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 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 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 benefits and for SSI benefits, alleging disability beginning July 13, 2008. (R. 17, 214-20). 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 the opinion of her treating nurse-practitioner, Mr. McCullough, and that Mr. McCullough's opinion should have been accorded greater weight than the opinion of the testifying medical expert, Dr. Shakil Mohammed.
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 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). 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 ALJ's evaluation of the medical sources' opinions.
II. Evaluation of the Medical Sources' Opinions
Plaintiff claims the ALJ erred in evaluating the opinion of Mr. McCullough, ARNP-the psychiatric nurse-practitioner who treated her for her mental impairments. She argues that the ALJ did not weigh Mr. McCullough's opinion in accordance with Social Security Ruling (SSR) 06-3p, and consequently failed to state the weight accorded to that opinion and failed to evaluate the opinion in accordance with the regulatory factors for weighing medical opinions. Plaintiff also argues that the ALJ's determination to discount Mr. McCullough's opinion is not supported by substantial evidence because the ALJ did not identify the specific inconsistencies between Mr. McCullough's treatment notes and his opinion, and because the treatment notes actually support the opinion. Finally, Plaintiff argues that Dr. Mohammed's hearing testimony is not substantial evidence sufficient to overcome Mr. McCullough's opinion and to support the RFC assessed by the ALJ. The Commissioner argues that the ALJ's evaluation of Mr. McCullough's opinion is supported by substantial record evidence. She argues that the ALJ applied SSR 06-3p and properly evaluated Mr. McCullough's opinion in accordance with the factors for weighing medical opinions, and that the ALJ's evaluation is supported by the record evidence. The Commissioner argues that the ALJ discounted Mr. McCullough's opinion based upon its inconsistency with his own treatment notes and based upon the medical opinion of Dr. Mintz, and she argues that the opinion of Dr. Mohammed is consistent with Dr. Mintz's opinion.
The court agrees with the Commissioner that the ALJ relied upon more than the inconsistency between Mr. McCullough's opinion and his treatment notes to discount Mr. McCullough's opinion. The court finds that the ALJ relied upon that inconsistency along with the opinions of Dr. Mintz, of Dr. Mohammed, and of the state agency psychological consultant to discount Mr. McCullough's opinion and to assess Plaintiff's RFC.
A. Standard for Weighing the Opinions of Medical Sources
A treating physician's opinion or a treating psychologist's opinion about the nature and severity of a claimant's impairments should be given controlling weight by the Commissioner if that opinion 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 source's opinion is not given controlling weight, the ALJ must nonetheless specify ...