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 Disability
Insurance benefits (DIB) 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 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
applied for DIB, ultimately alleging disability beginning
December 27, 2010. (R. 92, 119). Plaintiff exhausted
proceedings before the Commissioner, and now seeks judicial
review of the final decision denying benefits. She argues
that the ALJ erred in considering the opinions of two health
care providers who treated her and in evaluating the
credibility of her allegations of symptoms.
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 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. §
404.1520; 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 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.
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).
court addresses the alleged errors in the order presented by
Plaintiff in her Brief, and finds no error in the
Commissioner's final decision.
Dr. Hodgson's Treating Source Opinion
acknowledges that the ALJ discounted Dr. Hodgson's
treating source medical opinion because it was inconsistent
with Plaintiff's overall moderate level of medical
treatment; inconsistent with the minimal treatment she
received for degeneration in her spine, shoulder, and hip
(hereinafter musculoskeletal impairments); and inconsistent
with her numerous daily activities. But, she argues that in
light of the fact that an ALJ ordinarily gives deference to a
treating source opinion, other factors should have lead the
ALJ to accord controlling weight to the opinion. She points
out that an ALJ has a duty to fully and fairly develop the
record, and argues that when the ALJ determined that
Plaintiff had moderate or minimal treatment, she erred
because she “failed to consider the possibility that
further treatment was not available for Ms. Miller.”
(Pl. Br. 20).
Commissioner argues that the ALJ reasonably evaluated the
opinion evidence, including the opinions of consultative
examiners and state agency physicians and psychologists, and
reasonably discounted the treating source opinion of Dr.
Hodgson, finding the opinions of the medical healthcare
providers who did not treat Plaintiff should be accorded
greater weight. (Comm'r Br. 9). She points out that
Plaintiff did not argue that the ALJ's reasons for
discounting Dr. Hodgson's opinion were based on improper
factors, but that other evidence which the ALJ did not rely
on supports Dr. Hodgson's opinion. Id. at 10.
She argues that this is essentially a request for the court
to reweigh the evidence. Id. She argues that
contrary to Plaintiff's arguments, the evidence supports
the ALJ's decision.
Standard for Evaluating a Treating Source
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. § 404.1527(c)(2).
Watkins court explained the nature of the inquiry
regarding a treating source's medical opinion.
Id, 350 F.3d at 1300-01 (citing Soc. Sec.
Ruling (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 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.
96-2p, cited by the court in Watkins, explains that
“substantial evidence” as used in determining
whether a treating source opinion is worthy of
“controlling weight” is given the same meaning as
determined by the Court in Perales, 402 U.S. at 401.
SSR 96-2, West's Soc. Sec. Reporting Serv., Rulings 113
(Supp. 2016). As the Ruling explains, evidence is
“substantial evidence” precluding the award of
“controlling weight, ” if it is “such
relevant evidence as a reasonable mind would accept as
adequate to support a conclusion that is contrary to the
conclusion expressed in the medical opinion.”
treating physician opinion is not given controlling weight,
the ALJ must nonetheless specify what lesser weight she
assigned the treating physician's opinion. Robinson
v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004). 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.” 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(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 ...