Cox v. Social Security Administration, Commissioner of

Filing 26

MEMORANDUM AND ORDER. The judgment of the Commissioner is affirmed pursuant to the fourth sentence of 42 U.S.C. § 405(g). See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 8/19/2011. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SONDRA COX,
Plaintiff,
vs.

Case No. 10-2404-SAC

MICHAEL J. ASTRUE,
Commissioner of
Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits and supplemental security income payments.
The matter has been fully briefed by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's decision

to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the

1

conclusion.

The determination of 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 really constitutes mere conclusion.
v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Ray

Although the court

is not to reweigh the evidence, the findings of the Commissioner
will not be mechanically accepted.

Nor will the findings be

affirmed by isolating facts and labeling them substantial
evidence, as the court must scrutinize the entire record in
determining whether the Commissioner's conclusions are rational.
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan. 1992).

The

court should examine the record as a whole, including whatever in
the record fairly detracts from the weight of the Commissioner's
decision and, on that basis, determine if the substantiality of
the evidence test has been met.

Glenn, 21 F.3d at 984.

The Social Security Act provides that an individual shall be
determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment expected
to result in death or last for a continuous period of twelve
months which prevents the claimant from engaging in substantial
gainful activity (SGA).

The claimant's physical or mental

impairment or impairments must be of such severity that they are
not only unable to perform their previous work but cannot,
considering their age, education, and work experience, engage in

2

any other kind of substantial gainful work which exists in the
national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one, the

agency will find non-disability unless the claimant can show that
he or she is not working at a “substantial gainful activity.”

At

step two, the agency will find non-disability unless the claimant
shows that he or she has a “severe impairment,” which is defined
as any “impairment or combination of impairments which
significantly limits [the claimant’s] physical or mental ability
to do basic work activities.”

At step three, the agency

determines whether the impairment which enabled the claimant to
survive step two is on the list of impairments presumed severe
enough to render one disabled.

If the claimant’s impairment does

not meet or equal a listed impairment, the inquiry proceeds to
step four, at which the agency assesses whether the claimant can
do his or her previous work; unless the claimant shows that he or
she cannot perform their previous work, they are determined not
to be disabled.

If the claimant survives step four, the fifth

and final step requires the agency to consider vocational factors
(the claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other

3

jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
the analysis.
1993).

Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir.

At step five, the burden shifts to the Commissioner to

show that the claimant can perform other work that exists in the
national economy.

Nielson, 992 F.2d at 1120; Thompson v.

Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The Commissioner

meets this burden if the decision is supported by substantial
evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case

This case has a long history and has been pending for over
10 years.

Plaintiff filed her claim for disability benefits on

February 8, 2001.

Administrative law judge (ALJ) Susan B. Blaney

issued her 1st decision on May 29, 2003.

The Appeals Council

remanded the case on June 30, 2006 (R. at 22).

On March 21,

2008, ALJ Blaney issued her 2nd decision (R. at 22-32).

The

Appeals Council denied plaintiff’s request for review on May 28,
2010 (R. at 12-14).

Plaintiff alleges that she has been disabled

4

since December 29, 2000 (R. at 22).

Plaintiff is insured for

disability insurance benefits through December 31, 2005 (R. at
23).

At step one, the ALJ found that plaintiff has not engaged

in substantial gainful activity since the alleged onset date of
disability (R. at 23).

At step two, the ALJ found that plaintiff

had the following severe impairments: fibromyalgia; headaches,
variously diagnosed as migraine and muscular, mostly controlled
with medication; and mood disorder, NOS (R. at 23).

At step

three, the ALJ determined that plaintiff’s impairments do not
meet or equal a listed impairment (R. at 24-25).

After

determining plaintiff’s RFC (R. at 29), the ALJ found at step
four that plaintiff is able to perform past relevant work (R. at
29).

In the alternative, at step five, the ALJ found that

plaintiff could perform other jobs that exist in significant
numbers in the national economy (R. at 29-30).

Therefore, the

ALJ concluded that plaintiff was not disabled (R. at 30).
III.

Did the ALJ err in finding that plaintiff’s impairments do

not meet or equal listed impairment 12.02?
At step three, plaintiff has the burden of demonstrating,
through medical evidence, that his/her impairments meet all of
the specified medical criteria contained in a particular listing.
Riddle v. Halter, 10 Fed. Appx. 665, 667 (10th Cir. March 22,
2001).

An impairment that manifests only some of those criteria,

no matter how severely, does not qualify.
5

Sullivan v. Zebley,

493 U.S. 521, 530, 110 S. Ct. 885, 891 (1990).

Because the

listed impairments, if met, operate to cut off further inquiry,
they should not be read expansively.

Caviness v. Apfel, 4 F.

Supp.2d 813, 818 (S.D. Ind. 1998).
Plaintiff claims that the ALJ erred by rejecting the
testimony of Dr. Nelson that plaintiff’s impairment met listed
impairment 12.02A.

That impairment is as follows:

12.02 Organic Mental Disorders: Psychological
or behavioral abnormalities associated with a
dysfunction of the brain. History and
physical examination or laboratory tests
demonstrate the presence of a specific
organic factor judged to be etiologically
related to the abnormal mental state and loss
of previously acquired functional abilities.
The required
disorders is
both A and B
requirements

level of severity for these
met when the requirements in
are satisfied, or when the
in C are satisfied.

A. Demonstration of a loss of specific
cognitive abilities or affective changes and
the medically documented persistence of at
least one of the following:
1. Disorientation to time and place; or
2. Memory impairment, either short-term
(inability to learn new information),
intermediate, or long-term (inability to
remember information that was known sometime
in the past); or
3. Perceptual or thinking disturbances (e.g.,
hallucinations, delusions); or
4. Change in personality; or
5. Disturbance in mood; or

6

6. Emotional lability (e.g., explosive temper
outbursts, sudden crying, etc.) and
impairment in impulse control; or
7. Loss of measured intellectual ability of
at least 15 I.Q. points from premorbid levels
or overall impairment index clearly within
the severely impaired range on
neuropsychological testing, e.g., the
Luria–Nebraska, Halstead–Reitan, etc.;
AND
B. Resulting in at least two of the
following:
1. Marked restriction of activities of daily
living; or
2. Marked difficulties in maintaining social
functioning; or
3. Marked difficulties in maintaining
concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each
of extended duration;
OR
C. Medically documented history of a chronic
organic mental disorder of at least 2 years'
duration that has caused more than a minimal
limitation of ability to do basic work
activities, with symptoms or signs currently
attenuated by medication or psychosocial
support, and one of the following:
1. Repeated episodes of decompensation,
each of extended duration; or
2. A residual disease process that has
resulted in such marginal adjustment that
even a minimal increase in mental demands or
change in the environment would be predicted
to cause the individual to decompensate; or
3. Current history of 1 or more years'
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inability to function outside a highly
supportive living arrangement, with an
indication of continued need for such an
arrangement.
20 C.F.R. Pt. 404, Subpt. P, App. 1 (2011 at 509-510, emphasis
added).
At a hearing on July 20, 2007, Dr. Nelson, board certified
in neurology and neurophysiology (R. at 729), testified that it
was his opinion that plaintiff met listed impairment 12.02 (R. at
745).

For purposes of 12.02A, Dr. Nelson indicated that

plaintiff had memory impairment and a change in personality or
mood (R. at 746).

However, regarding the 12.02B criteria, Dr.

Nelson only indicated that plaintiff was markedly impaired in
concentration, persistence, or pace (R. at 746).

Dr. Nelson did

not testify that plaintiff had a marked impairment in either
activities of daily living or in maintaining social functioning.
Furthermore, Dr. Nelson did not testify that plaintiff had
repeated episodes of decompensation.
Plaintiff argues that Dr. Nelson’s testimony establishes
that plaintiff’s impairments meet listed impairment 12.02A (Doc.
22 at 26).

However, in order to meet the listed impairment,

plaintiff must demonstrate that both 12.02A and 12.02B are
satisfied.1

Dr. Nelson did not testify that plaintiff’s

impairments met two of the four criteria set forth in 12.02B.
1

In

Plaintiff does not argue that plaintiff’s impairments meet
or equal 12.02C.
8

order to meet listed impairment 12.02B, there must be evidence
that at least two of the 12.02B criteria have been met.
Plaintiff fails to point to any other evidence to establish that
two of the criteria of 12.02B have been met in this case.
Furthermore, the ALJ relied on a psychological evaluation,
including testing, performed by Dr. Davenport in 2007 (R. at 24,
580-586).

Dr. Davenport opined that plaintiff had no limitations

in 7 categories, and only mild2 limitations in 3 other categories
(R. at 584-585).

Thus, the court finds that plaintiff has failed

to provide evidence that plaintiff’s impairments meet or equal
12.02.

Furthermore, the ALJ reasonably relied on a psychological

evaluation by Dr. Davenport to conclude that plaintiff’s
impairments result in no more than mild limitations, and thus
fail to satisfy listed impairment 12.02.
IV.

Did the ALJ err in his consideration of the opinions of Dr.

Younger, a treating physician?
The opinions of physicians, psychologists, or psychiatrists
who have seen a claimant over a period of time for purposes of
treatment are given more weight than the views of consulting
physicians or those who only review the medical records and never
examine the claimant.

The opinion of an examining physician is

generally entitled to less weight than that of a treating
2

“Mild” is defined as a slight limitation in the area, but
further states that the individual can generally function well
(R. at 584).
9

physician, and the opinion of an agency physician who has never
seen the claimant is entitled to the least weight of all.
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).

When

a treating source opinion is inconsistent with the other medical
evidence, the ALJ’s task is to examine the other medical source’s
reports to see if they outweigh the treating source’s reports,
not the other way around.

Treating source opinions are given

particular weight because of their unique perspective to the
medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultive examinations.

If an ALJ intends

to rely on a nontreating physician or examiner’s opinion, he must
explain the weight he is giving to it.
F.3d 1208, 1215 (10th Cir. 2004).

Hamlin v. Barnhart, 365

The ALJ must provide a legally

sufficient explanation for rejecting the opinion of treating
medical sources in favor of non-examining or consulting medical
sources.

Robinson, 366 F.3d at 1084.

A treating physician’s opinion about the nature and severity
of the claimant’s impairments should be given controlling weight
by the Commissioner if well supported by clinical and laboratory
diagnostic techniques and if it is not inconsistent with other
substantial evidence in the record.

Castellano v. Secretary of

Health & Human Services, 26 F.3d 1027, 1029 (10th Cir. 1994); 20
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).

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When a treating

physician opinion is not given controlling weight, the ALJ must
nonetheless specify what lesser weight he assigned the treating
physician opinion.
(10th Cir. 2004).

Robinson v. Barnhart, 366 F.3d 1078, 1083
A treating source opinion not entitled to

controlling weight is still entitled to deference and must be
weighed using all of the following factors:
(1) the length of the treatment relationship and the 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.
Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003).
After considering the above factors, the ALJ must give good
reasons in his/her decision for the weight he/she ultimately
assigns the opinion.

If the ALJ rejects the opinion completely,

he/she must then give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.

In questionnaires dated August 24, 2001 and September 21,
2001, Dr. Younger opined that plaintiff was not capable or
probably not capable of full time employment (R. at 220, 222).
Both reports note pain limitations (R. at 220, 222).

The August

24, 2001 report included specific functional limitations of no
heavy lifting, no prolonged walking or standing, and minimize
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repetitive arm movements (R. at 221).

The September 21, 2001

report listed functional limitations on lifting, prolonged
walking, and repetitive arm movements (R. at 219).

The ALJ’s RFC

findings limited plaintiff to lifting no more than 20 pounds
occasionally, and 10 pounds frequently (R. at 29).

This finding

is consistent with the opinions set forth in the state agency
physical RFC assessment (R. at 198), and is not contradicted by
any other medical opinion evidence in the case record.3
In his decision, the ALJ stated the following:
In the abundance of caution, the undersigned
posed an additional hypothetical question to
the vocational expert that further limited
claimant to doing no prolonged walking and no
repetitive arm movements, although the
undersigned does not find claimant is so
limited. The vocational expert testified that
with those additional limitations, although
claimant would not be capable of performing
her past relevant work, but would be capable
of performing other work that exists in
significant numbers in the local and national
economy. As examples of such work, the
vocational expert cited the following
sedentary, unskilled jobs, the DOT numbers,
and the numbers of such jobs existing in
Kansas and in the national economy, which
such an individual could perform:
surveillance systems monitor (500/100,000)
and credit checker (500/55,000).
The undersigned notes the numbers of jobs
cited by the vocational expert for the
representative sample, in both the local and
national economies, and finds them to be
significant.

3

In fact, Dr. Box, a treating physician, opined that
plaintiff could occasionally lift up to 20 pounds (R. at 600).
12

(R. at 29-30).

The ALJ’s hypothetical question to the vocational

expert (VE) asked him to consider whether plaintiff could work if
the limitations of no prolonged walking and no repetitive arm
movements were added (R. at 805).

The VE testified that, even

with these additional limitations, plaintiff could perform
sedentary4 unskilled work as a surveillance systems monitor and
credit checker (R. at 806).

Thus, even when adding the specific

functional limitations set forth in Dr. Younger’s report, the ALJ
found that the VE testimony established that plaintiff could
still perform sedentary work that exists in significant numbers
in the national economy.
As noted above, Dr. Younger did opine on September 17, 2001
that plaintiff could not maintain full-time employment (R. at
220).

Dr. Younger also made a brief statement on January 23,

2003 that plaintiff was disabled from fibromyalgia (R. at 27,
234).

The ALJ also noted the conclusory statement of Dr. Dailey,

a treating physician, who opined on January 30, 2003 that
plaintiff was unable to work (R. at 27, 208).

The ALJ noted the

opinion of Dr. Box, another treating physician, who opined on
November 24, 2007 that plaintiff had numerous limitations which
would prevent her from working (R. at 28, 596-602).

4

However, the

Sedentary work involves lifting no more than 10 pounds at a
time, and involves sitting, although a certain amount of walking
and standing is often necessary in carrying out job duties. 20
C.F.R. § 404.1567(a).
13

ALJ also noted the statement of Dr. Munger, another health care
provider, who opined on September 30, 2003 that plaintiff was
“not currently incapacitated”5 (R. at 27-28, 505-507).

Finally,

the ALJ relied on the opinions of the state agency RFC assessment
in finding that plaintiff’s limitations did not prevent her from
working (R. at 28, 197-207).
Thus, the opinions of plaintiff’s treatment providers are
split on the ultimate issue of whether plaintiff is disabled.

A

state agency physical RFC assessment also supports a finding that
plaintiff is not disabled.

Treating source opinions on issues

that are reserved to the Commissioner6 should be carefully
considered and must never be ignored, but they are never entitled
to controlling weight or special significance.
ultimate issue of disability.

This includes the

Giving controlling weight to such

opinions would, in effect, confer upon the treating source the
authority to make the determination or decision about whether an
individual is under a disability, and thus would be an abdication
of the Commissioner’s statutory responsibility to determine

5

“Incapacity” is defined to mean “inability to work, attend
school or perform other regular daily activities due to the
serious health condition, treatment therefor, or recovery
therefrom” (R. at 505).
6

Issues reserved to the Commissioner include: (1) whether an
claimant’s impairment meets or is equivalent in severity to a
listed impairment, (2) a claimant’s RFC, (3) whether a claimant
can perform past relevant work, and (4) whether a claimant is
disabled. SSR 96-5p, 1996 WL 374183 at *2.
14

whether an individual is disabled.

SSR 96-5p, 1996 WL 374183 at

*2-3; Butler v. Astrue, 410 Fed. Appx. 137, 141-142 (10th Cir.
Jan. 31, 2011).

Furthermore, the court will not reweigh the

evidence or substitute its judgment for that of the Commissioner.
Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005); White
v. Barnhart, 287 F.3d 903, 905, 908, 909 (10th Cir. 2002).
The ALJ in this case made RFC findings in accordance with
the opinions of the state agency physical RFC assessment;
furthermore, the ALJ provided substantial evidence that
plaintiff, even with the additional specific functional
limitations set forth by Dr. Younger, could still perform
sedentary work that exists in substantial numbers in the national
economy.

In light of these facts, and given the split among

medical sources on the ultimate issue of disability, even among
treatment providers, the court finds that the ALJ did not err in
her consideration of the opinions of Dr. Younger.7
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to the fourth sentence of 42
U.S.C. § 405(g).

7

In light of the fact that the ALJ found that plaintiff
could still perform sedentary work that exists in significant
numbers even with the inclusion of the specific functional
limitations set forth by Dr. Younger, there would have been no
discernible need to recontact Dr. Younger pursuant to 20 C.F.R.
§ 404.1512(e).
15

Dated this 19th day of August, 2011, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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