Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cindy S. C. v. Saul

United States District Court, D. Kansas

August 21, 2019

CINDY S. C., [1] Plaintiff,
v.
ANDREW M. SAUL, [2]Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE

         Plaintiff seeks review of a decision of the Commissioner of Social Security denying Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits pursuant to sections 216(i), 223, 1602, and 1614(a) of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a) (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 failed “to provide sufficient reasons for discounting the opinions of the consultative examiner, Dr. Jason Wells.” (Pl. Br. 7).

         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” refers to the weight of the evidence. It requires more than a scintilla, but 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, 416.920; 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), 416.920(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 previously assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

         II. Discussion

         Plaintiff claims “the ALJ afforded little weight to most of the functional limitations contained in Dr. Wells's opinions and significant weight to the aspects of the opinions suggesting that [Plaintiff] was capable of performing simple work.” (Pl. Br. 7-8) (citing R. 74). She argues the ALJ discounted Dr. Wells's opinions because of “Dr. Wells's normal mental status examinations, [Plaintiff]'s minimal mental health treatment, lack of suicidal ideation, and reports that [Plaintiff]'s last anxiety attack had occurred two months earlier.” Id. at 8 (citing R. 73-74). She argues these reasons are insufficient. Id. (citing Youngblood v. Astrue, No. 08-2607-KHV-GBC, 2009 WL 4611459, at *7 (D. Kan. Dec. 4, 2009)).

         Plaintiff argues that Dr. Wells's first examination findings were far from being normal, and “showed limitations consistent with his opinion, ” such as fair eye contact, relating in a guarded fashion, difficulty focusing, slow speed, inability to recall current events, and appearing uncomfortable during the examination. Id. at 10-11. She argues the ALJ did not address these findings. She argues that the second examination was not normal either, and that “her condition appeared to deteriorate in some ways.” (Pl. Br. 11). She notes that she maintained poor eye contact, related in guarded manner, spoke softly, her speed was slow and deliberate, had difficulty spelling “world” backward, seemed distracted, recalled only one of three words, was unable to recall current events, appeared tired and depressed, and the interview appeared to be taxing her. She argues that this case is similar to the case of Bryant v. Comm'r, 753 Fed.Appx. 637, 641 (10th Cir. Nov. 23, 2018), wherein the ALJ impermissibly cherry-picked the record relying “on portions of medical reports that tended to support a finding of non-disability and therefore contradicted [the consultative examiner's] opinion, but [] ignor[ing] other portions of the same reports that confirmed some of [the consultative examiner's] observations and tended to support her conclusions.” She argues that the ALJ here committed the same error when he “pointed to Dr. Wells's observations that supported a finding of non-disability while ignoring the findings in the same report that supported the opinion.” (Pl. Br. 12). She argues that in the same manner, the ALJ “cherry-picked the remaining treatment record in concluding that Dr. Wells's opinion was inconsistent with the other evidence.” Id. at 13. She argues that “the ALJ termed the other mental status examinations as nearly normal-to-normal, [but] failed to support this assessment.” Id.

         Plaintiff seems to admit that the record supports the ALJ's findings that Dr. Wells's opinions are inconsistent with Plaintiff's “minimal mental health treatment, lack of suicidal ideation, and reports that her last ‘bout' of anxiety had been two months before the examination, ” but argues “that Dr. Wells considered each of these factors when assessing [Plaintiff]'s functioning.” Id. at 13-14 (citing this court's opinion in Fuller v. Astrue, 766 F.Supp.2d 1149, 1162 (D. Kan. 2011), and implying that the ALJ in this case also “substituted his medical judgment for that of the medical source when the record made clear that the ALJ specifically considered the claimant's pain behaviors when formulating their opinions.”). She argues that “the ALJ pointed to nothing to suggest that a claimant needs to be suicidal to suffer disabling limitations, ” and that Dr. Wells did not base his opinion on suicidal ideation and noted that Plaintiff had not been suicidal since 2015 but nonetheless opined Plaintiff suffered disabling limitations. (Pl. Brief 14). She argues that she did not report her last ‘bout' of anxiety was two months earlier, but “reported that she had panic attacks once a month and that her anxiety impacted her daily.” Id. Finally, Plaintiff claims the ALJ erred in relying on Plaintiff's minimal mental health treatment because he failed to apply the analysis required by the regulations and explained by the Tenth Circuit in Frey v. Bowen, 816 F.2d 508, 517 (10th Circuit 1987) (the Frey test). Id. (citing Fuller, 766 F.Supp.2d at 1166; and Luna v. Colvin, 13-1289-JWL, 2014 WL 5598248 at *5 (D. Kan. Nov. 4, 2014)).

         The Commissioner argues that the ALJ properly weighed Dr. Wells's medical opinions and properly assessed Plaintiff's RFC. He points out that the ALJ provided a detailed analysis of the “limited medical evidence, ” consisting of over 15 single-spaced pages in his decision. (Comm'r Br. 4). He points out that the ALJ weighed all four medical opinions in the record, according partial weight to the medical opinions of both state agency psychological consultants and partial weight to both of Dr. Wells's opinions. Id. at 4-5. He points to record evidence tending to support the ALJ's weighing of the medical opinions. Id. at 5-6.

         The Commissioner argues that although the ALJ discounted portions of Dr. Wells's opinions, he “assessed a very restrictive residual functional capacity assessment limiting Plaintiff to performing only simple, repetitive tasks and having only occasional contact with coworkers and supervisors and no contact with the public.” (Comm'r Br. 6). He argues that Plaintiff supports her claim of “cherry-picking” with citations to “her own statements rather than objective medical findings.” Id. at 7. He argues, “the ALJ did not err in carefully stating which portions of Dr. Wells's opinions he accepted and which portions he rejected, and giving good reasons for rejecting some portions of the opinions.” Id. (citing R. 73-75).

         The Commissioner argues that the Frey test is inapposite here because the ALJ was considering Plaintiff's unwillingness to seek treatment rather than her inability to secure treatment. Id. at 7-8. He argues that “the ALJ gave a number or [sic] reasons, supported by the record, for rejecting some portions of Dr. Wells's opinions, and Plaintiff's arguments to the contrary should be rejected.” Id. at 8 (citing Allman v. Colvin, 813 F.3d 1326, 1333 (10th Cir. 2016).

         Plaintiff reiterates her arguments in her Reply Brief. She also argues that the Commissioner's Brief did not address the significant abnormal findings in Dr. Wells's examinations or the evidence supporting his opinions, and that the Commissioner did not address Bryant, but cited to an opinion which addressed an issue not present here.

         A. Standard for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.