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Sullivan v. Berryhill

United States District Court, D. New Mexico

March 16, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.



         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 16) filed February 22, 2016 in support of Plaintiff Terry O. Sullivan's pro se[3] (“Plaintiff”) Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff's claim for Title II disability insurance benefits and for Title XVI supplemental security income benefits. On April 6, 2016, Plaintiff filed his Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing, With Supporting Memorandum (“Motion”). (Doc. 21.) The Commissioner filed a Response in opposition on July 25, 2016 (Doc. 24), and Plaintiff filed a Reply on August 22, 2016. (Doc. 28.) The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is not well taken and is DENIED.

         I. Background and Procedural Record

         Claimant Terry O. Sullivan (“Mr. Sullivan”) alleges that he became disabled on August 1, 2010, at the age of fifty-four because of spinal arthritis.[4] (Tr. 227.[5]) Mr. Sullivan has a doctorate in Information Science (Tr. 41), and worked as a user interface designer, usability researcher, education research assistant and education project director. (Tr. 228.)

         On August 14, 2012, Mr. Sullivan protectively filed[6] applications for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq. (Tr. 16, 213-16.) On June 13, 2013, Mr. Sullivan protectively filed for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq.[7](Tr. 16.) Mr. Sullivan's Title II application was initially denied on September 30, 2012. (Tr. 116-21, 133-35.) Mr. Sullivan's Title II application was denied again at reconsideration on January 29, 2013. (Tr. 123, 124-32, 139-41.) On February 5, 2013, Mr. Sullivan requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 144-45.) The ALJ conducted a hearing on July 9, 2013. (Tr. 58-108.) Mr. Sullivan appeared in person at the hearing with attorney representative Keith Kinzebach. (Tr. 58, 176-77.) The ALJ took testimony from Mr. Sullivan. (Tr. 66-107.) The ALJ continued the hearing so that an orthopedic expert witness could review Mr. Sullivan's most recent x-rays and provide an opinion. (Tr. 107.) The ALJ conducted the continued hearing on October 1, 2013. (Tr. 30-57.) Mr. Sullivan appeared in person at the continued hearing with Mr. Kinzebach. (Tr. 30.) The ALJ took expert testimony from medical expert Peter M. Schosheim, M.D. (Tr. 34-39), Mr. Sullivan (Tr. 39-41), and an impartial vocational expert (“VE”), Paul Prachyl, Ph.D., CRC. (Tr. 41-57.)

         On March 10, 2014, the ALJ issued an unfavorable decision. (Tr. 13-25.) In arriving at her decision, the ALJ determined that Mr. Sullivan met the insured status requirements of the Act through December 31, 2012, [8] and that Mr. Sullivan had not engaged in substantial gainful activity since his alleged disability onset date.[9] (Tr. 18.) The ALJ found that Mr. Sullivan suffered from a severe impairment of degenerative disc disease. (Tr. 19.) The ALJ also determined that Mr. Sullivan suffered from non-severe impairments of diabetes mellitus and bilateral degenerative joint disease of the hips. (Id.) However, the ALJ found that these impairments, individually or in combination, do not meet or medically equal one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Id.)

         Because she found that Mr. Sullivan's impairments did not meet a Listing, the ALJ then went on to assess Mr. Sullivan's residual functional capacity (“RFC”). The ALJ stated that

[a]fter careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) including: He can occasionally lift, carry, push and pull 10 pounds occasionally and less than 10 pounds frequently; can stand and/or walk 2/8 hours; can sit for 6 hours with normal breaks; can never climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs; can occasionally balance, kneel, crouch, crawl and stoop; he does not have any manipulative limitations and he can reach in all directions without limitations; he must avoid all exposure to vibration and hazards such as dangerous moving machinery and unprotected heights.

(Tr. 20.) Based on the RFC and the testimony of the VE, the ALJ concluded that Mr. Sullivan was capable of performing his past relevant work as a programmer analyst and information scientist and was therefore not disabled. (Tr. 24-25.)

         On September 22, 2015, the Appeals Council issued its decision denying Mr. Sullivan's request for review and upholding the ALJ's final decision. (Tr. 1-5.) On November 25, 2015, Mr. Sullivan timely filed a Complaint seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Standard of Review

         Judicial review of the Commissioner's denial of disability benefits is limited to whether the final decision[10] is supported by substantial evidence and whether the Commissioner applied the correct legal standards to evaluate the evidence. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). In making these determinations, the Court must meticulously examine the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). In other words, the Court does not reexamine the issues de novo. Sisco v. U.S. Dep't. of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993). The Court will not disturb the Commissioner's final decision if it correctly applies legal standards and is based on substantial evidence in the record.

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. Substantial evidence is “more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record[, ]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The Court's examination of the record as a whole must include “anything that may undercut or detract from the [Commissioner's] findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.” Lax, 489 F.3d at 1084 (quoting Zoltanski v. Fed. Aviation Admin., 372 F.3d 1195, 1200 (10th Cir. 2004)). Thus, the Court “may not displace the agency's choice between two fairly conflicting views, ” even if the Court would have “made a different choice had the matter been before it de novo.” Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007).

         “The failure 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.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks omitted). Thus, even if a reviewing court agrees with the Commissioner's ultimate decision to deny benefits, it cannot affirm that decision if the reasons for finding a claimant not disabled were arrived at using incorrect legal standards, or are not articulated with sufficient particularity. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). “[T]he record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence.” Id. at 1009-10. Rather, the ALJ need only discuss the evidence supporting his decision, along with any “uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Id.; Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014).

         III. Applicable Law and Sequential Evaluation Process

         Disability under the Social Security Act is defined 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). A claimant is disabled under the Act 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 in the national economy.” 42 U.S.C. § 423(d)(2)(A). To qualify for disability insurance benefits, a claimant must establish a severe physical or mental impairment expected to result in death or to last for a continuous period of twelve months, which prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. §423(d)(1)(A); Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993).

         When considering a disability application, the Commissioner uses a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show that: (1) he is not engaged in “substantial gainful activity”; and (2) he has a “severe medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is expected to last for at least one year; and (3) his impairment(s) meet or equal one of the Listings[11] of presumptively disabling impairments; or (4) he is unable to perform his “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan 399 F.3d at 1261. If the claimant can show that his impairment meets or equals a Listing at step three, the claimant is presumed disabled and the analysis stops. If at step three, the claimant's impairment is not equivalent to a listed impairment, before moving on to step four of the analysis, the ALJ must consider all of the relevant medical and other evidence, including all of the claimant's medically determinable impairments whether “severe” or not, and determine what is the “most [the claimant] can still do” in a work setting despite his physical and mental limitations. 20 C.F.R. § 404.1545(a)(1)-(3). This is called the claimant's residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1545(a)(1) & (a)(3). The claimant's RFC is used at step four to determine if he can perform the physical and mental demands of his past relevant work. 20 C.F.R. § 404.1520(a)(4), 404.1520(e). If the claimant establishes that he is incapable of meeting those demands, the burden of proof then shifts to the Commissioner, at step five of the sequential evaluation process, to show that the claimant is able to perform other work in the national economy, considering his residual functional capacity (“RFC”), age, education, and work experience. Id., Grogan, 399 F.3d at 1261.

         Although the claimant bears the burden of proving disability in a Social Security case, because such proceedings are nonadversarial, “[t]he ALJ has a basic obligation in every social security case to ensure that an adequate record is developed during the disability hearing consistent with the issues raised.” Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1993); Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006). “This is true despite the presence of counsel.” Henrie, 13 F.3d at 361. “The duty is one of inquiry and factual development, ” id., “to fully and fairly develop the record as to material issues.” Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). This may include, for example, an obligation to obtain pertinent medical records or to order a consultative examination. Madrid, 447 F.3d at 791-92. The duty is triggered by “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.” Hawkins, 113 F.3d at 1167.

         IV. Analysis

         A. Relevant Medical Background 1. Mr. Sullivan's Medical Providers

         On October 3, 2008, Mr. Sullivan presented to PAC Paul Halkett for evaluation of lower back pain. (Tr. 410.) Mr. Sullivan described the pain as an ache and reported that he experienced decreased mobility. (Id.) Mr. Sullivan said that lying down and/or applying heat provided relief. (Id.) PAC Halkett prescribed Percocet for pain and instructed him to return in one week. (Tr. 411.)

         On October 10, 2008, Mr. Sullivan followed up with PAC Halkett. (Tr. 407-08.) PAC Halkett noted that Mr. Sullivan continued to have low back pain, was taking 2.5 Percocet tablets daily, and using a heating pad. (Tr. 407.) Mr. Sullivan reported that he was not ready to go back to work as a programmer due to discomfort with walking, although he could sit with less discomfort. (Id.) On physical exam, PAC Halkett noted that Mr. Sullivan's forward flexion was very limited, he had bilateral lateral flexion to his knees, and his extension was within normal limits. (Tr. 407.) PAC Halkett reviewed x-rays of Mr. Sullivan's lower spine, [12] refilled the Percocet, prescribed Robaxin and Lidoderm Patches, and referred Mr. Sullivan for physical therapy.[13]

         On June 30, 2009, Mr. Sullivan presented to Evergreen Orthopedic Clinic and was evaluated by J. Scott Price, M.D. (Tr. 342-43.) Mr. Sullivan reported a history of worsening lumbosacral pain with all activities over the previous year, that it varied between a 5 and 8 out of a 10 in severity, and that lying down relieved the pain somewhat. (Tr. 342.) Dr. Price reviewed October 2008 lumbar spine AP (anteroposterior) and lateral films which showed “mild L2-3 and L5-S1 disk degeneration.” (Tr. 343.) Dr. Price assessed that “[w]hile this could be representative of chronic nonspecific back pain perhaps related to a two-level mild disk degeneration, it could also be related to a more serious etiology such as an oncologic problem or a diskitis.” Dr. Price planned to obtain an MRI. (Id.)

         On July 3, 2009, Mr. Sullivan had an MRI of his lumbar spine. (Tr. 346-47.) The MRI demonstrated “[m]ultilevel discogenic degenerative disease and facet arthropathy.” (Tr. 347.)

         On July 14, 2009, Mr. Sullivan followed up with Dr. Price regarding the MRI results. (Tr. 340.) Dr. Price noted that Mr. Sullivan's MRI “[did] not show any features concerning for malignancy or infection so our main reason for obtaining the scan [was] fortunately negative.[14]He does have some mild disk and facet degeneration which may well be the cause of his pain, but for that we would have him work with [a] physiatrist[.] (Id.) Dr. Price referred Mr. Sullivan to Northwest Spine and Sports. (Tr. 340.)

         On July 20, 2009, Mr. Sullivan presented to Northwest Spine & Sports Physicians, P.C., and was evaluated by Carolyn A. Marquardt, M.D. (Tr. 362-70.) Dr. Marquardt reviewed Mr. Sullivan's radiologic studies and performed a physical exam. (Id.) Dr. Marquardt's impression was that Mr. Sullivan had, inter alia, L5-S1 facet pain with underlying facet arthropathy, L5-S1 disc protrusion, additional lumbar protrusions, facet arthropathy at ¶ 4-5 and L3-4, and thoracic numbness in a T6 distribution. (Tr. 363.) She planned to obtain a thoracic MRI to rule out a cord compression and referred Mr. Sullivan to Dr. Packia Raj to administer bilateral L5-S1 facet injections. (Id.)

         On July 21, 2009, Mr. Sullivan had an MRI of the thoracic spine. (Tr. 371-72.) The overall impression was “[m]ild multilevel intervertebral degenerative disc changes of the thoracic spine with multilevel disc desiccation, ” “[n]o central canal narrowing or significant neural foraminal are evident, ” and “[n]o bone abnormalities identified. No spinal cord abnormalities are evident.” (Tr. 372.)

         On July 28, 2009, Mr. Sullivan presented to Dr. Raj for bilateral L5-S1 facet injections. (Tr. 354-55.) Thereafter, on August 12, 2009, Mr. Sullivan followed up with Dr. Marquardt regarding the facet injections. (Tr. 352-53.) Mr. Sullivan complained of continued thoracic pain and paresthesias;[15] however, he reported that the facet injections had dramatically relieved his lower back pain and that he was very pleased with his progress. (Id.) Dr. Marquardt assessed Mr. Sullivan with “L5-S1 facet arthropathy substantially reduced after the injections, ” “[t]horacic paresthesias of unknown etiology, ” and “[g]astrointestinal distention.” (Tr. 353.) She planned to obtain a brain MRI with MS protocol and neurology consult.[16] (Id.)

         On May 21, 2013, Mr. Sullivan presented with an ear ache and to discuss pain with Jo Walker, M.D., of Totem Lake Family Medicine. (Tr. 394.) Mr. Sullivan reported, inter alia, that he had increased pain in his lumbar area and that he needed to lie down after walking for 10 minutes or loading the dishwasher. (Id.) He stated he was not interested in narcotics, had steroid injections in 2009 which helped temporarily, and that he used Naprosyn and Tylenol at night. (Id.) On physical exam Dr. Walker noted, inter alia, that Mr. Sullivan was in no apparent distress and that his neurologic exam was normal. (Id.) Dr. Walker listed Mr. Sullivan's current pain medications as Ibuprofen and Naproxen. (Id.)

         On June 4, 2013, Mr. Sullivan returned to Dr. Raj. (Tr. 349-51.) Mr. Sullivan reported that over the previous year his back pain had worsened such that he was unable to sit for any time or walk for any distance, and that he had become very inactive. (Tr. 349.) He rated his pain an 8 out of 10 in severity. (Id.) He told Dr. Raj that lying down, applying heat, and taking anti-inflammatories helped his pain somewhat. (Id.) Dr. Raj reviewed Mr. Sullivan's radiologic studies from 2009 and 2012 and determined that there was “some significant spondylosis and osteopenia, as well as a significant compression fracture seen at ¶ 1 that was not present in 2009.” (Tr. 350.) Dr. Raj's impression was mechanical back pain, compression fracture of uncertain etiology, lumbar spondylosis, and lumbar disc degeneration. (Id.) Dr. Raj planned to obtain a bone scan and DEXAscan to assess for significant inflammation and osteoporosis/osteopenia. (Id.) Dr. Raj recommended pool therapy and a vocational/ergonomic workstation assessment. (Id.) Dr. Raj opined that he believed Mr. Sullivan's pain was real and that his symptoms were preventing him from being capable of gainful employment until things were addressed and improved. (Tr. 351.) Dr. Raj also opined that “I think if we could get these issues worked on and get his flexibility and strength improved, then he likely would be able to return to gainful employment.” (Id.)

         On November 13, 2013, Dr. Walker prepared a Physician Opinion Re: Effect of Pain on Individual's Ability to do Work-Related Activities. (Tr. 420.) Dr. Walker opined (1) that she believed Mr. Sullivan's complaints of pain; (2) that objective evidence, including imaging studies that revealed a vertebral compression fracture, degenerative joint disease and spondylosis demonstrated the cause of Mr. Sullivan's pain; and (3) that Mr. Sullivan's pain would substantially interfere with the attention and concentration needed to perform even simple work tasks for “34% to 66% of an 8-hour working day.” (Id.) Dr. Walker indicated she relied on Mr. Sullivan's medical records prior to December 31, 2012, as the basis of her opinion. (Id.)

         On January 21, 2014, Dr. Marquardt referred Mr. Sullivan for a bone mineral density test and stated that the indications were “[d]isorder of bone, unsp. ([o]steopenia), [c]losed fracture of lumbar spine with spinal cord injury.” (Tr. 423.) The results demonstrated normal bone mineral density in Mr. Sullivan's spine, and low bone mineral density (osteopenia) in his left hip, femoral neck, and left arm.[17] (Tr. 422-23.)

         2. State Agency Opinions

         a. Gary Gaffield, D.O.

         On September 12, 2012, State agency examining medical consultant Gary Gaffield, D.O., evaluated Mr. Sullivan as part of the Administration's initial review of Mr. Sullivan's disability claim. (Tr. 302-07.) Dr. Gaffield reviewed the Adult Disability Form (SSA 3368), took a medical and social history, and physically examined Mr. Sullivan. (Id.) Dr. Gaffield found that Mr. Sullivan had “[r]estricted lumbar motion without spasm or crepitus. There were no trigger points. Straight leg was negative both sitting and supine. Neurologically intact.” (Tr. 306.) He diagnosed Mr. Sullivan with low back pain and determined that he had the functional capacity for light work, [18] but that Mr. Sullivan's “postural activities [could] be performed occasionally, ”[19]and that “[h]e would be advised to avoid on a frequent basis climbing more than a single flight of stairs, steep incline planes, obstacles in his pathway, [and] irregular surfaces due to his potential for impaired balance and his back status.” (Id.)

         b. Radiologic Consultative Exam - Initial Review

         On September 12, 2012, Mr. Sullivan underwent radiologic studies of his lumbar, thoracic and cervical spine due to reported neck and back pain as part of the Administration's initial review of his disability claim. (Tr. 310, 395-98.) The lumbar spine studies demonstrated that Mr. Sullivan had an “L1 compression fracture with approximately 25% anterior vertebral body height loss” and “mild degenerative of the lumbar spine.” (Tr. 395.) The compression fracture was described as “probably old” given the associated degenerative changes at that level. (Id.) The thoracic spine studies demonstrated “[m]ild degenerative changes” and “[s]uggested disc space calcifications” with “CPPD[20] arthropathy.” (Tr. 396.) The cervical spine studies demonstrated “[m]ild degenerative changes” and “[g]eneralized osteopenia.” (Tr. 397.)

         c. Radiologic Consultative Exam - Reconsideration

         On January 24, 2013, Mr. Sullivan underwent radiologic studies of, inter alia, his lumbosacral spine and thoracic spine as part of the Administration's reconsideration of his disability claim. (Tr. 311, 312-16.) The radiologic studies of his lumbosacral spine demonstrated “[m]oderate old L1 compression fracture, not seen on prior exam” and “[s]table mild degenerative disk disease at ¶ 1-L2 and L5-S1 with face arthropathy at ¶ 5-S1.” (Tr. 312.) The radiologic studies of his thoracic spine demonstrated “[m]ild spondylosis.” (Tr. 316.)

         d. Charles Wolfe, M.D.

         On January 29, 2013, State agency nonexamining medical consultant Charles Wolfe, M.D., reviewed Mr. Sullivan's medical records at reconsideration. (Tr. 128-30.) Dr. Wolfe assessed that Mr. Sullivan was capable of medium work[21] with postural limitations in climbing and stooping.[22] (Tr. 129.)

         e. Peter M. Schosheim, M.D.

         On October 1, 2013, orthopedist medical expert Peter M. Schosheim, M.D., appeared at the continued administrative hearing and provided expert testimony. (Tr. 32-39.) Dr. Schosheim testified that he reviewed Mr. Sullivan's medical records, including the most recent radiologic studies from September 12, 2012. (Tr. 34.) Mr. Schosheim summarized his review and testified in relevant part as follows:

The records indicate even prior to the onset date of August 1, 2010, that the claimant was suffering from mechanical back pain, meaning severe lower back pain with some minimal leg pain but the majority of the issues were in his lower back. He had plain x-rays done back in 2010[23] that did show an old compression fracture at ¶ 1. There was a workup done to determine what the cause of the L1 compression fracture and I don't believe they ever found any specific reason, i.e., there was no, thank God, any tumor or any kind of severe osteoporosis that was causing him to have a fracture.[24] The claimant also had MRI scans of his lumbar spine in July of 2009, which showed that he had degenerative disc disease, L1-L2, L4-L5, L5-S1. There was also mild arthritic changes of facet joint indicating mild arthritis as well as the degenerative disc disease. . . . In conclusion, we have an individual who on physical examination has decreased range of motion for his back, no significant neurologic findings of strength deficits, reflux [sic] changes, or sensory changes in his lower extremities with a diagnosis of an old compression fracture and degenerative disc disease of his lumbar spine. Your honor, based on these diagnos[es], the claimant would not meet or equal a listing with regard to Social Security. . . . That being said, his residual functional capacity has been significantly impaired based on the objective findings in this record.

(Tr. 35-36.) Dr. Schosheim assessed that Mr. Sullivan could engage in sedentary work[25] with postural limitations in climbing, balancing, kneeling, crouching, crawling and stooping.[26] (Tr. 36.) He further assessed that Mr. Sullivan would need to avoid all exposure to vibration, hazardous machinery and unprotected heights. (Id.)

         B. Issues Presented

         Mr. Sullivan asserts five arguments in support of an immediate award of benefits, or in the alternative reversing and remanding his case, as follows: (1) the ALJ erred in her duty to develop the record; (2) the ALJ failed to conduct a full and fair hearing; (3) the ALJ erred by not including certain nonexertional limitations in her RFC determination; (4) the ALJ provided an inaccurate and incomplete hypothetical question to the VE; and (5) the ALJ's credibility findings are not closely and affirmatively linked to substantial evidence. The Court will address each argument in turn.

         1. Duty to Develop Record

         Mr. Sullivan argues the ALJ failed in her duty to develop the record as to three issues. First, Mr. Sullivan contends that the ALJ's duty to develop the record was triggered when she recognized that an intake form documenting Dr. Raj's physical exam of Mr. Sullivan was missing from Dr. Raj's treatment notes.[27] (Doc. 21 at 9, Doc. 28 at 1-2.) Second, Mr. Sullivan contends that the ALJ's duty to develop the record was triggered when she received the results of a DEXAscan bone density test because it explicitly identified the presence of a spinal cord injury. (Doc. 21 at 9, Doc. 28 at 2-3.) Third, Mr. Sullivan contends that his combined and rare medical symptoms supported the presence of an underlying systemic problem such that it was incumbent upon the ALJ to develop the record before she could make a factually correct and impartial ruling. (Doc. 21 at 14-18, Doc. 28 at 7-8.) The Commissioner asserts that the ALJ did not fail in her duty to fully develop the record because claimant's counsel represented that the record was complete and ready for adjudication, that Mr. Sullivan has failed to show how any alleged missing records were a material issue to the disability determination decision, and that it is not the ALJ's role to diagnose unknown medical conditions that are elusive even to Mr. Sullivan's own healthcare providers. (Doc. 24 at 10-12, 16.)

         a. Dr. Raj's Treatment Notes

         The ALJ did not fail in her duty to develop the record by not recontacting Dr. Raj. Here, Dr. Raj diagnosed Mr. Sullivan with severe mechanical back pain, tight hamstrings, and significant facet arthropathy. (Doc. 351.) He opined that Mr. Sullivan's symptoms were likely preventing him from being capable of gainful employment, but that if his strength and flexibility were worked on and improved, he would likely be able to return to gainful employment. (Tr. 351.) As such, he opined on an issue reserved to the Commissioner. See 20 C.F.R. §§ 404.1527(d)(1) and 416.927(d)(1) (“We are responsible for making the determination or decision about whether you meet the statutory definition of disability. . . . A statement by a medical source that you are “disabled” or “unable to work” does not mean that we will determine that you are disabled.”) When a treating source opines on an issue reserved for the Commissioner, the rules require that an ALJ will make every reasonable effort to recontact treating sources for clarification when “the bases for such opinions are not clear.” SSR 96-5, 1996 WL 374183, at *2. Further, if the case record contains an opinion from a medical source on an issue reserved to the Commissioner, the adjudicator must evaluate all the evidence in the case record to determine the extent to which the opinion is supported by the record. Id. Tenth Circuit case law instructs that an ALJ need only recontact a treating source for clarification “[i]f evidence from the claimant's treating doctor is inadequate to determine if the claimant is disabled.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir 2004); see also White v. Barnhart, 298 F.3d 903, 908 (10th Cir. 2001) (the ALJ's duty to recontact the treating physician is triggered where the information received is inadequate and so incomplete that it cannot be considered). Finally, under the current regulations, evidence, including medical opinions, is considered insufficient when it does not contain all the information needed to make a determination or a decision whether a claimant is disabled. 20 C.F.R. §§ 404.1520b and 416.920b. In that case, an ALJ may recontact a treating/medical source, inter alia, if after weighing all the evidence she cannot reach a conclusion about whether a claimant is disabled. 20 C.F.R. §§ 404.1520b(c)(1) and 416.920b(c)(1).

         Applying the relevant rules, regulations and law here, the ALJ did not have a duty to recontact Dr. Raj. Here, the ALJ stated her understanding of the bases for Dr. Raj's opinion; i.e., he found the MRI findings to be more severe than the radiologists who interpreted them, and Dr. Raj believed Mr. Sullivan's subjective reports of disabling pain which she found to be not entirely credible. (Tr. 23.) As such, the ALJ was under no obligation to recontact Dr. Raj for clarification. SSR 96-5, 1996 WL 374183, at *2. The ALJ also evaluated all the evidence in the case record, as she was required to do, and determined that Dr. Raj's opinion was not supported by the record as a whole (Tr. 20-24). Id. Finally, although the ALJ noted the lack of exam results or any specific findings regarding Mr. Sullivan's functional abilities in Dr. Raj's treatment notes, she nonetheless had all the information she needed from Dr. Raj to make a determination that Mr. Sullivan ...

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