Tully v. Colvin

Filing 22

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 3/27/2018. (las)

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

DIANE TULLY,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 2:16-cv-01084-PMW

NANCY A. BERRYHILL, 1 Acting
Commissioner of Social Security,
Defendant.

Chief Magistrate Judge Paul M. Warner

Before the court is Diane Tully’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. After careful
consideration of the written briefs and the complete record, the court has determined that oral
argument is not necessary in this case.
PROCEDURAL BACKGROUND
Plaintiff alleges disability due to various mental impairments. On September 6, 2013,
Plaintiff applied for DIB and SSI, alleging disability beginning on May 31, 2012. 2 Plaintiff’s

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. 21.
2

See docket no. 9, Administrative Record (“AR

”) 176-81, 182-95.

applications were denied initially and upon reconsideration. 3 On May 16, 2014, Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”), 4 and that hearing was held on
October 6, 2015. 5 On December 1, 2015, the ALJ issued a written decision denying Plaintiff’s
claim for DIB and SSI. 6 On September 28, 2016, the Appeals Council denied Plaintiff’s request
for review, 7 making the ALJ’s 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.
On October 27, 2016, Plaintiff filed her complaint in this case. 8 The Commissioner filed
her answer and the administrative record on January 19, 2017. 9 On January 23, 2017, both
parties consented to a United States Magistrate Judge conducting all proceedings in the case,
including entry of final judgment, with appeal to the United States Court of Appeals for the Tenth
Circuit. 10 Consequently, this case was assigned permanently to Chief Magistrate Judge Paul M.
Warner pursuant to 28 U.S.C. § 636(c) and rule 73 of the Federal Rules of Civil Procedure. 11
See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

3

See AR 85-88.

4

See AR 133-35.

5

See AR 34-60.

6

See AR 14-33.

7

See AR 1-4.

8

See docket no. 3.

9

See docket nos. 7, 9.

10

See docket no. 16.

11

See id.
2

Plaintiff filed her opening brief on March 17, 2017. 12 The Commissioner filed her
answer brief on April 21, 2017. 13 Plaintiff filed her reply brief on May 5, 2017. 14
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
12

See docket no. 17.

13

See docket no. 19.

14

See docket no. 20.
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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
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

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“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.
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 (1) by failing to properly evaluate the opinions of Amy Christensen,
APRN (“Ms. Christensen”) and (2) in the evaluation of the opinions from several other sources.
The court will address those arguments in turn.
I.

Ms. Christensen
Plaintiff contends that the ALJ erred in his evaluation of Ms. Christensen’s opinions. As

an APRN, Ms. Christensen is considered an other medical source under Social Security Ruling
(“SSR”) 06-03p. Pursuant to SSR 06-03p, an ALJ should evaluate opinions from other medical
sources using the factors applied to opinions from acceptable medical sources. See SSR 06-03p;
see also 20 C.F.R. §§ 404.1527(c), 416.927(c). 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
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ALJ’s attention which tend to support or contradict the opinion. See SSR 06-03p; see also 20
C.F.R. §§ 404.1527(c), 416.927(c). SSR 06-03p makes clear that not every factor will apply in
every case. See SSR 06-03p.
In this case, the ALJ determined that Ms. Christensen’s opinions were entitled to little
weight because they were inconsistent with other evidence in the record and because they were
in the form of a list of checked boxes with little supporting explanation. 15 Plaintiff presents
arguments for each of the reasons the ALJ relied upon.
First, Plaintiff contends that while the ALJ cites to one inconsistency in the decision,
there is actually no inconsistency. In the decision, the ALJ cites to Ms. Christensen’s opinion
that Plaintiff would miss four days of work per month. The ALJ contrasts that opinion with the
statement of one of Plaintiff’s work managers, who stated that Plaintiff had missed ten days of
work in the past year. Plaintiff contends that this is not an inconsistency because Ms.
Christensen opined about how many days of work Plaintiff would miss in a 40-hour work week,
but Plaintiff was only working 15 hours per week. Plaintiff maintains that it was not reasonable
for the ALJ to rely upon the statement from Plaintiff’s work manager to contradict the limitations
opined by Ms. Christensen.
The court concludes that Plaintiff argument fails. The court cannot say that it was
unreasonable for the ALJ to rely upon the noted inconsistency. In essence, Plaintiff is 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
15

See AR at 25-26.
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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 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)). The noted inconsistency was a proper factor for the ALJ to rely upon in
giving Ms. Christensen’s opinions little weight. See SSR 06-03p; see also 20 C.F.R.
§§ 404.1527(c)(4), 416.927(c)(4).
Second, Plaintiff contends that the ALJ erred by determining that Ms. Christensen’s
opinions were only in the form of a list of checked boxes with little supporting explanation.
Plaintiff argues that the ALJ’s determination “ignores” other evidence submitted into the record
by Plaintiff. Plaintiff maintains that Ms. Christensen is part of Plaintiff’s “treatment team” and
that Plaintiff submitted approximately 500 pages of notes from that “treatment team” into the
record. Plaintiff also argues that Ms. Christensen’s opinions are not, as the ALJ determined,
merely a list of checked boxes.
As for Plaintiff’s argument concerning the records from her “treatment team,” the court
concludes that the ALJ did not, as Plaintiff contends, “ignore” that evidence. To the contrary, it
is clear from the ALJ’s decision that she did consider the records from Plaintiff’s “treatment
team.” 16 Further, Plaintiff has failed to persuade the court that those “treatment team” records
must be considered as supportive evidence of Ms. Christensen’s opinion. Plaintiff has likewise
failed to persuade the court that the ALJ erred by determining that Ms. Christensen’s opinions
16

See AR 23-25.
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were merely in the form of a list of checked boxes with little supporting explanation. In the
court’s view, Ms. Christensen’s opinions, standing on their own, were correctly described by the
ALJ as being a list of checked boxes with little supporting explanation. That was a proper factor
for the ALJ to rely upon in giving Ms. Christensen’s opinions little weight. See SSR 06-03p; 20
C.F.R. §§ 404.1527(c)(3), 416.927(c)(3).
II.

Other Sources
Plaintiff argues that the ALJ erred in the evaluation of the opinions of the following other

sources: (A) one of Plaintiff’s case managers, Kathryn Brooksby (“Ms. Brooksby”); and (B) a
vocational rehabilitation counsel who has worked with Plaintiff, Diane Curtis (“Ms. Curtis”), and
another one of Plaintiff’s case managers, Lisa Goodman (“Ms. Goodman”).
A.

Ms. Brooksby

Plaintiff contends that the ALJ erred in evaluating the opinions of Ms. Brooksby. The
ALJ noted that Ms. Booksby opined that Plaintiff had certain limitations relative to the type of
work she could perform and the number of hours she could work. 17 In her decision, the ALJ
concluded that Ms. Brooksby’s opinions were entitled to little weight. 18 In support of that
conclusion, the ALJ relied on several inconsistencies between Ms. Brooksby’s opinions about
Plaintiff’s limitations and other evidence in the record. The ALJ relied upon the following facts
gleaned from the record: (1) Plaintiff had shown in the recent past that she was able to perform
well at work and attend school; (2) Plaintiff’s work manager noted that Plaintiff’s work was
satisfactory and that she was dependable; (3) Plaintiff had begun to submit many job
17

See AR 26.

18

See id.
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applications; and (4) Plaintiff showed good interaction with customers and a good demeanor at
work. 19
The court concludes that the ALJ did not err in her evaluation of Ms. Brooksby’s
opinions. To the contrary, the ALJ properly relied upon all of the above-referenced
inconsistencies in reaching the conclusion that Ms. Brooksby’s opinions were entitled to little
weight. See SSR 06-03p; see also 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). While Plaintiff
takes issue with each of those inconsistencies, her arguments are nothing more than an attempt to
reargue the weight of the evidence before the ALJ, which is a futile tactic 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)); 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 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)).

19

See id.
9

B.

Ms. Curtis and Ms. Goodman

Plaintiff contends that the ALJ erred by failing to indicate the weight assigned to the
opinions of Ms. Curtis and Ms. Goodman. In her decision, the ALJ concluded that Ms. Curtis
and Ms. Goodman did not actually offer any opinion evidence and, as such, no weight was
assigned to their statements. The Commissioner does not dispute that the ALJ did not weigh the
statements of Ms. Curtis and Ms. Goodman. However, the Commissioner argues that those
statements do not constitute opinions and, consequently, the ALJ was not required to weigh
them. The court agrees with the Commissioner.
Pursuant to the relevant regulations, “opinions are statements . . . that reflect judgments
about the nature and severity of [a claimant’s] impairment(s), including [his or her] symptoms,
diagnosis and prognosis, what [he or she] can still do despite impairment(s), and [his or her]
physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). After reviewing
the statements of Ms. Curtis and Ms. Goodman against that standard, the court agrees with both
the Commissioner’s argument and the ALJ’s assessment of the statements. The Commissioner
correctly notes that the statements of Ms. Curtis and Ms. Goodman are merely an account of
their respective interactions with Plaintiff and her self-reported symptoms and limitations. In
other words, neither Ms. Curtis nor Ms. Goodman offered opinions that the ALJ was required to
weigh. Accordingly, the court concludes that the ALJ did not err in failing to assign weight to
the statements of either Ms. Curtis or Ms. Goodman.

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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 27th day of March, 2018.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

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