Allen v. Colvin

Filing 26

MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED that the ALJs determination that Allen should be denied Social Security benefits be AFFIRMED. Signed by Magistrate Judge Dustin B. Pead on 10/27/2015. (jds)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

GREGG ALLEN,
Case No. 2:14-cv-904
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

MEMORANDUM DECISION

Magistrate Judge Dustin B. Pead
Defendant.

Plaintiff Gregg Allen (“Allen”) appeals the decision of the Acting Commissioner of
Social Security (“Commissioner”) denying his claim for disability insurance benefits (DIB)
under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq. Having considered
the parties’ briefs, the administrative record, the arguments of counsel, and the relevant law, the
Court AFFIRMS the Commissioner’s decision.
I.

PROCEDURAL HISTORY

This case involves Allen’s application for DIB in which Allen alleged that he became
disabled on May 1, 2008 due to anxiety and depression (Certified Administrative Record (“Tr.”)
153–59, 168, 172). The agency denied his application initially and on reconsideration
(Tr. 106-08, 110–12). Following an administrative hearing (Tr. 39–81), an administrative law
judge (“ALJ”) issued a decision finding that—because Allen retained the residual functional
capacity (“RFC”) to perform his past work as a computer programmer—Allen was not disabled
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at any time from his alleged onset of disability date through December 31, 2012, the date his
disability insurance status expired 1 (Tr. 24–38). When the Appeals Council denied Allen’s
request for review (Tr. 1–5), the ALJ’s decision became the final administrative decision for
purposes of judicial review. See 20 C.F.R. § 404.981 (2015). This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g).
II.
A.

STATEMENT OF RELEVANT LAW

Statutory and Regulatory Background
An individual is 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 . . . engage in any
other kind of substantial gainful work which exists in the national economy.” 42 U.S.C.
§ 423(d)(2)(A). The disabling impairment must last, or be expected to last, at least 12
consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214–15 (2002). The five-step
sequential evaluation process for determining disability under the Act is set forth at 20 C.F.R.
§ 404.1520(a)(4).
B.

Standard of review
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to determine

whether substantial evidence in the record as a whole supports the factual findings and whether
the correct legal standards were applied. See Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir.
1

“To become entitled to disability insurance benefits, you must have disability insured
status in the first full month that you are disabled.” 20 C.F.R. § 404.131(b)(1); see also
42 U.S.C. § 423(c)(1) (defining “insured” for purposes of a DIB claim); 20 C.F.R.
§ 404.320(b)(2) (discussing insured status for purposes of DIB benefits); Potter v. Sec’y of
Health & Human Servs., 905 F.2d 1346, 1348–49 (10th Cir. 1990) (“[T]he relevant analysis is
whether the claimant was actually disabled prior to the expiration of her insured status.”
(emphasis in original)).
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2014). “Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. (internal quotation and citation omitted). The Court “may
not reweigh the evidence nor substitute our judgment for the [Commissioner’s].” See id. In
reviewing an ALJ’s decision, a court “should, indeed must, exercise common sense” and “cannot
insist on technical perfection.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012).
III.

DISCUSSION

On appeal, Allen asserts that the ALJ erred at steps three and four of the sequential
evaluation (Dkt. 15, Pl.’s Br. 5–23).
A.

The step three errors are not harmful
At step three, Allen argues that the ALJ erred by not including the “B” or “C” criteria for

the anxiety listing. The Commissioner responds that Allen’s challenge at step three constitutes,
at worst, harmless error. The Court agrees. To meet the listed impairment for anxiety, a
claimant must establish that he meets the “A” criteria and either the “B” and “C” criteria of that
listed impairment. See, e.g., 20 C.F.R. 404, Subpt. P, App’x 1 § 12.06.
First, the ALJ’s opinion appears to suffer a typographical error, rather than an analytical
error. The ALJ expressly considered in his decision whether Allen met the “B” and “C” criteria
listings of 20 C.F.R. 404, Subpt. P, App’x 1 §§ 12.04 (affective disorders) and 12.08 (personality
disorders). The ALJ does not specifically reference the listed impairment of anxiety-related
disorders (20 C.F.R. 404, Subpt. P, App’x 1 § 12.06). Nonetheless, the ALJ specifically asked
the medical expert, Dr. Stein, to discuss whether Allen met the criteria for the listed anxietyrelated-disorders impairment under Section 12.06 during the hearing on this matter (Tr. 52–53).
Also, when discussing the “B” criteria for Sections 12.04 and 12.08, the ALJ found that Allen
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had a “mild” restriction of activities of daily living; “moderate” difficulties in maintaining social
functioning and in maintaining concentration, persistence, or pace; and no episodes of
decompensation which had been for an extended duration (Tr. 30). These findings are consistent
with Dr. Stein’s testimony at the hearing, which considered all three Listings in combination (Tr.
53). Even though the ALJ only included Listings 12.04 and 12.08 in his step three discussion
regarding the “B” criteria, these findings apply to all three Listings (12.04, 12.06, and 12.08)
because the criteria are identical. Moreover, the ALJ’s opinion discusses Allen’s anxiety at step
three, even if it omits the specific reference to the listed anxiety impairment (Tr. 30 (“Claimant
maintains that he becomes anxious . . . [and has an] inability to sustain concentration and
attention due to his depression and anxiety.”)). Accordingly, the ALJ appears to have considered
Section 12.06, though he omits a specific reference in his opinion. Even assuming this is error,
Plaintiff has not demonstrated that it was harmful with regard to the “B” criteria because the
record evidence indicates that Allen did not meet the “B” criteria for anxiety-related disorders.
Finally, the record as a whole demonstrates that Allen’s likewise did not meet the “C”
criteria of Listing 12.06. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (the court’s
determination of whether the ALJ’s ruling is supported by substantial evidence must be based on
the record as a whole). The record includes three doctors’ opinions (two DDS physicians and the
medical expert) stating that Allen’s anxiety does not meet “C” criteria (Tr. 54, 87, 98–99). The
ALJ discussed each of these opinions in his decision (Tr. 30,). Also, the ALJ’s discussion of
Allen’s anxiety at step four of the determination (Tr. 33) ameliorated any related step-three error.
See Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005) (“an ALJ’s findings at other
steps of the sequential process may provide a proper basis for upholding a step three conclusion
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that a claimant’s impairments do not meet or equal any listed impairment”). Thus, it appears that
the ALJ simply failed to include a specific reference to Section 12.06 in his opinion; but he did
not fail to consider whether Allen met the criteria for the listed anxiety impairment. Even to the
extent this omission could be classified as error, it was not harmful.
B.

Substantial evidence supports the ALJ’s residual functional capacity (RFC) and
step four finding
Allen raises a number of challenges to the RFC finding and the ALJ’s step four

determination that Allen was not significantly limited in his ability to understand, remember, and
carry out job instructions—including his ability to follow detailed instructions; his ability to
make work-related plans and goals; his ability to interact with supervisors and co-workers; and
his ability to engage in brief and superficial contact with the public (Tr. 31). Based on this RFC
and vocational expert testimony, the ALJ justifiably determined that Allen could perform his past
work as a computer programmer as it was generally performed (Tr. 34). These findings are
supported by substantial evidence and are free of legal error. Wall, 561 F.3d at 1052.
First, the Court can discern no error in the ALJ’s decision to reject Dr. Johnson’s opinion
that Allen would be absent from work more than four days a month (Tr. 34). The ALJ
appropriately considered all of the factors outlined in 20 C.F.R. § 404.1527 and provided “good
reasons in his written decision for the weight he gave the treating physician’s opinion.” Hamlin
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004); see also Oldham v. Astrue, 509 F.3d 1254,
1258 (10th Cir.2007) (finding no error where the ALJ did not expressly discuss all six factors in
deciding what weight to give medical opinion). And the ALJ complied with agency policy when
he rejected this portion of Dr. Johnson’s opinion weight because he found the record did not
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support those limitations (Tr. 33–34). SSR 96-8p, 1996 WL 374184, at *7 (“The RFC
assessment must always consider and address medical source opinions. If the RFC assessment
conflicts with an opinion from a medical source, the adjudicator must explain why the opinion
was not adopted.”). Here the ALJ explained that Dr. Johnson’s treatment notes did not indicate
that Allen would miss more than four days of work each month (Tr. 34; see generally Tr. 210–
27). And the bulk of Dr. Johnson’s records simply recite Allen’s statements about his living
arrangements and employment, rather than reflecting the doctor’s own observations and findings.
Cf. Raymond v. Astrue, 621 F.3d 1269, 1272 (10th Cir. 2009) (ALJ reasonably discounted
treating physician opinion which simply recited the claimant’s complaints).
Additionally, there is no internal inconsistency in the ALJ’s conclusion that Allen was
not significantly limited in his abilities to understand, remember, and carry out job instructions
despite finding his anxiety a “severe” impairment at step two. The reason is simple: step two and
step four are different standards. To find a “severe” impairment at step two requires only a
threshold showing that the claimant’s impairment has “more than a minimal effect on his ability
to do basic work activities.” Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988). To find a
disability at step four, on the other hand, requires that the claimant’s specific functional
limitations are such that he is unable to perform his past relevant work. 20 C.F.R. § 404.1520.
Thus, a step-two determination that Allen’s mental impairment is “severe” only allows the
sequential process to proceed; it does not reflect the severity of his functional limitations relevant
to step four. See Banks v. Colvin, 547 F. App’x 899, 903 (10th Cir. 2013) (unpublished).
Third, substantial evidence supports the mental limitations that the ALJ included in the
RFC assessment (Tr. 31). Dr. Johnson’s treatment notes did not indicate that Allen had difficulty
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with social interaction or attention and concentration (Tr. 210–27). While Dr. Heinbecker did
not provide an opinion regarding Allen’s functional limitations, his examination notes are
consistent with the RFC assessment, particularly his statement that there was no clear reason for
Allen’s alleged deficiencies in concentration, persistence, and pace (compare Tr. 31 with
Tr. 234–39). Further, Dr. Stein’s testimony and Allen’s testimony that he required intellectually
challenging work (Tr. 68, 69) also support the ALJ’s RFC assessment. Considering the record as
a whole, the mental limitations in the RFC assessment are supported by substantial evidence.
Wall, 561 F.3d at 1052.
Fourth, Allen asserts the ALJ should have more specifically considered the opinions of
the DDS doctors when formulating Plaintiff’s RFC. (Pl.’s Br. at 12.) Allen only provides a
citation to the regulation to support his argument. The Court’s own research revealed cases in
which courts found error where no medical opinions were considered. E.g. Vyskocil v. Astrue,
No. 11-1135, 2012 WL 2370200, at *5 (D. Kan. June 22, 2012) (remanding where the only
medical opinion, which came from a state agency consultant, was not addressed by the ALJ).
Here, a medical expert testified during the hearing and the ALJ addressed that expert’s opinion.
(Tr. 34.) Thus, the ALJ did consider the RFC of a medical consultant, who testified, but he did
not expressly mention every consultant’s opinion.
Moreover, Allen does not illustrate any error here is harmful. The DDS opinions do not
appear to contain any more than a summary of the other medical evidence the ALJ considered.
The opinions do not appear to differ from those of the testifying medical expert who indicated
that Allen had moderate difficulties with concentration and social interaction. (Tr. 33.) Allen
suggested during oral argument that the second of the DDS opinions suggested Allen was
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capable of only unskilled labor (Tr. 102). However, while Allen initially testified that he could
not do unskilled labor due to anxiety issues, Allen reversed his testimony in response to the
ALJ’s hypothetical and testified that “he could[ no]t do mundane jobs, and required something
that was intellectually challenging.” (Tr. 32). This testimony allows for a fair inference on the
ALJ’s part that Allen was limited due to disinterest, not disability. Allen has not persuaded the
Court that this conclusion would be different notwithstanding the DDS opinion that Allen was
limited to unskilled labor.
1.

Alleged errors under Winfrey v. Chater

Allen also argues that the ALJ made step four errors by not asking the vocational expert
about the mental demands of Allen’s past work and by not matching his RFC with his job duties
(Pl.’s Br. 13-18). The Tenth Circuit described the three-phases of a step-four analysis in Winfrey
v. Chater, 92 F.3d 1017 (10th Cir. 1996). At phase one, an ALJ determines the claimant’s
physical and mental RFC. Id. at 1023. At phase two, the ALJ determines the physical and
mental demands of the claimant’s past relevant work. Id. At phase three, the ALJ determines
whether the claimant’s RFC is consistent with the ability to meet the job demands of the
claimant’s past relevant work. Winfrey, 92 F.3d at 1023.
The ALJ’s phase-one findings are noted in the above discussion of the RFC assessment.
At phase two, the ALJ explicitly set forth the demands of Allen’s past relevant work as a
computer programmer, finding it a “skilled sedentary occupation” (Tr. 34). See Miller v. Astrue,
496 F. App’x 853, 858 (10th Cir. 2012) (finding that a characterization of “moderate to complex
work in a habituated work setting” provided the ALJ with sufficient information regarding

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mental demands of plaintiff’s past relevant work relevant to the mental limitations in her RFC).
Skilled work requires:
qualifications in which a person uses judgment to determine the machine
and manual operations to be performed in order to obtain the proper form,
quality, or quantity of material to be produced. Skilled work may require
laying out work, estimating quality, determining the suitability and needed
quantities of materials, making precise measurements, reading blueprints
or other specifications, or making necessary computations or mechanical
adjustments to control or regulate the work. Other skilled jobs may
require dealing with people, facts, or figures or abstract ideas at a high
level of complexity.
20 C.F.R. § 406.1568(c) (defining skilled work). Thus, contrary to Allen’s position, the ALJ had
sufficient information regarding the mental demands of Allen’s past work as a computer
programmer.
Moreover, the Court is not persuaded by the authority Allen cites to support this
argument. In Henrie v. U.S. Deptartment Health & Human Services, the Tenth Circuit remanded
an ALJ’s decision because the claimant’s “prior occupation was never mentioned in the
evidence.” 13 F.3d 359, 361 (10th Cir. 1993). In Barnes v. Colvin, the Tenth Circuit remanded
an ALJ’s decision for failing to consider whether the claimant could face the demand of
telephone contact, which was included in the Dictionary of Occupational Titles (“DOT”) listing
for the claimant’s past work, but not addressed by the VE or the ALJ. No. 14-1341, 2015 WL
3775669, *3 (10th Cir. June 18, 2015) (unpublished). Here, the ALJ specifically addressed
Allen’s prior occupation, computer programmer (DOT # 030.162-010) (Tr. 32). Allen does not
identify any particular demand of the job that the ALJ did not address. Accordingly, Allen has
not identified any error in phase two of the Winfrey analysis.

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At phase three of the Winfrey analysis, the ALJ relied on vocational expert (“VE”)
testimony—in response to a hypothetical question about an individual who was the same age and
who had the same education, work experience, and RFC as Allen—to find that Allen retained the
ability to perform his past work as a computer programmer based on his assessed RFC (Tr. 34;
see also Tr. 73–76). Unlike Barnes v. Colvin, the ALJ in this case asked the VE whether the
computer programmer job required more than superficial contact with the public in determining
whether Allen’s RFC allowed him to perform his past work (Tr. 76). Also, the ALJ discussed
this testimony in his decision (Tr. 34). See Lately v. Colvin, 560 F. App’x 751, 755 (10th Cir.
2014) (unpublished) (rejecting the plaintiff’s arguments challenging the ALJ’s step-four finding
based on DOT descriptions where “the ALJ asked VE whether [the plaintiff] could perform her
past relevant work with her restrictions, and the VE indicated that she could.”).
To the extent that Allen takes issue with the fact that the ALJ did not obtain VE
testimony about Allen’s alleged inability to concentrate, the ALJ committed no error. While the
ALJ acknowledged at step two of the sequential evaluation that Allen’s severe mental
impairments caused moderate limitations maintaining concentration, persistence, and pace, the
record as a whole supports the scope of the mental limitations that the ALJ included in the RFC
assessment (Tr. 31). See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (ALJ was not
required to include in his RFC assessment limitations that were not supported by the medical
record). For example, on mental status examination, Allen had no difficulty serially subtracting
seven from fifty (Tr. 238). See 20 C.F.R. pt. 404, subpt. P, appx. 1 § 12.00(C)(3) (“On mental
status examinations, concentration is assessed by tasks such as having you subtract serial sevens
or serial threes from 100”). And Allen testified that he would become bored with mundane jobs
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and required intellectually challenging work (Tr. 68, 69). Thus, the ALJ considered all of this
information when assessing Allen’s RFC and determined that Allen did not have functional
limitations regarding attention and concentration (Tr. 31). Because the ALJ did not include any
limitations on attention and concentration in the RFC, there was no need to determine whether an
individual with such limitations could perform work as a computer programmer. Cf. Bean v.
Chater, 77 F.3d 1210, 1214 (10th Cir. 1995) (“The ALJ was not required to accept the answer to
a hypothetical question that included limitations claimed by plaintiff but not accepted by the ALJ
as supported by the record.”).
Allen has the burden to establish that he is “disabled” under the Act. 42 U.S.C.
§ 423(d)(2)(A). While substantial evidence must support the ALJ’s findings, Allen bears the
burden of demonstrating that he cannot perform his past work. See Williams v. Bowen, 844 F.2d
748, 751 n.2 (10th Cir. 1988). Allen has not met his burden.
C.

The hearing record was sufficient
The Court is likewise unpersuaded by Defendant’s argument that the hearing record was

insufficient. The Court recognizes the ALJ’s duty to develop the factual record is “heightened”
when a claimant proceeds pro se. Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359,
361 (10th Cir. 1993). Nonetheless, the record does not appear incomplete here. Citing out-ofcircuit case law, Allen asserts that the ALJ failed to develop the record at the hearing
(Pl.’s Br. 21–22). Allen’s argument does not withstand scrutiny. Allen depends on the
diagnoses in the September 2013 report of Ralph Grant, Ph. D.— a document that was not
manufactured until after the ALJ issued his decision—to assert that Allen’s anxiety was more
significant than the ALJ found (Pl.’s Br. 21). As an initial matter, it is illogical to expect an ALJ
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to base his hearing inquiry on a document that did not exist at the time of the May 2013 hearing.
The ALJ’s duty to develop the record could not be triggered by a report rendered more than nine
months after the expiration Allen’s insured status. Likewise a claimant must show that he was
disabled during the period when he had insured status in order to receive DIB benefits. SSR 8320, 1983 WL 31249, at *1. Perhaps more importantly, Allen has not identified any information
that was missing from the record. Instead, he cites to the record discussing his own testimony. In
this way Allen’s argument is self-defeating. Rather than examine any facts that the ALJ did not
consider, Allen discusses the facts in the record and argues the ALJ reached the wrong
conclusions. This does not establish that the record is incomplete. The Court concludes the
record was sufficiently developed for the ALJ to make a decision regarding Allen’s application
for benefits. See Younger ex rel. Younger v. Shalala, 30 F.3d 1265, 1269 (10th Cir. 1994) (ALJ
satisfied duty of inquiry in a case with a pro se claimant where the record as a whole showed
ALJ apprised himself of pertinent facts and circumstances).
D.

The Appeals Council appropriately considered Dr. Grant’s report
Allen argues that the Appeals Council erred by not considering Dr. Grant’s report—dated

nine months after Allen’s disability insured status expired—asserting that the opinion was
retrospective (Pl.’s Br. 23 (citing Tr. 18)). The text of Dr. Grant’s report does not indicate that
the report is retrospective (Tr. 7–18). Moreover, Allen fails to make a developed argument or
cite any authority to support his position that the report is retrospective. Eateries, Inc. v. J.R.
Simplot Co., 346 F.3d 1225, 1232 (10th Cir. 2003) (“A party forfeits an issue it does not support
with legal authority or argument.” (citation and quotation omitted)). There is no evidence
besides speculation to support the statement that Dr. Grant’s findings and proposed limitations
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are retrospective. Cf. Adams v. Chater, 93 F.3d 712, 714-15 (10th Cir. 1996) (“While a treating
physician may provide a retrospective diagnosis of a claimant’s condition, a retrospective
diagnosis without evidence of actual disability is insufficient.” (quotation and citation omitted)).
Further, all of Dr. Grant’s interactions with Allen occurred at least six months after his insured
status expired. SSR 83-10, 1983 WL 31251, at *8 (“Under Title II, a period of disability cannot
begin after a worker’s disability insured status has expired.”); SSR 83-20, 1983 WL 31249, at
*1; see also Hamlin v. Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004) (medical evidence
beyond the date last insured may be considered to the extent it sheds light on the nature and
severity of claimant’s condition during the relevant time period). Accordingly, Dr. Grant’s
examination and report are not material to the relevant period. Remand is not appropriate in this
case. See Villalobos v. Colvin, 544 F. App’x 793, 796 (10th Cir. 2013) (unpublished) (refusing
the remand based on a doctor’s opinion submitted only to the Appeals Council, where the
doctor’s diagnosis was not retrospective).
CONCLUSION
The Commissioner’s decision is supported by substantial evidence and free from harmful
legal error. Accordingly, IT IS HEREBY ORDERED that the ALJ’s determination that Allen
should be denied Social Security benefits be AFFIRMED.
Dated this 27th day of October, 2015.

_________________________________
DUSTIN B. PEAD
UNITED STATES MAGISTRATE JUDGE

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