Almy v. Colvin

Filing 27

MEMORANDUM DECISION AND ORDER Affirming Decision on the Commissioner. Signed by Magistrate Judge Brooke C. Wells on 2/21/14 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
RICHARD ALMY,
Plaintiff,

MEMORANDUM DECISION AND ORDER
AFFIRMING DECISION OF THE
COMMISSIONER

v.
Case No. 2:13-cv-50 BCW
CAROLYN W. COLVIN,
Magistrate Judge Brooke Wells
Defendant.

Plaintiff Richard Almy appeals from the denial of his application for Supplemental
Security Income (SSI) and Disability Insurance Benefits (DIB). After careful consideration of
the record and the briefs, the Court has determined that oral argument is unnecessary and decides
this case based upon the record before it. 1 For the reasons set forth below, the Court affirms the
decision of the Administrative Law Judge (ALJ). 2
BACKGROUND
Mr. Almy applied for SSI and DIB alleging disability as of July 6, 2009, due to “bad
discs in back,” bipolar disorder, and depression. 3 In his pain questionnaire, Mr. Almy stated that
“[t]he only reason I need SSD is because I need to have back surgery done on the two rupture
disc[s].”4 His application was denied initially5 and upon reconsideration. 6 Mr. Almy sought a

1

See Scheduling Order, docket no. 17 (noting that [o]ral argument will not be heard unless requested at the time of
[the] filing first briefs by either party and upon good cause shown”).
2
Because the Appeals Council denied review, the ALJ’s decision is the Commissioner’s final decision for purposes
of this appeal. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).
3
Tr. 140. Tr refers to the record before the Court.
4
Tr. 149.
5
Tr. 53-56.
6
Tr. 60-62.

hearing before an ALJ. In rendering his decision, the ALJ followed the standard sequential fivestep evaluation process for determining whether an individual is disabled. 7
At step two the ALJ found Mr. Almy had one severe impairment, degenerative changes
in the lumbar spine. The ALJ concluded the record did not support a finding of a severe mental
impairment despite some evidence of mental impairments in the record because Plaintiff’s
mental impairments did not “cause more than minimal limitation in [Mr. Almy’s] ability to
perform basic mental work activities.” 8 In rejecting Plaintiff’s alleged mental impairments the
ALJ also noted Mr. Almy’s statement to a social worker made in 2010. Mr. Almy stated that he
“is seeking mental health treatment on the suggestion of an attorney who is coaching him in a
second application for SSA disability benefits and has advised him to obtain ‘a regular therapist’
in order to establish his claim of ‘bipolar disorder’ as the basis of a disability claim.” 9
Next, the ALJ found that Plaintiff had the residual functional capacity (RFC) to perform a
full range of light work. 10 At step four the ALJ determined that Mr. Almy was capable of
performing his past relevant work as an electric motor repairer. 11 In the alternative at step five,
the ALJ applied the Medical-Vocational Guidelines 12 and found that based on Mr. Almy’s RFC
he was capable of performing other jobs that exist in significant numbers in the national
economy. 13 Therefore, in a decision dated August 9, 2011, the ALJ concluded that Mr. Almy
was not disabled.

7

See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (summarizing five step process).
Tr. 20.
9
Tr. 429, ALJ decision tr. 24.
10
Tr. 21.
11
Tr. 25.
12
20 C.F.R. pt. 404, subpt. P, app. 2.
13
Tr. 25.
8

2

STANDARD OF REVIEW
The Court reviews “the ALJ's decision only to determine whether the correct legal
standards were applied and whether the factual findings are supported by substantial evidence in
the record.” 14 “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” 15 It requires more than a scintilla, but less than a
preponderance.
Additionally, the ALJ is required to consider all of the evidence; however, the ALJ is not
required to discuss all the evidence. 16 In reviewing the ALJ’s decision the Court evaluates the
record as a whole, including that evidence before the ALJ that detracts from the weight of the
ALJ’s decision. 17 The Court, however, may neither “reweigh the evidence [n]or substitute [its]
judgment for the [ALJ’s].” 18 Where the evidence as a whole can support either the agency’s
decision or an award of benefits, the agency’s decision must be affirmed. 19 Further, the Court
“may not ‘displace the agenc[y’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.’” 20
ANALYSIS
In this appeal, Mr. Almy contends: (1) the ALJ erred in rejecting the opinions of his
treating and examining physicians; (2) the ALJ erred in failing to conduct a proper step four
analysis; and (3) the ALJ erred in his alternative step five finding by failing to meet his burden to
identify specific jobs consistent with Mr. Almy’s functional limitations.

14

Madrid v. Barnhart, 447 F.3d 788, 790 910th Cir. 2006).
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted).
16
Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2000).
17
Shepherd v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).
18
Lax, 489 F.3d at 1084 (citation omitted).
19
See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
20
Lax, 489 F.3d at 1084 (quoting Zoltanski, 372 F.3d at 1200).
15

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A. The ALJ’s Rejection of the Opinions of Plaintiff’s Treating and Examining
Physicians
Mr. Almy contends the ALJ erred by improperly rejecting the opinions of his treating
medical providers. 21 Specifically Plaintiff argues the ALJ improperly rejected the opinions of
Dr. Beresford, Dr. Gant, 22 Dr. Lampert, and Dr. Aslami.
In the 10th Circuit, “[t]he ALJ must give ‘controlling weight’ to the treating physician’s
opinion, provided that opinion ‘is well-supported…and is not inconsistent with other substantial
evidence.’” 23 In rejecting a treating physician’s opinion an ALJ must provide specific legitimate
reasons for doing so. 24 Additionally, 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. 25 However, “[i]n choosing to reject [a] treating physician’s
assessment, an ALJ may not make speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of contradictory medical evidence and not
due to his or her own credibility judgments, speculation or lay opinion.” 26
Dr. Beresford opined that Mr. Almy “could work for a total of four hours a day lifting a
maximum of 20 pounds and was limited to standing and sitting a total of two hours each.” 27 Dr.
Beresford also specifically noted that Mr. Almy’s limitations “will need to be reassessed after

21

Opening brief p. 11, docket no. 20.
Plaintiff erroneously refers to Dr. Gant as Dr. Grant throughout his memoranda. See ALJ’s decision tr. 24
(analyzing the opinion of Dr. Ralph Gant).
23
White v. Barnhart, 287 F.3d 903, 907 (10th Cir. 2001) (citing 20 C.F.R. § 404.1527(d)(2)).
24
See Miler v. Chater, 99 F.3d 972 (10th Cir. 1996); Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).
25
See e.g., Ruthledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000); Eggleston v. Bowen, 851 F.2d 1244, 1247
(10th Cir. 1988).
26
Langley v Barnhart, 373 F.3d 119, 1121 (noting that the 10th Circuit “held years ago that an ALJ’s assertion that
a family doctor naturally advocates his patient’s care is not a good reason to reject his opinion as a treating
physician.”) (quoting McGoffin v. Barnhart, 1248 F.3d 1252, 1253 (10th Cir. 2002)).
27
Tr. 23.
22

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THA.” 28 THA stands for Total Hip Arthroplasty or a total hip replacement. The ALJ discounted
Dr. Beresford’s opinion for two reasons: (1) Mr. Almy had two surgeries, including a total hip
replacement, after the date of Dr. Beresford’s opinion and (2) Dr. Beresford was not experienced
at translating a claimant’s physical limitation into a RFC.
The Court finds the ALJ’s decision to discount Dr. Beresford’s opinion is supported by
substantial evidence in the record. Contrary to Plaintiff’s argument, Dr. Beresford did not
specifically limit a reevaluation of his assessment to back surgeries. Rather, Dr. Beresford
explicitly noted a reassessment was necessary following a hip replacement. There is no
reassessment in the record following Plaintiff’s hip replacement and as noted by the ALJ, Mr.
Almy reported that his back pain was stable in April 2011 following surgery. 29 Because the ALJ
properly discounted Dr. Beresford’s opinion based on the hip replacement surgery the Court
need not address the ALJ’s second reason for discounting the opinion.
Dr. Gant opined that Plaintiff would be unable to engage in any type of work for at least
one year. 30 The ALJ gave little weight to Dr. Gant’s opinion because it was based on the
subjective complaints of Mr. Almy and evidence in the record undermined Mr. Almy’s
credibility. The ALJ also noted that Dr. Gant’s opinion was inconsistent with other medical
evidence in the record and testimony.
In similar fashion to discounting Dr. Beresford’s opinion, the Court finds the ALJ’s
decision to discount Dr. Gant’s opinion is supported by the record. The ALJ provided specific
examples of inconsistencies in Mr. Almy’s subjective complaints to different medical providers
that undermine his credibility. 31 Further, the ALJ noted the extremely elevated scores in Dr.

28

Tr. 425.
Tr. 23.
30
Tr. 24.
31
Tr. 24.
29

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Gant’s testing that provided a strong indication of an “over-elaboration of symptoms” 32 and led
Dr. Gant to not be able to even interpret the test results. Such specific facts provide a legitimate
reason for giving Dr. Gant’s opinion little weight. 33
Plaintiff next argues that the ALJ erred in rejecting the opinions of Dr. Lampert 34 and Dr.
Aslami because he failed to include any of their mental health diagnoses at step three or in the
RFC determination. 35 The Court disagrees. The ALJ specifically noted throughout his decision
the reasons why he rejected Plaintiff’s assertion of a mental health limitation. These included:
(1) Plaintiff’s own statement saying he was pursuing mental health treatment on the advice of an
attorney so he could succeed in his second application for disability benefits; 36 (2) a lack of
medical evidence documenting mental health treatment and complaints; 37 and (3) specific
instances where Plaintiff reported that he was not receiving any mental health treatment and was
doing well. 38 Finally, Plaintiff’s complaints of Dr. Lambert Egli’s diagnosis not being included
are of little weight because Dr. Egli’s diagnosis was provided two years before Plaintiff’s alleged
onset date of disability. 39 Moreover, a diagnosis alone does not establish a disability. 40
In similar fashion to his arguments about rejecting the opinions of Dr. Lampert and Dr. Egli,
Plaintiff also asserts the ALJ failed to include limitations contained in the opinions of Dr.
Johnsen and Dr. Nestripke. Dr. Johnsen opined that, despite Plaintiff’s “high degree of
overmagnification,” he had significant back disease which would limit his ability to bend
32

Tr. 582.
See Oldham v. Astrue, 509 F.3d 1254, 1257, 10th Cir. 2007) (finding the ALJ properly rejected opinions of
treating and examining medical providers that depended on the claimant’s subjective complaints because the
claimant had a “propensity to exaggerate her symptoms and manipulate test results”).
34
There is no record of treatment in the record from Dr. Lampert. Instead, it appears that Plaintiff is referring to Dr.
Lambert Egli.
35
Opening brief p. 15.
36
Tr. 24.
37
Tr. 22-24.
38
Tr. 24.
39
See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical opinions that
predate the allged onset of disability are of limited relevance.”).
40
See e.g., Bernal v. Bowen, 851 F.2d 297, 301 (10th Cir. 1988).
33

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repetitively, lift heavy objects, and do strenuous activity. 41 Plaintiff argues these limitations
were not included in the ALJ’s RFC determination. The Court rejects this argument because the
ALJ found Plaintiff could perform a full range of light exertional work. 42 The requirements for
light exertional work include the exact limitations Dr. Johnsen placed on Plaintiff. 43 For
example, light work does not require lifting heavy objects. Rather, it “involves lifting no more than
20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 44

Plaintiff also argues the ALJ erred in giving Dr. Nestripke’s opinion great weight while
failing to include mental health limitations in the RFC. As noted above, the ALJ provided
specific reasons for not finding any mental health limitations in the record as severe or limiting
upon Plaintiff’s basic mental activities. 45 Additionally, Dr. Nestripke opined that “with
psychotherapy and med[ication] management [Plaintiff] could expect a significant recovery” and
that his mental health status allowed him to be “able to complete part time work at least, if not
full time” work. 46 If an individual’s impairment can be controlled with treatment or medication,
then that individual is considered not disabled. 47
B. The ALJ’s Step Four Analysis
Plaintiff argues the ALJ failed to conduct a proper step four analysis because he did not
make findings regarding the specific physical and mental demands of Plaintiff’s past relevant
work and because he did not rely on the vocational expert testimony to determine if he could

41

Tr. 295.
Tr. 21.
43
“[T]o perform substantially all of the exertional requirements of most sedentary and light jobs, a person. . . .
would need to stoop only occasionally (from very little up to one-third of the time, depending on the particular job).”
SSR 83-14, 1983 WL 31254, at *2.
44
20 C.F.R. 404.1567(b).
45
Tr. 20.
46
Tr. 289.
47
See 20 C.F.R. § 404.1529(c)(3) (stating an ALJ must consider the effectiveness of treatment); see also Kelley v.
Chater, 62 F.3d 335, 338 (10th Cir. 1995) (evidence that impairment was well-controlled supported ALJ’s
conclusion that the claimant was not disabled).
42

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perform his past relevant work. 48 Plaintiff also appears to take issue once again with the ALJ’s
failure to appropriately address his alleged mental health impairments. The Court is not
persuaded by these arguments.
At step four of the sequential evaluation process, the ALJ must consider whether the
claimant’s “impairment or combination of impairments prevents him from performing his past
work.” 49 In his decision the ALJ explicitly stated that he compared “the claimant’s residual
functional capacity with the physical and mental demands of this [past relevant] work [and] finds
that the claimant is able to perform it as actually and generally performed.” 50 On appeal it is the
general practice in the Tenth Circuit “to take a lower tribunal at its word when it declares that it
has considered a matter.” 51 In Flaherty v. Astrue, 52 the Tenth Circuit applied this principle in
rejecting the plaintiff’s argument that at step four, the ALJ failed to explicitly consider all her
impairments, despite the ALJ stating he had done so. 53 The Court finds this case analogous and
finds no reason to depart from the general practice. Further, the ALJ’s discussion of the
evidence and his reasons for his findings demonstrate that the ALJ took into account Mr. Almy’s
RFC in considering the demands of his past work.
The Court is also not persuaded that the ALJ erred by not taking into account Mr. Almy’s
alleged mental limitations at step four. The Dictionary of Occupational Titles classifies
Plaintiff’s past relevant work—electric motor repairer—as a light exertional occupation. 54 As
noted previously, the Court finds the ALJ’s RFC determination is supported by substantial

48

Opening brief p. 16-17.
Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (quotation omitted); accord 20 C.F.R. § 404.1560(b).
50
Tr. 25.
51
Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).
52
515 F.3d 1067, 1071 (10th Cir. 2007).
53
Id.
54
DICOT 721.684-022.
49

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evidence in the record. Thus, there is no reason for the Court to remand this matter based upon
the ALJ’s step four determination. 55
C. The ALJ’s Step Five Finding
Plaintiff asserts the ALJ should not have relied on the Medical Vocational Guidelines or
Grids, 56 in his alternative step five analyses because Plaintiff’s non-exertional limitations, i.e. the
alleged mental limitations, should have been evaluated by a vocational expert. 57 The Court
agrees with Defendant’s position that this argument “simply rehashes Plaintiff’s arguments about
his residual functional capacity.” 58 As found previously, the Court finds the ALJ’s RFC
determination is supported by substantial evidence in the record. Thus, the Court finds that the
ALJ properly relied on the Grids as an alternative means to conclude that Plaintiff was not
disabled.
CONCLUSION
Based on the foregoing, the Court concludes the ALJ’s decision is supported by
substantial evidence in the record. Therefore, the Court AFFIRMS the decision of the
Commissioner.

DATED this 21 February 2014.

Brooke C. Wells
United States Magistrate Judge

55

See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (noting certain technical errors are minor enough not
to undermine confidence in the ALJ’s determination).
56
20 C.F.R. pt. 404, subpt. P, app. 2.
57
Opening brief p. 18.
58
Op p. 24.

9