United States District Court, D. Utah
CYNTHIA DAWN HINDS for MICHAEL J. HINDS, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM DECISION & ORDER
B. Pead Magistrate Judge.
pursuant to 42 U.S.C. § 405(g), seeks judicial review of
the decision of the Acting Commissioner of Social Security
(Commissioner) denying his claim for disability insurance
benefits (DIB) under Title II of the Social Security Act (the
Act). After review of the record, the parties' briefs,
and arguments presented at a hearing held on February 21,
2017, the undersigned concludes that the Commissioner's
decision is supported by substantial evidence and free of
harmful legal error. Accordingly, the Commissioner's
decision, for the reasons set forth herein, is AFFIRMED.
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. See Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007). “Substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id.
(citation omitted). The Court may neither “reweigh the
evidence [n]or substitute [its] judgment for the
[ALJ's].” Id. (citation omitted). Where
the evidence as a whole can support either the agency's
decision or an award of benefits, the agency's decision
must be affirmed. See Ellison v. Sullivan, 929 F.2d
534, 536 (10th Cir. 1990).
case, Plaintiff was age 55 on September 30, 2009, his date
last insured. He alleged disability beginning June 23,
2009, based on knee injuries, degenerative hip and disc
disease, and a left shoulder injury (Tr. 181). He completed
the 11th grade and had past relevant work as an executive
analyst, property manager, and branch manager (Tr. 182, 193).
In evaluating his case, the ALJ followed the familiar
five-step sequential evaluation process (Tr. 17-22). See
generally 20 C.F.R. § 404.1520(a)(4). As relevant
here, the ALJ found that Plaintiff had severe impairments of
degenerative joint disease of the knees, history of fractured
ankle, hepatitis C, and degenerative joint disease, but that
his medical conditions did not meet or equal the criteria of
the disabling impairments listed at 20 C.F.R. pt. 404, subpt.
P, app. 1 (Tr. 17). The ALJ next determined that through his
date last insured, Plaintiff retained the residual functional
capacity (RFC) to perform a reduced range of sedentary to
light work (Tr. 18-20). Considering this RFC, the ALJ then
found that Plaintiff could perform his past relevant work as
a branch manager, and thus, was not disabled under the strict
standards of the Act (Tr. 20-22). After a careful review of
the record, the Court finds and concludes that the ALJ's
decision was supported by substantial evidence and should be
The ALJ reasonably evaluated Plaintiff's spinal
Plaintiff asserts that the ALJ “neglected to
discuss” his degenerative disc disease, foraminal
stenosis, and bulging discs at step two of the sequential
evaluation process (Plaintiff's Brief (Pl. Br.) 12-14).
Nonetheless, the Court finds that any alleged error was
harmless, as Plaintiff has failed to show that it affected
the ultimate outcome of his case. See Shinseki v.
Sanders, 556 U.S. 396, 408-09 (2009) (rejecting a legal
framework that would “prevent the reviewing court from
directly asking the harmless-error question, ” and that
would justify “reversing for error regardless of its
effect on the judgment”) (citation and internal quotes
did not find that Plaintiff's spinal degenerative disc
disease was a severe impairment at step two of the sequential
evaluation process (Tr. 17). This conclusion was supported by
medical expert Dr. Rubin who reviewed Plaintiff's March
2009 MRI during the administrative hearing and concluded that
it showed only “mild to moderate bulging” (Tr.
53; see Tr. 488-89). Dr. Rubin testified that, despite
his spinal and knee impairments, Plaintiff would remain able
to stand for two to three hours in an eight-hour period (Tr.
54-55). Furthermore, both state agency physicians reviewed
Plaintiff's medical records, including the MRI, and
opined that Plaintiff retained physical abilities consistent
with light work, including the ability to stand and/or walk
for up to six hours in an eight-hour workday (Tr. 82-84, 94).
Further, the ALJ gave Plaintiff the benefit of the doubt in
finding that he was more limited than indicated by these
opinions and restricting him to a range of light to sedentary
work (Tr. 18). Thus, the Court concludes that the ALJ's
RFC assessment was consistent with the medical source
opinions, and Plaintiff fails to demonstrate that the medical
evidence supported any additional limitations based on
degenerative disc disease. See Fischer-Ross v.
Barnhart, 431 F.3d 729, 735 (10th Cir. 2005).
The ALJ reasonably evaluated the medical source
next asserts that the ALJ should have given more weight to
the restrictions assigned by treating physician Lonnie
Paolos, M.D., in June and August of 2005 (Pl. Br. 15-18).
However, because the ALJ in this case reasonably weighed all
of the medical source opinions, his treatment of these
opinions does not support Plaintiff's request for remand.
See 20 C.F.R. § 404.1527.
2005 (four years prior to Plaintiff's alleged disability
onset date), Dr. Paolos completed a Workers Compensation Form
indicating that Plaintiff was limited to lifting 20 pounds;
should avoid deep knee bending, squatting, kneeling,
crawling, climbing stairs and ladders; and should not do any
“prolonged standing or walking on hard surfaces”
(Tr. 326). In August 2005, Dr. Paolos stated that these
limitations were permanent (Tr. 322-23). The ALJ considered
these opinions and assigned them “some” weight
(Tr. 19). Indeed, consistent with Dr. Paolos's opinions,
the ALJ limited Plaintiff to lifting no more than 20 pounds
(Tr. 18). And, although Dr. Paolos did not specifically
indicate how long Plaintiff would be able to stand or walk at
one time, the ALJ limited him to standing and walking no more
than three hours in an eight-hour workday, which is generally
consistent with the restriction to “no prolonged
standing or walking” (Tr. 18). The ALJ, however, found
that Plaintiff had slightly greater abilities than indicated
by Dr. Paolos, and limited him to occasional stooping,
kneeling, crouching, crawling, and climbing ramps and stairs
(Tr. 18). The ALJ's findings are consistent with the
medical evidence before and during the relevant period, which
demonstrated that Plaintiff retained normal muscle strength,
bulk, and tone; normal range of motion; and normal sensory
function (Tr. 494, 496, 500-01). The findings are also
consistent with the opinions of the state agency physicians
(Tr. 82-84, 94). Further, it is the sole province of the ALJ
to assess Plaintiff's RFC based upon the record as a
whole. See20 C.F.R. § 404.1546(c) (stating an
ALJ is responsible for assessing RFC); Howard v.
Barnhart, 379 F.3d 945, 949 (10th Cir. 2004)
(“[T]he ALJ, not a physician, is charged with
determining a claimant's RFC from the medical
result, the Court finds that the ALJ reasonably weighed Dr.
Paolos's opinions, and the record as a whole, in
concluding that, during the relevant period, Plaintiff
retained the RFC to perform a reduced range of sedentary to
light work. See Pisciotta v. Astrue, 500 F.3d 1074,
1077-78 (10th Cir. 2007) (finding an ALJ reasonably
determined that a treating physician's opinions were not
controlling and were entitled to little weight where the
record provided “ample support” for the ALJ's
decision, even though the ALJ did not discuss all the
evidence which the court found supported his decision).
The ALJ reasonably weighed Plaintiff's wife's
testimony regarding his symptoms.
also asserts that the ALJ did not provide adequate reasons
for discounting his wife's testimony regarding his
symptoms (Pl. Br. 18-21). In a related claim, Plaintiff complains
that the ALJ did not make a “meaningful inquiry”
into his limitations during the administrative hearing at
which Plaintiff's wife testified on his behalf (Pl. Br.
21-22). As a preliminary matter, the Court notes that
Plaintiff's wife was represented by counsel at the
administrative hearing (Tr. 27). At the hearing, the ALJ
asked Plaintiff's wife to testify regarding
Plaintiff's impairments during 2009 and, while she
provided limited information, a failure to provide more
information or identify other issues cannot be attributed to
the ALJ. See Glass v. Shalala, 43 F.3d 1392, 1396
(10th Cir. 1994) (while the ALJ has a basic obligation to