Cervantez v. Astrue

Filing 22

MEMORANDUM DECISION and ORDER. IT IS HEREBY ORDERED that the Commissioner's decision in this case is AFFIRMED. Signed by Magistrate Judge Paul M. Warner on 02/06/2015. (tls)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
DIANNA M. CERVANTEZ,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 1:14-cv-0008-PMW

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Magistrate Judge Paul M. Warner

Before the court is Dianna M. Cervantez’s (“Plaintiff”) appeal of the Commissioner’s
final decision determining that Plaintiff was not entitled to Supplemental Security Income
(“SSI”) under Title XVI of the Social Security Act. See 42 U.S.C. §§ 1381-1383f. After careful
consideration of the written briefs and the complete record, the court has determined that oral
argument is not necessary in this case.
BACKGROUND
Plaintiff alleges disability due to various physical and mental impairments. Plaintiff
previously applied for SSI, alleging disability beginning on September 30, 2005. 1 Plaintiff’s
application was denied initially and upon reconsideration. 2 On June 15, 2011, Plaintiff requested
a hearing before an Administrative Law Judge (“ALJ”), 3 and that hearing was held on September

1

See docket no. 10, Administrative Record (“Tr.

2

See Tr. 78, 81.

3

See Tr. 96-98.

”) 13, 148-51.

5, 2012. 4 On September 27, 2012, the ALJ issued a written decision denying Plaintiff’s claim for
SSI. 5 On November 25, 2013, the Appeals Council denied Plaintiff’s request for review, 6
making the ALJ’s decision the Commissioner’s final decision for purposes of judicial review.
See 42 U.S.C. § 1383(c)(3); 20 C.F.R. § 416.1481.
On February 3, 2014, Plaintiff filed her complaint in this case, which was assigned to
Chief District Judge David Nuffer. 7 On February 4, 2014, Chief Judge Nuffer referred the case
to Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B). 8 See 28 U.S.C.
§ 636(b)(1)(B). The Commissioner filed her answer and the administrative record on April 7,
2014. 9 On July 8, 2014, both parties consented to having a United States Magistrate Judge
conduct all proceedings in the case, including entry of final judgment, with appeal to the United
States Court of Appeals for the Tenth Circuit. 10 Consequently, this case was reassigned to
Magistrate Judge Warner pursuant to 28 U.S.C. § 636(c) and rule 73 of the Federal Rules of Civil
Procedure. 11 See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

4

See Tr. 31-77.

5

See Tr. 10-30.

6

See Tr. 1-6.

7

See docket no. 3.

8

See docket no. 5.

9

See docket nos. 8, 10.

10

See docket no. 18.

11

See id.
2

Plaintiff filed her opening brief on August 1, 2014. 12 The Commissioner filed her answer
brief on September 15, 2014. 13 Plaintiff filed her reply brief on October 1, 2014. 14
STANDARD OF REVIEW
This court “review[s] the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotations and
citation omitted). The Commissioner’s findings, “if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. It requires more than a
scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084 (quotations and citation omitted).
“In reviewing the ALJ’s decision, [this court may] neither reweigh the evidence nor substitute
[its] judgment for that of the [ALJ].” Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006)
(quotations and citation omitted). “The failure to apply the correct legal standard or to provide
this court with a sufficient basis to determine that appropriate legal principles have been
followed [are] grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005)
(quotations and citation omitted).
A five-step evaluation process has been established for determining whether a claimant is
disabled. See 20 C.F.R. § 416.920(a)(4)(i)-(v); see also Williams v. Bowen, 844 F.2d 748, 750-51
(10th Cir. 1988) (discussing the five-step process). If a determination can be made at any one of

12

See docket no. 19.

13

See docket no. 20.

14

See docket no. 21.
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the steps that a claimant is or is not disabled, the subsequent steps need not be analyzed. See 20
C.F.R. § 416.920(a)(4).
Step one determines whether the claimant is presently
engaged in substantial gainful activity. If [the claimant] is,
disability benefits are denied. If [the claimant] is not, the decision
maker must proceed to step two: determining whether the claimant
has a medically severe impairment or combination of
impairments. . . . If the claimant is unable to show that his
impairments would have more than a minimal effect on his ability
to do basic work activities, he is not eligible for disability benefits.
If, on the other hand, the claimant presents medical evidence and
makes the de minimis showing of medical severity, the decision
maker proceeds to step three.
Williams, 844 F.2d at 750-51 (quotations and citations omitted); see 20 C.F.R. § 416.920(a)(4)(i)(ii).
“Step three determines whether the impairment is equivalent to one of a number of listed
impairments that . . . are so severe as to preclude substantial gainful activity . . . . If the
impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to
benefits. If not, the evaluation proceeds to the fourth step . . . .” Williams, 844 F.2d at 751
(quotations and citations omitted); see 20 C.F.R. § 416.920(a)(4)(iii). At the fourth step, the
claimant must show that the impairment prevents performance of his “past relevant work.” 20
C.F.R. § 416.920(a)(4)(iv). “If the claimant is able to perform his previous work, he is not
disabled.” Williams, 844 F.2d at 751. If, however, the claimant is not able to perform his
previous work, he “has met his burden of proof, establishing a prima facie case of disability.” Id.
At this point, “[t]he evaluation process . . . proceeds to the fifth and final step.” Id. At
this step, the burden of proof shifts to the Commissioner, and the decision maker must determine
“whether the claimant has the residual functional capacity [(“RFC”)] . . . to perform other work
in the national economy in view of his age, education, and work experience.” Id.; see 20 C.F.R.
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§ 416.920(a)(4)(v). If it is determined that the claimant “can make an adjustment to other work,”
20 C.F.R. § 416.920(a)(4)(v), he is not disabled. If, on the other hand, it is determined that the
claimant “cannot make an adjustment to other work,” 20 C.F.R. § 416.920(a)(4)(v), he is
disabled and entitled to benefits.
ANALYSIS
In support of her claim that the Commissioner’s decision should be reversed, Plaintiff
argues that the ALJ erred (1) in his assessment of the opinions of Melanie Hughes (“Ms.
Hughes”), (2) in his evaluation of Plaintiff’s credibility, and (3) at step five of the sequential
evaluation process. The court will address those arguments in turn.
I. Ms. Hughes
Plaintiff first argues that the ALJ erred in his evaluation of the opinions of Ms. Hughes,
who is a nurse practitioner. As a nurse practitioner, Ms. Hughes is considered an “other source.”
See Social Security Ruling (“SSR”) 06-03p. Pursuant to SSR 06-03p, the factors for evaluating
the opinions of treating physicians apply with equal weight to the opinions “other sources.” See
id.; see also 20 C.F.R. § 416.927(c). However, not every factor will apply in every case in
which there is opinion evidence form a treating source that is an “other source.” See SSR 0603p.
In deciding how much weight to give a treating source
opinion, an ALJ must first determine whether the opinion qualifies
for controlling weight. To make this determination, the ALJ . . .
must first consider whether the opinion is well[ ]supported by
medically acceptable clinical and laboratory diagnostic techniques.
If the answer to this question is “no,” then the inquiry at this stage
is complete. If the ALJ finds that the opinion is well[ ]supported,
he must then confirm that the opinion is consistent with other
substantial evidence in the record. If the opinion is deficient in
either of these respects, then it is not entitled to controlling weight.
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Even if a treating physician’s opinion is not entitled to
controlling weight, treating source medical opinions are still
entitled to deference and must be weighed using all of the factors
provided in [20 C.F.R. § 416.927]. Those factors are: (1) the
length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment
relationship, including the treatment provided and the kind of
examination or testing performed; (3) the degree to which the
physician’s opinion is supported by relevant evidence; (4)
consistency between the opinion and the record as a whole; (5)
whether or not the physician is a specialist in the area upon which
an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Under the regulations, the agency rulings, and [Tenth
Circuit] case law, an ALJ must give good reasons . . . for the
weight assigned to a treating physician’s opinion . . . that are
sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical
opinion and the reason for that weight. If the ALJ rejects the
opinion completely, he must then give specific, legitimate reasons
for doing so.
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quotations and citations omitted)
(sixth alteration in original); see also 20 C.F.R. § 416.927(c).
An ALJ is not required to discuss every factor set forth in the relevant regulations. See
Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (stating that when an ALJ does not
discuss every factor, it “does not prevent this court from according his decision meaningful
review”). As with other evidentiary matters, when an ALJ is considering medical opinion
evidence, it is the ALJ’s role to weigh and resolve evidentiary conflicts and inconsistencies See,
e.g., Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000); Eggleston v. Bowen, 851 F.2d 1244,
1247 (10th Cir. 1988).
In this case, the ALJ considered proper factors in determining that opinions of Ms.
Hughes were entitled to reduced weight. The ALJ relied upon the fact that the opinions of Ms.
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Hughes were unsupported other evidence in the record. See 20 C.F.R. § 416.927(c)(3). The ALJ
also considered the fact that the opinions of Ms. Hughes were inconsistent with the relatively
benign physical examination results and the great weight of other evidence in the record. See 20
C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). Finally, the ALJ properly cited to the fact that Ms.
Hughes was not a treating source and was not an acceptable medical source. See SSR 06-03p.
Much of Plaintiff’s argument on this point is directed at rearguing the weight of the
evidence before the ALJ. The court notes that such a tactic is futile on appeal. See Madrid, 447
F.3d at 790. Indeed, it is the ALJ’s role to weigh and resolve evidentiary conflicts and
inconsistencies. See Rutledge, 230 F.3d at 1174; Eggleston, 851 F.2d at 1247. From an
evidentiary standpoint, the only issue relevant to the court is whether substantial evidence exists
in the record to support the ALJ’s conclusions. See Oldham, 509 F.3d at 1257 (providing that the
court reviewing the ALJ’s decision reviews “only the sufficiency of the evidence, not its weight”
(emphasis omitted)); see also Lax, 489 F.3d at 1084 (“The possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s findings
from being supported by substantial evidence. We 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.” (quotations and citations omitted)
(alteration in original)).
Finally, to the extent that Plaintiff challenges that ALJ’s treatment of other medical
opinions for the first time in her reply brief, the court will not consider those challenges. See,
e.g., Madron v. Astrue, 311 Fed. App’x 170, 174 n.4 (10th Cir. 2009) (noting that a party’s failure
to raise an issue in an opening brief results in waiver of that issue); see also Anderson v. United

7

States Dep’t of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005) (“The failure to raise an issue in an
opening brief waives that issue.”).
Based on the foregoing, the court concludes that the ALJ did not err in his evaluation of
the opinions of Ms. Hughes.
II. Credibility
Plaintiff next argues that the ALJ erred in his credibility assessment. In general,
“[c]redibility determinations are peculiarly the province of the finder of fact, and [this court] will
not upset such determinations when supported by substantial evidence.” Kepler v. Chater, 68
F.3d 387, 391 (10th Cir. 1995) (quotations and citation omitted). Although credibility
determinations “should be closely and affirmatively linked to substantial evidence,” id.
(quotations and citation omitted), they “do[] not require a formalistic factor-by-factor recitation
of the evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
SSR 96-7p clarifies the standards an ALJ must apply when evaluating the credibility of
an individual’s statements, including his or her allegations of pain. See SSR 96-7p. In addition
to the objective medical evidence, an ALJ should consider the following factors when assessing
the credibility of an individual’s statements:
1.
2.
3.
4.
5.
6.

The individual’s daily activities;
The location, duration, frequency, and intensity of the
individual’s pain or other symptoms;
Factors that precipitate and aggravate the symptoms;
The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate
pain or other symptoms;
Treatment, other than medication, the individual receives or
has received for relief of pain or other symptoms;
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
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7.

Any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.

Id.; see 20 C.F.R. § 416.929(c); see also Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir.
1993).
In this case, the ALJ relied upon proper factors to support his determination that
Plaintiff’s statements about her alleged impairments and limitations were not fully credible. The
ALJ properly relied upon the fact that the medical record contradicted Plaintiff’s complaints
concerning her physical and mental disabilities. See 20 C.F.R. § 416.929(c)(4); SSR 96-7p; see
also Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988) (providing that an ALJ can consider
“the consistency or compatibility of nonmedical testimony with objective medical evidence”
when assessing credibility). The ALJ also properly considered Plaintiff’s daily activities in
reaching the credibility determination in this case. See 20 C.F.R. § 416.929(c)(3)(i); SSR 96-7p.
As with her previous argument, Plaintiff reargues the weight of the evidence before the
ALJ on this issue. The court again notes that such a tactic must fail on appeal. See Oldham, 509
F.3d at 1257; Lax, 489 F.3d at 1084; Madrid, 447 F.3d at 790; Rutledge, 230 F.3d at 1174;
Eggleston, 851 F.2d at 1247.
The ALJ articulated sufficient reasoning and relied upon proper factors in determining
that, overall, Plaintiff’s testimony was not fully credible. Furthermore, the court concludes that
the ALJ’s determination is “closely and affirmatively linked to substantial evidence.” Kepler, 68
F.3d at 391 (quotations and citation omitted). Accordingly, the court concludes that the ALJ did
not err in his assessment of Plaintiff’s credibility.

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III. Step Five
Finally, Plaintiff argues that the ALJ erred at step five of the sequential evaluation process
by concluding that there were jobs in significant numbers in the national economy that Plaintiff
could perform. Plaintiff first contends that the ALJ should have included more limitations in
Plaintiff’s RFC and in the hypothetical provided to the vocational expert (“VE”). However,
Plaintiff has not demonstrated any error in the ALJ’s RFC assessment or in the hypothetical the
ALJ provided to the VE. Instead, Plaintiff merely points to selective portions of the record that
support her argument that she had more limitations that those identified by the ALJ. Again, that
is an argument directed at the weight of the evidence, which this court will not consider on
appeal. See Oldham, 509 F.3d at 1257; Lax, 489 F.3d at 1084; Madrid, 447 F.3d at 790;
Rutledge, 230 F.3d at 1174; Eggleston, 851 F.2d at 1247. In this case, the ALJ included all of the
limitations contained in the final RFC determination in the hypothetical provided to the VE.
Accordingly, there was no error. See, e.g., Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000)
(“The ALJ propounded a hypothetical question to the VE that included all the limitations the ALJ
ultimately included in his RFC assessment. Therefore, the VE’s answer to that question provided
a proper basis for the ALJ’s disability decision.”).
Plaintiff’s second argument on this point is that the ALJ erred in determining that the
identified jobs existed in significant numbers in the national economy. In support of her
argument, Plaintiff relies upon Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992). Plaintiff
reliance on that case is misplaced. As the Tenth Circuit as noted, “[in] Trimiar the focus was on
jobs in the regional economy because the [VE] in that case testified only to the number of
available jobs in the regional economy.” Raymond v. Astrue, 621 F.3d 1269, 1274 n.2 (10th Cir.
2009). “The court in Trimiar indicated that the relevant test is either jobs in the regional
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economy or jobs in the national economy.” Id. In this case, the VE did not testify to and the
ALJ did not ultimately identify jobs that existed only in the regional economy. To the contrary,
the VE and the ALJ both identified jobs that existed in the national economy. In any event, as
noted by the Commissioner, the number of jobs identified by the VE and the ALJ, even when
reduced in number for Plaintiff’s limitations, were significant in number (20,000 cutter-paster
jobs; 24,000 touch-up screener jobs; 40,000 office helper jobs; and 12,500 inspector and hand
packager jobs).
For those reasons, the court concludes that Plaintiff’s step five argument is without merit.
CONCLUSION AND ORDER
Based on the foregoing, the court concludes that all of Plaintiff’s arguments fail.
Accordingly, IT IS HEREBY ORDERED that the Commissioner’s decision in this case is
AFFIRMED.
IT IS SO ORDERED.
DATED this 6th day of February, 2015.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

11