Hall v. Colvin

Filing 24

MEMORANDUM DECISION AND ORDER - Plaintiff's complaint is dismissed and the Commissioner's decision to deny Ms. Hall's applications for Social Security benefits is affirmed. Signed by Judge David Sam on 10/7/2015. (jds)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
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MICHELLE HALL,

)
Plaintiff,
vs.

CAROLYN W. COLVIN,
Acting Commissioner Social
Security Administration,

Case No.

2:15-CV-00044 DS

)
)
)

MEMORANDUM DECISION
AND ORDER

)
)

Defendant.

)

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I. INTRODUCTION
Plaintiff Michelle Hall filed an application for Social Security benefits alleging a
disability beginning on July 1, 2011. She was 31 years of age at the alleged onset date.
Her application was denied initially and on reconsideration. After an administrative
hearing, an administrative law judge (“ALJ”) concluded at step four of the five-part
sequential evaluation process1 , that Plaintiff has the residual functional capacity to perform
the requirements of her past relevant work and, therefore, is not disabled. Plaintiff’s
request for review was denied by the Appeals Council.
Ms. Hall now seeks judicial review of the decision of the Commissioner of Social
Security denying her claim for benefits. She contends that the ALJ erred in that: (1) he
improperly evaluated the medical opinion evidence from Dr. Seegmiller her treating
See 20 C.F.R. § 416.920. See also Williams v. Bowen, 844 F.2d 748, 750-52 (10th
Cir. 1988)
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podiatrist; (2) he failed to properly evaluate Plaintiff’s ability to ambulate; and (3) he failed
to properly evaluate Plaintiff’s credibility.
II. STANDARD OF REVIEW
The Court reviews the ALJ’s decision only to determine if the factual findings are
supported by substantial evidence and if he applied the correct legal standards. Goatcher
v. United States Dep’t of Health & Human Servs., 52 F.3d 288, 289 (10th Cir. 1995).
Substantial evidence is “more than a mere scintilla,” and “means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted). The
Court may not reweigh the evidence or substitute its judgment for that of the
Commissioner. Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995).
III. DISCUSSION
A. Evaluation of Treating Physician Dr. Seegmiller’s Medical Opinion.
The Court rejects Plaintiff’s first claim that the ALJ improperly evaluated the
opinions of David Seegmiller, D.P.M. her treating podiatrist of many years. The ALJ stated
that he gave only partial weight “to the opinion of her treating doctor” as it related “to the
severity of her pain and her limitations” and did “not give any of the treating doctor’s
opinions controlling weight because of lack of supporting evidence and because of the
reasonable conflicting opinions from other sources.” R. 48, 49.
Plaintiff contends that the ALJ’s statement is not supported by the record which
contains ample support for Dr. Seegmiller’s opinions. Plaintiff also urges that the ALJ
erroroneously relied on the testimony of Ronald Devere. M.D., a neurologist called as a

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medical expert (“ME”), who stated that he was not testifying as an orthopedist or foot
specialist. Without the testimony from the medical expert regarding the severity of her
orthopedic issues, Plaintiff argues that the ALJ does not have substantial evidence that
would support the rejection of Dr. Seegmiller’s testimony.
The ALJ must give substantial weight to the evidence and opinions of the claimant’s
treating physicians unless good cause is shown for a finding to the contrary. Frey v.
Bowen, 816 F.2d 508, 513 (10th Cir. 1987); see also Drapeau v. Massanari, 255 F.3d 1211,
1213 (10th Cir. 2001)(“ALJ is required to give controlling weight to a treating physician’s
well-supported opinion, so long as it is not inconsistent with other substantial evidence in
the record”). A treating physician’s opinion may be rejected if it is not “well supported by
clinical and laboratory diagnostic techniques” and if inconsistent with other substantial
evidence of record. Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027,
1029 (10th Cir. 1994). See also Social Security Ruling (SSR) 96-2p, 1996 WL 374188, at
*5 (“decision must contain specific reasons for the weight given to the treating source’s
medical opinion, supported by the evidence ..., and must be sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight”).
The ALJ’s decision is consistent with the above requirements. For example, citing
to the record the ALJ rejected Dr. Seegmiller’s opinion that Plaintiff must lie down for two
hours in an eight-hour workday as not consistent with the record evidence finding that the
“evidence as a whole indicates that the claimant can control her foot pain by limiting work
on her feet and refraining from activities and conditions that aggravate the pain, like
working as a crossing guard (10F p.1), sitting on her feet (10F p.3), standing a lot (15F
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p.12), and sitting on her legs Indian style (15F p.6).” See R.. 47. Additionally, as the
Commissioner notes, none of the examination notes reflect that Plaintiff reported that she
needed to lie down or that Plaintiff was directed to lie down by any of her practitioners.
See R. 346-85, 399-529, 537-50, 554-89, 590-606, 666-91.
Citing to the record, the ALJ observed that Plaintiff’s pain is not continuous, that it
changes locations and causes, that Plaintiff reported significantly reduced pain after right
foot surgery, and that while Plaintiff experienced a variety of foot impairments that caused
her pain, many resolved with treatment and none were disabling. See R. 48. And as the
Commissioner notes, there is no record evidence that Plaintiff ever complained of foot
pain when she saw her general practitioner. See, e.g., R. 383-529 , 590-606. However,
on one occasion only, Plaintiff complained of worsening foot pain to Michael A. Gomez,
PA-C on a visit to the office of her general practitioner. R. 437.
Based on record evidence the ALJ found that Dr. Seegmiller’s noted limitations for
Plaintiff, such as the inability to ambulate effectively, were inconsistent with Plaintiff’s own
statements. The ALJ stated: “Other testimony by the claimant indicates that she can walk
up stairs with use of a handrail, though with pain. That claimant said in one statement that
she can walk 10-20 minutes before needing to stop and rest (4E p. 6; 8E p. 6) She also
said in one statement that she shops in stores 1-2 times a week for 1-2 hours (4E p. 4).
Her husband indicates she cannot carry their 30-pound son any longer than 10-15 minutes
while walking around (15 E p.1).” R. 43. See Newbold v. Colvin, 718 F.3d 1257, 1266
(10th Cir. 2013)(finding that substantial evidence supported the ALJ’s decision discounting
the treating physician’s opinion that the claimant had extreme limitations based on the
claimant’s daily activities). Additionally, as the Commissioner notes, although Plaintiff
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reported that she quit working as a TSA agent because of foot pain, record evidence
contemporaneous with her decision to quit suggest otherwise. Compare R. 82-83 with R.
365. Plaintiff reported to Dr. Seegmiller that she quit her job “due to pain in feet and desire
to stay home with child. States she feels like she could work even with the discomfort.”
R. 365.
As for Plaintiff’s position that the ALJ improperly rejected the testimony of Dr.
Seegmiller based on the testimony of Ronald Devere, M.D., the Court finds no error. A
neurologist, Dr Devere was called as a medical expert because Plaintiff argued that Dr.
Seegmiller’s assessment established that she met the criteria of listing 1.02.2 R. 42.
Dr. Seegmiller diagnosed Plaintiff with bilateral plantar fasciitis, tarsal tunnel syndrome,

Listing 1.02 concerns the major dysfunction of a joint. See 20 C.F.R. pt. 404, subp
P, appx. 1, § 1.02.
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and subtalar joint capsulitis. Op. Br. at 6, 11; R. 687-688.3 The ME testified that without
an EMG a diagnosis of tarsal tunnel can’t be made. R. 73. He was not convinced that
Plaintiff has any neurological problem or tarsal tunnel syndrom. 4 Id
The Commissioner notes, without controversy, that “[t]he preamble to the
musculoskeletal listings (1.00, et seq.) explains that the physical examination must include
a detailed description of, inter alia, neurological findings appropriate to the specific

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In this regard, the ME testified, in part, as follows:

A. Well, the main thing that I see in the records ... is that there’s some
problems with the –the claimant’s foot. And the diagnoses that were tossed
around ... is a tarsal tunnel, which is an entrapment of the – one of the small
nerves at the ankle versus something called plantar fasciitis, which is a pain
disorder of the foot from inflammation and is a different kind of disorder than
tarsal tunnel. The neurological ... exam was basically normal. There was
no sensory loss in the feet. The muscle strength was normal. There was no
atrophy. And the diagnosis was based on probably the fact that there was
pain in the ankle and there’s a test that we, we use which is not diagnostic
call [sic] tanell [sic](PHONETIC). And what that means is if you tap the
medial side of the ankle where the – your big bone is at the ankle, you
sometimes can reproduce tingling in the nerve if you tap the nerve, you
know, with a reflex hammer, much the same in the hand. ... That it itself [sic]
is not a diagnosis. It is made also by electrical studies, which is an ENG [sic]
and I do not see any evidence from the record that there was an ENG [sic]
was done.
R. 68-69.
From this and other testimony, the ALJ stated: “The medical expert testified that
the record shows that the claimant does not meet any neurological listing for tarsal tunnel
syndrome, a neurological entrapment, or plantar fasciitis, which is a pain disorder with
inflammation.” R. 42. The ALJ further noted: “The medical expert did not address to [sic]
orthopedic issues as separate from the neurological issues related to the feet. The
claimant argues that the treating foot specialist’s assessment (15F) shows that the claimant
meets the criteria of listing 1.02 for orthopedic reasons.” (Id.).
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impairment being evaluated”5 and that “[t]wo of Plaintiff’s impairments the ALJ found to be
‘severe’ have a neurological component.” Ans. Br. at 7-8 (footnote omitted).

It was

reasonable, therefore, for the ALJ to receive testimony from a neurologist in the context
of determining whether Plaintiff met one of the listings.6 Other than instances that don’t
appear to apply here, see Ans. Br. at 8, n.5, the ALJ has the discretion to receive ME
testimony and to determine the appropriate medical specialty of the ME. Hearings,
Appeals, and Litigation Law manual (HALLEX) I-2-5-36C.7 Additionally, as discussed in
Section B below, Plaintiff’s claim that her foot impairments met Listing 1.02 requires her
to show involvement of a major peripheral weight-bearing joint resulting in an inability to
ambulate effectively. The ALJ rejected Plaintiff’s Listing 1.02 argument because he found

See 20 C.F.R. pt. 404, subpt. P, appx. 1 § 1.00.D (“The physical examination must
include a detailed description of the rheumatological, orthopedic, neurological, and other
findings appropriate to the specific impairment being evaluated.”).
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The Court finds no merit in Plaintiff’s position that the ALJ erred by not mentioning
Dr. Seegmiller’s letter dated Sept. 5, 2013 submitted after the hearing. The letter stated,
among other things, that the ME’s emphasis on EMG testing was misplaced on Plaintiff’s
specific issues. The ALJ does not state that he did not consider the letter. Indeed, the ALJ
stated, “I do not give any of the treating doctors opinions controlling weight because of lack
of supporting evidence and because of reasonable conflicting opinions from other
sources.” R. 49. In this case the ME testified that there was no EMG study which would
be needed for diagnosis of tarsal tunnel. R. 73-74. The ALJ noted as much as a reason
for finding that Plaintiff did not have a listed impairment. R. 42.
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The ALJ stated:
The medical records indicate that the claimant’s foot problems were
neurological (tarsal tunnel syndrome, neuroma, peroneal nerve entrapment),
arthritis, heel spur, fasciitis, and subtalar capsulitis, which were described as
doing well and appeared to have resolved (10F p.1). There is no radiological
or other appropriate medically acceptable imaging evidence of joint
dysfunction in the record as is required to meet listing 1.02.

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R. 43.
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that Dr. Seegmiller’s opinion, that Plaintiff could not ambulate effectively, was contradicted
by Plaintiff’s testimony and other evidence of record.
The record, including ME Ronald Devere, M.D.’s testimony, reasonably can be
viewed as not supporting Dr. Seegmiller’s limitations. Plaintiff did not experience sensory
abnormalities and had normal neurological examinations and strength in her lower
extremities. See, e.g. , R. 69, 348, 554, 561, 569. The record also reflects that Plaintiff
cared for herself independently, got pregnant and later cared for her infant child, drove,
shopped, prepared meals, and cared for the home. R. 76-77, 237, 238, 532. See
Castellano v. Sec’y of Health and Human Servs. 26 F.3d 1027, 1029 (10th Cir.
1994)(claimant’s daily activities were a reason for rejecting treating physician’s opinion
that the claimant was totally disabled).
As to Plaintiff’s observation that the disability determination services (DDS)
physicians assessed Plaintiff with a sedentary RFC, the Court agrees with the
Commissioner that the “fact has no bearing on the validity of the ALJ’s decision that
Plaintiff could perform her past sedentary work (Tr. 49-50)”.8 Ans. Br. at 9.
B. Evaluation of Plaintiff’s Ability to Ambulate.
Ms. Hall urges that the ALJ’s finding regarding whether she met or equaled a listing
was not supported by substantial evidence due to his failure to properly define the inability
to ambulate effectively. Plaintiff contends her testimony that it was “a little harder” to walk

The Court agrees with the Commissioner that Plaintiff fails to show how the DDS
opinions and the ALJ’s RFC amounts to reversible error. See Shinseki v. Sander, 556 U.S.
396, 409 (2009)(citations omitted) (“the burden of showing that an error is harmful
normally falls upon the party attacking the agency’s determination”).
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on rough or uneven surfaces and Dr. Seegmiller’s opinion that she was unable to walk
more than one block on rough or uneven ground is sufficient evidence to demonstrate that
she meets this portion of listing 1.02 because she is unable to ambulate effectively.
At the hearing before the ALJ, Plaintiff’s counsel, as noted, urged that her bilateral
foot impairments met Listing 1.02, which requires the claimant to show involvement of one
major peripheral weight-bearing joint resulting in an inability to ambulate effectively. During
testimony, when Plaintiff was asked if she could walk on rough or uneven surfaces, “like
at a park or something”, she responded: “It’s a little harder for me because I don’t have
feeling in the bottom of my right heel so I kind of have to take it at a slower pace and it
does make it a little more painful, compensation with the other foot.” R. 88. Dr. Seegmiller
her treating doctor had opined that Plaintiff is not able to walk one block or more on rough
or uneven ground. R. 667.
The Court finds no error in the ALJ’s evaluation of Plaintiff’s ability to ambulate.9
The ALJ concluded that Ms. Halls’s testimony did not establish an inability to ambulate
effectively because “her testimony does not indicate that she cannot walk on uneven

Functional loss for purposes of a musculoskeletal impairment is defined as the
“inability to ambulate effectively on a sustained basis” and “must have lasted, or be
expected to last, for at least 12 months.” 20 C.F.R. pt. 404, subpt. P, appx. 1, § 1.00
B(2)(a).
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surfaces at a reasonable pace.” 10 R. 43. He cited other record evidence that Plaintiff can
ambulate effectively. 11 See id. And he concluded that the opinion of Dr. Seegmiller was
contradicted by Plaintiff’s testimony. Plaintiff points to no other evidence that she is unable
to ambulate effectively. In sum, the ALJ cited record evidence and testimony from which
he could reasonably conclude that Plaintiff could ambulate effectively as defined and, that
Dr. Seegmiller’s statement to the contrary was inconsistent with other evidence of record.
C. Evaluation of Plaintiff’s Credibility.
Lastly, Plaintiff contends that the ALJ’s stated reasons for finding Plaintiff not
credible are not supported by substantial evidence. See Op. Br. at 15-16.
“‘Credibility determinations are peculiarly the province of the finder of fact, and [the
court] will not upset such determinations when supported by substantial evidence.’” Kepler
v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)(quoting Diaz v. Secretary of Health & Human
Servs., 898 F.2d 774, 777 (10th Cir. 1990)). Among the factors the ALJ may consider in
evaluating a claimant’s complaints are “the levels of [her] medication and [its]
effectiveness, ... the frequency of [her] medical contacts, the nature of [her] daily activities,

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Examples of ineffective ambulation include, but are not limited to:

the inability to walk without the use of a walker, two crutches or two canes;
the inability to walk a block at a reasonable pace on rough or uneven
surfaces; the inability to use standard public transportation; the inability to
carry out routine ambulatory activities, such as shopping and banking; and
the inability to climb a few steps at a reasonable pace with the use of a single
hand rail.
20 C.F.R. pt. 404, subpt. P, appx. 1, § 1.00 B(2)(b)(2).
“Ineffective ambulation is defined generally as having insufficient lower extremity
functioning (see 1.00J) to permit independent ambulation without the use of a hand-held
assistive device(s) that limits the functioning of both upper extremities.” 20 C.F.R. pt. 404,
subpt. P, appx. 1, § 1.00 B(2)(b)(1).
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subjective measures of credibility that are peculiarly within the judgment of the ALJ, ... and
the consistency or compatibility of nonmedical testimony with objective medical evidence.”
Id. The ALJ was not required to set forth “a formalistic factor-by-factor recitation of the
evidence” he relied on in evaluating Plaintiff’s credibility. Qualls v. Apfel, 206 F.3d 1368,
1372 (10th Cir. 2000). “So long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility”, the credibility determination is adequate. Id. If the
ALJ disbelieved claimant’s allegations, he must explain what evidence led her to conclude
the claimant’s allegations were not credible. Kepler v. Chater, 68 F. 3d. at 391.
The Court concludes that the ALJ fulfilled the above obligation and sees no need
to belabor the issue. The ALJ summarized Plaintiff’s subjective complaints, finding them
partially credible, and stated his reasons for so finding . See, e.g., R. 43-48. See also
Ans. Br. at 13-15.
IV. CONCLUSION
The Court concludes that the Commissioner’s decision, that Plaintiff was not
disabled within the meaning of the Social Security Act, is supported by substantial
evidence of record and is not the result of any legal error which has been brought to the
Court’s attention.
Therefore, based on the foregoing reasons,

as well as the Commissioner’s

opposing memorandum, Plaintiff’s Complaint is dismissed and the Commissioner’s

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decision to deny Ms. Hall’s applications for Social Security benefits is affirmed.
IT IS SO ORDERED.
DATED this 7th day of October, 2015.
BY THE COURT:

DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT

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