Abeyta v. Colvin

Filing 24

ORDER by Magistrate Judge Michael E. Hegarty on 8/25/2015. The Court concludes that the ALJ engaged in proper evaluations at Steps 1 and 2, and applied the correct legal standards when evaluating the medical evidence. Therefore, the decision of the ALJ that Plaintiff Vincent Abeyta was not disabled is AFFIRMED. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03396-MEH
VINCENT G. ABEYTA,
Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of the Social Security Administration,
Defendant.

ORDER
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff, Vincent G. Abeyta, appeals from the Social Security Administration (“SSA”)
Commissioner’s final decision denying his application for disability and disability insurance benefits
(“DIB”), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and his
application for supplemental security income benefits (“SSI”), filed pursuant to Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381-1383c. Jurisdiction is proper under 42 U.S.C. § 405(g). The
parties have not requested oral argument, and the Court finds it would not materially assist the Court
in its determination of this appeal. After consideration of the parties’ briefs and the administrative
record, the Court affirms the ALJ’s decision and Commissioner’s final order.
BACKGROUND
I.

Procedural History
Plaintiff seeks judicial review of the Commissioner’s decision denying his applications for

DIB and SSI benefits filed on December 8, 2010 and November 18, 2010, respectively. [AR 38-41,
639-655]

After the applications were initially denied on May 24, 2011 [AR 29-31], an

Administrative Law Judge (“ALJ”) scheduled a hearing upon the Plaintiff’s request for April 19,
2012 [AR 76-81]. Plaintiff and a vocational expert testified at the hearing. [AR 451-478] The ALJ
issued a written ruling on May 21, 2012 finding Plaintiff was not disabled since November 1, 2009,
because considering Plaintiff’s age, education, work experience and residual functional capacity,
there were jobs existing in significant numbers in the national economy that Plaintiff could perform.
[AR 14-31] The SSA Appeals Council subsequently denied Plaintiff’s administrative request for
review of the ALJ’s determination, making the SSA Commissioner’s denial final for the purpose of
judicial review [AR 5-8]. See 20 C.F.R. § 416.1481.
Plaintiff filed a complaint in this district in Civil Action No. 13-cv-1659-JLK on June 15,
2013; however, on March 21, 2014, Judge Kane granted the Commissioner’s motion to remand the
matter to the SSA. Thereafter, the Appeals Council vacated the ALJ’s decision and remanded the
matter to the ALJ to hold a hearing regarding the following: (1) consider both the Title II and Title
XVI applications; (2) utilize the “special technique” in analyzing Plaintiff’s mental impairments;
and (3) further consider the severity of Plaintiff’s glaucoma and hearing loss. [AR 531-532] The ALJ
scheduled the second hearing for November 12, 2014. [AR 551-556] Plaintiff and a vocational
expert testified at the hearing. [AR 681-714] The ALJ issued a written ruling on November 21, 2014
finding again the Plaintiff was not disabled since November 1, 2009, because considering Plaintiff’s
age, education, work experience and residual functional capacity, there were jobs existing in
significant numbers in the national economy that Plaintiff could perform. [AR 479-494] Plaintiff
2

timely filed his complaint with this Court seeking review of the ALJ/Commissioner’s final decision.
II.

Plaintiff’s Alleged Conditions
Plaintiff was born on March 14, 1968; he was 42 years old when he filed his applications for

DIB and SSI benefits in November and December 2010. [AR 209-224] Plaintiff claims he became
disabled on November 1, 2009 and reported that he was limited in his ability to work by “injury to
both legs, head injury, right foot injury, hearing loss in right ear, glaucoma, depression, and back
injury.” [AR 495]
With respect to his hearing loss, Plaintiff noticed it suddenly on August 25, 2004 while
working on constructing a roof. [AR 202] Charlene Hickson, M.D. examined and tested the Plaintiff
annually in 2004 and 2005, and assessed him with “asymmetric sensorineural hearing loss, etiology
most consistent with a viral syndrome.” [AR 200-203] Julie Newberg, M.D. then examined
Plaintiff in 2008 and noted his MRI tests were “normal” and prescribed ten days of prednisone. [AR
198-199] The hearing loss in Plaintiff’s right ear improved “slightly.” [Id.]
Although mostly illegible, medical records from 2008 indicate James Fowler M.D. of Abba
Eye Care “suspected” Plaintiff had glaucoma and referred him to a specialist. [AR 206-210]
Thereafter, on May 3, 2011, Eric Blom M.D. of Rocky Mountain Eye Center examined and tested
Plaintiff and found he had “end stage glaucoma, retinal disorder, nos, and myopia,” and
characterized the glaucoma as “vision threatening.” [AR 402-406] Plaintiff reported to Dr. Blom
that he was “unable to afford drops or exams” and the doctor responded, “without treatment
[Plaintiff] understands this condition will inevitably progress to blindness.” [AR 409]
The first medical record concerning Plaintiff’s leg pain is dated December 15, 2009 when
3

he presented to the Parkview Emergency Department for “acute exacerbation of chronic leg pain”;
Plaintiff was prescribed Percocet and Motrin for pain and released. [AR 234-235] On July 8, 2010,
another health care provider reported the Plaintiff “states that he has recovered from [a right broken
leg, dislocated shoulder and facial fractures from 2001 accident] with the exception of right lower
extremity weakness compared to the left, as well as the right lower extremity falling asleep if he sits
too long.” [AR 317] X-rays of the Plaintiff’s right knee, right tibia and fibula on July 12, 2013
reveal only “postsurgical findings” and “no acute disease.” [AR 611, 615]
Plaintiff first injured his back on July 5, 2010 when he attempted to lift and open the main
gate at his place of employment. [AR 326-327] The workers’ compensation physician, J. Douglas
Bradley, M.D. assessed Plaintiff with myofacial strains in the lumbar and cervical areas of his back
and in his right shoulder, and prescribed pain medications and physical therapy for two weeks. [Id.]
By July 13, 2010, the shoulder and cervical strains resolved [AR 312], and his back pain slowly
improved, then stabilized by September 17, 2010 [AR 248-249]. A functional capacity evaluation
on September 9, 2010 showed a 7% loss of motion impairment and a 12% whole person impairment;
Dr. Bradley found Plaintiff could lift and carry no more than 20 pounds. [AR 244-245]
Plaintiff presented to Thurman Hodge, D.O. for a consultative physical examination on April
27, 2011. [AR 393-398] After a thorough examination, Dr. Hodge found Plaintiff could sit, stand
and walk for eight hours in an 8-hour workday, perform other postural actions, and lift and carry 40
pounds. [AR 397]
Plaintiff injured his back again on July 11, 2013 when he tripped over a hose and fell at
work. [AR 619] Dr. Bradley referred Plaintiff for eight chiropractic treatments starting August 8,
4

2013; Plaintiff improved only “slightly” to a pain scale of 6 out of 10, and the physician found
“further chiro care is unlikely to provide any additional benefit.” [AR 619-622] On September 10,
2013, Dr. Bradley ordered an MRI of Plaintiff’s lumbar spine; the radiologist found Plaintiff had
“L5-S1 disc desiccation, disc space narrowing, shallow left-sided disc herniation and disc bulging
with slight displacement of the left S1 nerve.” [AR 616] Dr. Bradley then referred Plaintiff to a
musculoskeletal specialist, who assessed Plaintiff with “bilateral sacroiliitis, chronic L4-5 right
sensory motor disturbance, and L5/S1 left herniated nucleus pulposus,” and ordered bilateral
sacroiliac injections, then physical therapy. [AR 608-610]
Plaintiff’s depression is first mentioned in the record in July 2009 when he started counseling
at the Southern Colorado Family Medical Center. [AR 212-219] He was referred to Spanish Peaks
Mental Health Center by the Pueblo County Department of Social Services (DSS) on February 3,
2010 for treatment with “hopes of regaining custody of his [15-year-old] daughter.” [AR 379] NP
Veronical Sandoval at SPMHC conducted a “psychiatric evaluation” on March 12, 2010, diagnosed
Plaintiff with depressive disorder, nos, and assessed a Global Assessment of Functioning (GAF)
score of 68.1 [AR 427-428; 435] He continued therapy and treatment with SPMHC through August
1

In Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 n.1 (10th Cir. 2012), the Tenth Circuit
describes the GAF as follows:
The GAF is a 100-point scale divided into ten numerical ranges, which permits clinicians to
assign a single ranged score to a person’s psychological, social, and occupational functioning.
See American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32, 34
(Text Revision 4th ed. 2000). GAF scores are situated along the following “hypothetical
continuum of mental health [and] illness”:
• 91–100: “Superior functioning in a wide range of activities, life’s problems never seem to get
out of hand, is sought out by others because of his or her many positive qualities. No symptoms.”
• 81–90: “Absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in
all areas, interested and involved in a wide range of activities, socially effective, generally
5

18, 2011 at which time his diagnosis was updated to “depressive disorder, nos, parent/child
relational problem, partner relational problem, cannabis abuse, alcohol abuse, and anxiety disorder,
nos” and a GAF score of 65. [AR 419-420] The reason given for discharge was: “Vincent’s
progress was plodding, he was not completing his homework, was argumentative toward his case
worker and would not follow through with his therapy sessions and was either not showing up or

satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument
with family members).”
• 71–80: “If symptoms are present, they are transient and expectable reactions to psychosocial
stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in
social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).”
• 61–70: “Some mild symptoms (e.g., depressed mood and mild insomnia), OR some difficulty
in social, occupational, or school functioning (e.g., occasional truancy, or theft within the
household), but generally functioning pretty well, has some meaningful interpersonal
relationships.”
• 51–60: “Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).”
• 41–50: “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).”
• 31–40: “Some impairment in reality testing or communication (e.g., speech is at times illogical,
obscure, or irrelevant) OR major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and
is unable to work; child beats up younger children, is defiant at home, and is failing at school).”
• 21–30: “Behavior is considerably influenced by delusions or hallucinations OR serious
impairment in communication or judgment (e.g., sometimes incoherent, acts grossly
inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in
bed all day; no job, home, or friends).”
• 11–20: “Some danger of hurting self or others (e.g., suicide attempts without clear expectation
of death; frequently violent; manic excitement) OR occasionally fails to maintain minimal
personal hygiene (e.g., smears feces) OR gross impairment in communication (e.g., largely
incoherent or mute).”
• 1–10: “Persistent danger of severely hurting self or others (e.g., recurrent violence) OR
persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear
expectation of death.”
• 0: “Inadequate information.”
6

rescheduling several of his appointments.” [AR 419]
Meanwhile, Plaintiff presented to Brett Vallette, PhD, for a consultative psychological
examination on March 30, 2011. [AR 389-392] Dr. Vallette diagnosed Plaintiff with “major
depression, alcohol abuse, and rule out nonspecific cognitive disorder,” and assessed a GAF score
of 45-50. [AR 391]
As a result of Plaintiff’s July 11, 2013 back injury, Dr. Bradley referred Plaintiff to James
Evans, PhD, on September 13, 2013 for “psychological evaluation and treatment.” [AR 635]. That
day, Dr. Evans assessed Plaintiff with severe depression, but by September 18, 2013, Dr. Evans
noted Plaintiff was “less depressed” and assessed him with “intractable pain, reactive depression,
fear and anxiety.” [AR 634-636] Dr. Evans noted on October 2, 2013 that Plaintiff was working
“40+ hours per week” [AR 633], but on October 16, 2013, Plaintiff reported that he had been laid
off for inability to accommodate his restrictions [AR 632]. According to the record, Dr. Evans
treated Plaintiff through November 20, 2013 under the same diagnosis. [AR 628]
III.

Hearing Testimony
At the hearing on April 19, 2012, the Plaintiff, his counsel, and vocational expert Dennis

Duffin appeared. [AR 451-478] The Plaintiff testified that the impairments most limiting his ability
to work were his “right leg,” his hearing loss, his memory loss, and his glaucoma; he worked as a
“car detailer” only three hours per week due to his employer’s limitations based on his physical
health; he stated he could work more than three hours based on his physical limitations in an office
job, but he could not perform an office job because of stress and anxiety attacks; he was getting food
stamps and donated plasma twice a week to pay expenses; he drank only occasionally and had not
7

used marijuana since high school; he had his physical and mental impairments before November 1,
2009, but they got worse after his work injury in July 2010; he could sit for 20 minutes, stand for
30 minutes, could walk a block and rest for a total of two hours, and could lift and carry 20 pounds;
he pushed the cart at the grocery store for 30-45 minutes while his wife loaded the cart; he had
trouble hearing in crowded, public places, but could hear in quiet places; and his vision was blurry
both at distance and close up, but he could drive during the day.2 [AR 454-474]
At the second hearing on November 12, 2014, the Plaintiff, his counsel, and vocational
expert Dennis Duffin appeared. [AR 681-714] The Plaintiff testified only as to the “changes” he
had experienced since the last hearing: his vision had gotten “more blurry” in seeing up close;
depression had gotten worse since he stopped working in 2013; he spent a lot of time alone and felt
sad more often; his back and leg pain were two separate problems; he had leg pain for 13 years and
the back pain started in 2008 when he began detailing cars; because of back pain, he could not sit,
stand or lie down for long periods; slept “when pain allows”; he could not lift more than 10 pounds
due to increased pain; he had “drop foot” in his right foot, which then caused stumbling/tripping and
pain in his left leg; he was wearing a splint on his left wrist from a recent “assault”; a test revealed
he could hear nothing in his right ear; before stopping work in 2013, he worked six hours per day,
but injured his back tripping over a hose; he tried to go back to work, but pain made it too difficult;
the employer told him that if he could not work the necessary six hours, they would have to find
someone else; he could no longer sit for 20 minutes or stand for 30 minutes; he was “always up and
2

Because the Appeals Council vacated the ALJ’s May 21, 2012 decision, which was
based in part on the vocational expert’s testimony at the April 19, 2012 hearing, the Court will
consider neither the expert’s testimony nor the decision from 2012.
8

down” to relieve the back pain; his pain and moving around caused him to lose concentration and
focus; and his depression got worse after an incident involving his daughter six years previously.
[AR 684-707]
Mr. Duffin testified that an individual with Plaintiff’s age, experience and education –
limited to an exertional level and full range of sedentary, non-exertional limitations; occasional
squat, kneel, and crawl; no ladders or scaffolds; no foot or leg controls; frequent but not constant
acute visual acuity, and no complex tasks defined as SVP 2 or less – could perform the jobs of
document preparer or scanner, call-out operator, and lens block gager. [AR 708-710] He also
testified that Plaintiff could perform the job of surveillance system monitor. [AR 710] He affirmed
that the jobs could be performed sitting or standing. [AR 712-713] Finally, Mr. Duffin stated that
leaving work early by 90 minutes three times per week and unscheduled 15-minute breaks every day
would not be acceptable at most competitive jobs. [711-712]
The ALJ issued an unfavorable decision on November 21, 2014. [AR 479-494]
LEGAL STANDARDS
I.

SSA’s Five-Step Process for Determining Disability
Here, the Court will review the ALJ’s application of the five-step sequential evaluation

process used to determine whether an adult claimant is “disabled” under Title II and Title XVI of
the Social Security Act, which is generally defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137,
9

140 (1987).
Step One determines whether the claimant is presently engaged in substantial gainful
activity. If he is, disability benefits are denied. See 20 C.F.R. §§ 404.1520, 416.920. Step Two is
a determination of whether the claimant has a medically severe impairment or combination of
impairments as governed by 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant is unable to show
that his impairment(s) would have more than a minimal effect on his ability to do basic work
activities, he is not eligible for disability benefits. See 20 C.F.R. 404.1520(c). Step Three
determines whether the impairment is equivalent to one of a number of listed impairments deemed
to be so severe as to preclude substantial gainful employment. See 20 C.F.R. §§ 404.1520(d),
416.920(d). If the impairment is not listed, he is not presumed to be conclusively disabled. Step
Four then requires the claimant to show that his impairment(s) and assessed residual functional
capacity (“RFC”) prevent him from performing work that he has performed in the past. If the
claimant is able to perform his previous work, the claimant is not disabled. See 20 C.F.R. §§
404.1520(e), (f), 416.920(e) & (f). Finally, if the claimant establishes a prima facie case of
disability based on the four steps as discussed, the analysis proceeds to Step Five where the SSA
Commissioner has the burden to demonstrate that the claimant has the RFC to perform other work
in the national economy in view of his age, education and work experience. See 20 C.F.R. §§
404.1520(g), 416.920(g).

II.

Standard of Review
This Court’s review is limited to whether the final decision is supported by substantial
10

evidence in the record as a whole and whether the correct legal standards were applied. See
Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003); see also White v. Barnhart, 287 F.3d
903, 905 (10th Cir. 2001). Thus, the function of the Court’s review is “to determine whether the
findings of fact ... are based upon substantial evidence and inferences reasonably drawn therefrom.
If they are so supported, they are conclusive upon the reviewing court and may not be disturbed.”
Trujillo v. Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970); see also Bradley v. Califano, 573 F.2d
28, 31 (10th Cir. 1978).

“Substantial evidence is more than a scintilla, but less than a

preponderance; it is such evidence that a reasonable mind might accept to support the conclusion.”
Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing Richardson v. Perales, 402 U.S.
389, 401 (1971)). The Court may not re-weigh the evidence nor substitute its judgment for that of
the ALJ. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (citing Casias v. Secretary of
Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)). However, reversal may be
appropriate when the ALJ either applies an incorrect legal standard or fails to demonstrate reliance
on the correct legal standards. See Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
ALJ’s RULING
The ALJ ruled that Plaintiff engaged in substantial gainful activity from January 1, 2013
through June 30, 2013, but there had been a continuous 12-month period during which the Plaintiff
did not engage in substantial gainful activity (Step One). [AR 485] Further, the ALJ determined
that Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine;
glaucoma; history of fractures of the right lower extremity, status post internal fixation; and major
depressive disorder (Step Two). [AR 485] The ALJ found Plaintiff’s hearing loss to be “not severe,”
11

saying “[h]is examining and treating physicians have noted no significant difficulties talking with
and understanding the claimant in normal conditions.” [AR 486] Next, the ALJ found that Plaintiff
did not have an impairment or combination of impairments that met or medically equaled a listed
impairment deemed to be so severe as to preclude substantial gainful employment (Step Three).
[Id.]
The ALJ then determined that Plaintiff had the RFC to perform “sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a) except the claimant can occasionally squat, kneel, and crawl;
cannot climb ladders or scaffolds; cannot operate foot or leg controls; can perform frequent, but not
constant, visual acuity, and cannot perform complex tasks, such that he is limited to work with an
SVP of 2 or less.” [AR 487-488] The ALJ determined that the record reflects Plaintiff’s “medically
determinable impairments could reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible.” [AR 488]
The ALJ went on to determine that Plaintiff had no past relevant work (Step Four), and that
considering Plaintiff’s age, education, work experience and residual functional capacity, Plaintiff
could perform jobs existing in significant numbers in the national economy (Step 5). [AR 493-494]
As a result, the ALJ concluded that Plaintiff was not disabled at Step Five of the sequential process
and, therefore, was not under a disability as defined by the SSA. [AR 494]
ISSUES ON APPEAL
On appeal, Plaintiff alleges the following errors: (1) the ALJ failed to address the Plaintiff’s
severe auditory impairment; (2) the ALJ failed to apply the correct legal standard when evaluating
12

the medical evidence; and (3) the ALJ’s evaluation of Plaintiff’s 2013 earnings was based on a
wrong legal standard and not supported by substantial evidence.
ANALYSIS
The Court will address each of Plaintiff’s issues in turn.
I.

Whether ALJ Erred in Finding Plaintiff’s Hearing Loss “Not Severe” at Step 2
Plaintiff contends that the ALJ erred in failing to list his hearing loss as a severe medical

impairment at Step 2 and in “fail[ing] to even mention [Plaintiff’s] hearing impairment in his most
recent decision.” Opening Brief, docket #14 at 18. Plaintiff asserts that one of the issues on which
the case was remanded was further consideration and evaluation of the Plaintiff’s impairments at
Step 2, including hearing loss, but the ALJ failed in this respect. Defendant counters that it matters
not whether the ALJ considered the impairment at Step 2 because he proceeded and considered
Plaintiff’s hearing loss when fashioning the RFC.
Pursuant to 20 C.F.R. § 404.1520(a)(4)(ii), at the second step of the sequential evaluation
process, an ALJ is required to determine whether a medically determinable impairment may be
classified as severe and whether such impairment meets the duration requirement of 42 U.S.C. §
423(d)(1)(A), which provides:
(1) The term “disability” means-(A) inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
12 months.
“A physical or mental impairment must be established by medical evidence consisting of

13

signs, symptoms, and laboratory findings, not only by [the claimant’s] statement of symptoms.” 20
C.F.R. § 404.1508. Section 404.1508 provides that a claimant’s “impairment must result from
anatomical, physiological, or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques.” More specifically, “symptoms” are the
claimant’s description of his/her own physical or mental impairments; “signs” are anatomical,
physiological, or psychological abnormalities that can be observed apart from symptom descriptions
and must be shown by medically acceptable clinical diagnostic techniques; and “laboratory findings”
are anatomical, physiological or psychological phenomena that can be shown by use of medically
acceptable laboratory diagnostic techniques. 20 C.F.R. § 404.1528.
An ALJ’s omission of an impairment altogether could be reversible error. “It is beyond
dispute that an ALJ is required to consider all of the claimant’s medically determinable impairments,
singly and in combination; the statute and regulations require nothing less. ... Further, the failure to
consider all of the impairments is reversible error.” Salazar v. Barnhart, 468 F.3d 615, 621 (10th
Cir. 2006) (citations omitted); see also Wells v. Colvin, 727 F.3d 1061, 1069 (10th Cir. 2013) (citing
20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2)) (“In his RFC assessment, the ALJ must consider the
combined effect of all medically determinable impairments, whether severe or not.”) (emphasis in
original).
In this case, the ALJ did not omit consideration of the Plaintiff’s hearing loss altogether;
rather, he acknowledged Plaintiff’s hearing loss at Step 2 and determined it to be “not severe.” [AR
486] Defendant cites the Tenth Circuit’s opinion in Carpenter v. Astrue for the proposition that,
even if the ALJ errs in finding an impairment not to be severe at Step 2, such error is harmless if the
14

ALJ proceeds to the remaining steps of the evaluation and considers both severe and non-severe
impairments in fashioning the RFC. The Court agrees. “An error at step two of the sequential
evaluation concerning one impairment is usually harmless when the ALJ, as occurred here, finds
another impairment is severe and proceeds to the remaining steps of the evaluation.” Grotendorst
v. Astrue, 370 F. App’x 879, 883 (10th Cir. 2010) (citing Carpenter v. Astrue, 537 F.3d 1264, 1266
(10th Cir. 2008)). In addition, the Court agrees that the ALJ here properly considered the Plaintiff’s
hearing loss during required steps of the evaluation and in formulating the RFC. The ALJ noted
Plaintiff’s testimony that “he cannot hear in his right ear.” [AR 488] Moreover, during the hearing,
the Plaintiff never indicated any trouble hearing proceedings and there is nothing in the medical
record indicating problems between the Plaintiff and his health care providers in communicating
because of Plaintiff’s hearing loss. Notably, the Plaintiff does not argue that the RFC is deficient
and/or should contain identified limitations due to his hearing loss.
Accordingly, the Court finds that any error by the ALJ in finding Plaintiff’s hearing loss “not
severe” at Step 2 was harmless. The Court affirms the ALJ’s decision on this issue.
II.

Whether ALJ Failed to Apply Correct Legal Standard in Evaluating Medical Evidence
Plaintiff contends the ALJ improperly accorded “moderate” weight to nearly all of the

medical opinions and failed to apply the six factors necessary to consider each opinion; as such, the
Plaintiff argues the ALJ’s decision is impossible to review, particularly his findings regarding Dr.
Hayes and Dr. Frommelt. Defendant counters that the ALJ “drew a reasonable path between the
conflicting physician opinions when determining Plaintiff’s residual functional capacity,” and
properly considered and incorporated Dr. Hayes’ and Dr. Frommelt’s opinions into the RFC.
15

An ALJ must consider the following factors in determining how to evaluate medical opinions
in the record: length of the treating relationship, frequency of examination, nature and extent of the
treating relationship, evidentiary support, consistency with the record, medical specialization, and
other relevant considerations. Sedlak v. Colvin, No. 11-cv-01247-PAB, 2014 WL 717914, at *10
(D. Colo. Feb. 24, 2014) (citing 20 C.F.R. § 416.927(c)(2)). “An ALJ may dismiss or discount an
opinion from a medical source only if his [or her] decision to do so is ‘based on an evaluation of all
of the factors set out in the cited regulations’ and if he [or she] provides ‘specific, legitimate reasons’
for [the] rejection.” Id. (quoting Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012)).
“However, an ALJ need not ‘apply expressly each of the six relevant factors in deciding what weight
to give a medical opinion,’ so long as he provides ‘good reasons in his decision’ for the weight
accorded to each opinion.” Thielemier v. Colvin, No. 12-cv-03178-PAB, 2014 WL 1292885, at *3
(D. Colo. Mar. 31, 2014) (quoting Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)). In
addition, “[a]n ALJ’s rejection of a medical opinion based on an incorrect reading of the record is
grounds for remand.” Sedlak, 2014 WL 717914, at *10 (citing Mercer v. Colvin, No. 12-CV-35FHM, 2013 WL 785358, at *2 (N.D. Okla. Mar. 1, 2013)).
The ALJ found the following regarding the opinion of Harrison Hayes, M.D., an
ophthalmologist:
On May 13, 2011, Harrison Hayes, M.D. reviewed the file and opined that the
claimant should avoid hazardous work or d[r]iving due to his visual impairment. The
undersigned gives this opinion moderate weight. The opinion was rendered after a
thorough review of the medical file. The opinion is not entirely consistent with the
claimant’s admitted activities of daily living, as the claimant testified that he can see
well enough to drive. Therefore, limitations on driving are not supported by the
record. Furthermore, the limitation on working in hazardous areas is somewhat
16

vague, but the undersigned has incorporated limits on working on ladders and
scaffolds to account for some dangerous work situations. However, the claimant is
able to see well enough to avoid hazards such as moving machinery. Therefore, the
undersigned gives this opinion moderate weight.
[AR 491 (citations omitted)] Dr. Hayes found Plaintiff’s field of vision “limited” in that the “visual
fields are constricted bilaterally.” [AR 509] The narrative portion of Dr. Hayes’ opinion states, “No
driving. No work with dangerous machinery,” and under “Hazards (machinery, heights, etc.),” the
doctor noted “avoid concentrated exposure.” [Id.] The Court finds the ALJ gave good reasons for
assigning moderate weight to Dr. Hayes’ opinion – that is, the ALJ accepted the portion that was
consistent with the record (due to Plaintiff’s limited field of vision, the ALJ imposed limitations
from climbing ladders and scaffolds) and rejected the portion that was inconsistent (Plaintiff testified
during the hearing that he could see well enough to drive during the day). Accordingly, the ALJ
applied the correct legal standard to this opinion.
Likewise, the ALJ properly considered the opinion of Gayle Frommelt, PhD:
On May 17, 2011, State agency psychologist Gayle Frommelt, PhD, reviewed the
file and opined that the claimant could perform work that could be learned in up to
3 months’ time. This opinion is given moderate weight. It was rendered after a
thorough review of the record, and is consistent with the record as it existed at the
time of Dr. Frommelt’s review. Furthermore, State agency medical and
psychological consultants are highly qualified physicians and psychologists who are
experts in the evaluation of medical issues in disability claims under the Act.
However, more recent evidence persuades the undersigned that the claimant is more
limited than opined to by Dr. Frommelt, and therefore, the undersigned gives this
opinion only moderate weight.
[AR 492 (citations omitted)] Plaintiff contends the ALJ did not properly consider Dr. Frommelt’s
findings that Plaintiff was moderately limited in “get[ting] along with coworkers and peers” and
“respond[ing] appropriately to changes in the work setting.” Opening Brief, docket #14 at 21.
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However, Dr. Frommelt also found Plaintiff “can manage [on-the-job] social interactions” and was
“likely to do better with routin[e] tasks.” [AR 513] During the hearing, the vocational expert testified
the jobs that could be performed under the ALJ’s hypothetical RFC included “simple” tasks: “[o]nce
trained, they don’t need a whole lot of instructions after that.” [AR 710-711] Thus, the Court
concludes the record supports the ALJ’s finding that Dr. Frommelt’s opinion should be accorded
moderate weight – the ALJ accepted the portion that was supported by the record (Plaintiff is limited
to routine, simple tasks) and rejected the portion not supported by the record (Plaintiff is limited to
an SVP of 2, which means the Plaintiff can perform jobs requiring only a short demonstration to
learn the position, up to one month, as opposed to the three months found by Dr. Frommelt).
In sum, the Court finds the ALJ properly weighed the medical evidence by giving good
reasons for the weight he accorded the physician’s opinions. See Oldham, 509 F.3d at 1258.
III.

Whether ALJ Based Evaluation of Plaintiff’s 2013 Earnings on Wrong Legal Standard
Plaintiff contends that the ALJ should have found the Plaintiff’s work in the first and second

quarters of 2013 was an “unsuccessful work attempt” rather than “substantial gainful activity” at
Step 1 of the evaluation. He concedes, “the ALJ correctly found that [Plaintiff’s] earnings for both
quarters [in 2013] averaged out to over substantial gainful activity (SGA) for each month.” Opening
Brief, docket #14 at 22.
Under the applicable regulation, the SSA instructs claimants that an unsuccessful work
attempt occurs if “after working for a period of 6 months or less, your impairment forced you to stop
working or to reduce the amount of work you do so that your earnings from such work fall below
the substantial gainful activity earnings level in paragraph (b)(2) of this section, and you meet the
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conditions described in paragraphs (c)(2), (3), (4), and (5), of this section.

20 C.F.R. §

404.1574(c)(1). Specific to these circumstances, paragraph (c)(2) provides “We will consider your
prior work to be ‘discontinued’ for a significant period if you were out of work at least 30
consecutive days. ... [or] if, because of your impairment, you were forced to change to another type
of work or another employer.” In addition, paragraph (c)(4) provides:
If you worked between 3 and 6 months. We will consider work that lasted longer
than 3 months to be an unsuccessful work attempt if it ended, or was reduced below
substantial gainful activity earnings level, within 6 months because of your
impairment or because of the removal of special conditions which took into account
your impairment and permitted you to work and –
(i) You were frequently absent from work because of your impairment;
(ii) Your work was unsatisfactory because of your impairment;
(iii) You worked during a period of temporary remission of your impairment; or
(iv) You worked under special conditions that were essential to your performance
and these conditions were removed.
20 C.F.R. § 404.1574(c)(4). Importantly, Plaintiff mentions nothing about whether he was out of
work for 30 days, assigned to another type of work, or experienced any of the other situations
mentioned in paragraph (c)(4) within the six-month time period.
Nevertheless, the ALJ determined there was subsequently “a continuous 12-month period
during which the claimant did not engage in substantial gainful activity” and proceeded to evaluate
whether Plaintiff was disabled; because the Court has concluded the ALJ properly determined the
Plaintiff was not disabled at Step 5, Plaintiff’s argument challenging the ALJ’s Step 1 finding here
would be rendered moot.

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CONCLUSION
In sum, the Court concludes that the ALJ engaged in proper evaluations at Steps 1 and 2, and
applied the correct legal standards when evaluating the medical evidence. Therefore, the decision
of the ALJ that Plaintiff Vincent Abeyta was not disabled is AFFIRMED.
Dated at Denver, Colorado this 25th day of August, 2015.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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