Blackburn, United States District Judge.
The matter before me is plaintiff's
Plaintiff alleges that she is disabled as a result of a right hip fracture, degenerative joint disease of the knees, and depression.
The ALJ found that plaintiff was not disabled after June 5, 2002, because she experienced medical improvement in her impairment related to her ability to work, and therefore that she was not entitled to disability insurance benefits past that date. Although the medical evidence established that plaintiff suffered from severe impairments after June 5, 2002, the judge concluded that the severity of those impairments did not meet or equal any impairment listed in the social security regulations. The ALJ found that plaintiff had the residual functional capacity to perform unskilled sedentary work with postural limitations. Although these findings precluded plaintiff's past relevant work, the ALJ concluded that there were jobs existing in significant numbers in the national economy that she could perform. The ALJ therefore found plaintiff not disabled at step five of the sequential evaluation. Plaintiff appealed this decision to the Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.
A person is disabled within the meaning of the Social Security Act only if her physical and/or mental impairments preclude her from performing both her previous work and any other "substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2). "When a claimant has one or more severe impairments the Social Security [Act] requires the [Commissioner] to consider the combined effects of the impairments in making a disability determination." Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir.1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Social Security Act. To be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir.1995).
The Commissioner has established a seven-step sequential evaluation process for determining whether a claimant who has previously been found disabled has experienced medical improvement related to the ability to do work:
20 C.F.R. § 404.1594(f)(1)-(8). See also Hayden v. Barnhart, 374 F.3d 986, 988 (10th Cir.2004). The Commissioner bears the burden of demonstrating that the claimant has experienced medical improvement such that she now can engage in substantial gainful activity. 20 C.F.R. § 404.1594(b)(5); Glenn v. Shalala, 21 F.3d 983, 987 (10th Cir.1994); Underwood v. Shalala, 985 F.Supp. 970, 977 (D.Colo. 1997).
Review of the Commissioner's disability decision is limited to determining whether the ALJ applied the correct legal standard and whether the decision is supported by substantial evidence. Hamilton v. Secretary of Health and Human Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.1990). Substantial evidence is evidence a reasonable mind would accept as adequate to support a conclusion.
Plaintiff alleges that the ALJ violated the termination rules, erred in assessing her residual functional capacity, weighed improperly the medical source opinions of record, discredited wrongfully her subjective reports of pain and functional limitation, and failed to sustain her burden of proof at step 7 of the sequential evaluation. Finding no such reversible error in the ALJ's decision, I affirm.
Plaintiff's argument that the Commissioner violated the termination rules is somewhat difficult to parse. Plaintiff suggests that the ALJ's reliance on the Commissioner's August 27, 2002, disability determination as the "comparison point decision" ("CPD")
However, as with the majority of the arguments presented in this appeal, plaintiff fails to demonstrate how this alleged error in choosing the CPD prejudiced her substantial rights. See Williams v. Chater, 1995 WL 490280 at *2, 64 F.3d 670 (10th Cir. Aug. 16, 1995) ("Procedural imperfection that does not affect a party's substantive rights is not a basis for reversal."); Bernal v. Bowen, 851 F.2d 297, 303 (10th Cir.1988) (mere fact of error does not warrant remand if the ALJ's determination is otherwise supported by substantial evidence).
Instead, plaintiff's chief complaint appears to be that the Commissioner's termination decision was unfair because she seemed to indicate in August 2002 that plaintiff was entitled to continuing benefits, and, indeed, continued to pay plaintiff benefits for years past the date her disability purportedly ended. Although such considerations might be relevant if the Commissioner were seeking reimbursement of the overpayment, see 20 C.F.R. § 404.506(a), it is not for purposes of this appeal. Plaintiff presents nothing establishing that the termination procedure was not followed once the Commissioner realized that benefits had been continued beyond the date on which plaintiff's impairment had been found to be no longer meet the Listings.
Plaintiff next argues that the ALJ's determination of her residual functional capacity after June 5, 2002, is flawed. This argument takes several forms. First, plaintiff points to evidence in the record showing evidence of possible bursitis or, alternatively, a non-union of the hip (Tr. 179), as well as knee instability and a July 2003 knee surgery (Tr. 658). Yet the ALJ actually addressed this evidence, specifically discussing the fact that plaintiff required a second surgery in January 2002 to fix a nonunion of the previous hip fracture.
Plaintiff further perceives error in the ALJ's consideration of the various medical opinions of record. She claims that the ALJ improperly gave greater weight to the opinion of the non-examining physician, Dr. Alan Ketelhorn (Tr. 186-193),
Nor do I perceive any error. Although it is true that Dr. Campbell's opinion was
As for the opinions of physician's assistant, Betsy Goodwin (Tr. 637-642),
Moreover, the determination of a claimant's residual functional capacity is ultimately an administrative determination, 20 C.F.R. § 404.1546; Rutledge v. Apfel, 230 F.3d 1172, 1175 (10th Cir.2000), not a medical one. Accordingly, the ALJ is under no obligation to base her residual functional capacity assessment on any particular medical source's opinion. See Moses v. Astrue, 2012 WL 1326672 at *4 (D. Colo April 17, 2012). In this instance, it is clear that she properly resolved the relatively minor conflicts in the evidence in reaching her determination. See Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir.1988); Gleason v. Apfel, 1999 WL 714172 at *4 (D.Kan. Sept. 1, 1999). See also Lax v. Astrue, 489 F.3d 1080, 1088 (10th Cir.2007) ("The substantial-evidence standard does
Lastly, plaintiff claims the ALJ erred in discrediting her subjective complaints of pain. "[C]redibility determinations `are peculiarly the province of the finder of fact,' and should not be upset if supported by substantial evidence." White, 287 F.3d at 909 (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)). So long as the ALJ links her credibility assessment to specific evidence in the record, her determination is entitled to substantial deference. Id. at 910; see also Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.2000).
The ALJ reviewed the evidence of record, noting minimal treatment during the majority of the relevant time period. Although plaintiff had knee surgery within six months after her date last insured, she was reported to be "doing well" postoperatively, "making good progress with range of motion in the leg" such that "[s]he is now basically back to full range of motion" and "doing all of her activity" despite "occasional pain" that "come[s] and go[es] and has been getting gradually better." (Tr. 497.) The ALJ noted that despite plaintiff's complaints of unremitting pain, she exhibited normal or unremarkable findings on examination by her treating orthopedist. (Tr. 268, 495-496.) All of this evidence is more than adequate to support the ALJ's credibility determination.
Thus, although there is no doubt that plaintiff continues to suffer from pain related to her impairments, "disability requires more than mere inability to work without pain." Brown v. Bowen, 801 F.2d 361, 362-63 (10th Cir.1986) (citation and internal quotation marks omitted); see also Qantu v. Barnhart, 72 Fed.Appx. 807, 811 (10th Cir.2003) ("We emphasize that a claimant's inability to work pain-free, standing alone, is not sufficient reason to find her disabled."). The ALJ gave good reasons, specifically tied to the evidence of record, for discrediting plaintiff's subjective complaints. I see no basis to afford her credibility determination less than the substantial deference to which it is presumptively entitled.
20 C.F.R. § 404.1594(b)(7). The most recent favorable medical decision is the CPD in most cases. See Social Security Administration,
20 C.F.R. Pt. 404, Subpt. P, app. 1, § 1.02. Plaintiff presents neither evidence nor argument suggesting that her knee impairment met these further requirements. See Barnes v. Barnhart, 116 Fed.Appx. 934, 939 (10th Cir. 2004).