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Putnam v. Berryhill

United States District Court, D. Colorado

July 16, 2018

KARL J. PUTNAM, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This 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).

         Plaintiff 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 the Commissioner.

         I. BACKGROUND

         Plaintiff, 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.)[1] 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.)

         On 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].”[2] (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.)

         ALJ 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.)

         The ALJ 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.)

         At the request of the ALJ, Dr. R. Terry Jones performed a consultative examination on October 3, 2016. See (Doc. # 11-13 at 718-31.)

         The ALJ 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).[3] (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 97-100.)

         The ALJ 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.)

         The ALJ 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 his work.

(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.)

         Plaintiff 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).

         Plaintiff 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).


         When 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).

         In 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)).

         Second, 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).

         However, 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).

         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

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. 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 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).

         IV. ANALYSIS

         Plaintiff 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.[4]
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 ...

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