Welton v. Commissioner, Social Security Administration

Filing 22

ORDER - The Court AFFIRMS the Commissioners decision that Plaintiff was not under a disability, by Magistrate Judge Scott T. Varholak on 4/25/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01193-STV
MICHELLE WELTON,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff Michelle Welton’s Complaint seeking
review of the Commissioner of Social Security’s decision denying Plaintiff’s application
for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under
Titles II and XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 401 et seq., and 138183c, respectively. [#1] The parties have both consented to proceed before this Court
for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c)
and D.C.COLO.LCivR 72.2.

[#13]

The Court has jurisdiction to review the

Commissioner’s final decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This
Court has carefully considered the Complaint [#1], the Social Security Administrative
Record [#11], the parties’ briefing [##16-17, 20], and the applicable case law, and has
determined that oral argument would not materially assist in the disposition of this
appeal. For the following reasons, the Court AFFIRMS the Commissioner’s decision.

I.

LEGAL STANDARD
A.

Five-Step Process for Determining Disability

The Social Security Act defines disability as the inability “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 1 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “This
twelve-month duration requirement applies to the claimant’s inability to engage in any
substantial gainful activity, and not just his underlying impairment.” Lax, 489 F.3d at
1084.

“In determining whether an individual’s physical or mental impairment or

impairments are of a sufficient medical severity that such impairment or impairments
could be the basis of eligibility . . ., the Commissioner [ ] shall consider the combined
effect of all of the individual’s impairments without regard to whether any such
impairment, if considered separately, would be of such severity.”

42 U.S.C. §§

423(d)(2)(B), 1382c(a)(3)(G).
“The Commissioner is required to follow a five-step sequential evaluation process
to determine whether a claimant is disabled.” Hackett v. Barnhart, 395 F.3d 1168, 1171
(10th Cir. 2005). The five-step inquiry is as follows:
1. The Commissioner first determines whether the claimant’s work activity, if
any, constitutes substantial gainful activity;

1

“Substantial gainful activity” is defined in the regulations as “work that (a) [i]nvolves
doing significant and productive physical or mental duties; and (b) [i]s done (or
intended) for pay or profit.” 20 C.F.R. §§ 404.1510, 416.910; see also 20 C.F.R. §§
404.1572, 416.972.
2

2. If not, the Commissioner then considers the medical severity of the claimant’s
mental and physical impairments to determine whether any impairment or
combination of impairments is “severe;” 2
3. If so, the Commissioner then must consider whether any of the severe
impairment(s) meet or exceed a listed impairment in the appendix of the
regulations;
4. If not, the Commissioner next must determine whether the claimant’s residual
functional capacity (“RFC”)—i.e., the functional capacity the claimant retains
despite his impairments—is sufficient to allow the claimant to perform his past
relevant work, if any;
5. If not, the Commissioner finally must determine whether the claimant’s RFC,
age, education and work experience are sufficient to permit the claimant to
perform other work in the national economy.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Grogan v. Barnhart, 399 F.3d 1257,
1261 (10th Cir. 2005); Bailey v. Berryhill, 250 F. Supp. 3d 782, 784 (D. Colo. 2017).
The claimant bears the burden of establishing a prima facie case of disability at steps
one through four, after which the burden shifts to the Commissioner at step five to show
that claimant retains the ability to perform work in the national economy.

Wells v.

Colvin, 727 F.3d 1061, 1064 n.1 (10th Cir. 2013); Lax, 489 F.3d at 1084. “A finding that
the claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis.” Ryan v. Colvin, 214 F. Supp. 3d 1015, 1018 (D. Colo.
2016) (citing Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir.
1991)).
B.

Standard of Review

In reviewing the Commissioner’s decision, the Court’s review is limited to a
determination of “whether the Commissioner applied the correct legal standards and

2

The regulations define severe impairment as “any impairment or combination of
impairments which significantly limits [the claimant’s] physical or mental ability to do
basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c).
3

whether her factual findings are supported by substantial evidence.” Vallejo v. Berryhill,
849 F.3d 951, 954 (10th Cir. 2017) (citing Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th
Cir. 1994)).

“With regard to the law, reversal may be appropriate when [the

Commissioner] either applies an incorrect legal standard or fails to demonstrate reliance
on the correct legal standards.”

Bailey, 250 F. Supp. 3d at 784 (citing Winfrey v.

Chater, 92 F.3d 1017, 1019 (10th Cir.1996)).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. It requires more than a scintilla, but less
than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quoting
Lax, 489 F.3d at 1084).

“Evidence is not substantial if it is overwhelmed by other

evidence in the record or constitutes mere conclusion.” Grogan, 399 F.3d at 1261-62
(quoting Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)). The Court must
“meticulously examine the record as a whole, including anything that may undercut or
detract from the [Commissioner’s] findings in order to determine if the substantiality test
has been met.’” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quotation
omitted). The Court, however, “will not reweigh the evidence or substitute [its] judgment
for the Commissioner’s.” Hackett, 395 F.3d at 1172.
II.

BACKGROUND
Plaintiff was born in 1964. [AR 71, 157] 3 Plaintiff completed high school and two

years of college education. [AR 78, 201] Plaintiff is able to communicate in English.
[AR 199] On or about April 15, 2014, Plaintiff filed a Title II application for DIB and a
Title XVI application for SSI. [AR 71, 157-65] Plaintiff originally claimed a disability
3

All references to “AR” refer to the sequentially numbered Social Security
Administrative Record filed in this case. [#11]
4

onset date of August 30, 1991 [AR 71, 228], but amended that date to November 1,
2003, at the hearing before Administrative Law Judge (“ALJ”) Thomas Inman [AR 11,
31]. Thus Plaintiff was 39 years old at the time of the alleged onset. [AR 18] Plaintiff
claims disability based upon the following physical impairments: pelvic pain, bowel
problems, digestive issues, and vomiting. [AR 200] Plaintiff worked in a variety of
positions for several airlines prior to the alleged disability onset date, including as a
customer service agent for Continental Airlines and a customer service supervisor for
G.P. Express Airlines. [AR 209, 214] Plaintiff’s most recent prior work experience was
as a flight attendant for Frontier Airlines from July 1995 through September 2003. [AR
182, 190, 209] Plaintiff attempted to return to work as a gate agent for Skywest in
February 2008, but had to quit during training after one to two months, due to her
disability. [AR 182]
A.

Medical Background

Plaintiff experienced an ectopic pregnancy in 1991 and a miscarriage in 1996.
[AR 265, 498-99] In approximately 1999, Plaintiff began treatment for chronic pelvic
pain. [AR 265] Plaintiff presented to Dr. William Schoolcraft, who assessed Plaintiff for
chronic pelvic pain, and noted possible pelvic adhesions and/or endometriosis. [Id.] On
October 20, 1999, Dr. Schoolcraft performed a laparoscopy and lysis of adhesions,
diagnosing Plaintiff with pelvic pain, pelvic adhesions, and a right tubal obstruction. [AR
267] Dr. Schoolcraft did not observe endometriosis. [AR 268] Plaintiff reported feeling
“dramatically better” within a week after the operation, but complained of increasing
pelvic pain in the lower right quadrant in November 1999. [AR 262-63] Dr. Schoolcraft
noted the “[u]nclear etiology for pain,” and recommended a gastrointestinal (“GI”)

5

consultation. [AR 262] Afterward, Plaintiff apparently did not present for any further
medical appointments until 2002. [AR 260]
Plaintiff began to see Dr. Arthur Sands in March 2002. [AR 477] Dr. Sands
reported that while Plaintiff had “marked” lower right quadrant chronic pain, it was “well
controlled” with the medication Fiorinal. [Id.] The following month, Plaintiff reported to
Dr. Sands that she had generally “been doing okay.” [AR 476] Plaintiff was resistant to
surgery despite some continued pain, but Dr. Sands encouraged her to give “strong
consideration” to surgical options. [Id.] Plaintiff reported continued lower abdominal
pain in May 2002, but her current medications were controlling the pain. [AR 475]
Plaintiff was scheduled for an oophorectomy to remove the ovaries on the right side, but
declined to go through with the procedure. [Id.] Throughout the remainder of 2002,
Plaintiff reported that she was doing well and that the pain was much better, and Dr.
Sands observed that Plaintiff’s multiple problems were stable. [AR 318-19, 472]
In early 2003, Plaintiff presented to the emergency room for chronic abdominal
pain. [AR 315] She also requested paperwork for a leave of absence due to the pain
from her position at Frontier Airlines, from her provider, Physician Assistant (“PA”)
Cathy Robinson.

[Id.]

Plaintiff met with Dr. Rand Compton for a gastroenterology

consultation in April 2003. [AR 281-82] Plaintiff reported to Dr. Compton that she “had
severe problems with recurrent nausea and vomiting and periumbilical pain” over the
last two years, though her abdominal pain was controlled with Fiorinal and codeine.
[AR 281] At that time, Plaintiff was on partial medical leave from her work as a flight
attendant because of her pain and was “under significant stress because of her job and
illness.” [Id.] Dr. Compton performed an upper GI endoscopy on April 22, 2003, finding

6

mild inflammation in the stomach and the first part of the duodenum, and tiny incidental
hiatus hernia. [AR 283-84; see also AR 339-40, 492-93] Dr. Compton also performed a
small bowel biopsy which revealed “no significant histopathologic features.” [AR 285;
see also AR 489] In the months following those procedures through 2004, Plaintiff’s
providers reported that she was doing okay and feeling fine, other than the lower
abdominal pain, which Plaintiff often described as stable with medications. [AR 309-11,
314] Plaintiff also reported that she was swimming for exercise. [AR 312]
Plaintiff continued to report abdominal pain in 2005 through 2007, but otherwise
noted that she felt fine—even at times stating she felt great—that the pain was not
getting worse, and that she gained significant relief from her pain medication. [AR 29394, 296, 298-300, 305-06] Similarly, in January 2008, Plaintiff noted that although her
abdominal pain was severe if she did not take her medications, and that she had burned
herself using a heating pad on her abdomen, she otherwise felt “great.” [AR 327] In
April 2008, Plaintiff complained of a possible ovarian cyst, abdominal pain, and loss of
appetite. [AR 326] Cathy Robinson explained that the symptoms could be a result of
appendicitis and advised Plaintiff to go to the emergency room if the pain got worse, but
Plaintiff ultimately refused to go to the hospital.

[Id.]

A few months later, Plaintiff

reported that she was “happy in her life,” that her abdominal pain was “controlled with
her multiple medications,” and that she had “no concerns” at her appointment. [AR 324]
Similarly, throughout 2009 to 2011, Plaintiff’s providers noted that she was “doing fine,”
had “no complaints,” and that her medications were “keeping her abdominal pain under
control.”

[AR 322; see also AR 453-55]

7

Slightly complicating Plaintiff’s medical

situation, however, was the fact that she did not have health insurance. [AR 320, 455,
460-61]
The medical records do not include any documentation from 2012. In 2013,
Plaintiff complained of a possible urinary tract infection, nausea, and vomiting, in
addition to her chronic abdominal pain. [AR 357, 361-69] Plaintiff began to see PA
Stephanie Keene, and reported exercising through aerobics and cardio, strength, and
weight training more than three times per week.

[See, e.g., AR 366, 368] Keene

explained that there were limited options in treating Plaintiff’s nausea and pain, as
Plaintiff could not afford to see a gynecologist for definitive surgery, or a pain
management specialist.

[AR 367]

Keene also suspected that Plaintiff’s urinary

symptoms were a result of taking consistent high doses of certain medications. [Id.; see
also AR 361-62] Plaintiff reported particularly severe vomiting in June 2013, but refused
to go to the emergency room. [AR 362] She also complained that she had experienced
several months of urinary retention and increased pelvic pain, but did not schedule an
appointment with her providers. [AR 361-62] In late 2013 and early 2014, Keene
reported that Plaintiff was under a lot of stress due to her mother’s cancer diagnosis,
leading to higher pain levels. [AR 350, 354] Plaintiff reported irritable bowel syndrome
(“IBS”), nausea, and anxiety in November 2013 [AR 354-55], but her symptoms had
largely improved or resolved by early 2014 [AR 350].
During appointments with Dr. Kevin Boyle throughout 2015, Plaintiff’s conditions,
particularly her abdominal pain, were reportedly stable on her current medications. [AR
392, 406, 409, 411]

Specifically, Dr. Boyle noted that Plaintiff’s chronic pain was

“[c]ontrol[led] for the most part with current medication” [AR 409], and that Plaintiff had

8

“noted quite a bit of improvement in the chronic pain” [AR 411]. Nevertheless, Dr. Boyle
wrote letters stating that Plaintiff was unable to work in any capacity due to her chronic
abdominal pain, and also certifying that Plaintiff had an IBS diagnosis, causing frequent
vomiting. [AR 378-79, 409, 411, 413]
Throughout the course of her treatment, Plaintiff requested prescription refills
before they were due on several occasions, including in 2002 [AR 319, 472], 2003 [AR
315-16], 2006 [AR 299], 2007 [AR 294], 2008 [AR 324], and 2010 [AR 459], and at
times claiming that he prescriptions had been stolen [AR 294, 319, 322, 470, 472].
Relatedly, Plaintiff’s providers have noted her addiction to pain medication, advised
Plaintiff to decrease dosages or stop use altogether, or have refused to continue
refilling, or allowing early refills of, Plaintiff’s prescriptions. [AR 325, 381, 470, 472] For
example, In September 2009, after receiving a phone call, purportedly from Plaintiff’s
sister, requesting an early medication refill, Robinson informed Plaintiff that the
providers “had decided to discontinue prescribing her pain medications,” and were
referring her to a pain doctor in Denver. [AR 470]

However, Plaintiff has felt the

need to continue the medications due to her history of chronic abdominal pain. [AR
325]
B.

Procedural History

Plaintiff’s applications for DIB and SSI were initially denied on June 12, 2014.
[AR 90, 94] On August 14, 2014, Plaintiff filed a request for a hearing before an ALJ.
[AR 97] An initial hearing was conducted before ALJ Thomas Inman on December 16,
2015. [AR 60-68] The hearing was postponed in order to give Plaintiff an opportunity to
retain counsel. [AR 67-68] A second hearing was held before ALJ Inman on March 3,

9

2016, at which Plaintiff and vocational expert (“VE”) Ashley Bryars both testified. [AR
25-59] Plaintiff was represented by attorney Brandon Selinsky. [Id.; see also AR 148]
On April 14, 2016, the ALJ issued a decision denying Plaintiff benefits. [AR 1120] Plaintiff timely requested a review of that decision by the Appeals Council [AR 6],
which denied her request for review on March 16, 2017 [AR 1-3]. Plaintiff timely filed an
appeal with this Court on May 15, 2017. [#1] Because the Appeals Council denied
Plaintiff’s appeal, the ALJ’s decision is the final decision of the Commissioner for
purposes of this appeal. See 20 C.F.R. §§ 404.981, 416.1481, 422.210.
C.

The ALJ’s Decision

The ALJ denied Plaintiff’s applications for DIB and SSI after evaluating the
evidence pursuant to the five-step sequential evaluation process. [AR 11-20] At step
one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity
since November 1, 2003, the alleged onset date. [AR 13] At step two, the ALJ found
that Plaintiff had the following severe impairments: chronic abdominal pain and IBS.
[Id.] At step three, the ALJ concluded that Plaintiff does not have an impairment or
combination of impairments that meets or medically exceeds the severity of one of the
listed impairments in the appendix of the regulations. [AR 15]
Following step three, the ALJ determined that Plaintiff retained the RFC to
perform “light work” as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), but with the
following limitations:
[Plaintiff] cannot climb ladders, ropes or scaffolds and cannot push/pull to
operate hand controls; she is limited to occasional stooping, kneeling,
crouching and crawling; and, she needs to sit 15 minutes after two hours
of walking or standing.

10

[Id. (emphasis omitted)]

The ALJ provided a narrative setting forth the relevant

evidence considered in determining the RFC and assigned weight to each of the
medical opinions in the record. [AR 15-18]
At step four, the ALJ found that Plaintiff was unable to perform her past relevant
work as a flight attendant.

[AR 18]

Finally, at step five, the ALJ concluded that,

considering Plaintiff’s age, education, work experience, and RFC, there are jobs that
exist in significant numbers in the national economy that Plaintiff can perform. [Id.]
Specifically, the ALJ agreed with the VE’s testimony opining that Plaintiff could perform
the following representative occupations: assembler, small products, mail room clerk,
and office helper. [AR 19] Accordingly, the ALJ determined that Plaintiff was not under
a disability from November 1, 2003 through April 14, 2016 (the date of the ALJ’s
decision). [AR 19-20]
III.

ANALYSIS
Plaintiff raises three main challenges to the ALJ’s decision on appeal. First,

Plaintiff contends that the ALJ’s determination of her credibility was not supported by
substantial evidence and that the ALJ failed to make adequate findings regarding the
functional effects of her pain. [#16 at 19-21, 24-27] Second, Plaintiff argues that the
ALJ gave insufficient consideration to Plaintiff’s non-exertional limitations in the RFC
determination. [Id. at 21-24] Third, Plaintiff maintains that the ALJ did not properly
weigh the opinion evidence from her treating physician, and that the ALJ’s findings
regarding the opinion evidence were otherwise not based on substantial evidence and
did not address the relevant factors set forth in the regulations. [Id. at 27-30]
Court addresses each of these arguments in turn.

11

The

A.

The ALJ’s Findings Regarding Plaintiff’s Credibility and Pain

Plaintiff claims that the ALJ’s finding that Plaintiff was not entirely credible was
not supported by substantial evidence. [#16 at 19-21] Relatedly, Plaintiff argues that
the ALJ did not make adequate findings regarding the functional effects of Plaintiff’s
reported pain. [Id. at 24-27] By contrast, Defendant contends that the ALJ was justified
in only partially crediting Plaintiff’s testimony about her symptoms and that his findings
are supported by the record. [#17 at 15-20]
As noted above, at step four, the Commissioner must determine whether the
claimant’s RFC—the functional capacity the claimant retains despite her impairments—
is sufficient to allow the claimant to perform her past relevant work, if any. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Grogan, 399 F.3d at 1261; Bailey, 250 F.
Supp. 3d at 784. “The RFC must reflect an assessment of both severe and non-severe
impairments and where there are subjective symptoms, such as pain, the ALJ must
address whether and how the claimant's pain affects his/her ‘capacity to work.’”
Brozovich v. Colvin, No. 14-cv-03436-MSK, 2016 WL 3900685, at *4 (D. Colo. July 19,
2016) (quoting 20 C.F.R. §§ 404.1529, 416.929). “Subjective allegations of pain alone
are not sufficient to establish a disability.” Mirabal v. Colvin, No. 1:15-cv-00869-LF,
2016 WL 8230702, at *4 (D.N.M. Dec. 30, 2016) (citing Branum v. Barnhart, 385 F.3d
1268, 1273 (10th Cir. 2004)). Instead, the ALJ must apply a “specified analytical rubric”
under Social Security Ruling (“SSR”) 16-3p. 4 Brozovich, 2016 WL 3900685, at *4; see
also SSR 16-3p, 2016 WL 1119029, at *3 (S.S.A. Mar. 16, 2016).

4

As the parties recognize, SSR 16-3p superseded SSR 96-7p by “eliminating the use
of the term ‘credibility,’” in the Ruling language, in order to “clarify that subjective
symptom evaluation” is not a character evaluation. Parker v. Berryhill, No. 16-cv-237812

SSR 16-3p dictates a two-step process for the ALJ to analyze complaints of pain.
Mirabal, 2016 WL 8230702, at *4 (citing SSR 16-3p, 2016 WL 1119029, at *3; 20 C.F.R.
§§ 404.1529(b)-(c); 416.929(b)-(c)). First, the ALJ determines whether the claimant has
a medically determinable impairment (“MDI”)—a “pain-producing impairment that could
reasonably be expected to produce the alleged disabling pain.” Id. (citing SSR 16-3p,
2016 WL 1119029, at *3; Branum, 385 F.3d at 1273). Second, the ALJ considers the
claimant’s “statements about the intensity, persistence, and limiting effects of
symptoms,” and evaluates whether those statements “are consistent with objective
medical evidence and other evidence in the record.” Parker, 2017 WL 3315625, at *4
n.7; see also Brozovich, 2016 WL 3900685, at *4; SSR 16-3p, 2016 WL 1119029, at *4.
As part of that analysis, the ALJ should consider the following factors:
(i)
(ii)
(iii)
(iv)
(v)
(vi)

(vii)

Daily activities;
The location, duration, frequency, and intensity of pain or other symptoms;
Precipitating and aggravating factors;
The type, dosage, effectiveness, and side effects of any medication an
individual takes or has taken to alleviate pain or other symptoms;
Treatment, other than medication, an individual receives or has received
for relief of pain or other symptoms;
Any measures other than treatment an individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on back, standing for 15 to
20 minutes every hour, sleeping on a board, etc.); and
Other factors concerning an individual's functional limitations and
restrictions due to pain or other symptoms.

WJM, 2017 WL 3315625, at *4 n.7 (D. Colo. Aug. 3, 2017) (quoting SSR 16-3p, 81
Fed. Reg. 14166, 14167 (Mar. 28, 2016)). “ALJ[]s are now instructed to consider an
individual's statements about the intensity, persistence, and limiting effects of
symptoms, and to evaluate whether the statements are consistent with objective
medical evidence and other evidence in the record.” Id.; see also SSR 16-3p, 2016 WL
1119029, at *4 (S.S.A. Mar. 16, 2016). Because SSR 16-3p went into effect on March
28, 2016, and the ALJ’s decision was issued on April 14, 2016, SSR 16-3p applies here,
though courts have noted that the analysis under SSR 16-3p and SSR 96-7p is very
similar. See, e.g., Wagner v. Berryhill, No. CIV-16-154-CG, 2017 WL 3981147, at *8
(W.D. Okla. Sept. 11, 2017); Mirabal, 2016 WL 8230702, at *5 n.6.
13

20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p, 2016 WL 1119029, at *7.
Here, the ALJ found that Plaintiff’s chronic abdominal pain and IBS constituted
severe impairments.

[AR 13]

The ALJ concluded that while Plaintiff’s “medically

determinable impairments could reasonably be expected to cause the alleged
symptoms,” Plaintiff’s “statements concerning the intensity, persistence and limiting
effects of these symptoms [we]re not entirely consistent with the medical evidence and
other evidence in the record.” [AR 18] In making this conclusion, Plaintiff argues that
the ALJ failed to adequately address the seven factors in the regulations, including
Plaintiff’s daily activities, her medications, her pursuit of treatment, and the non-medical
measures that Plaintiff took to relieve her pain. [#16 at 20-21, 26-27]
1. Daily Activities
Plaintiff contends that her daily activities discussed by the ALJ are not
inconsistent with disability. [#16 at 20, 26] “While ‘sporadic performance’ of activities,
like performing a few household tasks, ‘does not establish that a person is capable of
engaging in substantial gainful activity,’ the Tenth Circuit has consistently held that an
ALJ may reasonably consider such activities when they are inconsistent with a
claimant's reported limitations.”

Wagner v. Berryhill, No. CIV-16-154-CG, 2017 WL

3981147, at *9 (W.D. Okla. Sept. 11, 2017) (quoting Frey v. Bowen, 816 F.2d 508, 51617 (10th Cir. 1987)) (internal citation omitted) (collecting cases); see also Welch v.
Colvin, 566 F. App’x 691, 694 (10th Cir. 2014) (finding gaps in treatment and claimant’s
testimony that she was able to do light yard work, chores, and also cook, grocery shop,
drive, and visit her family, supported the ALJ’s credibility determination); Wilson v.
Astrue, 602 F.3d 1136, 1146 (10th Cir. 2010) (ALJ’s finding that claimant was not fully

14

credible was supported by claimant’s testimony that she could care for herself, her
home, and her children, drive, shop, handle finances, garden, visit friends, and go out to
eat); Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988) (explaining that “in
determining the credibility of pain testimony” ALJ may consider “the nature of
[claimant's] daily activities”).
Here, the ALJ noted Plaintiff’s testimony that “she walked for exercise” and that
she reported exercising more than three times a week. 5 [AR 16, 17] The ALJ also
explained that Plaintiff had reported “that she cared for her parents and managed both
her own and their medicines,” and that she went out to dinner with her relatives. [AR
18] Moreover, in considering Plaintiff’s potential mental limitations, the ALJ observed
Plaintiff’s reports that “she cared for her cat, prepared meals for herself and her
parents, . . . cleaned the home off and on during the day,” and shopped. [AR 14]; see
Cunningham v. Astrue, No. 08-cv-02774-LTB, 2010 WL 96413, at *9 (D. Colo. Jan. 7,
2010) (citing Fischer-Ross v. Barnhart, 431 F.3d 729 (10th Cir.2005) for the proposition
that an ALJ's findings at other steps of the sequential process may provide a basis to
uphold conclusions at a different step). The ALJ concluded that Plaintiff’s “activities of
daily living [we]re inconsistent with total disability.” [AR 18]
Although the ALJ also considered evidence of some limitations on Plaintiff’s daily
activities, including Plaintiff’s bouts of vomiting and nausea, and her need to lie down
with abdominal heating pads [AR 16], “it is the ALJ's role and not the Court's to resolve

5

During the hearing, Plaintiff argued that records indicating that she was exercising
three times a week, including through aerobic, cardiovascular, and strength and weight
training, was a mistake, and that she does not actually exercise. [AR 46] Nevertheless,
Plaintiff also stated that she walks and does other “things . . . [to] try to stay healthy.”
[AR 37]
15

such conflicts in the evidence” and “Plaintiff has not established that the ALJ erred in
relying upon” her daily activities in evaluating her “subjective complaints.” Wagner,
2017 WL 3981147, at *9; see also Paulek v. Colvin, 662 F. App’x 588, 593 (10th Cir.
2016) (finding subjective complaint analysis sufficient where ALJ noted absence of
“significant objective findings” and found that claimant’s testimony regarding activities of
daily living “not consistent with a totally disab[ling] level of physical impairment”).
2. Medications and Pursuit of Treatment
Plaintiff also argues that “there was evidence that [she] pursued treatment as
actively as she possibly could within the limitations her lack of health insurance prior to
2014 imposed” [#16 at 27], and that the ALJ “made no findings regarding . . . the
treatment other than medication” that Plaintiff took [id. at 26]. Plaintiff also claims that
the ALJ “made no findings regarding . . . the type, dosage, and effectiveness” of her
medication. [Id.] At the same time, Plaintiff recognizes that “[w]ith regard to [her] failure
to visit an emergency room or be hospitalized since 20[0]3, 6 the evidence is
complicated,” though she argues that “a reasonable person would not find it to support
an inference of nondisability.” [Id. at 20] Plaintiff also admits that she refused, on
multiple occasions, to visit the emergency room or consider surgical options, but
contends that the ALJ should have considered evidence that some providers advised
Plaintiff that surgical intervention “was impossible or futile.” [Id. at 21]
The ALJ must evaluate the plaintiff’s testimony about her symptoms “in relation
to the objective medical evidence” in determining whether she was disabled. 20 C.F.R.

6

Although Plaintiff states in her brief that she has not been hospitalized since 2013,
Plaintiff confirmed at the hearing that in fact she had not been hospitalized since 2003,
and the records confirm that year. [AR 36; see also AR 315]
16

§ 416.929(c)(4); see also Thomas v. Berryhill, 685 F. App’x 659, 664 (10th Cir. 2017).
“[I]f the frequency or extent of the treatment sought by an individual is not comparable
with the degree of the individual’s subjective complaints, or if the individual fails to follow
prescribed treatment that might improve symptoms,” the ALJ “may find the alleged
intensity and persistence of an individual’s symptoms are inconsistent with the overall
evidence of record.” SSR 16-3p, 2016 WL 1119029, at *8; see also Huston, 838 F.2d at
1132 (In determining the credibility of pain testimony, the ALJ may consider the
“frequency of medical contacts” and “the extensiveness of the attempts . . . to obtain
relief.”).
Here, the ALJ recounted the objective medical evidence in detail, noting that
Plaintiff first presented for treatment in November 1999 for a pelvic ultrasound with no
diagnostic abnormalities seen. [AR 16] The ALJ explained that Plaintiff had a history of
pelvic adhesions but that she had pain relief after the adhesions were lysed. [Id.] The
ALJ noted the three-year gap in Plaintiff’s treatment between 1999 and 2002. [Id.] As
the ALJ recounted, Plaintiff confirmed at the hearing that she had not been treated at an
emergency room or hospitalized since 2003. [Id.; see also AR 36] The ALJ discussed
the numerous times that Plaintiff reported that she felt fine when she was taking her
medications, including that Lyrica in particular had given her significant relief, and the
several occasions when Plaintiff reported to providers that she felt great and her pain
control was adequate or stable. [AR 16] The ALJ also considered Plaintiff’s history with
recurrent vomiting, and her refusal to present to the emergency room, as recommended
by her providers. [AR 16-17] The ALJ recounted how Plaintiff refused an ultrasound in

17

2014.

[AR 17]

The ALJ described Plaintiff’s medications by name and discussed

Plaintiff’s requests and appointments for prescription refills. [AR 16-17]
In reviewing the medical evidence, the ALJ also discussed other factors from the
regulations, including the location and duration of Plaintiff’s pain, and precipitating and
aggravating factors.

In addition to describing Plaintiff’s relief on various pain

medications, the ALJ also recognized Plaintiff’s reports that vomiting made her
abdominal pain worse, and that Plaintiff’s stress caused by her mother’s cancer
diagnosis increased her pain levels. [AR 16-17] The ALJ also reviewed measures
taken by Plaintiff other than treatment to control the pain, including lying down with a
sleeping pad both during the day and at night when the pain was particularly strong.
[AR 16]
Plaintiff points to some conflicting evidence in the record, including two
occasions—over the course of nearly ten years—where providers noted possible
obstacles to surgery, and the difficulty she had obtaining treatment due to her lack of
insurance, and argues that the ALJ failed to mention these circumstances. [#16 at 21]
But Plaintiff overstates that evidence, which reveals that providers did in fact continue to
consider surgical options [AR 259-60, 457], 7 and also that Plaintiff has not sought

7

Specifically, Plaintiff states that “there is evidence that doctors had advised Ms.
Welton that surgical treatment was impossible or futile,” citing to an appointment with
Dr. Schoolcraft in 2002 and an appointment with Dr. Sands in 2010. [#16 at 21 (citing
AR 259-60, 457)] But Plaintiff’s characterization of the record is not entirely accurate.
In 2002, Dr. Schoolcraft noted that Plaintiff’s gynecologist did not think that Plaintiff’s
“symptoms would be improved by another laparoscopy” or an oophorectomy. [AR 260]
Dr. Schoolcraft also reported that it was “a question whether a TAH-BSO [total
abdominal hysterectomy, bilateral salpingo-oopherectomy] would eliminate her chronic
pain.” [Id.] However, Dr. Schoolcraft had not seen Plaintiff for three years at the time,
and indicated that he would perform an ultrasound and then follow up with Plaintiff “to
determine any future treatment options.” [Id.] In 2010, Plaintiff informed Dr. Sands that
18

surgical intervention or alternative treatments even since obtaining health insurance.
[See AR 259-60, 392-93, 457]

Furthermore, “[t]he possibility of drawing two

inconsistent conclusions from the evidence does not prevent an administrative agency’s
findings from being supported by substantial evidence.”

Lax, 489 F.3d at 1084

(quotation omitted). The ALJ thus reasonably relied on the lack of supporting objective
medical evidence to conclude that Plaintiff’s subjective symptoms, including her pain,
were not disabling.
3. Conclusion
The ALJ articulated sufficient reasoning and relied upon proper factors in
determining that Plaintiff’s symptoms did not prevent her from performing work-related
activities.

To the extent Plaintiff argues that the ALJ should have discussed the

symptom evaluation factors in greater detail, or did not adequately discuss all of the
relevant factors, “so long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant's credibility, he need not make a formalistic factor-by-factor
recitation of the evidence . . . . [C]ommon sense, not technical perfection, is [the court's]
guide.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012) (quotations and
citation omitted); see also Valdez v. Berryhill, No. 17-cv-00478-RBJ, 2017 WL 5988652,
at *5 (D. Colo. Dec. 4, 2017) (ALJ not required to specifically discuss each of the seven
factors listed in sections 404.1529(c)(3) and 416.929(c)(3)). The ALJ here set forth
specific, substantial evidence in the evaluation of Plaintiff’s subjective complaints, and
applied the correct legal standards in making that determination.
she had “been previously told that she could have not have a hysterectomy due to scar
tissue between the bowel and the uterus.” [AR 457] But at that same appointment, Dr.
Sands explained his belief that Plaintiff “could have her pain relieved with a total
hysterectomy” and possible bowel resection. [Id.]
19

B.

The ALJ’s Consideration of Non-Exertional Factors

Plaintiff next claims that the ALJ failed to assign restrictions related to Plaintiff’s
non-exertional limitations in the RFC, including her nausea, vomiting, and mental
impairment. [#16 at 21-24] In response, Defendant states that the ALJ reasonably did
not include limitations related to Plaintiff’s nausea and vomiting in the RFC because
Plaintiff only complained of these issues intermittently and because Plaintiff had no
limitations as a result of her generalized anxiety disorder. [#17 at 12-15]
In determining Plaintiff’s RFC, the ALJ states that he “considered all symptoms
and the extent to which these symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence.” [AR 15] With respect to Plaintiff’s
nausea and vomiting, the ALJ recognized Plaintiff’s testimony that “she had daily
abdominal pain and intermittent vomiting,” that vomiting made her abdominal pain
worse, and “that she had no problems concentrating unless she was vomiting.” [AR 16]
The ALJ reviewed records from 2013 that demonstrated Plaintiff had had severe
vomiting, but “refused to go to the emergency room as recommended.” [AR 16-17] The
ALJ identified medication that stopped the vomiting and noted that Plaintiff had then
denied current abdominal pain, nausea, vomiting and diarrhea. [Id.] As discussed by
the ALJ, Plaintiff presented to providers in November 2013 again complaining of
nausea, and IBS, but by May 2014, she noted that her symptoms were controlled and
she refused an ultrasound. [Id.] Accordingly, Plaintiff has presented the Court with “no
reason to doubt” that the ALJ took Plaintiff’s non-exertional limitations of nausea and
vomiting into account in the RFC analysis. Wade v. Colvin, 26 F. Supp. 3d 1073, 1079
(10th Cir. 2014); see also Lax, 489 F.3d at 1084.

20

With respect to Plaintiff’s anxiety, the ALJ did not discuss that impairment in the
RFC analysis, but the Court nevertheless finds that the ALJ’s RFC determination was
proper.

At step two, the ALJ “must . . . rate the degree of the functional limitation

resulting from the claimant’s medically determinable mental impairments in four broad
functional areas: ‘[a]ctivities of daily living; social functioning; concentration, persistence,
or pace; and episodes of decompensation.” Wells, 727 F.3d at 1068 (quoting 20 C.F.R.
§§ 404.1520a(c)(3), 416.920a(c)(3)). Even if the ALJ ultimately finds “that a claimant’s
medically determinable mental impairments are ‘not severe,’” he generally must “further
consider and discuss them as part of his [RFC] analysis at step four.” Id. at 1064 (citing
20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2)).

In other words, “the Commissioner’s

procedures do not permit the ALJ to simply rely on his finding of non-severity as a
substitute for a proper RFC analysis.” Id. at 1065 (citing SSR 96-8p, 1996 WL 374184,
at *4 (July 2, 1996)). Notwithstanding the general rule, an ALJ may “of course, find at
step two that a medically determinable impairment posed no restriction on the
claimant’s work activities.”

Id. at 1065 n.3 (citing 20 C.F.R. §§ 404.1520a(c)(4),

416.920a(c)(4)). Such a finding that the claimant has no limitation in any of the four
functional areas “obviate[s] the need for further analysis at step four.” Id.
Here, at step two, the ALJ recognized that Plaintiff had the medically
determinable mental impairment of anxiety disorder, but concluded that Plaintiff had “no
limitation” in activities of daily living, social functioning, or concentration, persistence, or
pace, and that Plaintiff had not experienced any episodes of decompensation of an
extended duration. [AR 13-14] Accordingly, the ALJ found that Plaintiff had no mental
limitations, obviating any need for further analysis of Plaintiff’s anxiety in the RFC

21

determination at step four. 8 See Wells, 727 F.3d at 1065 n.3; see also Boyer v. Colvin,
No. 15-1054-SAC, 2016 WL 1170950, at *4 (D. Kan. Mar. 23, 2016). Cf. Vigil v.
Berryhill, No. 16-cv-01014-KLM, 2017 WL 3866768, at *6 (D. Colo. Sept. 5, 2017).
For these reasons, the Court finds that the ALJ’s RFC determination, which did
not include non-exertional limitations, was supported by substantial evidence, and that
the ALJ applied the appropriate legal standards making that determination.
C.

The ALJ’s Consideration of Opinion Evidence

Plaintiff argues that the ALJ improperly gave “no weight” and “little weight” to the
opinion of her treating physician, Dr. Kevin Boyle, while giving great weight to the
opinion of the consultative examiner, without adequate explanation. 9 [#16 at 27-30]
Defendant responds that the ALJ gave good reasons for the weight afforded to each
medical opinion, and that these reasons corresponded with the objective medical
evidence. [#17 at 20-24]
In considering medical opinions, the “ALJ must evaluate every medical opinion in
the record . . . although the weight given each opinion will vary according to the
relationship between the disability claimant and the medical professional.” Hamlin v.
8

After his step two functional limitation analysis, the ALJ concluded that Plaintiff’s
anxiety “causes no more than ‘mild’ limitation in any of the first three functional areas.”
[AR 15] A finding of “mild” restrictions in the relevant functional areas, as opposed to a
finding of no restrictions, would require further analysis at step four. See Wells, 727
F.3d at 1065 n.3; Vigil v. Berryhill, No. 16-cv-01014-KLM, 2017 WL 3866768, at *6 (D.
Colo. Sept. 5, 2017). However, the ALJ’s conclusion that the restrictions were no more
than mild appears to be a misstatement or mistake, given the ALJ’s more detailed
analysis of each of the functional areas in the preceding paragraphs, in which he
explicitly found “no limitation” on the claimant’s activities of daily living, social
functioning, and concentration, persistence or pace, and no evidence of episodes of
decompensation of an extended duration. [AR 14]
9
The ALJ also briefly discussed a December 2014 opinion by PA Kathleen Robinson
[AR 17], but Plaintiff does not challenge the ALJ’s decision with respect to that opinion
on appeal.
22

Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (internal citation omitted).

The

regulations governing the Commissioner’s consideration of medical opinions distinguish
among

“treating”

physicians,

“examining”

physicians,

and

“nonexamining”

(or

“consulting”) physicians. Boyd v. Berryhill, No. 17-cv-00722-MEH, 2017 WL 4877213,
at *11 (D. Colo. Oct. 30, 2017); see also 20 C.F.R. §§ 404.1527(c), 416.927(c).
“According to what has come to be known as the treating physician rule, the
Commissioner will generally give more weight to medical opinions from treating sources
than those from non-treating sources.” Langley v. Barnhart, 373 F.3d 1116, 1119 (10th
Cir. 2004); see also 20 C.F.R. §§ 404.1527(c)(2) (stating that “[g]enerally, [the
Commissioner] give[s] more weight to medical opinions from [the claimant’s] treating
sources”), 416.927(c)(2) (same).
In determining how much weight to be given to a treating physician’s opinion, the
ALJ will first decide whether the opinion qualifies for “controlling weight.” To make that
determination, the ALJ
[M]ust first consider whether the opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques. If the answer to
this question is “no,” then the inquiry at this stage is complete. If the ALJ
finds that the opinion is well-supported, he must then confirm that the
opinion is consistent with other substantial evidence in the record. In
other words, if the opinion is deficient in either of these respects, then it is
not entitled to controlling weight.
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quotations and citations
omitted); see also O’dell v. Colvin, No. 15-cv-00628-CBS, 2016 WL 5395247, at *3 (D.
Colo. Sept. 27, 2016) (treating physician opinions “cannot be rejected absent good
cause for specific and legitimate reasons clearly articulated in the hearing decision,”
including “when an opinion is brief, conclusory, or unsupported by the medical evidence
(citing Frey, 816 F.2d at 513)). Even if the treating physician’s opinion is not entitled to
23

controlling weight, however, it is “still entitled to deference and must be weighed using
all of the factors provided in 20 C.F.R. § 404.1527 and 416.927.” Watkins, 350 F.3d at
1300 (quotation omitted). Those factors are:
(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.
Id. at 1301 (quotation omitted). The ALJ need not explicitly discuss each of these six
factors in determining what weight to give a medical opinion. Oldham v. Astrue, 509
F.3d 1254, 1258 (10th Cir. 2007). However, the ALJ “must give good reasons . . . for
the weight assigned to a treating physician’s opinion, that are sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reason for that weight.” Langley, 373 F.3d at 1119
(internal quotations omitted). “[I]f the ALJ rejects the opinion completely, he must then
give specific, legitimate reasons for doing so.” Watkins, 350 F.3d at 1301 (quotations
omitted).
For example, in Langley v. Barnhart, the ALJ refused to give the claimant’s
treating psychiatrist’s opinion controlling weight, explaining that it was unsupported by
the objective medical evidence, including the psychiatrist’s own records. 373 F.3d at
1121-22. The Tenth Circuit reasoned that while “[t]he ALJ provided a facially valid
reason” for not affording the opinion controlling weight—that it was inconsistent with
other evidence in the record—the court could “find no obvious inconsistencies” between
the psychiatrist’s opinion and his treatment notes or the record evidence. Id. at 1122.
24

The court ordered remand to the Commissioner because the ALJ’s “reasons for
rejecting that opinion [we]re not ‘sufficiently specific’ to enable th[e] court to
meaningfully review his findings.” Id. at 1123 (quoting Watkins, 350 F.3d at 1300).
Similarly, in O’dell v. Colvin, this Court remanded to the Commissioner where the ALJ
had not explicitly addressed purported inconsistencies between the treating physician’s
opinion, and his treatment notes and the record. 2016 WL 5395247, at *3-5. The Court
concluded that “[w]ithout any supporting evidentiary citations or specificity, the ALJ’s
assertions regarding [the treating physician’s] opinions are little more than conclusory
statements and must be remanded for further explanation.” Id. at *5. Moreover, the
ALJ “ha[d] made no effort at discussing—or even citing—the specific portions of the
objective evidence that support his position.” Id. at 4.
By contrast, if the ALJ “set[s] forth a summary of the relevant objective medical
evidence earlier in his decision,” he is not required to “recite the same evidence again”
in rejecting a medical opinion. Endriss v. Astrue, 506 F. App’x 772, 777 (10th Cir.
2012); see also Best-Willie v. Colvin, 514 F. App’x 728, 733 (10th Cir. 2013) (“Although
there was not a contemporaneous discussion of [the medical evidence] in discounting
[the physician’s] opinion, in reading the ALJ’s decision as a whole, it is evident [the
physician’s] opinion is inconsistent with the record.”); Martinez v. Colvin, No. 15-cv00050-REB, 2016 WL 1247765, at *4 (D. Colo. Mar. 30, 2016) (“The ALJ's analysis of
[the medical] evidence earlier in his opinion adequately substantiates his subsequent
conclusion that [the physician’s] assessment of plaintiff's functional capacity was not
consistent with the medical evidence.”).

In Endriss, “the ALJ cited to a number of

exhibits in the record,” and though he “did not provide a contemporaneous discussion of

25

those records,” the ALJ had made observations about the evidence in those exhibits
“just a few pages earlier.” 506 F. App’x at 775. For example, the ALJ had referenced
the claimant’s repeated reports of doing well, and records demonstrating that the
claimant’s condition had improved after physical therapy, surgery, and medication
changes. Id. at 775-76. Moreover, “when the ALJ has properly discredited a claimant’s
subjective complaints of pain, he need not accept a medical source opinion premised on
a contrary estimation of the claimant’s credibility regarding her own functional and other
limitations.” Manning v. Colvin, 182 F. Supp. 3d 1156, 1162 (D. Colo. 2016) (quotation
omitted).
1. Dr. Boyle’s Opinions
Here, the ALJ first addressed the objective medical evidence at length [AR 1617], and then decided to give “no weight” to Dr. Boyle’s September 2015 opinion that
Plaintiff “was unable to work in any capacity due to disability from chronic pelvic pain”
[AR 17 (citing AR 411)]. Dr. Boyle’s opinion was rendered after Plaintiff requested “a
letter for disability stating she is unable to work.” [AR 411] The ALJ also gave “little
weight” to the assessment form completed by Dr. Boyle in March 2016. [AR 17 (citing
AR 444-452)]
With respect to the first opinion, the ALJ explained that there was “no
explanation” for Dr. Boyle’s conclusion that Plaintiff could not work, and that the
conclusion was “inconsistent” with Dr. Boyle’s treating notes. [AR 17 (citing AR 411)]
At the same appointment where Dr. Boyle opined that Plaintiff was unable to work due
to chronic pelvic pain, Dr. Boyle also reported that Plaintiff had experienced “quite a bit
of improvement in the chronic pain,” had not been suffering from any side effects from

26

her medications, and was “able to function on activities of daily living.” [AR 411] The
ALJ cited to those treatment records, and gave other supporting evidentiary citations
throughout his discussion of Dr. Boyle’s opinions. [AR 17]. The Tenth Circuit has found
internal inconsistencies like the ones referenced by the ALJ here, sufficient to support
an ALJ’s decision to reject a treating physician’s opinion. See, e.g., Newbold v. Colvin,
718 F.3d 1257, 1266 (10th Cir. 2013) (finding ALJ’s decision to give little weight to
treating physician’s opinion supported by substantial evidence where the physician’s
treatment note from the same day was inconsistent with the opinion he gave).
The ALJ also explained that Dr. Boyle’s conclusory statement that the claimant
was disabled was “a decision specifically reserved for the Commissioner.” [AR 17]
First, an ALJ has legitimate grounds to reject a medical provider’s opinion that is “brief,
conclusory, or unsupported by the medical evidence.” O’dell, 2016 WL 5395247, at *3
(citing Frey, 816 F.2d at 513). Second, a treating physician’s opinion that a claimant is
totally disabled “is not dispositive because final responsibility for determining the
ultimate issue of disability is reserved” to the Commissioner. Castellano v. Sec'y of
Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994); see also Lewis v. Colvin,
No. 13-1266-SAC, 2014 WL 4723106, at *2 (D. Kan. Sept. 23, 2014) (finding “no error
by the ALJ in giving little weight to a conclusory opinion on the ultimate issue of
disability” because such opinions “are reserved to the Commissioner” and “are never
entitled to controlling weight or special significance”); Cox v. Astrue, No. 10-2404-SAC,
2011 WL 3651852, at *6 (D. Kan. Aug. 19, 2011) (“Giving controlling weight to [treating
physician opinions on the ultimate issue of disability] would, in effect, confer upon the
treating source the authority to make the determination or decision about whether an

27

individual is under a disability, and thus would be an abdication of the Commissioner's
statutory responsibility to determine whether an individual is disabled.”). Accordingly,
the ALJ was correct that Dr. Boyle’s opinion that Plaintiff was “unable to work in any
capacity due to disability from chronic pelvic pain” was a decision specifically reserved
to the Commissioner. [AR 17]
Finally, the ALJ’s analysis of Dr. Boyle’s 2015 opinion also was directly preceded
by an in-depth discussion of the objective medical evidence.

The ALJ found that

Plaintiff had repeatedly reported that she felt fine—and at times even great—that her
medications were controlling her pain, that she had refused to go to the emergency
room and refused an ultrasound, and that she reported exercising. [AR 16-17]; see
Endriss, 506 F. App’x at 777.

In reviewing the medical evidence, the ALJ also

recounted that testing had not demonstrated any diagnostic abnormalities, and that
Plaintiff had normal bowel sounds, and a nontender and nondistended abdomen,
including at appointments in 2011 and 2013. [AR 16-17] Although the ALJ did not
provide a particularly detailed analysis of the inconsistencies between Dr. Boyle’s
opinion and the record, those inconsistencies are “obvious” in, and supported by, the
record. Langley, 373 F.3d at 1122; see also Best-Willie, 514 F. App’x at 733 (“[I]n
reading the ALJ’s decision as a whole, it is evident [the medical source’s] opinion [wa]s
inconsistent with the record.”); Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007)
(finding that “the record provide[d] ample support” for the ALJ’s conclusion that the
treating physician’s records were inconsistent with the evidence).
The ALJ’s discussion of the objective evidence, and his discrediting of Plaintiff’s
subjective complaints, also supports his decision to give Dr. Boyle’s second opinion

28

“little weight,” especially insofar as Dr. Boyle opined that Plaintiff could only sit for two
hours in an eight-hour workday.

[AR 17]

As the ALJ stated, that limitation was

“inexplicable.” [Id.] There is no indication in the objective evidence, reviewed in detail
by the ALJ, that the Plaintiff was unable to sit for more than two hours a day. [AR 1617]

The ALJ stated that “[i]n light of the evidence and nature and frequency of

treatment, the sitting limitation seems based on subjective complaints alone.” [AR 17]
But even Plaintiff’s subjective complaints before the ALJ do not seem to support a
sitting limitation. [AR 16] Although she noted that she had to lay down three to five
times in an average week for abdominal pain, Plaintiff did not mention any problems
with sitting. [AR 16, 32-49] With respect to the nature and frequency of Dr. Boyle’s
treatment, referenced by the ALJ, Dr. Boyle saw Plaintiff once in 2013 [AR 357-60],
once in 2014 [AR 385-88], and every two to three months in 2015 [AR 392, 399, 405-06,
409-11, 415-17], predominantly for medication management, and never referenced
Plaintiff’s ability to sit. Furthermore, as discussed above, the ALJ properly discredited
Plaintiff’s subjective complaints of pain, and accordingly did not need to accept Dr.
Boyle's March 2016 opinion, which the ALJ believed was based on Plaintiff’s subjective
complaints alone. See Manning, 182 F. Supp. 3d at 1162.
Accordingly, the ALJ’s reasoning—supported by citations to Dr. Boyle’s
inconsistent treatment notes, and analysis of the objective medical evidence and
discrediting of Plaintiff’s subjective complaints in other portions of the opinion—
adequately substantiates his ultimate conclusion that Dr. Boyle’s opinions were entitled
to little and no weight. See, e.g., Martinez, 2016 WL 1247765, at *4. Although the ALJ
could have offered a more detailed explanation of how he weighed Dr. Boyle’s opinions,

29

his failure to do so does not warrant remand because his reasoning is clearly
substantiated by the record. Id. at *5; see also Endriss, 506 F. App’x at 776 (“[T]here is
no authority requiring an ALJ’s decision to apply expressly each of the six relevant
factors in deciding what weight to give a medical opinion.” (quotation omitted)); Davis v.
Erdmann, 607 F.2d 917, 918 n.1 (10th Cir. 1979) (“[W]e will uphold a decision of less
than ideal clarity if the agency’s path may reasonably be discerned.”).
2. Dr. Sever’s Opinion
Plaintiff next argues that the ALJ did not adequately explain why he gave great
weight to the opinion of the Agency’s consultative examiner, Dr. Sever. [#16 at 29-30]
Dr. Sever opined, in part, that Plaintiff would need to sit for 15 minutes after walking for
more than two hours to relieve abdominal pain, and that Plaintiff was limited in pushing
and pulling, and would not be able to climb ladders, ropes, or scaffolds, due to possible
straining to her abdomen. [AR 17 (citing AR 436-38)] The ALJ afforded “great weight”
to Dr. Sever’s consultative opinion [id.], which was rendered after a review of Plaintiff’s
medical records and after conducting a physical exam of Plaintiff in February 2016 [AR
426-34]. The ALJ ultimately adopted the foregoing limitations described by Dr. Sever in
Plaintiff’s RFC. [AR 15]
An ALJ may rely on opinions of examining physicians over the opinions of
treating physicians where he has stated specific and legitimate reasons for rejecting the
opinions of treating physicians. Hamilton v. Sec’y of Health & Human Servs., 961 F.2d
1495, 1498-1500 (10th Cir. 1992).

As discussed above, the ALJ gave adequate

reasons for rejecting Dr. Boyle’s opinions. The ALJ explained that he gave great weight
to Dr. Sever’s opinion because it was “consistent with the objective evidence,” which

30

demonstrated that “claimant can perform a range of light work.” [AR 17-18] “[T]he
record provides ample support” for that conclusion. Pisciotta, 500 F.3d at 1078. Again,
while the ALJ noted Plaintiff’s struggles with abdominal pain, urinary retention, nausea
and vomiting, he also found that Plaintiff’s symptoms had been largely controlled by
medications, that she often felt fine and reported doing well, and that Plaintiff did not
consistently seek treatment or intervention. [AR 17-18] In his review of the record, the
ALJ also indicated that Plaintiff walked for exercise, cared for her parents, including
preparing meals, went out to dinner, cared for her cat, shopped, and cleaned her house.
[AR 14, 16-18]
As Plaintiff argues, the ALJ failed to address any factors under the regulations
other than the consistency between Dr. Sever’s opinion and the record. See 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2). The Court agrees. 10 But while the ALJ’s sparse
analysis is concerning, the Court nevertheless finds that the ALJ’s evaluation of Dr.
Sever’s opinion, in conjunction with the ALJ’s review of the medical evidence and the
record, is supported by substantial evidence. See Howard v. Barnhart, 379 F.3d 945,
947 (10th Cir. 2004) (finding that while “the lack of analysis accompanying the ALJ’s
RFC determination [wa]s troubling,” a review of the record nevertheless lead the court
“to conclude that substantial evidence in the record support[ed] the ALJ’s RFC
determination”).

10

The Court also agrees with Plaintiff that the ALJ’s citation to Exhibit 7F, page 1 [see
AR 18; AR 381], in his evaluation of Dr. Sever’s opinion, does not have any bearing on
that opinion. [#16 at 29] Instead, Exhibit 7F at page 1 is a note from PA Stephanie
Keene on May 19, 2014 [AR 384], reporting that Plaintiff refused an ultrasound, that her
nausea was currently controlled, and that Keene advised Plaintiff to decrease her pain
medications [AR 381].
31

The Court thus finds that the ALJ applied the correct legal standards in
evaluating the relative weight to accord the medical opinion evidence, and that the
weight accorded those opinions is supported by substantial evidence.
IV.

CONCLUSION
Accordingly, for the foregoing reasons, the Court AFFIRMS the Commissioner’s

decision that Plaintiff was not under a disability within the meaning of the SSA from
November 1, 2003 through April 14, 2016.

DATED: April 25, 2018

BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge

32