United States District Court, D. Kansas
PAMELA K. L.,  Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
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) pursuant to 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 final decision.
argues that the ALJ “failed to follow the treating
physician rule, [by] giving the greatest weight to
non-treating, non-examining physicians” (Pl. Br. 22)
(bolding omitted), and by erroneously discounting the
opinions of a treating psychologist, Dr. Dowd, and an
examining psychologist, Dr. Schwartz. Id. at 24-28.
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); 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
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
process--determining at step four whether, considering 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,
she 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 considers the issue as presented
in Plaintiff's Brief.
Standard for Evaluating Medical Opinions
Plaintiff's Brief suggests, at the time of the decision
in this case (February 22, 2017), the Commissioner applied
the “treating physician rule” when weighing
medical opinions in the record evidence. (Pl. Br. 23) (citing
20 C.F.R. § 404.1527 (2016); Soc. Sec. Ruling
(SSR) 96-2p; and Watkins v. Barnhart, 350 F.3d 1297,
1300 (10th Cir. 2003) (discussing SSR 96-2p)). For claims
filed before March 17, 2017, “[m]edical 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.
2018). A physician who has treated a patient frequently over
an extended period (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
[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.
2018) (“Giving Controlling Weight to Treating Source
Tenth Circuit has explained the nature of the inquiry
regarding a treating source's medical opinion.
Watkins, 350 F.3d at 1300-01 (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 in the record. Id.
“[I]f the opinion is deficient in either of these
respects, then it is not entitled to controlling
treating source opinion is not given controlling weight, the
inquiry does not end. Id. A treating source opinion
is “still entitled to deference and must be weighed
using all of the factors provided in 20 C.F.R.'
404.1527.” Id. 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)).
considering the factors, the ALJ must give reasons in the
decision for the weight she gives the treating source
opinion. Id. 350 F.3d at 1301. “Finally, if
the ALJ rejects the opinion completely, [s]he must then give
‘specific, legitimate reasons' for doing so.”
Id. (citing Miller v. Chater, 99 ...