Jaeger v. Berryhill

Filing 22

MEMORANDUM DECISION & ORDER AFFIRMING DECISION OF THE COMMISSIONER: The Court AFFIRMS the decision of the Commissioner. The Clerk of Court is directed to close this case. Signed by Magistrate Judge Brooke C. Wells on 05/30/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
KELLY JAEGER,
Plaintiff,

MEMORANDUM DECISION AND ORDER
AFFIRMING DECISION OF THE
COMMISSIONER

v.
Case No. 2:17-cv-424 BCW
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

Magistrate Judge Brooke Wells

This case is before the undersigned following the parties consent under Federal Rule of
Civil Procedure 73. 1 Plaintiff Kelly Jaeger alleges disability beginning September 15, 2011,
from neck and back problems, right-arm arthritis, and a plate and bolts in his left arm. 2 Mr.
Jaeger appeared and testified at a hearing held before an Administrative Law Judge (ALJ) on
October 7, 2015, in St. George, Utah. 3 Following the hearing, the ALJ concluded Mr. Jaeger
was not disabled for purposes of the Social Security Act. 4 The agency’s Appeals Council denied
Plaintiff’s request for review, rending the ALJ’s decision final. 5 This appeal followed. As set
forth below, the court affirms the decision of the Commissioner.

1

ECF No. 15..

2

Tr. 141-47, 161 (Tr is the record of proceedings in this case).

3

Tr. 32-65.

4

See 20 C.F.R 404.120(g).

5

See 20 C.F.R. 404.981.

BACKGROUND 6
Plaintiff applied for disability, disability insurance benefits and supplemental security
income on July 5, 2013. He alleges disability due to neck and back problems, right-arm arthritis,
and a plate and bolts in his left arm. 7 In 1993, while in his late 20’s, Mr. Jaeger suffered a severe
head injury due to a motorcycle accident. His then fiancé who was riding with him was killed
and Mr. Jaeger experienced a closed-head trauma and lost consciousness. 8 Mr. Jaeger reported
using a variety of illegal substances, including methamphetamine, since about age 14. At
various times throughout his life Plaintiff has spent time in prison for his involvement with
manufacturing methamphetamine. 9
From 2001 through 2009 Mr. Jaeger reported working a variety of jobs including work as
a cook supervisor, laborer, grounds keeper, sign hanger and truck loader. 10 Plaintiff stopped
working in September 2011 after he was laid off. Mr. Jaeger states he lacks the abilities to work
due to his severe conditions. 11
The ALJ followed the standard five-step sequential evaluation process for disability
claims. 12 The ALJ found Mr. Jaeger had the severe impairments of organic mental disorder,
affective disorder and substance abuse disorder. 13 At step three the ALJ found Mr. Jaeger did
not meet a listing. The ALJ then determined that Plaintiff had the residual functional capacity to
6

The parties fully set forth the background of this case, including the extensive 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.
7

Tr. 161.

8

Tr. 352.

9

Id.

10

Tr. 162.

11

Tr. 161.

12

See 20 C.F. R. § 404.1520(a)(4); Fisher-Ross v. Barnhart, 431 F.3d 729 (10th Cir. 2005) (summarizing the five
step process).

13

Tr. 19.

2

perform a full range of work at all exertional levels with certain nonexertional limitations:
“limited to performing simple tasks and instructions that can be performed in 2-hour increments
and would do better with hands-on instructions. He is limited to only occasional interactions
with others.” 14 Given this RFC, the ALJ found Mr. Jaeger could perform past relevant work as a
groundskeeper, maintenance worker and sign hanger. Additionally, Mr. Jaeger was capable of
performing other jobs in the national economy. Thus, Mr. Jaeger was not disabled. 15
STANDARD OF REVIEW
Because the Appeals Council denied the claimant’s requested review the ALJ’s decision
is considered the Commissioner’s final decision for purposes of this appeal. 16 The court reviews
the ALJ's decision to determine whether the correct legal standards were applied and whether the
factual findings are supported by substantial evidence in the record. 17 “Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 18
“A decision is not based on substantial evidence if it is overwhelmed by other evidence in the
record or if there is a mere scintilla of evidence supporting it.” 19 In considering claimant’s
appeal the court may “neither reweigh the evidence nor substitute [its] judgment for that of the
agency.” 20
DISCUSSION
On appeal Mr. Jaeger argues the ALJ erred in two aspects. First the ALJ erred in failing
to properly evaluate the medial opinion evidence concerning his mental impairments, especially
14

Tr. 22.

15

Tr. 25.

16

Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003); 20 C.F.R. § 404.981.

17

See Doyal, 331 F.3d at 760; Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006).

18

Doyal 331 F.3d at 760.

19

Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988).

20

Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).

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in the opinions from Dr. Daniel Sanderson and Dr. Ronald Houston. Second, based on this
initial failure, the ALJ’s residual functional capacity (RFC) assessment did not include all
Plaintiffs’ mental limitations in the record and thus was flawed.
I.

The ALJ’s evaluation of the medical opinion evidence
An ALJ must “give consideration to all the medical opinions in the record [and] discuss

the weight [she] assigns to such opinions.” 21 When assessing medical opinions, the ALJ must
consider the factors listed in 20 C.F.R. § 404.1527(c) and give good reasons for the weight she
assigns to the opinion. 22 The opinions of physicians who have treated a patient over a long
period are given greater weight than reports of physicians employed and paid by the government
for purposes of defending against a disability claim. 23
Plaintiff takes issue with the ALJ’s analysis of the opinions of Dr. Sanderson and Dr.
Houston. The Social Security Agency sent Mr. Jaeger to a consultative exam with psychologist,
Dr. Sanderson in April 2014. 24 Dr. Sanderson performed a series of standardized tests that
considered inter alia Mr. Jaeger’s memory, mental status and IQ. There were no indications of
malingering. Dr. Sanderson opined Mr. Jaeger’s “capacity for auditory memory lies in the range
of significant impairment”, his capacity for immediate memory had deficits and that he would
“struggle greatly with any task requiring retention of verbal instruction.” 25 Dr. Sanderson further
opined that “[Mr. Jaeger] may fair somewhat better with more fluid ‘hands-on’ instruction” but
“given his cognitive profile, intellectual tasks beyond a very pedestrian level will tend to be a

21

Keys-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted).

22

See Watkins v. Barnhart, 350 F.3d 1297, 131 (10th Cir. 2003).

23

See Broadbent v. Harris, 698 F.2d 407, 412 (10h Cir. 1983).

24

Tr. 348-63.

25

Tr. 362-63.

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challenge.” 26 Dr. Sanderson noted Mr. Jaeger’s “rather rapid-cycling lability of affective
states” 27 and recommended a “closer look” at subtests given the unexpected inconsistencies in
the testing. 28
The ALJ gave Dr. Sanderson’s mental assessment great weight noting Mr. Jaeger’s
struggles with “any task requiring retention of verbal instruction or any task beyond a very
pedestrian level” but that he would “perform better with more fluid ‘hands-on’ instruction.” 29
In October 2015, Dr. Houston reviewed Dr. Sanderson’s report and prison medical
records. 30 Dr. Houston noted that based on the testing, “it appears Mr. Jaeger is suffering from
cognitive dysfunction severe enough to preclude competitive employment, reduced to highly
structured, sheltered employment situations where work is constantly supervised.” 31 Dr.
Houston listed some examples of real life job problems Mr. Jaeger is likely to encounter and
further opined that given the past head trauma
it is most probable that with advancing age the course of his impairment follows
the emerging evidence in the literature which suggests that head trauma even mild
concussions such as those that occur in sports like football, soccer, and hockey
can lead to progressive mental deterioration as a result of chronic traumatic
encephalopathy. 32
Thus, “any increase in mental demands or change in environment would predictably lead to
decompensation.” 33 Finally, Dr. Houston noted that Mr. Jaeger “needs to be informed in no
uncertain terms that continued use of drugs and alcohol is an especially bad thing for persons
26

Id.

27

Tr. 363.

28

Tr. 359.

29

Tr. 23.

30

Tr. 460.

31

Tr. 463.

32

Tr. 464.

33

Id.

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with a head injury.” 34 The ALJ discounted Dr. Houston’s opinion giving it little weight based on
the record, Mr. Jaeger’s employment history and his legal history involving drugs.
Plaintiff argues the ALJ failed to incorporate Dr. Sanderson’s limitations into the RFC
and hypothetical given to the vocational expert. According to Plaintiff, the ALJ conflated Dr.
Sanderson’s statements noting that “the claimant would struggle with any task requiring
retention of verbal instructions or any task beyond a very pedestrian level, but would perform
better with more fluid ‘hands-on’ instruction.” 35 Thus, the limitation to hands-on instructions
was not explained in the hypothetical as an inability to process verbal instructions.
A close reading of Dr. Sanderson’s opinion does not support Plaintiff’s position. Dr.
Sanderson did not opine that Mr. Jaeger had an inability to process verbal instructions. Rather,
he stated that Plaintiff “will struggle greatly with any task requiring retention of verbal
instruction.” 36 Dr. Sanderson then provided an alternative, Mr. Jaeger would “fair somewhat
better with more fluid ‘hands-on’ instruction.” 37 The court finds no error in the ALJ’s
hypothetical that provided for an individual who “would be limited to simple tasks and
instruction, would do better with … hands-on instructions, occasional contact with others, and
tasks that can be performed in basically tow-hour increments with normal breaks, ….” 38 This
hypothetical accounted for Dr. Sanderson’s difficulties in retention of verbal instruction.

34

Tr. 465.

35

Tr. 23.

36

Tr. 363.

37

Id.

38

Tr. 57.

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Because the record supports the ALJ’s reading and interpretation of Dr. Sanderson’s opinion the
court need not adopt Plaintiff’s alternative reading. 39
Next, Plaintiff takes issue with the weight given to Dr. Houston’s opinion arguing the
ALJ “completely ignores Dr. Houston’s finding that Mr. Jaeger’s functional decline over this
time is related to chronic traumatic encephalopathy (CTE).” 40 Once again a close reading of Dr.
Houston’s opinion undermines Plaintiff’s position. Dr. Houston noted that “it is most probable
that with advancing age the course of [Plaintiff’s] impairment follows the emerging evidence in
the literature which suggests that head trauma . . . can lead to progressive mental deterioration as
a result of chronic traumatic encephalopathy.” 41 Dr. Houston did not diagnose CTE thus the
ALJ did not need to consider a CTE diagnosis. Further, Dr. Houston did not treat Mr. Jaeger
over a long period of time, 42 and the ALJ discounted his opinion based on the record and
Plaintiff’s employment and legal history. Taken together the undersigned finds these items
constitute good reasons for the weight given to Dr. Houston’s opinion.
II.

The ALJ’s RFC determination
Mr Jaeger argues the ALJ erred by failing to include all his established limitations in his

RFC assessment. In assessing the RFC, the ALJ found Plaintiff could
perform a full range of work at all exertional levels but with the following
nonexertional limitations: [Plaintiff] is limited to performing simple tasks and
instructions that can be performed in 2-hour increments and would do better with
hands-on instructions. He is also limited to only occasional interaction with
others. 43
39

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 Zaltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
40

Opening brief p. 12.

41

Tr. 464.

42

See Broadbent v. Harris, 698 F.2d 407, 412 (10h Cir. 1983) (noting the difference between physicians who have
treated a patient over a long period and those employed and paid for by a party).
43

Tr. 22.

7

Plaintiff asserts this RFC is “basically just a limitation to unskilled work” 44 and this fails to
account for his mental impairments. In support, Plaintiff cites to Jaramillo v. Colvin 45 where the
Tenth Circuit found phrases such as “simple tasks” refers to the ability to perform unskilled work
and that is inadequate to account for certain mental limitations.
Jaramillo, however, is not applicable here because the ALJ provided a RFC that
adequately accounted for Plaintiff’s mental limitations and it was not a guised attempt to limit
Plaintiff to unskilled work. In explaining the RFC to the vocational expert, the ALJ provided
that an individual would “be able to persist for the next two hours, so it wouldn’t be a job where
you would get instructions and have to keep on the same instructions for eight hours a day.” The
2-hour increment limitation in the RFC accounted for Plaintiff’s difficulties with the retention of
verbal instructions. Therefore, the court is persuaded the instant matter is more analogous to the
cases cited to by the Commissioner, Vigil v. Colvin 46 and Smith v. Colvin, 47 where the court
rejected arguments that the ALJ’s limitations failed to accommodate a claimant’s severe mental
impairments.

44

Opening brief p. 14.

45

576 F.App’x 870, 876 (10th Cir. 2014) (unpublished).

46

805 F.3d 1199, 1204, 2015 WL 5672613 (10th Cir. 2015) (“There may be cases in which an ALJ's limitation to
“unskilled” work does not adequately address a claimant's mental limitations. See Chapo v. Astrue, 682 F.3d 1285,
1290 n. 3 (10th Cir.2012) (recognizing that restrictions to unskilled jobs do not in all instances account for the
effects of mental impairments). But in this case, we conclude that limiting the plaintiff to an SVP of only one or two,
adequately took into account his moderate limitations in concentration, persistence, and pace.”);
47

821 F.3d 1264, 1269 (10th Cir. 2016) (concluding that the ALJ incorporated the functional limitations of the
claimant through the findings).

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CONCLUSION AND ORDER
Because the correct legal standards were applied and the ALJ’s factual findings are
supported by substantial evidence in the record, the court AFFIRMS the decision of the
Commissioner. 48 The Clerk of Court is directed to close this case.
DATED this 30 May 2018.

Brooke C. Wells
United States Magistrate Judge

48

See Doyal, 331 F.3d at 760; Madrid v. Barnhart, 447 F.3d 778, 790 (10th Cir. 2006).

9