Higgins v. Colvin

Filing 26

MEMORANDUM DECISION AND ORDER - The decision of the Commissioner is affirmed. Signed by Magistrate Judge Brooke C. Wells on 2/2/2017. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
BRAD ROBERT HIGGINS,
Plaintiff,

MEMORANDUM DECISION AND ORDER
AFFIRMING DECISION OF THE
COMMISSIONER and CLOSING CASE

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Case No. 2:15-cv-832 BCW

Magistrate Judge Brooke Wells

In accordance with Federal Rule of Civil Procedure 73 and based upon the parties’
consent, 1 this matter is before the undersigned on Plaintiff Brad Higgins’ appeal from the denial
of his claim for disability insurance benefits under Title II of the Social Security Act). Mr.
Higgins alleges he became disabled beginning November 10, 2009. After review of the parties’
briefing, the Administrative Law Judge’s (ALJ) decision, the record of proceedings in this case
and relevant case law, the undersigned affirms the decision of the Commissioner.
BACKGROUND 2
Plaintiff was 32 years old in November 2009 when he claims he became disabled nine
years after he was involved in a serious motor vehicle accident. 3 Mr. Higgins asserts he is
disabled due to a closed head injury, shoulder dislocation, punctured lung, torn aorta, ruptured

1

Docket no. 16.

2

The parties fully set forth the background of this case, including the medical history, in their memoranda. The
court does not repeat this background in full detail. The reader desiring a more extensive history is directed to the
record and briefing of the parties.
3

Tr. 370 (Tr. refers to the transcript of the record before the court).

spleen and broken rib. 4 Plaintiff completed an associate degree in business management and has
worked in the past as a courtesy clerk, packager, courier and warehouse worker. 5
After a hearing held in May 2014, ALJ Mason Harrell issued a decision finding Mr.
Higgins not disabled. In following the required sequential five-step evaluation process for
disability determinations, 6 the ALJ found Mr. Higgins had the severe impairments of traumatic
brain injury, bipolar disorder and shoulder injury. At step three, the ALJ found Plaintiff does not
have an impairment or combination of impairments that meet or medically equal a listing. This
included an analysis of 12.02 (neurocognitive disorders) and 12.04 (depressive, bipolar and
related disorders).
Next, the ALJ found Mr. Higgins had the residual functional capacity to perform a full
range of work at all exertional levels but with a large number of nonexertional limitations. These
included Mr. Higgins cannot: perform complex or detailed tasks; have reading or math
requirements beyond the fifth grade; perform fast-paced tasks [or] quick decision-making; have
contact with the public and he must be limited to superficial contact with coworkers and
supervisors; perform multi-tasking; perform jobs where occasional slurring of words would
interfere; and lift above shoulder level more than occasionally. 7
At step four the ALJ used this RFC and found Plaintiff could not perform any past
relevant work including his work as a warehouse worker. 8 The analysis then moved to step five
where the ALJ considered Mr. Higgins’ RFC, the VE’s testimony and other evidence in the

4

Tr. 271.

5

Tr. 70.

6

See 20 C.F.R. § 416.920; Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (summarizing five step
process).
7

Tr. 17.

8

Tr. 25.

2

record and found Plaintiff could perform other work existing in significant number in the
national economy including marking clerk and laundry sorter. Therefore Mr. Higgins was not
disabled.
STANDARD OF REVIEW
The Court reviews “the ALJ's decision only to determine whether the correct legal
standards were applied and whether the factual findings are supported by substantial evidence in
the record.” 9 “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” 10 It requires more than a scintilla, but less than a
preponderance of evidence.
Additionally, the ALJ is required to consider all of the evidence; however, the ALJ is not
required to discuss all the evidence. 11 In reviewing the ALJ’s decision the Court evaluates the
record as a whole, including that evidence before the ALJ that detracts from the weight of the
ALJ’s decision. 12 The Court, however, may neither “reweigh the evidence [n]or substitute [its]
judgment for the [ALJ’s].” 13 Where the evidence as a whole can support either the agency’s
decision or an award of benefits, the agency’s decision must be affirmed. 14 Further, the Court
“may not ‘displace the agenc[y’s] choice between two fairly conflicting views, even though the
Court would justifiably have made a different choice had the matter been before it de novo.’” 15

9

Madrid v. Barnhart, 447 F.3d 788, 790 910th Cir. 2006).

10

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted).

11

Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2000).

12

Shepherd v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).

13

Lax, 489 F.3d at 1084 (citation omitted).

14

See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).

15

Lax, 489 F.3d at 1084 (quoting Zoltanski, 372 F.3d at 1200).

3

DISCUSSION
On appeal Mr. Higgins raises one issue, whether the ALJ erred in his evaluation of the
medical opinion evidence from his treating sources? 16 Specifically, Plaintiff takes issue with the
ALJ’s weighing of the opinions from his treating neurologist Dr. Vernon Kirk and a treating
social worker Martha Hamm. The ALJ gave “little weight to the opinion of Dr. Vernon Kirk”
and did not give “significant weight” to Martha Hamm. 17
In a Mental Residual Functional Capacity Statement from January 2013, Dr. Kirk
“assessed functional limitations that would prevent [Mr. Higgins} from working.” 18 The ALJ
noted the assessment was “inconsistent with Dr. Kirk’s routine treatment of the claimant every
three months” and also inconsistent with the notations that indicated normal neurological
findings. 19 The ALJ cited to the inconsistencies with the severity of Dr. Kirk’s assessment and
Plaintiff’s own reports of his abilities, which included caring for his children with some help and
teaching a group of teenagers at his church. 20 Finally, the ALJ also pointed to the discrepancies
between the rest of the record and Dr. Kirk’s opinion and found Dr. Kirk’s opinion “less
persuasive.” 21
Plaintiff argues the ALJ should have focused on “abnormal testing in the record”
including images from a 2001 CT scan and MRI. 22 “These problems [shown by the abnormal
tests] are noted just as frequently in Dr. Kirk’s treatment notes as the normal test results cited by
16

See Pla.’s Opening Brief p. 2, docket no. 19.

17

Tr. 23.

18

Tr. 23.

19

Tr. 23.

20

Tr. 23.

21

Tr. 23.

22

Tr. 368.

4

the ALJ.” 23 Further, Dr. Kirk’s opinions are also consistent with “other substantial evidence of
record” 24 including that of Martha Hamm LCSW.
The court is not persuaded by Plaintiff’s arguments. An ALJ is to consider the
consistency of an opinion with the record as a whole. 25 Here the ALJ did so and cited to the
inconsistencies in Dr. Kirk’s treating notes. 26 The ALJ also found Dr. Kirk’s assessed extreme
limitations were inconsistent with Mr. Higgins’ reported daily activities. Plaintiff’s argument
that the ALJ should have focused on other tests in the record rather than those he cited to is a
guised invitation to reweigh the evidence. The court declines to engage in this reweighing. 27
The court finds the ALJ adequately discussed Dr. Kirk’s opinions and provided reasons why he
discounted his opinion. Such an analysis is consistent with the proper standards. 28
Martha Hamm indicated that Plaintiff has odd manners, is depressed and frustrated, has
slightly slurred speech, lacks judgment and often verbalized inappropriate thoughts. 29 The ALJ
discounted Ms. Hamm’s opinion finding her treating relationship with Mr. Higgins not long
enough to have “obtained a longitudinal picture of the claimant’s medical condition” 30 Ms.

23

Opening brief p. 12.

24

Id. p. 13.

25

See 20 C.F.R. § 404.1527(c)(4) (“Consistency. Generally, the more consistent an opinion is with the record as a
whole, the more weight we will give to that opinion.”).

26
27

See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (“’The possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency's findings from being supported by
substantial evidence.’”) (Quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

28

See Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir.2007) (“the ALJ must then consider whether the opinion
should be rejected altogether or assigned some lesser weight”); Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th
Cir.2003) (“Under the regulations, the agency rulings, and our case law, an ALJ must ‘give good reasons in [the]
notice of determination or decision’ for the weight assigned to a treating physician's opinion.”); 20 C.F.R. §§
404.1527 and 416.927 (relevant factors).
29

Tr. 23.

30

Tr. 23.

5

Hamm completed her opinion in November 2011 two months after she first began treating
Plaintiff. 31
In similar fashion to Plaintiff’s arguments about the weighing of Dr. Kirk’s opinions, the
court rejects Plaintiff’s arguments about the ALJ’s analysis of Ms. Hamm’s opinions. The court
finds no error in the ALJ’s analysis. Indeed Plaintiff fails to note how the ALJ weighed and
cited to other evidence in the record in making his decision including opinions of consultative
examiners, state agency medical consultants and other doctors that examined Plaintiff.
In short, the ALJ adequately explained his reasoning in discounting the opinions of both
Dr. Kirk and Ms. Hamm. 32 Accordingly, the court concludes that substantial evidence supports
the ALJ's decision and there was no error in his evaluation of the medical opinion evidence from
Mr. Higgins’ treating sources.
CONCLUSION
For the foregoing reasons, the decision of the Commissioner is affirmed. The Clerk of
the Court is directed to close this case.

DATED this 2 February 2017.

Brooke C. Wells
United States Magistrate Judge

31

Tr. 571.

32

See Watkins v. Barnhart, 350 F.3d 1297, 1301 (10ht Cir. 2003) (requiring ALJ to give “specific, legitimate
reasons” when discounting a medical opinion).

6