Rogers v. Astrue
MEMORANDUM DECISION affirming the decision of the Commissioner of the Social Security Administration. Signed by Magistrate Judge Paul M. Warner on 12/03/2013. (asp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
DEBRA L. ROGERS,
Case No. 2:12-cv-902-PMW
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Magistrate Judge Paul M. Warner
Before the court is Debra L. Rogers’s (“Plaintiff”) appeal of the Commissioner’s final
decision determining that Plaintiff was not entitled to Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act. See 42 U.S.C. §§ 401-434. After careful consideration
of the written briefs and the complete record, the court has determined that oral argument is not
necessary in this case.
On February 14, 2013, Carolyn W. Colvin (“Commissioner”) became the Acting
Commissioner of Social Security. Accordingly, she has been automatically substituted for
Michael J. Astrue as the defendant in this action. See 42 U.S.C. § 405(g) (“Any action instituted
in accordance with this subsection shall survive notwithstanding any change in the person
occupying the office of Commissioner of Social Security or any vacancy in such office.”); Fed.
R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The
officer’s successor is automatically substituted as a party.”).
Plaintiff alleges disability due to various physical and mental impairments. On July 14,
2005, Plaintiff applied for DIB, alleging disability beginning on January 1, 2001.2 Plaintiff’s
application was denied initially and upon reconsideration.3 In August 2006, Plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”),4 and that hearing was held on November 1,
2007.5 On December 27, 2007, the ALJ issued a written decision denying Plaintiff’s claim for
DIB.6 April 16, 2010, the Appeals Council granted Plaintiff’s request for review and remanded
the case to the ALJ for another hearing.7
A second administrative hearing was held on September 21, 2010.8 On December 17,
2010, the ALJ issued a second decision, again denying Plaintiff’s claim for DIB.9 The Appeals
Council denied Plaintiff’s request for review of the second decision,10 making that decision the
See docket no. 25, Administrative Record (“Tr.
See Tr. 87-89.
See Tr. 86.
See Tr. 794-841.
See Tr. 42-59.
See Tr. 110-113.
See Tr. 842-896.
See Tr. 20-39.
See Tr. 9-13.
”) 23, 161-163.
Commissioner’s final decision for purposes of judicial review. See 42 U.S.C. § 405(g); 20
C.F.R. § 404.981.
On September 24, 2012, Plaintiff filed her complaint in this case, which was assigned
District Judge Clark Waddoups.11 The Commissioner filed her answer on November 21, 2012.12
On November 29, 2012, Judge Waddoups referred this case to Magistrate Judge Paul M.
Warner pursuant to 28 U.S.C. § 636(b)(1)(B).13 On January 15, 2013, both parties consented to
having a United States Magistrate Judge conduct all proceedings in the case, including entry of
final judgment, with appeal to the United States Court of Appeals for the Tenth Circuit.14
Consequently, the case was assigned permanently to Magistrate Judge Warner pursuant to 28
U.S.C. § 636(c) and rule 73 of the Federal Rules of Civil Procedure.15
Plaintiff filed her opening brief on January 15, 2013.16 The Commissioner filed her
answer brief on February 15, 2013.17 Plaintiff filed her reply brief on March 6, 2013.18
See docket no. 2.
See docket no. 13.
See docket no. 15.
See docket no. 19, 21.
See docket no. 20.
See docket no. 22.
See docket no. 24.
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).
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); see also Williams v. Bowen, 844 F.2d 748, 75051 (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).
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.
“Step 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). 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). “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). If it is determined that the claimant “can make an adjustment to other
work,” 20 C.F.R. § 404.1520(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,” id., he is disabled and entitled to
In support of her claim that the Commissioner’s decision should be reversed, Plaintiff
argues that: (1) there were errors below concerning the treatment and consideration of the
opinions of Dr. Daniel Sternberg (“Dr. Sternberg”); (2) the ALJ erred by failing to evaluate
whether Plaintiff’s impairments meet or equal certain sections of Appendix 1 of the relevant
regulations (individually, a “listing” and collectively, the “listings”), see 20 C.F.R. § 404,
Subpart P, Appendix 1; (3) the ALJ erred in assessing Plaintiff’s credibility; and (4) the ALJ
erred at step five of the sequential evaluation process.
I. Medical Opinions
Plaintiff presents two arguments concerning the treatment and consideration of the
opinions of Dr. Sternberg. Plaintiff first argues that the ALJ erred by giving Dr. Sternberg’s
2002 opinion little weight. Plaintiff then argues that the ALJ and the Appeals Council erred in
the treatment and consideration of Dr. Sternberg’s 2010 opinion. The court will address those
arguments in turn.
A. Dr. Sternberg’s 2002 Opinion
As an initial matter with respect to this argument, the court notes that it is not developed
in any meaningful way. Plaintiff makes only the conclusory allegation that the ALJ erred by
failing to adopt Dr. Sternberg’s 2002 opinion. Given the cursory and undeveloped nature of this
argument, the court could decline to consider it. See, e.g., Keyes-Zachary v. Astrue, 695 F.3d
1156, 1161 (10th Cir. 2012) (“[Plaintiff] presents a number of subissues and arguments, many of
them poorly developed. [The court] will consider and discuss only those of her contentions that
have been adequately briefed for . . . review.”); Chambers v. Barnhart, 389 F.3d 1139, 1142
(10th Cir. 2004) (“The scope of . . . review . . . is limited to the issues the claimant . . . adequately
presents on appeal[.]” (final alteration in original) (quotations and citation omitted)). However,
out of an abundance of caution, the court will address the argument.
In deciding how much weight to give a treating source
opinion, an ALJ must first determine whether the opinion qualifies
for controlling weight. To make this determination, the ALJ . . .
must first consider whether the opinion is well[ ]supported by
medically acceptable clinical and laboratory diagnostic techniques.
If the answer to this question is “no,” then the inquiry at this stage
is complete. If the ALJ finds that the opinion is well[ ]supported,
he must then confirm that the opinion is consistent with other
substantial evidence in the record. If the opinion is deficient in
either of these respects, then it is not entitled to controlling weight.
Even if a treating physician’s opinion is not entitled to
controlling weight, treating source medical opinions are still
entitled to deference and must be weighed using all of the factors
provided in [20 C.F.R. §] 404.1527. Those factors are: (1) the
length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment
relationship, including the treatment provided and the kind of
examination or testing performed; (3) the degree to which the
physician’s opinion is supported by relevant evidence; (4)
consistency between the opinion and the record as a whole; (5)
whether or not the physician is a specialist in the area upon which
an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Under the regulations, the agency rulings, and [Tenth
Circuit] case law, an ALJ must give good reasons . . . for the
weight assigned to a treating physician’s opinion . . . that are
sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical
opinion and the reason for that weight. If the ALJ rejects the
opinion completely, he must then give specific, legitimate reasons
for doing so.
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quotations and citations omitted)
(sixth alteration in original); see also 20 C.F.R. § 404.1527(c).
An ALJ is not required to discuss every factor set forth in the relevant regulations. See
Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (stating that when an ALJ does not
discuss every factor, it “does not prevent this court from according his decision meaningful
review”). As with other evidentiary matters, when an ALJ is considering medical opinion
evidence, it is the ALJ’s role to weigh and resolve evidentiary conflicts and inconsistencies See,
e.g., Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000); Eggleston v. Bowen, 851 F.2d
1244, 1247 (10th Cir. 1988).
Because the ALJ concluded that Dr. Sternberg’s 2002 opinion was entitled to little
weight, it is implicit that the ALJ also viewed that opinion as not being entitled to controlling
weight. Accordingly, the court turns to the deference and weight the ALJ gave to Dr. Sternberg’s
opinions. See Langley, 373 F.3d at 1119; see also 20 C.F.R. § 404.1527(c).
In this case, the ALJ relied upon proper factors to support the conclusion that Dr.
Sternberg’s 2002 opinion was entitled to little weight. First, the ALJ properly relied upon the
fact that the majority of Dr. Sternberg’s 2002 opinion was focused on her allegations of pain,
despite the fact that Dr. Sternberg is a psychologist, not a medical doctor. See 20 C.F.R.
§ 404.1527(c)(5). Second, the ALJ properly relied upon the fact that Dr. Sternberg’s 2002
opinion was unsupported by his own treatment notes. See id. § 404.1527(c)(3). Finally, the ALJ
properly relied upon the fact that a portion of Dr. Sternberg’s 2002 opinion was vague. See id.
For these reasons, the court concludes that the ALJ did not err by concluding that Dr. Sternberg’s
2002 opinion was entitled to little weight.
B. Dr. Sternberg’s 2010 Opinion
Plaintiff next argues that the ALJ erred by failing to consider Dr. Sternberg’s 2010
opinion. In an argument already made to the Appeals Council, Plaintiff asserts that there was
misconduct on the part of the ALJ because Dr. Sternberg’s 2010 opinion was admitted into the
record at the second administrative hearing but was subsequently removed or not included in the
final, certified administrative record. It is undisputed that the ALJ did not discuss Dr.
Sternberg’s 2010 opinion in his decision. Plaintiff also contends that the Appeals Council erred
by failing to remand the case to the ALJ. The Appeals Council later admitted Dr. Sternberg’s
2010 opinion into the record, but determined that it would not remand the case to the ALJ
because Dr. Sternberg’s 2010 opinion did not contain objective findings or further treatment
notes for the time period at issue and because the ALJ had considered Dr. Sternberg’s other
opinions in the decision.
For the following reasons, the court has determined that Plaintiff’s arguments fail. First,
Plaintiff has failed to conclusively establish that Dr. Sternberg’s 2010 opinion was before the
ALJ. The portions of the record that Plaintiff relies upon to support her argument that Dr.
Sternberg’s opinion was admitted into the record by the ALJ are simply not specific enough to
persuade the court that the opinion was admitted during the second administrative hearing.
Second, the court cannot say that the Appeals Council, which admitted and considered
Dr. Sternberg’s 2010 opinion, erred by failing to remand the case to the ALJ. The Appeals
Council properly relied upon the fact that the ALJ had already considered Dr. Sternberg’s 2002
opinion, which, as noted by the Commissioner, is not fundamentally different from his 2010
opinion. The ALJ specifically considered Dr. Sternberg’s 2002 opinion and relied upon proper
factors to give it little weight, as indicated above. The Appeals Council also properly relied upon
the fact that Dr. Sternberg’s 2010 opinion did not contain objective findings. A review of the
2010 opinion reveals that, other than listing certain diagnoses, Dr. Sternberg did not provide any
specific bases for that opinion. In the court’s view, those were sufficient reasons for the Appeals
Council to determine that the case did not need to be remanded to the ALJ for consideration of
Dr. Sternberg’s 2010 opinion.
Based on the foregoing, the court concludes that both of Plaintiff’s arguments concerning
the opinions of Dr. Sternberg fail.
As indicated above, step 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.”
Williams, 844 F.2d at 751 (quotations and citations omitted); see 20 C.F.R. § 404.1520(a)(4)(iii).
At step three, a claimant has the “burden to present evidence establishing [his] impairments meet
or equal listed impairments.” Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). In
order to satisfy this burden, a claimant must establish that his impairment “meet[s] all of the
specified medical criteria. An impairment that manifests only some of those criteria, no matter
how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). “To show that an
impairment or combination of impairments meets the requirements of a listing, a claimant must
provide specific medical findings that support each of the various requisite criteria for the
impairment.” Lax, 489 F.3d at 1085; see also 20 C.F.R. § 404.1525.
With respect to the ALJ’s listings analysis, Plaintiff first argues that the ALJ should have
concluded that Plaintiff’s alleged impairments met or equaled listings 12.04 and 12.06 based on
Dr. Sternberg’s 2010 opinion. That argument fails. The court has already concluded that there
was no error below with respect to the treatment or consideration of Dr. Sternberg’s 2010
opinion. Plaintiff next argues that the ALJ’s listings analysis was insufficient. The court
concludes that this argument is cursory and not developed in any meaningful way. Accordingly,
the court declines to consider it. See, e.g., Keyes-Zachary, 695 F.3d at 1161; Chambers, 389
F.3d at 1142.
Plaintiff argues that the ALJ erred in evaluating the credibility of Plaintiff’s subjective
complaints. In general, “[c]redibility determinations are peculiarly the province of the finder of
fact, and [this court] will not upset such determinations when supported by substantial evidence.”
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotations and citation omitted). Although
credibility determinations “should be closely and affirmatively linked to substantial evidence,”
id. (quotations and citation omitted), they “do not require a formalistic factor-by-factor
recitation of the evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Social
Security Ruling (“SSR”) 96-7p clarifies the standards an ALJ must apply when evaluating the
credibility of an individual’s statements, including his or her allegations of pain. See SSR 96-7p;
see also 20 C.F.R. § 404.1529(c); see also Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir.
In this case, the ALJ properly relied upon multiple instances where the objective medical
evidence in the record was inconsistent with Plaintiff’s allegations of severe physical and mental
limitations. See 20 C.F.R. § 404.1529(c)(2); SSR 96-7. In the court’s view, those were
sufficient bases to determine that, overall, Plaintiff’s testimony was not fully credible.
Furthermore, the court concludes that the ALJ’s determination is “closely and affirmatively
linked to substantial evidence.” Kepler, 68 F.3d at 391 (quotations and citation omitted).
To the extent that Plaintiff reargues the weight of the evidence before the ALJ on this
issue, the court notes that such a tactic is futile on appeal. It is not this court’s role to reweigh the
evidence before the ALJ. See Madrid, 447 F.3d at 790. Indeed, it is the ALJ’s role to weigh and
resolve evidentiary conflicts and inconsistencies. See Rutledge, 230 F.3d at 1174; Eggleston, 851
F.2d at 1247. From an evidentiary standpoint, the only issue relevant to the court is whether
substantial evidence exists in the record to support the ALJ’s conclusions. See Oldham, 509 F.3d
at 1257 (providing that the court reviewing the ALJ’s decision reviews “only the sufficiency of
the evidence, not its weight” (emphasis omitted)).
For these reasons, the court concludes that Plaintiff’s argument concerning the ALJ’s
credibility determination fails.
IV. Step Five
Plaintiff argues that the ALJ erred at step five of the sequential evaluation process. More
specifically, Plaintiff contends that the ALJ erred by failing to include the limitations expressed
in Dr. Sternberg’s opinions and Plaintiff’s own testimony in the RFC and the hypothetical given
to the vocational expert. The court has concluded that there was no error below in the treatment
or consideration of Dr. Sternberg’s opinions. The court has also concluded that the ALJ did not
err in his evaluation of the credibility of Plaintiff’s testimony concerning her alleged
impairments. As such, the ALJ was not required to include every limitation expressed by Dr.
Sternberg or Plaintiff in the RFC or in the hypothetical given to the vocational expert. In this
case, the ALJ included all of the limitations contained in the final RFC determination in the
hypothetical provided to the vocational expert. Accordingly, there was no error. See, e.g.,
Qualls, 206 F.3d at 1373 (“The ALJ propounded a hypothetical question to the VE that included
all the limitations the ALJ ultimately included in his RFC assessment. Therefore, the vocational
expert’s answer to that question provided a proper basis for the ALJ’s disability decision.”).
CONCLUSION AND ORDER
The court concludes that all of Plaintiff’s arguments fail. Therefore, IT IS HEREBY
ORDERED that the Commissioner’s decision in this case is AFFIRMED.
IT IS SO ORDERED.
DATED this 3rd day of December, 2013.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
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