Eisenbrandt v. Berryhill

Filing 22

MEMORANDUM DECISION AND ORDER - The court concludes the Commissioners decision is supported by substantial evidence and is free of harmful legal error. The Commissioners decision is therefore affirmed. Signed by Magistrate Judge Brooke C. Wells on 2/5/2019. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
Chris E,

Memorandum Decision and Order Affirming
the Decision of the Commissioner
Plaintiff,

v.
Case No. 2:17-cv-474 BCW
Nancy A. Berryhill, Acting Commissioner of
Social Security
Magistrate Judge Brooke Wells
Defendant.

Plaintiff, Chris E, appeals the Commissioner’s denial of his application for disability
benefits under Title II of the Social Security Act. 1 The court determines the decision of the
Commissioner is supported by substantial evidence and the law was properly applied. Therefore,
discerning no reversible error, the court affirms the Commissioner’s decision.
I
Mr. E, 2 filed for benefits alleging disability beginning on January 12, 2012, 3 due to
depression, anxiety and pain in his back and legs. 4 Plaintiff’s last insured date is December 31,
2013. Under the regulations Plaintiff must establish disability on or before that date to get
benefits. 5 To establish disability, Mr. E must show that he has an
inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in

1

The parties consented to the jurisdiction of the undersigned in accordance with 28 U.S.C. § 636(c).
Based on privacy concerns regarding sensitive personal information the court does not use Plaintiff’s last name.
Privacy concerns are a part of many of the Federal Rules. See Fed. R. App. P. 25(a)(5); Fed. R. Civ. P. 5.2; Fed. R.
Crim. P. 49.1; Fed. R. Bankr. P. 9037.
3
Tr. 15.
4
Tr. 34, 188.
5
See 20 C.F.R. §§ 404.101(a), 404.1512(a). Claimant previously filed an application for benefits in March 2010 that
was decided against him on January 11, 2012. Tr. 18. The prior decision found Mr. E had the severe impairments of
degenerative disc disease, major depressive disorder, anxiety and alcohol abuse.
2

death or which has lasted or can be expected to last for a continuous period of not
less than 12 months ….” 6
Following an initial denial of benefits, Plaintiff requested and received a hearing before
an administrative law judge (ALJ). The ALJ followed the five-step sequential evaluation
process 7 and found Mr. E had the severe impairments of lumbar degenerative disc disease and
depressive disorder. 8 The ALJ next found that Mr. E had the residual functional capacity (RFC)
to perform light work with certain modifications. 9 Plaintiff’s prior work experience includes
work as a maintenance mechanic. At step five, the ALJ found that Plaintiff could perform other
jobs such as marker, housekeeping cleaner or cafeteria attendant. 10 So, he was not disabled.
After the Appeals Council denied review, the ALJ’s decision became the final decision of
the Commissioner for review. 11 Mr. E seeks review of the Commissioner’s decision and raises
two issue on appeal: 1) did the ALJ fail to correctly consider and evaluate the combined and
cumulative effects of all the physical and mental impairments in determining Claimant’s RFC?;
and 2) did the ALJ err by not taking into consideration Plaintiff’s own testimony and failing to
adopt the limitations of the vocational expert in two of the hypotheticals?
II.
The court reviews the Commissioner’s “decision only to determine whether the correct
legal standards were applied and whether the factual findings are supported by substantial

6

42 U.S.C. § 423(d).
20 CFR 404.1520(a).
8
Tr. 18.
9
These additional limitations include “occasional climbing of ramps and stairs but no climbing ladders, ropes, or
scaffolds; occasionally balance, stoop, kneel, crouch, or crawl; no working at unprotected heights or around
dangerous moving machinery or using vibrating tools; he could perform simple, routine, tasks involving only SVP
of one or two; he could perform goal-oriented work such as an office cleaner, but not production-rate pace work
such as an assembly line.” Tr. 20.
10
Tr. 25.
11
See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.2003).
7

2

evidence in the record.” 12 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.” 13 “The possibility of drawing two inconsistent conclusions from the evidence
does not prevent an administrative agency's findings from being supported by substantial
evidence.” 14 Thus, 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
III
Plaintiff first challenges the ALJ’s RFC assessment attacking the ALJ’s “specific
findings that [he] was capable of performing a range of light work, ….” 16 Plaintiff argues the
ALJ failed to correctly consider and evaluate the combined and cumulative effects of the entirety
of his physical and mental impairments. Further, Plaintiff asserts the ALJ’s RFC assessment is
not supported by substantial evidence in the record. These arguments are without merit and not
supported by the record.
Here the ALJ carefully set forth reasons supporting the finding of an RFC for light work
with additional limitations. The ALJ noted inconsistencies in Plaintiff’s own testimony about
driving a car and trips to and from Oregon. 17 The ALJ also cited to findings by state agency
medical professionals, Dr. David Peterson, Dr. Ralph McKay, Dr. Joshua Clauson and Dr.
Kenneth Wallis, that supported the RFC of light work with additional limitations. 18 In addition,

12

Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir.2006).
Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir.2008) (internal quotation marks omitted).
14
Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004); see also Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007).
15
Id. (quoting Custer County Action Ass’n v. Garvery, 256 F.3d 1024, 1030 (10th Cir. 2001)).
16
Pla’s brief p. 13.
17
Tr. 17, 21.
18
Tr. 22-23.
13

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the ALJ considered the opinions of Plaintiff’s primary care provider, Jonathan Atkins, and Dr.
Timothy Grange, his orthopedic pain specialist. The ALJ discounted their opinions noting their
diagnosis of cervical arthritis and a torn biceps tendon were not established until 2015 and 2016,
which is after the insured period. 19 Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” 20 The evidence cited to by
the ALJ is certainly more than the required scintilla 21 and supports the RFC determination. 22
Next, Claimant challenges the evaluation of his own testimony and that of the vocational
expert (VE). The VE was presented with three hypotheticals. In one hypothetical Plaintiff was
found to be capable of other work. In the other two, including one with alterations made by
Plaintiff’s counsel at the hearing before the ALJ, Plaintiff would have been precluded from any
work. Plaintiff argues the ALJ erred by not taking into consideration his own testimony and by
failing to adopt the VE’s findings in the second or third hypotheticals. The court finds these
arguments unpersuasive.
Much of Plaintiff’s argument centers on the ALJ’s decision to discount his subjective
complaints. Plaintiff argues the ALJ’s decision “does not seem to address how Mr. [E’s]
physical, mental and social impairments impact the competitive realities of working in the
modern workplace.” 23 Plaintiff, however, fails to cite to portions in the record, other than his
own subjective testimony, that support the alleged severity and negative impact these

19

Tr. 23. See Huston v. Bowen, 838 F.2d 1125, 1127 (10th Cir. 1988) (noting the difficulty with evidence pertaining
to conditions that existed after the expiration of insured status).
20
Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir.2008) (internal quotation marks omitted).
21
See id.
22
See White v. Barnhart, 287 F.3d 903, 909-10 (10th Cir. 2001), as amended on denial of reh’g (Apr. 5, 2002)
(finding that the ALJ did not err because of a “carefully set forth” analysis of the record).
23
Pla’s brief p. 21.

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impairments had upon his ability to work. The ALJ is not required to include in the RFC
assessment limitations that are not supported by the medical evidence. 24
Finally, Plaintiff argues that if the ALJ had properly considered his subjective
complaints, then the second or third hypotheticals, where the VE said no work was available,
would have been adopted. Instead, the ALJ chose the first hypothetical rejecting the limitations
in the second and third hypotheticals. Plaintiff asserts this was error. A hypothetical question
should include all those impairments established by the evidentiary record. 25 It does not,
however, need to include impairments that are speculative or lacking in evidentiary support. 26
Here, the VE relied on limitations found by the ALJ that were established in the record. “The
ALJ was not required to accept the answer to a hypothetical question that included limitations
claimed by [P]laintiff but not accepted by the ALJ as supported by the record.” 27 The
undersigned concludes the ALJ did not err in relying on the VE’s testimony as to the first
hypothetical and rejecting the other two hypotheticals.

24

See Qualls v. Apfel, 206 F.3d 1368, 1371-72 (10th Cir. 2000) (“The first contention is belied by the medical
record, which does not show that the limitations in plaintiff's use of his hands included an inability to perform
repetitive motions. Therefore, the ALJ did not err by failing to include this alleged limitation in his RFC
assessment.”); see also United States v. Rodriquez-Aguirre, 108 F.3d 1228, 1238 n.8 (10th Cir. 1997) (the burden is
on the party alleging prejudice to cite to specific instances in the record and the court will not “sift through” the
record to find support for a claimant’s arguments).
25
See Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995).
26
See id.
27
Bean v. Cater, 77 F.3d 1210, 1214 (10th Cir. 1995).

5

CONCLUSION AND ORDER
The court concludes the Commissioner’s decision is supported by substantial evidence
and is free of harmful legal error. The Commissioner’s decision is therefore affirmed. The Clerk
of the Court is instructed to close this case.

DATED this 5 February 2019.

Brooke C. Wells
United States Magistrate Judge

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