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Cothran v. Berryhill

United States District Court, D. Colorado

June 28, 2018

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          CHRISTINE M. ARGUELLO United States District Judge

         This matter is before the Court on Plaintiff Sherry Sue Cothran's appeal of the Commissioner's decision denying her claim for disability insurance benefits (DIB). (Doc. # 14.) Exercising jurisdiction under 42 U.S.C. § 405(g), this Court affirms the decision of the Administrative Law Judge (ALJ).

         I. BACKGROUND

         In October 2013, Plaintiff applied for DIB, alleging disability beginning in March 2012, due to a number of impairments. Plaintiff's claim was initially denied, and she requested a hearing. The ALJ conducted two hearings-one in October 2015 and the other in April 2016-ultimately finding that Plaintiff was not under a “disability” as defined in Title II of the Social Security Act. Plaintiff appealed the ALJ's denial, submitting new evidence to the Appeals Council in support. In August 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner.


         Review of the ALJ's disability finding is limited to determining whether the ALJ applied the correct legal standards and whether the decision is supported by substantial evidence in the record as a whole. Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The district 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 her 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). 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.” Id.

         III. LAW

         “Disability” is defined in the Social Security Act as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . .” 42 U.S.C. § 423(d)(1)(A). The Act further provides that

“[a]n individual shall be determined to be under a disability only 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 work which exists in the national economy. . . .”

42 U.S.C. § 423(d)(2)(A). The claimant bears the burden of proving that he is disabled. 20 C.F.R. § 404.1512(a); Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009).

         The Commissioner has established a five-step sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R. § 416.920(a)(4). The steps of the evaluation are whether: (1) the claimant is currently working; (2) the claimant has a severe impairment; (3) the claimant's impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) the impairment precludes the claimant from doing her past relevant work; and (5) the impairment precludes the claimant from doing any work. See 20 CFR 404.1512(g), 404.1560(c), 416.912(g), and 416.960(c); Pisciotta v. Astrue, 500 F.3d 1074, 1076 (10th Cir. 2007). A finding that a claimant is or is not disabled at any point in the five-step evaluation process is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         IV. ANALYSIS

         In this case, the ALJ proceeded through the first three steps in the sequential process. The ALJ concluded that Plaintiff (1) had “not engaged in substantial gainful activity since March 31, 2012, the amended alleged onset date”; (2) suffered from “the following severe impairments: degenerative disc disease and facet osteoarthritis of the lumbar spine; obesity; adjustment disorder; and depressive disorder”; and (3) did not have an “impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments.” (Doc. # 11-2 at 85-86.)

         Before addressing the fourth step, the ALJ assessed Plaintiff's residual functional capacity (RFC) and concluded that Plaintiff had the RFC to perform “a less than full range of light work as defined in 20 CFR 404.1567(b).” (Id. at 89.) She added:

[Plaintiff] can perform lifting, carrying, pushing and/or pulling 20 pounds occasionally and 10 pounds frequently, standing and/or walking for about six hours in an eight-hour workday, and sitting about six hours in an eight-hour workday. She is able to understand, remember, and carryout tasks learned in up to and including six months. She is limited to occasional climbing of ladders; no work at hazardous heights; occasional work around moving machinery and occasional driving for work; frequent stopping, balancing, and climbing of ramps and stairs; and occasional kneeling crouching, and crawling.

(Id.) At the fourth step, the ALJ determined Plaintiff was “capable of performing past relevant work as a receptionist [because] [that] work does not require the performance of work-related activities precluded by [Plaintiff's RFC].” (Id. at 95.)

         On appeal, Plaintiff contends the ALJ failed to adequately consider the medical opinions of several physicians and erred in her evaluation of Plaintiff's symptoms in light of the entire medical record. Plaintiff also argues that the Appeals Council erred in declining to consider the new evidence she supplied to it. The Court addresses each of Plaintiff's contentions in turn.


         In assessing Plaintiff's RFC, the ALJ considered the opinions of various physicians and made findings about the weight she accorded each one. As pertinent here, the ALJ accorded little weight to treating physician Dr. Natasha Deming, some weight to the opinion of consulting physician Dr. Peter Weingarten, and considerable weight to the opinion of consulting psychologist Dr. Frederick Leidal. (Doc. # 11-2 at 93-94.) Plaintiff contends that the ALJ improperly “discounted” these opinions which were entitled to “controlling or significant weight” because they were “well supported”; Plaintiff adds that the ALJ inserted her “lay opinion” for that of these medical experts. (Doc. # 14 at 17-27.)

         1. Legal Principles

         The ALJ must identify the weight accorded to the opinion of medical consultants and examiners and also explain the basis for said weight. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004). The ALJ's explanation must be sufficiently specific to make clear to any subsequent reviewers both the weight given to the medical opinion and the reasons therefor. Id. The question governing this Court's review is not, as Plaintiff argues, whether the physicians' opinions were “well supported, ” but rather whether the ALJ's findings with respect to the weight given to those physicians' opinions were based on substantial evidence. This Court cannot re-weigh evidence or resolve conflicting medical opinions. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007) (noting that “the ALJ is entitled to resolve any conflicts in the record”); Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2004) (stating that we may not “displace the agency's choice between two fairly conflicting views”) (brackets omitted). Moreover, “the ALJ, not a physician, is charged with determining a claimant's RFC from the medical record.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012).

         2. Analysis

         a. Dr. Natasha Deming

         Dr. Deming was Plaintiff's treating physician in late 2014 and early 2015. The record reflects treatment notes from three visits with Plaintiff. In December 2014, Dr. Deming submitted a Medical Source Statement in which she opined that Plaintiff suffers from “fatigue [and] mid and low back pain . . . worsened by activity (shopping, cleaning, etc.).” (Doc. # 11-9 at 450.) She added that Plaintiff experienced “paraspinous muscle spasm[s], point tenderness over lumbar spine, [and] sciatic sign ...

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