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Lynn S. v. Berryhill

United States District Court, D. Kansas

June 13, 2019

SUSAN LYNN S., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge

         Plaintiff 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.

         I. Background

         Plaintiff claims the ALJ erred in weighing the medical opinion of her treating psychologist, Ms. Cowan, LMLP (Licensed Master Level Psychologist), [2] and consequently erred, both in finding that her mental impairments do not meet the requirements of Listing 12.04 and/or Listing 12.06 and in assessing her residual functional capacity (RFC).

         The 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. 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 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 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 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 issues as presented in Plaintiff's Brief. Because the issues presented hinge primarily on the ALJ's evaluation of Ms. Cowan's medical opinion, the court begins its discussion with consideration of that issue. Moreover, the court finds it necessary first to address counsel's loose practices in citation of alleged support for the propositions she asserts in Plaintiff's Brief.

         The court agrees with counsel's apparent determination that the 2017 edition of the Code of Federal Regulations generally applies in this case because the ALJ's decision issued on August 29, 2017. See, e.g., Pl. Br. at 24, n.8, 25 nn.13-17. Moreover, the court recognizes that the criteria for evaluating a claimant's allegations of symptoms, for evaluating the opinion evidence, and for evaluating mental disorders has been in flux over the last several years. See, e.g., Soc. Sec. Ruling (SSR) 16-3p, West's Soc. Sec. Reporting Serv. Rulings, 664-78 (Mar. 16, 2016) (Revised and republished at West's Soc. Sec. Reporting Serv. Rulings, 736-49 (Oct. 25, 2017, applicable Mar. 16, 2016)); 20 C.F.R. §§ 404.1520b (“How we consider evidence”), 404.1520c (“How we consider and articulate medical opinions and prior administrative medical findings for claims filed on or after March 27, 2017”), 404.1527 (“Evaluating opinion evidence for claims filed before March 27, 2017”) (2017); 20 C.F.R., Pt. 404, Subpt. P, App. 1, §§ 12.00-12.15 (2017) (final rule adopted at 81 Fed. Reg. 66, 138 Revised Medical Criteria for Evaluating Mental Disorders (Effective Jan. 17, 2017)).

         The court notes inconsistencies in counsel's citation to the Code of Federal Regulations. (Pl. Br. 2, nn.4, 6; 24, n.10; 29, n.25 (citing C.F.R. 2016); 31, n.31 (citing C.F.R. 2018)). And in certain instances, although Plaintiff acknowledges that this is a proceeding under Title II of the Act, she cites to Part 416 of 20 C.F.R relating to Title XVI. Id. at 2 nn.4, 6, 7; 24 nn.8-10. Finally, and most importantly, several of Plaintiff's citations do not relate to the proposition she asserts, and in several cases the court is unable to find any support for the proposition asserted. The court will discuss just a couple of examples.

         Plaintiff asserts, “A marked impairment in the functional domain of “concentration, persistence, or pace” can be found when a claimant is unable to sustain attention or persist at simple tasks without extra supervision or assistance, or in accordance with quality and accuracy standards, or at a consistent pace without undue interruptions or distractions.” (Pl. Br. 26) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 2.00(C)(3) (2017)). Section 2.00(C)(3) of the Listing of Impairments deals with the diagnosis of vestibular disorder, so the court assumes counsel made a typographical error and was referring to § 12.00(C)(3) since her argument relates to mental disorders. However, that section of the Listing of Impairments explains the evidence needed to evaluate mental disorders and says nothing about the ability to concentrate, persist, or maintain pace or any of the other paragraph B criteria. The court was unable to identify the proposition asserted by Plaintiff within any of the Mental Disorder Listings.

         The Listings define the functional area of concentrate, persist, or maintain pace as referring “to abilities to focus attention on work activities and stay on task at a sustained rate, ” and they provide examples including “Initiating and performing a task that you understand and know how to do; working at an appropriate and consistent pace; completing tasks in a timely manner; ignoring or avoiding distractions while working; changing activities or work settings without being disruptive; working close to or with others without interrupting or distracting them; sustaining an ordinary routine and regular attendance at work; and working a full day without needing more than the allotted number or length of rest periods during the day.” 20 C.F.R. Pt. 404, Subpt. P., App. 1 § 12.00E(3). It defines a marked limitation in any of the paragraph B criteria as meaning “functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited.” 20 C.F.R. Pt. 404, Subpt. P., App. 1 § 12.00F(2)(d). It does not state that the examples quoted above from Plaintiff Social Security Brief demonstrate a marked limitation in the functional area-concentrate, persist, or maintain pace.

         Similarly, Plaintiff cites 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 2.00(C)(2) for the propositions that “‘social functioning' relates to the claimant's ability to interact independently, appropriately, effectively, and on a sustained basis with other individuals, regulate her emotions, control her behavior, and maintain well-being in a work setting, ” and that a claimant “demonstrates impaired social functioning by avoidance of interpersonal relationships or social isolation.” (Pl. Br. 27-28 and nn.21-22). However, “social functioning” is no longer a mental functional area, but the related mental functional area in the current regulations is “interact with others.” 20 C.F.R. Pt. 404, Subpt. P., App. 1 § 12.00E(2). This area “refers to the abilities to relate to and work with supervisors, co-workers, and the public.” Id. Examples of the related abilities are: “cooperating with others; asking for help when needed; handling conflicts with others; stating own point of view; initiating or sustaining conversation; understanding and responding to social cues (physical, verbal, emotional); responding to requests, suggestions, criticism, correction, and challenges; and keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness.” Id. While the regulations in Listing § 12.00 relate in some vague and general way to the propositions suggested in Plaintiff's Brief, those regulations do not stand for the propositions suggested, and counsel appears to be working fast and loose with the Act and the regulations to support her position.

         The court will provide but one more example of this type of troubling citation in Plaintiff's Brief. Plaintiff asserts, “A treating source [opinion] need not be directly supported by all of the evidence, but should not conflict with any substantial evidence.” (Pl. Br. 29) (citing “20 C.F.R.§ 404.1527(d)(2). See also Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (quoting Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003) (quoting 20 C.F.R. § 416.927(d)(2))”). The court perceives that Plaintiff's citation refers to 20 C.F.R. § 404.1527(c)(2) rather than (d)(2) because 20 C.F.R. § 416.927 and the related Title II regulation, 20 C.F.R. § 404.1527 have changed since it was quoted in Doyal and cited in Robinson, and the information contained in subparagraph (d) at that time is now contained in subparagraph (c). More importantly however, and although the court agrees in general terms with Plaintiff's assertion, neither 20 C.F.R. § 404.1527(c)(2), Doyal, nor Robinson, stand for the proposition asserted by Plaintiff. The portion of Doyal which quoted the regulation at issue here and was quoted by the court in Robinson does not state that a treating source opinion should not conflict with any evidence and need not be directly supported by all the evidence, but it explains, “The treating physician's opinion is given particular weight because of his ‘unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.'” Robinson, 366 F.3d at 1084 (quoting Doyal at 762, quoting 20 C.F.R. 416.927(d)(2)). The court recognizes that counsel is obligated to zealously advocate for her client before the agency and before this court and may argue that the law is or should be to an effect which supports the outcome she desires. But she is cautioned not to cite the regulations or case law for propositions for which they do not directly stand without explaining how in her view they support the argument she makes.

         II. Listings 12.04 and 12.06 and the ALJ's Evaluation of Ms. Cowan's Opinion

         Plaintiff claims “[t]he ALJ Erred By Failing to Find That [Plaintiff's] Mental Impairments Met the Requirements of Listings §§ 12.04 and 12.06.” (Pl. Br. 24, § I) (Title, bolding omitted). This is so, in Plaintiff's view, because she has marked limitation[3] in two of the “paragraph B” criteria of Listings 12.04 and 12.06- concentrating, persisting, or maintaining pace; and interacting with others. (Pl. Br. 26-29). Plaintiff argues that she also meets the paragraph C criteria of Listings 12.04 and 12.06. Id. at 28-29.

         Plaintiff's argument that she has marked limitation in these two paragraph B criteria is based on Ms. Cowan's opinions that Plaintiff “had marked deficiencies of concentration, persistence or pace, ” id. at 27 (citing R. 901), and “marked difficulties in maintaining social functioning.” Id. at 28 (citing R. 901). Plaintiff seeks to support Ms. Cowan's opinions by explaining how in her view Ms. Cowan's treatment notes reflect marked limitations in these functional areas. Id. at 27-28. Plaintiff's argument that her conditions meets the paragraph C criteria of the Listings is based on Dr. Skirchak's notes in a Diagnostic Review Form completed at the Wyandot Center for Community Behavior on March 25, 2015. (R. 524-25).

         A. Evaluation of Ms. Cowan's Medical Opinion

         Plaintiff argues that in discounting Ms. Cowan's medical opinion the ALJ “pick[ed] and cho[]se from [her] medical opinion, using only those parts that are favorable to a finding of nondisability.” (Pl. Br. 30) (quoting Robinson, 366 F.3d at 1083). She claims it was error for the ALJ to rely on the state agency psychologists who reviewed Plaintiff's medical records because “[t]hey did not have the benefit of the bulk of [Plaintiff]'s medical records, or an understanding of her minimal progress and improvement explained in Ms. Cowan's records. There is an almost two-year gap between the records that the nonexamining sources reviewed and the date of hearing on March 31, 2017.” Id. She argues that all of Plaintiff's “psychological medical records were at the ALJ's disposal, however, he chose to arbitrarily ignore them and to focus only on a part of the evidence of record.” Id. at 31. She asserts the ALJ failed to provide good reasons for according greater weight to the opinions of nonexamining sources and failed properly to consider the regulatory factors for weighing medical opinions. Id. She argues “Ms. Cowan's notes, observations, and treatment plan support her findings as to [Plaintiff]'s marked deficiencies of concentration, persistence, or pace, and marked difficulties in maintaining social functioning, ” and her opinions are “supported within Ms. Cowan's records over a two-year period, where she met with [Plaintiff] and was able to best observe her and the overall effects of her severe anxiety.” Id. at 31, 32. She argues the ALJ's findings are supported only by “a general, self-serving statement, that the ‘treating mental health records generally support moderate mental health limitations' and attempting to hang his hat in favor of ‘moderate' limitations by casting aspersion upon an ‘old, outdated standard' utilized by Ms. Cowan.” Id. (quoting R. 22-23). She quotes Robinson, 366 F.3d at 1082, for the proposition that “[A]n ALJ may not make speculative inferences from medical reports and may reject a treating physician's opinion outright only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion.” (Pl. Br. 32) (brackets in Pl. Brief).

         The Commissioner argues that “[t]he ALJ's treatment of the medical opinions was reasonable, ” that he considered the entire record and accorded great weight to the opinions of the state agency psychologists, noting that they are consistent with the record. (Comm'r Br. 8). She points out that the ALJ accorded little weight to Ms. Cowan's opinions “because they were not consistent with other treatment records showing only moderate limitations; because they were conclusory and unsupported; because they were internally inconsistent with Ms. Cowan's own treatment notes; because the part of the opinion that Plaintiff would have ‘great difficulty maintaining a full-time job' was on an issue reserved to the Commissioner; and because Ms. Cowan used an old, outdated standard in determining Plaintiff's mental health limitations, ” and argues that each reasons is valid in accordance with the regulations. Id. at 8-9 (citing R. 23; and apparently quoting without attribution Ms. Cowan's letter dated Feb. 11, 2017 (R. 944) cited by the ALJ on page 23). She argues that the opinion is inconsistent with Ms. Cowan's treatment notes showing “that Plaintiff's depression was getting better with medication.” Id. at 9.

         In her Reply Brief, Plaintiff reiterates that “the opinions [of] non-examining physicians are entitled to the least weight in the overall evaluation of disability, particularly when considered with the long-time treatment and opinion of a treating specialist” such as Ms. Cowan (Reply 1), and that there is an almost two-year gap between the records these non-examining sources reviewed and the hearing.” Id. at 2. She argues that Ms. Cowan's “findings are in line with those of Danielle Skirchak, M.D., the psychiatrist at Wyandot Center, ” and that “The Commissioner's analysis … was not advanced by the ALJ; therefore, it is improper for the Commissioner to provide rationale to support the decision where [it] was not advanced by the ALJ.” Id. at 3.

         1. Standard for Evaluating Medical Opinions

         For claims filed before March 17, 2017, “[m]edical opinions are statements from physicians and psychologists or other acceptable medical sources[4] 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) (2017). 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 her opinion is generally entitled to “particular weight.” Doyal, 331 F.3d at 762. 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, 366 F.3d at 1084; 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)).

         “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 ...


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