O'Brien v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER: Defendant's decision to deny plaintiff's application for benefits shall be affirmed. Signed by District Judge Richard D. Rogers on 4/17/14. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KATHLEEN R. O’BRIEN

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Plaintiff,
v.

CAROLYN W. COLVIN
Acting Commissioner of
Social Security
Defendant.

Case No. 13-2255-RDR

MEMORANDUM AND ORDER
On June 9, 2010, plaintiff filed an application for social
security

disability

insurance

benefits.

This

application

alleged a disability onset date of October 31, 2009.

A hearing

was conducted upon plaintiff’s application on March 9, 2012 and
a

supplemental

administrative

hearing
law

judge

was

held

(ALJ)

on

May

24,

considered

the

2012.

The

evidence

and

decided on June 7, 2012 that plaintiff was not qualified to
receive benefits.

This decision has been adopted by defendant.

This case is now before the court upon plaintiff’s motion
to

reverse

and

remand

the

application for benefits.
woman

who

problems.
that

has

suffered

decision

to

deny

plaintiff’s

Plaintiff is a well-educated young
an

unfortunate

number

of

medical

Although plaintiff’s treating physician has remarked

plaintiff

is

disabled

from

gainful

employment,

the

ALJ

determined

that

the

treating

physician’s

consistent with the entire record.

opinion

was

not

The ALJ was more persuaded

by the reviews of nonexamining physicians.

Although the opinion

of a treating physician is entitled to deference, the court has
decided that the ALJ’s analysis follows the law and is supported
by substantial evidence.
reasons

which

follow,

For this reason and for the other
the

court

shall

reject

plaintiff’s

arguments to reverse the decision to deny benefits.
I.

STANDARD OF REVIEW
To

qualify

establish

that

for
he

disability

or

she

was

benefits,
“disabled”

a

claimant

under

the

must
Social

Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the
claimant had “insured status” under the Social Security program.
See Potter v. Secretary of Health & Human Services, 905 F.2d
1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131.

To

be “disabled” means that the claimant is unable “to engage in
any

substantial

determinable

gainful

physical

or

activity
mental

by

reason

impairment

of

any

which

.

medically
.

.

has

lasted or can be expected to last for a continuous period of not
less than 12 months.”

42 U.S.C. § 423(d)(1)(A).

The court must affirm the ALJ’s decision if it is supported
by substantial evidence and if the ALJ applied the proper legal
standards.
2004).

Rebeck v. Barnhart, 317 F.Supp.2d 1263, 1271 (D.Kan.

“Substantial evidence” is “more than a mere scintilla;”
2

it is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Id., quoting Richardson

v. Perales, 402 U.S. 389, 401 (1971).

The court must examine

the record as a whole, including whatever in the record fairly
detracts from the weight of the defendant’s decision, and on
that

basis

decide

if

defendant’s decision.
Cir.

1994)

(quoting

substantial

evidence

supports

the

Glenn v. Shalala, 21 F.3d 983, 984 (10th
Casias

v.

Secretary

of

Health

Services, 933 F.2d 799, 800-01 (10th Cir. 1991)).

&

Human

The court may

not reverse the defendant’s choice between two reasonable but
conflicting views, even if the court would have made a different
choice if the matter were referred to the court de novo.

Lax v.

Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski
v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

THE ALJ’S DECISION (Tr. 11-19).
There is a five-step evaluation process followed in these

cases which is described in the ALJ’s decision.

(Tr. 12-13).

First, it is determined whether the claimant is engaging in
substantial gainful activity.

Second, the ALJ decides whether

the claimant has a medically determinable impairment that is
“severe” or a combination of impairments which are “severe.”

At

step three, the ALJ decides whether the claimant’s impairments
or

combination

of

impairments

meet

or

medically

equal

the

criteria of an impairment listed in 20 C.F.R. Part 404, Subpart
3

P, Appendix 1.

Next, the ALJ determines the claimant’s residual

functional capacity and then decides whether the claimant has
the residual functional capacity to perform the requirements of
his or her past relevant work.

Finally, at the last step of the

sequential evaluation process, the ALJ determines whether the
claimant is able to do any other work considering his or her
residual

functional

capacity,

age,

education

and

work

experience.
In
should

this
be

case,

denied

the

on

evaluation process.

ALJ

the

decided

basis

of

plaintiff’s
the

fourth

application
step

of

the

The ALJ decided that plaintiff maintained

the residual functional capacity to perform past relevant work
as a secretary, a tariff agent, a billing clerk, a programmer
analyst and a conference services coordinator.

It is noteworthy

that at step four, plaintiff has the burden of demonstrating
that her impairments prevent her from performing her previous
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir.

work.
2005).

The

ALJ

decision.

made

the

First,

following

plaintiff

specific

meets

findings

the

insured

in

her

status

requirements for Social Security benefits through December 31,
2014.

Second, plaintiff did not engage in substantial gainful

activity

after

disability.

October
Third,

31,

2009,

plaintiff
4

the
has

alleged
the

onset

following

date

of

severe

impairments:

fibromyalgia

and

interstitial

cystitis

(“IC”).1

Fourth, plaintiff does not have an impairment or combination of
impairments that meet or medically equal the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.

Fifth, plaintiff

has the residual functional capacity: to lift and carry ten
pounds frequently and twenty pounds occasionally; she can sit,
stand, or walk for six hours each in an eight-hour day; she can
frequently balance and bend, but she should only occasionally
crawl and climb stairs, ladders, ropes, or scaffolds; she has no
manipulative,

communicative,

or

visual

workplace

limitations;

she should avoid unprotected heights and concentrated exposure
to cold, wetness, and humidity; and she would need to use the
bathroom at will.

(Tr. 15).

The ALJ also found that plaintiff

has no more than mild limitations in the activities of daily
living, no more than mild limitations in social functioning, and
no more than mild limitations in concentration, persistence or
pace.

(Tr. 14).

1

According to SSR 02-2p: IC “is a complex, chronic bladder disorder
characterized by urinary frequency, urinary urgency, and pelvic pain. IC
occurs most frequently in women . . . IC may be associated with other
disorders, such as fibromyalgia, chronic fatigue syndrome, allergies,
irritable bowel syndrome, inflammatory bowel disease, endometriosis, and
vulvodynia (vulvar/vaginal pain). IC also may be associated with systemic
lupus erythematosus.
The symptoms of IC may vary in incidence, duration, and severity. The
causes of IC are currently unknown, and treatments are directed towards
relief of symptoms. . . . [T]here are many treatments available, and
individuals may obtain some measure of relief. However, response to
treatment is variable, and some individuals may have symptoms that are
intractable to the current treatments available.” 2002 WL 31452367.

5

III.
THE ALJ PROPERLY CONSIDERED ANY MENTAL IMPAIRMENT
DETERMINING PLAINTIFF’S RESIDUAL FUNCTIONAL CAPACITY.

IN

Plaintiff’s first argument to reverse the decision to deny
benefits

is

difficulties

that

the

in

ALJ

social

did

not

include

functioning

plaintiff’s

and

maintaining

concentration, persistence or pace in the ALJ’s consideration of
plaintiff’s residual functional capacity (“RFC”).
p. 21.
ALJ

Doc. No. 10,

At steps two and three of the analytical process, the

concluded

that

plaintiff

had

“no

more

than

a

mild”

limitation in activities of daily living, social functioning,
and concentration, persistence or pace because of any mental
dysfunction. (Tr. 14).

The ALJ stated in her decision that

these

“not

limitations

assessment.”

(Tr.

were
15).

a

This

residual
is

in

functional

accord

with

capacity
the

Tenth

Circuit’s decision in Wells v. Colvin, 727 F.3d 1061, 1069 (10th
Cir. 2013) where, quoting SSR 96-8p, the court stated:
In assessing a claimant’s RFC, “[t]he adjudicator must
remember that the limitations identified in the
‘paragraph B’ . . . criteria [for severity] are not an
RFC assessment but are used to rate the severity of
mental impairment(s) at steps 2 and 3 of the
sequential evaluation process. . . . The mental RFC
assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment
by itemizing various functions contained in the broad
categories found in paragraphs B and C of the adult
mental disorders listings in 12.00 of the Listing of
Impairments and summarized on the [Psychiatric Review
Technique Form].”

6

The ALJ repeated the above underlined language in her decision
on page 15 then said that “the following residual functional
capacity

assessment

reflects

undersigned

has

found

analysis.”

in

(Tr. 15).

the

of

‘paragraph

the

degree

limitation

B’

mental

the

function

The RFC findings that the ALJ listed

later on the same page expressed no mental limitations.
discussing

the

plaintiff’s

evidence

claims

of

in

the

anxiety

record,
and

the

ALJ

difficulty

In

mentioned

concentrating

(although plaintiff did not list a mental impairment in her
application
mentioned
anxiety

for

the

disability
treating

disorder

and

benefits).

physician’s
description

difficulty handling stress.

(Tr.

16).

diagnosis
of

of

cognitive

(Tr. 17 & 18).

She

also

generalized
problems

and

The ALJ, however,

concluded that no mental limitation should be included as part
of plaintiff’s RFC.
These findings are not inconsistent with the ALJ’s step two
findings

which

limitations
inconsistent

in

were

that

mental

with

Dr.

plaintiff

had

functioning.
R.E.

Schulman’s

“no

Nor

more
are

review

than

they
of

mild”

clearly

plaintiff’s

medical records and of functional reports done by plaintiff and
third parties.

The notes made by Dr. Schulman stated in part:

Employer from 4/08 – 3/10 stated [plaintiff] generally
could do job with no mental problems.
[Plaintiff]
could learn job duties in an expected amount of time,
accepted instructions, cooperated [with] co-workers,
maintained adequate pace & regular [hours], adapted to
7

changes, understood/carried out simple directions in a
reasonable amount of time, understood/followed safety
guidelines,
&
needed
an
ordinary
amount
of
supervision.
(Tr. 578).
The

functional

reports,

according

to

the

ALJ,

indicated

that plaintiff can:
Provide for her own personal care, prepare meals, shop
for groceries, drive, manage her money, read, watch
television, clean around the house, do the laundry,
iron, exercise, use a computer and work as a nanny.
[Also] watch television . . . run errands, vacuum, and
workout at the gym.
(Tr. 18).
The ALJ’s decision stated that she considered the “entire
record” and “all symptoms and the extent to which these symptoms
can reasonably be accepted . . . with the . . . evidence” in
determining plaintiff’s RFC. (Tr. 15).

This, in addition to the

reference to plaintiff’s mental symptoms and diagnoses, provide
the court with adequate grounds to believe that the ALJ took
into

account

plaintiff’s

alleged

formulating plaintiff’s RFC.
1070 (10th Cir. 2009).
support

the

conclusion

mental

functional

mental

limitations

when

See Wall v. Astrue, 561 F.3d 1048,

Thus, the ALJ’s decision and the record
that

capacity

the

ALJ

considered

and

decided

that

plaintiff’s
the

mental

impairments had an inconsequential effect upon plaintiff’s RFC.
This case is comparable to Suttles v. Colvin, 543 Fed.Appx.
824 (10th Cir. 10/31/2013) where the court rejected a challenge
8

to

the

denial

of

benefits

which

argued

that

finding

a

mild

degree of limitation because of depression at step two required
finding, at step four, some limitation from depression in the
claimant’s RFC.
ALJ

did

not

The court denied the challenge finding that the

improperly

conflate

the

step

two

and

step

four

evaluations and that there was no persuasive argument that the
step four analysis lacked substantial evidence.
For

the

above-stated

reasons

the

court

rejects

the

arguments and case authority plaintiff cites to contend that the
ALJ erred by failing to include her step two mental limitations
findings in the RFC.
IV.

THE ALJ PROPERLY ANALYZED THE OPINION OF DR. SCHULMAN.
Plaintiff’s next argument is that the ALJ erred by giving

Dr. Schulman’s opinion “substantial weight.”

Plaintiff contends

that Dr. Schulman had no evidence available to him after June
2010 which was two years prior to the ALJ’s decision.
particularly

important,

according

to

plaintiff,

This is

because

Dr.

Schulman’s opinion was not based upon an examination, only a
review of records, or in this case, a review of less than the
full

record.

In

contrast

to

the

cases

cited

by

plaintiff

(Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995) and Arn v.
Astrue, 2011 WL 3876418 *3-4 (W.D.Mo. 9/1/2011)), there is no
indication in the record of this case that important mental
health evidence contrary to Dr. Schulman’s opinion was developed
9

and

submitted

for

the

record

after

Dr.

Schulman’s

review.

Therefore, the court shall reject this argument from plaintiff.
V.
THE ALJ DID NOT MAKE AN ERROR IN FAILING
CONSULTATIVE MENTAL OR PHYSICAL EXAMINATION.

TO

ORDER

A

Plaintiff next contends that the ALJ erred in failing to
obtain

a

consultative

impairment.

examination

as

to

plaintiff’s

mental

Plaintiff cites the provisions of SSR 02-2p which

states regarding claims alleging IC:
An individual with IC also may report symptoms
suggestive of a mental impairment (for example, the
individual may say that he or she is anxious or
depressed,
having
difficulties
with
memory
and
concentration, etc.).
If the evidence supports a
possible discrete mental impairment or symptoms such
as
anxiety
or
depression
resulting
from
the
individual’s IC or the side effects of medication, we
will develop the possible mental impairment.
If the
evidence does not establish a medically determinable
mental impairment, but does establish the presence of
symptoms such as anxiety or depression resulting from
the individual’s IC or side effects of medication, we
will determine whether there are any work-related
functional limitations resulting from the symptoms.
2002 WL 32063799 at *4.

This portion of SSR 02-2p does not

require that an ALJ order a consultative examination to develop
the record whenever there are symptoms or evidence that a person
with

IC

has

a

mental

impairment.

Nevertheless,

in

this

instance, the record was developed to some extent by the report
of Dr. Schulman.
The

Tenth

Circuit

has

stated

that

an

ALJ

latitude in ordering a consultative examination.”

10

“has

broad

Diaz v. Sec’y

of Health & Human Servs., 898 F.2d 774, 778 (10th Cir. 1990).
Diaz,

the

court

found

no

error

in

refusing

to

order

In
a

consultative examination when a complaint of depression was not
separable from the plaintiff’s other nonexertional impairments,
which in the Diaz case were epileptic seizures and headaches.
Generally, a consultative examination should be ordered if the
plaintiff

has

shown

“a

reasonable

possibility

that

a

severe

impairment exists” and the examination would be “necessary or
helpful to resolve the issue of impairment.”
113 F.3d 1162, 1167 (10th Cir. 1997).

Hawkins v. Chater,

Thus, it is relevant to

examine the position and statements of plaintiff and her counsel
during the administrative process.
[W]hen the claimant is represented by counsel at the
administrative hearing, the ALJ should ordinarily be
entitled to rely on the claimant’s counsel to
structure and present claimant’s case in a way that
the claimant’s claims are adequately explored.
Thus,
in a counseled case, the ALJ may ordinarily require
counsel to identify the issue or issues requiring
further development. . . . In the absence of such a
request by counsel, we will not impose a duty on the
ALJ to order a consultative examination unless the
need for one is clearly established in the record.
Id.

at

1167-68.

Plaintiff’s

counsel

did

not

request

a

consultative examination or further development of the issue of
plaintiff’s mental impairment, even after the ALJ announced that
she would conduct a supplemental hearing with a medical expert.
(Tr. 68).

“The ALJ does not have to exhaust every possible

line of inquiry in an attempt to pursue every potential line of
11

questioning.

The standard is one of reasonable good judgment.”

Id. at 1168.

In this instance, the court is convinced that the

ALJ exercised reasonable good judgment in developing the record.
Connected

to

the

contention

that

the

ALJ

should

have

ordered a consultative mental examination, plaintiff argues that
the non-treating physicians the ALJ relied upon to support her
RFC evaluation did not provide substantial evidence.
10 at pp. 22-23.

Doc. No.

So, plaintiff contends the ALJ also had a duty

to obtain a consultative physical examination.

In support of

this point, plaintiff cites Hutsell v. Massanari, 259 F.3d 707,
712 (8th Cir. 2001) where the court stated that “some medical
evidence

must

support

the

determination

[residual functional capacity].”

of

[a]

claimant’s

(Interior quotation omitted).

The court went on to say that the ALJ is required to consider at
least some supporting evidence from a medical professional to
properly determine RFC.

Id.

The propositions cited from Hutsell are not applicable here
for the following reasons.

First, contrary to the facts in

Hutsell, the ALJ’s RFC assessment in this case was supported by
medical evidence in the form of opinions from Dr. Winkler and
Dr. Nimmagadda who reviewed the records in this case and made
conclusions similar to those drawn by the ALJ.
“medical

evidence.”

404.1528(b).

See

20

C.F.R.

§§

This constitutes
404.1512(b)(1),

Also, the Tenth Circuit has held that a report
12

from

a

evidence.

non-examining

physician

may

constitute

substantial

In Gonzales v. Colvin, 515 Fed.Appx. 716, 719 (10th

Cir. 2/19/2013), the court held that an ALJ did not error in
adopting the opinion of the nonexamining agency physician over
the opinion of a treating doctor.2

The ALJ’s analysis should

depend upon the support in the record for each doctor’s opinion.
The court shall discuss the support for the doctors opinions in
the next section of this order.
VI.
THE ALJ DID NOT ERR IN DISCREDITING THE OPINION OF DR.
FOOS, PLAINTIFF’S TREATING PHYSICIAN, OR IN CREDITING THE
OPINION OF DR. WINKLER, A NONEXAMINING PHYSICIAN.
Plaintiff’s
attached
doctor,

by
Dr.

the

next
ALJ

Foos,

series
to

and

the
to

of

arguments

opinion
the

of

opinion

concern

the

plaintiff’s
of

a

weight

treating

nonexamining

physician, Dr. Winkler.
Dr. Foos was plaintiff’s personal physician for many years.
Plaintiff

consulted

with

Dr.

Foos

about

her

application

for

disability benefits and on April 14, 2010, Dr. Foos completed a
physician’s RFC form.
checklist format.

(Tr. 533-536).

The form is mostly in a

Dr. Foos indicates on the form (among other

2

Also, in Hawkins, 113 F.3d at 1165, the court cited to the opinion of a
psychiatrist
who
completed
a
psychiatric
review
technique
form
as
“substantial evidence supporting the conclusion that the claimant does not
suffer from a severe mental impairment” and as justification for the ALJ’s
refusal to order a further psychological examination.
It is not completely
clear, however, whether the psychiatrist was an examining or nonexamining
doctor.
In Cavanaugh v. Apfel, 1999 WL 59673 *1 (10th Cir. 2/09/1999), the
psychiatrist in Hawkins is referred to as a “nonexamining physician.”
The
relevant headnote in Hawkins, however, refers to the psychiatrist as an
examining physician.

13

things):

that plaintiff cannot lift more than 10 pounds on a

frequent basis; she cannot sit for more than one hour at a time
or more than 4 hours in an 8-hour day; that plaintiff is never
able to bend, squat, stoop crouch, crawl, kneel, climb or reach;
that plaintiff suffers a debilitating level of pain and fatigue;
that plaintiff also suffers dizziness and depression; and that
plaintiff’s impairments would cause plaintiff to be absent from
work more than three times a month.

Dr. Foos also states on the

form that plaintiff has been functioning at the level described
on the form from 2006, years before plaintiff stopped working.
Almost two years after completing the RFC form Dr. Foos
wrote a letter dated January 6, 2012 which states:
[Plaintiff] is currently filing for SSI Disability for
fibromyalgia which was diagnosed about 5 years ago.
She
also
suffers
from
interstitial
cystitis,
generalized anxiety and significant sleep disorder.
Her symptoms include severe fatigue, muscle and joint
pain, depression, anxiety, trouble concentrating and
cognitive deficits.
The interstitial cystitis causes
bladder pain, a sense of urinary urgency and results
in frequent trips to the bathroom to keep the bladder
as empty as possible.
She is unable to sit or stand
for prolonged periods of time.
She cannot do
repetitive activities, lift anything over 10 pounds at
all and less than 10 pounds only rarely, or do
anything of a physical nature for any length of time.
Her severe fatigue and cognitive problems make it hard
to attend to tasks, stay organized, be efficient, or
handle new and stressful situations. If she works too
hard one day she would be unable to go to work for the
next 1-3 days due to fatigue and pain. She would have
frequent absences.
(Tr. 650).

14

The first step in evaluating a treating doctor’s opinion is
to

determine

whether

the

opinion

is

entitled

to

controlling

Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir.

weight.
2004).

This is accomplished in two stages:

1) determining

whether the opinion is supported by medically accepted clinical
and

laboratory

diagnostic

techniques

and,

if

so,

then

2)

determining if the opinion is consistent with other substantial
evidence in the record.
1300 (10th Cir. 2003).

Watkins v. Barnhart, 350 F.3d 1297,
The ALJ found fault with Dr. Foos’s

opinions at the second stage.
The second step in evaluating a treating doctor’s opinion
is determining what amount of weight to attach to the opinion if
the opinion does not deserve controlling weight.
consider

such

factors

as:

1)

the

length

of

An ALJ may
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 the opinion is rendered; and
6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.

15

Langley, 373 F.3d at 1119.

The ALJ in this case gave Dr. Foos’s opinions “very little
weight.”
of

(Tr. 17).

fibromyalgia

While the ALJ accepted Dr. Foos’s diagnoses

and

IC,

and

noted

Dr.

Foos’s

treatment

relationship with plaintiff, the ALJ negatively evaluated Dr.
Foos’s RFC assessment on the grounds that “Dr. Foos’ opinions
are inconsistent with the record as a whole and Dr. Foos’s own
treatment notes [and] Dr. Foos’s opinions appear to be based on
the

claimant’s

subjective

complaints.”

(Tr.

17).

The

ALJ

largely repeated these comments (except for the reference to
plaintiff’s

“subjective

complaints”)

in

concluding

that

the

opinions in Dr. Foos’s January 6, 2012 letter deserved “very
little weight.”

(Tr. 18).

Dr. Winkler did not examine plaintiff and did not have a
treatment relationship with plaintiff.

She reviewed plaintiff’s

medical records and rendered an opinion regarding plaintiff’s
RFC which the ALJ more or less adopted as her own.

In her

decision, the ALJ stated that Dr. Winkler’s opinions deserved
“very substantial weight.”

(Tr. 16).

The ALJ’s justification

for this evaluation was that “Dr. Winkler had the benefit of
reviewing
consistent
expertise.”

the

entire

with

the

(Tr.

medical

weight
16).

record

of

Dr.

the

16

her

evidence

Winkler

internal medicine and rheumatology.

and

is

and

board

opinions
her

are

area

of

certified

in

It appears to the court that the ALJ’s primary ground for
crediting

Dr.

Winkler’s

opinions

and

discrediting

Dr.

Foos’s

opinions is consistency with the “weight of the record.”
ALJ

does

not

elaborate

upon

why

Dr.

Winkler’s

The

particular

expertise or access to the entire medical record provide her
opinions

with

greater

credibility

over

Dr.

Foos’s

relationship with plaintiff as a treating physician.3

long

The ALJ

does not mention Dr. Foos’s credentials and does not indicate
what significant parts of the medical record Dr. Foos may not
have examined.

So, the court will concentrate upon the issue of

consistency with the record as a whole.

This job is made more

difficult because after stating that Dr. Winkler’s opinions are
consistent with the record and that Dr. Foos’s opinions are not
consistent with the record, the ALJ does not directly proceed to
explain why.
The ALJ, however, does make the following statements in her
decision which obviously played a role in her analysis of Dr.
Foos’s and Dr. Winkler’s opinions.
[Plaintiff] last worked in October 2009 . . .
16).

(Tr.

[T]he objective evidence in the record does not
support [plaintiff’s] assertion that she needs to go
to the restroom thirty times per day. (Tr. 16).
[Plaintiff] takes a muscle relaxer that helps for her
fibromyalgia, but she is not currently seeing a
3

However, the court acknowledges that Dr. Winkler’s board certification in
rheumatology indicates a specialized knowledge as to fibromyalgia.

17

urologist
or
taking
any
medication
interstitial cystitis. (Tr. 16).

for

her

In November 2009, [plaintiff] presented to [Dr. Foos]
and reported she was doing pretty well and looking for
a new job. (Tr. 17).
[Plaintiff’s]
activities
of
daily
living
are
inconsistent
with
her
allegation
of
disability.
According to her functional reports, she can provide
for her own personal care, prepare meals, shop for
groceries, drive, manage her money, read, watch
television, clean around the house, do the laundry,
iron, exercise, use a computer, and work as a nanny.
Similarly,
functional
reports
completed
by
[plaintiff’s]
father,
mother,
aunt,
and
friends
indicate [plaintiff] can cook, shop for groceries,
manage her own finances, perform household chores,
watch television, read, run errands, clean, vacuum,
and workout at the gym. (Tr. 18).
The

ALJ

medical

also

referred

consultant

to

(Dr.

the

conclusions

Nimmagadda)

who

of

a

State

agency

affirmed

a

evaluation much like the RFC evaluation of Dr. Winkler.

RFC
(Tr.

17-18).
Plaintiff contends that the denial of benefits should be
reversed because the ALJ did not identify the inconsistencies
between Dr. Foos’s opinions and the record as a whole or the
treatment notes.

Plaintiff’s counsel cites four cases:

Krauser

v. Astrue, 638 F.3d 1324, 1331 (10th Cir. 2011); Cagle v. Astrue,
266 Fed.Appx. 788, 794 (10th Cir. 2/25/2008); Langley, 373 F.3d
at 1123; and Hamlin v. Barnhart, 365 F.3d 1208, 1217 (10th Cir.
2004).

In Krauser, the case was remanded in part because the

ALJ mistakenly accused the treating physician of not referencing

18

records

of

objective

testing,

the

ALJ

failed

to

state

what

weight (if not controlling weight) would be attached to the
treating physician’s opinion, and the ALJ did not reference the
portions

of

the

record

with

opinion was inconsistent.
court

found

essentially
“troubling

it

was

reject

a

which

the

638 F.3d at 1331.

legally

insufficient

treating

inconsistencies”

doctor’s

in

the

court

further

inconsistencies
Langley

case,

in
like

noted

its

own

Cagle,

that

an

assessment

ALJ

to

because

records,

of

without

266 Fed.Appx. at 793.

it

did

examination
involved

physician’s

In Cagle, the
for

doctor’s

explanation of those inconsistencies.
The

treating

an

of

not
the

ALJ’s

find

such

record.

The

rejection

of

a

treating physician’s opinion on the grounds that it was not
supported by the objective evidence including the doctor’s own
records.

The court, however, found no obvious inconsistencies

and without further explanation from the ALJ decided that the
ALJ’s

rejection

of

the

treating

doctor’s

opinion

supported by the record.

373 F.3d at 1122-23.

ALJ

specific

failed

to

give

any

reason

for

was

not

In Hamlin, the
finding

that

a

treating doctor’s assessment was inconsistent with the overall
case record or to highlight the portions of the record with
which the doctor’s assessment was inconsistent.
1217.

365 F.3d at

The ALJ also ignored evidence which was consistent with

the assessments of two treating physicians.
19

Id. at 1217-19.

Unlike the ALJ in Krauser, the ALJ in this case did not
mistakenly accuse Dr. Foos of failing to reference records of
objective testing; nor did the ALJ in this case fail to state
what weight she attached to Dr. Foos’s opinion.

Furthermore,

unlike all of the cases just discussed, the ALJ in this case did
refer to and highlight inconsistent evidence which is contained
in Dr. Foos’s records.

The ALJ could have been more complete.

But, the court finds that the ALJ’s findings are supported by
substantial evidence.
Dr. Foos’s records refer to plaintiff working and looking
for work in 2009 (Tr. 505, 521), although Dr. Foos stated in her
checklist RFC form that plaintiff had been functioning at the
level described on the form since 2006.
records

indicate

that

plaintiff

has

(Tr. 536).

exercised

or

Dr. Foos’s
worked

out

regularly (Tr. 502, 625, 640, 720, 721, 725) and that plaintiff
has done babysitting for two kids (ages 1 and 4) which kept her
pretty

busy

November

4,

(Tr.

502).

2009,

shortly

Plaintiff
after

reported

her

to

alleged

disability, that she was doing “pretty well.”

Dr.

Foos

on

onset

date

of

(Tr. 505).

In

addition, the functional reports in the administrative record
provide

support

for

the

ALJ’s

conclusions

that

plaintiff’s

activities of daily living (as described above) are inconsistent
with the level of disability described by Dr. Foos.

The court

has examined the functional reports and would not claim that
20

they are “black and white.”
days

plaintiff

leaves

her

The reports indicate that on good
home,

shops,

exercises,

babysits,

engages in social activities and takes care of her house.

But,

the reports also indicate that there are bad days when plaintiff
stays at home because of a low energy level, cancels planned
activities at the last minute because she is not feeling well,
and needs help doing easy things.

The functional reports are

not clear as to how often plaintiff has bad days; nor do they
explain how to reconcile her activities on “good days” with her
alleged IC symptoms.
ALJ’s.

The job of weighing the evidence is the

After careful consideration, the court finds that the

evidence supporting the ALJ’s assessment of Dr. Foos’s opinion
is sufficient.
Plaintiff further objects to the ALJ’s statement that Dr.
Foos’s opinions appear to be based on plaintiff’s subjective
complaints.

Plaintiff argues that the diagnosis of plaintiff’s

maladies necessarily depends upon subjective complaints.
is not disputed by defendant.

This

But, defendant contends that

plaintiff’s point is not relevant because the ALJ was referring
to Dr. Foos’s medical source statement in which she assessed
plaintiff’s RFC, not the diagnosis of fibromyalgia or IC.
appears correct.

This

The ALJ made the reference to plaintiff’s

subjective complaints in the context of Dr. Foos’s RFC form.
(Tr.

17).

The

record

indicates
21

that

Dr.

Foos

relied

upon

plaintiff’s comments to fill out the form.

Dr. Foos remarked

that she and plaintiff “reviewed the paper work question by
question, talking about restrictions on lifting, use of her arms
and legs, standing, sitting and walking, and then other more
intense activities such as bending, stooping, crouching, etc.”
(Tr. 499).

This supports the ALJ’s analysis of Dr. Foos’s RFC

statement.
The ALJ also stated with regard to Dr. Foos’s January 6,
2012 letter that “Dr. Foos’s opinions concern an issue reserved
to the Commissioner.”

(Tr. 18).

Plaintiff apparently concedes

this is correct as to Dr. Foos’s statements that plaintiff “is
unable to maintain a fulltime position in any job that I can
think of” and “[s]he would be unable to compete for gainful
fulltime

employment

in

the

job

market.”

But,

plaintiff

contends, citing SSR 96-5p, that these statements triggered a
duty upon the ALJ to recontact Dr. Foos.
SSR

96-5p

provides

for

contacting

The court disagrees.

treating

sources

for

clarification when the ALJ cannot ascertain the basis of the
treating source’s opinion from the case record.4

This provision

does not support a duty on the part of the ALJ in this case to
recontact Dr. Foos because the basis for Dr. Foos’s opinion that
4

SSR 96-5p provides in part:
“Because treating source evidence (including
opinion evidence) is important, if the evidence does not support a treating
source’s opinion on any issue reserved to the Commissioner and the
adjudicator cannot ascertain the basis of the opinion from the case record,
the adjudicator must make ‘every reasonable effort’ to recontact the source
for clarification of the reasons for the opinion.” 1996 WL 374183 at *6.

22

plaintiff cannot work is made clear in the first paragraph of
Dr. Foos’s letter.
differences

There is no need for clarification.

between

the

ALJ’s

conclusions

and

Dr.

The

Foos’s

conclusions illustrate a disagreement between the ALJ and the
treating source, not a matter of confusion or ambiguity.
SSR 96-5p, as argued by plaintiff, does not apply.

So,

See Ferguson

v. Commissioner of Social Security, 628 F.3d 269, 274-75 (6th
Cir. 2010); Shaw v. Astrue, 392 Fed.Appx. 684, 688-89 (11th Cir.
8/12/2010).
In

summary,

the

court

finds

no

error

in

the

ALJ’s

assessment of Dr. Foos’s opinions.
Plaintiff further argues that even if Dr. Foos’s opinions
did not deserve controlling weight, they warranted more weight
than the opinions of Dr. Winkler because Dr. Winkler’s opinions
were not supported by superior evidence.

To repeat, the ALJ

gave more credit to Dr. Winkler’s assessment because:

“Dr.

Winkler had the benefit of reviewing the entire medical record
and her opinions are consistent with the weight of the evidence
and her area of expertise.”

(Tr. 16).

In addition, the ALJ

commented with regard to plaintiff’s IC that “Dr. Winkler noted
[that plaintiff] did not see a lot of intervention or treatment
in the record for the [plaintiff’s] urinary urgency and opined
the

[plaintiff’s]

interstitial

cystitis

tried some new forms of treatment.”
23

could

(Tr. 16).

improve

if

she

The ALJ also

noted that plaintiff testified that she took a muscle relaxer
that

helped

with

her

fibromyalgia,

but

that

she

was

not

currently seeing an urologist or taking any medication for her
IC.

(Tr. 16).

It seems clear from the record that the ALJ

believed Dr. Winkler’s assessment was more consistent with the
weight of the evidence (such as plaintiff’s activities of daily
living described at Tr. 18) and the medical records, including
the absence of intervention or treatment and the review of the
state

agency

decisionmaker

medical
might

consultants.

weigh

the

Another

evidence

reasonable

differently,

but

the

court cannot conclude that the ALJ’s analysis of Dr. Winkler’s
opinion

versus

Dr.

Foos’s

opinion

lacks

reasonable

and

substantial support.
VII.

THE ALJ PROPERLY CONSIDERED PLAINTIFF’S CREDIBILITY.
Plaintiff asserts that the decision to deny benefits should

be reversed because the ALJ’s credibility determination is not
supported by substantial evidence.
that:

The Tenth Circuit reminds us

“’Credibility determinations are peculiarly the province

of the finder of fact, and we will not upset such determinations
when supported by substantial evidence.
credibility

should

be

closely

and

However, findings as to
affirmatively

linked

to

substantial evidence and not just a conclusion in the guise of
findings.’”

Newbold v. Colvin, 718 F.3d 1257, 1267 (10th Cir.

24

2013)(quoting Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir.
2005)).
Here,

the

ALJ

determined

that

plaintiff’s

“statements

concerning the intensity, persistence, and limiting effects of
[her]

symptoms

are

not

credible

to

the

extent

inconsistent with [the ALJ’s RFC] assessment.”

they

are

(Tr. 17).

The

evidence cited by the ALJ in support of this conclusion appears
to be the same as that discussed in deciding what weight should
be

attached

to

Dr.

Foos’s

and

Dr.

Winkler’s

opinions.

Plaintiff contends that the ALJ improperly evaluated plaintiff’s
credibility

because

the

ALJ

placed

too

much

emphasis

upon:

plaintiff’s part-time work as a nanny and plaintiff’s limited
daily

activities,

particularly

given

unpredictability of fibromyalgia symptoms.

the

variability

and

Plaintiff’s work as

a nanny was only part of plaintiff’s activities of daily living.
The ALJ did not rely upon that part-time work alone to dispute
plaintiff’s credibility.

The same is true for plaintiff’s other

activities of daily living.

All the activities indicated to the

ALJ that plaintiff was not as exhausted or as disabled from
fibromyalgia and IC symptoms as she has alleged.

In Newbold,

718 F.3d at 1266, the court affirmed an ALJ’s decision to give
diminished

weight

to

a

treating

physician’s

assessment

in

a

“fibromyalgia questionnaire” in part on the grounds that the
extreme limitations assessed therein were inconsistent with the
25

claimant’s activities of daily living which were described as:
independently caring for personal needs; doing household chores
such as dishes, vacuuming, and cooking; texting friends; using a
computer;

driving;

grocery

shopping;

reading;

watching

television; visiting with friends; attending church on a weekly
basis; and attending church activities one night a week.5
Newbold,

the

Tenth

Circuit

also

affirmed

the

ALJ’s

In

negative

credibility evaluation of the claimant on the basis of the same
activities of daily living.

Id. at 1267.

In her reply brief,

plaintiff asserts that the ALJ overstated the evidence from the
functional reports of plaintiff’s activities of daily living.
This is arguable, but the court finds that there is sufficient
support

in

the

record

here

to

rely

upon

the

ALJ’s

role

of

weighing the evidence and assessing credibility.
As occurred in the case at bar, an ALJ may also consider
the

frequency

and

obtain relief.
Cir. 1988).

type

of

medical

contacts

and

attempts

to

Id.; Huston v. Bowen, 838 F.2d 1125, 1132 (10th

The record reflects that plaintiff had many medical

contacts for various problems, but at the time of plaintiff’s
testimony she was receiving little medication or treatment for
her

fibromyalgia

or

her

IC.

In

5

her

reply

brief,

plaintiff

The ALJ also found that the answers in the questionnaire were inconsistent
with statements the doctor made in his own report dated the same day. This
is somewhat comparable to Dr. Foos stating that plaintiff is disabled from
work, but also recording, in effect, that plaintiff has worked under the same
alleged disabilities from 2006 through October 2009.

26

asserts that the ALJ should not have relied upon a failure to
obtain

or

follow

prescribed

treatment

without

considering

factors set forth in Thompson v. Sullivan, 987 F.2d 1482, 1490
(10th Cir. 1993) and Frey v. Bowen, 816 F.2d 508, 517 (10th Cir.
1987).

These cases may be distinguished because the ALJ in this

case was noting an absence of medication and treatment, not a
failure to follow prescribed treatment. See Qualls v. Apfel, 206
F.3d 1368, 1372-73 (10th Cir. 2000).
Finally,

again

in

her

reply

brief,

plaintiff

raises

credibility factors which are favorable to plaintiff, such as
her work history and the side effects of medication.

The court

does not have good cause to believe that the ALJ ignored these
points in her consideration even though she did not discuss
them.

The ALJ’s failure to discuss them is not good grounds to

reverse the decision to deny benefits.

See Poppa v. Astrue, 569

F.3d 1167, 1171 (10th Cir. 2009)(a credibility finding does not
require a factor-by-factor recitation of the evidence as long as
the ALJ sets forth specific evidence he relies on to make the
credibility decision).
After

due

consideration,

the

court

finds

that

the

ALJ

properly conducted the credibility analysis in this matter.
VIII.

THE ALJ DID NOT VIOLATE THE REQUIREMENTS OF SSR 82-62.
Plaintiff next argues that the decision to deny benefits

should

be

reversed

because

the
27

ALJ

failed

to

meet

the

requirements of SSR 82-62 and make specific findings of fact as
to the physical and mental demands of plaintiff’s previous jobs
as secretary, tariff agent, bill clerk, programmer analyst and
conference
argument.

services

coordinator.

The

court

rejects

this

The ALJ did inquire of the vocational expert as to

the exertional and skill level of plaintiff’s previous jobs.
(Tr. 42).

The vocational expert testified that plaintiff could

perform those jobs with the RFC level given by the ALJ even if
plaintiff needed to use the bathroom at will.

(Tr. 43).

While

the ALJ and the vocational expert did not address the mental
demands

of

plaintiff’s

former

jobs,

that

was

not

necessary

because the ALJ determined that plaintiff did not have any more
than a minimal mental limitation in her ability to perform work.
(Tr. 14).

Wells v. Colvin, 727 F.3d 1061, 1074-75 (10th Cir.

2013)(because

claimant’s

RFC

did

not

contain

any

mental

limitations, the ALJ did not need to explore the mental demands
of her previous work); Alvey v. Colvin, 536 Fed.Appx. 792, 795
(10th Cir. 8/28/2013)(same).
IX.
THE ALJ’S DECISION IS CONSISTENT WITH THE RECORD AS A
WHOLE.
Plaintiff’s final argument is that the ALJ’s decision is
unsupported by the record as a whole because the vocational
expert testified that an individual who had to be away from a
work station for 5 to 10 minutes for a restroom break 15 or 16

28

times during a workday would not be employable.
ALJ

found,

however,

that

plaintiff

restroom up to 30 times per day.

did

not

(Tr. 16).

(Tr. 45).

need

to

The

use

the

Plaintiff testified

that she felt the urge and attempted to use the restroom that
often during a full day.6 (Tr. 57).
plaintiff’s

testimony

evidence

the

in

because

record.

credibility

argument

The

analysis.

plaintiff’s

it

that

was

court

Therefore,
the

The ALJ did not credit
contrary

has
the

decision

to

sustained
court
to

deny

objective
the

shall

ALJ’s
reject

benefits

is

unsupported by the record.
X.

CONCLUSION
For

the

foregoing

reasons,

defendant’s

decision

to

plaintiff’s application for benefits shall be affirmed.
IT IS SO ORDERED.
Dated this 17th

day of April, 2014, at Topeka, Kansas.

s/Richard D. Rogers__________
Richard D. Rogers
United States District Judge

6

Unlike plaintiff’s counsel in the reply brief, we do not construe
plaintiff’s testimony as stating she had the urge to use the bathroom 30
times in an 8-hour workday.

29

deny