Atkin v. Saul

Filing 27

MEMORANDUM DECISION AND ORDER affirming the ALJ's reasonable findings as supported by substantial evidence and affirms the Commissioner's decision denying Plaintiff's claim for disability benefits. Signed by Magistrate Judge Dustin B. Pead on 10/4/21. (dla)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
RICKIE A.,

Case No. 2:20-cv-00711

Plaintiff,
vs.

MEMORANDUM DECISION
& ORDER

KILOLO KIJAKAZI,
Commissioner of Social Security
Administration,

Magistrate Judge Dustin B. Pead

Defendant.

INTRODUCTION 1
Pursuant to 42 U.S.C. § 405(g), Plaintiff Rickie A. 2 seeks judicial review of the
Commissioner of Social Security’s decision denying his claim for disability insurance benefits
under Title II of the Social Security Act. After careful review of the administrative record, the
parties’ briefs and arguments and the relevant law, the undersigned concludes that the

1

The parties in this case consented to United States Magistrate Judge Dustin B. Pead

conducting all proceedings, including entry of final judgment, with appeal to the United States
Court of Appeals for the Tenth Circuit. (ECF No. 11.) See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
2

Based on privacy concerns regarding sensitive personal information, the court does not

use Plaintiff’s last name. Privacy concerns are inherent in many of the Federal Rules. See Fed. R.
App. P. 25(a)(5); Fed. R. Civ. P. 5.2; Fed. R. Crim. 49.1.

1

Commissioner’s decision is supported by substantial evidence and free of harmful legal error.
Accordingly, as set forth herein, the Commissioner’s decision is AFFIRMED.
BACKGROUND
On December 29, 2017, Plaintiff Rickie A. (“Plaintiff”) filed a Title II application for
disability benefits under the Social Security Act (the “Act”), alleging a disability onset date of
January 2, 2014. (Tr. 3 172-75, 209.) Plaintiff’s last date insured was December 31, 2019. 4 (Tr.
12, 209.) Plaintiff’s claim was initially denied on May 22, 2018, and again upon reconsideration
on August 24, 2018. (Tr. 37-58, 98.) Thereafter, Plaintiff requested an administrative hearing
which was held on December 18, 2019, before Administrative Law Judge (“ALJ”) Jason
Crowell. (Id.); 20 C.F.R. § 404.929 et seq.; 20 C.F.R. § 404.936(c). 5
On January 14, 2020, consistent with the five-step sequential evaluation process, the ALJ
issued a written decision (“Decision”). (Tr. 14-28); See 20 C.F.R. § 416.920 (describing the fivestep evaluation process). At step two, the ALJ found that Plaintiff had the severe impairments of
degenerative disc disease of the cervical and lumbar spine and osteoarthritis of the right knee.

3

Tr. refers to the transcript of the administrative record before the Court.

4

In order to qualify for disability insurance benefits, a claimant must establish a

disability on or before his date last insured. See 20 C.F.R. §§ 404.101, 404.120, 404.315; see
also Potter v Sec’y of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990) (“the
relevant analysis is whether the claimant was actually disabled prior to the expiration of her
insured status” (emphasis in original)).
5

Except where otherwise indicated, all references to the Code of Federal Regulations

(C.F.R.) are to the 2019 edition in effect at the time of the ALJ’s decision.

2

See 20 C.F.R. § 404.1520(c). After determining that Plaintiff’s impairments did not meet or
equal a listed impairment, see 20 C.F.R. § 404, Subp P. Appx 1, the ALJ concluded that Plaintiff
had the residual functional capacity (“RFC”) to perform “sedentary work” as defined in 20
C.F.R. § 404.1567(a) and found that Plaintiff could:
[o]ccasionally climb, balance, stoop, kneel, crouch, and crawl.
He can occasionally reach overhead bilaterally. He can frequently
handle, finger and feel bilaterally. He must avoid concentrated
exposure to hazards.
(Tr. 13.) At step four, the ALJ found that Plaintiff was unable to perform his past relevant work
as a truck supervisor, tractor trailer truck driver, structural steel worker and floor layer but could
perform the requirements of representative occupations such as document preparer, addresser
and callout operator. (Tr. 20-21); see 20 C.F.R. §§ 404.1569, 404.1569(a)). Based thereon, the
ALJ denied Plaintiff’s application for disability benefits finding that he was not disabled under
the Act.
On August 18, 2020, the Appeals Council denied Plaintiff’s request, making the ALJ’s
Decision the Commissioner’s final Decision for purposes of review. (Tr. 1-3); 20 C.F.R.
§ 404.981. Plaintiff’s October 14, 2020, appeal to this court followed. (ECF No. 3); See 42
U.S.C. § 405(g).
STANDARD OF REVIEW
The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). In conducting its

3

review, the Court may neither reweigh the evidence nor substitute its judgment for that of the
ALJ. Hendron v. Colvin, 767 F. 3d 951, 954 (10th Cir. 2014).
Substantial evidence review is deferential, and the agency’s factual findings are
considered “conclusive” if they “are supported by ‘substantial evidence.’” Biestek v. Berryhill,
139 S. Ct. 1148, 1153, 203 L. Ed. 2d 504, 508 (2019) (quoting 42 U.S.C. § 405(g)). As the
Supreme Court recently confirmed, the substantial evidence threshold “is not high” and
deference should be given to the presiding ALJ “who has seen the hearing up close.” Id. at 1154,
1157. Substantial evidence is defined as “more than a mere scintilla” and “means—and means
only—such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. at 1154 (internal quotation omitted).
DISCUSSION 6
On appeal, Plaintiff mounts two main challenges. First, Plaintiff argues that the RFC is
not supported by substantial evidence because the ALJ failed to properly consider several
medical opinions. Second, Plaintiff asserts the ALJ failed to account for his self-reported
symptoms and the limiting effects of his impairments. Both of these challenges are addressed
herein.
6

Because Plaintiff only applied for disability insurance benefits, this case involves the

period between Plaintiff’s January 2014 alleged onset of disability and his December 2019 date
last insured. See 20 C.F.R. §§ 404.101, 404.120, 404.315; see also Potter v. Sec’y of Health &
Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990) (“the relevant analysis is whether the
claimant was actually disabled prior to the expiration of her insured status” (emphasis in
original)).

4

I. The ALJ’s Decision Reflects Proper Consideration Of The Medical Opinions.
Plaintiff challenges the ALJ’s assessment of medical opinions authored by Dr. Lynn
Gaufin (“Dr. Gaufin”), Mathew Badger, N.P. (“Nurse Badger”) and Travis Felix, DPT (“Mr.
Felix”). However, as discussed below, Plaintiff fails to establish that the ALJ erred in his
evaluations. To the contrary, the ALJ properly reviewed and considered the persuasiveness,
supportability and consistency of the cited medical opinions in the context of the applicable
revised regulatory scheme. See 20 C.F.R. § 404.1529; SSR 16-3p.7
1. Dr. Gaufin and Nurse Badger 8
On appeal, Plaintiff argues the RFC is not supported by substantial evidence because it
was improper for the ALJ to “pick and choose” only certain information from Dr. Gaufin’s

7

Because Plaintiff filed an application after March 27, 2017, the new regulations for

assessing prior administrative medical findings and medical opinions apply. See e.g., 20 C.F.R. §
404.1520(c) (explaining how an adjudicator considers medical opinions for claims filed on or
after March 27, 2017); see also “Revisions to Rules Regarding the Evaluation of Medical
Evidence” 81 Fed. Reg. 62.560.
8

Plaintiff argues that the ALJ’s failure to indicate that both Dr. Gaufin and Nurse Badger

filled out Plaintiff’s November 30, 2017, questionnaire “calls into question the ALJ’s analysis of
the consistency of the opinion.” (ECF No. 20 at 20.) The ALJ’s analysis, however, did not turn
on how many medical providers signed the checkbox form and therefore does not affect the
ALJ’s discussion of that opinion. Further, to the extent it is based on the November
questionnaire, the Court’s evaluation of Dr. Gaufin’s opinion applies to Nurse Badger’s opinion
as well.

5

medical reports.
Dr. Gaufin opined that Plaintiff “could sit for one hour and stand and/or walk for two
hours but he would have to lie down or recline in an eight-hour workday with the ability to shift
positions at will.” (Tr. 19; Ex. 9F.) The ALJ, however, found that Dr. Gaufin’s opinion was
unpersuasive because the limitations assessed were inconsistent with: (1) Dr. Gaufin’s treatment
notes; (2) the objective results of an August 2017 Functional Capacity Evaluation conducted by
Mr. Felix 9; (3) Dr. Nelson’s May 2018 opinion; and (4) prior administrative medical findings.
(Tr. 18-19.) Each of these grounds is examined further.
First, because Dr. Gaufin’s treatment notes did not support his opinion the ALJ properly
concluded that his opinion was unpersuasive. See 20 C.F.R. § 404.1520c(c)(1) (“the more
relevant the objective medical evidence and supporting explanations presented by a medical
source are to support his or her medical opinion(s) or prior administrative medical finding(s), the
more persuasive the medical opinions or prior administrative medical finding(s) will be.”).
Indeed, one month prior to providing his opinion Dr. Gaufin observed that Plaintiff had intact
coordination, balance, gait and cranial nerves, as well as full strength. (Tr. 19; see Tr. 561, 563).
Further, Dr. Gaufin’s 2016 treatment notes show that Plaintiff exhibited normal gait,
coordination and sensation and indicated that epidural steroid injection provided Plaintiff with
“100% relief”. (Tr. 14; see Tr. 575, 577-81, 583, 587-88, 590, 593, 607.)
9

At the bottom of the checkbox form, Dr. Gaufin and Nurse Badger wrote “please refer

to FCE” (Tr. 642.) This notation presumably refers to an August 2017 FCE performed by
Physical Therapist, Travis Felix. (Tr. 554-59.)

6

In turn, despite Plaintiff’s claim of cherry-picking, the ALJ did consider unfavorable
evidence when evaluating Dr. Gaufin’s opinion. Specifically, the ALJ acknowledged that
Plaintiff had multilevel cervical degenerative disc disease that led to two fusion surgeries which
failed to resolve Plaintiff’s symptoms. And even though Plaintiff had a positive response to
conservative treatment measures, the ALJ limited him to the least demanding level----a reduced
range of sedentary work. (Tr. 19; see Tr. 539, 546, 617, 774, 822.)
Second, the ALJ properly found Dr. Gaufin’s opinion to be unpersuasive because his
sitting and standing limitations were inconsistent with the Functional Capacity Examination that
Dr. Gaufin’s opinion was purportedly based upon. (Tr. 16, 19.) The August 21, 2017, Functional
Capacity Examination performed by Mr. Felix, showed that Plaintiff had full range of motion in
his low back, was able to maintain a single leg stance on each leg, could walk on heels and toes
without weakness, could squat with assistance and had normal reflexes. (Tr. 554-59.)
Conversely, Dr. Gaufin opined that Plaintiff had significantly more restrictive limitations,
indicating that Plaintiff could only stand or walk for thirty minutes at one time and for two hours
in an eight-hour workday. (Tr. 642.) Thus, under the revised regulations it was appropriate for
the ALJ to consider the persuasiveness of Dr. Gaufin’s opinion, given the inconsistencies
between Dr. Gaufin and Mr. Felix’s opinions. See 20 C.F.R. § 404.1520c(c)(2).
Third, the ALJ evaluated the differences between Dr. Gaufin and Dr. Nelson’s opinions.
Dr. Nelson examined Plaintiff in May 2018 and the ALJ found his opinion “partly persuasive”
because it was supported by his own observations and objective testing. (Tr. Tr. 764-70, Tr. 18.)

7

In direct opposition to Dr. Gaufin’s opinion that Plaintiff’s symptoms would frequently interfere
with his attention and concentration, Dr. Nelson observed that Plaintiff’s attention and
concentration were normal. (Tr. 767.) Further, Dr. Nelson concluded that Plaintiff’s ability to
ambulate moderate distances, stand for moderate periods of time and to sit, hear, speak, travel or
handle light objects was not impacted. (Tr. 770.) Thus, the ALJ properly evaluated the
persuasiveness of Dr. Gaufin’s opinion based on its inconsistencies with Dr. Nelson’s opinion.
See 20 C.F.R. § 404.1520c(c)(2).
Finally, the ALJ determined that Dr. Gaufin’s opinion was inconsistent with prior
medical findings. (Tr. 19.) State agency consultants Dr. Kendrick Morrison and Dr. Gregory
Stevens both opined that Plaintiff could stand for at least four hours in an eight-hour workday
and could perform demands that were consistent with light work. (Tr. 69, 72-74, 92-94.) Because
these findings contradicted Dr. Gaufin’s opinion, it was reasonable for the ALJ to find Dr.
Gaufin’s opinion unpersuasive. See 20 C.F.R. § 404.1520c(c)(2).
2. Travis Felix, DPT
Plaintiff challenges the ALJ’s consideration of Mr. Felix’s opinion asserting that the ALJ
fails to build a logical bridge between the evidence cited and the conclusions drawn. As
discussed above, Mr. Feliz opined that Plaintiff could perform light work on a part time basis but
did not specify how long Plaintiff could sit or stand or whether he could perform full-time,
sedentary work. (Tr. 559.) Conversely, Dr. Gaufin opined that Plaintiff had more restrictive
limitations and could only stand or walk for thirty minutes at one time and for two hours in an
eight-hour workday. (Tr. 642.)

8

Under the revised regulations, the ALJ was required to consider inconsistencies between
Dr. Gaufin and Mr. Felix’s opinions. In doing so, it was appropriate for the ALJ to conclude that
Mr. Felix’s opinion was “well supported” but lacking in information as to the claimant’s ability
to perform sedentary work and therefore only “partly persuasive.” (Tr. 18); see 20 C.F.R.
§ 404.1520c(c)(2).
Overall, in compliance with the revised regulatory scheme, the ALJ provided a
reasonable assessment of the medical opinions. See 20 C.F.R. § 404.1520c(b)(2). (“The factors
of supportability. . . and consistency. . . are the most important factors we consider when we
determine how persuasive we find a medical source’s medical opinions. . . .”) Plaintiff’s
challenge to Dr. Gaufin, Nurse Badger and Mr. Felix’s opinions is based on the assertion that the
underlying evidence could have supported a different conclusion. Yet even assuming such
assertion is true, it is not a proper basis for remand. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007) (noting the court “may not displace the agency’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.” (internal quotations and citation omitted)).
II. The ALJ Properly Considered Inconsistencies Between The Record And Plaintiff’s
Allegations
Plaintiff argues the RFC fails to properly consider and give weight to Plaintiff’s own
allegations and reported symptoms.10 But, in concluding that Plaintiff’s allegations are

10

This information was previously referred to as a “credibility assessment”. Effective

March 28, 2016, SSR 16-3p eliminated the term “credibility” from the agency’s sub-regulatory
(continued . . .)
9

inconsistent with the objective medical evidence, the ALJ identifies valid reasons for discounting
Plaintiff’s subjective claims. Specifically, the ALJ determined that Plaintiff’s claim of neck pain
was inconsistent with medical evidence showing intact coordination, balance, gait and cranial
nerves as well as full strength. (Tr. 19; Tr. 561, 563.) Additionally, the ALJ found
inconsistencies with Plaintiff’s symptoms and the relief that Plaintiff reported receiving through
treatment and the use of pain medications. (Tr. 15; Tr. 19; Tr. 539, Tr. 546, Tr. 607, Tr. 617, Tr.
774, Tr. 882); see 20 C.F.R. § 404.1529(c)(3)(iv) (an ALJ must consider the effectiveness of
treatment); see Diaz v. Sec’y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990)
(symptom evaluation “determinations are peculiarly the province of the finder of fact, and we
will not upset such determinations when supported by substantial evidence.”).
Accordingly, because Plaintiff’s reported symptoms were not supported by the medical
evidence of record, it was reasonable for the ALJ to discount, or give less weight to, Plaintiff’s
own allegations. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1172 (10th Cir. 2012) (“The ALJ,
however, was free to resolve evidentiary conflicts because there is substantial evidence to
support his conclusion.”).
CONCLUSION
The record contains evidence suggesting that Plaintiff experienced greater functional
limitations as well as evidence that Plaintiff experienced lesser functional limitations. Under
such circumstances the Court is required to defer to the judgment of the agency factfinder, the
policy. 2017 WL 5180304. The underlying regulations governing symptom analysis, however,
have not changed. See 20 C.F.R. §§ 404.1529 and 416.929.

10

ALJ. Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (internal quotation marks and
citation omitted) (the Court may “neither reweigh the evidence nor substitute [its] judgment for
that of the agency.”).
Accordingly, for the reasons stated above, the Court affirms the ALJ’s reasonable
findings as supported by substantial evidence and affirms the Commissioner’s decision denying
Plaintiff’s claim for disability benefits.
IT IS SO ORDERED.
DATED this 4th day of October 2021.
_______________________________
DUSTIN B. PEAD
United States Magistrate Judge

11