McKee v. Colvin

Filing 18

ORDER AFFIRMING COMMISSIONER: By Judge Robert E. Blackburn on 3/29/16. (kfinn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-03078-REB
JULIA A. MCKEE,
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 January 14, 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 she is disabled as a result of degenerative joint disease,
osteoarthritis of the knees, and fibromyalgia. After her application for disability
insurance benefits was denied, plaintiff requested a hearing before an administrative
law judge. This hearing was held on July 10, 2013. At the time of this hearing, plaintiff
was 60 years old. She has a high school education and past relevant work experience
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.

as an office manager. She has not engaged in substantial gainful activity since January
21, 2012, her alleged date of onset.
The ALJ found plaintiff was not disabled and therefore not entitled to disability
insurance benefits. Although the evidence established that plaintiff suffered from
severe impairments, the judge concluded the severity of those impairments did not meet
or equal any impairment listed in the social security regulations.2 The ALJ found plaintiff
had the residual functional capacity to perform a reduced range of light, semi-skilled
work with significant postural and environmental restrictions and the ability to stand or
walk as needed. As this residual functional capacity was consistent with the all the
demands of plaintiff’s past relevant work, the ALJ found her not disabled at step four of
the sequential evaluation. Alternatively, the ALJ also concluded at step five that there
were other jobs existing in substantial numbers in the national and local economies
which were compatible with plaintiff’s residual functional capacity. 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 her
physical and/or mental impairments preclude her from performing both her 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

2

Other alleged impairments were found to be non-severe, a finding which plaintiff does not
challenge in this appeal.

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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 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

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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
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.

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III. LEGAL ANALYSIS
Although plaintiff presents five separate assignments of error in this appeal, all
relate to the ALJ’s decision to afford little weight to the opinion of plaintiff’s treating
source, Dr. Hollis Julson, plaintiff’s primary care physician. Dr. Julson completed two
residual functional capacity assessments on plaintiff’s behalf in December 2012, in
which he opined that plaintiff had significant physical, nonexertional, and environmental
restrictions that combined limited her to less than sedentary work. (Tr. 833-837, 838845.) The ALJ gave this opinion “little weight,” finding it unsupported by the objective
medical findings, Dr. Julson’s own treatment records, and the record as a whole. (Tr.
17.) Instead, the ALJ relied principally on the opinion of a consultative examiner, Dr.
Thurmon Hodge, in finding that plaintiff had the residual functional capacity for a limited
range of semi-skilled light work.
The opinion of a treating source is entitled to controlling weight when it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence in the case record.” 20 C.F.R. §
404.1527(c)(2); see also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). A
treating source opinion 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). Because the ALJ here articulated good reasons specifically tied to the evidence
of record for the weight he assigned Dr. Julson’s opinion, I affirm.

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It is true, as plaintiff notes, that “a finding that a treating source medical opinion is
not well-supported by medically acceptable clinical and laboratory diagnostic techniques
or is inconsistent with the other substantial evidence in the case record means only that
the opinion is not entitled to ‘controlling weight,’ not that the opinion should be rejected.”
Social Security Ruling 96-2p, 1996 WL 374188 at *4 (SSA July 2, 1996).
Nevertheless, and contrary to the tacit assumption of plaintiff’s argument, those same
considerations do not lose all relevance thereafter. To the contrary, even after the ALJ
concludes that a treating source opinion is not entitled to controlling weight, he still must
consider what weight it deserves on light of “all of the factors provided in 20 CFR
404.1527[.]” Social Security Ruling 96-2p, 1996 WL 374188 at *4. See also Langley
v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004). Among these relevant
considerations are whether the opinion is supported by medical signs and laboratory
findings, 20 C.F.R. § 404.1527(c)(3), and whether it is consistent with the record as a
whole, id. § 404.1527(c)(4). These are precisely the factors on which the ALJ here
relied.
His analysis of the evidence in support of his conclusion that Dr. Julson’s opinion
was entitled to “little weight” cannot seriously be faulted.3 Earlier in his residual
functional capacity assessment, in the context of assessing plaintiff’s credibility, the ALJ
recounted in detail the relatively mild and minimal findings of various physical

3

Contrary to plaintiff’s argument, the Tenth Circuit has not held that an ALJ’s decision to afford a
medical source opinion “little weight” necessarily constitutes an outright rejection of that source’s opinion.
That equation happened to be justified in Chapo v. Astrue, 682 F.3d 1285 (10th Cir. 2012), because the
ALJ there failed to adopt any of the medical source’s otherwise unopposed opinions. See id. at 1291.
The court created no per se rule, however. The ALJ’s use of that terminology in this case must be
evaluated based on how he actually treated Dr. Julson’s opinion.

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examinations (by both Dr. Julson and other medical providers) during plaintiff’s alleged
period of disability, the conservative nature of plaintiff’s treatment (including long
periods in which she took no medications at all to treat her allegedly disabling
impairments), and the significant physical activities in which plaintiff engaged despite
her allegedly disabling impairments. The ALJ’s analysis of this evidence was supported
by a precise citation to and accurate recitation of the record. (Tr. 15-17.) That the ALJ
did not again rehearse all this same evidence in connection with his later statement that
the record as a whole did not support Dr. Julson’s findings therefore was not mere
“boilerplate.”4 The court is able to meaningfully review the ALJ’s opinion without such
redundancy, see Wall v. Astrue, 561 F.3d 1048, 1068 (10th Cir. 2009), and the
conclusion is more than adequately supported by good cause and sufficient reasons.
Nor did the ALJ err in affording “great weight” to Dr. Hodge’s opinion. (See Tr.
816-821.) The ALJ noted that Dr. Hodge’s opinion was consistent with the record as a
whole, including imaging test results and normal examination findings. (Tr. 17.) As
noted above, the ALJ’s thorough examination of the evidence of record belies any
suggestion that this reason is simply a conclusion in the guise of a finding or mere
boilerplate. Cf. Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004).
Nor am I persuaded that the ALJ inappropriately expressed medical opinions by
his more specific references to imaging and examination results. Dr. Hodge himself
noted that plaintiff had normal range of motion with all exercises except squatting, as
4

Plaintiff’s citation to this court’s decision in Cira v. Colvin, 67 F.Supp.3d 1206 (D. Colo. 2014),
for this proposition is inapt. In that case, I took the ALJ to task for citing to lengthy exhibits within the
administrative record without providing pinpoint references to assist in my review of the decision. Id. at
1210. The ALJ here did not contravene that directive, instead, providing specific page references to each
of the exhibits he cited in support of his analysis.

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well as normal gait and strength. (See Tr. 819-820.) The ALJ reasonably could
conclude that these findings, replicated elsewhere in the treatment records, supported
the limitations Dr. Hodge endorsed. Although Dr. Hodge did not review the imaging
studies to which the ALJ alluded, it is difficult to perceive error in the commonsense
conclusion that the mild findings substantiated by these tests supported Dr. Hodge’s
opinion.5 To the extent there was any conceivable error in this regard, however, plaintiff
does not suggest how these findings might support limitations more restrictive than
those the ALJ ultimately imposed. See Bernal v. Bowen, 851 F.2d 297, 303 (10th
Cir.1988); Zagorianakos v. Colvin, 81 F.Supp.3d 1036, 1044 (D. Colo. 2015).
Plaintiff also complains that Dr. Hodge did not have adequate objective medical
evidence available at the time of his examination, and therefore that the ALJ was
obligated to recontact him for further explanation or reconsideration of his opinions.
See White v. Barnhart, 287 F.3d 903, (10th Cir. 2001). This objection is not well-taken.
Although Dr. Hodge noted that plaintiff’s evaluation was “difficult” because “most of her
symptoms depend on past medical history evaluations and none were provided” (Tr.
820), he nevertheless ultimately was able to express a comprehensive opinion as to
plaintiff’s functional abilities. Nowhere did he suggest that whatever difficulties were
presented by the lack of past records compromised his examination of plaintiff or his
ultimate conclusions as to her residual functional capacity.6
5

The ALJ discussed the findings of two imaging studies performed on plaintiff’s right shoulder
and lumbar spine in January and February 2012 (i.e., contemporaneous with her alleged date of onset).
(Tr. 15.) These showed mild degenerative joint disease of the shoulder (Tr. 657) and mild intervertebral
desiccation within the lower lumbar spine without disc herniation or neural foraminal narrowing (Tr. 923).
6

The evidence which plaintiff claims was not provided to Dr. Hodge consists of the results of a
knee MRI (Tr. 920-921), and diagnoses of cubital tunnel syndrome and humeral lateral epicondylitis (i.e.,
“tennis elbow”) (Tr. 925; see also Tr. 926-928 (results of nerve conduction studies)). Initially, I note that
the ALJ specifically found that cubital tunnel syndrome and humeral lateral epicondylitis were not severe
impairments at step two of the sequential evaluation (Tr. 13), a finding plaintiff does not challenge on

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Moreover, the ALJ himself incorporated these considerations into his ultimate
determination by finding plaintiff’s residual functional capacity more restricted than Dr.
Hodge suggested. (Tr. 17.) Thus, for example, although Dr. Hodge found no evidence
to support plaintiff’s claims of fibromyalgia (Tr. 820), the ALJ concluded that
fibromyalgia was a severe impairment (Tr. 13), recounted the evidence supporting
plaintiff’s claims of limitations associated with fibromyalgia (Tr. 16), and accounted for
the limitations imposed by that condition which were reasonably supported by the
evidence in his ultimate residual functional capacity assessment (Tr. 17).
Partly as a result of this determination, the ALJ’s residual functional capacity
assessment did not correspond directly to Dr. Hodge’s opinion. That circumstance does
not suggest error, much less compel reversal. Just as an ALJ “is not required to adopt
or rely on any medical source opinion in making [his] residual functional capacity
assessment,” Moses v. Astrue, 2012 WL 1326672 at *4 (D. Colo April 17, 2012),
neither is he obligated to include in his residual functional capacity assessment every
limitation possibly suggested by a medical source, Rex v. Colvin, 26 F.Supp.3d 1058,
1063 (D. Colo. 2014). See also Howard v. Barhart, 379 F.3d 945, 949 (10th Cir. 2004)
(this circuit has “rejected [the] argument that there must be specific, affirmative, medical
evidence on the record as to each requirement of an exertional work level before an
ALJ can determine RFC within that category”). Although the ALJ’s determination must

appeal. In any event, the mere diagnosis of an impairment does not support a finding of disability. See
Coleman v. Chater, 58 F.3d 577, 579 (10th Cir. 1995); Bernal, 851 F.2d at 301. Even in the absence of
formal diagnoses of these conditions, Dr. Hodge’s actual examination addressed the relevant inquiry –
what plaintiff was capable of doing despite her various alleged impairments, diagnosed or not. See Scull
v. Apfel, 2000 WL 1028250 at *2 (10th Cir. July 26, 2000) (“We have on a number of occasions recognized
this dispositive gap between diagnostic evidence per se and the requisite showing of consequent
impairment.”); Cooper v. Colvin, 2013 WL 4097270 at *2 (N.D. Okla. Aug. 13, 2013) (“The focus of a
disability determination is on the functional consequences of a condition, not the mere diagnosis.”).

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be grounded in some medical evidence, Rex, 26 F.Supp.3d at 1063, residual functional
capacity ultimately is an administrative determination reserved to the Commissioner, 20
C.F.R. § 404.1546; Rutledge v. Apfel, 230 F.3d 1172, 1175 (10th Cir. 2000), to be
assessed “based on all of the relevant medical and other evidence,” 20 C.F.R. §
404.1545(a)(3), “including medical records, observations of treating physicians and
others, and plaintiff's own description of [her] limitations,” Noble v. Callahan, 978
F.Supp. 980, 987 (D. Kan. 1997).7
Ultimately, although the court agrees with plaintiff that the record in this case
could be characterized as somewhat “mixed,” that recognition affords her no ground for
reversal. Conflicts in the evidence are for the ALJ to resolve. See Reyes v. Bowen,
845 F.2d 242, 245 (10th Cir. 1988); Wade v. Colvin, 26 F.Supp.3d 1073, 1082 (D. Colo.
2014). It is apparent that the ALJ fulfilled that obligation appropriately in this case. This
court is not empowered to reweigh the evidence in the manner plaintiff here requests.
See Thompson v. Sullivan, 987 F.2d at 1487; Zagorianakos, 81 F.Supp.3d at 1045.
IV. ORDERS
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is affirmed.

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For this same reason, I perceive no reversible error in the ALJ’s limitation to occasional
crouching despite Dr. Hodge’s suggestion that plaintiff could not squat. Assuming arguendo that the two
terms describe the same action, the ALJ was not required to adopt every limitation suggested by Dr.
Hodge. Although the ALJ should have explained the reason this restriction was not adopted, Social
Security Ruling 96-8p, 1996 WL 374184 at *7 (SSA July 2, 1996), plaintiff neither argues nor
demonstrates that the ultimate disability determination would have been different had such a limitation
been included in her residual functional capacity, Bernal, 851 F.2d at 303; Zagorianakos, 81 F.Supp.3d
at 1044.

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Dated March 29, 2016, at Denver, Colorado.
BY THE COURT:

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