James v. Colvin
MEMORANDUM OPINION and ORDER that the Commissioner's final decision is Affirmed and this civil action is dismissed, with each party to bear its own fees and costs, by Magistrate Judge Nina Y. Wang on 03/11/16. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03045-NYW
BEATRICE GAIL JAMES,
CAROLYN W. COLVIN, Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This action comes before the court pursuant to Title II of the Social Security Act (“Act”),
42 U.S.C. §§ 401-33 for review of the Commissioner of Social Security’s final decision denying
Plaintiff Beatrice Gail James’ application for Disability Insurance Benefits (“DIB”). Pursuant to
the Order of Reference dated July 9, 2015, this civil action was referred to the Magistrate Judge
“for all purposes” pursuant to the Pilot Program to Implement the Direct Assignment of Civil
Cases to Full Time Magistrate Judges and Title 28 U.S.C. § 636(c). See [#19]. The court has
carefully considered the Complaint [#1, filed Nov. 11, 2014], Defendant’s Answer [#9, filed
Mar. 13, 2015], Plaintiff’s Opening Brief [#13, filed Apr. 22, 2015], Defendant’s Response Brief
[#14, filed May 20, 2015], Plaintiff’s Reply Brief [#15, filed June 9, 2015], the entire case file,
the administrative record, and applicable case law. For the following reasons, I AFFIRM the
Commissioner’s final decision.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed an application for DIB under Title II of the Act on March 29, 2012. [#10-5
at 89]. 1 At the time of the application, Ms. James was 56 years old, with a high school
education. [#10-6 at 101, 106]. As the basis for her disability claim, she states that her ability to
work is limited by bulging discs in her neck and back, chronic pain, and asthma. [#10-6 at 105].
Ms. James states in her application that her disability began in 2005, at which time she quit her
job and began helping with her husband’s business. [#10-6 at 90]. She eventually stopped
working altogether because they lost their business and she can no longer work at any other type
of job, especially physical jobs. [#10-6 at 101, 105].
After denial of Ms. James’ application, a hearing was held before an Administrative Law
Judge (“ALJ”) on May 13, 2013. [#10-2 at 20]. The ALJ issued a hearing decision on June 7,
2013, which denied the application for disability benefits at step two of the five-step sequence
for determining disability.
See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)
First, the ALJ determined that Ms. James last met insured status requirements of the
Social Security Act on December 31, 2010 (“the date last insured”). [#10-2 at 14]. The ALJ
then determined that Ms. James did not engage in substantial gainful activity between the alleged
onset date of June 15, 2009, through the date last insured of December 31, 2010 (“insured
period”). [#10-2 at 14]. Next, the ALJ found that during the insured period, Ms. James had
This Order utilizes the docket number assigned by the Electronic Court Filing (“ECF”) system
for its citations to the court file. For the Administrative Record, the court then refers to the page
number associated with the Record, which is found in the bottom right-hand corner of the page.
For documents outside of the Administrative Record, the court refers to the page number
assigned in the top header by the ECF system.
three medically determinable impairments: unspecified back pain, unspecified neck pain, and
asthma. [#10-2 at 14]. The ALJ then determined at step two that Ms. James did not have any
impairment or combination of impairments that significantly limited the ability to perform basic
work-related activities for 12 consecutive months; and therefore Ms. James did not have a severe
impairment or combination of impairments. [#10-2 at 14]. On this basis, the ALJ concluded that
Ms. James was not under a disability, as defined in the Social Security Act, at any time during
the insured period between June 15, 2009 and December 31, 2010. [#10-2 at 18].
On September 25, 2014, the Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision, thereby rendering the ALJ’s decision the final decision of the Commissioner.
See [#10-2 at 1]; 20 C.F.R. § 404.981; Nelson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993).
Plaintiff filed this action on November 11, 2014. See [#1]. The court has jurisdiction to review
the final decision of the Commissioner. 42 U.S.C. § 405(g).
Standard of Review
In reviewing the Commissioner’s final decision, the court is limited to determining
whether the decision adheres to applicable legal standards and is supported by substantial
evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation
omitted); Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The court may not reverse
an ALJ simply because the court may have reached a different result based on the record; the
question instead is whether there is substantial evidence showing that the ALJ was justified in his
decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is
more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)
(internal citation omitted). “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) (internal citation omitted). The court will not “reweigh the evidence or retry the
case,” but must “meticulously examine the record as a whole, including anything that may
undercut or detract from the ALJ’s findings in order to determine if the substantiality test has
been met.” Flaherty, 515 F.3d at 1070 (internal citation omitted). Nevertheless, “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) (internal citation
Social Security Disability Appeal Process
An individual is eligible for DIB benefits under the Act during the period of time she is
insured, has not attained retirement age, has filed an application for DIB, and is under a disability
as defined in the Act. 42 U.S.C. §§ 416(i), 423(a)(1). An individual is determined to be under a
disability only if her “physical or mental impairment or impairments are of such severity that
[she] is not only unable to do [her] previous work but cannot, considering [her] age, education,
and work experience, engage in any other kind of substantial gainful work which exists in the
national economy . . . .” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B).
In order to receive benefits, a claimant must establish her disability prior to the date the
claimant last met the earnings requirements of the Social Security Act (Act), i.e., the date last
insured. 42 U.S.C. §§ 401-433. See Adams v. Chater, 93 F.3d 712, 714 (10th Cir. 1996); Henrie
v. United States Dep’t of Health & Human Servs., 13 F.3d 359, 360 (10th Cir. 1993).
The Commissioner has developed a five-step evaluation process for determining whether
a claimant is disabled under the Act. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.
1988) (describing the five steps in detail). “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.” Id. at
750. “Step one requires the agency 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). Step two requires the agency to consider whether a claimant has “a
medically severe impairment or impairments.” Allen, 357 F.3d at 1142. “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).
At step three, the ALJ considers whether a claimant’s medically severe impairments “meets or
equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1.” Vigil v. Colvin, 805 F.3d
1199, 1203 (10th Cir. 2015).
If the claimant’s impairments are not equivalent to a listed
impairment, at step four of the evaluation process, the ALJ must determine a claimant’s Residual
Functional Capacity (RFC) and compare the RFC to the claimant’s past relevant work. The RFC
is what a claimant is still “functionally capable of doing on a regular and continuing basis,
despite his impairments: the claimant's maximum sustained work capability.” Williams, 844
F.2d at 751. “The claimant bears the burden of proof through step four of the analysis.” Neilson
v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).
At step five, the burden shifts to the
Commissioner to show that a claimant can perform work that exists in the national economy,
taking into account the claimant’s RFC, age, education, and work experience. Neilson, 992 F.2d
at 1120. The ALJ may rely upon the testimony of a vocational expert to satisfy his burden at
step five, so long as the question posed to the vocational expert accurately portrays Plaintiff’s
limitations as supported by the record. See Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir.
2000); Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992).
Ms. James objects to the ALJ’s decision on several grounds. First, the ALJ erred when
he found that none of Plaintiff’s medically determinable impairments were “severe,” and that
none of the errors related to this finding were “harmless.” [#13 at 2]. Second, Ms. James argues
that the ALJ erred in failing to adequately develop the record. [#13 at 2].
The ALJ’s Finding That None of Ms. James’ Impairments Were “Severe”
Plaintiff argues that the ALJ erred in finding that she did not have a severe impairment or
combination of impairments at step two of the evaluation process. She argues that the ALJ’s
finding is not supported by substantial evidence because he failed to adequately weight the
medical evidence in the record.
“At step two, it is the claimant’s burden to demonstrate an impairment, or a combination
of impairments, that significantly limit her ability to do basic work activities.” Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987)). In order to meet this burden, a claimant must furnish evidence demonstrating that: (a)
she had one or more “medically determinable” physical or mental impairments; (b) those
impairments, either individually or in combination, were “severe”; and (c) those impairments had
or could be expected to last for a continuous period of at least 12 months. See 20 C.F.R. §§
404.1505, 404.1508, 404.1520(a)(4)(ii), 404.1520(c), 404.1521.
“[W]hile the showing a
claimant must make at step two is de minimis, a showing of the mere presence of a condition is
not sufficient.” Cowan v. Astrue, 552 F.3d 1182, 1186 (10th Cir. 2008) (citing Williamson v.
Barnhart, 350 F.3d 1097, 1100 (10th Cir. 2003).
The court turns first to the medical evidence from before or during the insured period in
which Ms. James must establish that she had an impairment or combination of impairments that
limited her ability to do work activities. See 20 C.F.R. § 404.131; Henrie v. United States Dep’t
of Health & Human Servs., 13 F.3d 359, 360 (10th Cir. 1993); see also Hamlin v. Barnhart, 365
F.3d 1208, 1215 (10th Cir. 2004) (the ALJ should consider evidence from an earlier time period
as it may be relevant to whether the claimant is disabled); Baca v. Dep’t of Health & Human
Servs., 5 F.3d 476, 479 (10th Cir. 1993) (evidence beyond the date last insured may be
considered to the extent it sheds light on the nature and severity of claimant’s condition during
the relevant time period). The evidence in the record includes an August 20, 2008 appointment
with Dr. Joseph Corona, a treating physician. [#10-7 at 155]. Dr. Corona noted that Ms. James
“comes in c/o neck pain and actually shoulder pain and actually upper back pain.” [#10-7 at
155]. Dr. Corona stated that Ms. James has had disc disease in the past, but does not recall any
specific injury. [#10-7 at 155]. An examination revealed tenderness in the C5-C6 region;
however, DTRs, motor and sensory are equal except for a little bit of extensor weakness on the
right side. [#10-7 at 155]. Dr. Corona prescribed Parafon Forte DSC and advised Ms. James to
apply local heat to the back. [#10-7 at 155]. He further advised her to call if symptoms persist
and noted that she may need x-rays or repeat MRI. [#10-7 at 155]. The record reflects that Ms.
James did not contact Dr. Corona in the near term for any issue, including x-rays or a repeat
Instead, Ms. James visited Dr. Corona again seven months later in March 2009. [#10-7 at
154]. At that time, back pain was not listed as an “active problem,” and Parafon Forte DSC was
not listed as one of her current medications. [#10-7 at 154]. Dr. Corona’s notes state that Ms.
James wanted to stop smoking, has a history of asthma, and would like to switch asthma
medications from Asmacort to Advair. [#10-7 at 154]. On May 9, 2009, Ms. James had an MRI
which showed Grade I anteriolisthesis L5 on S1 with features suggesting probably lytic
spondylolisthesis and mild disc space narrowing L4-5. [#10-7 at 268]. Ms. James then waited
another three months and visited with Dr. Corona on June 8, 2009, at which time the doctor
noted that Ms. James was seen in Urgent Care for back pain and was put on cyclobenzaprine and
Vicodin for pain; however, Dr. Corona noted that “[s]he is doing well now.” [#10-7 at 152-153].
On January 3, 2011, four days after the date that Ms. James was last insured for the
purposes of DIB, she visited Dr. Corona with a chief complaint of back pain. [#10-7 at 150].
Dr. Corona noted that Ms. James “states she has had upper back pain for a number of years” and
that Ms. James “has tried over-the-counter ibuprofen and aspirin with some relief.” [#10-7 at
150]. Dr. Corona also took note that Ms. James has taken some Flexeril in the past with “some
relief.” [#10-7 at 150]. Dr. Corona observed some tenderness from T1 to T12 and in the
paraspinous muscles bilaterally. [#10-7 at 151]. He prescribed Chlorzoxazone. [#10-7 at 151].
Dr. Corona then concluded that “[w]ithout evidence of radiculopathy, will treat with Parafon
forte 3 times daily and local heat. We’ll see how she does and if symptoms persist consider xrays.” [#10-7 at 151].
The ALJ concluded that the record does not establish that Ms. James’ impairments cause
more than a minimal limitation in her ability to perform basic work activities. [#10-2 at 17].
The ALJ noted that Ms. James’ subjective complaints and alleged limitations were not consistent
with the objective examination reports prior to and during the relevant insured period. [#10-2 at
17]. The ALJ also noted Plaintiff’s normal physical examinations in June 2009 and May 2010,
as well as the fact that in June 2009 Dr. Corona stated that she was doing well regarding her back
pain after starting Cyclobenzaprine and Vicodin. [#10-2 at 17]. The ALJ concluded that based
on his review, the record did not establish that Ms. James’ impairments caused more than a
minimal limitation in her ability to perform basic work activities. [Id.].
This court agrees and finds that the ALJ’s opinion regarding the record evidence before
and during the relevant insured period is supported by substantial evidence. Indeed, for the
insured period, the record reflects only mild abnormalities that were controlled with pain
medication; Ms. James even stated that she was doing fine controlling her pain with medication
and heat. Cf. Pickup v. Colvin, 606 F. App’x 430, 433-34 (10th Cir. 2015) (“If medication
effectively reduces the operative symptoms, that fact can weigh against the claimant.”) (citing
Keyes–Zachary v. Astrue, 695 F.3d 1156, 1171 (10th Cir. 2012) (ALJ did not err in “reject[ing]
[the claimant’s] complaint of disabling pain because of lack of intensity” where “medical reports
reveal[ed] that medications have been relatively effective, when taken as prescribed”); Hackett v.
Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d 903, 909-10 (10th
Cir. 2002)). And there is no indication anywhere in the records from the insured period to
suggest that Ms. James’ back pain caused more than a minimal limitation in her ability to
perform basic work activities.
This court also finds no error by the ALJ in relying primarily on the medical records from
the relevant time period of the alleged disability onset date, June 15, 2009, to the date last
insured, December 31, 2010, because Ms. James must establish that she was disabled prior to the
expiration of her insured status. See 20 C.F.R. § 404.131; Henrie v. United States Dep’t of
Health & Human Servs., 13 F.3d 359, 360 (10th Cir. 1993); see also Hamlin v. Barnhart, 365
F.3d 1208, 1215 (10th Cir. 2004) (the ALJ should consider evidence from an earlier time period
as it may be relevant to whether the claimant is disabled); Baca v. Dep’t of Health & Human
Servs., 5 F.3d 476, 479 (10th Cir. 1993) (noting that evidence beyond the date last insured may
be considered to the extent it sheds light on the nature and severity of claimant’s condition
during the relevant time period). Nevertheless, even considering the medical evidence after the
insured period, which the ALJ did in his opinion, the court finds no error in the ALJ’s conclusion
that such evidence does not establish the severity of Ms. James’ impairments during the relevant
time period as claimed.
The medical evidence after the date last insured includes several appointments that Ms.
James attended to address a problem with her left hip: (1) a May 17, 2011 appointment with Dr.
Corona in which Ms. James stated that she had been having left-sided hip pain for over a month
[#10-7 at 148]; (2) a June 6, 2011 appointment with Dr. Corona in which Ms. James stated that
the hip pain was still significant when she walked and that she would like to try a steroid
injection [#10-7 at 146]; and (3) a September 26, 2011 appointment with Dr. Corona which Ms.
James attended to receive a second injection in her left hip [#10-7 at 144-45]. The court notes
that there is no indication from any of the information in the record that Ms. James suffered from
a hip injury prior to her date last insured.
On March 2, 2012, Dr. Corona saw Ms. James and noted that her chief complaint was
neck ache and back pain. Dr. Corona noted tenderness in her neck, but recorded that she had full
range of motion. [#10-7 at 253]. That same month, during a March 23, 2012 visit with Dr.
Corona, Plaintiff complained of neck pain which had “gotten worse recently” and told Dr.
Corona that she “feels she is unable to work anymore because of the pain in her neck.” [#10-7 at
142]. Dr. Corona noted at that time that she would like to have disability forms filled out. [#107 at 142]. A March 2012 MRI showed no abnormal signal within the spinal cord; mild disc
desiccation; minimal diffuse disc bulge and facet arthropathy; and no significant narrowing of
the spinal canal overall. [#10-7 at 156].
In January 2013, treating physiatrist Hans Coester, M.D., reported that Plaintiff had neck
and back pain, which felt better after manual traction. [#10-7 at 204-205]. Dr. Coester stated
that although Ms. James had a history of neck pain since 2013, “[i]n the last year she had
worsening pain.” [#10-7 at 204]. He opined that, while it was possible that surgery might help
her, “she should exhaust conservative care first,” including two weeks of physical therapy, a
home traction device, exercise, and, if necessary, steroid injections. [#10-7 at 205].
The next month, in February 2013, Greg Reichhardt, M.D., agreed with Dr. Coester’s
recommendation that Plaintiff should receive only physical therapy. [#10-7 at 203]. He noted
that if Plaintiff had an “incomplete response” with physical therapy, she could then try trigger
point injections, wrist splints, and, contingent on the outcome of the more conservative
measures, foraminal injections for diagnostic purposes and consideration of surgery. [#10-7 at
203]. Dr. Reichhardt also reported that Plaintiff had normal gait, balance, and coordination;
normal heel-to-toe walking; full strength throughout (except for some weakness in the left wrist
extensor); intact sensation; normal rapid alternating movements; and some tenderness to
palpation. [#10-7 at 202].
On March 8, 2013, Dr. Corona issued a medical opinion regarding Ms. James’ physical
ability to do work-related activities. [#10-7 at 233]. Dr. Corona opined that Ms. James had the
maximum ability to lift and carry less than 10 pounds on an occasional or frequent basis, a
maximum ability to stand and walk for less than 2 hours in an 8-hour day, and a maximum
ability to sit for about 3 hours in a an 8-hour day. [#10-7 at 233]. The ALJ discounted this
opinion because there was no evidence in the opinion to suggest that the limitations it contained
could be inferred back to the relevant period and the opinion was not supported by Dr. Corona’s
treatment notes or by the evidence of the record as a whole during the relevant period.
The record also reflects an April 1, 2013 appointment with physiatrist Dr. Greg
Reichhardt, in which Dr. Reichhardt opined that Ms. James suffers from chronic neck pain and
arm numbness. [#10-7 at 164]. Plaintiff asserts that it is significant that Dr. Reichhardt opined
that Ms. James’ limitations began 12 years before the date of his exam and progressively
worsened; however, the record reflects that Dr. Reichhardt did not have a treating relationship
with Ms. James at any time during the relevant period, he only began treating Ms. James several
years after her date last insured, and his reporting regarding the gradual onset of Ms. James’ neck
and back problems was based solely on self-reporting by Ms. James. See, e.g., [#10-7 at 200];
see also [#10-2 at 17]. The court disagrees with Plaintiff’s assertion that the ALJ’s discounting
of Dr. Reichhardt’s opinion was an improper substitution of the ALJ’s lay opinion for the
opinion of a medical professional. To the contrary, where substantial record evidence in the
relevant timeframe contradicted Dr. Reichhardt’s opinion rendered over two years later, the ALJ
was not required to afford that opinion substantial weight. See Allen v. Colvin, No. 2:14-CV904, 2015 WL 6510601, at *7 (D. Utah Oct. 28, 2015).
The record also contains an April 5, 2012 letter from Gary Sandau, the Chief of the
Platteville/Gilcrest Fire Protection District, where Ms. James served as a volunteer fire fighter
from 1992 to 2008. [#10-6 at 111]. Chief Sandau wrote that Ms. James’ abilities began to fail in
fall of 2007 and that by 2008, her back and neck problems became more of a deterrent in her
ability to function as actively as she had in the past. [#10-6 at 111]. The ALJ considered Mr.
Sandau’s statement as evidence from “other source” which the ALJ noted that he was not
required to receive or give weight to. [#10-2 at 18]. The ALJ noted that Mr. Sandau is not
medically trained and has not seen Ms. James in any professional capacity, and that his
statements are inconsistent with the evidence of record. [#10-2 at 18].
This court concludes that the ALJ properly discounted the medical evidence post-dating
the disability eligibility period where that evidence cannot reasonably be tied to Ms. James’
medically determinable impairments as they existed during the disability eligibility period. This
court will not seek to reweigh the evidence where it finds that the ALJ applied the proper legal
standards and reached conclusions that were supported by substantial evidence; however, the
court notes that the record before it strongly suggests that while Ms. James suffered from back
and neck pain dating back to 2003, her back and neck problems and the associated pain only
worsened to the point where she persistently sought medical treatment and was unable to manage
her pain and symptoms beginning in 2012, well after the December 31, 2010 date last insured.
The court is satisfied that the ALJ applied the appropriate legal standard and that on the basis of
the medical evidence in the record, there was substantial evidence supporting his conclusion that
the record evidence does not establish that Ms. James possessed one or more severe impairments
during the relevant timeframe: June 15, 2009 through December 31, 2010. Accordingly, this
court affirms the ALJ’s determination below.
Because the court finds that the ALJ did not err in finding that none of Ms. James’
impairments were “severe,” the court will not address Plaintiff’s arguments about whether the
errors she alleges in this regard were “harmless.”
The ALJ’s Duty to Adequately Develop the Record
Plaintiff also argues that the ALJ erred by failing to adequately develop the record
because the ALJ failed to inquire into Dr. Corona and Dr. Reichhardt’s opinions and Ms. James’
testimony regarding Ms. James’ severe impairments during the relevant timeframe between the
onset of her disability onset date and her last-insured date. [#13 at 19]. This court respectfully
It is the Plaintiff’s burden to prove that she is disabled. Hawkins v. Chater, 113 F.3d
1162 (10th Cir. 1997). Nonetheless, the ALJ has a basic duty of inquiry to “fully and fairly
develop the record as to material issues.” Baca v. Dep’t of Health & Human Servs., 5 F.3d 476,
479-80 (10th Cir. 1993) (citations omitted).
This duty exists even when the claimant is
represented by counsel. Id. at 480 (citation omitted).
Plaintiff’s argument regarding the ALJ’s duty to adequately develop the record relies on
an incomplete assessment of the ALJ’s opinion regarding the record evidence. In particular,
each piece of evidence which Plaintiff argues the ALJ should have returned to and reconsidered
or further investigated was not rejected solely on the basis that it was unclear to the ALJ whether
that evidence applied to the relevant timeframe, but rather because the evidence directly
conflicted other substantial record evidence.
An ALJ’s duty to develop the record is not
unqualified. Wall v. Astrue, 561 F.3d 1048, 1063 (10th Cir. 2009). Where, as here, the ALJ is
able to assess that there are no severe impairments from the evidence in the record (in this case,
in the relevant time period), nothing further is warranted. See Rutledge v. Apfel, 230 F.3d 1172,
1175 (10th Cir. 2000) (rejecting a claimant’s argument that the ALJ should have further
developed the record regarding his pulmonary functioning where the ALJ’s conclusions were
consistent with the objective medical evidence); see also Hawkins v. Chater, 113 F.3d 1162,
1068 (10th Cir. 1997) (“The ALJ does not have to exhaust every possible line of inquiry in an
attempt to pursue every potential line of questioning. The standard is one of reasonable good
judgment. The duty to develop the record is limited to fully and fairly developing the record as to
material issues.” (quotation and citation omitted)); Glass v. Shalala, 43 F.3d 1392, 1396 (10th
Cir. 1994) (while the ALJ has a basic obligation to develop an adequate record during the
administrative hearing, the ALJ’s duty for claimants . . . which requires reversal in any matter
where the ALJ fails to exhaust every potential line of questioning”).
Plaintiff argues that the ALJ erred because he discounted Ms. James’ hearing testimony
on the basis that it reflected her current limitations, rather than the limitations that existed during
the relevant timeframe, and that the ALJ should have asked her additional questions at the
hearing to obtain testimony about her limitations during the relevant timeframe. See [#13 at 19].
The ALJ limited his hearing testimony to questions about Ms. James’ current pain and ability to
sit, stand, walk, and use her hands. See [#10-2 at 23-25]. The record does not reflect any
questions by the ALJ regarding Ms. James’ limitations as they existed in the timeframe relevant
to her claim for disability. Nonetheless, this court finds that the ALJ’s failure to develop the
record in this regard is a harmless error because the ALJ’s opinion reflects that he determined
that Ms. James’ subjective complaints regarding her limitations were not supported by the record
evidence pertaining to the relevant timeframe. The ALJ found it inconsistent that Ms. James
alleged a complete inability to work as of June 15, 2009, yet she sought a very minimal amount
of treatment during the relevant time. [#10-2 at 17]. The ALJ also found Ms. James’ subjective
complaints and alleged limitations to not be consistent with the objective examination reports
prior to and during the relevant period. [#10-2 at 17]. Accordingly, this court will not reverse
the ALJ’s opinion on the basis that he should have asked Ms. James additional questions during
the hearing regarding her limitations during the relevant timeframe.
The ALJ discounted Dr. Reichhardt’s opinion because there was no treatment
relationship between Dr. Reichhardt and Ms. James at any time during the relevant period, he did
not begin to treat Ms. James until at least three years after the relevant period, his statements
were inconsistent with the medical evidence of record during the relevant period, and his
statement that Ms. James’ symptoms and limitations began twelve years ago and progressively
worsened over time appeared to have been based only on Ms. James’ self-report. [#10-2 at 17].
While it is improper for this court to attempt to reweigh the evidence in this regard, the court
finds that the ALJ had ample basis for his conclusion that Dr. Reichhardt’s opinion should be
discounted, and there was no reason why the ALJ should have further inquired into it,
particularly where the ALJ had already found that Dr. Reichhardt’s opinion was inconsistent
with substantial record evidence from the relevant timeframe. The court finds no error regarding
the ALJ’s development of an adequate record surrounding Dr. Reichhardt’s opinion.
Plaintiff also argues that the ALJ had a duty to re-contact Dr. Corona regarding a March
2013 medical opinion which the ALJ gave little weight to because the ALJ had found Dr.
Corona’s opinions regarding Ms. James’ limitations insufficient to identify when the limitations
began. [#13 at 20]. The court respectfully disagrees with Plaintiff’s interpretation of the ALJ’s
opinion. While the ALJ acknowledged that the March 2013 opinion post-dated the relevant
period by over two years and there was no basis to suggest that the limitations it contained could
be inferred back to the relevant period, the ALJ also discounted the opinion because it was not
supported by Dr. Corona’s own treatment notes or by the evidence of record as a whole during
the relevant period. [#10-2 at 17]; see 20 C.F.R. §§ 404.1527(c)(3) (“The more a medical source
presents relevant evidence to support an opinion, particularly medical signs and laboratory
findings, the more weight we will give that opinion.”); 404.1527(c)(4) (stating an ALJ must
consider consistency). Dr. Corona’s treatment notes from before, during, and after the relevant
time period, see generally [#10-7 at 237-265], demonstrated that Plaintiff did not have a severe
impairment during the relevant time period. See, e.g., [#10-7 at 152 (generally normal physical
examination and “doing well”); #10-7 at 263 (normal physical examination)]. Where the ALJ
found that the March 2013 opinion should be discounted because of its inconsistency with Dr.
Corona’s other opinions in the record and the evidence as a whole, this court sees no error by the
ALJ in not re-contacting Dr. Corona to obtain further information about the March 2013 opinion.
There is no indication that the ALJ found the record to be inadequate to determine Ms. James’
disability, and Plaintiff has not established that such an inadequacy existed. Cf. Borgsmiller v.
Astrue, 499 F. App’x 812, 815 (10th Cir. 2012); see also 20 C.F.R. § 404.1520b.
Finally, the court is also not persuaded by Plaintiff’s argument that the ALJ should have
arranged for a consultative physical examination of Ms. James or have had a medical expert
review the complete medical record and offer an opinion as to functional capacity. “An ALJ is
obligated to order a consultative evaluation only when the medical sources on record are
insufficient to allow the ALJ to make a disability determination.” Welch v. Colvin, 566 F. App’x
691, 695 (10th Cir. 2014) (citing 20 C.F.R. § 404.1517). In reviewing the record and the ALJ’s
determination, this court concludes that the medical records during the relevant time period
between Ms. James’ claimed onset date and the date of last insured do not suggest a severe
impairment, and it is unclear a consultative evaluation performed a number of years beyond the
relevant time period could establish Plaintiff’s disability in this case.
The court is satisfied that the ALJ considered all relevant facts and that the record
contains substantial evidence from which the Commissioner could properly conclude under the
law and regulations that Ms. James was not disabled within the meaning of Title II of the Social
Security Act and therefore not eligible to receive Disability Insurance Benefits. Accordingly, IT
IS ORDERED that the Commissioner’s final decision is AFFIRMED and this civil action is
DISMISSED, with each party to bear its own fees and costs.
DATED: March 11, 2016
BY THE COURT:
s/ Nina Y. Wang__________
United States Magistrate Judge
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