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Wagner v. Colvin

United States District Court, D. Colorado

July 31, 2015

GARY G. WAGNER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


MICHAEL J. WATANABE United States Magistrate Judge

The government determined that Gary Wagner is not disabled for purposes of Supplemental Security Income under the Social Security Act. Wagner has asked this Court to review that decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c). The Court AFFIRMS the government’s determination.


The Court reviews the administrative law judge’s (“ALJ”) decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). “Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271–72 (10th Cir. 2009) (internal quotation marks omitted). The Court “should, indeed must, exercise common sense” and “cannot insist on technical perfection.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

Plaintiff asserts five errors in the ALJ’s analysis.

I. Deficient evaluation of medical evidence of impairments

Plaintiff argues that the medical evidence suggests several impairments that the ALJ failed to properly consider-most notably, chronic obstructive pulmonary disease (“COPD”)/emphysema; chronic lower-back pain; a left-shoulder injury; and gastroesophageal reflux disease (“GERD”).


The ALJ noted that the medical evidence showed sustained treatment for respiratory disease, occasionally identified by Wagner’s treating doctors as COPD/emphysema and occasionally identified as asthma. (AR 13, 14, 20, 21, 23.) The ALJ considered the evidence, and more particularly considered the functional limitations imposed by the respiratory condition. (See AR 24 (“The claimant’s recent medical records show that his asthma is well controlled with medications. In October 2012, the spirometry test showed his asthma was well controlled. In December 2012 and in March 2013, his asthma was noted to be well controlled with Advair and Spiriva.”) The ALJ accommodated those limitations in his assessment of Wagner’s residual functional capacity (“RFC”). (AR 16 (“[Wagner] requires a clean air limitation, which would preclude any work that would expose him to excessive gas, dust, or environmental pollutants that would be above and beyond that which one would normally find in the workplace.”).)

Wagner takes issue with the ALJ’s decision to evaluate this evidence as evidence of emphysema rather than asthma, but Wagner does not point to any evidence suggesting a greater limitation than what the ALJ found. Although the ALJ has a duty to develop the record, “[t]his duty is not a panacea for claimants . . . which requires reversal in any matter where the ALJ fails to exhaust every potential line of questioning.” Glass v. Shalala, 43 F.3d 1392, 1396 (10th Cir. 1994). “‘The standard’ for determining whether the ALJ fully developed the record ‘is one of reasonable good judgment.’” Segura v. Barnhart, 148 F. App’x 707, 710 (10th Cir. 2005) (quoting Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997)). If there is sufficient information to make a disability determination, the record is sufficiently developed. Cowan v. Astrue, 552 F.3d 1182, 1187 (10th Cir. 2008).

Here, the ALJ found the record sufficient to establish Wagner’s functional limitations attributable to respiratory ailments-and Wagner does not point out what further limitations might have been revealed by further evidence. As a result, Wagner has not established any reversible error. See Watson v. Barnhart, 194 F. App’x 526, 530 (10th Cir. 2006) (“Watson neither (1) suggests what the omitted treatment evidence might reveal; nor (2) identifies anything in the record that would have reasonably notified the ALJ that such evidence existed.”); Jaramillo v. Massanari, 21 F. App’x 792, 795 (10th Cir. 2001) (“She has not identified medical providers from whom records were missing nor did she ask assistance in obtaining any records. On appeal, she has failed to identify the evidence she claims the ALJ should have obtained. The ALJ did not violate the duty to develop the record.”).

Chronic lower-back pain.

Wagner argues that the ALJ ignored evidence of Wagner’s chronic lower-back pain. But the ALJ specifically noted the evidence of lower-back ailments (AR 17, 20, 21, 22) and found that the objective medical evidence did not support Wagner’s claims as to intensity, persistence, and limiting effects (AR ...

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