Hudson v. Astrue

Filing 14

MEMORANDUM DECISION AND ORDER ON ADMINISTRATIVE APPEAL the Court hereby Affirms the decision of the ALJ. Signed by Judge Ted Stewart on 11/9/2010. (las)

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

JULIE A. HUDSON,
Plaintiff,

MEMORANDUM DECISION AND
ORDER ON ADMINISTRATIVE
APPEAL

vs.

MICHAEL J. ASTRUE, Commissioner of
Social Security,

Case No. 2:10-CV-245 TS

Defendant.

This matter comes before the Court on Plaintiff Julie A. Hudson’s appeal from the
decision of the Social Security Administration denying her application for Disability Insurance
Benefits and Supplemental Security Income. Having considered the arguments set forth by the
parties, reviewed the factual record, relevant case law, and being otherwise fully informed, the
Court will affirm the administrative ruling, as discussed below.

1

I. STANDARD OF REVIEW
This Court’s review of the ALJ’s decision is limited to determining whether its findings
are supported by substantial evidence and whether the correct 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

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).
2

II. BACKGROUND
A.

PROCEDURAL HISTORY
Plaintiff filed an application for Disability Insurance Benefits and Supplemental Security

Income on March 3, 2008.7 Plaintiff’s claim was initially denied on April 4, 2008,8 and upon
reconsideration on June 11, 2008.9 Plaintiff then requested a hearing before an administrative
law judge (“ALJ”), which was held on May 22, 2009.10 The ALJ issued her decision on August
18, 2009, finding Plaintiff was not disabled.11 The Appeals Council denied Plaintiff’s request for
review on February 24, 2010.12 Plaintiff then filed the instant action.
B.

MEDICAL HISTORY
Plaintiff has a long history of degenerative disc disease in her lower back.13 A July 2007

CT scan showed degenerative disease of the L4-L5.14 Plaintiff also had a diffuse disc bulge at

7

R. at 121-30.

8

Id. at 51-52.

9

Id. at 53-54.

10

Id. at 10, 22-50.

11

Id. at 10-20.

12

Id. at 1-3.

13

Id. at 225, 232.

14

Id. at 234, 275.
3

L4-L5 and a modest central disc bulge at L5-S1.15 No other significant abnormalities were noted
and an epidural steroid injection was recommended.16
On September 1, 2007, Plaintiff presented to Dr. Chad Swanson, complaining of back
pain.17 Plaintiff had no weakness or numbness.18 An examination revealed no swelling,
erythema, or edema, but did reveal tenderness in her lower back.19 Plaintiff was diagnosed with
low back pain and prescribed medication.20
On September 18, 2007, an x-ray of Plaintiff’s cervical spine revealed degenerative
changes of the spine, specifically disc space narrowing of the C4-5, C5-6, and C6-7.21 However,
no soft tissue swelling or fracture was noted.22
In April 2008, Plaintiff was seen by Dr. Pahl Bench.23 Upon examination, Dr. Bench
noted that Plaintiff had increased lumbar lordosis, some pain on palpation of the lumbar spine, no
muscle spasm, good range of motion in her extremities, normal gait, and no muscle wasting.24
15

Id. at 275.

16

Id.

17

Id. at 287.

18

Id.

19

Id. at 288.

20

Id.

21

Id. at 273.

22

Id.

23

Id. at 567-68.

24

Id. at 567.
4

Dr. Bench assessed low back pain and noted that Plaintiff would benefit from weight reduction,
pain medication, and strengthening exercises.25
Also in April 2008, Dr. Lewis Barton reviewed the medical evidence in the record and
assessed Plaintiff’s physical residual functional capacity.26 Dr. Barton concluded that Plaintiff
could occasionally lift 20 pounds; frequently lift 10 pounds; stand and/or walk (with normal
breaks) for six hours in an eight-hour workday; sit for about six hours in a workday; and
occasionally climb, balance, stoop, kneel, crouch, and crawl.27 Dr. Barton found no
manipulative, visual, communicative, or environmental limitations.28
In July 2008, Plaintiff was seen by Dr. C. William Bacon.29 Dr. Bacon noted that
Plaintiff’s gait was unremarkable, though she had some pain amplification.30 Plaintiff had
normal muscle strength in her upper and lower extremities.31 Her reflexes and sensation were
also normal.32 Plaintiff had no tenderness in her lower or upper extremities.33 She had a full

25

Id. at 567-68.

26

Id. at 569-78.

27

Id. at 572-73.

28

Id. at 574-75.

29

Id. at 607-10.

30

Id. at 607.

31

Id. at 608.

32

Id. at 608-09.

33

Id. at 609.
5

range of motion in her cervical spine, but Plaintiff’s range of motion in her lumbar spine was
limited.34 Plaintiff’s x-ray showed “a little bit of loss of lumbar lordosis,” but “[o]verall the disk
space heights seem to be only modestly narrowed, very slight scoliosis.”35 Plaintiff was assessed
with severe low back pain and an MRI was ordered.36 The MRI revealed degenerative disc
disease to some extent at L2-3 through L5-S1 with “shallow disk bulges and disk osteophyte
complexes with a relatively mild encroachment on the neural foramina.”37 Additionally, Plaintiff
had a “synovial cyst that projects into the vertebral canal from the left facet joint at L4-5.”38
In addition to her back pain, Plaintiff has a history of migraine headaches.39 Plaintiff’s
migraines have led to numerous trips to the hospital.40
Plaintiff saw Dr. Marc Udall in July 2008 on a complaint of back pain.41 Dr. Udall noted
that Plaintiff was alert and communicative, could move all extremities in a graceful and

34

Id. at 609.

35

Id. at 610.

36

Id.

37

Id. at 604-05.

38

Id. at 605.

39

Id. at 226, 231, 240, 285.

40

See id. at 372-474.

41

Id. at 590.
6

coordinated fashion, had normal reflexes, had a normal gait, and was able to transfer from table
to chair without difficulty.42 Plaintiff was prescribed pain medication.43
In August 2008, Dr. Udall completed a form for the Utah Department of Workforce
Services.44 On that form, Dr. Udall indicated that Plaintiff’s back pain made her completely
unable to work.45 Dr. Udall indicated that the condition was expected to last nine months.46
Later in August, Plaintiff informed Dr. Udall that she was working out in the pool and
doing better.47
In April 2009, Dr. Udall completed another form for the Utah Department of Workforce
Services.48 On that form, Dr. Udall opined that Plaintiff could not work, but noted that he would
prefer Plaintiff be evaluated by another doctor to evaluate her ability to work.49
In May 2009, Dr. Udall filled out a Residual Functional Capacity Questionnaire.50 On
that form, Dr. Udall indicated that Plaintiff could walk less than one city block; could sit for 15

42

Id. at 591.

43

Id. at 591-92.

44

Id. at 597.

45

Id.

46

Id.

47

Id. at 599.

48

Id. at 674.

49

Id.

50

Id. at 690-92.
7

minutes at one time, for a total of one hour per day; could stand/walk for 10 minutes for a total of
one hour per day; and could occasionally lift less than 10 pounds.51 Dr. Udall also opined that
Plaintiff would need to take a 30-40 minute break every 15 minutes and would be absent more
than four times per month.52
C.

HEARING TESTIMONY
At the hearing, Plaintiff was represented by counsel. In his opening statement, counsel

made clear that there were two main issues which prevented Plaintiff from working: back
problems and migraine headaches.53 Counsel did not contend that Plaintiff had any mental
impairments or limitations.
Plaintiff testified at the hearing that she had chronic back pain and rated the pain as 10
out of a scale of 10.54 Plaintiff stated that she had to drop out of a singing group because of her
back problems,55 but that she was able to sing in another group that only practiced once a week
and performed twice a year.56 Plaintiff also testified the she experienced migraine headaches, but

51

Id. at 690-91.

52

Id.

53

Id. at 24.

54

Id. at 29-30.

55

Id. at 30-31.

56

Id. at 31-32.
8

they went away quickly with medication.57 Plaintiff briefly referenced her use of xanax for
anxiety and other medication,58 but stated she had no side effects from any of her medications.59
Plaintiff testified that she could sit comfortably for up to 30 minutes and walk less than a
block.60 Plaintiff stated that she could lift a gallon of milk and had to lie down for 11 to 13 hours
per day.61 Plaintiff further stated that she drives three to four times per week, cooks meals, and
sometimes does the dishes.62
A medical expert testified at the hearing. The medical expert testified that Plaintiff’s
subjective functional limitations, as well as the limitations identified by Plaintiff’s treating
physician Dr. Udall, were out of proportion to the objective medical evidence in the record.63
A vocational expert also testified at the hearing. The ALJ asked the vocational expert to
consider a hypothetical person who could do sedentary work, with the following limitations: a
sit/stand option at will; no climbing ladders, ropes, or scaffolds; occasional postural changes;
avoid concentrated exposure to vibration and rough or uneven surfaces; and avoid all exposure to

57

Id. at 34-36.

58

Id. at 28, 36.

59

Id. at 36.

60

Id. at 37.

61

Id. at 38-39.

62

Id. at 40-41.

63

Id. at 42.
9

hazards, such as machinery and heights.64 The vocational expert testified that such a person
could perform Plaintiff’s past work as a telemarketer and could also do the sedentary unskilled
job of a touch-up worker, semi-conductor bonder, and a clerical addresser.65 The vocational
expert testified that his testimony was consistent with the Dictionary of Occupational Titles
(“DOT”).66
D.

THE ALJ’S DECISION
The ALJ issued her decision on August 18, 2009.67 The ALJ followed the five-step

sequential evaluation process in deciding Plaintiff’s claims. At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity since January 18, 2008, the alleged onset
date.68 At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
degenerative disc disease of the spine; migraine headaches; and obesity.69 At step three, the ALJ
found that Plaintiff did not have an impairment or combination of impairments that met or
equaled a listed impairment.70 At step four, the ALJ found that Plaintiff was capable of
performing past relevant work as a telemarketer, as well as the other occupations of touch-up

64

Id. at 45.

65

Id. at 45-46.

66

Id. at 49.

67

Id. at 10-20.

68

Id. at 12.

69

Id.

70

Id. at 13.
10

screener, semi-conductor bonder, and clerical addresser.71 Therefore, the ALJ found that Plaintiff
was not disabled.72
III. DISCUSSION
Plaintiff raises three issues in her brief: (1) whether the ALJ failed to properly evaluate
Plaintiff’s mental impairments; (2) whether the ALJ erred by rejecting the opinions of Plaintiff’s
treating physicians; and (3) whether the ALJ failed to support her step 5 findings with substantial
evidence. The Court will address each argument in turn.
A.

PLAINTIFF’S MENTAL IMPAIRMENTS
Plaintiff first argues that the ALJ failed to properly evaluate her mental impairments.

Plaintiff argues that there is medical evidence to support that she has been diagnosed with
depression and anxiety, but that the ALJ made no mention of her mental impairments. As a
result, Plaintiff argues that this matter must be reversed and remanded to allow the ALJ to
evaluate Plaintiff’s mental impairments.
Plaintiff’s argument suffers from a fatal flaw: Plaintiff never sought disability on the basis
of any mental impairment. Indeed, in the documents submitted with her application, Plaintiff
complained of back problems and migraine headaches.73 At the hearing before the ALJ,
Plaintiff’s counsel stated that the “two main issues” facing Plaintiff were degenerative disc

71

Id. at 18-19.

72

Id. at 19-20.

73

Id. at 147.
11

disease and migraine headaches.74 Plaintiff’s counsel made no mention of any mental
impairments. Thus, it is not surprising that the ALJ did not discuss any alleged mental
impairments. It is true, as Plaintiff states, that the record contains scattered references to mental
impairments. Specifically, the record references diagnoses for depression and anxiety and the
treatment of those conditions with various medications.75 However, Plaintiff did not claim that
she was disabled due to a mental impairment at her administrative hearing.
The Tenth Circuit has stated:
ALJs are not required to exhaust every possible line of inquiry in an attempt to
pursue every potential line of questioning. The standard is one of reasonable good
judgment. As such, an ALJ is generally entitled to rely on the claimant’s counsel
to structure and present claimant’s case in a way that the claimant's claims are
adequately explored.76
Here, the ALJ provided Plaintiff and her counsel ample opportunity to present Plaintiff’s
claims. Despite this opportunity, Plaintiff did not allege disability due to mental impairments.
Plaintiff cannot now allege error on the part of the ALJ for failing to consider an issue that was
not presented below. Therefore, Plaintiff’s argument must be rejected.
Further, there is insufficient evidence from which the ALJ could find that Plaintiff
suffered a severe mental impairment. A “mental impairment must be of a nature and degree of
severity sufficient to justify its consideration as the cause of failure to obtain any substantial

74

Id. at 24.

75

Id. at 28, 150, 152, 194, 204, 230, 243, 244, 245, 246, 251, 253, 254, 257, 258, 285,
303, 490, 554, 596, 599, 618, 629,657, 674, 690.
76

Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009) (quotation marks and citations

omited).
12

gainful work.”77 At most, the record here suggests that Plaintiff has been diagnosed with
depression and/or anxiety and that she has been prescribed medication for those ailments. There
is nothing to suggest that Plaintiff’s alleged mental impairment contributed to Plaintiff’s inability
to work. Therefore, the Court finds that the record supports the ALJ’s decision not to find a
severe mental impairment and not to include any mental limitations in the residual functional
capacity assessment.
B.

TREATING PHYSICIAN
Plaintiff next argues that the ALJ erred in failing to properly evaluate the opinions of her

treating physician, Dr. Udall.
In August 2008 and April 2009, Dr. Udall completed forms for the Utah Department of
Workforce Services, in which he opined that Plaintiff could not work.78 In addition, in May
2009, Dr. Udall filled out a Residual Functional Capacity Questionnaire.79 On that form, Dr.
Udall indicated that Plaintiff could walk less than one city block; could sit for 15 minutes at one
time, for a total of one hour per day; could stand/walk for 10 minutes for a total of one hour per
day; and could occasionally lift less than 10 pounds.80 Dr. Udall also opined that Plaintiff would

77

Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th Cir. 2003) (quotation omitted).

78

R. at 597, 674.

79

Id. at 690-92.

80

Id. at 690-91.
13

need to take a 30-40 minute break every 15 minutes and would be absent more than four times
per month.81
The ALJ made the following statement in relation to Dr. Udall’s opinions:
Dr. Udall is a treating source. However, the undersigned Administrative Law
Judge is not accepting these opinions as controlling [as] they are not well
supported by medically acceptable clinical and diagnostic techniques, nor are they
consistent with the doctor’s own reports, as he consistently found claimant in no
apparent distress and within normal or, at most, mild findings, including those
found during neurological, motor, deep tendon, coordination, sensory and gait and
station testing. Treatment notes and other examinations show a degree of
limitation but not to the point suggested by Dr. Udall. In addition, Dr. Lipton
testified at [the] hearing that the most recent statement/opinion of Dr. Marc Udall
giving claimant highly restricted sedentary residual functional capacity was not
consistent with the objective medical findings of record. For these reasons, Dr.
Udall’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.82
Plaintiff alleges that the ALJ erred in her evaluation of the opinions of Dr. Udall.
The ALJ, in reviewing the opinions of treating sources, must engage in a sequential
analysis.83 First, the ALJ must consider whether the opinion is well-supported by medically
acceptable clinical and laboratory techniques.84 If the ALJ finds that the opinion is wellsupported, then he must confirm that the opinion is consistent with other substantial evidence in

81

Id. at 690-91.

82

Id. at 18.

83

Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).

84

Id.
14

the record.85 If these conditions are not met, the treating physician’s opinion is not entitled to
controlling weight.86
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.87 Those factors
include:
(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.88
After considering these factors, the ALJ must give good reasons for the weight he ultimately
assigns the opinion.89 If the ALJ rejects the opinion completely, he must give specific, legitimate
reasons for doing so.90
Plaintiff first argues that the ALJ erred in rejecting Dr. Udall’s opinions. As set forth
above, the ALJ rejected Dr. Udall’s opinions that Plaintiff could not work at all. The ALJ also
rejected the extreme limitations endorsed by Dr. Udall. Having carefully reviewed the record,

85

Id.

86

Id.

87

Id.

88

Id. at 1301 (quoting Drapeau v. Massanri, 255 F.3d 1211, 1213 (10th Cir. 2001)).

89

Id.

90

Id.
15

the Court finds that there is substantial evidence to support the ALJ’s rejection of such extreme
limitations. A review of Dr. Udall’s treatment notes reveals no such functional limitations.
While there is certainly evidence to support a finding that Plaintiff suffered from a severe
impairment of degenerative disc disease of the spine—which the ALJ found—there is not
evidence to support such extreme functional limitations. Therefore, the Court finds that the ALJ
correctly evaluated the opinions of Plaintiff’s treating physician and her rejection of those
opinions is supported by substantial evidence.
Plaintiff further argues that the ALJ’s reliance upon the medical expert was improper. To
this end, Plaintiff seizes on a misstatement by the medical expert, where he mistakenly referred
to Exhibit 14F as Exhibit 7F.91 This was later clarified during questioning from Plaintiff’s
counsel.92 The Court cannot find that this misstatement presents a reason that the ALJ could not
rely on the statements of the medical expert.
Finally, Plaintiff argues that the ALJ’s rejection of Dr. Udall’s opinions is flawed because
his opinions were based, in part, on Plaintiff’s mental impairments. For the same reasons
discussed above, the Court must reject this argument.
C.

STEP 5 ANALYSIS
Plaintiff’s final argument is that the ALJ erred in her step 5 analysis. In actuality,

Plaintiff challenges the vocational expert’s testimony in response to the ALJ’s hypothetical. This

91

R. at 42.

92

Id. at 46-48.
16

testimony impacted the ALJ’s residual functional capacity assessment which, in turn, impacts
both steps 4 and 5 of the sequential analysis.
During the hearing, the ALJ asked the vocational expert to consider a hypothetical person
who could do sedentary work with the certain limitations, including a sit/stand option.93 The
vocational expert testified that such a person could perform Plaintiff’s past work as a
telemarketer and could also do the sedentary unskilled job of a touch-up worker, semi-conductor
bonder, and a clerical addresser.94 The vocational expert testified that his testimony was
consistent with the Dictionary of Occupational Titles (“DOT”).95
Plaintiff argues that, because the DOT does not address a sit/stand option, the vocational
expert’s testimony created a discrepancy that was not resolved. Without some further
explanation from the vocational expert, Plaintiff argues, the vocational expert’s testimony cannot
be considered substantial evidence. As a result, Plaintiff argues that this matter must be reversed
and remanded to the ALJ.
SSR 00-4p requires that an ALJ inquire about and resolve any conflicts between a
vocational expert’s testimony regarding a job and the description of that job in the DOT.96 The
DOT does not describe a sit/stand options. However, the fact that the DOT does not address the

93

Id. at 45.

94

Id. at 45-46.

95

Id. at 49.

96

Poppa v. Astrue, 569 F.3d 1167, 1173 (10th Cir. 2009).
17

subject of a sit/stand option does not necessarily create an inherent conflict.97 As the DOT does
not address the sit/stand option, it was reasonable for the ALJ to rely on the vocational expert’s
testimony. Therefore, the Court finds that substantial evidence supported the ALJ’s decision at
steps 4 and 5 and that it was free from harmful legal error.
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 did not have a disability within the parameters of 20 C.F.R.
§ 404.1520 (a)-(f).
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 9, 2010.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

97

See, e.g., Zblewski v. Astrue, 302 Fed. Appx. 488, 494 (7th Cir. 2008) (“Because the
DOT does not address the subject of sit/stand options, it is not apparent that the testimony
conflicts with the DOT.”).
18