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Carter v. Colvin

United States District Court, District of Colorado

March 21, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


Robert E. Blackburn United States District Judge

The matter before me is plaintiff’s Complaint [#1], [1] filed February 26, 2013, seeking review of the Commissioner’s decision denying plaintiff’s claim for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. I have jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g). The matter has been fully briefed, obviating the need for oral argument. I affirm.


Plaintiff alleges that she is disabled as a result of a right hip fracture, degenerative joint disease of the knees, and depression. Plaintiff filed an application for disability insurance benefits in 2002 and was awarded a closed period of benefits for the period of April 28, 2001, through June 5, 2002. However, plaintiff continued to receive benefit payments until June 2007, when she was notified that benefits would no longer be paid. Plaintiff requested reconsideration of that determination and the case was processed as a request for hearing on an initial application. Following protracted proceedings at the administrative level, [2] a hearing was held on November 27, 2012. At the time of this hearing, plaintiff was 56 years old. She has high school education and past relevant work experience as an order clerk and customer service representative. She did not engage in substantial gainful activity between April 28, 2001, her alleged date of onset, and December 31, 2007, her date last insured. See 20 C.F.R. § 404.131(a).

The ALJ found that plaintiff was not disabled after June 5, 2002, because she experienced medical improvement in her impairment related to her ability to work, and therefore that she was not entitled to disability insurance benefits past that date. Although the medical evidence established that plaintiff suffered from severe impairments after June 5, 2002, the judge concluded that the severity of those impairments did not meet or equal any impairment listed in the social security regulations. The ALJ found that plaintiff had the residual functional capacity to perform unskilled sedentary work with postural limitations. Although these findings precluded plaintiff’s past relevant work, the ALJ concluded that there were jobs existing in significant numbers in the national economy that she could perform. The ALJ therefore found plaintiff not disabled at step five of the sequential evaluation. Plaintiff appealed this decision to the Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.


A person is disabled within the meaning of the Social Security Act only if her physical and/or mental impairments preclude her from performing both her previous work and any other “substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social Security [Act] requires the [Commissioner] to consider the combined effects of the impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Social Security Act. To be disabling, the claimant’s condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).

A claimant who has previously been found disabled is subject to periodic review to determine her continuing entitlement to benefits. See 20 C.F.R. § 404.1594(a). The standards for deciding continuing eligibility apply both when benefits are sought to be terminated and when the Commissioner awards a closed period of benefits. Shepherd v. Apfel, 184 F.3d 1196, 1200 (10th Cir. 1999). Benefits will be discontinued when there has been medical improvement in the claimant’s impairments that is related to the ability to do work. 20 C.F.R. § 404.1594(a). “Medical improvement” is any decrease in the medical severity of the impairments based on changes in the symptoms, signs, and/or laboratory findings associated therewith. Id., § 404.1594(b)(1). Medical improvement is related to the ability to do work if these changes correspond to an increase in the claimant’s functional capacity to perform basic work activities. Id., §§ 404.1594(b)(3) & (b)(4).

The Commissioner has established a seven-step sequential evaluation process for determining whether a claimant who has previously been found disabled has experienced medical improvement related to the ability to do work:

1. The ALJ must first ascertain whether the claimant is engaged in substantial gainful activity. A claimant who is working is not disabled regardless of the medical findings.
2. The ALJ must then determine whether the claimant’s impairment meets or equals in severity certain impairments described in Appendix 1 of the regulations.
3. If the claimant’s impairment does not meet or equal a listed impairment, the ALJ must then determine whether there has been any medical improvement in that condition.
4. If there has been medical improvement, the ALJ must consider whether such improvement is related to the ability to work.
5. If the ALJ finds that the claimant has experienced medical improvement related to the ability to work, she must then determine whether all current impairments are severe.
6. If the claimant’s remaining impairments are severe, the ALJ must determine whether the claimant can perform her past work despite any limitations.
7. If the claimant does not have the residual functional capacity to perform his past work, the ALJ must decide whether the claimant can perform any other gainful and substantial work in the economy. This determination is made on the basis of the claimant’s age, education, work experience, and residual functional capacity.

20 C.F.R. § 404.1594(f)(1)-(8). See also Hayden v. Barnhart, 374 F.3d 986, 988 (10th Cir. 2004). The Commissioner bears the burden of demonstrating that the claimant has experienced medical improvement such that she now can engage in substantial gainful activity. 20 C.F.R. § 404.1594(b)(5); Glenn v. Shalala, 21 F.3d 983, 987 (10th Cir. 1994); Underwood v. Shalala, 985 F.Supp. 970, 977 (D. Colo. 1997).

Review of the Commissioner’s disability decision is limited to determining whether the ALJ applied the correct legal standard and whether the decision is supported by substantial evidence. Hamilton v. Secretary of Health and Human Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires more than a scintilla but less than a preponderance of the evidence. Hedstrom v. Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). Although a reviewing court should meticulously examine the record, it may not reweigh the evidence or substitute its discretion for that of the Commissioner. Id.


Plaintiff alleges that the ALJ violated the termination rules, erred in assessing her residual functional capacity, weighed improperly the medical source opinions of record, discredited wrongfully her subjective reports of pain and functional limitation, and failed to sustain her burden of proof at step 7 of the sequential evaluation. Finding no such reversible error in the ALJ’s decision, I affirm.

Plaintiff’s argument that the Commissioner violated the termination rules is somewhat difficult to parse. Plaintiff suggests that the ALJ’s reliance on the Commissioner’s August 27, 2002, disability determination as the “comparison point decision” (“CPD”)[3] in this case was problematic because that decision does not indicate that plaintiff was entitled to a closed period of benefits, but rather infers that she would continue to receive benefits, subject to periodic review. (Tr. 73-77, 264.) In her reply brief, she clarifies that “[t]he problem with the decision’s analysis is that medical improvement was not compared to the claimant’s condition on the CPD [in August, 2002], but upon the June 5, 2002 date when [plaintiff] was determined to no longer meet a listing.” (Plf. Reply Br. at 3.)

However, as with the majority of the arguments presented in this appeal, plaintiff fails to demonstrate how this alleged error in choosing the CPD prejudiced her substantial rights. See Williams v. Chater, 1995 WL 490280 at *2 (10th Cir. Aug.16, 1995) (“Procedural imperfection that does not affect a party's substantive rights is not a basis for reversal.”); Bernal v. Bowen, 851 F.2d 297, 303 (10th Cir. 1988) (mere fact of error does not warrant remand if the ALJ’s determination is otherwise supported by substantial evidence).[4] The ending date of plaintiff’s disability and the CPD were less than 3 months apart. Plaintiff points to no evidence suggesting that any critical change – or indeed, anything at all relevant to her medical condition – happened during this brief period.

Instead, plaintiff’s chief complaint appears to be that the Commissioner’s termination decision was unfair because she seemed to indicate in August 2002 that plaintiff was entitled to continuing benefits, and, indeed, continued to pay plaintiff benefits for years past the date her disability purportedly ended. Although such considerations might be relevant if the Commissioner were seeking reimbursement of the overpayment, see 20 C.F.R. § 404.506(a), it is not for purposes of this appeal. Plaintiff presents nothing establishing that the termination procedure was not followed once the Commissioner realized that benefits had been continued beyond the date on which plaintiff’s impairment had been found to be no longer meet the Listings.[5] This argument therefore fails.

Plaintiff next argues that the ALJ’s determination of her residual functional capacity after June 5, 2002, is flawed. This argument takes several forms. First, plaintiff points to evidence in the record showing evidence of possible bursitis or, alternatively, a non-union of the hip (Tr. 179), as well as knee instability and a July 2003 knee surgery (Tr. 658). Yet the ALJ actually addressed this evidence, specifically discussing the fact that plaintiff required a second surgery in January 2002 to fix a nonunion of the previous hip fracture.[6] She noted, however, that x-rays of June 5, 2002, showed that the fracture had healed. (Tr. 268, 182.) Similarly, the ALJ acknowledged that plaintiff underwent ACL repair in 2003 and throughly discussed the evidence of record regarding her complaints of knee pain. (Tr. 268.)[7] I perceive no error in the ALJ’s consideration of these issues.[8]

Plaintiff next argues that the ALJ failed to consider properly whether she met the requirements of section 1.02 of the Listings. The social security regulations include a listing of physical and mental impairments that are presumptively disabling (the “Listings”). See 20 C.F.R., Pt. 404, Subpt. P, app. 1. Section 1.02 of the Listings addresses “major dysfunction of a joint(s) (due to any cause).” Such an impairment is presumptively disabling if there is evidence, inter alia, of “[i]nvolvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b.” 20 C.F.R., Pt. 404, Subpt. P, app. 1, § 1.02A.[9]Under the Commissioner’s definition, “[i]nability to ambulate effectively . . . is defined generally as having insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.” Id. § 1.00B(2)(b)(1). Plaintiff presents no evidence suggesting that she requires this level of assistance in walking.[10] Accordingly, there was no prejudicial error in failing to consider the applicability of this Listing.

Plaintiff further perceives error in the ALJ’s consideration of the various medical opinions of record. She claims that the ALJ improperly gave greater weight to the opinion of the non-examining physician, Dr. Alan Ketelhorn (Tr. 186-193), [11] than that of Dr. Velma Campbell, a consultative examiner (Tr. 202-204). However, other than noting the mere fact that the ALJ gave greater weight to Dr. Ketelhorn’s opinion, plaintiff offers neither argument nor evidence suggesting that she erred in her evaluation of these opinions.[12]

Nor do I perceive any error. Although it is true that Dr. Campbell’s opinion was based on a personal evaluation of plaintiff, while Dr. Ketelhorn merely reviewed the medical evidence of record, the nature of the examining relationship is but one factor that bears on the weight to be given to a medical source opinion. See 20 C.F.R. § 404.1527(c)(1). The ALJ also properly considered that, other than knee surgery in 2003, plaintiff sought no treatment for her allegedly disabling impairments between June 5, 2002, and August 2006, when findings were comparatively mild. Although further knee surgery was recommended in September 2007, plaintiff did not return for follow-up until the following February (after her date last insured) and did not actually have surgery until May 2008. Subsequently, even plaintiff’s own doctor suggested that she was able to work with the restriction that she not stand, walk, or climb for long periods of time. (Tr. 268, 494.) These considerations demonstrate good cause for the weight assessed Dr. Ketelhorn’s and Dr. Campbell’s respective opinions.

As for the opinions of physician’s assistant, Betsy Goodwin (Tr. 637-642), [13] and Dr. Bruce Taylor (Tr. 494), the ALJ noted these opinions, but found them unpersuasive because they did not relate to plaintiff’s functional abilities prior to her date last insured. (Tr. 270.) Contrary to plaintiff’s argument, there was no ambiguity concerning whether these opinions related to plaintiff’s functional capacity during the relevant period of time; they patently did not.[14] Nor was the ALJ required to recontact these sources. That duty is triggered only when the ALJ is unable to reach a conclusion regarding disability based on the evidence before her, not merely because she rejects a source’s opinion. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001).[15]

Moreover, the determination of a claimant’s residual functional capacity is ultimately an administrative determination, 20 C.F.R. § 404.1546; Rutledge v. Apfel, 230 F.3d 1172, 1175 (10th Cir. 2000), not a medical one. Accordingly, the ALJ is under no obligation to base her residual functional capacity assessment on any particular medical source’s opinion. See Moses v. Astrue, 2012 WL 1326672 at *4 (D. Colo April 17, 2012). In this instance, it is clear that she properly resolved the relatively minor conflicts in the evidence in reaching her determination. See Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir. 1988); Gleason v. Apfel, 1999 WL 714172 at *4 (D. Kan. Sept. 1, 1999). See also Lax v. Astrue, 489 F.3d 1080, 1088 (10th Cir. 2007) (“The substantial-evidence standard does not allow [the court] to displace the agencies' 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.”) (citation and internal quotation marks omitted).[16] Thus, remand is not indicated on this basis either.

Lastly, plaintiff claims the ALJ erred in discrediting her subjective complaints of pain. “[C]redibility determinations ‘are peculiarly the province of the finder of fact, ’ and should not be upset if supported by substantial evidence.” White, 287 F.3d at 909 (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)). So long as the ALJ links her credibility assessment to specific evidence in the record, her determination is entitled to substantial deference. Id. at 910; see also Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).[17]

The ALJ reviewed the evidence of record, noting minimal treatment during the majority of the relevant time period. Although plaintiff had knee surgery within six months after her date last insured, she was reported to be “doing well” postoperatively, “making good progress with range of motion in the leg” such that “[s]he is now basically back to full range of motion” and “doing all of her activity” despite “occasional pain” that “come[s] and go[es] and has been getting gradually better.” (Tr. 497.) The ALJ noted that despite plaintiff’s complaints of unremitting pain, she exhibited normal or unremarkable findings on examination by her treating orthopedist. (Tr. 268, 495-496.) All of this evidence is more than adequate to support the ALJ’s credibility determination.[18]

Thus, although there is no doubt that plaintiff continues to suffer from pain related to her impairments, “disability requires more than mere inability to work without pain.” Brown v. Bowen, 801 F.2d 361, 362–63 (10th Cir. 1986) (citation and internal quotation marks omitted); see also Qantu v. Barnhart, 72 Fed.Appx. 807, 811 (10th Cir. 2003) (“We emphasize that a claimant's inability to work pain-free, standing alone, is not sufficient reason to find her disabled.”). The ALJ gave good reasons, specifically tied to the evidence of record, for discrediting plaintiff’s subjective complaints. I see no basis to afford her credibility determination less than the substantial deference to which it is presumptively entitled.[19]


THEREFORE IT IS ORDERED that the conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is AFFIRMED. Dated March 20, 2014, at Denver, Colorado.

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