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Singleton v. Colvin

United States District Court, D. Colorado

December 6, 2016

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


          Craig B. Shaffer United States Magistrate Judge

         This action comes before the court pursuant to Titles II and XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 401, et seq.; 1381, et seq., for review of the Commissioner of Social Security's final decision denying Marsha Singleton's application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Pursuant to the Order of Reference dated January 5, 2016, this civil action was referred to the Magistrate Judge for all purposes. See Doc. 25. The court has carefully considered the Complaint (filed April 27, 2015) [Doc. 1], Defendant's Answer (filed July 13, 2015) [Doc. 8], Plaintiff's Opening Brief (filed October 19, 2015) [Doc. 15], Defendant's Response Brief (filed November 18, 2015) [Doc. 16], Plaintiff's Reply Brief (filed December 22, 2015) [Doc. 21], the entire case file, the administrative record, and the applicable law. For the following reasons, the court affirms the Commissioner's decision.


         In September 2009, Marian Gunn applied for DIB and SSI, alleging a disability onset date of March 1, 2009. Doc. 9-2 at 15. Ms. Gunn alleged that her ability to work was limited by a number of impairments, including vertigo, a right knee injury, and depression. Doc. 9-3 at 4, 15. Claimant was born on October 1, 1959, and was 49 years old on the date of her alleged disability onset. Id. She completed the 12th grade[1] and has previous work experience as a customer service representative, checking clerk, clerical assistant, kitchen aide, and warehouse worker. Doc. 9-2 at 83, 37. After her initial application was denied, Claimant requested a hearing, which was held on September 14, 2011, before Administrative Law Judge (“ALJ”) Lowell Fortune. Doc. 9-2 at 78.

         On February 2, 2010, the ALJ issued a decision finding Ms. Singleton not disabled as defined under the Act. Doc. 9-3 at 47. On August 6, 2013, the Appeals Council (“AC”) granted Claimant's request for review, vacated the hearing decision, and remanded the case for further proceedings. Doc. 9-3 at 54-56. The AC specifically took issue with the ALJ's treatment of the non-treating medical source opinion, stating “[t]he decision did not adequately address the medical opinion of the consultative examiner, Dr. Borja” because it failed to “acknowledge or identify the specific consideration given to the functional limitations opined by Dr. Borja.” Id. at 54. Thereafter, the ALJ held a supplemental hearing on October 22, 2013 and issued another unfavorable decision (hereinafter “Decision”) a month later. Doc. 9-2 at 37-38, 45.

         The ALJ's opinion followed the five-step process outlined in the Social Security regulations.[2] At step one, the ALJ found that Claimant had not engaged in substantial gainful employment since March 1, 2009. Id. at 18. At step two, the ALJ found that Claimant had the following severe medically determinable impairments: (1) right knee disorder; (2) vertigo; (3) right hip disorder; (4) cervical spine disorder; (5) obstructive sleep apnea; (6) left knee disorder; and (7) obesity. Id. Claimant's impairments of depressive disorder, left arm/shoulder disorder, and substance abuse disorder were found to be non-severe. Id. at 18-19. The ALJ further found Claimant's alleged attention deficit disorder and hearing loss to be non-medically determinable impairments. Id. at 19. At step three, the ALJ found that Ms. Singleton did not have an impairment that met or medically equaled a listed impairment. Id. at 19-20.

         The ALJ found Ms. Singleton to have the following Residual Functional Capacity (“RFC”):

The claimant has the residual functional capacity to a full range of light work except as follows. The claimant is able to lift 20 pounds occasionally and 10 pounds frequently. During an 8-hour workday, the claimant is able to stand and/or walk two hours and sit six or more hours. The claimant is able to push, pull, or otherwise operate hand controls frequently with the [sic] each upper extremity. The claimant is able to push, pull, or otherwise operate foot controls occasionally with each lower extremity. The claimant is unable to perform overhead reaching with her left, non-dominant upper extremity. The claimant should avoid unprotected heights and climbing ladders, scaffolds, and ropes. The claimant is unable to perform the following postural activities: balancing and walking on uneven terrain. The claimant cannot engage in work requiring intense, sustained concentration.

Id. at 20-21. The ALJ concluded that although Claimant's medically determinable impairments could reasonably be expected to cause her alleged symptoms, the evidence did not support a finding that she was as limited as she claimed. Id. at 21-31. The ALJ's reasons for finding that Ms. Singleton's allegations lacked sufficient credibility to support a finding of disability fit into five broad categories: (1) Claimant's assertions as to her impairments are not consistent with her self-reported activities of daily living and functional limitations; [Id. at 23] (2) Claimant has given evidence that is contradicted by or inconsistent with other evidence in the record related to her ability to exercise, ability to work, vertigo onset date, and level of education; [Id. at 23-24] (3) Claimant has provided evidence that has either exaggerated the facts or magnified her symptoms when testifying to the frequency of her dizzy spells as well as the frequency and purpose of her treatment at Salud clinic; [Id. at 24-25] (4) Claimant's conduct has not been consistent over time with respect to her ability to sit for extended periods of time and her ability to concentrate; [Id. at 25] and (5) Claimant's testimony at the September 2011 hearing was suggested by her attorney's leadings questions in nine instances. Id. at 26.

         At step four, the ALJ determined that Ms. Singleton is capable of performing her past relevant work as a customer service representative, checking clerk, and clerical assistant. Id. at 36-37. Accordingly, the ALJ denied Claimant's application for disability benefits because she is not disabled under the Act. Id. at 34.

         Following the ALJ's decision, Ms. Singleton requested review by the Appeals Council. Id. at 2-4. The Appeals Council denied her request on February 24, 2015. Id. The Decision issued on November 22, 2013, then became the final decision of the Commissioner. 20 C.F.R. § 404.981; Nelson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Ms. Singleton filed this action on April 27, 2015. Doc. 1. The court has jurisdiction to review the final decision of the Commissioner. 42 U.S.C. § 405(g).


         In reviewing the Commissioner's final decision, the court is limited to determining whether the decision adheres to applicable legal standards and is supported by substantial evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted); Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The court may not reverse an ALJ simply because it may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in his decision. Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (citation omitted). Moreover, “[e]vidence 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) (citation omitted). The court will not “reweigh the evidence or retry the case, ” but must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Flaherty, 515 F.3d at 1070 (citation omitted). Nevertheless, “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) (internal citation omitted).


         On appeal, Ms. Singleton challenges the ALJ's credibility determination and his evaluation of opinion evidence in the record.

         I. Credibility Assessment

         Ms. Singleton asserts that the ALJ erred in finding some of her statements not entirely credible because this conclusion was based on misstatements or mischaracterizations of the record. Doc. 15 at 14-23. Plaintiff also contends that the ALJ's analysis improperly considered the attorney's use of leading questions during the hearing as well as Claimant's failure to pursue treatment. Id. at 22, 27-28. After reviewing the administrative record, the court concludes “the balance of the ALJ's credibility analysis is supported by substantial evidence in the record.” Branum v. Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004).

         Credibility assessments are conducted based on the requirements of 20 C.F.R. §§ 404.1529 and 416.929. An ALJ must determine whether a claimant's statements concerning the intensity, persistence and limiting effects of her symptoms are credible “once an underlying physical and mental impairment(s) that could reasonably be expected to produce the individual's pain or other symptoms has been shown.” SSR 96-7p, 1996 WL 374186, *2 (S.S.A. July 2, 1996). “Credibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence.” Diaz v. Sec'y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990). “[F]indings as to credibility should be closely and affirmatively linked to substantial evidence, ” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (citations and internal quotation marks omitted). An ALJ should consider the following factors in making a credibility determination:

[T]he levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence.

Thompson, 987 F.2d at 1489 (citing Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991) (further citations omitted). “But so long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant's credibility, he need not make a formalistic factor-by-factor recitation of the evidence.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012) (citation and internal quotation marks omitted).

         A. Impermissible Request to Reweigh Evidence

         Upon reviewing the Decision, it is clear that the bulk of Plaintiff's argument against the ALJ's credibility determination amounts to an impermissible request to reweigh the evidence rather than a challenge on substantial evidence grounds. See Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991) (“In evaluating the appeal, we neither reweigh the evidence nor substitute our judgment for that of the agency.”). The court may not reweigh the following contested findings: (1) Claimant's activities of daily living include doing laundry and cleaning; [Doc. 15 at 15-16] (2) Claimant's activities of daily living include using public transportation; [Id. at 16] (3) Claimant reported seemingly greater functional abilities at the end of 2010 than at the beginning of the year while continuing to assert that her condition had not improved; [Id. at 16-17] (4) Claimant's activities of daily living include regular exercise;[3] [Id. at 17-18] (5) Claimant has given inconsistent evidence about her inability to work; [Id. at 18-19] (6) Claimant has given inconsistent evidence regarding the onset of her vertigo condition; [Id. at 19] (7) Claimant exaggerated the frequency of her vertigo episodes while testifying at the September 2011 hearing; [Id.] (8) Claimant has given inconsistent evidence about the level of her education; [Doc. 21 at 4-5]; (9) Claimant's alleged sitting limitation is inconsistent with her conduct during the September 2011 hearing; [Doc. 15 at 21] (10) Claimant's alleged difficulty concentrating is inconsistent with her conduct during the September 2011 hearing; [Doc. 21 at 6- 7] and (10) Claimant provided inaccurate information about her treatment history to a physical therapist.[4] Doc. 15 at 23.

         The ALJ linked each of these findings to specific evidence in the record and noted any evidence that weighed against his conclusion. Doc. 9-2 at 23-25, 28; see also Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (“[I]n addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely on, as well as significantly probative evidence he rejects.”). Plaintiff does not challenge the validity of any supporting evidence or point to additional evidence in the record that the ALJ failed to consider. Instead, Ms. Singleton contends that the ALJ should have interpreted the evidence supporting these findings in a different way. However, an ALJ's finding will stand if supported by substantial evidence regardless of whether the court would have reached a different conclusion. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001) (“Had [the court] been the finder of fact we may well have reached a different conclusion concerning the weight to be given [the doctor's] disability assessment. Nevertheless, we agree… that the ALJ articulated adequate reasons for disregarding [the doctor's] opinion. In light of the narrow scope of our review, we are compelled… to conclude that the record contains substantial support for the ALJ's decision.”).

         B. Substantial Evidence Challenge

         Plaintiff's Opening Brief includes three proper challenges to the ALJ's findings on substantial evidence grounds: (1) Ms. Singleton reported that she retained the ability to cook “complex meals;” (2) during the September 2011 hearing, Claimant exaggerated the frequency of her treatment at Salud; and (3) some of Claimant's visits to Salud were more related to her disability claim than to treatment.

         With respect to Ms. Singleton's cooking habits, Plaintiff takes issue with the fact that the Decision uses the term “complex” when the supporting evidence (i.e., 2010 Function Report, Doc. 9-6 at 42) actually refers to “complete” meals. See Doc. 15 at 15-16. While the descriptors differ, it appears as though the ALJ intended his use of “complex” to have the same meaning as “complete” in this context. In response to a question concerning the types of meals Claimant can prepare on her own, which listed “sandwiches, frozen dinners, or complete meals with several courses” as examples, she wrote “sandwiches, ” “salades” [sic], “frozen dinner, ” and “some complete meal.” Doc. 9-6 at 42 (emphasis added). Claimant indicated that she prepares food or meals “2 or 3 time[s] [per] week, ” and it takes her “1 to 2 hours for complete meal[s].” Id. She further reported that there have been no changes to her cooking habits since her condition began, and she stated “not a big apatite [sic]” as the reason she does not prepare meals. Id. With the exception of the substitution of “complex” for “complete, ” the ALJ's analysis of this point tracks Ms. Singleton's own assertions: “[t]he claimant even indicated that she retained the ability to prepare complex meals two to three times per week. She further indicated that each complex meal generally took one to two hours to complete.” Doc. 9-2 at 23. Moreover, the ALJ also noted that Ms. Singleton testified at the September 2011 hearing that “she could only prepare one-dish meals and she would be incapable of preparing a holiday dinner, ” and she reported “a decrease in her ability to perform her activities of daily living during the October 2013 hearing.” Id. The ALJ's use of “complex meals” to describe the “complete meals with several courses” that Claimant stated she prepared by herself does not change the weight of the evidence. As such, the court concludes this finding was specifically linked to substantial evidence.

         Plaintiff also disputes the ALJ's finding that Ms. Singleton exaggerated the frequency of her treatment at Salud when she testified to receiving regular treatment at that facility, going every three to four months.[5] See Doc. 15 at 19-20. In evaluating the veracity of Claimant's testimony, the ALJ assessed the regularity of Ms. Singleton's treatment at Salud by comparing the number of visits she made to the clinic prior to filing her disability claim in September 2009 (“two visits one year apart”) with the frequency of treatment during the two years after filing (“3 times a year-but her appointments were sporadic, with gaps as much as 6 months apart”). Doc. 9-2 at 25. Contrary to Plaintiff's assertion, the Decision specifically discusses each of Claimant's visits to Salud during the two years after she filed for disability.[6] See Id. at 25, 28. Moreover, the record reveals two gaps in treatment longer than four months, Salud Treatment Notes, Doc. 9-7 48, 74-75, and three out of the 11 clinic appointments occurred within a one-month timespan. Salud Treatment Notes, Doc. 9-7 at 36, 38, 48. A reasonable mind could find the record supports the conclusion that Ms. Singleton engaged in sporadic treatment at Salud during the two years after filing for disability.

         Ms. Singleton's final substantial evidence challenge to the credibility determination concerns the ALJ's finding that “some of the visits [to Salud] were more related to her disability claim that to treatment.” Doc. 15 at 20-21 (citing Doc. 9-2 at 25). In explaining this finding, the Decision specifically analyzes Claimant's appointments at the clinic during 2010, of which there are three in total. Doc. 9-2 at 25. The treatment notes for the dates in question show that the ALJ reasonably concluded that “all three of the claimant's appointments at the clinic in 2010 were related to disability paperwork in one form or the other.” Id. The treatment notes from Ms. Singleton's December 17, 2009, visit provide context for her first appointment at Salud in 2010: “The patient has some papers that she needs filled out. We will wait for the results of the x-rays… The patient will return if symptoms persist or worsen and will return next week for results of her x-ray and then we will fill out her papers for disability.” Doc. 9-7 at 38.

         Claimant did not return a week later as suggested by her healthcare provider. Rather, her next visit to the clinic occurred three weeks later on January 8, 2010. Id. at 36. A substantial portion of the treatment notes from that appointment discuss Ms. Singleton's disability claim. See Id. (“The patient states she is unable to hold down a job. She cannot walk. Her last job she had to walk up and down stairs. She is unable to do that. She is trying to get social security disability... We filled out her papers for social security department of human services. The patient will take those back. We will make copies of her record that are pertinent to her evaluation.”). Also, the notes do not mention any complaints from Claimant about new or worsening symptoms; instead, the document suggests that her current medication was effective. See Id. (“She is taking Celebrex and this has been helping a little bit.”).

         Five months later, Claimant returned to Salud for her second appointment in 2010. Id. at 74. The healthcare provider noted “[w]e filled out about 25 pages of paperwork for [Ms. Singleton's] disability claim” during this “followup” appointment. Id. Apart from a toradol shot injection, the treatment notes do not indicate that this appointment involved anything other than completing a large volume of disability paperwork at Claimant's request. Id. Ms. Singleton waited another six months before visiting Salud for the final time that year. Id. at 75. Disability paperwork is the first concern listed in two separate sections of the December 2010 treatment notes. Id. (“CC: 1. Paperwrk for disability. 2. Swelling in right hand… General Complaints: Pt is here for Med-9 form completion and medication refills.”). Substantial evidence supports this finding given the explicit reference to disability paperwork in all three treatment notes.

         C. Failure to Apply Correct Legal Standards

         Plaintiff's Opening Brief appears to argue that the ALJ failed to apply the correct legal test in two instances: the ALJ improperly considered (1) the use of leading questions during the hearing; and (2) Claimant's failure to seek treatment without first considering ...

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