Simmons v. Colvin
MEMORANDUM DECISION and ORDER. IT IS HEREBY ORDERED that the Commissioner's decision in this case is AFFIRMED. Signed by Magistrate Judge Paul M. Warner on 02/05/2015. (tls)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
MARTIN WESLEY SIMMONS,
Case No. 2:13-cv-979-PMW
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Magistrate Judge Paul M. Warner
Before the court is Martin Wesley Simmons’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. After careful consideration
of the written briefs and the complete record, the court has determined that oral argument is not
necessary in this case.
Plaintiff alleges disability due to various physical and mental impairments. In April
2010, Plaintiff applied for DIB, alleging disability beginning on May 12, 2007. 1 Plaintiff’s
application was denied initially and upon reconsideration. 2 On December 2, 2010, Plaintiff
See docket no. 12, Administrative Record (“Tr.
See Tr. 84, 86.
requested a hearing before an Administrative Law Judge (“ALJ”), 3 and that hearing was held on
December 5, 2011. 4 On January 27, 2012, the ALJ issued a written decision denying Plaintiff’s
claim for DIB. 5 On September 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); 20 C.F.R. § 404.981.
On October 28, 2013, Plaintiff filed his complaint in this case, which was assigned
preliminarily to Magistrate Judge Paul M. Warner. 7 On January 28, 2014, both parties consented
to having a United States Magistrate Judge conduct all proceedings in the case, including entry
of final judgment, with appeal to the United States Court of Appeals for the Tenth Circuit. 8
Consequently, the case was assigned permanently to Magistrate Judge Warner pursuant to 28
U.S.C. § 636(c) and rule 73 of the Federal Rules of Civil Procedure. 9 See 28 U.S.C. § 636(c);
Fed. R. Civ. P. 73. The Commissioner filed her answer and the administrative record on
February 13, 2014. 10
See Tr. 101-02.
See Tr. 42-82.
See Tr. 20-41.
See Tr. 1-6.
See docket no. 3.
See docket no. 9.
See docket nos. 10, 12.
Plaintiff filed his opening brief on May 12, 2014. 11 The Commissioner filed her answer
brief on June 4, 2014. 12 Plaintiff filed his reply brief on June 16, 2014. 13
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).
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); see also Williams v. Bowen, 844 F.2d 748, 75051 (10th Cir. 1988) (discussing the five-step process). If a determination can be made at any one
See docket no. 18.
See docket no. 19.
See docket no. 20.
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).
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. §
“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). 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). “If the claimant is able to perform his previous work, he is not
disabled.” Williams, 844 F.2d at 751. If, however, the 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). If it is determined that the claimant “can make an adjustment to other
work,” 20 C.F.R. § 404.1520(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,” id., he is disabled and entitled to
Before reaching Plaintiff’s specific arguments, the court addresses a preliminary issue. In
support of some of his arguments, Plaintiff relies upon a subsequent favorable disability decision.
This court will not consider that decision as part of this case.
42 U.S.C. § 405(g), which authorizes judicial review of the Commissioner’s decisions,
As part of the Commissioner’s answer[,] the Commissioner of
Social Security shall file a certified copy of the transcript of the
record including the evidence upon which the findings and
decision complained of are based. The court shall have power to
enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.
42 U.S.C. 405(g). The Tenth Circuit has explained that the court’s review of the Commissioner’s
decision is limited to a consideration of the pleadings and transcript filed by the Commissioner,
and that the court shall not consider evidence not in the record certified by the Commissioner.
See Atteberry v. Finch, 424 F.2d 36, 39 (10th Cir. 1970) (“Court review of the [Commisioner]’s
denial of Social Security disability benefits is limited to a consideration of the pleadings and the
transcript filed by the [Commissioner] as required by 42 U.S.C. § 405(g). It is not a trial de
novo. The court is not at liberty to consider evidence not in the record certified by the
[Commissioner].” (citations omitted)); see also Watkins v. Barnhart, No. 1:03-cv-149-SA, 2004
WL 2381265, at *3 n.1 (D. Utah Oct. 21, 2004).
The court now turns to Plaintiff’s arguments. Plaintiff contends that the Commissioner’s
decision in this case should be reversed because the ALJ erred (1) at step two, (2) at step three,
(3) in his evaluation of a medical opinion, and (4) at step five. The court will address those
arguments in turn.
I. Step Two
Plaintiff argues that the ALJ erred at step two of the sequential evaluation process by
failing to conclude that certain of Plaintiff’s alleged impairments were severe impairments.
“[A]t step two, the ALJ must consider the combined effect of all of [the claimant’s] impairments
without regard to whether any such impairment, if considered separately, would be of sufficient
severity [to survive step two].” Carpeneter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)
(quotations and citations omitted) (second and third alterations in original). The Tenth Circuit
has explained that any error committed in that consideration is rendered “harmless when the ALJ
reache[s] the proper conclusion that [the claimant] could not be denied benefits conclusively at
step two and proceed[s] to the next step of the evaluation sequence.” Id.
In this case, the ALJ determined that Plaintiff suffered from several severe impairments.
Consequently, the ALJ concluded that Plaintiff could not be denied benefits at step two and
proceeded to step three of the sequential evaluation process. Therefore, Plaintiff’s argument with
respect to the ALJ’s step two analysis must fail. See id.
II. Step Three
Plaintiff first argues that the ALJ erred at step three of the sequential evaluation process
by concluding that Plaintiff’s impairments did not meet or equal section 1.04 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 1.04. 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 C.F.R. § 404.1520(a)(4)(iii). At step three, a claimant has the “burden to present
evidence establishing [his] impairments meet or equal listed impairments.” Fischer-Ross v.
Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). 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.
On this issue, Plaintiff argues that, had the ALJ considered certain of Plaintiff’s alleged
impairments related to his stroke, it is possible that the ALJ would have concluded that Plaintiff’s
alleged impairments satisfy the requirements of listing 1.04. Not only is that argument purely
speculative in nature, the ALJ’s decision demonstrates that he did consider the alleged
impairments related to Plaintiff’s stroke when he determined that those alleged impairments were
not severe at step two. Contrary to Plaintiff’s argument, the ALJ did not reject those alleged
impairments completely; instead, he simply determined that they did not qualify as severe
impairments. Such a determination does not mean that the ALJ did not consider those alleged
impairments at step three.
Furthermore, the court notes that Plaintiff merely points to selective portions of the
record that support the foregoing argument, which is nothing more than an attempt to reargue the
weight of the evidence before the ALJ. Such a tactic is futile 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 v. Apfel, 230
F.3d 1172, 1174 (10th Cir. 2000); Eggleston v. Bowen, 851 F.2d 1244, 1247 (10th Cir. 1988).
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 v. Astrue, 509 F.3d
1254, 1257 (10th Cir. 2007) (providing that the court reviewing the ALJ’s decision reviews “only
the sufficiency of the evidence, not its weight” (emphasis omitted)); see also Lax, 489 F.3d at
1084 (“The possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s findings from being supported by substantial evidence. We
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.”
(quotations and citations omitted) (alteration in original)). In this case, the evidence cited by the
Commissioner constitutes substantial evidence to support the ALJ’s step three determination.
For those reasons, the court concludes that Plaintiff’s argument with respect to step three
is without merit.
III. Medical Opinion
Plaintiff argues that the ALJ erred at step four by according no weight to the opinion of
Plaintiff’s treating physician, Dr. Marc Morse (“Dr. Morse”).
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
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. 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).
An ALJ is not required to discuss every factor set forth in the relevant regulations. See
Oldham, 509 F.3d at 1257 (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, e.g., Rutledge, 230 F.3d at 1174;
Eggleston, 851 F.2d at 1247.
In this case, the ALJ relied upon proper factors to support the conclusion that Dr. Morse’s
opinion was entitled to no weight. First, the ALJ properly relied upon the fact that Dr. Morse did
not actually express an opinion on the form in question, but instead merely checked boxes and
circled words. See 20 C.F.R. § 404.1527(c)(3); see also Chapo v. Astrue, 682 F.3d 1285, 1289
(10th Cir. 2012) (concluding that an ALJ “properly gave no weight” to a “conclusory form,
which lacked any functional findings”); Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987)
(concluding that opinions that “consist solely of boxes checked” on a form “standing alone,
unaccompanied by thorough written reports or persuasive testimony, are not substantial
evidence”). Second, the ALJ properly relied upon the fact that Dr. Morse’s opinions on the form
in question were dramatically more restrictive and severe than anything noted in his treatment
records. See 20 C.F.R. § 404.1527(c)(3)-(4). Third, the ALJ properly relied upon the fact that
Dr. Morse’s opinions on the form in question were dramatically more restrictive and severe than
the great weight of the other record evidence. See 20 C.F.R. § 404.1527(c)(4). Finally, the ALJ
properly relied upon the fact that Dr. Morse’s opinions on the form in question were both
internally inconsistent and inconsistent with his treatment notes. See 20 C.F.R. § 404.1527(c)(4);
see also Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007) (“Medical evidence may be
discounted if it is internally inconsistent or inconsistent with other evidence.”). For those
reasons, the court concludes that the ALJ did not err in his evaluation of the opinions of Dr.
IV. Step Five
Finally, Plaintiff argues that the ALJ erred at step five of the sequential evaluation process
by relying on the testimony of the vocational expert (“VE”) because there are discrepancies
between the VE’s testimony and the Dictionary of Occupational Titles (“DOT”). As noted by the
Commissioner, however, in making many of his arguments about such discrepancies, Plaintiff
relies upon alleged limitations that come from his own testimony; his assertion that the ALJ
dismissed any limitations related to his stroke; and alleged limitations that come from selective
portions of the record that support his arguments, including the opinions of Dr. Morse. Reliance
upon that evidence does not support Plaintiff’s arguments, for the following reasons. First, the
ALJ determined that Plaintiff’s testimony was not fully credible, and Plaintiff has not challenged
that determination. Second, the court has already rejected Plaintiff’s assertion that the ALJ
dismissed Plaintiff’s impairments related to his stroke, and the court rejects it again here. Third,
the court has already concluded that the ALJ did not err by according no weight to the opinions
of Dr. Morse. Finally, Plaintiff’s attempts to selectively cite portions of the record that support
his arguments are, again, nothing more than attempt to reargue the weight of the evidence before
the ALJ, which must fail on appeal. See Oldham, 509 F.3d at 1257; Lax, 489 F.3d at 1084;
Madrid, 447 F.3d at 790; Rutledge, 230 F.3d at 1174; Eggleston, 851 F.2d at 1247.
As for Plaintiff’s arguments concerning any other discrepancies between the VE’s
testimony and the DOT, the court concludes that they are without merit. In this case, the ALJ
included all of the limitations of the RFC assessment in the hypothetical provided to the VE.
Then, as required by Social Security Ruling (“SSR”) 00-4p, the ALJ asked the VE about any
conflicts that existed between his testimony and the DOT. See SSR 00-4p; see also Haddock v.
Apfel, 196 F.3d 1084, 1089-92 (10th Cir. 1999). Also as required by SSR 00-4p, the ALJ
obtained a reasonable explanation for any such conflicts. See SSR 00-4p. The VE testified that
the DOT did not include all of the limitations mentioned in the hypothetical, but that his
testimony indicating that a person with Plaintiff’s RFC could perform the identified jobs was
based on his experience and training as a vocational rehabilitation counselor. As noted by the
Commissioner, an ALJ may rely upon such testimony if it is based upon the VE’s professional
experience. See, e.g., Rogers v. Astrue, 312 Fed. App’x 138, 142 (10th Cir. 2009) (“Because the
VE testified that, on the basis of his professional experience, 11,000 sedentary hand packager
jobs existed in the national economy, the apparent conflict between the DOT and the VE’s
testimony regarding the job’s exertional requirement was reasonably explained, and the ALJ
could rely on that testimony as substantial evidence to support her determination of
nondisability.”); see also Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999) (“We do not
mean by our holding that the [DOT] ‘trumps’ a VE’s testimony when there is a conflict about the
nature of a job. We hold merely that the ALJ must investigate and elicit a reasonable explanation
for any conflict between the [DOT] and expert testimony before the ALJ may rely on the expert’s
testimony as substantial evidence to support a determination of nondisability.”).
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
IT IS SO ORDERED.
DATED this 5th day of February, 2015.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
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