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) 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.
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).
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.
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.
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.
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.
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.
RFC Relating to Plaintiff's Physical Impairments
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).
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).
Plaintiff implies that the ALJ erred when he rejected the
opinion of Plaintiff's physician's assistant, Dr.
Wisener. Id., at 52.
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)).
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.
The ALJ's Evaluation of the Opinion Evidence Regarding
Physical Limitations, and His RFC Assessment
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
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. [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
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.”
Standard for Evaluating Medical Source
opinions are statements from physicians and psychologists or
other acceptable medical sources 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)).
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).
[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
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 ...