Ackerman v. Commissioner, Social Security Administration

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Regina M. Rodriguez
Civil Action No. 1:23-cv-03447-RMR
J.A.,1
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant.
ORDER
This civil action arises under Title II of the Social Security Act (the “Act”), 42 U.S.C.
§§ 401–33, for review of the final decision of the Commissioner of the Social Security
Administration, denying Plaintiff’s application for Disability Insurance Benefits (“DIB”). For
the reasons stated below, the Court AFFIRMS the final decision of the Commissioner.
I. 	BACKGROUND
Plaintiff is a 61-year-old woman who alleges that she became disabled on July 9,
2016 	as 	a 	result 	of 	fibromyalgia, 	ulcerative 	colitis, 	chronic 	migraines, 	arthritis,
degenerative disc disease, severe depression, anxiety, and auto immune disease. See
ECF No. 8 at (Administrative Record) [hereinafter R. 140, 320].2 She was previously
1 Pursuant to D.C.COLO.LAPR 5.2(b), this order identifies the Plaintiff by initials only.
2 When citing to the Administrative Record (“R.”), the Court uses the page number found in the bottom right-
hand corner of the page. For all other documents, the court cites to the document and page number
generated by the Electronic Court Filing (“ECF”) system.
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employed as an office manager. Id. at 36. Plaintiff applied for DIB under Title II of the Act
on October 12, 2018. Id. at 320. Plaintiff’s application was denied on initial review and on
reconsideration. Id. at 173-77, 180-85. Plaintiff then requested a hearing before an
Administrative Law Judge (“ALJ”). Id. at 191-92. The hearing was held February 10, 2023.
Id. at 45-93. The ALJ heard testimony from Plaintiff and Vocational Expert Donna
Toogood. Id. Following the hearing, the ALJ issued a decision denying Plaintiff’s
application for DIB. Id. at 14-44. As to Plaintiff’s residual functional capacity, the ALJ found
that:
[T]hrough the date last insured, the claimant had the residual functional
capacity to perform the full exertional range of light work, as defined in 20
CFR 404.1567(b), including the ability to lift and/or carry twenty pounds
occasionally and ten pounds frequently, subject to the following exceptions:
She could frequently balance and climb ramps and stairs. She could
occasionally stoop, kneel, crouch, crawl, and climb ladders, ropes, or
scaffolds.
Id. at 26. The ALJ concluded that Plaintiff “was not under a disability within the meaning
of the [Act] from the adjusted alleged onset date of July 14, 2016, through the date last
insured.” Id. at 18-19.
The Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s
decision final. Id. at 14; see also Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003)
(“The Appeals Council denied review, making the ALJ’s decision the Commissioner’s final
decision for purposes of review.”). Plaintiff sought judicial review of the Commissioner’s
final decision on March 20, 2024, invoking this Court’s jurisdiction under 42 U.S.C. §§
405(g), 1383(c)(3).
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II. 	LEGAL STANDARDS
A United States citizen or national is eligible for DIB benefits under the Act if she
“is insured for disability insurance benefits”; “has not attained retirement age”; “has filed
application for disability insurance benefits”; and “is under a disability,” as defined in the
Act. 42 U.S.C. § 423(a)(1), (d). For purposes of DIB, a claimant must prove she was
disabled prior to the date last insured. Flaherty v. Astrue, 515 F.3d 1067, 1069 (10th Cir.
2007) (citing Henrie v. United States Dep’t Health & Hum. Servs., 13 F.3d 359, 360 (10th
Cir. 1993)).
An individual is determined to be under a “disability,” as defined in the Act, if her
“physical or mental impairment or impairments are of such severity that [s]he is not only
unable to do [her] previous work but cannot, considering [her] age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy[.]” 42 U.S.C. § 423(d)(2)(A).
In determining whether an individual’s physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility . . . , the Commissioner of Social
Security 	shall 	consider 	the 	combined 	effect 	of 	all 	of 	the 	individual’s
impairments without regard to whether any such impairment, if considered
separately, would be of such severity. If the Commissioner of Social
Security does find a medically severe combination of impairments, the
combined impact of the impairments shall be considered throughout the
disability determination process.
Id. § 423(d)(2)(B). Further, there is a “duration requirement” for the disabling
impairment, that is, it must “ha[ve] lasted or can be expected to last for a continuous
period of not less than twelve months.” Id. § 423(d)(1)(A); Barnhart v. Walton, 535 U.S.
212, 214–15 (2002) (“[T]he ‘inability’ (to engage in any substantial gainful activity) must
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last, or must be expected to last, for at least 12 months.”) (emphasis in original); see also
20 C.F.R. § 404.1509.
The Commissioner “has established a five-step sequential evaluation process for
determining whether a claimant is disabled” under the Act. Bowen v. Yuckert, 482 U.S.
137, 140 (1987); 20 C.F.R. § 416.920(a)(4). The process involves the following five
inquiries:
1. 	Whether 	the 	claimant 	is 	“doing 	substantial 	gainful 	activity,” 	20 	C.F.R.
§ 416.920(a)(4)(i);
2. 	Whether the claimant has a “severe medically determinable physical or mental
impairment 	that 	meets 	the 	duration 	requirement” 	or 	a 	“combination 	of
impairments 	that 	is 	severe 	and 	meets 	the 	duration 	requirement,” 	id.
§ 416.920(a)(4)(ii);
3. 	Whether the claimant has “an impairment(s) that meets or equals one of [the]
listings in” Title 20, Chapter III, Part 404, Subpart P, Appendix 1 of the Code of
Federal 	Regulations, 	and 	that 	“meets 	the 	duration 	requirement,” 	id.
§ 416.920(a)(4)(iii);
4. 	Whether the claimant has the residual functional capacity (“RFC” or “residual
functional capacity”) to “do [her] past relevant work,” id. § 416.920(a)(4)(iv); and
5. 	Whether, considering the claimant’s RFC and her “age, education, and work
experience,” 	the 	claimant 	“can 	make 	an 	adjustment 	to 	other 	work,” 	id.
§ 416.920(a)(4)(v), that “exists in significant numbers in the national economy,”
id. § 416.960(c)(1)–(2).
See also, e.g., Williams v. Bowen, 844 F.2d 748, 750–52 (10th Cir. 1988) (describing the
five steps). “The claimant bears the burden of proof through step four of the analysis[,]”
while “[a]t step five, the burden shifts to the [Commissioner] to show that a claimant can
perform work that exists in the national economy.” Neilson v. Sullivan, 992 F.2d 1118,
1120 (10th Cir. 1993). “If a determination can be made at any of the steps that a claimant
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is or is not disabled, evaluation under a subsequent step is not necessary.” Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Williams, 844 F.2d at 750).
“Judicial review of the [Commissioner’s] decision is limited to a determination
whether [his] factual findings are supported by substantial evidence and whether []he
applied the correct legal standards.” Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th Cir.
1994). “Substantial evidence is more than a mere scintilla and is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quoting Grogan v. Barnhart, 399 F.3d 1257,
1261 (10th Cir. 2005)). “Evidence 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). “[I]n making this determination, [the Court] cannot reweigh the evidence
or substitute [its] judgment for the administrative law judge’s.” Smith v. Colvin, 821 F.3d
1264, 1266 (10th Cir. 2016).
III. 	ANALYSIS
Plaintiff raises a single issue on appeal, arguing that “the ALJ’s finding that Dr.
[Aaron] Fields’s opinions were not persuasive is not supported by law or substantial
evidence.” ECF No. 9 at 4. Plaintiff asserts that if Dr. Field’s opinions had been properly
considered, it would have justified a finding of disability. For the reasons explained below,
the Court finds no error in the ALJ’s assessment of Dr. Fields’s opinion.
An ALJ has a duty to “give consideration to all the medical opinions in the record,”
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012), and must articulate how
persuasive she finds each medical source opinion. 20 C.F.R. §§ 404.1520c, 416.920c.
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The persuasiveness of a medical source’s opinion is evaluated using five factors:
(1) supportability (2) consistency, (3) relationship with the claimant, (4) specialization, and
(5) other factors. See 20 C.R.F. §§ 404.1520c(c), 416.920c(c). The most important factors
are supportability and consistency. § 416.920c(a). Social Security regulations do not
“prescribe the depth at which the ALJ must discuss” the factors of supportability and
consistency. Harp v. Kijakazi, No. CV 1:21-0275 KRS, 2022 WL 2341740, at *6 (D.N.M.
June 29, 2022). But at a minimum, the ALJ must “provide an explanation that allows the
reviewing court to follow [her] reasoning and communicates how [s]he considered the
factors of consistency and supportability for each medical source’s opinions.” Zambrano
v. Kijakazi, No. CV 1:20-1356 KRS, 2022 WL 1746765, at *5 (D.N.M. May 31, 2022).
A. 	Dr. Fields’s Medical Opinion
Dr. Aaron Fields, D.O., is one of Plaintiff’s treatment providers. Plaintiff established
care with Dr. Fields in November 2018 and saw him again in December 2018. In his
Treating Source Statement, dated January 30, 2023, Dr. Fields “opined that [Plaintiff]
would need to take unscheduled restroom breaks, about 10-15 times, during a normal
workday. Dr. Fields found [Plaintiff] incapable of even low stress work. [Plaintiff] would
need to lie down every couple hours during the workday. She would miss more than four
days per month. [Plaintiff] should not work due to the severity of her impairments,
including her lack of colon.” R. at 33 (citing R. at 3139-40). The ALJ found Dr. Fields’s
opinion was not supported by his own findings and was inconsistent with the overall
medical record, and therefore was not persuasive.
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The 	ALJ’s 	order 	indicates 	that 	she 	considered 	the 	medical 	opinions 	and 	prior
administrative 	medical 	findings 	in 	accordance 	with 	the 	requirements 	of 	20 	CFR
404.1520c. After fully considering the medical opinions and prior administrative medical
findings, the ALJ assessed the persuasiveness of Dr. Fields’s opinion as follows:
The undersigned finds Dr. Fields’s opinion not persuasive. Dr. Fields
supported his opinion with reference to his treatment since November 2018,
noting the claimant’s lack of colon and incontinence. However, Dr. Fields
did not treat the claimant for the majority of the period under review. He did
not begin treating the claimant until November 2018, and saw her twice
during the relevant period under review, with visits in November and
December 2018. As such, he had a limited treating relationship with the
claimant throughout the relevant period under review. At neither of those
visits did the claimant make any complaints of a frequent need to use the
bathroom, or of incontinence (B6F/151-157; B16F/241-246). In fact, when
establishing care with him in November 2018, she did want him to know she
had no colon, and did not feel like she was absorbing nutrients and sought
assistance in supplements. She also noted that because she did not have
a colon, she became very dehydrated when she became ill (B6F/151). As
discussed in detail earlier, the claimant was not receiving any regular care
during the period under review for the ulcerative colitis. Again, when in
Oregon to assist her mother in August 2016, she returned to her former GI
provider there, seeing PA Glivinski. He noted she had not been seen since
August 2012. She was sent for a pouchoscopy, which showed no significant
issue (B6F/54, 58-59; B21F/1-7). None of these findings supports Dr. Field’s
statements or findings, and his statements are not supported by his own
findings or the overall record. Similarly, the evidence of the claimant’s good
response to treatment for her spinal, fibromyalgia, and migraine issues is
inconsistent with Dr. Fields’s opinion. For example, the claimant’s migraines
and ulcerative colitis responded well to treatment, which is inconsistent with
finding she would miss more than four days per month due to her
symptoms. Additionally, the claimant’s physical exams were grossly normal,
which is more consistent with finding she could perform a range of light work
as assessed in the residual functional capacity. For these reasons, the
undersigned finds Dr. Fields’s opinion not persuasive.
Id.
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B. 	Supportability
The first factor the ALJ must consider when evaluating the persuasiveness of a
medical opinion is supportability. “Supportability” examines how closely connected a
medical opinion is to the evidence and the medical source’s explanations: “The more
relevant the objective medical evidence and supporting explanations presented by a
medical source are to support his or her medical opinion(s) or prior administrative medical
finding(s), the more persuasive the medical opinions or prior administrative medical
finding(s) will be.” § 416.920c(c)(1). “Stated differently, a supportability inquiry examines
how well a medical source supported and explained their opinion.” S.E.H. v. Kijakazi, No.
21-cv-01845-CMA, 2022 WL 6730905, *3 (D. Colo. Oct. 11, 2022) (citing Vellone v. Saul,
1:20-cv-00261 (RA) (KHP), 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021).
When finding that Dr. Fields’s opinion was not supported by his own examinations,
the ALJ noted that Dr. Fields only treated Plaintiff twice during the relevant period and
none of the information gleaned from those visits supports his opinion regarding Plaintiff’s
incontinence or frequent need to use the bathroom. Specifically, while Plaintiff advised
Dr. Fields that she had no colon, she only complained that she did not feel she was
absorbing nutrients and sought assistance with supplements; there is no evidence that
she complained about a frequent need to use the bathroom or of incontinence. Plaintiff
contends that the fact Dr. Fields only saw Plaintiff twice before the date last insured does
not diminish the persuasiveness of his opinion, particularly because the ALJ found the
opinions of Dr. McCormack and Dr. Coleman to be persuasive, even though neither of
them ever saw Plaintiff. ECF No. 9 at 6-7. And Plaintiff argues the lack of reference to
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incontinence or frequent defecation does not contradict Dr. Fields’s opinions, because
the absence of evidence is not substantial evidence contradicting a medical opinion, and
there is other evidence in the record documenting the number of bathroom trips Plaintiff
requires. Id.
The 	Court 	finds 	that 	there 	is 	substantial 	evidence 	to 	support 	the 	ALJ’s
determination 	that 	Dr. 	Fields’s 	opinion 	of 	Plaintiff’s 	physical 	limitations 	was 	not
supportable by his own examination findings. See Lenoble v. Kijakazi, No. 22-cv-00094-
MEH, 2022 WL 16855693, at *7 (D. Colo. Nov. 10, 2022) (court must “determine whether
[the ALJ’s assessment of persuasiveness] is supported by such relevant record evidence
as a reasonable mind might accept as adequate to support a conclusion”) (citation and
internal quotation marks omitted). Plaintiff does not dispute that she did not complain of
incontinence or frequent bowel movements during either of her visits with Dr. Fields.
Indeed, she specifically denied GI issues. R. at 957. Thus, the Court finds no error with
the ALJ’s finding that Dr. Fields’s opinion that Plaintiff would require 10-15 bathroom
breaks during a normal workday was unsupported by the evidence. Moreover, the record
does not show that the ALJ ignored the probative contrary evidence, and only selectively
chose the finding supporting her determination. Rather, the ALJ’s reasoning for finding
Dr. Field’s opinion unpersuasive—and that the contrary opinions of Dr. McCormack and
Dr. Coleman were persuasive—constitutes an appropriate reconciliation of conflicting
medical opinions of record. D.J. v. Kijakazi, No. 21-cv-02864-REB, 2022 WL 1663120, at
*4 (D. Colo. May 25, 2022) (“It is not cherry picking for the ALJ to discharge his duty and
prerogative to consider and reconcile conflicts in the evidence, particularly conflicts
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between the medical opinions of record.”) (citing Reyes v. Bowen, 845 F.2d 242, 245
(10th Cir. 1988); Ghini v. Colvin, 82 F. Supp. 3d 1224, 1233 (D. Colo. 2015)).
To be sure, the record contains some evidence that Plaintiff’s conditions may
require frequent bathroom trips. However, the fact that the evidence could support
another conclusion does not necessarily mean that the ALJ erred in her analysis. See
Allman, 813 F.3d at 1333 (recognizing the ALJ is entitled to resolve evidentiary conflicts
where the record “contains support for both the notion that [claimant] has extreme
deficiencies in concentration, persistence, and pace, and the notion that his mental
limitations are not that severe”); Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)
(noting that “the ALJ is entitled to resolve any conflicts in the record”); see also Zoltanski
v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2004) (stating that courts may not “displace the
agency’s choice between two fairly conflicting views”).
C. 	Consistency
Next, the ALJ must consider the consistency of the opinion. “Consistency”
compares a medical opinion or prior administrative medical findings to the evidence: “The
more consistent a medical opinion(s) or prior administrative medical finding(s) is with the
evidence from other medical sources and nonmedical sources in the claim, the more
persuasive the medical opinion(s) or prior administrative medical findings(s) will be.” §
416.920c(c)(2).
In determining that Dr. Fields’s opinion was not consistent with the other record
evidence, the ALJ noted that Plaintiff’s physical exams were grossly normal, she
responded well to treatment for her spinal, fibromyalgia, ulcerative colitis, and migraine
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issues, she was not receiving regular care for her ulcerative colitis during the period under
review and, and her activities included lengthy travel to Oregon during the relevant period.
The ALJ’s determination that Dr. Fields’s opinion was not consistent with the
medical record is supported by substantial evidence. See Lenoble, 2022 WL 16855693,
at *7; Smallwood v. Kijakazi, Civ. No. 21-446 GBW, 2022 WL 4598499, at *3 (D.N.M.
Sept. 30, 2022) (collecting cases and noting that “courts have affirmed ‘minimalist’
supportability and consistency findings as long as the ALJ points to some evidence in
such a way that the Court can follow the ALJ’s reasoning.”). As set forth in the ALJ’s
decision, 	the 	medical 	record 	contains 	contradictory 	evidence, 	such 	as 	Plaintiff’s
pouchoscopy results, grossly normal physical exams, and that her ulcerative colitis
responded well to treatment. Plaintiff is, in essence, improperly asking this court to
reweigh the medical evidence. See Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175
(10th Cir. 2014) (this court “may neither reweigh the evidence nor substitute [its] judgment
for that of the agency”) (citations omitted); Zoltanski, 372 F.3d at 1200 (the court may not
“displace the Commissioner’s choice between two fairly conflicting views”).
By expressly citing record evidence with which the ALJ determined Dr. Fields’s
opinion to be inconsistent, the ALJ sufficiently evaluated the consistency of Dr. Fields’s
opinion as compared to the medical record as a whole and the Court thus finds no error
in the conclusion that Dr. Fields’s opinion was not persuasive. See Pearson, WL
2549214, at *4 (concluding that the ALJ properly considered the consistency of the
medical source opinion where the ALJ found that the physician’s opinion was inconsistent
with the record and cited record evidence in support of that finding); Miles v. Saul, No.
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20-CV-1456-WJM, 2021 WL 3076846, at *5 (D. Colo. July 21, 2021) (inconsistencies in
medical sources’ opinions “further support[ed] the ALJ’s conclusion that their opinions
were unpersuasive”).
In sum, the Court finds no error in the ALJ’s assessment of Dr. Fields’s opinion.
The ALJ explained why he found Dr. Fields’s opinions unpersuasive, focusing on the
opinion’s supportability and consistency with the record—nothing more is required. “Given
the nature and limits of [the Court’s] review, and given as well the detailed reasons offered
by the ALJ for rejecting Dr. [Fields’s] opinion, we do not second-guess h[er] decision.”
White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001).
IV. 	CONCLUSION
For the reasons set forth above, the Court AFFIRMS the final decision of the
Commissioner.
DATED: March 4, 2025
BY THE COURT:
_____________________________
REGINA M. RODRIGUEZ
United States District Judge
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