Taylor v. Berryhill

Filing 22

OPINION AND ORDER re: 11 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Commissioner, Social Security Administration, by Magistrate Judge N. Reid Neureiter on 1/10/2019. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02179-NRN
GARY TAYLOR,
Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security,
Defendant.
OPINION AND ORDER
N. Reid Neureiter
United States Magistrate Judge
The government determined that Plaintiff Gary Taylor is not disabled for
purposes of the Social Security Act. (AR 1 28.) Mr. Taylor has asked this Court to
review that decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and
both parties have agreed to have this case decided by a U.S. Magistrate Judge
under 28 U.S.C. § 636(c). (Dkt. #13.)
Standard of Review
In Social Security appeals, the Court reviews the decision of the
administrative law judge (“ALJ”) to determine whether the factual findings are
supported by substantial evidence and whether the correct legal standards were
applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007).
“Substantial evidence is such evidence as a reasonable mind might accept as

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All references to “AR” refer to the sequentially numbered Administrative Record
filed in this case. (Dkt. ##10, and 10-1 through 10-8.)

adequate to support a conclusion. It requires more than a scintilla, but less than a
preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009)
(internal quotation marks omitted). The Court “should, indeed must, exercise
common sense” and “cannot insist on technical perfection.” Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the
evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
Background
At the second step of the Commissioner’s five-step sequence for making
determinations, 2 the ALJ found that Mr. Taylor “has the following severe
impairments: obesity and diabetes mellitus.” (AR 13.) The ALJ then determined
that Mr. Taylor “does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments” in the
regulations. (AR 14.) The ALJ found Mr. Taylor’s cataracts, hearing loss,
dyslexia, and, most significantly, back pain, to be non-severe impairments. (Id.)
Because she concluded that Mr. Taylor did not have an impairment or
combination of impairments that meets the severity of the listed impairments, the
ALJ found that Mr. Taylor has the following residual functional capacity (“RFC”):

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The Social Security Administration uses a five-step sequential process for
reviewing disability claims. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
five-step process requires the ALJ to consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe
impairment; (3) had a condition which met or equaled the severity of a listed
impairment; (4) could return to her past relevant work; and, if not, (5) could
perform other work in the national economy. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750–51 (10th Cir. 1988.) The
claimant has the burden of proof through steps one to four; the Social Security
Administration has the burden of proof at step five. Lax, 489 F.3d at 1084.
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. . . [Mr. Taylor] has the residual functional capacity to perform
medium work . . . except that he is able to frequently balance, kneel,
crouch, crawl, and climb ramps and stairs; he can occasionally stoop.
He cannot climb ladders, ropes, or scaffolds. He must avoid extreme
cold. He requires instruction to be presented orally or verbally.
(AR 15.) The ALJ determined that Mr. Taylor was unable to perform past relevant
work. (AR 20-21.) She noted that Mr. Taylor, who was 60 years old at the time,
was an individual closely approaching retirement age. (AR 21.) The ALJ
concluded, however, that, considering Mr. Taylor’s “age, education, work
experience, and [RFC], there are jobs that exist in significant numbers in the
national economy” that Mr. Taylor could perform. (Id.) These included hand
packager, meat trimmer, and machine packager. (Id.) Accordingly, Mr. Taylor
was deemed to have not been under a disability from the alleged onset date of
April 28, 2014. (AR 22.)
Mr. Taylor asserts three reversible errors: first, that the ALJ’s stated
reasons for giving less weight to the examining physician and greater weight to
the non-examining physician were not legitimate or supported by substantial
evidence; second, that the ALJ’s decision was not supported by substantial
evidence due the ALJ’s errors in evaluating the medical evidence; and third, that
the ALJ’s reasons for rejecting Mr. Taylor’s subjective allegations were not
legitimate. (Dkt. #15 at 5-20.) The Court will address each in turn.
Analysis
I. Weighing of Medical Opinions
Mr. Taylor first argues that the ALJ committed a reversible error when she
gave less weight to the opinion of an examining physician, Victor Nwanguma,

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M.D., than that of a non-examining state agency medical consultant, Antonio
Medina, M.D.
a. Dr. Nwanguma’s Examination
Dr. Nwanguma examined Mr. Taylor once in September 2014 as part of
his disability application. (AR 256-64.) Mr. Taylor’s chief complaint, which Dr.
Nwanguma found to be reliable, was back pain, which had gotten progressively
worse since he had gotten hurt 10 years earlier. (AR 256.) Mr. Taylor claimed he
had a bulging disc in his back but indicated that he refused the recommended
surgery. (Id.) Instead, Mr. Taylor treated the back pain with a transcutaneous
electrical nerve stimulation (“TENS”) unit and “a massive amount of ibuprofen”—
up to 60 100mg pills per week. (Id.) He presented bent over a cane for support
and reported that he used a walker for ambulation. (AR 256, 257.) Mr. Taylor
walked with an antalgic gait and, without his cane, his balance appeared
unstable: he “was able to do heel-to-toe movement, but there was a significant
risk of him falling to the ground.” (AR 257.)
Mr. Taylor needed assistance getting on and off the examination table and
getting out of the seated position. (AR 256, 257.) He reported that he was unable
to lie flat on the examination table, and therefore could not attempt a supine
straight leg raise test. (AR 259.) He did not perform hip or knee joint range of
motions tests. (AR 258.) A seated straight leg raise test was negative. (Id.). Mr.
Taylor had reduced lumbar flexion to 30 degrees, lumbar extension was 5
degrees, and lateral flexion was not performed due to the risk of falling. (Id.) Dr.
Nwanguma noted decreased sensation in both upper extremities. (Id.) However,

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he found that Mr. Taylor had “[g]ood muscle mass and muscle tone” and
“[s]trength 5/5 in both upper and lower extremities.” (Id.)
Dr. Nwanguma diagnosed Mr. Taylor with back pain, obesity, and
peripheral neuropathy with decreased sensation to his extremities. (Id.) Dr.
Nwanguma opined that Mr. Taylor was limited in his ability to stand, walk, and sit,
but if his back pain was controlled, he would have no limitations. (AR 260.) Dr.
Nwanguma determined that the cane is medically necessary for balance and
support, and that Mr. Taylor was limited to lifting less than 10 pounds. (Id.) As to
postural activities, Dr. Nwanguma opined that Mr. Taylor would have “difficulty
with balancing, stooping, kneeling, crouching, crawling all the time due to
decreased flexion of the lumbar spine and back pain.” (Id.)
b. Dr. Medina’s Consultative Examination
On October 23, 2014, Dr. Medina reviewed the evidence in the record,
including Dr. Nwanguma’s report. (AR 66-67.) Dr. Medina opined that Mr. Taylor
was capable of physical work consistent with the demands of medium exertional
work. (AR 69-70.) Dr. Medina found that Dr. Nwanguma’s findings were
inconsistent with the physical exam, and that the noted limitations were “mainly
subjective limitations with no objective findings that support[] any focal neurologic
deficits.” (AR 67.) Dr. Medina explained that Dr. Nwanguma found no evidence of
any neurologic deficits and noted that Mr. Taylor had normal motor strength. (Id.)
He also noted that although Mr. Taylor used a cane, it was not prescribed by a
doctor. (Id.) Dr. Medina noted that Mr. Taylor had no problems with personal care

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and could walk 100 yards at a time. (AR 66-67.) Thus, Dr. Medina did not find Mr.
Taylor’s statements regarding his symptoms credible. (AR 68.)
c. The ALJ’s Determination
The ALJ accorded Dr. Medina’s opinion great weight. (AR 19.) She noted
that x-rays and MRI reports “show mild to at most moderate findings, not
consistent with the severity of [Mr. Taylor’s] alleged pain and limitations.” (Id.)
The ALJ stated that Mr. Taylor did not seek consistent medical treatment for his
ailments, and only treated his pain with over-the-counter ibuprofen and a TENS
unit. (Id.) The ALJ found that Dr. Medina’s RFC assessment was consistent with
the evidence as a whole, and identified Dr. Medina as “a highly qualified
physician with knowledge of the rules and regulations regarding Social Security
disability assessments who thoroughly examined” the relevant medical records.
(Id.)
Conversely, the ALJ determined that Dr. Nwanguma’s RFC assessment
was not entitled to significant weight. (AR 20.) The ALJ found that the
assessment was not supported by the medical evidence, given that Mr. Taylor
had good muscle mass and normal “5/5” motor strength. (Id.) Therefore, the ALJ
agreed with Dr. Medina that Mr. Taylor’s limitations were primarily based on his
subjective complaints, unaccompanied by objective findings. (Id.) The ALJ noted
that there was no imaging evidence to support Dr. Nwanguma’s findings, nor
evidence that Mr. Taylor was prescribed a cane or needed a walker. (Id.)
The ALJ also noted other inconsistencies with Mr. Taylor’s reported
symptoms. Mr. Taylor told Dr. Nwanguma that he took eight ibuprofen tablets at

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a time but testified at the hearing that he only took three. (AR 19-20.) Mr. Taylor
claimed to be unable to read but completed a Function Report without difficulty.
(AR 20.) Mr. Taylor had trouble balancing but was able to do the heel-to-toe
progression. (Id.) Mr. Taylor refused to do certain range of motion tests but
demonstrated normal motor strength. (Id.)
c. Discussion
Mr. Taylor argues that in giving “no significant weight” to Dr. Nwanguma’s
opinion, and “significant weight” to Dr. Medina’s opinion, the ALJ failed to adhere
to the principles in 20 C.F.R. § 404.1527(c)(1-6), and her determination should
be reversed. The Court disagrees. 3
Although 20 C.F.R. § 404.1527(c)(1) provides that the medical opinion of
a doctor who has examined a claimant is “generally” given more weight than one
who has not, this is not the only relevant factor, and an examining physician’s
opinions are not automatically given controlling weight. See Chapo v. Astrue, 682
F.3d 1285, 1291 (10th Cir. 2012) (“An opinion found to be an examining . . .
opinion may be dismissed or discounted, of course, but that must be based on an
evaluation of all of the factors set out in the cited regulations and the ALJ must
provide specific, legitimate reasons for rejecting it.”) (citation and quotation marks
omitted). Instead, the ALJ must consider all of the following factors:

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For claims filed before March 27, 2017, the rules found in 20 C.F.R. § 404.1527
apply. For claims filed on or after March 27, 2017, the rules in § 404.1520c apply.
Mr. Taylor’s claim was filed July 2014, so the Court will apply 20 C.F.R. §
404.1527.
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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.
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quotation marks
omitted). Neither the regulation nor the Court require a factor-by-factor recitation,
but the ALJ’s findings must be “sufficiently specific to make clear” the weight
assigned to the source opinion and the reasons for that weight. Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (internal quotation marks omitted).
Here, the ALJ explained why she accorded Dr. Nwanguma’s opinion little
weight. Most significantly, she found that the opinion was inconsistent with the
relevant medical records as well as his own examination findings. (AR 20.)
Specifically, the ALJ found that Mr. Taylor’s subjective complaints and Dr.
Nwanguma’s corresponding limitations were not supported by objective findings,
considering Mr. Taylor’s normal motor strength and lack of any neurologic
deficits. (AR 20.) In the absence of objective findings, the ALJ determined that

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Dr. Nwanguma’s limitations were based primarily on Mr. Taylor’s subjective
complaints, and these complaints were not entirely credible. (Id.) This
determination is supported by Dr. Medina’s medical opinion (AR 67), which the
ALJ found to be consistent with the record as a whole. Thus, while it is true that
an ALJ should generally give more weight to the opinion of an examining
physician, the ALJ may also consider whether a given physician is more familiar
with other information in the record. See Rivera v. Colvin, 629 F. App’x 842, 845
(10th Cir. 2015) (unpublished) (affirming ALJ decision to give less weight to
opinion of examining doctor who only examined claimant once and relied on her
subjective complaints, rather than doctor who reviewed the more objective
information contained in the claimant’s medical records). In this case, in weighing
the opinion evidence, it was entirely appropriate for the ALJ to consider where
Dr. Nwanguma and Dr. Medina got their information. Id. (citing Flaherty v. Astrue,
515 F.3d 1067, 1070 (10th Cir. 2007) (concluding the ALJ properly gave no
weight to a physician’s opinion because he met with the claimant only once, he
relied on her subjective report, and his opinion was not supported by the
evidence)).
Mr. Taylor objects to the ALJ giving Dr. Medina’s opinion significant weight
because he was a “highly qualified physician with knowledge of the rules and
regulations regarding Social Security disability assessments” (AR 19), while
failing to mention that Dr. Nwanguma also was “a highly qualified physician with
knowledge” of Social Security disability program and requirements. However, as
the Commissioner notes, Federal or State agency medical consultants, such as

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Dr. Medina, are identified in the regulations as being “highly qualified and experts
in Social Security disability evaluation.” 20 C.F.R. § 404.1513a(b)(i). Thus, their
findings must be considered when evaluating opinion evidence. Id.; 20 C.F.R. §
404.1527(e). While medical sources who perform consultative examinations,
such as Dr. Nwanguma, have “a good understanding” of disability programs and
their evidentiary requirements, see 20 C.F.R. § 404.1519n, they are not similarly
identified as experts. Accordingly, the Court sees no error in the ALJ’s
recognition of the difference in expertise.
Finally, Mr. Taylor claims that because both doctors reviewed the same
evidence, the ALJ’s conclusion that Dr. Medina’s opinion was more “consistent
with the evidence as a whole” is not a legitimate reason supported by substantial
evidence. First, this statement does not appear to be accurate. Dr. Nwanguma
reviewed “multiple pages of clinic notes from Panorama Orthopedics.” (AR 256.)4
Dr. Medina, on the other hand, reviewed, in addition to Dr. Nwanguma’s report,
2014 treatment records from Denver Health that Dr. Nwanguma did not review.
(AR 65, 238-55.) Second, even if the doctors had reviewed the same records,
that alone does not make the ALJ’s determination that Dr. Medina’s opinion was
more consistent with the medical records than Dr. Nwanguma’s opinion
inherently illegitimate. See Gonzales v. Colvin, 515 F. App’x 716, 719 (10th Cir.
2013) (unpublished) (affirming ALJ’s finding that the same record evidence

4

It is unclear to the Court what this evidence actually is—it appears to be a
summary of Mr. Taylor’s treatment relating to a 2011 fall at Wal-Mart, but it is
unclear who wrote it and why, and refers to treatment from other providers in
addition to Panorama Orthopedics. (AR 232-35.)
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undermining the treating physician’s opinion supported the non-examining
physician’s opinion, and therefore giving greater weight to the latter was
appropriate). The ALJ found, on balance, that the relevant factors weighed
against Dr. Nwanguma’s opinion. She was entitled to do so under 20 C.F.R. §
404.1527(c).
In sum, substantial evidence supports the ALJ’s decision to give the
greatest weight to Dr. Medina’s opinion.
II. Evaluating the Medical Evidence
Mr. Taylor argues that the ALJ’s decision should be reversed because she
did not adequately account for all of Mr. Taylor’s impairments. The Court is not
persuaded for several reasons.
First, Mr. Taylor claims that the ALJ did not adequately discuss records
submitted after Dr. Medina’s review of the evidence. The records referred to by
Mr. Taylor (AR 302-69) are from 2011, well before the date of alleged disability,
and much of them relate to right knee pain. Mr. Taylor’s disability claim is related
to his lower back pain. (AR 170.) His chief complaint to Dr. Nwanguma was back
pain. (AR 256.) At the administrative hearing, he testified that “what bothers me
is just my back.” (AR 43). The Court agrees with the Commissioner that the ALJ
did not err in not discussing the 2011 records of knee problems because there
was no evidence that it was a continued problem. Accordingly, it was not a
harmful error that the ALJ did not include Mr. Taylor’s knee pain in her RFC.
As to the 2011 evidence relating to back pain, the ALJ and Dr. Medina
reviewed these records. The ALJ noted accurately that Mr. Taylor declined a

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recommendation of surgery in September 2011, and sought no medical
treatment “from January 2012 until April 2014, despite having Medicaid, a
significant treatment gap given his complaints of disabling symptoms and
limitation.” (AR 17-18.) The ALJ found that these and other inconsistencies
“diminish the persuasiveness of [Mr. Taylor’s] subjective complaints.” (AR 18.)
The Court will not reweigh these types of credibility and evidentiary
considerations here.
Mr. Taylor also argues that the ALJ did not account for his diabetes,
obesity, and high blood pressure (hypertension). Mr. Taylor was diagnosed with
diabetes in March 2015. (AR 272). By August 27, 2015, medical records indicate
that Mr. Taylor’s diabetes was “well controlled under current medical regimen.”
(AR 268.) He was prescribed Gabapentin and special shoes for the burning
sensation in his feet, which helped. (AR 267.) Mr. Taylor testified at the April
2016 hearing that diabetic symptoms are kept under control if he takes his pills.
(AR 48.) Therefore, the ALJ’s determination that the evidence did not support
any disabling limitations due to his diabetes is supported by substantial evidence.
Next, Mr. Taylor claims that although the ALJ found his obesity to be a
severe impairment, she failed to properly consider its effects in formulating the
RFC. However, while the ALJ is required to consider the effects of obesity when
assessing Mr. Taylor’s RFC, she may not “make assumptions about the severity
or functional effects of obesity combined with other impairments.” Rose v. Colvin,
634 F. App’x 632, 637 (10th Cir. 2015) (unpublished) (quoting SSR 02–1p, 2002
WL 34686281, at *1 (Sept. 12, 2002)). Rather, the ALJ must “evaluate each case

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based on the information in the case record.” Id. Mr. Taylor points to no medical
evidence indicating that his obesity resulted in functional limitations. Thus, the
factual record does not support Mr. Taylor’s claim that the ALJ failed to consider
the effect of his obesity, either alone or in combination with other impairments, in
the RFC assessment. See Howard v. Barnhart, 379 F.3d 945, 948 (10th Cir.
2004) (rejecting claimant’s assertions that the ALJ failed to properly consider her
obesity, noting that a medical report took into account her obesity and claimant
did not cite to medical evidence supporting her position).
Similarly, the ALJ recognized that Mr. Taylor suffered from high blood
pressure (AR 17), but Mr. Taylor testified that his blood pressure medication
keeps his hypertension under control. (AR 48.) As the Commissioner points out,
it is unclear from the medical records whether high blood pressure caused lower
leg swelling, and in March 2015, when Mr. Taylor was first diagnosed with
diabetes, his hypertension was “at goal” and he was ordered to continue his
medications. (AR 272.) In short, there is no evidence that his high blood pressure
caused functional limitations.
Accordingly, the Court finds substantial evidence to support the ALJ’s
evaluation of the medical evidence.
III. Mr. Taylor’s Subjective Allegations
Finally, Mr. Taylor argues that the mere fact that he can still perform some
range of daily activities does not preclude a finding of disability, and the minor
discrepancies in Mr. Taylor’s symptoms pointed out by the ALJ does not change
this fact.

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“Credibility determinations are peculiarly the province of the finder of fact,”
and the Court will “not upset such determinations when supported by substantial
evidence.” Newbold v. Colvin, 718 F.3d 1257, 1267 (10th Cir. 2013) (internal
quotation marks omitted). “However, findings as to credibility should be closely
and affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.” Id. The framework for the proper analysis of Mr. Taylor’s
evidence of pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). The
Court must consider (1) whether Mr. Taylor established a pain-producing
impairment by objective medical evidence; (2) if so, whether there is a “loose
nexus” between the proven impairment and Mr. Taylor's subjective allegations of
pain; and (3) if so, whether, considering all the evidence, both objective and
subjective, his pain is in fact disabling. Branum v. Barnhart, 385 F.3d 1268, 1273
(10th Cir. 2004) (citations omitted). In determining whether Mr. Taylor’s
subjective complaints of pain are credible, the ALJ should consider various
factors, such as:
the levels of medication and their effectiveness, the extensiveness
of the attempts (medical or nonmedical) to obtain relief, the
frequency of medical contacts, the nature of daily activities,
subjective measures of credibility that are peculiarly within the
judgment of the ALJ, the motivation of and relationship between the
claimant and other witnesses, and the consistency or compatibility
of nonmedical testimony with objective medical evidence.
Id. at 1273–74 (quoting Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir.1991)).
Here, the ALJ explained that the severity of Mr. Taylor’s reported back
pain was inconsistent with both objective evidence (x-rays and MRI reports) and
his conservative history of treatment (ibuprofen and a TENS unit), on the
sporadic occasions he sought treatment. This is proper evidence to consider
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under Luna. Moreover, the ALJ recognized that although Dr. Nwanguma
assessed Mr. Taylor with limitation in standing and walking, he indicated that
there was “no limitation in standing and walking if his pain is well controlled, and
with no limitation in sitting if his pain is well controlled.” (AR 20) (emphasis in
original.) The Court cannot say that the ALJ’s credibility determination as to Mr.
Taylor’s back pain is not supported by substantial evidence.
The other inconsistencies cited by Mr. Taylor, which he deems to be
“minor,” were properly considered under Luna even if, standing alone, they would
not be sufficient to support the ALJ’s credibility determination. The ALJ noted
inconsistencies with the nature of Mr. Taylor’s daily activities given his alleged
symptoms and limitations, the extent of his dyslexia and learning issues, his level
of education, his ability to operate a car, and the amount of medication he takes
daily. (AR 18.) The ALJ’s conclusion that “[a]ll of these inconsistencies tend to
diminish the persuasiveness” of Mr. Taylor’s subjective complaints is supported
by substantial evidence.

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Conclusion
For the reasons set forth above, the Commissioner’s decision is
AFFIRMED and Petitioner’s Complaint and Petition for Review (Dkt. #1) is
DISMISSED.
Dated this 10th day of January, 2019.

BY THE COURT:

N. Reid Neureiter
United States Magistrate Judge

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