Studders v. Colvin
Filing
21
MEMORANDUM DECISION and ORDER Affirming Decision of the Commissioner. Signed by Magistrate Judge Brooke C. Wells on 05/18/2015. (tls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DONALD STUDDERS,
Plaintiff,
MEMORANDUM DECISION AND ORDER
AFFIRMING DECISION OF THE
COMMISSIONER
v.
Case No. 2:14-cv-336 BCW
CAROLYN W. COLVIN,
Magistrate Judge Brooke Wells
Defendant.
Donald G. Studders seeks judicial review of the decision of the Commissioner of Social
Security denying Mr. Studders’ application for Disability Insurance Benefits and Supplemental
Security Income (SSI) under Titles II and XVI of the Social Security Act. 1 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. 2 For the reasons set forth
below, the Court affirms the decision of the Administrative Law Judge (ALJ). 3
BACKGROUND 4
In November 2010, Mr. Studders filed his Social Security application alleging a disability
onset date of October 26, 2010. His application was denied and a hearing was held before an
ALJ on March 17, 2011. The ALJ rendered an unfavorable decision finding Mr. Studders not
1
42 U.S.C. §§ 405(g), 1383(c).
See Scheduling Order, docket no. 11 (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”).
3
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).
4
The parties fully set forth the background of this case, including the medical history, in their memoranda. The
court does not repeat this background in full detail.
2
disabled within the meaning of the Act. 5 Mr. Studders requested review by the Appeals Council
and his request was denied making the ALJ’s decision final for purposes of review. 6
Plaintiff was 49 when he filed for benefits and 51 on the date of the ALJ’s decision 7
In his application for benefits, Mr. Studders claimed disability due to diabetes mellitus and pain,
as well as limitations caused by a torn rotator cuff, degenerative problems with his neck, and
depression. 8 In his opening brief Plaintiff further asserts that he suffers from degenerative disc
disease of the spine, peripheral neuropathy, acute renal failure, left cubital tunnel syndrome,
carpal tunnel syndrome, anxiety, and esophagitis. 9
At the hearing before the ALJ the record states that Mr. Studders was represented by an
individual. It is unclear whether that individual was John Borsos, his present counsel on appeal,
or Ms. Olsen, as both are mentioned by name in the transcript of the hearing. 10 Mr. Studders
testified that his worst disabling conditions were his diabetes, a rotator cuff injury, carpal tunnel
in his left arm, his neck problems and the medicine he took. 11 Mr. Studders stated that he had a
GED and worked as a carpenter. 12 He claimed he could barely move his arm and had difficulty
turning his neck. 13 On a good day he would check his blood sugar around four times but if he
was feeling ill he would check it six to ten times a day. 14 He reported being able to stand for 1520 minutes and could walk about a block without stopping. Mr. Studders testified that he was in
pain quite often and it affected his daily activities.
5
Tr. 18. Tr refers to the official transcript of the record before the court.
20 C.F.R. § 404.981.
7
Tr. 15, 55.
8
Tr. 196, 250.
9
Opening brief p. 1, docket no. 16.
10
Tr. 34. During the hearing the representative is referred to as an attorney via the abbreviation Atty.
11
Tr. 37-38.
12
Tr. 38-39.
13
Tr. 41.
14
Tr. 41.
6
2
During the hearing the ALJ questioned Mr. Studders’ representative about the
inconsistencies in Mr. Studders’ treating physician Dr. Dennis Gordon’s notes. Specifically, the
ALJ noted the discrepancies in Dr. Gordon’s notes about Mr. Studders’ shoulders going from full
range of motion with a probable rotator cuff tear in one exam, to only four months later opining
that Mr. Studders was unable to ever reach overhead with the left arm and only occasionally with
the right. 15 In short objective exams pointed to one diagnosis while notes shortly thereafter
pointed to much more severe limitations. The ALJ further noted the lack of any evidence in the
record about neuropathy, including no medical provider discussing an inability to walk as
testified to by Mr. Studders. 16 Finally, the ALJ raised serious questions about the applicability of
Mr. Studders’ carpal tunnel syndrome because he had surgery and was released by the doctor
who performed the surgeries to “regular duties.” 17 Mr. Studders’ counsel at the hearing agreed
with the ALJ about the inconsistencies in the record including a lack of evidence regarding an
inability to walk 18 and a lack of evidence indicating that the carpal tunnel syndrome was still a
problem. 19
The ALJ also received testimony from a Vocational Expert (VE). The VE testified that
based on his work record Mr. Studders past relevant work experience was as a siding installer.
In response to the ALJ’s hypothetical the VE testified that an individual with those limitations
could not perform Plaintiff’s past work. But such an individual could perform jobs that exist in
the national economy, such as bakery worker, electrode cleaner, and laminator grader. 20
15
Tr. 44-45.
Tr. 46-47.
17
Tr. 47.
18
Tr. 47.
19
Tr. 47-48.
20
Tr. 51-52.
16
3
In his decision the ALJ followed the standard sequential five-step evaluation process for
determining whether an individual is disabled and found as follows: 21 (1) Mr. Studders had not
engaged in any substantial gainful activity since his alleged onset date; (2) he had severe
impairments of degenerative disc disease of cervical spine, peripheral neuropathy, left rotator
cuff tear, and diabetes mellitus; (3) he did not have an impairment or combination of
impairments that meets or equals the listings; (4) he was unable to perform past relevant work;
but (5) he was capable of performing work that exists in significant numbers in the national
economy. 22
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.” 23 “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” 24 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. 25 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. 26 The Court, however, may neither “reweigh the evidence [n]or substitute [its]
judgment for the [ALJ’s].” 27 Where the evidence as a whole can support either the agency’s
21
See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (summarizing five step process).
Tr. 20-27.
23
Madrid v. Barnhart, 447 F.3d 788, 790 910th Cir. 2006).
24
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted).
25
Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2000).
26
Shepherd v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).
27
Lax, 489 F.3d at 1084 (citation omitted).
22
4
decision or an award of benefits, the agency’s decision must be affirmed. 28 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.’” 29
ANALYSIS
In this appeal Mr. Studders argues the ALJ erred in: (1) failing to properly consider
whether his impairments meet or equal a listed impairment; (2) rejecting the opinions of Dr.
Morris and his treating physicians; (3) improperly evaluating his credibility; and (4) failing to
properly determine his residual functional capacity. As set forth below, the Commissioner’s
decision is supported by substantial evidence and free of reversible legal error. Thus, the court
affirms the decision of the Commissioner.
Before turning to these arguments the court notes that in his reply brief Mr. Studders
argues that “[m]ost of the Defendant’s arguments are post hoc justification.” 30 This is an appeal
of the Commissioner’s decision and as such, “[a]rguments not presented in an opening brief are
waived.” 31 The court therefore does not address this argument and even were it to do so finds
that it is not supported in the record and is unpersuasive.
(i)
The Listings
Mr. Studders first argues that the ALJ failed to properly consider whether his
impairments meet or equal a listed impairment. Mr. Studders contends that although “the ALJ
discussed his reasons for determining that Mr. Studders’ impairments did not meet a listed
28
See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
Lax, 489 F.3d at 1084 (quoting Zoltanski, 372 F.3d at 1200).
30
Reply p. 1.
31
Alvarado v. Utah, 2015 WL 1935237 *1 (10th Cir. 2015); see also City of Colo. Springs v. Solis, 589 F.3d 1121,
1135 N.5 (10th Cir. 2009).
29
5
impairment, he failed to discuss the evidence that supported his determination [and] this error in
itself warrants a remand.” 32 The court is not persuaded by these arguments.
The ALJ explicitly stated that he considered the “medical evidence” including the
“objective signs, symptoms or findings, [and] degree of functional limitations,” as well as the
opinion evidence in the record. 33 The ALJ specifically noted in his decision that Mr. Studders’
physical impairments implicated Listing 1.04 for disorders of the spine and 1.14 for peripheral
neuropathy. The ALJ determined, however, that the severity criteria for these listings were not
satisfied.
Plaintiff points to his diagnoses and argues the ALJ erred by not calling on a medical
expert to address the question of medical equivalence. Diagnoses per se are not sufficient to
meet a listing. 34 Further, absent any evidence to the contrary the court is to take the ALJ at his
word that he considered the medical evidence. 35 Mr. Studders fails to offer evidence to the
contrary that persuades this court that the ALJ erred at step three. In short, the ALJ’s
determination that Mr. Studders’ impairments failed to meet a listing is supported in the record
and the ALJ properly considered his signs, symptoms, and functional limitations.
(ii)
Opinions of Dr. Morris and Treating Physicians
Mr. Studders next contends that the ALJ failed to properly evaluate the opinion of his
treating physician when the ALJ gave little weight to the opinion of Dr. Dennis Gordon.
A treating source’s opinion cannot be given controlling weight if it is not well-supported by
medically acceptable clinical or laboratory diagnostic techniques, or if it is inconsistent with
32
Opening brief p. 9.
Tr. 21.
34
SSR 86-8, 1986 WL 68636 *4 (“The mere accumulation of a number of impairments will not establish
medical equivalency.”).
35
See Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (noting, in evaluating an ALJ’s statement that he
considered all of the claimant’s symptoms, a general practice of taking a lower tribunal at its word when it declares
that it has considered a matter).
33
6
other substantial evidence in the record. 36 An ALJ, however, must still give “good reasons” in
his decision for whatever weight he provides to a treating source opinion, be it great weight, little
weight, or something in between. 37 While 20 C.F.R § 404.1527(c) provides a framework for
how an ALJ is to weigh a medical opinion, an ALJ is not required to “apply expressly” every
relevant factor for weighing opinion evidence. 38
As noted earlier, during the hearing before the ALJ, the ALJ explicitly questioned Mr.
Studders’ representative about the inconsistencies in Dr. Gordon’s treatment notes. 39 In his
arguments Mr. Studders’ counsel goes to great length to cite the applicable Tenth Circuit
standards for evaluating the opinion of a treating physician. But, he fails to even address these
inconsistencies that were explicitly mentioned by the ALJ at both the hearing and in his decision.
Such inconsistencies are a proper basis for discounting a treating source opinion. The ALJ
specifically notes these problems with Dr. Gordon’s opinions in his decision and decides to give
Dr. Gordon’s opinion little weight. 40
Rather than addressing the ALJ’s analysis and the stated inconsistencies, Mr. Studders
counsel alleges the ALJ “failed to go through the required process in evaluating the opinion of
the treating physician” 41 without offering any facts in support of this argument. On appeal such
poorly developed arguments are often not even considered. 42 But, in this instance the court
addresses Mr. Studders argument and finds it wholly unsupported by the record.
36
20 C.F.R. § 404.1527(c)(2)
20 C.F.R. § 404.1527(c)(2); SSR 96-2p, 1996 WL 375188 *5.
38
Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
39
Tr. 44-45.
40
Tr. 25.
41
Opening brief p. 12.
42
See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (“We will consider and discuss only those of
[the plaintiffs] contentions that have been adequately briefed for our review.”); Chambers v. Barnhart, 389 F.3d
1139, 1142 (10th Cir.2004) (“The scope of our review . . . is limited to the issues the claimant . . . adequately
presents on appeal.” (internal quotation marks omitted))
37
7
Accordingly the court finds no reason to upset the ALJ’s analysis of the medical evidence
including his decision to discount the opinion of Dr. Gordon. The ALJ set forth specific,
legitimate reasons for not fully accepting Dr. Gordon’s opinion and these reasons are supported
by the evidence in the record.
(iii)
Mr. Studder’s Credibility
Mr. Studders next contends that the ALJ did not properly assess his credibility. An ALJ
must evaluate whether the claimant’s descriptions of pain or other symptoms are credible. 43 This
is a two-step process. The claimant must first demonstrate a medically determinable impairment
that could “reasonably be expected” to produce the alleged symptoms. 44 Once the claimant
demonstrates such an impairment, the ALJ may consider the credibility of the claimant’s
descriptions of symptoms and limitations in light of the entire case record. 45 The ALJ may
consider factors such as the claimant’s daily activities, treatment history, and the objective
medical evidence. 46 Credibility determinations are the province of the ALJ and should not be
disturbed if supported by substantial evidence. 47
Here, the ALJ cited to Plaintiff’s non-compliance with prescribed treatment and
inconsistencies in the record. 48 Specifically, the ALJ noted numerous examinations within
normal limits in regards to Mr. Studders’ degenerative disc disease, medical records indicating
improvement of Plaintiff’s diabetes and neuropathy through medication management, and a lack
of verifiable tests confirming the rotator cuff tear. 49 The ALJ also considered Mr. Studders work
history. The court finds the ALJ’s credibility determinations are closely and affirmatively linked
43
See 20 C.F.R. § 404.1529(c).
SSR 96-7p, 1996 WL 374186, at *2.
45
Id.
46
Id. at *3.
47
See McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002); Diaz v. Secretary of Health & Human Servs.,
898 F.2d 774, 777 (10th Cir. 1990).
48
Tr. 23.
49
Tr. 23-24.
44
8
to substantial evidence in the record. 50 Therefore, the court declines Plaintiff’s invitation to
reweigh the evidence and finds that the ALJ set forth specific reasons for not giving full weight
to Mr. Studders subjective complaints.
(iv)
Residual Functional Capacity
Finally, Mr. Studders asserts that the ALJ’s assessment of his RFC “fails to meet legal
standards.” 51 Mr. Studders argues that the ALJ’s assessment appears to be a conclusion without
reasoning or citation to specific facts. The record does not support these arguments.
The ALJ specifically cited to Mr. Studders’ functional limitations as set forth in the
hearing. 52 In addition, the ALJ analyzed the medical record in regard to Mr. Studders
limitations. This included a discussion of the evidence regarding degenerative disc disease,
diabetes, neuropathy and the left rotator cuff tear. 53 This evidence supports the ALJ’s RFC
determination. Once again Mr. Studders’ counsel cites the applicable Tenth Circuit standards
but then ignores the ALJ’s analysis. Accordingly, the court finds the ALJ’s RFC assessment is
supported by substantial evidence.
Closely connected to Plaintiffs RFC argument is his assertion that the ALJ committed
error at step five in determining there were other jobs in the national economy that he could
perform. In support Plaintiff cites to the DOT, 54 but the DOT descriptions do not support his
argument. Thus, there is no need to disturb the ALJ’s step five finding. 55
50
See Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988).
Opening brief p. 13.
52
Tr. 22.
53
Tr. 23-24.
54
DOT is an abbreviation for the Dictionary of Occupational Titles.
55
The court is concerned by the lack of support and nature of many of the arguments raised in Plaintiff’s appeal.
Counsel for Plaintiff is reminded of both Federal Rule of Civil Procedure 11 and Federal Rule of Appellate
Procedure 46.5 that prohibit frivolous arguments. Continuing to raise arguments that are not warranted by the
record and left unsupported may be grounds for monetary sanctions against Plaintiff’s counsel.
51
9
CONCLUSION
For the reasons stated above, the court finds the Commissioner’s decision is supported by
substantial evidence. The Commissioner’s decision is therefore AFFIRMED. The Clerk of the
Court is directed to close the case.
DATED this 18 May 2015.
Brooke C. Wells
United States Magistrate Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?