Turner v. Astrue
Filing
21
MEMORANDUM DECISION AFFIRMING Commissioner's decision. Signed by Magistrate Judge Samuel Alba on 7/12/11. (alp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
JEREMY D. TURNER,
Plaintiff,
Case No. 1:10-cv-115-SA
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
MEMORANDUM DECISION AND
ORDER
Defendant.
Before the court is an action filed by Plaintiff, Jeremy D.
Turner, asking the court to reverse the final agency decision
denying his application for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”) under the Social
Security Act.
See 42 U.S.C. §§ 401-434, 1381-1383f.
The
Administrative Law Judge (“ALJ”) found that Plaintiff was capable
of performing his past relevant work as a security guard and
sales representative, as well as other jobs in the national
economy; as a result, the ALJ determined that Plaintiff was not
disabled.
Plaintiff challenges these findings, arguing that they
are not supported by substantial evidence and that they are based
on significant legal errors.
Having carefully reviewed and considered the ALJ’s decision,
the record, and the parties’ pleadings, the court concludes that
the ALJ’s decision is not legally erroneous and is supported by
substantial evidence.
BACKGROUND
On April 10, 2007, Plaintiff applied for Disability
Insurance Benefits and Supplemental Security Income under Titles
II and XVI of the Social Security Act, alleging a disability
onset date of July 5, 2006 (Doc. 7, the certified copy of the
transcript of the entire record of the administrative proceedings
relating to Jeremy D. Turner (hereafter “Tr. __”) 179-185, 186192).
Plaintiff’s applications were denied initially and upon
reconsideration (Tr. 111-113, 114-116).
a hearing before an ALJ (Tr. 117).
January 8, 2009 (Tr. 22).
Then Plaintiff requested
That hearing was held on
The ALJ issued a written decision on
May 13, 2009, determining that Plaintiff was not disabled within
the meaning of the Act from July 5, 2006, through the date of the
decision, May 13, 2009 (Tr. 9, 12-21).
Plaintiff then filed a
request for review of the ALJ’s decision, which was denied on
June 3, 2010 (Tr. 1-2), making the ALJ’s decision the
Commissioner’s final decision for purposes of judicial review.
See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981,
416.1481.
On July 26, 2010, after receiving the Appeals Councils’
denial of his request for review, Plaintiff filed his complaint
2
in this case, which was assigned to United States District Judge
Dee Benson.
(Doc. 3.)
On October 7, 2010, the Commissioner
filed his answer, along with the Administrative Record.
(Docs.
6, 7.)
Plaintiff filed his opening brief on November 5, 2010 (Doc.
12), the Commissioner filed his answer brief on December 3, 2010
(Doc. 13), and Plaintiff filed his reply brief on December 21,
2010 (Doc. 14).
On March 28, 2011, the parties consented to jurisdiction by
a United States Magistrate Judge, including entry of final
judgment, with appeal to the United States Court of Appeals for
the Tenth Circuit, under 28 U.S.C. § 636(c) and rule 73 of the
Federal Rules of Civil Procedure.
The case was then reassigned
to United States Magistrate Judge Samuel Alba.
(Doc. 20.)
STANDARD OF REVIEW
The court “review[s] the Commissioner’s decision to
determine whether the factual findings are supported by
substantial evidence in the record and whether the correct legal
Lax v. Astrue, 489 F.3d 1080, 1084 (10th
standards were applied.”
Cir. 2007) (quotations and citations omitted).
“Substantial
evidence is ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion,’” Doyal v. Barnhart,
331 F.3d 758, 760 (10th Cir. 2003) (citation omitted), and
“requires more than a scintilla but less than a preponderance,”
Lax, 489 F.3d at 1084.
The Commissioner’s findings, “if
3
supported by substantial evidence, shall be conclusive.”
U.S.C. § 405(g).
42
“In reviewing the ALJ’s decision, [this court
may] neither reweigh the evidence nor substitute its judgment for
that of the [ALJ].”
Madrid v. Barnhart, 447 F.3d 788, 790 (10th
Cir. 2006 (quotations and citation omitted).
“The failure to
apply the correct legal standard or to provide this court with a
sufficient basis to determine that appropriate legal principles
have been followed [are] grounds for reversal.”
Jensen v.
Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (quotations and
citation omitted).
A five-step evaluation process has been established for
determining whether a claimant is disabled.
See 20 C.F.R. §§
404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see also Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the fivestep process).
If a determination can be made at any one of the
steps that a claimant is or is not disabled, the subsequent steps
need not be analyzed.
See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4).
Step one determines whether the claimant
is presently engaged in substantial gainful
activity. If [the claimant] is, disability
benefits are denied. If [the claimant] is
not, the decision maker must proceed to step
two: determining whether the claimant has a
medically severe impairment or combination of
impairments. . . . If the claimant is unable
to show that his impairments would have more
than a minimal effect on his ability to do
basic work activities, he is not eligible for
disability benefits. If, on the other hand,
the claimant presents medical evidence and
4
makes the de minimis showing of medical
severity, the decision maker proceeds to step
three.
Williams, 844 F.2d at 750-51 (quotations and citations omitted);
see 20 C.F.R. §§ 404.1520(a)(4)(i)-(ii), 416.920(a)(4)(i)-(ii).
“Step three determines whether the impairment is equivalent
to one of a number of listed impairments that . . . are so severe
as to preclude substantial gainful activity . . . . If the
impairment is listed and thus conclusively presumed to be
disabling, the claimant is entitled to benefits.
If not, the
evaluation proceeds to the fourth step . . . .”
Williams, 844
F.2d at 751 (quotations and citations omitted); see 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii).
At the fourth step, the
claimant must show that the impairment prevents performance of
his “past relevant work.”
416.920(a)(4)(iv).
20 C.F.R. §§ 404.1520(a)(4)(iv),
“If the claimant is able to perform his
previous work, he is not disabled.”
Williams, 844 F.2d at 751.
If, however, the claimant is not able to perform his previous
work, he “has met his burden of proof, establishing a prima facie
case of disability.”
Id.
At this point, “[t]he evaluation process . . . proceeds to
the fifth and final step.”
Id.
At this step, the burden of
proof shifts to the Commissioner, and the decision maker must
determine “whether the claimant has the residual functional
capacity [(“RFC”)] . . . to perform other work in the national
economy in view of his age, education, and work experience.”
5
Id.; see 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
If it
is determined that the claimant “can make an adjustment to other
work,” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is
not disabled.
If, on the other hand, it is determined that the
claimant “cannot make an adjustment to other work,” 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v), he is disabled and entitled
to benefits.
ANALYSIS
Plaintiff makes four main arguments in challenging the ALJ’s
decision: (1) the ALJ erred by failing to properly determine
whether Mr. Turner met or equaled Listing 12.04; (2) the ALJ
failed to properly evaluate the opinions of Mr. Turner’s treating
physicians; (3) the ALJ erred by failing to properly assess Mr.
Turner’s RFC; and (4) the ALJ erred by failing to ask a
hypothetical question that was supported by the record.
The
court addresses each of these arguments in turn.
A.
Listing 12.04
First, Plaintiff challenges the ALJ’s finding at step three
of the analysis that Plaintiff did not meet a listed impairment.
Specifically, Plaintiff argues that the ALJ committed reversible
error in finding that Mr. Turner’s impairments did not meet or
equal Listing 12.04, concerning affective disorders.
At step three of the five-step disability analysis, the ALJ
must determine whether any medically severe impairment, alone or
in combination with the other impairments, meets or is equivalent
6
to any of a number of listed impairments that are so severe as to
preclude substantial gainful activity.
See 404 C.F.R. § §
404.1525-404.1526 & pt. 404, subpt. P, app. 1; Fischer-Ross v.
Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).
The claimant has
the burden to present evidence establishing that his impairments
meet or equal a listed impairment.
See id.
To meet a listing, a
claimant must show that his impairment “satisfies all of the
criteria of that listing, including any relevant criteria in the
introduction, and meets the duration requirement.”
404.1525(c)(3).
20 C.F.R. §
To equal a listing, a claimant must show medical
findings of “equal medical significance” to the required
criteria.
20 C.F.R. § 404.1526(B)(1)(ii).1
To satisfy Listing 12.04, a claimant must present evidence
meeting the requirements of both parts A and B of the listing, or
of part C.
See 404 C.F.R. pt. 404, subpt. P, app. 1, § 12.04.
The Commissioner concedes that Plaintiff’s medical evidence of
current bipolar syndrome satisfies part A of Listing 12.04; the
issue is whether Plaintiff’s medical evidence satisfies either
part B or part C.
To satisfy part B, Plaintiff must present evidence of at
least two of the following: (i) marked restriction in activities
of daily living; (ii) marked difficulties in maintaining social
Although the Title XVI regulation differs in part, it does
not differ in any way material to the above analysis. See 20
C.F.R. § 416.926.
1
7
functioning; (iii) marked difficulties in maintaining
concentration, persistence, or pace; or (iv) repeated episodes of
decompensation, each of extended duration.
See id.
The ALJ
found that the evidence presented did not satisfy the
requirements of part B.
Regarding part B, the ALJ found that
Plaintiff had “mild restriction in activities of daily living;
moderate difficulty maintaining social functioning; moderate
difficulty maintaining concentration, persistence or pace; and no
episodes of enduring decompensation.”
(Tr. 16.)
The court has carefully reviewed Plaintiff’s arguments
challenging the ALJ’s part B finding and concludes they lack
merit.
Although the ALJ partially based his finding on the fact
that Plaintiff was not admitted to the ER and was evaluated to be
only a mild-moderate risk of self harm at that time, the ALJ also
based his decision on other factors.
For example, the ALJ noted
Plaintiff’s GAF score over the past year was 55, indicating only
moderate impairment.
Also, the ALJ noted that at the July 28,
2006 visit, Plaintiff had only mild symptoms and difficulty
focusing a little bit.
Although at the August 25, 2006 visit
Plaintiff was having more problems and cycling a lot, after his
medications were adjusted, Plaintiff was doing significantly
better.
The ALJ noted that in May 2009 Plaintiff was started on
Prozac because he had done very well with Prozac in the past, and
in October 2008 Plaintiff was not taking any medications and was
doing well.
(Tr. 16.)
Based on these observations, the ALJ
8
noted that “though there is clearly some variation of mood, it
does not appear in the record to be out of control,” and points
to when Plaintiff went to the ER with suicidal thoughts in July
2006 to illustrate that when it would seem Plaintiff had more
marked symptoms, he instead was still evaluated as being only
mild-moderate in severity.
(Id.)
Based on these observations,
the ALJ determined that Plaintiff’s overall functional impairment
was “moderate at most.”
(Id.)
Thus, the ALJ set forth
substantial evidence in the record to support his part B finding.2
The court next turns to Plaintiff’s argument regarding part
C of Listing 12.04.
As relevant here, to meet part C of Listing
12.04, the medical evidence must establish chronic affective
disorder of at least two years’ duration and a residual disease
process resulting in “such marginal adjustment that even a
minimal increase in mental demands or change in the environment
would be predicted to cause the individual to decompensate.”
404
C.F.R. pt. 404, subpt. P, app. 1, § 12.04.
In his opening brief, Plaintiff relies exclusively on Dr.
Houston’s testimony in arguing that his impairments satisfied
Listing 12.04; however, as the Commissioner points out, Dr.
Houston’s testimony did not establish that Plaintiff satisfied
either the part B or part C criteria of Listing 12.04. Regarding
the B criteria, Dr. Houston explained that Plaintiff had moderate
to marked limitations in two areas, which fluctuated over time
depending on his mood and medication; Dr. Houston did not testify
that Plaintiff had marked limitations in two areas at the same
time or on a sustained basis. Thus, Dr. Houston’s testimony
supports that Plaintiff experienced some of the requisite part B
criteria some of the time, but that he did not experience all of
the criteria at the same time or for a sustained basis, as
required by the listing. See 20 C.F.R. § 404.1525(c)(4).
2
9
The ALJ’s part C analysis was as follows:
The undersigned has also considered whether
the “paragraph C” criteria are satisfied. In
this case, the evidence fails to establish
the presence of the “paragraph C” criteria.
There is no evidence that the claimant meets
the “C” criteria.
(Tr. 16.)
Although this analysis of the C criteria is inadequate
because it is conclusory, that error is harmless because claimant
has not shown that her impairments meet the “C” criteria.
See
Fischer-Ross v. Barnhart, 431 F.3d 729, 733-34 (10th Cir. 2005).
Plaintiff asserts that Dr. Houston provided “uncontroverted
testimony that the ‘C’ criteria are met” (Doc. 12, at 10);
however, the record does not support that assertion.
What Dr.
Houston actually stated was that Plaintiff’s “waxing and waning
of symptoms . . . seems to follow a residual disease process
concept” and that Plaintiff “fits in [the] ballpark” of “marginal
adjustments.”
(Tr. 69.)
Significantly, Dr. Houston did not
testify that “even a minimal increase in mental demands or change
in the environment would be predicted to cause [Plaintiff] to
decompensate” 404 C.F.R. pt. 404, subpt. P, app. 1, § 12.04(c);
rather, Dr. Houston testified that Plaintiff never had episodes
of decompensation of extended duration (Tr. 67).
Furthermore, as set forth by the Commissioner in his answer
brief (Doc. 13, at 13-17), other evidence in the record supports
the ALJ’s finding regarding whether Plaintiff met a listed
impairment.
Such evidence includes - as noted by the ALJ - that
10
Plaintiff was no longer on medication in late 2008 yet was doing
well - evidence that belies the notion that he had achieved only
a precarious “marginal adjustment” and was on the verge of
decompensation with only slight changes in his environment or
medication, as required by the “C” criteria.
As a result, the court concludes that substantial evidence
supported the ALJ’s decision that Plaintiff’s impairments did not
meet or equal the requirements of a listed impairment, and that
that decision was free of reversible legal error.3
B.
Treating Physician
Plaintiff challenges the ALJ’s evaluation of the opinions of
Drs. Bryan and Mansfield, Plaintiff’s treating physicians.
In deciding how much weight to give a
treating source opinion, an ALJ must first
determine whether the opinion qualifies for
controlling weight. To make this
determination, the ALJ . . . must first
consider whether the opinion is
well[]supported by medically acceptable
clinical and laboratory diagnostic
techniques. If the answer to this question
Plaintiff contends that the ALJ committed reversible error
because “there is sufficient evidence in the record to create a
question as to whether [Plaintiff] meets Listing 12.04" and
“there is nothing in the ALJ findings that conclusively negates
the possibility that [Plaintiff] meets” the criteria of the
listing. (Doc. 12, at 10.) In making this argument, Plaintiff
appears to misunderstand this court’s role. Under the applicable
standard of review, this court focuses on whether substantial
evidence supports the ALJ’s actual finding, regardless of whether
the evidence might have also supported a different finding. See
Lax, 489 F.3d at 1084. “In reviewing the ALJ’s decision, [this
court may] neither reweigh the evidence nor substitute its
judgment for that of the [ALJ].” Madrid v. Barnhart, 447 F.3d
788, 790 (10th Cir. 2006 (quotations and citation omitted).
3
11
is “no,” then the inquiry at this stage is
complete. If the ALJ finds that the opinion
is well[]supported, he must then confirm that
the opinion is consistent with other
substantial evidence in the record. If the
opinion is deficient in either of these
respects, then it is not entitled to
controlling weight.
Even if a treating physician’s opinion
is not entitled to controlling weight,
treating source medical opinions are still
entitled to deference and must be weighed
using all of the factors provided in [20
C.F.R. §] 404.1527. Those factors are: (1)
the length of the treatment relationship and
the frequency of examination; (2) the nature
and extent of the treatment relationship,
including the treatment provided and the kind
of examination or testing performed; (3) the
degree to which the physician’s opinion is
supported by relevant evidence; (4)
consistency between the opinion and the
record as a whole; (5) whether or not the
physician is a specialist in the area upon
which an opinion is rendered; and (6) other
factors brought to the ALJ’s attention which
tend to support or contradict the opinion.
Under the regulations, the agency
rulings, and [Tenth Circuit] case law, an ALJ
must give good reasons . . . for the weight
assigned to a treating physician’s opinion .
. . that are sufficiently specific to make
clear to any subsequent reviewers the weight
the adjudicator gave to the treating source’s
medical opinion and the reason for that
weight. If the ALJ rejects the opinion
completely, he must then give specific,
legitimate reasons for doing so.
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004)
(quotations and citations omitted) (sixth alteration in
original); see also 20 C.F.R. § 404.1527(d).
12
As with other evidentiary matters, when an ALJ is
considering medical opinion evidence, it is the ALJ’s role to
weigh and resolve evidentiary conflicts and inconsistencies.
See, e.g., Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir.
2000); Eggleston v. Bowen, 851 F.2d 1244, 1247 (10th Cir. 1988).
In addition, any opinion that a claimant is disabled “is not
dispositive because final responsibility for determining the
ultimate issue of disability is reserved to the [Commissioner].”
Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027, 1029
(10th Cir. 1994); see also, 20 C.F.R. § 404.1527(e).
Plaintiff complains that the ALJ did not expressly state
what weight he gave to the following opinions of Dr. Bryan: (1)
Plaintiff could stand/walk for four hours at a time (stand for
two hours and walk for two hours); (2) he could sit for two hours
at a time; and (3) he could never squat or crawl.
11 (citing Tr. 294).)
(Doc. 12, at
As to the first opinion, however, the ALJ
plainly adopted Dr. Bryan’s view.
The ALJ expressly mentioned
this opinion and the ALJ’s RFC assessment was consistent with
this opinion (Tr. 19).
The ALJ’s finding that Plaintiff could
stand/walk for three to four hours at a time was essentially the
same as Dr. Bryan’s opinion that Plaintiff could stand/walk for
four hours at a time (Tr. 17).
Thus, there was no prejudicial
error with respect to that opinion.
As for Dr. Bryan’s opinion that Plaintiff could sit for only
two hours at a time, the ALJ did not afford controlling weight to
13
that opinion, given that the ALJ expressly mentioned that opinion
and given that the ALJ found that Plaintiff could sit for three
to four hours at a time (Tr. 17, 19).
Of course, the difference
between Dr. Bryan’s opinion and the ALJ’s finding was not
significant (about one hour).
In any event, any error in the ALJ’s failure to explain why
he did not fully adopt Dr. Bryan’s opinion on this point was
harmless.
The ALJ ultimately found, based on the vocational
expert’s testimony, that Plaintiff could perform his past work as
a security guard and sales representative, which constituted
light work (Tr. 20).
Light work does not require sitting for
more than two hours per day (total), and sitting generally occurs
only intermittently during the day.
31251, at *6.
See SSR 83-10, 1983 WL
Thus, even if the ALJ had adopted Dr. Bryan’s view
that Plaintiff could not sit for more than two hours at a time,
the vocational expert and the ALJ would have still found that
Plaintiff could do his past light work.
error did not prejudice Plaintiff.
Therefore, the alleged
See Allen v. Barnhart, 357
F.3d 1140, 1145 (10th Cir. 2004) (holding that the principle of
harmless error applies to Social Security disability cases); St.
Anthony v. U.S. Dep’t of Health and Human Servs., 309 F.3d 680,
691 (10th Cir. 2002) (“[T]he party challenging the action below
bears the burden of establishing that the error prejudiced the
party.”); see also Shinseki v. Sanders, 129 S. Ct. 1696, 1706
(2009) (recognizing that “the burden of showing that an error is
14
harmful normally falls upon the party attacking the agency’s
determination”).
Furthermore, Plaintiff’s past work did not require any
squatting or crawling.
See DOT #372.667-034, 1991 WL 673100
(security guard); DOT #279.357-014, 1991 WL 672538 (sales
representative).
Thus, the ALJ’s decision not to adopt Dr.
Bryan’s prohibition on those activities did not affect his
conclusion that Plaintiff could do his past work.
Plaintiff,
therefore, has failed to establish prejudicial error with respect
to Dr. Bryan’s opinions.
Regarding Dr. Mansfield, the ALJ gave much weight to Dr.
Mansfield’s treatment notes, but the ALJ declined to give
significant weight to the doctor’s January 2009 opinion (on the
check-the-box form) that Plaintiff had various extreme
limitations precluding all work (Tr. 19).
The ALJ gave several
specific, legitimate reasons for his decision.
First, the ALJ explained that Dr. Mansfield’s 2009 form
opinion “clearly contradict[ed] the notes in the treatment
records in which he passed the physical examinations several
times with normal findings during the relevant period.”
19.)
The ALJ’s reasoning is supported by the record.
(Tr.
Regarding
Plaintiff’s mental impairments, Dr. Mansfield’s treatment records
showed that, while Plaintiff continued to carry diagnoses of
mental impairments and took relevant medication at times, his
functioning was mostly normal (i.e., there was little indication
15
of mental limitations) (Tr. 373-84).
In fact, as the ALJ
observed, Dr. Mansfield found that, by November 2008, Plaintiff
was off psychiatric medications and doing well (Tr. 16, 373).
This November 2008 treatment record was Dr. Mansfield’s most
recent note before he completed the 2009 form, in which he
suddenly opined that Plaintiff had extreme functional
limitations.
Regarding Plaintiff’s physical impairments, Dr. Mansfield’s
examinations (from 2006 through 2008) consistently revealed
mostly normal findings, including only mild back problems (mild
degenerative disease, no radicular pain and normal straight leg
raise tests) (Tr. 277, 278, 279, 280, 373-84).
In fact, over
this time, Plaintiff rated his back pain as mild (ranging from 0
to 4 on the pain scale), and he reported that his back
medications were “very helpful in controlling his back spasms”
(Tr. 277; see also 255, 260, 267, 270).
In the fall of 2008, Dr.
Mansfield noted that Plaintiff passed his physical examination
(i.e., the examination was “normal”) in preparation for joining
the National Guard (Tr. 375-77).4
Dr. Mansfield also noted that
Plaintiff erroneously asserts that the fact that the
National Guard did not accept him “indicates that the results of
his physicals demonstrated that he was not able to work.” (Doc.
12, at 13.) On the contrary, he admitted to Dr. Mansfield that
the National Guard did not accept him because he “carries a
diagnosis of bipolar disorder,” not due to any physical problem
(Tr. 373).
4
16
Plaintiff’s sleep apnea was being treated by a full face C-PAP
mask, which apparently was a new development (Tr. 373).
Thus, as the ALJ found, Dr. Mansfield’s treatment notes did
not support the extreme limitations he identified on the form he
completed for Plaintiff’s disability attorney.
See Castellano,
26 F.3d at 1029 (ALJ may properly discount treating physician’s
opinion that is not supported by his notes and is merely
conclusory); 20 C.F.R. § 404.1527(d)(2)-(4) (ALJ should consider
if an opinion is well supported, as well as its consistency with
other evidence); see also White v. Barnhart, 287 F.3d 903, 907-08
(10th Cir. 2002) (treating physician’s opinion may be rejected
where the physician did not explain the reasons for new
limitations mentioned in a later assessment).
The ALJ also explained that Dr. Mansfield’s 2009 form
opinion “also contradict[ed] the opinion of the treating
orthopedic doctors and the agency reviewing specialists” (Tr.
19), for the opinions of Dr. Bryan, the state agency medical
experts, and the MRI results showing only mild back problems (Tr.
19, see Tr. 283, 326-33), were inconsistent with Dr. Mansfield’s
2009 form opinion.
See 20 C.F.R. § 404.1527(d)(4); Eggleston v.
Bowen, 851 F.2d 1244, 1247 (10th Cir. 1988).
Plaintiff challenges
the ALJ’s weighing of Dr. Mansfield’s opinion against the other
doctors’ opinions (Doc. 12, at 13-14); however, Plaintiff is
essentially asking this court to reweigh the evidence, which the
court may not do.
See Oldham, 509 F.3d at 1257 (“To the extent
17
that [plaintiff] is asking this court to reweigh the evidence, we
cannot do so.”)
This court may only review the sufficiency of
the evidence, not its weight.
See id.
The court concludes that
the evidence was sufficient to support the ALJ’s assessment of
both Dr. Mansfield’s and Dr. Bryan’s opinions.
C. RFC Analysis
The court next turns to Plaintiff’s argument that the ALJ’s
RFC assessment failed to account for Plaintiff’s alleged hearing
impairment and sleep apnea.
(Doc. 12, at 14-16.)
The Commissioner contests Plaintiff’s argument by arguing
that although Plaintiff referred to a hearing impairment or a
functional limitation related to his hearing in the initial
documents he completed when applying for benefits, Plaintiff
effectively abandoned this allegation before the ALJ.
at 22.)
(Doc. 13,
At the administrative hearing, the ALJ asked Plaintiff’s
counsel to discuss the impairments that contributed to
Plaintiff’s alleged disability.
Plaintiff’s counsel did not
mention a hearing impairment (Tr. 29-31).
Further, Plaintiff’s
counsel did not question Plaintiff about a hearing impairment at
the administrative hearing.
(Tr. 34-48.)
not testify to any hearing problems at all.
In fact, Plaintiff did
Thus, the
Commissioner argues, the ALJ’s decision not to include hearing
limitations in the RFC assessment was not surprising, but was
actually entirely reasonable and consistent with Plaintiff’s
testimony and arguments at the administrative hearing.
18
In a similar case, the Tenth Circuit rejected such belated
attempts to rely on alleged impairments that were not alleged at
the administrative hearing.
(10th Cir. 2009).
See Wall v. Astrue, 561 F.3d 1048
In Wall, the claimant “never alleged that she
suffered from a severe mental disability at her administrative
hearing,” Id. at 1062.
Also, “[a]lthough the ALJ gave Claimant’s
counsel several opportunities to develop Claimant’s case,
Claimant’s counsel also failed to raise the issue of a severe
cognitive impairment or suggest that the record required
development in that regard.”
Id.
The Tenth Circuit emphasized
that “an ALJ is generally entitled to ‘rely on the claimant’s
counsel to structure and present claimant’s case in a way that
the claimant’s claims are adequately explored.’” Id. (quoting
Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 2004)).
Because “nothing justifie[d] excusing Claimant’s counsel from
this important duty,” the court held that “the ALJ exercised good
judgment in refusing to delve more deeply into the mental
impairments that Claimant now emphasizes on appeal.”
Id.; see
also id., at 1063 (“an ALJ’s duty to develop the record is not
unqualified”) (emphasis in original).
The Tenth Circuit
concluded that, because neither the claimant nor her counsel
claimed at the hearing that a mental impairment contributed to
her inability to work, “the ALJ could reasonably assume” that
claimant’s alleged mental impairment “had ‘no bearing on the
19
question of [her] alleged disability.’” Id. at 1063 (quoting
Chambers v. Barnhart, 389 F.3d 1139, 1144 (10th Cir. 2004)).
The same analysis applies to Plaintiff’s case.
Because
neither Plaintiff nor his counsel claimed at the administrative
hearing that a hearing impairment contributed to his alleged
inability to work, the ALJ acted reasonably in declining to
include hearing limitations in Plaintiff’s RFC assessment.
To
remand this case under these circumstances would be to reward
claimants who omit discussion of their alleged impairments at the
administrative hearing and thereby inject alleged error into the
administrative decision, providing claimants inappropriate
incentives.
Furthermore, as the Commissioner sets forth in his answer
brief (Doc. 13, at 23-25), substantial evidence supports the
ALJ’s decision.
Dr. Gonzales’ examination revealed no noticeable
hearing impairment (Tr. 340), and Dr. Taggart opined that
Plaintiff did not have hearing loss that would affect his workrelated functioning (Tr. 330).
In addition, Plaintiff does not
cite any objective evidence or medical diagnoses of hearing loss
to support his argument, but instead only cites to pages in the
record referencing Plaintiff’s subjective allegations of hearing
loss.
(Doc. 12, at 15; see also Doc. 13, at 23-24.)
Regarding Plaintiff’s sleep apnea, the ALJ acknowledged that
it was a medically determinable impairment (Tr. 14).
The ALJ
also accounted for functional problems caused by the sleep
20
disorder by including in Plaintiff’s RFC assessment various
mental limitations, such as (1) mild to moderate limitations in
concentration and in the ability to handle stress; and (2) mild
limitations in the ability to deal with work production and
relate to others (Tr. 17).
The ALJ found Plaintiff’s other,
more restrictive limitations not credible (Tr. 18-19, 41), see
Talbot v. Heckler, 814 F.2d 1456, 1461 (10th Cir. 1987) (the fact
that the ALJ must consider the claimant’s evidence does not mean
that he must accept it as true), and Plaintiff has not challenged
the ALJ’s adverse credibility finding, and thus waived any such
challenge.
See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.
2007) (court “routinely [has] declined to consider arguments that
are not raised, or are inadequately presented, in an appellant’s
opening brief”); see also Broadbent v. Harris, 698 F.2d 407, 413
(10th Cir. 1983) (explaining that because the determination of
credibility is left to the ALJ as the finder of fact, that
determination is generally binding on the reviewing court).
Therefore, the court concludes that Plaintiff has not
demonstrated error, much less reversible error, regarding his
alleged hearing impairment and sleep disorder.
D. Hypothetical Question
Finally, Plaintiff’s challenge of the ALJ’s hypothetical
question to the vocational expert is merely a rehash of his
challenge to the ALJ’s RFC assessment.
(Doc. 12, at 16-17.)
Because substantial evidence supports the ALJ’s assessment, and
21
because that assessment matched the hypothetical question to the
expert, the ALJ did not err.
Qualls v. Apfel, 206 F.3d 1368,
1373 (10th Cir. 2000) (“The ALJ propounded a hypothetical question
to the VE that included all the limitations the ALJ ultimately
included in his RFC assessment.
Therefore, the VE’s answer to
that question provided a proper basis for the ALJ’s disability
decision.”).
Having carefully considered the parties’ memoranda and the
complete record in this matter, the court concludes that the
ALJ’s decision is supported by such relevant evidence as a
reasonable mind might accept as adequate to support the ALJ’s
conclusion.
Because the court concludes that the ALJ’s decision
is supported by substantial evidence and is free of reversible
legal error, that decision is affirmed.
F.3d 1368, 1371 (10th Cir. 2000).
22
See Qualls v. Apfel, 206
ORDER
Based on the above analysis, IT IS HEREBY ORDERED that the
Commissioner’s decision is AFFIRMED because it is supported by
substantial evidence and is free of reversible legal error.
DATED this 12th day of July, 2011.
BY THE COURT:
Samuel Alba
United States Magistrate Judge
23
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