Weaver v. Astrue
Filing
13
ORDER. The decision of the Commissioner that plaintiff was not disabledis affirmed. By Judge Philip A. Brimmer on 3/29/13. (mnfsl, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02831-PAB
CATHERINE WEAVER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiff Catherine Weaver’s complaint [Docket
No. 1], filed on October 31, 2011. Plaintiff seeks review of the final decision of
defendant Michael J. Astrue (the “Commissioner”) denying plaintiff’s claim for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act (the “Act”), 42 U.S.C. §§ 401-33 and 1381-83c.1 The Court has
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g).
I. BACKGROUND
On January 21, 2009, plaintiff applied for disability benefits under Title II and
Title XVI of the Act. R. at 15. Plaintiff alleged that she had been disabled since
December 31, 1999. Id. After an initial administrative denial of her claim, plaintiff
received a hearing before an Administrative Law Judge (“ALJ”) on July 7, 2010. Id. On
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The Court has determined that it can resolve the issues presented in this matter
without the need for oral argument.
October 19, 2010, the ALJ issued a decision denying plaintiff’s claim. Id. at 25.
The ALJ found that plaintiff had the following severe impairments: “affective
disorder; anxiety disorders,” R. at 18, and ruled that plaintiff had the residual functional
capacity (“RFC”) to “perform a full range of work at all exertional levels but with the
following nonexertional limitations: inability to complete complex tasks and the inability
to effectively interact with the general public.” R. at 20. Based upon this RFC and in
reliance on the testimony of a vocational expert (“VE”) and the Medical-Vocational
Guidelines, 20 C.F.R. § 404, subpt. P, app. 2, the ALJ concluded that the claimant was
not disabled as she was capable of performing past relevant work as well as other jobs
existing in the national economy. R. at 24.
The Appeals Council denied plaintiff’s request for review of this denial. R. at 1.
Consequently, the ALJ’s decision is the final decision of the Commissioner.
II. ANALYSIS
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The district court may not reverse
an ALJ simply because the court 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. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant
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evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence is not
substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The district
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.” Flaherty, 515
F.3d at 1070. Nevertheless, “if the ALJ failed to apply the correct legal test, there is a
ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
[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 gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
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evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and (5)
whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point in
the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of
Health and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisfied her burden of
establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the residual functional capacity
(RFC) to perform other work in the national economy in view of her age, education, and
work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). While the claimant has the
initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform
himself about facts relevant to his decision and to learn the claimant’s own version of
those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
C. The ALJ’s Decision
Plaintiff raises four arguments in support of her appeal: that (1) the ALJ’s finding
regarding her RFC is not supported by substantial evidence; (2) the ALJ
mischaracterized the nature of her prior relevant work and, as a result, erred in finding
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that she can still perform that work; (3) the ALJ erred in applying the medical-vocational
guidelines directly instead of soliciting testimony from a VE; and (4) the ALJ erred by
failing to cite specific evidence in support of his finding that plaintiff does not have an
impairment equal to one of the listed impairments.
1. Residual Functional Capacity
Plaintiff argues that the ALJ’s finding regarding her RFC is not supported by
substantial evidence. Docket No. 9 at 11.
In addressing this argument, the Court is mindful that it may not “displace the
agency’s choice between two fairly conflicting views, even [if] the court would justifiably
have made a difference choice had the matter been before it de novo.” Oldham v.
Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (internal citations omitted).
First, plaintiff cites to a number of documents in the record that she argues show
that she has had a “chronic mental disorder” since 1999.2 Docket No. 9 at 12. This
assertion, even if true, would not be sufficient for plaintiff to prevail on her appeal. As
defendant argues, the issue is not whether plaintiff has had a chronic mental disorder
for the past decade (an issue that defendant does not dispute), but instead, whether,
before the date her insured status expired, plaintiff’s impairments were so severe as to
prevent her from engaging in any substantial gainful activity, and that those
impairments persisted at that level of severity for at least one year. 42 U.S.C.
2
For example, she points to evidence that she was briefly hospitalized in or
around 1996, R. at 224; that, in 2006, she scored within the range of severe to extreme
depression on the Zung scale, R. at 271; that, in 2006, she reported that she was
“unable to function at work” and that one of her medications made her too sleepy to
function, R. at 261; that, in 2007, Dr. Liester diagnosed her with major depression, R. at
321; and that she was in therapy regularly from 2007 through 2009, R. at 287-321.
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§ 423(d)(1)(A); Docket No. 10 at 16-17.
The evidence that plaintiff cites establishes that she has a long history of
depression, anxiety, bipolar disorder, and post-traumatic stress disorder. See, e.g., R.
at 261. It does not, however, show that the ALJ lacked a substantial basis for his RFC
determination. On the contrary, some of the evidence plaintiff cites supports the ALJ’s
finding that, prior to 2008, she was able to control her symptoms effectively with
medication. R. at 23. For example, plaintiff cites her May 23, 2007 phone call to Dr.
Peter Clothier’s office reporting that she was experiencing “extreme sleeplessness.” R.
at 249. However, in the same call she stated that she was “[o]n Lexapro and feeling
comfortable.” Id. Likewise, on January 17, 2006, the same day that she received a
score on a Zung test consistent with severe depression, she reported that she was
“[r]ecently married and feel[ing] more stable.”3 R. at 270.
Second, plaintiff argues that the ALJ erred insofar as his reason for discounting
plaintiff’s testimony about her daily activities was that such activities “cannot be
objectively verified with any reasonable degree of certainty.” R. at 22. However, in the
next sentence, he explains that even if he were to accept plaintiff’s testimony on this
point, the medical evidence would not permit him to attribute the entirety of her
3
On this topic, the ALJ noted additional evidence that plaintiff does not address.
For example, he noted that, in July 2007, plaintiff told Dr. Liester that her medications
were helping her sleep, R. at 312, and that, in November 2007, she told Dr. Liester that
she was “doing great.” R. at 308. In addition, in August 2007, Dr. Liester found that
plaintiff’s mood was normal, she was sleeping well, her energy level and concentration
were good, her appetite was stable, and her medication was helping with her anxiety.
R. at 311. On January 16, 2008, Dr. Liester noted that plaintiff “[f]elt good through the
holidays,” her mood was normal, she was sleeping fine, her concentration was fine, and
her anxiety level was low. R. at 306.
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limitations to her medical condition, especially prior to her date last insured. Id. Thus,
whether or not the ALJ’s initial statement was in error, it did not affect his ultimate ruling
and is not grounds for remand.
Finally, plaintiff argues that the ALJ improperly failed to address statements from
her sister and her stepmother confirming that she is severely depressed and unable to
do the simplest chores. Docket No. 9 at 13-14; R. at 183-84. It is true that the ALJ did
not specifically mention these statement in making his RFC determination. R. at 20-23.
However, these statements discuss plaintiff’s condition as a child and in 2010 but do
not specifically address her condition prior to her date last insured. See R. at 183-84.
Thus, they do not establish that the ALJ’s decision lacks substantial evidence.
The ALJ properly explained the weight that he accorded each medical opinion
and stated his reasons for doing so, in accordance with the requirements of 20 C.F.R.
§ 404.1527(c)(2). He also considered the opinion of plaintiff’s husband. R. at 23. In
addition, he considered evidence that plaintiff had performed some work activities after
the alleged onset of her disability. R. at 22. Specifically, he noted that plaintiff reported
to Dr. Liester in October 2008 that she was no longer scheduling tours for a resort
because the season was over. R. at 140, 294. The ALJ noted that plaintiff started a
business in October 2008 selling antiques at a mall. R. at 293, 295. Finally, the ALJ
noted that, when plaintiff applied for benefits in 2009, the daily activities she described
were less restrictive than what she reported at the hearing, suggesting that her
testimony at the hearing does not accurately represent her condition prior to the date
last insured. R. at 21, 42-43, 166-73. This constitutes substantial evidence in support
of the ALJ’s decision. Even if the evidence that plaintiff cites could support a different
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conclusion, the Court would not be permitted to reweigh the evidence and displace the
ALJ’s decision with its own. See Oldham v. Astrue, 509 F.3d at 1258.
In sum, there is substantial evidence in the record to supporting the ALJ’s finding
regarding plaintiff’s RFC.
2. Medical-Vocational Guidelines
Plaintiff argues that the ALJ did not meet his burden at step five because he
applied the medical-vocational guidelines directly and did not seek input from the VE,
even though he found that plaintiff has nonexertional limitations. Docket No. 9 at 19-23.
The medical-vocational guidelines contain grids that direct a determination of
disability based on a claimant’s residual functional capacity, age, education, and work
experience. 20 C.F.R. § 404, subpt. P, app. 2. An ALJ may rely conclusively on the
grids if he finds, based on substantial evidence, that “1) that the claimant has no
significant nonexertional impairment, (2) that the claimant can do the full range of work
at some RFC level on a daily basis, and (3) that the claimant can perform most of the
jobs in that RFC level.” Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993)
(internal citations omitted). He may not do so where a claimant’s nonexertional
limitations restrict her ability to perform the “full range of jobs available” or “a substantial
majority of the work” in the designated RFC category. Mitchell v. Astrue, 2012 WL
4478369 (10th Cir. Oct. 1, 2012) (citing Channel v. Heckler, 747 F.2d 577, 583 (10th
Cir. 1984)) (internal quotation marks omitted); Evans v. Chater, 55 F.3d 530 (10th Cir.
1995).
According to the Social Security Rules,
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These mental activities are generally required by competitive, remunerative,
unskilled work:
•
Understanding, remembering, and carrying out simple instructions.
•
Making judgments that are commensurate with the functions of
unskilled work–i.e., simple work-related decisions.
•
Responding appropriately to supervision, co-workers and usual work
situations.
•
Dealing with changes in a routine work setting.
A less than substantial loss of ability to perform any of the above basic work
activities may or may not significantly erode the unskilled sedentary
occupational base. The individual’s remaining capacities must be assessed
and a judgment made as to their effects on the unskilled occupational base
considering the other vocational factors of age, education, and work
experience. When an individual has been found to have a limited ability in
one or more of these basic work activities, it may be useful to consult a
vocational resource.
SSR 96-9p, 1996 WL 374185, at *9 (July 2, 1996); see also SSR 85-15, 1985 WL
56857, at *4 (1985) (stating that unskilled jobs “ordinarily involve dealing primarily with
objects, rather than with data or people”).
The ALJ found that plaintiff has the RFC to perform work at all exertional levels
(i.e. sedentary, light, medium, heavy, and very heavy); plaintiff does not dispute this
finding. R. at 20. He also found that, although plaintiff “experiences difficulty in
accepting instructions and respond [sic] appropriately to criticism from supervisors,” R.
at 19, an activity often necessary to unskilled work, this difficulty was not substantial
enough to limit her RFC, which is only constrained by her inability to complete complex
tasks and to interact with the general public. R. at 20. He further found that plaintiff’s
limitations in interacting with the general public and completing complex tasks “had little
or no effect on the occupational base of unskilled work at all exertional levels” because
the “occupational base of unskilled jobs at all exertional limitations would provide
substantial vocational opportunity that would include jobs that would ordinarily involve
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dealing primarily with objects, rather than with data or people (SSR-85-15).” R. at 24.
Plaintiff argues that the ALJ failed to cite the specific provision of SSR 85-15 on
which he relied and that this invalidates his conclusion. Docket No. 9 at 23. Although
the ALJ did not provide a page number, he quoted language from page four of the rule,
stating that unskilled jobs tend to involve working with things rather than people. R. at
24. This indicates that he relied on SSR 85-15 in finding that plaintiff’s nonexertional
limitations do not significantly erode the occupational base of unskilled jobs that she is
capable of performing. Although it may have been “useful” for the ALJ to consult with
the VE on this issue, SSR 96-9p at *9, the Social Security Rules did not require him to
do so.
Since the ALJ “supported his use of the grids with a discussion of [plaintiff’s]
mental impairment, its effect on job performance under SSR 85-15, and [her] continuing
ability to perform a substantial majority of light unskilled work,” it was permissible for
him to rely on the grids. See Mitchell v. Astrue, 2012 WL 4478369, at *3; see also SSR
83-12, 1983 WL 31253, at *2 (1983) (“In some instances, the [erosion of the
occupational base] will be so slight that it would clearly have little effect on the
occupational base.”); Thompson, 987 F.2d at 1488 (“The mere presence of a
nonexertional impairment does not preclude reliance on the grids.”); Talbot v. Heckler,
814 F.2d 1456, 1465 (10th Cir. 1987) (“Admittedly, a nonexertional impairment can
have a negligible effect on the range of jobs available.”); Titsworth v. Astrue, 2013 WL
75780, at *7 (N.D. Okla. Jan. 4, 2013) (“The Grids may be used when a claimant has
nonexertional limitations when the claimant can perform a substantial majority of the
work in the exertional category.”); Martinez v. Astrue, No. 08-cv-01549-PAB, 2010 WL
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1050017, at *7 (D. Colo. Mar. 17, 2010) (use of grids permissible where ALJ
determined that plaintiff was capable of performing all unskilled jobs in the national
economy in spite of her mental impairment and illiteracy).
In sum, the ALJ properly applied the grids at step five of his analysis.4
3. Listed Impairments
Plaintiff argues that the ALJ’s decision should be overturned because he did not
cite to record evidence in his step three analysis. Docket No. 9 at 8-11; R. at 18-19.
She relies on the Tenth Circuit’s holding in Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996), for the proposition that an ALJ is “required to discuss the evidence” at step
three. Docket No. 9 at 9.
In Clifton, “the ALJ did not discuss the evidence or his reasons for determining
that appellant was not disabled at step three, or even identify the relevant Listing or
Listings; he merely stated a summary conclusion that appellant’s impairments did not
meet or equal any Listed Impairment.” 79 F.3d at 1009. The court found that this “bare
conclusion” was beyond judicial review and remanded the case with instructions to the
ALJ to “set out his specific findings and his reasons for accepting or rejecting evidence
at step three.” Id. at 1009, 1010.
As the Tenth Circuit later explained, however, Clifton does not require reversal
“where the ALJ’s factually substantiated findings at steps four and five of the evaluation
4
Plaintiff also argues that the ALJ erred at step four by failing to sufficiently
develop evidence regarding her prior work and, as a result, erroneously found that she
is still capable of performing this work. Docket No. 11 at 15; R. at 23-24. However, the
ALJ’s finding at step five, which the Court finds is based on substantial evidence, is
sufficient to support a finding that plaintiff is not disabled and thus there is no need to
consider plaintiff’s argument regarding step four.
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process alleviates any concern that a claimant might have been adjudged disabled at
step three.” Fischer-Ross v. Barnhart, 431 F.3d 729, 730 (10th Cir. 2005). In FischerRoss, the ALJ did not cite specific evidence in his step-three analysis, but the Tenth
Circuit found that his findings at step four and step five prevented a finding that plaintiff
met one of the listed impairments. The court held that “the ALJ’s confirmed findings at
steps four and five of his analysis, coupled with indisputable aspects of the medical
record, conclusively preclude Claimant’s qualification under the listings at step three.”
Id. at 735. It further held that remand under these circumstances would “needlessly
prolong[]” the administrative proceedings. Id. at 730.
To meet the criteria for listings 12.04 or 12.06, plaintiff had to show either
marked restrictions in two of three functional categories (activities of daily living, social
functioning, or concentration); a total inability to function outside her home; repeated
episodes of decompensation; a risk of decompensation in case of any change to her
environment or mental demands; or a history of being unable to function outside a
highly supportive living arrangement for a period of one or more years. 20 C.F.R.
§ 404, subpt. P, app. 1. At step four, the ALJ found that plaintiff was able to control her
depression and other anxiety disorders with medication, which permitted her to carry on
certain work and household activities. R. at 20-23. This finding “conclusively
precludes” a factfinder from determining that plaintiff had marked restrictions in two of
the three functional categories listed above. See Fischer-Ross, 431 F.3d at 735. In
addition, there is no evidence that plaintiff has experienced episodes of
decompensation or otherwise satisfies the more severe criteria.
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Thus, the ALJ’s failure to cite specific evidence at step three is not grounds for
remand.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff was not disabled
is AFFIRMED.
DATED March 29, 2013.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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