United States District Court, D. Kansas
DIANE L. R.,  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.
claims that the ALJ erred in according no weight to the
medical opinions of her treating physician, Dr. Moore; posed
an inadequate hypothetical question to the vocational expert
(VE) and erroneously relied upon the expert's response to
that question; and erred in evaluating Plaintiff's
allegations of symptoms resulting from her impairments and
finding them “not entirely consistent” with the
record evidence. (R. 15).
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
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
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).
court considers the issues in the order they would appear
when applying the Commissioner's sequential evaluation
process. Although Plaintiff's Brief addresses the
ALJ's alleged error in evaluating Plaintiff's
allegations of symptoms resulting from her impairments after
it addresses the hypothetical questioning of the VE, the
ALJ's evaluation of a claimant's allegation of
symptoms is intertwined with the RFC assessment and is more
properly addressed before the issue of hypothetical
questioning. Poppa v. Astrue, 569 F.3d 1167, 1171
(10th Cir. 2009) (“the ALJ's credibility and RFC
determinations are inherently
acknowledges that the ALJ accorded no weight to Dr.
Moore's treating source opinion and partial weight to the
opinion of Dr. Sampat, the state agency medical consultant.
(Pl. Br. 11). She argues, however, that this is error
because the ALJ failed to fully inquire “into Dr.
Sampat's specific medical findings regarding
Plaintiff's medically determinable impairment (MDI) of
peripheral neuropathy, ” wherein Dr. Sampat found
insufficient record evidence to determine the severity of
Plaintiff's impairments and consequently did not assess
an RFC. Id. She suggests that the ALJ erroneously
picked and chose “among medical reports, using portions
of evidence favorable to his position while ignoring other
evidence.” Id. at 14-15 (quoting Carpenter
v. Astrue, 537 F.3d 1264, 1265 (10th Cir. 2008)). She
argues that while an ALJ must cite record evidence supporting
his decision, “he must also discuss the uncontroverted
evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects.”
Id. at 15 (quoting Clifton v. Chater, 79
F.3d 1007, 1010 (10th Cir. 1996)).
Commissioner argues that the ALJ reasonably evaluated the
medical opinion of Dr. Moore and of Dr. Sampat, and that his
evaluation is supported by the record evidence. (Comm'r
Br. 9). She argues that the ALJ did not pick and choose among
the medical reports but discussed the evidence as a whole and
“explained how he weighed the evidence to reach the RFC
assessment.” Id. In her Reply Brief, Plaintiff
argues that because Dr. Moore is a “long time examining
source, ” his “medical opinion is to be given
particular consideration [and] is presumptively entitled to
more weight than a doctor [whose] opinion [is] limited to a
review of the medical record.” (Reply 2). She explains
how, in her view, the record evidence supports a finding of
disability. Id. at 2-5.
Standard for Evaluating Medical Opinions
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), 416.927(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 Cir. 1984)).
[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) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and
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 Medical Opinions”).
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 in the record. Id. “[I]f
the opinion is deficient in either of these respects, then it
is not entitled to controlling weight.” Id.
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 he gives the treating source opinion.
Id. 350 F.3d at 1301. “Finally, if the ALJ
rejects the opinion completely, he must then give
‘specific, legitimate reasons' for doing so.”
Id. (citing Miller v. Chater, 99 ...