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Johnathan Goff v. Carolyn W. Colvin

May 13, 2013

JOHNATHAN GOFF, PLAINTIFF,
v.
CAROLYN W. COLVIN,*FN1 ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: John W. Lungstrum United States District Judge

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Social Security disability(SSD) benefits and Supplemental Security income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error in the Commissioner's final decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.

I. Background

Plaintiff applied for SSD and SSI on February 26, 2009, alleging disability beginning January 1, 1991. (R. 10, 144-57). The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 10, 72-75, 94). Plaintiff's request was granted, and Plaintiff appeared with counsel for a hearing before ALJ James Harty on July 14, 2010. (R. 10, 28-29). At the hearing, testimony was taken from Plaintiff and from a vocational expert. (R. 10, 28-71). At the end of the hearing, Plaintiff amended his onset date to January 1, 2008. (R. 10, 70).

On August 27, 2010, ALJ Harty issued a decision finding that although Plaintiff is unable to perform any of his past relevant work there are a significant number of other jobs available in the economy that he can perform. (R. 10-20). The ALJ concluded that Plaintiff is not disabled within the meaning of the Act, and denied his applications. (R. 20-21). Plaintiff sought Appeals Council review of the decision, and submitted a Representative Brief detailing his allegations of error in the decision. (R. 139-43). The Council made the Brief a part of the administrative record in this case and included the Brief in its consideration, but it found no reason to review the ALJ's decision and denied Plaintiff's request for review. (R. 1-5). Therefore, the ALJ's decision became the final decision of the Commissioner. (R. 1); Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006). Plaintiff now seeks judicial review of that decision. (Doc. 1).

II. Legal Standard

The court's jurisdiction and review are guided by the Act. Weinberger v. Salfi, 422 U.S. 749, 763 (1975) (citing 42 U.S.C. § 405(g)); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (same); Brandtner v. Dep't of Health and Human Servs., 150 F.3d 1306, 1307 (10th Cir. 1998) (sole jurisdictional basis in social security cases is 42 U.S.C. § 405(g)). Section 405(g) of the Act provides for review of a final decision of the Commissioner made after a hearing in which the plaintiff was a party. It also provides that in judicial review "[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The court must determine whether the factual findings are supported by substantial evidence in the record and whether the ALJ applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind might accept to support a conclusion. Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988). The court may "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

An individual is disabled only if he can establish that he has a physical or mental impairment which prevents him from engaging in any substantial gainful activity, and which is expected to result in death or to last for a continuous period of at least twelve months. Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting identical definitions of a disabled individual from both 42 U.S.C. §§ 423(d)(1) and 1382c(a)(3)(A)); accord, Lax, 489 F.3d at 1084. The claimant's impairments must be of such severity that he is not only unable to perform his past relevant work, but cannot, considering his age, education, and work experience, engage in any other substantial gainful work existing in the national economy. 42 U.S.C. § 423(d)(2)(A).

The Commissioner uses a five-step sequential process to evaluate disability. 20 C.F.R. §§ 404.1520, 416.920 (2010);*fn2 Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). "If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary." Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether he has a severe impairment(s), and whether the severity of his impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant's residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.

The Commissioner next evaluates steps four and five of the sequential process--determining whether claimant can perform past relevant work; and whether, considering vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy within Plaintiff's RFC. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

Plaintiff makes three claims of error, all dealing with the ALJ's RFC assessment. He claims (1) that the ALJ erred in weighing the medical opinion of Plaintiff's treating physician, Dr. Ta; (2) that the ALJ failed adequately to link the record evidence to the RFC limitations assessed; and (3) that the ALJ erred in evaluating the credibility of Plaintiff's allegations of symptoms resulting from his impairments. The Commissioner argues that the ALJ's RFC assessment was proper. Specifically, she argues that the ALJ properly evaluated the credibility of Plaintiff's allegations of symptoms, that he properly considered the opinion evidence, and adequately discussed and supported his RFC findings. The court finds no error in the ALJ's decision. Because evaluation of the opinion evidence and of the credibility of Plaintiff's allegation of symptoms is a part of every proper RFC assessment, the court begins by considering these two issues, before it addresses Plaintiff's argument regarding whether the ALJ adequately linked the limitations he assessed to the record evidence.

III. Evaluation of Dr. Ta's Opinion

In the first section of his brief entitled, "Treating Physician's Opinion," Plaintiff claims that substantial evidence does not support the ALJ's determination to accord "little weight" to the opinions of his treating physician, Dr. Ta. (Pl. Br. 8-12). Plaintiff claims specifically, that the ALJ failed to indicate the evidence relied upon in discounting Dr. Ta's opinion and did not cite to the longitudinal evidence he found to be inconsistent with that opinion. Id. at 8. He claims that Dr. Ta's opinion is also supported by the opinion of Mr. Randall, Dr. Ta's physician assistant, and by the opinion of Ms. Harper, a nurse-practitioner who treated Plaintiff for his right wrist impairment. Id. at 10-11. The Commissioner argues that the ALJ properly evaluated Dr. Ta's opinion, adopting many limitations opined by Dr. Ta, and properly discounting the extreme limitations in standing and sitting opined by Dr. Ta. (Comm'r Br. 17-18). She points out that the ALJ also discounted Mr. Randall's opinions regarding Plaintiff's sitting, standing, and walking limitations because they are not supported by treatment notes or diagnostic testing, and that those limitations are contradicted by the opinion of nurse-practitioner Harper who opined that Plaintiff has no limitations in sitting, standing, or walking. (Comm'r Br. 19).

A. Standard for Evaluating a Treating Source Opinion

"If [the Commissioner] find[s] that a treating source's opinion on the issue(s) of the nature and severity of [the claimant's] impairment(s) is [(1)] well-supported by medically acceptable clinical and laboratory diagnostic techniques and is [(2)] not inconsistent with the other substantial evidence in [claimant's] case record, [the Commissioner] will give it controlling weight." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see also, Social Security Ruling (SSR) 96-2p, West's Soc. Sec. Reporting Serv., Rulings 111-15 (Supp. 2012) ("Giving Controlling Weight to Treating Source Medical Opinions").

The Tenth Circuit has explained the nature of the inquiry regarding a treating source's medical opinion. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003) (citing SSR 96-2p). The ALJ determines "whether the opinion is 'well-supported by medically acceptable clinical and laboratory diagnostic techniques.'" Id. at 1300 (quoting SSR 96-2p). If the opinion is well-supported, the ALJ must also confirm that the opinion is "not inconsistent" with other "substantial evidence" in the record. Id. "[I]f the opinion is deficient in either of these respects, then it is not entitled to controlling weight." Id.

SSR 96-2p, cited by the court in Watkins, explains that the term "substantial evidence" as used in determining whether a treating source opinion is worthy of "controlling weight" is given the same meaning as determined by the Supreme Court in Richardson v. Perales, 402 U.S. 389 (1971). SSR 96-2, West's Soc. Sec. Reporting Serv., Rulings 113 (Supp. 2012). The threshold for denying controlling weight is low.

Inconsistent evidence is "substantial evidence" precluding the award of "controlling weight," if it is "such relevant evidence as a reasonable mind would accept as adequate to support a conclusion that is contrary to the conclusion expressed in the [treating source's] medical opinion." Id.

If a treating source opinion is not given controlling weight, the inquiry does not end. Watkins, 350 F.3d at 1300. Such an opinion is "still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527 and 416.927." Id. Those factors are: (1) length of treatment relationship and frequency of examination;

(2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion. Id. at 1301; ...


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