Garza v. Astrue

Filing 19

MEMORANDUM DECISION affirming the decision of the Commissioner of Social Security Administration. Signed by Magistrate Judge Paul M. Warner on 03/23/2012. (asp)

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

AMY M. GARZA,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 2:10-cv-1079-PMW

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

Magistrate Judge Paul M. Warner

Before the court is Amy M. Garza’s (“Plaintiff”) appeal of Michael J. Astrue’s
(“Commissioner”) final decision determining that Plaintiff was not entitled to Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act. See 42 U.S.C. §§ 401-434.
After careful consideration of the written briefs and the complete record, the court has
determined that oral argument is not necessary in this case.
BACKGROUND
In February 2007, Plaintiff applied for DIB, alleging disability beginning on May 2,
2006.1 Plaintiff’s application was denied initially and upon reconsideration.2 In December 2008,
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”),3 and that hearing was

1

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

2

See Tr. 62-63.

3

See Tr. 5-6.

”) 104-05.

held on July 31, 2008.4 On November 12, 2008, the ALJ issued a written decision denying
Plaintiff’s claim for DIB.5 In September 2010, the Appeals Council denied Plaintiff’s request for
review,6 making the ALJ’s decision the Commissioner’s final decision for purposes of judicial
review. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.981.
On November 3, 2010, Plaintiff filed her complaint in this case, which was assigned to
District Judge Dee Benson.7 On February 16, 2011, both parties consented to having a United
States Magistrate Judge conduct all proceedings in the case, including entry of final judgment,
with appeal to the United States Court of Appeals for the Tenth Circuit.8 Consequently, the case
was reassigned to Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(c) and rule 73
of the Federal Rules of Civil Procedure.9 After receiving an extension of time,10 the
Commissioner filed his answer on March 8, 2011,11 and the court received the Administrative
Record the same day.12

4

See Tr. 21-60.

5

See Tr. 7-20.

6

See Tr. 1-4.

7

See docket no. 3.

8

See docket no. 7.

9

See id.

10

See docket nos. 5-6.

11

See docket no. 9.

12

See docket no. 10.
2

Plaintiff filed her opening brief on May 6, 2011.13 After receiving an extension of time,14
the Commissioner filed his responsive brief on July 1, 2011.15 Plaintiff filed her reply brief on
July 15, 2011.16
STANDARD OF REVIEW
This court “review[s] the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotations and
citation omitted). The Commissioner’s findings, “if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. It requires more than a
scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084 (quotations and citation
omitted). “In reviewing the ALJ’s decision, [this court may] neither reweigh the evidence nor
substitute [its] judgment for that of the [ALJ].” Madrid v. Barnhart, 447 F.3d 788, 790 (10th
Cir. 2006) (quotations and citation omitted). “The failure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that appropriate legal principles have been
followed [are] grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005)
(quotations and citation omitted).
13

See docket no. 14.

14

See docket nos. 15-16.

15

See docket no. 17.

16

See docket no. 18.
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A five-step evaluation process has been established for determining whether a claimant is
disabled. See 20 C.F.R. § 404.1520(a)(4)(i)-(v); see also Williams v. Bowen, 844 F.2d 748, 75051 (10th Cir. 1988) (discussing the five-step process). If a determination can be made at any one
of the steps that a claimant is or is not disabled, the subsequent steps need not be analyzed. See
20 C.F.R. § 404.1520(a)(4).
Step one determines whether the claimant is presently
engaged in substantial gainful activity. If [the claimant] is,
disability benefits are denied. If [the claimant] is not, the decision
maker must proceed to step two: determining whether the claimant
has a medically severe impairment or combination of
impairments. . . . If the claimant is unable to show that his
impairments would have more than a minimal effect on his ability
to do basic work activities, he is not eligible for disability benefits.
If, on the other hand, the claimant presents medical evidence and
makes the de minimis showing of medical severity, the decision
maker proceeds to step three.
Williams, 844 F.2d at 750-51 (quotations and citations omitted); see 20 C.F.R.
§ 404.1520(a)(4)(i)-(ii).
“Step three determines whether the impairment is equivalent to one of a number of listed
impairments that . . . are so severe as to preclude substantial gainful activity . . . . If the
impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to
benefits. If not, the evaluation proceeds to the fourth step . . . .” Williams, 844 F.2d at 751
(quotations and citations omitted); see 20 C.F.R. § 404.1520(a)(4)(iii). At the fourth step, the
claimant must show that the impairment prevents performance of his “past relevant work.” 20
C.F.R. § 404.1520(a)(4)(iv). “If the claimant is able to perform his previous work, he is not

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disabled.” Williams, 844 F.2d at 751. If, however, the claimant is not able to perform his
previous work, he “has met his burden of proof, establishing a prima facie case of disability.” Id.
At this point, “[t]he evaluation process . . . proceeds to the fifth and final step.” Id. At
this step, the burden of proof shifts to the Commissioner, and the decision maker must determine
“whether the claimant has the residual functional capacity [(”RFC”)] . . . to perform other work
in the national economy in view of his age, education, and work experience.” Id.; see 20 C.F.R.
§ 404.1520(a)(4)(v). If it is determined that the claimant “can make an adjustment to other
work,” 20 C.F.R. § 404.1520(a)(4)(v), he is not disabled. If, on the other hand, it is determined
that the claimant “cannot make an adjustment to other work,” id., he is disabled and entitled to
benefits.
ANALYSIS
In support of her claim that the Commissioner’s decision should be reversed, Plaintiff
argues that the ALJ erred: (1) by improperly rejecting the opinions of Plaintiff’s treating and
reviewing medical providers, (2) in evaluating the credibility of Plaintiff’s subjective complaints,
(3) in conducting the analysis at step four of the sequential evaluation process, and (4) by relying
on vocational expert testimony (“VE”) that conflicted with the Dictionary of Occupational Titles
(“DOT”). The court will address each argument in turn.
I. Treating and Reviewing Medical Opinions
Plaintiff argues that the ALJ improperly rejected the opinions of one of Plaintiff’s treating
sources, Dr. Noel Schenk (“Dr. Schenk”). Plaintiff also argues that the ALJ failed to account for

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certain limitations expressed in the opinions of two nonexamining physicians, Dr. Dawson
Hedges (“Dr. Hedges”) and Dr. Thomas Atkin (“Dr. Atkin”).
In deciding how much weight to give a treating source
opinion, an ALJ must first determine whether the opinion qualifies
for controlling weight. To make this determination, the ALJ . . .
must first consider whether the opinion is well[ ]supported by
medically acceptable clinical and laboratory diagnostic techniques.
If the answer to this question is “no,” then the inquiry at this stage
is complete. If the ALJ finds that the opinion is well[ ]supported,
he must then confirm that the opinion is consistent with other
substantial evidence in the record. If the opinion is deficient in
either of these respects, then it is not entitled to controlling weight.
Even if a treating physician’s opinion is not entitled to
controlling weight, treating source medical opinions are still
entitled to deference and must be weighed using all of the factors
provided in [20 C.F.R. §] 404.1527. Those factors are: (1) the
length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment
relationship, including the treatment provided and the kind of
examination or testing performed; (3) the degree to which the
physician’s opinion is supported by relevant evidence; (4)
consistency between the opinion and the record as a whole; (5)
whether or not the physician is a specialist in the area upon which
an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Under the regulations, the agency rulings, and [Tenth
Circuit] case law, an ALJ must give good reasons . . . for the
weight assigned to a treating physician’s opinion . . . that are
sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical
opinion and the reason for that weight. If the ALJ rejects the
opinion completely, he must then give specific, legitimate reasons
for doing so.
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quotations and citations omitted)
(sixth alteration in original); see also 20 C.F.R. § 404.1527(c).
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With respect to the opinions of nonexamining physicians, the relevant regulation
indicates that the ALJ still considers those opinions as opinion evidence. See 20 C.F.R.
§ 404.1527(e). Further, the ALJ is required to consider nonexamining opinions in accordance
with the same standards used for considering treating source opinions. See id.
As with other evidentiary matters, when an ALJ is considering medical opinion evidence,
it is the ALJ’s role to weigh and resolve evidentiary conflicts and inconsistencies. See, e.g.,
Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000); Eggleston v. Bowen, 851 F.2d 1244,
1247 (10th Cir. 1988).
First, Plaintiff asserts that the ALJ erred by rejecting the opinion of Dr. Schenk. Because
the ALJ concluded that Dr. Schenk’s opinion was entitled to diminished weight, it is implicit that
the ALJ also viewed that opinion as not being entitled to controlling weight. Accordingly, the
court turns to the deference and weight the ALJ gave to Dr. Schenk’s opinion. See Langley, 373
F.3d at 1119; see also 20 C.F.R. § 404.1527(c).
In her decision, the ALJ stated that she was not accepting Dr. Schenk’s opinion of
November 1, 2007, which indicated that Plaintiff had numerous marked and extreme limitations
in mental functioning. The ALJ stated that she was rejecting that opinion because it was not well
supported by medically acceptable clinical and diagnostic techniques, was not consistent with
Plaintiff’s description of her activities of daily living, and was inconsistent with the other
medical evidence in the record.
Plaintiff contends that the ALJ failed to identify the alleged inconsistencies between Dr.
Schenk’s opinion and the remaining medical evidence in the record. That argument fails. While
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it is true that the ALJ did not specifically identify that record evidence in the portion of her
decision concerning Dr. Schenk’s opinion, another portion of the ALJ’s decision contains a
thorough discussion of the medical evidence in the record.17 A review of that portion of the
ALJ’s decision demonstrates that the ALJ discussed substantial evidence in the record that was
inconsistent with the extreme limitations contained within Dr. Schenk’s opinion.
Plaintiff also argues that the ALJ failed to account for certain limitations expressed in the
opinions of two nonexamining physicians, Dr. Hedges and Dr. Atkin. Plaintiff asserts that the
ALJ erred by concluding that Plaintiff had only mild mental health limitations when both Dr.
Hedges and Dr. Atkin opined that Plaintiff had several moderate mental health limitations.
Plaintiff also asserts that the ALJ erred by failing to include a limitation expressed by Dr.
Hedges, namely, that Plaintiff needed a low stress job with minimal contact with others. In
essence, Plaintiff argues that the ALJ was required to include the above-referenced limitations in
Plaintiff’s RFC and in the hypothetical provided to the VE. That argument is without merit. The
court concludes that there was nothing improper about the ALJ’s decision to omit the
above-referenced limitations expressed by Dr. Hedges and Dr. Atkin. An ALJ is not required to
include every limitation expressed by every opinion in the record. Instead, it is the ALJ’s
responsibility to assess Plaintiff’s RFC based on all of the record evidence. See id. § 404.1546;
see also Social Security Ruling (“SSR”) 96-5. Furthermore, opinions about a claimant’s RFC are
not dispositive because the determination of Plaintiff’s RFC issue is reserved to the

17

See Tr. 16, 18-19.
8

Commissioner. See 20 C.F.R. § 404.1527(d)(2); SSR 96-5; see also Howard v. Barnhart, 379
F.3d 945, 949 (10th Cir. 2004) (“[T]he ALJ, not a physician, is charged with determining a
claimant’s RFC from the medical record.”).
Based on the foregoing, the court concludes that the ALJ did not err in her treatment of
the opinions of Dr. Schenk, Dr. Hedges, and Dr. Atkin.
II. Credibility
Plaintiff argues that the ALJ erred in evaluating the credibility of Plaintiff’s subjective
complaints. In general, “[c]redibility determinations are peculiarly the province of the finder of
fact, and [this court] will not upset such determinations when supported by substantial evidence.”
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotations and citation omitted). Although
credibility determinations “should be closely and affirmatively linked to substantial evidence,”
id. (quotations and citation omitted), they “do[] not require a formalistic factor-by-factor
recitation of the evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
SSR 96-7p clarifies the standards an ALJ must apply when evaluating the credibility of an
individual’s statements, including his or her allegations of pain. See SSR 96-7p. In addition to
the objective medical evidence, an ALJ should consider the following factors when assessing the
credibility of an individual’s statements:
1.
2.
3.
4.

The individual’s daily activities;
The location, duration, frequency, and intensity of the
individual’s pain or other symptoms;
Factors that precipitate and aggravate the symptoms;
The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate
pain or other symptoms;
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5.
6.

7.

Treatment, other than medication, the individual receives or
has received for relief of pain or other symptoms;
Any measures other than treatment the individual uses or
has used to relieve pain or other symptoms (e.g., lying flat
on his or her back, standing for 15 to 20 minutes every
hour, or sleeping on a board); and
Any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.

Id.; see 20 C.F.R. § 404.1529(c); see also Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir.
1993).
In this case, the ALJ considered proper factors in reaching the determination that
Plaintiff’s testimony and her subjective complaints were not fully credible. First, the ALJ
properly relied upon the fact that evidence of Plaintiff’s daily activities was inconsistent with
Plaintiff’s complaints and her testimony about the degree of her limitations. See 20 C.F.R.
§ 404.1529(c)(3)(i); SSR 96-7p. The ALJ noted that the evidence of record established that
Plaintiff was able to independently perform her activities of daily living, including caring for her
personal needs, caring for a young son, preparing meals, doing light housework, doing laundry,
shopping, watching television, driving, visiting with friends, attending church, and going to
medical and counseling appointments.18 Second, the ALJ properly noted that the record evidence
established that Plaintiff’s medical evaluations had been within normal limits, she had no
persistent neural deficits, her pain was controlled with medication, she had not required any
extended periods of hospitalizations for her physical or mental impairments.19 See 20 C.F.R.

18

See Tr. 252.

19

See Tr. 17-18.
10

§ 404.1529(c)(3)(iv)-(vi); SSR 96-7p. Third, the ALJ properly referenced Plaintiff’s
noncompliance with taking her prescribed medications.20 See 20 C.F.R.
§ 404.1529(c)(3)(iv)-(vi); SSR 96-7p. Finally, in reaching her overall credibility determination,
the ALJ properly relied upon her own observations of Plaintiff’s evasive testimony and lack of
candor at the administrative hearing. See SSR 96-7p (“In instances where the individual attends
an administrative proceeding conducted by the adjudicator, the adjudicator may also consider his
or her own recorded observations of the individual as part of the overall evaluation of the
credibility of the individual’s statements.”).
To the extent that Plaintiff attempts to reargue the weight of the evidence before the ALJ
on this issue, the court notes that such a tactic is futile on appeal because it is not this court’s role
to reweigh the evidence before the ALJ. See Madrid, 447 F.3d at 790. Indeed, it is the ALJ’s
role to weigh and resolve evidentiary conflicts and inconsistencies. See, e.g., Rutledge, 230 F.3d
at 1174; Eggleston, 851 F.2d at 1247. From an evidentiary standpoint, the only issue relevant to
the court is whether substantial evidence exists in the record to support the ALJ’s conclusions.
See Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (providing that the court reviewing
the ALJ’s decision reviews “only the sufficiency of the evidence, not its weight” (emphasis
omitted)).
The ALJ articulated sufficient reasoning and relied upon proper factors in determining
that, overall, Plaintiff’s testimony was not fully credible. Furthermore, the court concludes that

20

See Tr. 18.
11

the ALJ’s determination is “closely and affirmatively linked to substantial evidence.” Kepler, 68
F.3d at 391 (quotations and citation omitted). Accordingly, the court concludes that the ALJ did
not err in reaching her determination about Plaintiff’s credibility.
III. Step Four
Plaintiff argues that the ALJ erred in conducting the analysis at step four of the sequential
evaluation process. At step four of her decision, the ALJ concluded that Plaintiff could return to
her past relevant work as a telemarketer. In addition, the ALJ stated that Plaintiff could perform
a significant number of other jobs in the national economy, including those of a cashier,
assembler, and bookkeeper.
In her opening brief, Plaintiff argues that the ALJ failed to comply with the requirements
of SSR 82-62 when determining that Plaintiff could return to her past relevant work as a
telemarketer. Plaintiff’s opening brief does not include any arguments about the ALJ’s statement
that Plaintiff could also perform the jobs of cashier, assembler, and bookkeeper. In his
responsive brief, the Commissioner argues, among other things, that any errors made by the ALJ
with respect to Plaintiff’s past relevant work as a telemarketer are harmless because the ALJ also
stated that Plaintiff could preform those three other jobs. In her reply brief, Plaintiff addresses
the Commissioner’s argument by advancing the catch-all assertion that she is precluded from
performing all work.
The court agrees with the Commissioner’s argument concerning harmless error. Even if,
as Plaintiff contends, the ALJ committed any errors by failing to comply with the requirements of
SSR 82-62 when determining that Plaintiff could return to her past relevant work as a
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telemarketer, any such errors would be harmless because the ALJ determined that Plaintiff could
also perform the jobs of a cashier, assembler, and bookkeeper. See Shinseki v. Sanders, 556 U.S.
396, 409 (2009) (“[T]he burden of showing that an error is harmful normally falls upon the party
attacking the agency’s determination.”); see also Fischer-Ross v. Barnhart, 431 F.3d 729, 733-34
(10th Cir. 2005) (recognizing applicability of harmless error analysis in Social Security context).
IV. VE and DOT
Plaintiff argues that the ALJ erred by relying on testimony from the VE that conflicted
with the DOT. Pursuant to SSR 00-4p, before an ALJ relies upon a VE’s testimony to support a
disability determination, the ALJ must identify and obtain a reasonable explanation for any
conflicts between the VE’s testimony and the DOT, as well as explain in the decision how any
such conflicts were resolved. See SSR 00-4p; see also Haddock v. Apfel, 196 F.3d 1084, 108992 (10th Cir. 1999). SSR 00-4p provides that the ALJ has an “affirmative responsibility” to ask
the VE about any possible conflicts between the VE’s testimony and the DOT. SSR 00-4p. If a
VE’s testimony appears to conflict with the DOT, the ALJ must then obtain a reasonable
explanation for the apparent conflict. See id.
In this case, the ALJ specifically asked the VE whether his testimony conflicted with the
DOT. The VE testified that, other than his reduction in numbers for the jobs available, his
testimony was consistent with the DOT.
Notwithstanding that testimony, Plaintiff contends that the VE’s testimony does in fact
conflict with the DOT concerning the job of telemarketer and, accordingly, the ALJ erred by
relying upon the VE’s testimony in that regard. Specifically, Plaintiff contends that the VE’s
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testimony concerning a sit/stand requirement and the limitations on working with the public
conflicts with the DOT requirements for a telemarketer.
With respect to the sit/stand requirement, Plaintiff has failed to persuade the court that
there is any conflict between the VE’s testimony and the DOT requirements for a telemarketer.
As noted by the Commissioner, the DOT does not contain any information concerning a sit/stand
option for telemarketers, so it is difficult to see how such a conflict could exist. Nevertheless,
even if the court assumes for the sake of argument that there is a conflict, the court concludes that
the ALJ adequately explored that issue with the VE. The ALJ specifically asked whether the
VE’s reduction in the number of available jobs was to account for the sit/stand option, and the
VE indicated that was indeed the purpose for the reduction. Further, as indicated above, when
the ALJ asked whether the VE’s testimony conflicted with the DOT, the VE indicated that his
testimony was consistent with the DOT with the exception of his reduction of the number of
available jobs. Accordingly, to the extent the ALJ had any responsibility to ask the VE about the
sit/stand option for the job of telemarketer pursuant to SSR 00-4p, the court concludes that the
ALJ fulfilled that responsibility.
Concerning Plaintiff’s limitations on working with the public, the court concludes that
any error committed by the ALJ in failing to ask the VE about conflicts with the DOT’s
requirements for a telemarketer was harmless. To the extent the ALJ committed an error by
failing to comply SSR 00-4p with respect to Plaintiff’s limitations on working with the public as
a telemarketer, any such errors would be harmless because the ALJ determined that Plaintiff

14

could also perform the jobs of a cashier, assembler, and bookkeeper. See Shinseki, 556 U.S. at
409; see also Fischer-Ross, 431 F.3d at 733-34.
For these reasons, the court concludes that the ALJ did not err by relying on the VE’s
testimony.
CONCLUSION AND ORDER
The court concludes that all of Plaintiff’s arguments fail. Therefore, IT IS HEREBY
ORDERED that the Commissioner’s decision in this case is AFFIRMED.
IT IS SO ORDERED.
DATED this 23rd day of March, 2012.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

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