Wixom ex rel. Wixom v. Colvin

HELEN WIXOM on behalf ofKenneth M. Wixom, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissionerof Social Security, Defendant.

Civil Action No 15-cv-02788-RBJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

November 22, 2016

Judge R. Brooke Jackson

ORDER

This matter is before the Court on review of the Commissioner's decision denying deceased claimant Kenneth M. Wixom's application for Disability Insurance Benefits ("DIB"). Jurisdiction is proper under 42 U.S.C. § 405(g). For the reasons explained below, the Court AFFIRMS the Commissioner's decision.

I. STANDARD OF REVIEW

This appeal is based upon the administrative record and the parties' briefs. In reviewing a final decision by the Commissioner, the role of the District Court is to examine the record and determine whether it "contains substantial evidence to support the [Commissioner's] decision and whether the [Commissioner] applied the correct legal standards." Rickets v. Apfel, 16 F. Supp. 2d 1280, 1287 (D. Colo. 1998). A decision cannot be based on substantial evidence if it is "overwhelmed by other evidence in the record." Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Substantial evidence requires "more than a scintilla, but less than a preponderance." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Evidence is not substantial if it "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Regarding the application of the law, "reversal may be appropriate when the [Social Security Administration] Commissioner either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards." Springer v. Astrue, No. 11-cv-02606, 2013 WL 491923, at *5 (D. Colo. Feb. 7, 2013) (internal citation omitted).

II. BACKGROUND

Mr. Wixom was born on August 24, 1964, but tragically passed away in a motor vehicle accident on March 28th, 2015. R. 28, 36. Before his death, Mr. Wixom resided in Peyton, Colorado. R. 144. He held a B.S. in engineering. R. 41. His past employment included work as a maintenance mechanic, an operations manager, and an installer in the telecommunications industry. R. 27. He had not held substantial gainful employment from 2008 until his untimely death. R. 41, 144.

Before he passed away, Mr. Wixom had a long history of chronic pain. R. 24. His relevant medical history begins in August 2010 when Mr. Wixom reported that he had an ongoing back condition. R. 24, 206-225. Medical tests confirmed in October of 2010 that Mr. Wixom displayed signs of early degenerative disc disease, although without significant canal or foraminal stenosis. Id. Mr. Wixom subsequently received steroid injections, which allegedly improved some of his symptoms. Id. As a result, he did not subsequently receive additional care from his treating physician, Dr. Scott Ross, until May 30, 2012. Id.; R. 280. At that time, he received a radiofrequency rhizotomy. Id. He was subsequently "discharged in excellent condition." Id.

Mr. Wixom nevertheless reported that his pain had returned a month later. R. 278. He subsequently received additional injections to help him cope with the pain throughout the remainder of the year. See R. 270-78. The following March, Mr. Wixom reported an "intensification of his pain." R. 269. Two months later in May of 2013 Mr. Wixom received additional injections that improved this back pain, although he soon began to report right shoulder pain radiating from his neck. R. 264-66. Imaging he would later receive revealed "severe, left-sided facet arthropathy and mild uncovertebral spurring" that resulted in "severe left-sided foraminal stenosis" in addition to other conditions. R. 24-25, 263.

Discovery of these left-sided conditions, however, would not provide Mr. Wixom any answers about his new complaints of pain on his right side. See id. Thus, later the next month Mr. Wixom received a nerve conduction study and electromyography. See R. 259. This occurred on June 13, 2013. Id. It confirmed that Mr. Wixom did not have "a right cervical radiculopathy, plexopathy, or more diffuse large fiber peripheral neuropathy[,]" but showed evidence of "ulnar neuropathy at the right elbow . . . [and] a mild median neuropathy at the right wrist." R. 259. Several more tests completed the next year (after Mr. Wixom's date last insured) showed that his condition remained relatively unchanged. R. 25.

A. Procedural History.

On September 9, 2013 Mr. Wixom applied for disability insurance benefits, alleging disability beginning August 15, 2008, later amended to May 20, 2012. R. 122. The claim was initially denied on January 24, 2014. R. 59. Mr. Wixom then requested a hearing, which was set to be held on May 14, 2015. R. 82-88. Prior to that hearing, however, Mr. Wixom passed away on March 28, 2015. R. 120-21. Mr. Wixom's widow, Helen Wixom, subsequently became a substitute party to Mr. Wixom's claim, id., and appeared in his place at the originally-scheduled hearing, R. 34-58. That hearing was held before Administrative Law Judge ("ALJ") Kathryn D. Burgchardt. Id. She issued a decision denying Mr. Wixom benefits on June 26, 2015. R. 17.

Mrs. Wixom appealed that adverse decision to the Appeals Council on July 27, 2015. R. 15. Before the Appeals Council issued its ruling, Mrs. Wixom sent the Council two additional pieces of evidence: (1) an affidavit; and (2) a letter by Dr. Ross, in which he affirms the findings compiled in a March 25, 2015 medical assessment of Mr. Wixom by Dr. Thomas Higginbotham. R. 8-12. Nevertheless, on October 30, 2015 the Appeals Council rejected that additional evidence as immaterial and denied Mrs. Wixom's request for review. R. 1. Mrs. Wixom timely filed an appeal in this Court. ECF No. 1.

B. The ALJ's Decision.

The ALJ issued an unfavorable opinion after evaluating the evidence according to the Social Security Administration's standard five-step process. R. 17-33. First, she found that Mr. Wixom had not engaged in substantial gainful activity since his amended, alleged onset date of May 30, 2012 through his date last insured of December 31, 2013. R. 22. At step two, the ALJ found that Mr. Wixom had the following severe impairments: disorder of the lumbar spine, disorder of the cervical spine beginning on May 14, 2012, and right cubital tunnel syndrome beginning on June 13, 2013. R. 22. At step three, the ALJ found that Mr. Wixom did not have an impairment or combination of impairments that met the severity of a condition listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 23.

The ALJ then found that Mr. Wixom retained the residual functional capacity ("RFC") to perform light work involving lifting or carrying up to 10 pounds frequently and 20 pounds occasionally. Id. The ALJ also found that Mr. Wixom could perform work requiring him to stand or walk, with normal breaks, for a total of six hours a day, and could sit for five hours a day. Id. Though Mr. Wixom complained of arm, shoulder, neck, and back pain, the ALJ found that Mr. Wixom could perform certain pulling and pushing activating with weight restrictions, but should avoid those activities with his right arm and shoulder. R. 23-27. At step four, the ALJ concluded that Mr. Wixom was unable to perform any of his past relevant work. R. 27. Finally, at step five, the ALJ determined that Mr. Wixom had nevertheless acquired work skills from his past relevant work that were transferable to other occupations that existed in significant numbers in the national economy. R. 28. Therefore, the ALJ concluded that Mr. Wixom was not under a disability from May 30, 2012 (his amended, alleged onset date) through December 31, 2013 (the date last insured). R. 29.

III. ANALYSIS

Mrs. Wixom raises three arguments on appeal. First, she contends that the ALJ's RFC determination lacks substantial evidence. ECF No. 14 at 6-10. Second, plaintiff contends that the ALJ's credibility determination of Mr. Wixom was also in error. Id. at 10-12. Finally, plaintiff contends that the Appeals Council improperly rejected qualifying new evidence. ECF No. 17 at 1-2. Finding substantial evidence supports both the ALJ's RFC and credibility determinations, and that the Appeals Council properly rejected as immaterial the additional evidence Mrs. Wixom submitted, I affirm the Commissioner's decision. I address each issue in turn.

A. The ALJ's RFC Determination.

The ALJ determined that Mr. Wixom "had the residual functional capacity to perform light work" with certain limitations. R. 23. Mrs. Wixom raises three reasons why she believes substantial evidence does not support this conclusion. First, she argues that the ALJ failed to cite any particular medical provider or evidence in support of that RFC. ECF No. 14 at 7. Second, Mrs. Wixom contends that the ALJ improperly dismissed Dr. Thomas Higginbotham's medical evaluation of Mr. Wixom, completed in 2015. Id. at 7-9. Finally, she argues that Dr. Scott Ross' report, which Mrs. Wixom submitted to the Appeals Council after the ALJ rendered her decision, undermines the ALJ's determination. Id. at 9-10. Reserving discussion on Mrs. Wixom's final argument for Part III.C, see infra, I find Mrs. Wixom's first two arguments unconvincing.

First, I find Mrs. Wixom's contention that the ALJ failed to "cite or rely on any particular medical provider or evidence" is simply untrue. See ECF No. 14 at 7. The ALJ specifically cited the findings of Dr. Ross, those of Patrick Devanny, M.D., and those of Katharine Leppard, M.D. in determining that Mr. Wixom could perform a range of light work with certain limitations.¹ R. 25-26, 206-225, 242-297, 350-352. Furthermore, to the extent Mrs. Wixom argues that the ALJ was required to cite a specific medical provider's RFC opinion in crafting her own, I point out that no such requirement exists. See Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004) (explaining that "the ALJ, not a physician, is charged with determining a claimant's RFC from the medical record").

Furthermore, I...