforementioned weight
restrictions. He should avoid unprotected heights and moving machinery.
The claimant occasionally can balance, stoop, crouch, kneel, crawl, and
climb ramps and stairs, but can never climb ladders, ropes, and scaffolds.
Tr. 26. Based on the RFC and the testimony of an impartial vocational expert (“VE”), the
ALJ found that Plaintiff was unable to perform any past relevant work but that “there are
jobs that exist in significant numbers in the national economy that the claimant can perform
. . . .” Tr. 34-35. Specifically, based on the testimony of the VE, the ALJ concluded that
Plaintiff could perform the representative occupations of small products assembler,
electronics worker, and drive-in order clerk. Tr. 36. She therefore found Plaintiff not
disabled at step five of the sequential evaluation. Tr. 36. The ALJ’s decision has become
the final decision of the Commissioner for purposes of judicial review. 20 C.F.R. §§
II. Standard of Review and Applicable Law
Pursuant to the Act:
[T]he Social Security Administration is authorized to pay disability insurance
benefits and Supplemental Security Income to persons who have a
“disability.” A person qualifies as disabled, and thereby eligible for such
benefits, “only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national economy.”
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B)). Under the applicable legal standard, a claimant is disabled if he or she
is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . which has lasted or can be expected to last
for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a); see also
Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)). The
existence of a qualifying disabling impairment must be demonstrated by “medically
acceptable clinical and laboratory diagnostic” findings.
42 U.S.C. §§ 423(d)(3),
“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 a severe impairment or
combination of impairments does not require a finding that an individual is disabled within
the meaning of the 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 Court reviews a final decision by the Commissioner by examining the
administrative record and determining “whether the [ALJ’s] factual findings are supported
by substantial evidence in the record and whether the correct legal standards were
applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However, the Court
“may neither reweigh the evidence nor substitute [its] judgment for that of the agency.”
Harper v. Colvin, 528 F. App’x 887, 890 (10th Cir. 2013) (quoting Barnett v. Apfel, 231 F.3d
687, 689 (10th Cir. 2000)). In other words, the Court does not reexamine the issues de
novo. Sisco v. U.S. Dep’t of Health & Human Servs., 10 F. 3d 739, 741 (10th Cir. 1993).
Thus, even when some evidence could support contrary findings, the Court “may not
displace the agency’s choice between two fairly conflicting views,” even if the Court may
have “made a different choice had the matter been before it de novo.” Oldham v. Astrue,
509 F.3d 1254, 1257-58 (10th Cir. 2007).
The Social Security Administration uses a five-step framework to determine whether
a claimant meets the necessary conditions to receive Social Security benefits. See 20
C.F.R. § 404.1520. The claimant bears the burden of proof at steps one through four, and
if the claimant fails at any of these steps, consideration of any subsequent step or steps is
unnecessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (“If a determination
can be made at any of the steps that a claimant is or is not disabled, evaluation under a
subsequent step is not necessary.”). The Commissioner bears the burden of proof at step
five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Step one requires the ALJ to determine whether a claimant is “presently engaged
in substantial gainful activity.” Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d
1140, 1142 (10th Cir. 2004)). If not, the ALJ considers at step two whether a claimant has
“a medically severe impairment or impairments.” Id. “An impairment is severe under the
applicable regulations if it significantly limits a claimant’s physical or mental ability to
perform basic work activities.” Wall, 561 F.3d at 1052 (citing 20 C.F.R. § 404.1521). Next,
at step three, the ALJ considers whether a claimant’s medically severe impairments are
equivalent to a condition “listed in the appendix of the relevant disability regulation,” i.e., the
“Listings.” Wall, 561 F.3d at 1052 (quoting Allen, 357 F.3d at 1142). “If a claimant’s
impairments are not equivalent to a listed impairment, the ALJ must consider, at step four,
whether a claimant’s impairments prevent [him] from performing [his] past relevant work.”
Wall, 561 F.3d at 1052 (citing Allen, 357 F.3d at 1142). “Even if a claimant is so impaired,
the agency considers, at step five, whether [he] possesses the sufficient [RFC] to perform
other work in the national economy.” Id.
An ALJ must consider all evidence and explain why he or she finds a claimant not
disabled. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, the ALJ need
not specifically “reference everything in the administrative record.” Wilson, 602 F.3d at
1148. “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. at 1140 (internal quotation marks omitted). “It
requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007). A decision by the ALJ is not based on substantial evidence
“if it is overwhelmed by other evidence in the record . . . .” Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005). In other words, the Court’s determination of whether the
ALJ has supported his or her ruling with substantial evidence “must be based upon the
record taken as a whole.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).
Further, evidence is not substantial if it “constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In addition, “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).
Plaintiff requests judicial review of the ALJ’s decision denying his disability insurance
benefits. Brief [#16] at 7. Specifically, Plaintiff argues that: (1) the ALJ erred in her
determinations regarding Plaintiff’s credibility, (2) the ALJ erred in determining that Plaintiff
retained the ability to perform the RFC of “light work” or to perform any kind of work, (3) the
ALJ improperly rejected the opinions of the treating physician, Patrick Miller, M.D. (“Dr.
Miller”), (4) the Appeals Council erred in failing to review Plaintiff’s appeal when new and
material evidence was submitted for consideration, and (5) the ALJ made other errors
prejudicial to Plaintiff. The Court begins with Plaintiff’s argument regarding ALJ prejudice.
The Alleged Prejudice of the ALJ
Plaintiff asserts that the ALJ demonstrated prejudice against him. Brief [#16] at 55-
56. However, the entirety of Plaintiff’s brief argument here appears to be that the ALJ was
prejudiced against Plaintiff because the ALJ found certain claimed medical issues to be
unsupported, incredible, or non-severe. See id. The Court has found no legal support for
the assertion that statements by the ALJ such as “the record is not supportive of his
remaining claims” exhibit prejudice. See id. at 56 (stating this type of comment is “snarky”
and “reflect[s] a demonstrable prejudice against Plaintiff”); see also Liteky v. United States,
510 U.S. 540, 555 (1994) (stating that “[j]udicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily
do not support a bias or partiality challenge”). Further, even if Plaintiff disagrees with the
ALJ’s evaluation of certain of his impairments, this alone is an insufficient basis on which
to find that the ALJ was prejudiced. See Brief [#16] at 55-56 (discussing the ALJ’s
allegedly prejudicial evaluation of Plaintiff’s asserted medical conditions, including hepatitis
C, degenerative disc disease, and fibromyalgia); see Liteky, 510 U.S. at 555 (stating that
“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion”).
In short, Plaintiff’s argument does not overcome the “presumption of honesty and integrity
in those serving as adjudicators” in administrative proceedings. See Withrow v. Larkin, 421
U.S. 35, 47 (1975). Accordingly, the Court finds no reversible error based on alleged
prejudice by the ALJ.
The ALJ’s Evaluation of Plaintiff’s Credibility
Plaintiff argues that the ALJ erred in her adverse credibility determinations with
respect to both Plaintiff and his wife. Brief [#16] at 27-41.
An ALJ’s credibility findings are entitled to “particular deference.” Wahpekeche v.
Colvin, __ F. App’x __, __, No. 15-6060, 2016 WL 537248, at *1 (10th Cir. Feb. 11, 2016)
(citing White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2001)). “Not only does an ALJ see
far more social security cases than do appellate judges, he or she is uniquely able to
observe the demeanor and gauge the physical abilities of the claimant in a direct and
unmediated fashion.” Wahpekeche, 2016 WL 537248, at *1 (quoting White, 287 F.3d at
910). However, an ALJ’s decision must still “contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently specific
to make clear to the individual and to any subsequent reviewers the weight the [ALJ] gave
to the individual’s statements and the reasons for that weight.” Wahpekeche, 2016 WL
537248, at *1 (quoting SSR 96–7p, 1996 WL 374186, at *2 (July 2, 1996)).
In addition to the objective medical evidence, the factors which should be considered
when assessing a claimant’s credibility include: (1) the claimant’s daily activities; (2) the
location, duration, frequency, and intensity of the claimant’s pain or other symptoms; (3)
factors which precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness,
and side effects of any medication the claimant takes or has taken to alleviate pain or other
symptoms; (5) treatment, other than medications, the individual receives or has received
for relief of pain or other symptoms; (6) any measures other than treatment the claimant
uses or has used to relieve pain or other symptoms; and (7) any other factors concerning
the individual’s functional limitations and restrictions due to pain or other symptoms. 20
C.F.R. § 404.1529(c)(3); SSR 96-7p, 1996 WL 347186, at *3. The ALJ must link these
factors to evidence but is not required to perform “a formalistic factor-by-factor recitation
of the evidence.” Wahpekeche, 2016 WL 537248, at *2 (citing Hardman v. Barnhart, 362
F.3d 676, 678-79 (10th Cir. 2004); quoting Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.
2000)). “In evaluating the ALJ’s analysis, we do not require technical perfection, but are
guided by common sense.” Wahpekeche, 2016 WL 537248, at *2 (citing Keyes–Zachary
v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012)).
The ALJ spent significant time discussing Plaintiff’s credibility, the primary portion
of which the Court here recites:
The undersigned also notes that, the claimant has described daily activities
and social interactions that are not limited to the extent one would expect if
his physical and mental impairments were as severe as alleged. Of note, at
the hearing the claimant testified that that [sic] he recently married, but has
been with his spouse for 6 years. His wife has one adult child, and he has
three. He sees his children all the time, and has regular contact with his two
grandchildren. He lives with his wife in a mobile home. She works, so he is
home alone during the day. He spends the day watching television. He
maintains a driver’s license, although he limits his driving. He plays guitar.
He walks his three, small dogs in the evenings. He tries to do as much as he
can when he feels good. He and his wife go out to eat 1-2 times weekly, and
they go to church once weekly. He does the laundry. He will make grocery
lists, and once in a while he will “tag along” to the grocery store, but his wife
usually goes. He does the household chores. He prepares TV dinners for
himself. He will cook spaghetti and chili. He washes the dishes or loads and
unloads the dishwasher. The fact that the claimant is able to engage in such
a wide variety of activities, to interact appropriately with friends and family,
and to go so often out of his home, indiciates that he has been capable of
sustaining some level of work-related activities since his alleged onset date.
At his young age, the regulations do not support a finding of total disability as
defined by social security regulations.
The undersigned also considered other factors when assessing the
claimant’s credibility. For instance, as previously noted, the claimant’s
conditions all are longstanding in nature, stemming from several motorcycle
accidents. Yet, despite these accidents, which apparently occurred in the
distant past, the claimant has been able to work. In fact, he reported at an
emergency room visit in April 2011 that his medical problems did not interfere
with his work as a car dealer. There is no evidence of any worsening of any
of his conditions since that time. Additionally, although he has reported in
conjunction with this application that he lost this job due to his conditions,
there is nothing in the record substantiating this. In fact, treatment records
reflect that he only reported to his primary care provider that he had been laid
off. He made no mention that it was due to his physical problems. Moreover,
since the time of the layoff the claimant has applied for and received
unemployment benefits. The Colorado unemployment insurance program is
based on the principles that only those persons who are mentally and
physically able to work, are available for work, and are actively seeking work
are entitled to unemployment benefits. The claimant’s collection of
unemployment benefits undercuts his credibility. In fact, the claimant testified
that he is actively seeking work, albeit on a part-time basis, in the motorcycle
parts sales field. The fact that he has expressed a willingness to work since
his alleged onset of disability is inconsistent with his claim of disability.
The claimant also has provided inconsistent information on several issues
that affects his credibility. As previously noted, he repeatedly has reported
that he was a professional motorcycle racer, when earnings records do not
support his statements. Additionally, he testified that this activity was more
of a hobby. He also reported sustaining multiple concussions and broken
bones due to this activity, yet there are no medical records to corroborate his
statements. In fact, emergency room records reflect that the claimant
repeatedly has declined imaging, which could corroborate his allegations of
broken bones, with available imaging not supportive of his statements. He
reported to Dr. Valette at a May 2012 psychological evaluation that he had
not ridden a motorcycle in over a year, when treatment records document as
late as July 2011 that he continued to “ride” a motorcycle. He denied using
any drugs or alcohol at the May 2012 psychological evaluation, and also in
his testimony, yet treatment records document not only his narcotic pain
medication abuse, but also use of both alcohol and marijuana. He told Dr.
Valette that he had been hospitalized psychiatrically in Pennsylvania in 2006
for depression. Yet, a March 2007 emergency room treatment note for drug
abuse while living in Pennsylvania reflects that the claimant then denied
having any psychiatric hospitalizations. He affirmatively denied any such
hospitalizations at an April 2011 emergency room visit for suicidal ideation.
All of this suggests that his statements are not entirely credible.
Tr. 30-31 (internal citations omitted).
In addition, Plaintiff also contests the ALJ’s assessment of Plaintiff’s wife’s credibility.
Brief [#16] at 37-40. In the Decision, the ALJ stated:
In accordance with Social Security Ruling 06-03p, the undersigned also
considered the testimony of the claimant’s wife, Kelli Strong. Her testimony
does not establish that the claimant is disabled. Since Ms. Strong is not
medically trained to make exacting observations as to dates, frequencies,
types, and degrees of medical signs and symptoms, the accuracy of her
testimony is questionable. Moreover, by virtue of her relationship to the
claimant as his wife, she cannot be considered to be a disinterested third
party witness whose statement would not tend to be colored by the affection
for the claimant and natural tendency to agree with the symptoms and
limitations the claimant alleges. Most important, significant weight cannot be
given to her testimony, because it, like the claimant’s, is simply not consistent
with the preponderance of the evidence. Of note, Ms. Strong stated that
when the claimant takes Demerol injections for his headaches, he is
incoherent, at moments is lethargic, wanders, and then falls asleep for the
evening. The period of incoherency and lethargy lasts 4-6 hours, before he
passes out. He is drained and worn out the entire next day, and is more
normal the following day. If he is incapacitated, she has to stay home and
rearrange her work schedule. Treatment records do not support her
statements. The claimant has not reported such effects to his primary care
provider. Emergency room records reflect that the claimant responded
quickly to treatment for such headaches in the emergency room, and was
cogent and able to ambulate away on his own accord. As such, no weight
is accorded it.
In part, Plaintiff asserts that the ALJ erred by finding that Plaintiff’s “collection of
unemployment benefits undercuts his credibility.” Brief [#16] at 31 (citing Tr. 31). However,
the Tenth Circuit Court of Appeals has explicitly stated that such considerations are
“entirely proper.” Pickup v. Colvin, 606 F. App’x 430, 433 (10th Cir. 2015). “There is an
obvious inconsistency between claiming an ability to work for purposes of obtaining
unemployment compensation and claiming an inability to work for purposes of obtaining
social security benefits.” Id. (emphasis in original). “The ALJ was thus entitled to rely on
[the claimant’s] receipt of unemployment benefits as a reason weighing against the
credibility of [his] claim of a completely disabling impairment.” Id. Plaintiff’s citation to a
2010 memorandum issued by the Chief ALJ regarding the Social Security Administration’s
policy with respect to unemployment benefits does not contradict Tenth Circuit precedent.
See Brief [#16] at 32-33 (citing Ex. 1, Memo [#16-1]). The memorandum simply states that
receipt of unemployment benefits does not automatically preclude the receipt of disability
Ex. 1, Memo [#16-1].
The Chief ALJ explicitly states that the receipt of
unemployment benefits is one of many factors which “must” be considered. Id.
Plaintiff also asserts that the ALJ erred by considering Plaintiff’s expressed
willingness to work as impacting Plaintiff’s credibility. See Brief [#16] at 33-34. However,
the Tenth Circuit has stated that “a claimant’s willingness to work [is] a relevant factor in
assessing a claimant’s credibility.” Bennett v. Colvin, No. 2:13-DV-348-DN-PMW, 2015 WL
348561, at *8 (D. Utah Jan. 23, 2015) (citing Newbold v. Colvin, 718 F.3d 1257, 1267 (10th
Cir. 2013); Decker v. Chater, 36 F.3d 953, 955 (10th Cir. 1996)). Thus, the ALJ did not err
by considering this factor when evaluating Plaintiff’s credibility.
To the extent Plaintiff argues that the ALJ erred by considering Ms. Strong’s
testimony in accordance with SSR 06-03p, this argument is rejected. See Brief [#16] at 39.
This Social Security Ruling applies to all sources who are not “acceptable medical
sources,” including lay witnesses, despite Plaintiff’s argument to the contrary. See, e.g.,
SSR 06-03p 2006 WL 2329939, at *4 (Aug. 9, 2006) (“Accordingly, this ruling clarifies how
we consider opinions and other evidence from medical sources who are not ‘acceptable
medical sources’ and from ‘non-medical sources,’ such as teachers, school counselors,
social workers, and others who have seen the individual in their professional capacity, as
well as evidence from employers, spouses, relatives, and friends.”); see also id. at *6 (“In
considering evidence from ‘non-medical sources’ who have not seen the individual in a
professional capacity in connection with their impairments, such as spouses, parents,
friends, and neighbors, it would be appropriate to consider such factors as the nature and
extent of the relationship, whether the evidence is consistent with other evidence, and any
other factors that tend to support or refute the evidence.”). Accordingly, the ALJ did not err
by considering Ms. Strong’s testimony in accordance with SSR 06-03p.
Plaintiff’s remaining arguments concern whether substantial evidence supports the
ALJ’s credibility determination. In short, Plaintiff appears to argue that the ALJ erred by
mischaracterizing and/or ignoring evidence favoring Plaintiff’s and Ms. Strong’s credibility.
However, the Court must “decline [Plaintiff’s] invitation to reweigh the evidence to substitute
our judgment for that of the Commissioner” when the ALJ utilized the correct legal
standards in her credibility finding. Harper v. Colvin, 528 F. App’x 887, 892 (10th Cir. 2013)
(citing Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005)). “[W]e will not upset an
ALJ’s credibility determination that is closely and affirmatively linked to substantial evidence
. . . .” Sitsler v. Astrue, 410 F. App’x 112, 118 (10th Cir. 2011). Further, the ALJ is not
required to discuss every piece of evidence she considers. Clifton v. Chater, 79 F.3d 1007,
1009-10 (10th Cir. 1996). The ALJ is only required to explain and support with substantial
evidence which of a claimant’s testimony she did not believe and why, see McGoffin v.
Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002). Here, based on the Court’s review of the
ALJ’s credibility determinations, the Court finds that the ALJ did precisely what was
required by identifying a number of inconsistencies in the record in connection with
Plaintiff’s and his wife’s statements. See Wilson v. Astrue, 602 F.3d 1136, 1146 (10th Cir.
2010) (stating that “[i]nconsistencies are a reasonable basis upon which to find a claimant
Accordingly, the Court finds that the ALJ did not commit reversible error on this
The Opinion of Dr. Miller
Plaintiff argues that the ALJ improperly assigned “no weight” to the opinion of Dr.
Miller, Plaintiff’s treating physician. Brief [#16] at 46-54.
An ALJ must give the opinion of a treating physician controlling weight only when it
is both: (1) “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and (2) “consistent with other substantial evidence in the record.” Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). “[I]f the opinion is deficient in either of
these respects, then it is not entitled to controlling weight.”
Even if a treating
physician’s medical opinion is not entitled to controlling weight, however, “[t]reating source
medical opinions are still entitled to deference and must be weighed using all of the factors
provided in 20 C.F.R. § 404.1527.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir.
1989). Those factors are:
(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.
Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001); 20 C.F.R. § 404.1527(c).
Although the six factors listed above are to be considered in weighing medical opinions, the
Court does not insist on a factor-by-factor analysis so long as the “ALJ’s decision [is]
‘sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for that weight.’” Oldham,
509 F.3d at 1258 (quoting Watkins, 350 F.3d at 1300). To the extent Plaintiff argues that
a treating physician’s opinion must be given some level of weight, this argument is rejected.
See, e.g., Payton v. Astrue, 480 F. App’x 465, 467-70 (10th Cir. 2012) (holding that the ALJ
appropriately gave no weight to the opinion of the claimant’s treating physician).
In her assessment of Dr. Miller’s medical opinions, the ALJ stated:
In reaching these conclusions [regarding Plaintiff’s RFC], the undersigned
considered the findings from the claimant’s primary care provider, Dr. Miller.
Dr. Miller completed an assessment on May 2, 2013. In it, he assessed the
claimant, in relevant part, as able to occasionally lift and carry less than 10
pounds, and rarely up to 20 pounds. The claimant can sit and stand/walk for
less than 2 hours total each in an 8-hour workday. Dr. Miller noted that these
limitations had been in effect since November 2010. The undersigned notes
that, the claimant was working at substantial gainful activity levels in
November 2010, and continued to work at such levels until being laid off in
January 2012. Treatment records do not show any worsening of his
condition during the intervening period, and in fact reflect that his conditions
are longstanding and stable in nature, and did not prevent work. The
undersigned also notes that Dr. Miller only provided conservative treatment
to the claimant, principally with medication refills. His notes do not show that
any physical exams were ever completed on the claimant, so it is unclear on
what bases he reached his conclusions. In fact, although Dr. Miller’s 2013
assessment noted that while the claimant had bilateral shoulder and knee
pain, as well as cervical and lumbar pain and daily headaches, his
contemporaneous treatment notes do not show any such complaints.
Contemporaneous emergency room treatment notes, where physical exams
were conducted, do not support such complaints or his conclusions, and
repeatedly reflect the claimant had normal physical and/or mental exams.
Dr. Miller’s report of side effects from medication is also without support in his
treatment notes. Given the lack of objective support or clinical findings for
Dr. Miller’s statements, and in consideration of the aforementioned factors,
the undersigned finds that his opinion is not entitled to any weight.
Tr. 32 (internal citations omitted).
The Court finds that the ALJ’s analysis is sufficiently specific to make clear the
weight she gave to Dr. Miller’s medical opinion and the reasons for that weight. See
Oldham, 509 F.3d at 1258. Because the ALJ provided specific reasons demonstrating that
Dr. Miller’s opinions were not “well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and were not “consistent with other substantial evidence
in the record,” Dr. Miller’s opinion was not entitled to controlling weight. See Watkins, 350
F.3d at 1300. In further evaluating the opinion, the ALJ clearly weighed factors described
in Drapeau, 255 F.3d at 1213, including the length of the treatment relationship, the nature
and extent of the treatment relationship, the degree to which Dr. Miller’s opinion is
supported by relevant evidence, consistency between the opinion and the record as a
whole, and other factors which tend to support or contradict the opinion.
substantial evidence supports the ALJ’s decision regarding Dr. Miller’s opinion, the Court
rejects Plaintiff’s suggestion that the Court reweigh the medical evidence and substitute its
judgment for that of the Commissioner’s. See Thompson v. Colvin, 551 F. App’x 944, 948
(10th Cir. 2014) (citing Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008)).
Accordingly, the Court finds that the ALJ did not commit reversible error with respect to her
assessment of Dr. Miller’s opinion.
As part of his argument regarding the weight accorded to Dr. Miller’s opinion, Plaintiff
also briefly argues that the ALJ erred by according “great weight” to the opinion of Craig
Billinghurst, M.D. (“Dr. Billinghurst”), who is a State agency medical consultant. Brief [#16]
at 51-52. Plaintiff does not contest that the ALJ was entitled to rely on Dr. Billinghurst’s
opinion to some extent. Id. at 51. However, Plaintiff asserts that Dr. Billinghurst’s opinion
was rendered in the absence of a review of Dr. Miller’s office notes, Dr. Miller’s Medical
Source Statement, the medical records from Memorial Hospital, and Plaintiff’s testimony.
Id. However, Plaintiff fails to argue how a review of any of these materials could result in
altering Dr. Billinghurst’s opinion. In other words, even assuming that it was error for the
ALJ to rely on Dr. Billinghurst’s opinion in the absence of Dr. Billinghurst first reviewing this
evidence, Plaintiff does not direct the Court’s attention to any specific portion of these
additional materials which could potentially result in the alteration of any specific portion of
Dr. Billinghurst’s opinion. In the absence of a more specific argument, the Court finds that,
even if the ALJ erred, such error was harmless. Accordingly, the Court finds that the ALJ
did not commit reversible error on this issue.
Finally, the Court notes that Plaintiff also conclusorily argues that “[t]he ALJ
improperly relied on the opinion of the State agency psychological consultant, Mark
Suyeishi to determine that [Plaintiff] had no limitations in social interaction and only mild
limitation in the area of social functioning . . . .” Brief [#16] at 51. The ALJ did give “some
weight” to Dr. Suyeishi’s opinion, to the extent it was supported by the medical record, as
the ALJ fully explained. Tr. 24. However, Plaintiff does not provide further argument or
direct the Court’s attention to specific evidence which contradicts Dr. Suyeishi’s opinion.
It is not automatically error to rely on the opinion of a State agency psychological
consultant. See, e.g., SSR 96–6p, 1996 WL 374180, at *3. Thus, in the absence of a more
focused argument regarding Dr. Suyeishi, the Court finds that the ALJ did not commit
reversible error on this issue.
The ALJ’s RFC Holding
Plaintiff argues that the ALJ erred by determining that Plaintiff retained the ability to
perform “light work.” Brief [#16] at 41-46. After a lengthy, detailed discussion, the ALJ
concluded by summarizing her RFC finding as follows:
After considering the evidence in its entirety, including the testimony, the
undersigned concludes that the evidence of the claimant’s migraines and
chronic pain would reasonably restrict the claimant from performing heavy
lifting, and thus limit the claimant to work at the light level of exertion, with
only occasional postural activities. His mental condition reasonably would
restrict the claimant to unskilled work involving a SVP level of 1 or 2. In
reaching these conclusions, the undersigned has considered all of the
claimant’s statements concerning his limitations, but cannot find his
complaints are entirely credible in light of the evidence of record. The
claimant has reported that, he is unable to work at any level, yet the objective
evidence, clinical findings, conservative treatment showing his conditions all
have been stable with [a] change in medication, as well as fairly active
lifestyle, work history, and inconsistent statements prevent the imposition of
more rigorous restrictions.
In part, Plaintiff argues that the ALJ erred by failing to include any non-exertional
limitations in the RFC, despite determining that Plaintiff’s severe impairments included
“organic mental disorder and status post history of multiple concussions,” and despite
evidence of an alteration in mental state in connection with migraine headaches, anxiety,
Brief [#16] at 42.
However, the ALJ accounted for these mental
impairments by limiting Plaintiff to unskilled work. See Tr. 34. The ALJ discussed in detail
her reasons for not imposing any greater restrictions in connection with Plaintiff’s mental
impairments. See, e.g., Tr. 30 (discussing the psychological evaluation of Brett Valette,
Ph.D.), 33 (discussing the assessments provided by two State agency psychological
consultants, Dr. Suyeishi and Paul Cherry, Ph.D.). Given that substantial evidence
underlies this portion of the ALJ’s assessment, the Court declines Plaintiff’s invitation to
reweigh the evidence in this case. See Thompson, 551 F. App’x at 948. Accordingly, the
Court finds that the ALJ did not commit reversible error with respect to this issue.
Plaintiff also argues that the ALJ erred by failing to find that Plaintiff’s pain kept him
from working on a regular and continuing basis, i.e., a basis equivalent to eight hours per
day and five days per week. Brief [#16] at 43-46. However, this is once again an invitation
to reweigh the evidence, which the Court must not do. See Thompson, 551 F. App’x at
An SVP level of 2 refers to a “specific vocational preparation” of up to 30 days, while an
SVP of 1 refers to a short demonstration. This is the amount of lapsed time required by a typical
worker to learn techniques, acquire the information, and develop the facility needed for average
performance in a specific job. Dictionary of Occupational Titles, U.S. Dep’t of Labor, 4th Ed.,
948. The ALJ thoroughly examined the evidence and cited substantial evidence to support
her conclusion that the frequency and severity of Plaintiff’s migraines and other chronic
pain were not so great as to preclude Plaintiff’s regular employment when Plaintiff takes
his medication, despite the presence of some side effects. See, e.g., Tr. 28.
Finally, Plaintiff argues that no medical evidence supports the ALJ’s assessment of
Plaintiff’s RFC. Brief [#16] at 46. Plaintiff states that the “only consultative examination
was performed by Brett Valette, Ph.D.” Id. The ALJ thoroughly examined Dr. Valette’s
opinion and, despite Plaintiff’s claim to the contrary, the RFC reflects Dr. Valette’s opinion
to the extent the ALJ agreed that Plaintiff retains the ability to perform unskilled tasks,
“despite a rule out diagnosis of a cognitive disorder.” Tr. 30. To the extent Plaintiff may
be asserting that no medical evidence supports the physical RFC, the Court has already
noted that the ALJ did not err in relying on the opinion of Dr. Billinghurst. See Tr. 32.
Because the ALJ’s RFC assessment is supported by substantial evidence, and
because the Court must not reweigh the evidence of record, the Court finds that the ALJ
did not commit reversible error with respect to the her assessment of Plaintiff’s RFC.
The Appeals Council’s Review of the ALJ’s Decision
Plaintiff argues that the Appeals Council erred in failing to review Plaintiff’s appeal
when new and allegedly material evidence was submitted for its consideration. Brief [#16]
at 54-55. The Notice of Appeals Counsel Action states in relevant part:
In looking at your case, we considered the reasons you disagree with the
decision and the additional evidence listed on the enclosed Order of Appeals
Council. We considered whether the Administrative Law Judge’s action,
findings or conclusion is contrary to the weight of evidence of record. We
found that this information does not provide a basis for changing the
Administrative Law Judge’s decision.
First, the Court notes that the Appeals Council was not required to provide further
explanation of its decision beyond stating that the new evidence provided no basis for a
change in the ALJ’s decision. In Lynn v. Colvin, __ F. App’x __, __, No. 15-5031, 2016 WL
26510, at *1 (10th Cir. Jan. 4, 2016), the claimant argued that the Appeals Council failed
to properly consider newly-submitted evidence. The Tenth Circuit Court of Appeals
rejected this argument:
The Appeals Council said that it had considered the new evidence and
determined that it did not provide a basis for changing the administrative law
judge’s decision. This statement sufficiently addressed the new evidence,
for we held in Martinez v. Barnhart, 444 F.3d 1201 (10th Cir. 2006), that the
Appeals Council had no obligation to explain how it analyzed new evidence.
There we held that the Appeals Council satisfied its obligation by stating that
it had considered the additional evidence and that it did not provide a basis
for changing the administrative law judge’s decision. . . . [T]he [Martinez]
opinion turns on the absence of any legal requirement for the Appeals
Council to discuss the effect of the newly submitted evidence: “While an
express analysis of the Appeals Council’s determination would have been
helpful for purposes of judicial review, [the plaintiff] points to nothing in the
statutes or regulations that would require such an analysis where new
evidence is submitted and the Appeals Council denies review.”
Lynn, 2016 WL 26510, at *1 (internal citations omitted).
The Appeals Council may err in denying review based on new evidence “only if the
new evidence provides a basis for changing the ALJ’s decision.” Welch v. Colvin, 566 F.
App’x 691, 696 (10th Cir. 2014) (citing O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994)).
“[A]ny new evidence submitted to the Appeals Council on review becomes part of the
administrative record to be considered when evaluating the Secretary’s decision for
substantial evidence.” Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 n.4 (10th Cir.
2014) (quoting Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006)).
The Court has examined the allegedly “new and material” evidence submitted by
Plaintiff to the Appeals Council. See Tr. 381-98. The Court first notes that Plaintiff did not
link this evidence to the ALJ’s Decision in more than a conclusory fashion and, even where
the Court can discern an attempt to do so, the Court does not see how this evidence might
materially alter the ALJ’s Decision. Plaintiff does not once cite to a specific page of the
ALJ’s Decision which contains findings which could be altered based on a review of the
“new and material” evidence. For example, Plaintiff states “[b]ecause the [newly-submitted]
prescription printout covers one year before the alleged onset date through one year after
the hearing and because it totally refutes a significant number [of] findings made by the
ALJ, the prescription printout is very definitely a ‘new and material’ piece of evidence
supporting the appeal.” Brief [#16] at 55. Plaintiff does not here specify how the printout
is material, although earlier in the Brief he states that the “prescription medication records
were submitted to verify the frequency of [Plaintiff’s] various medication refills.” Id. at 25.
He also states elsewhere that the “prescription printout provided to the Appeals Council is
proof positive that the Plaintiff employs the injections in a regular basis as he testified.” Id.
at 41. However, like the Appeals Council, the Court does not believe that this evidence
provides a basis for changing the ALJ’s decision. Additional evidence, especially the
evidence submitted from Dr. Miller, is generally nothing more than reiteration and
restatement of materials previously submitted to and examined by the ALJ.
Accordingly, the Court finds that the Commissioner did not err with respect to this
aspect of her decision.
For the foregoing reasons,
IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not
disabled is AFFIRMED.
IT IS FURTHER ORDERED that each party shall bear their own costs and attorney’s
Dated: March 16, 2016
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