United States District Court, D. Kansas
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 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, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the decision.
Plaintiff applied for SSD, alleging disability beginning March 22, 2009. (R. 37, 166-68). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He alleges the Administrative Law Judge (ALJ) erred in failing to find him disabled in accordance with Listing 11.04 at step three of the Commissioner's five-step sequential evaluation process; in failing to accord "controlling weight" or at least the greatest weight to the opinions of Dr. Lehman and Dr. Berger pursuant to the treating physician rule; in failing to provide good reasons to find Mr. Rinehart's allegations of symptoms not credible; and in failing to include limitations corresponding to moderate difficulties in concentration, persistence, and pace within the hypothetical question presented to the vocational expert.
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 he has a severe impairment(s), and whether the severity of his 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 residual functional capacity (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 his 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 below. It addresses each allegation of error presented in Plaintiff's Social Security Brief and finds that Plaintiff has not shown error. Because the analysis of the error alleged in weighing the medical opinions pursuant to the treating physician rule might affect the analysis regarding Listing 11.04, the court begins by considering the ALJ's application of the treating physician rule.
II. Applying the Treating Physician Rule
Plaintiff claims the ALJ erroneously accorded "great weight" to the non-examining source opinion of Dr. Goren, while according "no weight" to the treating source opinions of Dr. Lehman and Dr. Berger, and failed to give good reasons for rejecting the opinions of Dr. Lehman and Dr. Berger. (Pl. Br. 15). He argues that the opinions of Dr. Lehman should have been accorded "controlling weight" because they are supported by "clinical and diagnostic objective evidence and are uncontradicted by other substantial evidence." Id. at 16. He argues that even if one assumes it was proper to deny "controlling weight" to Dr. Lehman's opinion, the ALJ erred "by failing to continue on to the second step [in evaluating treating source opinions which] requires weighing the medical opinions under the factors in 20 C.F.R. § 404.1527(c)(2)-(6)." Id . He explains how in his view the record evidence supports the opinions of Dr. Lehman and Dr. Berger but will not support the ALJ's determination to accord "no weight" to those opinions. (Pl Br. 16-19). The Commissioner argues that the ALJ properly weighed the treating source opinions and found them worthy of no weight, and that the record evidence supports that finding. She argues that once the ALJ properly discounted the treating source opinions it was proper to rely on the opinion of the ME and accord that opinion great weight.
A. Legal Standard: The Treating Physician Rule
A physician or psychologist who has treated a patient frequently over an extended period of time (a treating source) 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). And, "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)). But, 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); Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir. 1987) (citing Broadbent v. Harris, 698 F.2d 407, 412 (10th Cir. 1983), Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982), and Wier ex rel. Wier v. Heckler, 734 F.2d 955, 963 (3d Cir. 1984)).
"If [the Commissioner] find[s] that a treating source's opinion on the issue(s) of the nature and severity of [the claimant's] impairment(s) [(1)] is well-supported by medically acceptable clinical and laboratory diagnostic techniques and [(2)] is not inconsistent with the other substantial evidence in [claimant's] case record, [the Commissioner] will give it controlling weight." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see also, Social Security Ruling (SSR) 96-2p, West's Soc. Sec. Reporting Serv., Rulings 111-15 (Supp. 2010) ("Giving Controlling Weight to Treating Source Medical Opinions").
The Tenth Circuit has explained the nature of the inquiry regarding a treating source's medical opinion. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003) (citing SSR 96-2p). The ALJ first determines "whether the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques.'" Id. at 1300 (quoting SSR 96-2p). If the opinion is well-supported, the ALJ must confirm that the opinion is also consistent with the other substantial evidence in the record. Id . "[I]f the opinion is deficient in either of these respects, then it is not entitled to controlling weight." Id.
A treating source opinion which is not entitled to controlling weight is "still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527 and 416.927." Watkins, 350 F.3d at 1300. Moreover, unless a treating source opinion is given controlling weight, all medical opinions will be evaluated by the Commissioner in accordance with the regulatory factors. Id .; SSR 96-5p, West's Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2013).
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. Watkins, 350 F.3d 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, the 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 regulatory factors, the ALJ must give good reasons in his decision for the weight he ultimately assigns the medical opinions. If the ALJ rejects a treating source opinion completely, he must give specific, legitimate reasons for doing so. Watkins, 350 F.3d at 1301.
B. The ALJ's Determination
In assessing RFC, the ALJ summarized the medical records, including the records of Dr. Lehman and Dr. Berger. (R. 42-43). He also summarized the medical opinions, accorded weight to each opinion, and explained the bases for the weight accorded.
He accorded "no weight" to the opinions of Dr. Lehman and Dr. Berger (1) because they are not well-supported by medically acceptable clinical and laboratory diagnostic techniques; (2) because they are inconsistent with other substantial record evidence; (3) because they relate to administrative findings reserved to the Commissioner; (4) because the most common observation in the medical evidence has been that Plaintiff's physical, sensory, neurological, and motor examinations are within normal limits; (5) because diagnostic imaging and physical examinations do not support the degree of limitation opined; (6) because treatment notes indicate Plaintiff's symptoms responded well to medication; and (7) because there is no indication that Dr. Lehman or Dr. Berger have any specialized understanding of the evidentiary requirements of Social Security disability programs. (R. 44-45).
In addition to the reasons applicable to both physicians as discussed above, the ALJ also found that Dr. Lehman (1) has no mental health expertise, (2) his opinions are conclusory statements of disability, (3) he only treated Plaintiff every three months, which Dr. Goren stated was an inappropriate frequency for treating allegedly disabling neurological impairments, and (4) the "marked" limitations in reaching, handling, and fingering to which Dr. Lehman opined are inconsistent with Plaintiff's ability even to feed himself. (R. 44-45). He found that (1) although Dr. Berger is a specialist in physical medicine and rehabilitation, he has no expertise in neurology or mental health; (2) his "opinions are quite conclusory;" and (3) his opinions are belied by medical evidence that shows Plaintiff's condition is stable with only minor or moderate deficits. (R. 44-45).
On the other hand, the ALJ explained that he accorded "great weight" to Dr. Goren's opinion. (R. 45). He stated that he did so because Dr. Goren performed a thorough review of the record, because his opinion is consistent with the totality of the medical record, because Dr. Goren has specialized understanding of the Social ...