Weaver v. Colvin
MEMORANDUM AND OPINION and ORDER by Magistrate Judge Nina Y. Wang on 2/13/17. The Court affirms the Commissioner's decision and dismisses this civil action, with each party to bear his and her own fees and costs. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02523-NYW
STEVEN A. WEAVER,
CAROLYN W. COLVIN,
MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This civil action comes before the court pursuant to Titles II and XVI of the Social
Security Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83(c) for review of the Acting
Commissioner of Social Security’s final decision denying the application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) of Plaintiff Steven
Weaver (“Plaintiff” or “Mr. Weaver”). Pursuant to the Order of Reference dated April 5, 2016
[#22], this civil action was referred to the Magistrate Judge for a decision on the merits. See 28
U.S.C. § 636(c); Fed. R. Civ. P. 73; D.C.COLO.LCivR 72.2. The court has carefully considered
the Complaint filed November 17, 2015 [#1], Plaintiff’s Opening Brief filed February 29, 2016
[#17], Defendant’s Response Brief filed March 21, 2016 [#18], Plaintiff’s Reply Brief filed April
4, 2016 [#21], the entire case file, the administrative record, and applicable case law. For the
following reasons, I respectfully AFFIRM the Commissioner’s decision.
On June 26, 2012, Mr. Weaver filed a Title II application for DIB and a protective Title
XVI application for SSI. See [#13-4 at 232-233].1 Mr. Weaver finished high school and has four
years of a college education and a Master’s degree. [#13-4 at 240; #13-3 at 218]. He alleged in
the application that he became disabled on December 14, 2007, and suffers from a variety of
physical and mental impairments. Plaintiff’s arguments on appeal center around his coronary
artery disease, a fracture sustained to his right arm, and his mental impairments. [#13-2 at 47;
#17 at 47-56]. He was forty-five years old at the date of onset. Administrative Law Judge
Jennifer Simmons (“ALJ”) denied Mr. Weaver’s application after three administrative hearings
held November 7, 2013, December 19, 2013, and January 14, 2014; Plaintiff was represented by
counsel at each hearing. [#13-2 at 41-67; #13-3 at 92, 173].
The ALJ continued the first administrative hearing, held November 7, 2013, to allow Mr.
Weaver to obtain the testimony of two medical experts. [#13-2 at 44]. Medical expert Howard
McClure, M.D., testified at the second hearing, held December 19, 2013. [Id.] Medical expert
Robert Pelc, Ph.D. testified at the third hearing, held January 14, 2014. [Id.] Jammie C. Massey,
a vocational expert (“VE”), also testified at the January 2014 hearing. [Id.] The ALJ then
reviewed additional evidence Plaintiff submitted after the final hearing, before issuing her
written decision. [Id.]
On November 7, 2013, Mr. Weaver testified he had not worked since 2007. [#13-2 at
74]. However, he also testified that in 2011 he engaged in volunteer work for Temporary
Assistance for Needy Families (“TANF”); he lost TANF funds when his duties changed such
that he could not perform them. [Id. at 76; #17 at 7]. Also, between August 2012 and October
The court uses this designation to refer to the Electronic Court Filing system (“ECF”)
document number and the page number of the Administrative Record, where applicable.
2012, Plaintiff was involved in a desalination business and was “bidding a project in Mexico,”
“following up with [potential investors],” but testified that “[i]t was a brief thing, just one day,”
and the business closed. [#13-2 at 75-76]. The ALJ asked Mr. Weaver about several medical
reports that referenced his work or attempts to work during 2012. The first was a March 2012
treatment note in which his treating physician, Tillman Farley, M.D., noted that Plaintiff reported
working 20 to 32 hours in a week. Plaintiff asserted that Dr. Farley must have misunderstood
him, and that in actuality he “may have worked 20 to 32 hours that month.” [Id. at 77-78]. The
second was a January 2013 consultative exam authored by Kristin Helvig, Ph.D., a doctor to
whom Social Security had referred Plaintiff, who noted Plaintiff “tried to do different jobs last
year,” and worked a sales commission job that he quit after three months. [Id. at 80]. Plaintiff
represented that he did not remember that exam and had not participated in any such job. [Id. at
81-82]. The third was a May 2013 assessment that recorded Plaintiff’s complaint that he had
hurt his shoulder at work. [Id. at 82; #13-3 at 130-131]. Lastly, the ALJ asked Plaintiff about a
July 2012 report that noted Plaintiff was working in landscaping and fencing outside. Plaintiff
testified that he never engaged in any physical labor, he ran errands occasionally for his
landlady, and that any comments to his doctors to the contrary were simply his effort to appear
“upbeat.” [#13-2 at 83-84; #13-3 at 131]. Mr. Weaver also testified that he had looked for work
“[a]ll the time” in the previous two years, mainly “[c]onsulting” and “[w]hatever is there.” [#132 at 85]. Finally, Plaintiff testified that he had driven himself and his daughter to California in
2011. The drive took four days and he drove “[n]o more than ten [hours]” a day. [Id. at 84-85].
They lived in California from the first of September to the first of November 2011. [Id. at 84].
The ALJ continued the hearing to allow Plaintiff to retrieve medical records from his
cardiologist. [Id. at 86-87].
During the reconvened hearing on December 19, 2013, Dr. McClure testified as an
objective medical examiner as to Plaintiff’s physical impairments. He testified that, according to
his review of the medical evidence and in his opinion, Plaintiff’s impairments did not meet or
medically equal any listing, but specifically did not meet the listings at 4.04, 1.04 and 1.02.
[#13-3 at 99-100].
Dr. McClure also testified that in his opinion a “full light RFC” was
appropriate to accommodate Plaintiff’s physical impairments.
[Id. at 100].
attorney objected to Dr. McClure’s testimony on the basis that it was incomplete, and he asked
the ALJ not to attribute any weight to the testimony. [Id. at 101].
Also during this hearing, Plaintiff testified as to his work background. He described
himself as an entrepreneur who specialized in constructing aquariums and who did not have
much experience with supervisors, and stated that in 2007 he was a chief executive officer who
was “on top of the world.” [#13-3 at 137-138]. His was a contract position and he was paid
“based on the investment in the company”; his investors stopped investing toward the end of the
year and he lost the position in December 2007. [Id. at 140-141]. He testified that during this
time he had received other offers to work in his field but they required him to live in and relocate
his family to Dubai, UAE, which he was unwilling to do. [Id. at 141].
Plaintiff also testified that he deteriorated psychologically in 2008, when he began
experiencing anxiety and panic attacks. [#13-3 at 142]. He stated he spent “most of [his] days
on the phone with trying to find new investors in the company, and the technology that we had to
try to get it back going.” [#13-3 at 134-136, 144]. The attacks were exacerbated by his wife’s
suicide in 2010. [Id. at 136, 189]. He testified that he has since “lost everything” and is
homeless; he lives in a camper without heat that he must move periodically because he cannot
afford to rent space at a trailer park. [Id. at 144]. Plaintiff testified that multiple stressors,
including no regular residence, cause his attacks, and that he had and continues to have trouble
interacting with people as a result of those stressors. [Id. at 137]. He testified that he feels out of
control every day. [Id. at 167]. His teenage daughter was not living with him at the time of the
hearing, but rather living with family friends. [Id. at 157].
Mr. Weaver’s attorney also examined him with regard to physical ailments. First, they
discussed Mr. Weaver’s right elbow, which he injured when his truck ran over it in June 2012.
[#13-3 at 145]. Plaintiff testified that, by way of example, he now cannot shake a person’s hand,
open a door knob, or open a can of cat food without the sensation of his elbow popping and his
arm giving out, which he described as very painful. [Id. at 145-146]. Mr. Weaver also spoke
about pain in his back, shoulders, ankles, and knees, which he described as “old stuff,” for which
he takes morphine. [Id. at 146]. However, he stated, morphine fails to alleviate the pain and it
causes him anger and depression as side effects. [Id.] He rolls his ankle frequently, and he
testified that “[t]wo toes are almost always numb,” and if he walks two blocks his “whole foot is
numb.” [Id. at 165]. He also experiences chest pains with every panic attack, which he referred
to as “stress-induced angina.” [Id. at 165-166].
The hearing was reconvened a final time on January 14, 2014, at which time Dr. Pelc
testified as an objective medical examiner as to Plaintiff’s mental impairments. See [#13-3 at
173]. In response to Dr. Pelc’s question whether Plaintiff was currently taking any psychological
medication, Plaintiff testified that he was taking Trazodone to help him sleep and Clonazepam.
[Id. at 181]. Dr. Pelc testified that he reviewed documentation regarding three conditions “from
a psychological perspective”: a depressive disorder or bereavement problem, classified as an
affective disorder under 12.04; a post-traumatic stress or anxiety not otherwise specified
disorder, classified as an anxiety-related disorder under 12.06; and a personality disorder not
otherwise specified under 12.08. [Id. at 182-183]. In Dr. Pelc’s opinion, Plaintiff’s conditions
did not meet or equal the psychological listings regarding the B or C variable, [id. at 183-188],
and that he “was capable of performing tasks that were at least detailed tasks, and that he could
have occasional to frequent contact with others.” [Id. at 190].
The VE also testified during this hearing.
The ALJ queried whether a person of
Plaintiff’s age and level of education could perform Plaintiff’s previous work positions taking
into consideration the following limitations: lift and/or carry 50 pounds occasionally and 25
pounds frequently; stand and/or walk six hours in an eight-hour workday; sit six hours in an
eight-hour workday; climb ramps and stairs frequently; stoop, kneel, crouch, or crawl frequently;
climb ladders, ropes, or scaffolds occasionally; and interact with others, including coworkers,
supervisors, and the public, only occasionally. [#13-3 at 218]. The individual was assigned no
limitations with respect to balance, exposure to hazards, heights, or dangerous machinery,
extreme temperatures, or the ability to understand, remember, and carry out detailed instructions.
[Id.] The VE testified that such a person could not perform in Plaintiff’s previous positions
because of the limitation of only occasional interaction with others. [Id.] However, in response
to the ALJ’s question whether such an individual could perform other work, the VE provided
three examples: hand packager, kitchen helper, and industrial cleaner. [Id. at 219]. The ALJ
then asked whether such an individual could perform work if further limited to lifting and
carrying twenty pounds occasionally and ten pounds frequently. The VE responded that this
person could work as a housekeeper, routing clerk, or production assembler. [Id.] The ALJ
posed a third hypothetical, in which the individual has no exertional limitations, has “the ability
to understand, remember and carry out simple, routine tasks,” but has no interaction with the
public and only occasional, superficial interactions with coworkers and supervisors. [Id. at 219-
220]. The VE responded that no such work exists. As hypothetical four, the ALJ asked whether
an individual who is “off task 20 percent of the workday, in addition to normal breaks” could
perform Plaintiff’s previous positions. The VE responded such a person could not. [Id. at 220].
Finally, the ALJ asked whether an individual who missed two days of work a month could
perform any of Plaintiff’s previous positions, and the VE answered in the negative.
Plaintiff’s attorney also asked the VE a series of questions and ultimately objected to her
testimony regarding other jobs available to Plaintiff on the basis that he could not verify her
response. See [id. at 230]. The three hearings lasted a combined four hours and forty minutes.
See [#17 at 6].
Plaintiff subsequently submitted additional evidence, which the ALJ considered in
rendering her decision. [#13-2 at 44]. The ALJ issued her written decision on April 11, 2014,
concluding that Mr. Weaver was not disabled. [#13-2 at 43-67]. Plaintiff requested a review of
the ALJ’s decision, which the Appeals Counsel denied on September 23, 2015. [#13-2 at 1].
The decision of the ALJ then became the final decision of the Commissioner. 20 C.F.R. §
404.981; Nielson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff
filed this action on November 17, 2015. This court has jurisdiction to review the final decision
of the Commissioner. 42 U.S.C. § 405(g).
STANDARD OF REVIEW
In reviewing the Commissioner’s final decision, the court is limited to determining
whether the decision 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) (citation
omitted); Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). The court may not reverse
an ALJ simply because she may have reached a different result based on the record; the question
instead is whether there is substantial evidence showing that the ALJ was justified in her
decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “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.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)
(internal citation omitted). Moreover, the court “may neither reweigh the evidence nor substitute
[its] judgment for that of the agency.” White v. Massanari, 271 F.3d 1256, 1260 (10th Cir.
2001), as amended on denial of reh'g (April 5, 2002). See also Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007) (“The possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence.”) (internal quotation marks and citation omitted). However, “[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). Nevertheless, “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) (internal citation omitted).
Mr. Weaver’s Challenge to the ALJ’s Decision
An individual is eligible for DIB benefits under the Act if he is insured, has not attained
retirement age, has filed an application for DIB, and is under a disability as defined in the Act.
42 U.S.C. § 423(a)(1). Supplemental Security Income is available to an individual who is
financially eligible, files an application for SSI, and is disabled as defined in the Act. 42 U.S.C.
§ 1382. An individual is determined to be under a disability only if his “physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy….” 42 U.S.C. § 423(d)(2)(A).
The disabling impairment must last, or be expected to last, for at least 12 consecutive months.
See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002). Additionally, the claimant must prove he
was disabled prior to his date last insured. Flaherty, 515 F.3d at 1069.
The Commissioner has developed a five-step evaluation process for determining whether
a claimant is disabled under the Act. 20 C.F.R. § 404.1520(a)(4)(v). See also 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 that a claimant is or is not disabled, evaluation
under a subsequent step is not necessary.” Williams, 844 F.2d at 750. Step one determines
whether the claimant is engaged in substantial gainful activity; if so, disability benefits are
denied. Id. Step two considers “whether the claimant has a medically severe impairment or
combination of impairments,” as governed by the Secretary’s severity regulations. Id.; see also
20 C.F.R. § 404.1520(e). If the claimant is unable to show that his impairments would have
more than a minimal effect on his ability to do basic work activities, he is not eligible for
disability benefits. If, however, the claimant presents medical evidence and makes the de
minimis showing of medical severity, the decision maker proceeds to step three. Williams, 844
F.2d at 750. Step three “determines whether the impairment is equivalent to one of a number of
listed impairments that the Secretary acknowledges are so severe as to preclude substantial
gainful activity,” pursuant to 20 C.F.R. § 404.1520(d). Id. At step four of the evaluation
process, the ALJ must determine a claimant’s Residual Functional Capacity (“RFC”), which
defines what the 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 compares the RFC to the claimant’s past relevant work to determine
whether the claimant can resume such work. See Barnes v. Colvin, 614 F. App’x 940, 943 (10th
Cir. 2015) (citing Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (internal quotation
marks omitted)). “The claimant bears the burden of proof through step four of the analysis.”
Neilson, 992 F.2d at 1120.
At step five, the burden shifts to the Commissioner to show that a claimant can perform
work that exists in the national economy, taking into account the claimant’s RFC, age, education,
and work experience.2 Neilson, 992 F.2d at 1120. The Commissioner can meet his or her
burden by the testimony of a vocational expert. Tackett v. Apfel, 180 F.3d 1094, 1098–1099,
1101 (9th Cir. 1999).
The ALJ first determined that Mr. Weaver was insured for DBI through June 30, 2009.
[#13-2 at 47]. She concluded that he must establish disability before June 30, 2009 to be eligible
“A claimant’s RFC to do work is what the claimant is still functionally capable of doing on a
regular and continuing basis, despite his impairments: the claimant’s maximum sustained work
capability. The decision maker first determines the type of work, based on physical exertion
(strength) requirements, that the claimant has the RFC to perform. In this context, work existing
in the economy is classified as sedentary, light, medium, heavy, and very heavy. To determine
the claimant’s ‘RFC category,’ the decision maker assesses a claimant’s physical abilities and,
consequently, takes into account the claimant’s exertional limitations (i.e., limitations in meeting
the strength requirements of work). Williams, 844 F.2d at 751-52. However, if a claimant
suffers from both exertional and nonexertional limitations, the decision maker must also consider
“all relevant facts to determine whether the claimant’s work capability is further diminished in
terms of jobs contraindicated by nonexertional limitations.” Id.
for DBI, and must establish disability on or after June 26, 2012 to be eligible for SSI.3 [Id. at
44]. Next, following the five-step evaluation process, the ALJ determined that Mr. Weaver: (1)
had not engaged in substantial gainful activity since December 14, 2007; (2) had severe
impairments of “depression, anxiety/post-traumatic stress disorder, personality disorder, chronic
pain (of unknown area), degenerative disc disease L4-5 and L5-S1, obesity, popliteal lesion in
the right lower extremity, and tobacco abuse”; and (3) did not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in Title 20, Chapter III, Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
416.920(d)). [#13-2 at 47-49]. At step four, the ALJ found that Plaintiff had an RFC to perform
light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). The ALJ specified as
[H]e is limited to lifting/carrying 20 pounds occasionally and 10 pounds
frequently, standing/walking 6 hours in an 8-hour workday, and sitting 6 hours in
an 8-hour workday. He has no limitations in balancing, can perform frequent
stooping, kneeling, crouching, crawling, and climbing ramps and stairs; and
occasional climbing on ladders, ropes and scaffolds. He must avoid concentrated
exposure to unprotected heights, dangerous machinery, extreme heat and extreme
cold. Mentally, the claimant remains able to understand, remember, and carry out
detailed instructions, and can tolerate occasional work interactions with
supervisors, coworkers and the public.
[#13-2 at 50]. The ALJ determined, after reviewing the medical evidence, that Plaintiff’s
medically determinable impairments could reasonably be expected to cause the alleged
symptoms, but that his statements regarding the intensity, persistence, and limiting effects of the
symptoms were not “fully persuasive” considering “his activities of daily living, his very
frequent job searching and applying, his intermittent work activity, his driving to California for a
SSI is not payable until the month after the application is filed, see 20 C.F.R. §§ 416.200,
416.202(g), and the earliest DIB is payable is twelve months prior to the application date. See 20
C.F.R. § 404.315(a)(4).
job, and his telling his providers he is trying to get on disability despite his job activities.” [Id. at
The ALJ then relied on the VE’s testimony that none of Plaintiff’s past relevant work fell
within his RFC “because the interactive demands of these jobs exceed the claimant’s current
[RFC] for occasional work interaction with others,” and concluded that Mr. Weaver is unable to
perform past relevant work. [#13-2 at 66]. However, in “[c]onsidering the claimant’s age,
education, work experience, and residual functional capacity,” the ALJ determined that “there
are jobs that exist in significant numbers in the national economy that the claimant can perform.”
[Id.] Accordingly, the ALJ concluded that Plaintiff was not disabled
Mr. Weaver now argues that the ALJ erred for the following reasons. First, he contends
that the ALJ’s finding that his coronary artery disease is not a severe impairment is not based on
substantial evidence. [#17]. Second, he asserts the ALJ erred in evaluating the weight to be
attributed to the opinion evidence, including her consideration of “the relevant factors set forth in
the rules.” [Id.] Third, he argues the ALJ erred in finding that his right elbow impairment did
not meet the durational test for a severe impairment. [Id.] Finally, he contends the ALJ’s
findings and RFC relating to his mental impairment are not based on substantial evidence. [Id.]
ALJ’s Consideration of Severe Impairments
Mr. Weaver argues the ALJ erred at step two in failing to list his coronary artery disease
and right elbow impairment as severe.
An impairment or combination of impairments is
“severe” within the meaning of the regulations if it significantly limits an individual’s ability to
perform basic work activities. An impairment or combination of impairments is “not severe”
when medical and other evidence establish only a slight abnormality or a combination of slight
abnormalities that would have only a minimal effect on an individual’s ability to work. 20
C.F.R. §§ 404.1520(a)(4)(ii), 404.1521, 416.921. Unless an impairment is expected to result in
death, an ALJ will consider the impairment only if lasts twelve consecutive months. See
Barnhart v. Walton, 535 U.S. 212, 214-15 (2002). For the reasons discussed below, I find the
ALJ’s conclusions regarding Plaintiff’s coronary artery disease and right elbow impairment are
supported by substantial evidence in the record.
Coronary Artery Disease
Plaintiff argues that in finding at step two that his coronary artery disease was a
medically determinable impairment, the ALJ then erred in concluding that the impairment was
not severe. [#17 at 47]. Plaintiff contends “the record is replete with evidence that [his] cardiac
impairment, particularly his exertion and anxiety triggered angina, caused him to be unable to
perform daily activities and by extension work activities.” [Id.] Plaintiff suggests the ALJ
conflated the analysis of this condition with her assessment of his anxiety, due to her finding that
the angina was often triggered by anxiety, and argues that the ALJ failed to consider that his
anxiety causes two sets of symptoms, one mental and one physical. [Id. at 48-49]. As a result,
Plaintiff asserts, the ALJ failed at step two to adequately consider and address the physical
symptoms that result from the combination of his anxiety disorder and coronary artery disease
when she determined that his coronary artery disease is not severe. Defendant responds that the
ALJ reasonably found Plaintiff’s coronary artery disease not severe because it did not impose
any exertional limitations. [#18 at 12].
In considering Plaintiff’s coronary artery disease at step two, the ALJ found that the
“occluded artery has collateralized such that he has few or no angina symptoms but rather
anxiety symptoms,” and she noted Dr. McClure’s testimony that “the lung nodule seen on
imaging does not affect breathing.” [#13-2 at 47]. The ALJ concluded that the coronary artery
disease and associated issues were non-severe because “there is no evidence that they have had
more than a minimal effect on the claimant’s ability to do basic activities.” [Id.] The ALJ noted
that, upon finding an impairment that could reasonably be expected to produce Plaintiff’s
symptoms, she must make a finding on the credibility of Plaintiff’s statements in consideration
of the entire record to determine the extent to which the symptoms limit Plaintiff’s functioning.
[#13-2 at 51]. Once she concluded that the coronary artery disease was a medically determinable
impairment, the ALJ considered Plaintiff’s testimony and how it comported with the following
During a February 2009 visit with his treating cardiologist, Kern Buckner, M.D., Plaintiff
reported feeling well up until October 2008, when he had begun to experience intermittent chest
discomfort associated with stress. [#13-9 at 557-559]. However, chest exams in December 2008
and January 2009 reflect no mention of chest pain weakness. [#13-12 at 1029-1032]. Plaintiff
reported feeling weak and sweaty to Dr. Buckner, but reported no exertional discomfort. [#13-9
at 557]. His femoral arteries and pedal pulses were full and symmetrical, and he denied dyspnea,
orthopnea, and edema. [Id. at 558]. Dr. Buckner opined that Plaintiff’s symptoms were more
likely a result of excess weight than cardiac related, but ordered an adenosine stress Cardiolite
study to be certain. He noted, “[i]f the study is negative for reversible ischemia, I think we can
assume [Plaintiff’s] symptoms are noncoronary and pursue other etiologies. If on the other hand,
there is evidence of reversible ischemia or the scan is indeterminate, I would recommend
coronary artery imagining.” [Id.] The Cardiolite stress test was administered March 3, 2009,
and showed normal sinus rhythm and minor ST elevation. [Id. at 561-563]. A resting EKG
showed a normal sinus rhythm and an EKG following exercise did not reveal any indication of
ischemia. [Id. at 579]. Plaintiff’s post stress myocardial perfusion was normal. The reviewing
doctors concluded that Plaintiff’s left ventricular systolic function, right ventricle, regional wall
motion, and myocardial perfusion at rest were all normal and there was no evidence of
myocardial ischemia. [Id. at 580].
During a follow up appointment in August 2009, Dr. Buckner reported that Plaintiff “has
done well and has had no cardiovascular symptoms such as angina, heart failure or syncope.”
[#13-9 at 551]. Dr. Buckner wrote that Plaintiff “has become fully active” and complains only of
heat intolerance; specifically, Plaintiff felt hot and fatigued while weeding in his garden. [Id.]
Plaintiff told Dr. Buckner that, overall, he thought his exercise tolerance had improved. [Id.] Dr.
Buckner opined that Plaintiff’s rapid heartbeat and heat intolerance were a result of his weight
rather than issues with his heart, and diagnosed Plaintiff with uncompromised functional class I
angina corroborated by a negative adenosine stress Cardiolite study taken in March 2009. [Id. at
552]. In May 2010, a ramped Bruce protocol stress test demonstrated a normal heart rate
response, normal blood pressure, and fair adjusted exercise capacity. [Id. at 545]. Plaintiff
reported at that time that he “continues to exercise regularly and has no chest discomfort”; the
doctor recorded that Plaintiff “has had no signs or symptoms of heart failure nor has he had
syncope.” [Id. at 546]. Plaintiff cites these same records to argue he “reported to and/or sought
treatment from medical providers for anxiety or exercise triggered angina that interfered with his
activities.” [#17 at 48]. I conclude that the ALJ’s interpretation of the records is reasonable and
Plaintiff cites a medical report from April 14, 2010, in which Dr. Buckner described Plaintiff as
having marital difficulties with his wife “given their financial situation,” and reported that, from
a cardiovascular perspective, Plaintiff was doing well “until a recent stress of his marital
situation  caused him significant anxiety.” [#13-9 at 548]. Dr. Buckner wrote that Plaintiff
developed “substernal chest discomfort with left arm radiation that responded to three sublingual
nitroglycerin.” [Id.] However, Dr. Buckner also described the incident as isolated, and observed
that Plaintiff “has experienced no significant acceleration of symptoms, such as increasing
Plaintiff’s wife died in 2010, and by 2011 the cardiologist opined that Plaintiff’s chest
discomfort was caused by anxiety and not angina. [#13-9 at 541]. Dr. Buckner specifically
noted that the chest discomfort of which Plaintiff complained “is aggravated more by emotional
stress, especially family stress,” and “is not necessarily associated with exertion.” [Id.] In July
2011, in response to Plaintiff’s complaint of chest pain, Dr. Buckner opined that anxiety was the
cause and noted Plaintiff was doing well from a cardiovascular standpoint “without exertional
limitation due to dyspnea or fatigue or chest discomfort.” [Id. at 541-543]. On December 21,
2011, Plaintiff underwent an uncomplicated left heart catheterization that showed the severe
single vessel coronary artery disease with chronic total occlusion of the proximal right coronary
artery with reconstitution of the distal right coronary artery by left-to-right collaterals. [Id. at
537-538, 575]. There was evidence of nonobstructive coronary artery atherosclerosis in the left
circumflex artery and left anterior descending artery, but no evidence of other significant
obstructive lesions. [Id. at 575]. Overall, Plaintiff’s left ventricular systolic function was
normal. At that time, Dr. Buckner observed, “[s]ymptomatically, [Plaintiff] still exerts without
significant limitation due to dyspnea or fatigue.” [Id. at 538]. As of February 19, 2014, Dr.
Farley observed that Plaintiff has no signs or symptoms of heart failure and has no exertional
angina or exertional intolerance due to dyspnea or fatigue, and exercises 90 to 120 minutes a
week, “primarily walking.” [#13-13 at 1083-1084].
The court’s review of the ALJ’s step two determination is limited to whether she applied
the correct legal standard and whether it is supported by substantial evidence that a reasonable
frequency or severity,” and has had no “resting episodes unrelated to stress.” [Id.] Plaintiff also
cites a medical record from August 2012, in which a nurse practitioner wrote, “I spoke to Mr.
Weaver on the phone who truly has lifestyle-limiting claudication symptoms, even though he can
walk fairly well.” [#13-11 at 773]. This statement is unsubstantiated, and is not supported by
any of the other medical evidence in the record.
mind might accept to support the conclusion. Hargis v. Sullivan, 945 F.2d 1482, 1486 (10th Cir.
1991). Plaintiff concedes the ALJ applied the correct legal standard. See [#17 at 47]. As to
substantial evidence, while the Tenth Circuit considers the necessary showing to be “de
minimis,” a claimant “must show more than the mere presence of a condition or ailment.” Hinkle
v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). See also Bernal v. Bowen, 851 F.2d 297, 301
(10th Cir. 1988) (diagnosis of a condition, alone, does not establish disability). Plaintiff bears
the burden of demonstrating that his condition significantly limits his daily activities.
The ALJ provided a detailed discussion of and specific cites to the record to support her
finding that Plaintiff’s coronary artery disease resulted in minimal or no impact on his daily
activities, see, e.g., [#13-2 at 56-57], and I respectfully disagree with Plaintiff that the ALJ
“dismiss[ed] the angina caused by [his] coronary heart disease because it was often triggered by
anxiety.” [#17 at 48]. Rather, I read her decision as simply concluding that Plaintiff’s coronary
artery disease does not significantly limit his activities, regardless of the cause of the angina or
the fact that the chest discomfort is preceded or accompanied by anxiety. See, e.g., [#13-2 at 57].
The record indicates that in a span of six years, Plaintiff’s activities were interrupted twice as a
result of anxiety-induced chest pain. See [#13-9 at 548; #13-12 at 961]. While another ALJ may
have considered this sufficient to find a severe impairment, I find the record equally supports a
conclusion to the contrary, and I cannot reweigh the evidence and will not substitute my
judgment for that of the Commissioner. Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir.
2005); Hargis, 945 F.2d at 1486-87 (citations omitted). Furthermore, even if the ALJ erred in
failing to consider the combined effect of all of Plaintiff’s impairments at step two, the error is
harmless because the ALJ found that other impairments were severe and thus she did not
conclusively deny benefits at that step. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir.
2008) (holding ALJ’s failure to treat an impairment as severe at step two was harmless error
because ALJ proceeded with the evaluation sequence). See also Hill v. Astrue, 289 F. App’x
289, 292 (10th Cir. 2008) (“Once the ALJ finds that the claimant has any severe impairment, he
has satisfied the analysis for purposes of step two. His failure to find that additional alleged
impairments are also severe is not in itself cause for reversal”) (emphasis in original) (citations
Of course, the ALJ was required to consider the effect of all of the medically
determinable impairments, regardless of their severity, in determining Plaintiff’s RFC. Hill, 289
F. App’x at 292 (citing SSR 96–8P, 1996 WL 374184, at *5). Plaintiff does not argue the ALJ
failed to do this with respect to his coronary artery disease. See [#17 at 47-49 (limiting argument
regarding ALJ’s treatment of his coronary artery disease to a step two error)]. In any event, I
find the ALJ sufficiently considered the coronary artery disease at step four, as evidenced by her
discussion of the coronary artery disease in explaining how she formulated Plaintiff’s RFC. I
find no error in the ALJ’s treatment of Plaintiff’s coronary artery disease.
Right Elbow Impairment
On June 30, 2012, Plaintiff sustained an injury to the right radial neck of his elbow that
causes him severe pain and affects his ability to grip and twist items with his right hand. The
ALJ determined that this impairment is not severe because it did not meet the durational
requirements of the SSA. Plaintiff asserts this is in error. Furthermore, Plaintiff argues, even if
the ALJ did not err in her finding, she erred in failing to include the medically determinable
impairment in her assessment of his RFC. [#17 at 55]. Defendant responds that the ALJ
reasonably found Plaintiff’s right elbow fracture did not meet the durational requirement because
it was asymptomatic in less than one year, and Plaintiff reported participating in landscaping and
building fences within that time and before he suffered the second elbow injury. [#18 at 12].
The ALJ noted Plaintiff’s history of a “right radial neck disorder (elbow)” resulting from
a right arm fracture in July 2012, and observed that, by May 2013, the condition produced no
symptoms. [#13-2 at 47]. She also noted that in May 2013, Plaintiff’s orthopedic doctor
diagnosed him for the first time with olecranon bursitis of the right elbow. [Id. at 48]. The ALJ
concluded that the issues stemming from the right arm fracture had resolved in less than twelve
months such that she could not link the bursitis to the July 2012 injury, and she further concluded
that the bursitis should resolve within less than twelve months of the May 2013 onset. [Id.] The
ALJ stated she found no objective evidence in the record of disabling pain in Plaintiff’s right
arm, [id. at 52], and referred to the following evidence.
In September 2012, Plaintiff fell on his right elbow but did not seek medical attention for
several weeks because he was “very busy with his business.” [#13-11 at 869-872]. X-rays of his
elbow ultimately showed a nondisplaced radial neck fracture that was not fully healed. [Id. at
872]. The treating orthopedic physician, Wade Smith, M.D., gave Plaintiff a prescription for
pain medication and a hinged elbow brace on account that Plaintiff “ha[d] a lot of activities to
perform.” [Id.] An x-ray of the fracture the following month demonstrated delayed union, but
one month later, in March 2013, Plaintiff reported to Dr. Smith that he forgets at times he has a
fracture, [#13-11 at 870-871], and an exam showed only slight tenderness. [Id. at 869-870]. In
May 2013, Plaintiff returned to Dr. Smith with a complaint that he had injured his elbow again
“doing physical labor overhead with his right arm.” [#13-11 at 894]. Dr. Smith noted that
Plaintiff was “a longstanding patient with an asymptomatic radial neck nonunion.” [Id.] Dr.
Smith diagnosed olecranon bursitis secondary to overuse at work, recommended a one-week
work restriction, and observed that Plaintiff could fully bend the elbow to 130 degrees out of
150. [Id.] Dr. Smith also commented that Plaintiff felt the one-week work restriction was
adequate, and that he was “relieved to know he did not have a major injury.” [Id.] In addition,
between May 31, 2013 and July 8, 2013, Plaintiff reported to his treating physician, Dr. Farley,
that he was working outdoors on a landscaping and fencing crew and that the work had caused
him pain in his right elbow. [#13-11 at 895]; see also [#13-12 at 1004-1006]. Dr. Farley
diagnosed Plaintiff with “[o]veruse bursitis,” and prescribed him Oxycodone. [#13-11 at 895].
During a follow up appointment the next month, the examining physician did not note any
atrophy of Plaintiff’s right upper extremity. See [#13-11 at 897]. Rather, the physician in Dr.
Farley’s office noted that Plaintiff requested a three-month refill of “MS contin, oxycodone,
trazadone, and clonazepam,” because he “[h]as a job in Cabo.” [Id.] Finally, the ALJ observed
that when questioned at the hearings about his reports of landscaping and fencing and other
general work, Plaintiff responded that Dr. Farley misunderstood him and he denied telling Dr.
Smith he was working. [#13-2 at 54]. The ALJ stated that the “inconsistencies throughout the
record and [Plaintiff’s] testimony tend to diminish the persuasiveness of his alleged limitations.”5
[Id.] See also [#13-2 at 53-54, 58]. I find that the ALJ’s decision regarding the severity of
Plaintiff’s right elbow impairment is supported by the record.
I next consider Plaintiff’s argument that the ALJ was required to consider the right elbow
impairment in assessing Plaintiff’s RFC. As noted above with respect to Plaintiff’s coronary
artery disease, the governing regulations require an ALJ in assessing the RFC to consider “the
combined effect of all of the claimant’s medically determinable impairments, whether severe or
Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (citing 20 C.F.R. §§
404.1545(a)(2), 416.945(a)(2)) (emphasis in original). See also Mushero v. Astrue, 384 F. App’x
693, 695 (10th Cir. 2010) (“Testimony elicited by hypothetical questions that do not relate with
The court notes that Plaintiff does not raise the ALJ’s assessment of his credibility on appeal.
precision all of a claimant’s impairments cannot constitute substantial evidence to support the
[Commissioner’s] decision.”) (quoting Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir.
1991)). Also, the ALJ may not “simply rely on his finding of non-severity as a substitute for a
proper RFC analysis.” Wells, 727 F.3d at 1065 (citation omitted). The ALJ must include in her
RFC assessment “a narrative discussion describing how the evidence supports each conclusion,
citing specific medical facts...and nonmedical evidence.” Id.
I find that the ALJ satisfied these requirements. After determining at step two that the
right elbow condition was a medically determinable impairment, see [#13-2 at 47-48], she
engaged in a lengthy and detailed discussion at step four of both the medical evidence supplied
by Plaintiff and of Plaintiff’s testimony during the three hearings. See [#13-2 at 50-66]. She
specifically discussed the medical records of his right elbow pain and his testimony that
contradicted in part those records. See [id. at 53, 58]. Following her summary of the right elbow
impairment and the other medically determinable impairments, the ALJ wrote that these
impairments “could reasonably be expected to cause the alleged symptoms.” [Id. at 59]. She
found, however, that Plaintiff’s statements “concerning the intensity, persistence and limiting
effects of these symptoms” were not fully persuasive in light of Plaintiff’s “activities of daily
living, his very frequent job searching and applying, his intermittent work activity, his driving to
California for a job, and his telling his providers he is trying to get on disability despite his job
activities.” [Id.] In addition, the ALJ stated at step four that she had “considered all symptoms
and the extent to which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence.” [Id. at 50]. This court concludes that the ALJ’s
analysis was sufficient. See Bales v. Colvin, 576 F. App’x 792, 799 (10th Cir. 2014) (finding no
error with ALJ’s step four assessment where ALJ “thoroughly discussed the medical evidence,”
and where there was “no indication that, despite not expressly mentioning [claimant’s] other
medical problems, the ALJ did not take them into account.”). See also Hill, 289 F. App’x at
292-93 (“We do not require an ALJ to point to ‘specific, affirmative, medical evidence on the
record as to each requirement of an exertional work level before [he] can determine RFC within
that category’”) (citation omitted). The ALJ considered the impairment caused by the injury to
Plaintiff’s right elbow and did not find that Plaintiff’s allegations of pain, discomfort, and
limitation as a result of the injury were fully credible. See Suttles v. Colvin, 543 F. App’x 824,
826 (10th Cir. 2013) (“Taking ‘common sense, not technical perfection, [a]s our guide,’ … we
hold that the ALJ conducted a mental RFC assessment separate from the non-severity
determination made at step two.”) (quoting Keyes–Zachary v. Astrue, 695 F.3d 1156, 1167 (10th
Cir. 2012)). I find no error with respect to the ALJ’s consideration of Plaintiff’s right elbow.
The ALJ’s Evaluation of Opinion Evidence
Mr. Weaver argues that the ALJ erred in (1) attributing no weight to the Medical Source
Statement (“MSS”) prepared by Dr. Farley, his treating physician, (2) attributing less than
controlling weight to the MSS prepared by Dr. Buckner, his treating cardiologist, and (3)
attributing great weight to Dr. McClure, the independent medical examiner. [#17 at 49-53].
Applicable Legal Standard
In determining disability for the purposes of SSI and DIB, the opinion of a treating source
is generally entitled to controlling weight so long as it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other
substantial evidence in [the] case record.” 20 C.F.R. § 416.927(c)(2). See also 20 C.F.R. §
404.1527(b), (c); Pacheco v. Colvin, 83 F. Supp. 3d 1157, 1161 (D. Colo. 2015). The ALJ is
required to apply the following factors when he or she declines to give the treating source’s
opinion controlling weight:
(1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.
Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (citing 20 C.F.R.
§ 416.927(c)(2)(i)-(ii), (c)(3)-(c)(6)). See also 20 C.F.R. § 404.1527(c). In all cases, an ALJ
must “give good reasons in [the] notice of determination or decision” for the weight assigned to a
treating physician’s opinion. 20 C.F.R. § 404.1527(c)(2); 20 C.F.R. § 416.927(c)(2). See
also Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (citing Social Security Ruling
96–2p, 1996 WL 374188, at *5; Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003)). “[I]f
the ALJ rejects the opinion completely, he must then give ‘specific, legitimate reasons’ for doing
so.” Watkins, 350 F.3d at 1300 (citations and internal quotation marks omitted).
I begin with the ALJ’s treatment of Dr. Buckner’s MSS, and her decision to attribute it
During an October 8, 2013 visit, Dr. Buckner opined that Plaintiff’s chest
symptoms occurred occasionally, lasted minutes, and that stress was not a major contributor.
[#13-12 at 953-956]. He further opined that emotional factors contribute to Plaintiff’s subjective
symptoms and functional limitations, and that he is capable of moderate stress-normal work. Dr.
Buckner observed that Plaintiff can lift ten pounds occasionally, walk four blocks, and sit two
hours out of eight if changing positions. [Id. at 954]. He also noted that Plaintiff requires
unscheduled breaks and must rest 90 minutes every four hours before returning to work. [Id.]
Dr. Buckner opined that Plaintiff must avoid all exposure to extreme heat, cigarette smoke,
fumes, odors, and gases. [Id. at 955]. The ALJ gave this opinion little weight in large part
because contemporaneous treatment records and examination did not support the opinion. See
[#13-2 at 61-62]. For instance, Plaintiff’s blood pressure was normal on several occasions, a
chest x-ray showed no evidence of acute cardiopulmonary disease, and the arterial collaterals
were patent. He had recently received a negative diagnosis for acute coronary syndrome. In
February 2013, Dr. Buckner recorded that Plaintiff’s chest discomfort and claudication were
Dr. Buckner had also opined in July 2011 that Plaintiff’s chest discomfort is
aggravated more by emotional stress, particularly family stress, and not associated with exertion.
[Id. at 61 (citing #13-9 at 541)]. Dr. Buckner had last seen Plaintiff in May 2013, five months
prior to the MSS, and those treatment records show stable conditions with respect to Plaintiff’s
coronary and femoral artery, only occasional chest symptoms generally associated with anxiety,
and an improvement of other symptoms. [Id. at 62]. In addition, the ALJ noted that Dr. Buckner
had previously opined Plaintiff’s chest symptoms were anxiety rather than angina related and
that emotional factors contribute to Plaintiff’s subjective symptoms and functional limitations.
Finally, the ALJ noted that Plaintiff smokes “at least a half a pack of cigarettes a day…and has
for years.” [Id. at 61].
With respect to Dr. Farley’s MSS, the ALJ gave it no weight. On October 28, 2013, Dr.
Farley generated a MSS regarding Plaintiff’s ability to engage in work-related activities. See
[#13-12 at 964]. Dr. Farley opined that Plaintiff could lift less than ten pounds frequently, stand
and/or walk less than two hours and sit less than two hours in an eight-hour workday, must
change positions every fifteen to twenty minutes, and would need to lie down during his work
shift. [Id.] In the space provided for listing the medical findings that support those limitations,
Dr. Farley wrote, “see records.” [Id. at 965]. The ALJ rejected this opinion primarily because
Dr. Farley wrote concurrently in his treatment notes that he completed the MSS based on the
Plaintiff’s “perceptions of what he is and is not able to do,” and that he was “not able to conduct
testing to provide objective answers to these questions.” [#13-12 at 995]; see also [#13-2 at 61].
The ALJ explained that, because the MSS was based on Plaintiff’s subjective complaints, the
document was “approximately as persuasive as the claimant’s subjective allegations.”
discussed above, the ALJ found that Plaintiff’s statements regarding the intensity, persistence
and limiting effects of his symptoms were not fully persuasive, and Plaintiff does not challenge
the ALJ’s determination of his credibility. The ALJ also observed that Dr. Farley’s treatment
records from October 2013 “reflect improvement of symptoms or intermittent exacerbations of
symptoms, often due to reported work activity.” [#13-2 at 61]. For instance, at the same visit
during which Dr. Farley completed the MSS, Plaintiff reported that his pain is stable and that he
had no new concerns or complaints. [#13-12 at 995].6 Finally, the ALJ observed that the MSS
authored by Dr. Farley closely resembled the MSS authored by Dr. Buckner. For the ALJ, the
similarities between the two opinions, considering Dr. Farley’s note that he had not examined
Plaintiff, diminished the persuasiveness of Dr. Buckner’s opinion. [#13-2 at 61].
I find the ALJ provided specific reasons that satisfactorily explain her decision to
attribute little weight to Dr. Buckner’s opinion and no weight to Dr. Farley’s opinion regarding
Plaintiff’s physical limitations. I further find that the ALJ’s conclusions are supported by the
administrative record. Plaintiff’s main argument on appeal is that the ALJ listed the similarities
of Dr. Buckner and Dr. Farley’s opinions as a reason for not attributing controlling weight to
I also note that Dr. Farley reported Plaintiff asked him to complete the MSS with respect to his
“back problems.” [#13-12 at 995]. Plaintiff’s lumbar impairments are not at issue on this
them. However, her written decision is clear that she found that neither physician’s opinion was
borne out by the treatment records; further, she supplied specific citations to show that the
doctors’ opinions were either contradicted, or not corroborated, by their own treatment records.
Finally, though Plaintiff does not raise it, I find that while the ALJ did not specifically consider
each factor identified in the governing regulations, her discussion of each opinion in
juxtaposition with the medical evidence was specific enough for the court to determine the
weight she attributed and why. Rivera v. Colvin, 629 F. App’x 842, 844 (10th Cir. 2015) (citing
Oldham v. Astrue, 509 F.3d 1254, 1257–58 (10th Cir. 2007) (stating that the ALJ need not
explicitly discuss all the factors if his decision is “sufficiently specific to make clear to any
subsequent reviewers the weight [he] gave to the…medical opinion and the reasons for that
weight”) (internal quotation marks and citations omitted)).
With respect to Dr. McClure, the ALJ attributed great weight to his testimony on the
bases that he is an expert in the relevant field, he examined the entire medical record, he
explained his opinions “with reference to specific medical signs and findings” and exhibits in the
record, he was “thoroughly cross-examined by Plaintiff’s attorney,” and “his conclusions are
consistent with the objective evidence of record.” [#13-2 at 61]. In sum, the ALJ found that Dr.
McClure’s opinion of Plaintiff’s RFC was substantiated by the record and bolstered by his
specific references to the record. [#13-2 at 60 (reviewing with specificity Dr. McClure’s
summary of Plaintiff’s records)]. This is sufficient. See Rivera, 629 F. App’x at 844 (holding
the ALJ permissibly gave one physician’s opinion more weight because he found that opinion
“most consistent with the record as a whole,” and that the physician had reviewed the available
medical records, whereas the other physician relied at least in part on plaintiff’s subjective
description of her symptoms, which the ALJ found unreliable). See also Barnes v. Colvin, 27 F.
Supp. 3d 1153, 1159 (D. Colo. 2015) (finding ALJ did not err in rejecting treating physician’s
opinion and giving great weight to independent medical examiner because the ALJ gave “valid,
supportable reasons for his determination,” in particular, that the treating physician’s opinion
“was inconsistent with his own treatment notes and the other evidence of record.”); 20 C.F.R. §
404.1527(c)(4) (“Generally, the more consistent an opinion is with the record as a whole, the
more weight we will give to that opinion”). In contesting the ALJ’s allocation of weight,
Plaintiff essentially asks the court to reweigh the evidence. The court may review the sufficiency
of the evidence, but not reweigh it. See Lax, 489 F.3d at 1084. I find that there was enough
evidence to support the ALJ’s findings.
The ALJ’s Assessment of Plaintiff’s Mental Impairments
Finally, Plaintiff argues the ALJ erred in failing to design an RFC that includes
limitations regarding his ability to understand, remember, and carry out detailed instruction.
[#17 at 57]. Defendant responds that the ALJ’s decision is consistent with the opinions of Dr.
Pelc, Dr. Helvig, and the state agency psychiatric consultant, Ellen Ryan, M.D., and the medical
evidence. Defendant further responds that the ALJ reasonably considered and rejected the
opinion of psychotherapist Sandra Goldhaber, LCSW, a non-acceptable medical source, who
imposed greater restrictions on Plaintiff’s ability to function. [#18 at 19].
The ALJ specified in the RFC that Plaintiff can understand, remember, and carry out
detailed instructions, but should be limited to only occasional work interactions with supervisors,
coworkers, and the public. [#13-2 at 50].
In formulating this part of the RFC, the ALJ
considered Plaintiff’s testimony as well as the medical evidence and available medical opinions
and testimony. First, she considered that in February 2011, Plaintiff reported spending his days
looking for jobs on the internet and performing odd jobs for the landlady. [Id. at 52]. See [#13-
11 at 749]. He reported that he experiences panic attacks that affect his ability to concentrate,
but he also described perseverance, “people skills,” and a photographic memory as strengths.
[#13-11 at 756, 757]. The ALJ noted that Plaintiff was previously successful in his work and
had multiple financial rewards, and was seeking a consulting or executive position. [#13-2 at
52]. In addition, Plaintiff drove himself to counseling and demonstrated an ability to keep
appointments. See, e.g., [#13-11 at 778]. While Plaintiff testified he had trouble staying on topic
and suffers protracted grief from his wife’s death, the ALJ found no evidence in the record or
during the three hearings that Plaintiff cannot stay on topic, and she noted that his wife died in
2010 and his alleged onset date is December 2007. [Id.] The ALJ also observed that Plaintiff’s
decision to have his daughter live with another family during a bed bug infestation of their
camper demonstrated good judgment, and that Plaintiff had demonstrated the ability to look for
work, find work, and also try to sell his product, even if without success. [#13-2 at 31, 53]. See
[#13-11 at 781].
In addition, most of Plaintiff’s mental health records reflect diagnoses of adjustment
disorder with depressed mood and anxiety. See [#13-9 at 589-630; #13-11 at 748-768]. Plaintiff
reported that he developed mental health symptoms in 2011, following his wife’s death, and that
he had experienced no mental health issues prior to that time. [#13-11 at 778]. Following the
death of his wife, Plaintiff nonetheless demonstrated an interest in and ability to start a business
and move to California with his daughter for a job opportunity. [#13-2 at 84-85; #13-12 at 973
(“I’ve been corresponding on linked in with a wildlife org and working on my res[ume]”)]. See
also [#13-9 at 596; #13-11 at 781 (reporting Plaintiff “said in 2012 he kept track and applied to
over 4000 jobs”)]. Plaintiff reported short-term memory impairments, stating he can only job
hunt for four hours at a time before feeling fatigued [#13-11 at 779]; however, the ALJ observed
that Plaintiff, during a mental status exam, recalled three of three words immediately and three of
three words after five minutes.
[#13-11 at 782, 783 (reporting that Plaintiff’s ability to
understand and comprehend simple language was adequate and his concentration and attention
was adequate)]. In September 2012, he reported using a computer, writing, and studying about
an hour day, caring for his pets and walking his dog, driving his daughter to school and helping
her with her homework, grocery shopping, preparing meals daily, running short errands, and
managing a check book. [#13-8 at 508-514]. The ALJ specifically found that “the physical and
mental capabilities required in performing many of the household tasks…the claimant described
replicate those necessary for obtaining and maintaining employment.” [#13-2 at 54]. And, the
ALJ observed that Plaintiff “appears very competent in his disability pursuit,” on the basis that
he visited multiple physicians and requested they complete certain paperwork, he is aware of the
goings-on of his case, and he had demonstrated the ability to locate and exhaust local resources
for housing and employment help. [Id. at 55]. See [#13-9 at 616].
The ALJ then considered the physicians’ opinions in light of this medical evidence. Dr.
Pelc had served as an independent medical examiner during the third hearing and had testified
that the record documents three psychiatric conditions: “affective disorder, major depression, or
bereavement problem”; “anxiety/PTSD”; and “personality disorder NOS.” [#13-2 at 62]. He
further testified that Plaintiff’s social functioning and concentration, persistence or pace appear
moderately limited, citing Plaintiff’s reports to doctors and his activities of life. [Id.] In
addition, he noted that Plaintiff’s psychotropic medications are prescribed by Dr. Farley, not a
psychiatrist, and are limited to Clonazepam and Trazadone. [Id.] The ALJ afforded great weight
to Dr. Pelc’s opinion because “he is an expert in the field, he examined all but the final 1-2
medical exhibits in the record, he explained the reasons for his opinions with reference to
specific medical signs and findings in the record, and his responses on cross-examination
reinforced the persuasiveness of his conclusion.” [#13-2 at 63].
Dr. Helvig, a consultative psychologist, evaluated Plaintiff in January 2013 and assessed
his residual capabilities. See [13-11 at 778-785]. She diagnosed him with “mild, recurrent major
depressive disorder, PTSD, anxiety disorder NOS, and personality disorder NOS with cluster B
traits.” [#13-2 at 64; #13-11 at 783]. Dr. Helvig observed that Plaintiff “appears adequate in his
ability to concentrate, remember, and understand simple information,” and that his persistence
and pace “appear mainly limited by his depression, anxiety, PTSD, and interpersonal
functioning.” She opined that the “depression and anxiety symptoms will likely cause moderate
interference with workplace and social abilities.” [#13-11 at 783]. She also opined that Plaintiff
could possibly perform independently in the competitive workplace, but “would do best in a job
that required little interpersonal interaction.”
The ALJ gave part of Dr. Helvig’s
assessment little weight because, “other than his personality disorder, there is little to no
evidence that he would have significant trouble interacting at work.” [#13-2 at 64]. The ALJ
gave moderate to substantial weight to the rest of Dr. Helvig’s opinion because she examined
Plaintiff and “performed a medically acceptable assessment, she explained the bases for her
opinions, and her conclusions are generally consistent with the evidence as a whole.” [Id.]
Dr. Ryan, a non-examining expert source, evaluated the medical evidence from June 26,
2012 through January 22, 2013 for the SSI claim, and found Plaintiff’s affective disorder,
anxiety disorder, and personality disorder to be severe impairments under the regulations. See
[#13-4 at 234-244, 245-258].
Dr. Ryan noted that Plaintiff could adequately concentrate,
remember, and understand simple information, and that depression and anxiety symptoms may
cause moderate interference with workplace and social abilities. [Id. at 242]. She assessed
Plaintiff as “not significantly limited to moderately limited” in mental functioning, and
concluded that he is capable of work of limited complexity, but which required accuracy and
attention to detail. [Id. at 240, 255]. She opined that Plaintiff can accept supervision and relate
to coworkers and the public if contact is not frequent or prolonged. [Id.] Dr. Ryan concluded
that the evidence in the file from December 14, 2007 through June 30, 2009 was insufficient to
establish the presence of a mental disorder, and that the evidence in the file prior to the date last
insured is insufficient. [Id. at 250]. The ALJ agreed with Dr. Ryan’s assessment, and gave her
evaluation substantial weight because she “is a highly qualified physician with knowledge of the
rules and regulations regarding Social Security disability assessments who had the opportunity to
evaluate all of the claimant’s medical records to January 2013,” and because the ALJ found Dr.
Ryan’s assessment consistent with the evidence of record. [#13-2 at 64].
The ALJ then compared the opinions of Dr. Pelc, Dr. Helvig, and Dr. Ryan with that of
Ms. Goldhaber, who completed a mental impairment questionnaire for Plaintiff on October 22,
2013, after one month of treatment. See [#13-12 at 967-963; #13-13 at 1076-1082]. Ms.
Goldhaber assessed Plaintiff as having extreme limitations in daily living, social functioning, and
maintaining concentration, persistence or pace. She noted that Plaintiff had four or five episodes
of decompensation in the past twelve months, but the ALJ noted Ms. Goldhaber indicated she
understood decompensation, inaccurately, to mean period of “depressive symptoms.”7 [#13-2 at
65; #13-12 at 961]. Ms. Goldhaber assigned Plaintiff a Global Assessment of Functioning
(“GAF”) score of 30-33, which the ALJ found was “sharply inconsistent with his level of
“Episodes of decompensation may be demonstrated by an exacerbation in symptoms or signs
that would ordinarily require increased treatment or a less stressful situation.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.00(C)(4).
functioning,” for example, his ability to ask and assist her in completing the form.8 [#13-2 at
65]. The ALJ was not persuaded by Ms. Goldhaber’s evaluation and attributed it no weight in
large part because of Plaintiff’s self-reports of caring for his pets and for his daughter, assisting
the owners of the land on which he parks his camper, appearing for appointments, and engaging
in job searches. [Id.] The ALJ further noted that Ms. Goldhaber had treated Plaintiff for only
one month at the time of the evaluation, she cited mental symptoms that “appear unduly based on
what he told her,” and she selected mental symptoms “such as incoherence, hallucinations,
paranoid thinking, flight of ideas,” that no other health care provider had noted or observed. [Id.]
In sum, and contrary to Plaintiff’s contention, I find that the ALJ considered all of his
impairments, including his mental impairments, in formulating the RFC. Plaintiff cites several
record citations for support that his mental impairments are more severe than the ALJ
recognized, but most of these citations are from Ms. Goldhaber’s treatment records. See [#17 at
56-57]. As the ALJ noted, however, Ms. Goldhaber observed Plaintiff for only one month,
whereas Dr. Pelc and Dr. Helvig reviewed the entirety of Plaintiff’s mental health treatment. See
[#13-2 at 63]. Again, the court will review the sufficiency of the evidence but will not reweigh
it. I find the RFC is adequately supported in the record.
For the reasons set forth herein, the court hereby AFFIRMS the Commissioner’s
decision and DISMISSES this civil action, with each party to bear his and her own fees and
The GAF is a scale that assigns a score to reflect an individual’s psychological, social, and
occupational functioning. The scale is from 0 to 100, with a higher score indicating a higher level
of functioning. Am. Psychiatric Ass’n Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV-TR) at 34 (4th ed. Text Revision 2000).
DATED: February 13, 2017
BY THE COURT:
s/ Nina Y. Wang __________
United States Magistrate Judge
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