Espinoza v. Commissioner, Social Security Administration

Filing 22

ORDER by Magistrate Judge Michael E. Hegarty on 08/13/2018. The ALJs decision that Mr. Espinoza was not disabled since 10/1/2014, is affirmed. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-00315-MEH
NICHOLAS PAUL ESPINOZA,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,
Defendant.

ORDER
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff, Nicholas Paul Espinoza, appeals from the Social Security Administration
(“SSA”) Commissioner’s final decision denying his application for disability insurance benefits
(“DIB”), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401–33, and his
application for supplemental security income benefits (“SSI”), filed pursuant to Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381–83c. I find that the ALJ properly analyzed the opinion
statements of Mr. Espinoza’s treating physician. Additionally, the ALJ did not err in formulating
Mr. Espinoza’s residual functional capacity (“RFC”). Accordingly, I affirm the ALJ’s decision
that Mr. Espinoza is not disabled.
BACKGROUND
I.

Mr. Espinoza’s Relevant Medical History
Mr. Espinoza was born on August 3, 1983; he was thirty-one years old when he filed his

application for DIB and SSI. [AR 178]. Mr. Espinoza claims he became disabled on October 1,

2014 due to physical impairments. [Id.]
In February 2012, Mr. Espinoza began seeing Dr. Lisa K. Gieseke at Cornerstone Family
Practice for sleep apnea, asthma, tonsillitis, and elevated blood pressure. [AR 557]. Dr. Gieseke
listed Mr. Espinoza’s allergies as pollens, dust, animal dander, mold, tree spars, and grasses.
[Id.] Dr. Gieseke ordered Mr. Espinoza a new mask for his CPAP machine and refilled his
asthma medication. [AR 558]. At a follow-up appointment on March 6, 2012, Dr. Gieseke
reported that Mr. Espinoza was experiencing wheezing and joint pain. [AR 554–55]. However,
the results of his physical exam were normal. [AR 555]. Mr. Espinoza regularly visited Dr.
Gieseke at least through the SSA’s denial of his application. [AR 536–53].
In November 2013, Dr. Gieseke referred Mr. Espinoza to Dr. Katherine Tsai for a
consultation regarding his allergies and asthma. [AR 436]. Dr. Tsai performed allergy skin
testing and a spirometric evaluation, both of which appeared normal. [Id.] Dr. Tsai told Mr.
Espinoza to start using Zyrtec to control his allergies. [AR 416]. Shortly thereafter, Dr. Gieseke
allowed him to return to work with no restrictions. [AR 437].
Mr. Espinoza returned to Cornerstone Family Practice with complaints of back pain on
February 24, 2014. [AR 412]. Dr. Gieseke noted that Mr. Espinoza had chronic back pain, and
she referred him to Rocky Mountain Osteopathic Medicine (“RMOM”) for a consultation and
physical therapy. [AR 413].
Two days later, Mr. Espinoza visited Dr. Mark C. Winslow at RMOM. [AR 351]. Mr.
Espinoza informed Dr. Winslow that he fractured his vertebra six or seven years prior. [Id.] He
reported his current lower back pain as six out of ten. [Id.] Dr. Winslow ordered an x-ray to
confirm a potential stress fracture in Mr. Espinoza’s lower back. [AR 355]. Although the x-ray
2

did not reveal a spinal fracture, it showed a “[n]ondisplaced bilateral L5 pars defects.” [AR 465].
Dr. Winslow also informed Mr. Espinoza that his moderate to severe obesity is contributing to
his lower back pain, and he has “[v]ery poor use of hips.”

[AR 355].

Dr. Winslow

recommended osteopathic manipulative treatment and set a follow-up appointment for one week
later. [AR 355–56].
Also on February 26, 2014, Mr. Espinoza visited Candice Brueck for physical therapy.
[AR 345–50]. Ms. Brueck’s evaluation of Mr. Espinoza revealed “lumbar extension/rotation
syndrome.” [AR 350]. She created short-term and long-term goals and recommended physical
therapy one to two times per week. [Id.]
On March 6, 2014, Dr. Winslow performed sixty minutes of therapeutic exercises
designed to increase Mr. Espinoza’s flexibility, strength, and balance. [AR 343]. Dr. Winslow
informed Mr. Espinoza that he may want to participate in a professional weight management
program to improve his back pain. [AR 344]. Dr. Winslow recommended that Mr. Espinoza
remain off work until the following week due to his back pain. [Id.]
Mr. Espinoza continued to regularly see Dr. Winslow for approximately six months. [AR
366]. During many of these visits, he also had a physical therapy session with Ms. Brueck. [AR
339]. Mr. Espinoza was unable to work as a bus driver during this time. [AR 331, 335]. On
March 14, 2014, Dr. Winslow noted that Mr. Espinoza tolerated exercise well but had difficulty
engaging his hamstrings. [AR 340]. During physical therapy on March 20, 2014, Ms. Brueck
stated that Mr. Espinoza was able to exercise well and had better recruitment of abdominals;
however, he complained of increased pain. [AR 339]. Approximately two weeks later, Dr.
Winslow and Ms. Brueck noted that Mr. Espinoza was involved in a recent car accident that
3

increased his pain and inability to walk. [AR 320, 329].
On April 11, 2014, Mr. Espinoza underwent an MRI of his lumbar spine. [AR 299–300].
The MRI revealed minor shallow broad based disc protrusion at L1–2, negligible posterior disc
bulge at L2–3, coincidental nondisplaced bilateral pars interarticularis defects at L5–S1, but no
osseous trauma or spondylolisthesis. [AR 300].
During an April 18, 2014 visit with Dr. Winslow, Mr. Espinoza reported intermittent pain
that increases while standing. [AR 316]. Because of this he stated that he “[d]oes not feel ready
to return to work.” [AR 315, 327]. Dr. Winslow reviewed the results of his MRI and performed
sixty minutes of osteopathic manipulation. [AR 317–18].
On May 14, 2018, Dr. Winslow worked on additional therapeutic exercises with Mr.
Espinoza. [AR 312]. Dr. Winslow noted that “recent exacerbation seems to have improved,”
and “the patient is safe to return to work activities . . . .” [AR 313]. On June 13, 2014, Mr.
Espinoza reported having “good relief” from his back pain after an injection.

[AR 306].

However, he noticed increased pain when he began working due to the seat bouncing while
driving the bus. [AR 308]. As a result, Dr. Winslow noted, “If patient fails to improve m[a]y
need to consider a different line of work due to his underlying back complaints and preexisting
medical problems.” [AR 308]. By June 27, 2014, Mr. Espinoza stopped working due to his back
pain. [AR 309, 375].
Mr. Espinoza had another injection on July 25, 2014, which decreased his pain level to
three out of ten. [AR 379]. Mr. Espinoza reported to Ms. Brueck that he would try to return to
work without restrictions. [Id.] However, on August 22, 2014, Dr. Winslow noted that Mr.
Espinoza “tried to return to work and again [was] unsuccessful in spite of modifications in
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mechanics, back brace, [and] seat cushion.” [AR 369].
During Mr. Espinoza’s September 19, 2014 osteopathic manipulation appointment, Dr.
Winslow stated that Mr. Espinoza “has attempted to return to work several times and in my
opinion he will not be able to return due to persistent lower back pain.” [AR 366]. On the same
day, Mr. Brueck noted that Mr. Espinoza “has not been compliant with his home program,” and
he should “consider weight loss surgery.” [AR 368]. Because Mr. Espinoza had received only
limited relief from therapy at RMOM, Dr. Winslow terminated his care. [AR 366].
On May 19, 2016, Mr. Espinoza visited Dr. Gieseke regarding his ongoing back pain and
his pars fracture at L4–5. [AR 530]. Mr. Espinoza reported to Dr. Gieseke that his injections
have failed to eliminate his back pain, and he wants to undergo surgery but cannot proceed due to
his weight. [Id.]
On June 27, 2016, Mr. Espinoza told Dr. Gieseke that he had been out of his new job as a
customer service representative for two and one half weeks due to his back pain. [AR 528]. He
described his pain as “radiat[ing] everywhere” and “sharp and stabbing.” [Id.] However, Mr.
Espinoza reported that medical marijuana has been relieving his pain.

[Id.]

Dr. Gieseke

encouraged Mr. Espinoza to return to work. [AR 529].
In his July appointment with Dr. Gieseke, Mr. Espinoza stated that his back pain “seems
to be improving,” but he still uses a cane to walk and complete his work duties. [AR 526]. He
requested a referral for bariatric surgery, even though he has lost some weight on his own. [Id.]
Dr. Gieseke referred him to Dr. Georgescu. [AR 527].
Mr. Espinoza visited the emergency room at Denver Health Medical Center on October
28, 2016, where he was diagnosed with a lumbar sprain.
5

[AR 449].

Mr. Espinoza was

discharged after being provided with information on lambrosacral strains. [Id.]
On November 1, 2016, Mr. Espinoza returned to see Dr. Gieseke and noted he had lost
almost one hundred fifty pounds without seeing any improvement in his back pain. [AR 523].
He told Dr. Gieseke that he had not worked since October 18, 2014. [Id.]
The next day, Mr. Espinoza visited SpineOne, where Dr. Kayvon Alizadeh diagnosed
him with lumbar spondylosis and degenerative disc disease of the lumbar spine. [AR 510]. Dr.
Alizadeh ordered a lumbar spine MRI to evaluate disc and nerve root pathology. [AR 510]. This
MRI revealed “no new abnormality.” [AR 461]. Dr. Alizadeh then performed a medial branch
block surgery. [AR 512–13].
On November 4, 2016, Dr. Gieseke completed an FMLA form certifying Mr. Espinoza’s
medical condition. [AR 473–76]. Dr. Gieseke noted that Mr. Espinoza suffers chronic lower
back pain that completely incapacitates him during a “flare.” [AR 474]. Dr. Gieseke opined that
Mr. Espinoza would be unable to work form November 3, 2016 through November 11, 2016.
[AR 475].
Mr. Espinoza visited Dr. Haney at SpineOne on November 29, 2016 for a follow-up
regarding his medial branch block operation. [AR 514]. Mr. Espinoza reported “great relief for
four days but now his pain has returned to where he is about an 8 out of 10.” [Id.] Dr. Haney
then performed a lumbar radiofrequency ablation. [Id.] This procedure significantly improved
Mr. Espinoza’s pain, and he reported on January 24, 2017 that he was “able to do a lot more
activities at this point without much pain.” [AR 506].
II.

Procedural History
The SSA initially denied Mr. Espinoza’s application for DIB and SSI on April 9, 2015.
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[AR 96–104]. Mr. Espinoza subsequently requested a hearing before an ALJ, which took place
on March 14, 2017. [AR 144]. The ALJ ruled that Mr. Espinoza is not disabled. [AR 12–22].
According to the ALJ, although Mr. Espinoza has non-severe and severe impairments, they do
not meet the severity of any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix
1. [AR 15–16]. The ALJ then held that although Mr. Espinoza’s RFC does not permit him to
perform his past work as a bus driver or a baker, he can maintain employment as a call out
operator, charge account clerk, and order clerk. [AR 20–21].
The SSA Appeals Council subsequently denied Mr. Espinoza’s request for review,
making the SSA Commissioner’s decision final for the purpose of judicial review. See [AR 1–
3]; see 20 C.F.R. § 416.1481 (“The Appeals Council’s decision, or the decision of the
administrative law judge if the request for review is denied, is binding unless you or another
party file an action in Federal district court, or the decision is revised.”). Mr. Espinoza timely
appealed the ALJ/Commissioner’s final decision to this Court. Compl., ECF No. 1.
III.

Hearing Testimony
The ALJ held a hearing regarding Mr. Espinoza’s application on March 14, 2017. [AR

32–71]. Mr. Espinoza first testified that when he filed his application for disability benefits, he
was experiencing difficulty bathing, cleaning, and doing basic chores because of his back pain.
[AR 39]. Mr. Espinoza then stated that although he has had difficulty working since 2014, he
has been able to make approximately $11,629.00 per year as a part-time customer service agent.
[AR 43]. On average, he misses four days per month due to his back pain. [AR 46].
Mr. Espinoza then described his daily back “flare-ups.” [AR 53]. He stated that his pain
jumps from a level three to a seven, eight, or nine, which causes him to have trouble
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communicating and doing daily activities. [Id.] When he has a severe flare-up, he has to
perform stretches and exercises until the pain subsides. [Id.] Because of the potential for flareups, he cannot lift more than twenty-five pounds. [AR 53–54].
Mr. Espinoza’s attorney then asked him to describe the pain he is currently experiencing.
[AR 56]. He responded, “it is almost like somebody [with] a screwdriver or a knife in my back is
twisting it around and shocking me at the same time.” [Id.]
Mr. Espinoza testified that on an average day he wakes up around 7:00 a.m. and starts
working from home at 9:00 a.m. [AR 57]. He takes short breaks every two hours to stretch his
legs and generally takes a half-hour lunch break. [Id.] He is usually able to sit on his bed while
he works, but his back pain sometimes forces him to lie down. [AR 57–58].
Mr. Espinoza’s attorney then asked him whether his pain has improved over the last four
to five years. [AR 59–60]. Mr. Espinoza responded that although he has received regular
epidural shots and other treatment, he has experienced only short-term pain relief.

[Id.]

Although he stated that spine surgery is potentially an option, he would like to avoid surgery at
only thirty-four years old. [AR 59].
The ALJ then questioned the vocational expert. [AR 63–67]. The ALJ asked the expert
to imagine an individual with the following limitations: can perform only light work; can lift
twenty pounds on occasion and ten pounds frequently; can stand or walk for only four hours in an
eight-hour workday; can sit for no more than six hours in an eight-hour workday; must alternate
sitting and standing; can sit for no more than thirty minutes at a time; can occasionally climb
ramps and stairs; must not perform work on ladders, ropes, or scaffolds; and can occasionally
kneel, crouch, or crawl. [AR 65]. The expert testified that this individual could perform the
8

duties of a customer service representative. [Id.] Additionally, the individual could maintain
employment as a callout operator, charge account clerk, or order clerk. [AR 66].
The ALJ then added the additional limitation that the individual would need two fifteen
minute breaks during the day, possibly to lie down. [Id.] The vocational expert testified that an
individual with this impediment could not perform any of the jobs he identified. [AR 67].
Lastly, in response to a question by Mr. Espinoza’s attorney, the vocational expert stated that
there is no job in the national economy that would permit an individual to lie down while
working. [Id.]
The ALJ issued an unfavorable decision on May 17, 2017. [AR 12–22].
LEGAL STANDARDS
I.

SSA’s Five-Step Process for Determining Disability
Here, I will review the ALJ’s application of the five-step sequential evaluation process

used to determine whether an adult claimant is “disabled” under Title II of the Social Security
Act, which is generally defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 140
(1987).
Step one determines whether the claimant is presently engaged in substantial gainful
activity. If he is, he is not disabled. See 20 C.F.R. § 404.1520. Step two analyzes whether the
claimant has a medically severe impairment or combination of impairments, as governed by 20
C.F.R. § 404.1520(c). If the claimant is unable to show that his impairment(s) would have more
9

than a minimal effect on his ability to do basic work activities, he is not eligible for disability
benefits. See id. Step three analyzes whether the impairment is equivalent to one of a number of
listed impairments deemed to be so severe as to preclude substantial gainful employment. See 20
C.F.R. § 404.1520(d).

If the claimant’s impairment is listed or is equivalent to a listed

impairment, he is presumed to be disabled. If the impairment does not satisfy step three, the ALJ
must proceed to step four, which requires the claimant to show that his impairment(s) and
assessed residual functional capacity (“RFC”) prevent him from performing work that he has
performed in the past. If the claimant is capable of performing his previous work, either as he
performed it or as it is generally performed in the national economy, he is not disabled. See 20
C.F.R. § 404.1520(e), (f); see also Andrade v. Sec’y of Health & Human Servs., 985 F.2d 1045,
1051 (10th Cir. 1993) (“[C]laimant bears the burden of proving his inability to return to his
particular former job and to his former occupation as that occupation is generally performed
throughout the national economy.”). However, if the claimant establishes a prima facie case of
disability based on the previous four steps, the analysis proceeds to step five, in which the SSA
Commissioner has the burden to demonstrate that the claimant has the RFC to perform other
work in the national economy in view of his age, education, and work experience. See 20 C.F.R.
§ 404.1520(g).
II.

Standard of Review
My review is limited to whether the final decision is supported by substantial evidence in

the record as a whole and whether the ALJ applied the correct legal standards. See Williamson v.
Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003); see also White v. Barnhart, 287 F.3d 903, 905
(10th Cir. 2001). Thus, the function of my review is “to determine whether the findings of fact . .
10

. are based upon substantial evidence and inferences reasonably drawn therefrom. If they are so
supported, they are conclusive upon the reviewing court and may not be disturbed.” Trujillo v.
Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970); Bradley v. Califano, 573 F.2d 28, 31 (10th
Cir. 1978). “Substantial evidence is more than a scintilla, but less than a preponderance; it is
such evidence that a reasonable mind might accept to support the conclusion.” Campbell v.
Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing Richardson v. Perales, 402 U.S. 389, 401
(1971)). I may not re-weigh the evidence nor substitute my judgment for that of the ALJ.
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (citing Casias v. Sec’y of Health &
Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)). However, reversal may be appropriate when
the ALJ either applies an incorrect legal standard or fails to demonstrate reliance on the correct
legal standards. See Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
THE ALJ’S RULING
The ALJ first ruled that Mr. Espinoza meets the insured status requirements of the Social
Security Act through December 31, 2020. [AR 14]. Next, she determined that Mr. Espinoza has
not engaged in substantial gainful employment since October 1, 2014—the alleged onset date.
[Id.] Although Mr. Espinoza has worked after this date, the employment did not generate
sufficient earnings to constitute substantial gainful activity. [Id.]
At step two, the ALJ held that Mr. Espinoza has the following severe impairments: (1)
degenerative disc disease and (2) morbid obesity with subsequent weight loss. [AR 15]. The
ALJ recognized that the record mentions hypertension, sleep apnea, asthma, and marijuana use;
however, “none of these medically determinable impairments, considered singly or in
combination, cause more than minimal limitations on the claimant’s ability to perform basic
11

work functions.” [Id.]
Moving to step three, the ALJ found that Mr. Espinoza’s impairments or combination of
impairments do not medically equal the severity of one of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. [AR 16]. Specifically, she concluded the record does not
establish the limitations required to meet Listing 1.04 for spine disorders. [Id.]
At step four, the ALJ held that Mr. Espinoza’s impairments limit him to light work in
which he can stand and walk for four hours; sit for six hours with normal breaks; alternate sitting
and standing; sit for no more than thirty minutes at a time; occasionally climb ramps and stairs;
and occasionally kneel, crouch, and crawl. [AR 16–20]. In making this RFC determination, the
ALJ relied on Mr. Espinoza’s objective medical evidence, including his MRIs and his
physician’s observations; his activities of daily living; and his testimony at the hearing. [Id.]
The ALJ gave little weight to Dr. Gieseke’s opinions that Mr. Espinoza is limited to part-time
employment and is incapable of performing his job during a flare-up of his back. [AR 19–20].
Based on this RFC, the ALJ held that Mr. Espinoza is unable to perform his past relevant work as
a bus driver or a baker. [AR 20].
However, at step five, the ALJ found Mr. Espinoza is capable of working as a call out
operator, charge account clerk, and order clerk. [AR 21]. In coming to this conclusion, she
primarily relied on the vocational expert’s testimony. [Id.] Accordingly, the ALJ concluded that
Mr. Espinoza has not been disabled from October 1, 2014 through the date of the decision. [Id.]
ANALYSIS
Mr. Espinoza alleges the following errors by the Commissioner, which I address in turn:
(1) failing to properly weigh Dr. Gieseke’s medical opinion, and (2) calculating his RFC without
12

considering his non-severe impairments. Opening Br. 4–8, ECF No. 17.
I.

The ALJ Did Not Err in Her Analysis of Dr. Gieseke’s Opinion Statements.
Mr. Espinoza argues the ALJ failed to properly apply the treating physician rule when she

gave little weight to Dr. Gieseke’s opinions that Mr. Espinoza must work part time and is
incapacitated during his frequent flare-ups. Opening Br. 4–6, ECF No. 16. Specifically, Mr.
Espinoza contends the ALJ erred by not discussing the factors listed in 20 C.F.R. § 404.1527(c).
Id. at 6.
The treating physician rule generally requires that the Commissioner “give more weight
to medical opinions from treating sources than those from non-treating sources.” 1 Langley v.
Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2014); see also 20 C.F.R. § 404.1527(c)(2). When
determining how much weight to give an opinion from a treating source, the ALJ must complete
a two-step inquiry, each step of which is analytically distinct. Krauser v. Astrue, 638 F.3d 1324,
1330 (10th Cir. 2011). First, the ALJ must determine whether the treating physician has offered
a conclusive opinion; that is, whether it is to be accorded “controlling weight” on the matter to
which it relates. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). To do so, the ALJ:
must consider whether the opinion is well-supported by medically acceptable
clinical and laboratory diagnostic techniques. If the answer to this question is ‘no,’
then the inquiry at this stage is complete. If the ALJ finds that the opinion is wellsupported, he must then confirm that the opinion is consistent with other
substantial evidence in the record. . . [I]f the opinion is deficient in either of these
respects, then it is not entitled to controlling weight.
Watkins, 350 F.3d at 1300 (applying Social Security Ruling 96-2p, 1996 WL 374188, at *2)
(internal citations omitted).

1

If the opinion of the treating physician is not entitled to controlling

Because Mr. Espinoza filed his application prior to March 27, 2017, the ALJ was required to
apply the treating physician rule. See 20 C.F.R. § 404.1527 (2017).
13

weight, “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.” Krauser, 638 F.3d at 1330.
This is because, “[t]reating source medical opinions are still entitled to deference and must be
weighed using all of the factors provided in 20 C.F.R. § 404.1527.” Watkins, 350 F.3d at 1300.
The factors the ALJ must consider are:
(1) The length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.
Krauser, 638 F.3d at 1331. Without a discussion of these factors, remand is required. Watkins,
350 F.3d at 1300–01. However, the ALJ is not required to explicitly analyze all six factors.
Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
I find the ALJ did not err in applying the treating physician rule. First, by stating that Dr.
Gieseke’s opinions are entitled to little weight, she impliedly determined that the opinions should
not receive controlling weight. See, e.g., Armijo v. Astrue, 385 F. App’x 789, 794–95 (10th Cir.
2010) (unpublished) (“[E]ven though the ALJ did not explicitly state that [the plaintiff’s treating
physician’s] opinion was not entitled to controlling weight, that finding is implicit in his decision
to accord little weight to the opinion.”).
Second, the ALJ sufficiently analyzed the required factors. The ALJ discussed the nature
of the treatment relationship and the type of examination performed when she stated that Dr.
Gieseke’s opinions are “based on the claimant’s subjective complaints and allegations rather than
14

objective findings.” [AR 20]. The ALJ also analyzed the third and fourth factors at length. She
noted that Dr. Gieseke’s opinions were inconsistent with Mr. Espinoza’s spine MRIs, which
showed only mild degenerative findings. [Id.] Additionally, she cited numerous inconsistencies
between Dr. Gieseke’s opinions and treatment notes. [AR 19–20]. For example, Dr. Gieseke’s
opinions were inconsistent with her observation that Mr. Espinoza is generally healthy; her
conclusion that riding the bus, instead of working, aggravated his back condition; and her
encouragement for him to return to work. [Id.] The Tenth Circuit regularly affirms when an ALJ
applies lesser weight to a treating physician’s opinion because it is inconsistent with the
physician’s own treatment notes. Dixon v. Colvin, 556 F. App’x 681, 683 (10th Cir. 2014)
(unpublished); McDonald v. Astrue, 492 F. App’x 875, 883 (10th Cir. 2012) (unpublished).
The ALJ also discussed other factors diminishing the reliability of Dr. Gieseke’s
opinions. She noted that Dr. Gieseke did not detail the reasons for her conclusions. [AR 19–20].
According to the ALJ, “conclusory statements regarding the claimant’s ability to work” are not
entitled to great weight. [AR 20]. As for Dr. Gieseke’s opinion in the FMLA paperwork that
Mr. Espinoza could not work, the ALJ noted that this was a temporary restriction, which has
little relevance to Mr. Espinoza’s “overall ability to function on a daily basis.” [Id.] I agree with
the ALJ that limited and temporary restrictions generally receive less weight. See 42 U.S.C. §
423(d)(1)(A) (stating that an impairment must be expected to last at least twelve months); Garcia
v. Berryhill, No. 16-cv-02797-LTB, 2017 WL 5151128, at *6 (D. Colo. Nov. 7, 2017) (declining
to consider whether the ALJ erred in weighing a treating physician’s temporary restrictions).
Although Mr. Espinoza is correct that the ALJ did not specifically discuss factors one or
five, “[t]hat the ALJ did not explicitly discuss all the § 404.15227[] factors for each of the
15

medical opinions before him does not prevent this court from according his decision meaningful
review.” Oldham, 509 F.3d at 1258; Griner v. Astrue, 281 F. App’x 797, 800 (10th Cir. 2008)
(unpublished) (affirming an ALJ’s decision to apply lesser weight to a treating physician’s
opinion, notwithstanding that the ALJ did not discuss every factor). Because the ALJ supported
her decision to give little weight to Dr. Gieseke’s opinion with “specific, legitimate reasons,” I
will not disturb the ALJ’s finding. Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984).
II.

The ALJ Did Not Err in Calculating Mr. Espinoza’s RFC.
Mr. Espinoza next argues the ALJ erred by not considering his non-severe impairments

when formulating his RFC.

Opening Br. 6–8, ECF No. 16.

I find the ALJ sufficiently

considered these impairments. Furthermore, even if the ALJ erred in this regard, such error was
harmless.
First, the ALJ did not entirely fail to consider Mr. Espinoza’s hypertension, sleep apnea,
asthma, and marijuana use. At step two, the ALJ explained in detail why these impairments did
not limit Mr. Espinoza’s ability to maintain employment. [AR 15]. Although step-two findings
do not permit an ALJ to entirely disregard non-severe impairments at step four, Wells v. Colvin,
727 F.3d 1061, 1068–69 (10th Cir. 2013), the ALJ stated at step four that she based her RFC
decision “on all the evidence with consideration of the limitations and restrictions imposed by the
combined effects of all the claimant’s medically determinable impairments.” [AR 16]. Further,
she explained that she “considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other evidence . . .
.” [Id.] Based on the Tenth Circuit’s decision in Bales v. Colvin, 576 F. App’x 792 (10th Cir.
2014) (unpublished), I find this sufficient.
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In Bales, the ALJ failed to explicitly discuss a variety of non-severe impairments when
determining the claimant’s RFC. Id. at 799. However, the ALJ stated that all of the claimant’s
impairments must be considered and that she assessed all the claimant’s symptoms. Id. The
Tenth Circuit found this sufficient to satisfy Well’s requirement that the ALJ discuss all of the
claimant’s impairments. Id. According to the court, “the ALJ thoroughly discussed the medical
evidence, and there is no indication that, despite not expressly mentioning [the claimant’s] other
medical problems, the ALJ did not take them into account.” Id. Similarly, the ALJ discussed
Mr. Espinoza’s medical history in detail, including his history of hypertension, sleep apnea,
asthma, and marijuana use, albeit in a separate portion of her opinion. [AR 15–20]. Thus,
consistent with Bales and similar cases decided by the Tenth Circuit, I take the ALJ at her word
that she considered all of Mr. Espinoza’s impairments and symptoms. See Bales, 576 F. App’x
at 799 (“[W]hen an ‘ALJ indicates [s]he has considered all the evidence[,] our practice is to take
the ALJ at [her] word.’” (quoting Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009)
(alterations in original))); see also Grede v. Astrue, 443 F. App’x 323, 326 (10th Cir. 2011)
(unpublished) (affirming the ALJ’s RFC analysis, because “he stated that he had considered all
of [the claimant’s] symptoms and the medical evidence”).
Even if the ALJ erred in her discussion of Mr. Espinoza’s non-severe impairments, this
error was harmless.

“[T]he Tenth Circuit has found that failing to consider a non-severe

impairment at step four is a harmless error when there is no substantial evidence that would
allow a reasonable factfinder to include any limitation based on that impairment in the RFC.”
Coast v. Astrue, No. 12-cv-02887-RBJ, 2014 WL 5441198, at *4 (D. Colo. Oct. 27, 2014) (citing
Alvey v. Colvin, 536 F. App’x 792, 795 (10th Cir. 2013) (unpublished)). Mr. Espinoza does not
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provide, and I do not find in the medical record, any work-related issues caused by his non-severe
impairments. Mr. Espinoza states only that “he can have exacerbations and wheezing” because
of his asthma, he takes “anti-hypertensives,” and he “utilizes a CPAP machine to control his
condition.” Opening Br. 7. Furthermore, Mr. Espinoza did not mention these conditions during
the hearing. Accordingly, he does not meet his burden of providing evidence regarding “[t]he
nature and severity of [his] impairment(s) . . . .” 20 C.F.R. § 404.1512; Bales, 576 F. App’x at
799 (finding any error in not considering the claimant’s non-severe medical issues was harmless,
because the claimant did not “identify how any of [her] conditions, either individually or in
combination, affected her functioning during the time she claims she was disabled” (citing 20
C.F.R. § 404.1512)); Keyes-Zachary v. Astrue, 695 F.3d 1156, 1173 (10th Cir. 2012) (finding
that the ALJ’s failure to consider the side effects of medications was harmless, because the
claimant did not allege the side-effect had “any adverse effect on her ability to work”).
Mr. Espinoza attempts to correct this deficiency in his reply brief by stating that the
Commissioner’s own determination in 2015 required that he avoid concentrated exposure to
fumes, odors, dusts, gases, and poor ventilation due to his asthma. Reply Br. 3, ECF No. 20.
However, the Commissioner denied Mr. Espinoza’s application in 2015 even including this
limitation. Moreover, Mr. Espinoza does not explain how including this limitation in the RFC
would have altered the ALJ’s finding that Mr. Espinoza could perform the duties of a call out
operator, account clerk, or order clerk. Thus, any error is harmless. See Lara v. Colvin, No.
CIV-12-1249-L, 2014 WL 37746, at *4 (W.D. Okla. Jan. 6, 2014) (“[B]ecause the ALJ would
not have found that Plaintiff is disabled based on her ability to perform the job of unskilled
Housekeeper even if he had included a limitation that she could only relate to supervisors and
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peers superficially, any error was harmless.”).
CONCLUSION
In sum, I find the ALJ applied the correct legal standards and supported her findings with
substantial evidence. Specifically, she did not err in her analysis of Dr. Gieseke’s opinion
statements. Additionally, she sufficiently considered Mr. Espinoza’s non-severe impairments in
calculating his RFC. Therefore, the ALJ’s decision that Mr. Espinoza was not disabled since
October 1, 2014, is affirmed.
Dated and entered at Denver, Colorado this 13th day of August, 2018.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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