Gonzales v. Astrue

Filing 16

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Yvonne Laforett Gonzales. IT IS RECOMMENDED that the ALJ's decision be AFFIRMED. Magistrate Judge Samuel Alba no longer assigned to case. Objections to R&R due by 11/10/2010. Signed by Magistrate Judge Samuel Alba on 10/26/2010. (jtj)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

YVONNE LAFORETT GONZALES,
Plaintiff,

Case No. 2:09-cv-S73-CW

v.

MICHAEL J. AS TRUE ,
Commissioner of Social
Security Administration,

REPORT AND RECOMMENDATION

Defendant.

Before the Court is an action filed by Plaintiff, Yvonne
Laforett Gonzales, asking the Court to reverse the final agency
decision denying her applications for Disability Insurance
Benefits (hereafter "DIB") and Supplemental Security Income
(hereafter "SSI") under Titles II' and XVI of the Social Security
Act.

See 42 U.S.C.

Law Judge

§§

401-433, 1381-1383f.

The Administrative

(hereafter "ALJ") found that Ms. Gonzales was not

disabled because she was capable of making a successful
adjustment to work that exists in significant numbers in the
national economy.

Ms. Gonzales now challenges the ALJ's decision

by arguing that it is legally erroneous and not supported by
substantial evidence.

~_~=_~Rurs uant~to'--Ci-v-il=Rule-=-7 cl~(-f-)=Q-f~t11e--Rli-les~Q-f--Rl:'aG-~iG e-t-6i,---- - - -

the United States District Court for the District of Utah,
because the Court concludes that oral arguments are not necessary
in this case, the Court denies Ms. Gonzales's request for oral
argument (Doc. 12, at 2) and has determined this case on the
basis of the briefing alone.

See DUCivR 7-1(f).

Having carefully considered the parties' memoranda and the
complete record in this matter, the Court recommends that the
case be affirmed.
FACTUAL BACKGROUND
Ms. Gonzales was born on October 20, 1960, was 44 years old
on her alleged onset date of May 25, 2005, and was 48 on the date
of the ALJ's decision.

(DOC. 10, the certified copy of the

transcript of the entire record of the administrative proceedings
relating to Yvonne Laforett Gonzales (hereafter "Tr.

") 21,

She attended high school and almost completed the 10 th

220. )
grade.

(Tr. 42-43.)

In her past relevant work, Ms. Gonzales

worked as a caShier, a "light" job.

(Tr. 64.)

Ms. Gonzales was involved in a car accident on May 25, 2005,
her alleged onset date.

(Tr. 31, 211.)

The medical evidence

reveals that she saw Dr. Stephen Wood both before and after the
car accident.

(Tr. 211-212.)

At Dr. Wood's direction, Ms.

Gonzales underwent an MRI examination of her back in September

2

--~.~()()-5-o'--(~T-r-.----2-()-7T-2-Jc8-.;2-1~)--····-

'I'he'--MR-I--'-sheweEl=m-i-lEl-'-'h¥peF&-i'Gl"fl.ie-·

facet joint changes" in parts of her lumbar spine at L4-5, which
caused "mild central stenosis" at L3-4 and L4-5.

(Tr. 219.)

all other respects, the MRI of her lumbar spine was normal.

In
(Tr.

In addition, an MRI of her cervical spine was completely

219. )

normal, revealing no problems.

(Tr. 220-21.)

In May through September 2006, Dr. Wood examined Ms.
Gonzales occasionally, but his examination notes are handwritten,
sparse, and difficult to read.

It appears that Dr. Wood found

that Ms. Gonzales had reduced range of motion in her neck, back
and right shoulder.

(Tr. 205, 207,

211.)

Dr. Wood did not

indicate how much Ms. Gonzales's range of motion was reduced.
Dr. Wood also noted that Ms. Gonzales had occasional pain in her
lower back and, perhaps,
which areas) .

in other areas

(Tr. 205, 207.)

(his notes do not specify

In September 2006, Dr. Wood found

that Ms. Gonzales had a positive straight leg raising test at 45
degrees as to her left leg.

(Tr. 197.)

In March 2007, Richard Ingebretsen, M.D.,

Ph.D.,

Ms. Gonzales to determine her level of functioning.
24. )

examined
(Tr. 222-

Dr. Ingebretsen noted that Ms. Gonzales walked into the

examination room without the use of a cane and she carried a
purse.

(Tr.222.)

In reporting Ms. Gonzales's functional

3

~~-sctattls-;Br .-'mgebretsen-wf6te---'that-she=was-"general~ly-±rrdeperrdent-------------

in all activities of daily living and self care."

(Tr.222.)

He

reported that Ms. Gonzales could, inter alia, cook, do laundry
(using her left hand), and drive an automatic transmission car.
(Tr. 222.)

According to Dr. Ingebretsen, Ms. Gonzales could sit

for one hour at a time and walk or stand for 15 minutes at a
time.

(Tr. 222.)
Regarding the results of testing, Dr. Ingebretsen found that

Ms. Gonzales could "squat to about 30% of normal" and had normal
muscle strength in her extremities.

(Tr. 223.)

As to the

neurological examination, Dr. Ingebretsen reported that Ms.
Gonzales had a normal gait and she could tandem walk.

(Tr. 224.)

The doctor noted that Ms. Gonzales refused to attempt to heel
walk or toe walk.

(Tr. 224.)

Dr. Ingebretsen found that Ms.

Gonzales had pain in her right shoulder but no pain in her hand
joints or knees.

(Tr. 224.)

He also found that she had no

tenderness in- any part of her spine.

(Tr. 224.)

Dr. Ingebretsen

reported that MS. Gonzales had normal range of motion in her left
arm and both knees, but limited range of motion in her right arm
and spine

(approximately 75 percent of normal) .

(Tr.224.)

Dr.

Ingebretsen found that Ms. Gonzales's straight leg raising test
was negative, or normal, in both legs.

4

(Tr. 224.)

Dr.

reflex loss.

(Tr. 222-24.)

Dr. Ingebretsen concluded that Ms. Gonzales's chief medical
problem was her sore right shoulder, which showed a marked
decrease in range of motion and meant that "[s)he would have a
hard time using her right arm for work."

(Tr. 224.)

The doctor

observed that she "walked normally without the use of a cane."
(Tr. 224.)

He also found that Ms. Gonzales could concentrate,

"but pain might limit the time," she could reason and communicate
well, and she was able to follow commands.

(Tr.224.)

In July 2007, Dr. Wood cleared Ms. Gonzales "to start
interviewing to return to work."

(Tr. 198.)

In October 2007, Dr. Wood completed several questionnaires
to support Ms. Gonzales's request for disability benefits.
247-48, 249-54,

255-58.)

(Tr.

On one of the questionnaires, Dr. Wood

indicated that Ms. Gonzales met many of the criteria for Listing
1.04A (Tr. 247-48), but - according to Dr. Wood - Ms. Gonzales
did not meet all of the required criteria because she did not
have sensory or reflex loss.

(Tr.248.)

Dr. Wood did check a

box indicating that Ms. Gonzales's impairments equaled a listing;
however, when prompted to "explain in detail" that determination,
Dr. Wood offered no explanation.

(Tr. 248.)

5

Gonzales's headaches.

(Tr.249-54.)

He checked boxes indicating

that her headaches resulted from anxiety/tension and cervical
disc disease.

(Tr. 251.)

Dr. Wood also checked a box stating

that Ms. Gonzales could not tolerate low stress jobs, but although prompted - he did not indicate that she would need to
take unscheduled breaks during a work day.

( Tr. 252 - 5 3 . )

In

response to the inquiry asking whether Ms. Gonzales would have
limitations in the ability to sit, stand, walk, lift, bend,
stoop, or use her extremities, Dr. Wood identified no such
limitations.

(Tr. 253-54.)

In a third questionnaire, Dr. Wood checked boxes indicating
that Ms. Gonzales had a number of extreme limitations that
precluded her ability to work.

(Tr. 255-58.)

Among other

things, he indicated that Ms. Gonzales:

(1) could lift only less

thari ten pounds, and only occasionally;

(2) could sit, stand, and

walk for less than two hours;
unpredictable intervals;

(3) would need to lie down at

(4) could never engage in any postural

activities (e.g. climb stairs);

(5) could not ambulate

effectively; and (6) would miss work more than three times a
month.

(Tr.255-58.)

In July 2008, Dr. Wood wrote two almost identical letters to

6

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______

paragraph letters, he wrote that Ms. Gonzales was unable to work
indefinitely.

(Tr. 262.)

At the hearing before the ALJ, Ms. Gonzales, who was
represented by counsel, testified that after her accident in May
2005,

she did not have any pain and the MRI examinations "came

back negative on everything"

(Tr. 31); however, Ms. Gonzales said

she later experienced such extreme pain that she could no longer
work (Tr. 31-32).

She testified that she could not lift even a

gallon of milk (Tr. 33) and that she could cook simple things, do
laundry, and drive (Tr. 40-41).

Ms. Gonzales also said she could

climb stairs using the handrails

(Tr. 44), sit through a

television show lasting one-half hour, and sit at a movie theater
watching a movie for 20 minutes (Tr. 47-48, 51).
Ken Lister, a vocational expert (hereafter "VE") , who
testified without objection, identified Ms. Gonzales's past
relevant work as cashier 2 (light work with a Specific vocational
Preparation (hereafter "SVP")

level of 2, unskilled work) based

on Ms. Gonzales's description of her past jobs.

(Tr. 64.)

The

ALJ. asked the VE to consider a person who could do sedentary,
unskilled work with several additional limitations:'

lift no more

than five pounds, and the lifting would be primarily with the

7

l,~-cxtrBmtty;---ut::t:a13i"brr"(I~J:y~rrf·t~a:rrd~carry-a:rei-cJ:e-s~f·rom'~~~

three to five pounds; sit for six hours in a workday; stand/walk
for two hours, with a "liberal ten to 15 minute sit/stand
option"; make brief postural changes every ten to,fifteen
minutes; not do overhead lifting or reaching of any significance
with the right upper extremity; occasionally handle, reach and
finger with the right upper extremity - in particular, could use
the right shoulder only occasionally; and not do repetitive
activities with either upper extremity.

(Tr.64-65.)

The VE

testified that such a person could not do Ms. Gonzales's past
work because that job required a light exertional level (Tr. 65);
however, the VE also testified that such a person could do the
sedentary, unskilled jobs of surveillance system monitor, call
out operator, and food and beverage order clerk (Tr. 65-67)
In a second hypothetical question, the ALJ added the
following limitations:
production level,
memory level.

(3)

work at a

(1) low stress level,

(2)

lower

lower concentration level, and (4) lower

The VE testified that such a person could still

perform the aforementioned jobs, but the number of jobs would be
reduced.

(Tr. 64-68.)

In his decision, the ALJ found that MS. Gonzales had not
engaged in substantial gainful activity since May 25, 2005 (Tr.

8

14"tT--rlra:el'1s-.--e6nZa-:tes~had-t-he=f(H-bjw-±rrg--s eve¥'e=imj3ac-tl"meFl-&s::-----right shoulder disorder, disorders of the back (discogenic and
degenerative), and depression (Tr. 14); and that Ms. Gonzales's
impairments did not satisfy a listed impairment, specifically
Listings 1.04 (disorders of the spine) and 12.04 (affective
disorders)

(Tr. 15-16).

The ALJ then found that Ms. Gonzales's

impairments resulted in the residual functional capacity
(hereafter "RFC") described in the second hypothetical question
(set forth in the above paragraph) given to the VE during the ALJ
hearing.

(Tr. 16.)

Considering this RFC, the ALJ determined

that Ms. Gonzales could not perform her past work, but she could
perform other substantial, gainful work in the national economy.
(Tr.21-23.)

AS a result, the ALJ determined that MS. Gonzales

was not disabled.

(Tr. 23, 24.)

PROCEDURAL BACKGROUND
MS. Gonzales filed for DIB and SSI on November 9, 2006,
alleging she had been disabled since May 25, 2005.

(Tr. 12.)

After her application was denied initially, Ms. Gonzales
requested a hearing before an ALJ.
August 4,

(Tr. 12, 25-78.)

After the

2008 hearing before the ALJ, the ALJ issued a decision

finding Ms. Gonzales was not disabled from May 25, 2005, through
December 1, 2008, the date of the decision.

9

(Tr. 12-24.)

After

Ehe-ApPEra:l~s~eount!:H--den-ieEl-Mi3~'-GeH-z,acl@gC'g~request~for_Lexie~(~T~r~._ _ __

1-6), the ALJ's decision became the Commissioner's final
decision.

See 20 C.F.R.

§

404.981.

As such, Ms. Gonzales had

exhausted her administrative remedies and the case was ripe for
judicial review.

See 42 U.S.C.

§

405(g).

On June 29, 2009, after receiving the Appeals Council's
denial of her request for review, Ms. Gonzales filed her
Complaint and the case was assigned to United States District
Judge Clark Waddoups.

(Doc. 3.)

Ms. Gonzales filed her

memorandum requesting that the Commissioner's decision be
reversed or remanded on March 12, 2010.

(DOC. 12.)

2010, the Commissioner filed his response memorandum.

On April 12,
(Doc. 13.)

MS'. Gonzales filed her reply memorandum on June 10, 2010.

(Doc.

15. )
On April 16, 2010, Judge waddoups referred the case to
United States Magistrate Judge Samuel Alba pursuant to 28 U.S.C.
§

636 (b) (1) (B) .

(Doc. 14.)

STANDARD OF REVIEW
The Court reviews the Commissioner's decision to determine
whether the factual findings are supported by substantial
evidence and whether correct legal standards were applied.
Lax

v. Astrue, 489 F.3d 1080, 1084 (loth Cir. 2007).

10

See

"Substantial

··evlaehceis~rsucl1· relevahCE:Vi-a.BTIcB~s-a-re-a:sDhabY~m±nd-rrf±ght=···=---­

accept as adequate to suppor,t a conclusion,'" Doyal v. Barnhart,
331 F.3d 758, 760 (lOth Cir. 2003)

(citation omitted), and

"requires more than a scintilla but less than a preponderance,"

Lax, 489 F.3d at 1084.

The Commissioner's findings,

"if

supported by substantial evidence, shall be conclusive."
u.s.C.

§

42

405(g).

The Court will not reweigh the record evidence or substitute
its judgement for that of the agency in determining the validity
of Ms. Gonzales's arguments. See Oldham v. Astrue, 509 F.3d 1254,
1257 (10th Cir. 2007)

("To the extent that [plaintiff]

is asking

this court to reweigh the evidence, we cannot do so."); Lax, 489
F.3d at 1084.

The Court may only review the ALJ's decision for

legal error and may review the evidence to evaluate its
sufficiency, not its weight.

See id.; see also Flaherty v.

Astrue, 515 F. 3d 1067, 1071 (10th Cir. 2007)

("Our limited scope

of review precludes this court from reweighing the evidence or
substituting our judgment for that of the [Commissioner]."
(quoting Hamilton v. Sec'y of Health & Human Servs.,

961 F.2d

1495, 1500 (10th Cir. 1992))).
ANALYSIS

Ms. Gonzales challenges the ALJ's decision by arguing it is

11

erroneous.

Specifically, Ms. Gonzales argues:

(1) the ALJ

improperly evaluated the medical evidence and the opinion of Dr.
Wood, Ms. Gonzales's treating physician;

(2) the ALJ failed to

properly take into consideration all of Ms. Gonzales's severe
impairments and failed to properly determine her RFC; and (3) the
ALJ's finding that Ms. Gonzales did not meet Listing 1.04 is not
supported by substantial evidence.
I.

Dr. Wood's Opinion

The Court first examines Ms. Gonzales's argument that the
ALJ did not give proper weight to the opinions of Dr. Wood, Ms.
Gonzales's treating physician.
An ALJ is required to give controlling weight to the
well-supported opinion of a treating physician, so long as it is
not inconsistent with other substantial evidence in the record.
See 20 C.F.R.

§§

404.1527(d) (2)

&

416.927(d) (2); see also Watkins

v. Barnhart, 350 F.3d 1297, 1300 (loth Cir. 2003); Bean v. Chater,
77 F.3d 1210, 1214 (lOth Cir. 1995).

The ALJ must first consider

whether the medical opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques.

I f it

is not, then the opinion is not given controlling weight.

I f it

is so supported, then the ALJ must determine whether the opinion

12

------~gtmt_wtth-6EheI

-saffirta:r1t'-htl- eviClence-lntl1e record-.- r f - - - -

the opinion is consistent with such record evidence, then the
opinion is given controlling weight.
F.3d 1208, 1215

See Hamlin v. Barnhart, 365

(loth eir. 2004); Watkins,

350 F.3d at 1300.

If

it is inconsistent, then the opinion is not given controlling
weight.

Moreover, a treating physician's opinion may be rejected

if the opinion is not supported by specific findings or if the
opinion is brief or conclusory.
508,

513

(lOth Cir. 1987).

See id.; Frey v. Bowen, 816 F.2d

When an ALJ decides to disregard a

medical report by a claimant's physician, he must set forth
"specific, legitimate reasons" for his decision.
Chater,

99 F.3d 972, 976

(lOth Cir. 1996)

Miller v.

(quoting Frey, 816 F.2d

at 513.
In examining medical opinions from all acceptable medical
sources (treating, examining, and nonexamining physicians), the
ALJ will consider,
above:

in addition to those considerations discussed

(1) the relationship between the source and the claimant,

including its length, nature, and frequency;

(2)

the degree to

which the source presents an explanation and relevant evidence to
support the opinion, particularly medical signs and laboratory
findings;

(3) how consistent the medical opinion is with the

record as a whole;

(4)

whether the source is a specialist and

13

other factors that tend to support or contradict the opinion.
See 20 C.F.R.

"SSR")

§

404.1527(d); Social Security Ruling (hereafter

06-03p, 2006 WL 2329939, at *3; Goatcher v. United States

Dep't of Health & Human Servs., 52 F.3d 288, 290 (lOth Cir.

1995).

Not every factor applies in every case, and the ALJ need

not formally and expressly recite and apply all of these factors
in deciding what weight to give a medical opinion.

See Oldham v.

Astrue, 509 F.3d 1254, 1258 (lOth Cir. 2007).

Turning to the instant case, the ALJ decided not to "accept"
the opinions expressed in the disability questionnaire forms
(hereafter "disability questionnaires") completed by Dr. Wood.
(Tr. 21.)

The ALJ explained that he was not
accepting [Dr. Wood's opinions in the
disability questionnaires] as they are not
well supported by medically acceptable
clinical and diagnostic techniques, nor are
they consistent with the doctor's own
clinical findings, i.e., normal reflexes,
sensation, strength, etc. (see, Exs. IF; 7F)
In fact, in the midst of Dr. Wood's opinions,
in July 2007, he candidly opined claimant was
capable of "interviewing to return to work."
(Exhibit(s) IF, pg. 5). Treatment notes and
other examinations show a degree of
limitation but not to the point suggested by
Dr. Wood.
In addition, Dr. Wood is not a
mental health expert, but that of a family
practitioner, and, therefore, is not
qualified to make opinions regarding

14

-~~c,,"'I'aimanrismeIlEal~TIeart:h

issues -.-For~-t:J:iBB"",----------­
reasons, Dr. Wood's opinions are afforded
little weight in the findings made by the
undersigned in regards to the claimant's
ability, or lack thereof, to_perform workrelated activities.

(Tr. 21.)

Thus, the ALJ set forth the specific, legitimate

reasons he was not accepting the opinions expressed by Dr. Wood
in the disability questionnaires

(hereafter "Dr. Wood's

questionnaire opinions") .
First, the ALJ found that Dr. Wood's questionnaire opinions
were not well-supported by medically acceptable clinical and
laboratory diagnostic techniques.

They were not explained by any

specific objective medical evidence,' and they were at odds with
other evidence in the record (as discussed below) .

Consequently,

the ALJ did not give Dr. Wood's questionnaire opinions
controlling weight.

See Hamlin,

365 F.3d at 1215; Watkins,

350

F.3d at l300.
Second, the ALJ determined that Dr. Wood's questionnaire
opinions were not consistent with Dr. Wood's own clinical
findings - findings he made while he was treating Ms. Gonzales -

'In addition, the Court notes that Dr. Wood provided very little
analysis or explanation for his conclusory questionnaire
opinions.
See Frey, 816 F.2d at 513 (stating that a treating
physician's opinion may be rejected if it is "brief, conclusory,
and unsupported by medical evidence").

15

strength, etc., and (b) an opinion in July 2007 that Ms. Gonzales
was capable of interviewing to re-turn to work (indicating Ms.
Gonzales was capable of returning to work).

The ALJ explained

that Dr. Wood's notes of Ms. Gonzales's treatment did not mention
the extreme functional limitations Dr. Wood later identified on
the disability questionnaires.

These inconsistencies further

supported the ALJ's decision not to give Dr. Wood's questionnaire
opinions controlling weight.
Watkins,

See Hamlin,

365 F.3d at 1215;

350 F.3d at 1300.

Third, the ALJ determined that the objective medical
evidence in the record did not support the degree of limitation
suggested by Dr. Wood's questionnaire opinions.'

See 20 C.F.R.

§

404.1527 (d) (3); SSR 06-03p, 2006 WL 2329939, at *3; Goatcher, 52
F.3d at 290.

'The Court notes that MRI examinations showed only mild changes
to Ms. Gonzales's lumbar spine and no problems at all with her
cervical spine.
(Tr. 219-21.)
In addition, Dr. Ingebretsen
reported that Ms. Gonzales:
had normal muscle strength; walked
with a normal gait; could tandem walk; had no pain in her hand
joints or knees; no tenderness in her spine; had a negative
straight leg raising test; could concentrate; could reason and
communicate well; could follow commands; and was generally
independent in all activities of daily living and self care.
(Tr. 222-24.)
In fact, Dr. Ingebretsen found that Ms. Gonzales's
chief medical problem was Ms. Gonzales's sore right shoulder, not
the disabling bac)( problems that Dr. Wood referenced.
(Tr. 224.)

16

health expert and is not qualified to make opinions regarding Ms.
Gonzales's mental health issues.

See SSR 06-03p,

2006 WL

2329939, at *3.
Thus, the ALJ applied the proper analysis in determining
what weight to give Dr. Wood's questionnaire opinions and he gave
specific, legitimate reasons for his decision.'

As a result, the

Court rejects Ms. Gonzales's challenge to the weight the ALJ gave
to Dr. Wood's questionnaire opinions.

3The

Court also notes that Dr. Wood's questionnaire opinions
were not consistent with one another.
For example, on one form,
Dr. Wood was prompted to indicate whether Ms. Gonzales would need
to take unscheduled breaks during the work day, but he did not so
indicate (Tr. 252-53); however, on a different form (completed
the same day), Dr. Wood noted that Ms. Gonzales would need to lie
down at unpredictable intervals (Tr. 256). Further, on one
disability questionnaire, in response to the question whether Ms.
Gonzales would have limitations in the ability to sit, stand,
walk, lift, bend, stoop, or use her extremities, Dr. Wood
identified no such limitations (Tr. 253-54), but on a different
form, he asserted that Ms. Gonzales had extreme limitations in
her ability to sit, stand, stoop, bend, and climb stairs (Tr.
255-56).
See White v. Barnhart, 287 F.3d 903, 907-08 (lOth Cir.
2002) (treating physician's opinion may be rejected where the
physician did not explain the reasons for new limitations
mentioned in a later assessment) .
The Court further notes that Dr. Wood's opinion that Ms.
Gonzales could "never" climb stairs was inconsistent with Ms.
Gonzales's own testimony that she could climb stairs.
(Tr. 44,
256. )

17

II-.-RFC

Next, Ms. Gonzales challenges the ALJ's RFC assessment by
contending the ALJ committed reversible error by not properly
assessing Ms. Gonzales's RFC.
In determining Ms. Gonzales's RFC, the ALJ expressly
considered "all symptoms and the extent to which these symptoms
can reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the requirements of
20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-7p.··

(Tr. 17.)

The ALJ also "considered opinion evidence in accor'dance with the
requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p,
96-5p, 96-6p and 06-3p."

(Tr. 17.)

After considering the entire

record, the ALJ found that Ms. Gonzales had the RFC to perform a
reduced range of sedentary work, with several additional
limitations.

(Tr. 16.)

For example, the ALJ found Ms. Gonzales

could stand or walk only two hours per day, so long as she could
alternate between sitting and standing every 10-15

minut~s.

(Tr.

16. )

"One of Ms. Gonzales's arguments is that the ALJ failed to
consider Ms. Gonzales's headaches when assessing her RFC.
The
Court concludes that this argument is not supported by the
record.
In his decision, the ALJ refers at least twice - once in
discussing Ms. Gonzales's testimony and once in discussing the
documentary evidence - to Ms. Gonzales's "head pain."
(Tr. 17.)

18

based on Dr. Wood's questionnaire opinions.

Specifically, Ms.

Gonzales argues that the ALJ's RFC assessment contradicts Dr.
Wood's questionnaire opinions.

Because the ALJ chose to not

accept Dr. Wood's questionnaire opinions - which decision the
Court has just addressed - Ms. Gonzales's RFC argument lacks
support.

Therefore, the Court finds that Ms. Gonzales's

challenge to the ALJ's RFC assessment lacks merit. s
III.

Listing 1.04

Finally, the Court examines Ms. Gonzales's argument that at
step three of the ALJ's analysis, the ALJ failed to properly take
into consideration all of Ms. Gonzales's severe impairments and
the combined effect of those impairments as required by 20 C.F.R.
§§

404.1521 and 404.1523, and by SSR 96-8p.

Specifically, Ms.

Gonzales argues that her impairments either met or equaled the

5The

Court notes that it is the Commissioner's responsibility to
assess a claimant's RFC; in other words, it is a question
reserved by law to the Commissioner.
See 20 C.F.R. §
404.1527 (e) (2).
Similarly, the ultimate issue of whether a
claimant is disabled is also reserved to the Commissioner; a
physician's opinion on that issue is not controlling. See 20
C.F.R. § 404.1527(e) (1). As a result, the Commissioner does not
give any special significance to a physician's opinion on either
of those issues.
In fact, such an opinion does not qualify as a
"medical opinion" under the regulations.
See id.

19

At step three of the disability analysis, the ALJ determines
whether any medically severe impairment, alone or in combination
with other impairments, meets or is equivalent to a listed
impairment.
P,

See 20 C.F.R.

§§

404.1525-404.1526 & pt. 404, subpt.

app. 1; Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (loth Cir.

2005) .

The claimant has the burden to present evidence

establishing that her impairments meet or equal a listed
impairment.

Specifically,

"[t]o show that an impairment or

combination of impairments meets the requirements of a listing, a
claimant must provide specific medical findings that support each

of the various requisi te cri teria for the impairment."

Lax, 489

F.3d at 1085 (emphasis added).
To satisfy a listing, a diagnosis of a musculoskeletal
disorder (such as a spinal disorder) must be supported by
appropriate objective evidence, including detailed descriptions
of the joints and laboratory findings

(findings by x-ray or other

Court confines its analysis of Ms. Gonzales's argument to
Listing 1.04A because her record citations and specific argument
relate only to Listing 1. 04A (Doc. 12, at 4 - 6).
See Wall v.
th Cir. 2009) ("Where an appellant
Astrue, 561 F.3d 1048, 1065 (10
lists an issue, but does not support the issue with argument, the
issue is waived on appeal."
(Citation omitted.)). Ms. Gonzales
has not provided argument in support of the notion that she met
the requirements of Listings 1.04B or 1.04C.
6The

20

scan) .

See 20 C.F.R. Pt. 404, subpt. P, app. 1, 1.00C.l

(diagnosis and evaluation).

To meet Listing 1.04A, there must be

a disorder of the spine resulting in compromise of the nerve root
or the spinal cord, with
[e) vidence of nerve root compression
characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle
weakness or muscles weakness) accompanied by
sensory or reflex loss and, if there is
involvement of the lower back, positive
straight-leg raising test (sitting and
supine) .
20 C.F.R. pt. 404, subpt. P, app. 1,

§

1.04.

Here, the ALJ specifically considered whether Ms. Gonzales's
impairments satisfied Listing 1.04A and concluded that they did
not "as borne out in the description of medical evidence below in
Finding 5 [regarding her RFC) , the claimant has not exhibited the
signs or findings to meet or equal the requirements of any part
of

[Listing 1.04).'"

(Tr. 15.)

In his description of the medical

evidence at Finding 5, the ALJ stated, in part:

'The Court notes that the Tenth Circuit has held that "an ALJ's
findings at other steps of the sequential process may provide a
proper basis for upholding a step three conclusion that a
claimant's impairments do not meet or equal any listed
impairment." Fischer-Ross, 431 F.3d at 733 (clarifying the
holding of Clifton v. Chater, 79 F.3d 1007 (10 th Cir. 1996).

21

_
.

1\:ug U st

1, -2005''',-the'cc i-armant'i- s
alleged onset date, there is very little
objective basis to support claimant's alleged
chronic functional limitations due to her
physical and mental impairments.
For
example, records from Dr. Stephen Wood at the
South Foothill and Dr. Richard Ingebretsen
dated May 2005 through April 2007 document
conservative treatment for low back, neck and
head pain, secondary to a motor vehicle
accident, as well as depression.
[Record
citations.]
However, diagnostic testing of
the low back and cervical spine four months
subsequent to her motor vehicle accident
revealed "normal" findings or only "mild"
findings.
[Record citations.]
Also,
although the above-noted records reflected
some limited range of motion with pain during
the period May 2005 through April 2007, all
other findings were consistently within
normal or, at most, mild limits, including
those found during neurological, motor, deep
tendon, coordination, sensory and gait and
station testing.

-~ ·-~~-[-S

jJ:ll.C e

In this case, the claimant's complaints far
exceed any acceptable, objective medical
evidence of a physical source for the degree
of impairments alleged.
The undersigned is
aware claimant has a history of ongoing pain
issues related to her shoulder and back
impairments; however, as discussed above in
the description of medical evidence,
evaluations have consistently been within
normal limits, she has had no persistent
neural deficits, diagnostic findings have
been, for the most part, within normal limits
and, on numerous occasions, it has been noted
that her pain is controlled with medication.
(Tr. 17-18, 19)

(emphasis in original).

22

objective medical evidence that contradicted Ms. Gonzales's
assertion that her impairments satisfied Listing 1.04A's
requirements - especially its requirement of significant neural
deficits.
Ms. Gonzales relies on Dr. Wood's questionnaire opinions to
support her assertion that her impairments met the requirements
of Listing 1.04A8 ; however, the ALJ chose to not accept Dr. Wood's
questionnaire opinions - which decision the Court addressed in
Section I above.

Because Ms. Gonzales has supported much of her

listing argument with Dr. Wood's questionnaire opinions, without
those opinions, critical elements of Ms. Gonzales's argument lack
support in the record (e.g., Doc. 15, 12-13).'

As a result, Ms.

'Dr. Wood indicated in his questionnaire opinions that even
though Ms. Gonzales did not meet all the criteria of Listing
1.04A because she did not have sensory or reflex loss, Ms.
Gonzales's combined impairments are medically equivalent to the
severity of conditions in Listing 1.04A (Tr. 248); however, where
he checked the box indicating a medical equivalence, Dr. Wood was
instructed to explain in detail how Ms. Gonzales's impairments
are equivalent to the Listing's requirements with reference to
specific supporting clinical findings (Tr. 248).
Dr. Wood
offered no explanation for his answer, leaving the ALJ, and now
the Court, with no objective medical basis beyond Dr. Wood's
unsupported checked box upon which to make such a finding.
(Tr.
248. )
9Moreover, as mentioned in the previous note, Dr. Wood indicated
in his questionnaire opinions that Ms. Gonzales did not have

23

impairments did not meet or equal the requirements of Listing
1.04A is not supported by substantial evidence, and the Court
rej ects it .'0

sensory or reflex loss (Tr. 248), an essential element of Listing
1.04A.
See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04A.
Further, Ms. Gonzales has not alleged that she had such sensory
or reflex loss, and she fails to cite any medical evidence of
such loss.
The failure to meet even one criterion means that the
listing is not satisfied:
"For a claimant to show that [her]
impairment matches a listing, it must meet all the specified
medical criteria. An impairment that mahifests only some of
those criteria, no matter how severely, does not qualify."
Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in
original); see also SSR 83-19, at 91. Ms. Gonzales has not
sufficiently shown that her impairments met or equaled the
requirements of Listing 1.04A. Aside from her general assertions
and arguments and her citation to Dr. Wood's questionnaire
opinions, MS. Gonzales has not provided the Court with any
specific argument or record citation to properly support her
contention that her impairments were sufficiently severe to
collectively equal Listing 1.04A's requirements, despite her lack
of sensory or reflex loss.
IOThe Court notes that its review of the record reveals further
support for the ALJ's finding that MS. Gonzales's impairments did
not meet the Listing 1.04A's requirements:
it appears that Ms.
Gonzales failed to provide evidence establishing that she had a
positive straight leg raising test for the required duration.
To
establish disability, Ms. Gonzales had to prove that her
impairments met the requirements of Listing 1.04A for a
continuous period of at least 12 months.
See 20 C.F.R. §
404.1525(c) (4); Lax, 489 F.3d at 1084. While Ms. Gonzales relies
on a positive straight leg raising test she had when Dr. Wood
examined her in September 2006 (Tr. 197), only six months later,
when Dr. Ingebretsen examined Ms. Gonzales, Ms. Gonzales's
straight leg raising test was negative (Tr. 224).
Thus, it
appears the record does not demonstrate that Ms. Gonzales met the

24

acknowledges that there is some evidence that Ms. Gonzales's
impairments met at least one of the requirements of Listing
1.04A, thereby perhaps contradicting the ALJ's statement that Ms.
Gonzales "has not exhibited the signs or findings to meet or
equal the requirements of any part of [Listing 1.04]"; however,
having carefully examined the record, the Court concludes that
any deficiency in the ALJ's articulation of his reasoning to
support his step three and/or step four determinations is
harmless error.
addressing,

See Fischer-Ross, 431 F.3d at 735

inter alia, Listing 1. 04A,

(stating, in

"the ALJ's confirmed

findings at steps four and five of his analysis, coupled with
indisputable aspects of the medical record, conclusively preclude
Claimant's qualification under the listings at step three.
Thus, any deficiency in the ALJ's articulation of his reasoning
to support his step three determination is harmless").

The Court

concludes that the ALJ's discussion at steps 4 and 5 of the
disability analysis and the medical evidence of record provide

straight leg raising test for at least 12 consecutive months.
See 20 C.F.R. pt. 404, subpt. P, app. 1, 1.00(D) ("Because
abnormal physical findings may be intermittent, their presence
over a period of time must be established by a record of ongoing
management and evaluation.").

25

---srtrrsta:jj:t'ra-l:'~eV±denee--t'0=sU]3]3e~t-:-tll@-'ALJ-'-s-de termination

-that Ms.

Gonzales's impairments do not meet or equal Listing 1.04A's
requirements.

As a result, the Court concludes that the ALJ did

not commit reversible error in finding that Ms. Gonzales did not
meet or equal Listing 1.04A.
RECOMMENDATION
Based on the above analysis, IT IS RECOMMENDED that the
ALJ's decision be AFFIRMED.
Copies of the foregoing report and recommendation are being
mailed to the parties who are hereby notified of their right to
object to the same.

The parties are further notified that they

must file any objections to the report and recommendation, with
the clerk of the district court, pursuant to 28 U.S.C.
within fourteen (14) days after receiving it.

§

Failure to file

objections may constitute a waiver of those objections on
subsequent appellate review.

-fA
DATED this ~ day of October,

2010.

BY THE COURT:

Samuel Alba
United States Magistrate Judge

26

636(b),