Larue v. Commissioner, Social Security Administration
ORDER. The decision of the Commissioner that plaintiff is not disabled is AFFIRMED. This case is closed, by Chief Judge Philip A. Brimmer on 3/31/21. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 20-cv-00391-PAB
DOUGLAS C. LARUE,
ANDREW M. SAUL, Commissioner of Social Security,
This matter comes before the Court on the Complaint [Docket 1] filed by plaintiff
Douglas C. LaRue on February 14, 2020. Plaintiff seeks review of the final decision of
the defendant (the “Commissioner”) denying his claim for disability insurance benefits
under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401–33. The Court has
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g).1
On May 8, 2008, plaintiff applied for social security benefits under Title II of the
Act. R. at 15. Plaintiff alleged a disability onset date of April 30, 2008. Id. After his
claims were initially denied on August 14, 2008, plaintiff requested a hearing before an
administrative law judge (“ALJ”). Id. On July 23, 2010, the ALJ issued a decision
denying plaintiff’s claim. R. at 12. Plaintiff appealed to this Court, which reversed and
remanded the ALJ’s decision. R. at 405–20; see Case No. 12-cv-00636-PAB. On
The Court has determined that it can resolve the issues presented in this
matter without the need for oral argument.
remand, the ALJ again denied plaintiff’s claims. R. at 345–359. Plaintiff again
appealed to this Court, which again reversed and remanded the ALJ’s decision. R. at
727–37; Case No. 15-cv-02585-PAB.
On remand, a new ALJ issued another unfavorable decision. R. at 612–56. The
ALJ found that plaintiff had not engaged in substantial gainful activity from the alleged
onset date through the date he was last insured, December 31, 2013, and had the
following severe impairments: multiple sclerosis (“MS”), neuropathy, and cough
syncope. R. at 618. The ALJ concluded, however, that plaintiff did not have an
impairment or combination of impairments that meets or medically equals the severity
of one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, or 404.1526.
R. at 630–31. The ALJ additionally determined that plaintiff’s depression is non-severe.
R. at 629–30. Ultimately, the ALJ concluded that plaintiff had the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) except that
can occasionally lift/carry 20 pounds; frequently lift/carry 20 pounds; stand
and/or walk for 2 hours of an 8-hour workday; sit for six hours of an 8-hour
workday; never climb ladders, ropes, or scaffolds; occasionally balance,
stoop, kneel, crouch, crawl, or climb ramps and stairs; can have no more
than occasional exposure to extreme heat or extreme cold; and can have
no exposure to hazards, including unprotected heights, commercial
driving, or operating heavy machinery.
R. at 632. The ALJ determined that plaintiff could not perform past relevant work as a
floor installer or site supervisor generally or actually. R. at 654. However, the ALJ
determined that there were jobs that existed in significant numbers in the national
economy that plaintiff could have performed, id., and that plaintiff was not under a
disability, as defined in the Act, at any time between the onset date of April 30, 2008
and the date of last insured, December 31, 2013. R. at 655.
On December 11, 2019, the Appeals Council denied plaintif f’s request for review.
R. at 605. Accordingly, the most recent ALJ decision is the final decision of the
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). T he 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 Biestek v. Berryhill, 139 S. Ct. 1148, 1154
(2019). “Substantial evidence is more than a mere scintilla, and means only such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (citation and quotation omitted). “The threshold for such evidentiary
sufficiency is not high.” Id. Nevertheless, “[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). T he 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 v. Astrue, 515 F.3d 1067,
1070 (10th Cir. 2007). 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 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). 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
(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 satisf ied 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, 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). W hile 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).
Plaintiff raises two objections to the ALJ’s order: (1) the ALJ failed to properly
assess plaintiff’s testimony about the effects of his fatigue; and (2) the ALJ did not have
valid reasons for rejecting the medical opinions and lay witness statements regarding
the effects of fatigue. Docket No. 14 at 3–18.
A. Plaintiff’s Subjective Allegations
The Court must affirm the ALJ’s conclusion regarding whether plaintiff’s
subjective allegations comport with the evidence in the record so long as there is
substantial evidence for the ALJ’s conclusion. Ellison, 929 F.2d at 536. “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, 515 F.3d at 1070.
However, evidence is not substantial “if it is overwhelmed by other evidence in the
record or constitutes mere conclusion.” Musgrave, 996 F.2d at 1374.
On the last appeal, the Court stated that the record “unif ormly shows that plaintiff
suffers from fatigue.” R. at 734 (discussing statements of physicians concluding that
plaintiff’s fatigue, caused by his MS, requires unscheduled breaks, is unpredictable, and
would prevent him from functioning at a job). The Court also noted that the previous
ALJ improperly substituted her own evaluation of the medical evidence for the medical
judgment of the doctors of record when she determined, without reference to medical
evidence or discussion of the opinions of doctors who found that plaintiff’s fatigue
limited his activities, that plaintiff’s statements about fatigue are not substantiated by the
medical evidence. R. at 735. The Court then concluded that the ALJ had “f ailed to rely
on substantial evidence that plaintiff instead has ‘mild, ongoing fatigue’ or even that
such a level of fatigue would not be enough to prevent plaintiff from working in
combination with his other limitations.” R. at 737. The Court remanded for further
proceedings consistent with its opinion. Id.
In the most recent decision, the ALJ determined that fatigue “does not uniformly
appear in the record, as there is no mention that the claimant appears fatigued in any
way” other than in one instance when plaintiff appeared down after being asked how his
hands became callused and soiled. 2 R. at 637. The ALJ reached this conclusion after
determining that “there are no objective mentions that the claimant appears tired or
fatigued, having difficulty staying awake, chronically ill, or otherwise that would
The ALJ noted that, despite plaintiff’s concerns about being around power tools
and hazardous machinery, plaintiff reportedly continued to climb ladders, do yard work,
and use a band saw, as evidenced by plaintiff’s callused and soiled hands. R. at 640.
The ALJ found this undercut plaintiff’s subjective allegations. Id.
corroborate the subjective allegations related to his fatigue.” Id. Nevertheless, the ALJ
acknowledged that “[t]he strongest factor in support of the claimant’s allegations [is] the
consistency in which he reports his subjective symptoms, which includes his reports of
fatigue.” R. at 638. The ALJ then concluded that “other factors fail to support the
extent of those limitations.” Id. The ALJ drew his conclusion notwithstanding plaintiff’s
“fatigue questionnaire,” R. at 633, as well as statements of plaintiff’s physicians whom
the Court cited in its last order. R. at 734. The ALJ also noted that plaintiff testified at a
previous hearing that he had worsening balance, fatigue, and cognitive problems and
that he needed to lie down for five or six hours during the day. R. at 633–34. While the
ALJ noted that “there is no doubt that the claim ant’s records consistently document
subjective complaints of fatigue,” R. at 639, the ALJ ultimately concluded that plaintiff’s
medically determinable impairments “could reasonably be expected to cause some of
the alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely consistent with the
medical evidence of record.” R. at 634.
Plaintiff raises two objections to this determination. First, plaintiff argues that the
ALJ “improperly insisted on objective findings to verify fatigue,” even though “[f]atigue is
one of the most common and limiting symptoms of some neurological disorders, such
as multiple sclerosis,” Docket No. 14 at 16 (quoting SSA Listings § 11.00(T)), and
“fatigue is difficult to assess because, like other symptoms, there are no objective tests
to measure it.” Id. (quoting Program Operations Manual System (“POMS”) DI
24580.015(B)). Plaintiff also notes that the Tenth Circuit has held that no disease is per
se excluded from coverage because it cannot be conclusively diagnosed in a laboratory
setting. Id. (citing Sisco v. Dep’t of Health & Human Servs., 10 F.3d 739, 744 (10th Cir.
1993)). Therefore, plaintiff argues, when the ALJ determined that “there is little to no
objective findings to support any . . . manifestations of [plaintiff’s] fatigue,” R. at 640, the
ALJ applied the wrong legal test because fatigue must be determined by “clinical and
laboratory data and other evidence.” Docket No. 14 at 17 (quoting POMS DI
24580.015(B) (emphasis added)).3
Second, because objective tests cannot show fatigue, but rather fatigue is shown
by clinical and laboratory data and other evidence, plaintiff argues that, since he has
shown evidence of fatigue, the inquiry should be on the intensity of the fatigue and
whether it affects his ability to function. Id. Despite Dr. Bjork’s determination that
plaintiff suffers from lassitude fatigue, R. at 247–49, and the ALJ’s conclusion that
plaintiff suffers from an impairment sufficient enough to limit his standing and walking,
R. at 632, the ALJ determined that plaintiff’s impairment was not severe enough to
require plaintiff to take periodic breaks, since his callused and soiled hands
contradicted needing to take breaks. R. at 640. Plaintiff believes this goes against the
Court’s statement in its previous order that yard work and wood work could be done
with periodic breaks, as plaintiff states that he only engages in these activities for an
In the alternative, plaintiff argues that his allegations of fatigue are supported by
objective evidence because his neurologist, Dr. Randall Bjork, determined that plaintiff
suffers from “lassitude fatigue,” which is a “kind of fatigue complaint typical of [MS]
patients.” Id. at 17 (quoting R. at 249). It was error for the ALJ to discount this
determination, plaintiff argues, simply because Dr. Bjork could not opine on whether
plaintiff was a typical MS patient, since every MS patient presents with unique
responses to therapy and treatment. Id. (citing R. at 649). Rather, when Dr. Bjork
determined that plaintiff suffers from lassitude fatigue, he relied on objective medical
findings, including an MRI of plaintiff’s brain and tests of plaintiff’s cerebral fluid. Id. at
18 (citing R. at 247–48).
hour or two before needing to rest. Docket No. 14 at 19 (citing R. at 147).
The Court agrees with plaintiff that it was improper for the ALJ to discount
plaintiff’s consistent complaints of fatigue because of the lack of objective evidence of
fatigue. Normal exam findings may not show fatigue, given that there are no objective
tests to determine it. POMS DI 24580.015(B). Thus, the ALJ should not have insisted
on objective findings. See, e.g., R. at 636 (“the most significant objective findings are
those findings that are missing throughout the record”); R. at 637 (“there are no
objective mentions that [plaintiff] appears tired or fatigued”). Moreover, objective
findings are not sufficient, on their own, to discredit a claimant’s complaints of chronic
fatigue. See Clark v. Barnhart, 64 F. App’x 688, 691–92 (10th Cir. 2003) (unpublished).
The ALJ was also incorrect in concluding that there were no contemporaneous
observations of fatigue. As the Court explained in its last order, plaintiff’s complaints of
fatigue are “uniform.” R. at 734.
Nevertheless, the ALJ also determined that “there is no doubt that claimant’s
records consistently document subjective complaints of fatigue.” R. at 639. This
means that the ALJ considered these complaints, but discounted them due to credibility
issues. Plaintiff argues that clinical and laboratory data and other evidence support
plaintiff’s subjective complaints of fatigue. Docket No. 14 at 17. However, as plaintiff
correctly states, the inquiry is on the intensity of the fatigue and whether it affects his
ability to function. In order to do this, the Court must review the ALJ’s determination of
The Court’s review of the ALJ’s credibility determinations is guided by two
principles. First, “[c]redibility determinations are peculiarly the province of the finder of
fact, and we will not upset such determinations when supported by substantial
evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). Second, “f indings as to
credibility should be closely and affirmatively linked to substantial evidence and not just
a conclusion in the guise of findings.” Id. (alterations omitted). In assessing a
claimant’s credibility, the ALJ must evaluate both whether the claimant has a medically
determinable impairment that could reasonably be expected to produce the claimed
symptoms and, if so, whether the claimed intensity, persistence, and limiting effects of
the symptoms are credible. SSR 16-3p, 2017 W L 5180304 (Oct. 25, 2017). 4 The ALJ
makes this assessment by considering the following factors:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain
or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has
At the time plaintiff filed for benefits, SSR 96-7p governed the Commissioner’s
analysis of a claimant’s subjective complaints. See SSR 96-7p, 1996 WL 374186 (July
2, 1996). On March 26, 2016, SSR 16-3p superseded SSR 96-7p and elim inated use
of the term “credibility” and provided new guidance for evaluating the intensity,
persistence, and limiting effects of a claimant’s symptoms. Makeen v. Berryhill, No. 17cv-02663-CMA, 2018 WL 3633560, at *8 (D. Colo. July 31, 2018). ALJs are to apply
SSR 16-3p when making determinations and decisions on or after March 28, 2016.
SSR 16-3p, 2017 WL 5180304, at *13 n.27. The ALJ issued his decision after that
date, so SSR 16-3p governed the ALJ’s analysis of plaintiff’s subjective complaints.
See Makeen, 2018 WL 3633560, at *8 (stating that ALJ’s subjective complaint
evaluation was governed by ruling in place at time of decision).
received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back, standing
for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
Id. at *7–8; see also 20 C.F.R. § 404.1529(c)(4) (“We will consider whether there are
any inconsistencies in the evidence and the extent to which there are any conflicts
between your statements and the rest of the evidence.”). The ALJ must set forth “the
specific evidence he relies on in evaluating the claimant’s credibility,” but is not required
to undergo a “formalistic factor-by-factor recitation of the evidence.” Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000).
The Court finds that the ALJ’s determination of plaintiff’s credibility regarding his
subjective allegations of fatigue is supported by substantial evidence in the record. This
evidence includes consistently normal exam findings, such as normal strength, muscle
tone, coordination, gait, cognition, and appearance. R. at 214–19, 229–31, 283–99,
305–06, 312–20, 539–78. W hile normal exam findings and objective evidence may not
reflect fatigue, such evidence may be used in assessing credibility. See 20 C.F.R.
§ 404.1529(c)(2). For instance, a claimant who alleges that he suffered from chronic,
debilitating fatigue may be less credible if he presents at an examination with normal
muscle tone and strength.
Plaintiff’s daily activities also support the ALJ’s determination of plaintiff’s
credibility. These activities including helping with chores, working in the yard, fishing on
occasion, continuing to do projects that require climbing ladders or using a saw, and
traveling to his son’s wedding. R. at 307–08, 315–20, 534. Consideration of a
claimant’s activities of daily living is proper when evaluating a claimant’s alleged
symptoms. 20 C.F.R. § 404.1529(c)(3)(i). “While ‘sporadic performance’ of activities,
like performing a few household tasks, ‘does not establish that a person is capable of
engaging in substantial gainful activity,’ the Tenth Circuit has consistently held that an
ALJ may reasonably consider such activities when they are inconsistent with a
claimant’s reported limitations.” Wagner v. Berryhill, 2017 WL 3981147, at *9 (W.D.
Okla. Sept. 11, 2017) (quoting Frey v. Bowen, 816 F.2d 508, 516-17 (10th Cir. 1987))
(internal citation omitted).
Moreover, the ALJ considered plaintiff’s consistent treatment and the fact that he
has responded moderately well to his medications. R. at 638–39. The ALJ determined
that his medications have been relatively consistent through the record, “in spite of his
alleged worsening or ongoing symptoms.” R. at 638. While plaintiff has been unable to
control his fatigue completely, he found some success with Provigil and Ritalin. R. at
639, R. at 539. The Court also notes that the RFC is a determination of what a
complainant can do despite impairments and limitations. 20 C.F.R. § 404.1545(a)(1).
Thus, a claimant may not necessarily be entitled to benefits even where the symptoms
or effects of severe disabilities are not completely controlled.
Finally, and discussed more fully below, the ALJ considered Dr. Bjork’s
observation that plaintiff’s performance in examinations was “inconsistent” and that he
could not reconcile 5 plaintiff’s callused and dirty hands with not being able to work. R.
at 307. Therefore, the Court will not upset the ALJ’s credibility determination because,
as mentioned previously, credibility determinations are the province of the fact-finder
and, when such determination are supported by substantial evidence, they will be
affirmed. See Kepler, 68 F.3d at 691.
B. Medical Opinions and Lay Witness Statements
1. Medical Opinions
The ALJ must give consideration to all of the medical opinions in the record.
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing 20 C.F.R.
§§ 404.1527(c), 416.927(c)). The ALJ must also explain the weight he assigns to such
opinions. Id. (citations omitted). As relevant to this appeal, the ALJ methodically
reviewed the opinions of Dr. Ian Happer, the state agency medical consultant, whose
opinion the ALJ gave significant weight; Dr. Bjork, one of plaintiff’s treating neurologists,
whose opinions the ALJ gave various weights; and Dr. Laurence Adams, another of
plaintiff’s treating neurologists, whose opinions the ALJ gave minimal weight. R. at
a. Dr. Happer
The ALJ gave Dr. Happer’s opinion significant weight. R. at 642, 643. Dr.
Happer performed a physical RFC assessment and opined that plaintiff could, among
Dr. Bjork stated that plaintiff “says he can’t work, but his hands are calloused
[sic] and soiled. He wouldn’t share with me how ‘that’ continues to be the case.” R. at
307. While dirty, callused hands are not necessarily inconsistent with intermittent yard
work or chores, as the Court noted in its last order, the ALJ could properly consider
plaintiff’s refusal to answer Dr. Bjork’s question to him as bearing adversely on plaintiff’s
credibility on the subject of fatigue.
other things, “stand and/or walk 2–3 hours in an 8-hour workday; sit for 6 hours of an 8hour workday.” R. at 641. The ALJ noted that Dr. Happer, though a non-examining
and non-treating source, is “uniquely trained to evaluate medical records and formulate
medical source statements utilizing our rules and regulations.” R. at 642. The ALJ also
noted that Dr. Happer’s opinions are consistent with the majority of the treating sources.
Id. However, the ALJ noted that Dr. Happer “does not f ully account for the limitations
caused by [plaintiff’s] fatigue.” Id. Plaintiff argues that the ALJ should not have
adopted Dr. Happer’s “assessment of the effects of fatigue.” Docket No. 14 at 21. The
ALJ, however, did not adopt Dr. Happer’s assessment of plaintiff’s fatigue. Rather, the
ALJ discounted that opinion of Dr. Happer. R. at 642. The Court finds that the ALJ
gave sufficient reasons – familiarity with medical source statements, consistency with
other opinions, and yet insufficient attention to plaintiff’s fatigue – for affording Dr.
Happer’s opinion significant weight rather than great weight.
b. Treating Physicians
The opinion of a treating physician is generally entitled to greater weight than
that of a non-treating physician because of the unique perspective derived from a
treating relationship.6 20 C.F.R. § 404.1527(c)(2).
“[C]ase law, the applicable regulations, and the Commissioner’s pertinent Social
Security Ruling (SSR) all make clear that in evaluating the medical opinions of a
In 2017, the rules were changed to no longer “defer or give any specific
evidentiary weight, including controlling weight, to any medical opinion(s).” 20 C.F.R.
§ 404.1520c(a). Because plaintiff’s claim was filed before March 27, 2017, the former
regulations apply. See id. § 404.1527(c)(2) (“Generally, we give more weight to medical
opinions from . . . treating sources.”).
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. 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 C.F.R.
[§§] 404.1527 and 416.927. In m any 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 the proper 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
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
The ALJ gave varying weight to the different opinions of Dr. Bjork. R. at 646–50.
The ALJ noted that Dr. Bjork has not demonstrated experience in completing medical
source statements or providing functional analyses. R. at 646. The ALJ nevertheless
gave significant weight to Dr. Bjork’s opinion that plaintiff should not be working with
manual labor tools or be in the manual workforce because, although Dr. Bjork had only
examined plaintiff a single time two years before rendering this opinion, Dr. Bjork had
supervised the physician assistant’s treatment of plaintiff and had reviewed her
treatment notes throughout. Id. This opinion is also consistent with the bulk of the
evidence. Id. The ALJ also gave significant weight, for the same reasons, to the
opinion that plaintiff could not return to being a floor installer. Id. However, the ALJ
gave little weight to other opinions of Dr. Bjork, including that returning to work would be
“problematical at best,” because these opinions were based exclusively on plaintiff’s
subjective allegations. R. at 647. The ALJ afforded minimal weight to Dr. Bjork’s
opinions that plaintiff suffers from debilitating fatigue, including lassitude fatigue, and
regarding plaintiff’s functional capacity because these opinions and determinations lack
support in the record and in Dr. Bjork’s own records over the years, are based solely on
plaintiff’s subjective allegations, and are merely check-box opinions. R. at 647–48.
Plaintiff objects to the ALJ’s determination to afford minimal weight to Dr. Bjork’s
opinions regarding plaintiff’s fatigue and capacity yet provides little authority on which
his objections are based. See Docket No. 14 at 23–24. The Court, however, cannot
re-weigh the evidence. See Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008)
(“In reviewing the ALJ’s decision, we neither reweigh the evidence nor substitute our
judgment for that of the agency” (quotations and citation omitted)). The Court finds,
therefore, that notwithstanding plaintiff’s objections the ALJ provided sufficient support
for his weighing of Dr. Bjork’s opinion. Krauser, 638 F.3d at 1331 (“[T]he ALJ’s findings
must be sufficiently specific to make clear to any subsequent reviewers the weight he
gave to the treating source’s medical opinion and the reason for that weight.” An ALJ
need not expressly discuss the application of each factor to each medical opinion, so
long as the ALJ’s opinion is “sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)
(internal citations omitted). The ALJ found that Dr. Bjork’s opinion was unsupported,
pointed to specific evidence that contradicted the opinion, and declined to assig n it
controlling weight. This is sufficient. See Mays v. Colvin, 739 F.3d 569, 575 (10th Cir.
2014) (“Because we can tell from the decision that the ALJ declined to give controlling
weight to Dr. Chorley’s opinion, we will not reverse on this ground.”); see also Watkins,
350 F.3d at 1300. The ALJ also made findings as to the relevant 20 C.F.R.
§ 404.1527(c) factors, namely, the opinion’s supportability and its consistency with the
record as a whole. R. at 19; see also 20 C.F.R. §§ 404.1527(c)(3)–(4); Oldham, 509
F.3d at 1258.
The Court’s analysis is similar with regard to the ALJ’s treatment of Dr. Adams’s
opinions. Dr. Adams provided a medical source statement and opined, among other
things, that plaintiff would need to lie down four hours of an eight-hour workday, would
have variable and unpredictable fatigue lasting 12 hours or more per day, and could not
function at a job while fatigued. R. at 539–46. The ALJ afforded Dr. Adams’s opinion
minimal weight because, the ALJ noted, Dr. Adams only met plaintiff once before this
opinion and did not provide any evidence that he had any experience rendering such
opinions under social security regulations or listings. R. at 650. Additionally, aside from
plaintiff’s subjective allegations, the bases for Dr. Adams’s opinions are not reflected his
or his associates’ records. R. at 651. The ALJ also noted that Dr. Adams’s opinions
and restrictive limitations are not supported by the record evidence. R. at 651–52.
Plaintiff objects to the ALJ’s determination with respect to Dr. Adams. Docket
No. 14 at 25–27. Again, however, the Court cannot re-weigh the evidence or determine
credibility. The Court’s review is limited to determining whether the ALJ provided
sufficient bases for rendering his decision. See Oldham, 509 F.3d at 1258; Mays, 739
F.3d at 575; Watkins, 350 F.3d at 1300. The Court finds that the ALJ adequately
explained why he assigned Dr. Adams’s opinions such weight and the ALJ’s
determination is supported by substantial evidence. Moreover, when a treating
physician’s opinion is contradicted by record evidence, it is reasonable for the ALJ to
assign such an opinion less weight. See also Pisciotta v. Astrue, 500 F.3d 1074,
1078–79 (10th Cir. 2007) (ALJ reasonably discounted a treating physician’s opinion
which was inconsistent with other evidence); see also Vigil v. Colvin, 805 F.3d 1199,
1202 (10th Cir. 2015) (“The ALJ’s finding that Dr. Summerlin’s restrictions on standing
and walking were inconsistent with his own examination findings is a good reason for
giving that medical opinion only moderate weight.”); Newbold v. Colvin, 718 F.3d 1257,
1266 (10th Cir. 2013) (affirming the ALJ’s decision discounting the treating physician’s
opinion where the doctor’s treatment note from the same day was inconsistent with the
The Court concludes that the ALJ adequately explained the weight given to Dr.
Bjork and Dr. Adams. The ALJ considered the relevant factors discussed in Langley
and gave “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).
2. Statements of Friends and Family
The ALJ also evaluated the statements of plaintiff’s friends and family as lay
opinions under 20 C.F.R. § 404.1527(f). R. at 652. The ALJ gave these opinions very
little weight because they were not medical source opinions; they provided no specific
functional limitations beyond some difficulties with ladders, walking, and being around
power tools, which are addressed in the RFC; they “regurgitate” plaintiff’s subjective
allegations; they are inconsistent with the record evidence; and none of the statements
was made under oath. R. at 653. Plaintiff argues that the opinions are valid sources of
information under POMS DI 24580.015(B) and that the opinions do not sim ply
“regurgitate” plaintiff’s subjective allegations but rather provide an additional functional
limitation of needing to take frequent breaks. Docket No. 14 at 28.
“[I]n addition to discussing the evidence supporting his decision, the ALJ also
must discuss the uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1010 (10th
Cir. 1996). The ALJ did so by summarizing plaintiff’s friends’ and family’s statements
and explaining why he discounted it. R. at 652–54. Plaintif f provides no authority
besides POMS DI 24580.015(B). Docket No. 14 at 28. However, the ALJ’s
determination does not contradict that regulation. The regulation states that generally
individuals living with the claimant should be good sources of information, but the
regulation does not say that this is always the case or that the ALJ cannot weigh these
witnesses’ credibility. While the ALJ did not specifically go through each of these
witnesses’ claims, as he did for plaintiff, “any error in failing to do so is harmless
because ‘the same evidence that the ALJ referred to in discrediting [the claimant’s]
claims also discredits [the lay witness’s] claims.” Best-Willie v. Colvin, 514 F. App’x
728, 736 (10th Cir. 2013) (unpublished) (quoting Buckner v. Astrue, 646 F.3d 549, 560
(8th Cir. 2011)). The Court thus concludes that the ALJ’s treatment of the lay
witnesses’ testimony was supported by substantial evidence.
For these reasons, it is
ORDERED that the decision of the Commissioner that plaintiff is not disabled is
AFFIRMED. It is further
ORDERED that this case is closed.
DATED March 31, 2021.
BY THE COURT:
PHILIP A. BRIMMER
Chief United States District Judge
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