Welch v. Colvin

Filing 16

ORDER Affirming Denial of Social Security Disability Benefits, by Judge Christine M. Arguello on 1/11/2016. (vbarn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 15-cv-00517-CMA
SCOTT AARON WELCH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commission of Social Security,
Defendant.
ORDER AFFIRMING DENIAL OF SOCIAL SECURITY DISABILITY BENEFITS
This matter is before the Court on review of the Commissioner’s decision denying
Plaintiff Scott Aaron Welch’s (“Plaintiff”) application for disability benefits. Jurisdiction is
proper under 42 U.S.C. § 405(g).
Plaintiff raises two issues in his opening brief: (1) the administrative law judge
(“ALJ”) failed at step three of the sequential evaluation process to properly evaluate
Plaintiff’s mental impairments and whether these impairments meet or medically equal a
listing of impairment; and (2) the ALJ’s analysis is deficient because she failed to
evaluate the medical evidence and medical source opinions as required by 20 C.F.R. §
404.1527.
For the reasons set forth below, the Court affirms the decision of the
Commissioner to deny Plaintiff’s application for disability benefits.

I. BACKGROUND
Plaintiff, born on July 2, 1983, served in the United States military from June 5,
2002, through October 3, 2007. (AR at 109.)1 While in the military, Plaintiff was a crew
member on a Bradley fighting vehicle for two tours in Iraq. (AR at 132.) Plaintiff
received an honorable discharge from the military because he was the sole care
provider for his son. (AR at 46.) From October 2007 to December 2008, Plaintiff
worked on a manufacturing line that produced semiconductors. (AR at 138.) From
January 2008 to June 2010, Plaintiff worked as a facilities coordinator for a military
contractor. (AR at 132.) From January 2011 to February 2011, Plaintiff worked as a
“sign waiver” for a tax company. (AR at 132.) In August 2011, Plaintiff worked as a
landscaper. (AR at 138.)
On August 27, 2012, Plaintiff filed an application for disability benefits under Title
II and Part A of Title XVIII of the Social Security Act. (AR at 109-115.) Plaintiff alleges
a disabling condition onset date of August 31, 2011. (AR at 109.) In his application for
disability benefits, Plaintiff alleges the following physical and mental conditions that limit
his ability to work: post-traumatic stress disorder (“PTSD”), “spine strain,” “knee pain
syndrome,” and “[ ]shoulder da[ma]ge.” (AR at 131.) Plaintiff stated in his application
that he was “too busted up to work and support his family” and that, “due to [his] mental
disorders and the traumas in [his] life, [he] find[s] it almost impossible to get along with
. . . few people besides [his] family.” (AR at 149.) Plaintiff also stated that “[d]ue to the
Army[,] [his] bones and joints hurt” and that “[be]cause [he is] a vet who saw war and
1

The Court refers and cites to the Administrative Record in this matter, located at Doc.
# 7, as “AR.”
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[he is] too loud, people are afraid of him,” which “makes for being in the work
environment and around coworkers difficult.” (AR at 149.) Plaintiff also stated that he
has “worked a lot and [he is] tired but still ha[s] a family to raise” and that he
experiences stress because he “can’t work and make money.” (AR at 149.)
On March 13, 2013, Plaintiff’s application was denied (AR at 68-80), and on April
18, 2013, Plaintiff requested a hearing before an ALJ (AR at 84-85). On March 25,
2014, Plaintiff, without the assistance of counsel, appeared before Administrative Law
Judge Debra Boudreau. (AR at 36-63.) An impartial vocational expert, Nora W. Dunne,
also appeared at the hearing. (AR at 57-59.)
At the hearing, Plaintiff provided the ALJ with the following information. Plaintiff
had been on medication since 2011 and, at the time of the hearing, was taking
Depakote for his bipolar disorder and Zoloft for his PTSD-related anxiety. (AR at 53.)
However, Plaintiff “started self-medicating with medical marijuana” while his doctors
were initially “trying to get all [of his] medications straightened out.” (AR at 53.) Plaintiff
was also consuming alcohol. (AR at 53.) In November 2012, Plaintiff was involved in a
motorcycle accident because he was intoxicated. (AR at 43.) Plaintiff was married on
January 16, 2013. (AR at 42.) On December 31, 2013, Plaintiff was involved in a
domestic violence incident with his wife because of alcohol, but he has been “clean and
sober” since January 1, 2014. (AR at 49.) Plaintiff stated that he hoped to get
“balanced out” in the future (AR at 47), and he completed a bachelor’s degree in project
management at Colorado Technical University, turning in his final paper the day before
his hearing. (AR at 44.) Instead of “lining up any type of employment,” he planned on

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first completing a seven-week inpatient program at the VA hospital in Denver. (AR at
44-45.) Plaintiff stated that he did not think he could work for a company or corporation
because he “can’t fire people or anything like that,” but that he “really would like to take
[his] skills and work with the VA and help vets.” (AR at 52.)
On May 22, 2014, the ALJ issued a written decision in which she concluded that
Plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act.
(AR at 21-32.) On June 17, 2014, Plaintiff requested that the Appeals Council review
the ALJ’s decision. (AR at 20.) On January 28, 2015, the Appeals Council denied
Plaintiff’s request for review. (AR at 1-3.) Thus, the ALJ's decision stands as the Social
Security Administration's final decision for purposes of appeal. See Blea v.
Barnhart, 466 F.3d 903, 908 (10th Cir. 2006). Plaintiff filed the current action on March
12, 2015. (Doc. # 1.)
II. STANDARD OF REVIEW
When reviewing the Commissioner’s decision, the Court is limited to determining
“whether the findings are supported by substantial evidence and whether the Secretary
applied the correct legal standards.” Pacheco v. Sullivan, 931 F.2d 695, 696 (10th Cir.
1991); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
The Supreme Court has defined “substantial evidence” as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Consol. Edison
Co. of N.Y. v. NLRB, 305 U.S. 197, 217 (1938). “Substantial evidence is more than a

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scintilla, but less than a preponderance . . . .” Campbell v. Bowen, 822 F.2d 1518, 1521
(10th Cir. 1987).
In reviewing the record to make the substantial evidence determination, the Court
“may not reweigh the evidence nor substitute [its] judgment for the Secretary’s.” Glass
v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). In addition, the Court “may not
displace the agency’s choice between two fairly conflicting views, even though the
[C]ourt would justifiably have made a different choice had the matter been before it de
novo.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotation marks and
citation omitted). Also, the Court “defer[s] to the ALJ on matters involving the credibility
of witnesses.” Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).
III. ANALYSIS
A claimant is “disabled” under Title II of the Social Security Act if he or she is
unable 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. § 423(d)(1)(A). The Social Security Administration has established
a five-step sequential evaluation process for determining whether a claimant is disabled
and, therefore, entitled to benefits. 20 C.F.R. § 404.1520.
Step one assesses whether the claimant is presently engaged in “substantial
gainful activity.” 20 C.F.R. § 404.1520(b). Step two assesses whether the claimant has
a “severe impairment,” which is defined as an impairment or combination of
impairments that “significantly limits [his or her] physical or mental ability to do basic

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work activities.” 20 C.F.R. § 404.1520(c). Step three assesses whether the claimant’s
impairment(s) “meets or equals” one of the “listed impairments” in 20 C.F.R. Part 404,
Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d). Step four assesses whether the
claimant’s residual functional capacity (“RFC”), which is a measure of what activities the
claimant is able to accomplish despite his or her impairment(s), and whether claimant
can perform any of his or her “past relevant work.” 20 C.F.R. § 404.1520(e). Finally,
step five assesses whether the claimant can perform any other work taking into account
the measured RFC. 20 C.F.R. § 404.1520(g).
In the present matter, the ALJ found at step one that Plaintiff “has not engaged in
substantial gainful activity since August 31, 2011, the alleged onset date.” (AR at 26.)
At step two, the ALJ found that Plaintiff has the following severe impairments: “minor
degenerative disc disease of the lumbar spine; minor spurring of the right shoulder;
post-traumatic stress disorder (PTSD); bipolar disorder; [and] alcohol and cannabis
abuse.” (AR at 26.) At step three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments. (AR at 27-28.) At step four, the ALJ found that Plaintiff
has the residual functional capacity to perform medium work, specifically:
[Plaintiff] can understand, remember, and carry out
moderately complex instructions that can be learned and
mastered within a three-month period. Work duties should
not require interaction with the general public. [Plaintiff] can
interact appropriately with co-workers as long as such
interaction is not frequent or prolonged. In this environment,
[Plaintiff] can tolerate supervision, plan and set goals,
tolerate work changes, and recognize and avoid work
hazards.

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(AR at 28.) The ALJ concluded at step four that Plaintiff is “capable of performing past
relevant work” in “semiconductor lithography” (working on a production line that
manufactures semiconductors). (AR at 32.) Thus, the ALJ concluded that Plaintiff is
not disabled. (AR at 32.)
A. Whether the ALJ failed at step three of the sequential evaluation
process to evaluate properly Plaintiff’s mental impairments and whether
these impairments meet or medically equal a listing of impairment.
Plaintiff argues that the ALJ committed reversible error at step three by
improperly evaluating Plaintiff’s mental impairments and whether these impairments
meet or medically equal one of the listed impairments. As stated above, at step three,
“the ALJ determines whether the claimant’s impairment is equivalent to one of a number
of listed impairments that the Secretary acknowledges as so severe as to preclude
substantial gainful activity.” Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996)
(quotation marks and citation omitted). If the ALJ finds that a claimant’s impairment(s)
does not meet or medically equal a listed impairment, then the ALJ is “required to
discuss the evidence and explain why he [or she] found that [the applicant] was not
disabled at step three.” Id.
In the present matter, the ALJ considered at step three whether Plaintiff’s
impairments meet or medically equal the criteria of listings 12.04 (affective disorders),
12.06 (anxiety-related disorders), and 12.09 (substance addiction disorders). (AR at
27.) On appeal, Plaintiff does not contend that the ALJ should have considered any of
the other impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

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Listing 12.04 addresses “affective disorders,” which are “[c]haracterized by a
disturbance of mood, accompanied by a full or partial manic or depressive syndrome.”
20 C.F.R. Part 404, Subpart P, Appendix 1. The required level of severity of an
affective disorder is met when the requirements in both “paragraph A” and “paragraph
B” are met, or when the requirements of “paragraph C” are met. Id. Paragraph A
requires “[m]edically documented persistence, either continuous or intermittent,” of
either depressive syndrome, manic syndrome, or bipolar syndrome. Id. Paragraph B
requires that the affective disorder result in “at least two of the following: (1) Marked
restrictions of activities of daily living; or (2) Marked difficulties in maintaining social
functioning; or (3) Marked difficulties in maintaining concentration, persistence, or pace;
or (4) Repeated episodes of decompensation, each of extended duration[.]” Id.
Paragraph C requires a
[m]edically documented history of a chronic affective
disorder of at least 2 years’ duration that has caused more
than a minimal limitation of ability to do basic work activities,
with symptoms or signs currently attenuated by medication
or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of
extended duration; or
2. A residual disease process that has resulted in such
marginal adjustment that even a minimal increase in
mental demands or change in the environment would be
predicted to cause the individual to decompensate; or
3. Current history of 1 or more years’ inability to function
outside a highly supportive living arrangement, with an
indication of continued need for such an arrangement.
Id.

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Listing 12.06 addresses “anxiety related disorders,” which have anxiety as “either
the predominant disturbance or it is experienced if the individual attempts to master
symptoms.” Id. The required level of severity of an anxiety related disorder is met
when the requirements in both paragraph A and paragraph B are met, or when the
requirements in both paragraph A and paragraph C are met. Id. Paragraph A requires:
Medically documented findings of at least one of the
following:
1. Generalized persistent anxiety accompanied by three out
of four of the following signs or symptoms:
a. Motor tension; or
b. Autonomic hyperactivity; or
c. Apprehensive expectation; or
d. Vigilance and scanning; or
2. A persistent irrational fear of a specific object, activity, or
situation which results in a compelling desire to avoid the
dreaded object, activity, or situation; or
3. Recurrent severe panic attacks manifested by a sudden
unpredictable onset of intense apprehension, fear, terror
and sense of impending doom occurring on the average
of at least once a week; or
4. Recurrent obsessions or compulsions which are a source
of marked distress; or
5. Recurrent and intrusive recollections of a traumatic
experience, which are a source of marked distress;
Id. Paragraph B’s requirements are identical to those in listing 12.04. Id. Paragraph C
requires that the anxiety disorder result in the “complete inability to function
independently outside the area of one’s home.” Id.
Listing 12.09 addresses “substance addiction disorders,” which include
“[b]ehavioral changes or physical changes associated with the regular use of
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substances that affect the central nervous system.” Id. The required level of severity of
a substance addiction disorder is met when the requirements of any one of the following
is satisfied: organic mental disorders (listing 12.02), depressive syndrome (listing
12.04), anxiety disorders (listing 12.06), personality disorders (listing 12.08), peripheral
neuropathies (listing 11.14), liver damage (listing 5.05), gastritis (listing 5.00),
pancreatitis (listing 5.08), or seizures (listing 11.02 or 11.03). Id.
The ALJ found that Plaintiff does not satisfy the paragraph B criteria—one of the
possible requirements of both listing 12.04 and 12.06—because Plaintiff’s “mental
impairments do not cause at least two ‘marked’ limitations or one ‘marked’ limitation and
‘repeated’ episodes of decompensation, each of extended duration.” (AR at 27.) More
specifically, the ALJ found that Plaintiff has only “moderate restrictions” in “activities of
daily living, social functioning, and maintaining concentration, persistence and pace.”
(AR at 27.) In support of this finding, the ALJ cited the following evidence:
[Plaintiff] prepares meals daily, takes care of laundry,
vacuuming, picks up after his dog, wipes down counters and
takes out the trash (Ex. 6E). He drives, and he goes
shopping a couple of times per month (id). He also shops by
computer (id). He spends time with others weekly, including
talking to his out-of-state family on the telephone and
spending time with a friend (id). [Plaintiff] is able to pay bills,
count change, handle a savings account, and use a
checkbook/money orders (id). [Plaintiff] recently finished his
bachelor’s degree in project management, turning in his final
paper the day before the hearing (Claimant Testimony).
(AR at 27.) In addition, the ALJ found that Plaintiff has not experienced repeated
episodes of decompensation, each lasting for an extended duration. (AR at 27.)

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The ALJ also found that “the evidence fails to establish the presence of the
‘paragraph C’ criteria” for either listing 12.04 or listing 12.06. (AR at 27.) With regard to
listing 12.04, the ALJ found that the paragraph C criteria are not met because “there is
no evidence of repeated episodes of decompensation of extended duration, a residual
disease process resulting in decompensation, or a history of one or more years of
inability to function outside a highly supportive living arrangement.” (AR at 27.) With
regard to listing 12.06, the ALJ found that the paragraph C criteria are not met because
Plaintiff “has not had an impairment resulting in complete inability to function
independently outside the area of his home.” (AR at 27-28).
The ALJ did not address listing 12.09—substance addiction disorders—because
she determined that Plaintiff did not meet the requirements for either listing 12.04 or
listing 12.06.
1. Dr. Andres Rivera’s Mental Residual Functional Capacity
Statement.
In his first challenge to the ALJ’s findings at step three, Plaintiff argues that the
ALJ did not perform a “proper review of [Plaintiff’s] mental impairments” because the
ALJ was not able to review the Mental Residual Functional Capacity Statement (“RFC
Statement”) of Dr. Andres Rivera, dated July 9, 2014. (Doc. 11 at 11.) The ALJ was
not able to review Dr. Rivera’s RFC Statement because it was not created until almost
two months after the ALJ issued her written decision. However, Dr. Rivera’s RFC
statement was submitted to the Appeals Council prior to its review. According to
Plaintiff, Dr. Rivera’s RFC Statement “specifically addresses the severity of [Plaintiff’s]

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depression and anxiety as required by the A, B, and C criteria of Listings 12.04 and
12.06.” (Doc. # 11 at 14.)
Plaintiff’s argument is unpersuasive, however, because Plaintiff fails to even
attempt to relate the issue of Dr. Rivera’s RFC Statement to the sole questions on
review of whether the ALJ’s findings are supported by substantial evidence and whether
the ALJ applied the correct legal standards. The entirety of Plaintiff’s argument is that
Dr. Rivera’s RFC Statement “shows the severity of [Plaintiff’s] mental impairments.”
(Doc. # 11 at 11.) This argument is misplaced, however, because the ALJ found at step
two that Plaintiff suffers from severe mental impairments—thus, the issue of the severity
of Plaintiff’s mental impairments is not at issue. More importantly, however, the mere
fact that Dr. Rivera’s RFC Statement was not available to the ALJ at the time of her
review does not lead to the conclusion that the ALJ’s decision is not supported by
substantial evidence or that she applied the wrong legal standard.
2. Evidence to Support a Finding that Plaintiff’s Impairments Meet or
Equal a Listing.
In his second challenge to the ALJ’s findings at step three, Plaintiff argues that
“[m]edical records in the administrative record that were and were not reviewed by the
ALJ . . . also support [Plaintiff’s] argument that he meets or equals Listing 12.04
Affective Disorders and/or Listing 12.06 Anxiety Related Disorders.” (Doc. # 11 at 14.)
The next 14 pages of Plaintiff’s brief consist entirely of block quotations from various
medical records, with no analysis whatsoever as to how, or even whether, these
medical records contradict or undercut the evidence that the ALJ relied on at step three.
While it may be the case that Plaintiff is able to identify some evidence in the record that
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could support a finding that Plaintiff’s impairments meet or medically equal a listing, the
Court is limited in its review solely to the questions of whether the ALJ’s finding that
Plaintiff’s impairments do not meet or medically equal a listing is supported by
substantial evidence and whether the ALJ applied the correct legal standards. See,
e.g., Pacheco, 931 F.2d at 696 (the Court “reviews the Secretary’s decision to
determine whether the findings are supported by substantial evidence”). As stated
above, the Court “may not reweigh the evidence nor substitute [its] judgment for the
Secretary’s,” Glass, 43 F.3d at 1395, which is precisely what Plaintiff asks the Court to
do here. Importantly, Plaintiff does not contend that the ALJ’s findings at step three are
not supported by substantial evidence, and it would be improper for the Court to
assume that Plaintiff intends to make such an argument.
3. The Opinion of a Medical Expert.
In his third challenge to the ALJ’s findings at step three, Plaintiff argues that “the
ALJ should have employed a medical expert (ME) to opine as to whether the
combination of [Plaintiff’s] physical and/or mental severe and nonsevere impairments
medically equals one of the impaired listings.” (Doc. # 11 at 28.) In support of this
argument, Plaintiff cites the Social Security Administration’s Hearings, Appeals, and
Litigation Law Manual (“HALLEX”) section I-2-5-34(B), which states that an ALJ “must
obtain an ME’s opinion, either in testimony at a hearing or in response to written
interrogatories . . . [w]hen the ALJ is considering a finding that the claimant’s
impairment(s) medically equals a medical listing.”

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According to the Social Security Administration’s Medical Expert Handbook, “[a]n
ME is a physician, psychologist, speech-language pathologist, and certain other types
of medical professionals who provide impartial expert opinion evidence that an ALJ
considers when making a decision about disability.” Medical Expert Handbook at 3
(June 2011), available at http://www.socialsecurity.gov/appeals/public_experts/
Medical_Experts_(ME)_Handbook-508.pdf. “The primary function of a[n] ME is to
explain medical terms and the findings in medical reports in more complex cases in
terms that the ALJ, who is not a medical professional, may understand.” Turner v.
Astrue, 10-cv-845, 2011 WL 4436577, at *9 (N.D. Ohio Sept. 23, 2011) (citing
Richardson v. Perales, 402 U.S. 389, 408 (1972)). Medical experts “usually testify in
person at a hearing,” although sometimes they may “testify by video teleconferencing
(VTC) technology or telephone” or they may “provide opinions in writing by answering
written questions called interrogatories.” Medical Expert Handbook at 3.
An ALJ may need to obtain the opinion of an ME when “the ALJ is determining
whether a claimant’s impairment(s) meets a listed impairment(s).” HALLEX section I-25-34(A) (emphasis added); see also 20 C.F.R. § 404.1527(e)(2)(iii) (“Administrative law
judges may also ask for and consider opinions from medical experts . . . on whether
your impairment(s) equals the requirements of any impairment listed in appendix 1 to
this subpart.”) (emphasis added). “An administrative law judge’s determination of
whether a medical expert is necessary is inherently a discretionary one.” Turner, 2011
WL 4436577, at *10 (citing Simpson v. Comm’r of Soc. Sec., 344 Fed. Appx. 181, 189
(6th Cir. 2009) (unpublished)).

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As correctly pointed out by Plaintiff, in certain instances, an ALJ “must obtain an
ME’s opinion, either in testimony at a hearing or in response to written interrogatories,”
including “[w]hen the ALJ is considering a finding that the claimant’s impairment(s)
medically equals a medical listing.” HALLEX section I-2-5-34(B) (emphasis added).
However, that circumstance is not present here. In the present matter, the ALJ merely
determined whether Plaintiff’s impairments met or medically equaled a listed
impairment, which, pursuant to HALLEX I-2-5-34(A), the ALJ is free to do with or without
the opinion of a medical expert. If the ALJ had gone one step further and actually
considered a finding that Plaintiff’s impairments met or medically equaled a medical
listing, then the ALJ would have been required by HALLEX I-2-5-34(B) to obtain the
opinion of a medical expert. Plaintiff’s interpretation of HALLEX I-2-5-34 ignores the
distinction between subsections A and B and, if followed, would require the ALJ to
obtain the opinion of a medical expert during all hearings at step three of the sequential
analysis—a proposition that is clearly not contemplated by the governing regulations.
See 20 C.F.R. § 404.1527(e)(2)(iii); see also Rudy v. Colvin, 13-cv-1254, 2014 WL
5782930, at *14 (S.D. Ohio Nov. 6, 2014), report and recommendation adopted, 2015
WL 1000672 (S.D. Ohio Mar. 5, 2015) (“If plaintiff is correct, rather than having
discretion as to whether [to] obtain testimony from a medical expert, an administrative
law judge would be required to have a medical expert in each and every case. The
plain language of the provision relied upon by plaintiff [HALLEX I-2-5-34(B)] more likely
requires the opinion of a medical expert in any case in which the administrative law
judge makes a finding that a claimant’s impairment equals a listing.”). In the present

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matter, the ALJ did not consider a finding that Plaintiff’s impairments met or medically
equaled a medical listing. Therefore, contrary to Plaintiff’s arguments, the ALJ was not
required to obtain the opinion of a medical expert.
Plaintiff also asserts that “[t]he only evaluation of [Plaintiff’s] physical impairments
was performed by a State agency single decision maker (SDM) (see Tr. 68-80), who is
not a medical source.” (Doc. # 11 at 28.) The Court presumes that Plaintiff is referring
to the fact that, according to the Disability Determination and Transmittal (Form SSA831-C3), Breanne Bassett, SDM performed Plaintiff’s Physical Residual Functional
Capacity (RFC) Assessment. (AR at 75-76.)
The Court notes, however, that the ALJ’s finding at step three that Plaintiff’s
impairments do not meet or medically equal a listing is supported by psychologist
James J. Wanstrath, Ph.D.,’s assessment of Plaintiff’s Medically Determinable
Impairments and Severity (MDI), which is also included in the Disability Determination
and Transmittal (Form SSA-831-C3). (AR at 73-74.) In Dr. Wanstrath’s opinion,
Plaintiff suffers from anxiety disorder, affective disorder, and substance abuse disorder,
however, Plaintiff’s impairments do not meet or medically equal either Listing 12.04,
12.06, or 12.09. (AR at 73-74.) The ALJ properly considered Dr. Wanstrath’s opinion.
See Social Security Ruling 96-6p, 1996 WL 374180 (July 2, 1996) (“[L]ongstanding
policy requires that the judgment of a physician (or psychologist) designated by the
Commissioner on the issue of equivalence on the evidence before the administrative
law judge or the Appeals Council must be received into the record as expert opinion

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evidence and given appropriate weight.”) Thus, contrary to Plaintiff’s argument, opinion
evidence on medical equivalence was provided by a psychologist (not simply an SDM).
B. Whether the ALJ failed to evaluate the medical evidence and medical
source opinions as required by 20 C.F.R. § 404.1527.
Plaintiff also argues that the ALJ’s decision is deficient because she failed to
evaluate the medical evidence and medical source opinions as required by 20 C.F.R. §
404.1527. (Doc. # 11 at 31.) As an initial matter, the Court notes that section II of
Plaintiff’s brief consists primarily of conclusory allegations with very little in the way of
developed legal argument. Plaintiff cannot simply assert that the ALJ’s action or
inaction with regard to a particular issue constituted error. Instead, Plaintiff must explain
how the ALJ applied the incorrect legal standard or why the ALJ’s factual findings were
not supported by sufficient evidence. The Court will address each of Plaintiff’s various
assertions in turn.
1. The ALJ’s Duty to Develop the Record.
Plaintiff asserts that “[t]he ALJ failed in her duty to fully and fairly develop the
record as to material issues.” (Doc. # 11 at 31.) Plaintiff is correct that, “because a
social security disability hearing is a nonadversarial proceeding, the ALJ is responsible
in every case to ensure that an adequate record is developed during the disability
hearing consistent with the issues raised.” Madrid v. Barnhart, 447 F.3d 788, 790 (10th
Cir. 2006) (internal quotation marks and citations omitted). In addition, because Plaintiff
was unrepresented by counsel at his hearing, the ALJ had a heightened duty to develop
the record in this case. Id.

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However, Plaintiff provides absolutely no argument as to how exactly the ALJ
failed in her duty to develop the record in this particular case or which specific parts of
the record should have been more developed. It would be improper for the Court to
attempt to guess at which areas of the record Plaintiff believes require additional
development. Because Plaintiff fails to provide the required legal argument, the Court
will not consider this issue. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th
Cir. 2012) (“We will consider and discuss only those contentions that have been
adequately briefed for review.”); Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir.
2004) (“The scope of . . . review . . . is limited to the issues the claimant . . . adequately
presents on appeal.”).
2. The ALJ’s Evaluation of Medical Source Opinions.
Plaintiff makes a series of assertions regarding the ALJ’s evaluation of medical
source opinions. For example, Plaintiff asserts that “the ALJ’s approach impermissibly
put her in the position of judging a medical professional on how he or she should assess
medical data, i.e., the patient’s self-reported symptoms.” (Doc. # 11 at 35.) Although it
is unclear what Plaintiff means by “the ALJ’s approach,” the Court assumes that,
because this assertion follows factual statements regarding the weight that the ALJ
gave to particular medical opinions, Plaintiff objects to the ALJ’s findings regarding the
weight to be given to particular medical opinions.
For example, Plaintiff correctly observes that the ALJ gave little weight to the
opinion of Dr. Sandra Buseman, who performed a compensation and pension
examination (“CPE”) of Plaintiff in April 2012, as well as to the other CPEs in the record.

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However, Plaintiff does not argue that the ALJ committed error in giving little weight to
Dr. Buseman’s opinion. Nevertheless, the ALJ did not err when deciding to give little
weight to Dr. Buseman’s opinion because the ALJ believed that there was a lack of
objective evidence to substantiate Plaintiff’s physical impairments, and Dr. Buseman’s
assessment of Plaintiff’s functional limitations were largely based on Plaintiff’s selfreports. (AR at 29.) The regulations specifically provide that, when considering how
much weight to give a medical opinion, the ALJ should consider the “supportability” of
the opinion. 20 C.F.R. § 404.1527(c)(3). Specifically, “[t]he more a medical source
presents relevant evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight [the ALJ] will give that opinion.” Id. Conversely, an
opinion that is not supported by medical signs and laboratory findings will be given less
weight. Plaintiff does not assert, let alone attempt to demonstrate why, it was improper
for the ALJ to give less weight to Dr. Buseman’s opinion and the other CPEs in the
record based on the fact that they are not supported by medical signs and laboratory
findings. In addition, Plaintiff fails to explain how the ALJ’s decisions regarding the
weight to give certain medical opinions somehow equates to the ALJ “put[ting] her[self]
in the position of judging a medical professional on how he or she should assess
medical data.”
Plaintiff also asserts that the “ALJ’s analysis failed to consider the extent to which
[Plaintiff’s] severe mental impairment affected his exertional abilities, or how stress
would impact his ability to work.” (Doc. # 11 at 36.) While Plaintiff is correct that “an
ALJ is required to consider all of the claimant’s medically determinable impairments,

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singly and in combination,” Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006), that
correct statement of the law does not support Plaintiff’s assertion. Plaintiff did not allege
before the ALJ, nor does he allege now, that his mental impairments have any effect on
his “exertional abilities.” Plaintiff does not point to, and the Court is not aware of, any
evidence in the record showing that Plaintiff’s mental impairments had any effect on his
“exertional abilities.” In addition, Plaintiff fails to explain the significance of his assertion
that the ALJ failed to consider “how stress would impact his ability to work.” Plaintiff
fails to demonstrate why the ALJ was required to consider “how stress would impact his
ability to work,” thus, it cannot be reversible error if the ALJ did not do so.
Plaintiff also asserts that, “[c]ontrary to the ALJ’s finding, Dr. Wanstrath’s opinion
was not consistent with the weight of the evidence as a whole (Tr. 31).” (Doc. # 11 at
36.) Again, however, like nearly all of Plaintiff’s arguments in this section of Plaintiff’s
brief, Plaintiff fails to provide any additional analysis. For example, Plaintiff does not
identify which aspects of Dr. Wanstrath’s opinion are allegedly inconsistent with the
record as a whole or which portions of the record contradict Dr. Wanstrath’s opinion. It
is improper for the Court to address issues that Plaintiff has inadequately briefed. See,
e.g., Keyes-Zachary, 695 F.3d at 1161 (“We will consider and discuss only those
contentions that have been adequately briefed for review.”) In addition, Plaintiff fails to
demonstrate how this assertion is at all related to whether the ALJ applied the correct
legal standards or whether the ALJ’s findings are supported by substantial evidence.
Plaintiff also argues that “[t]he ALJ’s rejection of portions of Dr. Neufeld’s report
reflects an improper picking and choosing among medical reports, using only those

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portions of evidence that would support her findings of nondisability.” (Doc. # 11 at 37.)
In support of this assertion, Plaintiff cites Carpenter v. Astrue, 537 F.3d 1264, 1265
(10th Cir. 2008), which states that “it is improper for the ALJ to pick and choose among
medical reports, using portions of evidence favorable to his position while ignoring other
evidence.” While, this is a correct statement of the law, Plaintiff fails to demonstrate
how it supports his assertion that the ALJ improperly rejected one aspect of Dr.
Neufeld’s report. The ALJ stated that she “gives some weight to the opinion of
consultative examiner Victor Neufeld, Ph.D. (Ex. 5F)” and that “Dr. Neufeld’s
assessment is generally persuasive, except that his finding of moderate to marked
impairment with respect to social interaction is not supported by his examination or the
claimant’s presentation (id).” (AR at 31.) Contrary to Plaintiff’s assertion, the ALJ’s
finding that Dr. Neufeld’s assessment was not persuasive with regard to his finding of
moderate to marked impairment with respect to social interaction does not represent “an
improper picking and choosing among medical reports.” As stated above, the ALJ is
free to determine how much weight to give a medical opinion, see 20 C.F.R. §
404.1527(c), and, in this instance, the ALJ simply concluded that a certain portion of Dr.
Neufeld’s assessment was less persuasive because it was not supported by the
evidence—namely “[Dr. Neufeld’s] examination or [Plaintiff’s] presentation.” (AR at 31.)
Plaintiff also states that “[t]he ALJ’s conclusion that [Plaintiff’s] low [Global
Assessment of Functioning (“GAF”)] scores were primarily due to substance abuse
overlooked [Plaintiff’s] significant emotional impairments and failed to consider
[Plaintiff’s] bipolar disorder and PTSD as contributing factors leading to his abuse of

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drugs and alcohol.” (Doc. # 11 at 38.) Plaintiff supports this assertion by citing Salazar,
468 F.3d at 621, and McGoffin v. Barnhart, 288 F.3d 1248, 1252-53 (10th Cir. 2002).
As with other areas of Plaintiff’s brief, the law cited does not support Plaintiff’s assertion.
In both McGoffin and Salazar, the issue was whether the ALJ properly considered drug
and alcohol abuse as a contributing factor when determining whether the claimant was
disabled. The issue raised by Plaintiff here, however, is whether the ALJ properly
attributed Plaintiff’s low GAF scores to his drug and alcohol abuse. In addition, it
appears that the law at issue in McGoffin and Salazar—the Contract with America
Advancement Act of 1996—does not apply in the present matter. That law added an
extra requirement to the five-step sequential evaluation for claimants with drug and
alcohol addiction—namely that a claimant could not be considered disabled if
alcoholism or drug addiction would be a contributing factor to the Commissioner’s
decision. Thus, according to the implementing regulations, if the Commissioner finds
that a claimant is disabled, the Commissioner “must determine whether [the claimant’s]
drug addiction or alcoholism is a contributing factor material to the determination of
disability.” 20 C.F.R. § 416.935(a). In a teletype issued shortly after the law was
amended, the Commissioner clarified that if the effects of a claimant’s mental
impairments cannot be separated from the effects of his/her substance abuse, then the
substance abuse is not considered a contributing factor. See Salazar, 468 F.3d at 623.
Thus, the case law cited by Plaintiff has no bearing on an ALJ’s evaluation of GAF
scores. In addition, the law at issue in McGoffin and Salazar does not apply to the
present matter because the ALJ did not find that Plaintiff was disabled and, therefore,

22

did not need to consider whether Plaintiff’s drug and alcohol abuse was a contributing
factor to his disability.
Plaintiff also alleges that the ALJ improperly relied on Plaintiff’s noncompliance
with his treatment and medication to deny his application for benefits because the ALJ
did not “consider whether [Plaintiff] had a justifiable reason for the alleged
noncompliance and whether the treatment would restore the ability to work.” (Doc. # 11
at 39.) In support of this argument, Plaintiff cites 20 C.F.R. § 404.1530, Social Security
Ruling 82-59, and Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987). Plaintiff is correct
that, if an ALJ denies an application for benefits because the applicant did not follow
prescribed treatment, the ALJ must also consider whether that failure was justified.
However, reliance on that standard is inapposite to the present matter because the ALJ
did not deny Plaintiff’s application based on the fact he did not take his medication.
See, e.g., Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (“Plaintiff’s reliance on
our opinion in Frey is misplaced, because Frey concerned the circumstances under
which an ALJ may deny benefits because a claimant has refused to follow prescribed
treatment. [Frey, 816 F.2d] at 517; see also 20 C.F.R. § 404.1530, SSR 82-59, 1982
WL 31384 (S.S.A.).”) In the present matter, the ALJ’s noting of Plaintiff’s failure, at
times, to comply with his prescribed treatment, was in the context of assessing Plaintiff’s
GAF scores. Thus, contrary to Plaintiff’s assertion, the ALJ did not base her finding that
Plaintiff is not disabled on Plaintiff’s failure to take his medication.
Plaintiff also appears to take issue with the ALJ’s consideration of Plaintiff’s VA
disability rating, noting that “[t]he ALJ also rejected [Plaintiff’s] VA disability rating,

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finding that [Plaintiff] had been discharged from military service ‘for a non-disability
reason,’ i.e., he was the sole custodial parent of his minor child and did not have an
alternative plan in place to care for the child (Tr. 31).” (Doc. # 11 at 40.) However,
Plaintiff fails to even allege that the ALJ’s decision constituted error, let alone
demonstrate how or why it would be considered error. Thus, it would be improper for
the Court to address this issue. See, e.g., Keyes-Zachary, 695 F.3d at 1161 (“We will
consider and discuss only those contentions that have been adequately briefed for
review.”) Nevertheless, the Court notes that the Social Security Administration’s
regulations provide: “A decision by any . . . governmental agency about whether you are
disabled . . . is based on its rules and is not [the Commissioner’s] decision about
whether you are disabled . . . . [The Commissioner] must make a disability . . .
determination based on social security law. Therefore, a determination made by
another agency that you are disabled . . . is not binding on [the Commissioner].” 20
C.F.R. § 404.1504.
3. Whether the Appeals Council should have remanded the case to
the ALJ for review of new and material evidence.
Plaintiff argues that the Appeals Council “should have remanded the case to the
Administrative Law Judge for review of the new and material evidence.” (Doc. # 11 at
41.) In support of his argument, Plaintiff cites “sentence six” of 42 U.S.C. § 405(g),
which states that the district court reviewing the Commissioner’s decision “may at any
time order additional evidence to be taken before the Commissioner of Social Security,
but only upon a showing that there is new evidence which is material and that there is

24

good cause for the failure to incorporate such evidence into the record in a prior
proceeding.”
In response, the Commissioner argues that “the Appeals Council’s denial of
Plaintiff’s request for review—without issuing a decision—is an action that is not subject
to judicial review.” (Doc. # 12 at 13 n.5.) In support, the Commissioner cites 42 U.S.C.
§ 405(g) and 20 C.F.R. § 404.981. As noted above, 42 U.S.C. § 405(g) permits, and
sets forth the terms of, a district court’s review of the Commissioner’s decision. 20
C.F.R. § 404.981, more specifically, states that the Appeals Council may either deny or
grant an applicant’s request for review and that if it denies the request, the ALJ’s
decision is the binding decision of the Commissioner.
The Court finds Plaintiff’s argument unpersuasive. Plaintiff argues that the
Appeals Council should have remanded Plaintiff’s case to the ALJ because Plaintiff
submitted additional evidence to the Appeals Council that was not available to the ALJ.
In support of this argument, Plaintiff cites sentence six of 42 U.S.C. § 405(g). However,
that provision does not apply in this matter because the “new” evidence to which
Plaintiff refers was, in fact, incorporated into the record in his prior administrative
proceeding. See 42 U.S.C. § 405(g) (stating that a district court may order additional
evidence to be taken only if the new evidence is material and “there is good cause for
the failure to incorporate such evidence into the record in a prior proceeding”)
(emphasis added); see also Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990) (stating
that a remand pursuant to sentence six of 42 U.S.C. § 405(g) is “appropriate when the
district court learns of evidence not in existence or available to the claimant at the time

25

of the administrative proceeding that might have changed the outcome of the
proceeding”) (emphasis added); Shalala v. Schaefer, 509 U.S. 292, 297 n.2 (1993)
(“Sentence-six remands may be ordered in only two situations: where the Secretary
requests a remand before answering the complaint, or where new, material evidence is
adduced that was for good cause not presented before the agency.”) (emphasis added).
In this case, the Appeals Council explicitly stated that it reviewed and incorporated into
the record the additional evidence that Plaintiff submitted to it but that had not been
available to the ALJ. (AR at 1-2, 4-5.)
Although not cited by either party, the Court notes that 20 C.F.R. § 404.970
requires the Appeals Council to consider certain “new and material evidence.” The
Appeals Council’s failure to consider such evidence may be grounds for remand. See,
e.g., Lawson v. Chater, No. 95-5155, 1996 WL 195124, at *2 (10th Cir. Apr. 23, 1996)
(unpublished) (“Accordingly, we hold that the new evidence submitted on plaintiff's
administrative appeal should have been considered by the Appeals Council. This
omission constitutes substantial legal error necessitating a remand for further
proceedings consistent with the principles discussed herein.”) However, Plaintiff in this
matter does not allege, nor does it appear, that the Appeals Council failed to consider
any “new and material evidence” that it was required to consider under 20 C.F.R. §
404.970.
4. Whether the ALJ’s evaluation of the credibility of Plaintiff’s
subjective complaints was deficient.
Lastly, Plaintiff argues that “the ALJ erred in assessing the credibility of
[Plaintiff’s] subjective complaints of pain and other symptoms” because the ALJ “did not
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carefully consider the relevant factors” set forth in Luna v. Bowen, 834 F.2d 161 (10th
Cir. 1987). (Doc. # 11 at 43.)
In Luna, the Tenth Circuit reiterated “that a pain-producing impairment, whether
psychological or physiological in origin, must be proven by objective medical evidence
before an agency decision-maker can find a claimant disabled by pain.” Luna, 834 F.2d
at 163. If a pain-producing impairment is demonstrated by objective medical evidence,
then the ALJ must consider whether the impairment is one that could reasonably be
expected to produce the alleged pain. Id. If the nexus between the impairment and the
alleged pain is insufficient, the analysis stops and the claimant is not entitled to benefits
based on disabling pain. Id. If, however, there is a sufficient nexus between the
impairment and the alleged pain, then the ALJ must consider all the evidence presented
to determine whether the claimant’s pain is, in fact, disabling. Id. This evidence
includes “the medical data previously presented, any other objective indications of the
degree of the pain, and subjective accounts of the severity of the claimant’s pain.” Id.
The Tenth Circuit in Luna also noted that it had previously recognized “numerous
factors in addition to medical test results that agency decision-makers should consider
when determining the credibility of subjective claims of pain greater than that usually
associated with a particular impairment.” Id. at 165. Those factors include, but are not
limited to: a claimant’s persistent attempts to find relief for his pain and his willingness to
try any treatment prescribed; regular use of crutches or a cane; regular contact with a
doctor; the possibility that psychological disorders combine with physical problems; the

27

claimant’s daily activities; and the dosage, effectiveness, and side effects of medication.
Id. at 165-66.
In support of his argument that the ALJ erred when evaluating his credibility with
regard to his subjective complaints of pain, Plaintiffs asserts: (1) that Plaintiff
“consistently sought treatment for his medical problems and had regular contact with his
doctors”; (2) that “the ALJ failed to consider the combined effect of [Plaintiff’s] physical
and psychological impairments”; (3) that “the ALJ failed to consider the role [of
Plaintiff’s] mental impairments with regard to compliance with recommended treatment;
and (4) that Plaintiff’s motorcycle accident “illustrated [Plaintiff’s] well-documented
difficulties in exercising rational judgment because of his mental impairments.” (Doc. #
11 at 43-44.) In response, the Commissioner argues that the ALJ reasonably evaluated
the credibility of Plaintiff’s subjective statements and considered a number of proper
regulatory factors. (Doc. # 12 at 16-17.)
As stated previously, the Court notes at the outset that its review is limited to
“whether the [ALJ’s] findings are supported by substantial evidence and whether the
[ALJ] applied the correct legal standards.” Pacheco, 931 F.2d at 696. Plaintiff does not
allege that the ALJ applied an incorrect legal standard. Instead, Plaintiff, in effect,
contests the sufficiency of the evidence supporting the ALJ’s finding as to Plaintiff’s
credibility regarding his assertions of pain.
At step four, the ALJ found that Plaintiff’s “statements concerning the intensity,
persistence, and limiting effects of [his] symptoms are not entirely credible.” (AR at 29.)
The ALJ found that although the medical evidence establishes Plaintiff’s minor lumbar

28

degenerative disc disease, right knee degenerative joint disease, and minor spurring in
the right shoulder, Plaintiff’s “[p]hysical examinations have generally been relatively
benign, typically reflecting findings such as normal strength [and] normal gait.” (AR at
29.) In support of this finding, the ALJ cites the office treatment records from VA
Southern Colorado Healthcare System, dated June 11, 2009, to April 17, 2012. (AR at
29.) Plaintiff does not challenge this finding.
The ALJ also cites the fact that Plaintiff was able to ride his motorcycle and
“control it well enough to prevent severe physical injury in an accident in November
2012, despite a blood alcohol level of .22, with opiates and THC.” (AR at 29.) Plaintiff
does not challenge the ALJ’s use of this fact to support her finding that Plaintiff was not
entirely credible, but rather argues that this event “illustrated [Plaintiff’s] welldocumented difficulties in exercising rational judgment because of his mental
impairments.” (Doc. # 11 at 44.) The Court agrees that Plaintiff’s motorcycle accident
demonstrated a lack of judgment, but the fact that he was able to ride a motorcycle in
the first place supports the ALJ’s finding that he was not entirely credible with regard to
his reported symptoms and pain.
The ALJ also found that “[m]anagement of [Plaintiff’s] symptoms has been
conservative.” (AR at 29.) In support of this, the ALJ noted that in a Personal Pain
Questionnaire dated January 21, 2013, Plaintiff “did not report any medication for pain
other than marijuana (Ex. 5E).” (AR at 29.) While this is accurate, and not challenged
by Plaintiff, the Court does note that Plaintiff also wrote on the Personal Pain
Questionnaire that he had previously been addicted to pain killers and that he “prefer[s]

29

to stay away from them.” (AR at 150.) The ALJ also noted that the “[r]ecords reflect
some sporadic use of ibuprofen (Ex. 1F)” and that “[t]he evidence does not reflect any
recommendation for surgery.” (AR at 29.) Plaintiff does not challenge these findings.
While Plaintiff is correct that the record indicates that he “consistently sought
treatment for his medical problems and had regular contact with his doctors,” (Doc. # 11
at 43-44), the Court finds that the ALJ’s finding regarding Plaintiff’s credibility is
nevertheless supported by substantial evidence.
IV. CONCLUSION
For the foregoing reasons, the Court hereby affirms the May 22, 2014 written
decision of the administrative law judge finding that Plaintiff is not disabled under
sections 216(i) and 223(d) of the Social Security Act.

DATED: January 11, 2016

BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

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