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Laury v. Berryhill

United States District Court, D. Kansas

October 26, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.


          John W. Lungstrum United States District Judge

         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) made after remand 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 after remand, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.

         I. Background

         Plaintiff applied for DIB, alleging disability beginning April 29, 2013. (R. 170, 1088). An ALJ denied Plaintiff's application in a decision dated April 28, 2014, and Plaintiff perfected an appeal to this court, which found that the ALJ's decision must be remanded because it did not reflect that the ALJ had considered the opinion of Plaintiff's wife, as required by case law. Laury v. Colvin, Civ. A. No. 14-2386-JWL (D. Kan. Aug. 4, 2015) slip op. at 5-7 (appearing in the record at pp. 1184-90) (citing Blea v. Barnhart, 466 F.3d 903, 914-15 (10th Cir. 2006), and Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996)). The court declined to decide in the first instance whether Plaintiff's wife's opinion “should be weighed as an ‘other' medical source opinion in accordance [with] SSR [(Soc. Sec. Ruling)] 06-3p.” Id. (R. 1190).

         On remand, the Appeals Council vacated the decision of the ALJ, and remanded the case to an ALJ to consolidate with a subsequently-filed duplicate claim, to take further action to complete the administrative record, and to issue a new decision on the associated claims. (R. 1193-94). The ALJ consolidated the claims, held another hearing and issued a decision after remand on April 4, 2016. (R. 1088-1105, 1116-50). Thereafter, Plaintiff submitted a request to review the decision after remand and a brief explaining his objections to the decision, along with additional evidence for the Appeals Council. (R. 1301-21). The Appeals Council received the request, the brief, and the additional evidence and agreed to consider Plaintiff's objections. (R. 1083-83). The Appeals Council issued an Order making Plaintiff's brief and the additional evidence a part of the administrative record in this case, but found no basis to change the ALJ's decision after remand, and declined to assume jurisdiction. (R. 1076-80). Therefore, the ALJ's decision is the final decision of the Commissioner after remand, subject to judicial review. 42 U.S.C. § 405(g); see also (R. 1076). Plaintiff filed a timely appeal with this court, and the cause is now ripe for decision.

         The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). The Act provides that “[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 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. 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); see also, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the [Commissioner's], even if the evidence preponderates against the [Commissioner's] decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). 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; 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 whether, in light of the RFC assessed, claimant can perform his past relevant work; and 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 and considers Plaintiff's arguments in the order of his Brief.

         II. RFC Relating to Plaintiff's Physical Impairments

         Plaintiff argues that the ALJ's RFC relating to Plaintiff's physical impairments is not supported “by the substantial record evidence as a whole.” (Pl. Br. 50). Plaintiff provides several arguments why he believes this is so. First he argues that although the ALJ accorded partial weight to Dr. Gaeta's opinion and significant weight to Dr. Coleman's opinion, he failed to explain why he did not include their restriction from concentrated exposure to vibration, although the job of bench assembler requires the use of vibrating power tools such as a pneumatic impact wrench, a power press, a pneumatic clinching gun, and a rivet press. (Pl. Br. 50).

         Next, he argues that the ALJ should not have relied on Drs. Gaeta's and Coleman's opinions in any case because neither physician examined or treated Plaintiff. Id. In support thereof he argues that Dr. Gaeta's specialty is pediatrics and she has no expertise in adults with degenerative disc and joint problems. (Pl. Br. 51). He argues that both physicians' opinions were more than a year old when relied upon, and the ALJ failed his duty to fully and fairly develop the record when he failed to seek a medical opinion from a treating or examining physician. (Pl. Br. 51).

         Finally Plaintiff implies that the ALJ erred when he rejected the opinion of Plaintiff's physician's assistant, Dr. Wisener.[2] Id., at 52.

         In response, the Commissioner begins by arguing that any error in failing to include a limitation from concentrated exposure to vibration is harmless because none of the representative jobs relied upon by the ALJ involve exposure to vibration. (Comm'r Br. 5). She then argues that because the ALJ rejected Dr. Gaeta's opinion that Plaintiff could perform medium work and accorded only partial weight to her manipulative and environment limitations which were similar to the limitations assessed by the ALJ, “Plaintiff's extended complaint about Dr. Gaeta's opinion provides no basis for remand.” Id. at 6. She argues that the ALJ provided reasons, supported by the record evidence, to accord significant weight to Dr. Coleman's medical opinion, and that Plaintiff's remaining arguments of error in weighing the opinions are without merit. Id. at 7-8. She argues that Plaintiff merely summarizes Dr. Wisener's opinion and does not challenge the weight accorded by the ALJ. Id., at 8. Finally, she argues that it is the ALJ's duty to assess RFC based upon all of the evidence, and that he had no further duty to develop the record here because there was “sufficient evidence to determine that [Plaintiff] was not disabled.” (Comm'r Br. 9) (citing Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004); Chapo v Astrue, 682, F.3d 1285, 1288 (10th Cir. 2012); and Cowan v. Astrue, 552 F.3d 1182, 1187 (10th Cir. 2008)).

         In his Reply Brief, Plaintiff reiterated his arguments regarding physical impairments, and cited evidence which in his view detracts from the ALJ's findings and the Commissioner's arguments in this regard. (Reply 1-5). Plaintiff argued that an “ALJ's RFC [assessment], however, must be based on some medical opinion evidence.” Id. at 5 (citing Wells v. Colvin, 727 F.3d 1061 (10th Cir. 2013) (without pinpoint citation); and Fleetwood v. Barnhart, 211 Fed.Appx. 736, 740-41 (10th Cir. 2007)). Finally, he argued that the opinion in Chapo supports his argument that Dr. Gaeta's and Dr. Coleman's opinions were stale and therefore improperly relied upon. Id. at 5-6.

         A. The ALJ's Evaluation of the Opinion Evidence Regarding Physical Limitations, and His RFC Assessment Thereof

         The court begins, as always, and as it must, with the ALJ's findings and his evaluation of the evidence. With regard to physical limitations, the ALJ assessed Plaintiff with an RFC for a limited range of light work, finding that he “could stand or walk for four hours in an eight-hour workday, . . . could sit for six hours, . . . [and] could push or pull in the limits for lifting and carrying.” (R. 1094) (bolding omitted). He found that Plaintiff was limited to “frequent overhead reaching with the left upper extremity, . . .frequently turn[ing] his head side-to-side and up-and-down, . . . [and] occasionally us[ing] ramps and stairs, [but never] us[ing] ladders, ropes, or scaffolds.” Id. Finally, he found that Plaintiff “should avoid concentrated exposure to cold temperatures.” Id.

         In reaching his RFC assessment, the ALJ discounted Plaintiff's allegations of symptoms resulting from his impairments because they “are not entirely consistent with the medical evidence and other evidence in” the record. (R. 1095). He also considered and discussed the medical source opinions regarding physical limitations:

In making this finding, the undersigned gives some weight to the State agency medical opinions (Exhibit 7A and 10A [(R. 1155-64, 1167-82)]). Judee Gaeta, M.D. opined in November 2014 that the claimant retained the capacity for medium exertion level work subject to similar manipulative and environmental limitations as those set forth in the above residual functional capacity (Exhibit 7A). Upon reconsideration, consultant Gary Coleman, M.D., opined the claimant retained the capacity for light exertion work subject to similar manipulative and environmental limitations as those set forth in the above residual functional capacity.
The undersigned has considered Dr. Coleman's opinion and finds it to be consistent with the medical evidence, generally. It receives significant weight. Dr. Gaeta's opinion, however, does not adequately consider the limitations caused by all of the claimant's orthopedic impairments, and that deficiency may be due, at least in part, by [sic] treatments offered the claimant after Dr. Gaeta's review of the evidence. Thus, the undersigned gives Dr. Gaeta's opinion partial weight only.
The undersigned also considered an August 2011 opinion by clinician Mark Wisner, whose medical credentials are unknown.[3] [Mr.] Wisner noted that the claimant had decreased range of motion and was unable to lift above the shoulder. It was noted the claimant allegedly had difficulty getting dressed. It was further noted “his employability due to restrictive lifting is limited. He would be able to have sedentary type work” (Exhibit 1F/100 [(R. 402)]). Another statement around this time noted the claimant was not to lift because of back and shoulder pain, along with allegations of knee pain. It was further noted the claimant would be able to have a job in an office-type environment with limited neck movement and with the accommodation of frequent position changes (Exhibit 1F/117 [(R. 419)]).
The statements of [sic] been considered but are given little weight. The medical evidence, generally, does not support a finding the claimant would be limited to “sedentary” work only. The specific factual bases for Mr. Wisner's statement were not included in his opinion thus, the general overview of the medical evidence described above prevails. Furthermore, while the claimant's ability to lift is certainly limited by his impairments, nothing in evidence would limit the claimant to an “office-type environment.”

(R. 1097-98).

         B. Standard for Evaluating Medical Source Opinions[4]

         “Medical opinions are statements from physicians and psychologists or other acceptable medical sources[5] that reflect judgments about the nature and severity of [a claimant's] impairment(s) including [claimant's] symptoms, diagnosis and prognosis.” 20 C.F.R. § 404.1527(a)(2). Such opinions may not be ignored and, unless a treating source opinion is given controlling weight, all medical opinions will be evaluated by the Commissioner in accordance with factors contained in the regulations. Id. § 404.1527(c); SSR 96-5p, West's Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2017). 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). But, “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)). However, 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)).

         Nevertheless, all evidence from nonexamining sources such as state agency physicians and medical experts is considered opinion evidence. 20 C.F.R. § 404.1527(e). Although an ALJ is not bound by such opinions he must consider them, except for opinions regarding the ultimate issue of disability. Id., § 404.1527(e)(2)(i). Such opinions must also be evaluated using the regulatory factors, and the ALJ must explain in the decision the weight given them. Id., § 404.1527(e)(2)(ii & iii).

         “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(c)(2); see also, SSR 96-2p, West's Soc. Sec. Reporting Serv., Rulings 111-15 (Supp. 2017) (“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 other substantial evidence ...

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