Malone v. Commissioner, Social Security Administration

Filing 22

ORDER. The decision of the Commissioner that plaintiff is not disabled is AFFIRMED, by Chief Judge Philip A. Brimmer on 6/1/20. (sgrim)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 17-cv-02254-PAB
PATRICIA MALONE,
Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Complaint [Docket No. 1] filed by plaintiff
Patricia Malone on September 19, 2017. Plaintiff seeks review of the final decision of
defendant Andrew M. Saul (the “Commissioner”)1 denying her claim for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act (the “Act”), 42 U.S.C. §§ 401-34, 1381-83f. The Court has
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and
1383(c).2
I. BACKGROUND
On August 25, 2014, plaintiff applied for disability insurance benefits and

1

On June 4, 2019, the Senate confirmed Andrew M. Saul as Commissioner of
Social Security. Accordingly, Mr. Saul is substituted for Nancy A. Berryhill, former
Acting Commissioner of Social Security, as defendant in this lawsuit. See Fed. R. Civ.
P. 25(d).
2

The Court has determined that it can resolve the issues presented in this
matter without the need for oral argument.

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supplemental security income under Titles II and XVI of the Act, alleging a disability
onset date of June 1, 2010. R. at 21, 68- 69. Her claims were initially denied on
January 6, 2015. R. at 82, 96-97. On July 19, 2016, plaintiff appeared at a hearing
before an administrative law judge (“ALJ”) to testify regarding her disability. R. at 37.
On August 15, 2016, the ALJ issued a decision denying plaintiff’s claims. R. at 18.
The ALJ found that plaintiff had two severe impairments: Ehlers-Danlos syndrome and
obesity. R. at 23.3 The ALJ concluded that these impairments, alone or in
combination, did not meet or medically equal one of the regulations’ listed impairments.
R. at 25. The ALJ further determined that plaintiff had the residual functional capacity
(“RFC”) to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and
416.967(a) with the following additional limitations:
plaintiff cannot climb ladders or scaffolds; she must avoid heights and
other hazards; she can occasionally stoop, kneel, crouch, crawl, and
climb stairs; and, she can frequently reach and handle.
R. at 25. Based on this RFC and in reliance on the testimony given by a vocational
expert (“VE”) at the July 2016 hearing, the ALJ determined that plaintiff was capable of
performing her past relevant work as a software engineer. R. at 30.
On July 28, 2017, the Appeals Counsel denied plaintiff’s request for review of
the ALJ’s decision. R. at 1. Accordingly, the ALJ’s decision is the final decision of the
Commissioner.

3

Hypermobile Ehlers-Danlos syndrome is a genetic connective tissue disorder
that causes hypermobility of the joints. See National Institutes of Health, Hypermobile
Ehers-Danlos syndrome, https://rarediseases.info.nih.gov/diseases/2081/hypermobileehlers-danlos-syndrome (last updated Apr. 20, 2017).
2

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II. STANDARD OF REVIEW
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The district court may not reverse
an ALJ simply because the court 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). Moreover, “[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). The district
court will not “reweigh the evidence or retry the case,” but must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515
F.3d at 1070. Nevertheless, “if the ALJ failed to apply the correct legal test, there is a
ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
III. THE FIVE-STEP EVALUATION PROCESS
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous
period of twelve months that prevents the claimant from performing any substantial
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gainful work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2).
Furthermore,
[a]n individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless of whether
such work exists in the immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and
(5) whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point in
the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of
Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisfied her burden
of establishing a prima facie case of disability under steps one, two, and four, the
burden shifts to the Commissioner to show the claimant has the residual functional
capacity (RFC) to perform other work in the national economy in view of her age,
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education, and work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). While the
claimant has the initial burden of proving a disability, “the ALJ has a basic duty of
inquiry, to inform himself about facts relevant to his decision and to learn the claimant’s
own version of those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
IV. DISCUSSION
Plaintiff argues that the ALJ improperly disregarded the medical source
statements of two of plaintiff’s treating physicians, Drs. David Silverman and Nathalie
Nys. Docket No. 14 at 9.
Dr. Silverman diagnosed plaintiff with Ehlers-Danlos syndrome in June 2014.
See R. at 510-14, 543-44, 627-30. During his examination of plaintiff on June 9, 2014,
Dr. Silverman found that plaintiff had full range of motion in her neck, shoulders,
elbows, wrists, hands, and hips, with no synovitis. R. at 514. He recommended that
plaintiff avoid yoga and discussed the possibility that plaintiff would experience pain in
the future “as [a] result of abnormal joint proprioception.” Id. During a follow-up visit on
April 8, 2015, Dr. Silverman noted that plaintiff had “developed some chronic pain
[from] her hypermobility.” R. at 747. He recommended that plaintiff pursue cognitive
behavioral therapy and pool exercise. R. at 748.
Dr. Silverman made findings regarding plaintiff’s functional limitations in
September 2014 and May 2015. See R. at 447, 770. In a letter dated September 10,
2014, Dr. Silverman stated that plaintiff’s Ehers-Danlos syndrome prevented her from
walking or standing more than one hour out of every eight-hour period. R. at 447. He
further noted that plaintiff “suffers injuries as a result of medical condition at least once
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a year which render her unable to leave her house for up to two months.” Id. On May
6, 2015, Dr. Silverman completed a medical source statement in which he opined that
plaintiff could stand for only ten minutes at a time, walk or stand less than two hours in
an eight-hour work day, and sit approximately four hours in an eight-hour work day. R.
at 771. He also stated that plaintiff would need to take unscheduled breaks and walk
every fifteen to twenty minutes for ten minutes each time. Id.
Dr. Nys began treating plaintiff in July 2015. See R. at 761. During
examinations on July 23, 2015 and October 21, 2015, Dr. Nys noted that plaintiff
“appear[ed] well.” R. at 763, 802. At the October 21, 2015 visit, Dr. Nys diagnosed
plaintiff with metatarsalgia and prescribed shoe inserts. R. at 802. 4
In the course of treating plaintiff, Dr. Nys drafted two statements regarding
plaintiff’s functional limitations. See R. at 768, 778-82. On December 4, 2015, Dr. Nys
wrote a letter stating that plaintiff’s Ehlers-Danlos syndrome prevented her from doing
any physical work without hurting herself and that plaintiff was “us[ing] a walker to get
around.” R. at 768. Dr. Nys also completed a medical source statement on July 6,
2016, in which she opined that plaintiff could sit for two hours at a time; stand for ten
minutes at a time; stand or walk less than two hours in an eight-hour work day; sit for
about two hours in an eight-hour work day; rarely lift less than ten pounds; occasionally
twist, stoop, and climb stairs; never crouch, squat, or climb ladders; and use her hands,
fingers, and arms to reach, grasp, and manipulate objects for only ten percent of an
eight-hour work day. R. at 778-82. She also stated that plaintiff would need to take

4

Metatarsaglia is defined as “pain in the ball of the foot.” R. at 803.
6

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approximately ten unscheduled breaks of five minutes each during an eight-hour work
day, elevate her legs ninety degrees during prolonged sitting, and use a cane or other
assistive device to stand or walk. Id. Finally, Dr. Nys estimated that plaintiff would be
off-task at least twenty-five percent of the time during an eight-hour work day and would
be absent from work more than four days per month. Id. at 781. In a pain
questionnaire completed on the same date, Dr. Nys estimated that plaintiff would be off
task thirty-four to sixty-six percent of the time during an eight-hour work day due to
pain. R. at 782.
The ALJ considered Drs. Silverman and Nys’ opinions in determining plaintiff’s
residual functional capacity, but gave the opinions little weight on the ground that Drs.
Silverman and Nys’ assessments of plaintiff’s functional limitations were “inconsistent
with the record as a whole, which show[ed] conservative treatment and injuries
consistent with occasionally [sic] ligament or tendon strains.” R. at 29.
Plaintiff argues that the opinions of Drs. Silverman and Nys were entitled to
controlling weight because (1) Ehlers-Danlos syndrome is a rare medical condition
about which plaintiff’s treating physicians had specialized knowledge, and (2) the ALJ,
by failing to order a consultative examination, lacked substantial evidence to disregard
their opinions. Docket No. 14 at 13-14. Plaintiff also contends that the record evidence
strongly supports Drs. Silverman and Nys’ opinions. R. at 14. Defendant responds that
the ALJ “reasonably found that [Drs. Silverman and Nys’] opinions were in direct
conflict with the record as a whole and the objective medical evidence,” including their
own treatment records. Docket No. 16 at 13-14.

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The Tenth Circuit’s “case law, the applicable regulations, and the
Commissioner’s pertinent Social Security Ruling (SSR) all make clear that in evaluating
the medical opinions of a claimant’s treating physician, the ALJ must complete a
sequential two-step inquiry, each step of which is analytically distinct.” Krauser v.
Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). In the first step, the ALJ must consider
whether the treating physician’s opinion is entitled to controlling weight. If the treating
physician’s opinion is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in
[the] case record, [the ALJ] will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2);
see also SSR 96-2p, 1996 WL 374188, *1 (July 2, 1996).
If the opinion is not given controlling weight, the ALJ will proceed to the second
step of the inquiry.5 In the second step, “[t]reating source medical opinions are still
entitled to deference and must be weighed using all of the factors provided in 20 CFR
[§§] 404.1527 and 416.927. In many cases, a treating source’s medical opinion will be
entitled to the greatest weight and should be adopted, even if it does not meet the test
for controlling weight.” SSR 96-2p, 1996 WL 374188, *4. The factors that must be
applied in determining what weight to give an opinion 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

5

Plaintiff does not contend that the ALJ erred at the second step of the anal ysis.
Her only argument is that the ALJ erred by failing to give Drs. Silverman and Nys’
opinions controlling weight. See Docket No. 14 at 9, 16.
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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) (quoting Watkins v.
Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003)); see also 20 C.F.R. § 404.1527(c).
“[A]n 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 quotation marks and alterations
omitted). While a failure to provide sufficiently specific, legitimate reasons tied to the
factors for the weight given to a treating physician’s opinion warrants reversal, Watkins,
350 F.3d at 1300-01, an ALJ is not required to “apply expressly each of the six relevant
factors in deciding what weight to give a medical opinion.” Oldham v. Astrue, 509 F.3d
1254, 1258 (10th Cir. 2007). Instead, an ALJ need only give “good reasons” for
according less weight to the treating source opinions, such as by citing to “contrary,
well-supported medical evidence” in the record.” Id.
Here, there is substantial evidence supporting the ALJ’s decision to discount the
opinions of Drs. Silverman and Nys regarding plaintiff’s functional limitations. As
summarized in the ALJ’s decision and the parties’ briefs on appeal, the record shows
that plaintiff suffered from periods of pain and swelling in her feet, ankles, knees, hips,
shoulders, back, neck, and hands. See R. at 28 (citing Ex. 1F/12-64, 81-99; 3F/4-6;
4F/3-10, 30-35; 5F/58-61, 76-84, 96-102; 14F/11-15), 283 (ankle edema), 321
(shoulder pain), 352 (foot pain), 404 (knee pain), 427 (ankle pain), 454 (joint pain), 840
(hand and finger pain), 880 (hip tightness); Docket No. 14 at 3-8; Docket No. 16 at 3-8.

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However, substantial evidence also demonstrates that these conditions were “episodic
and did not constantly impose significant functional limitations.” R. at 28 (citing Ex.
1F/22-40, 52-64, 81-99, 133-141; 3F/6-9; 4F/30-35; 5F/79-84, 96-102; 14F/11-15, 4147). For example, although plaintiff sought treatment for left ankle pain and edema in
June 2010, she reported that her “[h]ealth ha[d] been good overall” and that she was
exercising 3-4 times per week. R. at 283-84. An MRI in July 2010 revealed a severe
partial tear of plaintiff’s plantar fascia, mild tenosynovitis, and mild joint effusion. R. at
296. However, by August 30, 2010, plaintiff was able to walk on her foot with few
symptoms. R. at 308. In June 2011, plaintiff complained of right shoulder pain, but had
full range of motion “without pain or restriction.” R. at 321-22. Plaintiff was referred to
physical therapy and instructed to treat her symptoms with over-the-counter pain
medication, ice, rest, elevation, and heat. R. at 324, 327. On August 5, 2011, plaintiff
reported a seventy to eighty percent improvement, R. at 328, and was released to all
activities “without restriction” on September 23, 2011. R. at 335. In July 2012, plaintiff
was referred to physical therapy for moderate right knee pain. R. at 404-406.
Approximately one month later, her condition was seventy percent improved. R. at 408.
In July 2013, plaintiff reported moderate to severe right foot pain as a result of an
injury. R. at 352. She was told to ice and elevate her foot and avoid weight bearing.
R. at 354. An MRI revealed mild tendinosis, bursitis, and edema, but no ligament tears.
R. at 379-80. On August 22, 2013, plaintiff reported that she was “doing a lot better”
and was able to “walk on her foot . . . without too much pain.” R. at 364.
Treatment records from August 2013 to May 2016 show that plaintiff continued
to experience pain and mobility issues. See, e.g., R. at 441, 452, 454, 736, 745, 755.
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However, the records also show that these conditions were resolved through physical
therapy, home exercise, and over-the-counter medication. See R. at 451, 740, 793.
Plaintiff’s physical therapists, Jessica Frankel and Christine Ringdahl, consistently
rated plaintiff’s rehabilitation potential as “good” to “excellent.” R. at 758, 793, 796,
840, 848, 858.
Finally, in determining that plaintiff had the RFC to perform sedentary work, the
ALJ properly relied on the opinion of Dr. Paul Barrett, an agency medical consultant,
and plaintiff’s statements that she was able to perform a variety of activities, including
preparing simple meals, cleaning her house, using public transportation, drawing
comics, and socializing with friends. See R. at 26, 28, 78-80, 227-34.
As defendant notes on appeal, Drs. Silverman and Nys’ own treatment records
do not contradict the ALJ’s finding that plaintiff’s functional limitations were not as
severe as those alleged. For example, although Dr. Nys stated that plaintiff is “unable
to any physical work,” R. at 768, and Dr. Silverman stated that pain prevented plaintiff
from completing tasks, R. at 769, both physicians examined plaintiff on only a handful
of occasions and proposed conservative treatments, such as physical therapy, R. at
627, shoe inserts, R. At 802, and limitations on exercise, R. at 630; cf. Zaricor-Ritchie v.
Astrue, 452 F. App’x 817, 823 (10th Cir. 2011) (unpublished) (stating that “[a]n ALJ can
take note of the level of treatment in assessing a claimant’s credibility”). While plaintiff
contends that her conditions are severe and her treatment “constant and . . . intensive,”
Docket No. 14 at 15, neither her subjective statements concerning the limiting effects of
her symptoms, to which the ALJ gave only partial weight, see R. at 26-27, nor the
objective medical records cited in plaintiff’s opening brief, Docket No. 14 at 3-8, are
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sufficient to undermine the ALJ’s contrary conclusion.6
Plaintiff’s remaining arguments – that the ALJ should have given special weight
to Drs. Silverman and Nys’ opinions because Ehlers-Danlos syndrome is a rare
condition, and that the ALJ lacked substantial evidence for his RFC findings because
he failed to order a consultative examination – are also unpersuasive. Plaintiff does
not explain why Drs. Silverman and Nys’ specialized knowledge about Ehlers-Danlos
syndrome would have any bearing on the ALJ’s determination of whether their medical
source opinions were consistent with the objective medical evidence. Even if a
condition is common, an ALJ is not permitted to “interpose his own medical expertise
over that of a physician.” Zaricor-Ritchie, 452 F. App’x at 823. As to the latter
argument, plaintiff appears to suggest that only opinions regarding her functional
limitations were relevant to the ALJ’s assessment of RFC. However, this argument is
inconsistent with the social security regulations, which require an ALJ to “assess and
make a finding about [a claimant’s] residual functional capacity based on all the
relevant medical or other evidence in [the] case record.” 20 C.F.R.
§ 404.1520(e); see also Jones v. Colvin, 610 F. App’x 755, 758 (10th Cir. 2015)
(unpublished) (finding that “the ALJ properly considered the lack of medical evidence,
in particular the findings of lack of effusion and normal range of motion of the knee, in
assigning little weight to Dr. Koldkolo’s opinions”); Hamlin v. Barnhart, 365 F.3d 1208,
1222-23 (10th Cir. 2004) (indicating that medical reports should be considered as part

6

Plaintiff does not challenge the ALJ’s finding that plaintiff’s statements
regarding the limiting effects of her symptoms were not fully corroborated by the
objective medical evidence. See R. at 27.
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of RFC analysis even if they do not specifically address a claimant’s functional
limitations). Plaintiff also does not make any effort to show that the ALJ was required to
order a consultative examination. See Jazvin v. Colvin, 659 F. App’x 487, 489 (10th
Cir. 2016) (unpublished) (“[I]f the claimant’s attorney does not request a consultative
examination, the ALJ has no duty to order one unless the need ‘is clearly established
on the record.’” (quoting Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997)).
Nor does she directly challenge the specific limitations incorporated into the ALJ’s
ultimate assessment of RFC. For the reasons discussed above, the Court finds that
there is substantial evidence in the record to support the ALJ’s decision not to give
controlling weight to Drs. Silverman and Nys’ opinions regarding plaintiff’s functional
limitations.
V. CONCLUSION
Because the Court finds that the ALJ’s disability determination was supported by
substantial evidence, it is
ORDERED that the decision of the Commissioner that plaintiff is not disabled is
AFFIRMED.

DATED June 1, 2020.
BY THE COURT:

____________________________
PHILIP A. BRIMMER
Chief United States District Judge

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