Nelson v. Colvin, 2:12-cv-00410

Background

Plaintiff Lisa Nelson applied for Disability Insurance Benefits (DIB) alleging onset January 3, 2007; application denied administratively and by an ALJ after an April 20, 2010 hearing; Appeals Council denied review, making the ALJ decision final.
ALJ found Plaintiff not disabled at step five, concluding she could return to past relevant work as a cashier.
Plaintiff alleged multiple physical and mental impairments and pointed to medical opinions (Drs. Johnson, Fidler and therapists Clement and Limberakis) and her own testimony to show greater limitation.
Administrative record included objective medical evidence, IQ testing (full scale IQ of 67 noted by Plaintiff), and treatment records showing treatable conditions and limited conservative care.
Plaintiff appealed, arguing errors at step three (listings), in weighing medical opinions, in credibility assessment, at step four (past relevant work), and in the vocational expert (VE) hypothetical.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Step Three — Listings (12.04, 12.06, 12.05(C))	ALJ erred by not finding listings met/equaled (esp. 12.04, 12.06; alternatively 12.05(C) based on IQ)	Substantial evidence supports ALJ’s finding listings not met; 12.05(C) not raised administratively and Plaintiff fails to show required elements beyond IQ score	Denied: ALJ did not err; record supports conclusion and 12.05(C) argument inadequately developed and not preserved administratively
Weight to Medical Opinions (treating and other sources)	ALJ improperly discounted opinions of Drs. Johnson, Fidler and therapists Clement, Limberakis	ALJ properly applied factors: limited treatment contacts, lack of supporting progress notes, inconsistencies with other evidence, and non-acceptable source status for therapists	Denied: ALJ gave proper, legally sufficient reasons for discounting these opinions
Credibility of Plaintiff’s subjective complaints	ALJ failed to credit Plaintiff’s testimony about severe limitations	ALJ relied on objective medical evidence, treatability/conservative treatment, and other proper factors under SSR 96-7p/20 C.F.R. §404.1529	Denied: ALJ credibility finding supported by substantial evidence and properly linked to record
Step Four / VE Hypothetical (past work as cashier)	ALJ’s RFC omitted limitations from discounted opinions and testimony; VE hypothetical incomplete	RFC need not include unsupported limitations; VE hypothetical matched ALJ’s RFC and elicited whether such RFC permitted cashier work	Denied: ALJ’s step-four analysis and VE hypothetical were adequate; ALJ reasonably concluded Plaintiff could perform past work

Key Cases Cited

Lax v. Astrue, 489 F.3d 1080 (10th Cir. 2007) (standard for substantial evidence review and treating-source burdens)
Madrid v. Barnhart, 447 F.3d 788 (10th Cir. 2006) (reviewer may not reweigh evidence)
Sullivan v. Zebley, 493 U.S. 521 (1990) (claimant must meet all listing criteria to establish disability at step three)
Fischer-Ross v. Barnhart, 431 F.3d 729 (10th Cir. 2005) (burden to present evidence meeting or equaling listings)
Oldham v. Astrue, 509 F.3d 1254 (10th Cir. 2007) (ALJ need not discuss every regulatory factor but decision must permit meaningful review)
Langley v. Barnhart, 373 F.3d 1116 (10th Cir. 2004) (requirements for treating-physician opinion weight and “good reasons” rule)
Kepler v. Chater, 68 F.3d 387 (10th Cir. 1995) (credibility determinations are for the factfinder and will be upheld if supported by substantial evidence)
Qualls v. Apfel, 206 F.3d 1368 (10th Cir. 2000) (no formalistic recitation required for credibility findings)
Doyal v. Barnhart, 331 F.3d 758 (10th Cir. 2003) (use of VE testimony to establish ability to perform past work is acceptable)
Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996) (requirements for step-four findings related to RFC and past work)