Hunter v. Astrue

Filing 22

MEMORANDUM DECISION AND ORDER: The Court finds that the Commissioner's decision is supported by substantial evidence and is free from legal error. Accordingly, the Commissioner's decision is affirmed. Signed by Judge Dale A. Kimball on 3/28/13. (jlw)

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

TRACY HUNTER,
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER

CAROLYN W. COLVIN, Commissioner
of the Social Security Administration,
Case No. 2:12CV90
Defendant.

This matter is before the court on Plaintiff Tracy Hunter’s appeal, pursuant to 42 U.S.C. §
405(g), of the final decision of the Commissioner of Social Security (the “Commissioner” or
“Defendant”), denying his claim for Supplemental Security Income (“SSI”) and Disability
Insurance Benefits (“DIB”). Oral argument was held on January 16, 2013. At the hearing,
Plaintiff was represented by John J. Borsos, and Defendant was represented by M. Thayne
Warner. Before the hearing, the court carefully considered the memoranda and other materials
submitted by the parties. Since taking the appeal under advisement, the court has further
considered the law and facts relating to the appeal, and the court has again reviewed the
administrative record. Now being fully advised, the court renders the following Memorandum
Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
Mr. Hunter filed an SSI application and a DIB application on July 28, 2009. (Tr. 18). The
applications were denied initially and also upon reconsideration. Following the reconsideration

denial, Mr. Hunter requested a hearing. A hearing was held in Salt Lake City, Utah, on March 2,
2011. (Tr. 36). Mr. Hunter testified at the hearing, as did a vocational expert (“VE”) (Tr. 41). A
medical expert, Thomas Atkin, Ph.D., also testified at the hearing. (Tr. 41). The Administrative
Law Judge (“ALJ”) issued a decision on March 21, 2011, finding Mr. Hunter not disabled. (Tr.
35). A timely request for review by the Appeals Council was filed on April 18, 2011. (Tr. 12).
The final administrative decision of the Commissioner of Social Security denying benefits was
issued on December 9, 2011. (Tr. 1).
II. 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).
III. FIVE-STEP DISABILITY DETERMINATION
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), 416.920(a)(4)(i)-(v); see also Williams v.
Bowen, 844 F.2d 748, 750-51 (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), 416.920(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), 416.920(a)(4)(i)-(ii).
Next, “[s]tep 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), 416.920(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), 416.920(a)(4)(iv). “If the claimant is able to
perform his previous work, he is not 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), 416.920(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), 416.920(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,” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is disabled and entitled to benefits.
In the present case, the ALJ held at step one that Mr. Hunter had not engaged in
substantial gainful activity since July 28, 2009. (Tr. 120). At step two, the ALJ found that Mr.
Hunter had severe impairments of migraine headaches and mood disorder. (Tr. 21). At step
three, the ALJ found that none of Mr. Hunter’s impairments met or equaled a Listing. (Tr. 2122). At step four, the ALJ found that Mr. Hunter was able to return to his past relevant work.
(Tr. 33-34). At step five, the ALJ made an alternative finding that there were other jobs that
exist in significant numbers in the national economy that Mr. Hunter could perform. (Tr. 34).
Plaintiff claims that these findings were based on legal error and are not supported by substantial
evidence.
IV. DISCUSSION
In support of his claim that the Commissioner’s decision should be reversed, Plaintiff
argues that the ALJ erred by (1) improperly rejecting the opinions of the claimant’s treating and
examining medical providers; (2) rejecting the claimant’s own subjective complaints and lay
witness testimony; (3) failing to conduct a proper step four analysis; and (4) failing to meet the
step five burden to identify specific jobs, available in significant numbers, consistent with the
claimant’s specific functional limitations. The court will address each of these arguments in
turn.

A.

Did the ALJ Err By Improperly Rejecting the Opinions of the Claimant’s Treating
and Examining Medical Providers?
The opinion of a treating physician is entitled to great weight and the Commissioner must

provide "specific, legitimate reasons" for rejecting a physician's opinion. See Miler v. Chater, 99
F.3d 972 (10th Cir. 1996); Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987). In evaluating the
medical opinion evidence, “the ALJ must complete a sequential two-step inquiry, each step of
which is analytically distinct.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). The
first step is to determine if the physician’s opinion is to be given “controlling weight.” Id. This
step requires the ALJ to make a clear finding as to whether he or she gives a physician’s opinion
controlling weight or not. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). If the
ALJ determines that a physician’s opinion does not merit controlling weight, the second step
requires the ALJ to state how much weight he or she gives the opinion, using the factors
provided in the regulations. Krauser, 638 F.3d at 1330–31.
In the instant case, the ALJ stated that she gave “little weight” to the opinion of Plaintiff’s
treating physician because “it is inconsistent with the evidence” and because Plaintiff had seen
Dr. Elder only three times. (Tr. 22, 31-32) As an example of the inconsistencies between Dr.
Elder’s opinions and other evidence, the ALJ identified several material differences between the
Medical Statement Dr. Elder completed for Plaintiff on December 20, 2010 and the Medical
Statement he had completed approximately seven months prior–in May 2010. (Tr. 31-32). The
inconsistencies undermined the credibility of the opinions. The ALJ also noted that Dr. Elder’s
opinions in the Medical Statements were inconsistent with his own progress notes, with the notes
from Dr. Montgomery, whom Plaintiff saw for medication management, and with the opinions of
the State agency medical consultant and Dr. Atkin, the medical expert at the hearing. (Tr. 32-33).

While the ALJ did not address each of the factors set forth in 20 C.F.R. § 404.1527(d)(2)
for evaluating a treating physician's opinion, the ALJ is not required to discuss each factor, as
long as “the ALJ's decision [is] sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source's medical opinion and the reasons for that
weight.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.2007) (internal quotation marks
omitted). Here, the court finds no reversible error in the ALJ's treatment of Dr. Elder’s opinion.
B.

Did the ALJ Err By Rejecting the Claimant’s Own Subjective Complaints and Lay
Witness Testimony?
Plaintiff argues that the ALJ improperly rejected his own subjective complaints. (Pl. Br.

at 17). The ALJ did not, however, reject Plaintiff’s complaints entirely, but rather, noted that
there were inconsistencies that impacted, to some extent, Plaintiff’s credibility. Specifically, the
ALJ found that “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 above
residual functional capacity assessment.” (Tr. 25) (emphasis added).
When evaluating credibility, the ALJ must follow the prescribed two-step process: (1)
evaluate whether the claimant has an underlying medically determinable impairment that could
reasonably be expected to produce the claimant’s pain or other symptoms; and then (2) evaluate
the intensity, persistence, and limiting effects of the claimant’s symptoms to determine the extent
to which they limit the claimant’s functioning. See Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir.
2000) (discussing factors to evaluate credibility). “Credibility determinations are peculiarly the
province of the finder of fact, and [the court] will not upset such determinations when supported
by substantial evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
While the ALJ must cite specific evidence used in evaluating a claimant’s subjective

complaints and explain the reasons why he concludes those complaints are not credible, see id.,
this process “does not require a formalistic factor-by-factor recitation of the evidence,” Qualls,
206 F.3d at 1372. “So long as the ALJ sets forth the specific evidence he relies on in evaluating
the claimant’s credibility, [the procedural requisites] are satisfied.” Id.
In this case, the ALJ applied the two-step process. (Tr. 25-30). First, the ALJ found that
the claimant’s medically determinable impairments could reasonably be expected to cause the
alleged symptoms. (Tr. 25). In the second step, as noted above, the ALJ found that “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 above residual functional
capacity assessment.” (Tr. 25). The ALJ then identified several specific examples to support her
finding. (Tr. 25-29). She also listed other contradictions in the record regarding Plaintiff’s
reported symptoms of his episodes (Tr. 30), his reported duration of the episodes (id.), and the
frequency of the episodes. (Id.) While the court may not agree that each cited example supports
the ALJ’s finding of inconsistencies, but reviewing the record as a whole, the court finds that the
ALJ’s credibility determination is supported by substantial evidence.
In addition, Plaintiff argues that the ALJ failed to “mention and credit the written
statements of Mitch Vetere, Deputy Downard, and Mayor Pat Brady” and that the ALJ provided
“no reason for rejecting these lay witness statements.” (Pl. Br. at 19). The ALJ, however,
specifically mentioned all three of these witnesses in the context of her credibility analysis, and
thus it is clear that she considered their testimony.
Accordingly, the court agrees with the Commissioner that the ALJ’s decision was free of
legal error and supported by substantial evidence.

C.

Did the ALJ Err at Step Four or Step Five?
Plaintiff contends that the ALJ failed to conduct a proper step-four analysis. While the

court agrees that certain required findings were not made at phases two and three of the step-four
analysis, see Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir.2008), these deficiencies are
immaterial because the ALJ made an alternative finding at step five.
At step five of the sequential evaluation, the burden shifts to the Secretary to identify
specific jobs existing in substantial numbers in the national economy that claimant can perform
despite the identified limitations. Daniels v. Apfel, 154 F.3d 1129, 1132 (10th Cir. 1998). One
way the ALJ can meet that burden is by taking the testimony of a vocational expert. In the
present case the ALJ’s step five denial was based on portions of the vocational expert’s
testimony. (Tr. 29). Plaintiff argues, however, that the vocational testimony on which the ALJ
relied came in response to an incomplete hypothetical, which did not include all of Mr. Hunter’s
limitations. (Tr. 87-90).
Plaintiff’s argument, though, appears to be an attack on the ALJ’s residual functional
capacity assessment because the hypothetical question presented to the vocational expert
included all of the limitations that the ALJ included in her residual functional capacity
assessment. (Compare Tr. 22-23 with Tr. 76). The vocational expert considered all the
limitations the ALJ ultimately found, and the vocational expert testified that a significant number
of jobs existed in the national economy for a hypothetical individual who was as limited as
Plaintiff. Because the ALJ included the same limitations in the residual functional capacity
determination in her hypothetical to the vocation expert, the vocational expert’s response
constitutes substantial evidence.

V. CONCLUSION
For the foregoing reasons, the court finds that the Commissioner’s decision is supported by
substantial evidence and is free from legal error. Accordingly, the Commissioner’s decision is
hereby AFFIRMED. The Clerk of Court is directed to enter Judgment in accordance with Fed. R.
Civ. P. 58, consistent with the U.S. Supreme Court’s decision in Shalala v. Schaefer, 509 U.S. 292,
296-304 (1993).
DATED this 28th day of March, 2013.

DALE A. KIMBALL
United States District Judge