Bonzo v. Social Security Administration, Commissioner of

Filing 17

MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to the fourth sentence of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Sam A. Crow on 1/7/15. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GARY L. BONZO,
Plaintiff,
v.

Case No. 13-2468-SAC

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the Commissioner of
Social Security which denied plaintiff disability insurance benefits. The
matter has been fully briefed by the parties.
I. General legal standards
The court's standard of review is set forth in 42 U.S.C. § 405(g), which
provides that “the findings of the Commissioner as to any fact, if supported
by substantial evidence, shall be conclusive.” The court should review the
Commissioner's decision to determine only whether the decision was
supported by substantial evidence in the record as a whole, and whether the
Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d
983, 984 (10th Cir. 1994). When supported by substantial evidence, the
Commissioner’s findings are conclusive and must be affirmed. Richardson v.
Perales, 402 U.S. 389, 401 (1971). Substantial evidence requires more than

a scintilla, but less than a preponderance, and is satisfied by such evidence
that a reasonable mind might accept to support the conclusion. Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005).
The Social Security Act provides that an individual shall be determined
to be under a disability only if the claimant can establish that he has a
physical or mental impairment expected to result in death or last for a
continuous period of twelve months which prevents him from engaging in
substantial gainful activity (SGA). The claimant's physical or mental
impairment or impairments must be of such severity that he is not only
unable to perform 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. 42 U .S.C. § 423(d).
The Commissioner has established a five-step sequential evaluation
process to determine disability. If at any step a finding of disability or nondisability can be made, the Commissioner will not review the claim further.
At step one, the agency will find non-disability unless the claimant can show
that he is not working at a “substantial gainful activity.” At step two, the
agency will find non-disability unless the claimant shows that he has a
“severe impairment,” which is defined as any “impairment or combination of
impairments which significantly limits [the claimant's] physical or mental
ability to do basic work activities.” At step three, the agency determines
whether the impairment which enabled the claimant to survive step two is
2

on the list of impairments presumed severe enough to render one disabled.
If the claimant's impairment does not meet or equal a listed impairment, the
inquiry proceeds to step four, at which the agency assesses whether the
claimant can do his previous work. The claimant is determined not to be
disabled unless he shows he cannot perform his previous work. The fifth step
requires the agency to consider vocational factors (the claimant's age,
education, and past work experience) and to determine whether the
claimant is capable of performing other jobs existing in significant numbers
in the national economy. Barnhart v. Thomas, 540 U.S. 20 (2003).
The claimant bears the burden of proof through step four of the
analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). At step
five, the burden shifts to the Commissioner to show that the claimant can
perform other work that exists in the national economy. Nielson, 992 F.2d at
1120; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The
Commissioner meets this burden if the decision is supported by substantial
evidence. Thompson, 987 F.2d at 1487.
II. Procedural History
This case has a lengthy history. Plaintiff first filed his applications in
March of 2002, and they were denied initially and on reconsideration. In
December of 2005, an administrative law judge (ALJ) found Plaintiff not
disabled, but the Appeals Council granted Plaintiff’s request for review and
remanded the case to an ALJ for further consideration. A second ALJ issued
3

an unfavorable decision in September of 2006, which the Appeals Council
also remanded. In September of 2007, the second ALJ issued another
unfavorable decision, which the Appeals Council again remanded. In March
of 2010, a third ALJ issued an unfavorable decision which this Court reversed
and remanded on the parties’ agreed order in February of 2012. On remand,
the Appeals Council directed an ALJ to offer Plaintiff a hearing and issue a
new decision. In May of 2013, following a March of 2013 hearing, a new ALJ
found that Plaintiff was not disabled. The Appeals Council declined
jurisdiction of the case, making this the final decision of the Commissioner.
See 20 C.F.R. §§ 404.984, 416.1484.
Plaintiff, at age thirty-seven, filed applications for disability insurance
benefits and SSI primarily alleging left arm pain that limited his use of that
arm. At step one, the administrative law judge (ALJ) found that plaintiff had
not engaged in substantial gainful activity since November 15, 2000, his
alleged onset date. The ALJ found at step two that plaintiff has severe
impairments of reflex sympathetic dystrophy/nerve damage to the left elbow
status post-surgery (complex regional pain syndrome), obesity, mild
degenerative disc disease of the cervical spine, and status post-myocardial
infarction with stent and defibrillator placement. But the ALJ found at step
three that those impairments did not meet or equal the severity of a listed
impairment presumed severe enough to render one disabled.

4

Accordingly, the ALJ determined plaintiff’s residual functional capacity
(RFC) and found he had the ability to perform light work except:
He may occasionally climb stairs, but should never climb ropes,
ladders or scaffolds. He is limited to occasional pushing and pulling
with his left upper extremity. He is limited to jobs that do not require
constant rapid repetitive hand movements with his non-dominant left
upper extremity. He is limited to no overhead reaching and handling
with the left upper extremity. He is limited to occasional fingering with
the left upper extremity. Secondary to reported chronic pain and
potential side effects of medications, he is limited [to] jobs that do not
demand attention to details or complicated job tasks or instructions.
Dk. 3, Exh. 1, p. 1072.
The ALJ found the plaintiff could not perform his past relevant work (a
machinist, truck driver, or loader) but found that plaintiff could perform
other jobs that exist in significant numbers in the national economy,
including sales attendant, shipping receiving weigher, and bakery conveyor
worker. The ALJ thus determined Plaintiff is not disabled.
III. RFC Analysis
Plaintiff first contends that the ALJ’s RFC findings fail to account for all
of his documented physical and mental limitations shown in the record.
Physical
Examining physicians Carabetta, Koporivica, and Fishman
recommended limitations to plaintiff’s ability to grasp, found that plaintiff
could not use his left arm in a functional manner, and found that he should
rarely use his left arm for vocational activities. But the ALJ did not impose
each of those restrictions. Instead, the ALJ explained that he gave Dr.
5

Fishman’s opinion that plaintiff could not use his left arm functionally in
assembly work requiring repetitive motion “some weight,” but found that
opinion inconsistent with the other workers compensation exams and with
daily tasks that Plaintiff undertook, particularly mowing the yard. Id, p.
1078. The ALJ gave “more weight” to Dr. Carabetta’s opinion, and reduced it
somewhat to account for the plaintiff’s allegations as well as his subsequent
heart attack.
The ALJ gave significant weight to the opinion of consultative examiner
Winkler, because unlike other physicians, she “accounted for the claimant’s
left-sided limitations.” Dk. 3, Exh. 1, p. 1077. She found that plaintiff was
limited to occasional reaching, handling, fingering, feeling, pushing, and
pulling with his left hand. The ALJ imposed an additional restriction by
limiting plaintiff to no overhead reaching or handling with his left arm.
A state agency consultant recommended in 2002 that plaintiff avoid
repetitive motions with his left hand and only occasionally reach and finger
with his left arm. The ALJ addressed this opinion as well, noting the
consultant’s conclusion that plaintiff had the capacity to perform light work
and maintained strength and ability to perform many activities of daily
living. The RFC varies insignificantly from this consultant’s recommendation
in stating that plaintiff should avoid “constant, rapid repetitive” movements
and overhead reaching with his left hand.

6

Plaintiff contends that the ALJ improperly failed to give controlling
weight to the opinion of plaintiff’s treating physician, Dr. Ramirez. In 2002,
Dr. Ramirez stated that plaintiff should avoid machinist work, and the ALJ
gave that conclusion some weight. In 2005, Dr. Ramirez submitted a
medical source statement suggesting that plaintiff was totally disabled, but
the ALJ found that to be an “older opinion” having “little probative value and
address[ing] only a determination to be made by the Commissioner, that of
ultimate disability.” Id, p. 1077. The ALJ reviewed Dr. Ramirez’s treatment
records and found that they “failed to imply any specific limitations that
would preclude all work activity.” Plaintiff contends the ALJ’s analysis is
“contrary to the holding in Coleman v. Astrue, 523 F. Supp.2d 1264, 1270
(D. Kan. 2007),” but the ALJ’s narrative reflects that he found Dr. Ramirez’s
opinion not well-supported by medically acceptable clinical or laboratory
diagnostic techniques, as precedent1 permits. See Hamlin v. Barnhart, 365
F.3d 1208, 1215 (10th Cir. 2004) (“A treating physician's opinion must be
given controlling weight if it “is supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with other
substantial evidence in the record.”).
The ALJ also found Dr. Ramirez’s conclusion of disability inconsistent
with plaintiff’s activities of daily living. In support of his credibility findings,
1

The Coleman decision is not binding on this court. See Camreta v. Greene, __ U.S.__, 131
S.Ct. 2020, 2033 (2011) (“A decision of a federal district court judge is not binding
precedent in either a different judicial district, the same judicial district, or even upon the
same judge in a different case. 18 J. Moore et al., Moore's Federal Practice § 134.02[1][d],
p. 134–26 (3d ed. 2011).”).

7

the ALJ referred twice to Plaintiff’s ability to mow his yard using a zero-turn
mower, and once added that the mower “requires almost constant pushing
and pulling to operate.” Dk. 1, Exh. 3, p. 1073, 1078. Plaintiff correctly
notes that no evidence of record shows whether or not plaintiff’s lawn mower
required constant pushing and pulling. But the ALJ’s personal commentary
about the nature of zero-turn mowers does not detract from his accurate
finding that Plaintiff admitted to mowing his yard with a zero-turn mower for
15 minutes at a time. The ALJ additionally found that Plaintiff prepares
dinner most days for his wife, washes dishes, attends his daughter’s
basketball games, attends church every week, drives to medical
appointments, drives to the bank (where he met his wife), and exercises on
an elliptical machine. Plaintiff mounts no challenge to those activities of daily
living. When read as a whole, the ALJ’s decision shows that he weighed the
treating physician’s opinion using the relevant factors and gave good
reasons for doing so. See Knight ex rel. P.K. v. Colvin, 756 F.3d 1171 (10th
Cir. 2014); Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004);
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (quotation
omitted).
The ALJ also found plaintiff’s claim of disabling pain lacked credibility
based in part on plaintiff’s inaction. The ALJ found that plaintiff had “long
periods of time with no treatment,” and “infrequent visits with his primary
care physician, Dr. Ramirez.” Dk. 3, Exh. 1, p. 1075. Plaintiff contends he
8

consistently saw his primary care doctor for refills of pain medications and to
discuss possible new options for treatment. The record shows Plaintiff saw
Dr. Ramirez in August of 2004, July of 2005, February of 2007, April of 2008
and July of 2008. Exhibit 14F p. 812-814. Characterizing these visits as
infrequent is a reasonable conclusion. But even if the that characterization is
debatable, the court has no difficulty with the gist of the ALJ’s finding, which
is that the number of plaintiff’s visits to his primary care physician fails to
support the severity of the limitations alleged by Plaintiff.
The ALJ further found plaintiff’s “lack of tenacity in pursuing all options
for pain control” to be “inconsistent with his allegations that the pain is
unbearable and prevents all work.” Id, p. 1078. This too is a relevant factor
in evaluating credibility. See Alarid v. Colvin, __ Fed.Appx. __, 2014 WL
6602441(10th Cir. 2014). Plaintiff consulted Dr. Elliott, a pain management
doctor, in 2012, but she never gave an ultimate conclusion as to the
claimant’s limitations. And Plaintiff did not pursue any potential treatment
she recommended - spinal cord stimulations or intrathecal pump therapy although plaintiff had insurance at the time. To this, plaintiff states only that
he could not pursue those options until he got off Plavix, which he did not
do, and that the stimulator had to be compatible with his pacemaker. But no
evidence shows that such compatibility was not feasible, nor does the record
reflect any other good reason why a person who suffers from disabling pain
would not pursue the course of treatment most recently recommended by a
9

physician who is a pain specialist. The Court finds no harmful error in the
ALJ’s analysis of this point.
Plaintiff also contends that the ALJ failed to evaluate the testimony of
various persons. First, Plaintiff contends that “in the context of his credibility
assessment, the ALJ also failed to evaluate the opinion of psychologist Todd
Schemmel, that if returned to work, plaintiff would likely encounter regular
interference from his pain symptoms.” Dk. 10, p. 77. But that psychologist’s
opinion is dated in 2002 – eleven years before the hearing - and is expressly
limited to plaintiff’s then “current state.” It provides in relevant part:
If returned to a work setting, Gary would likely encounter regular
interference from his pain symptoms, but not his depression or
anxiety.
Id, p. 630. Additionally, Plaintiff fails to explain how this psychologist’s
opinion has so much bearing on his functional limitations that the ALJ should
have specifically discussed that opinion in determining his RFC for light work.
Secondly, Plaintiff alleges error in the ALJ’s failure to evaluate the
2006 testimony of Plaintiff’s ex-wife and a friend. Plaintiff’s wife in 2006
testified that when plaintiff stocked items and worked at the liquor store
they owned he was in pain for two or three days thereafter. Dk 3, Exh. 1, p.
1004. She also testified that sometimes plaintiff was in bed when she left for
work and was still in bed when she came home, literally crying from pain. R.
994. But she did not estimate how often those events occurred. Mr. Brown,
(apparently the friend plaintiff alludes to) testified he saw plaintiff “bzzt” in
10

bed two or three times a week, R. 1000, that plaintiff “can do certain things”
but would “pay for it” the next day, R. 1001, and that he can tell when
plaintiff is in pain because “his face gets pretty red and he gets all swollen
up… he’s kind of, groggy, doped up.” Dk. 3, Exh. 1, p.1012.
But the ALJ need not discuss every piece of evidence in the record.
Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014). And when an “ALJ
indicates he has considered all the evidence, the Court’s practice is to take
the ALJ at his word.” Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009)
(internal quotation marks omitted). The court finds no fault in the ALJ’s not
examining this and other testimony from prior hearings. This evidence is
largely cumulative in significant part of plaintiff’s own testimony and that of
his wife at the 2013 hearing, which the ALJ expressly discussed. See e.g.,
Id, p. 1073 (stating that Plaintiff sleeps very poorly at night due to his pain
and sometimes moans in pain, and she sees signs of depression). The ALJ’s
failure to discuss all the testimony given in prior hearings was not critical to
the outcome of this case, and Plaintiff has not demonstrated error.
Plaintiff also alleges reversible error because the ALJ did not state the
weight he gave Plaintiff’s wife’s 2013 testimony. But the ALJ specifically
addressed her testimony, and the regulation does not require the ALJ to
state in his decision what credibility and weight he gives to lay testimony.
See 20 C.F.R. § 404.1513(d)(4) (stating that the ALJ may use evidence from
‘[o]ther non-medical sources, but not stating that the ALJ must state in his
11

decision what credibility and weight he gave to other non-medical sources,
including a spouse.)
The Court finds no reversible error in the ALJ’s treatment of Plaintiff’s
documented, credible physical limitations shown in the record. Where, as
here, the court can follow the adjudicator's reasoning in conducting its
review, and can determine that correct legal standards have been applied,
“merely technical omissions in the ALJ's reasoning do not dictate reversal.”
Keyes–Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court
must exercise common sense and “cannot insist on technical perfection.” Id.
Mental
The ALJ found plaintiff’s depressive disorder to be non-severe,
resulting in only mild limitations. Plaintiff contends only that “the ALJ did not
adequately evaluate the effect of plaintiff’s depression in combination with
his severe pain.” Dk. 10, p. 81. But that conclusory assertion is not
developed in the brief. In support of that assertion, Plaintiff recites portions
of the record relating to his depression, a psychological evaluation by Dr.
Schemmel, and psychologist Cool’s testimony from a prior hearing, but
Plaintiff includes no analysis. The Court will not connect the dots for the
Plaintiff or make his argument for him. Facts2 coupled with only conclusory
assertions do not provide a basis for reversal. See Gross v. Burggraf Constr.
Co., 53 F.3d 1531, 1546 (10th Cir. 1995) (noting “[j]udges are not like pigs,
2

The court also notes that Plaintiff restates portions of the record in the initial 60 pages of
his brief, but does not specifically reference most of those facts in his arguments.

12

hunting for truffles buried in briefs”); United States v. Garcia, 71 Fed.Appx.
781, 784 (10th Cir. 2003) (the court does not consider arguments not
properly developed in the briefs); Craven v. University of Colorado Hosp.
Authority, 260 F.3d 1218, 1226 (10th Cir. 2001) (the Court will not
manufacture arguments for an appellant, and a bare assertion does not
preserve a claim).
Plaintiff also cites Tibbits v. Shalala, 883 F. Supp. 1492, 1500 (D. Kan.
1995) as support for his assertion that the ALJ failed to evaluate the effect of
plaintiff’s depression in combination with his pain, but the cited page relates
solely to the completion of a PRT form – an issue not raised here.
VE Testimony
The ALJ's hypothetical question to the vocational expert (VE) must
accurately reflect the “impairments and limitations that were borne out by
the evidentiary record.” Newbold v. Colvin, 718 F.3d 1257, 1268 (10th Cir.
2013) (internal quotation marks and brackets omitted). Plaintiff contends
that the ALJ’s RFC did not do so, resulting in a defective hypothetical posed
to the VE. Plaintiff specifically alleges the ALJ failed to include the following
medically determinable impairments in his hypothetical: 1) plaintiff should
avoid repetitive work or grasping with either hand and “rarely” use his left
hand/arm for vocational activities; 2) plaintiff needed to alternately hold his
left arm with his right, or rest it on a cushion; and 3) plaintiff had moderate
depression, warranting some limitations. Dk. 10, p. 81.
13

But plaintiff has not established that he has moderate mental
limitations, warranting any limitations. And by finding that Plaintiff could
drive, operate a riding lawn mower, and engage in other listed daily
activities, the ALJ’s narrative implicitly discounts the credibility of plaintiff’s
testimony that he had to hold his left arm with his right, rest it on a cushion,
or stay in bed for two to three days a week due to pain. And the repetitive
work, grasping, and use of left hand vocationally are adequately included in
the RFC findings given to the VE to the extent that they are borne out by the
evidentiary record. See RFC (limiting plaintiff’s use of his left arm to
occasional pushing and pulling, no constant rapid repetitive hand
movements, no overhead reaching and handling, and only occasional
fingering).
Plaintiff additionally questions the VE’s testimony about overhead
reaching. The ALJ’s hypothetical question to the VE stated, “[h]e’d be limited
to no overhead reaching and handling with the left upper extremity.” Dk. 3,
Exh. 1, p. 1438. The ALJ later noted that “the DOT does not distinguish
between overhead reaching and handling and regular reaching and
handling,” and asked, “would any of these jobs require overhead reaching
and handling?” The VE testified:
No sir, not any more than what would be considered normal, daily
living activities, and it wouldn’t necessarily need to be a bilateral reach
if they could reach with their dominant arm on an occasional basis.

14

R. 1439. Plaintiff contends the VE did not define what she meant by “normal
daily living activities,” and that normal overhead reaching necessarily
conflicts with the limitation of no overhead reaching or handling with the left
extremity. But since the VE clarified that any overhead reaching or handling
could be done with the right arm, no such conflict appears in the record. And
using Plaintiff’s right hand occasionally for reaching or handling would permit
him to perform the jobs identified by the VE.
Plaintiff also argues that each of the jobs identified by the VE required
frequent, rather than occasional, reaching and/or handling. Dr. Winkler
opined that plaintiff was limited to occasional reaching and handling with his
left hand. Similarly, the state agency consultant found plaintiff limited to
occasional reaching with his left hand. Plaintiff specifically alleges that the
VE’s testimony that a bakery conveyor does only occasional reaching and
handling conflicts with the DOT’s statement that the job requires “frequent”
handling. Plaintiff contends that reversal is necessary because the VE did not
explain this discrepancy. See Hackett v. Barnhart, 395 F.3d 1168, 1175–76
(10th Cir. 2005) (holding that ALJ must ask VE how VE's testimony
corresponds with DOT and obtain reasonable explanation for any conflicts
between testimony and DOT). But the DOT’s job requirements for bakery
conveyor confirm the VE’s testimony, stating the following: “Reaching:
Occasionally – Exists up to 1/3 of the time; Handling: Occasionally – Exists
up to 1/3 of the time; Fingering: Not Present – Activity or condition does not
15

exist.” See Dictionary of Occupational Titles (4th ed. 1991) (DICOT)
929.684–010 (Packer), 1991 WL 688162, DICOT 524.687–022 (Bakery
Worker, Conveyor Line). Accordingly, the VE’s testimony provided
substantial evidence to support the Commissioner’s decision.
Having examined the specific claims of error, the Court finds sufficient
evidence that a reasonable mind might accept to support the conclusion of
non-disability. The standard of review “does not allow a court to displace the
agency’s choice between two fairly conflicting views, even though the court
would justifiably have made a different choice had the matter been before it
de novo.” Trimmer v. Dep’t of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999).
IT IS THEREFORE ORDERED that the judgment of the Commissioner is
affirmed pursuant to the fourth sentence of 42 U.S.C. § 405(g).
Dated this 7th day of January, 2015, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

16