Matheson v. Astrue

Filing 27

MEMORANDUM DECISION affirming the decision of the Commissioner of Social Security. Signed by Magistrate Judge Dustin B. Pead on 04/12/2013. (asp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

DELORIS MATHESON,
ORDER
Plaintiff,
Case No. 2:12-cv-00623-DBP
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Magistrate Judge Dustin B. Pead
Defendant.

Plaintiff appeals the Commissioner of Social Security’s decision denying her claim for
disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and
XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401-33, 1381-1383c. Having considered
the parties’ briefs, the administrative record, the arguments of counsel and the relevant law, the
Court AFFIRMS the Commissioner’s decision.
PROCEDURAL HISTORY
On September 21, 2006, Plaintiff protectively filed applications for DIB and SSI,
alleging an onset date of August 17, 2006 (Tr. 253-64, 313). On September 20, 2010, after
various administrative proceedings, including an hearing before and decision denying benefits
by an administrative law judge (ALJ), the Appeals Council granted Plaintiff’s request for review
and remanded Plaintiff’s case to a new ALJ for further consideration (Tr. 165-68).
On March 11, 2011, a new ALJ held a second hearing, at which Plaintiff, a medical
expert, and a vocational expert testified (Tr. 41-110). On March 25, 2011, the ALJ issued a new
decision, finding Plaintiff “not disabled” within the meaning of the Act (Tr. 20-35). The

Appeals Council denied Plaintiff’s request for review of that decision (Tr. 1-5), making the
ALJ’s decision the Commissioner’s final decision for purposes of judicial review under
42 U.S.C. § 405(g). See 20 C.F.R. § 404.981.1 This appeal followed.
STATEMENT OF RELEVANT LAW
I.

Definition of disability under the Act
The Act states that an individual “shall be determined to be under a disability only if

[her] physical or mental impairment or impairments are of such severity that [s]he is not only
unable to do [her] previous work but cannot, considering [her] 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). The inability to perform such work must last, or be
expected to last, at least 12 consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15
(2002).
II.

Process for determining disability under the Act
To determine whether a claimant is disabled, Social Security regulations set forth a

five-step sequential evaluation process. That process requires the adjudicator to consider
whether a disability claimant: (1) engaged in substantial gainful activity during the alleged
period of disability; (2) had a severe impairment; (3) had a condition that met or medically
equaled the severity of a listed impairment; (4) could return to [her] past relevant work; and, if
not, (5) could perform other work in the national economy. 20 C.F.R. § 404.1520(a)(4). If a
decision regarding the claimant’s disability can be reached at any step in the sequential
evaluation process, further evaluation is unnecessary. Id.

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All citations to the Code of Federal Regulations (C.F.R.) are to the 2012 edition. Because
Title II (DIB, part 404) and Title XVI (SSI, part 416) have parallel citations, this order
references only the Title II (part 404) citations.
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III.

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. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (internal quotation and citation omitted). The Court may neither reweigh the
evidence nor substitute its judgment for that of the ALJ. Id. Where the evidence as a whole can
support either the agency’s decision or an award of benefits, the court must affirm the agency’s
decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
DISCUSSION
I.

The ALJ’s residual functional capacity assessment was supported by substantial
evidence.
Residual functional capacity is an administrative determination left solely to the

Commissioner. 20 C.F.R. § 404.1546(c) (at the administrative hearing level, the ALJ is
responsible for assessing residual functional capacity); Social Security Ruling (SSR) 96-5p,
1996 WL 374183, at *2 (stating that some issues, such as residual functional capacity, are not
medical issues regarding the nature and severity of an individual’s impairment(s) but instead
administrative findings that are dispositive of a case, and thus are reserved to the
Commissioner). Residual functional capacity is based on all the evidence in the record, not just
medical opinions, lay witness statements, or a claimant’s testimony. 20 C.F.R. § 404.1545(a)(3)
(residual functional capacity is assessed based on all of the relevant medical and other evidence
in the record).

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Plaintiff challenges two aspects of the ALJ’s residual functional capacity assessment:
1) his assessment of various physicians’ opinions, and 2) his assessment of her mild glaucoma
and her complaints of reaching, handling, and fingering difficulties.
A.

The ALJ properly considered and reasonably assessed the opinions rendered
by the various medical sources of record.

Plaintiff urges the Court to find that the ALJ did not correctly assess the opinions of
Drs. Christian, Durham, and Susman. Defendant argues that the ALJ provided sufficiently
specific reasons, supported by substantial evidence, for his assessment of those medical sources’
opinions. The Court agrees with Defendant.
The ALJ was required to consider and assess the treating physicians’ opinions and other
probative opinion evidence in making his residual functional capacity finding. See 20 C.F.R.
§ 404.1527(c)(2) (the Commissioner “will always give good reasons” for the weight given to a
claimant’s treating sources’ opinions); SSR 96-8p, 1996 WL 374184, at *7 (“If the RFC
assessment conflicts with an opinion from a medical source, the adjudicator must explain why
the opinion was not adopted.”). In doing so, the ALJ could consider several factors, including:
the nature of the source’s relationship with the claimant, the support the source provides for the
opinion, the opinion’s consistency with other evidence in the record, the source’s medical
specialty, and “any other factors which tend to support or contradict the opinion.” 20 C.F.R.
§ 404.1527(c). The ALJ was not required to “apply expressly” every relevant § 404.1527(c)
factor. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (recognizing that an ALJ is not
required to “apply expressly” every relevant factor for weighing opinion evidence).
The ALJ adequately addressed Dr. Christian’s opinions and explained why he assigned
those opinions “little weight.” Dr. Christian provided three opinions, each of which stated that
Plaintiff had limitations which appear to be inconsistent with the ability to perform substantial

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gainful activity (Tr. 530-33, 541-44, 548-51). The ALJ discussed Dr. Christian’s opinions and
found that they were not supported by objective findings or test results in his own treatment
notes or in the other medical notes throughout the record as a whole; were inconsistent with his
own treatment notes; and were inconsistent with the level of limitation suggested by other
medical reports throughout the record (Tr. 31-32). These were specific, legitimate reasons for
assigning those opinions “little weight.” 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.”), (c)(4) (stating an ALJ must
consider whether an opinion is consistent with the other evidence in the record); Branum v.
Barnhart, 385 F.3d 1268, 1275 (10th Cir. 2004) (stating ALJ may consider the degree to which a
physician’s opinion is supported by relevant evidence); Castellano v. Secy’ of Health & Human
Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (finding ALJ reasonably discounted treating
physician opinion which was not supported by his own notes). The ALJ’s findings regarding
those opinions were reasonable conclusions supported by substantial evidence in the record.
Furthermore, the ALJ adequately addressed Dr. Durham’s opinion regarding Plaintiff’s
mental impairments. Dr. Durham noted no abnormalities in Plaintiff’s thought processes,
memory, concentration, attention, social understanding, judgment, and insight (Tr. 450). He
assigned Plaintiff a global assessment of functioning (GAF)2 score of “50-55 (Current)”
(Tr. 451). Dr. Durham opined that Plaintiff could complete one-to-two step instructions without
the need for repetition or simplification and was able to understand directions, communicate

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A GAF score is a snapshot of a individual’s current condition and is not designed for
adjudicative determinations. See Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV-R) “Global Assessment of Functioning,” at *34 (4th Ed. (revised) 2000). A GAF score
of 50 to 55 indicates moderate (GAF 51-60) to serious (GAF 41-50) symptoms or moderate to
serious difficulties in social, occupational, or school functioning. See id.
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clearly, and interact with people adequately (Tr. 450-51). The ALJ assigned this opinion “great
weight” (Tr. 32).
Although Plaintiff contends that the ALJ erred in not discussing and incorporating
Dr. Durham’s GAF score in his residual functional capacity assessment, the Court declines to
find error here. The Tenth Circuit has consistently held that an ALJ does not err when not
discussing or placing stock in GAF scores, even scores as low as 41 to 50, when the explanation
provided by the medical source assigning those scores does not refer to any particular workrelated limitations. See, e.g., Zachary v. Barnhart, 94 F. App’x 817, 819 (10th Cir. 2004);
Whelchel v. Barnhart, 94 F. App’x 703, 709 (10th Cir. 2004) (noting that the ALJ reasonably
relied on examining psychologists’ mental status examination findings and discussion of normal
test results, which contradicted and outweighed his GAF score of 47); Lopez v. Barnhart, 78
F. App’x 675, 678 (10th Cir. 2003) (holding that, where the examining physician did not indicate
that claimant could not work, the ALJ did not err by failing to discuss GAF rating of 40 because
the score was not “significantly probative evidence in opposition to the ALJ’s ultimate
conclusions” (internal quotation marks and citation omitted)). The ALJ could reasonably
conclude that Dr. Durham’s narrative supported a conclusion that Plaintiff’s mental impairments
were not incompatible with the ability to work.
Finally, the ALJ adequately considered and discussed Dr. Susman’s opinion and
explained the weight he gave that opinion. Dr. Susman opined that Plaintiff could stand and
walk two to three hours and sit up to six hours in an eight-hour workday, with some postural,
environmental, and overhead reaching limitations (Tr. 521). The ALJ stated that he assigned
“moderate weight” to all of the State agency consultants’ opinions and described his reasons for
doing so (Tr. 32), later referring to Dr. Susman’s opinion specifically (Tr. 33). This statement

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was sufficient. Cf. Oldham, 509 F.3d at 1258-59 (ALJ’s discussion of examining psychologist’s
opinion sufficient where the ALJ mentioned the opinion and generally discounted the opinions
of all treating and examining sources on the grounds that Oldham’s statements to those sources
were “highly unreliable”). The Appeals Council had directed the ALJ to consider and discuss
Dr. Susman’s opinion (Tr. 167), and the ALJ followed that direction (Tr. 32-33). Notably, the
Appeals Council did not order the ALJ to accept Dr. Susman’s opinion or adopt its limitations in
his residual functional capacity assessment (see Tr. 167).
In sum, the Commissioner’s final decision demonstrates that the ALJ considered the
relevant medical opinions and provided sufficient support, based on substantial evidence, for the
conclusions he reached. In such circumstances, the Court is constrained to give deference to the
ALJ’s decision, whether or not it would have decided the matter differently. See Lax, 489 F.3d
at 1084 (the court “may not displace the agency’s choice between two fairly conflicting views,
even though [it] would justifiably have made a different choice”).
B.

The ALJ’s residual functional capacity finding reasonably accounted for all
of Plaintiff’s functional limitations.

Plaintiff urges the Court to find that the ALJ should have included additional limitations
related to her diagnosis of mild glaucoma and her complaints of reaching, handling, and
fingering difficulties. Defendant argues that the ALJ reasonably accounted for all of Plaintiff’s
functional limitations in his residual functional capacity assessment. The Court agrees with
Defendant.
The ALJ found Plaintiff’s “mild glaucoma” to be a severe impairment at step two of the
Commissioner’s five-step sequential evaluation (Tr. 23). See 20 C.F.R. § 404.1520(a)(4)(ii)
(discussing step two of the five-step sequential evaluation). Plaintiff argues that remand is

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required because the ALJ did not include any vision-based functional limitations in his residual
functional capacity finding (Tr. 25-26).
As an initial matter, the Court notes that the threshold for determining that an impairment
is “severe” is minimal. Cowan v. Astrue, 552 F.3d 1182, 1186 (10th Cir. 2008) (“the showing a
claimant must make at step two is de minimis . . .”). Dr. Lipton, the medical expert, testified that
Plaintiff “carried a history of glaucoma,” but that he “didn’t see that she has a longitudinal visual
problem with that” (Tr. 61; see also Tr. 455, 514, 519 (State agency physician opinions that
Plaintiff had no visual limitations)). Plaintiff points to nothing in the record contradicting
Dr. Lipton’s testimony or otherwise showing any functional limitations resulting from her
glaucoma diagnosis that the ALJ should have included in his residual functional capacity
finding. As such, the Court finds no basis for remand on this issue.
Next, the Court turns to Plaintiff’s argument that the ALJ was required to include, in his
residual functional capacity assessment, additional limitations regarding reaching, handling, and
fingering. The ALJ limited Plaintiff to “frequent . . . pushing and pulling; turning of arms and
wrists, opening and closing of fists; [and] using hands and fingers,” and “occasional . . . reaching
above the shoulders” (Tr. 25-26). Plaintiff argues that the responses found in Dr. Christian’s
January and December 2008 opinions support greater limitations. In those opinions,
Dr. Christian stated that Plaintiff had significant limitations with reaching, handling, or fingering
(Tr. 532, 543). As noted above, the ALJ reasonably assigned “little weight” to Dr. Christian’s
opinions (Tr. 32), and Dr. Christian failed to point to any particular objective findings or
diagnostic test results which might support such limitations. Thus, the ALJ was not required to
include Dr. Christian’s more limiting assessment in his residual functional capacity findings.
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (ALJ was not required to include in his

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residual functional capacity assessment limitations which were not supported by the medical
record). The ALJ’s residual functional capacity findings regarding these limitations find support
in the record (Tr. 455, 521 (State agency physician opinions)). Plaintiff points to no other
evidence in the record which might support greater reaching, handling, and fingering limitations.
As such, the ALJ’s residual functional capacity findings regarding those limitations were
supported by substantial evidence, and the Court finds no grounds for remand on this issue.

CONCLUSION
The Commissioner’s decision is supported by substantial evidence and free from harmful
legal error. Accordingly, IT IS HEREBY ORDERED that the ALJ’s determination that Plaintiff
should be denied Social Security benefits be AFFIRMED.
Dated this 12th day of April, 2013.

_________________________________
DUSTIN B. PEAD
UNITED STATES MAGISTRATE JUDGE

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