Lefevre v. Colvin

Filing 19

MEMORANDUM DECISION and ORDER. IT IS HEREBY ORDERED that the Commissioners decision in this case is AFFIRMED. Signed by Magistrate Judge Paul M. Warner on 07/01/2014. (tls)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
JIMMY L. LEFEVRE,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 2:13-cv-602-PMW

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Magistrate Judge Paul M. Warner

Before the court is Jimmy L. LeFevre’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, and Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act, see id. §§ 1381-1383f. After careful
consideration of the written briefs and the complete record, the court has determined that oral
argument is not necessary in this case.
BACKGROUND
Plaintiff alleges disability due to various physical and mental impairments. In 2010,
Plaintiff applied for DIB and SSI, alleging disability beginning on July 24, 2007. 1 Plaintiff’s
application was denied initially and upon reconsideration. 2 On November 4, 2010, Plaintiff

1

See docket no. 10, Administrative Record (“Tr.

2

See Tr. 81-84.

”) 142-152.

requested a hearing before an Administrative Law Judge (“ALJ”), 3 and that hearing was held on
April 17, 2012. 4 On May 11, 2012, the ALJ issued a written decision denying Plaintiff’s claim
for DIB and SSI. 5 On June 13, 2013, the Appeals Council denied Plaintiff’s request for review, 6
making the ALJ’s decision the Commissioner’s final decision for purposes of judicial review.
See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981, 416.1481.
On July 1, 2013, Plaintiff filed his complaint in this case, which was assigned to District
Judge David Nuffer. 7 On July 10, 2013, Judge Nuffer referred the case to Magistrate Judge Paul
M. Warner under 28 U.S.C. § 636(b)(1)(B). 8 The Commissioner filed her answer and the
Administrative Record on September 3, 2013. 9
On October 3, 2013, both parties consented to a United States Magistrate Judge
conducting all proceedings in the case, including entry of final judgment, with appeal to the
United States Court of Appeals for the Tenth Circuit. 10 Consequently, the case was reassigned to

3

See Tr. 101-102.

4

See Tr. 37-80.

5

See Tr. 18-36.

6

See Tr. 1-8.

7

See docket no. 3.

8

See docket no. 7.

9

See docket nos. 8, 10.

10

See docket nos. 14-15.
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Magistrate Judge Warner pursuant to 28 U.S.C. § 636(c) and rule 73 of the Federal Rules of Civil
Procedure. 11 See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
Plaintiff filed his opening brief on October 4, 2013. 12 The Commissioner filed her
answer brief on November 8, 2013. 13 Plaintiff filed his reply brief on November 18, 2013. 14
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).
11

See id.

12

See docket no. 16.

13

See docket no. 17.

14

See docket no. 18.
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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), 416.920(a)(4)(i)-(v); see also Williams v.
Bowen, 844 F.2d 748, 750-51 (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), 416.920(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.
§§ 404.1520(a)(4)(i)-(ii), 416.920(a)(4)(i)-(ii).
“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), 416.920(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), 416.920(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

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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), 416.920(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), 416.920(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,” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is disabled and entitled to benefits.
ANALYSIS
In support of his claim that the Commissioner’s decision should be reversed, Plaintiff
argues that the ALJ erred: (1) in his evaluation of the opinions of Plaintiff’s treating physician,
Dr. Craig McCune (“Dr. McCune”); (2) by concluding that Plaintiff’s impairments did not meet
or equal section 1.04C of Appendix 1 of the relevant regulations (individually, a “listing” and
collectively, the “listings”), see 20 C.F.R. § 404, Subpart P, Appendix 1, listing 1.04C; and (3) in
his assessment of Plaintiff’s RFC. The court will address those arguments in turn.
I. Dr. McCune
Plaintiff first argues that the ALJ erred his evaluation of the opinions of Dr. McCune.
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
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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 and 416.927]. 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), 416.927(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,

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e.g., Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000); Eggleston v. Bowen, 851 F.2d 1244,
1247 (10th Cir. 1988).
In this case, the ALJ relied upon proper factors to support the conclusion that Dr.
McCune’s opinions were entitled to little weight. The ALJ properly relied upon the fact that Dr.
McCune’s opinions were not supported by and were inconsistent with the objective medical
evidence in the record. See 20 C.F.R. §§ 404.1527(c)(3)-(4), 416.927(c)(3)-(4). The ALJ also
properly relied upon the fact that Dr. McCune’s opinions were not supported by any treatment
notes. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). Further, the ALJ properly relied upon
the fact that Dr. McCune’s opinions were based to an inappropriate degree on Plaintiff’s
subjective complaints. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3); see also White v.
Barnhart, 287 F.3d 903, 907 (10th Cir. 2002) (concluding that the ALJ reasonably discounted the
claimant’s treating physician’s opinions because they rested heavily on the claimant’s subjective
complaints as opposed to objective medical evidence). The ALJ also properly relied upon the
fact that Dr. McCune’s opinions went to issues reserved to the Commissioner. See 20 C.F.R. §§
404.1527(d)(1)-(3), 416.927(d)(1)-(3). Finally, the ALJ properly relied upon the fact that Dr.
McCune’s notes showed that Plaintiff’s lower-extremity pain was in his left leg, while the record
demonstrated that his complaints had been primarily about his right leg. See 20 C.F.R. §§
404.1527(c)(4), 416.927(c)(4).
Plaintiff specifically takes issue with two of the reasons the ALJ cited for according Dr.
McCune’s opinions little weight. First, Plaintiff argues that Dr. McCune’s opinions are
consistent with the medical record. Second, Plaintiff argues that the inconsistency noted above
concerning Plaintiff’s lower-extremity pain does not accurately reflect the record. Those
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arguments fail because, in the court’s view, they are nothing more than an attempt to reargue the
weight of the evidence before the ALJ, which is a futile tactic 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)).
Furthermore, even if the court were to agree with Plaintiff’s two arguments, the court
would nevertheless conclude that the other reasons cited by the ALJ are sufficient to uphold his
determination that Dr. McCune’s opinions were entitled to little weight. Put another way,
Plaintiff has failed to demonstrate reversible error. See Shinseki v. Sanders, 556 U.S. 396, 409
(2009) (“[T]he burden of showing that an error is harmful normally falls upon the party attacking
the agency’s determination.”); see also Fischer-Ross v. Barnhart, 431 F.3d 729, 733-34 (10th Cir.
2005) (recognizing applicability of harmless error analysis in Social Security context).
For these reasons, the court concludes that the ALJ did not err in his evaluation of the
opinions of Dr. McCune.
II. Listing 1.04C
Plaintiff argues that the ALJ erred by concluding that Plaintiff’s impairments did not meet
or equal listing 1.04C. 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
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C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At step three, a claimant has the “burden to
present evidence establishing [his] impairments meet or equal listed impairments.” FischerRoss, 431 F.3d at 733. 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, 416.925.
In this case, it is undisputed that the ALJ failed to specifically discuss listing 1.04C in his
decision. That arguably was an error. See, e.g., Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir.
1996). However,
[a] step three error, such as the one in this case, does not
automatically require remand. Instead, [the court] must consider
whether “confirmed or unchallenged findings made elsewhere in
the ALJ’s decision confirm the step three determination under
review.” If such findings “conclusively preclude [c]laimant’s
qualification under the listings at step three” such that “no
reasonable factfinder could conclude otherwise,” then any step
three error is harmless. If, however, there are no findings that
“conclusively negate the possibility” that a claimant can meet a
relevant listing, [the court] must remand to the ALJ for further
findings . . . .
Murdock v. Astrue, 458 Fed. App’x 702, 703-04 (10th Cir. 2012) (quoting Fischer-Ross, 431 F.3d
at 734-35).
Listing 1.04C requires a claimant to demonstrate “[l]umbar spinal stenosis resulting in
pseudoclaudication, established by findings on appropriate medically acceptable imaging,
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manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate
effectively.” 20 C.F.R. § 404, Subpart P, Appendix 1, listing 1.04C. As noted above, a claimant
must demonstrate that his impairments meet all of those criteria. See Sullivan, 493 U.S. 521 at
530. As such, Plaintiff was required to demonstrate, among other things, that his impairments
resulted in an inability to ambulate effectively. See 20 C.F.R. § 404, Subpart P, Appendix 1,
listing 1.04C; see also 20 C.F.R. § 404, Subpart P, Appendix 1, listing 1.00B.2.b(2).
On appeal, the only evidence Plaintiff points to concerning his inability to ambulate
effectively are the opinions of Dr. McCune, but the court has already concluded that the ALJ did
not err by according Dr. McCune’s opinions little weight. Furthermore, the ALJ found that
Plaintiff had the ability to perform the full range of light work, which includes the ability to stand
or walk approximately six hours a day. See Social Security Ruling 83-10; see also 20 C.F.R. §§
404.1567(b), 416.967(b). That finding is consistent with the ability to ambulate effectively, see
20 C.F.R. § 404, Subpart P, Appendix 1, listing 1.00B.2.b(2), and because Plaintiff has not
challenged that finding, he has waived his right to do so. See, e.g., Madron v. Astrue, 311 Fed.
App’x 170, 174 n.4 (10th Cir. 2009) (noting that a party’s failure to raise an issue in an opening
brief results in waiver of that issue); Argyle v. Astrue, No. 2:10-cv-947-DBP, 2012 U.S. Dist.
LEXIS 138531, at *17-18 (D. Utah Sept. 25, 2012).
For these reasons, the court concludes that any error the ALJ committed at step three with
respect to listing 1.04C was rendered harmless by another unchallenged finding contained in the
ALJ’s decision. See Fischer-Ross, 431 F.3d at 734-35; see also Murdock, 458 Fed. App’x at
703-04. Therefore, the court concludes that Plaintiff’s argument on this point fails.

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III. RFC
In this case, after assessing Plaintiff’s RFC, the ALJ concluded at step four that Plaintiff
could return to his past relevant work. In the alternative, the ALJ concluded at step five that
Plaintiff had the RFC to perform other jobs in significant numbers in the national economy.
Plaintiff argues that the ALJ erred by failing to consider Plaintiff’s non-severe mental
impairments when assessing Plaintiff’s RFC. Pursuant to Social Security Ruling (“SSR”) 96-8p,
when assessing a claimant’s RFC, an ALJ must consider all of the claimant’s impairments,
regardless of whether they are considered severe or non-severe. See SSR 96-8p.
It is clear that the ALJ considered Plaintiff’s mental impairments when he determined that
they were mild in nature and then concluded that they were non-severe. However, it is likewise
clear that the ALJ did not include any specific limitations for Plaintiff’s mental impairments in
the RFC assessment. The court concludes that the ALJ’s failure in that regard constitutes
harmless error. See Shinseki, 556 U.S. at 409; Fischer-Ross, 431 F.3d at 733-34.
In his opening brief, Plaintiff makes the conclusory argument that even mild mental
impairments would preclude him from perform his past relevant work. However, Plaintiff
presents no arguments concerning how mild mental impairments might preclude him from
performing the other jobs identified by the ALJ. By failing to raise any arguments on that point
in his opening brief, Plaintiff has waived them. See, e.g., Madron, 311 Fed. App’x at 174 n.4;
Argyle, 2012 U.S. Dist. LEXIS 138531, at *17-18.
As noted above, after concluding that Plaintiff could return to his past relevant work at
step four, the ALJ reached the alternative conclusion at step five that Plaintiff had the RFC to
perform other jobs in significant numbers in the national economy. Because Plaintiff has failed
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to demonstrate how the ALJ’s error to include any limitations for Plaintiff’s mental impairments
in the RFC assessment would affect that alternative conclusion, the court has determined that any
error committed by the ALJ at step four was harmless. See Murrell v. Shalala, 43 F.3d 1388,
1389-90 (10th Cir. 1994) (affirming step-five finding despite alleged errors at step four); see also
Best-Willie v. Colvin, 514 Fed. App’x 728, 738 (10th Cir. 2013) (unpublished). For that reason,
the court concludes that Plaintiff’s argument on this issue fails.
CONCLUSION AND ORDER
Based on the foregoing, the court concludes that all of Plaintiff’s arguments fail.
Accordingly, IT IS HEREBY ORDERED that the Commissioner’s decision in this case is
AFFIRMED.
IT IS SO ORDERED.
DATED this 1st day of July, 2014.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

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