Thomas v. Colvin
Filing
21
MEMORANDUM OPINION and ORDER by Magistrate Judge Nina Y. Wang on 7/12/16. IT IS SO ORDERED that the Commissioners final decision is AFFIRMED and this civil action is DISMISSED, with each party to bear his own fees and costs. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00571-NYW
VICKI MICHELLE THOMAS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This action comes before the court pursuant to Title XVI of the Social Security Act
(“Act”) and 42 U.S.C. §§ 1381-83(c) for review of the Commissioner of Social Security’s final
decision denying Vicki Michelle Thomas’s (“Plaintiff” or “Ms. Thomas”) application for
Supplemental Security Income (“SSI”). The Order of Reference dated December 21, 2015
referred this civil action to the undersigned Magistrate Judge “for all purposes” pursuant to Title
28 U.S.C. § 636(c). See [#20]. 1 The court has carefully considered the Complaint (filed March
20, 2015) [#1], Defendant’s Answer (filed September 4, 2015) [#10], Plaintiff’s Opening Brief
(filed November 4, 2015) [#15], Defendant’s Response Brief (filed December 2, 2015) [#16],
Plaintiff’s Reply Brief (filed December 21, 2015) [#19], the entire case file, the administrative
1
For consistency and ease of reference, this Order utilizes the docket number assigned by the
Electronic Court Filing (“ECF”) system for its citations to the court file. For the Administrative
Record, the court then refers to the page number associated with the Record, which is found in
the bottom right-hand corner of the page. For documents outside of the Administrative Record,
the court refers to the page number assigned in the top header by the ECF system. Where the
court refers to the filings made in the ECF system in this action, it uses the convention [#___].
record, and applicable case law. For the following reasons, I AFFIRM the Commissioner’s
decision.
PROCEDURAL HISTORY
On January 26, 2012, Ms. Thomas filed an application for SSI under Title XVI of the
Act. [#11-5 at 235]. She has an eleventh grade education, [#11-6 at 260], and has not completed
a GED. [#11-2 at 161]. Ms. Thomas worked in home healthcare from 1990 to 2007. [#11-6 at
273]. She alleges that she became disabled on July 17, 2007 at age 40. [#11-2 at 141]. Her
claim was denied at the initial determination stage on June 19, 2012. [#11-3 at 181]. Ms.
Thomas requested a hearing on June 26, 2012. [#11-4 at 188].
Administrative Law Judge Lowell Fortune (“ALJ”) held a hearing on June 7, 2013 at
which Plaintiff was represented by counsel and testified that she could not work due to
debilitating back, neck, and leg pain, which prevent her from sitting for longer than eleven
consecutive minutes, walking farther than one block, and lifting more than twenty pounds. See
[#11-2 at 146-51]. Ms. Thomas further attested that she suffers from depression, leading to
uncontrolled outbursts of crying and unprovoked anger. [Id. at 155]. Additionally, she stated
that she takes gabapentin, fentanyl, and Percocet to manage her pain; takes Prozac for
depression; and uses approximately one joint of marijuana every two weeks to help her sleep.
See [id. at 157-59].
Next, Ashley Byers, a vocational expert (“VE”), testified at the hearing. [Id. at 161].
The ALJ posed a hypothetical scenario to the VE, asking whether jobs exist for a person with the
following limitations:
•
a person of Plaintiff’s age, education, and work experience;
•
who can lift no more than ten pounds frequently;
2
•
who can stand or walk four hours out of an eight-hour day;
•
who can sit over six hours in an eight-hour day;
•
who cannot use ladders, scaffolds, or ropes to scale to any heights;
•
who cannot work above specific vocational preparation (“SVP”) 2 level three;
•
who can have unlimited incidental contact with the public;
•
who cannot work in coordination with others, as on an assembly line; and
•
who cannot perform work involving sustained concentration.
See [id. at 162]. The VE testified that an individual with such limitations could perform light
work, and although this person could not perform Plaintiff’s previous work, jobs compatible with
these limitations, such as a merchandise marker, collator operator, and domestic laundry worker,
exist in significant numbers in the national economy. See [id.].
The ALJ posed a second hypothetical in which he kept all of the above requirements, but
added the condition that the worker could only stand for two hours in an eight-hour day. [Id.].
The VE stated that such a worker could find gainful employment in sedentary positions like
microfilm document preparer, address clerk, or tube clerk. See [id. at 162-63].
On cross-examination, Plaintiff’s attorney interposed three more hypotheticals:
(1) He added to the ALJ’s second hypothetical the requirement that an individual be
capable only of brief superficial contact with coworkers, supervisors, and the general public.
2
SVP refers to the “time required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in a specific job-worker
situation.'” Vigil v. Colvin, 805 F.3d 1199, 1201 n.2 (10th Cir. 2015) (citing Dictionary of
Occupational Titles, App. C, Sec. II (4th ed., revised 1991); 1991 WL 688702 (G.P.O.). The
higher the SVP level, the longer time is needed to acquire the skills necessary to perform the job.
Jeffrey S. Wolfe and Lisa B. Proszek, SOCIAL SECURITY DISABILITY AND THE LEGAL PROFESSION
163 (Fig. 10-8) (2003). SVP level 3 is associated with semi-skilled work.
https://www.ssa.gov/OP_Home/rulings/di/02/SSR2000-04-di-02.html.
3
According to the VE, all of the aforementioned positions are nonetheless suitable for someone
who fit that description. [Id. at 165].
(2) He included an additional limitation that the individual be unable to maintain
concentration for two-hour intervals. The VE testified that such a requirement would eliminate
that individual from finding competitive work. [Id.].
(3) He asked whether work exists for someone who had to change positions between
sitting, standing, and walking every fifteen minutes. The VE stated that this limitation would
eliminate all sedentary work. [Id.]
After reviewing the record and hearing the above testimony, the ALJ issued his written
decision on August 20, 2013, concluding that Ms. Thomas can perform light work and is not
disabled. [#11-2 at 113]. Plaintiff requested a review of the ALJ’s assessment, which was
denied on January 20, 2015. [Id. at 1]. The ALJ’s order then became the final decision of the
Commissioner. 20 C.F.R. § 404.981; Nelson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993)
(citation omitted). Plaintiff filed this action on March 20, 2015. [#1]. This court has jurisdiction
to review the Commissioner’s final decision. 42 U.S.C. § 1383(c)(3).
STANDARD OF REVIEW
In reviewing the Commissioner’s final decision, the court is limited to determining
whether the order adheres to applicable legal standards and is supported by substantial evidence
in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996); Angel v.
Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). If the ALJ did not “apply the correct legal test,
there is a ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993) (internal citation omitted).
4
If the court finds that the ALJ made his decision based on substantial evidence, the ALJ’s
ruling will be upheld even if he could have reached a different result based on the record. See
Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). Conversely, if the court finds that the
ALJ did not rely on substantial evidence, the ALJ’s ruling will be reversed. See Allen v.
Barnhardt, 357 F.3d 1140, 1145 (10th Cir. 2004). “Substantial evidence is more than a mere
scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Flaherty v. Astrue, 515 F.3d
1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence is not substantial if it is overwhelmed by
other evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d
1371, 1374 (10th Cir. 1992) (internal citation omitted). The court will not “reweigh the evidence
or retry the case,” but must “meticulously examine the record as a whole, including anything that
may undercut or detract from the ALJ’s findings in order to determine if the substantiality test
has been met.” Flaherty, 515 F.3d at 1070 (internal citation omitted).
THE ALJ’S DECISION
An individual is entitled to receive SSI if he or she is financially eligible, files an
appropriate application, and is disabled as defined in the Act. 42 U.S.C. § 1382. The applicant
“must have a medically determinable physical or mental impairment(s) of such severity that he
or she is not only unable to do his or her previous work but cannot, considering his or her age,
education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy.” SSR 82-62, 1982 WL 31386 (Jan. 1, 1982).
The Commissioner has developed a five-step evaluation process for determining whether
a claimant is disabled under the Act. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.
1988) (describing the five steps in detail). “If a determination can be made at any of the steps
5
that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Id. at
750. “The claimant bears the burden of proof through step four of the analysis,” but the burden
shifts to the Commissioner at step five. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir.
1993).
At step one, the ALJ determines whether a claimant is participating in substantial gainful
activity. Evaluation of Disability of Adults, 20 C.F.R. § 416.920(a)(4)(i) (2012). If the claimant
is not engaging in substantial gainful employment, he or she may be disabled, and the ALJ
moves on to the second step of the inquiry. If a claimant is working, he or she is not disabled,
and the analysis ends. 20 C.F.R. § 416.920(b).
The second step requires the ALJ to evaluate the medical severity of the claimant’s
impairments. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant has a sufficiently severe impairment
or combination of impairments that “significantly limits [his or her] physical or mental ability to
do basic work activities,” the ALJ will continue with the third step of the review. 20 C.F.R.
§ 416.920(c). If the impairment or combination of impairments is not severe, the claimant is not
disabled, and the examination stops. Id.
At the third step, the ALJ must decide whether the medical severity of the claimant’s
impairment or combination of impairments meets the criteria listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (§§ 416.920(a)(4)(iii), 416.920(d); Listing of Impairments, 20 C.F.R.
§ 416.925). This appendix lists possible impairments that would be “severe enough to prevent
an individual from doing any gainful activity, regardless of his or her age, education, or work
experience.” 20 C.F.R. § 416.925(a). If the claimant’s impairment appears on the list, he or she
will be deemed disabled, and the inquiry will stop. 20 C.F.R. § 416.920(d). If the impairment is
not on the list in the appendix, the examination continues. 20 C.F.R. § 416.920(a)(4)(iii).
6
Before continuing to step four, the ALJ will determine the claimant’s residual functioning
capacity (RFC). 20 C.F.R. § 416.920(e). The RFC is what a claimant is still “functionally
capable of doing on a regular and continuing basis, despite his impairments: the claimant’s
maximum sustained work capability.” Williams, 844 F.2d at 751. The ALJ assigns an RFC
category—sedentary, light, medium, heavy, and very heavy—based on the claimant’s physical
limitations and a job’s exertional requirements. Physical Exertion Requirements, 20 C.F.R. §
416.967. A job in the category of light work
involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds[,] . . . requires a good deal of
walking or standing[,] . . . [and] involves sitting most of the time with
some pushing and pulling of arm or leg controls. If someone can do light
work, [the ALJ has] determine[d] that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
20 C.F.R. § 416.967(b).
The fourth step requires the ALJ to compare this RFC assessment with the “physical and
mental demands of [the claimant’s] past relevant work.” Id. After such comparison the ALJ
decides whether the claimant can still do his or her prior job. Id. If the claimant can continue
performing previous work, he or she is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). If the
claimant is prevented from doing his or her past job, the ALJ moves to step five of the analysis.
20 C.F.R. § 416.920(f).
At the fifth step, the ALJ considers the RFC assessment along with the claimant’s age,
education, and work experience to determine if the claimant can adjust to another job in the
national workforce. 20 C.F.R. § 416.920(a)(4)(v). At this point,
[i]f a conclusion of “not disabled” results, this means that a significant
number of jobs exist in the national economy for which the claimant is
still exertionally capable of performing. However, . . . [t]he decision
maker must then consider all relevant facts to determine whether
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claimant’s work capability is further diminished in terms of jobs
contraindicated by nonexertional limitations.
...
Nonexertional limitations may include or stem
impairments, such as the inability to understand,
remember instructions, and to respond appropriately
postural and manipulative disabilities; psychiatric
alcoholism; drug dependence; dizziness; and pain. . . .
from . . . mental
to carry out and
in a work setting;
disorders; chronic
Williams, 844 F.2d at 751-52. If the ALJ determines no jobs exist in the national economy for
someone in the claimant’s condition, the claimant is deemed disabled. 20 C.F.R. § 416.920(g).
Conversely, if the ALJ finds the claimant can adapt to an existing job in the workforce, the
claimant is judged not disabled. Id.
In this case, the ALJ determined that Ms. Thomas had not engaged in substantial gainful
activity since January 26, 2012. Moving on to step two, the ALJ found that Ms. Thomas
suffered from the severe impairments of lumbar spine disorder, depressive disorder, and an
anxiety disorder. The ALJ determined these ailments resulted in mild restriction in activities of
daily living, mild to moderate difficulties in social functioning, and moderate difficulties in
concentration, persistence, and pace. In the third step, comparing Ms. Thomas’s impairments to
the list in 20 C.F.R. Part 404, Subpart P, Appendix 1 (§§ 416.920(a)(4)(iii); 416.920(d);
416.925), the ALJ established that her ailments were not within those listed in the statute. See
[#11-2 at 115-24].
At the fourth step, the ALJ determined that Ms. Thomas had the RFC to perform light
work as defined in 20 C.F.R. § 416.967(b) and cannot perform her past work as a home health
care aide. Specifically, he found that Ms. Thomas could lift 20 pounds occasionally and 10
pounds frequently; could stand or walk for four hours in an eight-hour day; could sit for at least
six hours in an eight-hour day; could not perform assembly-line work or work requiring her to
8
scale ladders, scaffolds, or ropes; could not engage in work requiring sustained concentration;
cannot perform work above the SVP 3 level; and should not interact with the public for more
than two-thirds of a workday, but may have unlimited incidental contact with the public. Last,
after considering her impairments, age, previous experience, and education level, the ALJ found
that jobs exist in significant numbers for Ms. Thomas in the national economy; therefore, the
ALJ concluded that Ms. Thomas is not disabled. See [id.].
Ms. Thomas objects to the ALJ’s decision on three grounds: (1) the ALJ failed to support
his determinations of Plaintiff’s credibility with substantial evidence in the record; (2) the ALJ’s
RFC finding lacks substantial evidence in the record; and (3) in his RFC determination, the ALJ
failed to consider Plaintiff’s reports of pain. See [#15 at 5]. The court considers each of these
objections in turn.
ANALYSIS
I.
The ALJ’s Assessment of Plaintiff’s Credibility
It is well known that “[c]redibility determinations are peculiarly the province of the
finder of fact, and [should not be upset] when supported by substantial evidence.” Kepler v.
Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Diaz v. Sec’y of Health & Human Servs., 898
F.2d 774, 777 (10th Cir. 1990)). However, “[f]indings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.”
Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988). Plaintiff objects to the ALJ’s credibility
determinations, asserting they lack substantial evidence. Plaintiff argues, see [#15 at 21], that the
ALJ should have expressly analyzed this case using the following factors:
[1] the levels of medication and their effectiveness, [2] the extensiveness
of the attempts (medical or nonmedical) to obtain relief, [3] the frequency
of medical contacts, [4] the nature of daily activities, [5] subjective
measures of credibility that are peculiarly within the judgment of the ALJ,
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[6] the motivation of and relationship between the claimant and other
witnesses, and [7] the consistency or compatibility of nonmedical
testimony with objective evidence.
Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991) (quoting Huston, 838 F.2d at 1132)
(emphasis and numbers added). However, these are “possible factors” for consideration, Huston,
838 F.2d at 1132, and are “not exhaustive.” Id. at n.7. Additionally, “so long as the ALJ sets
forth the specific evidence he relies on in evaluating the claimant’s credibility,” he is “not
require[d to produce] a formalistic factor-by-factor recitation of the evidence.” Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000).
Plaintiff takes issue with the subjective measures of credibility that are peculiarly within
the judgment of the ALJ. The ALJ listed four measures of credibility, concluding “I have
described the different credibility factors I found to be applicable to the claimant. I did not
consider any one factor to be controlling. Instead I have considered the cumulative effect of all
such factors.” [#11-2 at 120]. This court’s review finds that each measure is supported by
substantial evidence in the record, and therefore, there is no justification to disturb the ALJ’s
subjective determination of Plaintiff’s credibility.
A.
ALJ’s First Measure of Credibility
First, the ALJ identified “one factor affecting the credibility of a witness[:] whether a
person’s conduct is consistent with the person’s assertions.” [Id. at 118]. Plaintiff alleges that
she could not do any work and argues, see [#15 at 20], “sporadic performance [of household
tasks or work] does not establish that a person is capable of engaging in substantial gainful
activity.” Thompson, 987 F.2d at 1490 (internal quotation omitted). The ALJ found Plaintiff’s
conduct to be inconsistent with her assertions of being unable to do any work, sit for an extended
period of time, and interact with people, concluding that Plaintiff can not only do work, as
10
described above, but can also take care of her finances and get to and from work, as she can pay
her bills and navigate the bus system to run simple errands. 3 The ALJ concluded that the
Plaintiff was capable of doing more than what was deemed “sporadic” in Thompson, and cited
evidence to support his determination. Therefore, this discrepancy was proper evidence to
consider while determining Plaintiff’s credibility.
Similarly, Plaintiff claims that she cannot sit for longer than nine to eleven minutes
without having to change positions, but the ALJ observed that she sat for close to 45 minutes at a
stretch during the hearing.
The record reflects that Plaintiff asked to stand up before the
completion of the hearing, but had already sat through approximately 80% of the hearing by that
time. See [#11-2 at 159]. “Although an ALJ may not rely solely on his personal observations to
discredit a plaintiff’s allegations, he may consider his personal observations in his overall
evaluation of the claimant’s credibility.” Qualls, 206 F.3d at 1373.
Additionally, Plaintiff asserts that she cannot interact with people. In his decision,
however, the ALJ noted Plaintiff reports that she talks once a week to her boyfriend. [#11-2 at
117]. Plaintiff also reported that socially, she was able to interact with the psychological
consultative examiner and reported getting along with family members and being emotionally
involved wither boyfriend. [Id. at 123]. The ALJ also pointed to her comfortable interaction
with a member of the Cooperative Disability Investigation Unit (CDIU), making small talk,
laughing, and smiling while riding the elevator up to a doctor’s appointment. See [#11-7 at 358].
Minutes later, a physician observed Plaintiff appeared “restless, anxious, stiff and tense” and
“depressed, sad and tearful,” [id. at 349], and found Plaintiff “would appear to have a moderate3
The ALJ also noted that Plaintiff can cook and clean for herself. The court finds no evidence
that this is so. Still, there is ample evidence in the record to support his conclusion that she lacks
credibility and further evidence that she is still capable of engaging in substantial gainful
activity.
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to-marked impairment in her social functioning,” [id. at 350]. However, the physician did not
know about Plaintiff’s behavior immediately before entering his office. Plaintiff argues that the
ALJ should not have weighed the interaction more heavily than the doctor’s opinion that Plaintiff
has potentially disabling anxiety and depression. 4 [#15 at 21]. While the Secretary must give
weight to physicians’ opinions, Hargis, 945 F.2d at 1489-90, the court must “defer to the ALJ as
trier of fact, the individual optimally positioned to observe and assess witness credibility.”
Casias v. Sec’y of Health & Human Servs, 933 F.2d 799, 801 (10th Cir. 1991). As discussed
below, the ALJ found that this doctor did not have all necessary information to make his
determination.
The interactions in the elevator are proper evidence to support the ALJ’s
determination that Plaintiff was not credible, and the court finds no error by the ALJ on this
point.
B.
ALJ’s Second Measure of Credibility
The ALJ identified “whether [Plaintiff’s] evidence is inconsistent with or contradicted by
other evidence in the record” as the second factor used to determine Plaintiff’s credibility. [#112 at 119]. The ALJ pointed to the discrepancy between Plaintiff’s testimony in this case and
evidence in the record regarding her use of marijuana as evidence that she lacked credibility. At
the hearing, Plaintiff reported that she used marijuana on average once every two weeks for three
years. However, less than two years earlier, she reported that she “smokes weed (marijuana) all
day.” [#11-8 at 387]. Plaintiff argues that she could have used marijuana all day at the time of
the report and still maintained an average marijuana consumption of one joint every two weeks.
[#15 at 21]. However, several other medical records indicate Plaintiff consistently smoked
marijuana beyond the self-report of once every two weeks. See [#11-8 at 382 (advising Plaintiff
4
Importantly, as described below, the ALJ did not disregard this physician’s opinion; rather, the
opinion was incorporated into the ALJ’s ultimate RFC determination.
12
to stop smoking marijuana); id. at 384 (“smokes a lot of cigarettes and marijuana”); id. at 396
(showing recent marijuana use); id. at 404 (“smokes marijuana BID” 5)]. Therefore, the court
finds the ALJ’s conclusion regarding this discrepancy is supported by substantial evidence.
C.
ALJ’s Third Measure of Credibility
The third factor that the ALJ used to evaluate Plaintiff’s credibility was “whether
[Plaintiff’s] evidence has either exaggerated the facts or has magnified the claimant’s
symptoms.” [#11-2 at 119]. The ALJ found that Plaintiff understated the amount of weight she
can lift. For instance, despite claiming on her application for disability that she can no longer lift
anything, see [#11-6 at 286], Plaintiff testified that she could lift a twenty-pound bag of potatoes.
See [#11-2 at 149]. Plaintiff argues that “perfect consistency” is not required, [#19 at 7], but the
ALJ may nonetheless use these inconsistencies to support his determination that Plaintiff is not
credible. Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1988) (“Exaggerating symptoms or
falsifying information for purposes of obtaining government benefits is not a matter taken lightly
by this Court. As a safeguard against such schemes, the determination of credibility is left to the
observations made by the [ALJ] as the trier of fact.”).
D.
ALJ’s Fourth Measure of Credibility
Fourth, the ALJ looked at Plaintiff’s conduct and evaluated “whether it has been
consistent over time or whether it has been variable and inconsistent.” [#11-2 at 119]. Here, the
ALJ pointed to inconsistencies in the way Plaintiff walked in the process of entering two
separate doctors’ offices; additional differences in the way Plaintiff walked before, during, and
after a single doctor’s appointment; and the discrepancies in her affect before and during an
appointment with a mental health provider.
5
“BID” refers to “bis in die,” which in Latin means twice a day. See, e.g., McNeely v. Astrue,
No. 11-3134, 2012 WL 6642743, at *3 (W.D. Ark. Dec. 20, 2012) (explaining the BID notation
in medical documents).
13
The ALJ cited a CDIU report that highlighted differences between Plaintiff’s allegations
of disability and actual behavior. CDIU investigators observed differences in Plaintiff’s gait
when visiting one doctor (where she walked slowly, upright, and with assistance) and when
visiting another doctor three days later (where she walked more quickly, hunched over, and
independently). See [#11-7 at 358]. Additionally, the same report identified differences in
Plaintiff’s manner of walking before, during, and after the same appointment with Dr. Moran.
Before this appointment, Plaintiff walked slowly and with assistance, but otherwise normally.
[Id.]. At the appointment, she walked with a limp and bent over at the waist. [Id. at 345]. After
the appointment, although she required assistance walking and getting into her car in the doctor’s
office parking lot, CDIU officers followed her car to a private home and witnessed her walking
and entering the car without assistance. See [id. at 358].
The ALJ also noted the difference in Plaintiff’s affect before and during an appointment
with the evaluating psychiatrist to determine her eligibility for Social Security benefits. As
discussed above, on the way to the appointment, Plaintiff interacted with a CDIU officer in the
elevator in a friendly way, making jokes and smiling. [Id. at 358-59]. Minutes later, she
“interacted with the examiner in a distant, guarded, depressed, and tearful fashion.” [Id. at 350].
Plaintiff claims that these differences do not preclude an actual disability. [#15 at 19]. However,
it is within the ALJ’s discretion to determine credibility so long as his findings are rooted in
substantial evidence. Kepler, 68 F.3d at 391. The court finds that the ALJ did not err in his
determination of Plaintiff’s credibility, and his conclusion is supported by substantial evidence.
II.
The ALJ’s Determination of Plaintiff’s RFC
The court next considers whether the ALJ erred when determining Plaintiff’s RFC.
Plaintiff raises four objections regarding the ALJ’s determination that Plaintiff retained the RFC
14
to perform light work. First, she claims the ALJ improperly relied on the treating physician’s
opinion over the recommendations of the examining physicians. Second, Plaintiff asserts the
ALJ entirely disregarded the examining physicians’ findings. Third, Plaintiff argues that by
giving her medical opinion, the treating physician was overstepping into the role of the
Commissioner. Fourth, she argues the ALJ improperly failed to consider her inability to comply
with treatment as prescribed by her previous physicians. This court respectfully disagrees with
all four assertions.
A.
Weighing of Physicians’ Opinions
Plaintiff objects to the ALJ’s RFC determination, claiming the ALJ improperly ignored
the opinions of both examining physicians who were asked to determine her eligibility for Social
Security, in favor of the opinion of her treating physician. [#15 at 23]. The court respectfully
disagrees.
“According to what has come to be known as the treating physician rule, the
Commissioner will generally give more weight to medical opinions from treating sources than
those from non-treating sources,” Langley v. Barnhart, 474 F.3d 1116, 1119 (10th Cir. 2004),
“since these sources are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of [the claimant’s] medical impairment(s),” Evaluating Opinion Evidence,
20 C.F.R. §§ 416.927(c)(1) and 416.927(c)(2). Moreover, “when a treating physician’s opinion
is inconsistent with other medical evidence, the ALJ’s task is to examine the other physicians’
reports to see if they outweigh the treating physician’s report, not the other way around.”
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004). To do so, the ALJ applies the
following factors:
The length of the treatment relationship and the frequency of the
examination; the nature and extent of the treatment relationship; the
15
degree to which the physician’s opinion is supported by relevant medical
evidence; the extent to which the physician’s opinion is consistent with the
rest of the record; whether the physician is a specialist in the field to which
the opinion has been given; [and] other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
20 C.F.R. §§ 416.927(2-6); see also Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
Plaintiff’s treating physician, Dr. Lara Penny, wrote, “I don’t support [Plaintiff’s] SSI
claim as her condition would improve with [physical therapy].” [#11-8 at 382]. Plaintiff instead
relies on the reports of two examining physicians, Dr. Laura Moran, who observed her physical
state, and Dr. William Graham, who evaluated her mental state. See [#11-7 at 345, 350]. These
physicians concluded that Plaintiff had impairments that could lead to a determination of
disability. [Id.]. The ALJ ruled that, in view of the examining physicians’ reports, Plaintiff did
indeed have impairments, but they were not severe enough to render her disabled. [#11-2 at
127]. In doing so, the ALJ gave “little weight” to the opinions of both examining physicians and
instead gave the treating physician’s opinions “the most weight.” [Id. at 122-23].
After considering the factors set forth above (see 20 C.F.R. §§ 416.927(2-6)), the court
finds the ALJ did not err when he placed heavier weight on the notes from Plaintiff’s treating
physician.
Dr. Penny treated Plaintiff on eighteen separate occasions over six years, for
complaints ranging from back and leg pain to foot calluses. See [#11-8 at 369, 371, 375-76, 38082, 387, 402, 404-05, 409, 416-418, 421, 430-31]. Through these interactions, Dr. Penny gained
detailed knowledge of Plaintiff’s life, relationships, and medical history. See [id.]. The ALJ’s
conclusions are consistent with Dr. Penny’s assessment that Plaintiff’s ailments would improve
with physical therapy:
In July of 2010, the claimant had an EMG study which was negative,
indicating that her back pain is muscular in nature. The record is fairly
absent of examination findings which offer much probative valuable
information as to her residual functional capacity. However, some notes
16
indicate that she had 5 out of 5 strength in her extremities and nothing
more than some tenderness in her back. These benign findings further
erode the credibility as to the severity and disabling nature of her
symptoms.
[#11-2 at 120].
The ALJ identified a specific and legitimate reason for discounting the examining
physicians’ opinions: they did not have all the essential information at the time of making their
determinations. Dr. Moran stated, “[b]ased on my examination of the claimant, her history, and
the currently available information, I do not think this claimant could sustain an eight-hour day
because of the severity of her back and leg pain, her radiculopathy, and the amount of narcotics
and muscle relaxants that she takes.” [#11-3 at 170 (emphasis added)]. However, the ALJ
concluded that Dr. Moran did not know about the disparity in the way that Plaintiff walked
before, during, and after their appointment, discussed above. Additionally, at the time that Dr.
Moran made this report, Plaintiff had self-reported radiculopathy, but Dr. Moran’s report
indicated she had not yet received the results of a confirmatory x-ray, see [#11-7 at 345 (stating
“an x-ray of claimant’s lumbosacral spine pends at the time of this dictation”)]—which showed
normal results. [Id. at 341].
Likewise, the ALJ found that Dr. Graham did not have the necessary information to make
his determination that Plaintiff had potentially disabling depression and anxiety. Dr. Graham
concluded that Plaintiff presented as “restless, anxious, stiff and tense” and “depressed, sad and
tearful.” [Id. at 349]. Based on these observations, Dr. Graham found Plaintiff “would appear to
have a moderate-to-marked impairment in her social functioning.” [Id. at 350]. However, as
discussed above, Plaintiff was joking and laughing with a member of the CDIU immediately
before entering Dr. Graham’s office. Since the ALJ—unlike Dr. Graham—had access to the
entire record, this court concludes that the ALJ had substantial evidence for his determination.
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B.
Incorporation of Examining Physicians’ Reports
Contrary to Plaintiff’s claims, the ALJ did not entirely disregard the examining
physicians’ reports; rather he incorporated them in his determination that Plaintiff is capable of
doing only light or sedentary work. Dr. Moran found decreased flexion of both hips, markedly
reduced range of motion in both knees, and decreased extension in her lumbar spine. [#11-7 at
344]. Dr. Graham stated that Plaintiff has moderate or moderate-to-marked impairments in her
ability to understand instructions, sustain concentration, and interact with supervisors and
coworkers. [#11-3 at 170]. The ALJ concluded that these impairments indeed exist, but did not
render Plaintiff disabled. Therefore, the court finds the ALJ did not disregard the examining
physicians’ reports.
C.
Treating Physician’s Medical Opinion
Plaintiff also argues that, by opining she “[did]n’t support [Plaintiff’s] SSI claim,” Dr.
Penny was overstepping into the role of the Commissioner. See [#11-8 at 382]. Contrary to
Plaintiff’s argument, Dr. Penny merely gave her medical opinion that Plaintiff’s condition could
improve with physical therapy and did not purport to make a final determination. Even if Dr.
Penny had offered such an opinion, a treating physician’s “opinion that a claimant is totally
disabled . . . is not dispositive because final responsibility for determining the ultimate issue of
disability is reserved to the Secretary.” Castellano v. Sec’y of Health and Human Servs, 26 F.3d
1027, 1029 (10th Cir. 2004). Therefore, the court does not find that the ALJ erred in considering
Dr. Penny’s opinion and there is nothing in the record to suggest that the ALJ improperly
substituted his independent judgment derived from the weighing the information with Dr.
Penny’s opinion.
18
D. Plaintiff’s Failure to Follow Prescribed Treatment
Plaintiff contends that the ALJ erred in relying upon the treating physician’s assessment
that she failed to comply with the prescribed treatment of physical therapy, not upon any
assessment of actual functional limitations (or lack thereof), was in error. [#15 at 23]. Ms.
Thomas argues that if the ALJ based his determination that she was not disabled on the basis that
she did not comply with prescribed treatment, the ALJ was required to make specific findings of
fact in accordance with 20 C.F.R. § 416.930. [Id. at 20]. Plaintiff claims that she was excused
from compliance, because her inability “to pay the copayment that physical therapy treatment
required . . . can be an acceptable reason for a failure to comply with prescribed treatment.” [Id.
at 24].
The Social Security Administration requires that “[i]n order to get benefits, [a claimant]
must follow treatment prescribed by [his] physician if this treatment can restore [his] ability to
work.” Need to Follow Prescribed Treatment, 20 C.F.R. § 416.930. However, some failures to
comply with prescribed treatment may be excused, including physical, mental, educational, and
linguistic limitations. See Thompson, 987 F.2d at 1490. Although not established by the
regulation, the Tenth Circuit has nonetheless extended these acceptable reasons to include
inability to pay. Id. at 1482. Before an ALJ may rely on the claimant’s failure to pursue
treatment as support for his determination, he should consider: “(1) whether the treatment at
issue would restore claimant’s ability to work; (2) whether the treatment was prescribed; (3)
whether the treatment was refused; and, if so, (4) whether the refusal was without justifiable
excuse.” Id. (internal quotations omitted). Where an indigent claimant refuses both costly
medical care as well as free remedies, the Tenth Circuit does not extend the excuse. See Qualls,
206 F.3d at 1373.
19
The ALJ considered “[r]ecords through July of 2012 indicat[ing] that [Plaintiff] was not
compliant with her doctor’s recommendations that she undergo physical therapy.” [#11-2 at
120]. The ALJ gave the treating physician’s statement that “she was not in support of the
claimant’s SSI claim as her condition would improve if she were to follow treatment such as
physical therapy.” [Id. at 123]. In making these observations, the ALJ implicitly considered and
concluded that the treatment would restore claimant’s ability to work; the treatment was
prescribed; and the treatment was refused; indeed, Plaintiff does not dispute as much. [#15 at
23]. Instead, Ms. Thompson now argues that the ALJ erred in not concluding that she was
excused from compliance due to her financial constraints.
As an initial matter, the court notes that the observation that Ms. Thompson failed to
comply with her physician’s recommendation for physical therapy does not appear to be the
basis for denial of her SSI claim. Instead, it appears that it is one indicia that the ALJ considered
in reaching his overall determination, including a review of her objective medical findings and
an assessment of her credibility. [#11-2 at 110-127]. Even if the court considers her failure to
comply with physical therapy as a basis for denying her SSI claim, the record does not support
the extension of the excuse to cover Plaintiff. Although two references to her inability to afford
physical therapy exist in the record, [#11-8 at 382, 430], there is ample evidence that Plaintiff
was encouraged not only to attend physical therapy, but engage in free stretching and at-home
fitness plans. See [#11-8 at 376, 394, 402-03, 425]. There is no evidence in the record, nor does
she argue, that Plaintiff attempted to comply with these free remedies. Nor is it clear from the
record that Plaintiff’s refusal to attempt any physical therapy for her condition was based upon
financial constraints. Therefore, the court concludes that Ms. Thompson should not be excused
20
and it will not disturb the ALJ’s conclusion that Plaintiff is not disabled, as any failure to
expressly consider Ms. Thompson’s financial condition is harmless.
III.
The ALJ’s Assessment of Plaintiff’s Subjective Complaints of Pain
Finally, Plaintiff claims the ALJ improperly failed to evaluate Plaintiff’s pain and other
nonexertional restrictions in determining her RFC. [#15 at 28]. But it is well-settled that:
[a] claimant’s subjective allegation of pain is not sufficient in itself to
establish disability. Before the ALJ need even consider any subjective
evidence of pain, the claimant must first prove by objective medical
evidence the existence of a pain-producing impairment that could
reasonably be expected to produce the alleged disabling pain.
Thompson, 987 F.2d at 1488. However, “the statute requires only a loose nexus between the
proven impairment and the pain alleged. Accordingly, if an impairment is reasonably expected
to produce some pain, allegations of disabling pain emanating from that impairment are
sufficiently consistent to require consideration of all the relevant evidence.” Luna v. Bowen, 834
F.2d 161, 164 (10th Cir. 1987) (emphasis in original). For these reasons, the ALJ must “consider
and determine (1) whether [Plaintiff] established a pain-producing impairment by objective
medical evidence; (2) if so, whether there was a loose nexus between that impairment and her
subjective allegations of pain; and (3) if so, whether, considering all the evidence, both objective
and subjective, [Plaintiff’s] pain was in fact disabling.” Franklin v. Astrue, 450 F. App’x 782,
789 (10th Cir. 2011) (internal quotation omitted). In applying these steps, the ALJ determined
that Plaintiff’s pain did not render her disabled.
First, he found that Plaintiff had three objective, pain-producing impairments: lumbar
spine disorder, depressive disorder, and an anxiety disorder. [#11-2 at 115]. The ALJ then
considered Plaintiff’s testimony that she could not work due to back, neck, and leg pain; takes
medications, including three types of pain medications; has difficulty bending, lifting, and
21
squatting; has difficulty going up and down stairs; can sit for no more than eleven minutes; can
lift twenty pounds, but cannot do so repeatedly; suffers from depression and anxiety; and
struggles with concentration and working well with others. See [id. at 116-18]. Despite finding
objective medical evidence and a loose nexus between the impairments and her subjective
allegations of pain, the ALJ concluded that considering all of the evidence, Plaintiff’s pain was
not, in fact, disabling.
The ALJ weighed the medical evidence of and treatment received for Plaintiff’s back,
knee, and leg pain. [Id. at 116]. For example, he considered “X-rays of [Plaintiff’s] cervical
spine [that] showed focal degenerative changes at C4-C-6.” [Id. at 116 (citing #11-8 at 426)].
He also considered “an EMG study which was negative, indicating that [Plaintiff’s] back pain is
muscular in nature,” and could therefore benefit from strengthening exercises. [Id. at 120]. The
ALJ also considered the physical examination completed by Dr. Moran, in which there was
found “no clubbing, cyanosis, edema, or deformity in any of [Plaintiff’s] joints or extremities[,] .
. . some decreased sensation to the lateral aspect of the right leg consistent with lumbar
radiculopathy[,] . . . [and] normal muscle strength throughout.” [Id. at 121 (citing #11-7 at
343)]. 6 This court finds no error in the manner in which the ALJ weighed these factors and
termed them to be “minimal . . . [and] clearly support[ing] that [Plaintiff] is capable of
performing work per the restrictions set forth” in the rest of his report. [Id.].
As to Plaintiff’s mental and emotional complaints, the ALJ also found evidence in the
record to support that Plaintiff’s subjective complaints of pain were rooted in real impairments.
For instance, he cited Plaintiff’s reports at a consultative psychological examination that she
suffered from “depressed mood, feeling sad, having no energy, and feeling hopeless and
6
Though not addressed by the ALJ, the record includes evidence that Dr. Moran found
decreased flexion of both hips, markedly reduced range of motion in both knees, and decreased
extension in her lumbar spine. See [#11-7 at 344].
22
worthless, . . . hear[ing] mumbling voices and ha[ving] frightening, disturbing thoughts.” [Id.].
Nonetheless, the ALJ found that the subjective and objective evidence did not support Plaintiff’s
allegations that she was disabled because of her depression and anxiety. Dr. Graham “diagnosed
[Plaintiff] with major depressive disorder [and] generalized anxiety,” but in the same
appointment “assigned [Plaintiff] a Global Assessment of Functioning scale score of 55
indicating no more than ‘moderate’ limitations.” [Id. at 121-122]. Based on these observations,
the ALJ concluded that “the claimant is capable of making a successful adjustment to other work
that exists in significant numbers in the national economy. A finding of ‘not disabled’ is
therefore appropriate.” [Id. at 126]. Because of these reasons, the court finds the ALJ relied on
substantial evidence in concluding Plaintiff’s subjective complaints do not render her disabled.
CONCLUSION
The court is satisfied that the ALJ considered all relevant facts and that the record
contains substantial evidence from which the Commissioner could properly conclude under the
law and regulations that Ms. Thomas was not disabled within the meaning of Title XVI of the
Social Security Act and therefore not eligible to receive Supplemental Security Income benefits.
Accordingly, IT IS SO ORDERED that the Commissioner’s final decision is AFFIRMED and
this civil action is DISMISSED, with each party to bear his own fees and costs. A separate
judgment will enter in favor of Defendant Carolyn W. Colvin, Acting Commissioner of Social
Security.
DATED: July 12, 2016.
BY THE COURT:
s/Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge
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