JOSEPH F. ROGGI, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This is an action to review the final decision of the defendant Commissioner of Social Security ("Commissioner") that denied the claimant Joseph Roggi's applications for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act") and for supplemental security income ("SSI") under the Title XVI of the Act. With the administrative record (Dk. 9) and the parties' briefs on file pursuant to D. Kan. Rule 83.7.1 (Dks. 12, 17, and 18), the case is ripe for review and decision.
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that the commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." The court also reviews "whether the correct legal standards were applied." Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Persales, 402 U.S. 389, 401 (1971) (quotation and citation omitted). "It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). The review for substantial evidence "must be based upon the record taken as a whole" while keeping in mind "evidence is not substantial if it is overwhelmed by other evidence in the record." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks and citations omitted). In its review of "whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, ... [the court] will not reweigh the evidence or substitute... [its] judgment for the Commissioner's." Lax, 489 F.3d at 1084 (internal quotation marks and citation omitted).
The court's duty to assess whether substantial evidence exists: "is not merely a quantitative exercise. Evidence is not substantial if it is overwhelmed by other evidence-particularly certain types of evidence (e.g., that offered by treating physicians)-or if it really constitutes not evidence but mere conclusion.'" Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)). At the same time, 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 v. Astrue, 489 F.3d at 1084 (internal quotation marks and citation omitted). The court will "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been made." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted).
By statute, a disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to... last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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).
A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The first step entails determining whether the "claimant is presently engaged in substantial gainful activity." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted). The second step requires the claimant to show he suffers from a "severe impairment, " that is, any "impairment or combination of impairments which limits [the claimant's] physical or mental ability to do basic work activities." Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (internal quotation marks and regulatory citations omitted). At step three, the claimant is to show his impairment is equivalent in severity to a listed impairment. Lax, 489 F.3d at 1084. "If a claimant cannot meet a listing at step three, he continues to step four, which requires the claimant to show that the impairment or combination of impairments prevents him from performing his past work." Id. Should the claimant meet his burden at step four, the Commissioner then assumes the burden at step five of showing "that the claimant retains sufficient RFC [residual functional capacity] to perform work in the national economy" considering the claimant's age, education, and work experience. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (internal quotation marks and citation omitted). Substantial evidence must support the Commissioner's showing at step five. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The evaluation at steps four and five makes use of the agency's RFC assessment. See 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4).
Mr. Roggi was represented by counsel at the administrative hearing held before the administrative law judge ("ALJ") on September 21, 2011. (R. 32-67). Roggi alleged a disability beginning on May 7, 2010. The ALJ issued his decision on November 4, 2011, and denied Roggi's claim of disability. (R. 10-31).
At step one, the ALJ found that Roggi had not engaged in substantial gainful activity since May 7, 2010. (R. 15). At step two, the ALJ determined that Roggi had the following severe impairments: "degenerative disc disease, obesity, and depression." (R. 15). The ALJ found at step three that Roggi's impairments did not meet or equal a listed impairment. (R. 16). In evaluating Roggi's mental impairment, the ALJ found no marked difficulties in the function areas, but he did find moderate difficulties in the areas of social functioning and concentration, persistence or pace. (R. 16).
At step four, the ALJ determined that Roggi had the RFC to perform light work:
in that, he can frequently lift/carry 10 pounds, occasionally lift/carry 20 pounds, stand or walk for six hours of an eight-hour workday, and sit for six hours in an eight-hour workday. The claimant also has the following nonexertional limitations that further limit his ability to perform light work: can occasionally climb ramps or stairs, but should never climb ropes, ladders, or scaffolds; can occasionally stoop, kneel, crouch, or crawl; should avoid concentrated exposure to extreme cold, wetness, excessive vibration, unprotected heights, and hazardous machinery; and is limited to the performance of unskilled work that requires no more than occasional contact with the general public and coworkers.
(R. 17). The ALJ found that Roggi was unable to do his past relevant work as a stock clerk. At step five, the ALJ considered Roggi's age, education, work experience and RFC to determine that Roggi could do other work in the national economy. The ALJ concluded Roggi was not disabled from May 7, 2010, through the date of November 4, 2011, and denied his claims for DIB and SSI. (R. 25-26). The Appeals Council denied his request for review, so the ALJ's decision is the final decision of the Commissioner.
Disputing the ALJ's RFC determination, Roggi concludes there is not substantial evidence to support the ALJ's finding at step five that he can perform other work of significant numbers in the national economy. Specifically, Roggi challenges the ALJ's weighing of the different medical opinions of record, the ALJ's discounting of Roggi's subjective complaints, and the evidence supporting the ALJ's RFC determination.
WEIGHING MEDICAL OPINIONS
"Medical opinions are statements from physicians... or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s) including [claimant's] symptoms, diagnosis and prognosis." 20 C.F.R. § 404.1527(a)(2). Medical opinions are not to be ignored, and all such opinions are to be evaluated by the Commissioner in accordance with factors contained in the regulations. Id . § 404.1527(c); SSR 96-5p, West's Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2012). "An ALJ must evaluate every medical opinion in the record, ..., although the weight given each opinion will vary according to the relationship between the disability claimant and the medical professional." Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004). A physician who treats a patient regularly over some period of time is recognized as a treating source with better insight into a patient's medical condition and with an opinion that is generally entitled to "particular weight" or "controlling weight." Doyal v. Barnhart, 331 F.3d 758, 762-63 (10th Cir. 2003). It is also the rule, however, that the opinions of nontreating sources are generally given more weight than the opinions of nonexamining sources who have merely reviewed the medical record. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
If the medical opinion of a treating source is "well-supported by medically clinical and laboratory diagnostic techniques" and "is consistent with other substantial evidence in the record, " then the treating source opinion is entitled to controlling weight. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal quotation marks and citations omitted). The ALJ must give a specific, reasoned finding on this controlling weight issue. Id. If the treating source opinion is not given controlling weight, then it is "still entitled to deference" and weighed according to the factors of 20 C.F.R. §§ 404.1527 and 416.927 by which all medical opinions are evaluated. These factors are:
(1) the length of the treatment relationship and the 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.
Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (quotation omitted). After considering the pertinent factors, the ALJ must "give good reasons in [the] notice of determination or decision" for the weight he ultimately assigns the opinion. 20 C.F.R. § 404.1527(d)(2). Finally, if the ALJ rejects the opinion completely, he must then give "specific, legitimate reasons'" for doing so. See Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (quoting Frey v. Bowen, 816 F.2d 508, 513 (10th Cir.1987)).
Watkins v. Barnhart, 350 F.3d at 1301.
Dr. Melvin Berg, Consultative Examining Psychologist and Non-Examining State Agency ...