Rushton v. Astrue

Filing 19

MEMORANDUM DECISION and ORDER on Administrative Appeal. Signed by Judge Ted Stewart on 07/06/2012. (tls)

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

LISA D. RUSHTON,
Plaintiff,

MEMORANDUM DECISION AND
ORDER ON ADMINISTRATIVE
APPEAL

vs.

MICHAEL J. ASTRUE, Commissioner of
Social Security,

Case No. 2:11-CV-777 TS

Defendant.

This matter comes before the Court on Plaintiff Lisa D. Rushton’s appeal from the
decision of the Social Security Administration denying her application for disability insurance
benefits. 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 the 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
II. BACKGROUND
A.

PROCEDURAL HISTORY
Plaintiff filed an application for disability insurance benefits on October 29, 2007,

alleging disability as of March 2006.7 Plaintiff’s application was denied initially and on

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).

7

R. at 120-22.
2

reconsideration.8 Plaintiff requested a hearing before an administrative law judge (“ALJ”),
which was held on January 13, 2009.9 The ALJ issued his decision finding Plaintiff not disabled
on May 7, 2009.10 The Appeals Council subsequently denied Plaintiff’s request for review,11
making the ALJ’s decision the Commissioner’s final administrative decision for purposes of
judicial review.
B.

MEDICAL HISTORY
Plaintiff injured her back in March 2006, when lifting boxes at work.12 Plaintiff

experienced pain going down both legs, but no numbness or tingling.13 Plaintiff’s doctor applied
manual therapy to her lumbar spine with “good results” and prescribed pain medication.14
A few days later, Plaintiff presented to the emergency room complaining of significant
back pain.15 Plaintiff was prescribed pain medication and released and was scheduled for an
MRI.16 Plaintiff visited Millcreek Imaging Center on March 20, 2006, where an MRI was

8

Id. at 82-83.

9

Id. at 21-81.

10

Id. at 12-20.

11

Id. at 1-4.

12

Id. at 357.

13

Id.

14

Id.

15

Id. at 208-12.

16

Id.
3

performed.17 The MRI was largely unremarkable except for a “tiny tear” at one vertebrae level
with no nerve root impingement.18
Plaintiff began treatment with Dr. Kade Huntsman in April 2006.19 Plaintiff presented
with complaints of severe back pain occasionally radiating into the leg.20 Plaintiff stated that
“100% of her problem is the back.”21 X-rays of the lumbar spine showed some mild
degenerative changes.22 An MRI showed degenerative changes and an annular tear.23 Dr.
Huntsman recommended a discogram as well as a CT scan.24
Plaintiff’s discogram was a “bit unusual.”25 Though Plaintiff had minimal pain at the
L4/5 level, the scan found it “much more degenerative.”26 Meanwhile, Plaintiff complained of
the most pain at the L3/4, but the scan revealed “this level is quite healthy with just a small cleft
proceeding anteriorly.”27
17

Id. at 303.

18

Id.

19

Id. at 237.

20

Id.

21

Id.

22

Id. at 238.

23

Id.

24

Id. at 239.

25

Id. at 236.

26

Id.

27

Id.
4

Plaintiff again presented to the emergency room on April 18, 2006, complaining of neck
pain related to an earlier car accident.28 An x-ray showed degenerative joint disease at C5-6, but
was otherwise negative.29 Plaintiff was prescribed pain medication and was directed to attend
physical therapy.30
In May 2006, Plaintiff saw Scot W. Russell, Ph.D., who conducted a Psychological PreSurgical Screening Evaluation.31 After examining Plaintiff, Dr. Russell found a low to medium
risk of a poor outcome from surgery from a psychological standpoint.32 Dr. Russell found the
psychological prognosis to be fair and cleared Plaintiff for surgery.33
Plaintiff was examined by Warren Stadler, M.D. in July 2006 in relation to her worker’s
compensation claim.34 Dr. Stadler reviewed Plaintiff’s medical records and conducted a physical
examination of Plaintiff. The examination revealed full range of motion in Plaintiffs hip and
knee joints, as well as her upper and lower extremities.35 In addition, Plaintiff had a stable

28

Id. at 205.

29

Id. at 206.

30

Id.

31

Id. at 197-202. Dr. Hunstman had earlier referred Plaintiff to Dr. Russell. See id. at

32

Id. at 201.

33

Id.

34

Id. at 263-67.

35

Id. at 264.

236.

5

neurological examination.36 Dr. Stadler opined that Plaintiff was medically stable, that no further
treatment was medically necessary, that Plaintiff was at maximum medical improvement, and
could return to work.37
Plaintiff returned to see Dr. Huntsman in August 2006. At that time, Dr. Huntsman made
the decision to perform a three-level lumbar discetomy and fusion.38 Plaintiff underwent the
fusion surgery on August 22, 2006.39 Dr. Huntsman estimated that Plaintiff could require six to
twelve weeks to recover from the surgery.40
Several days after the surgery Plaintiff presented to the emergency room complaining of
back pain.41 Plaintiff was administered pain medication and was permitted to return home.42
Plaintiff then saw Dr. Huntsman for a follow-up visit about two weeks after her surgery.43
Plaintiff was “doing very well” and her “x-rays look[ed] excellent.”44 There was no evidence of
infection and Plaintiff was started on a regimen of physical therapy.45
36

Id. at 265.

37

Id. at 265-66.

38

Id. at 234.

39

Id. at 304-06.

40

Id. at 268.

41

Id. at 203-04.

42

Id.

43

Id. at 232.

44

Id.

45

Id.
6

Plaintiff again followed-up with Dr. Huntsman in October 2006.46 Plaintiff complained
of “persistent left buttock pain that radiates down the posterior aspect of the thigh and anterior
aspect of the thigh.”47 Dr. Huntsman prescribed pain medication and discussed the possibility of
a selective nerve root block if the pain persisted.48 Later that month, Dr. Huntsman indicated that
Plaintiff had been calling the office on a daily basis.49 Dr. Huntsman noted that Plaintiff’s back
pain had significantly improved, but she was experiencing leg pain.50 Dr. Huntsman was
concerned that there may be some irritation of the nerve and indicated that a possible selective
nerve root block may be necessary.51 Dr. Huntsman also increased Plaintiff’s pain medication.52
In late October 2006, Plaintiff was seen by Joel T. Dall, M.D. for an independent medical
evaluation.53 During the examination, Plaintiff reported that her back pain had decreased postoperatively, but that her leg pain had increased.54 After reviewing her records and conducting a
physical examination of Plaintiff, Dr. Dall opined that Plaintiff was not capable of returning to

46

Id. at 231.

47

Id.

48

Id.

49

Id. at 229-30.

50

Id.

51

Id. at 229.

52

Id.

53

Id. at 216-26.

54

Id. at 217.
7

full-time work at that time because of her fusion surgery.55 Dr. Dall stated that Plaintiff had not
reached maximal medical improvement and would not likely do so until at least six months
following her surgery or possibly longer.56
Plaintiff “was feeling that she was not getting enough action taken to satisfy her” from
Dr. Huntsman, so she saw David M. Witter, M.D. in November 2006.57 Dr. Witter prescribed
pain medication but advised Plaintiff to return to Dr. Huntsman to clarify that her pain was
getting worse.58
Plaintiff saw Dr. Arun Rajagopal for evaluation and management of pain in November
2006.59 Dr. Rajagopal also performed a selective nerve root block upon the request of Dr.
Huntsman.60 Following the procedure, Plaintiff reported relief of 50% for approximately two
weeks and only slight improvement thereafter.61 Dr. Huntsman later noted that the nerve root
block did not provide any relief because “[t]hey were unable to get the injection into the
appropriate place.”62

55

Id. at 224.

56

Id.

57

Id. at 348-50.

58

Id. at 349.

59

Id. at 241.

60

Id.

61

Id. at 476.

62

Id. at 228.
8

Plaintiff again saw Dr. Huntsman for a follow-up visit on November 13, 2006.63 Plaintiff
indicated that she was “doing well in terms of her back pain” but was “doing very poorly in terms
of her left leg.”64 On that same date, Dr. Huntsman completed a form indicating that Plaintiff
could work 40 hours per week at a sit down job.65
Plaintiff returned to see Dr. Huntsman on November 30, 2006. Dr. Huntsman indicated
that Plaintiff’s back pain had greatly improved and that her leg pain had centralized.66 Dr.
Huntsman stated that because of this “sudden significant improvement” further treatment was not
required.67 Plaintiff required much less medication and was referred to a pain clinic.68 Dr.
Huntsman indicated that Plaintiff would be seen as needed.69
Dr. Dall provided a letter on January 17, 2007, providing updated information about
Plaintiff’s condition.70 Dr. Dall stated that he had contacted Dr. Huntsman’s office for an
update.71 That office indicated that they received a phone call from Plaintiff six to eight weeks

63

Id.

64

Id.

65

Id. at 244.

66

Id. at 227.

67

Id.

68

Id.

69

Id.

70

Id. at 214-15.

71

Id. at 214.
9

prior “indicating that her pain is ‘gone.’”72 In further discussions with Dr. Huntsman’s office,
Plaintiff continued to do well.73
Plaintiff continued to see Dr. Rajagopal over the next several months. Plaintiff received a
spinal cord simulator trial and reported that it “worked very well.”74 She reported that “it was a
pleasant surprise to wake up in the morning and not have pain in her legs and back.”75 As a
result of this, Plaintiff had a spinal cord stimulator surgically implanted in her spine.76 A few
days after that surgery, Plaintiff reported that the pain had improved with the spinal cord
simulator.77 About a month later, Plaintiff stated that the stimulator was providing fair relief.78
On July 10, 2007, Plaintiff reported to David Nelson, D.O. that she was starting to have
depression and anxiety symptoms.79 Plaintiff was prescribed Celexa for her depression.80 On
later visits, Plaintiff indicated that her depression was well controlled on Celexa and that she was
happy with that treatment.81
72

Id.

73

Id.

74

Id. at 482.

75

Id.

76

Id. at 327-35, 409-22.

77

Id. at 483.

78

Id. at 485.

79

Id. at 344.

80

Id. at 345.

81

Id. at 340, 342.
10

In December 2007, David O. Peterson, M.D., a state agency physician, reviewed
Plaintiff’s medical records and opined that she was capable of light work.82 Dennis Taggart,
M.D., another state agency physician also reviewed Plaintiff’s records and agreed with Dr.
Peterson’s conclusions.83
Also in December 2007, a state agency psychologist reviewed the records and opined that
Plaintiff’s condition appeared nonsevere.84 A Psychiatric Review Technique form found that
Plaintiff had only mild restrictions of activities of daily living and mild difficulties in maintaining
concentration, persistence, or pace.85 No difficulties in maintaining social functioning and no
episodes of decompensation were found.86 Another state agency psychologist reviewed this
assessment and concurred with the earlier opinion.87
In January 2008, Plaintiff was referred to Richard Kendall, D.O. “for consultation
regarding chronic low back pain.”88 On examination, Plaintiff’s range of motion was limited by
pain in the low back.89 However, Plaintiff’s gait and balance were intact and she had normal

82

Id. at 363.

83

Id. at 391.

84

Id. at 364.

85

Id. at 375.

86

Id.

87

Id. at 390.

88

Id. at 405-07.

89

Id. at 406.
11

strength throughout her lower limbs.90 In addition, stress and straight-leg testing was negative.91
Dr. Kendall opined that the likely greatest contributor to her pain was left hip joint dysfunction.92
Dr. Kendall referred Plaintiff to physical therapy “to address core and gluteal strengthening as
well as hip external rotator stretching in hopes of relieving her symptoms.”93 Dr. Kendall also
advised that she follow up in four to six weeks to assess her progress and consider a hip
injection.94
Plaintiff attended an appointment at Utah Pain Specialists on April 10, 2008, where it was
noted that the spinal cord stimulator was providing “fair relief.”95 Plaintiff reported her mood
quality as “good with some associated depression.”96
Plaintiff again went to Utah Pain Specialists in October 2008 to see Dr. Rajagopal.97 At
that time, Plaintiff received a steroid injection in her spine due to neck pain.98 At a follow-up
visit in November 2008, Plaintiff’s neck pain was stable and the previous injection had provided

90

Id.

91

Id.

92

Id. at 407.

93

Id.

94

Id.

95

Id. at 486.

96

Id.

97

Id. at 463.

98

Id.
12

90% relief, but she was having pain in her left hip.99 An injection in the hip was administered a
few days later.100 In December 2008, Plaintiff returned for a follow-up visit indicating that her
neck pain was manageable and that her hip pain improved 80%.101 Plaintiff continued to have
back pain.102
Later in December 2008, Plaintiff presented to Dr. Nelson stating that she did not feel like
Celexa was fully controlling her depression and anxiety.103 As a result, Dr. Nelson increased
Plaintiff’s Celexa dosage.104
C.

HEARING TESTIMONY
The ALJ conducted a hearing on January 13, 2009, where Plaintiff, a medical expert, and

a vocational expert provided testimony.
At the hearing, Plaintiff claimed the following physical and mental impairments: low
back pain, asthma, bursitis, depression, and anxiety.105 Plaintiff stated that her lower back was

99

Id. at 465.

100

Id. at 467.

101

Id. at 469.

102

Id.

103

Id. at 491.

104

Id. at 492.

105

Id. at 32-33.
13

the worst of these impairments, followed by her hips and leg.106 Plaintiff testified that her pain
required her to walk slowly and that she had issues keeping her balance.107
Plaintiff testified that it would be difficult for her to return to one of her previous jobs
because of the walking and sitting involved in that job.108 Plaintiff stated that she could work as
a hotel desk clerk, so long as there was not a lot of walking and she would be able to sit down
and rotate every so often.109 Plaintiff later testified that she could sit for about 15 minutes until
the pain required her to stand, which she could do for about 15 minutes before needing to sit or
lay down.110
Plaintiff testified about her back surgery, indicating that it helped her “in certain areas”
and that it was better than it was before.111 However, Plaintiff also stated that her symptoms had
started getting worse.112 Plaintiff also stated that she attended physical therapy following her

106

Id. at 44.

107

Id. at 58-59.

108

Id. at 43.

109

Id. at 43-44.

110

Id. at 60.

111

Id. at 45.

112

Id.
14

surgery, but it did not resolve her issues with low back and leg pain.113 Plaintiff stated that the
spinal cord simulator provided some relief in the beginning, but slowly stopped helping.114
Plaintiff further testified that she took Celexa for depression.115 Plaintiff stated that the
Celexa helped, but did not completely resolve her symptoms.116
A medical expert provided testimony concerning Plaintiff’s mental impairments. The
medical expert testified that there were no treatment records for 12 months or longer from any
treating source on a mental disorder.117 As a result, there were insufficient records to evaluate
whether Plaintiff met the criteria for Listings 12.04 and 12.06.118 However, the medical expert
testified that if there were records that Plaintiff continued to be in stressful levels of pain from
the time of her surgery to the present, that there would be sufficient evidence for a diagnosis of
depression, secondary to chronic pain.119
Next, the ALJ heard the testimony of the vocational expert. In response to the ALJ’s
hypothetical, the vocational expert testified that such a person could perform light and sedentary

113

Id. at 50.

114

Id. at 52.

115

Id. at 54.

116

Id. at 56-57.

117

Id. at 69.

118

Id.

119

Id. at 70.
15

work, and could perform the jobs of a dental hygienist, cashier, assembler, and office manager.120
The vocational expert identified the office manager as the easiest of these jobs to perform
because it involved sedentary work.121
D.

THE ALJ’S DECISION
The ALJ issued his decision on May 7, 2009.122 The ALJ followed the five-step

sequential evaluation process in deciding Plaintiff’s claim. At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity since March 11, 2006.123 At step two, the
ALJ found that Plaintiff had the following severe impairments: disorder of the low back, asthma,
and bursitis.124 At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or equaled a listed impairment.125 After determining
Plaintiff’s residual functional capacity,126 the ALJ found that Plaintiff was capable of performing

120

Id. at 76.

121

Id. at 76-77.

122

Id. at 12-20.

123

Id. at 14.

124

Id. at 14-15.

125

Id. at 15.

126

Id. at 15-19.
16

her past relevant work as a cashier, assembler, and office manager.127 Therefore, the ALJ found
that Plaintiff was not disabled.128
III. DISCUSSION
Plaintiff raises the following arguments in her brief: (1) the ALJ erred in finding that her
depression was not a severe impairment; (2) the ALJ erred in finding that her condition did not
meet or medically equal a listed impairment; (3) the ALJ improperly discounted her credibility
and improperly assessed her residual functional capacity; and (4) the ALJ failed to pose a
complete hypothetical to the vocational expert.
A.

STEP TWO DETERMINATION
Plaintiff’s first argument is that the ALJ failed to consider all of her severe impairments.

Specifically, Plaintiff argues that the ALJ erred in failing to find that her depression, secondary to
chronic pain, was a severe disorder.
At step two of the five-step sequential evaluation process, the ALJ considers whether the
claimant has an impairment or combination of impairments that is severe.129 An impairment or
combination of impairments is severe if it significantly limits an individual’s ability to perform
basic work activities.130

127

Id.

128

Id. at 19-20.

129

20 C.F.R. § 404.1520(a)(4)(ii).

130

Id. § 404.1521.
17

In this case, the ALJ found that Plaintiff had the following severe impairments: disorder
of the low back, asthma, and bursitis. The ALJ, however, did not find that Plaintiff’s depression
was a severe impairment noting that it did “not meet the 12-month duration requirement for
severe impairment.”131 Plaintiff argues that this was error.
Generally, an error at step two is harmless when, as here, the ALJ finds another
impairment is severe and proceeds to the remaining steps of the evaluation.132 Though Plaintiff
argues that the ALJ erred at step two, she has failed to demonstrate how this alleged error affects
her case. The ALJ found severe impairments at step two and continued to addressed the
sequential process. Under the regulations, the ALJ is required to consider all of Plaintiff’s
impairments, including those that are not severe.133 As will be discussed below, the ALJ
considered Plaintiff’s mental impairments in determining the residual functional capacity. As a
result, any error in failing to find Plaintiff’s depression to be a severe impairment was harmless
and does not necessitate reversal.
B.

STEP THREE DETERMINATION
Plaintiff also argues that the ALJ erred at his step three determination. At step three, the

ALJ found that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled a listed impairment. The ALJ specifically considered Listing 1.04.

131

R. at 15.

132

See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008).

133

20 C.F.R. § 404.1545.
18

Listing 1.04A requires that Plaintiff show a disorder of the spine resulting in compromise
of a nerve root or spinal cord with:
Evidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight-leg raising test (sitting
and supine).134
The ALJ found as follows:
The MRI evidence does not establish nerve impingement. Post surgical
examination on 1/15/2008 showed negative straight leg raising test, and the
claimant denied numbness, tingling, weakness, or problems with gait or
coordination. She therefore does not meet the criteria of listing 1.04 for spinal
injuries.135
Plaintiff takes issue with the ALJ’s finding at step three, stating that it is “inaccurate and
confusing.”136 Plaintiff, however, points to nothing in the record to demonstrate evidence of
nerve root compression. Indeed, the record demonstrates an absence of nerve root
compression.137 Thus, despite Plaintiff’s other arguments, it is clear that she did not meet Listing
1.04A. Therefore, the ALJ’s finding in this regard is supported by substantial evidence.
Plaintiff further argues that her condition medically equaled Listing 1.04. However, this
statement is conclusory and Plaintiff provides an insufficient basis to evaluate this argument. As
Plaintiff bears the burden of proof on this issue, this argument must be rejected.

134

20 C.F.R. pt. 404, subpt. P, app. 1, Listing 1.04A.

135

R. at 15 (citation omitted).

136

Docket No. 13, at 13.

137

See R. at 303, 227, 325, 451, and 402.
19

C.

RESIDUAL FUNCTIONAL CAPACITY AND CREDIBILITY
Plaintiff makes two primary arguments concerning the ALJ’s determination of her

residual functional capacity. First, Plaintiff argues that the ALJ improperly determined her
residual functional capacity. Second, she argues that the ALJ erred in his credibility
determination and failed to develop the record. These arguments will be discussed below.
1.

Residual Functional Capacity

Plaintiff argues that the ALJ failed to properly determine her residual functional capacity.
In particular, Plaintiff states that the ALJ failed to take into account her instability and inability to
ambulate effectively. Plaintiff also argues that the ALJ’s limitations did not adequately take into
account her depression, secondary to chronic pain. Finally, Plaintiff argues that the ALJ
improperly rejected the opinion of Dr. Dall.
A residual functional capacity assessment is based on all of the relevant evidence in the
record, including: medical history; medical signs and laboratory findings; the effects of
treatment, including limitations or restrictions imposed by the mechanics of treatment (e.g.,
frequency of treatment, duration, disruption to routine, side effects of medication); reports of
daily activities; lay evidence; recorded observations; medical source statements; effects of
symptoms, including pain, that are reasonably attributed to a medically determinable impairment;
evidence from attempts to work; need for a structured living environment; and work evaluations,
if available.138 “The adjudicator must consider all allegations of physical and mental limitations

138

SSR 96-8, 1996 WL 374187, at *5.
20

or restrictions and make every reasonable effort to ensure that the file contains sufficient
evidence to assess” the residual functional capacity.139
The ALJ determined that Plaintiff had the residual functional capacity to perform light
work
except occasionally she can walk, climb stairs, squat, bend or stoop, kneel, reach
above the shoulders, push or pull, and use foot controls; she can frequently turn
her arms and wrists, open and close her fists, and use her hands and fingers; she is
not limited in balancing; she has normal grip strength and fine and manual
dexterity in both hands; she has mild limitations in the ability to concentrate and
to interact with the public; she has mild to moderate limitation in the ability to
perform duties within a schedule and to deal with work production; and moderate
limitation in ability to deal with stress; she is not limited in other work-related
functions; in summary she is not significantly limited in understanding or
memory, concentration or persistence, social interaction, or adaptation; she has
normal vision and hearing and can tolerate normal air pollutants and temperature
settings.140
As stated, Plaintiff argues that this residual functional capacity assessment failed to take
into account her instability and inability to ambulate effectively. These limitations come from
Plaintiff’s testimony at the administrative hearing.141 However, as discussed below, the ALJ was
not required to accept Plaintiff’s testimony and the ALJ’s credibility determination is supported
by substantial evidence. Therefore, the Court must reject this argument.
Plaintiff also takes issue with the ALJ’s determination of Plaintiff’s mental residual
functional capacity. In particular, Plaintiff states that the medical evidence “supports a finding of

139

Id.

140

R. at 15.

141

Id. at 58-61.
21

depression, secondary to chronic pain” and “also substantiates Plaintiff’s limitations as to her
function.”142
The evidence related to Plaintiff’s mental impairments is extremely limited. In May
2006, Dr. Russell conducted a Psychological Pre-Surgical Screening Evaluation of Plaintiff.143
Dr. Russell found a low to medium risk of a poor outcome from surgery from a psychological
standpoint and cleared her for surgery.144 In July 2007, Plaintiff reported depression and anxiety
symptoms.145 Plaintiff was prescribed Celexa for her depression.146 On later visits, Plaintiff
indicated that her depression was well controlled on Celexa and that she was happy with that
treatment.147 In December 2008, Plaintiff stated that she did not feel like Celexa was fully
controlling her depression and anxiety and her dosage was increased.148
The ALJ, in assessing Plaintiff’s residual functional capacity noted these mental health
issues and found certain limitations in Plaintiff’s ability to concentrate and interact with the
public, perform duties within a schedule and deal with work production, and deal with stress.
Though Plaintiff argues that the ALJ’s residual functional capacity finding is inconsistent with

142

Docket No. 13, at 9.

143

R. at 197-202.

144

Id. at 201.

145

Id. at 344.

146

Id. at 345.

147

Id. at 340, 342.

148

Id. at 491-92.
22

the record, she does not explain how. As a result, the Court cannot find that the ALJ erred in his
assessment of Plaintiff’s mental residual functional capacity.
Plaintiff also argues that the ALJ erred in rejecting the opinion of Dr. Joel Dall, M.D. On
October 26, 2006, Dr. Dall opined that Plaintiff was “significantly limited” and “not able to
return to anything more than sedentary work with the ability to change positions frequently.”149
However, it must be recognized that Dr. Dall’s assessment was based on the fact that Plaintiff
recently had surgery and had “not reached maximal medical improvement.”150 Dr. Dall’s report
seems to indicate that Plaintiff’s condition after surgery would improve after time. Indeed, Dr.
Dall later reported that Plaintiff indicated that her pain was gone and that “she continues to do
well.”151 To the extent that Dr. Dall was opining that Plaintiff would never be able to return to
full time work, this opinion is not supported by the record. Thus, the Court can find no error in
the ALJ’s treatment of Dr. Dall.
2.

Credibility

The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the extent they
are inconsistent with the . . . residual functional capacity assessment.”152

149

Id. at 224.

150

Id.

151

Id. at 214.

152

Id. at 16.
23

“Credibility determinations are peculiarly the province of the finder of fact” and will not
be upset “when supported by substantial evidence.”153 “However, [f]indings as to credibility
should be closely and affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.”154
In this case, the Court finds that the ALJ’s credibility determination is supported by
substantial evidence. As stated, the ALJ found that Plaintiff’s impairments could be expected to
cause the symptoms alleged, but that Plaintiff’s statements concerning the intensity, persistence,
and limiting effects of her symptoms were not wholly credible. A review of the record supports
this finding. While the record certainly discloses some impairment, the record does not support
Plaintiff’s testimony concerning the limiting effects of those impairments. As a result, the Court
must reject this argument.
Plaintiff also argues that the ALJ was required to developed the evidentiary record and
should have sought additional information. While it is true that an ALJ is under an obligation to
develop the record,155 Plaintiff has failed to point to anything suggesting the record here was
inadequate. Indeed, at the close of the administrative hearing the ALJ left the record open so that
Plaintiff could supply additional documents which have since become part of the record.156
153

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation marks and citation

omitted).
154

Id. (quotation marks and citation omitted).

155

Carter v. Chater, 73 P.3d 1019, 1022 (10th Cir. 1996) (“An ALJ has the duty to
develop the record by obtaining pertinent, available medical records which come to his attention
during the course of the hearing.”).
156

R. at 31-32.
24

Therefore, the Court cannot find that the ALJ failed to adequately develop the record in this
matter.
D.

VOCATIONAL EXPERT
Plaintiff’s final contention is that the ALJ failed to pose a complete hypothetical to the

vocational expert. Plaintiff argues that the hypothetical did not comprehensively describe
Plaintiff’s functional limitations “because it failed to consider the effects of . . . how long she
could tolerate sitting, her depression, secondary to chronic pain, her insomnia and the effects of
her narcotic medication.”157
The ALJ was required to include all impairments borne out by the evidentiary record in
his hypothetical to the vocational expert.158 However, the hypothetical must contain only those
impairments and need not include “limitations claimed by plaintiff but not accepted by the ALJ
as supported by the record.”159 For the reasons set forth above, the Court finds there is
substantial evidence in the record upon which the ALJ could reject the limitations claimed by
Plaintiff. Therefore, these limitations need not be included in the hypothetical given to the
vocational expert and the ALJ did not err in not including them in the hypothetical.
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

157

Docket No. 13, at 15.

158

Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995).

159

Id.
25

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 July 6, 2012.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

26