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Laske v. Colvin

United States District Court, D. Colorado

December 13, 2016

LORI L. LASKE, on behalf of D.F., a minor child, Substitute party for SANDRA L.O. FITZGERALD, deceased, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Sandra Fitzgerald filed her applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) in April 2011. After the initial denial of Fitzgerald's applications, an administrative law judge (ALJ) held a hearing at her request in January 2012. The ALJ found that Fitzgerald was not disabled, and Fitzgerald sought review of the decision by the Social Security Appeals Council. Fitzgerald passed away in June 2013, and her child, D.F. replaced her as the substitute party for the DIB claim.[1] (R. at 104.) Lori Laske, the conservator for D.F., has pursued the claim on his behalf. The Appeals Council ultimately vacated the ALJ's decision regarding Fitzgerald's DIB claim due to an inaudible hearing recording. On remand, the ALJ held an additional hearing in February 2015 and again concluded Fitzgerald had not been disabled. Laske requested that the Appeals Council review that decision, but it declined to do so. She now appeals the denial of Fitzgerald's DIB claim pursuant to 42 U.S.C. 405(g).[2] Laske argues on appeal that the ALJ (1) did not have valid reasons for rejecting the opinion of one of Fitzgerald's treating sources as to her physical limitations, (2) did not have valid reasons for giving the opinion of a consultative examiner more weight than he gave that of a treating source, and (3) improperly rejected another treating source's opinion that Fitzgerald was disabled. Because I find that the ALJ's decision is supported by substantial evidence and any error in applying the proper standards is harmless, I AFFIRM.

         I. Legal Standard

         The exclusive questions for review on a Social Security appeal are whether there is substantial evidence supporting the final decision of the Commissioner and whether the correct legal standards were applied by the ALJ. 42 U.S.C. § 405(g); see Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (citing Hamilton v. Sec'y of Health and Human Servs., 961 F.2d 1495, 1497-98 (10th Cir.1992). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014) (citation omitted). “A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record.” Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014) (internal quotation marks omitted). In reviewing the decision of the Commissioner, I cannot substitute my judgment for that of the ALJ or reweigh the evidence. Id. (citation omitted).

         To qualify for DIB under 42 U.S.C. § 423(a), a claimant must, among other requirements, be found to be under a disability while insured for disability benefits. A claimant can only be found to be disabled “if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). A claimant's disability must have lasted or be expected to last for at least 12 months. Id. § 423(d)(1)(A). In determining whether a claimant is disabled, the ALJ must follow the five-step sequential analysis set forth in § 404.1520(a)(4) of Title 20 of the Code of Federal Regulations.[3]

         II. Background[4]

         Sandra Fitzgerald suffered from fibromyalgia, an autoimmune disease, scleroderma, Sjögren's syndrome, spine and disc degeneration, bone spurs and arthritis. She was 47 years old at the time of her alleged disability onset in March 2009. (R. at 41.) She had a college degree and had been employed full-time and was still employed part-time as an addictions counselor. (R. at 247.)

         A. Medical Evidence

         The record contains Fitzgerald's years of medical records from Valley-Wide Health Systems, where she received treatment from multiple acceptable and non-acceptable medical sources for her chronic sinus issues, pain, depression, and anxiety, among other ailments. In October of 2011, a family nurse practitioner completed a Statement of Findings for the Alamosa County Department of Social Services, stating that Fitzgerald was unable to engage in any occupation or training at the time. (R. at 526.) The Statement does not include any limitations to support the assertion, and Fitzgerald was actually working part-time at that point. (R. at 305.)

         After Fitzgerald applied for DIB, she was referred by a medical source at Valley-Wide to the Southern Colorado Clinic, where she saw physician's assistant (PA) Deborah Kaufmann twice in 2011 and Dr. Patrick Timms twice in 2012 for further treatment of her undifferentiated connective tissue disease, fibromyalgia, and Sjögren's syndrome. (R. at 532-543.) At her second visit, PA Kaufman reviewed Fitzgerald's lab results showing a positive antinuclear antibody test. (R. at 539.) She noted that, upon examination, Fitzgerald's joints had full range of motion without swelling or tenderness, but that she had 18 of 18 soft tissue tender points associated with fibromyalgia. Dr. Timms's later examination similarly found Fitzgerald to have “soft tissue tender points in the paracervical, parathoracic and paralumbar regions.” (R. at 532.) Three months after his second visit with Fitzgerald, Dr. Timms completed a form listing her limitations as: lifting or carrying 10 pounds for up to one-third of an eight-hour work day, sitting only 15 to 20 minutes at a time and for one and a half hours in an eight-hour workday, standing or walking only 15 to 20 minutes at a time and for one and a half hours in an eight-hour work day, lying down to rest every two hours for thirty minutes, never handling or fingering, and rarely reaching. (R. at 572-73.) Dr. Timms opined that Fitzgerald's impairments had necessitated that level of restriction since 2011. (R. at 573.)

         Dr. Marshall Meier performed a consultative examination on Fitzgerald in late 2011 to clarify the nature and severity of her ailments. (R. at 508-511.) He noted her stated pain levels in the knees, shoulders, spine, and neck. (R. at 508.) He observed her walking with a normal gait and that she was able to get on and off the examination table with little difficulty. (R. at 509.) He found full muscular strength and sensation in the bilateral upper and lower extremities. (R. at 510.) Dr. Meier diagnosed muscle and joint pain of an undetermined cause but stated it was most likely related to her undifferentiated connective tissue disease. (R. at 511.) Ultimately, he concluded that Fitzgerald's condition did not impose any limitations lasting for twelve or more months and that she had no postural, manipulative, or workplace environmental limitations. (Id.)

         In 2012, Fitzgerald began seeing Dr. Claud Bays at San Luis Valley Physician Services. Dr. Bays treated Fitzgerald for about a year, and in May 2013, opined that she could not be gainfully employed at that time because of her chronic musculoskeletal conditions and chronic pain. (R. at 580.) Roberta Tesar, a licensed clinical social worker (LCSW) who worked at the medical center with Dr. Bays, wrote a letter on Fitzgerald's behalf stating that she had depressive disorder due to a general medical condition and that she has had and may always have a very difficult time maintaining employment. (R. at 531.)

         B. The ALJ's Decision

         Based on the medical evidence above, the Administrative Law Judge found that Fitzgerald had a medically determinable impairment of fibromyalgia that was severe, because it significantly limited her ability to perform basic work activities. (R. at 15.) The ALJ determined that her other impairments; including her weight, autoimmune disease, Sjörgen's syndrome, sinusitis, mild degenerative disc disease, and spine spurs; had no more than a minimal effect on her ability to work and, therefore, were non-severe impairments. (Id.) He also concluded that Fitzgerald's arthritis was not a medically determinable impairment and her depression and anxiety resolved within 12 ...

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