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Clark v. Berryhill

United States District Court, D. Colorado

May 7, 2019

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         The government determined that Plaintiff Willie Albert Clark was not disabled for purposes of the Social Security Act for the period from December 21, 2012 through October 31, 2014. (AR[1] 11.) Mr. Clark has asked this Court to review that decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c). (Dkt. #21.)

         Standard of Review

         In Social Security appeals, the Court reviews the decision of the administrative law judge (“ALJ”) to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). “Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009) (internal quotation marks omitted). The Court “should, indeed must, exercise common sense” and “cannot insist on technical perfection.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).


         At the second step of the Commissioner's five-step sequence for making determinations, [2] the ALJ found that Mr. Clark “has the following severe impairments: right foot navicular stress fracture and hyperkeratosis.” (AR 18.) The ALJ found that Mr. Clark's obstructive sleep apnea, eczema, hypertension, pes planus, and hyperlipidemia were non-severe impairments. (Id.)

         As to Mr. Clark's medically determinable mental impairment of major depressive order, the ALJ found that it too was non-severe because it did not cause more than minimal limitation in his ability to perform basic mental work activities. (Id.) She found that Mr. Clark's mental impairments caused a mild restriction in activities of daily living, mild difficulties in social functioning and concentration, persistence, or pace, and noted that Mr. Clark had no episodes of decompensation. (AR 19-20.)

         The ALJ then determined at step three that Mr. Clark “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments” in the regulations. (AR 20.) Because she concluded that Mr. Clark did not have an impairment or combination of impairments that meets the severity of the listed impairments, the ALJ found that Mr. Clark has the following residual functional capacity (“RFC”):

. . . [Mr. Clark] has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1467(a). He cannot operate foot controls on the right. He cannot climb ladders and scaffolds or work at unprotected heights or with dangerous unprotected machinery. He can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. He is limited to work that he can learn within three to six months.

(AR 20-21.)

         The ALJ concluded that Mr. Clark was able to perform past relevant work as an appointment clerk. (AR 27.) Accordingly, Mr. Clark was deemed not to have been under a disability from December 21, 2012 through October 31, 2014.[3] (AR 11.)


         Mr. Clark argues that the ALJ: (1) failed to give proper weight to the medical opinion of a treating medical provider; (2) incorrectly dismissed the opinion of treating provider Margaret Plocharski; (3) erred in finding that Mr. Clark could return to his prior work; and (4) did not support her factual finding that Mr. Clark's severe impairment did not meet Listing 1.02 with substantial evidence. (Dkt. #13.) The Court will address each in turn.

         The ALJ's Weighing of Opinion Evidence

         Mr. Clark first objects that the ALJ improperly afforded “little weight” to the opinion of Mr. Clark's treating provider, T. Kevin Hetherington, D.O.

         “An ALJ must evaluate every medical opinion in the record, although the weight given each opinion will vary according to the relationship between the disability claimant and the medical professional.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (citing 20 C.F.R. § 401.1527(d)). The ALJ must “give consideration to all the medical opinions in the record” and “discuss the weight he assigns to them.” Mays v. Colvin, 739 F.3d 569, 578 (10th Cir. 2014) (internal quotation marks omitted). The applicable regulations governing the consideration of medical opinions distinguish among “treating” physicians, “examining” physicians, and “nonexamining” (or “consulting”) physicians. See 20 C.F.R. § 416.927(c). Generally, “the opinions of physicians who have treated a patient over a period of time or who are consulted for purposes of treatment are given greater weight than are reports of physicians employed and paid by the government for the purpose of defending against a disability claim.” Sorenson v. Bowen, 888 F.2d 706, 711 (10th Cir. 1989). See also Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003) (quoting 20 C.F.R. § 416.927(d)(2)) (“The treating physician's opinion is given particular weight because of his or her ‘unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.'”).

         The evaluation of a treating source's opinion is a two-step process. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). “The initial determination the ALJ must make with respect to a treating physician's medical opinion is whether it is conclusive, i.e., is to be accorded ‘controlling weight,' on the matter to which it relates.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). “Such an opinion must be given controlling weight if it is well-supported by medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record.” Id. But good cause may exist for rejecting an opinion that is brief, conclusory, or unsupported by the medical evidence. Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).


Even if a treating opinion is not given controlling weight, it is still entitled to deference; at the second step in the analysis, the ALJ must make clear how much weight the opinion is being given (including whether it is being rejected outright) and give good reasons, tied to the factors specified in ...

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