Salazar v. Colvin

Filing 21

OPINION AND ORDER re 10 SOCIAL SECURITY ADMINISTRATIVE RECORD, by Magistrate Judge Michael J. Watanabe on 4/14/2016. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01250-MJW
LEONARD TOBY SALAZAR,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

OPINION AND ORDER
MICHAEL J. WATANABE
United States Magistrate Judge
The government determined that Plaintiff is not disabled for purposes of the
Social Security Act. Plaintiff has asked this Court to review that decision. The Court
has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this
case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c).
Standard of Review
In Social Security appeals, the Court reviews the decision of the administrative
law judge (“ALJ”) to determine whether the factual findings are supported by substantial
evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue,
500 F.3d 1074, 1075 (10th Cir. 2007). “Substantial evidence is such evidence as a
reasonable mind might accept as adequate to support a conclusion. It requires more
than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269,
1271–72 (10th Cir. 2009) (internal quotation marks omitted). The Court “should, indeed
must, exercise common sense” and “cannot insist on technical perfection.” Keyes-

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Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the
evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
Discussion
At the second step of the Commissioner’s five-step sequence for making
determinations,1 the ALJ found that Plaintiff “has the following severe impairments:
degenerative disc disease, degenerative joint disease of the bilateral shoulders, obesity,
and uncontrolled hypertension.” (AR 24.) Together with Plaintiff’s non-severe
limitations, the ALJ then determined that Plaintiff has the following residual functional
capacity (“RFC”), as is relevant here:
[Plaintiff] has the residual functional capacity to perform light work . . . with
a sit-stand option at approximately 45-minute intervals. He would not be
off task while shifting and/or alternating positions. The claimant can never
operate foot controls bilaterally, never crawl or climb ladders, ropes, or
scaffolds. The claimant can occasionally crouch. He can frequently reach
above shoulder level bilaterally. The claimant must avoid concentrated
exposure to extreme cold, extreme heat, unprotected heights, and
hazardous or moving machinery.
(AR 25.) At the fourth and fifth steps of analysis, the ALJ found both that “the claimant
retains the capacity to perform ‘past relevant work’” and in the alternative that “there are
other jobs existing in the national economy that he is also able to perform,” thus
determining “that Plaintiff is not disabled.” (AR 30.)
Plaintiff asserts two errors: first, that the ALJ improperly weighed medical
opinions; second, that the ALJ’s credibility determination was not supported by
substantial evidence.

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The Social Security Administration uses a five-step sequential process for reviewing
disability claims. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

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I.

Weighing Medical Opinions
The Commissioner is required to evaluate all evidence meeting the definition of a

“medical opinion” according to specific rules. 20 C.F.R. § 404.1527. The weight to be
given to an opinion must be based on “examining relationship,” “treatment relationship,”
“supportability,” “consistency,” “specialization,” and “any [other] factors . . . which tend to
support or contradict the opinion.” § 404.1527(c)(1)-(6). Medical opinions that come
from a “treating source” receive preferred treatment, “since these sources are likely to
be the medical professionals most able to provide a detailed, longitudinal picture of []
impairment(s) and may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from reports of individual
examinations.” § 404.1527(c)(2). Thus, if a treating source provides a medical opinion,
the opinion will be given controlling weight if it (1) “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques,” and (2) “is not inconsistent
with the other substantial evidence in [the] record.” Id.
Even if it is not given controlling weight, a treating opinion will nonetheless be
weighed along with all other opinions. An RFC assessment must resolve each limitation
proffered by a medical opinion—either adopting it, reconciling it with conflicting
evidence, or explicitly declining to adopt it for specific reasons. Haga v. Astrue, 482
F.3d 1205, 1208 (10th Cir. 2007) (“An ALJ is not entitled to pick and choose through an
uncontradicted medical opinion, taking only the parts that are favorable to a finding of
nondisability.”); see also Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (“The
record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not

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required to discuss every piece of evidence. Rather, in addition to discussing the
evidence supporting his decision, the ALJ also must discuss the uncontroverted
evidence he chooses not to rely upon, as well as significantly probative evidence he
rejects.” (internal citation omitted)).
Here, the ALJ summarized the medical evidence, including medical opinions,
then concluded with this paragraph:
After reviewing the record as a whole, including the claimant’s hearing
testimony, I find there is no support for restricting the claimant beyond a
light exertional level. I accord partial weight to Dr. Oladiran’s opinion. Dr.
Oladiran’s physical examinations and other records support restricting the
claimant’s reaching and lifting/carrying, but they do not support limiting the
claimant’s standing and walking beyond that required for a light level of
work with a sit-stand option to either shift or change between sitting and
standing at 45-minute intervals. . . .
(AR 29.) Plaintiff argues that Dr. Oladiran’s opinion should have received controlling
weight or, failing that, more than the “partial” weight given.
The Court disagrees. The ALJ did not explicitly consider whether or not to give
Dr. Oladiran’s opinion controlling weight, but the ALJ’s reasoning was nonetheless on
point. The ALJ found that the some of the restrictions suggested by Dr. Oladiran were
not well-supported by medically acceptable clinical and laboratory diagnostic
techniques, and were not consistent with the overall record. These are the proper
factors for determining whether to assign controlling weight. § 404.1527(c)(2). They
are also the proper factors for determining whether to assign any weight.
§ 404.1527(c)(3), (4). The ALJ thus applied the correct legal standards; so long as the
findings were supported by substantial evidence, they are unassailable here.

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Although the ALJ’s discussion was less explicit than it perhaps should have
been, the evidence supporting these findings was spelled out elsewhere in the
opinion—specifically, in the five preceding paragraphs, in which the ALJ carefully
reviewed the medical evidence of record and noted repeatedly that medical testing
uniformly showed mild to moderate conditions and highly conservative treatment. The
ALJ’s reasoning was plain enough to allow meaningful review in this Court, and the ALJ
quite correctly found that the medical evidence supported Dr. Oladiran’s opinions as to
“reaching and lifting/carrying,” but not as to “the claimant’s standing and walking beyond
that required for a light level of work with a sit-stand option.” (AR 29.) ALJ’s findings
were supported by substantial evidence.
Accordingly, the Court rejects Plaintiff’s arguments as to Dr. Oladiran’s opinion.
II.

Credibility Determinations
“Credibility determinations are peculiarly the province of the finder of fact,” and

the Court “will not upset such determinations when supported by substantial evidence.”
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 F2d
1125, 1133 (10th Cir. 1988). When evaluating a claimant’s subjective statements
regarding pain, an ALJ should consider factors such as:
the levels of medication and their effectiveness, the extensiveness of the
attempts (medical or nonmedical) to obtain relief, the frequency of medical
contacts, the nature of daily activities, subjective measures of credibility
that are peculiarly within the judgment of the ALJ, the motivation of and
relationship between the claimant and other witnesses, and the

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consistency or compatibility of nonmedical testimony with objective
medical evidence.
Id. at 1132; see also Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual’s Statements, SSR 96-7P, 1996 WL 374186 (July 2, 1996).
The ALJ need not perform “a formalistic factor-by-factor recitation of the evidence” but
nonetheless must “set[] forth the specific evidence he relies on in evaluating the
claimant’s credibility.” See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
The ALJ’s relied on the following points in the credibility analysis:
Despite his alleged impairments, the claimant reported he could attend to
most of his personal needs independently such as caring for his hair,
shaving, and feeding himself; he could prepare complete meals; he could
perform light housework including making his bed and washing laundry;
he could exercise daily. The claimant reported he could walk and drive a
vehicle for transportation and go grocery shopping. . . . These reported
activities demonstrate the claimant is more capable than he alleged.
Additionally, the claimant worked after his alleged onset date. He reported
working on a part-time basis between 2010 and 2012 as a merchandiser,
with an average of 9 hours of work per week. The claimant also reported
he did not receive any special work conditions or accommodations due to
his impairments during this nearly two-year period of employment.
Although that work activity does not constitute disqualifying substantial
gainful activity, it does indicate the claimant’s activities may have, at times,
been somewhat greater than reported.
Of note, the claimant alleged disability beginning in July 2009, but he did
not submit evidence of treatment for any medically determinable
impairment before February 2013 – over two years later. . . .
The objective medical evidence submitted does not support the claimant’s
allegations of disabling symptoms and limitations. Instead, it supports
restricting the claimant to the range of light work described in the residual
functional capacity. . . .

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(AR 27 (internal citations to the record omitted).) The ALJ then went on to review the
objective medical evidence and the opinion evidence. Plaintiff sees several mistakes in
this analysis.
Plaintiff argues first that the absence of objective corroborating evidence is an
improper consideration. Plaintiff is correct that an ALJ may not discredit a claimant’s
allegations of pain simply because they cannot be objectively proven. Thompson v.
Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993) (“[T]he absence of an objective medical
basis for the degree of severity of pain may affect the weight to be given to the
claimant's subjective allegations of pain, but a lack of objective corroboration of the
pain's severity cannot justify disregarding those allegations.”). But Plaintiff’s argument
nonetheless fails because the ALD did not cite the absence of objective corroborating
evidence. Rather, the ALJ relied on the presence of objective contradicting evidence.
This is a proper consideration, see 20 C.F.R. § 404.1529 (“Your symptoms, including
pain, will be determined to diminish your capacity for basic work activities to the extent
that your alleged functional limitations and restrictions due to symptoms, such as pain,
can reasonably be accepted as consistent with the objective medical evidence and
other evidence.” (emphasis added)), and it is supported by substantial evidence. It is
therefore not reversible error.
Plaintiff argues first that short-term, sporadic activities do not negate his claims of
disability. This, too, is true so far as it goes. See Thompson, 987 F.2d at 1490. But
again, it’s not an accurate description of the ALJ’s reasoning. The ALJ did not rely on
Plaintiff’s sporadic activity to show that Plaintiff was capable of working, but rather to

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show that Plaintiff exaggerated the severity of his symptoms. This, too, is legally
proper, see Huston, 838 F.2d at 1132 (ALJ should consider “the nature of daily
activities”), and it is supported by substantial evidence; it is therefore not reversible
error.
Finally, Plaintiff argues that his inability to seek more thorough treatment cannot
be held against him without first establishing whether he had good cause for refusing
treatment (such as an inability to pay). And again, it is true that an ALJ cannot use a
claimant’s medical noncompliance against them unless certain conditions have been
met. See Thompson, 987 F.2d at 1490. But again, this argument mischaracterizes the
ALJ’s reasoning. The ALJ did not rely on Plaintiff’s refusal to follow treatment, but
rather his failure to seek treatment. This, too, is legally proper, see Huston, 838 F.2d at
1132 (ALJ should consider “the extensiveness of the attempts (medical or nonmedical)
to obtain relief”), and is supported by substantial evidence; it is therefore not reversible
error.
Accordingly, the Court rejects Plaintiff’s arguments as to the ALJ’s credibility
determination.
Conclusion
For the reasons set forth above, the Commissioner’s decision is AFFIRMED.

Dated this 14th day of April, 2016.
BY THE COURT:
/s/ Michael J. Watanabe
MICHAEL J. WATANABE
United States Magistrate Judge