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Colosky v. Colvin

United States District Court, D. Colorado

September 19, 2014

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

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For Melanie L. Colosky, Plaintiff: Anthony L. Sokolow, LEAD ATTORNEY, Anthony L. Sokolow, P.C., Colorado Springs, CO.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: J. Benedict Garcia, LEAD ATTORNEY, U.S. Attorney's Office-Denver, Denver, CO; James Lawrence Burgess, Stephanie Lynn Fishkin Kiley, Social Security Administration-Denver, Office of the General Counsel, Region VIII, Denver, CO.

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Robert E. Blackburn, United States District Judge.

The matter before me is plaintiff's Complaint [#2],[1] filed June 27, 2013, seeking review of the Commissioner's decision denying plaintiff's claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI 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 cervical degenerative disc disease, multiple bilateral shoulder surgeries, thyroid disorder, Barrett's esophagus, depression, and anxiety. After her applications for disability insurance benefits and supplemental security income benefits were denied, plaintiff requested a hearing before an administrative law judge. This hearing was held on January 4, 2012. At the time of the hearing, plaintiff was 44 years old. She has high school education and past relevant work experience as a deli clerk, grocery checker, and meat and seafood counter clerk. She has not engaged in substantial gainful activity since April 15, 2008, her alleged date of onset.

The ALJ found that plaintiff was not disabled and therefore not entitled to disability insurance benefits or supplemental security income benefits. Although the medical evidence established that plaintiff's degenerative disc disease and shoulder impairments were severe, the ALJ concluded that the severity of those impairments did not meet or equal any impairment listed in the social security regulations. Her other alleged impairments were determined to be non-severe. The ALJ found that plaintiff had the residual functional capacity to perform a reduced range of light work with certain postural restrictions. This residual functional capacity was consistent with the all the demands of plaintiff's past relevant work as normally performed, and therefore, the ALJ found her not disabled. Alternatively, the ALJ determined that there were other jobs existing in significant numbers in the national and local economies that she could perform. He therefore found plaintiff not disabled at both step 4 and step 5 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

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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).

The Commissioner has established a five-step sequential evaluation process for determining whether a claimant is disabled:

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 claimed impairment is " severe." A " severe impairment" must significantly limit the claimant's physical or mental ability to do basic work activities.
3. The ALJ must then determine if the impairment meets or equals in severity certain impairments described in Appendix 1 of the regulations.
4. If the claimant's impairment does not meet or equal a listed impairment, the ALJ must determine whether the claimant can perform his past work despite any limitations.
5. If the claimant does not have the residual functional capacity to perform her 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. § 404.1520(a)(4)(i)-(v).[2] See also Williams v. Bowen 844 F.2d 748, 750-52 (10th Cir. 1988). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Secretary of Health & Human Services, 933 F.2d 799, 801 (10th Cir. 1991).

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

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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 claims the ALJ erred in discrediting her subjective complaints of pain and functional limitation, assigning little weight to the opinion of her treating source, and assessing her residual functional capacity. She also claims the Appeals Council should have remanded the case for further consideration based on new evidence submitted with her administrative appeal. Finding no such reversible error, I affirm.

Plaintiff first faults the ALJ for allegedly failing to fully credit her subjective descriptions of her pain and limitation. In general, " credibility determinations 'are peculiarly the province of the finder of fact,' and should not be upset if supported by substantial evidence." White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001) (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)). So long as the ALJ links his credibility assessment to specific evidence in the record, his determination is entitled to substantial deference. Id. at 910; see also Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Such deference is warranted on this record.

The ALJ here gave multiple, specific, and legitimate reasons for his determination that plaintiff's allegations were entitled to less than full weight. (See Tr. 33-34.) For example, he noted that plaintiff reported activities of daily living that were far more extensive than appeared consistent with her testimony, which included allegations that even minimal everyday activities (brushing her teeth, turning a doorknob) exacerbated her pain and that she need to lie down with heating pad up to 12 hours a day to alleviate her symptoms. Such activities included the ability to work after the alleged date of onset, albeit at less than the level of substantial gainful activity. (Tr. 25-26.) " Although activities of daily living do not necessarily translate to the ability to perform work-related activities on a sustained basis, they do bear on a plaintiff's credibility to the extent that the level of activity is in fact inconsistent with the claimed limitations" Jack v. Astrue, 2010 WL 3615022 at *3 (D. Colo. Sept. 10, 2010) (citations and internal quotation marks omitted). This is precisely how the ALJ relied on plaintiff's activities in his case, and there was no reversible error in this regard.

The ALJ also noted that inconsistencies in plaintiff's reports suggested that she was exaggerating her symptoms.[3] Specifically, he noted that although plaintiff testified

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at the hearing that she experiences severe anxiety attacks once or twice a week (Tr. 50-51), she told the consultative examiner that she only occasionally had anxiety and denied panic attacks all together (see Tr. 476). He further noted in this regard that the objective medical findings were relatively mild and that plaintiff's symptoms responded well to both medication and physical therapy. These findings are fully substantiated in the hearing decision. (Tr. 26-27.) Although plaintiff points to other evidence which purportedly contradicts the ALJ's assessment, I am not empowered to reweigh the evidence in the manner she requests.[4] See Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). Conflicts in the evidence are for the ALJ to resolve, and he did not err in discharging that duty here. Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir. 1988); Gleason v. Apfel, 1999 WL 714172 at *4 (D. Kan. Sept. 1, 1999).[5]

Plaintiff further faults the ALJ for failing to account for the impact of anxiety on her residual functional capacity. Even where an impairment has been found non-severe at step 2 of the sequential evaluation, see 20 C.F.R. § 404.1521,[6] the ALJ must consider the effects of all a claimant's medically determinable impairments, both severe and non-severe, in assessing her residual functional capacity at step 4, 20 C.F.R. § 404.1523. Although it is not entirely clear from the opinion that the ALJ specifically considered plaintiff's alleged mental impairments at later steps of the sequential evaluation, plaintiff offers nothing to suggest that this omission prejudiced her substantial rights. 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." ). Plaintiff merely points out that she had been prescribed Paxil, which says nothing more than plaintiff was being treated for anxiety, a proposition which the ALJ acknowledged and considered. Moreover, both a consultative examiner and a state agency medical advisor found that plaintiff had no appreciable restrictions related to her alleged mental impairments (Tr. 73-83, 474-478), and no other evidence of record contradicts those assessments.

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There was, therefore, no error in this respect sufficient to warrant remand.

Plaintiff next claims the ALJ erred in assigning little weight to the restrictions imposed by her treating doctor, Eric Young. See 20 C.F.R. § 404.1527(c)(2) (treating source opinion entitled to controlling weight when" well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case record" ). In August 2008, Dr. Young released plaintiff to return to work with restrictions of lifting no more than 5 pounds, pushing or pulling no more than 20 pounds, and no overhead use of either arm. (Tr. 730.) However, the ALJ found that these restrictions were not consistent with plaintiff's progress thereafter. He noted that plaintiff increased both her range of motion and strength in physical therapy, but then quit coming to appointments and ultimately discharged from care by the therapist. (Tr. 26-27, 492-497.)[7] The ALJ properly considered that these actions reflected negatively on the alleged severity of plaintiff's claimed pain and functional limitations. See Huston v. Bowen, 838 F.2d 1125, 1132 & n.7 (10th Cir. 1988); Fessler v. Apfel, 11 F.Supp.2d 1244, 1251-52 (D. Colo. 1998). These constitute specific, legitimate reasons tied to the evidence of record for the weight afforded Dr. Young's restrictions, and they provide no basis for reversing his determination in that regard. See Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003); Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).

Finally, and relatedly, plaintiff claims Dr. Young's February 2012 opinion supports limitations similar to those endorsed in his 2008 opinion. (See Tr. 13-16.) This later opinion, authored after the date of the ALJ's decision, was submitted to the Appeals Council for consideration. The Council concluded that the opinion was not related to the time period for which benefits were denied and therefore not relevant to the ALJ's determination. (Tr. 2.) See 20 C.F.R. § § 404.970(b) & 416.1470(b); see also Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003). Although plaintiff insists the opinion is referable to her previously diagnosed impairments, Dr. Young specifically stated that his opinion was based on review of X-rays taken in February 2012, a month after the ALJ issued his decision. (See Tr. 13.) X-rays showing the condition of plaintiff's shoulder after that date thus would not be relevant within the meaning of the regulations, and review was properly denied..

Moreover, even if this opinion could be read more broadly, plaintiff points to no evidence after the date of the decision that might change the ALJ's analysis of the evidence or his reasons for assigning Dr. Young's 2008 opinion little weight. Indeed, it appears that Dr. Young had not seen or examined plaintiff since May 2009 (Tr. 261), suggesting that -- aside from 2012 X-rays, which were not relevant to the period under consideration -- his opinion was informed by the much of the same medical history already considered by the ALJ. Any error in this regard therefore is undoubtedly harmless. See Williams, 1995 WL 490280 at *2;

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Bernal v. Bowen, 851 F.2d 297, 303 (10th Cir. 1988).


For these reasons, I find no reversible error in the ALJ's disability determination, which accordingly must be affirmed.

THEREFORE IT IS ORDERED that the conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.

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