Staley v. Colvin

Filing 27

MEMORANDUM DECISION AND ORDER - It is Hereby Ordered that the Commissioner's decision in this case is Affirmed. Signed by Magistrate Judge Paul M. Warner on 9/28/2017. (las)

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

RAMONA C. STALEY,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
Case No. 2:16-cv-00402-PMW
1

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

Chief Magistrate Judge Paul M. Warner

All parties in this case have consented to Chief United States Magistrate Judge Paul M.
Warner conducting all proceedings, including entry of final judgment, with appeal to the United
States Court of Appeals for the Tenth Circuit. 2 See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
Before the court is Ramona C. Staley’s (“Plaintiff”) appeal of the Commissioner’s final decision
determining that Plaintiff was not entitled to Disability Insurance Benefits (“DIB”) under Title II
of the Social Security Act. See 42 U.S.C. §§ 401-434. After careful consideration of the written
briefs and the complete record, the court has determined that oral argument is not necessary in
this case.

1

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 has been substituted for Acting
Commissioner Carolyn W. Colvin as the Defendant in this action. See docket no. 26.
2

See docket no. 17.

BACKGROUND
On June 18, 2008, Plaintiff filed an application for DIB, alleging disability beginning on
December 31, 2007. 3 On January 8, 2009, Plaintiff’s claim was approved. 4 On March 27, 2013,
the Commissioner determined that Plaintiff was no longer disabled as of March 1, 2013. 5
Plaintiff appealed that decision and, upon reconsideration, the Commissioner confirmed that
Plaintiff was no longer disabled as of March 1, 2013. 6
Subsequently, Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”), 7 and that hearing was held on May 20, 2014. 8 On August 19, 2014, the ALJ issued a
decision upholding the termination of Plaintiff’s disability benefits. 9 On March 18, 2016, the
Appeals Council denied Plaintiff’s request for review, 10 making the ALJ’s decision the
Commissioner’s final decision for purposes of judicial review. See 42 U.S.C. § 405(g); 20 C.F.R.
§ 404.981.

3

See docket no. 8, Administrative Record (“Tr.

4

Id.

5

See Tr. at 105-107.

6

See Tr. at 123-133.

7

See Tr. at 138.

8

See Tr. at 62-95.

9

See Tr. at 21-60.

10

”) at 128.

See Tr. at 5-11.
2

The ALJ recognized that, as of March 1, 2013, Plaintiff had certain severe impairments. 11
However, the ALJ found that Plaintiff had experienced medical improvements beginning March
1, 2013. 12 The ALJ concluded that Plaintiff had the residual functional capacity (“RFC”) to
perform a reduced range of sedentary work. 13 Specifically, the ALJ found that Plaintiff could
perform her past relevant work as a telephone solicitor. 14 Therefore, the ALJ found that that as
of March 1, 2013, Plaintiff was no longer disabled. 15
On May 16, 2016, Plaintiff filed her complaint in this case. 16 On August 8, 2016, the
Commissioner filed an answer and a copy of the administrative record. 17 Plaintiff filed her
opening brief on September 30, 2016. 18 The Commissioner filed an answer brief on November
4, 2016. 19 Plaintiff filed her reply brief on November 18, 2016. 20

11

See Tr. at 26.

12

See Tr. at 28.

13

See Tr. at 29-50.

14

See Tr. at 51-53.

15

See Tr. at 53.

16

See docket no. 3.

17

See docket nos. 7-8.

18

See docket no. 18.

19

See docket no. 21.

20

See docket no. 24.

3

STANDARD OF REVIEW
The court “review[s] the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotations and
citation omitted). The Commissioner’s findings, “if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. It requires more than a
scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084 (quotations and citation omitted).
“In reviewing the ALJ’s decision, [this court may] neither reweigh the evidence nor substitute
[its] judgment for that of the [ALJ].” Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006)
(quotations and citation omitted). “The failure to apply the correct legal standard or to provide
this court with a sufficient basis to determine that appropriate legal principles have been
followed [are] grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005)
(quotations and citation omitted).
In order to determine whether to terminate or continue benefits, the Commissioner must
determine “if there has been any medical improvement in [a claimant’s] impairment(s) and, if so,
whether this medical improvement is related to [the claimant’s] ability to work.” 20 C.F.R.
§ 404.1594(a). Disability benefits may be terminated based on medical improvement only if
there is substantial evidence demonstrating that “there has been any medical improvement in the
individual’s impairment or combination of impairments (other than medical improvement which
is not related to the individual’s ability to work), and . . . the individual is now able to engage in
substantial gainful activity.” 42 U.S.C. § 423(f)(1)(A)-(B). Medical improvement is defined as

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any decrease in the medical severity of [the claimant’s]
impairment(s) which was present at the time of the most recent
favorable medical decision that [the claimant was] disabled or
continued to be disabled. A determination that there has been a
decrease in medical severity must be based on changes
(improvement) in the symptoms, signs and/or laboratory findings
associated with [the claimant’s] impairment(s).
20 C.F.R. § 404.1594(b)(1). The Commissioner bears the burden of establishing a claimant’s
medical condition has improved. See Hayden v. Barnhart, 374 F.3d 986, 988 (10th Cir. 2004).
“An eight-part sequential evaluation process is used in termination reviews.” Knapp v.
Barnhart, 68 F. App’x 951, 952 (10th Cir. 2003); see 20 C.F.R. § 404.1594(f)(1)-(8). The first
step asks whether the claimant is engaging in substantial gainful activity. See 20 C.F.R.
§ 404.1594(f)(1). If the claimant is engaged in substantial gainful activity, she is no longer
considered disabled. See id. If, however, the claimant is not engaged in substantial gainful
activity, the Commissioner proceeds to the next step.
At step two, the Commissioner considers whether the claimant’s impairments meet or
equal a section of Appendix 1 of the relevant regulations (individually, a “listing” and
collectively, the “listings”). See 20 C.F.R. § 404.1594(f)(2); see also 20 C.F.R. § 404, Subpart P,
Appendix 1. If the claimant’s impairments meet or equal a listing, she will continue to be found
disabled. See id. If, on the other hand, the claimant’s impairments do not meet or equal a listing,
the Commissioner moves to the next step.
The third step requires the Commissioner to determine whether there has been medical
improvement, as defined above, in the claimant’s conditions. See 20 C.F.R. § 404.1594(f)(3). If
there has been medical improvement in the claimant’s conditions, the Commissioner proceeds to

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step four. See id. If there has not been medical improvement in the claimant’s conditions, the
Commissioner proceeds to step five. See id.
At step four, the Commissioner considers whether the demonstrated medical
improvement is related to the claimant’s ability to work. See 20 C.F.R. § 404.1594(f)(4). The
consideration at this step is whether there has been an increase in the claimant’s RFC based on
the impairments that were present at the time of the claimant’s most recent favorable medical
determination. See id. If the medical improvement is related to the claimant’s ability to work,
the Commissioner proceeds to step six. See id. If it is not, then the Commissioner proceeds to
step five. See id.
At step five, which is reached only if the Commissioner determines that there has been no
medical improvement or that the medical improvement is not related to the claimant’s ability to
work, the Commissioner considers whether any of the exceptions to medical improvement
contained in 20 C.F.R. § 404.1594(d) or (e) apply. See 20 C.F.R. § 404.1594(f)(5). If none of
them applies, the Commissioner will determine that the claimant is still disabled. See id. If any
of the first group of exceptions applies, the Commissioner proceeds to step six. See id. If any of
the second group of exceptions applies, the claimant the Commissioner will determine that the
claimant is no longer disabled. See id.
At step six, which is reached only if the Commissioner determines that there has been
medical improvement related to the claimant’s ability to work or if one of the first group of
exceptions to medical improvement applies, the Commissioner considers whether all of the
claimant’s impairments are severe. See 20 C.F.R. § 404.1594(f)(6). If all of the claimant’s

6

impairments are deemed to be severe, the Commissioner proceeds to step seven. See id. If not,
the Commissioner will determine that the claimant is no longer disabled. See id.
The seventh step requires the Commissioner to consider whether the claimant can engage
in substantial gainful activity. See 20 C.F.R. § 404.1594(f)(7). The Commissioner first
determines whether the claimant has the RFC to engage in work he or she has done in the past.
See id. If the claimant can perform such work, the Commissioner will determine that the
claimant is no longer disabled. See id. If not, the Commissioner proceeds to step eight. See id
At step eight, the Commissioner considers whether the claimant has the RFC to do other
work. See 20 C.F.R. § 404.1594(f)(8). If the claimant can perform other work, the
Commissioner will determine that the claimant is no longer disabled. See id. If not, the
Commissioner will determine that the claimant is still disabled. See id.
ANALYSIS
Plaintiff contends that the Commissioner’s final decision in this case should be reversed
because the ALJ erred (1) by determining that Plaintiff experienced medical improvement and
(2) in the assessment of Plaintiff’s RFC. The court will address those arguments in turn.
I.

Medical Improvement
As noted above, in order to determine whether terminate or continue benefits, the

Commissioner must determine “if there has been any medical improvement in [a claimant’s]
impairment(s) and, if so, whether this medical improvement is related to [the claimant’s] ability
to work.” 20 C.F.R. § 404.1594(a). Medical improvement is defined as
any decrease in the medical severity of [the claimant’s]
impairment(s) which was present at the time of the most recent
favorable medical decision that [the claimant] [was] disabled or
continued to be disabled. A determination that there has been a
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decrease in medical severity must be based on changes
(improvement) in the symptoms, signs and/or laboratory findings
associated with [the claimant’s] impairment(s)
20 C.F.R. § 404.1594(b)(1). In considering whether medical improvement has occurred, the ALJ
must compare prior and current medical evidence and show that there have been improvements
in symptoms, signs, or laboratory findings associated with the claimant’s impairments. See 20
C.F.R. § 404.1594(c)(1). The relevant point of comparison of prior medical evidence is the most
recent favorable decision or “the latest [final] decision involving a consideration of medical
evidence and the issue of whether [the claimant was] disabled or continue[s] to be disabled.” 20
C.F.R. § 404.1594(b)(7).
In support of her argument that the ALJ erred by determining that Plaintiff experienced
medical improvement, Plaintiff maintains that the ALJ failed to (A) properly weigh certain
medical opinion evidence; and (B) make a comparison of the severity of Plaintiff’s impairments
at the time of the most recent favorable decision with the current severity of Plaintiff’s
impairments. The court will address those arguments in turn.
A.

Medical Opinions

Plaintiff contends that the ALJ erred in his treatment of medical opinions from three
sources. Plaintiff argues that the ALJ erred in (1) his treatment of two of Plaintiff’s treating
sources, Jane Johnson (“Ms. Johnson”) and Dr. Tim Kockler (“Dr. Kockler”), as well as in (2) his
treatment of the opinions of a non-examining source, Dr. Susan MacNamara (“Dr.
MacNamara”).
1.

Treating Source Opinions

In deciding how much weight to give a treating source
opinion, an ALJ must first determine whether the opinion qualifies
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for controlling weight. To make this determination, the ALJ . . .
must first consider whether the opinion is well[ ]supported by
medically acceptable clinical and laboratory diagnostic techniques.
If the answer to this question is “no,” then the inquiry at this stage
is complete. If the ALJ finds that the opinion is well[ ]supported,
he must then confirm that the opinion is consistent with other
substantial evidence in the record. If the opinion is deficient in
either of these respects, then it is not entitled to controlling weight.
Even if a treating physician’s opinion is not entitled to
controlling weight, treating source medical opinions are still
entitled to deference and must be weighed using all of the factors
provided in [20 C.F.R. §] 404.1527. Those factors are: (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.
Under the regulations, the agency rulings, and [Tenth
Circuit] case law, an ALJ must give good reasons . . . for the
weight assigned to a treating physician’s opinion . . . that are
sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical
opinion and the reason for that weight. If the ALJ rejects the
opinion completely, he must then give specific, legitimate reasons
for doing so.
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quotations and citations omitted)
(sixth alteration in original); see also 20 C.F.R. § 404.1527(c).
An ALJ is not required to discuss every factor set forth in the relevant regulations. See
Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (stating that when an ALJ does not
discuss every factor, it “does not prevent this court from according his decision meaningful
review”). As with other evidentiary matters, when an ALJ is considering medical opinion

9

evidence, it is the ALJ’s role to weigh and resolve evidentiary conflicts and inconsistencies See,
e.g., Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000); Eggleston v. Bowen, 851 F.2d 1244,
1247 (10th Cir. 1988).
With respect to Ms. Johnson’s opinions, Plaintiff asserts that the ALJ’s decision
demonstrates that he was “picking and choosing” the portions of Ms. Johnson’s opinions he
needed to support his decision. 21 Plaintiff’s assertion is unfounded and without merit. A review
of the ALJ’s decision reveals that he gave Ms. Johnson’s opinions mixed weight. The ALJ
determined that certain portions of Ms. Johnson’s opinions were consistent with other medical
opinions and the record as a whole and, accordingly, gave those opinions favorable weight. At
the same time, the ALJ determined that other portions of Ms. Johnson’s opinions were
inconsistent with her own statements and treatment notes and, consequently, gave those opinions
no weight. Consistency was a proper factor for the ALJ to consider when determining the weight
given to Ms. Johnson’s opinions. See 20 C.F.R. § 404.1527(c)(4); Pisciotta v. Astrue, 500 F.3d
1074, 1078 (10th Cir. 2007) (“Medical evidence may be discounted if it is internally inconsistent
or inconsistent with other evidence.” (quotations and citations omitted)).
Concerning the opinions of Dr. Kockler, Plaintiff argues that the ALJ failed to specifically
indicate the weight he was giving to those opinions. While it is true that the ALJ did not use the
specific word “weight” when discussing Dr. Kockler’s opinion, the ALJ stated that Dr. Kockler’s
findings were “substantially aligned” with other record evidence. 22 Additionally, the ALJ’s
decision clearly demonstrates that the ALJ thoroughly considered and relied upon portions of Dr.
21

Docket no. 18 at 9.

22

Tr. 42.
10

Kockler’s opinions. In the court’s view, that was sufficient to demonstrate the weight the ALJ
assigned to Dr. Kockler’s opinions. Furthermore, even if Plaintiff had been successful in
persuading the court that the ALJ did err in failing to assign weight to Dr. Kockler’s opinions, the
court would conclude that any such error was harmless because Dr. Kockler’s opinions are
generally consistent with the ALJ’s RFC determination. See Keyes-Zachary v. Astrue, 695 F.3d
1156, 1163 (10th Cir. 2012) (concluding that the ALJ’s failure to assign a specific weight to a
medical opinion was harmless where the opinion was generally consistent with the ALJ’s RFC
determination).
As a final matter on the opinions of Ms. Johnson and Dr. Kockler, the court notes that
many of Plaintiff’s arguments concerning those opinions are directed at the weight of the
evidence before the ALJ. Such arguments are futile on appeal. It is not this court’s role to
reweigh the evidence before the ALJ. See Madrid, 447 F.3d at 790. Indeed, it is the ALJ’s role
to weigh and resolve evidentiary conflicts and inconsistencies. See Rutledge, 230 F.3d at 1174;
Eggleston, 851 F.2d at 1247. From an evidentiary standpoint, the only issue relevant to the court
is whether substantial evidence exists in the record to support the ALJ’s conclusions. See
Oldham, 509 F.3d at 1257 (providing that the court reviewing the ALJ’s decision reviews “only
the sufficiency of the evidence, not its weight” (emphasis omitted)).
Based on the foregoing, the court concludes that the ALJ did not err in his treatment of
the medical opinions of Ms. Johnson or Dr. Kockler. Accordingly, the court has determined that
Plaintiff’s arguments with respect to the ALJ’s treatment of those opinions are without merit.

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2.

Non-Examining Source Opinion

Plaintiff next argues that the opinions of a non-examining source, Dr. MacNamara, were
not based on a review of the entire record and that, therefore, the ALJ erred by giving them great
weight. More specifically, Plaintiff contends that Dr. MacNamara’s opinion did not consider
additional medical records that were added to Plaintiff’s file after Dr. MacNamara’s review of the
record. However, as noted by the Commissioner, Plaintiff does not point to any significant
medical records dated after Dr. MacNamara’s opinions that would have changed those opinions.
Although Plaintiff relies upon Ms. Johnson’s opinions and treatment notes, those undermine
Plaintiff’s argument, as they generally indicate that Plaintiff was able to work. Accordingly, the
court has determined that the ALJ did not commit any error in his treatment of Dr. MacNamara’s
opinions, even though those opinions were not based on a review of the entire case record. See
Tarpley v. Colvin, 601 F. App’x 641, 644 (10th Cir. 2015) (rejecting the claimant’s argument that
the ALJ gave too much weight to the nontreating agency physician’s opinion, who did not review
later treating physician opinions, because “nothing in the later medical records [the claimant]
cites supports the disabling limitations found by [the later opinions] or a material change in [the
claimant’s] condition that would render [the nontreating agency physician’s] opinion stale”).
The court concludes that the ALJ did not err in his treatment of the medical opinions of
Dr. MacNamara; therefore, Plaintiff’s argument with respect to the ALJ’s treatment of that
opinion fails.
B.

Comparison of Impairments

In further support of her argument concerning medical improvement, Plaintiff contends
that the ALJ failed to make a comparison of the severity of Plaintiff’s impairments at the time of

12

the most recent favorable decision with the current severity of Plaintiff’s impairments. See 20
C.F.R. § 404.1594(b)(7). That contention is without merit. The court concludes that Plaintiff
has engaged in a hyper-technical reading of the ALJ’s decision. In his decision, the ALJ began
his detailed analysis by recounting Plaintiff’s past medical history, as well as the physical and
mental examinations she underwent, beginning in 2007 and working forward chronologically.
The ALJ then properly considered the medical opinion evidence, the majority of which
demonstrated that Plaintiff’s impairments had improved. Relying upon that substantial evidence
in the record, the ALJ determined that Plaintiff had experienced medical improvement. Although
there may not be a specific section devoted to the above-referenced comparison, the ALJ’s
decision demonstrates that he thoroughly compared the prior and current medical evidence,
which demonstrated that there had been improvements in the symptoms, signs, or laboratory
findings associated with Plaintiff’s impairments. See 20 C.F.R. § 404.1594(c)(1). Accordingly,
the court concludes that Plaintiff’s argument on this point fails.
II.

RFC
Plaintiff argues that the ALJ erred by failing to properly evaluate Plaintiff’s RFC because

the ALJ failed to (A) include any limitations for prolonged sitting and (B) include any mental
limitations.
A.

Sitting Limitations

Plaintiff’s argument on this point centers on the ALJ’s treatment of the opinions of one of
Plaintiff’s treating sources, Dayne Johnson (“Mr. Johnson”), who opined that sitting for long
periods would increase Plaintiff’s back pain. 23 In discussing Mr. Johnson’s opinions, the ALJ
23

See Tr. 714.
13

concluded that they were “persuasive evidence” and entitled to “significant weight.” 24 However,
the ALJ also determined that, based on a review of all the record evidence, that there was a lack
of evidence showing that Plaintiff was unable to sit for six hours during an eight-hour workday. 25
Thus, while the ALJ obviously gave significant weight to Mr. Johnson’s opinions concerning
Plaintiff’s impairments, the ALJ declined to include any sitting limitations in the RFC because
the record as a whole did not support such limitations. Again, consistency between Mr.
Johnson’s medical opinions and the record as a whole was an appropriate factor for the ALJ to
consider in determining the weight assigned to Mr. Johnson’s opinions. See 20 C.F.R.
§ 404.1527(c)(4). The court concludes that the ALJ did not err in his treatment of Mr. Johnson’s
opinions. Additionally, the ALJ did not err by failing to include sitting limitations in Plaintiff’s
RFC because those limitations were not supported by the medical record. See Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000) (providing that the ALJ did not err by failing to include
limitations in the RFC that were not supported by the record).
B.

Mental Limitations

Plaintiff contends that the ALJ erred by failing to include any mental limitations in
Plaintiff’s RFC. In advancing that contention, Plaintiff again argues about the weight the ALJ
assigned to certain medical opinions, including those of Ms. Johnson, Dr. Kockler, and Dr.
MacNamara. The court concludes that Plaintiff’s arguments on this point are nothing more than
an effort to reargue the weight of the evidence before the ALJ. As previously noted, that tactic is
unavailing on appeal. See, e.g., Oldham, 509 F.3d at 1257; Madrid, 447 F.3d at 790; Rutledge,
24

Tr. 45.

25

See Tr. 46.
14

230 F.3d at 1174; Eggleston, 851 F.2d at 1247. Accordingly, the court concludes that Plaintiff’s
arguments concerning the ALJ’s failure to include mental limitations in Plaintiff’s RFC are
without merit.
CONCLUSION AND ORDER
Based on the foregoing, the court concludes that all of Plaintiff’s arguments fail.
Accordingly, IT IS HEREBY ORDERED that the Commissioner’s decision in this case is
AFFIRMED.
IT IS SO ORDERED.
DATED this 28th day of September, 2017.
BY THE COURT:

PAUL M. WARNER
Chief United States Magistrate Judge

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