Asberry v. Commissioner of Social Security Administration

Filing 20

MEMORANDUM OPINION AND ORDER. The Court affirms the Commissioner's decision. Signed by Magistrate Judge Suzanne Mitchell on 5/9/22. (lb)

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JEFFREY ASBERRY,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social
Security Administration,
Defendant.

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Case No. CIV-21-396-SM

MEMORANDUM OPINION AND ORDER
Jeffrey Asberry (Plaintiff) seeks judicial review of the Commissioner of
Social Security’s final decision that he was not “disabled” under the Social
Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). The parties have consented
to the undersigned for proceedings consistent with 28 U.S.C. § 636(c). Docs. 13,
14.
Plaintiff asks this Court to reverse the Commissioner’s decision and to
remand the case for further proceedings, arguing the Administrative Law
Judge (ALJ) erred in his residual functional capacity1 (RFC) analysis and
failed to sua sponte consider a closed period of disability. Doc. 15, at 4-24. After
a careful review of the record (AR), the parties’ briefs, and the relevant

Residual functional capacity “is the most [a claimant] can still do despite
[a claimant’s] limitations.” 20 C.F.R. §§ 404.1545(a)(1).

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authority, the Court affirms the Commissioner’s decision. See 42 U.S.C.
§ 405(g).2
I.

Administrative determination.
A.

Disability standard.

The Social Security Act defines “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration
requirement applies to the claimant’s inability to engage in any substantial
gainful activity, and not just [the claimant’s] underlying impairment.” Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535
U.S. 212, 218-19 (2002)).
B.

Burden of proof.

Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that he can no longer engage in his prior work activity.”
Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that
prima facie showing, the burden of proof then shifts to the Commissioner to
Citations to the parties’ pleadings and attached exhibits will refer to this
Court’s CM/ECF pagination. Citations to the AR will refer to its original
pagination.

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show Plaintiff retains the capacity to perform a different type of work and that
such a specific type of job exists in the national economy.
C.

Relevant findings.
1.

The ALJ’s findings.

The ALJ assigned to Plaintiff’s case applied the standard regulatory
analysis to decide whether Plaintiff was disabled during the relevant
timeframe.3 AR 10-27; see 20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue,
561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The
ALJ found Plaintiff:
(1)

had not engaged in substantial gainful activity since
September 17, 2014, the alleged onset date;

(2)

had the following severe impairments: chronic kidney
disease; obesity; hypertension; a history of prostate cancer;
and status-post diverticular bleed with surgical repair;

(3)

had no impairment or combination of impairments that met
or medically equaled the severity of a listed impairment;

(4)

had the RFC to perform medium work in that he can lift and
carry fifty pounds occasionally and twenty-five pounds
frequently, can sit for about six hours during an eight-hour
workday, can stand and walk for about six hours during an
eight-hour workday, and can frequently climb, balance,
stoop, kneel, crouch, and crawl;

An ALJ initially denied Plaintiff’s claim for benefits in a decision issued
March 28, 2018. AR 198-206. But the Appeals Council remanded this case for
a hearing before “a different [ALJ]” after Plaintiff’s “representative raised a
challenge to the Appointments Clause of the Constitution.” Id. at 213.
3

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(5)

was capable of performing his past relevant work as a
machinist as that job is generally performed in the national
economy; and so,

(6)

had not been under a disability from September 17, 2014,
through June 8, 2020.

AR 13-27.
2.

Appeals Council’s findings.

The Social Security Administration’s Appeals Council denied Plaintiff’s
request for review, see id. at 1-6, making the ALJ’s decision “the
Commissioner’s final decision for [judicial] review.” Krauser v. Astrue, 638 F.3d
1324, 1327 (10th Cir. 2011).
II.

Judicial review of the Commissioner’s final decision.
A.

Review standard.

The Court reviews the Commissioner’s final decision to determine
“whether substantial evidence supports the factual findings and whether the
ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326,
1330 (10th Cir. 2016). Substantial evidence is “more than a scintilla, but less
than a preponderance.” Lax, 489 F.3d at 1084; see also Biestek v. Berryhill, 139
S. Ct. 1148, 1154 (2019) (“It means—and means only—such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”). A
decision is not based on substantial evidence “if it is overwhelmed by other

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evidence in the record.” Wall, 561 F.3d at 1052. The Court will “neither reweigh
the evidence nor substitute [its] judgment for that of the agency.” Newbold v.
Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013).
B.

Issues for judicial review.

Plaintiff asserts (1) the ALJ’s RCF is “contrary to law and not supported
by substantial evidence” (Doc. 15, at 4-22); and (2) the ALJ should have “at the
very least” considered a closed period of disability between September 2014
and October 2015 (id. at 23-24). The Court finds no basis for reversal.
C.

Plaintiff’s relevant medical history.

Plaintiff is a high school graduate and military veteran with vocational
training. AR 41. His past work experience is as a machinist. Id. at 28, 47. He
claims he became disabled in September 2014. Id. at 10, 31.
The record shows that, on September 17, 2014, Plaintiff sought care in
the emergency room of Mercy Hospital in Oklahoma City for rectal bleeding.
Id. at 649. Doctors admitted Plaintiff to the hospital that same day to treat
“[a]cute lower GI bleeding.” Id. at 654-55. On September 18, 2014, Dr. Michael
O. Riggs performed an exploratory laparotomy with right hemicolectomy and
mobilization of splenic flexure to treat Plaintiff’s lower gastrointestinal
bleeding from splenic flexure diverticula and sigmoid colon. Id. at 630, 685-87.
Post-operative complications required Dr. Riggs to perform a second surgery
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on October 8, 2014, to repair a pelvic abscess, and a third surgery on October
15, 2014, to repair a bowel leak. Id. at 626, 628, 688-92. On October 31, 2014,
doctors released Plaintiff from the hospital in “improving condition.” Id. at 694.
Plaintiff lost considerable weight during his hospitalization and required
a temporary colostomy. Id. at 1131. His condition steadily improved though
and, by July 2015, his primary care physician, Dr. Steven A. Burner, observed
that Plaintiff had regained a significant amount of weight and Plaintiff told
him he was feeling “much stronger” and his appetite had improved. Id. at 1137,
1139, 1146, 1152, 1157, 1159, 1168. During a July 30, 2015 office visit with
Nephrologist Dr. Kaelin C. Merveldt at Oklahoma Kidney Care, Dr. Merveldt
observed that Plaintiff “looked great” after successful drug therapy for acute
renal failure. Id. at 610-14; see id. at 1343-44. Plaintiff reported to Dr. Merveldt
that he had gained twenty-five pounds and that he felt “great.” Id. at 610.
On August 12, 2015, Dr. Scott surgically removed Plaintiff’s colostomy.
Id. at 624. When Dr. Scott released Plaintiff from the hospital on August 22,
2015, he noted that Plaintiff’s bowels were “functioning well” and that Plaintiff
was “eating, stooling, and urinating without difficulty.” Id. at 622, 624.
In the ensuing months Plaintiff had unremarkable office visits with Dr.
Burner where Plaintiff reported he was regaining weight, was feeling better
and stronger and was exercising. Id. at 1170, 1175. At a follow-up appointment
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with his oncologist Dr. Christopher L. Thompson on December 9, 2015,4
Plaintiff was feeling better and had improved energy. Id. at 1290. He told Dr.
Thompson that he was “enjoying retirement and working on art [and] boxing
training.” Id. In another follow-up appointment on June 6, 2016, Plaintiff
reported he felt “well with great energy and he [was] working out a lot.” Id. at
1397; see id. at 1421.
Plaintiff was involved in a motor vehicle accident on September 30, 2016.
Id. at 1449-50, 1466-68. Plaintiff had resulting neck, back, and hip pain with
headaches. Id. He sought chiropractic care at Cimarron Chiropractic in
October 2016. Id. at 1634-40. Plaintiff began treatment with Stuart R.
Hershberger, D.C., and, by January 2017, he reported that Plaintiff’s
headaches had improved in number and severity, his arm and leg symptoms
had disappeared, his neck was stiff and sore, and his shoulder was a little sore
but his low back had improved. Id. at 1651. Plaintiff’s range of motion had
improved and he was tolerating the treatment well. Id. A January 2017 image
of Plaintiff’s cervical spine showed no acute bony abnormality or fracture and
only a minimal slippage of C4 onto C5. Id. at 1902-03. By March 24, 2017, Dr.
Hershberger released Plaintiff from care “as guarded” and to return on an as

4

Plaintiff was treated for prostate cancer in 2010. Id. at 1290.
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needed basis. Id. at 1901. Plaintiff’s headaches had improved to “minimal,” his
range of motion was “a lot better without pain,” and his “low back, shoulders,
etcetera” were “doing better without pain.” Id.
Plaintiff had no other documented visits with his chiropractor. But Dr.
Hershberger provided a letter to Plaintiff in April 2020 stating that, although
he had released Plaintiff from treatment in January 2017, Plaintiff “continues
to have periodic exacerbation which render him totally dysfunctional, i.e.
unable to do physical activity, headaches equivalent to migraines, etc.” Id. at
1894. He stated that Plaintiff’s “exacerbation[]s are intense, frequent, and
unpredictable resulting in [Plaintiff] not having a regular schedule in his daily
life whether it is with regard to employment or daily functioning.” Id.
On March 1, 2017, Dr. Elizabeth Hooper performed an outpatient hernia
repair on Plaintiff. Id. at 1504, 1506-07. Plaintiff tolerated the surgery well
and, when released, Dr. Hooper restricted him from lifting greater than twenty
pounds for two weeks. Id. at 1510. At his two-week follow-up appointment, Dr.
Hooper observed Plaintiff had done well postoperatively and had minimal
discomfort at the surgical site. Id. at 1624. He had been tolerating a regular
diet and had normal bowel function. Id. She instructed Plaintiff to avoid any
heavy lifting or straining until four to six weeks past the operation date. Id. at
1625.
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Thereafter, Plaintiff’s visits with Dr. Burner were unremarkable with
Plaintiff complaining of slight headaches intermittently and tenderness
around his healed surgical incisions, no recurrent hernia, and routine
monitoring of his blood pressure and kidney function. Id. at 1671-72, 1696-99,
1729-30, 1751-52, 1774-75, 1793-94, 1839-40, 1870-72. Plaintiff continued his
exercise regimen of four to five times a week with no decrease in exercise
tolerance. Id. at 1671, 1696, 1699, 1729, 1751, 1774, 1839.
Images of Plaintiff’s cervical spine taken in January 2020 revealed
minimal degenerative changes and an image of his head revealed no acute
intracranial abnormalities. Id. at 1884, 1888.
Plaintiff saw Dr. Merveldt one time in 2018, two times in 2019, and one
time in 2020. Id. at 1914, 1937. Dr. Merveldt noted that Plaintiff had gained
back his weight, his serum creatinine number had improved and was stable
and he was “doing well.” Id. Dr. Merveldt ordered an ultrasound of Plaintiff’s
kidneys on September 4, 2018, which showed normal echogenicity in both
kidneys, no hydronephrosis, and no visualized abnormalities. Id. at 1965.
Dr. Merveldt wrote a letter on May 6, 2019, stating that she had treated
Plaintiff in June 2015 for acute renal failure. Id. at 1661. Dr. Merveldt stated
that, “at that time,” Plaintiff had been “unable to work” due to his

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malnourished and weakened condition. Id. Dr. Merveldt made the same
statements in a letter dated March 31, 2020. Id. at 1905.
D.

Evidence of Plaintiff’s activities of daily living.

Plaintiff’s wife completed a function report concerning Plaintiff’s
activities of daily living. Id. at 507-514. She stated Plaintiff performs
“minimal” tasks during the day but has no problems performing his personal
hygiene, feeding himself, or taking medication, and he needs no special
reminders to do so. Id. at 508-09. He has “no limits on household chores which
do not require heavy lifting [and] bending” and needs no encouragement to
complete those tasks. Id. at 509. He has “occasional pain in his back/neck area”
which affects his sleep, and his ability to lift, squat, and bend has been
impacted by his health issues, but she did not state how much. Id. at 508, 512.
She reported Plaintiff can walk, drive, ride in a car, shop, and go out alone. Id.
at 510. He does not use any assistive devices to get around and he takes no
medications for his conditions. Id. at 513-14. He has no problems handling
money or bank accounts, and he pays bills. Id. at 511. He enjoys drawing. Id.
He gets along with others, and he socializes with others over the phone and in
person. Id. 511-12. He handles stress and changes in his routine moderately
well. Id. at 513.

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State Agency Consultant Dr. William W. Bell called Plaintiff’s wife in
January 2016 to discuss Plaintiff’s activities of daily living. Id. at 176, 180. Dr.
Bell reported that she told him Plaintiff was “out at the gym working out.” Id.
at 180.
At a hearing the ALJ conducted on May 7, 2020, Plaintiff testified that
he sometimes has backaches and a little confusion when he drives far distances
but, otherwise he is “pretty okay” to drive. Id. at 42. He has stomach pains
from his surgeries which deter him from picking up things. Id. at 43-44. He
has trouble sleeping. Id. at 43. He takes medication for high blood pressure.
Id. He sometimes has headaches but he only takes medication for them if they
are “pretty severe.” He can frequently “pick up” fifty pounds and “[m]ove it
around a little bit” during the day. Id. at 45. And he sometimes sleeps for a few
hours during the day depending on what he has done or how tired he is or if he
is “not feeling good.” Id. at 46.
E.

Analysis.
1.

Substantial evidence shows the ALJ considered all of
Plaintiff’s impairments in his formulation of the RFC.

The ALJ explained his RFC assessment for medium exertion as follows:
Based on the foregoing [recitation of evidence and medical
opinions], the undersigned finds the claimant has the above
residual functioning capacity assessment, which is supported by

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the claimant’s extensive activities of daily living and the medical
evidence of record.
More specifically, the undersigned has considered the claimant’s
cardiovascular issues, as well as residual symptoms related to his
additional physical impairments when taking into account the
claimant’s residual functional capacity and has restricted him to
the medium exertional range limiting the amount of exertion or
weight lifted or carried due to the medical evidence of record.
Further limitations were also afforded to the claimant limiting his
ability to climb, balance, stoop, kneel, crouch, and crawl, also due
to the level of exertion required by such tasks, as well as the
evidence in the record. Such limitations are also consistent with
the claimant’s activities of daily living, the medical evidence of
record, and the claimant’s own indication that he is able to
frequently lift and carry 50 pounds.
In brief summation, although the undersigned acknowledges that
the claimant’s impairments do affect his residual functional
capacity, such limitations do not wholly erode his ability to perform
his past relevant work . . . .
AR 26-27.
Plaintiff contends the ALJ erred in his finding that Plaintiff’s selfdescribed functional limitations were not consistent with or supported by the
record as a whole because the ALJ failed to properly assess his symptoms as
required by 20 C.F.R. § 404.1529. See Doc. 15, at 7. Plaintiff admits the ALJ
found he had medically determinable impairments that could reasonably be
expected to produce some of his symptoms. Id. (citing AR 24); see SSR 16-3p,
2017 WL 5180304, at *3 (Oct. 25, 2017) (“First, we must consider whether there
is an underlying medically determinable physical or mental impairment(s)
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that could reasonably be expected to produce an individual’s symptoms, such
as pain.”).5 But he disagrees with the ALJ’s determination that Plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other
evidence in the record . . . .” AR 24. Plaintiff argues the ALJ wrongfully
determined this because: (1) he improperly rejected medical opinions from his
treating sources;6 and (2) he disregarded “numerous” § 404.1529(c) factors
“weighing in [his] favor,” along with his “stellar work history.” Id. at 8. The
Court considers and rejects each argument.
a.

Applicable law.

An ALJ is tasked with determining whether a claimant’s statements
about the intensity, persistence, and limiting effects of his or her symptoms
are consistent with the objective medical evidence, statements from medical
sources, or any other sources who might have information about the claimant’s

SSR 16-3p applies to decisions on or after March 28, 2016, and
superseded SSR 96-7p, 1996 WL 374186 (July 2, 1996). See SSR 16-3p, 2017
WL 5180304, at *1. SSR 16-3p eliminated the use of the term “credibility” to
“clarify that subjective symptom evaluation is not an examination of [a
claimant’s] character.” Id. at *2.

5

The guidelines for evaluating opinion evidence found in 20 C.F.R.
§ 404.1527 apply here because Plaintiff filed his benefits claim before March
27, 2017.

6

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symptoms. 20 C.F.R. § 404.1529; see SSR 16-3p, 2017 WL 5180304, at *6 (“If
we cannot make a disability determination or decision that is fully favorable
based solely on objective medical evidence, then we carefully consider other
evidence in the record in reaching a conclusion about the intensity, persistence,
and limiting effects of an individual’s symptoms. Other evidence that we will
consider includes statements from the individual, medical sources, and any
other sources that might have information about the individual’s symptoms,
including agency personnel, as well as the factors set forth in our
regulations.”).
Additional factors the ALJ considers are: (1) Plaintiff’s daily activities;
(2) the location, duration, frequency, and intensity of her pain or other
symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the
type, dosage, effectiveness, and side effects of medication; (5) treatment, other
than medication, Plaintiff has received; (6) any measures other than treatment
an individual uses or has used to relieve pain or other symptoms; and (7) any
other factors concerning functional limitations and restrictions. 20 C.F.R.
§ 404.1529(c)(3); see also SSR 16-3p, 2017 WL 5180304, at *7-8. Statements
the ALJ finds inconsistent with all the evidence will lead to a determination
that “the individual’s symptoms are less likely to reduce his or her capacities
to perform work-related activities.” SSR 16-3p, 2017 WL 5180304, at *8.
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Consistency findings are “peculiarly the province of the finder of fact,”
and courts should “not upset such determinations when supported by
substantial evidence.” See Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir.
2008) (quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)). Provided
the ALJ links his assessment of Plaintiff’s consistency to specific evidence in
the record, this Court affords substantial deference to the ALJ’s determination.
See. e.g., Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012) (“But
so long as the ALJ ‘sets forth the specific evidence he relies on in evaluating
the claimant’s credibility,’ he need not make a ‘formalistic factor-by-factor
recitation of the evidence.’” (quoting Qualls v. Apfel, 206 F.3d 1368, 1372 (10th
Cir. 2000))). “[C]ommon sense, not technical perfection,” is this Court’s guide.
Id.
b.

The ALJ properly assigned little weight to Dr.
Merveldt’s and Dr. Hershberger’s statements.

“Medical opinions are statements from acceptable medical sources that
reflect judgments about the nature and severity” of a claimant’s impairment,
“including their symptoms, diagnosis and prognosis,” what they “can still do
despite their impairments,” and their “physical or mental restrictions.” 20
C.F.R.

§ 404.1527(a)(1).

The

applicable

regulations

governing

the

consideration of medical opinions distinguish between “treating” physicians,

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“examining” physicians, and “nonexamining” (or “consulting”) physicians. See
id. § 404.1527(c). For an ALJ to evaluate and assign weight to a medical
opinion, the issuing physician must provide “judgment” about the nature and
severity of a claimant’s limitations or “information” about the activities he or
she could still perform despite these limitations. Cowan, 552 F.3d at 1189.
An ALJ must “give consideration to all the medical opinions in the record
[and] discuss the weight he assigns to such opinions.” Keyes-Zachary, 695 F.3d
at 1161. If a treating source’s opinion on the nature and severity of a claimant’s
impairments is “‘well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the case record,’” then an ALJ must give it controlling
weight. Tuttle v. Comm’r, 853 F. App’x 246, 249 (10th Cir. 2021) (quoting 20
C.F.R. § 404.1527(c)(2) (internal alteration omitted)). But if a treating source
opinion is not entitled to controlling weight, then the ALJ should determine
whether it is entitled to any weight by considering:
(1) [T]he 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.
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Krauser, 638 F.3d at 1331; see Tuttle, 853 F. App’x at 249 n.3. That said, so
long as the ALJ provides a well-reasoned discussion, the failure to “explicitly
discuss” all the factors “does not prevent [the] court from according [the ALJ’s]
decision meaningful review.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.
2007). The ALJ must simply provide “‘good reasons’ for the weight assigned.”
Tuttle, 853 F. App’x at 249 (quoting Oldham, 509 F.3d at 1258).
i.

Dr. Merveldt’s statements.

The Court finds the ALJ’s discussion of Dr. Merveldt’s statements was
sufficient for the Court’s review:
Consideration has been given for the May 6, 2019, and
March 31, 2020 medical statements provided by Dr.
Merveldt, discussed in greater detail above (Ex. 18F; and
20F, P. 13). As a threshold matter, Dr. Merveldt is a medical
provider for the claimant and, as such, is privy to unique and
detailed knowledge as to the claimant’s prognosis, responses
to treatment, and functional abilities. However, and of
import, Dr. Merveldt did not provide any form of assessment
of the claimant’s limitations and how they interfered with his
ability to perform work activity. Alternatively, Dr. Merveldt
simply provided a blanket statement that the claimant was
“unable to work at that time” (Id.). In addition, Dr. Merveldt
did not outline when the claimant became unable to work
again, or to what degree the claimant remained limited.
Further, Dr. Merveldt’s own treatment records from July 30,
2015, October 9, 2018, April 9, 2019, and October 22, 2019,
are at odds with the conclusion that the claimant remained
disabled and unable to work. Furthermore, the same is also
inconsistent with the extended medical treatment record
and the claimant’s activities of daily living. Accordingly, the
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undersigned affords the May 6, 2019 and March 31, 2020
opinions of Dr. Merveldt little weight.
AR 25 (emphasis added).
Plaintiff argues that the ALJ gave “no obvious consideration” that Dr.
Merveldt’s opinion was based on “actual examinations” of Plaintiff or that she
was a specialist in her field which should have garnered more weight. Doc. 15,
at 12. Plaintiff acknowledges but quickly discounts the ALJ’s determination
that Dr. Merveldt’s opinion was neither consistent with nor supported by her
records or Plaintiff’s medical history. Id. at 12-13 & n.5. He then asks the Court
to reweigh the evidence to find that, even though his symptoms have “waxed
and waned” over the years, he “cannot perform sustained work activity and is
disabled as a matter of law.” Id. at 10, 13-17. The Court, of course, cannot
engage in a reweighing of the evidence. Newbold, 718 F.3d at 1262.
The Court finds no error in the ALJ’s determination that Dr. Merveldt’s
opinion was entitled to little weight. The ALJ conducted an exhaustive review
of Plaintiff’s applicable medical history–including Dr. Merveldt’s examinations
of Plaintiff and test results. AR 15-22, 25. He also acknowledged that Dr.
Merveldt had treated Plaintiff and was “privy to unique and detailed
knowledge” of his “prognosis, responses to treatment, and functional abilities.”
Id. at 25. He then correctly noted that Dr. Merveldt’s statements were not a

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clear assessment of Plaintiff’s ongoing physical limitations or his ability to
perform work activity. Id.; see Cowan, 552 F.3d at 1189 (noting that the
treating doctor’s statement was not a medical opinion because it “did not
contain [the doctor’s] judgment about the nature and severity of [the Plaintiff’s]
physical limitations, or any information about what activities [the Plaintiff]
could still perform”).
Plaintiff argues that Dr. Merveldt opined Plaintiff’s chronic kidney
disease made him too weak and malnourished to work. Doc. 15, at 9-10. But,
as the ALJ articulated, any such opinion, at least past 2015, was inconsistent
both with Dr. Merveldt’s treatment records, Plaintiff’s extended medical
treatment record and the claimant’s activities of daily living. AR 25. He
explained this determination by citing to the record and after considering Dr.
Merveldt’s longitudinal treatment relationship with Plaintiff along with the
other record evidence. Id.; see 20 C.F.R. § 404.1527(c). And the Court’s review
of the record, as outlined above, supports the ALJ’s findings that Dr. Merveldt’s
statement, as Plaintiff interprets it, is inconsistent with Dr. Merveldt’s records
and the overall record. Because the ALJ explained the weight he gave to Dr.
Merveldt’s statements, and the evidence supports the ALJ’s findings, the Court
cannot substitute its judgment for his findings. See, e.g., White v. Barnhart,
287 F.3d 903, 908 (10th Cir. 2001) (concluding that the reviewing court’s
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analysis ends where “the record contains substantial support for the ALJ’s
decision” of the weight given to a treating physician, because it “may neither
reweigh the evidence nor substitute [its] judgment for the Commissioner’s”
(internal quotation marks, citation, and alternations omitted)); see also
Raymond v. Astrue, 621 F.3d 1269, 1272 (10th Cir. 2009) (affirming the ALJ’s
decision to give treating physician’s opinion little weight because it was
“inconsistent with other medical evidence”).
ii.

Dr. Hershberger’s statement.

Dr. Hershberger, a chiropractor, is not considered an acceptable medical
source. Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007). The factors in
§ 404.1527(c) “explicitly apply only to the evaluation of medical opinions from
acceptable medical sources.” Fulton v. Colvin, 631 F. App’x 498, 503 (10th Cir.
2015) (internal quotation marks omitted). But they do “represent basic
principles that apply to the consideration of all opinions from medical sources
who are not acceptable medical sources.” Id. Not every factor, however, may
apply and the ALJ is “not required to expressly discuss those factors in his
decision.” Id. For a nonacceptable medical source, the ALJ’s decision is
sufficient if it permits the reviewer to “‘follow the adjudicator’s reasoning.’”
Keyes-Zachary, 695 F.3d at 1164 (quoting SSR 06-03p, 2006 WL 2329939, at
*6).
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The Court finds the ALJ’s discussion of Dr. Hershberger’s statement was
sufficient for the Court to follow his reasoning:
Consideration has been given to the April 15, 2020 statement
provided by Dr. Hershberger, also discussed above (Ex. 20F, P. 2).
As a threshold matter, Dr. Hershberger did not provide any
functional limitations in connection with his statements, aside from
indicating that they are periodic and frequent. In addition, Dr.
Hershberger’s opinions are not consistent with the medical evidence
of record, the claimant’s very broad range of activities of daily
living, or Dr. Hershberger’s own treatment notations. They are also
not supported by the medical evidence of record, or Dr.
Hershberger’s treatment history with the claimant. More
specifically, although Dr. Hershberger indicates that the claimant
continued to experience “intense, frequent, and unpredictable”
exacerbations of his symptoms, inclusive of headaches and
physical limitations, his treatment record does not support this
conclusion. More directly, during the claimant’s most recent
medical treatment with Dr. Hershberger, dated March 24, 2017,
the claimant’s headaches were remarked to be minimal currently
and only occurring once or twice per week; his range of motion was
better without pain; his lower back, shoulder, and etcetera were
doing better without pain; his range of motion was within
acceptable limits without pain in the cervical and lumbar; and,
paraspinal musculature swelling was decreased and trigger points
were improved (Ex. 20F, P. 9). Further, the claimant was
remarked to be “tolerating the procedure well” at all 13
interactions between Dr. Hershberger and the claimant of record,
spanning November 18, 2016, through March 24, 2017 (Ex. 20F, P.
8 through 9). Finally, although Dr. Hershberger provided a
statement on April 15, 2020, there is no record of a treatment
interaction with the claimant subsequent to March 24, 2017,
making his direct knowledge of the claimant’s ongoing limitations
of limited probative value. As such, the undersigned affords the
April 15, 2020 statement of Dr. Hershberger little weight.
AR 26 (emphasis added).

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Plaintiff complains the ALJ did not “identify” Dr. Hershberger by his
treating relationship with Plaintiff and failed to give his opinion more weight
because of it. Doc. 15, at 11. He also complains the ALJ gave “no obvious
consideration” that Dr. Hershberger had examined him. Id. at 12. He then asks
the Court to reweigh the evidence to find him disabled “due to unpredictable
exacerbations of pain and fatigue” which prevent him from performing
sustained work activity. Id. at 10, 13-16. The Court declines to do so.
The ALJ acknowledged Dr. Hershberger’s treating relationship with
Plaintiff and elaborated on the inconsistencies between Dr. Hershberger’s
statement and Dr. Hershberger’s own treatment records as well as the record
as a whole. AR 26. The ALJ also discussed that, while Dr. Hershberger had
examined Plaintiff through March 2017, he had not treated Plaintiff for over
three years when he penned his statement. Id. The Court finds the ALJ’s
analysis of Dr. Hershberger’s statement and his finding that it was entitled to
little weight sufficed under the applicable regulations. See, e.g., Paulsen v.
Colvin, 665 F. App’x 660, 666 (10th Cir. 2016) (holding ALJ’s analysis of a
nurse’s “opinion under the regulations that apply to nonacceptable medical
sources” sufficed because the court was able to “‘follow the [ALJ’s] reasoning.’”
(quoting Keyes-Zachary, 695 F.3d at 1164)).

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The Court finds no basis for reversal in the ALJ’s treatment of Dr.
Merveldt’s and Dr. Hershberger’s statements.7
c.

The ALJ reasonably evaluated Plaintiff’s
subjective
complaints
and
his
credibility/consistency.

Plaintiff complains the ALJ failed to properly consider the credibility of
his complaints of pain and other symptoms in connection with his reported
daily activities, his reported complaints of fatigue, weakness, and dizziness,
and his prior work record. Doc. 15, at 18-21 (citing 20 C.F.R. § 404.1529(c)).
The ALJ found that Plaintiff’s statements about the intensity, persistence, and
limiting effects of his symptoms were not entirely consistent with the medical
evidence or Plaintiff’s activities of daily living. AR 24. He explained:
More specifically, although the claimant alleges disabling
limitations as a result of his impairments, the same is not
supported by the medical record and the claimant’s reported
activities of daily living. More specifically, within her function
Plaintiff also asserts that the ALJ, instead of rendering the RFC
determination based on his “lay interpretation” of the medical evidence, should
have “recontacted any of the sources for clarification, scheduled review of the
record and testimony by a medical expert, or even arranged for a consultative
examination, which was never done.” Doc. 15, at 17. If Plaintiff is arguing that
the evidence was too inconsistent for the ALJ to make a determination, this
argument is waived for lack of development. See Murrell v. Shalala, 43 F.3d
1388, 1389 n.2 (10th Cir. 1994) (holding inadequately framed or developed
“perfunctory complaints” are insufficient to invoke review). Further, “‘the ALJ,
not a physician, is charged with determining a claimant’s RFC from the
medical record.’” Watts v. Berryhill, 705 F. App’x 759, 762 (10th Cir. 2017)
(quoting Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004)).

7

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report, the claimant’s wife reported a very broad range of activities
of daily living with little limitations in the claimant’s activities of
daily living. In addition, periodically through the record the
claimant reports that he has been exercising or working out most,
and nearly all, days of the we[e]k. In addition, he reports that he
lifts weights and performing cardio exercises. Furthermore, he
specifically indicated that he was able to lift and carry 50 pounds
frequently during the day. He also testified that he is able to drive
a car and that he is able to perform simple math calculations. In
brief summation, although the undersigned agrees that the
claimant experiences some limitations as a result of his
impairments, such limitations are not supported to the degree
alleged by the claimant.
Id.
The Court finds that the ALJ set out the appropriate analysis, and cited
evidence supporting his reasons for finding that Plaintiff’s subjective
complaints were not believable to the extent Plaintiff alleged. Plaintiff argues
he was more limited in his activities of daily living because of his pain,
weakness, and dizziness and he only worked out because his doctors told him
to. Doc. 15, at 19-20. He also complains that his “perfect work history” should
have held sway. Id. at 20-21. But the ALJ, as required, gave clear and specific
reasons that were specifically linked to the evidence in the record. AR 24-26.
See Qualls, 206 F.3d at 1372. He noted inconsistencies between Plaintiff’s
subjective statements and (i) his medical examinations, AR 15-24; (ii) his
described activities of daily living both during the hearing and as he expressed
them to his doctors, id. at 18-24; his wife’s description of his activities of daily
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living, id. at 23-24; and his longitudinal record of care describing Plaintiff’s
recovery of his strength, appetite, and stamina, id. at 15-27. While the ALJ did
not mention Plaintiff’s work history, he did state he considered the entire
record before making his determination. Id. at 15. This was sufficient as the
ALJ need not make a “formalistic factor-by-factor recitation of the evidence.”
Qualls, 206 F.3d at 1372. The Court finds no error in the ALJ’s analysis of
Plaintiff’s subjective statements.
d.

Conclusion.

The ALJ’s conclusion that Plaintiff is capable of medium work with
exertional limitations was based on all the relevant evidence, which does not
support further limitations. Because substantial evidence supports this
conclusion, Plaintiff did not meet his burden to show that his impairments
prevent him from performing his past relevant work as a Machinist as it is
generally performed. The Court, therefore, finds no basis for reversal.
2.

The ALJ did not err by failing to consider a closed
period of disability.

Plaintiff asserts the ALJ should have considered whether he was
disabled between September 2014 and October 2015 because of the “sheer
volume of treatment” he received in that time-period. Doc. 15, at 23-24 (citing

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20 C.F.R. § 404.1594 and id. § 404.1505).8 He argues that, even though he later
improved, he was surely disabled during this time because an employer would
have no tolerance for him being off task during the workday or absent
altogether. Id. at 23. The Court disagrees with Plaintiff’s assertion.
A disability means “an inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A) (emphasis added). Implicit in the ALJ’s conclusion that
Plaintiff was not disabled during the relevant time period is that Plaintiff was
not entitled to a closed period of disability at any time during that same period.
While the record established that Plaintiff was hospitalized and going
through post-surgical recovery beginning in mid-September 2014, he recovered
within months with no work-related limitations by his doctors. AR 15-16. In
June 2015, Plaintiff was successfully treated with medication for renal failure

“‘In a ‘closed period’ case, the decision maker determines that a new
applicant for disability benefits was disabled for a finite period of time which
started and stopped prior to the date of his decision.’” Tuttle, 853 F. App’x at
249 (quoting Shepherd v. Apfel, 184 F.3d 1196, 1199 n.2 (10th Cir. 1999)).
8

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and by July 30, 2015, he had regained twenty-five pounds and looked great. Id.
at 17.
Neither of these periods lasted for a continuous period of not less than
twelve months. Thus, Plaintiff has failed to establish the ALJ should have
considered a closed period of disability.
III.

Conclusion.
Based on the above, the Court affirms the Commissioner’s decision.
ENTERED this 9th day of May, 2022.

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