Hartley v. Colvin

Filing 27

MEMORANDUM DECISION AND ORDER - IT is Ordered that the Commissioner's decision in this case is Affirmed. Signed by Magistrate Judge Paul M. Warner on 10/12/2018. (las)

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

CHERYL H.,

MEMORANDUM DECISION
AND ORDER
Plaintiff,

v.
Case No. 2:16-cv-00896-PMW
BERRYHILL, 1

NANCY A.
Acting
Commissioner of Social Security,
Defendant.

Chief Magistrate Judge Paul M. Warner

All parties in this case have consented to Chief 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 Cheryl H.’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, and Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act, see id. §§ 1381-1383f.

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. 23.
2

See docket no. 14.

PROCEDURAL BACKGROUND
On December 11, 2012, Plaintiff applied for DIB and SSI, alleging disability beginning
on March 15, 2010. 3 Plaintiff’s applications were denied initially and upon reconsideration. 4 On
July 16, 2013, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), 5 and
that hearing was held on March 11, 2014. 6 On June 2, 2014, the ALJ issued a written decision
denying Plaintiff’s claims for DIB and SSI. 7 On August 22, 2014, the Appeals Council granted
Plaintiff’s request for review and remanded the case to the ALJ for additional proceedings. 8
A second hearing was held on September 29, 2015. 9 On December 23, 2015, the ALJ
issued a second decision denying Plaintiff’s claims for DIB and SSI. 10 On July 20, 2016, the
Appeals Council denied Plaintiff’s request for review, 11 making the ALJ’s second decision the
Commissioner’s final decision for purposes of judicial review. See 42 U.S.C. §§ 405(g),
1383(c)(3); 20 C.F.R. §§ 404.981, 416.1481. Plaintiff then brought the instant action to appeal
that final decision.

3

See Administrative Record (“AR

4

See AR 75-126.

5

See AR 169-170.

6

See AR 59-74.

7

See AR 127-147.

8

See AR 148-151.

9

See AR 43-58.

10

See AR 17-42.

11

”) 276-277, 278-286.

See AR 1-7.
2

STANDARD OF REVIEW
This 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).
A five-step evaluation process has been established for determining whether a claimant is
disabled. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see also Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step process). If a
determination can be made at any one of the steps that a claimant is or is not disabled, the
subsequent steps need not be analyzed. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Step one determines whether the claimant is presently engaged in
substantial gainful activity. If [the claimant] is, disability benefits
are denied. If [the claimant] is not, the decision maker must
proceed to step two: determining whether the claimant has a
medically severe impairment or combination of impairments. . . . If
the claimant is unable to show that his impairments would have
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more than a minimal effect on his ability to do basic work
activities, he is not eligible for disability benefits. If, on the other
hand, the claimant presents medical evidence and makes the de
minimis showing of medical severity, the decision maker proceeds
to step three.
Williams, 844 F.2d at 750-51 (quotations and citations omitted); see 20 C.F.R.
§§ 404.1520(a)(4)(i)-(ii), 416.920(a)(4)(i)-(ii).
“Step three determines whether the impairment is equivalent to one of a number of listed
impairments that . . . are so severe as to preclude substantial gainful activity . . . . If the
impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to
benefits. If not, the evaluation proceeds to the fourth step . . . .” Williams, 844 F.2d at 751
(quotations and citations omitted); see 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
At the fourth step, the claimant must show that the impairment prevents performance of
his “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). “If the claimant is
able to perform his previous work, he is not disabled.” Williams, 844 F.2d at 751. If, however,
the claimant is not able to perform his previous work, he “has met his burden of proof,
establishing a prima facie case of disability.” Id.
At this point, “[t]he evaluation process . . . proceeds to the fifth and final step.” Id. At
this step, the burden of proof shifts to the Commissioner, and the decision maker must determine
“whether the claimant has the residual functional capacity [(“RFC”)] . . . to perform other work
in the national economy in view of his age, education, and work experience.” Id.; see 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If it is determined that the claimant “can make an
adjustment to other work,” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is not disabled.

4

If, on the other hand, it is determined that the claimant “cannot make an adjustment to other
work,” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), he is disabled and entitled to benefits.
ANALYSIS
In support of her claim that the Commissioner’s decision should be reversed, Plaintiff
argues that the ALJ erred by (1) failing to properly evaluate certain medical opinions and (2)
failing to account for Plaintiff’s alleged impairment of edema. The court will address those
arguments in turn.
I.

Medical Opinions
In evaluating the weight assigned to medical opinions, an ALJ must consider the

following factors set forth in 20 C.F.R. §§ 404.1527(c) and 416.927(c):
(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.
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (quotations and citation omitted); see
20 C.F.R. §§ 404.1527(c), 416.927(c).
An ALJ is not required to discuss every factor set forth in the relevant regulations. See
Oldham v. Astrue, 509 F.3d 1254, 1258 (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
evidence, it is the ALJ’s role to weigh and resolve evidentiary conflicts and inconsistencies See,

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e.g., Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000); Eggleston v. Bowen, 851 F.2d 1244,
1247 (10th Cir. 1988).
Plaintiff argues that the ALJ erred in evaluating the opinions of (A) Dr. Randy Clark,
M.D. (“Dr. Clark”), (B) the state agency physicians, and (C) Dr. Joseph C. Fyans, M.D. (“Dr.
Fyans”).
A.

Dr. Clark

Plaintiff contends that the ALJ offered only vague, conclusory statements and did not cite
to any evidence to support his conclusion that Dr. Clark’s opinions were entitled to no weight.
Plaintiff also asserts that the ALJ used his evaluations of the opinions of the state agency
physicians and Dr. Fyans to reject the opinions of Dr. Clark. Those arguments fail.
The court concludes that the ALJ provided sufficient reasoning to support his evaluation
of Dr. Clark’s opinions. In reaching the conclusion that Dr. Clark’s opinions were entitled to no
weight, the ALJ properly relied upon the fact that those opinions were inconsistent with the
objective evidence in the record and were based upon little beyond Plaintiff’s subjective
allegations. 12 See 20 C.F.R. §§ 404.1527(c)(3)-(4), 416.927(c)(3)-(4). The ALJ also properly
relied upon the fact that Dr. Clark’s opined extreme limitations were contradicted by Plaintiff’s
documented improvement after her knee surgery, including evidence of a normal gait and the
ability to clean carpets and move furniture. 13 See 20 C.F.R. §§ 404.1527(c)(3)-(4),
416.927(c)(3)-(4).

12

See AR 33.

13

See id.
6

The court also concludes that the ALJ cited to substantial evidence to support his
conclusions about Dr. Clark’s opinions. In his summary of the evidence preceding his evaluation
of Dr. Clark’s opinions, the ALJ discussed specific evidence showing Plaintiff’s improvement
after knee surgery and relatively normal physical findings. 14 In doing so, the ALJ satisfied his
obligations in weighing Dr. Clark’s opinions. See Endriss v. Astrue, 506 F. App’x 772, 777 (10th
Cir. 2012) (“The ALJ set forth a summary of the relevant objective medical evidence earlier in
his decision and he is not required to continue to recite the same evidence again in rejecting [a
medical] opinion.”).
The court further concludes that, contrary to Plaintiff’s argument, the ALJ did not use his
evaluations of the opinions of the state agency physicians and Dr. Fyans to reject the opinions of
Dr. Clark. While the opinions of the state agency physicians and Dr. Fyans might have differed
from Dr. Clark’s opinions, nowhere in the ALJ’s decision does he state that he is using the former
opinions to reject those of Dr. Clark. Furthermore, as will be discussed below, the court
concludes that the ALJ did not err in his evaluation of the opinions of the state agency physicians
or Dr. Fyans.
B.

State Agency Physicians

Plaintiff argues that the ALJ erred by giving great weight to the state agency physicians’
opinions. Specifically, Plaintiff takes issue with the fact that those opinions were issued prior to
the alleged worsening of her lower extremity impairments.
As for the weight the ALJ assigned to the state agency physicians’ opinions, the court
concludes that the ALJ engaged in a proper analysis. The ALJ properly relied upon the fact that
14

See AR 29-30.
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those opinions were consistent with and supported by the objective medical evidence and the
entire record. 15 See 20 C.F.R. §§ 404.1527(c)(3)-(4), 416.927(c)(3)-(4).
The court also concludes that the ALJ did not err by assigning great weight to the state
agency physicians’ opinions, even though those opinions may have been issued prior to the
alleged exacerbation of Plaintiff’s lower extremity impairments. As the Commissioner has
argued, it appears that the ALJ took that fact into account when assessing Plaintiff’s RFC.
Indeed, although the ALJ gave great weight to the state agency physicians’ opinions, he
ultimately determined that Plaintiff was more limited than those opinions indicated. For
example, one state agency physician opined that Plaintiff would be capable of climbing ladders,
ropes, and scaffolds and frequently balancing, crawling, and kneeling. 16 However, the ALJ
determined that Plaintiff was more restricted and limited her to no climbing of ladders, ropes,
and scaffolds; occasional balancing and kneeling; no crawling; and only occasional exposure to
vibration, operation of motor vehicles, and use of foot controls. 17 The court concludes that, in
doing so, the ALJ chose to take Plaintiff’s alleged lower extremity impairments into account
when he assessed Plaintiff’s RFC, even though he gave great weight overall to the state agency
physicians’ opinions. See, e.g., Smith v. Colvin, 821 F.3d 1264, 1268 (10th Cir. 2016) (“Faced
with the conflicting opinions, the administrative law judge adopted a middle ground. . . . In this
manner, the judge arrived at an assessment between the two medical opinions without fully

15

See AR 31.

16

See AR 107-108.

17

See AR 27.
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embracing either one. We upheld this approach in Chapo v. Astrue, 682 F.3d 1285, 1288 (10th
Cir. 2012).”).
C.

Dr. Fyans

Plaintiff asserts that the ALJ erred in his evaluation of the opinions of Dr. Fyans. The
court disagrees. In reaching the conclusion that Dr. Fyans’ opinions were entitled to great
weight, the ALJ properly relied upon the fact that Dr. Fyans was an orthopedic specialist and
conducted a thorough in-person evaluation of Plaintiff. 18 See 20 C.F.R. §§ 404.1527(c)(1), (5),
416.927(c)(1), (5). The ALJ also properly relied upon the fact that Dr. Fyans’ opinions were
consistent with the result of his mostly normal examination of Plaintiff and with the record. 19
See 20 C.F.R. §§ 404.1527(c)(3)-(4), 416.927(c)(3)-(4).
II.

Edema
Plaintiff argues that the ALJ erred by failing to account for her alleged impairment of

edema and her need to elevate her legs above her heart throughout the day. In support of that
argument, Plaintiff merely points to select portions of record evidence. In doing so, Plaintiff is
essentially asking this court to substitute its judgment of the evidence for the judgment made by
the ALJ. That is an unavailing argument on appeal. See Tillery v. Schweiker, 713 F.2d 601, 603
(10th Cir. 1983) (providing that when the evidence permits varying inferences, the court may not
substitute its judgment for that of the ALJ); see also Lax, 489 F.3d at 1084 (“The possibility of
drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency’s findings from being supported by substantial evidence. We may not displace the
18

See AR 31.

19

See id.
9

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.”) (quotations and citations
omitted) (alteration in original).
CONCLUSION AND ORDER
In summary, 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 12th day of October, 2018.
BY THE COURT:

PAUL M. WARNER
Chief United States Magistrate Judge

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