Ortiz v. Commissioner, Social Security Administration
Filing
25
MEMORANDUM OPINION AND ORDER by Magistrate Judge Nina Y. Wang on 5/1/2018. The court hereby AFFIRMS the Commissioner's final decision. (bwilk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01407-NYW
APRIL ANN ORTIZ,
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This civil action arises under Title XVI of the Social Security Act (“Act”), 42 U.S.C.
§§ 1381–83(c) for review of the Commissioner of Social Security’s (“Commissioner” or
“Defendant”) final decision denying Plaintiff April Ortiz’s (“Plaintiff” or “Ms. Ortiz”)
application for Supplemental Security Income (“SSI”). Pursuant to the Order of Reassignment
dated December 19, 2017 [#24],1 this civil action is before this 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. Upon review
of the Parties’ briefing, the entire case file, the Administrative Record, and the applicable case
law, this court respectfully AFFRIMS the Commissioner’s decision for the reasons stated herein.
PROCEDURAL HISTORY
This case arises from Plaintiff’s application for SSI protectively filed on December 2,
2013. [#11-2 at 20; #11-3 at 110–11; #11-5 at 195]. Ms. Ortiz completed the 9th grade, took
1
In citing to the Administrative Record, the court refers to the Electronic Court Filing (“ECF”)
docket number using the convention [#___], and cites to the page number associated with the
Record, found in the bottom right-hand corner of the page. For all other documents, the court
cites to the ECF docket number and the page number assigned by the ECF system.
special education classes while in school, and never received her General Education Diploma
(“GED”). See [#11-2 at 24, 43; #11-3 at 114]. Plaintiff alleges she became disabled on October
15, 2005, due to hearing loss, a learning disability, and a speech problem. See [#11-3 at 111].
Ms. Ortiz was twenty-five on the alleged onset date of her claimed disability.
The Colorado Department of Human Services denied Plaintiff’s application
administratively. See [#11-2 at 20; #11-3 at 110]. Ms. Ortiz timely filed a request for a hearing
before an Administrative Law Judge (“ALJ”) on May 19, 2014. See [#11-4 at 126]. ALJ
Patricia E. Hartman (the “ALJ”) held a hearing on January 12, 2016. [#11-2 at 20, 38]. At the
hearing, Ms. Ortiz proceeded through counsel, and the ALJ received testimony from Plaintiff and
Vocational Expert Cynthia Bartmann (the “VE”). See [#11-2 at 20, 39].
Plaintiff testified at the hearing that she currently lives alone in a public housing
apartment in Fort Collins, Colorado. [Id. at 42]. She does not own a vehicle, and uses public
transportation to get around. [Id.]. During the day, Ms. Ortiz typically stays home, watches
television, walks her dogs, and takes 1 to 2 naps; she continued that she also has trouble falling
asleep at night. [Id. at 49]. As to her daily activities, Ms. Ortiz testified that she cooks mostly
microwavable meals, goes grocery shopping once or twice a month, washes dishes and laundry,
vacuums, takes out the garbage, goes to the movies on occasion, eats out once or twice a month,
and walks and cares for her three dogs. [Id. at 50–52]. However, Ms. Ortiz explained that she
takes several 5 to 10 minute breaks while doing household chores. [Id. at 52].
Regarding her physical ailments, Plaintiff stated she experiences pain in her ankles,
knees, and wrists with the pain shooting from her wrist to her hands, making it difficult for her to
grasp or hold things or brush her teeth, but she also testified that she could still lift items
weighing 70 to 80 pounds before her wrists hurt. [Id. at 45, 49]. Plaintiff testified that her wrist
2
pain is usually a 1–2 out of 10 in intensity, but reaches 10 out of 10 once or twice a week. [Id. at
53–54]. She testified to taking ibuprofen when needed, and that a doctor prescribed physical
therapy for her wrists, but that she forgot to follow through with it. [Id. at 45–46]. Ms. Ortiz
also testified that she was hospitalized somewhat recently for a “seriously bad earache.” [Id. at
46]. She was prescribed hearing aids for her hearing issues, which helped “so-so,” but she has
since lost her hearing aids and cannot afford new ones. [Id. at 47]. Without her hearing aids
Plaintiff stated that she has difficulty hearing people, or the doorbell, or the phone. [Id. at 53].
Plaintiff attributes her hearing loss to her Turner’s syndrome that she was born with. [Id. at 47].
Ms. Ortiz explained that her physical ailments prohibit her from standing or sitting for more than
an hour, and that she can only walk a mile. [Id. at 47–48].
Ms. Ortiz also explained that she suffers from depression and anxiety, which cause her to
seclude herself from others in her room, but that she does not take medication or attend therapy.
[Id. at 46]. She also testified to memory issues that cause her to constantly forget appointments
and make it difficult to pay attention for more than a half-hour. [Id. at 48–49, 55]. Her
concentration issues also make it difficult for her to follow recipes or instructions. [Id. at 54].
Plaintiff testified that she has not worked in the previous two years; before then she
worked as a housekeeper for America Inn as well as for Poudre Valley Hospital. See [id. at 43–
44]. Ms. Ortiz stated that she quit working for America Inn because it was too far from her
home, and that she was terminated from Poudre Valley Hospital due to tardiness despite
explaining that her poor hearing caused her to miss alarms. [Id.]. When asked what prohibits
her from working currently, Ms. Ortiz responded that her forgetfulness and pain in her ankles,
wrists, and knees were the reasons. [Id. at 44–45].
3
A VE also testified at the hearing. The VE first summarized Plaintiff’s past relevant
work as a cleaner/housekeeper, a specific vocational preparation (“SVP”) level 2 light exertion
job, and a housekeeper/hospital, a SVP level 2 medium exertion job. See [#11-2 at 56–57]. The
VE was then to consider an individual who could perform work at all exertional levels, limited to
simple, routine, and repetitive work that was goal-oriented at a maximum SVP level 2, and could
not (1) climb ladders or scaffolds, (2) work in an environment with “loud auditory warning[]
signals,” (3) work at unprotected heights or around dangerous machinery, or (4) perform at a fast
production rate. [Id. at 57]. Based on this hypothetical, the VE testified that such an individual
could perform both of Plaintiff’s previous jobs, as well as jobs as a laundry worker, SVP level 2
medium exertion job, a mail clerk, SVP level 2 light exertion job, and an addresser, SVP level 2
sedentary job. [Id. at 57–58]. The VE proclaimed that her testimony was consistent with the
Dictionary of Occupational Titles. [Id. at 58].
In response to questioning from Ms. Ortiz’s counsel, the VE testified that someone who
required frequent breaks to lie down, had an inability to understand or carry out simple or
complex instructions, and would be off-task 40-50% of the time could not perform gainful
employment. [Id. at 59–62]. But the VE did testify that someone with limited social functioning
could still perform the jobs identified in response to the ALJ’s questioning. [Id. at 61].
On March 14, 2016, the ALJ issued a decision finding Ms. Ortiz not disabled under the
Act. [#11-2 at 31]. Plaintiff requested Appeals Council review of the ALJ’s decision [id. at 14–
16], which the Appeals Council denied, rendering the ALJ’s decision the final decision of the
Commissioner [id. at 1–5]. Plaintiff sought judicial review of the Commissioner’s final decision
in the United States District Court for the District of Colorado on June 9, 2017, invoking this
court’s jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 1383(c)(3).
4
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); cf. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (“[I]f the ALJ failed to
apply the correct legal test, there is a ground for reversal apart from a lack of substantial
evidence.” (internal citation omitted)). 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).
But
“[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 may 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).
ANALYSIS
I.
The ALJ’s Decision
SSI 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
5
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).
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 the maximum amount of work 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; see also id. at 751–52 (explaining the decisionmaker
must consider both the claimant’s exertional and nonexertional limitations). The ALJ compares
6
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) (citation omitted). “The
claimant bears the burden of proof through step four of the analysis.” Neilson v. Sullivan, 992
F.2d 1118, 1120 (10th Cir. 1993).
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. Neilson, 992 F.2d at 1120. The Commissioner can meet her burden by the
testimony of a vocational expert. Tackett v. Apfel, 180 F.3d 1094, 1098–99, 1101 (9th Cir.
1999).
The ALJ found that Ms. Ortiz and had not engaged in substantial gainful activity since
December 2, 2013. [#11-2 at 22]. At step two the ALJ determined Ms. Ortiz had the following
severe impairments: obesity, Turner’s syndrome with bilateral neurosensory hearing loss, and
borderline intellectual functioning (“BIF”) v. learning disorder (“LD”). [Id.]. At step three the
ALJ determined that Plaintiff 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. § 416.920(d)). [Id. at 23]. The ALJ then determined
Plaintiff had the RFC to perform a full range of work at all exertional levels subject to several
limitations [id. at 25], and concluded that Ms. Ortiz could perform her previous work as a
cleaner/housekeeper and housekeeper/hospital [id. at 29]. Though the ALJ concluded that Ms.
Ortiz was not disabled under the Act at step four, she also concluded at step five that there
existed three additional jobs Ms. Ortiz could perform in the national economy. [Id. at 30–31].
7
On appeal, Ms. Ortiz argues the ALJ erred at step three in concluding that her BIF did not
meet Listing 12.05.D., 2 and erred in formulating Ms. Ortiz’s RFC by improperly assessing Ms.
Ortiz’s credibility. [#19]. I consider each of these challenges in turn.
II.
Step Three
Step three of the evaluation process requires the ALJ to consider whether a claimant has
an impairment that meets or medically equals any listing found at 20 C.F.R., Pt. 404, Subpt. P,
App’x 1 (§§ 416.920(a)(4)(iii), 416.920(d); Listing of Impairments, 20 C.F.R. § 416.925). The
severity of the impairments found in these listings precludes any substantial gainful activity. See
Bowen v. Yuckert, 482 U.S. 137, 141 (1987). A claimant meets a listed impairment if her
ailments satisfy all of the listing’s criteria, 20 C.F.R. § 416.925(c)(3), or if her ailments are “at
least equal in severity and duration to the criteria of any listed impairment,” id. §§ 416.926(a).
See also Davidson v. Sec’y of Health and Human Servs., 912 F.2d 1246, 1251–1252 (10th Cir.
1990).
Plaintiff contends the ALJ erred at step three in concluding that she does not meet or
equal Listing 12.05.D.
Listing 12.05 covers “Intellectual disability,” which “refers to
significantly subaverage general intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., [before the age of 22].” 20 C.F.R. Pt.
2
There appears to be some ambiguity in Plaintiff’s papers as to whether she also challenges the
ALJ’s conclusion that her ailments do not meet or equal Listing 12.02. Compare [#19 at 3; #23
at 1–3] with [#19 at 9–11]. But Ms. Ortiz argues in her opening brief that her BIF meets or
equals Listing 12.05.D. only. See [#19 at 9–11]. Thus, I do not consider any arguments as to
Listings 12.02 or 12.05.A., B. that appear for the first time in Plaintiff’s Reply Brief. See
Clawson v. FedEx Ground Package Sys., Inc., 451 F. Supp. 2d 731, 734 (D. Md. 2006) (“The
ordinary rule in federal courts is that an argument raised for the first time in a reply brief or
memorandum will not be considered.”). Indeed, it appears that Plaintiff’s reference to Listing
12.02 is a typographical error, and that she truly intends to refer to Listing 12.05.D. See [#23 at
2–3, 6].
8
404, Subpt. P, App. 1, Listing 12.05. Establishing an intellectual disability under paragraph D
requires:
A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least
two of the following:
1.
2.
3.
4.
Marked restriction of activities of daily living; or
Marked difficulties in maintaining social functioning; or
Marked difficulties in maintaining concentration, persistence, or pace; or
Repeated episodes of decompensation, each of extended duration.
Id.
Plaintiff argues that, had the ALJ properly weighed the opinion of Dr. Joyce Ackerman,
the ALJ would have found her BIF to meet Listing 12.05.D. While acknowledging that Dr.
Ackerman was an examining rather than treating physician, 3 Ms. Ortiz nonetheless argues that
her opinion is entitled to great weight because it was consistent with “extensive” evidence of Ms.
Ortiz’s “severe mental impairment.” See [#19 at 10–11; #23 at 2–3]. That is, Dr. Ackerman
concluded Ms. Ortiz had a full scale IQ of 70; a Verbal Index Standard Score in the first
percentile, indicating marked difficulties with maintaining social functioning; and a processing
speed in the tenth percentile, indicating marked difficulties with maintaining concentration,
persistence, and pace. See [#19 at 10–11; #23 at 2–3]. Plaintiff also contends the ALJ erred by
placing greater weight on the opinion of Dr. Brill, a non-examining physician. [#19 at 11; #23 at
3].
The Commissioner counters that there is no substantial evidence corroborating Dr.
Ackerman’s findings.
Nor can Dr. Ackerman’s findings “automatically equate” to marked
limitations in Ms. Ortiz’s mental functioning, as Dr. Ackerman even observed that “Plaintiff was
3
In her Response, Defendant argues that Plaintiff “appears to confuse the procedure for
evaluating the opinion of a treating physician with that for the opinion of an examining source.”
[#20 at 7].
9
able to sustain attention to the tasks presented and was goal oriented.” See [#20 at 8 (internal
quotation marks omitted)]. For the following reasons, I respectfully agree.
Medical Opinions: Generally, the opinion of an examining source is entitled to more
weight than the opinion of a non-examining source. See Garrison v. Colvin, 759 F.3d 995, 1012
(9th Cir. 2014); 20 C.F.R. § 416.927(c)(1). Indeed, the opinion of an examining source is in no
way “dismissable,” see Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012), and may be
dismissed or discounted only upon an examination of the factors provided in the regulations and
“specific, legitimate reasons for rejecting it[,]” Doyal v. Barnhart, 331 F.3d 758, 764 (10th Cir.
2003). See also 20 C.F.R. § 416.927(c)(2)(i)–(ii), (c)(3)–(c)(6) (listing factors the ALJ must
consider when weighing medical source opinions). Here, the ALJ afforded Dr. Ackerman’s
opinion partial weight “because it [was] somewhat inconsistent” with Dr. Brill’s opinion—whose
opinion the ALJ afforded great weight—and the record as a whole. See [#11-2 at 29].
Dr. Ackerman, a psychologist, conducted an agency-requested psychological evaluation
of Ms. Ortiz on November 30, 2010. See [#11-7 at 284]. The evaluation first indicates that Ms.
Oritz reported that she had received special education and speech therapy services while in
school, but that she could read, write, and perform simple arithmetic so she was unsure whether
she had been diagnosed with a learning disability. [Id. at 284, 285]. Ms. Ortiz also reported she
could perform and complete basic hygienic tasks and household chores, had a driver’s license,
and generally kept to herself during the day because she did not socialize with others beside her
mother.
See [id.].
Relevant here, Dr. Ackerman opined that Ms. Ortiz’s appearance and
presentation were appropriate; her language and speech “appeared appropriate for her age and
cognitive abilities”; her thought process was clear and logical, as she sustained attention to the
tasks presented and was goal oriented; her judgment was appropriate; her cognition and memory
10
were oriented to person, place, and time, and she could perform several cognitive tasks without
difficulty; and her cooperation and attitude, which revealed that she was cooperative and was
engaged in tasks with good motivation, were an accurate reflection of her current abilities. [Id.
at 285–86].
Upon completion of the Wechsler Adult Intelligence Scale – Fourth Edition
(“WAIS-IV”), Dr. Ackerman reported Ms. Ortiz’s scores reflected that her verbal abilities were
in the Extremely Low range, and that her nonverbal/spatial abilities and ability to process visual
information with speed and accuracy were in the Low Average ranges. See [id. at 288]. Dr.
Ackerman thus opined that Plaintiff’s cognitive abilities placed her in the BIF range, and that
“she is likely to experience difficulty learning new tasks and acquiring competitive
employment.” [Id. at 289].
On May 5, 2014, Dr. Brill, a state agency psychological consultant, completed a mental
RFC assessment of Ms. Ortiz based on the evidence in the record. See [#11-3 at 118]. Dr. Brill
opined that Plaintiff had moderate limitations in her ability to understand and remember detailed
instructions, and appeared to incorporate Dr. Ackerman’s narrative regarding the specific
understanding and memory limitations. [Id. at 118–19]. Dr. Brill further opined that Plaintiff
had moderate limitations in her ability to carry out detailed instructions and ordinary routines
without special supervision, but that she did not have any significant limitations in her ability to
carry out short, simple instructions, maintain attention and concentration for extended periods,
adhere to a schedule, make simple work-related decisions, or work in proximity with others. See
[id. at 119]. Dr. Brill again incorporated Dr. Ackerman’s report when asked to provide a
narrative on Ms. Ortiz’s sustained concentration and persistence limitations. [Id.]. Dr. Brill also
opined that Plaintiff had moderate limitations in her ability to: appropriately interact with the
general public, interact with coworkers, respond to changes in the work setting, and to set
11
realistic goals or to make plans independent of others. See [id. at 119–20]. Dr. Brill reported
that Plaintiff would need some guidance with adaptation and problem solving. [Id. at 120]. Dr.
Brill thus concluded that Ms. Ortiz’s medical record revealed cognitive functional and hearing
deficits with some areas of adequate basic functioning, indicating that she could perform simple,
basic work tasks. [Id.].
The ALJ considered both opinions throughout her decision. At step 2 the ALJ relied on
Dr. Ackerman’s findings that Plaintiff’s depression may have been caused by her thyroid issues,
and that Plaintiff had the ability to carry out basic hygienic tasks and household chores, to
conclude that Plaintiff’s depression was not a severe impairment. See [#11-2 at 22–23]. At step
3 the ALJ relied on and adopted in its entirety Dr. Brill’s opinion in concluding that Plaintiff
suffered from no marked limitations in the paragraph B criteria of Listing 12.02; the ALJ also
rejected Ms. Ortiz’s suggestion that Dr. Ackerman’s report found marked limitations in all of the
paragraph B criteria to satisfy Listing 12.05.D. [Id. at 24–25]. Then, while formulating Ms.
Ortiz’s RFC, the ALJ again discussed Dr. Ackerman’s and Dr. Brill’s opinions, and afforded
only partial weight to Dr. Ackerman’s because she found it inconsistent with Dr. Brill’s and the
medical record as a whole. [Id. at 28–29]. Ms. Ortiz now contends that it was error to afford
greater weight to Dr. Brill’s opinion than to Dr. Ackerman’s opinion, as substantial evidence in
fact corroborates Dr. Ackerman’s findings. The court now considers the medical evidence
relating to Plaintiff’s cognitive functioning.
Medical Evidence: In a December 9, 2013 Disability Report, Ms. Ortiz was observed to
have difficulties with hearing and understanding, coherency, as well as with talking and
answering. See [#11-6 at 215]. In her function report Ms. Ortiz noted her conditions limit her
ability to work because she “forget[s] things fast” and can no longer “remember things.” [Id. at
12
226]. She also noted that her daily activities include cleaning, watching television, making
something to eat, going outside if it’s nice, listening to music, and then watching television
before going to sleep. [Id.]; see also [id. at 227–228 (noting that she uses public transportation,
goes shopping, and pays bills)]. Ms. Ortiz explained that “forgettin[g] things” affected her
ability to manage money, her interests and hobbies, and her social activities. See [id. at 228–30].
Plaintiff also reported that she does not take any medications. See [id. at 257, 264].
Treatment notes from Family Medicine Center reveal that Plaintiff presented to complete
service animal paperwork on March 12, 2013. See [#11-7 at 290]. Her patient history revealed a
severe hearing impairment, Turner’s syndrome, and infertility; her general exam revealed that
her appearance was comfortable, that her mental status was grossly normal, that her affect and
judgment were normal, and that she was alert and oriented. See [id. at 291–92]. Treatment notes
from Poudre Valley Hospital indicate that Plaintiff sought treatment for various issues, including
earaches, laryngitis, and diffuse body pain; these notes also reported Plaintiff’s past medical
history to include a severe hearing impairment, Turner’s syndrome, and infertility. See generally
[#11-8; #11-9]. On several occasions doctors indicated that Ms. Ortiz had normal mood, affect,
and behavior, was alert and oriented, and was negative for confusion and decreased
concentration. E.g., [#11-8 at 302, 305, 310, 311, 314, 331, 339; #11-9 at 351, 352, 372–73,
381, 382, 384, 386]. Only a handful of treatment notes reflect Plaintiff’s reports of a learning
disability, her complaints of memory and understanding limitations, or that she appeared to have
slow mentation. See [#11-9 at 369–70, 375, 382].
Laura Smith completed a Mental Retardation and Subaverage Intellectual Functioning
Professional Source Data Sheet on January 8, 2016. See [id. at 356]. Based on Ms. Ortiz’s
statements, Ms. Smith opined that Plaintiff had marked limitations in:
13
maintaining
concentration, persistence, and pace; age-appropriate cognitive/communicative function,
including the use of the telephone or computer; age-appropriate social functioning;
understanding and remembering very short, simple instructions or detailed instructions; carrying
out detailed instructions; and completing a normal workday and workweek without interruption
from psychological symptoms and to perform at a consistent pace without unreasonable breaks.
See [id. at 358–60]. Ms. Smith also reported that Ms. Ortiz “did demonstrate some confusion
about questions but gave appropriate answers.” [Id. at 360]. The ALJ, however, afforded Ms.
Smith’s opinion little weight because it was inconsistent with Dr. Ackerman’s opinion and the
medical record, and because Ms. Smith did not appear to be an acceptable medical source. See
[#11-2 at 28].
Finally, Plaintiff testified to her cognitive functioning limitations. She stated that her
forgetfulness, among other physical ailments, was a primary reason she could no longer work.
See [#11-2 at 44–45]. She testified that her memory issues cause her to constantly forget
appointments and make it difficult to pay attention for more than a half-hour. [Id. at 48–49, 55].
She further testified that concentration issues make it difficult for her to follow recipes or
instructions. [Id. at 54].
Based on the foregoing, the court finds no reversible error in the ALJ’s decision to afford
only partial weight to Dr. Ackerman’s opinion. To start, the burden lies with the claimant “to
present evidence establishing her impairments meet or equal listed impairments[.]” Fischer-Ross
v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). The medical evidence regarding Plaintiff’s BIF
is lacking, as most of her treatment notes relate to her hearing issues and general complaints of
diffuse body pain. See generally [#11-8; #11-9]. This lack of corroborating medical evidence
was one of the ALJ’s primary reasons for affording only partial weight to Dr. Ackerman’s
14
opinion. See Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007) (“Medical evidence may
be discounted if it is internally inconsistent or inconsistent with other evidence.”).
Further, Dr. Ackerman also opined that, despite Ms. Ortiz’s poor WAIS-IV scores, her
mental status exam revealed appropriate language and speech, mood and affect, organization and
thought process, judgment, cognition and memory, and cooperation and attitude. See [#11-7 at
285–86]. Dr. Ackerman also reported that Ms. Ortiz could perform daily hygienic tasks and
household chores, and could manage her own finances. [Id. at 285–289]. From this, the court is
not convinced that Dr. Ackerman’s opinion suggests marked limitations in any of the four
categories under Listing 12.05.D.
Cf. 20 C.F.R. § 416.926a(e)(2)(i) (defining “marked
limitation” in evaluating a child’s functional equivalence to the Listings as an impairment or
impairments that “interferes seriously with your ability to independently initiate, sustain, or
complete activities.”). 4 Rather, the evidence of record suggests that, despite Dr. Ackerman’s
findings, Plaintiff’s cognitive abilities did not seriously interfere with her ability to complete
activities. The ALJ properly resolved these evidentiary conflicts, see Allman v. Colvin, 813 F.3d
1326, 1333 (10th Cir. 2016), and this court may not “displace the agency’s choice between two
fairly conflicting views”, Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2004) (brackets
omitted).
The same is true of any conflicts between Dr. Brill’s and Dr. Ackerman’s opinions. That
is, the ALJ, not the court, is responsible for resolving any inconsistencies between medical
source opinions. See Smith v. Colvin, 821 F.3d 1264, 1268 (10th Cir. 2016). But, in opining that
Ms. Ortiz had only moderate limitations, Dr. Brill appeared to rely on Dr. Ackerman’s opinion,
4
Though not applicable here, I note that the current version of the Listings defines “marked
limitation” as “Your functioning in this area independently, appropriately, effectively, and on a
sustained basis is seriously limited.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1-Part-A2, Listing
12.00.F.2.d. (effective Mar. 14, 2018).
15
suggesting that Dr. Ackerman’s findings do not equate to marked limitations. Thus, for the
reasons stated herein, I conclude that the ALJ did not err at step 3 in weighing the opinions of
Dr. Brill and Dr. Ackerman or in concluding that Ms. Ortiz’s BIF did not meet or equal Listing
12.05.D.
III.
Plaintiff’s RFC and Credibility
A claimant’s RFC is the most work the claimant can perform, and it must be consistent
with the record as a whole and supported by substantial evidence. See Howard v. Barnhart, 379
F.3d 945, 947 (10th Cir. 2004); SSR 96-8p; see also Ellison, 929 F.2d at 536 (reiterating that the
court will not reverse the ALJ’s decision if supported by substantial evidence even if the court
could have reached a different conclusion). Ms. Ortiz challenges the RFC assessment as not
supported by substantial evidence because the ALJ improperly assessed her credibility under
SSR 96-7p. 5
“‘Credibility determinations are peculiarly the province of the finder of fact’ and the
[court] will uphold such determinations, so long as they are supported by substantial evidence.”
Ruh v. Colvin, No. 13-CV-01255-PAB, 2015 WL 1517392, at *2 (D. Colo. Mar. 30, 2015)
(quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)). “Credibility determinations
should not be conclusory, but instead ‘closely and affirmatively linked’ to evidence in the
record.” Oliva v. Colvin, No. 13-CV-02495-PAB, 2015 WL 5719645, at *7 (D. Colo. Sept. 30,
2015) (quoting Kepler, 68 F.3d at 391)). In addition to considering the objective medical
evidence, the ALJ must also consider several factors, including the claimant’s daily activities;
5
On March 28, 2016, SSR 16-3p took effect and superseded SSR 96-7p, “eliminating the use of
the term ‘credibility.’” See TITLES II AND XVI: EVALUATION OF SYMPTOMS IN DISABILITY
CLAIMS, available at https://www.ssa.gov/OP_Home/rulings/di/01/SSR2016-03-di-01.html.
Because the ALJ issued her decision before this date, the court analyzes her credibility
determination under SSR 96-7p.
16
the location, duration, frequency, and intensity of her pain; aggravating and mitigating factors;
any medication taken and its effectiveness in providing relief; other treatment received aside
from medications; other measures utilized to alleviate pain, i.e., lying down; and any other
factors that may bear on the claimant’s functional limitations. See SSR 96-7p, 1996 WL 374186,
at *3 (July 2, 1996); Wilson v. Astrue, 602 F.3d 1136, 1146 (10th Cir. 2010).
Ms. Ortiz argues the ALJ’s credibility assessment is “fatally flawed” in that the ALJ
failed to “explain which evidence she relied on” in making her determination and, instead, relied
on impermissible boilerplate language. [#19 at 14; #23 at 4]. Plaintiff further avers that, had the
ALJ properly assessed her credibility in accordance with the factors outlined in SSR 96-7p and
Tenth Circuit precedent, she would have found Ms. Ortiz disabled due to her hearing loss and
cognitive difficulties. See [#19 at 15; #23 at 4–6]. The Commissioner responds that the ALJ’s
credibility assessment properly relied on Ms. Ortiz’s ability to live alone and complete daily
activities, her failure to submit medical evidence prior to 2013 concerning her hearing issues, her
sporadic and limited treatment, her lack of prescribed medications for her ailments, and her
failure to replace her hearing aids; and that the ALJ properly considered the objective medical
evidence and Plaintiff’s ability to participate in the hearing. See [#20 at 10]. Ms. Ortiz concedes
that the ALJ “discusses the evidence at length” in her decision, but nonetheless argues that “the
ALJ fails to link the vast majority of her discussion to her credibility determination.” [#23 at 4].
For the following reasons, I respectfully conclude that the ALJ’s credibility assessment is
supported by substantial evidence.
First, the ALJ’s credibility assessment cannot be categorized as impermissible boilerplate
language. Though utilizing typical boilerplate language in her RFC assessment concerning the
applicable standard for evaluating a claimant’s credibility, see [#11-2 at 25], the ALJ goes on to
17
discuss Ms. Ortiz’s testimony, her daily activities, the objective medical evidence, and the
medical source opinions. See [id. at 26–29]. Indeed, Plaintiff even concedes that the RFC
assessment contains a lengthy discussion of the evidence of record. [#23 at 4]. The ALJ then
concludes, “After careful consideration of the evidence, the undersigned finds . . . the claimant’s
statements concerning the intensity, persistence, and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.” [#11-2 at 29]. Thus, this is not a
situation where the ALJ impermissibly relied only on boilerplate language when assessing Ms.
Ortiz’s credibility, as condemned in Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004)
(“We have held that use of this same boilerplate paragraph is insufficient, in the absence of a
more thorough analysis, to support an ALJ’s credibility determination” (emphasis added)).
Second, a review of the ALJ’s RFC assessment reveals that she considered several of the
relevant factors outlined in SSR 96-7p. Indeed, a “formalistic factor-by-factor recitation of the
evidence” is not required, “[s]o long as the ALJ sets forth the specific evidence [s]he relies on in
evaluating the claimant’s credibility[.]” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000);
accord Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012) (noting that “common
sense, not technical perfection, is [the court’s] guide[]” when considering an ALJ’s credibility
assessment). Ms. Ortiz asserts that the credibility assessment is flawed because the ALJ did not
“link the vast majority of her discussion to her credibility determination.” [#23 at 4]. But, as
mentioned, the ALJ discusses Plaintiff’s testimony, her daily activities, her lack of prescribed
medication, her objective medical records, and her medical source opinions. See [#11-2 at 26–
29]. The ALJ then found, based on this evidence, that Plaintiff was not entirely credible. The
court sees no error in this reasoning. And any reliance the ALJ placed on Ms. Ortiz being able to
understand her attorney at the hearing—though not a fair assessment—is harmless, cf. Allen v.
18
Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004), as substantial evidence supports her credibility
assessment as a whole, see White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2001) (holding the
“ALJ adequately supported his credibility determination. . . . [It] was linked to specific findings
of fact, findings we are compelled to accept because they are fairly derived from the record.”).
Finally, Ms. Ortiz argues that a proper application of the factors outlined in SSR 96-7p
demonstrates that the ALJ should have (and would have) found Ms. Ortiz disabled. See [#19 at
15; #23 at 4–6]. However, based on the court’s conclusion above, Ms. Ortiz’s argument invites
this court to reweigh the evidence considered by the ALJ, a task that is specifically prohibited.
See Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (holding that the ALJ’s
credibility determination was supported by substantial evidence, and noting “Plaintiff’s argument
to the contrary constitutes an invitation to this court to engage in an impermissible reweighing of
the evidence and to substitute our judgment for that of the Commissioner, an invitation we must
decline.”). Accordingly, I conclude that the ALJ did not err in assessing Ms. Ortiz’s credibility.
CONCLUSION
For the reasons stated herein, the court hereby AFFIRMS the Commissioner’s final
decision.
DATED: May 1, 2018
BY THE COURT:
_________________________
Nina Y. Wang
United States Magistrate Judge
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?