Perrin v. Social Security Administration

Filing 25

ORDER DENYING 18 Plaintiff's Motion to Reverse and Remand by Magistrate Judge Gregory J. Fouratt. (sr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
DENNIS PERRIN,
Plaintiff,
v.

Civ. No. 16-721 GJF

NANCY BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
ORDER
THIS MATTER is before the Court on Plaintiff Dennis Perrin’s (“Plaintiff’s”) “Motion
to Reverse and Remand for a Rehearing, With Supporting Memorandum” (“Motion”), filed on
February 13, 2017. ECF No. 18. The Commissioner responded on April 14, 2017. ECF No. 20.
Plaintiff filed his Reply on May 5, 2017. ECF No. 23. Having meticulously reviewed the entire
record and the parties’ briefing, the Court finds that Plaintiff’s Motion is not well taken and that
the Administrative Law Judge’s (“ALJ’s”) ruling should be AFFIRMED. Therefore, and for the
further reasons articulated below, the Court will DENY Plaintiff’s Motion.
I.

BACKGROUND
Plaintiff filed an application for supplemental security income on January 6, 2009,

alleging disability that started on June 1, 2001. AR 359. Plaintiff’s application was denied on
April 29, 2009, and again on reconsideration on July 8, 2010. AR 359. Plaintiff had a hearing
on May 30, 2012 before ALJ Ann Farris, and on June 7, 2012, ALJ Farris issued her opinion
concluding that Plaintiff was not disabled. AR 413. Plaintiff then applied for review by the
Appeals Council and submitted additional evidence that was not available at the time of the
hearing, but the Appeals Council denied the request for review. AR 413. Plaintiff then appealed
1

to this Court, which concluded that the Appeals Council should have considered Plaintiff’s
additional evidence, and remanded for an additional hearing. AR 427, 430. The Appeals
Council then vacated ALJ Farris’s opinion, and Plaintiff had another hearing on January 19,
2016, in front of ALJ D’Lisa Simmons. AR 359, 371. During that hearing, Plaintiff and
vocational expert Mary D. Weber testified. AR 359. On March 1, 2016, ALJ Simmons issued
her opinion concluding that Plaintiff was not disabled. AR 370. There is no indication in the
record that Plaintiff filed a request for review by the Appeals Council following ALJ Simmons’
unfavorable decision, which made ALJ Simmons’s decision the final decision of the
Commissioner following remand. See 20 C.F.R. § 404.984(a), (d) (2010); Pl.’s Mot. 5, ECF No.
18. Plaintiff then timely filed his appeal in this Court on June 27, 2017. ECF No. 1.
II.

PLAINTIFF’S CLAIM
Plaintiff’s sole argument on appeal is that ALJ Simmons failed to provide adequate

reasons for rejecting Dr. John Vigil’s opinion regarding Plaintiff’s “work-like capabilities.” See
Pl.’s Mot. 23-27; AR 367. Plaintiff asserts that ALJ Simmons did not provide “any analysis,
legal or evidentiary basis to support her contention” that Dr. Vigil relied on Plaintiff’s subjective
report of symptoms and limitations. Pl.’s Mot. 24; see AR 367. Plaintiff further argues that ALJ
Simmons did not provide adequate explanation for why Dr. Vigil’s opinion regarding Plaintiff’s
work-like capabilities is “vague, unsupported, and inconsistent with the medical record as a
whole.” AR 367; see Pl.’s Mot. 25. Although Plaintiff’s diabetes and obstructive sleep apnea
improved in 2014 and 2015, Plaintiff argues that ALJ Simmons did not explain how Dr. Vigil’s
opinion was inconsistent with the record between 2009 and 2013. See Pl.’s Mot. 25. Plaintiff
also argues that his diabetic peripheral neuropathy was not controlled in 2014 and 2015, that his
neuropathy causes pain and loss of sensation, that ALJ Simmons “misapprehends the nature of

2

diabetic peripheral neuropathy,” and “overstep[ped] her bounds into the province of medicine.”
Pl.’s Mot. 26-27.
III.

APPLICABLE LAW
A. Standard of Review
When the Appeals Council denies a claimant’s request for review, the ALJ’s decision

becomes the final decision of the agency. 1 The Court’s review of that final agency decision is
both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing
Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The
standard of review in a social security appeal is whether the correct legal standards were applied
and whether the decision is supported by substantial evidence.”)
The factual findings at the administrative level are conclusive “if supported by substantial
evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373
F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004);
Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). An ALJ’s decision “is not based on
substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting it.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
Substantial evidence does not, however, require a preponderance of the evidence. See Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)). A court should meticulously review the entire record but should neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Langley, 373 F.3d
at 1118; Hamlin, 365 F.3d at 1214.
1

A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g) (2012), which generally is the
ALJ’s decision, not the Appeals Council’s denial of review. 20 C.F.R. § 404.981 (2016); O’Dell v. Shalala, 44 F.3d
855, 858 (10th Cir. 1994).

3

As for the review of the ALJ’s legal decisions, the Court reviews “whether the ALJ
followed the specific rules of law that must be followed in weighing particular types of evidence
in disability cases.” Lax, 489 F.3d at 1084. The Court may reverse and remand if the ALJ failed
“to apply the correct legal standards, or to show . . . that she has done so.” Winfrey v. Chater, 92
F.3d 1017, 1019 (10th Cir. 1996).
Ultimately, if substantial evidence supports the ALJ’s findings and the correct legal
standards were applied, the Commissioner’s decision stands and the plaintiff is not entitled to
relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214, Doyal, 331 F.3d at 760.
B. Sequential Evaluation Process
The SSA has devised a five-step sequential evaluation process to determine disability. See
Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2016).
At the first three steps, the ALJ considers the claimant’s current work activity, the medical
severity of the claimant’s impairments, and the requirements of the Listing of Impairments. See
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App’x 1. If a claimant’s
impairments are not equal to one of those in the Listing of Impairments, then the ALJ proceeds to
the first of three phases of step four and determines the claimant’s residual functional capacity
(“RFC”). See Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). In phase two, the
ALJ determines the physical and mental demands of the claimant’s past relevant work, and in the
third phase, compares the claimant’s RFC with the functional requirements of her past relevant
work to determine if the claimant is still capable of performing her past work. See Winfrey, 92
F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f).

If a claimant is not prevented from

performing her past work, then she is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The
claimant bears the burden of proof on the question of disability for the first four steps, and then

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the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137,
146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987).
If the claimant cannot return to his or her past work, then the Commissioner bears the
burden at the fifth step of showing that the claimant is nonetheless capable of performing other
jobs existing in significant numbers in the national economy. See Thomas, 540 U.S. at 24-25; see
also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step
sequential evaluation process in detail).
IV.

THE ALJ’S DECISION
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since January 6, 2009. AR 361. At step two, the ALJ found that Plaintiff had the following
severe impairments: morbid obesity, diabetes mellitus with peripheral neuropathy, personality
disorder, anxiety, depression, and an unspecified learning disorder. AR 361. The ALJ also
found that Plaintiff was diagnosed with the following non-severe health conditions, which she
considered in determining Plaintiff’s RFC: obstructive sleep apnea, Guillain-Barre syndrome,
narcolepsy 2, vision loss, and recent foot surgery. AR 362. In so finding, the ALJ noted that
“[Plaintiff] did not allege any symptoms or functional limitations as a result of these
impairments, nor did the record show[ ] any examination findings which would support any
functional limitations.” AR 362. The ALJ noted that Plaintiff’s obstructive sleep apnea was
much improved, according to the record, with use of a Continuous Positive Airway Pressure
(“CPAP”) machine. AR 362. The ALJ also considered Plaintiff’s foot surgery, noting that
“there was no indication [Plaintiff]’s foot surgery would restrict [Plaintiff] for 12 consecutive
2

The record actually shows that Plaintiff was never diagnosed with narcolepsy. AR 573-587. As the ALJ
considered narcolepsy in determining Plaintiff’s RFC, essentially this amounts to harmless error. See Allen v.
Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (quoting Gay v. Sullivan, 986 F.2d 1336, 1341 n.3 (10th Cir. 1993))
(concluding error is harmless when it is “minor enough not to undermine confidence in the determination of th[e]
case”).

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months or that he would not have a full recovery as required for a health condition to be
considered a severe impairment.” AR 362. The ALJ continued, stating that even though she
determined these health conditions to be non-severe, “the limiting effects of all [Plaintiff’s]
impairments, even those that were not severe, were considered in determining [Plaintiff’s]
residual functional capacity assessed below.” AR 362. Also at step two, the ALJ discussed
Plaintiff’s alleged degenerative joint disease, which she deemed to be non-medically
determinable because “[Plaintiff] failed to submit medical evidence supporting his allegation[.]”
AR 362-63.
At step three, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 363. In doing so, the ALJ “gave
particular consideration to the obesity and diabetes listings,” but found that “the medical
evidence did not document listing-level severity.” AR 363.
At step four, the ALJ determined Plaintiff’s RFC as the following:
I found [Plaintiff] had the residual functional capacity to perform sedentary work
as defined in 20 CFR 416.967(a), except he could lift, carry, push, and pull 10
pounds, frequently and less than 10 pounds, occasionally; he could sit 6 hours in
an 8-hour workday; he could stand and/or walk 2 hours in an 8-hour workday; he
could frequently perform handling and fingering; he could never crouch, crawl, or
kneel, he could occasionally climb ramps and stairs; he could never climb ropes,
ladders, and scaffolding; he could never work around dangerous machinery or
unprotected heights. Due to moderate limitations in social functioning and
concentration, persistence, or pace, [Plaintiff] was limited to performing simple,
routine, repetitious work with one, two, or three step instructions in a supervised
environment requiring few decisions. Further [Plaintiff] was limited to only
occasional interaction with the public, co–workers, and supervisors.

6

AR 365. In doing so, the ALJ evaluated Plaintiff’s credibility and reviewed medical evidence in
the record. AR 365. In relevant part 3, the ALJ considered the opinions of two consulting
examining physicians, Dr. Amy Kogut and Dr. John Vigil; progress notes from First Choice
Community Healthcare; treatment records from Foot and Ankle Specialists of New Mexico;
Plaintiff’s testimony; and Plaintiff’s work history. AR 362, 367-369. The ALJ also considered
the opinions of two non-examining consulting physicians who provided opinions at the request of
State Disability Determination Services. AR 369.
Dr. Amy Kogut, M.D.
Dr. Amy Kogut conducted a consultative physical examination of Plaintiff on March 28,
2009. AR 366. Plaintiff told Dr. Kogut that he had sleep apnea, diabetes, and Guillain-Barre
syndrome. AR 366. Dr. Kogut observed that Plaintiff walked very slowly with moderate
difficulty and an antalgic gait, but that he did not use an assistive device. AR 255, 366.
Ultimately, Dr. Kogut’s impressions, which were not for diagnostic purposes, were that Plaintiff
“has very inadequate blood sugar control and he does have moderate limitation due to the
inadequacy of diabetes control.” AR 254, 256. Dr. Kogut also observed that Plaintiff had sleep
apnea, opining that the condition was “an ongoing problem,” but that there did not “seem to be
any limitation of function on this basis.” AR 256. Dr. Kogut reflected with respect to Plaintiff’s
Guillain-Barre syndrome that “it is unclear as to the extent of his weakness since age 3 or
whether this is progressive.” AR 256. Lastly, Dr. Kogut observed that Plaintiff was obese, and
that “[t]his [was] a primary problem for this patient and many of his other medical problems are
due to this [one] problem.” AR 256. Dr. Kogut did not make any other findings regarding
3

Plaintiff does not challenge the ALJ’s findings with respect to his mental health, particularly the ALJ’s evaluation
of the opinions of Dr. Louis Wynne, Ph.D., and Dr. Clifford Morgan, Ph.D., who conducted consultative
psychological evaluations of Plaintiff. AR 367-368. I therefore do not discuss the ALJ’s findings regarding these
opinions and Plaintiff’s alleged depression and anxiety. See Berna v. Chater, 101 F.3d 631, 632-33 (10th Cir. 1996)
(“The scope of our review, however, is limited to the issues the claimant properly preserves in the district court and
adequately presents on appeal[.]”).

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Plaintiff’s functional capacities.

The ALJ gave significant weight to Dr. Kogut’s clinical

evaluation because it was based on her personal examination of Plaintiff and “consistent with the
medical evidence as a whole.” AR 367.
Dr. John Vigil, M.D.
Dr. John Vigil conducted a consultative physical examination of Plaintiff on June 6,
2012. AR 333. The examination took thirty minutes, and Dr. Vigil reviewed Plaintiff’s medical
records for one hour. AR 333. Dr. Vigil wrote that Plaintiff had multiple medical problems
including chronic pain, obstructive sleep apnea, poorly controlled diabetes complicated by
neuropathy, morbid obesity, and anxiety and depression.

AR 333.

Dr. Vigil reviewed a

psychological evaluation by Mark Simpson, Psy.D.; medical records from First Choice
Community Healthcare; Dr. Kogut’s report; and Plaintiff’s Self-Functional Report. AR 334. Dr.
Vigil observed that “[t]he quality of [Plaintiff’s] history is poor.” AR 334. Nonetheless, and
perhaps paradoxically, Dr. Vigil also observed that Plaintiff “presents as a credible and reliable
historian.” AR 334.
Dr. Vigil stated that Plaintiff had been diagnosed with painful neuropathy, and also noted
that Plaintiff “has been a fairly noncompliant patient who has had trouble controlling his
diabetes.” AR 334. Plaintiff told Dr. Vigil that he sometimes forgets to take his medication, and
that his mother has to remind him to take it and sometimes even gives him his insulin injections.
AR 334. Plaintiff complained of “chronic burning pain in his extremities, including his hands
and feet[,] which is constant and daily.” AR 334. Plaintiff stated that he had been treated with
pain medication and Neurontin for the pain associated with his neuropathy but that the
medications did not help. AR 334. Plaintiff also stated that he did not take Neurontin because it
worsened his fatigue. AR 335. Plaintiff rated his average pain as six to seven out of ten, with

8

ten being the most severe. AR 334. Plaintiff indicated that the pain is most severe in his hands
and feet, and that he also has aching pain in his hips and knees that is worse with activity and
prolonged standing. AR 334.
Plaintiff told Dr. Vigil that he had obstructive sleep apnea, and admitted that he was not
very compliant with using the CPAP machine. AR 334. Because of his sleep apnea, Plaintiff
stated that he does not sleep very well and is constantly fatigued, which prevents him from
holding a job. AR 334. Plaintiff told Dr. Vigil that he cannot walk more than fifteen to twenty
feet without becoming short of breath. AR 334.
Regarding Plaintiff’s activities of daily living, Plaintiff told Dr. Vigil that he had
difficulty bathing, dressing, and grooming himself, and that his mother assists him with all of
these activities. AR 335. Plaintiff told Dr. Vigil that he was unable to do any housework or yard
work, and is unable to enjoy avocational activities secondary to his pain. AR 335. Plaintiff
scored 137 out of 150 on the Pain Disability Questionnaire that Dr. Vigil administered, which
according to Dr. Vigil “indicat[ed] a severe problem with chronic pain.” AR 335. Dr. Vigil also
administered the Quick Disabilities of the Arm, Shoulder, and Hand (“DASH”) questionnaire on
which Plaintiff scored eighty-six out of one hundred, indicating “a very severe problem with
activities of daily living.” AR 335. In general, Plaintiff complained of lack of energy and
extreme fatigue. AR 335.
Dr. Vigil observed that Plaintiff “exhibit[ed] moderate and appropriate pain behavior
during the examination. He provides good and consistent effort and I do not suspect symptom
magnification or malingering behavior.” AR 336. Dr. Vigil again noted that Plaintiff was a
“poor historian and has difficulty with concentration and memory.” AR 336. Dr. Vigil observed

9

that Plaintiff appeared to be “uncomfortable during the examination,” and that his gait was
unsteady and antalgic. AR 336.
In the assessments portion of his report, Dr. Vigil found that Plaintiff had the following
conditions: (1) chronic pain; (2) diabetes mellitus, poorly controlled with neuropathy; (3)
obstructive sleep apnea with hypersomnia; (4) morbid obesity; (5) hypertension, poorly
controlled; (6) moderately severe depression/anxiety, untreated; (7) probable DJD 4 of the hips
and knees secondary to morbid obesity; and (8) probable social anxiety disorder, untreated. AR
337. In Dr. Vigil’s opinion, Plaintiff was “totally and completely disabled secondary to his
chronic pain and other severe co-morbid medical and psychiatric conditions which are
untreated.” AR 337. Dr. Vigil further opined that Plaintiff’s “medical conditions in combination
preclude him from engaging in any type of significant vocational activity.” AR 337. As the sole
support for this disability finding, Dr. Vigil stated, “Medical records and my evaluation indicate
that [Plaintiff] had significant and substantial pain with even minimal activity as well as at rest
and that he has significant problems with most aspects of activities of daily living.” AR 337.
In the Medical Assessment of Ability to do Work-Related Activities (Physical), Dr. Vigil
concluded that Plaintiff could stand or walk with normal breaks for a total of less than two hours
in an eight hour workday, and that severe chronic pain was the medical finding that supported
that opinion. AR 339. Dr. Vigil also concluded that Plaintiff could sit with normal breaks for a
total of less than four hours in an eight hour workday, and that severe chronic pain was the
medical finding that supported that opinion. AR 339.
The ALJ assigned little weight to Dr. Vigil’s physical functional assessment and reasoned
as follows:

4

Dr. Vigil wrote “DJD” in his report. AR 337. Based on the ALJ’s reference to degenerative joint disease, it is
possible that “DJD” means degenerative joint disease, but Dr. Vigil did not specify. Id.

10

Dr. Vigil apparently relied quite heavily on the subjective report of symptoms and
limitations provided by [Plaintiff], and seemed to uncritically accept as true most,
if not all, of what [Plaintiff] reported. Yet, as explained elsewhere in this
decision, there existed good reasons for questioning the reliability of [Plaintiff]’s
subjective complaints. In addition, treatment records did not detail clinical
support for the opinion that [Plaintiff] was disabled. Therefore, I gave significant
weight to Dr. Vigil’s clinical findings, but little weight to his opinion regarding
[Plaintiff]’s work-like capabilities because it is vague, unsupported, and
inconsistent with the medical record as a whole. Moreover, subsequent treatment
notes document few symptoms that would result in severe functional restrictions
or limitations.
AR 367. The ALJ observed that as of February 2009, Plaintiff reported that he had been off his
medications for one year, despite having been diagnosed with diabetes nine years earlier, “which
was not what one would expect for a totally disabled individual.” AR 366. The ALJ also noted
that in May 2010, Plaintiff stated that he had not been taking his diabetes medication, and in
October 2010 and October 2011, Plaintiff was again out of medications. AR 367. The ALJ
found that “[Plaintiff]’s non-compliance with his recommended medication regimen did not
enhance his overall credibility before this tribunal.” AR 367.
Plaintiff’s testimony
The ALJ noted in her decision that Plaintiff testified during the hearing that he had
difficulty concentrating and needed reminders to take his medications. AR 368. Plaintiff also
testified that he needed a cane to walk, that he could only lift five pounds, that he could only sit
for five to ten minutes at a time, he could only stand for five minutes at a time, and that he could
walk one-half of a city block. AR 368, 385-86. Plaintiff acknowledged that he had used the
cane for only five months prior to the hearing. AR 385. And although the ALJ recalled Plaintiff
testifying that the cane was not prescribed by a physician, AR 368, Plaintiff did testify that his
podiatrist recommended that he use the cane. AR 385.

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Regarding activities of daily living, Plaintiff testified that his mother did all the cooking
and cleaning because he gets “winded easily” and “it really begins to hurt after a while.” AR
387. When counsel asked Plaintiff whether he gets winded from a medical problem, Plaintiff
testified, “[p]robably weight.” AR 387. Later during the hearing, Plaintiff told the ALJ that he
sometimes prepares meals if they are simple, but does not wash dishes or load them in the
dishwasher. AR 395. Plaintiff testified that he goes shopping, but when he does he “ride[s]
around in one of the little shopping carts.” AR 395. When Plaintiff is at home, which Plaintiff
testified is one hundred percent of the time, he either watches television or sits in a chair and
thinks. AR 388. Plaintiff testified that he does laundry every two weeks, and that he and his
mother have to go to the laundromat. AR 398. Plaintiff also makes his bed and sweeps or
vacuums the floors about every two weeks. AR 398. Plaintiff does not mop, but cleans his own
bathroom about once a month. AR 398. Plaintiff testified that shaving and brushing his teeth
make his arms hurt. AR 399. Plaintiff also does not take out the trash. AR 400.
Regarding current compliance with treatment, Plaintiff testified that he still uses his
CPAP machine, and that he’s “become a lot more regular” about taking his medication because
he uses a pillbox, which helps him remember to take his medication. AR 401.
Plaintiff’s counsel asked him what problem he would have in doing his dream job, if he
could obtain such a job. AR 404. Plaintiff responded, “I have a hard time concentrating on what
I’m doing . . . I have a hard time maintaining what I’m working on.” AR 404-05. He explained
that he loses focus on understanding what he is trying to do, and has a problem with staying
awake. AR 405.
The ALJ questioned Plaintiff about his foot surgery. AR 391. Plaintiff testified that his
foot cast would be removed several days after the hearing, and that if his foot was healed

12

enough, he would wear a boot. AR 391. Plaintiff did not testify that he expected to not be able
to walk for any extended period of time.
At step four, the ALJ found that Plaintiff had no past relevant work.
Accordingly, the ALJ proceeded to step five.

AR 369.

Based on Plaintiff’s age, education, work

experience, and RFC, the ALJ found that Plaintiff could perform other jobs that exist in
significant numbers in the national economy.

AR 369.

These jobs, as described by the

vocational expert, Mary Weber, included table worker, Dictionary of Occupational Titles
(“DOT”) 5 #739.687-182; stone setter, DOT #735.687-034; and nut sorter, DOT #521.687-086.
AR 370. Ms. Weber also testified that if Plaintiff could stand or walk less than two hours in
eight hours and sit for less than four hours in eight hours, those limitations would rule out these
jobs. AR 408. Finally, the ALJ found that Plaintiff had not been under a disability, as defined
by the Social Security Act, since January 6, 2009, and denied the claim. AR 370-71.
V.

ANALYSIS
A.

The ALJ Properly Evaluated Dr. Vigil’s Opinion

Plaintiff maintains in his Motion that the ALJ entirely rejected Dr. Vigil’s opinion, but
her decision reflects a different evaluation. The ALJ assigned significant weight to Dr. Vigil’s
clinical findings, but gave little weight to his opinion regarding Plaintiff’s “work-like capabilities
because it is vague, unsupported, and inconsistent with the medical record as a whole.” AR 367.
The sole issue raised on appeal is whether the ALJ adequately supported with substantial
evidence her decision to give little weight to Dr. Vigil’s opinion regarding Plaintiff’s functional
limitations and disability. See Pl.’s Mot. 23-27.

5

The DOT includes detailed descriptions of jobs (classified by their exertional and skill requirements) that exist in
the national economy. 20 C.F.R. § 220.134 (2017). Regulations require the Commissioner to take administrative
notice of job information provided by the DOT. 20 C.F.R. § 404.1566 (2017).

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20 C.F.R. § 416.927(c) sets forth factors for how an ALJ should evaluate medical
opinions.

“Medical opinions are statements from acceptable medical sources that reflect

judgments about the nature and severity of [the claimant’s] impairment(s), including [the
claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant’s] physical or mental restrictions.” 20 C.F.R. § 416.927(a)(1).
To determine the weight given to a medical opinion, the ALJ utilizes the following factors:
examining relationship, treatment relationship, supportability, consistency, specialization, and
other factors brought to the ALJ’s attention or of which the ALJ is aware.

20 C.F.R. §

416.927(c). Whether a claimant is disabled or unable to work is an issue reserved to the
Commissioner. 20 C.F.R. § 416.927(d). Dr. Vigil was a consultative examiner who examined
Plaintiff a single time for 30 minutes. AR 333-334.
Plaintiff argues that the ALJ may not reject an opinion solely due to his or her own
credibility judgments, speculation, or lay opinion, citing to McGoffin v. Barnhart, 288 F.3d 1248,
1252 (10th Cir. 2002). 6 Pl.’s Mot. 24. First, McGoffin concerned an ALJ’s rejection of a
treating physician’s assessment because of the ALJ’s own credibility judgments, speculation, or
lay opinion, and is thus distinguishable from this case because Dr. Vigil was only a consultative
examiner. See 288 F.3d at 1252. Second, as McGoffin points out, the ALJ “is required to give
controlling weight to a treating physician’s well-supported opinion, so long as it is not
inconsistent with other substantial evidence in the record.” Id. (quoting Drapeau v. Massanari,
255 F.3d 1211, 1213 (10th Cir. 2001)). In this case, Dr. Vigil was not a treating physician, nor
does Plaintiff claim he was. In evaluating the medical opinion of a consultative examiner such
as Dr. Vigil, 20 C.F.R. § 416.927(c) instructs that the ALJ may take into account supportability
6

The Court notes that Plaintiff provided the incorrect citation for McGoffin v. Barnhart, citing to 122 F.3d 1248,
1252 (10th Cir. 2002), rather than 288 F.3d 1248 (10th Cir. 2002). Pl.’s Mot. 24. The Court assumes in its analysis
that Plaintiff intended to cite to 288 F.3d 1248.

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and consistency, both of which the ALJ considered here in assigning weight to Dr. Vigil’s
opinion. AR 367.
First, the ALJ’s determination that Dr. Vigil’s opinion concerning Plaintiff’s work-like
capabilities was unsupported is corroborated by substantial evidence. The ALJ discussed that
Dr. Vigil based his opinion on Plaintiff’s subjective complaints of pain. AR 367. The ALJ did
not view Plaintiff to be credible because of his lack of compliance with his prescribed treatment,
which the ALJ supported with specific references to the record. AR 366-67. Tellingly, Plaintiff
does not challenge the ALJ’s finding that Plaintiff was not credible. Plaintiff asks only whether
such a finding – that Plaintiff was not credible – is sufficient to support the ALJ’s evaluation of
Dr. Vigil’s opinion regarding Plaintiff’s work-like capabilities. Pl.’s Mot. 24.
Plaintiff ignores that the ALJ cited reasons other than Plaintiff’s lack of credibility for
assigning little weight to one portion of Dr. Vigil’s opinion. The ALJ wrote that “treatment
records did not detail clinical support for the opinion that [Plaintiff] was disabled.” AR 367. In
response, Plaintiff argues that “the medical record contains numerous references to complaints of
pain between 2009 and 2012.”

Pl.’s Mot. 25.

There are references in disability reports

completed by Plaintiff to constant pain [AR 192, 208], Plaintiff not being able to sleep because
of pain and difficulty breathing [AR 171], his feet hurting [AR 175-76], and to ulcers on his
hands, legs, and feet from neuropathy. AR 208. There are also progress notes from First Choice
Community Healthcare between 2009 and 2012 referencing constant pain in Plaintiff’s legs and
head and numbness in his hands [AR 280], chronic pain in Plaintiff’s hips, legs, knees, and back
[AR 325], and intermittent nerve pain in his feet, arms, and back. AR 321. A consultative
psychiatric examiner, Dr. Simpson, also noted that Plaintiff told him that his feet hurt, he was in
pain, and Dr. Simpson noted a chronic pain condition. AR 224-25. Additionally, Plaintiff told

15

Dr. Kogut in March 2009 that he had persistent foot pains and burning, and Dr. Kogut observed
that Plaintiff had an antalgic gait. AR 254-55.
However, records between 2009 and 2012 do not discuss how Plaintiff’s pain impacted
his ability to sit, stand, walk, or generally work. The only source of information regarding
Plaintiff’s chronic pain is Plaintiff himself. During the hearing, Plaintiff did not testify that
chronic pain would prevent him from doing his dream job if he could get it. See AR 404.
Plaintiff testified that his problems with concentration and staying awake would prevent him
from doing his dream job. AR 404-405. Although Dr. Kogut and Dr. Vigil observed Plaintiff to
have an antalgic gait [AR 254, 336], that alone does not constitute clinical support that Plaintiff
suffered from chronic pain, much less that he was disabled because of it. Dr. Vigil wrote only
“chronic severe pain” for the medical findings supporting his opinion. AR 339. Furthermore,
Plaintiff’s mere references to complaints of pain do not constitute sufficient evidence to establish
disability. See Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (“A claimant’s
subjective allegation of pain is not sufficient in itself to establish disability.”). The only medical
source to conclude that Plaintiff was so functionally limited because of chronic pain that he
could not work was Dr. Vigil, and Dr. Vigil’s source of information regarding that pain was
Plaintiff. AR 333-40. See also AR 254-256 (Dr. Kogut’s report), AR 308-15 (Dr. Brady’s
physical RFC assessment), and AR 258-65 (L. Holly’s physical RFC assessment).
Second, the ALJ’s determination that Dr. Vigil’s functional assessment was inconsistent
with the record is supported by substantial evidence. A non-examining consultative physician,
Dr. Eileen Brady, and a non-examining consultant, L. Holly 7, rendered functional assessments
for Plaintiff. Dr. Brady concluded that Plaintiff could stand or walk for at least two hours in an

7

It is unclear from the record whether L. Holly is a physician as she did not sign her report with M.D., D.O., or
another signifier of her occupation. AR 265.

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eight hour day and that he could sit for about six hours in an eight hour day. AR 309. L. Holly
concluded that Plaintiff could stand or walk and sit about six hours in an eight hour day. AR
259. The ALJ assigned “some weight” to these functional assessments. AR 369. Both of these
functional assessments are inconsistent with Dr. Vigil’s assessment that Plaintiff could only
stand or walk for less than two hours in an eight hour day and could only sit for less than four
hours in an eight hour day. AR 339. Furthermore, Plaintiff’s own testimony contradicts Dr.
Vigil’s extremely restrictive functional assessment, as Plaintiff testified that he mostly sits during
the day. AR 388.
Dr. Vigil’s examination revealed only that Plaintiff was not malingering, appeared
uncomfortable during the examination, had decreased sensation to light touch, had moderate
tenderness of the hips and the knees without swelling or effusions, and had normal range of
motion with pain of these joints and pain with weight bearing. AR 335-36. Dr. Vigil also
described Plaintiff’s gait as unsteady and antalgic, stated that Plaintiff could not walk on his toes
or heels, and was unable to squat or hop. AR 336. Based on these findings, Dr. Vigil submitted
a restrictive functional assessment that Plaintiff could stand or walk for less than two hours in an
eight hour day and could sit for less than four hours in an eight hour day. AR 339. Dr. Vigil did
not discuss how he determined Plaintiff’s restrictive functional assessment based on the
information Dr. Vigil had before him following a 30 minute examination and his review of
Plaintiff’s medical records. The ALJ was permitted to discount Dr. Vigil’s opinion because it
was inconsistent with both his exam findings and the evidence in the record. See Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (affirming ALJ’s rejection of consulting
physician’s opinion that claimant’s migraines were disabling because “he did not have a treating

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relationship with [the claimant], he based his opinion on a single, subjective report given to him
by [the claimant], and his opinion was not supported by the evidence of record.”).
Plaintiff’s second argument, that the ALJ misapprehended the nature of diabetic
peripheral neuropathy, amounts to a request that this Court reweigh the evidence presented to the
ALJ, which the Court declines to do. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)) (“[W]e will not reweigh the
evidence or substitute our judgment for the Commissioner’s.”).

In his Motion, Plaintiff

essentially summarizes records from his podiatrist and relies on unadmitted evidence describing
in general terms peripheral neuropathy. The ALJ considered the records from the podiatrist in
finding that Plaintiff’s foot surgery was a non-severe impairment. AR 362. The ALJ did,
however, find that Plaintiff’s diabetes mellitus with peripheral neuropathy was a severe
impairment. AR 361.
To date, however, Plaintiff has adduced no evidence to support a finding of disability
based on peripheral neuropathy. Indeed, despite having the opportunity to do so, Plaintiff’s
counsel neglected to ask any questions about the impact of the peripheral neuropathy on Plaintiff
during the hearing. And, although the ALJ solicited testimony from Plaintiff about his foot
surgery, Plaintiff testified only that he expected to have his cast removed and that he did not
expect to go to physical therapy. AR 391. Plaintiff testified that he does not contribute to
household chores not because of his peripheral neuropathy, but because he gets “winded easily”
and “tired.” AR 387. When asked why he could not work, Plaintiff similarly stated, “I’m
always having a hard time concentrating on what I’m doing. I’m always falling asleep. I’m
depressed. I hurt.” AR 390. Plaintiff never testified how his pain impacted his ability to work,
and did not specifically refer to his neuropathy. The Court finds therefore that the ALJ’s

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evaluation of Dr. Vigil’s opinion is supported by substantial evidence, and Plaintiff’s argument
that this Court should reweigh the evidence concerning his peripheral neuropathy does not
change that determination.
VI.

CONCLUSION
For the reasons articulated above, the Court holds that the ALJ’s decision was supported

by substantial evidence and the correct legal standards were applied.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reverse and Remand for a
Rehearing, With Supporting Memorandum [ECF No. 18] IS HEREBY DENIED.
IT IS FURTHER ORDERED that the Commissioner’s final decision is HEREBY
AFFIRMED and that the instant cause be DISMISSED.
IT IS SO ORDERED.

________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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