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Maxfield v. Colvin

United States District Court, Tenth Circuit

July 5, 2013

PENNY MAXFIELD, 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 under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (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 benefits on August 4, 2008, alleging disability beginning June 20, 2008. (R. 9, 146-56). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 9, 50-51, 81-82). Plaintiff’s request was granted, and Plaintiff appeared with counsel for a hearing before ALJ Michael D. Schilling on September 7, 2010. (R. 9, 21-23). At the hearing, testimony was taken from Plaintiff and from a vocational expert. (R. 9, 21-49). On September 24, 2010, ALJ Schilling issued his decision finding that although Plaintiff has severe impairments which preclude the performance of her past relevant work, when considering her age, education, and work experience along with her residual functional capacity (RFC), there are jobs that exist in significant numbers in the national economy that the claimant can perform. (R. 9-19). Therefore, he determined that Plaintiff is not disabled within the meaning of the Act, and denied her application for benefits. (R. 19-20). Plaintiff requested Appeals Council review of the ALJ’s decision and submitted a Representative Brief explaining why in her view the ALJ’s decision is not supported by substantial record evidence. (R. 140-45). The Council made the Representative Brief a part of the administrative record and considered it, but decided that the Brief did not provide a basis to change 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); 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 ALJ’s factual findings are supported by substantial evidence in the record and whether she 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).

When deciding if substantial evidence supports the ALJ’s decision, the mere fact that there is evidence in the record which might support a contrary finding will not establish error in the ALJ’s determination. “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence. [The court] may not displace the agency’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Lax, 489 F.3d at 1084 (citations, quotations, and bracket omitted); see also, Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966) (defining substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” and noting that “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”). Moreover, the determination 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 (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). 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 at step four whether, in light of the RFC assessed, claimant can perform her past relevant work; and at step five whether, when also considering the 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 which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

Plaintiff claims the ALJ erred in weighing the medical opinions and in evaluating the credibility of her allegations of symptoms resulting from her physical and mental impairments. The Commissioner argues that the ALJ properly evaluated the credibility of Plaintiff’s allegation of symptoms and properly weighed the medical opinions contained in the record. The court finds no error in the decision below, and addresses the issues in the order they were raised in Plaintiff’s Brief.

III. Evaluation of Medical Opinions

Plaintiff claims the ALJ erred by discounting the medical opinion of her treating physician, Dr. Laccheo, and by according greater weight to the medical opinion of the nonexamining physician who reviewed the record for the agency, Dr. Siemsen. (Pl. Br. 12-13). She argues that the ALJ failed to give “specific, legitimate reasons” for discounting Dr. Laccheo’s opinion, failed to evaluate the opinion in accordance with the regulatory factors for evaluating medical opinions, “failed to discuss any of the regulatory factors, and failed to explain the relative weight accorded to each factor” in his analysis. (Pl. Br. 14) (citing Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004)).

Plaintiff’s brief implies that the ALJ failed to sufficiently explain his reasons for discounting the medical opinions of Plaintiff’s treating psychiatrist, Dr. Mohiuddin, of the non-treating psychological consultant, Dr. Frieman, and of the “state agency RFC.” Id. 15. She points to certain evidence from the administrative record regarding treatment or examination by Dr. Laccheo, Dr. Polly, and Dr. Veloor, and to the reports of Dr. Siemsen, and argues that the record evidence better supports Dr. Laccheo’s opinion and that the ALJ failed to recognize that Dr. Siemsen did not support his opinion and consequently the ALJ failed to demonstrate specifically how the evidence supports Dr. Siemsen’s opinion. Id. at 16-18. She concludes by arguing that, “[b]y failing to properly evaluate all of the above opinions to show whether their respective opinions were and were not supported by the substantial evidence of record the ALJ failed to provide the court with a clear analysis to understand what the ALJ based his decision upon.” Id. at 17-18.

A. The ALJ’s Evaluation of the Medical Opinion Evidence

In the decision, the ALJ summarized and accorded weight to the reports, treatment records, and medical opinions of Dr. Siemsen; Dr. Duncan, a physician who examined Plaintiff and provided a report of that examination; Dr. Curtis, a physician who examined Plaintiff and provided a report of that examination in connection with a worker’s compensation claim not at issue here; Dr. Laccheo, Plaintiff’s treating physician; Dr. Stern, a non-examining consultant psychologist who completed a case evaluation, a Psychiatric Review Technique form, and a Mental Residual Functional Capacity Assessment form for the state agency; Dr. Wilkinson, a psychologist who examined Plaintiff for the state agency and prepared a report of that examination; Dr. Mohiuddin, Plaintiff’s treating psychiatrist; and Dr. Frieman, a psychologist who examined Plaintiff and prepared a report of that examination in connection with the worker’s compensation claim. (R. 15-17). The ALJ noted that Plaintiff “underwent surgical release for carpal tunnel on November 20, 2008 by John B. Moore, M.D., ” that she was released to return to full duty with no restrictions in January, 2009, and that she was a no–show for her final follow-up appointment in March 2009. (R. 14). He also noted that a Physical RFC Assessment form had been completed for the state agency by a single decisionmaker (SDM) who is not a medical source, he found that the opinion contained therein is not consistence with the record medical evidence, and he accorded it no weight. (R. 17-18).

The ALJ stated that “[b]ased on her limitations related to her carpal tunnel and pain in her wrists and hands, the undersigned finds the claimant should be limited to jobs that do not require constant rapid motion with the left hand and she should avoid prolonged exposure to extreme cold temperatures and vibrations.” (R. 15). The ALJ accorded “significant weight” to the opinions of Dr. Siemsen, Dr. Duncan, and Dr. Stern. (R. 15, 17). He accorded “little weight” to Dr. Laccheo’s opinion; stated he did not give “great weight” ...


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