United States District Court, D. Colorado
KARL J. PUTNAM, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER AFFIRMING THE DENIAL OF BENEFITS
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter is before the Court on review of the Social Security
Commissioner's decision denying Plaintiff Karl Joseph
Putnam's application for disability insurance benefits.
Jurisdiction is proper pursuant to 42 U.S.C. § 405(g).
argues that the administrative law judge's
(“ALJ”) determination that Plaintiff is capable
of performing work that exists in significant numbers is
erroneous for four reasons. (Doc. # 19.) Because the
ALJ's analysis was supported by substantial evidence and
because the ALJ used the correct legal standards, the Court
rejects Plaintiff's arguments and affirms the decision of
born on December 26, 1963, was 51 years old on June 23, 2015,
the date of the alleged onset of his disability. (Doc. # 11-5
at 221.) For several years prior to the alleged
onset of his disability, Plaintiff worked at various times as
a technical director at a television station, a manager at a
check cashing establishment, and a customer service agent for
a telephone company. (Doc. # 11-6 at 272.)
August 13, 2015, Plaintiff filed an application for
disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-34. (Doc. # 11-5 at
221-27.) He alleged that he suffered from six limiting
conditions: “bipolar depression;” posttraumatic
stress disorder (“PTSD”); obsessive compulsive
disorder; “back problems;” “chronic right
shoulder problems;” and “left leg
problem[s].” (Doc. # 11-6 at 271.) His application was
initially denied on February 9, 2016, by an administrator at
the regional Social Security office in Colorado Springs,
Colorado. (Doc. # 11-3 at 111- 28.) Plaintiff, represented by
attorney Jenna D. Lopes, see (Doc. # 11-4 at
148-49), filed a written request for a hearing before an ALJ
on March 3, 2016. (Id. at 133-34.)
Kurt D. Schuman conducted a hearing on August 10, 2016, in
Colorado Springs, Colorado. (Doc. # 11-2 at 30-78.) Plaintiff
and his counsel were present, as were Dr. Ronald Houston, an
impartial medical expert, and Mr. Prudig, an impartial
vocational expert. (Id. at 30.) Plaintiff testified
that he was discharged from the United States Navy after
testing positive for marijuana use in the early 1980s and
that he had since been convicted of driving under the
influence (“DUI”) three times. (Id. at
40, 45.) He testified that he was presently working up to
eleven hours a week as a product demonstrator in grocery
stores but that due to his “bipolarism and PTSD and
high anxiety levels, ” he was unable to work in a
full-time position. (Id. at 47-48.)
asked Dr. Houston, the impartial medical expert, if he had
sufficient medical evidence to establish the presence of a
medically determinable mental impairment, and Dr. Houston
testified that he was unable to rate various criteria
“due to conflicts in the record.” (Id.
at 74.) Dr. Houston specifically contrasted the report of
psychological consultative examiner Dr. Richard Madsen,
see (Doc. # 11-10 at 534-42), with the report of
physical consultative examiner Dr. Rosemary Greenslade,
see (id. at 543-54), both of which were
completed in January 2016, and stated, “So for me this
record is entirely confounded, complicated and conflicted,
and my suggestion here is that we're going to need
another [consultative examination (“CE”)].”
(Doc. # 11-2 at 74.) The ALJ stated that he “had real
concerns about [Dr. Madsen's consultative examination
report] from the get-go” as well and ordered a second
consultative examination. (Id. at 75.)
request of the ALJ, Dr. R. Terry Jones performed a
consultative examination on October 3, 2016. See
(Doc. # 11-13 at 718-31.)
conducted a second hearing on December 13, 2016. (Doc. # 11-2
at 79-110.) Plaintiff, his counsel, and medical expert Dr.
Houston were again present and were joined by another
impartial vocational expert, Ms. Nora Dunne. (Id. at
79.) The ALJ continued his questioning of Dr. Houston about
Plaintiff's mental impairments. (Id. at 90.) Dr.
Houston testified that the paragraph A criteria was satisfied
with regard to 12.02 (neurocognitive disorders), 12.04
(depressive, bipolar and related disorders), 12.06 (anxiety
and obsessive-compulsive disorders), and 12.08 (personality
and impulse-control disorders). (Id. at 90-91.) As to
the paragraph B criteria, Dr. Houston testified that, in view
of the entire record, Plaintiff had mild limitations in
activities of daily living, marked limitations in his social
interactions, and mild limitations as to concentration,
persistence, and pace. (Id. at 92-93.) Dr. Houston
stated that Plaintiff's claimed mental impairments did
not satisfy the paragraph C criteria. (Id. at 93.)
The ALJ also asked Dr. Houston several questions about
Plaintiff's capacities to perform certain functions
(e.g., remember; carry out instructions) and in certain
settings (e.g., an isolated work setting). (Id. at
then questioned the impartial vocational expert, Ms. Dunne.
(Id. at 102- 08.) He presented Ms. Dunne with three
hypothetical claimants of varying degrees of physical and
mental limitations and asked whether jobs existed in the
national economy appropriate for them. In the second
hypothetical, Ms. Dunne testified that an individual with
Plaintiff's age, education, work experience, and residual
functional capacity would be able to perform jobs such as
“housekeeping cleaner, . . . marking clerk, and . . .
routing clerk.” (Id. at 106.)
issued his decision on January 11, 2017, and concluded that
Plaintiff was not disabled under Sections 416(i) and 423(d)
of the Social Security Act. (Id. at 14-29.) The ALJ
determined that Plaintiff had several severe
impairments-“bipolar I disorder; cognitive disorder;
post-traumatic stress disorder (PTSD); personality disorder;
degenerative disc disease; lumbar spine; and tendonitis, left
shoulder”-but that these impairments did not meet or
medically equal the severity of one of the listed
impairments. (Id. at 19-20.) With regard to
Plaintiff's mental impairments, the ALJ found that the
paragraph B criteria were not satisfied because Plaintiff had
only “mild restriction” in activities of daily
living, “marked difficulties” in social
functioning, and “mild difficulties” in
concentration, persistence, or pace. (Id. at 21.)
The ALJ determined Plaintiff had the following residual
functional capacity (“RFC”):
[T]he claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except
the claimant is able to climb ladders, ropes, and scaffolds
occasionally, and is able to climb ramps and stairs
frequently. He is able to balance constantly. He is able to
stoop occasionally. He is able to crouch, kneel, and crawl
frequently. The claimant is further limited to occasional
overhead reaching with his left upper extremity. The claimant
is further limited in that he must avoid even occasional use
of moving and/or dangerous machinery, and even occasional
exposure to unprotected heights. The claimant is further
limited to work that consists of only simple, routine, and
repetitive tasks. He is able to maintain sufficient attention
and concentration for extended periods of two-hour segments
during a normal workday with normal breaks. The claimant is
further limited to work that requires no more than brief
(defined as “of short duration”), and superficial
(defined as “occurring at or on the surface”),
interaction with the public, and to work that can be around
co-workers throughout the workday, but with only occasional
interaction with co-workers. He is further limited to work
that requires no more than brief and superficial supervision,
defined as requiring a supervisor's critical checking of
(Id. at 22.) Finally, based on the vocational
expert's testimony, the ALJ concluded that Plaintiff was
“capable of making a successful adjustment to other
work that exists in significant numbers in the national
economy.” (Id. at 28-29.)
requested that the Appeals Council review the ALJ's
decision and submitted reasons that he disagreed with the
decision. The Appeals Could denied Plaintiff's request
for review on May 24, 2017. (Id. at 1-6.) When the
Appeals Council declined review, the ALJ's decision
became the final decision of the Commissioner. 20 C.F.R.
§ 404.981; see Blea v. Barnhart, 466 F.3d 903,
908 (10th Cir. 2006).
initiated the instant action on July 26, 2017, seeking
reversal of the ALJ's decision and the award of
disability insurance benefits to him. (Doc. # 1.) After the
administrative record was filed, Plaintiff submitted his
Opening Brief on November 17, 2017. (Doc. # 19.) The
Commissioner responded in support of the ALJ's decision
on December 6, 2017 (Doc. # 20), to which Plaintiff replied
on December 17, 2017 (Doc. # 23).
STANDARD OF REVIEW
reviewing the Commissioner's decision, the Court is
limited to determining “whether the findings are
supported by substantial evidence and whether the Secretary
applied the correct legal standards.” Pacheco v.
Sullivan, 931 F.2d 695, 696 (10th Cir. 1991); see
also 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . . .”).
First, the Supreme Court has defined “substantial
evidence” as “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. of N.Y. v.
NLRB, 305 U.S. 197, 217 (1938). “Substantial
evidence is more than a scintilla, but less than a
preponderance . . . .” Campbell v. Bowen, 822
F.2d 1518, 1521 (10th Cir. 1987).
reviewing the record to make the substantial evidence
determination, the Court “may not reweigh the evidence
nor substitute [its] judgment for the Secretary's.”
Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.
1994). In addition, the Court “may not displace the
agency's choice between two fairly conflicting views,
even though the [C]ourt would justifiably have made a
different choice had the matter been before it de
novo.” Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (quotation marks and citation omitted).
Also, the Court “defer[s] to the ALJ on matters
involving the credibility of witnesses.” Glass v.
Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). “A
finding of ‘“no substantial evidence” will
be only where there is a “conspicuous absence of
credible choices” or “no contrary medical
evidence.”'” Trimiar v. Sullivan,
966 F.2d 1326, 1329 (10th Cir. 1992) (quoting Hames v.
Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
in addition to the absence of substantial supporting
evidence, “[f]ailure to apply the correct legal
standard or to provide this court with a sufficient basis to
determine that appropriate legal principles have been
followed is grounds for reversal.” Byron v.
Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984); see
also Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th
Cir. 1993). “There are specific rules of law that must
be followed in deciding whether evidence is substantial in
these disability cases.” Frey v. Bowen, 816
F.2d 508, 512 (10th Cir. 1987).
not every error in evaluating evidence or applying the
correct legal standard warrants reversal or remand.
“Courts may not reverse and remand for failure to
comply with a regulation without first considering whether
the error was harmless.” Bornette v. Barnhart,
466 F.Supp.2d 811, 816 (E.D. Tex. 2006); see also Allen
v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004)
(recognizing that the Tenth Circuit has “specifically
applied [the principle of harmless error] in social security
disability cases” and collecting cases). Harmless error
exists where it is “inconceivable” that a
different administrative conclusion would have been reached
absent the error. Frank v. Barnhart, 326 F.3d 618,
622 (5th Cir. 2003).
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
An 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.
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 C.F.R. §§ 404.1512(g),
404.1560(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).
argues that the ALJ erred in four ways:
I. The ALJ failed to properly evaluate the evidence,
adequately explain the conflicts in the evidence, and why he
gave little weight to the opinion of Richard Madsen, Ph.D.
II. The ALJ failed to properly evaluate the Claimant's
subjective complaints of mental impairments and dysfunction
that can reasonably be accepted as consistent with the
objective medical evidence and provide adequate rationale[,
and] [t]he ALJ erred when he failed to make a credibility
finding regarding Claimant's statements about the
severity of his impairments.
III. The ALJ improperly attempted to insert 12.09, substance
addiction, as an impairment.
IV. The ALJ improperly excluded from his decision the
[vocational expert's] testimony that there were no jobs
available in the economy after a hypothetical that ...