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Flannagan v. Colvin

United States District Court, Tenth Circuit

October 3, 2013

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

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, 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, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the final decision of the Commissioner.

I. Background

Plaintiff applied for SSD and SSI alleging disability beginning March 1, 2007. (R. 31, 159-71). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. (Doc. 1) She alleges the Administrative Law Judge (ALJ) erred in evaluating the opinion of her treating social worker and consequently failed to find that she has severe mental impairments, in failing to include mental limitations in the residual functional capacity (RFC) assessment, and in using Plaintiff's continued smoking to discount the credibility of her allegations of symptoms. The Commissioner argues that the ALJ properly assessed severe impairments at step two of the sequential evaluation process, properly determined Plaintiff's mental impairments are not severe, and properly found no mental limitations in the RFC assessment. She argues that substantial record evidence supports the ALJ's RFC assessment-that the ALJ properly considered the credibility of Plaintiff's allegations of symptoms and used Plaintiff's continued smoking to demonstrate the weakness of the attempts Plaintiff made to relieve her breathing problems, and that the ALJ properly considered Ms. Waddell's "other source" opinion and properly discounted it.

The court's review is guided by the Act. Wall v. Astrue , 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act 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 he 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). Nonetheless, 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).

The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. §§ 404.1520, 416.920; 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 v. Barnhart , 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).

The court finds no error in the decision at issue. The court begins with consideration of the ALJ's evaluation of the opinion of Plaintiff's treating social worker, and it will end with consideration of the ALJ's evaluation of the credibility of Plaintiff's allegations of symptoms.

II. Evaluation of the Other Medical Source Opinion

Plaintiff's social worker, Kathleen Waddell completed an opinion stating that Plaintiff was unable to work because she is unable to work with the general public, because she cannot be socially appropriate, and because she has great difficulty with unfamiliar people and places. (R. 945-46). The ALJ accorded this opinion "little weight" because it is "not supported by reports of record, " and because as a "counselor, " Ms. Waddell is "not an acceptable medical source.'" (R. 40). Plaintiff claims the ALJ recognized Ms. Waddell's opinion as an "other source" opinion but not as an "other" medical source opinion, failed to analyze Ms. Waddell's opinion in accordance with Social Security Ruling (SSR) 06-03p, and failed to explain how he found that Ms. Waddell's reports did not support her opinions. The Commissioner argues that the ALJ properly considered the medical opinion evidence and "provided valid reasons for discounting Ms. Waddell's other source' opinion." (Comm'r Br. 28). She argues that the ALJ properly classified Ms. Waddell's opinion as an "other source" opinion, and it was not error to fail to further classify the opinion as an "other medical source" opinion. Id. at 31-32.

As both parties agree, the determination of this issue is controlled by SSR 06-3p and the regulations upon which it is based. (Pl. Br. 8-10) (Comm'r Br. 31). In accordance with the regulations, the term "acceptable medical source" includes only certain named classes of professionals: licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. 20 C.F.R. §§ 404.1513, 416.913; SSR 06-3p West's Soc. Sec. Reporting Serv., Rulings 328-29 (Supp. 2013). Therapists are among another group of health-care providers called "other" medical sources from whom the Commissioner will accept and use evidence showing the severity of a claimant's impairment(s) and how the impairment(s) affects claimant's ability to work. Id . §§ 404.1513(d)(1), 416.913(d)(1). "Medical opinions" are defined as "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [claimant's] impairment(s), including [claimant's] symptoms, diagnosis and prognosis, what [claimant] can still do despite impairment(s), and [claimant's] physical or mental restrictions." Id . §§ 404.1527(a)(2), 416.927(a)(2). A "treating source" must be an "acceptable medical source, " Id . §§ 404.1502, 416.902, and only a medical opinion from a "treating source" may be given controlling weight, and then only in certain circumstances. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).

Applying these regulations, a social worker is an "other" medical source, not an "acceptable medical source" or a "treating source." Id . §§ 404.1513(d)(1), 416.913(d)(1). Therefore, a therapist's opinion is not, strictly speaking, a "medical opinion, " and it is never entitled to controlling weight.

Recognizing the reality that an increasing number of claimants have their medical care provided by health care providers who are not "acceptable medical sources"-nurse-practitioners, physician's assistants, social workers, and therapists, the Commissioner promulgated SSR 06-3p. West's Soc. Sec. ...


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