Olson v. Berryhill
689 F. App'x 628
| 10th Cir. | 2017Background
- Tony L. Olson, former truck driver/union organizer, applied in 2010 for DIB and SSI claiming multiple impairments including cervical fracture (after fainting and falling), cardiac issues, pulmonary problems, migraines, vision difficulty, obesity, and hearing loss.
- An ALJ initially found him not disabled in 2012 after hearing testimony including an independent neurologist who described his neck as stable; the Appeals Council remanded to consider cardiac impairments.
- On remand the ALJ took testimony from cardiology and pulmonary consultative examiners, Olson, and a vocational expert; consultative doctors described only minimal cardiac compromise and no pulmonary disease despite reduced breathing capacity.
- The ALJ found several severe impairments but assigned an RFC for light work with restrictions (reaching, ambulation, noise/temperature/machinery exposure, and social interaction limits), relying in part on state-agency reviewer Dr. Timmerman and independent examiners.
- The ALJ gave limited weight to Olson’s treating neurologist Dr. Stepp only insofar as Stepp’s opinion that Olson was "permanently disabled" was conclusory on the ultimate issue of disability and unsupported by specific functional limitations.
- The ALJ also found Olson’s subjective symptom testimony partly not credible based on activities (managing a bar post-onset, renewing a commercial driver’s license without restriction) and a DIU investigation; concluded Olson could perform other jobs per the vocational expert; Appeals Council denied review and the district court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Treating-physician weight | Dr. Stepp’s opinion that Olson is disabled should control | ALJ properly discounted Stepp’s conclusory disability opinion because it lacked specific functional findings and conflicted with other evidence | ALJ did not err; treating physician’s conclusory disability opinion is not controlling |
| Credibility of subjective symptoms | Olson’s testimony about falls, use of wheelchair/oxygen, and visual problems should be credited | ALJ permissibly found testimony exaggerated given objective records and lifestyle/activity evidence | Credibility finding upheld as supported by substantial evidence |
| RFC and reliance on non-treating examiners | RFC should reflect more restrictive limitations; treating opinions show greater restrictions | RFC based on substantial evidence including consultative exams, state-agency assessment, and VE testimony | RFC and step‑5 finding that jobs exist in national economy affirmed |
| Waiver/forfeiture of new arguments on appeal | Various new claims (DIU illegality, ALJ bias, malpractice by examiners, ineffective assistance) should be considered | Arguments not raised below are forfeited; no plain-error argument made | New arguments waived; court declines to consider them |
Key Cases Cited
- Wall v. Astrue, 561 F.3d 1048 (10th Cir. 2009) (standard for appellate review of ALJ decisions)
- Wilson v. Astrue, 602 F.3d 1136 (10th Cir. 2010) (definition of substantial evidence)
- Allman v. Colvin, 813 F.3d 1326 (10th Cir. 2016) (treating-physician controlling-weight rule)
- Pisciotta v. Astrue, 500 F.3d 1074 (10th Cir. 2007) (ALJ must assign weight if treating opinion not controlling)
- Newbold v. Colvin, 718 F.3d 1257 (10th Cir. 2013) (credibility determinations reviewed for substantial evidence)
- Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) (forfeiture and plain-error review on appeal)