United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying
Supplemental Security Income (SSI) benefits under sections
1602 and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C.
§§ 1381a and 1382c(a)(3)(A) (hereinafter the Act).
Finding no error in the Administrative Law Judge's (ALJ)
decision, the court ORDERS that judgment shall be entered
pursuant to the fourth sentence of 42 U.S.C. § 405(g)
AFFIRMING the Commissioner's final decision.
applied for SSI benefits, ultimately alleging disability
beginning April 3, 2013. (R. 12, 36-38). Plaintiff exhausted
proceedings before the Commissioner, and now seeks judicial
review of the final decision denying benefits. He argues that
the ALJ erred in his residual functional capacity (RFC)
assessment by improperly weighing the medical opinion of Dr.
Buhr, his treating orthopedic surgeon, and by determining
that Plaintiff's allegations of symptoms resulting from
his impairments are not entirely credible.
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). 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 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 relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also, Wall, 561 F.3d at 1052;
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
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.
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. § 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 RFC. 20 C.F.R. § 416.920(e). This
assessment is used at both step four and step five of the
sequential evaluation process. Id.
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).
court considers the errors alleged in the order presented in
Plaintiff's Brief, and finds no error in the ALJ's
Dr. Buhr's Opinion
claims error in the ALJ's determination to accord little
weight to Dr. Buhr's June 23, 2014 opinion that Plaintiff
must elevate his right foot above his heart periodically
throughout the day to help with his edema. (Pl. Br. 11). He
argues that the reasons given by the ALJ to discount this
opinion “do not constitute good reasons.”
Id. Plaintiff acknowledges that this court has
affirmed an ALJ's decision in circumstances somewhat
similar to those present here, but argues that case should be
distinguished from this case. Id. at 12 (citing
Musick v. Astrue, Civ. A. No. 12-2006-JWL, 2013 WL
441064 (D. Kan. Feb. 5, 2013)). He acknowledges that in
Musick, as here, the physician did not specify the
frequency with which the claimant should elevate his leg, but
argues that in Musick the physician suggested that
the swelling could be controlled with compression stockings
whereas Dr. Buhr provided no alternative which might control
the swelling in Plaintiff's leg other than elevating it
above his heart. (Pl. Br. 12-13). The Commissioner argues
that the ALJ applied the correct legal standard in weighing
the medical opinion of Dr. Buhr, and provided two reasons to
discount this opinion both of which are supported by the
record evidence-that Dr. Buhr did not define
“periodically, ” and that the opinion is not
supported by the medical evidence. (Comm'r Br. 9-10). In
his Reply Brief, Plaintiff argues that the evidence relied
upon by the Commissioner to support the ALJ's reasons to
discount Dr. Buhr's opinion is not inconsistent with the
need to elevate Plaintiff's right leg and even though
“the frequency [for elevating Plaintiff's leg] is
not exact, the sole issue before the Court [sic] is whether
the ALJ was correct that [Mr.] Kelling did [not] need to
elevate his leg at all. To this question, Dr.
Buhr's opinion is clear that he does.” (Reply 2)
(emphasis in Plaintiff's Reply).
treating physician's opinion about the nature and
severity of a claimant'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. § 416.927(c)(2).
When a treating physician's opinion is not given
controlling weight, the ALJ must nonetheless specify what
lesser weight he assigned it. Robinson v. Barnhart,
366 F.3d 1078, 1083 (10th Cir. 2004).
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. 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. § 416.927(c)(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).
considering the above factors, the ALJ must give good reasons
in his decision for the weight he assigns the opinion. If the
ALJ rejects the opinion completely, he must give specific,