CRAIG B. SHAFFER, Magistrate Judge.
This action comes before the court pursuant to Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 405(g) and 1383(c) for review of the Commissioner of Social Security (the "Commissioner" or "Defendant")'s final decision denying Bethany Anne Milam's
In May 2012, Plaintiff filed an application under Title II of the Social Security Act for DIB. Plaintiff claimed that her ability to work was severely limited by several physical conditions: "bul[]ged disk and thinning disk in spine, neck, ibs, impingement syndrome causing bursitis in shoulder, acid reflux disease and heartburn." AR at 442. In January 2013, the application was denied administratively. Plaintiff requested a hearing before an administrative law judge ("ALJ"). Shortly thereafter, Plaintiff also applied for SSI. Her case was assigned to ALJ Nicholas J. Lo Burgio, who held evidentiary hearings on March 18, 2014 and August 12, 2014 in Denver, Colorado. Plaintiff was represented by counsel at the hearings. The ALJ heard the testimony of Plaintiff and a vocational expert, Ashley Bryars; at the second hearing, the ALJ also heard testimony from Dr. Robert Pelc, a forensic psychologist.
On August 25, 2014, the ALJ issued his decision denying benefits. AR at 142-158. The ALJ's opinion followed the five-step process outlined in the Social Security regulations.
At step two, the ALJ found that several of Plaintiff's conditions constituted severe impairments:
AR at 146. He concluded that as to Plaintiff's several other alleged physical and mental conditions, the record lacked evidence to show these conditions had more than a transient or non-significant effect on Plaintiff's ability to work. Id. At step three, the ALJ found that Plaintiff did not have an impairment that met or medically equaled a "listed" impairment, i.e., an impairment the Commissioner identifies in the regulations as disabling with no need for further analysis. Id. at 146-148.
The ALJ then determined that Plaintiff had the following residual functional capacity ("RFC"):
AR at 148. In determining Plaintiff's RFC, the ALJ relied primarily on the opinions of three physicians, each of which he found consistent with the overall record:
Id. at 149. The ALJ thus accorded the greatest weight to the opinion of Plaintiff's treating physician Dr. Hayman as "the most recent, and . . . most consistent with the overall record." He also gave "substantial weight" to an earlier opinion of another of Plaintiff's treating physicians, Dr. Malinda Schlicht.
Id. at 148. The ALJ further noted that Dr. Schlicht's opinion "is supported by her detailed outline of the claimant's diagnoses and treatment." Id. at 149 (citing Ex. 10F, AR at 1156-58). Finally, the ALJ gave "some weight" to the DDS physician Dr. Susman, who opined "that the claimant can perform light exertional work with additional postural and manipulative limitations." Id. The ALJ found all three of Drs. Hayman, Schlicht, and Susman's opinions were "generally consistent with the overall record." Id.
In determining Plaintiff's RFC, the ALJ also reviewed the record for the impact of Plaintiff's non-severe impairments, including obesity. Id. He reviewed the documentary evidence regarding Plaintiff's chronology, diagnoses, results of evaluations and examinations, treatments, statements of Plaintiff that her providers noted during those appointments, and her daily activities. AR at 149-152. Among other things, the ALJ pointed to inconsistencies in Plaintiff's reports to health care providers regarding the sources and timing of her pain, including the date of a car accident. Id. at 150-51. The ALJ noted records from Plaintiff's physical therapist in which the therapist described her as noncompliant with her home exercise regimen for pain. Id. at 151. The ALJ also pointed to several portions of Plaintiff's testimony regarding her daily activities (e.g., caring for her small child and going to community college part-time), symptoms and pain levels. Id. Plaintiff reported among other things using medical marijuana and prescription pain medications daily. Id. The ALJ considered Plaintiff's treatment by a pain psychologist, John Mark Disorbio, Ed.D., her diagnosis of having a pain and somatic disorder, and of having disorders of a psychological nature. Id. at 154.
As to mental conditions that Plaintiff raised after the first hearing,
AR at 155. In short, based on the opinion testimony, documentary evidence and Plaintiff's testimony, the ALJ concluded there was insufficient evidence to demonstrate that Plaintiff's impairments rendered her totally incapable of working.
At step four, based on Plaintiff's RFC, the ALJ found that Plaintiff could not perform any past relevant work. Id. at 156. At step five, the ALJ found: "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform." AR at 156. Specifically, the ALJ relied on the VE's testimony that Plaintiff could do
AR at 157. The ALJ found that these jobs existed in a significant number and therefore found that Plaintiff did not meet the definition of "disabled" for purposes of the Social Security Act. Id. at 158. Accordingly, Plaintiff's application was denied.
Plaintiff requested the Appeals Council's review of the ALJ's decision. On February 23, 2016, the Appeals Council denied her request. Id. at 1-4.
The Commissioner's regulations define a five-step process for determining whether a claimant is disabled:
Wilson v. Astrue, No. 10-cv-00675-REB, 2011 WL 97234, at *2 (D. Colo. Jan. 12, 2011) (citing 20 C.F.R. § 404.1520(b)-(f)); see also 20 C.F.R § 416.920;
Wilson, 2011 WL 97234, at *1 (quoting Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987)).
In reviewing the Commissioner's final decision,
Lee v. Berryhill, No. 16-5163, ___ F. App'x ___, 2017 WL 2297392, at *1 (10th Cir. May 25, 2017) (internal quotation marks and citations omitted, citing inter alia Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014)). 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"); 42 U.S.C. § 1383(c)(3) (referencing § 405(g) for standard of review).
Accordingly, the court may not reverse an ALJ because the court may have reached a different result based on the record; the question is instead whether there is substantial evidence showing that the ALJ was justified in his decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). "We review only the sufficiency of the evidence, not its weight. . . . Although the evidence may also have supported contrary findings, we may not displace the agency's choice between two fairly conflicting views." Lee, 2017 WL 2297392, at *2. Nevertheless, "[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) (internal citation omitted). In addition, "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) (internal citation omitted).
Plaintiff pursues four arguments on appeal. She argues that the ALJ erred in finding (1) her reports of pain and disability lack credibility; (2) her pain and somatic disorder does not restrict her RFC; (3) she is able to perform the four sedentary jobs identified in the order, regardless of her inabilities to stoop and to reach overhead with her right arm; and (4) that those jobs exist in significant numbers locally or nationally.
Plaintiff argues that the ALJ's credibility determination lacks substantial evidence and constitutes improper "picking and choosing" among evidence. Plaintiff cites cases that prohibit "picking and choosing" among parts of an uncontradicted treating physician's opinion. Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007); Hamlin v. Barnhart, 365 F.3d 1208, 1219 (10th Cir. 2004) ("[t]he ALJ may not pick and choose which aspects of an uncontradicted medical opinion to believe, relying on only those parts favorable to a finding of nondisability"). Those cases do not take issue with whether an ALJ reasonably resolved conflicting evidence, and they have no bearing here. The ALJ undisputedly gave great weight to treating physicians' opinions. The court thus reviews this issue not for whether there is evidence that the ALJ chose could have viewed more favorably to Plaintiff, but for whether the ALJ's decision is supported by substantial evidence.
"The ALJ must evaluate the credibility of the claimant's testimony where that testimony could influence the ultimate finding of disability." Ploughe v. Colvin, No. 14-cv-00138-RBJ, 2014 WL 7403234, at *7 (D. Colo. Dec. 29, 2014) (citing 20 C.F.R. § 404.1529(a)).
Kaighn v. Colvin, 13 F.Supp.3d 1161, 1173 (D. Colo. 2014) (internal quotation marks and citations omitted, citing Diaz v. Sec'y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990); Huston v. Bowen, 838 F.2d 1125 (10th Cir. 1988)). "[I]nconsistency between a claimant's testimony about the limiting effect of symptoms and other substantial evidence in the record can be a valid reason to discount the claimant's testimony." Kaighn, 13 F. Supp. 3d at 1174 (citing 20 C.F.R. § 404.1529(c)). In particular, the Commissioner looks for whether "there are any conflicts between your [the claimant's] statements and . . . statements by your medical sources . . . about how your symptoms affect you." 20 C.F.R. § 404.1529(c)(4).
The ALJ found Plaintiff's reports of pain and disability not credible for several reasons. First and foremost, Plaintiff's reports were not supported by the opinions of her treating physicians, Drs. Hayman and Schlicht, and by the opinion of Dr. Pelc:
AR at 156. Plaintiff does not challenge that her complaints are more severe than what Drs. Hayman, Schlicht or Pelc's opinions reflect. Doc. 16 (Opening Brief) at 35-39; Doc. 20 (Reply) at 1-3. Even if there were no other factual support for the ALJ's credibility determination, the inconsistency between Plaintiff's complaints and the opinions of Drs. Hayman, Schlicht and Pelc is itself substantial support for finding Plaintiff's complaints are not credible.
The second fact that led the ALJ to conclude that Plaintiff's reports were not credible was "[t]he claimant's multiple inconsistent reports, as described herein, [as] diminish[ing] the persuasiveness of her subjective complaints and reported limitations." AR at 156. Plaintiff's inconsistent reports regarded (a) when she was in the car accident that she later reported as causing or exacerbating several conditions, and (b) what she believed had caused her conditions. Plaintiff argues that the discrepancies regarding the date of her car accident are only one or two errors that could be due to inaccuracy in Dr. Malinda Schlicht's notetaking. The ALJ found in relevant part:
AR at 150.
The court has reviewed each of the documents that the ALJ cited regarding Plaintiff's inconsistent reports of the car accident. Two of the earlier records refer to the accident as occurring June 27, 2011; one refers to July 27, 2011; four refer to July 24, 2011; one record refers to six months prior to May 2012; one record refers to Plaintiff as a passenger; another refers to her as the driver.
The ALJ's finding (AR at 150-51) of variances in Plaintiff's reports regarding the causes or inception of pain in her hip, back and shoulder is also supported by substantial evidence. The court reviewed the documents that the ALJ cites (AR at 651, 658, 699, 742, 835) in light of the entire record. Although these records could be viewed more favorably to Plaintiff, the ALJ's view that they reflect inconsistencies in Plaintiff's reports is reasonable. In short, the ALJ's finding that Plaintiff has been inconsistent in describing the causes or inception of her various pain symptoms is additional support for his finding Plaintiff's reports not credible.
In his credibility finding, the ALJ next pointed to:
Id. at 156. Plaintiff argues that her care for her son resulted in needing medical treatment, but Plaintiff cites only one medical record. Doc. 16 (Opening Brief) at 38 (citing AR 1029). In that instance, Plaintiff reported that she had "right arm and wrist pain for one day after carrying her large 2 year old around the aquarium. Took some salsalate for it and it is a lot better." AR at 1029 (Ex. 5F/20). She was apparently prescribed a thumb Velcro splint. Id. This single instance of pain from a non-daily activity does not cause the ALJ's finding to be unsupported.
Plaintiff also argues that her father helped her daily with childcare or domestic tasks, a fact that the ALJ recognizes in his decision. Although "sporadic performance of household tasks or work does not establish that a person is capable of engaging in substantial gainful activity," Kaighn, 13 F. Supp. 3d at 1174, Plaintiff's responsibilities in caring for her son were not sporadic. Plaintiff does not dispute that as a single mother, she has been the primary caregiver for her special needs son throughout the time period that she alleges disability. Plaintiff's care for her small child is to her credit, but in the context of a disability application, her ability to care for her child supports the ALJ's finding that Plaintiff has more ability for substantial gainful employment than what Plaintiff asserted.
As to Plaintiff's assertion of mental health impairments being unsupported by infrequency of mental health treatment, Plaintiff argues that the ALJ should not have "glossed over the results of the BBHI-2 psychiatric testing conducted by Dr. Vilims, which . . . showed high, and extremely high somatic pain complaints and functional complaints." Doc. 20 (Reply) at 5. The BHI-2 ("Battery for Health Improvement-2") evaluation was actually conducted by John Mark Disorbio, Ed.D. AR at 1160-79 (Ex. 12F, "Comprehensive Psychological Report" dated January 22, 2013, evaluation date January 16, 2013). The ALJ devoted several paragraphs in his decision to the Disorbio report and why the ALJ did not give weight to its low GAF assessment of Plaintiff. AR at 154-55.
AR at 154. The ALJ explained that "[i]t appears Dr. Disorbio did not conduct a formal mental status examination and his report indicates he did not review any other medical records- although he evidently talked to Dr. Vilims about the claimant's treatment (Ex. 12F)." The ALJ also noted that shortly after the Plaintiff's car accident that Dr. Disorbio's report describes as a "significant automobile accident," Plaintiff started attending community college and her treating physician Dr. Schlicht opined that she could work or go to school fulltime. AR at 155. Again, the most detailed record describes a relatively mild accident in which a car hit the passenger side of Plaintiff's car and caused it to jump a curb. AR at 1139. Although the Disorbio report could be viewed more favorably to Plaintiff's disability application, substantial evidence supports the ALJ's finding that Dr. Disorbio relied on Plaintiff's reports of pain and disability that were not credible.
Moreover, although Plaintiff focuses on her very high complaints of pain and somatic symptoms during Dr. Disorbio's evaluation, Dr. Disorbio explains that the
AR at 1162-63 (emphasis added). The report itself thus provides substantial support for the ALJ's finding that Dr. Disorbio "relied at least in part on the claimant's subjective reports as to her limitations, and the claimant's reports are not credible."
Plaintiff also points to the ALJ's finding that her "temporary work as a tax preparer undercut her allegations that she could not work for an entire day." Doc. 16 (Opening Brief) at 38. Plaintiff argues that her abortive work effort cannot be considered as evidence of nondisability or lack of credibility in her complaints, citing Hierstein v. Chater, No. 96-6233, 110 F.3d 73 (Table), 1997 WL 158177, at *3 (10th Cir. 1997)). Hierstein held that
Hierstein, 1997 Wl 158177, at *3. In Hierstein and the cases cited therein, the evidence regarding the claimant's brief work showed that they were unable to perform the job. Id. at *3 ("problems encountered by plaintiff in these attempts, particularly stress-related difficulties and personal conflict with supervisors, appear to reflect the real-world impact of his recognized psychological impairments"); Miller v. Chater, 99 F.3d 972, 977-78 (10th Cir. 1996) ("discharged from his employment for `poor performance'"); Washington v. Shalala, 37 F.3d 1437, 1441 (10th Cir. 1994).
Here, there is no evidence that Plaintiff was terminated from the tax preparation job due to poor performance, and the ALJ did not rely on Plaintiff's three months of tax preparation work as a basis for finding general non-credibility. The ALJ found Plaintiff's work as a tax preparer undercut only specific assertions that the job necessarily contradicted:
AR at 151-52. In short, the ALJ did not err in determining that Plaintiff's reports of pain and disability were not credible in light of the whole record.
Plaintiff argues that the ALJ inadequately considered her pain and somatic disorder in determining her RFC because he did not expressly analyze three factors that the Tenth Circuit requires.
Thompson v. Sullivan, 987 F.2d 1482 (10th Cir. 1993) (citing Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987)). Although the ALJ did not use the Tenth Circuit's phraseology, the ALJ analyzed each of these factors. The ALJ found that Plaintiff has a severe impairment in a "pain disorder associated with both psychological factors and a general medical condition." AR at 146.
AR at 154. The foregoing essentially finds the first two Luna factors in Plaintiff's favor: the pain disorder is a pain-producing impairment shown by the objective medical evidence, and there is a nexus between that impairment and Plaintiff's allegations of pain.
The third Luna factor is whether the record as a whole — including both the objective and subjective evidence — supports that the Plaintiff's pain was disabling. The ALJ explained in detail why he found Plaintiff's subjective evidence was not credible in light of her treating physicians' opinions and objective evidence. See supra. The ALJ further explained in detail why he did not give weight to the pain psychologist's assessment of Plaintiff's GAF:
AR at 154.
Plaintiff argues that
Doc. 16 (Opening Brief) at 40. However, the ALJ properly analyzed all of the relevant factors for weighing Plaintiff's subjective complaints of disabling pain, including the factors that Plaintiff cites from Luna, Social Security Ruling (SSR) 96-7p and Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991). See also 20 C.F.R. § 404.1529(c)(3), (c)(4). The disconnect between Plaintiff's complaints and the opinions of her treating physicians (and Dr. Pelc), and the additional inconsistencies that led the ALJ to find Plaintiff's complaints not credible, are substantial support for the conclusion that Plaintiff's pain disorder is not disabling. See, e.g., Franklin v. Astrue, 450 F. App'x 782, 789-790 (10th Cir. 2011).
Plaintiff argues that because the ALJ found her RFC precludes any stooping and any overhead reaching with her right arm, it was erroneous to rely on the VE's testimony that Plaintiff could perform several jobs. Plaintiff argues that her complete preclusion from stooping prevents her from performing any unskilled sedentary jobs, relying on SSR 96-9p. That guidance document states that "[a] complete inability to stoop would significantly erode the unskilled sedentary occupational base and a finding that the individual is disabled would usually apply. . . ." "Policy Interpretation Ruling Titles II and XVI: Determining Capability to Do Other Work— Implications of a Residual Functional Capacity for Less Than a Full Range of Sedentary Work," SSR 96-9p, 1996 WL 374185, at *8 (SSA July 2, 1996) (second emphasis added). As the ALJ correctly pointed out, the guidance document does not find disability in all cases of an inability to stoop. The ruling instead directs that "[c]onsultation with a vocational resource may be particularly useful for cases where the individual is limited to less than occasional stooping." Id.
AR at 157. As the Defendant points out, the VE identified four unskilled sedentary jobs that according to the DOT do not require stooping. DOT Nos. 249.587-018, 1991 WL 672349 (document preparer, microfilming: stooping is "not present — activity or condition does not exist"), 209.587-010, 1991 WL 671797 (addresser: stooping is "not present — activity or condition does not exist"); 239.687-014, 1991 WL 672235 (tube operator: stooping is "not present — activity or condition does not exist"), 979.687-026, 1991 WL 688696 (type copy examiner: stooping is "not present — activity or condition does not exist"). Plaintiff does not cite any authority that an inability to stoop is always disabling. The court finds no error in the ALJ's reliance on the VE's testimony that Plaintiff's inability to stoop does not preclude her from these jobs.
As to Plaintiff's preclusion from overhead reaching with her right arm, the ALJ included this limitation in the hypothetical question for the VE's testimony. AR at 198-99, 243. The VE answered the hypothetical by identifying the four jobs noted above, as jobs that a person with those limitations could perform. Plaintiff argues that the Selected Characteristics of Occupations shows that each of those jobs "requires frequent reaching, but does not specify whether that reaching is overhead." Doc. 16 (Opening Brief) at 44 (citing SCOS, 1993, pp. 203, 347).
Plaintiff also argues error because the ALJ did not ask the VE for testimony regarding whether the quantities of these four jobs were significant. The Commissioner bears the burden of proof on this issue. The Commissioner must prove
42 U.S.C. § 1382c(a)(3)(B). Thus the Commissioner's regulations provide:
20 C.F.R. § 416.960(c)(1).
"Th[e Tenth] Circuit has never drawn a bright line establishing the number of jobs necessary to constitute a `significant number' and rejects the opportunity to do so here. Our reluctance stems from our belief that each case should be evaluated on its individual merits." Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992).
Id. (quoting Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988)). "The decision should ultimately be left to the [ALJ's] common sense in weighing the statutory language as applied to a particular claimant's factual situation." Trimiar, 966 F.2d at 1330 (note omitted).
In this case, the ALJ found that Plaintiff can perform four jobs that total 77,000 jobs nationally and 1,400 jobs in the state, and that this constitutes significant numbers in the national economy. The ALJ cited "the framework of medical-vocational rule 201.28, in conjunction with the vocational expert's reliable testimony," and SSR 83-14. AR at 157-58. Plaintiff argues that the ALJ did not make any findings or ask the VE for testimony to support the numerical significance, but Plaintiff does not address the rule or the guidance document that the ALJ cites.
In any case, this court has considered very similar quantities to be a significant number of jobs within the meaning of step 5 analysis. See, e.g., Knudson v. Astrue, No. 10-cv-02905-PAB, 2012 WL 1079130, at *10 (D. Colo. Mar. 30, 2012) (79,900 positions nationally and 1,194 positions locally). Plaintiff's contentions on this issue are more a disagreement with the Commissioner's continued reliance on the DOT despite its occupational titles being "obscure, antiquated, and difficult for a person requiring unskilled work to even determine what they consist of." Doc. 16 (Opening Brief) at 45. The court does not disagree that "common sense [should] dictate[ ] that when such descriptions appear obsolete, a more recent source of information should be consulted." Cunningham v. Astrue, 360 F. App'x 606, 615 (6th Cir. 2010). However, the DOT is among five sources of "reliable job information" noted in the Commissioner's regulations. 20 C.F.R. § 416.966(d)(1). That regulation is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See, e.g., Astrue v. Capato ex rel. B.N.C., 566 U.S. 541, 132 S.Ct. 2021, 2034 (2012). Plaintiff's concern is better addressed to the Commissioner in a request to amend the regulation. The court finds no error in the ALJ's determination that Plaintiff is capable of performing jobs that exist in significant numbers in the national or local economies.
For each of the reasons stated above, the decision of the Commissioner is AFFIRMED. The clerk of court shall enter final judgment.
