Studders v. Astrue
Filing
26
MEMORANDUM DECISION affirming the decision of the Commissioner of the Social Security Administration. Signed by Judge Robert J. Shelby on 08/21/2013. (asp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
_____________________________________________________________________________
)
DONALD G. STUDDERS,
)
MEMORANDUM DECISION
)
AND ORDER
Plaintiff,
)
)
Case No. 2:12-cv-00329-RJS
v.
)
CAROLYN W. COLVIN,
)
Judge Robert J. Shelby
Acting Commissioner of Social Security,
)
)
Defendant.
)
)
Donald G. Studders seeks judicial review of the decision of the Acting Commissioner of
Social Security denying Mr. Studders’ application for Disability Insurance Benefits and
Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act (Act), 42
U.S.C. Sections 405(g) and 1383(c). The court heard argument on June 13, 2013. John Borsos
appeared for Mr. Studders, and Kirsten Westerland appeared on behalf of the Commissioner.
After a careful review of the record and for the reasons discussed below, the court finds the
Commissioner’s decision is supported by substantial evidence and is therefore AFFIRMED.
BACKGROUND
I.
Procedural History
In July 2009, Mr. Studders filed his Social Security application, alleging a disability onset
date of December 31, 2006. (R. at 198-212). His application was denied, and Mr. Studders
requested a hearing before an Administrative Law Judge. (R. at 94-98, 104-09, 112-19). After
the hearing, Judge Donald R. Jensen issued an unfavorable decision, finding Mr. Studders not
disabled within the meaning of the Act. (R. at 14-33). Mr. Studders then requested review by
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the Appeals Council. The Appeals Council denied his request for review (R. at 1-6), making
Judge Jensen’s decision final for purposes of judicial review. 20 C.F.R. § 404.981.
II.
Factual Background
In his applications for benefits, Mr. Studders claimed his diabetic neuropathy, peripheral
artery disease, and depression limited his ability to work. Later, he also alleged limitations due
to chronic obstructive pulmonary disease (COPD) and back pain. (R. at 81-82, 253).
A. Medical Record
The medical record from Mr. Studders’ December 31, 2006 alleged onset of disability
through 2010 demonstrates that Mr. Studders had a number of visits to the emergency room due
to illnesses related to his diabetes. He infrequently sought regular non-emergency care and
physicians opined that his diabetic episodes were due to poor control. The record documents the
following relevant to his disability application:
In July and September 2008, Mr. Studders went to the Emergency Room twice related
to his blood sugar being too low, but quickly improved with treatment. (R. at 354-55,
370-72).
In April and May 2009, Mr. Studders returned to the Emergency Room, unable to
control his blood sugar. (R. at 389, 413). In both instances, he was diagnosed with
diabetic ketoacidosis secondary to esophagitis. (R. 389, 413). In the latter visit, Dr.
James Rasmussen stated that he believed that the diabetic ketoacidosis was most likely
caused by his esophagitis, which Mr. Studders was supposed to control with an acid
reflux medicine (PPI), but which he had failed to take. (R. at 412-13). Additionally,
Dr. Rasmussen “suspect[ed] poor control” by Mr. Studders of his diabetes. (R. at 413).
In June 2009, Mr. Studders followed up with a physician’s assistant. The physician’s
assistant noted some compliance with treatment, but also observed that Mr. Studders
had “poor nutrition, rarely monitor[ing] carbohydrate and fat intake and [was] lead[ing]
a sedentary life,” also failing to follow up on recommended annual dilated eye exams,
regular dental exams, and podiatrist appointments. (R. at 299). The physician’s
assistant had a “long discussion about benefits of keeping blood glucoses tightly
controlled and risks of uncontrolled diabetes.” (R. at 301).
Also in June 2009, Mr. Studders returned to the Emergency Room. (R. at 427). He
admitted to not checking his sugars or taking his acid reflux medicine (PPI). Dr.
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Rasmussen noted that “[p]atient is non-compliant with care of his diabetes [and] with
his severe erosive esophagitis.” (R. at 431). He explained that Mr. Studders had “poor
medical compliance” and that not taking his acid reflux medicine is “probably what got
him in trouble again,” noting only “possible mild diabetic ketoacidosis.” (R. at 429).
In August 2009, Mr. Studders sought care from Dr. Morris, who had treated him once
in May 2006 for pneumonia. (R. at 469). Two weeks later, Dr. Morris filled out a
disability report opining Mr. Studders could only work fifteen hours per week. (R. at
501-09).
In October 2009, Dr. Rox Burkett, a state agency physician, reviewed Mr. Studders’
medical records. He noted that while Mr. Studders had “several short inpatient hospital
stays” in the last two years, the medical record did not establish a prolonged period
where he could not do light work. (R. at 449). He opined that Mr. Studders could
occasionally lift twenty pounds, frequently lift ten pounds, stand six hours in an eighthour workday, sit six hours in an eight-hour workday, had no limitations in
pushing/pulling, and had no postural, manipulative, visual, communicative, or
environmental limitations. (R. at 451-57). This opinion was confirmed by Dr. Lewis
Barton. (R. at 496).
Mr. Studders had a brief visit to the Emergency Room again in October 2009, but he
responded well to treatment. (R. at 481).
Also in October 2009, Mr. Studders saw Dr. Morris, who reported that his hypertension
and acid reflux were stable, but that “patient [was] still not taking his medications,
[and] needs to stay on diet.” (R. at 462). At follow-up appointments in January 2010,
March 2010, and June 2010, Mr. Studders reported feeling well, and Dr. Morris
reported that his hypertension, acid reflux, and diabetes were all stable, with no change
in the mild neuropathy. (R. at 516, 527, 529). At each appointment, Dr. Morris
advised Mr. Studders to quit smoking cigarettes. (R. at 527).
In June 2010, Dr. Morris filled out a second check-box form. (R. at 534-38). Dr.
Morris reported that Mr. Studders had diabetes and neuropathy, reactive airway disease,
and chronic pain syndrome, noting that he suffered from wheezing, chronic cough,
asthma, sensory or reflex loss, skin breakdown, sleep disturbances, and decreased
energy. (R. at 535-36). He checked boxes indicating that Mr. Studders had (a) an
inability to ambulate effectively; (b) acidosis occurring at least on average of once
every two months documented by appropriate blood chemical tests; and (c) neuropathy
demonstrated by significant and persistent disorganization of motor function in two
extremities resulting in sustained disturbance of gross and dexterous movements, or
gait and station. (R. at 537). From this, Dr. Morris opined that Mr. Studders could
work even less, suggesting that he was capable of working only two hours a day, with
significant limitations. (R. at 538).
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B. Testimonial Evidence
The court has carefully read the transcript of the hearing before Judge Jensen on October
13, 2010, and finds that Judge Jensen accurately summarized Mr. Studders’ testimony in his
decision. (R. at 22-23). The court repeats a number of the salient points from the hearing
transcript below.
Mr. Studders testified that his biggest problems were his diabetes, acid reflux, and pain in
his toes and feet. (R. at 74). While Mr. Studders believed he had vision problems associated
with his diabetes, he admitted that no problems were found at a recent checkup. (R. at 78).
Similarly, he admitted to not being seen or treated for his COPD, back problems, or alleged
depression. (R. at 81-82). Regarding questions by Judge Jensen as to his noncompliance with
his diabetic care, Mr. Studders initially responded that any such reference must be contained in
“records two or three years ago” (R. at 62), but later stated that he had always been compliant
even several years prior, never missing his insulin or a treatment. (R. at 80). Mr. Studders did
report significant improvement more recently, listing his daily blood sugar levels in October, all
of which were within or close to the normal range, and answering affirmatively that he believed
that treatment had been successful, though some residual problems remained. (R. at 76-77). Mr.
Studders’ counsel noted for the record that no nerve conduction studies indicative of neuropathy
had been performed. (R. at 43).
Judge Jensen also heard testimony from a vocational expert, who was asked about the
work possibilities for a hypothetical individual of Mr. Studders’ age, education, and past work
experience who could perform light work (occasionally lifting twenty pounds, frequently lifting
ten pounds, standing six hours in an eight-hour workday, sitting six hours in an eight-hour
workday, with no limitation in pushing/pulling, and no postural, manipulative, visual,
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communicative, or environmental limitation). (R. at 88). The vocational expert testified that an
individual with those limitations could perform jobs that exist in the national economy, such as
mail clerk, parking lot attendant, and storage rental clerk. (R. at 88-89). The vocational expert
further testified that these positions would permit a worker to lie down 1.5 hours in a day during
scheduled breaks, be absent two times a month, and work at a 15-20 percent decreased range of
attention and concentration. (R. at 89). When Mr. Studders’ attorney asked whether these
positions would permit a worker to leave the work station to test his blood sugars in privacy, the
vocational expert responded that she thought two of the three positions would accommodate
leaving the work station if he wanted privacy, and all three positions were “probably pretty good
jobs for such a need.” (R. at 90-91).
ANALYSIS
I.
Standard of Review
The court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Substantial
evidence “requires more than a scintilla but less than a preponderance.” Id. It is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation
omitted). Further, the court “will not reweigh the evidence or substitute [its] judgment for the
Commissioner’s . . . . [and] may not displace the agency’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.” Id. (citation omitted).
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II.
Judge Jensen’s Decision
Under the Social Security Act, “disability” is defined 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),
1382c(a)(3)(A). The Act further provides that an individual shall be determined to be 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, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy.” 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
A person seeking Social Security benefits bears the burden of proving that he is disabled.
Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009). However, once the claimant establishes
that she cannot perform her past work, the burden of production shifts to the Commissioner to
produce evidence of jobs that the claimant can perform despite his impairments. 20 C.F.R.
§ 404.1560(c)(2) (at step five, the agency must provide evidence that demonstrates that other
work exists in significant numbers in the national economy that claimant can perform); Heckler
v. Campbell, 461 U.S. 458, 461, 465, 470 (1983) (stating that the Secretary has the burden of
producing evidence of jobs that a claimant can perform at step five, either through reliance on
the grids or vocational expert testimony). The Commissioner has established a five-step process
for determining whether a person is disabled:
(1) A person who is working is not disabled. 20 C.F.R. § 416.920(b).
(2) A person who does not have an impairment or combination of impairments severe
enough to limit his ability to do basic work activities is not disabled. 20 C.F.R. §
416.920(c).
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(3) A person whose impairment meets or equals one of the impairments listed in the “Listing
of Impairments,” 20 C.F.R. § 404, subpt. P, app. 1, is per se disabled. 20 C.F.R. §
416.920(d).
(4) A person who is able to perform work he has done in the past is not disabled. 20 C.F.R. §
416.920(e).
(5) A person whose impairment precludes performance of past work is disabled unless the
Commissioner demonstrates that the person can perform other work available in the
national economy. 20 C.F.R. § 416.920(f).
Judge Jensen performed this sequential analysis and found as follows: (1) Mr. Studders
had not engaged in any substantial gainful activity since the date of his application; (2) he had
severe impairments of diabetes mellitus with neuropathy, spondylosis with grade 1
spondylolisthesis, and chronic obstructive pulmonary disease; (3) he did not have an impairment
or combination of impairments that meets or equals the listings; (4) he was unable to perform
past relevant work; but (5) he was capable of performing work that exists in significant numbers
in the national economy. (R. at 19-29).
Mr. Studders’ Objections to Judge Jensen’s Ruling
III.
Mr. Studders believes that Judge Jensen did not base his opinion on substantial evidence
for three reasons. He argues that Judge Jensen erred in (a) rejecting the opinions of Dr. Morris;
(b) not finding his own subjective testimony fully credible; and (c) not including more
limitations in Mr. Studders’ ultimate residual functional capacity. However, as addressed below,
Judge Jensen’s findings and decision are supported by substantial evidence and free of reversible
legal error.
A. Opinions of Dr. Morris
Mr. Studders first contends that Judge Jensen erred when he found the opinions of Dr.
Morris unpersuasive. A treating source’s opinion cannot be given controlling weight if it is not
well-supported by medically acceptable clinical or laboratory diagnostic techniques, or if it is
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inconsistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2).
However, an ALJ still must give “good reasons” in his decision for whatever weight he provides
to a treating source opinion, be it great weight, little weight, or something in between. 20 C.F.R.
§ 404.1527(c)(2); SSR 96-2p, 1996 WL 375188, at *5. While 20 C.F.R § 404.1527(c) provides
a framework for how an ALJ is to weigh a medical opinion, an ALJ is not required to “apply
expressly” every relevant factor for weighing opinion evidence. Oldham v. Astrue, 509 F.3d
1254, 1258 (10th Cir. 2007).
Judge Jensen provided six reasons why he did not give Dr. Morris’s opinions controlling
weight and, additionally, found them unpersuasive. (R. at 26-27). First, he noted that “Dr.
Morris’s medical records do not reveal comprehensive assessments or examinations related to
the claimant’s alleged disabling impairments.” (R. at 26). The record establishes Dr. Morris had
seen Mr. Studders only twice before he rendered his August 2009 opinion. (R. at 329, 469).
And, even though by the time of Dr. Morris’s second opinion in June 2010, he had seen Mr.
Studders four more times, during those visits, Dr. Morris’s examinations were not extensive and
he typically reported Mr. Studders’ condition to be stable. (R. at 462, 516, 527, 529). Therefore,
Judge Jensen reasonably discounted Dr. Morris’s opinions for not being based on a
comprehensive medical record. See 20 C.F.R. § 404.1527(c)(3) (“The more a medical source
presents relevant evidence to support an opinion, particularly medical signs and laboratory
findings, the more weight we will give that opinion.”); Watkins v. Barnhart, 350 F.3d 1297, 1301
(10th Cir. 2003) (“[i]t is an error to give an opinion controlling weight simply because it is the
opinion of a treating source if it is not well-supported by medically acceptable clinical and
laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence in the
case record”) (quotation and citation omitted); White v. Barnhart, 287 F.3d 903, 907-08 (10th
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Cir. 2002) (a treating physician’s opinion may be rejected if there is a discrepancy between a
very restrictive functional assessment and contemporaneous examination findings).
Mr. Studders argues that Dr. Morris’s opinions were based on “comprehensive
assessments and examinations,” arguing that Dr. Morris must have “had access” to review Mr.
Studders’ hospital records and that “[t]here were no further exams that needed to be conducted.”
(Pl. Brief, Dkt. 10, at 13-15). The court is not persuaded by Mr. Studders’ arguments. Both of
Mr. Studders’ arguments are speculative as nothing in the record indicates that Dr. Morris had
access to Mr. Studders’ hospital records, that he reviewed or relied on such records, or that no
additional testing was necessary. In fact, Mr. Studders’ counsel admitted at the hearing that no
“nerve conduction studies” to confirm Dr. Morris’s neuropathy diagnosis had been ordered or
completed. (R. at 43).
Judge Jensen’s second reason for discounting Dr. Morris’s opinions was that, according
to his own treatment records, Mr. Studders had failed to comply with treatment, a reason that the
Tenth Circuit has recognized as reasonable in discounting a treating physician’s opinion. (R. at
26); Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)
(claimant’s limited use of medications was inconsistent with a treating physician’s opinion that
the claimant was totally disabled). Specifically, Judge Jensen noted that, in October 2009, Dr.
Morris had observed that Mr. Studders was still not taking his medications or staying on his diet.
(R. at 462).
Mr. Studders makes a number of arguments as to why this reason is unsupportable, none
of which are persuasive. As pointed out by the Commissioner, Dr. Morris actually noted that in
addition to Mr. Studders’ failure to take his medication. (R. at 462), Mr. Studders was
repeatedly non-compliant by continuing to use tobacco against Dr. Morris’s orders. (R. at 462,
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516, 527, 529). Second, Mr. Studders’ argument that Dr. Morris “factored the claimant’s level
of compliance into his opinions” is speculative as nothing in either of Dr. Morris’s opinions
refers to or suggests he considered Mr. Studders’ non-compliance in his decision. (R. at 501-09,
534-38). Third, Mr. Studders’ reliance on Thompson v. Sullivan, 987 F.2d 1482 (10th Cir. 1993)
is misplaced. The Thompson court relies on an earlier case, Frey v. Bowen, 816 F.2d 508 (10th
Cir. 1987), which dealt with a particular scenario where an ALJ denies a claimant benefits under
20 C.F.R. § 404.1530. Frey, 816 F.2d at 517. This regulation and the Thompson analysis apply
only when an ALJ first finds an individual disabled, but then must consider whether he should be
provided or denied benefits due to non-compliance. That is not the scenario here because Judge
Jensen did not find Mr. Studders disabled. The Thompson analysis is not triggered.
Judge Jensen’s third and fourth reasons to discount Dr. Morris’s opinions were that they
were inconsistent with the objective medical evidence and they were internally inconsistent. (R.
at 26-27). Judge Jensen noted while Dr. Morris opined that Mr. Studders’ condition was more
severe in his second July 2010 opinion than his first August 2009 opinion, the objective medical
evidence revealed that Mr. Studders’ condition had improved and stabilized over time. (R. at
26). In particular, Judge Jensen noted that Mr. Studders “had more emergency room visits in
2009, when Dr. Morris proffered his first opinion,” and that Dr. Morris’s treatment notes at the
time of his second opinion indicated that Mr. Studders’ “diabetes is stable.” (R. at 26). The
court agrees with Judge Jensen that such inconsistencies support discounting Dr. Morris’s
opinion. See 20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents relevant
evidence to support an opinion, particularly medical signs and laboratory findings, the more
weight we will give that opinion.”); White v. Barnhart, 287 F.3d 903, 907-08 (10th Cir. 2002)
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(treating physician’s lack of explanation for differences between two reports, with no apparent
change in claimant’s medical condition, was a reason to reject opinion).
Mr. Studders argues that this logic was in error because Dr. Morris had no choice in
creating an inconsistency in the amount of hours he reported Mr. Studders could work because
the different forms he filled out varied in the options they provided for opining on hours that an
individual could work, with the August 2009 form having a “check-box” for three hours a day
and the July 2010 form having “check-boxes” for either two hours or four hours, but not three
hours, like the first form. Mr. Studders’ argument that any “inconsistency was due to differing
forms, not a changed medical opinion” is unpersuasive. To argue that a treating physician’s
opinion should not be discounted as inconsistent because the check-box forms he filled out did
not permit him to accurately opine as to the hours his patient was capable of working only
underscores the conclusory nature of his opinions. Frey, 816 F.2d at 513 (a treating physician’s
report may be rejected if it is brief, conclusory, and unsupported by medical evidence); id. at 515
(check-the-box style evaluation forms, unaccompanied by thorough written reports or persuasive
testimony, are not substantial evidence). On either form, had Dr. Morris wanted to, he could
have written in his opinion of how many hours Mr. Studders could work to the extent the checkbox forms did not provide for accurate and consistent opinions.
Next, Judge Jensen noted that Dr. Morris’s specific opinions of Mr. Studders’ limitations
were unsupported by and in conflict with objective medical evidence. (R. at 27). Specifically,
Judge Jensen noted that while Dr. Morris claimed acidosis occurred at least on average once
every two months, “the medical record does not support the frequency of the claimant’s
acidosis.” (R. at 27). Rather, the record, which spans from 2004 through 2010, shows a concrete
diagnosis of acute diabetic ketoacidosis only twice, in April 2009 (R. at 389) and in May 2009
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(R. at 413), and a possible diagnosis of mild ketoacidosis in June 2009. (R. at 429). Similarly,
Judge Jensen noted that while Dr. Morris opined that Mr. Studders had neuropathy that
persistently and significantly disturbed his motor function and prevented him from ambulating
effectively, the record suggested otherwise. (R. at 27; see also R. at 370-71 (physician observed
Mr. Studders “moves all extremities well”); 410 (hospital staff observed Mr. Studders
“ambulating outside of the hospital smoking with a steady nonantalgic gait”); 299-300 (Mr.
Studders reporting no gait disturbances); 428-29 (Dr. Rasmussen noting that Mr. Studders
“moves with all extremities well with full range of motion”)). While Mr. Studders argues that
“emergency room records, glucose testing, esophagus reports, and many other records” support
Dr. Morris’s opinion, none of these records support Dr. Morris’s opinion as to the frequency of
diabetic ketoacidosis or the impact of Mr. Studders’ alleged neuropathy on his motor functioning
and gait. It was reasonable for Judge Jensen to discount Dr. Morris’s opinion for being
unsupported by objective medical evidence. 20 C.F.R. § 404.1527(c)(3); Raymond v. Astrue,
621 F.3d 1269, 1272 (10th Cir. 2009) (ALJ reasonably discounted treating physician opinion
which was inconsistent with other medical evidence). Finally, Judge Jensen also discounted Dr.
Morris’s opinion as being inconsistent with other opinions in the record. (R. at 27). See
Eggleston v. Bowen, 851 F.2d 1244, 1247 (10th Cir. 1988) (an ALJ may consider other medical
opinion evidence in rejecting the opinion of a treating physician).
Given all of the reasons that Judge Jensen provided for his decision to discredit the
functional assessments of Dr. Morris, the court finds that Judge Jensen’s decision was supported
by substantial evidence in the record.
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B. Mr. Studders’ Testimony
Mr. Studders also contends that Judge Jensen did not adequately take into account his
subjective testimony. The ALJ must evaluate whether the claimant’s descriptions of pain or
other symptoms are credible. See 20 C.F.R. ' 404.1529(c). This is a two-step process. The
claimant must first demonstrate a medically determinable impairment that could “reasonably be
expected” to produce the alleged symptoms. SSR 96-7p, 1996 WL 374186, at *2. Once the
claimant demonstrates such an impairment, the ALJ may consider the credibility of the
claimant’s descriptions of symptoms and limitations in light of the entire case record. Id. The
ALJ may consider factors such as the claimant’s daily activities, treatment history, and the
objective medical evidence. Id. at *3. Credibility determinations are the province of the ALJ
and should not be disturbed if supported by substantial evidence. McGoffin v. Barnhart, 288
F.3d 1248, 1254 (10th Cir. 2002).
Here, Judge Jensen gave several reasons why he did not find Mr. Studders fully credible.
First, he noted contradictions between Mr. Studders’ testimony and evidence in the record,
providing as an example that while Mr. Studders testified at the hearing that he had not
consumed alcohol in six years (R. at 24-25, 82-83), he reported otherwise to medical providers
from 2006 forward. (R. at 319, 332, 354, 370-72). On appeal, Mr. Studders contends such
inconsistencies are irrelevant as his use of alcohol does not have bearing on his medical
impairments. However, this court is not persuaded because an ALJ may reasonably consider
inconsistencies between a claimant’s statements and the record as a whole, as such discrepancies
erode away the credibility or propensity for truthfulness of the claimant. 20 C.F.R. §
404.1529(c)(4) (an ALJ must consider whether there are conflicts between a claimant’s
statements and the rest of the evidence); SSR 96-7p, at *5 (one strong indication of the
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credibility of an individual’s statements is their consistency, both internally and with other
information in the case record). In her response, the Commissioner provided other examples of
Mr. Studders’ inconsistent statements throughout the record (see Answer Brief at 20), which
further support Judge Jensen’s findings. While Mr. Studders contends in his reply brief that this
was post hoc rationalization, the Commissioner did not offer new reasons to discount Mr.
Studders’ testimony, but rather offered examples of contradictions in his testimony in addition to
those explicitly relied upon by Judge Jensen. Offering examples that support Judge Jensen’s
reason to discount Mr. Studders’ testimony is not offering post hoc rationalization. Wall v.
Astrue, 561 F.ed 1048, 1067 (10th Cir. 2009) (“ALJ is not required to discuss every piece of
evidence”); Poppa v. Astrue, 569 F.3d 1167, 1171 n.4 (10th Cir. 2009) (Tenth Circuit offered
five additional examples to support ALJ’s reason to discount a claimant).
Judge Jensen’s second reason to discredit Mr. Studders—that he was not compliant with
his treatment—is also a permissible reason not to find a claimant fully credible. (R. at 24-25).
Wilson v. Astrue, 602 F.3d 1136, 1146 (10th Cir. 2010) (ALJ reasonably noted the claimant did
not take prescription pain medication); Qualls v. Apfel, 206 F.3d 1368, 1372-73 (10th Cir. 2000)
(ALJ reasonably found the claimant failed to follow prescribed treatment). Mr. Studders
testified that he was always compliant with his treatment. (R. at 80). However, Judge Jensen
gave a number of examples, referring to specific parts of the record showing how Mr. Studders
was not compliant with his treatment. (R. at 24-25). Though Mr. Studders attempts to downplay
his noncompliance, arguing that he “generally did as his doctors recommended,” this argument
falls flat in light of the record of non-compliance. (R. at 299, 390, 413, 431, 462, 416, 527, 529).
Third, Judge Jensen noted that Mr. Studders’ allegations were “somewhat out of
proportion with the medical record.” (R. at 25). Mr. Studders argues that his statements were
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not out of proportion to the medical record, contending that “even medical providers struggled to
get [Mr. Studders’] glucose under control.” However, the record establishes that his doctors
believed that this struggle was due in large part to his noncompliance with treatment. (R. at 299,
390, 413, 431, 462, 416, 527, 529). Once Mr. Studders started to consistently follow Dr.
Morris’s recommendations, he had no more hospital visits and his conditions stabilized. (R. at
516, 527, 529).
Given the reasons that Judge Jensen provided for discounting Mr. Studders’ testimony,
the court finds that Judge Jensen’s decision was supported by substantial evidence in the record.
C. Vocational Expert Testimony
Finally, Mr. Studders argues that Judge Jensen erred by asking the vocational expert an
incomplete hypothetical which did not include all of Mr. Studders’ limitations. He contends that
Judge Jensen should have included limitations to permit him to check his blood sugar, work no
more than fifteen hours a week, sit or stand no more than one to two hours at a time, elevate his
feet every few hours, lie down frequently during the day, and other limitations to address the
length of recovery after periods of low blood sugar and his general fatigue. (Pl. Br. 20-23).
Though Mr. Studders frames this argument as an attack on the hypothetical questions asked of
the vocational expert (i.e., a step 5 issue), the argument really pertains to the residual functional
capacity assessment (made between steps 3 and 4).
Regarding the limitation to check blood sugar, the vocational expert testified that all of
the positions she offered—mail clerk, parking attendant, and storage rental clerk—would be
“good jobs for such a need,” and that the mail clerk and storage rental clerk positions would even
permit a worker to leave the worksite to tests blood sugars in private. (R. at 90-91). Thus, Mr.
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Studders has shown no harm from the fact that this limitation was not in the ultimate residual
functional capacity assessment.
In any event, however, all of the limitations Mr. Studders claims are missing from his
residual functional capacity are limitations assessed by Dr. Morris, whose opinions the court
finds Judge Jensen reasonably rejected. Therefore, Judge Jensen had no obligation to include
them. See Qualls, 206 F.3d at 1372 (ALJ not required to include in his residual functional
capacity assessment limitations which were not supported by the medical record). Because the
vocational expert testified in response to a hypothetical (that included Mr. Studders’ credible
limitations) that such an individual could perform other work existing in significant numbers,
Judge Jensen reasonably found Mr. Studders not disabled.
Therefore, considering the decision as a whole, the court finds that the residual functional
capacity assessed by Judge Jensen was supported by substantial evidence in the record.
CONCLUSION
For the reasons stated above, the court finds Judge Jensen’s decision is supported by
substantial evidence. His ruling is therefore AFFIRMED. The Clerk of Court is directed to
close the case.
Dated this 21st day of August, 2013.
BY THE COURT:
ROBERT J. SHELBY
United States District Judge
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