JACQUELINE L. HOLLEY, Plaintiff,
CAROLYN W. COLVIN,  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.
Plaintiff applied for SSD and SSI, alleging disability beginning November 6, 2007. (R. 10, 123-34). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She alleges the Administrative Law Judge (ALJ) erred in evaluating her mental impairments at steps two and three of the Commissioner’s five-step sequential evaluation process; applied the incorrect legal standard to evaluate the credibility of Plaintiff’s allegations of symptoms by focusing on factors other than the six factors determined by the Tenth Circuit Court of Appeals to be relevant to a determination of credibility; failed to weigh the record medical opinions properly; and provided an erroneous residual functional capacity (RFC) assessment which failed to incorporate Plaintiff’s need to take frequent restroom breaks and Plaintiff’s physical RFC as opined by treating physician, Dr. Carver.
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).
Because Plaintiff’s first argument, that the ALJ erred in evaluating her mental impairments at steps two and three of the Commissioner’s five-step sequential evaluation process, rests in part on allegations of error in weighing the medical opinions of Dr. Wilkinson and Dr. Fantz, the court begins by reviewing the ALJ’s evaluation of the medical opinions. It then reviews the step two and three evaluation, the credibility determination, and finally, Plaintiff’s remaining RFC arguments. The court finds no reversible error in the decision below.
II. Evaluation of the Medical Opinions
The ALJ summarized and discussed the treatment records and medical evidence regarding numerous physicians and psychologists during his step two evaluation (R. 12- 13) and his RFC analysis. (R. 15-17). He specifically summarized each medical opinion and stated his evaluation of the weight to be accorded to each opinion at the end of his RFC analysis. (R. 18-19). The ALJ noted that five physicians had examined Plaintiff, reviewed her medical records, and prepared a report regarding her physical capabilities in relation to her workers’ compensation claim: Dr. Amundson, Dr. Prostic, Dr. Zimmerman, Dr. Zarr, and Dr. Bieri. (R. 18).
Each of these physicians opined that Plaintiff was able to return to employment, but at various exertional levels and with various additional limitations. Id. Dr. Amundson opined that Plaintiff was able to work at only a sedentary level, and the ALJ accorded this opinion “great weight” because it was consistent with the record as a whole, was made after evaluation of the claimant, and was made after a review of all of claimant’s medical records. Id. Dr. Zarr opined that Plaintiff could return to full time regular duty without restrictions, and Drs. Prostic and Bieri opined that Plaintiff could perform work at light to medium exertion, and the ALJ accorded “great weight” to each of these three opinions, but in each case specifically noted that he had reduced Plaintiff’s exertional level to sedentary “based on the claimant’s subjective complaints.” Id. Dr. Zimmerman opined that Plaintiff was limited to light work but that Plaintiff needed to change positions frequently when sitting or standing. (R. 18). The ALJ accorded Dr. Zimmerman’s opinion only “some weight, ” noting that there is no evidence of significant disc degeneration or nerve-related impairment which would support a finding that Plaintiff needs to change position frequently while sitting. Id.
The ALJ noted that Plaintiff’s primary care physician, Dr. Carver, had provided an opinion that Plaintiff could not perform even sedentary work because Plaintiff is limited to sitting and standing less than two hours a day each. Id. He accorded this opinion “little weight” because it is not supported by the record, because there is no objective medical evidence to support such drastic restrictions, and because the opinion is “wholly inconsistent with the other opinions contained within the record.” Id.
The ALJ accorded “great weight” to the opinion of the state agency physician, Dr. Siemsen, with regard to Plaintiff’s physical RFC. (R. 19) (citing Ex. 13F (wherein Dr. Siemsen “affirmed as written” the RFC assessment dated 3-12-09)).
The ALJ also considered opinions with regard to Plaintiff’s mental impairments and mental RFC. He recognized that Dr. Wilkinson had provided a report of her consultative examination of Plaintiff at the request of the Social Security Administration, and that a state agency psychologist had also provided a mental RFC assessment. (R. 18-19). He accorded only “limited weight” to Dr. Wilkinson’s opinion because it was based on Plaintiff’s subjective complaints regarding her physical impairments, because there is no objective evidence to support Plaintiff’s complaints, and because Dr. Wilkinson recognized that Plaintiff appeared to be “faking bad.” (R. 18-19). The ALJ also accorded “limited weight” to the state agency psychologist’s opinion because Plaintiff has sought no mental health treatment, because Dr. Wilkinson “believed the claimant’s responses to certain questions were not fully reliable, and because Plaintiff appeared to be “faking bad.” Id., at 19.
A. Standard for Evaluating Medical Opinions
A treating physician’s opinion about the nature and severity of plaintiff’s impairments should be given controlling weight by the Commissioner if it is well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). When a treating physician opinion is not given controlling weight, the ALJ must nonetheless specify what lesser weight he assigned the treating physician’s opinion. Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004). And, when a treating source opinion is not given controlling weight, all medical opinions will be evaluated by the Commissioner in accordance with factors contained in the regulations. 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, West’s Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2013). Moreover, a treating source opinion which is not entitled to controlling weight is “still entitled to deference and must be weighed using” those same factors. Watkins, 350 F.3d at 1300. 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; 20 C.F.R. §§ 404.1527(d)(2-6), 416.927(d)(2-6); see also Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (citing Goatcher v. Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995)). However, a court will not insist on a factor-by-factor analysis so long as the “ALJ’s decision [is] ‘sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons for that weight.’” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (quoting Watkins, 350 F.3d at 1300).
After considering the above factors, the ALJ must give good reasons in his decision for the weight he ultimately assigns the opinion. If the ALJ rejects the opinion completely, he must give specific, legitimate reasons for doing so. Watkins, 350 F.3d at 1301.
B. Medical Opinions Regarding Mental Impairments
Plaintiff claims error in the ALJ’s evaluation of Dr. Wilkinson’s opinion, and the opinion of the state agency physician, Dr. Fantz. She argues that MRI results and x-rays are objective evidence supporting Plaintiff’s complaints, which is contrary to the ALJ’s finding--that there is no objective evidence to support Plaintiff’s complaints. (Pl. Br. 24). Plaintiff’s argument is without merit. Plaintiff merely cites to “MRI results and x-rays set forth in the summary of medical” (Pl. Br. 24), without pointing to the MRI and x-ray results which she believes support her complaints, and without explaining how that evidence supports her complaints or how it demonstrates error in the ALJ’s evaluation of Dr. Wilkinson’s opinion. The court will not construct Plaintiff’s argument for her. May v. Colvin, __F.3d__, __, 2014 WL 56255 at *5 (10th Cir. 2014).
Moreover, the ALJ gave three reasons for discounting Dr. Wilkinson’s opinion: it was based on Plaintiff’s subjective complaints regarding her physical impairments; there is no objective evidence to support Plaintiff’s complaints; and Dr. Wilkinson recognized that Plaintiff appeared to be “faking bad.” Plaintiff does not even suggest that Dr. Wilkinson’s opinion was not based on Plaintiff’s subjective complaints regarding her physical impairments. Finally, Plaintiff argued while discussing Dr. Fantz’s opinion that although Dr. Wilkinson stated that Plaintiff appeared to be “faking bad, ” Dr. Wilkinson also indicated that MMPI testing should be done for objective verification of “faking bad.” (Pl. Br. 28), see also ...