Roberts v. Astrue

Filing 31

MEMORANDUM DECISION AND ORDER: the Court finds that substantial evidence supports the Commissioner's decision and affirms the Commissioner's decision in this case. Signed by Magistrate Judge Evelyn J. Furse on 3/13/13 (alt)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
DAVID J. ROBERTS,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,

Case No. 2:10-cv-01032-EJF
Magistrate Judge Evelyn J. Furse

Defendant.

Plaintiff David J. Roberts filed this action asking the Court to reverse or remand the final
agency decision denying him Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act, see 42 U.S.C. §§ 401-434 (2010).1 Based on the Court’s careful consideration of
the record, the parties’ memoranda, and relevant legal authorities, the Court AFFIRMS the
Commissioner’s decision.2
FACTUAL AND PROCEDURAL HISTORY
In May 2007, Mr. Roberts filed for DIB alleging an onset date of disability of February
11, 2007. (Admin. R. Doc. 16, certified copy tr. of R. of admin. proceedings: David J. Roberts
(hereinafter “Tr. __”).) The Regional Commissioner denied Mr. Roberts’s claim on August 7,
2007, (Tr. 85), and upon reconsideration on December 12, 2007. (Tr. 89-91.) Mr. Roberts

1

On September 27, 2011, in acco rdance with 28 U.S.C. s ections 636(c)(1) and (3 ) and
Federal Rule of Civil Procedure 73 , the p arties consented to proceed before Magistrate Judge
David Nuffer. ( See Docket No. 17.) On July 11, 2012,
this case was reassigned to the
undersigned Magistrate Judge. (See Docket No. 26.)
2
Pursuant to Civil Rule 7- 1(f) of the Rules of Practice for th e United States Dis trict
Court for the District of Utah, the Court conc ludes it doe s not n eed oral argument and will
determine the appeal on the basis of the written memoranda.
1

requested a hearing before an Administrative Law Judge (“ALJ”) that took place on March 12,
2009. (Tr. 16.) The ALJ issued a decision on November 16, 2009, finding Mr. Roberts did not
qualify as disabled within the meaning of the Social Security Act. (Tr. 16-29.) The Appeals
Council denied Mr. Roberts’s request for review on August 25, 2010, (Tr. 1-3), making the
ALJ’s decision the Commissioner’s final decision for purposes of judicial review under 42
U.S.C. section 405(g). See 20 C.F.R. § 404.981.
On February 10, 2007, an ambulance transported Mr. Roberts from his home in Salinas,
Utah, to Gunnison Valley Hospital (“GVH”) after he complained of severe pain in his back that
caused him to fall. (Tr. 388.) When Mr. Roberts arrived at GVH he explained to Jan F.
Christensen, M.D., that his pain had started ten years prior, and he had no recent trauma to his
back. Id. Dr. Christensen consulted with Lynn Gaufin, M.D., and they decided to transfer Mr.
Roberts immediately to Utah Valley Regional Medical Center (“UVRMC”) in Provo, Utah. (Tr.
389, 394.) UVRMC conducted a magnetic resonance image (“MRI”) of Mr. Roberts’s back, and
Dr. Gaufin found Mr. Roberts had a massive herniated disc, shallow disc protrusion, and a
congenitally narrowed spine. (Tr. 394.) On February 11, Dr. Gaufin performed a lumbar
laminotomy, a foraminotomy, a nerve root decompression, and a discectomy L4-5 bilaterally on
Mr. Roberts and discharged him from UVRMC on February 13. (Tr. 394-95.) On March 7, Mr.
Roberts visited his primary care physician, Kerry A. Blackham, D.O., complaining he had
become increasingly depressed since the surgery. (Tr. 447.) Dr. Blackham gave him Cymbalta
samples instructing him to follow up in one month. (Id.)
On March 14, 2007, Mr. Roberts had another MRI of his back. (Tr. 387.) Dr. Gaufin
then reviewed the MRI and examined Mr. Roberts on March 19, noting Mr. Roberts may require
another operation on his back depending on the outcome of further testing. (Tr. 423-24.) On
2

April 11, Dr. Gaufin advised Mr. Roberts that he would need another surgery because the nonoperative programs used after his first surgery had not reduced his pain sufficiently. (Tr. 42122.) On April 24, Dr. Gaufin reoperated on Mr. Roberts’s back performing a lumbar
laminotomy, a foraminotomy, a nerve root decompression, a discectomy at L3-4 and 4-5
bilaterally, a transforaminal lumbar interbody fusion at L3-4 and 4-5 with “Peak”3 and autograft,
a transverse process lateral mass fusion at right L3-4 with autograft, and a Xia pedicle fixation at
L3-4-5 bilaterally. (Tr. 407-10.) Three days later, UVRMC discharged Mr. Roberts in
satisfactory condition. (Tr. 391-92.)
On May 23, 2007, Mr. Roberts visited Dr. Gaufin and Matthew J. Badger, F.N.P., who
found that Mr. Roberts had done well since the second surgery, walked a mile to a mile and half
every day, and spent some time walking in a pool regularly. (Tr. 420.) An x-ray from that same
day of Mr. Roberts’s back showed no acute complication or other significant abnormality. (Tr.
426.) Dr. Gaufin suggested Mr. Roberts start physical therapy ten weeks after the visit and
perform no heavy lifting, bending, or twisting. (Tr. 420.)
Because of hip pain, Mr. Roberts had an x-ray of his hip on June 11, but the x-ray
showed no abnormalities in Mr. Roberts’s pelvis or hip. (Tr. 425.) On August 1, another lumbar
x-ray showed the two-level lumbar fusion had a stable appearance, and Dr. Gaufin noted Mr.
Roberts had done well since his surgery. (Tr. 461, 464.) However, a thorasic MRI showed a
new herniation at T4-5 and 5-6. (Tr. 461.) Dr. Gaufin recommended non-operative techniques,
including physical therapy, to improve the herniation. (Id.)

3

The medical record of Mr. Roberts’s operation refers to “Peak,” which the Court
understands to mean polyetheretherketone or “PEEK.”
3

Mr. Roberts’s physical therapist, Dallas Overly, M.P.T., noted on September 19, 2007,
that Mr. Roberts had complied with his physical therapy routine, which addressed both the
lumbar and thorasic issues, but his progress had plateaued. (Tr. 438.) By this time, an MRI of
his cervical spine showed bulging discs. (Tr. 463, 459.) Mr. Overly also opined that Mr.
Roberts could not return to work as a truck driver because vibrations of the truck and sitting for
extended periods of time would increase his pain and cause his condition to deteriorate. (Tr.
438.) On October 10, Dr. Gaufin agreed with Mr. Overly’s assessment and advised Mr. Roberts
his pain could be managed—not cured—and in six months he should consider removing the
screws placed in his back during the second surgery to relieve some of the pain. (Tr. 459-60.)
Dr. Gaufin recommended against surgery in the neck and referred Mr. Roberts to a different
doctor for an opinion on his thoracic issue. (Id.)
At that time, Dr. Gaufin also noted that Mr. Roberts was taking several antidepressants.
(Id.) On November 28, Mr. Roberts began meeting weekly with David B. Jensen, licensed
clinical social worker, but the record does not elucidate what event if any led Mr. Roberts to start
meeting with Mr. Jensen.4 (See Tr. 479-83.)
On December 7, Mr. Roberts met with pain specialist Gordon P. George, M.D., for a
follow-up evaluation and consultation.5 (Tr. 485-88.) Dr. George found Mr. Roberts continued

4

The only infor mation in the record about Mr. Jensen’s treatment of Mr. Roberts is a
questionnaire Mr. Jensen com pleted at Mr. Roberts’s request. (
See Tr. 479-83.) The
questionnaire contains Mr. Jensen’s general assessment of Mr. Roberts’s mental health, how his
mental health affects h is ability to work, and the treatment he provided to Mr. Roberts.
However, the questionnaire does not explain what caused Mr. Roberts to begin meeting with Mr.
Jensen, how frequently they m et, what symptoms Mr. Roberts exhibited, or what progress Mr.
Roberts made, though clearly Mr . Roberts spoke to Mr. Jensen about feeling depressed and
suicidal. (Id.)
5
Mr. Roberts also appears to have m et with Dr. George on Nove mber 8, 2007, but the
record does not contain a summary of that evaluation. (See Tr. 485.)
4

to have significant pathophysiologic disease but was “functioning much better” in relation to his
depressive symptoms and was “receiving good psychological support.” (Id.) Dr. George also
found the condition of Mr. Roberts’s neck and back had “modestly improved” and that he
“[a]ppears to be in overall good general health.” (Tr. 487-88.)
On January 10, 2008, Mr. Roberts requested a refill of Trazedone and a stronger dose of
Effexor from the North Sevier Clinic (the “Clinic”) because “he ha[d] become suicidal.” (Tr.
538.) The Clinic noted “[Mr. Roberts] has gone to therapy this week . . . and is doing better
today,” and later that day Dr. Blackham filled Mr. Roberts’s prescriptions. (Id.) Following an
automobile collision on January 11, 2008, Mr. Roberts visited Dr. Blackham on January 17,
complaining of neck pain and burning on his left side. (Tr. 536.) Dr. Blackham examined Mr.
Roberts and found muscle spasm in his paraspinous muscles, limited range of motion in his neck,
full range of motion in his arms, and normal strength, reflexes, and sensation. (Id.) Dr.
Blackham instructed Mr. Roberts to return in a week if his condition did not improve. (Id.) On
February 19, Mr. Roberts stopped meeting weekly with his social worker, Mr. Jensen.6 (See Tr.
479-83.)
On June 12, 2008, Mr. Roberts visited Dr. Blackham to have his weight and the dizziness
he experienced checked, and to consult on his “SS paperwork.” 7 (Tr. 530-31.) Dr. Blackham
examined Mr. Roberts and found he had muscle spasm and limited range of motion in his back,
normal strength, decreased reflexes, decreased sensation in his legs, and a negative straight leg
raise test. (Id.) On July 1, Mr. Roberts visited Dr. Blackham complaining of severe pain on the

6

The questionnaire Mr. Jensen completed does not explain why he and Mr. Roberts
stopped meeting. See supra note 4.
7
The medical record of this visit does not explain what the “SS paperwork” is, but Dr.
Blackham does note “[ Mr. Roberts] refused the SS and needs [ the SS paperwork] filled out
indicating why he didn’t need [the SS].” (Tr. 530-31.)
5

right side of his back that started as he was getting ready for work. (Tr. 528.) Dr. Blackham
examined Mr. Roberts and found his condition unchanged except he had normal reflexes, normal
sensation in his legs, and a positive straight leg raise test. (Id.) Mr. Roberts had a follow-up visit
with Dr. Blackham on July 17, and Dr. Blackham found Mr. Roberts’s condition the same as on
July 1, except he had normal reflexes and a negative straight leg raise test. (Tr. 527.) A July 18
computed tomography (“CT”) scan of Mr. Roberts’s lumbar spine showed a satisfactory
postoperative appearance, (Tr. 525-26), and Dr. Blackham determined the CT scan showed Mr.
Roberts’s back was normal other than surgical changes. (Tr. 524.) On August 26, Mr. Roberts
visited the Clinic to have Dr. Blackham complete disability paperwork8 and to request a
cortisone injection for his back. (Tr. 521.) Dr. Blackham prescribed Naprosyn but did not give
Mr. Roberts a cortisone injection. (Id.) Dr. Blackham found Mr. Roberts’s condition had not
changed except for a positive straight leg raise test. (Id.) In November 2008, Mr. Roberts again
began to meet weekly with his social worker, Mr. Jensen. (See Tr. 479-83.) On December 18,
2008, Mr. Jensen said Mr. Roberts “initially responded favorably” to cognitive methods but that
his depression and “suicidal ideation” returned, and that “suicidal ideation, memory loss,
insomnia, [l]ack of interest in hobbies, [and] withdrawal [and] isolation” continued to impair Mr.
Roberts’s “ability to maintain employment.” (Id.)
On January 27, 2009, Mr. Roberts visited the Clinic but saw a different doctor—Dr.
Kevin Anderson—complaining of severe back pain, restless legs, and insomnia. (Tr. 494.) An
x-ray of his back showed nothing out of the ordinary.9 (Tr. 498-99.) Dr. Anderson instructed

8

The paperwork Mr. Roberts asked Dr. Blackham to complete consisted of an evaluation
form that requested Dr. Blac kham provide his m edical opinion as to Mr. Roberts’s physical
ability to do work-related activities based on Mr. Roberts’s medical history. (See Tr. 474-77.)
9
The Radiologists’ records reflect that Mr. Roberts slipped on ice two weeks earlier.
6

Mr. Roberts to follow up if the symptoms persisted. (Tr. 495.) Mr. Roberts visited Dr.
Blackham on February 10, because he had a “very painful and tender” lump on his back. (Tr.
491.) Dr. Blackham examined Mr. Roberts and found his condition had not changed except for a
two centimeter mass located on the left of his mid thoracic spine, which caused Dr. Blackham to
order a CT scan of Mr. Roberts’s thoracic spine. (Tr. 491-92.) Dr. Blackham found the CT scan
was unremarkable, (Tr. 491), and the next day requested an appointment be scheduled with a Dr.
Allen to have Mr. Roberts’s lump removed. (Tr. 490.)
On April 27, Mr. Roberts visited Dr. Blackham complaining of arm and hip pain. (Tr.
572.) Dr. Blackham gave Mr. Roberts a trigger point injection in his right lower back for his
continued pain and found Mr. Roberts had muscle spasm in his paraspinous muscles, limited
range of motion, normal strength, normal reflexes, normal sensation in his legs, and a negative
straight leg raise test. (Id.) On June 9, Mr. Roberts consulted Dr. Blackham on his back pain
and complained of neck pain and frequent migraine headaches but Dr. Blackham found Mr.
Roberts’s condition had not changed except for a positive straight leg raise test. (Tr. 569.) On
June 30, Mr. Roberts complained to Dr. Blackham that he felt depressed, and Dr. Blackham
noted “[he] [h]as been on numerous antidepressants with little change.” (Tr. 566.) Dr.
Blackham prescribed a daily dose of Symbyax and told Mr. Roberts to follow up in one month.
(Id.)
At the administrative hearing, Mr. Roberts was thirty-seven years old and had last
worked part time for The Parts House through at least November 5, 2008, (Tr. 260), but earnings
from this job did not constitute substantial gainful activity. (Tr. 18.) Mr. Roberts began working
as a truck driver for Barney Trucking in 2001, (Tr. 202, 211), but could not work after his
February 11, 2007 surgery and received short-term disability from Barney Trucking through
7

August, 18, 2007. (Tr. 191-94.) Prior to working for Barney Trucking, Mr. Roberts worked as a
foreman at Cleggs Roofing from 1990 to 1991, (Tr. 211), a carpet installer at Jones Glass from
1991 or 1992 to 1996, and a delivery truck driver at Birrel Bottling from 1996 or 1997 to 2001.
(Tr. 202, 211)
After the administrative hearing the ALJ secured interrogatory responses from two
additional medical sources. (See Tr. 277, 284.) The ALJ sent the medical source interrogatory
responses to Mr. Roberts on July 14, 2009, and deemed the interrogatory responses admitted into
evidence without objection after Mr. Roberts did not respond within fourteen days after the date
of the ALJ’s letter. (Tr. 277.) Michael F. Enright, Ph.D., the first additional medical source,
responded to interrogatories from the ALJ requesting he analyze Mr. Roberts’s mental health
based on the medical evidence in the record. (See Tr. 539-44.) Dr. Enright found Mr. Roberts
did have mental impairments but that those impairments did not meet or equal a listed
impairment. (Id.) Kendrick O. Morrison, M.D., the second additional medical source,
responded to similar interrogatories from the ALJ asking him to analyze Mr. Roberts’s physical
health. (See Tr. 545-65.) Dr. Morrison found Mr. Roberts did not meet or equal a listed
impairment for the required durational period but did have some functional limitations that affect
his ability to work. (Id.)
The ALJ also sent a copy of an interrogatory response she received from vocational
expert Dina Galli to Mr. Roberts on August 13, 2009. (Tr. 284.) Mr. Roberts objected to the
hypotheticals in the interrogatory because they were not based on the opinions of Dr. Blackham
and Mr. Jensen. (Tr. 285-86.) Ms. Galli found Mr. Roberts could not perform any of his past
work but could perform other jobs in the national or regional economy. (Id.)

8

STANDARD OF REVIEW
42 U.S.C. section 405(g) provides for judicial review of a final decision of the
Commissioner of the Social Security Administration (“SSA”). The Court reviews the
Commissioner’s decision to determine whether the record as a whole contains substantial
evidence in support of the Commissioner’s factual findings and whether the SSA applied the
correct legal standards. 42 U.S.C. §405(g); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
The Commissioner’s findings shall stand if supported by substantial evidence. 42 U.S.C. §
405(g).
Adequate, relevant evidence that a reasonable mind might accept to support a conclusion
constitutes substantial evidence, and “[e]vidence is insubstantial if it is overwhelmingly
contradicted by other evidence.” O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994). The
standard “requires more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084.
“Evidence is not substantial if it is overwhelmed by other evidence—particularly certain types of
evidence (e.g., that offered by treating physicians)—or if it really constitutes not evidence but
mere conclusion.” Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (internal quotations
marks and citations omitted). Moreover, “[a] finding of ‘no substantial evidence’ will be found
only where there is a conspicuous absence of credible choices or no contrary medical evidence.”
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (internal quotation marks and citations
omitted).
Although the reviewing court considers “whether the ALJ followed the specific rules of
law that must be followed in weighing particular types of evidence in disability cases,” the court
“will not reweigh the evidence or substitute [its] judgment for the Commissioner’s,” Lax, 489
F.3d at 1084 (internal quotation marks and citations omitted), but “review only the sufficiency of
9

the evidence,” Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (emphasis in original).
The court does not have to accept the Commissioner’s findings mechanically, but “examine the
record as a whole, including whatever in the record fairly detracts from the weight of the
[Commissioner’s] decision and, on that basis, determine if the substantiality of the evidence test
has been met.” Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (internal quotation marks
and citation omitted). “‘The possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence,’” and the court may not “‘displace the agenc[y’s] choice between two fairly
conflicting views, even though the court would justifiably have made a different choice had the
matter been before it de novo.’” Lax, 489 F.3d at 1084 (quoting Zoltanski v. FAA, 372 F.3d
1195, 1200 (10th Cir. 2004)).
In addition to a lack of substantial evidence, the Court may reverse where the
Commission uses the wrong legal standards or the Commissioner fails to demonstrate reliance on
the correct legal standards. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Thomson
v. Sullivan; 987 F.2d 1482, 1487 (10th Cir. 1993); Andrade v. Sec’y of Health & Human Servs.,
985 F.2d 1045, 1047 (10th Cir. 1993).
ANALYSIS
The Social Security Act (“Act”) defines “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Moreover,
the Act considers an individual disabled “only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but cannot,
10

considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
In determining whether a claimant qualifies as disabled within the meaning of the Act,
the SSA employs a five-part sequential evaluation. See 20 C.F.R. § 404.1520; Williams v.
Bowen, 844 F.2d 748, 750-53 (10th Cir. 1988); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
The analysis evaluates whether:
(1) The claimant presently engages in substantial gainful activity;
(2) The claimant has a medically severe physical or mental impairment or impairments;
(3) The impairment is equivalent to one of the impairments listed in the appendix of the
relevant disability regulation which preclude substantial gainful activity;
(4) The impairment prevents the claimant from performing his or her past work; and
(5) The claimant possesses a residual functional capacity to perform other work in the
national economy considering his or her age, education, and work experience.
See 20 C.F.R. § 404.1520. The claimant has the initial burden of establishing the disability in the
first four steps. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). At step five, the burden
shifts to the Commissioner to show the claimant retains the ability to perform other work
existing in the national economy. Id.
The ALJ continued to evaluate Mr. Roberts’s claim through step five, making the
following findings of fact and conclusions of law with respect to Mr. Roberts:
1. “[Mr. Roberts] m eets the insu red status requirements of the Social
Security Act through December 31, 2012.” (Tr. 18.)
2. “[Mr. Roberts] has not engaged in
substantial gainful activity since
February 11, 2007, the alleged onset date (20 C.F.R. 404.1571 et seq.).” 10
(Tr. 18.)
3. “[Mr. Roberts] has the following seve re impairments: degenerative dis c
disease of the lum bar spine, status-post L3-4 and L4-5 fusions;

10

The reco rd does not clearly set forth Mr . Roberts’s employment history, and the A LJ
provided only a brief discussion of this issue in her opinion. However, Mr. Roberts does not
challenge this portion of the ALJ’s decision.
11

degenerative disc disease of the cervical and th oracic spines; and reactive
depression (20 C.F.R. 404.1520(c)).” (Tr. 19.)
4. “[Mr. Roberts] does not have an
impairment or com bination of
impairments that meets or medically equals one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1, (20 C.F.R. 404.1520(d),
404.1525 and 404.1526).” (Tr. 19.)
5. “[Mr. Roberts] has the residual func tional capacity to per form medium
work as defined in 20 C .F.R. 404.1567(c) except frequently carrying and
lifting up to 10 pounds; a sit-stand option at will; avoiding all exposure to
unprotected heights, to rough or uneven surfaces and to ladders, ropes and
scaffolds: avoiding even moderate
exposure to climbing stairs;
“occasional” (up to 1/3 of the workda y) exposure to m oving mechanical
parts, operating a m otor vehicle and vibration; and with “m ild” (slight
limitation but generally able to functi on well) limitation in understanding,
remembering and carrying out detailed instructions, making judgments on
complex work-related decisions, interacting appropriately with supervisors
and co-workers, and responding appropriately to usual work situations and
to changes in the work setting.” (Tr. 20.)
6. “[Mr. Roberts] is unable to perform any past relevant work (20 C.F.R.
404.1565).” (Tr. 27.)
7. “[Mr. Roberts] was born on December 13, 1971 and was 35 years old,
which is defined as a younger i
ndividual age 18-49, on the alleged
disability onset date (20 C.F.R. 404.1563).” (Tr. 27.)
8. “[Mr. Roberts] has at least a high
school education and is able to
communicate in English (20 C.F.R. 404.1564).” (Tr. 27.)
9. “Transferability of job skills is n ot material to the de termination of
disability because using the Medical -Vocational Rules as a fram ework
supports a finding that [Mr. Roberts] is ‘not disabled,’ whether or not [Mr.
Roberts] has transferab le job skills ( See SSR 82-41 and 20 C.F.R. Part
404, Subpart P, Appendix 2).” (Tr. 27.)
10. “Considering [Mr. Roberts’s] age, education, work experience, and [RFC],
there are jobs that exis t in significant num bers in the national econom y
that [Mr. Roberts] can perfor m (20 C.F.R. 404.1569 and 404.1569(a).”
(Tr. 27.)
11. “[Mr. Roberts] has not been under a di sability, as define d in the Social
Security Act from February 11, 2007 th rough the date of this decision (20
C.F.R. 404.1520(g)).” (Tr. 28.)
In short, the ALJ concluded that Mr. Roberts did not possess an impairment or
combination of impairments that meets or medically equals one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1, that he had the residual functional capacity to perform a
limited range of light, unskilled work, and that he did not qualify as disabled as defined in the
12

Act from February 11, 2007, the alleged onset date, through the date of the ALJ decision. (Tr.
19-20, 28.)
In support of his claim that this Court should reverse the Commissioner’s decision, Mr.
Roberts argues the ALJ erred: (1) by failing to evaluate the opinion of a treating physician
properly; (2) by failing to determine Mr. Roberts’s RFC properly; (3) by failing to adequately
explain and support with substantial evidence her finding that Mr. Roberts did not meet a listing;
and (4) by failing to evaluate properly the opinion of a medical source who is not an acceptable
medical source. The Court addresses each argument in turn.
I.

Evaluation of Treating Physician Opinion Evidence

Mr. Roberts argues the ALJ erred when she did not assign controlling weight to the
opinion of his treating physician, Dr. Blackham. He argues the ALJ relied more heavily on the
opinion of Dr. Morrison without properly explaining why and that the ALJ “cherry pick[ed] the
evidence” that best supports her opinion. (Pl.’s Opening Br. 10-11.)
When evaluating a treating physician’s medical opinion, the ALJ must complete a twostep analysis. Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). At the first step the ALJ
must determine whether to give controlling weight to the treating physician’s medical opinion.
Id. (citation omitted). The ALJ should accord the opinion controlling weight “if it is wellsupported by medically acceptable clinical or laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in the record.” Id. However, deficiency at step one
does not automatically mean the ALJ should reject the opinion. Id. (citing SSR 96-2P). The
second step requires the ALJ to explain clearly how much weight she gives to the opinion using
factors provided in the regulations. Id. at 1330-31. 20 C.F.R. section 404.1527(c) provides the
factors the ALJ must consider at step two: “(1) the length of the treatment relationship and the
13

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” relevant evidence supports the physician’s opinion; “(4) consistency between the opinion
and the record as a whole; (5) whether” the physician specializes in the area upon which s/he
renders an opinion; and “(6) other factors brought to the ALJ’s attention [that] tend to support or
contradict the opinion.” See Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003).
While the ALJ must explain the weight given to the opinion, the ALJ’s decision need only be
“‘sufficiently specific to make clear to any subsequent reviewers the weight [she] gave to the
treating source’s medical opinion and the reason for that weight.’” Krauser, 638 F.3d at 1331
(quoting Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004)).
Moreover, the ALJ’s decision need not discuss explicitly all of the factors for each of the
medical opinions. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (stating that a
lack of discussion of each factor does not prevent the court from according the decision
meaningful review). When considering medical opinion evidence, the ALJ must weigh and
resolve evidentiary conflicts and inconsistencies. See, e.g., Eggleston v. Bowen, 851 F.3d 1244,
1247 (10th Cir. 1988) (reflecting ALJ’s resolution of evidentiary conflicts between medical
providers).
Here, the ALJ considered all relevant evidence and determined not to give Dr.
Blackham’s opinion—primarily found in an evaluation form Dr. Blackham completed at the
request of Mr. Roberts—controlling weight. (See Tr. 23.) Mr. Roberts relies heavily on Dr.
Blackham’s evaluation form as proof of his disability, but Dr. Blackham refers only to “history,
exam,” to support his conclusions, (Tr. 474-477), rather than citing specific medical records. See
Griner v. Astrue, 281 Fed.App’x. 797, 800 (10th Cir. 2008) (holding “‘a treating physician’s
14

report may be rejected if it is brief, conclusory and unsupported by medical evidence’” (quoting
Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir.1988)). The ALJ proceeded to provide a thorough
summary of the medical record that she found inconsistent with Dr. Blackham’s opinion. (Tr.
23.) In particular, the ALJ found Dr. Blackham’s own treatment notes “reveal chronic pain but
no consistent symptoms of neurological compromise,” thus undermining his opinions. (Id.)
Further, the ALJ found the majority of Dr. Blackham’s conclusions in the evaluation form “out
of proportion to [Mr. Roberts]’s physical, neurological and imaging examinations, and [Dr.
Blackham’s] own and his associates’ treatment notes.” Id. Therefore, the ALJ gave Dr.
Blackham’s opinion “considerably reduced weight.” Id. However, the ALJ did not completely
disregard Dr. Blackham’s opinion. The ALJ found the medical record supported Dr. Blackham’s
conclusions regarding necessary work restrictions “on unprotected heights, moving mechanical
parts, rough or uneven surfaces, climbing stairs,” and on providing Mr. Roberts “the option to
change position from sitting to standing at will.” Id. On that basis, the ALJ incorporated those
restrictions into the assessment of Mr. Roberts’s ability to work. (Tr. 20-28.) In making these
findings, the ALJ makes clear her performance of steps one and two, allowing reviewers to
follow her reasoning in according Dr. Blackham’s opinion “considerably reduced weight.”
By contrast to Dr. Blackham’s opinion, the ALJ found Dr. Morrison’s opinion “highly
persuasive and [she] g[a]ve it considerable weight” because it is “well-supported by the medical
records.” (Tr. 25.) Unlike Dr. Blackham’s evaluation form, Dr. Morrison cited specific medical
records and treatment notes including those of Dr. Blackham that supported his opinion. (Tr.
545-65.) The Court will not reweigh the evidence presented to the agency or substitute its
judgment for the Commissioner’s. Lax, 489 F.3d at 1084. Therefore, on this record, the Court
finds the ALJ’s evaluation of the medical opinion evidence proper.
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II.

RFC Consideration

Mr. Roberts next argues the ALJ erred in assessing his RFC because she relies on Dr.
Morrison’s opinion, which he claims does not support her finding and also does not contradict
Dr. Blackham’s opinion, which she rejected. (Pl.’s Opening Br. 12-13.)
The RFC reflects the ability to do physical, mental, and other work activities on a
sustained basis despite limitations from the claimant’s impairments. See 20 C.F.R. §§ 404.1545,
416.945. In determining the claimant’s RFC, the decision maker considers all of the claimant’s
medically determinable impairments, including those considered not “severe.” See 20 C.F.R. §
404.1545(a)(2). Case law and agency regulations state that “the ALJ, not a physician, is charged
with determining a claimant’s RFC from the medical record.” Howard v. Barnhart, 379 F.3d
945, 949 (10th Cir. 2004) (following 20 C.F.R. § 416.927(e)(2) and SSR 96-5p). See also 20
C.F.R. §§ 404.1546(c), 416.946(c). Thus, even though Dr. Blackham made an RFC assessment,
the ALJ must make her own assessment and not simply defer her responsibility to the physician.
Moreover, the ALJ must base RFC assessments on all relevant evidence in the record, not just
the medical evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); SSR 96-8p.
Mr. Roberts’s argument mischaracterizes the RFC and the evidence the ALJ used to
support her determination. The ALJ found Mr. Roberts’s RFC allows him to perform medium
work with significant exceptions:
[F]requently carrying and lifting up to 10 pounds; a sit-stand option at will;
avoiding all exposure to unprotected height s, to rough or uneven surfaces and to
ladders, ropes and scaffolds: avoiding even moderate exposure to climbing stairs;
“occasional” (up to 1/3 of the workday) exposure to m oving mechanical parts,
operating a motor vehicle and vibration; and with “m ild” (slight limitation but
generally able to function well) lim itation in understanding, rem embering and
carrying out detaile d instructions, m aking judgments on com plex work-related
decisions, interacting appropriately w ith supervisors and co-workers, and

16

responding appropriately to usual work s ituations and to changes in the work
setting.
(Tr. 20.) These exceptions reflect the evidence, including Dr. Morrison’s and Dr. Blackham’s
opinions, and place Mr. Roberts’s RFC and occupational base somewhere between the medium
work level and light work level. Ordinarily after determining a claimant’s RFC the ALJ turns to
the medical-vocational guidelines (the “grids”) to determine if claimant has a disability, and what
jobs he can perform. 20 C.F.R. pt. 404, Subpt. P, App. 2. “The grids, however, ‘may not be
applied conclusively in a given case unless the claimant’s characteristics precisely match the
criteria of a particular rule.’” Casey v. Barnhart, 76 Fed. App’x 908, 910 (10th Cir. 2003)
(quoting Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984)). “Where the extent of erosion
of the occupational base is not clear, the adjudicator will need to consult a vocational resource.”
SSR 83-12.
Mr. Roberts would have the Court believe Dr. Morrison’s opinion contradicts the RFC,
(Pl.’s Reply Br. 7), but the ALJ quite clearly incorporated Dr. Morrison’s findings as exceptions
to the standard medium work RFC she applied to Mr. Roberts’s situation. In addition to Dr.
Morrison’s findings, the ALJ also relied on “certain portions” of Dr. Blackham’s evaluation form
in determining the RFC, (Tr. 23), but the ALJ had no obligation to accept those portions of Dr.
Blackham’s opinion she found inconsistent with other evidence. In addition to the medical
opinions of Dr. Blackham and Dr. Morrison, the ALJ analyzed the actual medical records and
found many showed Mr. Roberts could not return to his job as a truck driver but did not
“preclude all work for all time.” (Tr. 22.) The ALJ also relied on evidence showing a long
period of time where Mr. Roberts did not receive treatment for his back and that although he

17

complained of pain, his condition remained unchanged. (See Tr. 24.) Substantial evidence
supports this analysis by the ALJ of Mr. Roberts’s condition and the RFC determination.
The ALJ’s reasoning at step five also evidences her intent to have the RFC reflect the
limitations found in the record. The ALJ consulted with a vocational expert at step five because
Mr. Roberts’s ability to work “has been impeded by additional limitations,” and she needed “[t]o
determine the extent to which these limitations erode the unskilled medium occupational base.”
(Tr. 28.) The vocational expert opined that Mr. Roberts could perform several unskilled, light
exertional level jobs, (Tr. 280-81.), a conclusion the ALJ found consistent with the RFC and the
other factors she had to consider at step five of the evaluation process. (See Tr. 28.) The ALJ’s
use of a vocational expert as required by Social Security Ruling 83-12 provides further evidence
she recognized Mr. Roberts’s RFC fell somewhere between the medium work and light work
category.
The Court finds the ALJ took into account Mr. Roberts’s physical limitations and the
entire record in determining Mr. Roberts’s RFC. Substantial evidence in the record supports the
RFC finding, and the Court finds the ALJ did not err in assessing Mr. Roberts’s RFC.
III.

Listing of Impairments Consideration

Next, Mr. Roberts argues the ALJ erred at step three by finding he did not meet any
Listing of Impairments, specifically Listing sections 1.04 and 12.04, and that the ALJ’s
reasoning was “confusing and inconsistent” and that she “[was] merely trying to cherry pick the
evidence to support her own conclusion.” (Pl.’s Opening Br. 14-15.)
Appendix 1 of Subpart P, 20 Code of Federal Regulations section 404 lists impairments
that preclude “substantial gainful employment.” See 20 C.F.R. § 404.1520(d). The claimant
bears the burden to show that his impairment meets or equals the requirements of a listed
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impairment. See 42 U.S.C. § 423(d)(5). See also Bowen, 482 U.S. at 146; Ray, 865 F.2d at 224.
For an ALJ to find a claimant meets a listing, the claimant’s impairment must “satisf[y] all of the
criteria of that listing, including any relevant criteria in the introduction, and meets the duration
requirement.” 20 C.F.R. § 404.1525(c)(3). If a claimant’s impairment does not meet a listing,
his impairment may constitute the medical equivalent if he has “other findings related to [his]
impairment that are at least of equal medical significance to the required criteria.” 20 C.F.R. §
404.1526(b)(1)(ii). Where the claimant does not meet or equal a listing the ALJ must “discuss
the evidence and explain why [s]he found that [claimant] was not disabled at step three.” Clifton
v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). But inadequate analysis at step three may
constitute harmless error if the “findings at other steps of the sequential process” support the
finding. Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005).
Mr. Roberts did not argue he met or equaled Listing 12.04 during the administrative
hearing. Further, Mr. Roberts does not offer any explanation or evidence to support his
contention the ALJ erred by finding he did not meet Listing 12.04. Nor does this Court find any
error in the ALJ’s analysis regarding Listing 12.04. Accordingly, the Court will not address this
argument.
Regarding Listing 1.04, the ALJ found Mr. Roberts did not meet the Listing because he
“did not have the requisite pseudoclaudication, arachnoiditis, or consistent signs of spinal
compression.” (Tr. 20.) Mr. Roberts does not provide any evidence to refute this conclusion
except for referring to Dr. Blackham’s opinion, (Pl.’s Reply Br. 8-10), which the ALJ refutes
with reference to substantial evidence throughout her opinion. (Tr. 20-24.) The ALJ also found
that although Mr. Roberts may have met Listing 1.04 near the time of his two surgeries in
February and April 2007, he did not meet the durational requirement. (Tr. 19.) The ALJ bases
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her conclusion on Dr. Morrison’s opinion, and although Dr. Morrison does not provide specific
dates when Mr. Roberts met Listing 1.04, he does clearly state Mr. Roberts did not meet the
criteria “for the full year period.” (Tr. 547.) Dr. Morrison supports his conclusion by attaching a
completed “Medical Source Statement of Ability to Do Work-Related Activities (Physical)” that
cites medical evidence. (See Tr. 549, 559-565.) The parties dispute whether the ALJ came to a
similar conclusion during the administrative hearing. (Tr. 64-5.) Regardless, the ALJ bases her
final determination on Dr. Morrison’s opinion, which she received after the administrative
hearing. 11
Further, although the ALJ’s analysis at step three appears somewhat conclusory in that
she relies on Dr. Morrison’s opinion without discussing specific medical records, her analysis at
steps four and five, previously discussed in this opinion, support her conclusion that Mr. Roberts
did not meet Listing 1.04. Specifically, the ALJ notes the MRIs show solid fusions with “no
acute complications or significant abnormality.” (Tr. 21.) Further, Dr. Blackham’s records
reflect periods of “doing well” (January 2008 through June 2008) including no need for narcotic
medication. 12 (Tr. 22.) Because Mr. Roberts does not meet his burden of proving his conditions
meet or equal a listing and because the ALJ’s opinion as a whole supports her determination at
step three, the Court finds the ALJ did not err in finding Mr. Roberts did not meet or equal
Listing 1.04.

11

Additionally, after m aking the disputed preliminary finding during the adm inistrative
hearing, the ALJ doubted her finding later in the hearing because of insufficient medical records
on which to base her decision. (Tr. 72-73.)
12
Furthermore, medical records between January 11, 2008, and June 9, 2009, show Mr.
Roberts’s physical condition was inconsistent,
specifically his rang e of m otion, reflexes,
sensation in his legs, and straig ht leg raise tests, and therefor e he did not m eet the durational
requirement. (See Tr. 491-92, 494-95, 521, 524, 527-28, 530-31, 536, 569, 572.)
20

IV.

Evaluation of Other Medical Source Opinion Evidence

Lastly, Mr. Roberts argues the ALJ erred because she rejected the opinion of David B.
Jensen, Mr. Roberts’s mental health caseworker, and did not explain the weight she afforded Mr.
Jensen’s opinion. (Pl.’s Opening Br. 15.) In addition to medical opinions from “acceptable
medical sources” an ALJ must consider any other relevant evidence to determine if a person
qualifies as disabled. SSR 06-03P. Relevant evidence may come from “other sources” who are
not “acceptable medical sources,” and the ALJ can evaluate them using the same factors used to
evaluate medical evidence from “acceptable medical sources,” Id., which the Court has already
set forth in this opinion. Evidence “from an ‘acceptable medical source’ is a factor that may
justify giving that opinion greater weight than an opinion from a medical source who is not an
‘acceptable medical source.’” Id. While a clear statement by the ALJ explaining the weight she
gave to opinions from “other sources” assists the Court in its review, the ALJ need only “ensure
that the discussion of the evidence in the . . . decision allows a . . . subsequent reviewer to follow
the [ALJ]’s reasoning.” Id.
Mr. Roberts’s argument incorrectly asserts the ALJ discounted Mr. Jensen’s opinion
solely on the basis that “Mr. Jensen is not an acceptable medical source.” (Pl.’s Opening Br. 15.)
In addition to considering Mr. Jensen’s status as an “other medical source,” the ALJ found Mr.
Jensen’s “opinion was not well-supported by his or any other medical records.” (Tr. 26.) Mr.
Jensen’s opinion does not cite his clinical notes or any other medical evidence, and Mr. Jensen
failed to provide clinical notes or other evidence to support his conclusions. (Id.) Further, the
ALJ determined that she could not consider the Global Assessment of Functioning (“GAF”)
scores provided by Mr. Jensen because the “GAF score is not designed for adjudicative
purposes” and “standing alone, is not informative.” (Tr. 25.)
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Moreover, medical evidence fails to support Mr. Jensen’s opinion. In March 2007, Dr.
Blackham found Mr. Roberts depressed following the first surgery. (Tr. 447.) But on December
2007, however, Dr. George noted “[h]e appears to be functioning much better in relation to his
depressive symptoms,” (Tr. 488), and on January 10, 2008, Mr. Roberts requested an increase in
antidepressants, reported going to therapy, and feeling better. (Tr. 538.) These symptoms make
no further appearance in the record until June 30, 2009, and Mr. Roberts reports depression at the
time without any further explanation. (See Tr. 566.) Therefore, the ALJ did not err in finding
Mr. Jensen’s opinion should receive less weight than the other medical evidence and
interrogatories on the record.
CONCLUSION
Based on the foregoing, the Court finds that substantial evidence supports the
Commissioner’s decision and AFFIRMS the Commissioner’s decision in this case.
DATED this 13th day of March, 2013.
BY THE COURT:

___________________________________
Evelyn J. Furse
United States Magistrate Judge

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