United States District Court, D. Utah
CAROLYN A. WILSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM DECISION AND ORDER AFFIRMING THE
COMMISSIONER'S FINAL DECISION
M. WARNER Chief United States Magistrate Judge.
Carolyn A. Wilson, pursuant to 42 U.S.C. § 405(g), seeks
judicial review of the decision of the Acting Commissioner of
Social Security (Commissioner) denying her claim for
disability insurance benefits (DIB) under Title II of the
Social Security Act (the Act). Pursuant to 28 U.S.C. §
636(c) and rule 73 of the Federal Rules of Civil Procedure,
both parties have consented to Chief Magistrate Judge Paul M.
Warner conducting all proceedings in this case, including
entry of final judgment, with appeal to the United States
Court of Appeals for the Tenth Circuit (Doc. 12). After
careful review of the entire record, the parties' briefs,
and arguments presented at a hearing held on June 29, 2017,
the Court concludes that substantial evidence supports the
Commissioner's decision to deny benefits and that proper
legal standards were applied.
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”
administrative law judge (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 claimed disability based on pain in her neck
and back, migraines, and numbness in her hip and hands (Tr.
195). She holds an accounting degree and worked as a billing
specialist, in communications, and as a contract agent with a
medical clinic (Tr. 34, 196-97, 203-06). She stopped working
in 2008 when the company she worked for transferred the
accounting department to Texas (Tr. 34). In December 2009,
Plaintiff lost control of her car on the ice and ran into a
telephone pole going five miles per hour (Tr. 356; see
also Tr. 32, 263). She fractured her L1 vertebrae and
the thoracic (T1) spinal process; she was also diagnosed with
spinal canal stenosis (narrowing) at ¶ 4-5 and L5-S1
(Tr. 357, 359, 384).
denied Plaintiff's application for benefits after a
hearing in May 2014 (Tr. 14-24). In her September 2014
decision, the ALJ followed the five-step sequential
evaluation process for evaluating disability claims (Tr.
14-24). See generally 20 C.F.R. §
404.1520(a)(4). As relevant here, the ALJ found that
Plaintiff's lumbar degenerative disc disease and obesity
were “severe” impairments, but her headaches,
carpal tunnel syndrome, depression, and anxiety were not
“severe” (Tr. 16-17). None of Plaintiff's
impairments met or equaled a listed impairment, and Plaintiff
retained the residual functional capacity to perform a range
of light work that would be performed primarily when seated
with the ability to alternate sitting and standing (Tr.
18-19). Considering this residual functional capacity, the
ALJ found that because Plaintiff could perform her past work
as a billing and account clerk, Plaintiff was not disabled
under the Act (Tr. 23-24). The Appeals Council then declined
Plaintiff's request for review in January 2016 (Tr. 1-3).
challenges the ALJ's decision by asserting error at step
two and various errors in assessing her residual functional
capacity (see generally Doc. 14, Plaintiff's
Brief (Pl. Br.)). After careful review of the entire record,
the Court concludes that Plaintiff's arguments do not
establish reversible error.
the Court finds the ALJ did not err at step two by failing to
conclude that Plaintiff's headaches were severe. The ALJ
reasonably observed that although Plaintiff reported having
headaches for two years, her examination records contain only
two previous complaints of headaches in May 2010 and in July
2010, when she reported having periodic tension/migraine
headaches when she did not use her back brace (Tr. 281, 287).
Indeed, the record shows that Plaintiff did not receive
treatment for headaches until May 2013-more than four years
after her alleged onset of disability (Tr. 641).
importantly, the ALJ found that at least one other impairment
was “severe” and appropriately moved on to step
three in the sequential evaluation process. See 20
C.F.R. §§ 404.1520(c), 404.1523. “Once the
ALJ finds that the claimant has any severe
impairment, he has satisfied the analysis for purposes of
step two.” Hill v. Astrue, 289 F. App'x
289, 292 (10th Cir. 2008) (unpublished) (emphasis in
original). Thus, even assuming that the ALJ did err by
failing to find that Plaintiff's headaches were severe,
any error is rendered harmless because the ALJ found that
Plaintiff could not be denied benefits conclusively at step
two and she proceeded to the next step. See Carpenter v.
Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)
(“Nevertheless, any error [in not finding a specific
impairment ‘severe' at step two] here became
harmless when the ALJ reached the proper conclusion that Mrs.
Carpenter could not be denied benefits conclusively at step
two and proceeded to the next step of the evaluation
sequence.”) (remanded on other grounds). The severity
finding at step two is merely a threshold showing that must
be made by a claimant so as to require the sequential
analysis to continue. See 20 C.F.R. §§
404.1520(c), 404.1523. Once the claimant shows that she has
any “severe” impairment at step two, as she did
here, the ALJ proceeds with the sequential evaluation process
and considers all impairments, both severe and non-severe.
Id. Here, the Court also notes that Plaintiff failed
to present evidence showing that she had functional
limitations from these impairments in excess of those the ALJ
included in her residual functional capacity assessment.
See, e.g., Qualls v. Apfel, 206 F.3d 1368,
1372 (10th Cir. 2000) (ALJ only required to include
limitations that he finds supported by the record).
the Court concludes that the ALJ did not err by giving
Plaintiff's treating medical provider's opinion
little weight. Matthew B. Johnson, M.D., stated that due to
Plaintiff's spinal stenosis and vertebral fracture, she
would not be able to work in a position involving climbing,
bending, lifting, or prolonged sitting due to pain (Tr. 22,
670). Dr. Johnson also completed a form indicating that
Plaintiff would miss three to four workdays a month because
of headaches that occurred several times a week and lasted 24
hours (Tr. 22, 668). Even if a doctor is deemed a treating
physician, the opinion of that doctor is only entitled to
controlling weight if it is well-supported by the medical
evidence and “is not inconsistent with other
substantial evidence” in the record. 20 C.F.R. §
404.1527(c)(2); Watkins v. Barnhart, 350 F.3d 1297,
1301 (10th Cir. 2003) (“[i]t is an error to give an
opinion controlling weight simply because it is the opinion
of a treating source if it is not well-supported by medically
acceptable clinical and laboratory diagnostic techniques or
if it is inconsistent with the other substantial evidence in
the case record” (quotation and citation omitted)).
the ALJ found that these opinions by Dr. Johnson were not
well-supported by the medical evidence and were inconsistent
with other substantial evidence in the record. 20 C.F.R.
§ 404.1527(c)(2). The ALJ then articulated
“specific, legitimate reasons” for the limited
weight she accorded to Dr. Johnson and found that Dr.
Johnson's opinions were conclusory with little
explanation of the evidence he relied upon when forming his
opinions. See 20 C.F.R. § 404.1527(c)(3)
(“The more a medical source presents relevant evidence
to support an opinion, particularly medical signs and
laboratory findings, the more weight we will give that
opinion. The better an explanation a source provides for an
opinion, the more weight we will give that opinion.”).
The ALJ also explained the opinions were not supported by Dr.
Johnson's own examination findings, or the objective
clinical or diagnostic findings. 20 C.F.R. §§
404.1527(c)(2)-(4); see also Jones v. Colvin, 610 F.
App'x 755, 759 (10th Cir. 2015) (unpublished) (concluding
that the ALJ could rely on the fact that an opinion was not
well supported both in finding that the opinion was not
entitled to controlling weight and in finding it was entitled
to little weight). In fact, Dr. Johnson did not indicate that
Plaintiff's functional abilities were limited at any of
his examinations (Tr. 267-70, 276, 281, 287-89, 292-94,
298-300, 303-06, 319-20, 341-45, 350, 444-48, 588-90,
593-649). The medical record, when taken as a whole, is
consistent with the ALJ's finding, and the ALJ provided
sufficient reasons, based on the legal standard of review,
for rejecting the medical opinions of Dr. Johnson. Thus, the
ALJ did not err.
Court also concludes the ALJ's finding that Plaintiff
could perform a range of light work with limitations was not
flawed. As an initial matter, the Court notes that Plaintiff
did not offer any legal or evidentiary support for her
arguments that the ALJ erred by finding she could lift or
carry 20 pounds occasionally and 10 pounds frequently while
using a cane. See Eateries, Inc. v. J.R. Simplot
Co., 346 F.3d 1225, 1232 (10th Cir. 2003) (“A
party forfeits an issue it does not support with legal
authority or argument.” (citation and quotation
omitted)). Moreover, the ALJ considered Plaintiff's need
for a cane and included the limitation that Plaintiff's
work must be performed primarily from a seated position (Tr.
19). The ALJ also included the requirement that Plaintiff be
able to alternate from sitting to standing at least every 30
minutes, while remaining on task at the assigned workstation.
Therefore, the ALJ's RFC finding is supported by
the Court finds that the ALJ did not err in assessing
Plaintiff's credibility. The ALJ articulated sufficient
reasoning, including citing to inconsistencies between
Plaintiff's testimony and other evidence in the record,
and relied upon proper factors in determining that overall
Plaintiff's testimony was not entirely credible.
See Social Security Ruling (SSR) 96-7p, 1996 WL
374186, at *2; see also Kepler v. Chater, 68 F.3d
387, 391 (10th Cir. 1995). For example, the ALJ considered
that Plaintiff's medications were relatively effective in
controlling her alleged symptoms, and noted Plaintiff did not
engage in recommended alternate therapies (Tr. 21). 20 C.F.R.
§§ 404.1529(c)(3)(iv)-(v). The ALJ considered
Plaintiff's reported daily activities to her physician
that she could do laundry, unload the dishwasher, clean the
litter box, and do some bending (Tr. 21). 20 C.F.R. §
404.1529(c)(3)(i). The ALJ also considered Plaintiff's
testimony that she stopped working in 2008 because the
company she worked for transferred the accounting department
to Texas (Tr. 34). 20 C.F.R. § 404.1529(c)(3) (stating
an ALJ must consider evidence about a claimant's prior
work record); Potter v. Sec'y of Health & Human
Servs., 905 F.2d 1346, 1349 (10th Cir. 1990) (indicating
that a claimant's admission that she did not leave
employment as a result of a health-related impairment was
relevant to a determination of disability). Plaintiff's
challenge to the ALJ's evaluation of her subjective
complaints about her impairment related symptoms essentially
amounts to an improper request that this Court engage in fact
finding. See Hackett v. Barnhart, 395 F.3d 1168,
1173 (10th Cir. 2005) (“Credibility determinations are
peculiarly the province of the finder of fact, and we will
not upset such determinations when supported by substantial
evidence.” (quotation and citation omitted)); see
also Wingender v. Colvin, No. 15-1400-JWL, 2016 WL
6680999, at *3 (D. Kan. Nov. 16, 2016) (slip copy)
(“[T]he question for the court is not whether the
evidence supports Plaintiffs argument, but whether the
evidence supports the ALJ's decision.” (citing
Lax, 489 F.3d at 1084)).
viewed in its entirety, the record contains substantial
evidence to support the ALJ's finding that Plaintiff was
not disabled. As noted above, this Court is not authorized by
law to re-weigh the evidence. Lax, 489 F.3d at 1084.
Even assuming that the Court may have arrived at a different
conclusion, the Court must determine whether the ALJ had
substantial evidence to support her findings and decision.
Thus, the Court concludes that the ALJ's decision in this
matter is sufficiently supported by substantial evidence in
the record and that the correct legal standards were ...