Jelitto v. Astrue
ORDER/MEMORANDUM DECISION - It is hereby ordered that the Commissioner's decision is AFFIRMED. Signed by Magistrate Judge Samuel Alba on 4/24/12. (alp)
IN THE UNITED STATES DISTRICT COUR.T'.'.
DISTRICT OF UTAH
CARMEN 1. JELITTO,
Case No.2: ll-cv-235 SA
Commissioner of Social Security,
Magistrate Judge Samuel Alba
Plaintiff Carmen L Jelitto has filed suit asking the court to reverse the final agency
decision denying her application for Supplemental Security Income ("SSI") under Title XVI of
the Social Security Act. The Administrative Law Judge ("ALJ") found that Jelitto is not disabled
because she is capable of performing a number of sedentary and light jobs. Jelitto now
challenges the ALl's decision by arguing that it is legally erroneous and not supported by the
substantial evidence. Specifically, Jelitto argues that the ALJ improperly failed to assign
adequate weight to the opinions of two physicians, Dr. Kelton Lundsberg and Dr. Gerald
Having carefully considered the parties' memoranda and the complete record in this
matter, the court AFFIRMS the ALJ's decision.
THE ALJ'S DECISION
Jelitto filed an application for SSI on September 10,2007, at the age of 44. An
administrative hearing, at which Jelitto testified, was held April 1, 2009. Following the hearing,
the ALJ denied Jelitto's claim, finding that she had the residual functional capacity to perform a
range of light work, with certain restrictions.
The ALJ followed the five-step sequential evaluation process for evaluating disability
claims. First, the ALJ found that Jelitto had not engaged in substantial gainful activity since her
SSI application date. Second, the ALJ found two severe impairments: degenerative disc disease
of the lumbar spine and a mood disorder. Third, the ALJ determined that Jelitto did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part. 404, Subpart. P, Appendix. 1.
Following this analysis, the ALJ determined that Jelitto had the residual functional
capacity to perform a range oflight work, so long as she: (1) be able to sit and stand at will; (2)
never climb ladders, ropes, or scaffolds and only occasionally climb ramps and stairs, balance,
stoop, kneel, crouch, and crawl; and (3) avoid concentrated exposure to cold, vibration, and
hazards such as machinery and heights. The ALJ also determined Jelitto had "slight mental
limitations (10 percent overall reduction) in her ability to understand, remember, and carry out
detailed instructions; maintain extended attention and concentration; and make complex work
With these findings, the ALJ determined at step four of the analysis that lelitto could not
return to her past relevant work as a delivery driver, bartender, or waitress. The ALl did find at
step five, however, that lelitto was capable of performing a variety of work which existed in
significant numbers in the national economy, including small parts assembler, solderer, and call
In light of these findings, the ALl denied Jelitto's claim on December 15, 2009. Jelitto
appealed this request on January 11, 2010, but her request for review was denied by the Appeals
Council the following day. Jelitto then filed suit in this court on March 10,2011. The issue has
been fully briefed, and no oral argument was requested. Parties have consented to jurisdiction by
the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Dkt. No. 12.
Jelitto argues that the ALJ erred in reviewing her residual functional capacity because the
ALJ: (1) did not give controlling weight, or alternatively fair weight, to the opinion of Dr.'
Lundsberg, Jelitto's primary care physician, and (2) did not include the functional limitations
found by Dr. Manwill, who evaluated Jelitto's mental functioning following the administrative
STANDARD OF REVIEW
The court reviews the Commissioner's decision "to determine whether the factual
findings are supported by substantial evidence and whether correct legal standards were applied."
Doyal v. Barnhart, 331 F.3d 758, 760 (lOth Cir. 2003). 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." Doyal, 331 F.3d at 760 (internal quotations and citations omitted). "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 omitted).
The court may "neither reweigh the evidence nor substitute [its] judgment for that of the
agency." White v. Barnhart, 287 F.3d 903, 905 (lOth Cir. 2001). Rather, it is to "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 (lOth Cir. 1994).
Generally, an ALl must give more weight to the opinions of a claimant's treating sources
than to the opinions of nontreating sources. See 20 C.F.R. § 404.1527(c)(2); Watkins v.
Barnhart, 350 F.3d 1297, l300 (10th Cir. 2003). If the "treating source's opinion on ... the
nature and severity" of the health issues "[ 1] is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and  is not inconsistent with the other substantial
evidence in [the] case record," that opinion is given controlling weight. 20 C.F.R. §
404.1 527(c)(2); see also Langley v. Barnhart, 373 F.3d 1116, 1119 (lOth Cir. 2004).
When a treating source's opinion does not meet these two criteria, and for all non-treating
source's opinions, weight is determined by the supportability of the opinion, the consistency of
the opinion with the record, the specialization of the source, and "other factors," including "the
amount of understanding of [the SSI process] an acceptable medical source has" and how
familiar the source is with other information in the case record. 20 C.F.R. § 404.1527(c)(3)-(6).
For a treating source, the ALJ is also to consider length of treatment, frequency of examination,
and the nature and extent of the treatment relationship. [d. at (c)(2).
According to the record, Dr. Lundsberg was Je1itto's primary care physician. He treated
her frequently throughout 2007 and 2008, and made regular notes of her complaints concerning
her lower back pain.
In addition to his patient notes, Dr. Lunsberg completed two work ability reports, one on
February 15,2008 and the other on June 27, 2008, both indicating that Jetitto could not work.
Dr. Lundsberg also completed a Medical Report, on February 9, 2009. In that report, Dr.
Lundsberg concluded that Jelitto would need to lie down every few hours for about thirty
minutes at a time because of her lower back pain. Administrative Record at 411, Dkt. No.8
(June 9,2011) (hereinafter "Record"). At the administrative hearing, the vocational expert
testified that with this additional restriction on Jelitto' s ability to work, she would not be eligible
for competitive employment. Id. at 66. Dr. Lundsberg also opined that Jelitto's lower back pain
would impact her ability to concentrate in the workplace. Id. at 412. The vocational expert
indicated at the hearing that this would also affect Jelitto's eligibility for disability benefits. Id.
at 67. However, the ALJ gave little weight to Dr. Lundsberg's opinion and did not include these
restrictions in assessing Jelitto's ability to work.
The ALJ found that Dr. Lundsberg's opinions were not entitled to controlling weight both
because his opinions were not well supported by clinical and laboratory techniques, and also
because they were not consistent with the other substantial evidence of record. The court will
review each of these findings in tum.
In relation to Dr. Lundsberg's opinion on Jelitto's lower back pain, the ALJ found that it
was not well supported by clinical and laboratory techniques because of the "striking"
infrequency of back examinations conducted by the doctor. Id. at 28. According to the ALJ,
Dr. Lundsberg's examinations included the claimant's back only in February 2008
and June 2008. In February 2008, Dr. Lundsberg noted lumbar tenderness, but it
did not corkscrew down and she had negative straight leg raises. l In June 2008,
Dr. Lundsberg noted she had lumbar tenderness, deconditioning of paraspinous
muscles, lay straight down and strength in the lower extremities was normal for
The fact that Dr. Lundsberg may have had access to MRI and CT scans of Jetitto's back
ordered by Dr. Giovanniello does not change the frequency of his examinations, nor does the fact
that Dr. Lundsberg and Jellito had frequent conversations about her back pain. Indeed, Jelitto's
frequent mention of allegedly debilitating back pain makes it more "striking" that examinations
were not performed more often. Plaintiff has not identified, and the court has not found, any
evidence on the record that Dr. Lundsberg conducted any other examinations focusing on
Even if a treating physician's opinion is supported by medically acceptable clinical and
laboratory techniques, it is still only given controlling weight if it is consistent with other
substantial evidence in the record. The ALJ found that Dr. Lundsberg's opinion did not meet
these criteria, in part because
[i]n his February 2009 opinion, Dr. Lundsberg indicates the claimant's experience
of pain and other symptoms was constantly severe enough to interfere with
attention and concentration needed to perform even simple work tasks. However,
during a consultative examination in October 2009, Dr. Colledge noted the
claimant was able to maintain attention for 2.5 hours and meaningfully participate
in the process. In addition, the claimant was able to follow and participate in her
!d. at 29. The record supports this observation. See id. at 742 (Dr. Colledge observing Jelitto
"was able to maintain attention for the duration of the examination, which lasted approximately
Plaintiff suggests this first test may have never occurred, Reply Brief at 4, Dkt. No. 18
(Jan. 4, 2012), but the record reflects that it did, Record at 379.
two and a half hours, and to meaningfully participate in the process); ld. at 48-63 (Jelitto
extensively participating in the administrative hearing with no evidence of inability to
concentrate on or answer questions). The court agrees with the Commissioner that this can
reasonably be considered an inconsistency, even assuming Dr. Lundsberg was more familiar with
Jelitto than Dr. Colledge or the ALJ.
Therefore, the ALJ did not err when she decided Dr. Lundsberg's opinion was not entitled
to controlling weight. Under 20 C.F.R. § 404.lS27(c)(2), an opinion must both be well
supported by medically accepted clinical and laboratory techniques and consistent with the other
substantial evidence on the record. The ALJ reasonably concluded that neither ofthese
conditions had been met.
Other Weighting Factors
When a treating physician's opinion is not entitled to controlling weight, the ALJ must
evaluate the opinion to determine what weight it should be given. The factors to be considered
include: supportability, consistency, specialization, length of treatment relationship, frequency of
examination, nature and extent of the treatment relationship, and amount of understanding the
physician demonstrates of the SSI application evidentiary requirements. See Langley, 373 F.3d
at 1119; 20 C.F.R. § 404.1S27(c). Considering these factors, the ALJ determined that Dr.
Lundsberg's opinion was to be given "little weight." Record at 30.
As observed above, it was not unreasonable for the ALJ to find that Dr. Lundsberg's
opinion was based on limited medical evidence and conflicted with other substantial evidence on
record. It is undisputed that Dr. Lundsberg is not an specialist in back pain. He did have a
lengthy relationship with Jelitto with relatively frequent visits, but, as the ALJ observed, his
records do not always include complete information on Jellito's appointments and tests with
other physicians. See, e.g., id. at 260 (observing Jelitto had appointment with neurosurgery, but
failing to note that surgery was not recommended as the record reflects at 235, and stating Jelitto
had an EGD done, but not noting any results). The ALl found Dr. Lundsberg's opinion on
lellito's ability to work shifted over time, based upon differing recommendations in the February
2008 work ability report and the February 2009 medical report. Compare id at 425 (noting
lelitto could sit for only thirty minutes and could not work any hours a week) with id at 412
(stating Jelitto could sit up to one hour continuously and work four hours a day). The ALl also
points to several aspects of Dr. Lundsberg's reports which suggest he may not have been familiar
with the requirements of the Social Security disability program, such as his proffer of an opinion
that lelitto "is not employable at all," a determination reserved to the Social Security
Given this balance of factors, the court holds that the ALl's decision to accord Dr.
Lundsberg's opinion little weight was based on substantial evidence and is not therefore legally
lelitto also argues that the ALl determination was erroneous because it accorded
unreasonably little weight to the opinion of Dr. Manwill, one of the two psychologists Jelitto saw
after her administrative hearing. Dr. Manwill performed a Weschler Memory Skill Test and
completed a work capacity evaluation, indicating lelitto had several slight, limited, and marked
limitations in various areas, as well as extreme limitations in several areas including ability to
understand and carry out detailed instructions, maintain attention and concentration for extended
periods, maintain regular attendance, or respond to changes in the work setting. Id. at 656-57.
The ALJ did not include these limitations in her assessment, relying instead on the
findings of Dr. Colledge, the other psychologist whom Jelitto saw after the administrative
hearing. Dr. Colledge performed a Wechsler Adult Intelligence Scale, Wechsler Memory Scale,
and Test of Memory and Malingering. Id. at 742. Dr. Colledge found that Jellito's ability to
understand and carry out detailed instructions was not affected by any impairments. Id. at 746.
Jelitto argues that the ALJ unreasonably discounted Dr. Manwill's opinion in favor of Dr.
Colledge's. This decision, however, was based upon substantial evidence. Dr. Colledge
performed more tests than Dr. Manwill, and had the benefit of reviewing Dr. Manwill's findings
before visiting with Jelitto herself. Dr. Manwill's report finds mental impairments that were not
even alleged, such as post traumatic stress disorder. !d. at 657. Dr. Manwill's report was also
internally contradictory as to whether Jelitto suffered from psychotic symptoms. Id. at 658
(noting initially Jelitto's symptoms "are consistent with a Major Depressive Disorder that is
recurrent and severe without psychotic features" and then diagnosing Jelitto with "Major
Depressive Disorder, recurrent, severe with psychotic features) (emphasis added). These facts
reasonably impact the supportability and consistency of Dr. Manwil1's opinion, and support a
decision by the ALJ to accord his opinion relatively little weight.
The ALJ decision mentions Dr. Manwill's opinion fails "to address factors that might
have affected the scores such as narcotics, medication side effects, an [sic] malingering." Id. at
33. Plaintiffs argue that such considerations were not suggested to be medically relevant by any
opining physician, and suggest an impulse on the part of the ALJ to "play doctor." Opening
Brief at 17. Just a few sentences after her comment about narcotics, medication, and
malingering, however, the ALJ observes that Dr. Colledge did perform a test of malingering
which suggested Jelitto was not exaggerating her symptoms. Record at 33. Given this context,
the court does not find that the ALJ engaged in improper speculation in weighing Dr. Manwill's
Plaintiff has not shown that the specific reasons listed by the ALJ to support her decision
are not legitimate, and the court's review of the record reveals that they are properly supported.
Therefore, the court will not disturb that holding on review.
As explained above, Plaintiff's arguments do not demonstrate that the denial of her
benefits was legally erroneous and unsupported by the substantial evidence. Therefore, IT IS
HEREBY ORDERED that the Commissioner's decision is AFFIRMED.
thisJ~ay of April, 2012.
BY THE COURT:
United States Magistrate Judge
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