Butterfield v. Saul

Filing 22

MEMORANDUM DECISION - Having made a thorough review of the entire record, the Court hereby AFFIRMS the decision of the Commissioner. Signed by Magistrate Judge Paul Kohler on 5/9/22. (alf)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THOMAS B.,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security, 1

Case #4:21-cv-00035-PK
Magistrate Judge Paul Kohler

Defendant.

This matter comes before the Court on Plaintiff Thomas B.’s appeal from the decision of
the Social Security Administration denying his application for disability and disability insurance
benefits. The Court will affirm the administrative ruling.
I. STANDARD OF REVIEW
This Court’s review of the administrative law judge’s (“ALJ”) decision is limited to
determining whether their findings are supported by substantial evidence and whether the correct
legal standards were applied. 2 “Substantial evidence ‘means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” 3 The ALJ is required to
consider all of the evidence, although they are not required to discuss all of the evidence. 4 If

1

Pursuant to Fed. R. Civ. P. 25(d) and the last sentence of 42 U.S.C. § 405(g), Kilolo
Kijakazi is substituted for Andrew Saul as the defendant in this suit.
2

Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000).

3

Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)).
4

Id. at 1009–10.
1

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supported by substantial evidence, the Commissioner’s findings are conclusive and must be
affirmed. 5 The Court should evaluate the record as a whole, including the evidence before the
ALJ that detracts from the weight of the ALJ’s decision. 6 However, the reviewing court should
not re-weigh the evidence or substitute its judgment for that of the Commissioner. 7
II. BACKGROUND
A.

PROCEDURAL HISTORY
In January 2019, Plaintiff filed an application for disability and disability insurance

benefits, alleging disability beginning on March 24, 2018. 8 Plaintiff’s claim was denied initially
and upon reconsideration. 9 Plaintiff then requested a hearing before an ALJ, which was held on
August 24, 2020. 10 The ALJ issued a decision on September 9, 2020, finding that Plaintiff was
not disabled. 11 The Appeals Council denied Plaintiff’s request for review on January 29, 2021, 12
making the ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 13
On April 2, 2021, Plaintiff filed his complaint in this case. 14 On August 4, 2021, both
parties consented to a United States Magistrate Judge conducting all proceedings in the case,

5

Richardson, 402 U.S. at 390.

6

Shepherd v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).

7

Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000).

8

R. at 220–21.

9

Id. at 109, 110.

10

Id. at 37–69.

11

Id. at 18–36.

12

Id. at 1–6.

13

20 C.F.R. § 422.210(a).

14

Docket No. 2.
2

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including entry of final judgment, with appeal to the United States Court of Appeals for the
Tenth Circuit. 15 The Commissioner filed an answer and the administrative record on September
15, 2021. 16
Plaintiff filed his Opening Brief on November 12, 2021. 17 The Commissioner’s Answer
Brief was filed on January 5, 2022. 18 Plaintiff filed his Reply Brief on January 25, 2022. 19
B.

MEDICAL HISTORY
Plaintiff alleges disability because of back pain, anxiety, depression, and PTSD. 20

Plaintiff asserts having PTSD from his over 20 years of service as a police officer. 21 He states
that because of his issues with mental health he has removed himself from social situations. 22
Although Plaintiff’s wife provides assistance in many activities, Plaintiff still helps take care of
his children, drives, travels, shops, and handles finances. 23 Plaintiff also works on his farm, 24
fixes fences, 25 and volunteers for the fire department. 26

15

Docket No. 10.

16

Docket Nos. 12, 13.

17

Docket No. 16.

18

Docket No. 20.

19

Docket No. 21.

20

R. at 220, 242.

21

Id. at 348, 351, 354, 356–57, 359, 361–62, 364–65, 368–69, 371–73, 375, 388, 391,
395, 398, 400, 403, 405,406–407, 409, 411, 415, 417, 419–22.
22

Id. at 343, 348, 351, 354, 356–57, 359, 361–62, 364–65, 368–69, 371–73, 375, 380,
388, 391, 395, 398, 400, 403, 405, 406–407, 409, 411, 415, 417, 419–22.
23

Id. at 274–76.

24

Id. at 380.

25

Id. at 390.

26

Id. at 372.
3

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Plaintiff received some treatment for his alleged disabilities including acupuncture, 27
counseling, 28 medication, 29 dieting, 30 and exercise. 31 The medical records present a mixed
picture regarding Plaintiff’s improvement. During certain visits, Plaintiff reported that he was
feeling happy and relaxed and noticed that his back pain was improving. 32 In October 2018,
Plaintiff reported that he enjoyed working outside and going on vacation with his family. 33 In
January 2019, Plaintiff started volunteering for the fire department. 34 However, in April 2019,
Plaintiff reported having “some issues with flashbacks and episodes of PTSD” and was avoiding
social situations, including attending church. 35
Plaintiff started acupuncture treatment with Jennifer Myers, NPT, in January 2018 at
which point medical examinations revealed that Plaintiff had inflammation in his spine. 36 When
Plaintiff returned to NPT Myers in January 2019, he reported having anger issues, depression,
anxiety, and stress. 37 However, in February 2019, NPT Myers completed a Mental Capacity
Assessment (“MCA”) of Plaintiff, which indicated that Plaintiff had no limitations in

27

Id. at 357–75.

28

Id. at 505–24.

29

Id. at 290, 299, 316.

30

Id. at 355, 358, 386, 402, 487.

31

Id. at 350, 352, 355, 373, 421, 487, 527–28.

32

Id. at 360–75.

33

Id. at 368.

34

Id. at 371.

35

Id. at 374.

36

Id. at 348.

37

Id. at 371.
4

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understanding, remembering, applying information, or interacting with others. 38 The MCA
further indicated that Plaintiff had zero to mild limitations in concentration, persistence, or
maintaining pace and one marked limitation in his ability to maintain personal hygiene and
appropriate work attire. 39
Plaintiff also received treatment from Scott Noorda, M.D. in April 2018. 40 During this
medical visit, Plaintiff reported that his panic attacks were subsiding, but he was having trouble
sleeping. 41 Additionally, despite some improvements in joint pain, Plaintiff still had lower back
pain. 42
In April 2019, Plaintiff was evaluated by consultative examiner, Eileen Booth, Ph.D., for
his mental illnesses. 43 Plaintiff reported having extreme anxiety, depression, and was suffering
from flashbacks of his days in law enforcement. 44 On a Mini-Mental Status Examination,
Plaintiff scored a 27 out of 30, which is above the cut-off of 23 points that would suggest severe
mental impairment. 45 Plaintiff was found to be within “normal limits” and did not appear to have
significant cognitive impairments. 46 Dr. Booth also reported that Plaintiff was logical and goal

38

Id. at 335–37.

39

Id. at 336.

40

Id. at 358.

41

Id.

42

Id.

43

Id. at 426–32.

44

Id. at 427.

45

Id. at 430.

46

Id.
5

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oriented, but he appeared depressed, was lacking in self-care and “is almost agoraphobic in his
fear of going out and his possible overreactions in situations.” 47
In May 2019, Julia Lewis, D.O., examined Plaintiff for his disability claim and reported
that he was able to care for himself, drive, cook, and clean. 48 Although Plaintiff complained of
back pain, Dr. Lewis determined that he did not have any physical limitations. 49
Starting in December 2019, Plaintiff attended several counseling sessions with Jaime
Bacon, L.C.S.W. 50 Ms. Bacon reported that Plaintiff struggled with PTSD, anxiety, and
depression.
State agency physicians also reviewed a portion of the record. 51 Although they disagreed
on whether Plaintiff’s mental impairments were severe, they ultimately concluded that Plaintiff
retained abilities to perform medium work. 52

C.

HEARING TESTIMONY

47

Id. at 430, 432.

48

Id. at 438.

49

Id. at 441–42.

50

Id. at 505–24.

51

Id. at 97–107, 111–26.

52

Id. at 107, 126.
6

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At the hearing before the ALJ, Plaintiff testified that he was unable to work because of
back pain, anxiety, depression, and PTSD. 53 Plaintiff stated that he suffers from panic attacks
and worries about working with people who may push him over the edge. 54 Plaintiff noted that
he takes anxiety medication and participates in counseling. 55
D.

THE ALJ’S DECISION
The ALJ followed the five-step sequential evaluation process in deciding Plaintiff’s

claim. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity from his alleged onset date of March 24, 2018. 56 At step two, the ALJ found that
Plaintiff suffered from the following severe impairments: degenerative disc disease, anxiety,
depression, and PTSD. 57 At step three, the ALJ found that Plaintiff did not have an impairment
or combination of impairments that met or equaled a listed impairment. 58 The ALJ determined
that Plaintiff had the residual functional capacity (“RFC”) to perform medium work and routine
tasks at a consistent pace with occasional interaction with coworkers but no contact with the
public. 59 At step four, the ALJ determined that Plaintiff could not perform any past relevant

53

Id. at 48–50.

54

Id. at 53–54.

55

Id. at 48–49.

56

Id. at 23.

57

Id. at 24.

58

Id. at 24–25.

59

Id. at 26.
7

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work. 60 At step five, the ALJ found that there were jobs that exist in significant numbers in the
national economy that Plaintiff could perform and, therefore, he was not disabled. 61
III. DISCUSSION
Plaintiff argues that the ALJ erred in his evaluation of the medical opinion evidence. For
applications filed on or after March 27, 2017, an ALJ is not required to defer to or give any
specific weight to medical opinions or prior administrative medical findings. 62 Rather, the ALJ
considers them using the criteria in 20 C.F.R. § 404.1520c(c): (1) supportability; (2) consistency;
(3) relationship with the claimant; (4) specialization; and (5) other factors tending to support or
contradict a medical opinion or prior administrative medical finding. The most important criteria
for determining persuasiveness are the supportability and consistency. 63 “For supportability, the
strength of a medical opinion increases as the relevance of the objective medical evidence and
explanations presented by the medical source increase.” 64 “Consistency, on the other hand, is an
all-encompassing inquiry focused on how well a medical source is supported, or not supported,
by the entire record.” 65
The ALJ must articulate “how persuasive [he or she] find[s] all of the medical opinions
and all of the prior administrative medical findings in [the] case record.” 66 The ALJ must explain

60

Id. at 31.

61

Id. at 31–32.

62

20 C.F.R. § 404.1520c(a).

63

Id. § 404.1520c(a), (b)(2).

64

John H. v. Saul, No. 2:20-CV-00255-JCB, 2021 WL 872320, at *4 (D. Utah Mar. 8,
2021) (internal quotation marks and citation omitted).
65

Id.

66

20 C.F.R. § 404.1520c(b).
8

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how he or she considered the supportability and consistency factors for a medical source’s
medical opinions or prior administrative medical findings, but is generally not required to
explain how he or she considered other factors. 67 Social Security Ruling 96-8p emphasizes that
“[i]f the RFC assessment conflicts with an opinion from a medical source, the adjudicator must
explain why the opinion was not adopted.” 68 “The RFC assessment must include a discussion of
why reported symptom-related functional limitations and restrictions can or cannot reasonably be
accepted as consistent with the medical and other evidence.” 69
Plaintiff challenges the ALJ’s treatment of the opinion of consultative examiner Dr.
Eileen Booth. The ALJ found Dr. Booth’s opinions unpersuasive because they were inconsistent
with other medical records. 70 Dr. Booth opined that Plaintiff could “perform simple work, but
[was] very limited in going outside his home,” but the ALJ found that other medical records
showed that Plaintiff was “upbeat” and “doing better with interaction and involvement in
activities out of the home.” 71 The ALJ cited to two records from November 2017 which
described Plaintiff as “upbeat” 72 and one May 2020 record reporting that Plaintiff had “moments

67

Id. § 404.1520c(b)(2).

68

SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996)

69

Id.; see also Givens v. Astrue, 251 F. App’x 561, 568 (10th Cir. 2007) (“If the ALJ rejects
any significantly probative medical evidence concerning [a claimant’s] RFC, he must provide
adequate reasons for his decision to reject that evidence.”).
70

R. at 30.

71

Id.

72

Id. at 344, 381.
9

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in public where he has an episode but has been able to control himself,” he “[h]as not lashed
out,” and he “[h]as improved in that overall.” 73
Plaintiff argues that the ALJ’s RFC determination is not supported by substantial
evidence. Plaintiff first argues that the ALJ determination relies on evidence from several months
prior to the alleged onset date of Plaintiff’s disability, March 24, 2018. Although the ALJ cited to
a November 2017 record indicating that Plaintiff was “upbeat,” the ALJ did not deny Plaintiff’s
claim solely based on these two pieces of evidence. Rather, the ALJ made his determination
based on the record as a whole and reviewed evidence from November 2017 to June 2020. 74
Notably, the record indicates that in October 2018, Plaintiff reported that he was “working
outside a lot and enjoying it” and that he “went on vacation and enjoyed himself with his
family.” 75 In January 2019, Plaintiff started volunteering with the fire department. 76 In February
2019, Plaintiff was feeling more energetic and in a better mood. 77 In September 2019, Plaintiff
felt stable despite having some episodes of anxiety and depression. 78 Moreover, an ALJ can
consider evidence even if it falls outside the relevant time period. 79 Thus, the ALJ’s citation to
evidence before the alleged onset date does not constitute reversible error.

73

Id. at 491.

74

Id. at 27–29.

75

Id. at 368.

76

Id. at 371.

77

Id. at 373.

78

Id. at 490.

79

Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (“[E]ven if a doctor’s
medical observations regarding a claimant’s allegations of disability date from earlier, previously
adjudicated periods, the doctor’s observations are nevertheless relevant to the claimant's medical
history and should be considered by the ALJ.”).
10

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Plaintiff also argues that the ALJ only cited to one example supporting the proposition
that Plaintiff was “doing better with interaction and involvement with activities out of the
home.” 80 Plaintiff states that “[t]he ALJ is not permitted to focus on just one notation when the
actual evidence of record shows a more serious picture.” 81 This argument is without merit. “The
record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required
to discuss every piece of evidence.” 82 The ALJ cited to one piece of evidence that was generally
consistent with the entire record. As previously noted, the record indicates that Plaintiff was able
to and enjoyed working on his farm; he also started volunteering for the fire department and went
on vacation with his family. Lastly, the record indicates several occasions where Plaintiff
reported frequent improvements in his mood and mental health. 83 The ALJ’s findings are
supported by substantial evidence and the record reveals that the ALJ considered all of the
evidence even if every piece was not discussed.
IV. CONCLUSION
Having made a thorough review of the entire record, the Court hereby AFFIRMS the
decision of the Commissioner.

80

R. at 30 (citing id. at 491).

81

Docket No. 16, at 7 (citing Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 481

(1951)).
82

Clifton, 79 F.3d at 1009–10.

83

R. at 415–21, 423, 487–90, 528, 530–32.
11

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DATED this 9th day of May, 2022.
BY THE COURT:

PAUL KOHLER
United States Magistrate Judge

12