United States District Court, D. Colorado
T. BABCOCK, JUDGE
Arvalee Becker appeals the final decision of the Acting
Commissioner of Social Security (“SSA”) denying
his application for disability benefits under Title II of the
Social Security Act, 42 U.S.C. § 401, et seq. I
have considered the parties' briefs (ECF Nos. 14-16) and
the administrative record (ECF No. 11) (“AR”).
Oral argument would not materially assist me in determining
Becker argues the ALJ erred in assessing his RFC, conducted a
faulty credibility assessment, and therefore wrongly
determined he could return to his past relevant work. As I
describe below, I conclude that, to the extent the ALJ erred,
any error was harmless. I accordingly AFFIRM the
Commissioner's final order.
case has wended its way through various stages of the SSA
application and appeals processes for about a decade. I
summarize here the procedural history necessary to
understanding the posture of this appeal.
Becker filed his application for disability insurance
benefits and supplemental social security income with SSA in
March 2007, alleging disability beginning July 13, 2005. AR
202-13. After SSA initially denied his claim, AR 136-41, Mr.
Becker requested a hearing, AR 144. The hearing took place on
November 18, 2008, before an ALJ. AR 690-727. On August 18,
2009, the ALJ partially granted Mr. Becker's claim,
concluding he was disabled within the meaning of the Social
Security Act as of November 11, 2008, but not before then. AR
118-31. Mr. Becker asked SSA's Appeals Council to review
the ALJ's decision. AR 169. The Appeals Council remanded
the case to the ALJ on December 23, 2010, to further develop
the record and evaluate the opinion evidence for the entire
period at issue (beginning July 13, 2005). AR 132-35.
remand, the ALJ again issued a partially favorable decision,
finding Mr. Becker disabled as of November 11, 2008, but not
before then. AR 10-31. Mr. Becker appealed to SSA's
Appeals Council, AR 8-9, and on March 8, 2012, the Appeals
Council denied review. AR 1-3. Mr. Becker appealed to this
Court, and Judge Martinez remanded the case, concluding the
ALJ failed to consider all the relevant evidence when it
found he was not disabled before November 11, 2008, and
ordering the ALJ to consider and discuss a Colorado State
Vocational Rehabilitation Report. Becker v. Astrue,
No. 12-cv-0786-WJM, 2013 WL 1413350, at *3 (D. Colo. Apr. 8,
2013); AR 674-85.
remand, the ALJ failed to discuss the rehabilitation report
despite the district court's directive, and yet again
concluded that Mr. Becker was not disabled before November
11, 2008. AR 925-39. After Mr. Becker appealed to this Court,
the Commissioner moved to remand the case in light of the
ALJ's failure to follow this Court's mandate. AR
908-09. Judge Kane granted the Commissioner's motion. AR
remand, the ALJ concluded for the fourth time that Mr. Becker
was not disabled before November 11, 2008. AR 854-70 (March
25, 2016 decision). The ALJ's March 2016 decision is the
Commissioner's final decision in this case. See
20 C.F.R. § 404.984(d) (in cases on remand from the
federal district court, “[i]f no exceptions are filed
and the Appeals Council does not assume jurisdiction of your
case, the decision of the administrative law judge becomes
the final decision of the Commissioner after remand”).
On July 21, 2016, Mr. Becker timely filed this appeal. (ECF
No. 1.) I have jurisdiction pursuant to 42 U.S.C. §
July 2005, Mr. Becker was treated by his family doctor, Sean
O'Donnell, M.D, for occasional neck and back pain, high
cholesterol, and gastroesophageal reflux disease (GERD)
symptoms with prescription medication. E.g., AR
353-60, 486. Mr. Becker was also treated for depression and
depression-related fatigue, AR 329, as well as carpel tunnel
syndrome. AR 1035-42, 1047-72.
the disability period (July 13, 2005 to November 10, 2008),
Mr. Becker occasionally reported depression, insomnia, and
back, neck, leg, and arm pain to Dr. O'Donnell. Imaging
of his neck was essentially normal, AR 372-73, and imaging of
his back showed normal vertebral height but some degenerative
changes in his cervical spine, AR 375, 414; see also
AR 1158 (MRI from 2003). Imaging of his knee showed mild
joint effusion. AR 408-10.
December 2006, Dr. O'Donnell completed a MED-9 form (a
form used by the State of Colorado to determine medical
eligibility for a state aid program) and concluded that Mr.
Becker was “permanently disabled” since May 2003.
AR 332-33. He listed Mr. Becker's diagnoses as tinnitus,
degenerative joint disease, degenerative disc disease,
bilateral carpel and cubital tunnel, and bilateral shoulder
pain. AR 333. On November 11, 2008, Dr. O'Donnell
completed a medical source statement. AR 482-85. He diagnosed
Mr. Becker with chronic fatigue syndrome, GERD,
“hyperlipid” and “HTN”
(hypertension). AR 482. He also endorsed severe restrictions
on walking, sitting, standing, lifting, and various postures.
AR 483-84. In June 2011, Dr. O'Donnell
“reaffirmed” his November 11, 2008 statement and
clarified that he believed the disabling symptoms began in
1999. AR 576.
David Gibbons, D.O., examined Mr. Becker in July 2007 and
prepared an agency-ordered report. AR 382-86. Dr. Gibbons
observed that Mr. Becker exhibited “significant pain
behaviors” during parts of the examination but did not
exhibit them during “deep palpation” or straight
leg-raise tests. AR 384. Dr. Gibbons characterized the
physical examination as “essentially normal” with
the exception of a positive test for carpel tunnel and some
limitation in side-bending and rotation to the left.
Id. Dr. Gibbons opined that Mr. Becker had no
visual, communicative, or environmental limitations, and no
postural or reaching, handling, feeling, grasping, or
fingering limitations. AR 385. He could not
“corroborate (or refute)” any of Mr. Becker's
self-reported sitting, standing, walking, lifting, or
carrying limitations. Id.
Genest reviewed the medical evidence from the disability
period and concluded that Mr. Becker had no severe physical
disability restrictions. AR 610. Dr. Genest opined that Mr.
Becker should not work on uneven ground or climb ladders or
scaffolds unless he was wearing a knee brace. AR 611. He also
opined that if he had more than “mild”
degenerative disease in his spine, he may not want to lift
anything over 50 pounds. Id.
July 2007, Mr. Becker saw Terry Jones, M.D., a psychiatrist,
for an agency-ordered consultative examination. AR 377. Dr.
Jones concluded Mr. Becker was “mildly depressed,
” but cooperative, congenial, logical, and organized,
with intact memory, good concentration, and normal abstract
thinking. AR 379-80. He assessed chronic pain disorder with
both psychological and medical factors and dysthymic disorder
(a mild form of chronic depression). AR 380-81.
Frommelt, Ph.D., also assessed Mr. Becker's mental
impairments, but her assessment was based only on her review
of the medical records. AR 388-402. Dr. Frommelt concluded
Mr. Becker had mild impairment in maintaining concentration,
persistence, and pace but had no severe mental impairments.
AR 399, 401.
SSA's Five-Step Process for Determining Whether a