Maiorano v. Astrue
Filing
19
ORDER Affirming Administrative Law Judge's Decision, the ALJs decision denying Plaintiffs application for Social Security disability benefits is AFFIRMED, by Judge William J. Martinez on 3/13/2013. (ervsl, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-0367-WJM
TERESA MAIORANO,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of the Social Security Administration,
Defendant.
ORDER AFFIRMING ADMINISTRATIVE LAW JUDGE’S DECISION
This social security benefits appeal is before the Court under 42 U.S.C. § 405(g).
Plaintiff Teresa Maiorano (“Plaintiff”) challenges the final decision of Defendant, the
Commissioner of Social Security (“Commissioner”), denying her application for disability
insurance benefits. The denial was affirmed by an administrative law judge (“ALJ”),
who ruled Plaintiff was not disabled within the meaning of the Social Security Act
(“Act”). This appeal followed.
For the reasons set forth below, the ALJ’s decision denying Plaintiff’s application
for Social Security disability benefits is AFFIRMED.
I. BACKGROUND
Plaintiff Teresa L. Maiorano (“Plaintiff”) was born on May 8, 1957 and was 51
years old on the alleged disability onset date. (Admin. Record (“R.”) (ECF No. 10) at
27.) Plaintiff has completed her GED and has past relevant work experience as a
customer service clerk and sales attendant. (R. at 20, 27.)
Plaintiff filed an application for a period of disability and disability insurance
benefits on January 8, 2010, alleging that she had been disabled since February 17,
2009 due to several impairments, including plantar faciitis in both feet, depression,
osteoarthritis, ulnar tunnel disorder, and a hypothyroid condition. (R. at 154, 158.)
Plaintiff’s application was initially denied on April 23, 2010. (R. at 10.)
After requesting a hearing, Plaintiff’s claims were heard by Administrative Law
Judge (“ALJ”) William Musseman on March 17, 2011. (R. at 10.) Plaintiff and
vocational expert Martin Rauer testified at the administrative hearing. (Id.) Medical
evidence and opinions were provided by treating physicians Dr. Jeffrey G. Snyder,
M.D., a general practitioner, and Dr. Kerry Berg, D.P.M., a podiatrist; and examining
physicians Dr. Michael G. Messner, D.O., an orthopedic specialist; Dr. Kenneth P. Finn,
M.D., a pain medicine and musculoskeletal specialist; and Dr. Mark Meyer, M.D., a pain
management specialist. (R. at 14-17.)
On May 9, 2011, the ALJ issued a written decision in accordance with the
Commissioner’s five-step sequential evaluation process.1 At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since February 17, 2009.
(R. at 12.) At step two, he found that Plaintiff suffered from bilateral plantar fasciitis, a
1
The five-step process requires the ALJ to consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment;
(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to
her past relevant work; and, if not, (5) could perform other work in the national economy. See
20 C.F.R. § 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.
1988.) The claimant has the burden of proof through steps one to four; the Social Security
Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).
2
severe impairment. (Id.) The ALJ did not find Plaintiff’s thyroid disorder, depression, or
any other impairment to be a severe impairment. (Id.) At step three, the ALJ found that
Plaintiff’s plantar fasciitis, while a severe impairment, did not meet any of the
impairments or combination of impairments listed in the social security regulations. (Id.)
The ALJ assessed Plaintiff’s residual functional capacity (“RFC”), finding that she had
the RFC to perform “sedentary” work as defined by the regulations, including very
minimal standing and walking, and no operation of foot or leg controls. (R. at 13.)
Given this RFC, at step four the ALJ found that Plaintiff could perform her past relevant
work as a bank customer service clerk and an order clerk, because such work would
not require her to perform activities that were restricted by her RFC. (R. at 20.)
Accordingly, the ALJ found that Plaintiff was not disabled within the meaning of the Act
and therefore was not entitled to benefits. (Id.)
The Appeals Council denied Plaintiff’s request for review on December 9, 2011.
(R. at 6.) Thus, the ALJ’s May 9, 2011 decision is the final administrative action for
purposes of review.
II. STANDARD OF REVIEW
The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct
legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id. “It requires more than a scintilla, but less than a
preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Evidence is not
3
substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart,
399 F.3d 1257, 1261-62 (10th Cir. 2005). In reviewing the Commissioner’s decision,
the Court may neither reweigh the evidence nor substitute its judgment for that of the
agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). “On the other hand, 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).
III. ANALYSIS
On appeal, Plaintiff raises four issues: (1) the ALJ failed to properly weigh the
medical opinions of treating physicians Dr. Snyder and Dr. Berg; (2) the ALJ erred at
step two in finding Plaintiff’s depression, hypothyroidism, ulnar tunnel syndrome, and
osteoarthritis not to be severe impairments; (3) the ALJ improperly disregarded
Plaintiff’s testimony regarding all her impairments other than her plantar fasciitis; and
(4) the ALJ’s RFC assessment failed to consider the impact of Plaintiff’s depression and
osteoarthritis on her functional ability, and in reliance on the erroneous RFC, the ALJ
erred in concluding that Plaintiff could return to her past relevant work. (ECF No. 14 at
1.) Plaintiff alleges that each of these errors was caused by the ALJ’s application of the
wrong legal standard, and that each determination was not based on substantial
evidence. (Id.) The Court will address each of Plaintiff’s arguments in turn.
A.
Treating Doctors’ Medical Opinions
Plaintiff contends that the ALJ improperly weighed the opinions of Dr. Snyder
and Dr. Berg, both of whom were Plaintiff’s treating physicians. (ECF No. 14 at 17-21.)
4
The opinion of a treating physician is generally “entitled to great weight because
it reflects expert judgment based on continuing observation of a patient’s condition over
a prolonged period of time.” Williams v. Chater, 923 F. Supp. 1373, 1379 (D. Kan.
1996). However, an ALJ may disregard that opinion if it is contradicted by other
medical evidence, or otherwise inconsistent with substantial evidence in the record.
See Marshall v. Astrue, 315 F. App’x 757, 759-60 (10th Cir. 2009); 20 C.F.R. §
404.1527(d)(2). The analysis of how much weight to accord a treating source opinion is
sequential:
An ALJ must first consider whether the opinion is well-supported by
medically acceptable clinical and laboratory diagnostic techniques. If the
answer to this question is “no,” then the inquiry at this stage is complete.
If the ALJ finds that the opinion is well-supported, he must then confirm
that the opinion is consistent with other substantial evidence in the record.
In other words, if the opinion is deficient in either of these respects, then it
is not entitled to controlling weight.
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (citing 20 C.F.R. §§
404.1527, 416.927).
If a treating physician’s opinion is not given controlling weight, the ALJ must
determine what weight, if any, the opinion deserves, considering the following factors:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician’s opinion is supported by
relevant evidence; (4) consistency between the opinion and the record as
a whole; (5) whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Id. at 1301 (internal quotations omitted). The ALJ need not explicitly discuss each
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individual factor. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
Nevertheless, the ALJ must consider every factor in determining the weight to be
assigned to a medical opinion, and “if the ALJ rejects the opinion completely, he must
then give specific, legitimate reasons for doing so.” Watkins, 350 F.3d at 1301; see 20
C.F.R. § 404.1527(d)(2); Soc. Sec. Ruling (SSR) 96–2p, 1996 WL 374188, at *4.
1.
Dr. Snyder
With regard to Dr. Snyder, Plaintiff argues that as her treating doctor, his opinion
merited not only significant weight, but controlling weight, and the ALJ improperly
disregarded it entirely. (Id. at 17-20.)
The ALJ reviewed Dr. Snyder’s opinions regarding the pain Plaintiff suffers as a
result of her plantar fasciitis; his diagnoses of hypothyroidism, osteoarthritis, and
depression; and his opinions regarding Plaintiff’s work limitations resulting from her
impairments. (R. at 15-19.) The ALJ noted that Dr. Snyder had been treating Plaintiff as
her primary care physician for eight years as of the date of the hearing. (R. at 14.) Dr.
Snyder, a general practitioner, was not a specialist in any of Plaintiff’s impairments. (Id.)
Regarding Plaintiff’s osteoarthritis, the ALJ found that “no medically determinable
impairment has been established, with signs and findings that would prevent the
claimant’s full and unencumbered use of her upper extremities” (R. at 17), and that
although Dr. Snyder’s records noted that Plaintiff had osteoarthritis in her hands, “this
diagnosis has not been confirmed by appropriate imaging studies.” (R. at 18.)
Therefore, the ALJ gave no weight to Dr. Snyder’s opinion regarding Plaintiff’s upper
body limitations. (R. at 17.)
6
Regarding Plaintiff’s depression, the ALJ found that despite Dr. Snyder’s
diagnosis of depression, “Dr. Snyder’s opinion of the claimant’s mental [RFC] is not
supported by objective clinical evaluation findings or standardized psychometric testing
. . . [and] the claimant has not been referred to or evaluated by any recognized mental
health professional.” (R. at 19.) Further, the ALJ noted that “Dr. Snyder’s opinion is not
consistent with his treatment records . . . [which do] not support the statement that the
claimant’s depression is worsening.” (Id.) As a result, the ALJ gave no weight to Dr.
Snyder’s opinions regarding Plaintiff’s depression or mental RFC. (Id.)
Regarding Plaintiff’s hypothyroidism, the ALJ noted that Plaintiff did not testify to
any symptoms or limitations from her hypothyroidism, and Dr. Snyder’s patient notes
accorded with the lack of limitations. (R. at 18.) This finding was contradicted only by
Dr. Snyder’s opinion on a “Thyroid Disorder Medical Assessment Form,” which included
limitations resulting from Plaintiff’s other impairments. (Id.) Therefore, the ALJ gave no
weight to Dr. Snyder’s opinion regarding Plaintiff’s hypothyroidism. (Id.)
Ultimately, the ALJ gave no weight to any of Dr. Snyder’s opinions and
concluded that that Dr. Snyder’s opinions were inconsistent with his previous opinions,
and with “the objective medical signs and findings”. (R. at 17.)
In order to conclude that the medical opinions of Dr. Snyder, a treating physician,
were not entitled to controlling weight, the ALJ was required to find that either his
opinion was not well-supported by medically acceptable diagnostic techniques, or that it
was inconsistent with other substantial evidence in the record. Watkins, 350 F.3d at
1300. The ALJ indicated that Dr. Snyder’s diagnoses of osteoarthritis and depression
7
were not supported by clinical diagnostic tests, and that his opinions were inconsistent
with each other and with other evidence. (R. at 17-19.) Therefore, the Court finds that
the ALJ applied the correct legal standard required to find a treating doctor’s medical
opinion not entitled to controlling weight, and that his analysis was supported by
substantial evidence.
However, the ALJ not only found that Dr. Snyder’s opinions did not control; he
gave them no weight at all. (R. at 17-19.) A finding that a treating doctor’s opinion
does not meet the test for controlling weight does “not [mean] that the opinion should
be rejected. Treating source medical opinions are still entitled to deference and must
be weighed using all of the factors provided in 20 C.F.R. §§ 404.1527 and 416.927.”
SSR 96–2p (July 2, 1996.) In addition to considering all six factors in the analysis, the
ALJ must “give specific, legitimate reasons” for choosing to disregard the opinion
entirely. Watkins, 350 F.3d at 1301.
On this record, the Court finds that the ALJ applied the correct legal standard
and considered all six factors, including (1) that Dr. Snyder had treated Plaintiff for eight
years; (2) that Dr. Snyder served as Plaintiff’s primary care physician, but had not done
imaging tests of her hands or psychometric tests of her mental health; (3) there were
inconsistencies between Dr. Snyder’s opinions and his own treatment records; (4) there
were inconsistencies between the opinions and the record as a whole; (5) Dr. Snyder
was not a specialist in any of the areas upon which he rendered his opinions; and (6)
other factors contradicting Dr. Snyder’s opinions, including Plaintiff’s own lack of
testimony regarding limitations posed by her hypothyroidism. (R. at 14-19.) The ALJ
8
explained that because of the inconsistencies and lack of support “by the objective
medical signs and findings,” Dr. Snyder’s opinions were not entitled to controlling
weight, and “the same reasons” led him to conclude that they were entitled to no weight
at all. (R. at 17.)
Because “more than a scintilla” of evidence exists to support the ALJ’s
evaluation of Dr. Snyder’s opinions, and that evidence was not overwhelmed by
contrary evidence, the Court finds that the ALJ’s analysis was supported by substantial
evidence in the record. See Lax, 489 F.3d at 1084. Accordingly, the ALJ’s decision to
give Dr. Snyder’s opinion no weight was not reversible error.
2.
Dr. Berg
Plaintiff argues that the ALJ improperly relied on Dr. Berg’s opinion of November
2009, when evidence existed that Plaintiff’s condition degraded after that date. (Id. at
20-21.)
The ALJ found that the opinion of Dr. Berg, a podiatric specialist who had treated
Plaintiff for two years as of the date of the hearing, was entitled to “significant weight”
because it was “supported by the objective medical signs and findings . . . [and] not
inconsistent with the other substantial evidence of record.” (R. at 19.) These
statements indicate that the ALJ considered the factors required by the regulations,
including Dr. Berg’s specialty, her treating history, and her opinion’s consistency with
other evidence. See 20 C.F.R. §§ 404.1527, 416.927. Thus, the Court finds that the
ALJ applied the correct legal standard in weighing Dr. Berg’s opinion.
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Plaintiff claims that in giving significant weight to Dr. Berg’s opinion of November
2, 2009, in which Dr. Berg recommended that Plaintiff be restricted from standing or
walking for more than two to four hours total, the ALJ ignored her subsequent medical
opinions in which she opined that Plaintiff was “unable to perform any standing work
duties.” (ECF No. 14 at 20-21; R. at 268-69.) The Court finds this argument
unpersuasive, as the ALJ ultimately found Plaintiff’s RFC to permit “very minimal
standing/walking,” and did not adopt Dr. Berg’s November 2, 2009 opinion whole cloth.
(See R. at 13.) Further, as there is sufficient evidence in the medical records to support
Dr. Berg’s opinion, the Court must defer to the ALJ’s evaluation of the evidence and
may not reweigh it in his place. See Salazar, 468 F.3d at 621.
Accordingly, the Court finds that the ALJ appropriately considered Dr. Berg’s
opinion.
B.
Severe Impairments
Plaintiff argues that the ALJ erred in finding that only Plaintiff’s plantar fasciitis
was a severe impairment, and the remainder of her medical problems were not severe
impairments. (ECF No. 14 at 10-13.)
The severe impairment standard at step two of the analysis requires evidence
that a claimant’s medically determinable impairment “significantly limits [her] physical or
mental ability to do basic work activities”. 20 C.F.R. § 404.1520(c). The purpose of this
requirement is for the claimant to “make a threshold showing that h[er] medically
determinable impairment or combination of impairments” has a material affect on her
job prospects. Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988). Once this
10
threshold is reached for any of a claimant’s impairments by making “the de minimis
showing of medical severity, the decision maker proceeds to step three.” Id.
In this case, the ALJ found that Plaintiff’s bilateral plantar fasciitis was a
medically determinable impairment that was severe for the purposes of step two. (R. at
12.) However, while the ALJ discussed Plaintiff’s thyroid disorder and depression,
finding they were not severe impairments, he did not make any findings regarding either
Plaintiff’s osteoarthritis or ulnar tunnel syndrome in his discussion of step two. (See R.
at 12.)
Because the ALJ found Plaintiff’s plantar fasciitis to be a severe impairment, and
the analysis then proceeded to Steps Three and Four, any error in failing to evaluate
the possible severity of Plaintiff’s upper body impairments was harmless. See
Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“any error here [at Step
Two] became harmless when the ALJ reached the proper conclusion that [the plaintiff]
could not be denied benefits conclusively at Step Two and proceeded to the next step
of the evaluation sequence”). Further, the ALJ is required to consider the effects of all
of Plaintiff’s medically determinable impairments, without regard to whether they
individually meet the severity standard, when formulating the RFC. 20 C.F.R. §
404.1545(a)(2); see infra Part III.D.
Thus, because any error at step two in this case was harmless, the Court need
not review the remainder of Plaintiff’s arguments regarding severity, as they are moot.2
2
In her step two argument, Plaintiff raises several points regarding whether her other
impairments were medically determinable, and their attendant limitations. (ECF No. 14 at 1013.) The Court will discuss those arguments in the context of Plaintiff’s RFC, in III.D., below.
11
C.
Credibility of Plaintiff’s Testimony
Plaintiff argues that the ALJ improperly weighed the credibility of her testimony in
disregarding her subjective complaints regarding pain in her hands and elbows resulting
from her osteoarthritis. (ECF No. 14 at 15-17.)
In evaluating a claimant’s subjective testimony of disabling pain, the ALJ must
consider the following:
(1) whether Claimant established a pain-producing impairment by
objective medical evidence; (2) if so, whether there is a “loose nexus”
between the proven impairment and the Claimant’s subjective allegations
of pain; and (3) if so, whether, considering all the evidence, both objective
and subjective, Claimant’s pain is in fact disabling.
Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (citing Luna v. Bowen, 834
F.2d 161, 163-64 (10th Cir. 1987)).
Here, the ALJ found that Plaintiff’s osteoarthritis had not been proven by
objective medical evidence. (R. at 17-18.) Although medical opinions by Dr. Snyder
and Dr. Meyer include statements that Plaintiff has osteoarthritis of the hands (R. at
365, 367-68), “this diagnosis has not been confirmed by appropriate imaging studies” or
any other clinical test or objective standard. (R. at 18.) Due to the sequential nature of
the ALJ’s analysis, the ALJ was first required to determine whether the impairment was
proven by objective medical evidence, prior to proceeding to an analysis of whether the
impairment was related by a “loose nexus” to Plaintiff’s allegations of disabling pain.
See Luna, 834 F.2d at 164. Plaintiff did establish that she suffered from plantar
fasciitis, a pain-causing impairment, by objective medical evidence (R. at 12); however,
Plaintiff’s foot impairment is not reasonably expected to produce upper body pain, and
12
therefore cannot satisfy the “loose nexus” requirement. See id. (finding that “an
impairment that would be expected to cause pain in the lower extremities would not be
reasonably expected to produce disabling pain in the upper body” and therefore would
not be sufficient to meet the “loose nexus” standard) (citing Avery v. Sec’y of Health &
Human Servs., 797 F.2d 19, 21 (1st Cir. 1986)). Lacking objective medical evidence of
an impairment that could be expected to cause upper-body pain, the ALJ was not
required to consider Plaintiff’s testimony of that pain. See id. Indeed, the ALJ noted
that “if there is no medically determinable physical [impairment,] the symptoms cannot
be found to affect the individual’s ability to do basic work activities.” (R. at 18.) As a
result, the ALJ found that Plaintiff’s “statements regarding ‘arthritis pain,’ related to her
hands, elbows, neck and knees, [were] not credible.” (Id.)
The Court agrees that the record lacks objective medical evidence to support a
finding that Plaintiff’s osteoarthritis is a medically determinable impairment, as defined
by the regulations. See 20 C.F.R. § 404.1528. Therefore, the Court finds that the ALJ
used the proper legal standard in evaluating Plaintiff’s complaints of disabling upper
body pain resulting from her osteoarthritis, and given the lack of objective medical
evidence in the record, appropriately did not consider her testimony of that pain in his
findings and conclusions.
D.
RFC Assessment
Plaintiff contends that the ALJ erred in failing to properly account for Plaintiff’s
mental and upper body impairments in his RFC assessment, and therefore used an
erroneous RFC in determining her ability to return to her past work. (ECF No. 14 at 13-15.)
13 3
1
The RFC is an assessment of a claimant’s capabilities in a work setting to
determine “the most [she] can still do despite [her] limitations.” 20 C.F.R. §
404.1545(a)(1). An ALJ must make specific RFC findings based on all of the relevant
evidence in the case record. See Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.
1996); SSR 96–8p, 1996 WL 374184, at *5 (July 2, 1996) (evidence considered in an
RFC assessment may include the claimant’s medical history, medical signs and
laboratory findings, and medical source statements). The RFC analysis must explain
“how the evidence supports each conclusion, citing specific medical facts . . . and
nonmedical evidence”. SSR 96–8p. The ALJ’s articulation of a claimant’s RFC must
include:
the individual’s ability to perform sustained work activities in an ordinary
work setting on a regular and continuing basis . . . and describe the
maximum amount of each work-related activity the individual can perform
based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the
evidence in the case record were considered and resolved.
Id. The ALJ’s findings regarding the RFC must be supported by substantial evidence.
See Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
In determining the scope of a claimant’s RFC, the ALJ’s assessment must
“consider all of [a claimant’s] medically determinable impairments . . . , including [her]
medically determinable impairments that are not severe”. 20 C.F.R. § 404.1545. An
impairment is medically determinable if it is “established by medical evidence consisting
of signs, symptoms, and laboratory findings, not only by [a claimant’s] statement of
symptoms.” 20 C.F.R. § 404.1508. “Symptoms” are defined as a claimant’s own
subjective complaints, “signs” as observable “anatomical, physiological, or
14
psychological abnormalities which . . . must be shown by medically acceptable clinical
diagnostic techniques,” and “laboratory findings” as “anatomical, physiological, or
psychological phenomena which can be shown by the use of medically acceptable
laboratory diagnostic techniques.” 20 C.F.R. § 404.1528.
In this case, the ALJ found that Plaintiff had the RFC “to perform sedentary work
as defined in 20 C.F.R. § 404.1567(a), that requires very minimal standing/walking
required (sic), and no operation of foot/leg controls.” (R. at 13.) Plaintiff challenges the
RFC in multiple respects, arguing that it should have included limitations resulting from
her upper body and mental impairments, and that it should have included the limitation
that Plaintiff must keep her feet elevated “at or above hip level for most of the day.”
(ECF No. 14 at 13-14.) Plaintiff also claims that the ALJ ignored her “moderate to severe
hand pain . . . which was possibly secondary to a hypothyroid condition.” (Id. at 11.)
1.
Upper Body Limitations
The ALJ found that “no medically determinable impairment has been
established, with signs and findings that would prevent the claimant’s full and
unencumbered use of her upper extremities.” (R. at 17.) Because the only evidence
supporting Plaintiff’s upper body impairments beyond Plaintiff’s own statements of her
symptoms was the records and opinions of Dr. Snyder3 (see R. at 329-30, 332, 337,
350), which themselves were based solely on Plaintiff’s subjective complaints, there
were no medical “signs” or “laboratory findings” that would have permitted a finding that
3
Plaintiff notes that Dr. Meyer’s opinion also stated that Plaintiff had arthritis. (ECF No.
14 at 11 (citing R. at 365).) However, Dr. Meyer’s opinion was a “Pain Management
Evaluation,” not a medical procedure to determine Plaintiff’s upper body diagnoses. (R. at 365.)
15
the impairments were medically determinable. See 20 C.F.R. § 404.1508. Therefore,
the ALJ’s finding that Plaintiff’s upper body impairments were not medically
determinable, and that they need not be considered in formulating Plaintiff’s RFC, was
not error.
2.
Mental Limitations
Regarding Plaintiff’s depression, the ALJ found that Plaintiff had “not had any
treatment by a qualified mental health professional . . . [and] there [we]re no indications
in the record that the claimant ha[d] any significant functional limitations secondary to
depression.” (R. at 12.) Noting that Dr. Snyder’s treatment records showed
inconsistent reports of depression symptoms, the ALJ concluded that despite Dr.
Snyder’s diagnosis of Plaintiff’s depression and conclusion that it affected her RFC with
respect to her concentration and memory, his opinion was “not supported by objective
clinical evaluation findings or standardized psychometric testing.” (R. at 18-19.)
Further, the ALJ noted that Dr. Snyder’s opinion of Plaintiff’s mental RFC was
inconsistent with his own treatment records. (R. at 19.)
Plaintiff argues that the ALJ failed to discuss the functional limitations attendant
to her depression, “despite acknowledging it as a medically determinable impairment.”
(ECF No. 14 at 11.) However, the ALJ’s findings do not explicitly acknowledge that
Plaintiff’s depression constituted a medically determinable impairment. Further, even if
Plaintiff’s depression was medically determinable, without the support of clinical
diagnostic techniques or a formal psychological evaluation, the evidence of functional
limitations was limited. Dr. Snyder’s most detailed report regarding Plaintiff’s mental
16
capacity notes that she exhibits “moderate” or “slight” limitations in several categories,
but has no limitations reaching the level of “marked” or “extreme.” (R. at 359-60.) After
appropriately considering Dr. Snyder’s opinion regarding Plaintiff’s mental RFC and
finding that it merited no weight, as discussed in Part III.A.1, above, the ALJ found no
evidence of significant functional limitations. (R. at 19.) The Court agrees, and finds
that the ALJ’s evaluation of Plaintiff’s mental RFC used the appropriate legal standard
and was supported by substantial evidence in the record.
3.
Elevation of the Feet
The ALJ did not make a specific finding explaining why he excluded the limitation
that Plaintiff elevate her feet from the RFC. However, the record reflects that the
requirement to elevate Plaintiff’s feet was supported only by Dr. Snyder’s opinions of
Plaintiff’s RFC, and the ALJ found that those opinions merited no weight. (See R. at
17.) Because the ALJ’s decision not to include that limitation in the RFC was based
upon his weighing of the evidence, and the record includes multiple medical opinions
that do not require elevation of the feet, the Court can neither reweigh the evidence, nor
find that the ALJ’s exclusion of that limitation was not supported by substantial evidence
in the record. See Salazar, 468 F.3d at 621. Therefore, the Court finds that the
exclusion of that limitation was not reversible error.
4.
Hypothyroid Limitations
Regarding Plaintiff’s hypothyroid condition, the ALJ found that it did constitute a
medically determinable impairment, but that “there [wa]s no evidence that this
impairment has caused any functional limitations on a continuing basis.” (R. at 12.)
17
The Court agrees. Plaintiff’s citation to Dr. Snyder’s “Thyroid Disorder Medical
Assessment Form” is unavailing, as that form included limitations resulting from all of
Plaintiff’s impairments, not solely from her hypothyroid condition. (See R. at 350-53.)
Nothing in the record connects Plaintiff’s complaints of hand pain to her hypothyroid
condition. Therefore, the Court finds that the ALJ did not err in failing to include any
limitations resulting from Plaintiff’s hypothyroid condition in the RFC.
5.
Consultative Evaluation
Plaintiff also argues that when the ALJ found insufficient evidence to support
work-related limitations resulting from Plaintiff’s upper body and mental impairments, he
should have ordered a consultative evaluation. (ECF No. 14 at 12.) Where there is
“some objective evidence in the record suggesting the existence of a condition which
could have a material impact on the disability decision requiring further investigation,”
the ALJ should order a consultative examination to determine whether a claimant is
disabled under the Act. Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997).
However, where the claimant is represented, the ALJ can generally rely on the
claimant’s counsel to identify issues requiring a consultation, and “[i]n the absence of
such a request by counsel, [courts] will not impose a duty on the ALJ to order a
consultative examination unless the need for one is clearly established in the record.”
Id. at 1168.
Here, there is no “objective evidence” that indicates the presence of an
impairment whose symptoms and characteristics are not established in the record. The
ALJ’s decision to give no weight to Dr. Snyder’s opinions, which constituted the
18
principal evidence of Plaintiff’s upper body and mental impairments, is not equivalent to
a finding that insufficient evidence existed to make a determination. (See R. at 17-19.)
Further, there is no indication in the record that Plaintiff’s counsel identified any area of
inquiry requiring a consultative examination before the ALJ. Therefore, the Court finds
that the ALJ did not err in failing to request a consultative examination, and the ALJ’s
RFC assessment was sufficiently supported by substantial evidence in the record.
6.
Step Four
Finally, Plaintiff challenges the ALJ’s step four finding that she could return to
past work, arguing that the RFC, and the ALJ’s subsequent hypothetical questions
posed to the vocational expert, did not include limitations resulting from Plaintiff’s
mental impairments. (ECF No. 14 at 14-15.) Because the Court has found the ALJ did
not err in formulating the RFC, and the RFC lacked any mental limitations, there was no
error in omitting mental limitations from the ALJ’s step four analysis.
Accordingly, the Court finds that the ALJ applied the correct legal standards and
his conclusions were supported by substantial evidence in the record.
III. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is AFFIRMED.
Dated this 13th day of March, 2013.
BY THE COURT:
William J. Martínez
United States District Judge
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