Arguello v. Colvin

Filing 25

ORDER AFFIRMING COMMISSIONER: the conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is AFFIRMED. By Judge Robert E. Blackburn on 2/8/17. (kfinn)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 15-cv-02392-REB
JESS ARGUELLO,
Plaintiff,
v.
NANCY A. BERRYHILL,1 Acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],2 filed October 28, 2015,
seeking review of the Commissioner’s decision denying plaintiff’s claims for disability
insurance benefits and supplemental security income benefits under Titles II and XVI of
the Social Security Act, 42 U.S.C. § 401, et seq. I have jurisdiction to review the
Commissioner’s final decision under 42 U.S.C. § 405(g). The matter has been fully
briefed, obviating the need for oral argument. I affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he is disabled as a result of a back disorder and an affective
disorder. After his applications for disability insurance benefits and supplemental

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 21, 2017, and thus
her name is substituted for that of Carolyn Colvin as the defendant in this suit. FED. R. CIV. P. 25(d)(1). By virtue
of the last sentence of 42 U.S.C. § 405(g), no further action needs to be taken to continue this lawsuit.
2

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

security income benefits were denied, plaintiff requested a hearing before an
administrative law judge. This hearing was held on April 21, 2014.3 At the time of the
hearing, plaintiff was 48 years old. He has a high school education and past relevant
work experience as a laborer. He has not engaged in substantial gainful activity since
April 30, 2010, his alleged date of onset.
The ALJ found plaintiff was not disabled and therefore not entitled to disability
insurance benefits or supplemental security income benefits. Although the medical
evidence established plaintiff suffered from severe impairments, the judge found the
severity of those impairments did not meet or equal any impairment listed in the social
security regulations. The ALJ determined plaintiff had the residual functional capacity to
perform simple, unskilled work at all exertional levels with certain postural and
manipulative restrictions which required no frequent or prolonged contact with coworkers, supervisors, or the public. Although this conclusion precluded plaintiff’s past
relevant work, the ALJ found there were other jobs existing in substantial numbers in
the national and local economies he could perform. He therefore found plaintiff not
disabled at step five of the sequential evaluation. Plaintiff appealed this decision to the
Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if his
physical and/or mental impairments preclude him from performing both his previous
work and any other “substantial gainful work which exists in the national economy.” 42

3

This hearing followed a remand from the Appeals Council of the ALJ’s previous unfavorable
disability determination. (Tr. 110-111.)

2

U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a quinquepartite sequential evaluation
process for determining whether a claimant is disabled:
1.

The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.

2.

The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.

3.

The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.

4.

If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform her past work despite any limitations.

5.

If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.

3

20 C.F.R. § 404.1520(a)(4)(i)-(v).4 See also Williams v. Bowen 844 F.2d 748, 750-52
(10th Cir. 1988). The claimant has the initial burden of establishing a disability in the first
four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287,
2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show
the claimant is capable of performing work in the national economy. Id. A finding that
the claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. Casias v. Secretary of Health & Human Services, 933
F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

4

Throughout this opinion, I cite to relevant sections of Part 404 of Title 20 of the Code of Federal
Regulations, which contain the Commissioner’s regulations relating to disability insurance benefits.
Identical, parallel regulations can be found in Part 416 of that same title, relating to supplemental security
income benefits.

4

Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
III. LEGAL ANALYSIS
Plaintiff alleges error in the ALJ’s assessment of the various medical and other
source opinions of record in this case, and claims further the ALJ’s combative attitude at
the hearing denied him the fair, non-adversarial hearing to which he was entitled.
Finding no such errors, I affirm.
Plaintiff first faults the ALJ for failure to consider the functional restrictions
suggested by physician assistant Valerie Lobato. While the ALJ should have evaluated
this opinion, see Zagorianakos v. Colvin, 81 F.Supp.3d 1036, 1043 (D. Colo. 2015)
(citing Social Security Ruling 06-03p, 2006 WL 2329939 at *3-4 (SSA Aug. 9, 2006)),
his failure to do so in this case undoubtedly was harmless, Bernal v. Bowen, 851 F.2d
297, 303 (10th Cir. 1988). Ms. Lobato saw plaintiff a total of four times over a period of
approximately five months in 2012.5 Although plaintiff mentioned he suffered from
intermittent back pain, his primary complaints were unrelated to his back, and he did not
seek or receive treatment for that condition. (Tr. 343-350.)6
5

Plaintiff’s characterization of Ms. Lobato as a “treating source” cannot withstand scrutiny. Only
an acceptable medical source can be considered a treating source. 20 C.F.R. § 404.1502, a physician
assistant such as Ms. Lobato technically cannot be a treating source, see Weaver v. Astrue, 353 Fed.
Appx. 151, 154-55 (10th Cir. Nov. 18, 2009). Even if Ms. Lobato were an acceptable medical source, her
brief treatment relationship with plaintiff would not support a finding that she was a treating source. See
20 C.F.R. § 404.1527(c)(2)(i) (“Generally, the longer a treating source has treated you and the more times
you have been seen by a treating source, the more weight we will give to the source's medical opinion.”);
20 C.F.R. § 404.902 (treating source is one with whom claimant has “ongoing treatment relationship”).
See also Pacheco v. Colvin, 83 F.Supp.3d 1157, 1163 (D. Colo. 2015); Megginson v. Astrue, 2011 WL
4382570 at *3 n. 3 (D. Colo. Sept. 20, 2011), aff'd, 489 Fed. Appx. 260 (10th Cir. July 17, 2012).
6

Plaintiff injured his back at work in July 2009. (See Tr. 293-294.) He was released to work with
fairly substantial lifting, carrying, and bending restrictions one week later. (See Tr. 290.) The following
week, plaintiff returned to the doctor demanding to be released to work without restriction. Dr. Richard
Nanes acceded, noting plaintiff “is really not going to harm himself by going back to work without
restriction[.]” (Tr. 289.) Although plaintiff was scheduled for epidural injections and physical therapy
(see Tr. 287), he did not receive the injections (for reasons that appear to be insurance-related) and was
discharged from physical therapy for failing to keep scheduled appointments. (Tr. 286.) Nevertheless, in

5

Based on this brief and unremarkable treatment history, Ms. Lobato’s conclusory
opinion as to plaintiff’s functional abilities, authored more than a year after she last
treated him, adds no ballast to his claims of disability.7 That opinion would rightly have
been characterized as inconsistent with and unsupported by Ms. Lobato’s own
treatment notes, which show she merely reviewed a largely unremarkable 2009 MRI8
and found tenderness to palpation over the implicated area of plaintiff’s lumbar spine on
examination. (See Tr. 346.) See Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)
(opinion unsupported by medical evidence properly rejected); Rios v. Astrue, 848
F.Supp.2d 1283, 1289 (D. Colo. 2012) (same). As plaintiff has neither argued nor
attempted to demonstrate how the failure to address Ms. Lobato’s opinion directly
prejudiced his substantial rights, the error does not warrant remand. Williams v.
Chater, 1995 WL 490280 at *2 (10th Cir. Aug. 16, 1995) (“Procedural imperfection that
does not affect a party's substantive rights is not a basis for reversal.”). See also
Colosky v. Colvin, 68 F.Supp.3d 1359, 1365 (D. Colo. 2014).
Next, plaintiff claims the ALJ erred in failing to account more fully for the mental
limitations endorsed by the state agency psychiatrist, Dr. Sara Sexton. While the ALJ
gave “great weight” to the bulk of Dr. Sexton’s ultimate conclusions, he did not discuss
her more specific findings of moderate limitations in several areas of work-related

late September, plaintiff reported “[d]espite everything, he is doing much better,” and Dr. Nanes noted he
had full lumbar flexion to about 80 degree largely without pain, good range of motion without pain on side
bending, and full range of motion and no pain on straight leg test. In light of plaintiff’s “vast improvement
as compared to July’s visit,” Dr. Nanes released him to return to work without restriction and noted he had
reached maximum medical improvement, with no permanent impairment and no need for follow up or
maintenance care. (Tr. 286.)
7

Ms. Lobato completed a one-page form suggesting plaintiff could sit for 40 minutes at a time for
no more than four hours a day and could be on his feet for up to 45 minutes at a time for no more than 4
hours in an eight hour day (Tr. 342.)
8

The MRI revealed a small disc herniation at L5-S1 with mild narrowing of the foramen bilaterally.
(Tr. 304-305, 346.)

6

mental functioning while assessing the “paragraph B” criteria used to evaluate mental
impairments. (See Tr. 19-20, 88-90.)
This argument is contrary to law, indeed, contrary to the very case plaintiff cites
in support of it. See Carver v. Colvin, 600 Fed. Appx. 616 (10th Cir. Jan. 20, 2015). As
noted in Carver, the Commissioner’s Program Operations Manual Systems (“POMS”)
provides that this section of the evaluator’s review form serves as “a worksheet to
ensure that the psychiatrist or psychologist has considered each of these pertinent
mental activities and the claimant's or beneficiary's degree of limitation.” Id. at 619
(quoting POMS DI 25020.010 B.1; internal quotation marks omitted). Based on these
notes, the reviewing doctor then prepares a narrative to “explain[] the conclusions
indicated in section I, in terms of the extent to which these mental capacities or
functions could or could not be performed in work settings.” POMS DI 24510.060 B.4.a.
& B.4.b. “It is the narrative written by the psychiatrist or psychologist in Section III . . .
that adjudicators are to use as the assessment of RFC.” POMS DI 25020.010 B.1. The
ALJ properly relied on that narrative here in formulating plaintiff’s mental residual
functional capacity. (Tr. 19-20.)
Not surprisingly, if the narrative portion of the evaluator’s opinion “fails to
describe the effect that each of the Section I moderate limitations would have on the
claimant's ability, or if it contradicts limitations marked in Section I, the [opinion] cannot
properly be considered part of the substantial evidence supporting an ALJ's RFC
finding.” Carver, 600 Fed. Appx. at 619. This is not such a case. Although plaintiff
claims Dr. Sexton’s narrative opinion failed to account for the moderate limitations she

7

found in plaintiff’s ability to maintain concentration, persistence, and pace (see Tr. 89),9
her conclusion that plaintiff could sustain ordinary work routines and adapt to workrelated situations addresses that issue. (Tr. 90.) Those findings appear addressed to
the issue of concentration, persistence, and pace and are not plainly contrary to the
finding of moderate limitations. See Carver, 600 Fed. Appx. at 619-20.10
Plaintiff also maintains the ALJ erred in discounting the manipulative restrictions
suggested by the consultative examiner, Dr. Christopher Davis. The ALJ reviewed this
opinion thoroughly, giving “great weight” to Dr. Davis’s suggested postural and
exertional limitations (which were, specifically, that plaintiff had none) but only limited
weight to his suggested manipulative limitations because plaintiff did not complain of
pain in his wrists or arms either during the examination or at any other time. (Tr. 18.)11
Arguing that “the absence of evidence is not evidence,” plaintiff claims this does not
constitute a sufficient reason to discount the doctor’s medical opinion.
The problem, of course, is that it is plaintiff’s burden to present evidence in
support of his claim of disability, Bowen, 107 S.Ct. at 2294 n.5, and the lack of objective
medical evidence is a pertinent consideration in determining how much weight to assign
a medical source opinion, 20 C.F.R. § 404.1527(c)(3). As the ALJ observed, the record
is absolutely devoid of any evidence that plaintiff ever complained to a medical source

9

Specifically, Dr. Sexton found plaintiff to be moderately limited in his “ability to complete a
normal workday and workweek without interruptions from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length of rest periods.” (Tr. 89.)
10

Likewise, plaintiff’s suggestion that a moderate limitation on the ability to respond to changes in
the work setting would interfere with the basic demands of unskilled work is nothing more than a
disagreement with Dr. Sexton’s medical opinion.
11

More specifically, based on a flexion deformity of plaintiff’s pinky finger, the ALJ modified Dr.
Davis’s suggestion that plaintiff should be limited to “occasional” reaching, pushing, pulling, grasping,
fingering, and handling to permit him to do these activities “frequently.” (Tr. 18). See Social Security
Ruling 83-10, 1983 WL 31251 at *5-*6 (SSA 1983) (“occasionally” means “occurring from very little up to
one-third of the time,” whereas “frequently” means “occurring from one-third to two-thirds of the time”).

8

about any issues with his hands or wrists. Dr. Davis’s own examination notes show
plaintiff had normal grip strength and, with the exception of being unable to fully extend
his little finger due to a flexion deformity, the examinations of his wrists, fingers, and
hands were completely normal and unremarkable. (Tr. 316-317.)

The record thus

more than adequately supports his rejection of these proposed limitations.12
Finally, plaintiff argues the ALJ did not give valid reasons for affording little
weight to the opinions of the consultative psychological examiner, Dr. Richard Madsen.
I cannot agree. The record fully supports the ALJ’s decision to discount Dr. Madsen’s
opinions as inconsistent with the doctor’s own examination findings and the record as a
whole.
For example, there was nothing disingenuous in the ALJ’s characterization of
plaintiff’s GAF score of 60 as “mild to moderate,” given that score did indeed place
plaintiff at the high end of the moderate range, on the cusp of mild.13 Compare
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
at 34 (Text Revision 4th ed. 2000) [“DSM-IV”] (GAF score of 51-60 “indicates moderate
symptoms . . . or moderate difficulty in social, occupational, or school functioning”), with

12

Moreover, and contrary to plaintiff’s argument, the ALJ was not substituting his own lay opinion
for Dr. Davis’s medical opinion in refusing to adopt these limitations. Hamlin v. Barnhart, 365 F.3d 1208,
1221 (10th Cir. 2004). The ALJ was not purporting to assert a medical opinion but to craft a residual
functional capacity assessment, which is not a medical determination but an administrative one, and thus
reserved to the Commissioner. 20 C.F.R. § 404.1546(c); Lumpkin v. Colvin, 112 F.Supp.3d 1169, 1173
(D. Colo. 2015). The ALJ here merely evaluated Dr. Davis’s opinion in the context of the medical
evidence, which is entirely within his legitimate purview. See Lopez v. Barnhart, 183 Fed. Appx. 825,
829 (10th Cir. June 13, 2006). See also 20 C.F.R. § 404.1527(c)(3). Cf. Hamlin, 365 F.3d at 1121 (ALJ
erred in finding the plaintiff’s complaints not credible on basis that the plaintiff did not require an assistive
device for his neck, where no medical professional ever opined such a device was required or would have
proven efficacious in addressing the plaintiff’s pain).
13

“The GAF is a subjective determination based on a scale of 100 to 1 of the clinician's judgment
of the individual's overall level of functioning.“ Langley v. Barnhart, 373 F.3d 1116, 1122 n.3 (10th Cir.
2004) (citation and internal quotation marks omitted).

9

DSM-IV at 32 (GAF score of 61–70 indicates “some mild symptoms
. . . OR some difficulty in social, occupational, or school functioning . . . but generally
functioning pretty well”).14
Nor did the ALJ ignore allegedly supportive findings in Dr. Madsen’s reports. In
this regard, plaintiff points principally to Dr. Madsen’s findings that plaintiff had
borderline intellectual functioning and a full-scale IQ of 70, and certain components of
that assessment. The ALJ addressed these specifically and noted plaintiff’s long work
history belied any work-related deficit in his mental functioning.15 (Tr. 19.) See 20
C.F.R. § 404.1520(b) (claimant who is performing substantial gainful activity is not
disabled regardless of medical condition, age, education, or work experience). See
also Harrison v. Colvin, 2014 WL 892124 at * n.4 (D. Colo. March 6, 2014) (alleged
impairments existed during period of time plaintiff was still working); Martinez v. Astrue,
2013 WL 1232194 at *3 (D. Colo. March 26, 2013) (impairment alleged to have existed
during majority of claimant’s working life).
Moreover, the record fully supports the ALJ’s conclusions that Dr. Madsen’s
restrictions were inconsistent with his own examination findings and with the record as a
whole. As the ALJ noted, Dr. Madsen’s examination demonstrate that, despite his
blunted affect, plaintiff’s persistence, pace, and fund of knowledge were adequate, his
thought content was logical and relevant, and he was able to perform simple arithmetic

14

Nor is there anything amiss in the ALJ’s characterization of Dr. Madsen’s proposed mental
limitations as “extreme” in comparison to the GAF score assigned. (Tr. 19.) On a residual functional
capacity evaluation form, Dr. Madsen rated plaintiff as moderately to markedly impaired in nineteen of the
the twenty areas of work-related functioning listed. (Tr. 335-336.)
15

As IQ is presumed to be consistent over a person’s lifetime, see Arguello v. Astrue, 2008 WL
5330588 at *3 n.3 (D. Colo Dec. 19, 2008); Nieves v. Astrue, 2008 WL 4277995 at *5 (D. Colo. Sept. 16,
2008), this observation was relevant and probative.

10

in his head. (Tr. 309.) As discussed above in relation to the ALJ’s analysis of Dr.
Davis’s opinions, plaintiff’s complaint that the ALJ substituted his own lay judgment for
that of a medical expert in concluding that these findings did not translate into the
functional limitations suggested by Dr. Madsen is not sound. See Lumpkin, 112
F.Supp.3d at 1172; Moses v. Astrue, 2012 WL 1326672, at *4 (D. Colo April 17, 2012).
Moreover, it is abundantly clear that the record as a whole fails to substantiate
Dr. Madsen’s suggested limitations. The record is absolutely devoid of any evidence
that plaintiff ever sought or received mental health evaluation or treatment as an adult,
despite his allegation that this condition predated his back injury. (Tr. 306, 329.)
Moreover, in spite of both this condition and his borderline intellectual functioning,
plaintiff spent the majority of his working life as a cement mason, a skilled occupation.
(See Tr. 32.)16
In short, it is apparent the ALJ properly and adequately assessed the medical
opinions of record, giving valid reasons for the weight he assigned to each and wellsupported explanations for those aspects of each opinion he did not adopt. Because
his opinion thus is supported by substantial evidence, remand is not warranted. These
same considerations belie plaintiff’s suggestion that the ALJ’s allegedly “adversarial”
questioning at the hearing deprived him of the fair and impartial hearing to which he was
entitled. See St. Anthony Hospital v. United States Department of Health and

16

The vocational expert characterized plaintiff’s past relevant work as a cement mason as “heavy
work with an SVP of 7.” (Tr. 32.) “SVP,” or Specific Vocational Preparation, “is defined as ‘the amount of
lapsed 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.’“ Dikeman v. Halter, 245 F.3d
1182, 1186 (10th Cir. 2001) (citation omitted). Under the Commissioner’s regulations, “[s]killed work
corresponds to an SVP of 5-9 in the DOT.” Social Security Ruling 00-4p, 2000 WL 1898704 at * 3 (SSA
Dec. 4, 2000). See also Dictionary of Occupational Titles, Components of the Definition Trainer, App.
C, § II (SVP of 7 describes a job that requires over two years and up to and including four years to learn)
(available at http://www.occupationalinfo.org/ appendxc_1.html#II) (last accessed February 3, 2017).

11

Human Services, 309 F.3d 680, 711 (10th Cir. 2002). At best, the transcript suggests
the ALJ briefly expressed frustration at being asked to further elucidate his prior
decision and voiced a skeptical opinion of Dr. Madsen’s professional opinions in
general. (Tr. 49-52.) Whatever error might have inured to giving vent to such feelings
in the context of an administrative hearing, nothing in the ALJ’s disability decision
suggests that it was infected by any illicit bias or prejudice, and plaintiff does not argue
as much. St. Anthony Hospital, 309 F.3d at 711 (“‘[A] substantial showing of personal
bias is required . . . to obtain a ruling that the hearing is unfair.’”) (quoting Roberts v.
Morton, 549 F.2d 158, 164 (10th Cir. 1976)). Remand thus is not warranted on this
basis either.
IV. ORDERS
For these reasons, I find no reversible error in the ALJ’s disability determination,
which accordingly must be affirmed.
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated February 8, 2017, at Denver, Colorado.
BY THE COURT:

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