Kendall v. Colvin

Filing 13

MEMORANDUM DECISION and ORDER on Administrative Appeal. Signed by Judge Ted Stewart on 01/13/2014. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ANN-MEGAN KENDALL,

MEMORANDUM DECISION AND
ORDER ON ADMINISTRATIVE APPEAL

Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner
of Social Security,

Case No. 2:13-CV-259 TS
District Judge Ted Stewart

Defendant.

This matter comes before the Court on Plaintiff Ann-Megan Kendall’s appeal from the
decision of the Social Security Administration denying her application for disability insurance
benefits and supplemental social security income. Having considered the arguments of the
parties, reviewed the record and relevant case law, and being otherwise fully informed, the Court
will affirm the administrative ruling.
I. STANDARD OF REVIEW
This Court’s review of the administrative law judge’s (“ALJ”) decision is limited to
determining whether its findings are supported by substantial evidence and whether the correct
legal standards were applied.1 Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”2 The ALJ is required to
consider all of the evidence, although he or she is not required to discuss all of the evidence.3 If
supported by substantial evidence, the Commissioner’s findings are conclusive and must be

1

Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000).

2

Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).

3

Id.
1

affirmed.4 The Court should evaluate the record as a whole, including that evidence before the
ALJ that detracts from the weight of the ALJ’s decision.5 However, the reviewing court should
not re-weigh the evidence or substitute its judgment for that of the ALJ’s.6
II. BACKGROUND
A.

PROCEDURAL HISTORY
In November 2009, Plaintiff filed an application for disability insurance benefits and

supplemental security income, alleging disability beginning on July 15, 2005.7 The claim was
denied initially on July 15, 2010,8 and upon reconsideration on October 22, 2010.9 Plaintiff then
requested a hearing before an ALJ, which was held on November 7, 2011.10 The ALJ issued a
decision on November 28, 2011, finding that Plaintiff was not disabled.11 The Appeals Council
denied Plaintiff’s request for review on March 4, 2013.12 Plaintiff then filed the instant action.
B.

MEDICAL HISTORY
Plaintiff claims disability beginning in 2005 as a result of several impairments, including

fibromyalgia, thyroid disease, anxiety, and depression.13 Plaintiff sought treatment for instability
in her ankles in 2005 and 2006, and underwent surgery on her ankles during that time. The

4

Richardson v. Perales, 402 U.S. 389, 402 (1981).

5

Shepard v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).

6

Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).

7

R. at 120–34.

8

Id. at 63–64.

9

Id. at 65–66.

10

Id. at 35–62.

11

Id. at 11–34.

12

Id. at 1–5.

13

Id. at 166.

2

record contains no medical records from 2007. The only records from 2008 relate to two blood
draws.
In February 2009, Plaintiff underwent a procedure called quantitative
electroencephalographic topographic brain mapping at the Scottsdale Neurofeedback Institute &
Attention Deficit Disorder Clinic.14 This analysis showed a possible traumatic brain injury in the
“mild range of severity” and a possible learning disability in the “severe range of severity.”15
On October 9, 2009, John W. Whitaker, D.O., provided a letter, but no supporting
documents, stating that Plaintiff had been diagnosed with chronic fatigue syndrome,
fibromyalgia, and autoimmune thyroiditis.16 Dr. Whitaker stated that Plaintiff was also being
treated for depression and anxiety without adequate relief.17 Dr. Whitaker noted that he had seen
Plaintiff three times since July 2009, but Plaintiff had made only “modest and intermittent
improvements.”18 Dr. Whitaker recommended that Plaintiff “not attempt to work” and that his
recommendation “should hold for the next 12 months.”19
On March 8, 2010, Plaintiff was seen by Dr. Liana Au for her annual exam.20 Plaintiff
was in no acute distress and rated her pain as a one out of ten.21 Plaintiff was diagnosed with
asthma.22

14

Id. at 251–54.

15

Id. at 253–54.

16

Id. at 542.

17

Id.

18

Id.

19

Id.

20

Id. at 271.

21

Id. at 271–72.

22

Id. at 272.

3

Plaintiff was seen at the Merrill Gappmayer Family Medicine Center on March 25, 2010,
for possible bronchitis.23 Plaintiff was diagnosed with acute bronchitis and was prescribed overthe-counter medications.24
On April 28, 2010, Plaintiff was seen by Dr. Au for depression.25 Plaintiff stated that she
could go a week or two feeling well, but would then get very depressed.26 She indicated that
chronic pain was a trigger for her depression, and that she had been depressed for fifteen years
and in pain for the last five years.27 Plaintiff had been prescribed various medications with no
significant improvement, but rather slight worsening.28 Plaintiff was assessed with bipolar
disorder, fibromyalgia, hypothyroidism, and allergic rhinitis.29
On May 1, 2010, Justin R. Johnsen, M.D., conducted a consultative examination of
Plaintiff.30 During the exam, Plaintiff noted her pain was a six out of ten, but that it was usually
an eight out of ten.31 Plaintiff stated that she could sit for an hour, stand for ten to fifteen
minutes, walk half a block, and lift five pounds.32 Upon examination, Dr. Johnsen found that
Plaintiff was in no acute distress.33 Dr. Johnsen noted that Plaintiff had a symmetric, steady
gate; had no palpable muscle spasms; her muscle bulk and tone were within normal limits; and

23

Id. at 274.

24

Id. at 275.

25

Id. at 276.

26

Id.

27

Id.

28

Id.

29

Id. at 278.

30

Id. at 256–60.

31

Id. at 256.

32

Id.

33

Id. at 258.

4

her muscle strength was a five out of five in all areas.34 Dr. Johnsen found that Plaintiff could
lift, carry, and handle light objects; squat and rise from that position with ease; rise from a sitting
position without assistance; had no difficulty getting up and down from the exam table; could
walk on heels and toes; and her range of motion was all within normal limits.35 Dr. Johnsen
found that Plaintiff had fibromyalgia and thyroid disease.36 While Dr. Johnsen believed that
Plaintiff’s fibromyalgia would limit Plaintiff’s ability to perform strenuous activity, neither that
condition nor her thyroid disease would further limit her ability to work.37
On May 12, 2010, Plaintiff was diagnosed with pain, fatigue, depression, and arthritis.38
On May 21, 2010, Plaintiff was seen by Dr. Au.39 Plaintiff reported her pain as a three out of
ten.40 Plaintiff complained of depressed mood, loss of interest, diminished sense of pleasure,
significant fatigue, feelings of guilt and worthlessness, diminished concentration and
decisiveness, somatic symptoms including pain, feelings of helplessness or hopelessness,
restlessness, feeling withdrawn, irritability, and poor social functioning.41 Dr. Au diagnosed
Plaintiff with bipolar disorder, fibromyalgia, and fatigue.42
On May 25, 2010, Plaintiff was evaluated by Tanya Colledge, Psy.D., for Disability
Determination Services.43 Dr. Colledge diagnosed Plaintiff with major depressive disorder,
34

Id. at 259.

35

Id.

36

Id. at 260.

37

Id.

38

Id. at 292.

39

Id. at 279–81.

40

Id. at 279.

41

Id.

42

Id. at 280.

43

Id. at 283–88.
5

anxiety disorder, borderline personality disorder, and fibromyalgia.44 Dr. Colledge opined that
Plaintiff “is capable of leading an independent life with minimal supervision.”45 Dr. Colledge
stated that Plaintiff could take care of her basic needs and was capable of preparing meals for
herself and completing basic household chores, though she often did not do these things for
herself and instead relied upon her family.46 Dr. Colledge believed that Plaintiff was capable of
basic work tasks and “appears to have the skills and abilities necessary to function in a traditional
competitive work environment.”47 Dr. Colledge noted that Plaintiff “presents as someone who
prefers to stay sick rather than seek treatment that may help her get better. She uses the idea that
her mother and chronic fatigue syndrome as a mechanism to justify her situation rather than look
at ways to improve her situation.”48
Plaintiff had a follow-up visit with Dr. Au on July 16, 2010.49 Plaintiff stated that she
was in pain “all over,” but noted that her pain was a three out of ten.50 Plaintiff was diagnosed
with fibromyalgia and depression.51 Dr. Au “strongly reinforced” the importance of exercise in
improving Plaintiff’s condition, instructing her to start exercising for fifteen minutes every other
day, working her way up to thirty minutes.52

44

Id. at 287.

45

Id.

46

Id.

47

Id.

48

Id. at 288.

49

Id. at 338–40.

50

Id. at 338.

51

Id. at 339.

52

Id.

6

Plaintiff returned to Dr. Au on August 30, 2010.53 Plaintiff stated that she “hurts all
over,” but indicated her mood had improved and that she had started exercising.54 Dr. Au
prescribed Lyrica in addition to Plaintiff’s other medications.55
Two state agency physicians, David Peterson, M.D., and Rox Burkett, M.D., concluded
that Plaintiff could perform a full range of light work.56 Joan Zone, Ph.D., completed a
Psychiatric Review Technique form wherein she found that Plaintiff had no restriction of
activities of daily living; mild difficulties in maintaining social functioning and in maintaining
concentration, persistence, or pace; and no episodes of decompensation.57
C.

HEARING TESTIMONY
At the hearing, the ALJ received testimony from Plaintiff and a vocational expert.

Plaintiff claimed disability based on anxiety, depression, and fibromyalgia.58 Plaintiff described
her symptoms as being very painful.59 She stated that it felt like she had the flu every day.60
Plaintiff stated that she could walk for about ten to fifteen minutes before she had to take
a rest for a few minutes, then she could walk for another ten to fifteen minutes.61 Plaintiff stated
that she spends most of her day lying down and sleeping.62 Plaintiff stated that it was difficult to

53

Id. at 341–43.

54

Id. at 341.

55

Id. at 342.

56

Id. at 313–20, 344.

57

Id. at 332.

58

Id. at 40.

59

Id. at 41.

60

Id.

61

Id. at 41–42.

62

Id. at 43.

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do certain things, like take care of her dog or sit through a movie, because of her pain.63 Plaintiff
did state, however, that she is able to ride to Henderson, Nevada, once a month to see her doctor,
though she and her mother have to stop a number of times along the way.64
Plaintiff further testified that pain and fatigue prevented her from helping with household
chores, such as cleaning and doing laundry.65 Plaintiff stated that she is able to check her email
account on a daily basis, though she cannot type for more than five minutes.66 Plaintiff further
stated that she is sensitive to strong smells, such as heavy soaps and perfumes.67
In response to the ALJ’s hypothetical question, the vocational expert opined that there
would be jobs in the national economy that the hypothetical person could perform, including
account clerk, telephone quotation clerk, and final assembler.
D.

THE ALJ’S DECISION
The ALJ followed the five-step sequential evaluation process in deciding Plaintiff’s

claim. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since July 15, 2005, the alleged onset date.68 At step two, the ALJ found that Plaintiff
suffered from the following severe impairments: fibromyalgia; joint instability in the ankles
bilaterally, status-post multiple surgeries; obesity; asthma; Major Depressive Disorder; Anxiety
Disorder; and Borderline Personality Disorder.69 At step three, the ALJ found that Plaintiff did

63

Id. at 45–46.

64

Id. at 46–47.

65

Id. at 48.

66

Id. at 49.

67

Id. at 50.

68

Id. at 16.

69

Id.

8

not have an impairment or combination of impairments that met or equaled a listed impairment.70
At step four, the ALJ determined that Plaintiff could perform her past relevant work from July
15, 2005, through February 26, 2009.71 At step five, the ALJ found that there were jobs that
exist in significant numbers in the national economy that Plaintiff could perform and, therefore,
she was not disabled.72
III. DISCUSSION
Plaintiff raises the following issues in her brief: (1) the ALJ failed to properly evaluate
the opinion of Plaintiff’s treating physician; (2) the ALJ improperly evaluated Plaintiff’s
credibility; (3) the ALJ failed to properly determine Plaintiff’s residual functional capacity; and
(4) the ALJ did not meet his burden of proof at step five of the sequential evaluation.
A.

TREATING PHYSICIAN
Plaintiff first argues that the ALJ erred in his evaluation of Dr. Whitaker’s opinion. The

ALJ, in reviewing the opinions of treating sources, must engage in a sequential analysis.73 First,
the ALJ must consider whether the opinion is well-supported by medically acceptable clinical
and laboratory techniques.74 If the ALJ finds that the opinion is well-supported, then he must
confirm that the opinion is consistent with other substantial evidence in the record.75 If these
conditions are not met, the treating physician’s opinion is not entitled to controlling weight.76

70

Id. at 22.

71

Id. at 24–29.

72

Id. at 29–30.

73

Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003).

74

Id.

75

Id.

76

Id.

9

This does not end the analysis, however. Even if a physician’s opinion is not entitled to
controlling weight, that opinion must still be evaluated using certain factors.77 Those factors
include:
(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.78
After considering these factors, the ALJ must give good reasons for the weight he ultimately
assigns the opinion.79 If the ALJ rejects the opinion completely, he must give specific, legitimate
reasons for doing so.80
As set forth above, Dr. Whitaker recommended that Plaintiff “not attempt to work” and
that his recommendation “should hold for the next 12 months.”81 The ALJ did not give Dr.
Whitaker’s opinion controlling weight, but rather gave it little weight.82 The ALJ gave Dr.
Whitaker’s opinion little weight because it was
conclusory, not supported in and is out of proportion with the objective medical
record, is not supported with any of his treatment notes, is based to an
inappropriate degree on the claimant’s subjective complaints, is beyond his
expertise regarding vocational issues, and is on issues reserved to the
Commissioner: whether or not the claimant is disabled.83

77

Id.

78

Id. at 1301 (quoting Drapeau v. Massanri, 255 F.3d 1211, 1213 (10th Cir. 2001)).

79

Id.

80

Id.

81

R. at 542.

82

Id. at 28.

83

Id.

10

Plaintiff argues that the ALJ failed to follow the required process in evaluating Dr.
Whitaker’s opinion and failed to weigh that opinion in accordance with Tenth Circuit case law.
The Court disagrees. First, the ALJ must determine whether the opinion is well-supported and
consistent with other substantial evidence. The ALJ found that Dr. Whitaker’s opinion was not
supported and was inconsistent with the medical record. This conclusion is supported by
substantial evidence. Therefore, the ALJ was not required to give Dr. Whitaker’s opinion
controlling weight.
Even if not given controlling weight, the ALJ must evaluate the opinion using the abovelisted factors. Though the ALJ did not discuss all of these factors, it is clear that the ALJ
evaluated Dr. Whitaker’s opinion using these factors. In so doing, the ALJ provided specific,
legitimate reasons for giving little weight to that opinion. Specifically, the ALJ found that Dr.
Whitaker’s opinion was conclusory, was not supported by the record, was not supported by Dr.
Whitaker’s treatment notes, was based to a large degree on Plaintiff’s subjective complaints,
went beyond his expertise, and concerned issues that were reserved to the Commissioner. These
are all good reasons, supported by substantial evidence, that allowed the ALJ to give Dr.
Whitaker’s opinion little weight. Therefore, the Court finds no error in the ALJ’s treatment of
Dr. Whitaker’s opinion.
B.

CREDIBILITY DETERMINATION
Plaintiff next contends that the ALJ erred in his credibility determination. Social Security

Ruling 96-7p sets out relevant factors an ALJ should consider in determining credibility. These
include:
(1) the individual’s daily activities; (2) the location, duration, frequency, and
intensity of the individual’s pain or other symptoms; (3) factors that precipitate
and aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects
of any medication the individual takes or has taken to alleviate pain or other

11

symptoms; (5) treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms; (6) any measures other than
treatment the individual uses or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping
on a board); and (7) any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.84
In determining credibility, the ALJ must consider the entire case record.85 However, the
Tenth Circuit “does not require a formalistic factor-by-factor recitation of the evidence . . . [s]o
long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant’s
credibility . . . .”86 An ALJ’s “credibility determinations are peculiarly the province of the finder
of fact, and [the reviewing court] will not upset such determinations when supported by
substantial evidence.”87
The ALJ found that Plaintiff’s statements concerning the intensity, persistence, and
limiting effects of her symptoms were not credible.88 In support of this conclusion, the ALJ
relied on evidence related to Plaintiff’s general activity level. For example, the ALJ pointed out
that Plaintiff traveled approximately 400 miles every month to receive treatment.89 The record
also reflected that Plaintiff occasionally attended church services.90 In addition, Dr. Colledge
opined that Plaintiff was capable of doing much more for herself, but was enabled by her
family.91

84

SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996).

85

Id.

86

Qualls, 206 F.3d at 1372.

87

Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995).

88

R. at 27.

89

Id. at 28.

90

There is a dispute in the record as to how often Plaintiff attended church services, but this
dispute is irrelevant to the Court’s conclusion.

91

Id.

12

The ALJ also noted that Plaintiff’s condition was being treated with relatively
conservative measures, such as non-prescription pain medications, rest, and exercise. This
indicated “a less-severe condition than she alleged.”92 The ALJ also noted that Plaintiff gave
inconsistent statements to different treatment providers concerning her pain levels around the
same time period. The ALJ further noted that Plaintiff failed to follow through with prescribed
treatment and that this failure negatively affected her credibility.93 The ALJ found “that with
appropriate treatment and medication and the proper work environment, the claimant’s pain,
symptoms, and precipitating and aggravating factors can be controlled so as to allow her to
perform significant work activity.”94
Having reviewed the evidence, the Court finds that the ALJ appropriately considered the
above-listed factors and that his determination concerning Plaintiff’s credibility is supported by
substantial evidence. While Plaintiff asserts that it is insufficient for the ALJ to merely point to
occasional, symptom-free periods, the ALJ did much more than this. The ALJ provided detailed
reasons, supported by the evidence, as to why he did not believe that Plaintiff’s symptoms were
as limiting as she suggested. Therefore, the Court cannot find that the ALJ erred in his
credibility determination.
C.

RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT
Plaintiff next argues that the ALJ failed to properly determine Plaintiff’s residual

functional capacity. The ALJ found that from December 31, 2006, through February 26, 2009,
Plaintiff had the residual functional capacity for a full range of light exertion.95 The ALJ further

92

Id.

93

Id.

94

Id.

95

Id.

13

found that since February 27, 2009, Plaintiff had the residual functional capacity to perform
sedentary work, with certain exceptions.96
Plaintiff argues that the ALJ failed to comply with the requirements of Social Security
Ruling 96-8p. Social Security Ruling 96-8p states that “[t]he RFC assessment must include a
narrative discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations).”97 The ALJ “must also explain how any material inconsistencies or ambiguities in
the evidence in the case record were considered and resolved.”98
Plaintiff argues that the ALJ’s RFC analysis does not meet this standard. Having
thoroughly reviewed the ALJ’s decision, the Court disagrees. The ALJ clearly sets out his RFC
assessment and then discusses the evidence that supports that assessment, specifically discussing
the documentary evidence, the opinion evidence, and conducting a credibility assessment. While
less than ideal, the Court finds no error in how the ALJ approached the RFC determination.
Plaintiff further argues that the ALJ’s RFC analysis is not supported by substantial
evidence. However, Plaintiff fails to point to a specific objection to the RFC determination.
Without more, the Court cannot effectively review Plaintiff’s argument.
D.

STEP FIVE
Plaintiff next argues that the ALJ erred at step five of the sequential evaluation process.

As stated, the ALJ found that, since February 27, 2009, Plaintiff had the residual functional
capacity to perform sedentary work, with certain exceptions. Based upon this residual functional
capacity assessment, the ALJ found that Plaintiff was unable to perform any past relevant work
96

Id.

97

SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996).

98

Id.

14

since February 27, 2009, but that Plaintiff was able to perform other work in the national
economy.
The Tenth Circuit has held that “the ALJ must investigate and elicit a reasonable
explanation for any conflict between the Dictionary [of Occupational Titles] and expert
testimony before the ALJ may rely on the expert’s testimony as substantial evidence to support a
determination of nondisability.”99 Plaintiff argues that the ALJ erred at step five by failing to
resolve an apparent conflict between the mental limitations in the ALJ’s residual functional
capacity assessment and the requirements of two of the positions (account clerk and telephone
quotation clerk) identified by the vocational expert. Plaintiff further argues that she would not be
able to perform the third job identified by the vocational expert (final assembler) because of the
ALJ’s functional capacity limitations regarding exposure to airborne irritants as well as the
limitation of no fast-paced work.
The Court need not resolve Plaintiff’s arguments concerning the clerk positions because,
even accepting Plaintiff’s argument, she would still be able to perform work as a final
assembler.100 Plaintiff asserts that she would be unable to perform the job as final assembler
because of the ALJ’s limitation regarding exposure to airborne irritants and the limitation of no
fast-paced work. Plaintiff cites to the Dictionary of Occupational Titles (“DOT”) and the
Selected Characteristics of Occupations (“SCO”). However, neither document supports
Plaintiff’s position that she would be unable to perform work as a final assembler. Neither the

99

Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999); see also SSR 00-4p, 2000 WL
1898704, at *2 (Dec. 4, 2000) (requiring ALJ to resolve actual and apparent conflicts between
vocational expert testimony and DOT).

100

Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009) (“Even assuming without deciding
that he is unable to work as a sales attendant or office helper, there is no colorable dispute that
substantial record evidence supports the ALJ’s conclusion that he can work as a rental clerk.”).

15

DOT nor the SCO includes a limit on exposure to airborne irritants or fast-paced work.
Therefore, the Court must reject this argument.
IV. CONCLUSION
Having made a thorough review of the entire record, the Court finds that the ALJ’s
evaluation and ruling is supported by substantial evidence. Therefore, the Commissioner’s
findings must be affirmed. Further, the Court finds that the ALJ applied the correct legal
standard in determining that Plaintiff is not disabled.
For the reasons just stated, the Court hereby AFFIRMS the decision below. The Clerk of
the Court is directed to close this case forthwith.
Dated this 13th day of January, 2014.
BY THE COURT:

Ted Stewart
United States District Judge

16