Gruenberger v. Commissioner, Social Security Administration

Filing 19

ORDER AFFIRMING COMMISSIONER. Entered by Judge Robert E. Blackburn on 6/10/2019. (lrobe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 18-cv-01160-REB
JEANETTE R. GRUENBERGER,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant.

ORDER AFFIRMING COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],1 filed May 14, 2018, seeking
review of the Commissioner’s decision denying plaintiff’s claim for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. I have
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g). The
matter has been fully briefed, obviating the need for oral argument. I affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges she is disabled as a result of degenerative disc disease of the
lumbar spine, epiphora,2 a wrist impairment, adjustment disorder, and post-traumatic
stress disorder. After her application for disability insurance benefits was denied,

1

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.
2

An eye condition which is characterized by excessive tear production. See healthline, What
Causes Watering Eyes (Epiphora)? (available at: https://www.healthline.com/health/epiphora) (last
accessed June 6, 2019).

plaintiff requested a hearing before an administrative law judge. That hearing was held
on February 22, 2017. At the time of this hearing, plaintiff was 53 years old. She has a
high school education and past relevant work experience as a cashier and a pharmacy
technician. She has not engaged in substantial gainful activity since October 18, 2013,
her alleged date of onset.
The ALJ found plaintiff was not disabled and therefore not entitled to disability
insurance benefits. Although the evidence established plaintiff’s lumbar impairment was
severe, the judge concluded the severity of that impairment did not meet or equal any
impairment listed in the social security regulations. Plaintiff’s other alleged impairments
were found to be non-severe. The ALJ found plaintiff had the residual functional
capacity to perform a range of light work with certain postural restrictions. Because that
conclusion did not preclude plaintiff’s past relevant work as a pharmacy technician, the
ALJ found plaintiff not disabled at step four of the sequential evaluation. Plaintiff
appealed this decision to the Appeals Council. The Council affirmed. Plaintiff then filed
this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if her
physical and/or mental impairments preclude her from performing both her previous
work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,

2

1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a quinquepartite sequential evaluation
process for determining whether a claimant is disabled:
1.

The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.

2.

The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.

3.

The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.

4.

If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.

5.

If the claimant does not have the residual functional capacity
to perform his past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.

20 C.F.R. § 404.1520(b)-(f). See also Williams v. Bowen 844 F.2d 748, 750-52 (10th
Cir. 1988). The claimant has the initial burden of establishing a disability in the first four
3

steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294
n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show
the claimant is capable of performing work in the national economy. Id. 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. Secretary of Health & Human Services, 933
F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence 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). Further, “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).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
III. LEGAL ANALYSIS
Plaintiff’s primary contention on appeal is that the ALJ erred in failing to include
any limitations in the residual functional capacity assessment relating to plaintiff’s non4

severe mental impairments and obesity. In addition, she claims the ALJ failed to give
proper credit to her subjective reports of pain and functional limitations. Finding no
reversible error in these particulars, I affirm.
At step two of the sequential evaluation, the ALJ found plaintiff’s adjustment
disorder and post traumatic stress disorder were not severe impairments and imposed
no more than mild limitations in any area of mental functioning measured by the socalled “paragraph B” criteria.3 (Tr. 19-22.) See 20 C.F.R. § 404.1521(a) (“An
impairment or combination of impairments is not severe if it does not significantly limit
your physical or mental ability to do basic work activities.”). Plaintiff maintains the ALJ’s
failure to further discuss these non-severe impairments in the context of her residual
functional capacity assessment constitutes reversible error. See 20 C.F.R. §
404.1523(c) (ALJ must consider the combined effect of all impairments, both severe
and non-severe, in assessing residual functional capacity).
I cannot agree. Of course, “a finding of non-severity alone would not support a
decision to prepare an RFC assessment omitting any [non-severe] restriction.” Wells v.
Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013). Nevertheless, the ALJ's findings at steps

3

Section 12.00 of the listings describes various mental disorders. Each of the nine diagnostic
categories identified therein is defined by three criteria: a statement describing the disorder (the capsule
definition), a set of medical findings (the paragraph A criteria) and a set of impairment-related functional
limitations (the paragraph B criteria). (Alternative functional criteria (the paragraph C criteria) are included
for certain classes of disorders.) A claimant's impairment meets or equals a listed impairment, and
therefore is presumed to be disabling, if the diagnostic description of the capsule definition and the criteria
of both paragraphs A and B, or A and C, where appropriate, are satisfied. 20 C.F.R., Pt. 404, Subpt. P,
App. 1, § 12.00A.
Paragraph B requires proof that a medically determinable impairment has resulted “in at least two
of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining
social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4.
Repeated episodes of decompensation, each of extended duration.” See id, § 12.04B.

5

two and three of the sequential evaluation need not necessarily be translated into
work-related functional limitations at step four. See Vigil v. Colvin, 805 F.3d 1199,
1203 (10th Cir. 2015); Manning v. Colvin, 182 F.Supp.3d 1156, 1164 (D. Colo. 2016).
Moreover, “while the regulations obligate the ALJ to consider whether a claimant’s
severe and non-severe impairments in combination are severe, they do not require her
to specifically address all such factors.” Manning, 182 F.Supp.3d at 1164 (internal
citations omitted; emphases in original). The ALJ acknowledged his responsibility to
consider the combined impact of all plaintiff’s impairments (Tr. 16), an assertion this
court credits when, as here, the record provides no reason to doubt it, see Hackett v.
Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005); Manning, 182 F.Supp.3d at 1164.
Plaintiff contends the ALJ erred by relying on the opinion of the state agency
psychologist, Dr. Mark Suyeishi, because he did not have access to the medical
evidence post-dating his opinion. (See Tr. 21, 111.) The ALJ, however, did consider
this later-developed evidence. Indeed, the ALJ’s determination – contrary to the opinion
of Dr. Suyeishi – that plaintiff suffered from determinable mental impairments, albeit not
severe, shows just that. Moreover, because the residual functional capacity
assessment is not a medical determination but an administrative one, see 20 C.F.R. §
404.1546(c); Lumpkin v. Colvin, 112 F.Supp.3d 1169, 1173 (D. Colo. 2015), the ALJ
was within his purview to evaluate Dr. Suyeishi’s opinion in the context of the record as
a whole, see Lopez v. Barnhart, 183 Fed. Appx. 825, 829 (10th Cir. June 13, 2006).
See also 20 C.F.R. § 404.1527(c)(3) (supportability of medical source opinion proper
consideration in determining weight it should be given).

6

That record amply supports the ALJ’s decision not to include mental limitations in
his residual functional capacity determination. Plaintiff’s mental impairments stem from
an incident in March 2013, in which she was robbed at gunpoint while working at a gas
station. Immediately after the incident, her employer referred her for evaluation to Dr.
Ted Villavicencio, a doctor of occupational medicine, who in turn referred her to Dr.
John Disorbio, a licensed clinical psychologist. Initially, plaintiff reported anxiety and
“moderate physical symptoms – HA,[4] sleep dysfunction” (Tr. 406), and was assessed
a GAF score of 55 (Tr. 422), indicating “moderate symptoms...or moderate difficulty in
social, occupational, or school functioning.” American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders at 34 (Text Revision 4th ed. 2000)
[“DSM–IV”].5 Despite “residual issues” with anxiety, plaintiff made slow but notable
progress over her course of treatment with Dr. Disorbio. (Tr. 409-410, 413, 415, 417.)
Dr. Villavicencio released her from his care on May 21, 2013, finding she had reached
maximum medical improvement and endorsing “[n]o impairment or permanent
restrictions.” (Tr. 392.) Dr. Disorbio likewise imposed no restrictions and discharged
plaintiff from care in July 2013 after ten sessions, noting plaintiff “made very good
progress.” (Tr. 408.)

4

I infer, based on other medical evidence in the record, that “HA” refers to hyper-awareness, or
perhaps heightened awareness. (See, e.g., Tr. 423 (describing plaintiff as “hypervigilant” following the
robbery).)
5

“The GAF is a subjective determination based on a scale of 100 to 1 of ‘the clinician's judgment
of the individual's overall level of functioning.’” Langley v. Barnhart, 373 F.3d 1116, 1122 n. 3 (10th Cir.
2004) (quoting DSM–IV). The fifth edition of the DSM eliminated the GAF scale. See American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 16 (5th ed. 2014).
Nevertheless, “[a]fter the DSM-V was published, the Social Security Administration issued a directive to its
ALJs . . . instructing them to still consider GAF scores as medical opinion evidence but emphasizing that
GAF scores should not be considered in isolation.” Sizemore v. Berryhill, 878 F.3d 72, 82 (4th Cir. 2017).

7

Thereafter, plaintiff did not seek mental health treatment again for more than two
years. Then, beginning in August 2015, she ran through a series of counselors,
abandoning treatment after a few sessions because she felt her therapists were
“controlling” or “intrusive” for encouraging her to confront her traumatic experiences,
even though every counselor she saw recommended she do so. (See Tr. 409, 411,
412, 415, 565, 569, 576.) The ALJ specifically noted plaintiff’s resistance to setting
treatment goals or following treatment protocols.6 (Tr. 20.) See Miller v. Astrue, 496
Fed. Appx. 853, 858 (10th Cir. Sept. 18, 2012) (citing Decker v. Chater, 86 F.3d 953,
955 (10th Cir. 1996)) (failure to follow prescribed treatment may be considered in
evaluating validity of alleged impairment). The ALJ also noted that, despite plaintiff’s
lack of progress in therapy, her counselor assessed a GAF score of 69, indicating only
mild symptoms. (Tr. 20, 580.) See DSM–IV at 32 (GAF score of 61-70 indicates “some
mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social,
occupational, or school functioning . . ., but generally functioning pretty well”). All these
considerations substantiate the ALJ’s decision to omit mental limitations from plaintiff’s
residual functional capacity assessment.7
Nor did the ALJ err in failing to adopt the opinion of an independent medical
examiner, psychiatrist Dr. Kenneth Krause, that plaintiff had moderate difficulty in

6

That conclusion is amply supported on the record. For example, despite seeking out therapy,
plaintiff told her counselor she did not want advice. (Tr. 584.) She told one therapist she would prefer if
the therapist “remained silent during their sessions.” (Tr. 576.) She told a subsequent counselor she did
not like the previous therapist “because she wears skirts and dresses” and because the furniture at her
office “is too nice.” Indeed, plaintiff reportedly did “‘not like’ a lot of therapists” because they were “too nice
or too young.” (Tr. 584.)
7

Plaintiff also suggests the ALJ erred in finding her capable of performing her past relevant work
as a pharmacy tech because that position was semi-skilled. This argument supposes – wrongly – that the
ALJ found plaintiff capable only of unskilled work. The residual functional capacity assessment includes
no such limitation.

8

interpersonal relationships with men based on a history of abusive relationships.8 (Tr.
428-429.) Plaintiff maintains, based on that statement, she should have been limited to
occasional workplace interactions and claims this error is not harmless because the
vocational expert testified at the hearing that such a limitation would erode the
occupational base for the pharmacy technician job by fifty percent. (See Tr. 69.)
I am unpersuaded, for at least two reasons. First, the medical evidence of record
recounted above does not support such a limitation. Second, erosion of the
occupational base is not a consideration when a claimant is found capable of
performing her past relevant work at step four of the sequential evaluation. Nguyen v.
Colvin, 2015 WL 148667 at *12 (D. Colo. Jan. 12, 2015). Such information is relevant
only at step five, where erosion of the occupational based may impact the determination
whether alternative jobs exist in significant numbers in the national and local economies.
See Garver v. Astrue, 2011 WL 1134721 at *16-17 (D. Colo. March 28, 2011) (citing
Social Security Ruling 83-12, 1983 WL 31253 at *2 (SSA 1983)). By contrast, if the
ALJ determines a claimant has the residual functional capacity to do her past relevant
work, he does “not consider . . . whether [her] past relevant work exists in significant
numbers in the national economy.” 20 C.F.R. § 404.1506(b)(3). See also Hinds v.
Berryhill, 2017 WL 876264 at *4 (D. Utah March 3, 2017) (“A claimant’s RFC is the
sole consideration in determining whether he can perform his past relevant work[.]”).
There thus was no error in this regard either.

8

I assume arguendo this statement can be read to support a broader conclusion that plaintiff has
difficulties interacting with supervisors, coworkers, and/or the public in a work setting.

9

Plaintiff further alleges error in the ALJ’s failure to acknowledge her obesity or
address it in fashioning his residual functional capacity assessment. The medical
evidence repeatedly notes plaintiff had a Body Mass Index (“BMI”) of 30 or above (see
Tr. 319, 322, 326, 329, 334, 360, 366, 524, 527), which is considered obese.9 See
Centers for Disease Control and Prevention, Overweight & Obesity, Defining Adult
Overweight and Obesity, Adult Body Mass Index (BMI) (available at:
https://www.cdc.gov/obesity/adult/defining. html) (last accessed June 6, 2019).
Although no longer a separately listed impairment, obesity still must be considered
insofar as it impacts other impairments of the musculoskeletal, respiratory, and
cardiovascular systems. Social Security Ruling 02-1p, 2002 WL 34686281 at *1 (SSA
Sept. 12, 2002). Nevertheless, “there is no requirement that [obesity] be discussed in a
particular manner or at a particular time in a disability decision[;] the ALJ is required only
to consider it.” Medina v. Berryhill, 2017 WL 1862279 at *10 (D. Colo. May 8, 2017)
(citation and internal quotation marks omitted).
Here, the medical expert who testified at the hearing, Dr. Joseph Gaita, explicitly
considered plaintiff’s weight in endorsing various postural limitations, (Tr. 42), which the
ALJ adopted in his residual functional capacity determination (Tr. 23, 28-29). Moreover,
the ALJ’s opinion is replete with references to the largely unremarkable objective
medical evidence of plaintiff’s physical impairments. (Tr. 25-29.) Plaintiff points to
9

Although plaintiff has never received a diagnosis of obesity, which is typically a minimum
prerequisite to finding that an impairment constitutes a medically determinable impairment, see 20 C.F.R.
§ 404.1527(a)(1); Galloway v. Astrue, 2012 WL 1019167\ at *3 (D. Colo. Mar. 26, 2012), the ALJ typically
will “use [his] judgment to establish the presence of obesity based on the medical findings and other
evidence in the case record, even if a treating or examining source has not indicated a diagnosis of
obesity,” Social Security Ruling 02-1p, 2002 WL 34686281 at *3 (SSA Sept. 12, 2002).

10

nothing in this recitation, or in the evidence itself, suggesting her weight imposes any
greater restrictions on her ability to work than those found by the ALJ. The Tenth Circuit
has rejected any suggestion that “in formulating [a residual functional capacity] . . . [the
ALJ is] also required to note the absence of any evidence that [plaintiff’s] obesity
resulted in additional functional limitations or exacerbated any other impairment,” Smith
v. Colvin, 625 Fed. Appx. 896, 899 (10th Cir. Sept. 14, 2015), and in similar
circumstances, courts in this circuit routinely have refused to remand, see Galvez v.
Berryhill, – F.Supp.3d –, 2019 WL 2121291 at *3 (D. Colo. May 15, 2019) (citing
cases).10 Therefore, any error in his failure to discuss the effects of plaintiff’s obesity
more explicitly was harmless. Williams v. Chater, 1995 WL 490280 at *2 (10th Cir.
Aug.16, 1995); Lumpkin, 112 F.Supp.3d at 1174.
Lastly, plaintiff maintains the ALJ erred in discrediting her subjective complaints
of pain and functional limitation. This argument is woefully underdeveloped, saying little
more than that plaintiff suffers from impairments capable of causing pain. (See Plf. Br.
at 16-17.) The failure to adequately develop an argument creates no obligation on the
part of the court to consider it. Manning, 182 F.Supp.2d at 1162 n.5. Moreover, as
framed, plaintiff’s argument assumes what it would seek to prove – that her allegations
of pain are, in fact, credible.

10

For the same reason, I reject plaintiff’s suggestion that her obesity may have effected her
mental abilities. See Social Security Ruling 02-1p, 2002 WL 34686281 at *3 (while “[o]besity may also
cause or contribute to mental impairments such as depression” or or cause “loss of mental clarity and
slowed reactions [as] result [of] obesity-related sleep apnea,” “[t]he fact that obesity is a risk factor for
other impairments does not mean that individuals with obesity necessarily have any of these
impairments”). Plaintiff has adduced no evidence to suggest her obesity contributes or exacerbates her
mental impairments.

11

Nevertheless, I perceive nothing in the ALJ’s discussion of this issue which
warrants remand. In general, “credibility determinations ‘are peculiarly the province of
the finder of fact, and should not be upset if supported by substantial evidence.” White
v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001) (citing Kepler v. Chater, 68 F.3d 387,
390-91 (10th Cir. 1995)). So long as the ALJ expressly links his credibility assessment
to specific evidence in the record, his conclusion should not be disturbed. Id. at 910;
see also Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
The ALJ followed that mandate here. He thoroughly recounted the objective
medical evidence related to plaintiff’s physical impairments. (Tr. 26-29.) See
Abdelmeged v. Colvin, 2015 WL 5047645 at *5 (D. Colo. Aug. 26, 2015) (citing Luna
v. Bowen, 834 F.2d 161, 165 (10th Cir. 1987)) (lack of objective medical evidence may
considered as bearing on credibility). As the ALJ noted, plaintiff’s physical examinations
consistently reported her has having normal motor strength, normal gait and movement
of all extremities, intact sensation, normal reflexes, little to no tenderness to palpation,
and no neurological deficits. Diagnostic imagining showed plaintiff’s back condition was
mild to moderate and stable over time, including a significant period of time in which she
continued to work. Dr. Gaita testified plaintiff’s more recent complaints of wrist pain did
not support the inclusion of manipulative limitations in her residual functional capacity,
and noted such complaints were eminently treatable. (Tr. 42, 44.)
Thus, while plaintiff does suffer from conditions capable of producing pain, there
is substantial evidence that their impact on her functioning is less significant than
plaintiff alleges. See Brown v. Bowen, 801 F.2d 361, 362-63 (10th Cir. 1986)

12

(“[D]isability requires more than mere inability to work without pain.”) (citation and
internal quotation marks omitted). See also Qantu v. Barnhart, 72 Fed. Appx. 807, 811
(10th Cir. Aug. 13, 2003); Manning, 182 F.Supp.3d at 1163. As all the ALJ’s findings in
this regard are supported by specific citation to the evidence of record, nothing in this
determination warrants remand, either.
IV. ORDERS
For these reasons, I find no reversible error in the ALJ’s disability determination,
which accordingly must be affirmed.
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is affirmed.
Dated June 10, 2019, at Denver, Colorado.
BY THE COURT:

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