Godfrey v. Astrue

Filing 25

MEMORANDUM DECISION AND ORDER: the court finds that the Commissioner's decision is supported by substantial evidence and is therefore affirmed. Signed by Judge Tena Campbell on 7/16/14 (alt)

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

ROBERTA J. GODFREY,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

vs.

CAROLYN W. COLVIN,

Case No. 2:12-cv-1014-TC

Defendant.

Judge Tena Campbell

Roberta J. Godfrey seeks judicial review of the decision of the Commissioner of Social
Security denying Mrs. Godfrey’s application for disability insurance benefits under Title II of the
Social Security Act. 42 U.S.C. § 401 et al. After a careful review of the record and for the
reasons discussed below, the court finds that the Commissioner’s decision is supported by
substantial evidence and is therefore AFFIRMED.
BACKGROUND
I.

Procedural History
Mrs. Godfrey alleges that she suffered a work-related injury on October 10, 2001, that left

her disabled as a matter of law. Mrs. Godfrey claims that she is disabled due to severe
impairments including “degenerative disc disease of the cervical and lumbar spine, carpal tunnel
syndrome, obesity, a right shoulder impingement, and depression.” (Pl.’s Opening Br., Docket
No. 17 at 1.)
Mrs. Godfrey filed her first application for disability insurance benefits in May 2002. Her

application alleged that her disability began October 10, 2001, due to “degenerative disc disease,
migraine headaches, right arm injury, inability to sit, stand or walk for more than 20 minutes at a
time, and mood swings.” ®. 15, 62.) The first application was administratively denied. Mrs.
Godfrey requested reconsideration of the denial of her application, and it was determined that the
application was properly denied.
Mrs. Godfrey filed her second application in May 2003. This second application was
administratively denied in October 2003. Mrs. Godfrey requested reconsideration of the denial,
and in February 2004, it was determined that it was properly denied. Subsequently, Mrs.
Godfrey requested a hearing, which was held on June 17, 2005, in front of Administrative Law
Judge (ALJ) Robin L. Henrie. Judge Henrie denied Mrs. Godfrey’s claim and found that she was
not disabled as a matter of law. In March 2006, the Social Security Appeals Council (Appeals
Council) denied review of Judge Henrie’s decision.
In October 2007, Mrs. Godfrey sought review by this court of Judge Henrie’s decision.
United States Magistrate Judge Paul Warner granted the Commissioner’s unopposed request to
remand for further proceedings under 42 U.S.C. § 405(g). Upon remand, ALJ Gilbert A.
Martinez held a second hearing on February 20, 2008. On April 21, 2008, Judge Martinez issued
a decision finding Ms. Godfrey not disabled. In September 2009, Mrs. Godfrey filed written
exemptions to Judge Martinez’s decision. The Appeals Council reviewed and remanded the case
to ALJ Donald R. Jensen.
Judge Jensen held a third hearing on January 20, 2010. Like the ALJs before, Judge
Jensen also found that Mrs. Godfrey was not disabled between her alleged onset of disability in
October 2001 to her date last insured, December 31, 2007. The Appeals Council denied Mrs.
2

Godfrey’s request for review of Judge Jensen’s decision, making it the Commissioner’s final
decision for purposes of judicial review. Mrs. Godfrey seeks review of this decision.
In January 2006, Mrs. Godfrey filed a third application for disability insurance benefits
and it was administratively denied. Mrs. Godfrey requested reconsideration of the denial, and it
was determined that the previous determination denying her claims was proper.
II.

Factual Background
Mrs. Godfrey was forty-one years old when she alleges she became disabled. She has a

college degree in Interior Design and in the past, worked as a bank teller, financial services sales
representative, office manager, data entry operator, and administrative clerk.
A.

Medical Evidence

Mrs. Godfrey claims that she became disabled when she tripped on a carpet at her
workplace in October 2001. Mrs. Godfrey stopped working after her injury. She claims that she
immediately experienced back pain and back spasms and sought treatment from Charles M.
Bova, M.D., who prescribed a muscle relaxant and Motrin for her back pain.
Mrs. Godfrey returned to Dr. Bova for a followup on October 12, 2001, because she was
still experiencing pain in her lower back and claimed that the medications were not helping. Dr.
Bova prescribed Lortab and instructed Mrs. Godfrey to continue taking the previously prescribed
muscle relaxant and Motrin. Mrs. Godfrey returned for another followup on October 31, 2001,
and Dr. Bova referred her to a spinal specialist for further evaluation.
Spinal specialist Alan Brown, M.D., diagnosed Mrs. Godfrey with “probable
degenerative disc disease.” ®. 201.) He believed that Mrs. Godfrey’s back pain was “discogenic
pain,” or pain stemming from the degenerative discs in her spine. On December 4, 2001, Dr.

3

Brown’s recommendation for Mrs. Godfrey was to “continue with conservative management,”
which included continuing her prescribed medications and starting physical therapy for lumbar
stabilization. ®. 196.) Dr. Brown noted that if this conservative treatment plan did not work for
Mrs. Godfrey within six weeks, he would recommend epidural steroid injections.
Mrs. Godfrey returned to work sometime in December 2001 until she fell again on
December 18, 2001. After her second fall, Mrs. Godfrey made another appointment with Dr.
Brown. Dr. Brown believed that Mrs. Godfrey’s fall “aggravated her underlying degenerative
disk disease,” and he recommended that she leave work for two weeks. ®. 195.)
In January 2002, Jeff Chung, M.D., evaluated Mrs. Godfrey for the Labor Commission of
Utah. Dr. Chung found that Mrs. Godfrey had a normal range of motion in her right arm, but still
complained of discomfort at the end range of motion. Mrs. Godfrey complained of painful
“pops” when moving her arm, but Dr. Chung stated that he “personally could not hear such
crepitation or feel crepitation during [his] evaluation.” ®. 163.) Dr. Chung observed that Mrs.
Godfrey had full strength throughout the examination and no apparent sensory deficits. He
described Mrs. Godfrey’s examination as relatively nonspecific, but also stated that “[t]he patient
currently has a plethora of subjective complaints of pain and discomfort without objective
findings consistent with a neuromuscular origin to the patient’s current symptoms.” ®. 165.) Dr.
Chung noted that Mrs. Godfrey had “positive Waddell’s findings, such as significant increase in
pain and discomfort in the lumbar spine with en-block rotation of the lumbar spine” and that
these Waddell’s findings indicate that she “may have a significant nonorganic component to her
current symptoms.” (Id.)

4

Mrs. Godfrey returned to Dr. Brown on January 18, 2002. Dr. Brown observed that
Mrs. Godfrey was still having “quite a bit of pain,” but that her overall condition had improved.
®. 194.) He stated that she should be kept off work for another six weeks, and that she should
continue with physical therapy and her current medications.
Mrs. Godfrey’s physical therapists performed a functional capacity assessment on her on
February 22, 2002. Her physical therapists observed that she could lift up to twenty pounds and
that she exhibited signs that she was giving only “submaximal or unreliable effort.” ®. 634.)
Mrs. Godfrey continued to experience pain throughout 2002. In July 2002, Dr. Brown
referred her for an epidural steroid injection procedure. On July 10, Dr. Bova performed the
epidural steroid injection. Though she suffered from some headaches and fevers after the
injection, Mrs. Godfrey described her pain to Dr. Brown as a “one” on a one out of ten scale. By
October 2002, Dr. Brown still recommended conservative treatment and epidural steroid
injections as the best course of treatment for Mrs. Godfrey.
In July 2002, Mrs. Godfrey underwent another functional capacity assessment for her
worker’s compensation claim. Dennis Taggart, M.D., found that Mrs. Godfrey could
occasionally lift twenty pounds and frequently lift ten pounds. He found that she could “stand
and/or walk (with normal breaks) for a total of – about 6 hours in an 8-hour day” and sit for
about “6 hours in an 8-hour workday.” ®. 227.) Dr. Taggart stated that Mrs. Godfrey had some
postural limitations, but no apparent manipulative, visual, communicative, or environmental
limitations.

5

Mrs. Godfrey did not seek any treatment between October 2002 and November 2003.1
On August 14, 2003, David Robert Heiner, M.D., examined Mrs. Godfrey on behalf of
the Division of Disability Determination Services to evaluate her physical limitations. Dr.
Heiner observed evidence of carpal tunnel syndrome in Mrs. Godfrey’s right wrist and tenderness
in her spine and in the right side of her body. She had a normal range of motion in her fingers,
hands, elbows, and shoulders, but showed positive impingement signs in her right shoulder. Dr.
Heiner assessed Mrs. Godfrey with degenerative disc disease in her neck and lower back,
shoulder impingement syndrome with a possible degenerative AC joint, and carpal tunnel
syndrome in her right side.
In September 2003, a panel of workers’ compensation physicians reviewed Mrs.
Godfrey’s medical records and examined her to evaluate the impacts of her falls. Mrs. Godfrey
was asked to complete a survey and was directed to circle the levels of severity for her pain with
“zero being no pain and ten being the most severe pain one could imagine.” ®. 213.) Mrs.
Godfrey circled “ten” for the severity of her pain at its worst, for frequency of pain, for pain
interfering with family/partner/significant others, for pain making it almost impossible to engage
in any sexual activity, for overall mood during the past week, feeling depressed in the past week
because of the pain, and being irritable because of the pain. She circled numerous categories
under “nine,” “eight,” “seven,” and “six,” but did not circle any ratings for “zero,” “one,” “two,”
“three,” “four,” or “five.” ®. 213.) Madison Thomas, M.D., writing for the panel, reported that
“[t]hroughout the examination, it was noted that manual muscle tests and sensory patterns were

1

Mrs. Godfrey visited Dr. Brown in May 2003 to complete some paperwork, but not for
treatment.
6

inconsistent and some exaggeration of behavior was obvious to the panel members, making final
interpretation somewhat difficult.” ®. 215.) At the end of the examination, Dr. Thomas
concluded that Mrs. Godfrey’s fall in October 2001 caused her back injury, the December 2001
fall aggravated the injury, and she became medically stable around July 2002.
In October 2003, Richard Sander, M.D., reviewed Mrs. Godfrey’s medical records to
evaluate her physical limitations. He observed that she could lift or carry twenty pounds
occasionally and ten pounds frequently; stand or walk about six hours in an eight-hour workday;
and sit for about six hours in an eight-hour workday. He also found that Mrs. Godfrey had some
postural limitations and a possible shoulder impingement that limited her ability to reach. Dr.
Sander stated he believed that Mrs. Godfrey’s symptoms were attributable to a medically
determinable impairment, but he also found that the severity or duration of her claimed
symptoms were “disproportionate to the expected severity or duration on the basis of her
medically determinable impairment(s).” ®. 262.)
Mrs. Godfrey returned to Dr. Brown on January 23, 2004 and complained of back pain,
neck problems, and headaches. She told Dr. Brown that she wanted to “hold off on any further
treatment until [her workers’ compensation claim] is settled.” ®. 678.) Dr. Brown
recommended that Mrs. Godfrey return for a followup visit “as necessary.” (Id.)
Mrs. Godfrey did not seek any treatment between January 2004 and August 2004. In
August, Mrs. Godfrey began receiving treatment from Burk Young, M.D., for pain and numbness
in her right arm. Dr. Young’s first impressions included a rotator cuff strain in Mrs. Godfrey’s
right shoulder, a possible tear, and carpal tunnel syndrome.

7

Mrs. Godfrey followed up with Dr. Young in April 2005. At that time, Dr. Young
referred her for an MRI of her lumbar spine and a lumbar spine epidural steroid injection. The
MRI showed that Mrs. Godfrey had a full thickness rotator cuff tear and an
electroneurodiagnostic study confirmed moderate carpal tunnel syndrome in her right wrist.
In May 2005, Dr. Young surgically repaired Mrs. Godfrey’s rotator cuff tear. Three
weeks after the surgery, she reported to Dr. Young that she was experiencing diminishing pain.
After about two-and-a-half months, Dr. Young reported that Mrs. Godfrey was making “slow but
steady progress” and had “full passive range of motion.” ®. 721.) He also stated that she
described to him that she “feels like she is better than before the surgery.” (Id.) Three months
after the surgery, she was not experiencing the pain that she had before the surgery and had full
range of motion, though she found it difficult to lift her arm above the shoulder. By September
2005, Dr. Young noted that Mrs. Godfrey had gained strength in her shoulder and had mild pain
with impingement testing. Dr. Young recommended that Mrs. Godfrey continue with
independent physical therapy and that “she could return to work with some restrictions of no
overhead lifting and only about 20 lbs below shoulder level for at least six more weeks. We will
see her back in six weeks and hopefully lift all these restrictions.” ®. 329.)
In October 2005, Mrs. Godfrey had an epidural steroid injection in her lumbar spine.
When she returned to Dr. Brown for a followup, she stated that the injection gave her short term
relief, but that she was beginning to experience pain again. She also told him that she “only
take[s] Celebrex and occasional Tylenol.” ®. 322.) Dr. Brown gave Mrs. Godfrey Lortab for
break through pain and recommended that she followup in three to four months and to only call if
she had problems before then.
8

Mrs. Godfrey returned to Dr. Young in November 2005, nearly six months after her
rotator cuff surgery. She claimed that she felt 90% better. Because of her progress with her
shoulder, Dr. Young discharged her from his care. During her visit, she primarily complained
about pain in her elbow and described how she experienced “locking and catching.” ®. 328.)
An x-ray showed a possible small bone chip and a CT scan showed mild osteoarthritis.
In January 2006, Mrs. Godfrey visited Dr. Young again for her carpal tunnel. They
discussed options of treatment, and Dr. Young recommended “conservative care” as the best
method at the time. ®. 324.) He advised Mrs. Godfrey to try wearing a splint at home, but if she
continued to have symptoms, then they could consider a carpal tunnel release. Conservative
treatment failed to resolve Mrs. Godfrey’s carpal tunnel, and in April 2006, Dr. Burk performed
carpal tunnel release surgery on her right wrist. After her surgery, Dr. Burk stated that Mrs.
Godfrey had no more complaints of pain or numbness and was doing “excellent.” ®. 796-97.)
Mrs. Godfrey returned to Dr. Brown in February 2006 for her back pain. She told him
that she was doing “relatively well” and that “with 400 mg of Celebrex and one Lortab a day her
pain is tolerable for her.” ®. 670.) Dr. Brown only refilled her prescriptions and did not
recommend any other treatment.
In June 2006, Mrs. Godfrey was doing yard work when she became short of breath. Mrs.
Godfrey went to the emergency room and was admitted with pulmonary embolus. She was
discharged with pulmonary embolus with respiratory stability.
In July 2006, Mrs. Godfrey began to receive treatment for her back pain from Timothy
Grange, M.D., after Dr. Brown stopped practicing in the area. Dr. Grange noted that Mrs.
Godfrey had fluid movements, and her range of motion in her neck and low back were
9

“essentially full.” ®. 834.) He also noted that she was “seated comfortably in no acute distress,
is alert, cooperative . . .” (Id.) After assessing her lower back pain and cervical pain, Dr. Grange
recommended that Mrs. Godfrey “continue with a stretching and exercise program.” (Id.) He
refilled her Lortab and prescribed a long-acting pain medication. Mrs. Godfrey continued to see
Dr. Grange throughout 2006 and told him that she was feeling “overall a little better.” ®. 832.)
Dr. Grange recommended that Mrs. Godfrey continue with her stretching and exercise program
and prescribed pain relievers. In December 2006, Dr. Grange imposed permanent restrictions on
Mrs. Godfrey to avoid heavy lifting and to frequently change positions.
Later in July 2006, non-examining physician Lewis Barton, M.D., reviewed Mrs.
Godfrey’s medical records for her disability determination. Dr. Barton stated that Mrs. Godfrey
could lift or carry twenty pounds occasionally and ten pounds frequently; stand or walk about six
hours in an eight-hour workday; and sit for six hours in an eight-hour workday and that she had
no postural, visual, communicative, or environmental limitations. Dr. Barton found that Mrs.
Godfrey’s allegations of pain were “somewhat credible per [the Medical Evidence of Record].”
®. 821.) In his overall conclusion, Dr. Barton stated:
Claimant has not had many new changes since her denial in 11/22/05 except for
her right carpal tunnel release in 4/06, which per her notes of 5/26/06 “she is
doing excellent.” She is also doing well with both her shoulder and elbow, and is
being followed and managed for her back pain. [Activities of Daily Living
(ADLs)] are semi active, but MER does not support how bad ADLs say she is.
Although her ADLs speak a lot of pain and migraines and overwhelming pain and
blurred vision from headaches, there is no mention of headaches or migraines in
the MER. MER states pain is controlled through meds.
(Id.) Based on his review of Mrs. Godfrey’s medical records, Dr. Barton opined that Mrs.
Godfrey could do light work with some restrictions.
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In April 2007, Mrs. Godfrey’s attorney requested that Dr. Grange fill out a physical
capacity form for Mrs. Godfrey’s social security case. On the form, Dr. Grange diagnosed Mrs.
Godfrey with low back pain, right radicular syndrome, lower extremity pain, neck pain, and
incontinence, and that these conditions impaired her 70% of the time. In a second assessment of
Mrs. Godfrey’s physical capacities filled out by Dr. Grange on May 4, 2007, he indicated that
Mrs. Godfrey could sit, stand, and walk for twenty minutes at a time, and could sit, stand, and
walk for a total of two to three hours each throughout the day. He also stated that Mrs. Godfrey
must lie down one to three times a day for an hour at a time. Dr. Grange specified that Mrs.
Godfrey could lift five pounds frequently, ten pounds occasionally, twenty pounds rarely, but
should never lift fifty pounds or more. Lastly, he opined that Mrs. Godfrey could handle, grasp,
and manipulate objects with her right and left arms 67-100% of the time, but could only reach or
push and pull 0-33% of the time.
In May 2007, a series of MRIs of Mrs. Godfrey’s spine showed mild central canal
stenosis, or narrowing of the spinal column. An MRI of her thoracic spine showed that her bone
marrow was within normal limits, the intervertebral discs were well hydrated, and that there were
“no focal disc protrusions, central canal stenosis, neural foraminal stenosis or neural
impingement.” ®. 871.) The MRI of her lower back showed multifactorial mild central canal
stenosis at L2-3, L3-4, and L4-5, and mild bilateral neural foraminal stenosis at L4-5 and L5-S1.
The lower back MRI also showed multifactorial mild to moderate central canal stenosis at L4-5.
After the MRIs, Dr. Grange recommended that Mrs. Godfrey continue with her stretching and
exercise program and to continue with her pain medications. He also continued her permanent
restrictions to “avoid heavy lifting” and “[f]requently change positions.” ®. 869.)
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B.

Testimonial Evidence

At the hearing before Judge Jensen, Mrs. Godfrey testified that she has back problems,
carpal tunnel syndrome, issues with her right shoulder, pulmonary embolisms, and obesity. She
stated that she experiences constant pain in her back and shoulder and pain from the carpal tunnel
syndrome. She said her back feels like it was crushed. She claimed that lifting anything over
five pounds aggravates her back condition. Mrs. Godfrey testified that her back problem is the
main thing that prevents her from working. She claimed that the pain is so debilitating that she
has to lie down two to three times per day and that she often does not get out of bed two days
each week. She stated that her doctors have recommended surgery on her low back, but Mrs.
Godfrey testified that she is waiting until she can no longer walk.
She testified that at the end of 2007, she could spend fifteen to thirty minutes at a time
doing housework for up to two hours per day, lift and carry about ten pounds, stand for five to
ten minutes at a time, and sit for ten to fifteen minutes at a time. She could walk for twenty
minutes and climb one flight of stairs. She estimated that she could write for twenty or thirty
minutes, and type for between ten and fifteens minutes at a time. She testified that her hands
often go numb, which makes holding things difficult.
Mrs. Godfrey also testified that she has neck pain which causes migraine headaches,
which she claims occur every day. She claims that she is supposed to have surgery for this
problem, but hasn’t had the surgery yet.
At the hearing, vocational expert Kent Granat testified that a hypothetical individual with
Mrs. Godfrey’s limitations could work as a surveillance system monitor, call-out operator, and a
telephone information clerk.
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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. See 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). The court “will not reweigh the evidence or substitute [its own] judgment for the
Commissioner’s . . . [and] may not displace the agency’s choice between two fairly conflicting
views,” even if the court may have made a different choice had the matter been before it de
novo.” Id. (citation omitted). “A finding of no substantial evidence will be found only where
there is a conspicuous absence of credible choices or no contrary medical evidence.” Trimiar v.
Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citations omitted).
II.

Judge Jensen’s Decision
To receive disability benefits, a claimant must meet certain qualifications under the Social

Security Act: the claimant must meet the insured status requirements, be less than sixty-five
years of age and under a “disability.” Flint v. Sullivan, 951 F.2d 264, 267 (10th Cir.1991).
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

13

“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 because of her
disability, she is unable to perform her prior work activity. See Miller v. Chater, 99 F.3d 972,
975 (10th Cir. 1996). Once the claimant establishes that she has a disability, the burden shifts to
the Commissioner to prove that the claimant retains the ability to do other work and that jobs
which she can perform exist in the national economy. See id.
The Commissioner has established a five-step process for determining whether a person
is disabled. 20 C.F.R. §§ 416.920(a) – (g); Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.
1988). In the first two steps, the ALJ must determine whether the claimant is engaging in
substantial gainful activity and whether the claimant has a “severe” impairment. 20 C.F.R. §§
416.920(b) – ©. After these two steps, the next step involves determining whether the claimant’s
impairment is listed in or is comparable to any impairment listed in the “Listing of Impairments,”
20 C.F.R. § 404, subpt. P, app. 1. Id. § 416.920(d). If the claimant is found to have an
impairment meeting or equaling the listed impairments, she is entitled to benefits. Id. If not, the
evaluation proceeds to steps four and five, which involve the assessment of the claimant’s
residual functional capacity. Id. §§ 416.920(e) – (g). At step four, the ALJ determines whether
the claimant can perform her past work given her residual functional capacity. Id. § 416.920(e).
If she cannot, the evaluation moves to step five, where the ALJ decides whether the claimant can

14

perform other available work in the national economy considering her age, education, past work
experience, and residual functional capacity. Id. § 416-920(f).
Following the administrative hearing held on January 20, 2010, Judge Jensen found that:
(1) Mrs. Godfrey was not engaging in substantial activity; (2) She suffered from several severe
impairments, including disorders of the back, carpal tunnel syndrome, obesity, and right shoulder
impingement syndrome; (3) Her impairments did not meet or medically equal one of the listed
impairments; (4) Her residual functional capacity2 prevented her from performing any of her past
relevant work; and (5) Given her age, education, work experience, and residual functional
capacity, Mrs. Godfrey could work as a surveillance system monitor, a call-out operator, and a
telephone information clerk. Based on these findings, Judge Jensen concluded that Mrs. Godfrey
was not disabled under the Social Security Act.
III.

Judge Jensen Correctly Determined that Mrs. Godfrey is Not Disabled.
Mrs. Godfrey challenges three aspects of Judge Jensen’s decision. First, she argues that

Judge Jensen improperly evaluated her credibility when he found that her complaints of pain
were less than credible. Second, she alleges that Judge Jensen erred in evaluating her residual
functional capacity. And third, Mrs. Godfrey challenges Judge Jensen’s finding that Mrs.
Godfrey was capable of performing other work.

2

Judge Jensen found that Mrs. Godfrey could perform sedentary work including lifting ten
pounds occasionally and less than ten pounds frequently, standing or walking for about six hours
of an eight hour day, sitting for about six hours of an eight hour day, with no limitations of
pushing or pulling or operating foot controls within a ten pound range, and reaching above
shoulder height or work over-head only occasionally. He also found that she must be allowed to
sit or stand at will, and can sit in fifteen to thirty minute increments, and stand in ten minute
increments. And she can handle and finger frequently.
15

A.

Judge Jensen Reasonably Found that Mrs. Godfrey’s Complaints were Less Than
Credible.

Once the evidence demonstrates that a claimant has a medically determinable impairment
that could reasonably be expected to produce the complained of symptoms, the ALJ must then
“consider [the claimant’s] assertions of severe pain and [] decide whether he believe[s them].”
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Thompson v. Sullivan, 987 F.2d
1482, 1489 (10th Cir. 1993)). To make this determination, the ALJ should consider factors such
as:
the levels of medication and their effectiveness, the extensiveness of the attempts
(medical or nonmedical) to obtain relief, the frequency of medical contacts, the
nature of daily activities, subjective measures of credibility that are peculiarly
within the judgment of the ALJ, the motivation of and relationship between the
claimant and other witnesses, and the consistency or compatibility of nonmedical
testimony with objective medical evidence.
Id. The ALJ’s decision must “contain specific reasons for the finding on credibility, supported
by the evidence in the case record, and must be sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the adjudicator gave to the individual’s
statements and the reasons for that weight.” SSR 96-7p, 1996 WL 374186 (July 2, 1996).
A credibility determination is generally treated as binding on review. Henderson v.
Colvin, Civil Action No. 13–1119–JWL, 2014 WL 2968165, at *2 (D. Kan. July 1, 2014) (citing
Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990)). The court’s review of an ALJ’s
credibility determination is deferential. Id. “‘Credibility determinations are peculiarly the
province of the finder of fact’ and will not be overturned when supported by substantial
evidence.” Id. (quoting Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010)).

16

Judge Jensen found that Mrs. Godfrey’s “statements concerning the intensity, persistence
and limiting effects of [her] symptoms are not credible to the extent they are inconsistent” with
the residual functional capacity assessment. (R. 412.) Judge Jensen supported this conclusion by
pointing to several areas in the medical evidence record where Mrs. Godfrey’s complaints did not
match the medical evidence. For example, Judge Jensen noted that Mrs. Godfrey’s physicians
consistently recommended conservative treatment. Dr. Brown recommended only conservative
treatment for Mrs. Godfrey’s back pain and headaches, including injections, physical therapy,
anti-inflammatories and pain medications. Mrs. Godfrey also only received conservative
treatment from Dr. Young following her rotator cuff surgery. These conservative treatment
recommendations are consistent with Mrs. Godfrey’s statements to her doctors that her pain was
“at a level 1 on a scale of 1-10" when managed with injections and pain medications, and Dr.
Young’s evaluation that her progress was excellent and she was achieving a good range of
motion following her rotator cuff surgery.
Judge Jensen also based his credibility determination on the references in the record of
Mrs. Godfrey’s tendency to magnify the extent of her symptoms even where the medical
evidence did not support her subjective complaints of pain. When Mrs. Godfrey was examined
by Dr. Chung in January 2002, he found that she had “a plethora of subjective complaints of pain
and discomfort without objective findings consistent with a neuromuscular origin” to support her
assertions and complaints of pain. (R. 412.) And when a medical panel evaluated Mrs. Godfrey
in 2003, the panel noted throughout the examination that “manual muscle tests and sensory
pattens were inconsistent and some exaggeration of behavior was obvious, making a final
interpretation somewhat difficult.” (R. 413.)
17

Judge Jensen’s decision was based on a review of the medical evidence, Mrs. Godfrey’s
statements to her doctors that her pain had improved and that pain medication helped, instances
of symptom magnification, and the conservative treatment programs recommended by her
doctors. The court finds no error in Judge Jensen’s determination that Mrs. Godfrey’s
complaints were not entirely credible and accordingly finds that Judge Jensen adequately
supported his decision to discredit Mrs. Godfrey’s subjective testimony.
B.

Judge Jensen Did Not Err in Determining Mrs. Godfrey’s Residual Functional
Capacity.

A claimant’s residual functional capacity is the most he or she can still do despite any
limitations caused by his or her impairments and any related symptoms. 20 C.F.R. §
404.1545(a)(1). In assessing a claimant’s residual functional capacity, the ALJ considers all the
relevant evidence in the record.
Mrs. Godfrey argues that Judge Jensen failed to consider Mrs. Godfrey’s subjective
complaints of pain when he determined her residual functional capacity and that his residual
functional capacity assessment was conclusory and not supported by reference to the evidence in
the record.
As discussed above, the ALJ gave little weight to Mrs. Godfrey’s complaints and
accordingly did not give them much consideration when he determined her residual functional
capacity. Judge Jensen pointed to numerous areas in the record to support his finding that Mrs.
Godfrey could perform sedentary work including lifting ten pounds occasionally and less than ten
pounds frequently; stand or walk for about six hours of an eight hour day in ten minute
increments; sit for about six hours of an eight hour day in fifteen to thirty minute increments; no

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limitations of pushing or pulling or operating foot controls within a ten pound range; reach above
shoulder height or work over-head only occasionally; and handle and finger frequently.
In his analysis, Judge Jensen addressed Dr. Grange’s report on Mrs. Godfrey’s physical
capacities, which indicated Dr. Grange’s belief that Mrs. Godfrey could sit, stand, and walk for
twenty minutes at a time; sit, stand, and walk for a total of two to three hours each throughout the
day; lie down one to three times a day for an hour at a time; lift five pounds frequently; lift ten
pounds occasionally, lift twenty pounds rarely; never lift fifty pounds or more; and handle, grasp,
and manipulate objects with her right and left arms 67-100% of the time, but could only reach or
push and pull 0-33% of the time. Judge Jensen noted that most of Mrs. Godfrey’s limitations as
defined by Dr. Grange are not inconsistent with his own residual functional capacity assessment
and were “readily accommodated in the residual functional capacity provided, with the exception
for sleeping more than one and one-half hours during the workday.” ®. 413.) Judge Jensen
based this conclusion on his review of the entire record, his finding that Mrs. Godfrey’s
complaints were not credible and Dr. Grange’s report.
Additionally, there is substantial evidence in the record to support Judge Jensen’s
conclusion that Mrs. Godfrey could perform a range of sedentary-work. Several medical
opinions in the record indicated that Mrs. Godfrey had limitations similar to those found by
Judge Jensen. ®. 226-33, 257-63, 823-30.) For example, Dr. Taggart found that Mrs. Godfrey
could occasionally lift twenty pounds and frequently lift ten pounds; “stand and/or walk (with
normal breaks) for a total of – about 6 hours in an 8-hour day;” and sit for about “6 hours in an 8hour workday.” ®. 227.) Dr. Sander also observed that she could lift or carry twenty pounds
occasionally and ten pounds frequently; stand or walk about six hours in an eight-hour workday;
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sit for about six hours in an eight-hour workday; and had some postural limitations and a possible
shoulder impingement that limited her ability to reach.
Judge Jensen’s assessment of Mrs. Godfrey’s residual functional capacity was based on a
review of all the medical evidence, including Dr. Grange’s report on Mrs. Godfrey’s limitations.
The court finds no error in Judge Jensen’s analysis and conclusion that “[t]he objective evidence
does not support impairments of such significance as to prevent [Mrs. Godfrey] from working at
a full-time substantial gainful activity level.” ®. 414.) For these reasons, the court finds that
Judge Jensen’s assessment of Mrs. Godfrey’s residual functional capacity was reasonable and
supported by substantial evidence.
C.

Judge Jensen Did Not Err in Determining that Mrs. Godfrey Could Perform Other
Jobs in the National Economy.

The ALJ bears the burden at step five to show that there are jobs in the national economy
that the claimant can perform with the limitations the ALJ has assessed. Haddock v. Apfel, 196
F.3d 1084, 1088 (10th Cir. 1999) (citing Thompson, 987 F.2d at 1487). Mrs. Godfrey argues that
the ALJ failed to meet his burden of proof at step give of the disability evaluation and should
have found that Mrs. Godfrey is disabled.
As stated, Judge Jensen found that Mrs. Godfrey could perform sedentary work including
lifting ten pounds occasionally and less than ten pounds frequently; stand or walk for about six
hours of an eight hour day in ten minute increments; sit for about six hours of an eight hour day
in fifteen to thirty minute increments; no limitations of pushing or pulling or operating foot
controls within a ten pound range; reach above shoulder height or work over-head only
occasionally; and handle and finger frequently. Based on this residual functional capacity, Judge
Jensen found that Mrs. Godfrey could not perform any of her past relevant work, which included:
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bank teller, a light skilled job; financial services sales representative, a light skilled job; data
entry operator, a sedentary semi-skilled job; and administrative clerk; a light semi-skilled job.
Judge Jensen found that Mrs. Godfrey had certain limitations that prevented her from
performing the full range of sedentary work. Based on these limitations that affected Mrs.
Godfrey’s ability to perform some of the requirements at the sedentary level, Judge Jensen asked
vocational expert Kent Granat whether jobs existed in the national economy for an individual
with the claimant’s age, education, work experience, and residual functional capacity. Mr.
Granat testified that given all of the factors and limitations, a hypothetical individual could
perform several occupations, including: surveillance system monitor, call-out operator, and
telephone information clerk.
Judge Jensen acknowledged that Mr. Granat’s testimony was not consistent with the
Dictionary of Occupational Titles “to the extent that a sit-stand option is not described for these
or any other jobs.” ®. 415.) In conformity with Social Security Ruling 83-12,3 Judge Jensen
asked Mr. Granat about the effect of Mrs. Godfrey’s sit-stand limitation on the occupational base
determined at step five. And as required by Social Security Ruling 00-4p, the ALJ elicited a
reasonable explanation for the discrepancy. See also Rogers v. Astrue, 312 F. App’x 138, 14142 (10th Cir. Feb. 17, 2009). Mr. Granat testified that he didn’t believe it would affect Mrs.
Godfrey’s ability to do the jobs he believed she could perform and did not decrease the number
of positions available in the national economy. Specifically, Mr. Granat stated that his
experience and observations over the years led him to believe that Mrs. Godfrey’s sit-stand
3

“In cases of unusual limitations of ability to sit or stand, a [vocational specialist] should
be consulted to clarify the implications for the occupational base.” SSR, 83-12, 1983 WL 31253
(Feb. 26, 1979).
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limitations would be accommodated. Judge Jensen found this to be a reasonable explanation for
the discrepancy between Mr. Granat’s testimony and the Dictionary of Occupational Titles.
Judge Jensen’s decision was reasonably based on the vocational expert’s testimony.
Accordingly, the court finds no error in Judge Jensen’s determination that Mrs. Godfrey is
capable of performing certain sedentary jobs in the national economy and is not disabled.
CONCLUSION
For the reasons stated above, the court finds that Judge Jensen’s decision is supported by
substantial evidence. His ruling is therefore AFFIRMED.

SO ORDERED this 16th day of July, 2014.
BY THE COURT:

____________________________
TENA CAMPBELL
United States District Judge

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