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Williamson v. Colvin

United States District Court, Tenth Circuit

June 12, 2013

LINDSY WILLIAMSON, Plaintiff,
v.
CAROLYN W. COLVIN[1], Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

John W. Lungstrum United States District Judge

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 benefits on August 18, 2009, alleging disability beginning July 1, 2003. (R. 8, 145-49). The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 8, 48-51, 76-77). Plaintiff’s request was granted, and Plaintiff appeared with counsel and testified at a hearing before ALJ Michael D. Schilling on December 9, 2010. (R. 8, 27-47). ALJ Schilling issued a decision on January 27, 2011 finding that Plaintiff has severe mental impairments including affective disorder, substance abuse disorder, and borderline personality disorder, but that the severity of her impairments does not meet or equal the severity of any impairment in the Listing of Impairments. (R. 8-12). He determined that Plaintiff has the residual functional capacity (RFC) to perform a range of work at all exertional levels restricted by significant limitations due to her mental impairments, and that she has no past relevant work as defined in the Act. (R. 12-18). Nevertheless, he determined that based on Plaintiff’s age, education, work experience, and RFC a significant number of jobs exist in the national economy that she can perform. (R. 18-19). Consequently, he determined that Plaintiff is not disabled within the meaning of the Act, and denied her applications for benefits. (R. 19). Plaintiff sought Appeals Council review (R. 139-43), but the Council found no reason under the rules of the Social Security Administration to review the ALJ’s decision, and denied the request for review. (R. 1-4). 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); and Plaintiff now seeks judicial review. (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. Richardson v. Perales, 402 U.S. 389, 401 (1971); 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 she can establish that she has a physical or mental impairment which prevents her 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 she is not only unable to perform her past relevant work, but cannot, considering her 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);[2] 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 she has a severe impairment(s), and whether the severity of her 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 RFC. 20 C.F.R. §§ 404.1520(e), 416.920(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 her 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 presents three allegations of error, each focusing on a different medical opinion in the record. She argues that the ALJ did not properly consider the medical opinion of her treating psychiatrist, Dr. Shah; that he did not include sufficient limitations in assessing Plaintiff’s RFC because he failed to accord sufficient weight to the opinion of Dr. Shah and to the opinion of a non-treating psychologist, Dr. Kovach; and that he erroneously accorded significant weight to the opinion of a state agency psychologist which opinion was not adequately supported by record evidence. The Commissioner argues that the ALJ properly evaluated each of the medical opinions in accordance with the regulations and with Tenth Circuit precedent. The court addresses each issue in the order presented in Plaintiff’s Brief and finds no error in the ALJ’s evaluation of the medical opinions.

IV. Evaluation of the Medical Opinions

The Commissioner accorded “little weight” to the treating source opinion of Dr. Shah, and “significant weight” to both the non-treating source opinion of Dr. Kovach and the non-examining source opinion of the state agency psychologist, Dr. Schulman. (R. 16-17, 18). Plaintiff claims that Dr. Shah’s treating source opinion should have been given controlling weight, that the ALJ failed to address the regulatory factors for weighing a treating source opinion as presented in Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003), and that the reasons given for discounting Dr. Shah’s opinion are not legitimate. She claims that the ALJ failed to include sufficient mental limitations in his RFC assessment because he ignored certain limitations contained in the non-treating source opinion of Dr. Kovach and “picked and chose” those portions of Dr. Kovach’s report which were favorable to a finding of “not disabled” despite purporting to accord “significant weight” to Dr. Kovach’s opinion. Finally, she claims that the ALJ actually took the RFC limitations he ultimately assessed directly from the report of the non-examining source, Dr. Schulman, but that Dr. Schulman’s report does not find adequate support in the record evidence.

A. Standard for Evaluating Medical Opinions

“Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [the claimant’s] impairment(s) including [claimant’s] symptoms, diagnosis and prognosis.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Such opinions may not be ignored and, unless a treating source opinion is given controlling weight, all medical opinions will be evaluated by the Commissioner in accordance with factors contained in the regulations. Id. §§ 404.1527(d), 416.927(d); Soc. Sec. Ruling (SSR) 96-5p, West’s Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2012). A physician who has treated a patient frequently over an extended period of time (a treating source)[3] is expected to have greater insight into the patient’s medical condition, and his opinion is generally entitled to “particular weight.” Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). But, “the opinion of an examining physician [(a nontreating source)] who only saw the claimant once is not entitled to the sort of deferential treatment accorded to a treating physician’s opinion.” Id. at 763 (citing Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995)). However, opinions of nontreating sources are generally given more weight than the opinions of nonexamining ...


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