Harsch v. Commissioner, Social Security Administration

Filing 25

OPINION and ORDER re: 1 Complaint, filed by Kristen Elain Harsch by Magistrate Judge N. Reid Neureiter on 1/22/2019. 1 Petitioner's Complaint and Petition for Review is DISMISSED. (tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02373-NRN
KRISTEN ELAIN HARSCH,
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 Kristen Elain Harsch is not
disabled for purposes of the Social Security Act. (AR 1 32.) Ms. Harsch 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. #12.)
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
adequate to support a conclusion. It requires more than a scintilla, but less than a

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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.)

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 Ms. Harsch “has the following severe
impairments: obesity; arthritis; depression; panic disorder; and substance abuse
disorder.” (AR 23.) The ALJ then determined at step three that Ms. Harsch “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 Ms. Harsch’s posttraumatic stress disorder (“PTSD”), attention
deficit hyperactivity disorder (“ADHD”), and asthma to be non-severe
impairments. (Id.) Because she concluded that Ms. Harsch did not have an
impairment or combination of impairments that meets the severity of the listed

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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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impairments, the ALJ found that Ms. Harsch has the following residual functional
capacity (“RFC”):
. . . [Ms. Harsch] has the residual functional capacity to perform light work .
. . with the following abilities and limitations: the claimant can occasionally
climb ramps and stairs, but is unable to climb ladders, ropes, or scaffolds;
the claimant can occasionally balance, stoop, kneel crouch, and crawl; the
claimant must avoid hazards such as unprotected heights and dangerous
moving machinery; the claimant can perform no more than simple, routine
work that is low stress (which is defined as involving no more than
occasional decision making and no more than occasional adapting to
change); the claimant cannot have any fast paced production quotas; and
the claimant can have no more than occasional contact with the public and
coworkers.
(AR 24-25.) The ALJ noted that Ms. Harsch has no past relevant work. (AR 30.)
The ALJ concluded that, considering Ms. Harsch’s age, education, work
experience, and RFC, Ms. Harsch “is capable of making a successful adjustment
to other work that exists in significant number in the national economy.” (AR 31.)
Accordingly, Ms. Harsch was deemed not to have been under a disability from
the alleged onset date of October 1, 2003. (AR 32.)
Ms. Harsch asserts two reversible errors. First, she argues that the ALJ
improperly assessed the credibility and consistency of Ms. Harsch’s statements
with the medical evidence in violation of SSR 16-3p. Second, she claims that the
ALJ improperly weighed the opinion evidence in violation of 20 C.F.R. §
404.1527(d) and 20 C.F.R. § 416.927(d). (Dkt. #16 at 2.) As these two issues are
intertwined, the Court will address them together.
Analysis
Ms. Harsch argues that the ALJ committed reversible errors in her
credibility determinations and in weighing medical opinion evidence. The Court
disagrees for reasons set forth below.
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Ms. Harsch claims that the ALJ ignored relevant evidence in the record
and Ms. Harsch’s subjective statements regarding her physical and mental
impairments. In considering the intensity, persistence, and limiting effects of a
claimant’s symptoms, the ALJ must “examine the entire case record, including
the objective medical evidence; an individual’s statements about the intensity,
persistence, and limiting effects of symptoms; statements and other information
provided by medical sources and other persons; and any other relevant evidence
in the individual’s case record.” Soc. Sec. Ruling 16-3p Titles II & Xvi: Evaluation
of Symptoms in Disability Claims, SSR 16-3P (S.S.A. Oct. 25, 2017). In
assessing a claimant’s statements about her symptoms, the ALJ “will evaluate
whether the statements are consistent with objective medical evidence and the
other evidence.” Id. “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.
As Ms. Harsch notes, the framework for the proper analysis of evidence of
pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). The Court must
consider (1) whether Ms. Harsch established a pain-producing impairment by
objective medical evidence; (2) if so, whether there is a “loose nexus” between
the proven impairment and Ms. Harsch's subjective allegations of pain; and (3) if
so, whether, considering all the evidence, both objective and subjective, her pain

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is in fact disabling. Id. at 163-64. See also Branum v. Barnhart, 385 F.3d 1268,
1273 (10th Cir. 2004). In determining whether Ms. Harsch’s subjective
complaints 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.
Branum, 385 F.3d at 1273–74 (quoting Hargis v. Sullivan, 945 F.2d 1482, 1489
(10th Cir.1991)).
Physical Impairments
Ms. Harsch argues that the ALJ did not properly assess symptoms relating
to her osteopenia. She points out that she suffered four broken ankles in slightly
more than two years. Therefore, Ms. Harsch claims that the ALJ’s determination
that she can perform light work, which requires “a good deal of walking or
standing,” or “sitting most of the time with some pushing and pulling of arm or leg
controls,” see 20 C.F.R. § 404.1567(b), is not supported by substantial evidence.
The Commissioner responds that the ALJ’s conclusion that Ms. Harsch’s
allegations of debilitating ankle problems were not entirely reliable based on
inconsistencies with the longitudinal record was justified, despite the ALJ’s
finding that Ms. Harsch’s arthritis constituted a severe impairment and her
acknowledgment that ankle problems were noted throughout the record. For
example, records from May 2015 indicate that Ms. Harsch had a left ankle
fracture and was told that she had osteopenia. (AR 791.) However, a subsequent
bone density scan was normal for Ms. Harsch’s age. (AR 788.) The ALJ also
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noted that Ms. Harsch injured her left ankle in February 2016 while dancing, and
commented that “dancing for exercise is an activity that is not consistent” with
Ms. Harsch’s alleged limitations. (AR 29.) The ALJ also stated that Ms. Harsch
did not indicate having any physical limitations on her Function Report; instead,
she identified major depression and anxiety as her debilitating conditions. (AR
314.) Finally, the ALJ observed that Ms. Harsch’s physical health issues have
been treated conservatively with exercise. (AR 27.) Thus, it is not accurate to say
that the ALJ did not discuss Ms. Harsch’s arthritis, and there is at least some
evidence that supports the ALJ’s determination that Ms. Harsch’s symptoms
were not so severe that she could not perform light work.
In any event, even if I conclude that the ALJ’s determination that Ms.
Harsch could perform light work was not supported by substantial evidence, I am
persuaded by the Commissioner that this would be a harmless error because the
ALJ also found that there are sedentary occupations (address clerk, type copy
examiner, and tube clerk) existing nationally that Ms. Harsch could perform. (AR
31.) Sedentary work “involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles . . .. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.” 20
C.F.R. § 404.1567(a). Ms. Harsch testified that so long as she can adjust her
chair, she could sit “all day or most of the day.” (AR 82.) She also indicated on
her Function Report that she can walk for four blocks at a time before needing to
rest. (AR 319.) Thus, the ALJ’s finding that Ms. Harsch’s physical limitations did
not preclude sedentary work is supported by substantial evidence.

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Mental Impairments
Ms. Harsch argues that if the ALJ had properly assessed the consistency
of Ms. Harsch’s statements regarding her mental impairments with the medical
evidence of record, and properly weighed the medical opinion evidence, she
would have found that Ms. Harsch was disabled.
The Commissioner of Social Security employs a special technique to
evaluate the severity of mental impairments and their effect on a claimant’s ability
to work. 20 C.F.R. §§ 404.1520a(a), 416.920a(a). In applying the special
technique, the ALJ must first decide whether the claimant has a medically
determinable mental impairment. Id. §§ 404.1520a(b)(1), 416.920a(b)(1). Next,
the ALJ must rate the degree of the functional limitation resulting from the
claimant’s medically determinable mental impairments in four broad functional
areas: “[u]nderstand, remember, or apply information; interact with others;
concentrate, persist, or maintain pace; and adapt or manage oneself.” Id. §§
404.1520a(c)(3), 416.920a(c)(3). 3 The ALJ rates the degree of limitation as either
none, mild, moderate, marked, or extreme. Id. §§ 404.1520a(c)(4),
416.920a(c)(4).
Here, at the first step of the special technique, the ALJ determined that
Ms. Harsch had medically determinable mental impairments of depression and

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Effective January 17, 2017, the regulations were updated, slightly modifying the four
functional areas. See Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed.
Reg. 66,138-01 (Sept. 26, 2016). The ALJ applied the four functional areas from the
earlier versions of 20 C.F.R. §§ 404.1520a(c)(3) and 416.920a(c)(3) in conducting his
analysis, which are “[a]ctivities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.” The Court’s analysis is the
same, regardless of the wording applicable functional areas.
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panic disorder. (AR 23.) At the second step, the ALJ determined that Ms.
Harsch’s mental impairments would cause her no limitations in activities of daily
living, moderate difficulties in social functioning, and moderate difficulties in
concentration, persistence, or pace. (AR 24.) He then determined that Ms.
Harsch experienced no episodes of decompensation. (Id.) The ALJ determined
that Ms. Harsch’s mental impairments were not severe because they did not
cause at least two “marked” limitations or one “marked” limitation and “repeated”
episodes of decompensation. (Id.)
During her RFC analysis, the ALJ addressed the evidence supporting her
conclusion that Ms. Harsch engages in significant activities of daily living, noting
that Ms. Harsch can cook for herself, perform light chores, shop for groceries,
pay bills, and, if properly motivated, perform personal hygiene. (AR 26.) While
Ms. Harsch had problems focusing, the ALJ noted that she is “o.k.” at tolerating
changes in routine and paying attention to entertainment, and follows spoken
instructions “pretty well” and written instructions “good if I can stay focused.” (AR
26-27.)
The ALJ also observed that there were several indications in the record
that Ms. Harsch underwent job training, looked for work, or had a job but looked
for other work. (Id.) The ALJ concluded that “the fact that [Ms. Harsch] has
worked some and applied for employment suggests that she believes she is
capable of some work activity.” (Id.)
The ALJ reviewed the medical records, which indicate that Ms. Harsch’s
mental health fluctuated depending on her medication and sobriety. The ALJ also

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gave great weight to the report of consultative psychologist Stuart L. Kutz, who
examined Ms. Harsch on February 24, 2016. (AR 938-49.) Dr. Kutz’s prognosis
was that Ms. Harsch suffered from chronic mental disorders, but that she
appeared stable. (AR 948.) He went on,
Relative to a competitive work setting throughout an eight hour day,
her attention/concentration as well as her persistence and pace in
task completion would be mildly to moderately impaired. Her social
adaptation is mildly to moderately impaired. Her borderline
personality features aggravate her adjustment at times.
Her understanding and memory do not show any impairment.
(Id.) Dr. Kutz’s opinion, along with Ms. Harsch’s testimony and the objective
evidence, informed the ALJ’s restrictive RFC finding. (AR 30.)
Ms. Harsch objects to the ALJ’s findings regarding her mental impairments
for several reasons. First, Ms. Harsch argues that the ALJ ignored her history of
suicide attempts and hospitalizations, and focused instead on the “few isolated
incidents in which Ms. Harsch was in better spirits or having temporary success
with her medications.” (Dkt. #16 at 10.) The Court does not find this to be an
accurate summary of the ALJ’s findings. When reviewing the medical records,
the ALJ noted instances where Ms. Harsch reported suicidal ideation; that her
anxiety was not improving; that she “self-harmed” and “reported agitation,
nightmares, poor concentration, insomnia, fatigue, and lack of interest”; that she
was “treated at the emergency room for racing thoughts, agitation, and anger”;
and that her “anxiety was exacerbated by one of her medications and that ‘she
was really struggling right now.’” (AR 28-29.) The ALJ also noted instances
where Ms. Harsch presented as awake and alert, with a neat physical
appearance, good insight, and not overtly impaired judgment or concentration.
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(AR 1042.) Ms. Harsch’s allegation that the ALJ was picking and choosing
among medical records to support her position is not borne out by the evidence.
Second, Ms. Harsch argues that the ALJ improperly used Ms. Harsch’s
history of substance abuse to argue that her complaints are inconsistent with the
medical evidence. This claim is unsupported by the record. The medical records
show that there was at least some connection between Ms. Harsch’s substance
abuse and her mental impairments, including her suicidal ideation. (AR 573-74.)
The Court also rejects Ms. Harsch’s argument that because the ALJ lists
substance abuse disorder as one of Ms. Harsch’s severe impairments, her
opinion should have addressed whether Ms. Harsch’s substance abuse is
material to her disability. Under 20 C.F.R. § 404.1535(b), an ALJ will consider the
materiality of a claimant’s substance abuse only if there is a finding of disability.
Here, the ALJ found that Ms. Harsch was not disabled.
Finally, Ms. Harsch argues that the ALJ should have afforded Dr. Kutz’s
medical opinion little to no weight because it is “markedly inconsistent with other
evidence in the record.” (Dkt. #16 at 17.) This argument misses the mark.
“An 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. Barnhart, 365 F.3d
1208, 1215 (10th Cir. 2004) (citing 20 C.F.R. § 401.1527(d)). The ALJ must “give
consideration to all the medical opinions in the record” and “discuss the weight
he assigns to them.” Mays v. Colvin, 739 F.3d 569, 578 (10th Cir. 2014) (internal
quotation marks omitted). “Medical opinions are statements from acceptable

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medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can
still do despite impairment(s), and your physical or mental restrictions.” 20 C.F.R.
§ 404.1527(a)(1). The applicable regulations governing the consideration of
medical opinions distinguish among “treating” physicians, “examining”
physicians, and “nonexamining” (or “consulting”) physicians. See 20 C.F.R. §
416.927(c).
Generally, “the opinions of physicians who have treated a patient over a
period of time or who are consulted for purposes of treatment are given greater
weight than are reports of physicians employed and paid by the government for
the purpose of defending against a disability claim.” Sorenson v. Bowen, 888
F.2d 706, 711 (10th Cir. 1989). See also Doyal v. Barnhart, 331 F.3d 758, 762
(10th Cir. 2003) (quoting 20 C.F.R. § 416.927(d)(2)) (“The treating physician’s
opinion is given particular weight because of his or her ‘unique perspective to the
medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations.’”). The evaluation of a treating source’s
opinion is a two-step process. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th
Cir. 2003). “The initial determination the ALJ must make with respect to a treating
physician's medical opinion is whether it is conclusive, i.e., is to be accorded
‘controlling weight,’ on the matter to which it relates.” Krauser v. Astrue, 638 F.3d
1324, 1330 (10th Cir. 2011). “Such an opinion must be given controlling weight if
it is well-supported by medically acceptable clinical or laboratory diagnostic

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techniques and is not inconsistent with other substantial evidence in the record.”
Id. Next,
Even if a treating opinion is not given controlling weight, it is still
entitled to deference; at the second step in the analysis, the ALJ
must make clear how much weight the opinion is being given
(including whether it is being rejected outright) and give good
reasons, tied to the factors specified in the cited regulations for this
particular purpose, for the weight assigned.
Id. The ALJ must consider all of the following factors in evaluating opinion
evidence:
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).
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Here, Dr. Kutz provided the only medical opinion within the meaning of the
regulations. Ms. Harsch fails to identify any treating physician who provided an
opinion as to any specific functional limitations, and the Court will not do so on
her behalf. See Threet v. Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003)
“[C]laimant does not identify which treating physician she feels was ignored, and
we will not speculate on her behalf.”); Gilbert v. Astrue, 231 F. App’x. 778, 782
(10th Cir. 2007) (unpublished) (when claimant did not cite to the medical records
in support of her argument regarding treating physician opinion evidence, court
would not “sift through” the record to find support for her arguments). Thus, while
a treating physician’s opinion generally is favored over that of a consulting
physician, “[t]he treating physician rule governs the weight to be accorded the
medical opinion of the physician who treated the claimant . . . relative to other
medical evidence before the fact-finder, including opinions of other physicians.”
Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995) (quoting Kemp v. Bowen, 816
F.2d 1469, 1476 (10th Cir. 1987) (emphasis in original).
Turning to the relevant factors, Dr. Kutz only saw Ms. Harsch once, but
during the examination, he performed screens for depression, anxiety, psychosis,
mania, and memory; reviewed Ms. Harsch’s available records; and performed a
mental status exam and psychological testing. (AR 942-47.) Furthermore, neither
the ALJ nor Dr. Kutz found that Ms. Harsch had no mental impairments or
limitations. Instead, consistent with Ms. Harsch’s medical records and the
restrictive RFC, they determined that although Ms. Harsch suffered from
fluctuating symptoms relating to her anxiety and depression, she could perform

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work-related activities. Accordingly, the ALJ’s decision to give Dr. Kutz’s opinion
great weight is supported by substantial evidence.
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 22nd day of January, 2019.

BY THE COURT:

N. Reid Neureiter
United States Magistrate Judge

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