Bassett v. Colvin
Filing
16
MEMORANDUM DECISION AND ORDER ON ADMINISTRATIVE APPEAL. Court affirms the ALJ's decision. Signed by Judge Ted Stewart on 11/15/13. (ss)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
CHERYL LOUISE BASSETT,
Plaintiff,
MEMORANDUM DECISION AND
ORDER ON ADMINISTRATIVE
APPEAL
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case No. 1:13-CV-7 TS
Defendant.
This matter comes before the Court on Plaintiff Cheryl Louise Bassett’s appeal from the
decision of the Social Security Administration denying her application for disability insurance
benefits. Having considered the arguments of the parties, reviewed the record and relevant case
law, and being otherwise fully informed, the Court will affirm the administrative ruling.
I. STANDARD OF REVIEW
This Court’s review of the administrative law judge’s (“ALJ”) decision is limited to
determining whether its findings are supported by substantial evidence and whether the correct
1
legal standards were applied.1 Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”2 The ALJ is required to
consider all of the evidence, although he or she is not required to discuss all of the evidence.3 If
supported by substantial evidence, the Commissioner’s findings are conclusive and must be
affirmed.4 The Court should evaluate the record as a whole, including that evidence before the
ALJ that detracts from the weight of the ALJ’s decision.5 However, the reviewing court should
not re-weigh the evidence or substitute its judgment for that of the ALJ’s.6
II. BACKGROUND
A.
PROCEDURAL HISTORY
Plaintiff filed an application for disability insurance benefits in June 2010, alleging
disability beginning December 2009.7 The claim was denied initially on September 29, 2010,8
and upon reconsideration on February 8, 2011.9 Plaintiff then requested a hearing before an ALJ,
1
Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000).
2
Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).
3
Id.
4
Richardson v. Perales, 402 U.S. 389, 402 (1981).
5
Shepard v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).
6
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
7
R. at 155–64.
8
Id. at 77, 83–86.
9
Id. at 80, 88–90.
2
which was held on March 21, 2012.10 The ALJ issued a decision on June 1, 2012, finding that
Plaintiff was not disabled.11 The Appeals Council denied Plaintiff’s request for review on
November 13, 2012.12 Plaintiff then filed the instant action.
B.
MEDICAL HISTORY
In May 2008, Plaintiff attempted suicide by attempting to drive her car over a cliff.13
Plaintiff was admitted to a locked psychiatric unit where she stayed for five days.14 She was
diagnosed with major depressive disorder, anxiety disorder, and hypertension.15
Plaintiff again attempted suicide in November 2008.16 She wrote a suicide note and was
found by a family member covered in blood after she cut her neck, arm, and chest in an attempt
to cut out her heart.17 Plaintiff was again hospitalized for a number of days.18 She was diagnosed
with major depressive disorder and hypertension.19
10
Id. at 28–76.
11
Id. at 14–27.
12
Id. at 1–3.
13
Id. at 281–89.
14
Id. at 287–89.
15
Id. at 288.
16
Id. at 297–300.
17
Id. at 297.
18
Id. at 305–07.
19
Id. at 307, 312.
3
After this suicide attempt, Plaintiff’s employer requested an evaluation to determine
whether Plaintiff could return to work. Plaintiff was evaluated by James A. Bird, Ph.D., in
December 2008.20 Dr. Bird noted that Plaintiff’s “history and psychological assessment are
consistent with major depression disorder.”21 Dr. Bird stated that Plaintiff “has the inherent
intelligence, work ethic, and leadership ability to be a reliable and effective employee.”22
However, because of her depression, Dr. Bird found that it was “not advisable for her to return to
work at this time.”23
On May 21, 2009, Plaintiff presented to the Ogden Clinic with complaints of a cough.24
Plaintiff was diagnosed with acute bronchitis superimposed on chronic lung disease, with
evidence of chronic obstructive lung disease (“COPD”).25 Plaintiff was advised that she had the
lungs of a ninety-nine-year-old and that she needed to stop smoking.26
Plaintiff began having knee problems in 2009. Ultimately Plaintiff had total knee
replacements on both knees: the left knee in May 2010 and the right in July 2010.27 In addition,
20
Id. at 743–50.
21
Id. at 748.
22
Id. at 750.
23
Id.
24
Id. at 408.
25
Id. at 409.
26
Id.
27
Id. at 462–74.
4
Plaintiff repeatedly sought treatment for edema (swelling) in both legs. Plaintiff was also
diagnosed with hypertension and renal insufficiency.
In December 2009, Plaintiff’s alleged onset date, Plaintiff was admitted to the hospital
complaining of chest pain and shortness of breath.28 Plaintiff “required critical care due to the
acute impairment of vital organ systems (respiratory) and a high probability of imminent and life
threatening deterioration. Multiple emergent interventions were required to prevent sudden life
threatening deterioration.”29 A CT scan revealed multiple bilateral pulmonary emboli (blockages
in the arteries of the lungs).30 Plaintiff remained hospitalized for a number of days. Upon
discharge, Plaintiff was advised to stop smoking and was prescribed Coumadin.31
In January 2010, Plaintiff again became suicidal. Plaintiff contacted a crisis hotline
threatening to overdose on Lortab or cut herself with a razor blade.32 Police were called and
Plaintiff was brought to the hospital. Plaintiff was later transferred to another hospital for
psychiatric care.33
28
Id. at 335.
29
Id. at 350.
30
Id. at 333.
31
Id. at 334.
32
Id. at 291–93.
33
Id. at 293.
5
On September 2, 2010, Mark D. Corgiat, Ph.D., examined Plaintiff and reviewed her
medical records.34 Dr. Corgiat noted that Plaintiff had a prominent history of depression with
probable borderline personality disorder.35 Dr. Corgiat also noted that Plaintiff had difficulty
ambulating.36 Dr. Corgiat diagnosed Plaintiff with major depressive disorder, pain disorder, and
borderline personality disorder.37 Dr. Corgiat opined that Plaintiff’s attention, concentration,
memory, learning, calculation abilities, and abstract thinking were all normal.38
On September 16, 2010, Dr. Michael Sumko performed ankle surgery on Plaintiff,
removing hardware previously implanted due to an ankle injury.39
On September 21, 2010, Dr. Dennis Taggart completed a physical residual functional
capacity (“RFC”) assessment on Plaintiff as part of her disability claim.40 Dr. Taggart opined
that Plaintiff could occasionally lift and/or carry twenty pounds and frequently lift and/or carry
ten pounds, stand and/or walk at least two hours in an eight-hour workday, and sit for about six
34
Id. at 534–38.
35
Id. at 537.
36
Id.
37
Id.
38
Id. at 536.
39
Id. at 543–44.
40
Id. at 547–54.
6
hours in an eight-hour workday.41 He further opined that Plaintiff could occasionally climb,
balance, stoop, kneel, crouch, and crawl.42
On September 28, 2010, Joan Zone, Ph.D., completed a psychiatric review technique and
a mental RFC assessment.43 Dr. Zone opined that Plaintiff had mild restrictions in her activities
of daily living; moderate difficulties in maintaining social functioning; moderate difficulties in
maintaining concentration, persistence, or pace; and one or two episodes of decompensation,
each of extended duration.44 In the mental RFC assessment, Dr. Zone opined that Plaintiff was
moderately limited in her ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods.45 Dr. Zone also opined that Plaintiff was
moderately limited in her ability to accept instructions and respond appropriately to criticism
from supervisors.46 Dr. Zone stated that Plaintiff should “be able to deal with at least semiskilled work.”47
41
Id. at 548.
42
Id. at 549.
43
Id. at 557–70, 571–74.
44
Id. at 567.
45
Id. at 572.
46
Id.
47
Id. at 573.
7
Between October and December 2010, Plaintiff sought treatment a number of times due
to leg and foot pain. On December 13, 2010, it was noted that Plaintiff
has trouble with stairs, standing long periods of time, walking long distances, and
has occasions where it feels like her foot goes out on her, causing her to stumble.
She has tried antiinflammatories, rest, ice, has worn stockings, and even had
hardware removal in September of 2010, by Dr. Sumco. None of these things,
unfortunately, have changed her course.48
An MRI showed osteoarthritis in the tibia talar and talonavicular joints.49 A vascular
ultrasound revealed no deep or superficial venous thrombus of the right lower extremity.50
Thrombus in the calf vessels could not be excluded.51
Another MRI was conducted on December 27, 2010. The MRI showed
a posterior tibialis split tear. The flexor retinaculum and deltoid are stripped off
the malleolus. There is an ATFL tear, a CFL tear. She has anterolateral ankle
debris with possible loose body in there. There is arthritis of her talonavicular and
her naviculocuneiform, as well as her tibiotalar joints. There is minimal arthritis
at the posterior aspect of the subtalar joint.52
An injection was recommended to relieve the pain.53
48
Id. at 649.
49
Id. at 653.
50
Id. at 654.
51
Id.
52
Id. at 646.
53
Id.
8
On January 4, 2011, Dr. Christopher Kim completed a physical ability assessment form.54
Dr. Kim stated that Plaintiff could sit frequently and could occasionally stand, walk, climb stairs
or ladders, and use foot controls.55 No other limitations were noted.
In February 2011, non-examining state agency physicians David Peterson, M.D., and
Robert Finley, Ph.D., reviewed the record and affirmed the prior opinions of Drs. Taggart and
Zone.56 Dr. Peterson stated that the “[m]edical evidence continues to indicate that [Plaintiff] is
capable of seated light work.”57 Dr. Finley stated that the “[m]edical evidence continues to
indicate that [Plaintiff] is capable of semi-skilled work.”58
On August 5, 2011, Plaintiff was seen by Dr. Gaurav Aggarwala at Utah Cardiology.
Plaintiff reported chest discomfort and “significant lower extremity discomfort with severe
bilateral lower extremities swelling.”59 Dr. Aggarwala prescribed therapeutic compression
stockings and diuretic therapy.60 He also recommended elevation of the extremities and to avoid
prolonged standing.61
54
Id. at 867–68.
55
Id.
56
Id. at 616–18.
57
Id. at 616.
58
Id. at 618.
59
Id. at 839.
60
Id. at 840.
61
Id.
9
On September 12, 2011, Plaintiff was again seen at Utah Cardiology to follow up on an
echocardiogram.62 Plaintiff again complained of chest discomfort and lower extremity
discomfort and swelling.63 Plaintiff was prescribed therapeutic compression stockings and was
recommended a salt restricted diet.64 Frequent elevation of the extremities and avoidance of
prolonged standing was also recommended.65
C.
HEARING TESTIMONY
At the administrative hearing, Plaintiff testified that she had difficulty breathing and had
been diagnosed with COPD.66 Plaintiff also detailed her knee replacement surgeries and the
surgery on her right ankle.67 Plaintiff testified that she could walk with the assistance of crutches,
but would be unable to walk even half a block without them.68 Plaintiff testified that she was
unable to put weight on her foot.69 Plaintiff later testified that she was unable to afford treatment
with regard to her foot/ankle issues.70
62
Id. at 836.
63
Id.
64
Id. at 837.
65
Id.
66
Id. at 40.
67
Id. at 41.
68
Id. at 42.
69
Id.
70
Id. at 54–56.
10
Plaintiff explained that she had difficulty ambulating and that it could take her nearly
three hours to get ready.71 Plaintiff testified that she could only sit comfortably for twenty to
thirty minutes at a time and could stand for roughly the same amount of time.72 Plaintiff stated
that sometimes her edema would get to the point where she could not walk or stand.73
Kendrick Morrison, M.D., testified at the hearing. Dr. Morrison testified that he had
received and reviewed all of Plaintiff’s medical records in preparation for the hearing.74 Dr.
Morrison opined that neither Plaintiff’s pulmonary problems nor her knee replacements would
result in disability.75 Dr. Morrison further stated that there were insufficient medical records to
opine as to Plaintiff’s ability to work due to her ankle/foot injury.76
A vocational expert, James Cowart, also testified at the hearing. In response to a
hypothetical from the ALJ, Mr. Cowart testified that the hypothetical person could perform
sedentary work and provided two examples of jobs that person could perform.77
71
Id. at 57.
72
Id. at 58–59.
73
Id. at 59.
74
Id. at 45.
75
Id. at 50–51.
76
Id. at 51.
77
Id. at 70–71.
11
D.
POST-HEARING EVIDENCE
After the administrative hearing, Ronald Houston, Ph.D., completed a psychiatric review
technique.78 Dr. Houston noted the categories of mental impairments included 12.04 affective
disorders, 12.06 anxiety-related disorders, 12.08 personality disorders, and 12.09 substance
addiction disorders.79 Dr. Houston opined that Plaintiff had moderate difficulties in maintaining
social function and in maintaining concentration, persistence, or pace without alcohol use, but
marked difficulties with alcohol use.80 Dr. Houston found no episodes of decompensation
without alcohol use, but three with alcohol use.81 Dr. Houston stated that Plaintiff’s impairments
were not severe in the absence of alcohol and that “[t]he severity of all mental impairments
including her personality disorder can be expected to improve in the absence of her binge
drinking.82
A psychological evaluation was conducted by Ralph W. Gant, Ph.D., on April 20, 2012.83
Dr. Gant diagnosed Plaintiff with posttraumatic stress disorder, generalized anxiety disorder,
panic disorder with agoraphobia, major depressive disorder, cognitive disorder, alcohol
78
Id. at 870–904.
79
Id. at 870.
80
Id. at 880.
81
Id.
82
Id. at 870, 884.
83
Id. at 849–66.
12
dependence, and borderline functioning.84 Dr. Gant rated Plaintiff’s limitations as marked
restrictions of activities of daily living; marked difficulties in maintaining social functioning;
marked deficiencies in concentration, persistence, and pace; and repeated episodes of
decompensation within a twelve-month period.85 He further opined that “[g]ive[n] Ms. Bassett’s
conditions in combination it is the judgment of this examiner that she will not be able to work for
a minimal period of one year, with the greater likelihood that she may require much more time to
recover from her circumstances and prepare herself for vocational rehabilitation.”86
E.
THE ALJ’S DECISION
The ALJ followed the five-step sequential evaluation process in deciding Plaintiff’s
claim. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since December 29, 2009, the alleged onset date.87 At step two, the ALJ found that
Plaintiff suffered from the following severe impairments: status post right ankle surgery, status
post total left knee replacement, status post total right knee replacement, COPD, pulmonary
emboli, depression, and anxiety.88 At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or equaled a listed impairment.89 After
84
Id. at 858–59.
85
Id. at 858.
86
Id.
87
Id. at 16.
88
Id.
89
Id. at 17.
13
determining Plaintiff’s RFC, the ALJ found, at step four, that Plaintiff was unable to perform any
of her past relevant work.90 At step five, the ALJ found that there were jobs that exist in
significant numbers in the national economy that Plaintiff could perform and, therefore, she was
not disabled.91
F.
ADDITIONAL EVIDENCE SUBMITTED TO THE APPEALS COUNCIL
The Appeals Council received additional evidence, which it made part of the record.92
The Appeals Council ultimately denied Plaintiff’s request for review.
III. DISCUSSION
Plaintiff raises the following issues in her brief: (1) that the ALJ erred in failing to find
certain impairments to be severe impairments and to consider their effects in combination with
her other severe impairments; (2) the ALJ failed to properly consider the medical opinions; and
(3) the ALJ erred in determining that Plaintiff had the RFC to perform sedentary work.
A.
STEP TWO ANALYSIS
At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
status post right ankle surgery, status post total left knee replacement, status post total right knee
replacement, COPD, pulmonary emboli, depression, and anxiety. Plaintiff argues that the ALJ
erred in failing to find Plaintiff’s hypertension, edema, renal insufficiency, and midfoot
osteoarthritis to also be severe impairments.
90
Id. at 25.
91
Id. at 26–27.
92
Id. at 4, 276–79, 905–55.
14
An impairment is “severe” if it “significantly limits [a claimant’s] physical or mental
ability to do basic work activities.”93 A claimant must make only a de minimis showing for her
claim to advance beyond step two of the analysis.94 However, “a mere presence of a condition is
not sufficient.”95 Thus, “if the medical severity of a claimant’s impairments is so slight that the
impairments could not interfere with or have a serious impact on the claimant’s ability to do
basic work activities, irrespective of vocational factors, the impairments do not prevent the
claimant from engaging in substantial gainful activity.”96
In this case, the Court need not determine whether the ALJ erred in finding that Plaintiff’s
hypertension, edema, renal insufficiency, and midfoot osteoarthritis were not severe because any
error was harmless. The Tenth Circuit has held that an error at step two is harmless when the
ALJ goes on to consider the effects of those impairments at the later steps in the sequential
evaluation.97
In this case, the ALJ went on to consider all but one of these impairments in his
assessment of Plaintiff’s RFC. As to the one impairment not discussed, renal insufficiency, the
medical evidence shows that this impairment was mild and was related to her hypertension,
which the ALJ did specifically discuss. As a result, the Court finds that the ALJ considered these
93
20 C.F.R. §§ 404.1520(c), 416.920(c).
94
Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004).
95
Cowan v. Astrue, 552 F.3d 1182, 1186 (10th Cir. 2008).
96
Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988).
97
See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008).
15
impairments at steps four and five of the sequential process and any error at step two was
harmless.
B.
MEDICAL OPINION EVIDENCE
Plaintiff next argues that the ALJ failed to properly consider the medical opinions.
Specifically, Plaintiff argues that the ALJ failed to accord appropriate weight to the opinion of
Dr. Gant. Further, Plaintiff argues that the ALJ gave too much weight to the opinions of Drs.
Morrison and Kim.
The ALJ, in reviewing the opinions of treating sources, must engage in a sequential
analysis.98 First, the ALJ must consider whether the opinion is well-supported by medically
acceptable clinical and laboratory techniques.99 If the ALJ finds that the opinion is wellsupported, then he must confirm that the opinion is consistent with other substantial evidence in
the record.100 If these conditions are not met, the treating physician’s opinion is not entitled to
controlling weight.101
This does not end the analysis, however. Even if a physician’s opinion is not entitled to
controlling weight, that opinion must still be evaluated using certain factors.102 Those factors
include:
98
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).
99
Id.
100
Id.
101
Id.
102
Id.
16
(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.103
After considering these factors, the ALJ must give good reasons for the weight he ultimately
assigns the opinion.104 If the ALJ rejects the opinion completely, he must give specific,
legitimate reasons for doing so.105
As discussed, Plaintiff was examined by Dr. Gant on April 20, 2012.106 Dr. Gant
diagnosed Plaintiff with posttraumatic stress disorder, generalized anxiety disorder, panic
disorder with agoraphobia, major depressive disorder, cognitive disorder, alcohol dependence,
and borderline functioning.107 Dr. Gant rated Plaintiff’s limitations as marked restrictions of
activities of daily living; marked difficulties in maintaining social functioning; marked
deficiencies in concentration, persistence, and pace; and repeated episodes of decompensation
within a twelve-month period.108
103
Id. at 1301 (quoting Drapeau v. Massanri, 255 F.3d 1211, 1213 (10th Cir. 2001)).
104
Id.
105
Id.
106
R. at 849–66.
107
Id. at 858–59.
108
Id. at 858.
17
The ALJ gave Dr. Gant’s opinion little weight. The ALJ found that Dr. Gant’s opinions
were largely inconsistent with the medical record. The ALJ noted that Dr. Gant opined that
Plaintiff would be marked in her limitations in all areas, but failed to differentiate whether this
was with alcohol use or without, as Dr. Houston had done. The ALJ further noted that while
Plaintiff told Dr. Gant that she was a light drinker, Dr. Gant did not acknowledge that she was
generally seen at the hospital or that she attempted suicide after drinking. The ALJ finally noted
that Dr. Gant’s opinion was also inconsistent with that of Dr. Corgiat.
Plaintiff argues that the ALJ’s treatment of Dr. Gant’s opinion was insufficient because
the ALJ did not specifically articulate the reasons why he gave Dr. Gant’s opinion little weight.
The Court disagrees. The ALJ specifically noted that Dr. Gant’s opinion was largely inconsistent
with the medical record. While Plaintiff faults the ALJ for failing to cite to specific medical
records, the Court notes that Dr. Gant’s opinion was inconsistent with all other experts who
opined about Plaintiff’s mental capabilities. The Court further notes that the ALJ found that Dr.
Gant’s opinion was inconsistent with the opinions of Drs. Houston and Corgiat. Such
inconsistencies provide a basis for the ALJ to accord Dr. Gant’s opinion less weight.109 Based
upon this, the Court finds that the ALJ adequately explained why he chose to give little weight to
Dr. Gant’s opinion.
Plaintiff further takes issue with the fact that the ALJ discounted Dr. Gant’s opinion
because Dr. Gant did not differentiate whether the marked limitations would persist both with or
without alcohol use. Plaintiff argues that “[u]nder Social Security Ruling (“SSR”) 13-2p, if there
109
See Watkins, 350 F.3d at 1301.
18
is medical evidence of a substance use disorder, (“DAA”) the ALJ must determine if the
substance use disorder is a contributing factor material to the determination of disability.”110
Plaintiff argues that “the ALJ failed to complete the proper DAA analysis, but instead
shortcut the process by negatively referencing her alcohol use and discounting the conclusive
opinion of disability.”111
Plaintiff’s argument misses the point. SSR 13-2p concerns “whether DAA is ‘material’
to the finding that the claimant is disabled.”112 In this case, the ALJ was not determining whether
Plaintiff’s alcohol use was material. Rather, the ALJ was considering an examining physician’s
failure to consider Plaintiff’s alcohol use in determining the appropriate weight to give that
opinion. Doing so is consistent with the factors listed above.
Plaintiff next argues that the ALJ erred in his treatment of Dr. Morrison’s opinion. The
ALJ found that Dr. Morrison’s opinion was consistent with the medical record and, though his
opinion was not entitled to controlling weight because he was not a treating physician, it was
highly persuasive and given great weight.113 Plaintiff argues that Dr. Morrison’s opinion, as a
non-examining physician, is entitled to less weight.
“The opinion of an examining physician is generally entitled to less weight than that of a
treating physician, and the opinion of an agency physician who has never seen the claimant is
110
Docket No. 13, at 19.
111
Id. at 20 (internal citation omitted).
112
SSR 13-2p, 2013 WL 621536 (Feb. 20, 2013).
113
R. at 23.
19
entitled to the least weight of all.”114 The ALJ properly noted that Dr. Morrison’s opinion was
not entitled to controlling weight, but was given great weight because it was consistent with the
medical records. Plaintiff argues that the ALJ should have discussed the contradiction between
Dr. Morrison’s opinion that Plaintiff did not have ambulation problems and Plaintiff’s own
complaints concerning her ability to ambulate. However, the ALJ determined that Plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these symptoms [were]
not credible when the complete medical record is reviewed and considered.”115 As will be
discussed, this finding is supported by substantial evidence. Therefore, the Court finds that the
ALJ properly evaluated Dr. Morrison’s opinion.
Finally, Plaintiff argues that the ALJ should not have given great weight to Dr. Kim’s
assessment of Plaintiff’s physical abilities because Dr. Kim is a cardiologist. Whether the
physician is a specialist in the area upon which an opinion is rendered is one of the facts the ALJ
is to consider in evaluating medical opinion testimony. But it is only one factor. While Plaintiff
takes issue with the fact that Dr. Kim was a cardiologist, she points to nothing suggesting that Dr.
Kim was not qualified to evaluate Plaintiff’s physical abilities. Further, Dr. Kim’s opinion was
consistent with the ALJ’s RFC determination, which is supported by substantial evidence.
Therefore, the Court cannot find that the ALJ erred in considering Dr. Kim’s opinion.
114
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
115
R. at 20.
20
C.
RFC DETERMINATION
Plaintiff first argues that the ALJ failed to consider all of Plaintiff’s impairments, along
with their respective limitations or restrictions, in making his RFC determination. Plaintiff fails
to specifically identify which impairments the ALJ allegedly failed to consider. If Plaintiff is
referring to those impairments which the ALJ did not find as severe at step two, the Court would
note that the ALJ discussed each impairment except renal insufficiency. Plaintiff has made no
argument that the failure to consider this impairment changes the RFC determination.
Plaintiff next argues that the ALJ failed to adequately consider Plaintiff’s pain in
determining Plaintiff’s RFC. In his decision, the ALJ found that Plaintiff’s complaints of pain
were not fully credible.
Social Security Ruling 96-7p sets out relevant factors an ALJ should consider in
determining credibility. These include:
(1) the individual’s daily activities; (2) the location, duration, frequency, and
intensity of the individual’s pain or other symptoms; (3) factors that precipitate
and aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken to alleviate pain or other
symptoms; (5) treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms; (6) any measures other than
treatment the individual uses or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping
on a board); and (7) any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.116
116
SSR 96-7p, 1996 WL 374186 (July 2, 1996).
21
In determining credibility, the ALJ must consider the entire case record.117 However, the
Tenth Circuit “does not require a formalistic factor-by-factor recitation of the evidence . . . [s]o
long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant’s
credibility . . . .”118 An ALJ’s “credibility determinations are peculiarly the province of the finder
of fact, and [the reviewing court] will not upset such determinations when supported by
substantial evidence.”119
The ALJ noted that Plaintiff alleged that she was unable to walk, drive, climb stairs, or
get into a vehicle because of her knees. Plaintiff further alleged difficulty with daily chores, as
well as sleep. Plaintiff also alleged difficulty sitting, standing, walking, bending, climbing stairs,
and lifting. Plaintiff alleged difficulties in concentration and focus. Plaintiff further alleged
depression, frustration, crying spells, and lack of motivation and desire. At the hearing, Plaintiff
testified that she had been required to use crutches and could not walk without them. Plaintiff
stated that it took her approximately three hours to get ready for the day because of her inability
to maneuver. Plaintiff testified that she could not sit or stand for more than twenty minutes at a
time. Plaintiff further testified that she did not get out of bed seven or more times per month due
to her physical and mental impairments.
The ALJ found that Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of these symptoms [were] not credible when the complete medical record is
117
Id.
118
Qualls, 206 F.3d at 1372.
119
Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995).
22
reviewed and considered.”120 In making this determination, the ALJ closely examined each
alleged impairment. With regard to Plaintiff’s COPD and pulmonary emboli, the ALJ noted that
Plaintiff smoked for over thirty-three years and continued to smoke despite being told she should
quit. The ALJ further noted that Plaintiff’s clots were resolved with medication and that there
were no indications that Plaintiff had further pulmonary emboli.
The ALJ next considered Plaintiff’s knee impairments, noting that the record reflected
that Plaintiff’s knee surgeries were generally successful at relieving her pain. The ALJ noted that
the record revealed similar success with regard to Plaintiff’s right ankle surgery. The ALJ also
reviewed the medical records concerning Plaintiff’s foot pain. The ALJ noted that an injection
was recommended, but that Plaintiff never scheduled an injection. The ALJ concluded that
“[t]his suggests that the alleged symptoms and limitations may have been overstated as the
claimant no longer sought treatment.”121 Further, though Plaintiff complained of limiting pain,
she had not taken any narcotic-based pain medications.
Turning to her mental limitations, the ALJ noted that Plaintiff largely discontinued
treatment and medication. From this, the ALJ concluded that the symptoms and limitations may
have been overstated and not as limiting as reported. Additionally, the ALJ noted inconsistent
statements that Plaintiff had given to her treatment providers. The ALJ stated that “[a]lthough
the inconsistent information the claimant provided may not be the result of a conscious intention
120
R. at 20.
121
Id. at 22.
23
to mislead, the inconsistencies nevertheless suggest that the information the claimant provided
may not be entirely reliable.”122
The Court finds that the ALJ properly considered Plaintiff’s credibility and there is
substantial evidence to support the ALJ’s conclusions that Plaintiff’s statements concerning her
limitations were not fully credible. Specifically, the ALJ considered Plaintiff’s claims and the
medical evidence concerning those claims. The ALJ further considered the treatment Plaintiff
received and the success of certain treatments Plaintiff received, such as her knee and ankle
surgeries. The ALJ also considered Plaintiff’s failure to seek treatment for allegedly limiting
impairments, the conservative treatment prescribed for her impairments, and Plaintiff’s failure to
comply with recommended treatment. Based on these things, the Court finds that the ALJ’s
determination concerning Plaintiff’s credibility is legally correct and supported by substantial
evidence.
Finally, Plaintiff argues that the ALJ failed to adequately complete a function-by-function
assessment of Plaintiff’s RFC. The ALJ in this case did, however, provide a function-byfunction analysis. Specific, affirmative medical evidence as to each and every work-related task
is not required for an ALJ to determine a claimant’s RFC.123 Therefore, this argument must be
rejected. Plaintiff also argues that there is not substantial evidence to support the ALJ’s RFC
assessment, but does not specifically state what portion of the RFC analysis is not supported. As
a result, the Court cannot properly analyze this argument.
122
Id.
123
See Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004).
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IV. CONCLUSION
Having made a thorough review of the entire record, the Court finds that the ALJ’s
evaluation and ruling is supported by substantial evidence. Therefore, the Commissioner’s
findings must be affirmed. Further, the Court finds that the ALJ applied the correct legal
standard in determining that Plaintiff is not disabled.
For the reasons just stated, the Court hereby AFFIRMS the decision below. The Clerk of
the Court is directed to close this case forthwith.
DATED November 15, 2013.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
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