Jones v. Astrue

Filing 19

MEMORANDUM DECISION and ORDER. The Court AFFIRMS the Commissioners decision because substantial evidence supports it. Signed by Magistrate Judge Evelyn J. Furse on 02/07/2014. (tls)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
DOUGLAS JONES,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Case No. 1:12-CV-00153-EJF
Magistrate Judge Evelyn J. Furse

Defendant.
Plaintiff Douglas Jones filed this action asking the Court1 to reverse or remand the final
agency decision denying him Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act, see 42 U.S.C. §§ 401–434, and denying him Supplemental Security Income
(“SSI”) under Title XVI of the Social Security Act, see 42 U.S.C. §§ 1381–1383f . The
Administrative Law Judge (“ALJ”) determined Mr. Jones did not meet the eligibility standards
for benefits because he did not have “a disability within the meaning of the Social Security Act
from March 1, 2007, through the date of [the ALJ’s] decision.” (Admin. R. Doc. 20, certified
copy tr. of R. of admin. proceedings: Douglas Jones (hereinafter “Tr. __”).) Having carefully
considered the parties’ memoranda and the complete record in this matter, 2 the Court AFFIRMS
the Commissioner’s decision.

1

On October 31, 2012, in accordance with 28 U.S.C. sections 636(c)(1) and (3) and
Federal Rule of Civil Procedure 73, the parties consented to proceed before the undersigned
Magistrate Judge. (See ECF No. 11.)
2

Pursuant to Civil Rule 7-1(f) of the Rules of Practice for the United States District
Court for the District of Utah, the Court concludes it does not need oral argument and will
determine the appeal on the basis of the written memoranda.
1

FACTUAL AND PROCEDURAL HISTORY
On March 17, 2008, Mr. Jones filed for DIB and SSI alleging an onset date of disability
of March 1, 2007. (Tr. 19.) The Regional Commissioner denied Mr. Jones’s claim on July 18,
2008, (Tr. 103–04), and again, upon reconsideration on April 8, 2009. (Tr. 105–06, 115–20.)
On May 29, 2009, Mr. Jones requested a hearing before an ALJ. (Tr. 121–22.) The hearing
before the ALJ took place on June 17, 2010, (Tr. 46–102), and the ALJ issued a decision on
October 14, 2010, finding Mr. Jones did not qualify as disabled within the meaning of the Social
Security Act. (Tr. 16–45.) On November 22, 2010, Mr. Jones requested the Appeals Council
review the ALJ’s decision. (Tr. 167–74.) The Appeals Council denied Mr. Jones’s request for
review on May 7, 2012, (Tr. 1–5), making the ALJ’s decision the Commissioner’s final decision
for purposes of judicial review under 42 U.S.C. section 405(g). See 20 C.F.R. § 404.981.
I.

Medical History

Mr. Jones has a long history of back pain with periods of improvement due to lifestyle
changes. (Tr. 289–90, 292.) For many years other ailments have also affected Mr. Jones’s
health including numbness in his right leg, headaches, (Tr. 289), hepatitis C, (Tr. 325–31, 407),
diabetes, (Tr. 307–09), and symptoms related to gastroesophageal reflux disease (“GERD”). (Tr.
295–98, 307–09.)
To treat his back pain, Mr. Jones visited E. Alan Jeppsen, M.D., monthly between March
2006 and May 2008. (Tr. 335-360.) Mr. Jones also complained during that same period of
headaches, and Dr. Jeppsen noted various forms of anxiety, depression, and mood disorders.
(Id.) During a visit to Dr. Jeppsen on March 1, 2007, Mr. Jones’s alleged disability onset date,
Mr. Jones continued to complain about his back pain and frequent headaches. (Tr. 353.) On
March 26, Dr. Jeppsen gave Mr. Jones early refills of his pain medications because Mr. Jones
2

complained his new job required him to lift 50 pound bags, which aggravated his back pain. (Tr.
352.) During his April visit with Mr. Jones, Dr. Jeppsen noted Mr. Jones was “having problems
at work with the physical demands” and that “[h]e is looking for another job.” (Tr. 351.) On
May 21, Dr. Jeppsen noted that Mr. Jones had quit his job due to his back pain and because his
employer “wouldn’t give him lunch or breaks.” (Tr. 350.) Dr. Jeppsen refilled his pain
medications but noted a “[n]eed to taper meds while unemployed.” (Id.)
Mr. Jones remained unemployed between June and August 2007, and during that time Dr.
Jeppsen did not note any significant change in Mr. Jones’s condition except for varied frequency
or intensity of his headaches. (Tr. 345–49.) Dr. Jeppsen did not note a change in Mr. Jones’s
back pain and headaches during his September visit with Mr. Jones but did record Mr. Jones
reported “hunting for a job trying to find one that won’t injur[e his] back. (Tr. 346.) In October
2007, Dr. Jeppsen increased Mr. Jones’s prescription of Amitriptyline from 25 mg to 50 mg.
(Tr. 345.) Dr. Jeppsen noted on November 9, that Mr. Jones’s overall pain intensity had
decreased and that Mr. Jones “would be starting a new job today doing sales at Radio Shack.”
(Tr. 344.) During his December visit with Dr. Jeppsen, Mr. Jones described his back pain as
severe but also reported that his overall pain had decreased. (Tr. 343.) Dr. Jeppsen also noted
that Mr. Jones was unemployed again because his job “didn’t work out.” (Id.)
Between January and March 2008, Mr. Jones continued his monthly visits with Dr.
Jeppsen. (Tr. 339–42.) During these visits Dr. Jeppsen noted that Mr. Jones’s back pain had
decreased but that the pain duration remained the same and that Mr. Jones continued to suffer
from headaches. (Id.) On March 11, Mr. Jones began receiving treatment at the Health Clinics
of Utah, and Michelle Hicks, FNP-C examined him. (Tr. 362, 365.) Then on April 7, Dr.
Jeppsen noted Mr. Jones’s “[p]ain localization has changed” and that in some areas the intensity
3

and duration of his back pain had gotten worse. (Tr. 337-38.) During Mr. Jones’s last visit with
Dr. Jeppsen on May 2, Dr. Jeppsen noted Mr. Jones’s “[p]ain localization has changed” and that
the intensity of the pain in his lower back had gotten worse. (Tr. 335–36.)
On April 30, 2008, a radiologist took a magnetic resonance imaging (“MRI”) of Mr.
Jones’s back. (Tr. 371–72.) On May 9, Nurse Practitioner Hicks reviewed the April 30 MRI and
found it “demonstrate[d] some broad-based disk bulges and protrusions at all levels with some
facet changes as well as some mild narrowing.” (Tr. 363.) She then sent the MRI to a
neurosurgeon for further evaluation to determine if Mr. Jones might benefit from surgery. (Tr.
362.) On June 3, a radiologist, Christopher Penka, M.D., examined Mr. Jones and found he had
“resolving L5 radiculopathy on the right” and “residual weakness in the L5 innervated muscles
on the right.” (Tr. 377–79.) Dr. Penka reviewed the April 30 MRI and found Mr. Jones had
“broad-based disk protrusion at L4–L5 and perhaps slightly more on the right than the left,” “no
extruded disk fragment,” and “no obvious herniated nucleus pulposus.” (Id.) Based on his
examination of Mr. Jones, Dr. Penka did not recommend surgery because Mr. Jones “improved
compared to the way he was [four] months ago” but did recommend “conservative management .
. . involv[ing] medication, physical therapy, and potential for epidural steroid injections.” (Id.)
On July 2, 2008, Marilyn Cox, ANP-BC, examined Mr. Jones who complained about
high blood sugar levels related to his diabetes, continued back pain, and abdominal pain. (Tr.
425.) Nurse Practitioner Cox prescribed Mr. Jones Ultram, referred him for epidural injections,
and ordered an abdominal ultrasound. (Id.) The results of the abdominal ultrasound showed
“[t]he liver is echogenic consistent with fatty infiltration.” (Tr. 408.) On July 17, Mr. Jones
began receiving physical therapy from Cheryl A. Wheelwright, P.T., to treat his back pain and
regularly received therapy through October 16. (Tr. 455–67, 512–13.) In a letter dated April 30,
4

2009, Ms. Wheelwright summarized Mr. Jones’s eleven physical therapy sessions: “[Mr. Jones]
worked very hard in his exercises in therapy and did all that was asked of him, but physical
therapy did not decrease his pain. It did increase his mobility and strength a little, but did not
really improve his function.” (Tr. 512.)
On July 23, 2008, Robert B. Lamb, M.D., examined Mr. Jones and reviewed an MRI of
Mr. Jones’s back which showed he “has a spinal canal which is below average in size and are
[sic] bulging disc at multiple levels including a protruding disc at L4–L5 on the right.” (Tr. 409–
10.) On August 7, Mr. Jones followed up with Nurse Practitioner Hicks complaining of
numbness in his left groin and increased back and neck pain. (Tr. 420–21.) Mr. Jones told Ms.
Hicks he wanted injections for his neck pain and to have another radiologist examine him and
review the April 30 MRI. (Id.) Ms. Hicks prescribed Ultram and ordered labs because Mr.
Jones also complained of abdominal pain possibly related to his hepatitis C. (Id.) On August 11,
Dr. Lamb gave Mr. Jones his first epidural steroid injection, (Tr. 411–12), and on August 15, Mr.
Jones had a stress test because he had suffered periods of chest pain. (Tr. 413–17.) Garry W.
Mackenzie, M.D., performed adenosine cardiolite and nuclear cardiac stress tests on Mr. Jones
and advised him to review the results with Ms. Hicks. (Id.)
On October 14, 2008, Ronald G. Duerksen, M.D. performed an electromyographic
(“EMG”) examination because Mr. Jones complained of “[p]aresthesias in both upper limbs”;
the examination yielded normal results. (Tr. 485–86.) On November 24, Deborah Judd, FNP-C,
examined Mr. Jones who complained of low back pain and neck pain, cluster migraines, fatigue,
GERD, and insomnia. (Tr. 470–72.) Ms. Judd recommended he follow up on his hepatitis C
and “be evaluated with an endoscopy for his GERD.” (Id.) On December 30, Dennis Sobotka,
M.D., performed an upper endoscopy on Mr. Jones that showed “Barrett’s esophagus” and “no
5

dysplasia.” (Tr. 478–84.) On January 14, 2009, Mr. Jones followed up on the results of the
endoscopy with David W. Fairbanks, M.D., who recommended he avoid milk, take antacids
containing magnesium, and “elevate the head of his bed four inches.” (Tr. 469.) Dr. Fairbanks
also advised Mr. Jones to follow up with a cardiologist and gastroenterologist. (Id.)
On February 26, 2009, Richard Grow, Ed.D., performed a psychological examination of
Mr. Jones as part of his disability application. (Tr. 487–94.) Dr. Grow diagnosed Mr. Jones with
opioid abuse in recent remission, dysthymic disorder, generalized anxiety disorder with
provisional panic attacks, and sought to rule out personality disorder. (Tr. 493.) Dr. Grow also
assigned Mr. Jones a global assessment of functioning (“GAF”) score of 50 and opined Mr.
Jones was “capable of understanding, remembering, and carrying out simple two-step
instructions.” (Id.)
The next day, February 27, Tyler Dixon, D.O., examined Mr. Jones who complained of
low back pain and weakness in his legs. (Tr. 535–39.) Dr. Dixon noted Mr. Jones had good leg
strength and a positive bilateral straight leg test. (Tr. 536.) Dr. Dixon prescribed several
medications and instructed Mr. Jones to return in one month or follow up sooner if his pain
changed in character or intensity. (Id.) Nearly two months later, on April 27, Mr. Jones
returned to Dr. Dixon complaining of fatigue, low back pain, and erratic blood sugar levels. (Tr.
530–32.) In a letter dated April 29, 2009, Dr. Sobotka stated Mr. Jones’s fatigue could result
from his hepatitis C, which he may want to begin treating. (Tr. 511.)
Several months later, on October 2, 2009, Mr. Jones again visited Dr. Dixon complaining
his headaches were worse in the morning and anticipation of morning headaches caused him to
feel anxious each night before going to bed. (Tr. 527–29.) Dr. Dixon prescribed Mr. Jones
Lyrica, a muscle relaxant, and a few doses of Lortab for occasional severe pain. (Id.) Mr.
6

Jones’s symptoms had not changed when he visited Dr. Dixon on October 27, and Dr. Dixon
“felt [he] had little to offer [Mr. Jones]” besides the medication he had already prescribed. (Tr.
524–26.) On January 12, Dr. Sobotka performed an esophagogastroduodenoscopy (“EGD”) on
Mr. Jones that showed a small hiatel hernia and erythematous mucosa in the gastroesophagel
junction and lower third of the esophagus. (Tr. 555.) Dr. Dixon reiterated his position to Mr.
Jones that he could only offer him medication during a visit on January 19. (Tr. 577–79.) On
January 25, 2010, Dr. Lamb administered epidural steroid injections to Mr. Jones’s back. (Tr.
569–70.) On February 3, a radiologist performed an abdominal ultrasound on Mr. Jones, which
showed a lesion on his liver. (Tr. 552–53.)
On February 8, 2010, Mr. Jones followed up on the epidural steroid injection with Dr.
Dixon who noted minimal improvement of Mr. Jones’s back pain and “worsening muscle spasms
on the left side.” (Tr. 566–68.) Dr. Dixon increased Mr. Jones’s Roxicodone prescription to
manage his pain and instructed him to return in three months, or sooner, if his symptoms did not
improve. (Id.) A few days later on February 10, a radiologist performed a “Hepatobiliary
ecintigraphy with intravenous CCK” procedure on Mr. Jones that indicated “[b]orderline low
gallbladder ejection fraction . . . . indicative of biliary dyskinesia or chronic cholecystitis . . . .
[and] [m]oderate quantity of biliary enterogastric reflux.” (Tr. 563.)
II.

Disability Assessments

In a letter dated May 13, 2008, Nurse Practitioner Hicks opined, after reviewing old
medical records and studies she ordered, that Mr. Jones cannot “work primarily related to his
back pain and associated radicular symptoms involving his lower extremities,” but she could not
predict how long his pain and symptoms would continue to present problems. (Tr. 362.) On
July 18, 2008, Lewis J. Barton, M.D., completed a Physical Summary and Physical Residual
7

Functional Capacity (“RFC”) Assessment of Mr. Jones as part of Mr. Jones’s DIB and SSI
claims. (Tr. 392–401.) Dr. Barton noted Mr. Jones’s neck exam was normal, he had a right foot
drop from a herniated disc at L4-5 that was resolving, and he could perform light work.3 (Tr.
393.) On March 11, 2009, Rox Burkett, M.D., reviewed Mr. Jones’s medical evidence,
considered new evidence, and agreed with Dr. Barton’s initial assessment. (Tr. 495–96.)
On April 30, 2009, Dr. Dixon opined that Mr. Jones’s chronic low back pain, hepatitis C,
diabetes, and high cholesterol makes work difficult but that “his ability to work could be
reviewed every couple of years” and that in the future “[h]e may benefit from some vocational
rehab.” (Tr. 514.)
On October 18, 2009, Dr. Dixon completed a form medical statement regarding his
assessment of Mr. Jones’s back pain, diabetes, headaches, and hepatitis C. (Tr. 516–18.) Dr.
Dixon attested Mr. Jones had a positive straight leg raising test and found that he suffered from
neuro-anatomic distribution of pain, motor loss, inability to perform fine and gross movements
effectively, inability to ambulate effectively, limitation of motion of the spine, sensory or reflex
loss, severe burning or painful dysesthesia, chronic nonradicular pain and weakness, and type II
diabetes. (Tr. 516.) Dr. Dixon also indicated Mr. Jones suffers from daily migraine and muscle
tension headaches lasting one to two hours during which he cannot work. (Tr. 517.) Further, Dr.
Dixon found Mr. Jones suffers from significant peripheral neuropathy, chronic pain syndrome
with pain that ranges from severe to extreme, and that his pain causes marked restrictions of

3

Dr. Barton’s Physical RFC Assessment of Mr. Jones contained exertional limitations
including occasional lifting and/or carrying up to twenty pounds, frequent lifting and/or carrying
up to ten pounds, and standing and/or walking six hours in an eight-hour workday, sitting for
about six hours in an eight-hour workday; postural limitations including occasional climbing,
balancing, stooping, kneeling, crouching, and crawling; and an environmental limitation to avoid
concentrated exposure to extreme cold. (Tr. 395–98.)
8

daily living activities, marked difficulty maintaining social functioning, and concentration,
persistence, or pace deficiencies. (Id.) Finally, Dr. Dixon indicated Mr. Jones can occasionally
lift five pounds but otherwise cannot perform any work-related physical tasks including sitting or
standing. (Tr. 518.)
On April 6, 2010, Dr. Sobotka attested in a medical statement that Mr. Jones’s Hepatitis
C caused fatigue, weakness, and endocrine changes. (Tr. 551.) Dr. Sobotka opined Mr. Jones
could work two hours per day, stand for periods of thirty minutes at a time, occasionally lift
twenty pounds, and frequently lift five pounds. (Id.)
Lastly, on April 26, 2010, Richard Hall, M.D., who according to the administrative
record only treated Mr. Jones once prior for a finger injury, (Tr. 590–91), completed a form
medical statement similar to the medical statement Dr. Dixon completed, but Dr. Hall’s
assessment differed from Dr. Dixon’s in several ways. (Tr. 593–95.) Dr. Hall limited Mr.
Jones’s condition to neuro-anatomic distribution of pain, positive straight leg raising test, type I
diabetes, fatigue and weakness, need to change position more than once every two hours, motor
loss, and limitation of motion of the spine. (Tr. 593.) Similar to Dr. Dixon’s medical statement,
Dr. Hall indicated Mr. Jones suffers from daily migraine and muscle tension headaches during
which he cannot work, but he found the headaches lasted several hours rather than one to two
hours. (Cf. tr. 594, with tr. 517.) Further, Dr. Hall found Mr. Jones suffers from significant
peripheral neuropathy, chronic pain syndrome with severe pain, and that his pain causes marked
restrictions of daily living activities, marked difficulty maintaining social functioning, and
concentration, persistence, or pace deficiencies. (Tr. 594.) Finally, although Dr. Hall indicated

9

Mr. Jones could perform several work-related physical tasks,4 like Dr. Dixon, he also found Mr.
Jones could not work. (Compare tr. 595 with tr. 518.)
STANDARD OF REVIEW
42 U.S.C. section 405(g) provides for judicial review of a final decision of the
Commissioner of the Social Security Administration (“SSA”). The Court reviews the
Commissioner’s decision to determine whether the record as a whole contains substantial
evidence in support of the Commissioner’s factual findings and whether the SSA applied the
correct legal standards. 42 U.S.C. § 405(g); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
The Commissioner’s findings shall stand if supported by substantial evidence. 42 U.S.C. §
405(g).
Adequate, relevant evidence that a reasonable mind might accept to support a conclusion
constitutes substantial evidence, and “[e]vidence is insubstantial if it is overwhelmingly
contradicted by other evidence.” O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994). The
standard “requires more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084.
“Evidence is not substantial if it is overwhelmed by other evidence—particularly certain types of
evidence (e.g., that offered by treating physicians)—or if it really constitutes not evidence but
mere conclusion.” Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (internal quotations
marks and citations omitted). Moreover, “[a] finding of ‘no substantial evidence’ will be found
only where there is a conspicuous absence of credible choices or no contrary medical evidence.”

4

Dr. Hall attested Mr. Jones can stand less than fifteen minutes at one time, stand and sit
one hour respectively during a work day, occasionally rotate his neck left and right, occasionally
elevate and bring his chin to neck, and frequently perform gross and fine manipulation with both
hands. (Tr. 595.)
10

Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (internal quotation marks and citations
omitted).
Although the reviewing court considers “whether the ALJ followed the specific rules of
law that must be followed in weighing particular types of evidence in disability cases,” the court
“will not reweigh the evidence or substitute [its] judgment for the Commissioner’s,” Lax, 489
F.3d at 1084 (internal quotation marks and citations omitted), but “review only the sufficiency of
the evidence,” Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (emphasis in original).
The court need not accept the Commissioner’s findings mechanically, but must “examine the
record as a whole, including whatever in the record fairly detracts from the weight of the
[Commissioner’s] decision and, on that basis, determine if the substantiality of the evidence test
has been met.” Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (internal quotation marks
and citation omitted). “‘The possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence,’” and the court may not “‘displace the agenc[y’s] choice between two fairly
conflicting views, even though the court would justifiably have made a different choice had the
matter been before it de novo.’” Lax, 489 F.3d at 1084 (quoting Zoltanski v. FAA, 372 F.3d
1195, 1200 (10th Cir. 2004)).
In addition to a lack of substantial evidence, the Court may reverse where the
Commission uses the wrong legal standards or the Commissioner fails to demonstrate reliance on
the correct legal standards. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Thomson
v. Sullivan; 987 F.2d 1482, 1487 (10th Cir. 1993); Andrade v. Sec’y of Health & Human Servs.,
985 F.2d 1045, 1047 (10th Cir. 1993).

11

ANALYSIS
The Social Security Act (“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). Moreover,
the Act considers an individual disabled “only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
In determining whether a claimant qualifies as disabled within the meaning of the Act,
the SSA employs a five-part sequential evaluation. See 20 C.F.R. § 404.1520; Williams v.
Bowen, 844 F.2d 748, 750–53 (10th Cir. 1988); Bowen v. Yuckert, 482 U.S. 137, 140–42 (1987).
The analysis evaluates whether:
(1) The claimant presently engages in substantial gainful activity;
(2) The claimant has a medically severe physical or mental impairment or impairments;
(3) The impairment is equivalent to one of the impairments listed in the appendix of the
relevant disability regulation which preclude substantial gainful activity;
(4) The impairment prevents the claimant from performing his or her past work; and
(5) The claimant possesses a residual functional capacity to perform other work in the
national economy considering his or her age, education, and work experience.
See 20 C.F.R. § 404.1520. The claimant has the initial burden of establishing the disability in the
first four steps. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). At step five, the burden
shifts to the Commissioner to show the claimant retains the ability to perform other work
existing in the national economy. Id.

12

The ALJ continued to evaluate Mr. Jones’s claim through step five, making the following
findings of fact and conclusions of law with respect to Mr. Jones:
1. “[Mr. Jones] meets the insured status requirements of the Social Security
Act through December 31, 2012.” (Tr. 21.)
2. “[Mr. Jones] has not engaged in substantial gainful activity since March 1,
2007, the alleged onset date (20 C.F.R. 404.1571 et seq., and 416.971 et
seq.).” (Tr. 22.)
3. “[Mr. Jones] has the following severe impairments: degenerative disc
disease of the lumbar and cervical spine (with spinal stenosis), diabetes
mellitus, hepatitis C, generalized anxiety disorder, and mood disorder (20
C.F.R. 404.1520(c) and 416.920(c)).” (Id.)
4. “[Mr. Jones] does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1, (20 C.F.R. 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).” (Id.)
5. “After careful consideration of the entire record, the undersigned finds that
[Mr. Jones] has the residual functional capacity (RFC) to perform a range
of light work as defined in 20 DFR 404.1567(b) and 416.967(b). [Mr.
Jones] is able to lift and/or carry twenty pounds occasionally and ten
pounds frequently. [Mr. Jones] must be allowed to shift positions between
sitting and standing/walking at will, for his comfort, throughout the eighthour work day. [Mr. Jones] may perform postural activities on an
occasional basis. The claimant may use his upper bilateral extremities for
overhead reaching only on an occasional basis, due to his cervical spine
condition. Such work may not require [Mr. Jones]’s concentrated
exposure to vibrations or rough, uneven surfaces. The claimant has
moderate limitations (1/3 or less overall restriction) in his ability to
understand and remember detailed instructions; his ability to carry out
detailed instructions; his ability to maintain concentration and attention for
extended periods; and, his ability to respond appropriately to changes in
the work setting.” (Tr. 26–27.)
6. “[Mr. Jones] is unable to perform any past relevant work (20 C.F.R.
404.1565 and 416.965).” (Tr. 38.)
7. “[Mr. Jones] was born on June 22, 1965 and was 41 years old, which is
defined as a younger individual age 18–49, on the alleged disability onset
date (20 C.F.R. 404.1563 and 416.963).” (Id.)
8. “[Mr. Jones] has at least a high school education and is able to
communicate in English (20 C.F.R. 404.1564 and 416.964).” (Id.)
9. “Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is ‘not disabled,’ whether or not [Mr.
Jones] has transferable job skills (See SSR 82–41 and 20 C.F.R. Part 404,
Subpart P, Appendix 2).” (Id.)
13

10. “Considering [Mr. Jones]’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that [Mr. Jones] can perform (20 C.F.R. 404.1569,
404.1569(a), 416.969, and 416.969(a)).” (Id.)
11. “[Mr. Jones] has not been under a disability, as defined in the Social
Security Act, from March 1, 2007, through the date of this decision (20
C.F.R. 404.1520(g) and 416.920(g)).” (Tr. 39.)
In short, the ALJ concluded Mr. Jones did not possess an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1, that he had the residual functional capacity to perform a range of light
work, and that he did not qualify as disabled as defined in the Act from March 1, 2007, the
alleged onset date, through the date of the ALJ’s decision. (Tr. 22–39.)
In support of his claim that this Court should reverse the Commissioner’s decision, Mr.
Jones argues the ALJ erred: (1) by failing to find Mr. Jones’s headaches to constitute a severe
impairment in combination with his other severe impairments; (2) by finding Mr. Jones not
credible regarding the severity of his pain; (3) by giving no weight to the opinions of several
treating physicians; and (4) by failing to determine Mr. Jones’s RFC properly. The Court
addresses each argument in turn.
I.

Step Two Determination

Mr. Jones argues the ALJ erred when she failed to mention Mr. Jones’s headaches and
did not find his headaches a severe impairment in combination with his other severe
impairments. (Pl.’s Opening Br. 17–18, ECF No. 15.) The Court disagrees.
Step two of the sequential evaluation process requires the ALJ to decide whether the
claimant has a severe impairment. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment or
combination of impairments qualifies as severe when it significantly limits a person’s physical or
mental ability to do basic work activities. 20 C.F.R. § 404.1521(a). If the ALJ does not find at
14

step three that the claimant’s impairment or impairments meets or equals a listing in appendix 1,
the ALJ continues at step four to determine the claimant’s RFC. 20 C.F.R. § 404.1520(a)(iii)–
(iv). In determining RFC, the ALJ considers all medically determinable impairments, including
non-severe impairments. 20 C.F.R. § 404.1545(a)(2). Because the ALJ considers both severe
and non-severe impairments at later steps, any failure to designate additional severe impairments
at step two qualifies as harmless if the ALJ finds at least one severe impairment and continues
with the sequential evaluation process. Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir.
2008); Brescia v. Astrue, 287 F. App’x 626, 629 (10th Cir. 2008).
Here, the ALJ found at step two of the sequential evaluation process that Mr. Jones had
severe impairments consisting of “degenerative disc disease of the lumbar and cervical spine
(with spinal stenosis), diabetes mellitus, hepatitis C, generalized anxiety disorder, and mood
disorder.” (Tr. 22.) Having found that Mr. Jones possessed these severe impairments, the ALJ
continued with the sequential evaluation process. (Tr. 22–39.) In determining Mr. Jones’s RFC,
the ALJ considered “all symptoms and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence, based on the
requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-7p” in addition to
“opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.” (Tr. 27.) Specifically, the ALJ considered the cluster
headaches and migraines. (Tr. 27, 28.) Because the ALJ found severe impairments at step two
and continued the sequential evaluation process, any error at step two remains harmless.
II.

Evaluation of Mr. Jones’s Credibility

Next, Mr. Jones argues the ALJ failed to consider his pain properly in making the RFC
assessment. (ECF No. 15 at 18–21.) However, Mr. Jones actually argues that no substantial
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evidence supports the ALJ’s determination regarding his credibility. (ECF No. 15 at 20–21.)
The Court disagrees.
When evaluating credibility, the ALJ must follow the prescribed two-step process: (1)
evaluate whether the claimant has an underlying medically determinable impairment one could
reasonably expect to produce the claimant’s pain or other symptoms; and (2) evaluate the
intensity, persistence, and limiting effects of the claimant’s symptoms to determine the extent to
which they limit the claimant’s functioning. See Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir.
2000) (discussing factors to evaluate credibility). “Credibility determinations are peculiarly the
province of the finder of fact, and we will not upset such determinations when supported by
substantial evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted).
The ALJ must cite specific evidence used in evaluating a claimant’s subjective complaints, and if
he finds those complaints incredible, he must explain why. See id. But this analysis “does not
require a formalistic factor-by-factor recitation of the evidence.” Qualls v. Apfel, 206 F.3d 1368,
1372 (10th Cir. 2000). “So long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility, [the credibility determination requisites] are satisfied.” Id.
The ALJ followed the prescribed two-step process for evaluating self-reported symptoms.
First, she evaluated whether Mr. Jones had an underlying medically determinable impairment
one could reasonably expect to produce pain or other symptoms; and second, she evaluated the
intensity, persistence, and limiting effects of Mr. Jones’s symptoms to determine the extent to
which they limited his functioning. (See Tr. 27–29.) As to the first step, the ALJ found Mr.
Jones’s “medically determinable impairments could reasonably be expected to cause the alleged
symptoms.” (Tr. 29.)

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At step two, the ALJ found Mr. Jones’s “statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the extent they are inconsistent with
the [ALJ’s] residual functional capacity assessment.” (Tr. 29.) Further, the ALJ found “[t]he
medical records and other evidence do not support [Mr. Jones]’s allegation of disability,” (id.),
and cited specific medical evidence that undermines Mr. Jones’s testimony. For example, the
ALJ cited the medical expert, Michael F. Enright, Ph.D., who found inconsistencies between Mr.
Jones’s testimony of his illicit drug use and the medical records. (Tr. 30.) The ALJ also found
Mr. Jones not credible because after he claims he became disabled he took a job that required
him to lift fifty-pound bags, (tr. 30–31), and because his medical records indicated he only took
his pain medication as needed and not everyday or as prescribed. (Tr. 34.) Because substantial
evidence supports the ALJ’s credibility finding, the Court will not disturb it.
III.

Evaluation of Treating Physician Opinion Evidence

Mr. Jones argues the ALJ also erred because she gave no weight to the opinions of
treating physicians Dr. Dixon, Dr. Hall, and Dr. Sobotka in making the RCF assessment. (ECF
No. 15 at 22.) The Court disagrees.
When evaluating a treating physician’s medical opinion, the ALJ must complete a twostep analysis. Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). At the first step the ALJ
must determine whether to give controlling weight to the treating physician’s medical opinion.
Id. (citation omitted). The ALJ should accord the opinion controlling weight “if it is wellsupported by medically acceptable clinical or laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in the record.” Id. However, deficiency at step one
does not automatically mean the ALJ should reject the opinion. Id. (citing SSR 96-2P). The
second step requires the ALJ to explain clearly how much weight she gives to the opinion using
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factors provided in the regulations. Id. at 1330-31. 20 C.F.R. section 404.1527(c) provides the
factors the ALJ must consider at step two: “(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” relevant evidence supports the physician’s opinion; “(4) consistency between the opinion
and the record as a whole; (5) whether” the physician specializes in the area upon which s/he
renders an opinion; and “(6) other factors brought to the ALJ’s attention [that] tend to support or
contradict the opinion.” See Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003)
(internal quotation omitted). While the ALJ must explain the weight given to the opinion, the
ALJ’s decision need only provide “‘sufficientl[] specific[ity] to make clear to any subsequent
reviewers the weight [she] gave to the treating source’s medical opinion and the reason for that
weight.’” Krauser, 638 F.3d at 1331 (quoting Langley v. Barnhart, 373 F.3d 1116, 1119 (10th
Cir. 2004)).
Moreover, the ALJ’s decision need not discuss explicitly all of the factors for each of the
medical opinions. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (stating that a
lack of discussion of each factor does not prevent the court from according the decision
meaningful review). When considering medical opinion evidence, the ALJ must weigh and
resolve evidentiary conflicts and inconsistencies. See, e.g., Eggleston v. Bowen, 851 F.2d 1244,
1247 (10th Cir. 1988) (reflecting ALJ’s resolution of evidentiary conflicts between medical
providers).
Here, after extensively considering all the medical records, (see tr. 29–36), the ALJ gave
no weight to the opinions of Dr. Dixon, Dr. Hall, and Dr. Sobotka because the DIB and SSI
processes reserve RFC determinations to the Commissioner, (tr. 36), and because their opinions
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“are unsupported by the respective doctor’s own rather minimal treatment records, by the great
weight of credible evidence of record, and by [Mr. Jones]’s own acknowledged level of
functioning.” (Tr. 37.) Further, the ALJ questioned whether Dr. Hall constituted a treating
physician since the medical record indicates Dr. Hall only treated Mr. Jones one time during the
relevant period for a finger injury unrelated to Mr. Jones’s alleged disabilities. (Id.)
Moreover, the ALJ provided additional reasons why she gave no weight to Dr. Dixon’s
April 2009 letter or his October 2009 form medical statement. The ALJ rejected Dr. Dixon’s
April 2009 letter because it “provided no function-by-function analysis” and because Dr. Dixon
had only treated Mr. Jones one time before writing the letter. (Tr. 36.) Similarly, the ALJ
rejected Dr. Dixon’s form medical statement because he had only examined Mr. Jones three
times prior to completing the form. (Id.)
Substantial evidence supports the ALJ’s credibility determination as to these treating
physicians’ opinions. Mr. Jones does not provide the Court any evidence to the contrary, and the
Court will not reweigh the evidence presented to the agency or substitute its judgment for the
Commissioner’s. Lax, 489 F.3d at 1084.
IV.

Final RFC Determination

Lastly, Mr. Jones argues the ALJ erred in assessing his RFC with respect to his failed
work attempts, Mr. Jones’s impairments including his headaches, and the jobs identified by the
vocational expert. (ECF No. 15 at 24, 26.) The Court disagrees.
The RFC reflects the ability to do physical, mental, and other work activities on a
sustained basis despite limitations from the claimant’s impairments. See 20 C.F.R. §§ 404.1545,
416.945. In determining the claimant’s RFC, the decision maker considers all of the claimant’s
medically determinable impairments, including those considered not “severe.” See 20 C.F.R. §
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404.1545(a)(2). Further, the ALJ must base RFC assessments on all relevant evidence in the
record, not just the medical evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); SSR 96-8p
(July 2, 1996).
This step four analysis involves three phases:
In the first phase, the ALJ must evaluate a claimant’s physical and mental residual
functional capacity (RFC), and in the second phase, he must determine the
physical and mental demands of the claimant’s past relevant work. In the final
phase, the ALJ determines whether the claimant has the ability to meet the job
demands found in phase two despite the mental and/or physical limitations found
in phase one. At each of these phases, the ALJ must make specific findings.
Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quoting Winfrey v. Chater, 92 F.3d 1017,
1023 (10th Cir. 1996).
At phase one the ALJ stated she considered all symptoms and opinion evidence in
determining Mr. Jones’s RFC. (Tr. 27.) This Court takes the lower tribunal at its word. See
Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (citation omitted). Moreover, the
Decision demonstrates the ALJ considered all of Mr. Jones’s failed work attempts and all his
impairments, including his headaches.
The ALJ thoroughly discussed Mr. Jones’s work history and his testimony regarding his
inability to retain those jobs. (Tr. 28.) The ALJ also considered Mr. Jones’s testimony regarding
his headaches and other impairments and, as discussed above, found his testimony not credible.
(Tr. 28–29.) Further, the ALJ specifically discussed the objective medical evidence concerning
Mr. Jones’s headaches. (Tr. 30, 34–36.)
The Court finds the ALJ took into account the entire record including Mr. Jones’s failed
work attempts and his physical limitations in determining Mr. Jones’s RFC. Substantial

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evidence in the record supports the RFC finding, and the Court finds the ALJ did not err in
assessing Mr. Jones’s RFC.
At phase two and three the ALJ found Mr. Jones unable to perform his past relevant work
because of “the requirement for a ‘sit/stand’ option in [Mr. Jones]’s current RFC.” (Tr. 38.) If
the claimant cannot perform past relevant work, the ALJ moves to step five using the RFC to
determine if the claimant can perform any work available in significant numbers in the national
economy. See 20 C.F.R. §§ 404.1520(g), 416.920(g). At this step, the ALJ must find the
claimant disabled unless the Commissioner can establish “the claimant retains the capacity to
perform an alternative work activity and that this specific type of job exists in the national
economy.” Williams, 844 F.2d at 751 (internal quotation marks and citation omitted); see also
20 C.F.R. § 404.1520(g).
Therefore, the ALJ consulted a vocational expert, (see tr. 89–100), who testified that
based on the ALJ’s hypothetical that included a sit/stand option, jobs existed in the national
economy Mr. Jones could perform. (Tr. 94–96.) The ALJ found the vocational expert’s
testimony consistent with the RFC and the other factors she had to consider at step five of the
evaluation process and found Mr. Jones not disabled. (Tr. 38–39.) Therefore, the Court finds
the ALJ did not err at step five.
CONCLUSION
Based on the foregoing, the Court AFFIRMS the Commissioner’s decision because
substantial evidence supports it.

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DATED this 7th day of February, 2014.

BY THE COURT:

___________________________________
Evelyn J. Furse
United States Magistrate Judge

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