Walker v. Astrue

Filing 21

MEMORANDUM DECISION AND ORDER: the Court finds that the ALJ erred at phase two of the step-four analysis and remands the Commissioner's decision in this case for further proceedings. Signed by Magistrate Judge Evelyn J. Furse on 2/27/14 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
SABRINA ANN WALKER,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 1:12-cv-235-EJF

CAROLYN W. COLVIN, in her capacity as
Acting Commissioner of the Social Security
Administration,

Magistrate Judge Evelyn J. Furse

Defendant.
Plaintiff Sabrina Walker filed this action asking this Court 1 to reverse or remand the final
agency decision denying her Social Security Income (“SSI”) under Title XVI of the Social
Security Act, see 42 U.S.C §§ 1381–1383f (2010). The Administrative Law Judge (“ALJ”)
determined that Ms. Walker did not qualify as disabled within the meaning of the Social Security
Act. (Admin. R. Doc. 15, certified copy tr. of R. of admin. proceedings: Sabrina A. Walker
(hereinafter “Tr. __”).) Based on the Court’s careful consideration of the record, the parties’
memoranda, and relevant legal authorities, the Court REVERSES the Commissioner’s decision
for failure to consider Ms. Walker’s migraines a medically determinable impairment and
therefore REMANDS for further evaluation of their impact on her Residual Functional Capacity.

1

The parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c). (ECF

No. 11.)
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Therefore, this Court REMANDS for further proceedings consistent with this Memorandum
Decision and Order. 2
FACTUAL & PROCEDURAL HISTORY
In August 2009, Ms. Walker filed for SSI alleging an onset date of disability of January
1, 2007. (Tr. 15.) The Regional Commissioner denied Ms. Walker’s claims on January 13,
2010, and again upon reconsideration on June 7, 2010. (Id.) At Ms. Walker’s request, a hearing
before an ALJ took place on June 2, 2011 (the “Hearing”). (Id.) On June 17, 2011, the ALJ
issued a decision (the “Decision”) denying Ms. Walker’s claims. (Tr. 12–25.) On July 15, 2011,
Ms. Walker requested the Appeals Council review the ALJ’s Decision. (Tr. 10–11.) The
Appeals Council denied Ms. Walker’s request on September 11, 2012, (tr. 1–5), making the
ALJ’s Decision the Commissioner’s final decision for purposes of judicial review under 42
U.S.C. § 1383(c)(3). See 20 C.F.R. § 416.1481.
I. Physical Impairments
Ms. Walker, born in October 1979, (tr. 106), claims she has chronic migraines and back
problems. (Tr. 134.)
On September 4, 2008, Ms. Walker complained of chronic low back pain and migraines
to Dr. Tyler Dixon. (Tr. 293.) Dr. Dixon prescribed Percocet, among other medications, for Ms.
Walker’s pain and Imitrex for her migraines in particular. (Tr. 293–94.) On September 29,
2008, Dr. Dixon noted Imitrex helped Ms. Walker’s migraines, which she complained of having
about three times per week. (Tr. 302.) During this visit Dr. Dixon opted not to provide Ms.
Walker a letter stating she could not work but agreed to write her a note modifying her work

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.
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when she suffers migraines, permitting her to stand up and move around the workplace. (Tr.
302, 304.) In October 2008, Ms. Walker visited Dr. Dixon about her chronic back pain and
migraines. (Tr. 305.) Dr. Dixon’s notes indicate better control of her migraines with occasional
use of Imitrex. (Id.)
Ms. Walker visited Dr. Dixon in November 2008 stating Imitrex and Percocet no longer
helped her migraines. (Tr. 314.) Dr. Dixon administered a Stadol and Phenergan injection to
help treat her migraines and instructed her to come back in three months. (Tr. 315.)
In December 2008, Ms. Walker again visited Dr. Dixon. (Tr. 318.) Dr. Dixon’s notes
indicate she was working and “walking every day.” (Id.) Dr. Dixon’s notes of a March 2009
visit state Ms. Walker’s pain medication allowed her to function despite her back pain. (Tr.
329.) Dr. Dixon discussed tapering Ms. Walker’s back-pain medications. (Tr. 330.) Ms.
Walker had a follow-up visit with Dr. Dixon at the end of March at which she indicated her
medication kept her migraines stable and ameliorated her back pain enough to perform two jobs
and care for her children. (Tr. 333.)
In June 2009, Dr. Dixon’s notes indicate Ms. Walker’s back pain symptoms had not
progressed, and she could function. (Tr. 349.) Dr. Dixon also noted Ms. Walker’s migraines
appeared to respond well to Fioricet, although she did suffer rebound headaches. (Id.) The next
month, on July 20, 2009, Ms. Walker visited Dr. Dixon to follow up after a migraine-induced
visit to the emergency room the previous night. (Tr. 354.) Dr. Dixon believed Chantix, which
Ms. Walker took to help her quit smoking, caused her recent migraines and provided an injection
to treat the migraine. (Tr. 355.) On September 8, 2009, Dr. Dixon administered another
injection for her migraines. (Tr. 363.) Dr. Dixon’s notes of a December 2009 visit state that
Lortab helped Ms. Walker’s pain symptoms “very well,” and she only needed Percocet

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occasionally. (Tr. 452.) However, Ms. Walker then discontinued Lortab and switched back to
Percocet to treat her chronic back pain. (Tr. 453.)
In February 2010, Dr. Dixon administered another migraine injection and refilled
prescriptions for Ms. Walker’s pain medications. (Tr. 465.) Dr. Dixon’s notes of a March 2010
visit state that Ms. Walker’s pain medications allow her to be “functional in activities of daily
living and to be able to work and care for family.” (Tr. 470.) In a letter dated June 28, 2010, Dr.
Dixon stated he did “not think there is anything with [Ms. Walker’s] health [that] should prevent
her from performing her activities at work normally.” (Tr. 522.)
In addition to her many visits to Dr. Dixon for treatment of her symptoms, Ms. Walker’s
migraines caused her to seek emergency medical treatment on a number of occasions. (See tr.
210–11, 240–43, 250–54, 259–61, 277–78, 284–86.)
On April 29, 2011, Ms. Walker had MRIs of her cervical spine and lumbar spine. (Tr.
616–18.) Dr. Robert Lamb’s notes of Ms. Walker’s cervical MRI indicate a small-to-moderate
disc protrusion at C5-6 and mild disc bulge at C4-5. (Tr. 616–17.) Ms. Walker’s lumbar MRI
showed mild-to-moderate hypertrophic facet disease of her lumbar spine. (Tr. 618.)
II. Mental Impairments
In 1994, Ms. Walker spent four days hospitalized at the Sutter Center for Psychiatry
where doctors noted her history of post-traumatic stress disorder, borderline personality features,
suicidal ideation, and two prior inpatient psychiatric admissions. (Tr. 527.) In 2003, Dr. Kurt
Rifleman, M.D., diagnosed Ms. Walker with neurological disorder, panic/anxiety, and
depression. (Tr. 197.) Dr. Rifleman recommended Ms. Walker receive a “thorough neurological
evaluation & subsequent treatment.” (Id.)

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Notes from Ms. Walker’s primary care physician, Dr. Dixon, include many references to
Ms. Walker’s mental health. A record of an August 2008 visit with Dr. Dixon includes
depression in Ms. Walker’s past medical history. (Tr. 287.) Dr. Dixon’s notes from October and
November 2008 also reference Ms. Walker’s depression. (Tr. 306, 309.) In February 2009, Ms.
Walker asked Dr. Dixon for depression medication, stating she “feel[s] down and hopeless most
days and [has] a lack of interest in doing things that she used to like to do.” (Tr. 325.) Dr. Dixon
prescribed Wellbutrin. (Tr. 326.) In March 2009, Ms. Walker complained to Dr. Dixon of worse
depression symptoms, for which Dr. Dixon increased the Wellbutrin dosage. (Tr. 333.) In June
2009, Dr. Dixon noted Ms. Walker’s “Long-standing” anxiety issue and refilled her prescription
for Ativan, an anti-anxiety medication. (Tr. 349–50.) Dr. Dixon refilled Ms. Walker’s Ativan
prescription in November 2009 finding her anxiety stable. (Tr. 376–77.) Later that month, Ms.
Walker complained her anxiety had worsened and requested an increase to her Valium dosing.
(Tr. 446.) On October 2, 2010, Dr. Dixon completed a Medical Source Statement. (Tr. 494–98.)
With respect to Ms. Walker’s mental health, Dr. Dixon checked boxes indicating Ms. Walker
suffered “[g]eneralized persistent anxiety,” “[a]nhedonia,” and “[d]ifficulty concentrating or
thinking.” (Id. at 494.)
Dr. Craig K. Swaner, Ph.D., evaluated Ms. Walker on January 4, 2010, and created a
psychological report as part of Ms. Walker’s application for Social Security benefits. (Tr. 388–
95.) Ms. Walker complained to Dr. Swaner of anxiety and panic attacks. (Tr. 389.) Ms. Walker
told Dr. Swaner that due to her anxiety, she generally prefers to stay by herself, but she does
have regular contact with a neighbor and attends church. (Tr. 391.) Dr. Swaner diagnosed Ms.
Walker with panic disorder without agoraphobia and dependent personality disorder, among
other things. (Tr. 394.)

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In May 2011, Dr. Ralph Gant, Ph.D., evaluated Ms. Walker at the request of her attorney.
(Tr. 643–60.) Dr. Gant diagnosed Ms. Walker with chronic post-traumatic stress disorder,
recurrent major depressive disorder with possible psychotic features, generalized anxiety
disorder, panic disorder, and mild mental retardation. (Tr. 653.)
III. Work History
Ms. Walker has worked as a cashier, cook, file clerk, ticketing clerk, telemarketer, and in
technical support. (Tr. 143–49.) Ms. Walker worked as a file clerk in a California dental office
from August 1998 to September 1999. (Id.) Her job duties for this position required her to file
paperwork, schedule and confirm patients’ appointments, and manage patients’ insurance billing.
(Tr. 146.) At the hearing, Ms. Walker stated that she sometimes had problems with scheduling
appointments, because she would “get them backwards . . . [and] place them in spots where they
shouldn’t have been.” (Tr. 40.)
STANDARD OF REVIEW
42 U.S.C. § 1383(c)(3) 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), 1383(c)(3); 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), 1383(c)(3).
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

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contradicted by other evidence.” O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994). 3 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 quotation
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.”
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 does not have to accept the Commissioner’s findings mechanically, but “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
3

Courts apply the same analysis in determining disability under Title II and Title XVI.
See House v. Astrue, 500 F.3d 741, 742 n.2 (8th Cir. 2007).
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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).
ANALYSIS
The Social Security Act (“Act”) defines “disabled” individuals as anyone who “is unable
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 twelve months.” 42 U.S.C. §
1382c(a)(3)(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. §
1382c(a)(3)(B).
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. § 416.920; 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 medically severe physical or mental impairment or impairments that
last for at least twelve months;

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(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. § 416.920. 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.
The ALJ evaluated Ms. Walker’s claim through step four, making the following findings
of fact and conclusions of law:
1.
2.

3.

4.

5.

6.

“[Ms. Walker] has not engaged in substantial gainful activity since August
27, 2009, the application date (20 CFR 416.971 et seq.).” (Tr. 17.)
“[Ms. Walker] has the following severe impairments: (1) Chronic cervical
and lumbar strain/sprain; (2) Anxiety disorder, also diagnosed as posttraumatic stress disorder and panic disorder; (3) Dependent personality
disorder v. somatoform disorder; and (4) Learning disorder, NOS (20 CFR
416.920(c)).” (Id.)
“[Ms. Walker] does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925
and 416.926).” (Tr. 18.)
“[Ms. Walker] has the residual functional capacity to perform light work
as defined in 20 CFR 416.967(b) except [she] has a moderate limitation in
the ability to socially function, such that she is precluded from performing
work in which public interaction is a primary job component; and has a
moderate limitation in the ability to concentrate, such that she is unable to
perform work which requires [her] to work for extended periods of time
without brief opportunities for pause.” (Tr. 19.)
“[Ms. Walker] is capable of performing past relevant work as a file clerk.
This work does not require the performance of work-related activities
precluded by [her] residual functional capacity (20 CFR 416.965).” (Tr.
24.)
“[Ms. Walker] has not been under a disability, as defined in the Social
Security Act, since August 27, 2009, the date the application was filed (20
CFR 416.920(f)).” (Tr. 25.)

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In short, the ALJ concluded Ms. Walker 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 she had the residual functional capacity to perform past relevant
work as a file clerk, and that she had not been under a disability since she filed her application in
August 2009. (Tr. 15–25.)
In support of her claim that this Court should reverse the Commissioner’s decision, Ms.
Walker argues the ALJ erred: (1) by not finding her migraine headaches constitute a severe
impairment at step two; (2) by improperly evaluating her credibility; (3) by improperly
determining her residual functional capacity; and (4) by improperly determining she could return
to her past relevant work as a file clerk. The Court addresses each argument in turn.
I. Rejection of Impairments at Step Two
Ms. Walker argues the ALJ erred at step two of the sequential evaluation process by not
finding her migraine headaches constitute a severe impairment. (Pl.’s Br. 11, ECF No. 16.)
Step two of the sequential evaluation process requires the ALJ to decide whether the
claimant has a severe medically determinable impairment. 20 C.F.R. § 416.920(a)(4)(ii). “A
physical or mental impairment must be established by medical evidence consisting of signs,
symptoms, and laboratory findings, not only by your statement of symptoms.” 20 C.F.R. §
416.908; see also 20 C.F.R. § 416.928 (discussing symptoms, signs, and laboratory findings).
If the ALJ cannot so establish an impairment, the impairment does not constitute a
medically determinable impairment. If the ALJ determines an impairment or combination of
impairments qualifies as medically determinable, he must consider whether the impairment
significantly limits a person’s physical or mental ability to do basic work activities and thus
qualifies as severe. 20 C.F.R. § 416.921(a). The Regulations define “basic work activities” as

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“the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 416.921(b). Examples
include walking, standing, seeing, hearing, speaking, understanding instructions, and use of
judgment. (Id.) “[A]lthough a severe impairment must ‘significantly limit an individual’s
physical or mental ability to do basic work activities,’ 20 C.F.R. § 404.1521, [the Tenth Circuit
has] held that this is a ‘de minimus’ showing at step two of the five-step process.” Grogan v.
Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005) (citations omitted) (discussing definition of
“basic work activities” identical to definition under Title XVI, 20 C.F.R. § 416.921).
Here, the ALJ found at step two of the sequential evaluation process that Ms. Walker’s
migraines did not constitute a severe medically determinable impairment. (Tr. 17.) The ALJ
noted that despite Ms. Walker’s claims of severe migraines, an April 2011 brain MRI showed
normal results. (Tr. 17, 613–14.) Noting the record contained no other diagnostic tests related to
Ms. Walker’s migraines, the ALJ concluded that because symptoms alone cannot establish a
medically determinable impairment, Ms. Walker’s migraines did not constitute a medically
determinable impairment. (Tr. 17.)
Many courts have noted that migraines present a particular difficulty at step two. See,
e.g., Groff v. Comm’r of Soc. Sec., No. 7:05-CV-54, 2008 WL 4104689, at *6–8 (N.D.N.Y. Sept.
3, 2008) (recognizing difficulty of objectively identifying migraines as medically determinable
impairments); Federman v. Chater, No. 95 Civ. 2892 (LLS), 1996 WL 107291, at *2–3
(S.D.N.Y. Mar. 11, 1996) (same); see also Abdon v. Astrue, No. 10-96-GWU, 2010 WL
5391452, at *5 (E.D. Ky. Dec. 22, 2010) (noting difficulty of evaluating subjective allegations of
pain stemming from migraines for purposes of evaluating pain in the context of determining the
RFC); McCormick v. Sec’y of Health & Human Servs., 666 F. Supp. 121, 123 (E.D. Mich. 1987)
(noting “[migraine] headaches are not traced easily to an objective medical condition”), aff’d,

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861 F.2d 998 (6th Cir. 1988). In Groff, the district court noted “the elusive task a doctor faces in
diagnosing this impairment as there exists no objective clinical test which can corroborate the
existence of migraines.” Groff, 2008 WL 4104689, at *7–8. The Groff court cited medical
literature noting
[t]he cause [of a migraine] is unknown and the pathophysiology is not fully
understood.... The mechanism for migraines is not well defined, but several
triggers are recognized[, including] insomnia, barometric pressure change, and
hunger.... Symptoms usually follow a pattern in each patient.... The patient may
have attacks daily or only once every several months. Diagnosis is based on the
symptom patterns when there is no evidence of intracranial pathologic changes.
Migraine is more probable when the patient has a family history of migraine....
No diagnostic tests are useful, except to exclude other causes. Treatment depends
on the frequency of attacks and the presence of comorbid illness. In general,
treatment can be classified as prophylactic, abortive, or analgesic.
Id. (alteration in original) (quoting The Merck Manual 1376 (17th ed. 1999)). Thus, the Groff
court found error at step two where the ALJ failed to consider the claimant’s subjective
complaints in finding the claimant’s migraines did not constitute a severe medically determinable
impairment. Id. at *8. Likewise, in Federman, the district court held that because no test exists
for migraine headaches, the ALJ could not rely solely on the absence of objective evidence to
support a finding that the claimant’s migraines did not constitute a severe medically
determinable impairment. Federman, 1996 WL 107291, at *2 (citations omitted).
Like Groff, 2008 WL 4104689, at *6–7, and Federman, 1996 WL 107291, at *2, the
record here contains many references to Ms. Walker’s complaints about migraine symptoms and
the treatments prescribed by multiple doctors. Migraines appear in Ms. Walker’s treatment
history at least as early as 2003 when a doctor at the Health Clinics of Utah prescribed Inderal.
(Tr. 199.) Ms. Walker’s treating physician, Dr. Dixon, treated her for migraines over an
extended period. In September 2008, Ms. Walker told Dr. Dixon she suffered migraines about
three times per week. (Tr. 302.) Dr. Dixon noted she took Imitrex and Percocet for her
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migraines, and he considered starting Ms. Walker on “controlling prophylactic migraine
medicine” if the symptoms increased in severity or frequency. (Id.) In November 2008, Dr.
Dixon administered a Stadol and Phenergan injection to help treat Ms. Walker’s migraine
symptoms. (Tr. 315.) In June 2009, Dr. Dixon noted Ms. Walker’s migraines responded well to
Fioricet but that she did suffer rebound headaches. (Tr. 349.) In February 2010, Dr. Dixon
administered another migraine injection. (Tr. 465.)
In addition, the record contains documentation of multiple migraine-induced visits to the
emergency room. (Tr. 210–11, 240–43, 250–54, 259–61, 277–78, 284–86.) In August 2008,
Ms. Walker complained to doctors at the Ogden Regional Medical Center Emergency
Department (the “Emergency Department”) of an eight-day-old headache. (Tr. 284–86.) Ms.
Walker stated that bright light, noise, and general movement worsened her symptoms. (Tr. 284.)
Doctors treated what they considered a migraine with Imitrex and Valium and told her to followup with her regular doctor in five days. (Tr. 285–86.) In September 2008, Ms. Walker
complained to doctors at the Emergency Department of a three-day-old headache. (Tr. 277.)
The Emergency Department doctor on duty treated Ms. Walker’s migraine with Macrobid. (Tr.
278.) Documentation from January 2009 shows emergency room doctors thought Ms. Walker
had a migraine and treated her with Midrin. (Tr. 259–61.) In June 2009, doctors at the
Emergency Department treated Ms. Walker for a migraine. (Tr. 250–54.)

On July 20, 2009,

Ms. Walker went to the emergency room complaining of a five-day-old migraine. (Tr. 210.) Dr.
Jeremy Booth diagnosed Ms. Walker with chronic migraine headaches and administered
Phenergan. (Tr. 211.)
Thus, given the extensive record of Ms. Walker’s migraine symptoms, and the lengthy
history of treatment from multiple sources, including the improvement of the migraines through

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medical intervention, (see, e.g., tr. 305, 333, 349), substantial evidence does not support the ALJ
finding that Ms. Walker’s migraines do not constitute a medically determinable impairment
based solely on the absence of medical signs and laboratory findings. See, e.g., Groff, 2008 WL
4104689, at *8 n.9 (noting “the ALJ’s inappropriate reliance on the absence of objective
evidence of [migraines] as there appears to be no set test which can establish the existence of this
condition”). The ALJ should have also considered Ms. Walker’s history of complaints and
treatment and found the headaches a medically determinable impairment. See id. at *8 (“Dr.
Peets consistently diagnosed Plaintiff with a migraine condition and treated him for such.
Accordingly, the ALJ erred at Step Two when he determined the absence of a medically
determinable severe impairment and, in turn, failed to consider Plaintiff's subjective
complaints.”) However, 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 because the ALJ found other severe impairments and continued with the sequential
evaluation process. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008); Brescia v.
Astrue, 287 F. App’x 626, 629 (10th Cir. 2008).
II. Evaluation of Ms. Walker’s Credibility
Ms. Walker next argues the ALJ did not properly evaluate her credibility. (Pl.’s Br. 12–
14, ECF No. 16.) The Court disagrees.
“‘Credibility determinations are peculiarly the province of the finder of fact, and [a court]
will not upset such determinations when supported by substantial evidence.’” Kepler v. Chater,
68 F.3d 387, 391 (10th Cir. 1995) (quoting Diaz v. Sec’y of Health & Human Servs., 898 F.2d
774, 777 (10th Cir. 1990)). “However, ‘[f]indings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.’”

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Id. (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)). If objective medical
evidence shows a medical impairment that produces pain, the ALJ must consider the claimant’s
assertions of severe pain and decide the extent to which the ALJ believes the claimant’s
assertions. Id. (citation omitted). To do this, the ALJ should consider such factors as
the levels of medication and their effectiveness, the extensiveness of the attempts
(medical or nonmedical) to obtain relief, the frequency of medical contacts, the
nature of daily activities, subjective measures of credibility that are peculiarly
within the judgment of the ALJ, the motivation of and relationship between the
claimant and other witnesses, and the consistency or compatibility of nonmedical
testimony with objective medical evidence.
Id. (citation and internal quotation marks omitted). But this analysis “does not require a
formalistic factor-by-factor recitation of the evidence. So long as the ALJ sets forth the specific
evidence he relies on in evaluating the claimant’s credibility, the dictates of Kepler are satisfied.”
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
The ALJ found one could reasonably expect Ms. Walker’s medically determinable
impairments to cause her alleged symptoms. (Tr. 20.) However, the ALJ found Ms. Walker’s
statements about the intensity, persistence, and limiting effects of her symptoms lacked
credibility. (Id.) The ALJ provided many reasons for making this finding. (See tr. 20–23.)
First, the ALJ found objective medical evidence did not support Ms. Walker’s testimony. (Tr.
20.) For example, the ALJ noted that MRIs 4 of Ms. Walker’s lumbar and cervical spine “support
some moderate limitations in [Ms. Walker’s] ability to lift and carry” but did not support the
severity of the limitations Ms. Walker claimed. (Id.) The ALJ also noted that Ms. Walker’s
exam findings did not align with her allegations. (Id.) For example, the ALJ noted that while
medical exams supported some limitations to Ms. Walker’s ability to lift, Ms. Walker’s normal

4

The MRIs showed mild-to-moderate hypertrophic facet disease, a small-to-moderate
protruding disc at C5-6, and mild disc bulge at C4-5. (Tr. 616–18.)
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gait, normal strength, and negative straight leg raise results contradicted her allegations of
difficulty standing and walking. (Id.) The ALJ also noted evidence of narcotic-seeking
behavior. (Id. at 21.) For example, Dr. Dixon’s notes indicate Ms. Walker abused medication,
and he threatened to stop prescribing pain medication if she continued to misuse her medications.
(Tr. 470.) Many of Dr. Dixon’s notes identify “narcotic seeking behavior” under a “Problems”
heading. (E.g., tr. 448, 466.) Ms. Walker ultimately violated a “pain contract” with Dr. Dixon
by seeking narcotics from other sources. (Tr. 21, 424.) He thereafter refused to treat Ms.
Walker’s pain. (Tr. 424.) An ALJ may properly consider drug-seeking behavior in evaluating a
claimant’s credibility. See Poppa v. Astrue, 569 F.3d 1167, 1172 (10th Cir. 2009) (noting ALJ
properly considered claimant’s drug-seeking behavior).
The ALJ also found insufficient evidence to support Ms. Walker’s alleged mental
impairments. (Tr. 21–22.) For example, the ALJ noted Ms. Walker did not seek specialized
psychological treatment but relied only on medications. (Tr. 21.) The ALJ also noted that
psychiatric exams administered by Ms. Walker’s primary care physician all showed her to be
appropriate, pleasant, with normal mood and behavior, and normal speech. (See e.g., tr. 323,
325, 329.) Ms. Walker’s activities of daily living also contradict her allegations of severe
anxiety and concentration problems. For example, the ALJ noted Ms. Walker’s testimony that
she uses public transportation, attends church, and talks to neighbors contradicts her allegations
of disabling anxiety, and her testimony that she pays her bills and handles her own
savings/checking account contradicts her allegations of severe memory and concentration
problems. (Tr. 22.)
Finally, the ALJ noted Ms. Walker’s forgery conviction. (Tr. 22–23.) Because forgery
generally requires specific intent to deceive, the ALJ found Ms. Walker’s forgery conviction

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reflected “very poorly on [her] propensity for truthfulness.” (Tr. 23.) An ALJ may consider a
forgery conviction in analyzing a claimant’s credibility. See, e.g., Simmons v. Massanari, 264
F.3d 751, 756 (8th Cir. 2001) (noting forgery conviction detracts from claimant’s credibility).
For the reasons set forth above, the Court finds substantial evidence supports the ALJ’s
evaluation of Ms. Walker’s credibility.
III. RFC Consideration – Phase One
A claimant’s residual functional capacity (“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. § 416.945. The 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) (citation omitted). 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. § 416.945(a)(2).
Ms. Walker argues the ALJ erred at phase one because the Decision: (1) did not
sufficiently explain why substantial evidence supports Ms. Walker’s residual functional capacity;
(2) did not discuss the “uncontroverted evidence not relied upon and the probative evidence he
rejected”; and (3) failed to consider Ms. Walker’s non-severe impairments when evaluating her
residual functional capacity. (Pl.’s Br. 14–16, ECF No. 16.) The Court disagrees with all but the
last point.
The ALJ’s determination of Ms. Walker’s residual functional capacity includes ample
discussion and citations to evidence. The Decision’s discussion of Ms. Walker’s residual
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functional capacity spans five pages and includes frequent citations to the record. (Tr. 19–24.)
The Decision first sets forth Ms. Walker’s testimony about her symptoms and discusses the
ALJ’s determination of Ms. Walker’s credibility. (Tr. 19–21.) The Decision repeats that process
with Ms. Walker’s claimed mental impairments. (Tr. 21–22.) Both of these discussions include
citations to record evidence. For example, in support of his finding that Ms. Walker’s claims
conflicted with exam findings, the ALJ cites to specific portions of five separate exhibits
showing Ms. Walker’s exams show normal strength, gait, sensation, and range of motion, among
other things, contrary to Ms. Walker’s claims. (See tr. 20.) As noted above, the Court finds
substantial evidence supports the ALJ’s determination of Ms. Walker’s credibility.
The Decision then considered statements from third-party witness Bonnie Lehr, Ms.
Walker’s mother, and opinion evidence from the many doctors who examined or treated Ms.
Walker. (Tr. 23–24.) Ms. Walker does not challenge the ALJ’s findings regarding the
persuasiveness of Ms. Lehr’s testimony or the credibility of the doctors’ opinions. Nonetheless,
the ALJ’s treatment of this evidence has relevance to Ms. Walker’s argument that the ALJ did
not adequately explain and support his determination of Ms. Walker’s residual functional
capacity. See Poppa, 569 F.3d at 1171 (“Since the purpose of the credibility evaluation is to help
the ALJ assess a claimant’s RFC, the ALJ’s credibility and RFC determinations are inherently
intertwined.”) The ALJ provided reasons—supported by citations to the record—for according
varying weights to these opinions. (Tr. 23–24.) For example, with regard to his decision to
accord Dr. Dixon’s opinion no weight, the ALJ noted inconsistencies in Dr. Dixon’s opinions.
(Tr. 24.) Although Dr. Dixon opined Ms. Walker could not work, the ALJ pointed to two letters
Dr. Dixon wrote in June 2010 and April 2011. (Id.) In the June 2010 letter Dr. Dixon stated “I
do not think there is anything with [Ms. Walker’s] health [that] should prevent her from

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performing her activities at work normally.” (Tr. 522.) In the April 2011 letter Dr. Dixon
cleared Ms. Walker to “return to work/school.” (Tr. 504.)
Ms. Walker next argues the ALJ erred by not discussing the “uncontroverted evidence
not relied upon and the probative evidence he rejected.” (Pl.’s Br. 15, ECF No. 16.) But Ms.
Walker does not identify what uncontroverted or probative evidence she refers to or where this
evidence appears in the record. Neither does she provide any substantive analysis of this
argument. “The court is not required to consider poorly developed arguments.” Cross v. Colvin,
No. 12-cv-01722-WYD, 2013 WL 5402056, at *2 (D. Colo. Sept. 26, 2013); see also Anderson
v. Colvin, No. 12-cv-01282-REB, 2013 WL 3216140, at *3 n.3 (D. Colo. June 25, 2013)
(declining to consider inadequately briefed and undeveloped arguments). Because the Court
cannot identify the evidence Ms. Walker argues the Decision improperly ignores, the Court
declines to consider this argument.
Finally, Ms. Walker argues the ALJ erred by not considering impairments the ALJ found
not severe. (Pl.’s Br. 15–16, ECF No. 16.) Because the ALJ erred in not finding Ms. Walker’s
migraines a medically determinable impairment, he also erred by failing to consider her
migraines at this step even if they do not rise to the level of severe. See 20 C.F.R. §
416.945(a)(2) (requiring consideration of all medically determinable impairments). For this
reason the Court REMANDS for further analysis considering the impact of Ms. Walker’s
migraines on her RFC.
IV. RFC Consideration – Phases Two & Three
Ms. Walker next argues the ALJ erred at phases two and three of the step-four analysis.
(Pl.’s Br. 16–17, ECF No. 16.) Specifically, Ms. Walker argues the ALJ erred at phase two by
not making any specific findings on the nature of Ms. Walker’s past relevant work. As a result,

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Ms. Walker argues the ALJ erred at phase three, because that step requires the ALJ to compare
the phase-two findings with the residual functional capacity. The Court disagrees.
“At the second phase of the step four analysis, the ALJ must make findings regarding the
physical and mental demands of the claimant’s past relevant work.” Winfrey v. Chater, 92 F.3d
1017, 1024 (10th Cir. 1996) (citing Henrie v. U.S. Dep’t of Health & Human Servs., 13 F.3d 359,
361 (10th Cir. 1993)). In determining the physical and mental demands of a claimant’s past
relevant work, the ALJ may look to the Dictionary of Occupational Titles (“DOT”). See 20
C.F.R. § 416.960(b)(2) (“We may use . . . other resources, such as the ‘Dictionary of
Occupational Titles’ and its companion volumes and supplements . . . to obtain evidence we need
to help us determine whether you can do your past relevant work, given your residual functional
capacity.”); Parise v. Astrue, 421 F. App’x 786, 789 (10th Cir. 2010) (finding reference to DOT
number sufficient to establish physical and mental demands of past relevant work at phase two).
Here, the ALJ found Ms. Walker could perform past relevant work as a file clerk. (Tr.
24.) The Decision, however, did not provide a DOT number for the file clerk position identified
by the ALJ. Nevertheless, the record clearly identifies this position as File Clerk I (clerical),
DOT number 206.387-034. At the Hearing, the vocational expert characterized Ms. Walker’s
prior work, classifying her position as a file clerk at the California dental office as “file clerk I,
light, SVP-3.” (Tr. 46.) Although the vocational expert did not state the DOT number at the
Hearing, and the ALJ did not provide the DOT number in the Decision, the position is readily
identifiable based on the vocational expert’s testimony.
Only one “File Clerk I” position appears in the DOT—DOT number 206.387-034. See
DOT 206.387-034, 1991 WL 671737. The DOT classifies File Clerk I (clerical), DOT number
206.387-034, as light work with a specific vocational preparation (SVP) level of three. Thus,

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because the Court can readily ascertain the position, the ALJ sufficiently referred to a specific
job description for purposes of satisfying his burden to make findings on the physical and mental
demands of Ms. Walker’s past relevant work. See McDonald v. Colvin, No. 4:12CV1313SNLJ,
2013 WL 5406612, at *10 (E.D. Mo. Sept. 25, 2013) (finding ALJ sufficiently referred to a
specific DOT job description where DOT entry was “readily ascertainable from the ALJ’s
description and as the sole entry of ‘furniture mover’ in the DOT index”); see also Wright v.
Astrue, No. 1:12-CV-00014, 2013 WL 275993, at *3 (W.D. Va. Jan. 24, 2013) (refusing to find
error where vocational expert either misstated DOT number or stenographer erroneously
transcribed number).
The vocational expert also testified that a hypothetical individual with Ms. Walker’s
residual functional capacity could perform her prior work as a file clerk. (Tr. 46–47.) The ALJ
cited the vocational expert’s testimony in support of his own findings at phases two and three of
the step-four analysis. (Tr. 24.) “An ‘ALJ may rely on information supplied by the [vocational
expert] at step four.’” Doyal, 331 F.3d at 761 (citation omitted).
The ALJ found Ms. Walker had the residual functional capacity
to perform light work as defined in 20 CFR 416.967(b) except [she] has a
moderate limitation in the ability to socially function, such that she is precluded
from performing work in which public interaction is a primary job component;
and has a moderate limitation in the ability to concentrate, such that she is unable
to perform work which requires [her] to work for extended periods of time
without brief opportunities for pause.
(Tr. 19.) The DOT description of the File Clerk I position, in pertinent part, identifies the
following job duties:
Files records in alphabetical or numerical order, or according to subject matter or
other system: Reads incoming material and sorts according to file system. Places
cards, forms, microfiche, or other material in storage receptacle, such as file
cabinet, drawer, or box. Locates and removes files upon request. Keeps records
of material removed, stamps material received, traces missing files, and types
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indexing information on folders. May verify accuracy of material to be filed.
May enter information on records. May examine microfilm and microfiche for
legibility, using microfilm and microfiche viewers. May color-code material to
be filed to reduce filing errors. May be designated according to subject matter
filed, such as Change-of-Address Clerk (clerical); or according to material filed,
such as File Clerk, Correspondence (clerical)
DOT 206.387-034, 1991 WL 671737. Nothing in the File Clerk I DOT description conflicts
with the ALJ’s determination of Ms. Walker’s residual functional capacity. 5 Looking at the
substance of what the ALJ actually did in the Decision, the ALJ complied with his obligations at
phases two and three of the step-four analysis. See Doyal, 331 F.3d at 761 (noting “the form of
words should not obscure the substance of what the ALJ actually did”).
Although the Decision could have more clearly set forth its findings on the physical and
mental demands of Ms. Walker’s past relevant work, the Court finds substantial evidence
supports the ALJ’s findings at phases two and three of the step-four analysis.
CONCLUSION
Based on the foregoing, the Court finds that the ALJ erred at phase two of the step-four
analysis and REMANDS the Commissioner’s decision in this case for further proceedings
consistent with this Memorandum Decision and Order.
DATED this 27th day of February, 2014.
BY THE COURT:

________________________________
Evelyn J. Furse
United States Magistrate Judge

5

The Court notes Ms. Walker’s RFC may change on remand and makes no determination
of what the RFC should be on remand.
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