United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
B. Shaffer United States Magistrate Judge
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.
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 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.
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.
ALJ's opinion followed the five-step process outlined in
the Social Security regulations. 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.
found Ms. Singleton to have the following Residual Functional
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,
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.
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.
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. §
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
appeal, Ms. Singleton challenges the ALJ's credibility
determination and his evaluation of opinion evidence in the
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).
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
[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).
Impermissible Request to Reweigh Evidence
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; [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. Doc. 15 at 23.
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.”).
Substantial Evidence Challenge
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.
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.
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. 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. 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.
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.
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
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.
Failure to Apply Correct Legal Standards
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 ...