Sanchez v. Colvin

Filing 30

MEMORANDUM DECISION AND ORDER - Mr. Sanchez's Complaint is dismissed and the Commissioner's decision to deny his application for Social Security benefits is affirmed. Signed by Judge David Sam on 12/10/14. (ss)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
**********************************************************
JAMIE J. SANCHEZ,

)

Plaintiff,

Case No.

2:13CV00912 DS

)

vs.

)

MEMORANDUM DECISION
AND ORDER

CAROLYN W. COLVIN, ACTING )
COMMISSIONER SOCIAL
SECURITY ADMINISTRATION, )
Defendant.

)

**********************************************************
I. INTRODUCTION
Plaintiff Jamie J. Sanchez applied for Social Security benefits alleging a disability
beginning on March 5, 2009. His application was denied initially and on reconsideration.
After an administrative hearing, an administrative law judge (“ALJ”) concluded at step four
of the five-part sequential evaluation process1, that Plaintiff was unable to perform any past
relevant work. At step five, the ALJ found that Mr. Sanchez was not disabled for purposes
of the Social Security Act because with his residual functional capacity, age, education,
and work experience, he could perform other jobs existing in significant numbers in the
national economy. Plaintiff’s request for review was denied by the Appeals Council.
Mr. Sanchez now seeks judicial review of the decision of the Commissioner of
Social Security denying his claim for benefits. He contends that the ALJ erred in that: (1)

See 20 C.F.R. § 416.920. See also Williams v. Bowen, 844 F.2d 748, 750-52 (10th
Cir. 1988)
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she did not formulate a proper RFC and, therefore, her analysis is not supported by
substantial evidence; and (2) she improperly evaluated his credibility.
II. STANDARD OF REVIEW
The Court reviews the ALJ’s decision only to determine if the factual findings are
supported by substantial evidence and if he applied the correct legal standards. Goatcher
v. United States Dep’t of Health & Human Servs., 52 F.3d 288, 289 (10th Cir. 1995).
Substantial evidence “means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotation and citation omitted). The Court may not re-weigh the evidence or substitute
its judgment for that of the Commissioner. Kelley v. Chater, 62 F.3d 335, 337 (10th Cir.
1995).
III. DISCUSSION
A. Residual Functional Capacity - Evaluation of Medical Opinion Evidence
Mr. Sanchez urges that the ALJ’s assessment of his RFC is not supported by
substantial evidence because the ALJ erred in her evaluation of the medical source
opinions.
“In determining a claimant’s physical abilities, the ALJ should ... assess the nature
and extent of the claimant’s physical limitations and then determine the claimant’s residual
functional capacity for work or a regular and continuing basis.” Winfrey v. Chater, 92 F.3d
1017, 1023 (10th Cir. 1996) (brackets and internal quotation marks omitted). This involves
evaluation of the claimant’s “impairment(s), and any related symptoms ... [that] may cause
physical and mental limitations that affect what [the claimant] can do in a work setting.” 20

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C.F.R. § 404.1545(a)(1).

It is the duty of the ALJ to give consideration to all the medical

opinions in the record. See 20 C.F.R. §§ 404.1527(c), 416.927(c). “[The weight given
each opinion will vary according to the relationship between the disability claimant and the
medical professional.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).
After examining the record the Court concludes that in her discussion and analysis
of the evidence the ALJ generally complied with the foregoing directives and adequately
explained her residual functional capacity finding. See Tr. 18-22 . In making her finding,
the ALJ stated that she had “considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical evidence
and other evidence, based on the requirements .... [and she] also considered opinion
evidence in accordance with the requirements ....” Tr. 18. The ALJ’s narrative includes
citation to specific facts, along with her reasoning.2 See Tr. 18-22 .
As to Mr. Sanchez’s specific objections, his position that, in determining his mental
RFC, the ALJ improperly discounted the opinion of Dr. Gale, the VA psychiatrist who saw
Plaintiff on two occasions is rejected. The ALJ reasonably explained that she gave “limited
weight” to Dr. Gale’s global functioning assessment because Dr. Gale’s treatment notes
did not include objective evidence to support a finding that Plaintiff’s mental impairments
imposed serious limitations. See 20 C.F.R. § 404.1527(c)(3)(more weight is given to an
opinion that is supported by evidence, particularly medical signs and laboratory findings).

See generally, Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012)
(“[w]here, as here, we can follow the adjudicator’s reasoning in conducting our review, and
can determine that correct legal standards have been applied, merely technical omissions
in the ALJ’s reasoning do not dictate reversal. In conducting our review, we should, indeed
must, exercise common sense”).
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The Court, likewise, rejects Plaintiff’s position that the ALJ improperly evaluated the
opinions of Dr. Carlisle, the consultative examining psychologist, and Dr. Dilger, the
nonexamining State agency psychiatrist. The record reflects that the ALJ only gave “some
weight” to the opinion of Dr. Carlisle, who found that Plaintiff’s mental symptoms were
bordering on mild to moderate in severity. In doing so the ALJ explained that additional
evidence submitted at the hearing of Plaintiff’s increased alcohol use showed that Plaintiff
may experience moderate limitations in his ability to concentrate and persist and work at
a normal pace if required to perform skilled work activities. The ALJ reasonably explained
that she gave “great weight” to the opinion of Dr. Dilger, the nonexamining State agency
psychiatrist, that Plaintiff could sustain simple to semiskilled tasks. Based on the record
evidence as a whole, the ALJ concluded that the Plaintiff had no more than a moderate
limitation in the ability to concentrate. The ALJ may rely on all of the medical evidence,
including that of nonexamining State agency medical consultants. See Flaherty v. Astrue,
515 F.3d 1067, 1071 (10th Cir. 2008)(a nonexamining physician is an acceptable medical
source, whose opinion the ALJ is entitled to consider).
Because Dr. Dilger’s ultimate opinion as to Plaintiff’s mental functional capacity for
work is found in Section III of the Mental RFC form (Tr. 561), Plaintiff’s position, that the
ALJ did not take into account Dr. Dilger’s finding in Section I that Plaintiff was moderately
limited in the ability to maintain attention and concentration for extended periods and in the
ability to respond appropriately to changes in the work setting, is without merit. See
Sullivan v. Colvin, 519 F. App’x 985, 989 (10th Cir. 2013)(citing the agency’s Program
Operations Manual System (POMS) DI 24510.060 and rejecting the plaintiff’s argument
that the ALJ erred in not mentioning the moderate limitations on performance indicated in
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Section I of the mental RFC form where the ALJ relied on the State agency’s ultimate
opinion in Section III).
The Court also rejects Plaintiff’s position that the ALJ did not properly evaluate the
opinion of Dr. Burkett, the nonexamining State agency physician who reviewed the record
in July 2010 and concluded that Plaintiff was capable of performing the exertional
requirements of light work . Tr. 502. Dr. Burkett limited Plaintiff to occasional overhead use
of the upper extremities and occasional gross and fine manipulation with the left upper
extremity. Tr. 504. Indeed, as the Commissioner notes, the ALJ’s RFC, which precluded
Plaintiff from overhead reaching with the left upper extremity and limited the use of the left
upper extremity to an assist to his right upper extremity, was more restrictive than Dr.
Burkett’s assessment.
Plaintiff also asserts that the ALJ did not properly consider the opinion of Dr.
Collegde, the workers’ compensation physician who examined Plaintiff in September of
2010 and concluded that he would not “do well in jobs that require significant amount of
overhead type work or repetitive type left upper extremity activities.” Tr. 535. Because the
ALJ’s assessment is consistent, if not more restrictive, than Dr. Collegde’s opinion
regarding Plaintiff’s

left upper extremity limitations, Plaintiff’s

contention that Dr.

Collegde’s opinion was improperly considered is rejected.
As to Plaintiff’s assertion that the ALJ failed to engage in the required analysis of
materiality of his alcohol use, the Court agrees with the Commissioner that such analysis
was not required because the ALJ did not find that Plaintiff was disabled considering all of
his impairments, including his alcohol use. See SSR 13-2P, 2013 WL 621536 at *4
(adjudicator makes a drug addiction and alcoholism (DAA) materiality determination only
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when (1) the adjudicator has medical evidence from an acceptable medical source
establishing that a claimant has a substance use disorder, and (2) the adjudicator finds that
the claimant is disabled considering all impairments, including the DAA).
B. Credibility Determination
Mr. Sanchez also challenges the ALJ’s credibility determination of his subjective
statements. “‘Credibility determinations are peculiarly the province of the finder of fact, and
[the court] will not upset such determinations when supported by substantial evidence.’”
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)(quoting Diaz v. Secretary of Health &
Human Serve., 898 F.2d 774, 777 (10th Cir. 1990)). Among the factors the ALJ may
consider in evaluating a claimant’s complaints are “the levels of [her] medication and [its]
effectiveness, ... the frequency of [her] medical contacts, the nature of [her] daily activities,
subjective measures of credibility that are peculiarly within the judgment of the ALJ, ... and
the consistency or compatibility of nonmedical testimony with objective medical evidence.”
Id. The ALJ is not required to set forth “a formalistic factor-by-factor recitation of the
evidence” he relied on in evaluating Plaintiff’s credibility. Qualls v. Apfel, 206 F.3d 1368,
1372 (10th Cir. 2000). “So long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility”, the credibility determination is adequate. Id. If the
ALJ disbelieved claimant’s allegations, she must explain what evidence led her to conclude
the claimant’s allegations were not credible. Kepler v. Chater, 68 F. 3d. at 391.
As the ALJ noted, Mr. Sanchez “alleged that he is unable to work due to ‘limited use
of left arm’. Subsequently, he reported that he also suffers from depression and anxiety.
He alleged that these impairments limit his ability to lift, reach, use his hands, hear,
remember, concentrate and complete tasks.” Tr. 19. Although, the ALJ found that
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Plaintiff’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms”, she nevertheless found that, “his statements concerning the intensity,
persistence, and limiting effects of these symptoms are not credible to the extent they are
inconsistent with the [RFC] assessment.” Tr. 21.
The Court concludes that the ALJ’s finding as to credibility is supported by
substantial evidence and that the ALJ sufficiently set forth the specific evidence she relied
on in evaluating Plaintiff’s credibility. For example, the ALJ’s Decision reflects that in
reaching her credibility conclusion, she relied on evidence that Mr. Sanchez could attend
to his own personal care and household activities while being careful how he used his left
upper extremity. Although he continued to report problems with bilateral numbness and
pain, the ALJ noted record evidence of Plaintiff working on his car, doing yard work,
working on his motorcycle, handling tools, riding his motorcycle, and going out once a day.
The ALJ also noted that although Mr. Sanchez reported significant numbness at night and
while riding his Motorcycle, he reported that he was not using a splint at night, and that a
motorcycle by its nature involves vibration that would exacerbate Plaintiff’s upper extremity
impairments.

The ALJ also considered that

Plaintiff’s medications lessened his

symptoms, allowing him to engage in his hobbies, noting that Mr. Sanchez reported that
the pain returned when he stopped taking his medications.

As outlined by the

Commissioner, the Court is satisfied that substantial objective evidence supports the ALJ’s
finding. See Mem. Opp’n at 10-14.
In sum, after thoroughly reviewing the record, the Court finds nothing amounting
to legal error in the ALJ’s evaluation of Plaintiff’s credibility.

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C. Step Five Determination
Plaintiff suggests that had the ALJ presented a proper RFC hypothetical to the
vocational expert, it is probable that the step five determination would have been different.
The Court, however, agrees with the Commissioner that the ALJ’s denial of disability at
step five due to the existence of jobs that Plaintiff can perform is supported by substantial
evidence.
D. Closed Period of Benefits
Finally, the Court rejects Plaintiff’s assertion that, at the very least, he is entitled to
a closed period of benefits due to his industrial accident. As the Commissioner notes,
Plaintiff has not shown that he was disabled within the meaning of the Social Security Act.
IV. CONCLUSION
The Court concludes that the Commissioner’s decision, that Mr. Sanchez was not
disabled within the meaning of the Social Security Act, is supported by substantial
evidence of record and is not the result of any legal error which has been brought to the
Court’s attention.
Therefore, based on the foregoing reasons as well as the Commissioner’s opposing
memorandum, Mr. Sanchez’s Complaint is dismissed and the Commissioner’s decision to

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deny his application for Social Security benefits is affirmed.
IT IS SO ORDERED.
DATED this 10th day of December, 2014.
BY THE COURT:

DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT

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