Razo v. Colvin
663 F. App'x 710
| 10th Cir. | 2016Background
- Andrew Razo (b.1965) applied for Social Security disability and SSI, alleging physical and mental impairments (upper-extremity neuropathies, post‑surgical limitations, morbid obesity, pain, and psychological issues), with an alleged onset date of August 31, 2005.
- An ALJ issued an unfavorable decision in 2010 that was remanded; after additional records and four more hearings, the ALJ again denied benefits on November 9, 2012, finding Razo unable to perform past work but capable of other work (step five), and the Appeals Council and district court affirmed.
- Key medical evidence: treating surgeon Dr. Mitchell Fremling’s October 2009 statement showing severe upper‑extremity limitations; consultative examiner Dr. Kristen Graesser (Feb. 2010) with milder limitations and greater lifting capacity; non‑examining expert Dr. Gerald Greenberg who testified to a capacity for modified sedentary work and frequent use of right arm/fingers.
- Psychological evidence: impartial psychological expert Dr. Margaret Moore testified to moderate social limitations, issues tied to past opiate substance abuse (in remission since June 2011), but ability to understand and carry out instructions; ALJ limited Razo to simple instructions in the RFC.
- ALJ gave little weight to Dr. Fremling (treating) because his opinion conflicted with other evidence, gave substantial weight to Dr. Graesser, and greatest weight to Dr. Greenberg; ALJ found pain complaints not fully credible and concluded obesity and appointment needs did not render Razo disabled.
- The ALJ relied on a vocational expert (VE) to identify three jobs (small‑products assembler, addresser, final assembler) compatible with the RFC; Razo appealed asserting improper medical‑opinion weighting, omission of nonexertional limitations from the RFC, and reliance on VE testimony inconsistent with the DOT.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Weight to treating physician opinion | Razo: ALJ failed to give controlling weight to Dr. Fremling’s restrictions on upper extremities | Commissioner: ALJ permissibly discounted Fremling as inconsistent with other medical evidence and relied on better‑supported opinions | Affirmed: ALJ provided specific, legitimate reasons and properly assigned weight to opinions |
| Consideration of nonexertional impairments (social functioning, obesity, pain, appointment absences) | Razo: ALJ omitted social/obesity/pain limits and need for frequent appointments from RFC | Commissioner: ALJ considered these, credited remission of substance abuse, limited RFC to simple tasks, found obesity effects subsumed in other findings, and found pain testimony not fully credible | Affirmed: ALJ adequately evaluated and incorporated or explained rejection of these limitations |
| Reliance on vocational expert & DOT reconciliation | Razo: VE testimony conflicted with DOT and hypothetical omitted limitations | Commissioner: ALJ reconciled VE testimony with DOT and posed hypotheticals reflecting all ALJ‑found limitations; jobs required frequent manipulation but RFC allowed modified use | Affirmed: VE testimony properly relied upon and hypothetical sufficient |
| Post hoc application of Medical‑Vocational Guidelines (grids) | Razo: If grids applied at later age he would be disabled | Commissioner: Courts do not decide disability in first instance; agency made the factual findings | Affirmed: Court declines to apply grids for the first time; review limited to agency decision |
Key Cases Cited
- Wilson v. Astrue, 602 F.3d 1136 (10th Cir. 2010) (disability requires inability to engage in substantial gainful activity for at least 12 months)
- Fischer‑Ross v. Barnhart, 431 F.3d 729 (10th Cir. 2005) (appellate review: de novo for legal error, substantial‑evidence for factual findings)
- Flaherty v. Astrue, 515 F.3d 1067 (10th Cir. 2007) (definition of substantial evidence)
- Knight ex rel. P.K. v. Colvin, 756 F.3d 1171 (10th Cir. 2014) (treating‑physician opinion controlling if supported and consistent; ALJ must explain weight given)
- Allman v. Colvin, 813 F.3d 1326 (10th Cir. 2016) (ALJ’s treating‑opinion analysis steps described)
- Oldham v. Astrue, 509 F.3d 1254 (10th Cir. 2007) (ALJ need not explicitly discuss every §404.1527(c) factor; must give good reasons for weight assigned)
- Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987) (three‑part test for evaluating complaints of disabling pain)
- Barnett v. Apfel, 231 F.3d 687 (10th Cir. 2000) (hypothetical to VE must include all limitations the ALJ finds credible)