Meza v. Colvin
Filing
27
MEMORANDUM DECISION AND ORDER- The Court finds that substantial evidence supports the Commissioners Decision and that the Commissioner applied the correct legal standards. The court Affirms the Commissioner's decision in this case. Signed by Magistrate Judge Evelyn J. Furse on 9/30/2015. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MELINDA A. MEZA,
MEMORANDUM DECISION AND
ORDER
Plaintiff,
v.
Case No. 2:14-cv-00452-EJF
CAROLYN W. COLVIN, in her capacity as
Acting Commissioner of the Social Security
Administration,
Magistrate Judge Evelyn J. Furse
Defendant.
Plaintiff Melinda A. Meza filed this action asking this Court 1 to reverse or remand the
final agency decision denying her Supplemental Security Income (“SSI”) under Title XVI of the
Social Security Act, see 42 U.S.C. §§ 1381–1383f (2010). The Administrative Law Judge
(“ALJ”) determined that Ms. Meza did not qualify as disabled within the meaning of the Social
Security Act. (Admin. R. 9, certified copy tr. of R. of admin. proceedings: Melinda A. Meza
(hereinafter “Tr. __”), ECF No. 8.) Based on the Court’s careful consideration of the record, the
parties’ memoranda, and relevant legal authorities, the Court AFFIRMS the Commissioner’s
decision. 2
1
The parties jointly consented to this Court’s determination of the case under 28 U.S.C. §
636(c). (ECF No. 13.)
2
Pursuant to Civil Rule 7-1(f) of the Rules of Practice for the United States District Court for the
District of Utah, the Court concludes it does not need oral argument and will determine the
appeal on the basis of the written memoranda.
1
Procedural History
In June 2008 and again in February 2010, 3 Ms. Meza filed for SSI, alleging disability
beginning February 1, 2008. (Tr. 444, 460.) Ms. Meza later amended her alleged onset date to
June 16, 2008. (Tr. 47.) The ALJ conducted a hearing on December 7, 2009. (Tr. 45.) On
February 3, 2010, the ALJ issued a ruling finding Ms. Meza not disabled. (Tr. 211–212.) On
November 29, 2011 the Appeals Council remanded the ALJ’s decision. (Tr. 217–220.) The ALJ
conducted three additional hearings on June 7, 2012, November 8, 2012, and January 8, 2013.
(Tr. 81, 124, 142.) On January 23, 2013 the ALJ again issued a decision finding Ms. Meza not
disabled. (Tr. 33.) The Appeals Council denied Ms. Meza’s request for review on April 18,
2014, (tr. 1), making the ALJ’s second Decision the Commissioner’s final decision for purposes
of judicial review under 42 U.S.C. § 1383(c)(3). See 20 C.F.R. § 416.1481.
Factual Background
Ms. Meza, born April 2, 1967, has past relevant work experience as a production
assembler. (Tr. 32, 444.)
A June 2007 MRI scan showed Ms. Meza’s lumbar spine as “essentially normal.” (Tr.
702.) In November 2007, Ms. Meza visited David R. Hillam, MD, her primary care physician,
complaining of low back pain which the doctor characterized as lumbago. (Tr. 818–20, 840.)
During that visit, Dr. Hillam noted Ms. Meza had a normal gait, full muscle strength, and normal
toe and heel walks. (Id.) The report indicates prior medical diagnosis of obesity. (Tr. 819.) In
January 2008, Dr. Hillam again reported normal gait, strength, and walking tests. (Tr. 811-12.)
Eight additional examinations stretching from February 2008 to November 2009 produced
similar results. (Tr. 786–88, 796–97, 800–02, 807–09, 842–43, 847–49, 851–53, 855–57.)
3
The Appeals Council essentially consolidated Ms. Meza’s two applications. (See tr. 89.)
2
In February 2008, Ms. Meza fell on ice and hurt her mid to lower back. (Tr. 808.) The
doctor noted Ms. Meza’s x-rays showed “spurring and arthritic changes” in the lumbar and
thoracic spine. (Tr. 809.) The doctor increased Ms. Meza’s pain medication and prescribed a
prednisone-pack. (Id.) In a March 2008 Work Ability Report Dr. Hillam described Ms. Meza as
unable to work and unable to sit or stand for greater than twenty minutes. (Tr. 746.) Dr. Hillam
further opined that Ms. Meza could return to work in three months. (Id.) In July 2008, Lewis J.
Barton, MD, a state agency physician, assessed that Ms. Meza can lift twenty pounds
occasionally and ten pounds frequently. (Tr. 747–49.) Dr. Barton, who did not personally
examine Ms. Meza, also found Ms. Meza capable of walking, sitting, and standing for six hours
in an eight-hour workday. (Id.)
During 2009, three times weekly, Ms. Meza participated in “pool exercises.” (Tr. 852,
860.) On June 9, 2009 Ms. Meza demonstrated a complete range of motion and strength in her
hands along with negative straight leg raises. (Tr. 857.) By December 2009, Dr. Hillman
asserted Ms. Meza could not lift any weight ever and could sit or stand for less than two hours
daily. (Tr. 1035-36.)
In March 2010, Ms. Meza had a rheumatoid arthritis workup at the direction of Dr.
Hillman due to increasing all over pain. (Tr. 873, 960.) The rheumatologist found no evidence
of rheumatoid arthritis, but found support for a fibromyalgia diagnosis, and recommended further
treatment in light of that evidence. (Id.) In May 2010, Dr. Hillam diagnosed Ms. Meza with
fibromyalgia finding twelve trigger points. (Tr. 886–89.) Dr. Hillman changed Ms. Meza’s
medications to address the fibromyalgia. (Id.) On July 14, 2010 Ms. Meza reported to Dr.
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Hillam that she had less pain, was “exercising more [and] [d]oing a toned down version of
Zumba and water aerobics.” (Tr. 890–91.)
In both April and August 2011, Dr. Hillam completed forms for Utah’s Department of
Workforce Services describing Ms. Meza as completely unable to work for the remainder of her
life. (Tr. 1183–84.) After a September 9, 2011 examination, Dr. Hillam asserted Ms. Meza “is
doing very well,” swimming several times a week, and her efforts to improve her health “have
been effective.” (Tr. 1193–95.)
By November 2011, Ms. Meza continued to improve by “exercising in the pool daily.”
(Tr. 1188–90.) At the same visit, she exhibited normal wrist strength and indicated she helped
care for her dying mother in California. (Id.) In December 2011, Dr. Hillam penned a letter
noting X-rays of Ms. Meza’s spine showed “subluxation of her L4 vertebrae on the L5 vertebrae,
osteophyte formation, and narrowed disk spaces.” (Tr. 1187.) The letter further asserted Ms.
Meza’s “prognosis for further improvement in her back pain [and] fibromyalgia … is poor.”
(Id.)
In January 2012, Dr. Hillam again described Ms. Meza as incapable of working. (Tr.
1185.) In a February 9, 2012 medical record, Dr. Hillam noted Ms. Meza had fibromyalgia and
hand numbness and pain but noted she continued “swimming in the pool and attending a
spinning class.” (Tr. 1246–47.)
In October 2012, Ms. Meza began seeing Matthew Walton, MD, a family medicine
physician. (Tr. 1315.) On January 3, 2013, Dr. Walton reported Mr. Meza suffered from tender
trigger points and described her stress level as “incapacitating.” (Tr. 1315–20.) Ms. Meza, Dr.
Walton contends, cannot sit or stand for more than ten minutes and only rarely can lift fewer than
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ten pounds. (Tr. 1318–19.) Dr. Walton further assessed Ms. Meza as likely to miss four or more
work days monthly as a result of her medical issues. (Tr. 1320.)
Ms. Meza, who stands approximately five feet five inches tall, at one time weighed 326
pounds but weighed 187 pounds by June 2012. (Tr. 15.) At the January 8, 2013 hearing, Ms.
Meza testified she has
pain that goes throughout my whole body. It feels like burning, sharp. And I feel
like there’s a whole bunch of creepy crawlies throughout my body, from my toes
all the way to the tips of my hair. And it’s more intense in certain parts, mainly
like my lower back but it penetrates outwards.
(Tr. 162.) She further testified she can sit or stand for about ten minutes at a time and that she
struggles to lift a gallon of milk. (Tr. 164-65.) She also asserts she needs to lie down six to
seven times during the day for ten or more minutes. (Tr. 165.)
STANDARD OF REVIEW
42 U.S.C. § 1383(c)(3) provide for judicial review of a final decision of the
Commissioner of the Social Security Administration (“SSA”). The Court reviews the
Commissioner’s decision to determine whether the record as a whole contains substantial
evidence in support of the Commissioner’s factual findings and whether the SSA applied the
correct legal standards. 42 U.S.C. § 1383(c)(3); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007). The Commissioner’s findings shall stand if supported by substantial evidence. 42 U.S.C.
§ 1383(c)(3).
Adequate, relevant evidence that a reasonable mind might accept to support a conclusion
constitutes substantial evidence, and “[e]vidence is insubstantial if it is overwhelmingly
contradicted by other evidence.” O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994). The
standard “requires more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084.
“Evidence is not substantial if it is overwhelmed by other evidence—particularly certain types of
5
evidence (e.g., that offered by treating physicians)—or if it really constitutes not evidence but
mere conclusion.” Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (internal quotation
marks and citations omitted). Moreover, “[a] finding of ‘no substantial evidence’ will be found
only where there is a conspicuous absence of credible choices or no contrary medical evidence.”
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (internal quotation marks and citations
omitted).
Although the reviewing court considers “whether the ALJ followed the specific rules of
law that must be followed in weighing particular types of evidence in disability cases,” the court
“will not reweigh the evidence or substitute [its] judgment for the Commissioner’s.” Lax, 489
F.3d at 1084 (internal quotation marks and citations omitted). The court will “review only the
sufficiency of the evidence.” Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (emphasis
in original). The court does not have to accept the Commissioner’s findings mechanically, but
“examine the record as a whole, including whatever in the record fairly detracts from the weight
of the [Commissioner’s] decision and, on that basis, determine if the substantiality of the
evidence test has been met.” Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (internal
quotation marks and citation omitted). “‘The possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence,’” and 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.’” Lax, 489 F.3d at 1084 (quoting Zoltanksi v. FAA, 372 F.3d
1195, 1200 (10th Cir. 2004)).
In addition to a lack of substantial evidence, the Court may reverse where the
Commission uses the wrong legal standards or the Commissioner fails to demonstrate reliance on
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the correct legal standards. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Thomson
v. Sullivan; 987 F.2d 1482, 1487 (10th Cir. 1993); Andrade v. Sec’y of Health & Human Servs.,
985 F.2d 1045, 1047 (10th Cir. 1993).
ANALYSIS
The Social Security Act (“Act”) defines “disability” as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). Moreover,
the Act considers an individual disabled “only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” Id. § 1382c(a)(3)(B).
In determining whether a claimant qualifies as disabled within the meaning of the Act,
the SSA employs a five-step sequential evaluation. See 20 C.F.R. § 416.920; Williams v. Bowen,
844 F.2d 748, 750-53 (10th Cir. 1988); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The
analysis evaluates whether:
(1) The claimant presently engages in substantial gainful activity;
(2) The claimant has a medically severe physical or mental impairment or impairments;
(3) The impairment is equivalent to one of the impairments listed in the appendix of the
relevant disability regulation which preclude substantial gainful activity;
(4) The impairment prevents the claimant from performing his or her past work; and
(5) The claimant possesses a residual functional capacity to perform other work in the
national economy considering his or her age, education, and work experience.
See 20 C.F.R. § 416.920. The claimant has the initial burden of establishing the disability in the
first four steps. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). At step five, the burden
7
shifts to the Commissioner to show that the claimant retains the ability to perform other work
existing in the national economy. Id.
The ALJ evaluated Ms. Meza’s claim through step four, 4 making the following findings
of fact and conclusions of law with respect to Ms. Meza:
1. “[Ms. Meza] has not engaged in substantial gainful activity since June 16,
2008, the application date (20 CFR 416.971 et seq.).” (Tr. 15.)
2. “[Ms. Meza] has the following severe impairments: fibromyalgia; mild back
disorder; mild degenerative joint disease of the knees; mild carpal tunnel
syndrome; obesity; mild depression and mild anxiety (20 CFR 416.920(c))." (Id.)
3. “[Ms. Meza] does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404 Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).”
(Id.)
4. “After careful consideration of the entire record, the undersigned finds that
[Ms. Meza] has the residual functional capacity to perform light unskilled work as
defined in 20 CFR 416.967(b) with the following limitations:
• [Ms. Meza] is limited to occasionally lift and/or carry (including upward
pulling) a maximum of 20 pounds occasionally and 10 pounds frequently;
• [Ms. Meza] is limited to standing or walking (with normal breaks) for a total
of about six hours in an eight-hour workday;
• [Ms. Meza] is limited to sitting (with normal breaks) for a total of about six
hours in an eight-hour workday;
• [Ms. Meza] is limited to occasionally climb stairs, squat, bend/stoop, kneel,
reach above shoulders, use foot controls; and drive;
• [Ms. Meza] is limited to frequently push/pull, turn arms and wrists, open and
close fists, and use of hands and fingers.
• [Ms. Meza] is moderately limited in the ability to understand, carry out, and
remember instructions and, therefore is limited to simple, routine work;
• [Ms. Meza] is mildly to moderately limited in the ability to respond
appropriately to the public and, therefore, is limited to only occasional jobrelated contact with the public.” (Tr. 17–18.)
5. “[Ms. Meza] is capable of performing past relevant work as a production
assembler, D.O.T. # 706.687-010, which is light unskilled work with a SVP of 2.
This work does not require the performance of work-related activities precluded
by the claimant’s residual functional capacity (20 CFR 416.965).” (Tr. 32.)
6. “[Ms. Meza] has not been under a disability, as defined in the Social Security
Act, since June 16, 2008, the date the application was filed (20 CFR 416.920(f)).”
(Tr. 33.)
4
The ALJ also provided analysis through step five as an alternative to his four-step reasoning.
(Tr. 32.) Because the Court upholds the ALJ’s four-step analysis, this Decision does not reach
the ALJ’s fifth step.
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In short, the ALJ concluded Ms. Meza has the RFC to perform her past relevant work as a
production assembler, and so she does not qualify as disabled.
In support of her claim that this Court should reverse the Commissioner’s decision, Ms.
Meza argues the ALJ erred: (1) at step three in the evaluation of Ms. Meza’s fibromyalgia; (2)
by failing to evaluate Ms. Meza’s fibromyalgia properly when determining her RFC; (3) by
finding Ms. Meza has performed past relevant work despite an earlier decision stating otherwise;
and (4) by failing to meet the Commissioner’s burden at step five. 5 (Pl.’s Opening Br. 3–7, ECF
No. 17.) As part of her fourth argument, Ms. Meza challenges the ALJ’s evaluation of physician
weight and claimant credibility. (Id. at 7–19.) Lastly, Ms. Meza argues the ALJ failed to obtain
an explanation for the conflict between the Vocational Expert’s (“VE’s”) testimony and the
DOT. (Id. at 19.)
I. The ALJ’s Step Three Analysis of Ms. Meza’s Fibromyalgia
Ms. Meza argues the ALJ improperly evaluated her fibromyalgia and improperly relied
on Dr. Morrison’s expert opinion in doing so. (See Pl.’s Opening Br. 3–4, ECF No. 17.) At step
three, the ALJ must evaluate whether the impairment equals one of the impairments listed in the
appendix of the relevant disability regulation, which if does, directs a finding of disabled. See 20
C.F.R. § 416.920. The ALJ found none of Ms. Meza’s impairments or the combination of
impairments equals the severity of one of the listed impairments. (Tr. 15.)
20 C.F.R. Part 404, Subpart P, Appendix 1 lists impairments that preclude substantial
gainful employment. See 20 C.F.R. § 416.925(a) (describing the purpose of the Listings). The
5
By making only these arguments in her opening brief, Ms. Meza waives any additional
challenges to the ALJ’s decision. See Anderson v. Dep’t of Labor, 422 F.3d 1155, 1182 n.51
(10th Cir. 2005) (waiving argument claimant did not first raise in her opening brief).
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claimant bears the burden of showing her impairment meets or equals the requirements of a
listed impairment. Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). For an ALJ to
find a claimant meets a listing, the claimant’s impairment must “satisf[y] all of the criteria of that
listing, including any relevant criteria in the introduction, and meet[] the duration requirement.”
20 C.F.R. § 416.925(c)(3). If a claimant’s impairment does not meet a listing, her impairment
may constitute the medical equivalent if she has “other findings related to [her] impairment that
are at least of equal medical significance to the required criteria.” 20 C.F.R. § 416.926(b)(1)(ii).
Where the claimant does not meet or equal a listing the ALJ must “discuss the evidence
and explain why he found that [the claimant] was not disabled at step three.” Clifton v. Chater,
79 F.3d 1007, 1009 (10th Cir. 1996) (citations omitted). But inadequate analysis at step three
may constitute harmless error if the “ALJ’s findings at other steps of the sequential process may
provide a proper basis for upholding a step three conclusion that a claimant’s impairments do not
meet or equal any listed impairment.” Fischer-Ross, 431 F.3d at 733. In general, a court may
find an error harmless when “based on material the ALJ did at least consider (just not properly),
[it] could confidently say that no reasonable administrative factfinder, following the correct
analysis, could have resolved the factual matter in any other way.” Id. at 733–34 (internal
quotation marks and citation omitted).
As Ms. Meza’s Opening Brief notes, the ALJ found Ms. Meza’s fibromyalgia qualified as
a severe medically determinable impairment. (Opening Br. 3, ECF No. 17; tr. 15.) The ALJ
found, however, that fibromyalgia does not meet or equal the requirements of a listed
impairment. (Tr. 15–16.) The ALJ supported this finding by referring to Dr. Morrison’s
testimony. (Tr. 16 (see tr. 155–56).) Dr. Morrison testified Ms. Meza’s fibromyalgia does not
equal a listing; he also suggested fibromyalgia would never meet a listing because it goes to
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“sustainability.” (See tr. 156.) As the ALJ notes, Dr. Morrison testified Ms. Meza’s
“impairments, neither singly or in combination, met or equaled any of the [listings].” (Tr. 16
(see tr. 149–157).)
Ms. Meza argues the ALJ improperly relied upon Dr. Morrison’s testimony because the
doctor “admitted he was not that familiar with [fibromyalgia].” (Opening Br. 4, ECF No. 17.)
Ms. Meza waived the qualification argument by failing to object to Dr. Morrison’s testimony as
a medical expert during the hearing. (See tr. 148; Birkinshaw v. Astrue, 490 F. Supp. 2d 1136,
1141-42 (D. Kan. 2007) (finding waiver of objections to medical expert’s competency where
claimant failed to object to testimony at hearing).)
Ms. Meza also contends the ALJ “failed to evaluate [Ms. Meza’s fibromyalgia] in the
light of Social Security Ruling 12-2p.” (Opening Br. 3. ECF No. 17.) SSR 12-2p, which issued
approximately six months prior to the hearing, specifically states that the SSA will analyze
whether fibromyalgia equals a listing, noting the potential equivalent of listing 14.09D for
inflammatory arthritis. SSR 12-2p, 2012 WL 3104869, at *6 (July 25, 2012). Neither the ME
nor the ALJ give any analysis for fibromyalgia’s equivalency in this case. Failure to do so was
error.
Listing 14.09D requires two “constitutional symptoms” – severe fatigue, fever, malaise,
or involuntary weight loss – and a marked level of limitation in activities of daily living,
maintaining social functioning, or concentration, persistence, or pace. See 20 C.F.R. pt. 404,
subpt. P, app. 1. In considering whether the ALJ’s failure to assess equivalency to listing 14.09D
constitutes harmless error, the Court looks to the remainder of the ALJ’s Decision to decide
whether a proper basis exists to uphold the listing determination. Fischer-Ross, 431 F.3d at 733.
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Ms. Meza’s record shows fatigue and malaise that may or may not rise to the relevant
level. Assuming the fatigue and malaise do rise to the required level, the Court considers the
next part of the listing.
As to activities of daily living, the ALJ analyzes the combined impact of all of Ms.
Meza’s impairments on her activities of daily living when he considers her RFC. (Tr. 22–23.)
The ALJ definitively finds the activities of daily living inconsistent with debilitating pain or an
inability to function. (Id. at 23.) Given that finding the Court can conclude the ALJ would not
have found a marked limitation in activities of daily living.
Similarly in making the RFC finding, the ALJ found Ms. Meza could perform simple
work based on moderate limitations in her ability to understand, carry out, and remember
instructions. (Tr. 18.) This finding undermines any likelihood that the ALJ would have found
Ms. Meza’s fibromyalgia caused marked limitations in concentration, persistence, or pace.
Moreover, the ALJ limited Ms. Meza to occasional contact with the public in her RFC.
(Tr. 18.) While this finding acknowledges difficulty in maintaining social functioning, it shows
the ALJ did not find Ms. Meza’s social deficits rise to a marked level of severity. Therefore, the
ALJ would not have found Ms. Meza’s impairments equaled listing 14.09D, even if he had
conducted the proper analysis. Therefore, the Court finds the Decision on this point constitutes
harmless error.
II. Evaluation of Ms. Meza’s RFC
Ms. Meza also challenges the ALJ’s evaluation of Ms. Meza’s RFC. (Pl.’s Opening Br.
5–6, ECF No. 17.) A claimant’s RFC reflects the ability to do physical, mental, and other work
activities on a sustained basis despite limitations from the claimant’s impairments. See 20 C.F.R.
§ 416.945. In determining the claimant’s RFC, the decision maker considers all of the claimant’s
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medically determinable impairments, including those considered not “severe.” See 20 C.F.R. §
416.945(a)(2).
Ms. Meza argues the ALJ failed to “‘consider a longitudinal record whenever possible
because the symptoms of [fibromyalgia] can wax and wane so that a person may have bad days
and good days.’” (Pl.’s Opening Br. 5 (quoting SSR 12-2p), ECF No. 17.) The Court disagrees.
In finding Ms. Meza capable of performing light unskilled work subject to certain listed
limitations, the ALJ extensively reviewed Ms. Meza’s testimony and medical records. (Tr. 17–
32.) The ALJ specifically describes much of Ms. Meza’s medical history and goes on to explain
why he accepted or rejected various assertions about Ms. Meza’s health. (Id.) Therefore, the
Court finds the ALJ did not err in his analysis of fibromyalgia in determining Ms. Meza’s RFC.
III. Ms. Meza’s Credibility
Ms. Meza also argues the ALJ did not apply the correct legal standard when
evaluating her credibility and lacked substantial evidence for his determination. (Pl.’s
Opening Br. 15–17, ECF No. 17.) The Court disagrees.
“‘Credibility determinations are peculiarly the province of the finder of fact, and [a 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. Sec’y of Health & Human Servs., 898 F.2d
774, 777 (10th Cir. 1990)). “However, ‘[f]indings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.’”
Id. (quoting Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)). If objective medical
evidence shows a medical impairment that produces pain, the ALJ must consider the claimant’s
assertions of severe pain and decide the extent to which the ALJ believes the claimant’s
assertions. Id. To make this analysis, the ALJ should consider such factors as
13
the levels of medication and their effectiveness, the extensiveness of the attempts
(medical or nonmedical) to obtain relief, the frequency of medical contacts, the
nature of daily activities, subjective measures of credibility that are peculiarly
within the judgment of the ALJ, the motivation of and relationship between the
claimant and other witnesses, and the consistency or compatibility of nonmedical
testimony with objective medical evidence.
Id. (citation and internal quotation marks omitted). But this analysis “does not require a
formalistic factor-by-factor recitation of the evidence. So long as the ALJ sets forth the specific
evidence he relies on in evaluating the claimant’s credibility, the dictates of Kepler are satisfied.”
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
The ALJ found one could reasonably expect Ms. Meza’s medically determinable
impairments to cause some of her alleged symptoms. (Tr. 23.) However, the ALJ found Ms.
Meza’s statements about the intensity, persistence, and limiting effects of her symptoms lacked
credibility. (Id.) The ALJ satisfied his obligation under Kepler by explaining in detail why Ms.
Meza’s medical reports and daily activities contradict her claims of sustained crippling pain. (Tr.
22–23.) Specifically, the ALJ noted Ms. Meza’s record of consistently attending appointments
and attending recreation classes belies her “allegations of difficulty leaving the home and being
around people.” (Tr. 22.) Furthermore, the ALJ acknowledged that Ms. Meza did have trouble
walking in 2010 but since that time had taken both Zumba and spinning classes, belying her
claims that she has difficulty standing and sitting for more than ten minutes at a time. (Id.) The
ALJ also notes that Dr. Hillam continually noted Ms. Meza's normal gait, further undercutting
her testimony regarding difficulty walking. (Id.)
In making the RFC determination, the ALJ considered Ms. Meza’s own statements and
her medical records. Although Ms. Meza provides citations to records supporting her claims of
disability, Ms. Meza never establishes more than “the possibility of drawing two inconsistent
conclusions from the evidence.” Lax, 489 F.3d at 1084 (citation and quotation marks omitted).
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The ALJ applied the proper legal standard, and substantial evidence supports his decision with
respect to Ms. Meza’s credibility.
IV. Medical Source Credibility
An ALJ must evaluate every medical opinion. 20 C.F.R. § 416.927(c). If the ALJ finds a
treating physician’s opinion “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and [] not inconsistent with the other substantial evidence in [the] case
record,” the ALJ must give the opinion controlling weight. 20 C.F.R. § 416.927(c)(2). When
the ALJ does not give a treating physician’s opinion controlling weight, the ALJ must consider
certain factors. 20 C.F.R. § 416.927(c) provides these factors:
(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.
See Watkins v. Barnhart, 350 F.3d 1297, 1300–01 (10th Cir. 2003) (citation omitted). To reject a
medical opinion, the ALJ must provide “‘specific, legitimate reasons.’” Drapeau v. Massanari,
255 F.3d 1211, 1213 (10th Cir. 2001) (quoting Miller v. Chater, 99 F.3d 972, 976 (10th Cir.
1996)).
The ALJ’s decision need not discuss explicitly all of the factors for each of the medical
opinions. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (stating that a lack of
discussion of each factor does not prevent the court from according the decision meaningful
review). When considering medical opinion evidence, the ALJ must weigh and resolve
evidentiary conflicts and inconsistencies. See Richardson v. Perales, 402 U.S. 389, 399 (1971)
(reflecting the ALJ’s duty to resolve conflicting medical evidence).
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A. Dr. Hillam
Ms. Meza focuses on the ALJ’s evaluation of Dr. Hillam and contends the ALJ
failed to conduct the initial step in reviewing treating physician testimony.
(Pl.’s
Opening Br. 7–14, ECF No. 17.) Ms. Meza contends the ALJ should have given Dr.
Hillam controlling weight. (Id. at 7.)
Here, the ALJ did not accord controlling weight to Dr. Hillam’s opinion. (Tr. 27.)
Instead, the ALJ gave “little weight” to Dr. Hillam’s assertions that Ms. Meza cannot
work. (Id.) In Mays v. Colvin, 739 F.3d 569, 575 (10th Cir. 2014), the Tenth Circuit
upheld an ALJ’s decision despite the absence of an express controlling weight analysis of
a treating physician's opinion: “[T]he ALJ implicitly declined to give the opinion
controlling weight. Because we can tell from the decision that the ALJ declined to give
controlling weight to [the treating physician's] opinion, we will not reverse on this
ground.” Thus this Court finds no error in omitting discussion of controlling weight.
Ms. Meza further contends that Dr. Hillam deserved more than little weight.
(Pl.’s Opening Br. 10, ECF No. 17.) Before reaching his conclusion, the ALJ reviewed
Dr. Hillam’s opinions at length. (Tr. 27-28.) The ALJ discussed, for instance, Dr.
Hillam’s assertion that Ms. Meza’s “pain level will constantly interfere with her ability to
perform even simple tasks. … [And] [s]he can sit no longer than 10 minutes at any one
time and stand no longer than 10 minutes at any one time.” (Tr. 27 (citing tr. 735, 743).)
The ALJ also reviewed Dr. Hillam’s Prehearing Procedure Form and his Fibromyalgia
Residual Functional Capacity Questionnaire and Participation Ability Report. (Tr. 27
(citing 1029–30,1032, 1034-1036).) These reports indicated, among other findings, that
Ms. Meza “could not sustain two hours of work during an eight-hour workday.” (Tr. 27.)
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The ALJ provided specific reasons for providing little weight to Dr. Hillam’s
opinions. The ALJ notes “Dr. Hillam bases his opinions, at least in part, on [Ms. Meza’s]
self-reported symptoms.” (Tr. 27.) The ALJ contrasts these reported symptoms with Dr.
Hillam’s objective medical testing, which indicated Ms. Meza has some decreased range
of motion, negative straight leg raises, a normal gait, and normal strength. (Tr. 28 (citing,
inter alia, tr. 861, 865, 869, 905, 909, 912, 916, 1195, 1210, 1248); see also Watkins, 50
F.3d at 1300–01.) Because the ALJ had substantial evidence to discount Ms. Meza’s
credibility, he also had substantial evidence to discount Dr. Hillam’s opinions to the
extent they relied on Ms. Meza’s self-reports.
The ALJ further discounted Dr. Hillam’s opinion because Dr. Hillam considered
Ms. Meza’s mental health in rendering his opinions, despite his lack of background or
assessment to support his mental health restrictions. (Tr. 28.) In doing so, the ALJ takes
into consideration that Dr. Hillam does not have expertise in the field of mental health
and does not treat Ms. Meza’s mental health issues—both proper bases to consider in
weighing a medical opinion under Watkins, 350 F.3d at 1300–01.
The ALJ also notes the inconsistency between Dr. Hillam’s opinion and Ms.
Meza’s daily activities. (Tr. 28.) Ms. Meza’s aquatic therapy, modified Zumba, spinning
class, regular church attendance, and care for her ailing mother led the ALJ to reject Dr.
Hillam’s findings. (Tr. 28 (citing tr. 861, 1189, 1209, 1222, 1247).) Courts frequently
uphold the ALJ’s reliance on activities of daily living as a basis to discount a medical
opinion assessing RFC below the level of such activities. See, e.g., Newbold v. Colvin,
718 F.3d 1257, 1266 (10th Cir. 2013) (considering ADLs as record support for
diminished weight finding).
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Because the ALJ provided detailed and legitimate reasons for according little
weight to Dr. Hillam’s opinion and supported that evaluation with substantial evidence,
this Court finds no error.
B. Dr. Walton
Ms. Meza also challenges the ALJ’s decision to give Dr. Walton’s opinion no
weight. (Pl.’s Opening Br. 17–18, ECF No. 17.) The ALJ, Ms. Meza argues, dismissed
Dr. Walton’s analysis without proper justification. (Pl.’s Opening Br. 17, ECF No. 17.)
The ALJ described Dr. Walton’s reports, which detail Ms. Meza’s pain symptoms
and inability to sit or stand for long periods, and acknowledged Dr. Walton qualified as a
treating provider.
(Tr. 28 (citing 1315–1320).)
Nevertheless, the ALJ found other
evidence in the record contradicted Dr. Walton’s assessment. (See tr. 28.) The ALJ cited
evidence that Ms. Meza attended a modified Zumba class and participated in spinning
exercises as contradicting Dr. Walton’s conclusion. (Tr. 28 (citing tr. 1222, 1247).) The
ALJ’s explanation constitutes the kind of “specific, legitimate reasons” Drapeau requires
an ALJ to provide when rejecting a medical opinion. See 255 F.3d at 1213 (quotation
marks and citations omitted). By evaluating the degree to which the broader record
supports Dr. Walton’s finding and identifying inconsistencies between Dr. Walton’s
opinion and the other records available, the ALJ satisfied his duty to explain why he
found the opinion unpersuasive. See Watkins, 50 F.3d at 1300–01.
C. Workability Report
Lastly, Ms. Meza contests the ALJ’s decision to grant “no weight” to Ms. Jex’s
opinion. (Pl.’s Opening Br. 18, ECF No. 17.) As the Decision notes, Ms. Jex conducted
an RFC evaluation and found, Ms. Meza’s “tolerance for work on a full or part time basis
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is poor.” (Tr. 31 (citing tr. 1108).) The ALJ rejected this opinion, however, noting Ms.
Meza’s “activities of daily living are not consistent with MSPT Jex opinions.” (Tr. 31.)
The ALJ supported this conclusion by citing medical records indicating Ms. Meza’s
activities of daily living and the remainder of the medical records do not support the
limitations given. (Tr. 31 (citing tr. 861, 1189, 1209,1222, 1247).) By this point in the
Decision and given the citations, the ALJ clearly stated the reasons for his conclusion,
which substantial evidence supports. Therefore, this Court finds no error.
For the reasons stated above, the Court AFFIRMS the ALJ’s medical source
evaluations.
V. Collateral Estoppel
Ms. Meza argues the ALJ violated the principles of collateral estoppel by finding
Ms. Meza capable of performing past relevant work as a production assembler and light
work generally. (Pl.’s Opening Br. 6-7, ECF No. 17.) The ALJ’s February 3, 2010
decision, Ms. Meza contends, binds the ALJ and requires him to find Ms. Meza has no
past relevant work and can perform only sedentary work. (Id. (citing tr. 204, 210).) On
November 29, 2011 the Appeals Council remanded that decision. (Tr. 217–220.)
“Res judicata may apply in a social security case when a previous determination
is made about the claimant's rights on the same facts and ‘on the same issue or issues, and
this previous determination has become final by either administrative or judicial action.’”
Gonzales v. Colvin, 515 F. App'x 716, 720 (10th Cir. 2013) (unpublished) (quoting
Poppa v. Astrue, 569 F.3d 1167, 1170 (10th Cir. 2009)). Ms. Meza’s case meets neither
of these requirements. The ALJ’s January 23, 2013 Decision rests upon a much broader
record of medical reports, including many documents created after the February 3, 2010
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decision. (See, e.g., tr. 1247, 1244, 1209.) Moreover, the ALJ’s remanded decision
never became final. See Gonzales, 515 F. App'x at 720. An ALJ’s decision becomes
final only if the Appeals Council denies a claimant’s request for review. See 42 U.S.C. §
1383(c)(3); 20 C.F.R. § 416.1481. The ALJ’s February 3, 2010 decision never became
final because the Appeals Council remanded the case for further consideration. (Tr. 217–
20.) For these reasons, the ALJ’s 2010 decision has no preclusive effect. Because the
ALJ’s 2010 decision has no preclusive effect, the Court finds collateral estoppel does not
preclude the January 23, 2013 Decision’s findings.
IV. Vocational Expert Testimony
Finally, Ms. Meza argues the ALJ erred by not resolving the conflict between the
Vocational Experts’ (“VE”) testimonies.
(Pl.’s Opening Br. 19–20, ECF No. 17.)
During the December 7, 2009 hearing, a VE asserted Ms. Meza could perform only
“[s]edentary work.” (Tr. 73–74.) In the January 8, 2013 Hearing, a different VE testified
Ms. Meza’s RFC permits her to perform “[l]ight work” that exists in significant numbers
in the national economy. (Tr. 183–84.)
SSR 00-4p discusses how ALJs should approach conflicts between vocational expert
testimony and the Dictionary of Occupational Titles (“DOT”). SSR 00-4p states in pertinent
part:
Occupational evidence provided by a VE or VS [vocational specialist] generally
should be consistent with the occupational information supplied by the DOT.
When there is an apparent unresolved conflict between VE or VS evidence and
the DOT, the adjudicator must elicit a reasonable explanation for the conflict
before relying on the VE or VS evidence to support a determination or decision
about whether the claimant is disabled. At the hearings level, as part of the
adjudicator's duty to fully develop the record, the adjudicator will inquire, on the
record, as to whether or not there is such consistency.
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SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). Ms. Meza does not allege that either VE’s
testimony conflicts with the DOT. (See Pl.’s Opening Br. 19–20, ECF No. 17.) Instead, she
identifies inconsistencies between the two testimonies. The ALJ has no obligation to resolve
such discrepancies. As noted earlier, the record developed and changed between 2009 and 2013,
including reports from the treating physician that Ms. Meza’s condition had improved, and she
lost considerable weight. (Tr. 890-91, 1188-90, 1193-95, 1246-1251.) Because the failure to
address inconsistencies between two testimonies does not constitute reversible error, the Court
AFFIRMS the ALJ’s reliance on the 2013 VE testimony.
V. Conclusion
Based on the foregoing, the Court finds that substantial evidence supports the
Commissioner’s Decision and that the Commissioner applied the correct legal standards. The
Court AFFIRMS the Commissioner’s decision in this case.
DATED this 30th Day of September, 2015.
BY THE COURT:
________________________________
Evelyn J. Furse
United States Magistrate Judge
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