United States District Court, D. Kansas
CINDY S. C.,  Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
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.
claims the ALJ failed “to provide sufficient reasons
for discounting the opinions of the consultative examiner,
Dr. Jason Wells.” (Pl. Br. 7).
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).
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, 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
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).
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)).
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.
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)).
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.
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).
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.
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.
Standard for ...