Rafferty v. Colvin

Filing 31

MEMORANDUM DECISION AND ORDER - The Court AFFIRMS the ALJ's decision. Signed by Magistrate Judge Evelyn J. Furse on 3/27/2017. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
PATRICK RAFFERTY,

MEMORANDUM DECISION AND
ORDER AFFIRMING THE
COMMISSIONER’S FINAL
DECISION DENYING DISABILITY
BENEFITS TO PLAINTIFF

Plaintiff,
vs.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,

Court No. 2:15-cv-00768-EJF
Magistrate Judge Evelyn J. Furse

Defendant.

Plaintiff, Patrick Rafferty, pursuant to 42 U.S.C. § 405(g), seeks judicial review of 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). After
careful review of the entire record, the parties’ briefs, and arguments presented at a hearing held
on February 17, 2017, the undersigned concludes that the Commissioner’s decision is supported
by substantial evidence and free of harmful legal error and is, therefore, AFFIRMED.
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 Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial
evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Id. (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)). The
Court may neither “reweigh the evidence [n]or substitute [its] judgment for the [ALJ’s].” Id.

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill will be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
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(quoting Hackett, 395 F.3d at 1172). Where the evidence as a whole can support either the
agency’s decision or an award of benefits, the Court will affirm the agency’s decision. See
Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
In this case, Mr. Rafferty claimed disability at the age of 27, based on degenerative disc
disease, hearing loss, arthritis in his fingers, and joint pain. (The certified copy of the transcript
of the entire record of the administrative proceedings relating to Mr. Rafferty (hereinafter, “Tr.”)
109, 133, ECF No. 7.) He obtained a GED and had past relevant work as a tractor/trailer driver,
construction worker, and maintenance mechanic. (Id. at 134.) The ALJ followed the five-step
sequential evaluation process for evaluating disability claims. (Id. at 11-23); see generally 20
C.F.R. § 404.1520(a)(4). As relevant here, the ALJ found that Mr. Rafferty retained the residual
functional capacity (RFC) to perform a limited range of light work. (Tr. 15.) Considering this
RFC, the ALJ found – consistent with the vocational expert’s testimony – that Mr. Rafferty
could not perform his past relevant work but could perform other jobs existing in significant
numbers in the national economy. (Id. at 21-22.) The ALJ thus concluded that Mr. Rafferty had
failed to establish disability under the Act. (Id. at 22.) The Court finds that substantial evidence
in the record supports the ALJ’s factual findings and that the ALJ applied the correct legal
standards.
I.

The ALJ Committed Harmless Error in Failing to Analyze Whether Mr. Rafferty
Met or Medically Equaled Listing 1.04A.
Mr. Rafferty first asserts that the ALJ erred in finding that he did not meet or equal

Listing 1.04A (disorders of the spine). (Pet’r Opening Br. (Pl. Br.) 12-17, ECF No. 17.) As a
preliminary matter, the Court notes that Mr. Rafferty had the burden at step three to provide
medical evidence demonstrating that his impairments met or medically equaled a Listing. See
Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989); Fischer-Ross v. Barnhart, 431 F.3d 729, 733

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(10th Cir. 2005). Meeting or equaling the requirements of a Listing at step three of the
sequential evaluation process is “a very high standard.” McCoy v. Astrue, 648 F.3d 605, 612
(8th Cir. 2011). “For a claimant to show that his impairment matches a listing, it must meet all
of the specified medical criteria. An impairment that manifests only some of those criteria, no
matter how severe, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in
original). “To show that an impairment or combination of impairments meets the requirements
of a listing, a claimant must provide specific medical findings that support each of the various
requisite criteria for the impairment.” Lax, 489 F.3d at 1085 (citing 20 C.F.R. §§ 404.1525,
416.925).
To meet Listing 1.04A, a claimant must have a disorder of the spine (e.g., herniated
nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, or vertebral fracture) resulting in compromise of a nerve root or the spinal cord.
See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04. In addition, Listing 1.04A requires all of the
following:
Evidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight-leg raising test (sitting
and supine)[.]
Id. To show equivalency, the claimant must present medical findings “equal in severity to all
the criteria for the most similar listed impairment.” Zebley, 493 U.S. at 531.
The Court finds the ALJ erred in failing to analyze Listing 1.04 and a potential
equivalency finding. Sufficient evidence existed in the record that Mr. Rafferty brought to the
ALJ’s attention, that the ALJ should have explicitly analyzed Listing 1.04 and the potential for
an equivalency finding based on Mr. Rafferty’s condition in combination with his obesity.

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However, because the ALJ elsewhere discussed evidence supporting a finding that Mr. Rafferty
did not meet or equal this Listing, the Court concludes that any error was harmless. See FischerRoss, 431 F.3d 733 (“an 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.”). Specifically, as seen below, the ALJ’s determination of Mr.
Rafferty’s capabilities and his crediting of medical testimony makes clear that the ALJ would not
have found Mr. Rafferty’s condition meets or equals Listing 1.04.
II.

The ALJ’s Assessment of Mr. Rafferty’s RFC Complied with Social Security Ruling
(SSR) 96-8p.
Next, Mr. Rafferty argues that the ALJ did not provide a “proper function-by-function

assessment” of his RFC. (Pl. Br. 17-19, ECF No. 17.) Courts within the Tenth Circuit have
consistently rejected Mr. Rafferty’s argument that a hyper-technical function-by-function
analysis is required when assessing a claimant’s RFC. See Hendron v. Colvin, 767 F.3d 951,
956-57 (10th Cir. 2014); Stone v. Colvin, No. CIV-14-612-STE, 2015 WL 5231033, at *3
(W.D. Okla. Sept. 8, 2015) (unpublished). The court in Hendron noted that the
function-by-function assessment ensures that an ALJ does not overlook limitations or restrictions
that would narrow the ranges and types of work that a claimant can perform. See Hendron,
767 F.3d at 956 (citing SSR 96-8p, 1996 WL 374184, at *3). Here, the Court finds no evidence
that the ALJ overlooked any limitations or restrictions in this case. The ALJ determined that Mr.
Rafferty could perform light work with only occasional climbing of ramps and stairs, stooping,
crouching, and crawling; never climbing ropes and scaffolds; frequently kneeling; and having no
exposure to vibration and hazards such as heights and dangerous moving machinery. (Tr. 15.)
The ALJ’s decision demonstrated that he gave deference to the medical opinions that supported

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his assessment of Mr. Rafferty’s RFC. (Id. 15; see also id. at Tr. 61-63.) Thus, the ALJ’s RFC
assessment was based upon substantial evidence.
Further, Mr. Rafferty’s argument that the ALJ was required to tie evidence to each
specific finding in the RFC, (Pl. Br. 17-19, ECF No. 17), is unsupported. See Banks v. Astrue,
537 F. Supp. 2d 75, 85 (D.D.C. 2008). “Although the language of SSR 96-8p requires that the
ALJ’s RFC assessment ‘must address . . . the remaining exertional . . . capacities of the
individual,’ this does not require written articulation of all seven strength demands.” Id. at 85
(emphasis in original) (quoting SSR 96-8- at *5); see also Hendron, 767 F.3d at 954-55
(affirming the ALJ’s narrative discussion of the evidence, which supported the RFC assessment).
The Court concludes that the ALJ’s RFC assessment was in proper form and supported by
substantial evidence.
III.

The ALJ Reasonably Discounted Mr. Rafferty’s Subjective Complaints of
Completely Disabling Limitations.
Next, Mr. Rafferty alleges that the ALJ’s weighing of his subjective complaints was not

supported by substantial evidence in the record. (Pl. Br. 19-23, ECF No. 17.) However, the
Court concludes that the ALJ provided several valid and well-supported reasons for finding that
Mr. Rafferty’s complaints were not fully credible.
First, the ALJ noted that Mr. Rafferty testified that his pain medications were “helpful” in
treating his symptoms. (Tr. 16; see Tr. 32); see White v. Barnhart, 287 F.3d 903, 909-10 (10th
Cir. 2002) (claimant’s admission that medication relieved some of her pain supported finding
that her impairments were not disabling). The ALJ also noted that Mr. Rafferty testified that his
pain medication made him drowsy, and yet Mr. Rafferty failed to corroborate this side effect by
reporting it to his treatment providers. (Tr. 32; see, e.g., Tr. 259, 280-84); see SSR 96-7p, 1996

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WL 374186, at *5 (stating that one strong indication of the credibility of an individual’s
statements is their consistency, both internally and with other information in the case record).2
The ALJ next determined that the objective medical evidence did not support the degree
of pain and functional limitations alleged by Mr. Rafferty. (Tr. 16.) For instance, the ALJ noted
that there was scant medical evidence dated prior to Mr. Rafferty’s November 2010 alleged
disability onset date. (Id.) The ALJ further observed that, despite his allegedly disabling back
pain, Mr. Rafferty was able to lift and move a carpet in September 2011. (Id. at 16-17; see id. at
208.) Although Mr. Rafferty injured his knee at that time, and required surgery, the record
showed that Mr. Rafferty recovered well following surgery and did not continue to complain of
disabling knee pain. (Id. at 17; see id. at 219-20.) Additionally, while Mr. Rafferty was
diagnosed with degenerative disc disease, his doctors provided only conservative treatment,
including physical therapy, which was effective in relieving many of Mr. Rafferty’s symptoms.
(Id. at 17; see id. at 290, 298.)3 The ALJ observed that Mr. Rafferty’s doctors did not
recommend, and Mr. Rafferty did not pursue, any additional treatment for his back pain, such as
surgery or epidural injections. (Id. at 17-18.) The Court finds that the ALJ reasonably relied on
Mr. Rafferty’s limited and conservative course of treatment in finding that his subjective
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SSR 96-7p was recently superseded by SSR 16-3p, which took effect on March 28, 2016. See
2016 WL 119029 & 1237954 (Mar. 16 & 24, 2016). Because SSR 16-3p was not in effect at the
time of the ALJ’s decision here, this Court will base its review on SSR 96-7p.
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The ALJ noted that, while physical therapy was helpful in alleviating Mr. Rafferty’s symptoms,
there was no evidence that Mr. Rafferty continued physical therapy as recommended by his
doctors. (Tr. 17.) Mr. Rafferty points out that he was discharged to a home exercise program
following his final physical therapy visit, and discontinued physical therapy due to “insurance
issues.” (Pl. Br. 21, ECF No. 17 (citing Tr. 299).) While the ALJ erred in providing this reason
for discounting Mr. Rafferty’s testimony, the ALJ’s finding that Mr. Rafferty’s symptoms were
alleviated when he participated in physical therapy does not change. Further, as discussed, the
ALJ provided several other valid reasons for discounting Mr. Rafferty’s complaints. Thus, the
Court finds any error harmless. See Lax, 489 F.3d at 1088 (ALJ’s error in relying on an invalid
reason was harmless where the ALJ identified other valid reasons for finding).
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complaints were not fully believable. See 20 C.F.R. § 404.1529(c)(3)(iv)-(v) (an ALJ must
consider the effectiveness and type of treatment); Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir.
1995); Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1989) (upholding an ALJ’s credibility
finding where, despite claimant’s complaints of pain, treating physicians “were more enthusiastic
about his recovery.”).
Finally, the ALJ also relied on the results of Dr. Johnsen’s evaluation, which indicated
that Mr. Rafferty was not quite as limited as he alleged. (Tr. 18-19.) For instance, Dr. Johnsen
found that Mr. Rafferty retained a symmetric steady gait; he had no palpable muscle spasms; his
muscle bulk and tone were normal; his muscle strength was nearly normal; and his straight-leg
raise test was a false positive bilaterally. (Id. at 18; see id. at 250-51.) Dr. Johnsen found that
Mr. Rafferty displayed “5/5 Waddell signs,” which indicated a “high correlation for
psychosomatic disease and symptom over magnification.” (Id. at 18; see id. at 251.) Dr.
Johnsen concluded that Mr. Rafferty displayed “no objective evidence of major back problems”
and that Mr. Rafferty had “no limitations.” (Id. at 19; see id. at 251.) The Court concludes that
the ALJ reasonably discounted Mr. Rafferty’s testimony based in part on Dr. Johnsen’s findings
regarding Mr. Rafferty’s abilities and the credibility of Mr. Rafferty’s complaints. See 20 C.F.R.
§ 404.1529(c)(4) (an ALJ must consider inconsistencies in the evidence); Diaz v. Sec’y of Health
& Human Servs., 898 F.2d 774, 777 (10th Cir. 1990) (upholding an ALJ’s credibility finding
where, among other factors, an examining doctor suspected the claimant of malingering);
Gossett, 862 F.2d at 807 (noting, in upholding ALJ’s credibility finding, that the claimant’s
subjective pain testimony was not fully substantiated by the opinion of his treating physician).
Therefore, because the ALJ’s findings regarding Mr. Rafferty’s credibility were
supported by substantial evidence, the Court affirms the decision. See Lax, 489 F.3d at 1084

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(quoting Zoltankski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (“We may not displace the
agenc[y’s] choice between two fairly conflicting views, even though the court would justifiably
have made a different choice had the matter been before it de novo.” (citation and quotation
omitted)).
IV.

The ALJ Reasonably Evaluated the Medical Source Opinions.
Finally, Mr. Rafferty contends that the ALJ improperly discounted Dr. Callahan’s

opinion and improperly relied on the opinions of the state agency physicians. (Pl. Br. 23-26,
ECF No. 17.) However, because the ALJ reasonably weighed all of the medical source opinions,
the Court concludes that his evaluation of these opinions does not support Mr. Rafferty’s request
for remand. See 20 C.F.R. § 404.1527(c).
In April 2014, Mr. Rafferty saw Dr. Callahan for “medication and disability paperwork.”
(Tr. 279.) Despite Mr. Rafferty’s generally unremarkable physical examination, (Id. at 280),
Dr. Callahan completed a physical residual function capacity statement at Mr. Rafferty’s request.
(Id. at 275-78.) In general, he opined that Mr. Rafferty could sit for 15 minutes, walk for 30
minutes, and sit for less than one hour in an eight-hour workday. (Id. at 276.) He also opined
that Mr. Rafferty could lift and carry up to five pounds occasionally. (Id. at 277.) The Court
finds that the ALJ reasonably assigned no weight to Dr. Callahan’s opinion. (Id. at 18.)
The ALJ first contrasted Dr. Callahan’s conservative course of treatment with the
extreme limitations he assigned. (Id.) For instance, although Dr. Callahan opined that Mr.
Rafferty could not even perform sedentary work on a regular basis due to his degenerative disc
disease, Dr. Callahan did not recommend additional treatment, such as surgery or injections, for
this condition. (Id.) The ALJ could reasonably conclude that Dr. Callahan’s failure to
recommend more aggressive treatment indicated that Mr. Rafferty was not quite as limited as Dr.

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Callahan opined. See 20 C.F.R. § 404.1527(c)(4) (an ALJ must consider consistency). Next, the
ALJ noted that Dr. Callahan performed a DOT physical of Mr. Rafferty, in order to renew his
commercial driver’s license, and yet there was no indication that Dr. Callahan did not approve
the renewal. (Tr. 18; see Tr. 282-84.) The Court finds that the ALJ could reasonably conclude
Mr. Rafferty’s application for a commercial driver’s license undermined Dr. Callahan’s opinion
that Mr. Rafferty would need to lie down and recline for about five hours in an eight-hour
workday. (Id. at 276); see White, 287 F.3d at 906-08 (treating physician’s lack of explanation for
differences between two reports, with no apparent change in claimant’s medical condition, was a
reason to reject opinion). Finally, the ALJ also concluded that Dr. Callahan’s opinion was
inconsistent with the record as a whole, including the other medical opinions, which generally
demonstrated that Mr. Rafferty retained a normal gait, normal muscle bulk and tone, and nearly
normal strength (Tr. 18; see Tr. 208-09, 247, 248-51, 283, 286, 291-97). Therefore, the Court
finds that the ALJ provided several valid and well-supported reasons for finding that Dr.
Callahan’s opinion was not entitled to weight.
Mr. Rafferty also takes issue with the ALJ’s decision to give weight to the opinion of
reviewing physician Dr. Brown, who opined that Mr. Rafferty could perform a reduced range of
light work. (Pl. Br. 25, ECF No. 17; see Tr. 61-62). Mr. Rafferty complains that Dr. Brown
completed his opinion in February 2013, and therefore did not review Dr. Callahan’s medical
records from April 2013 through February 2014. (Pl. Br. 25, ECF No. 17.) However, Mr.
Rafferty’s argument ignores the fact that Dr. Brown reviewed Mr. Rafferty’s MRI findings and
the results of Dr. Johnsen’s examination, and that Dr. Callahan’s subsequent treatment notes
demonstrated that Mr. Rafferty retained a normal gait and normal range of motion in all major
muscle groups. (Tr. 283, 286, 291-98.) Thus, because Dr. Brown’s opinion was consistent with

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the record as a whole, which showed that Mr. Rafferty’s physical impairments were not so
severe as to preclude all work activity, it provided substantial evidence in support of the ALJ’s
RFC assessment. See Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2008) (a nonexamining physician is an acceptable medical source, whose opinion the ALJ is entitled to
consider).
CONCLUSION
Because substantial evidence supports the ALJ’s decision, and the ALJ did not commit
harmful legal error, this Court AFFIRMS the decision. The Court will enter judgment in
accordance with Fed. R. Civ. P. 58, consistent with the U.S. Supreme Court’s decision in Shalala
v. Schaefer, 509 U.S. 292, 296-304 (1993).
DATED this 27th day of March, 2017.

_______________________________
EVELYN J. FURSE
United States Magistrate Judge

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