Billings v. Social Security Administration, Commissioner of

Filing 24

MEMORANDUM AND ORDER. The decision of the Commissioner is AFFIRMED. Signed by District Judge Eric F. Melgren on 10/31/2014. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LEIGH ANN BILLINGS,
Plaintiff,

vs.

Case No. 13-2446-EFM

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Leigh Ann Billings seeks review of a final decision by Defendant Carolyn
Colvin, the Commissioner of Social Security, denying her applications for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social Security Act,
respectively, and award of attorney’s fees and costs. Billings alleges that the Commissioner’s
decision should be reversed and remanded because the Administrative Law Judge (“ALJ”) failed
to follow administrative guidelines and regulations for obtaining and weighing medical expert
opinions. Specifically, Billings opposes the ALJ’s decision to reject her treating psychiatrist’s
opinion. The result, according to Billings, is more error—an improper determination of Billings’
mental impairments, her residual functioning capacity, and her ability to obtain gainful
employment. Upon review, the Court finds that the ALJ properly evaluated the medical opinion

of Billings’ treating psychiatrist and supported his determinations with substantial evidence. As
such, the decision of the Commissioner is affirmed.
I.

Factual and Procedural Background

Leigh Ann Billings was born February 15, 1980. Billings alleges that her disability
began December 7, 2007.

The agency denied Billings’ application initially and on

reconsideration. Billings then asked for a hearing before an administrative law judge.
The ALJ held a hearing on December 20, 2011. At that hearing, Billings testified about
her medical conditions, including diagnoses for bipolar disorder, borderline personality disorder,
and anxiety disorder. A vocational expert also testified as to Billings’ employment prospects.
Under the conditions described by the ALJ to hypothetically represent the limitations of Billings’
disability, Billings would be able to perform the requirements of sedentary, unskilled work. The
ALJ’s hypothetical disregarded the limitations opined by Billings’ treating psychiatrist that
would “preclude all work in the national economy.”1
The ALJ issued his written opinion on May 22, 2012. At step one of the evaluation
process, he found that Billings had not engaged in substantial gainful activity since her alleged
disability onset date. At step two, he determined that Billings’ severe impairments include:
obesity, lower back pain, asthma, rectovaginal fistula, borderline personality disorder, anxiety,
and alcohol abuse. But he excluded Billings’ diagnosis for bipolar disorder. He concluded that
“the weight of the evidence” supported a nonexamining medical expert’s opinion that Billings’
medical records do not justify a diagnosis of bipolar disorder.2 At step three, he found that
Billings’ impairments do not meet or medically equal the disability impairment criteria.
1

December 2011 Oral Hearing, Doc. 8-1, p. 88.

2

ALJ Decision, Doc. 8-1, p. 15.

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Specifically, he determined that Billings did not suffer the marked limitation in activities of daily
living; social functioning; concentration, persistence, or pace; or the repeated episodes of
decompensation necessary to establish disability. At steps four and five, he determined that,
despite impairments that preclude Billings from returning to her previous work, she possesses
sufficient residual functional capacity to engage in sedentary work that is “limited to simple,
unskilled work with no contact with the general public and only occasional interaction with
coworkers and supervisors. In addition, she should have no more than moderate exposure to
pulmonary irritants and normal access to restroom facilities.”3 The ALJ therefore concluded that
Billings had not been under a disability since December 7, 2007, through the date of his decision.
The Social Security Administration’s Appeals Council denied Billings’ request for
review in July 2013. Billings timely requested judicial review. Because Billings exhausted all
administrative remedies available to her, the Commissioner’s decision denying Billings’
application for benefits is now final and this Court has jurisdiction to review the decision.
II.

Legal Standard

Judicial review of the Commissioner’s decision is guided by the Social Security Act (the
“Act”).4 The Act provides, in part, that the “findings of the Commissioner as to any fact, if
supported by substantial evidence, shall be conclusive.”5 The court must therefore determine
whether the factual findings of the Commissioner are supported by substantial evidence in the
record and whether the ALJ applied the correct legal standard.6 “Substantial evidence is more
3

ALJ Decision, Doc. 8-1, p. 19.

4

42 U.S.C. § 405(g).

5

Id.

6

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

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than a scintilla, but less than a preponderance; in short, it is such evidence as a reasonable mind
might accept to support the conclusion.”7 The court may “neither reweigh the evidence nor
substitute [its] judgment for that of the [Commissioner].”8
An individual is under a disability only if she can “establish that she has a physical or
mental impairment which prevents her from engaging in substantial gainful activity and is
expected to result in death or to last for a continuous period of at least twelve months.”9 This
impairment “must be severe enough that she is unable to perform her past relevant work, and
further cannot engage in other substantial gainful work existing in the national economy,
considering [her] age, education, and work experience.”10
Pursuant to the Act, the Social Security Administration has established a five-step
sequential evaluation process for determining whether an individual is disabled.11 The steps are
designed to be followed in order. If it is determined, at any step of the evaluation process, that
the claimant is or is not disabled, further evaluation under a subsequent step is unnecessary.12
The first three steps of the sequential evaluation require the Commissioner to assess: (1)
whether the claimant has engaged in substantial gainful activity since the onset of the alleged
disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3)

7

Barkley v. Astrue, No. 09-1163-JTM, 2010 WL 3001753, at *1 (D. Kan. July 28, 2010) (citing Castellano
v. Sec’y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)).
8

Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec’y of Health & Human
Servs., 933 F.3d 799, 800 (10th Cir. 1991)).
9

Brennan v. Astrue, 501 F. Supp. 2d 1303, 1306–07 (D. Kan. 2007) (citing 42 U.S.C. § 423(d)).

10

Barkley, 2010 WL 3001753, at *2 (citing Barnhart v. Walton, 535 U.S. 212, 217–22 (2002)).

11

Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010); see also 20 C.F.R. §§ 404.1520(a) and

416.920(a).
12

Barkley, 2010 WL 3001753, at *2.

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whether the severity of those severe impairments meets or equals a designated list of
impairments.13 If the impairment does not meet or equal one of these designated impairments,
the ALJ must then determine the claimant’s residual functional capacity, which is the claimant’s
ability “to do physical and mental work activities on a sustained basis despite limitations from
her impairments.”14
Upon assessing the claimant’s residual functioning capacity, the Commissioner moves on
to steps four and five. These steps required the Commissioner to determine whether the claimant
can either perform her past relevant work or whether she can generally perform other work that
exists in the national economy, respectively.15 The claimant bears the burden in steps one
through four to prove a disability that prevents performance of his past relevant work.16 The
burden then shifts to the Commissioner at step five to show that, despite his alleged impairments,
the claimant can perform other gainful work in the national economy.17
III.

Analysis

Billings asserts error resulting from the substantive consequences of two procedural
deficiencies. First, Billings claims that the ALJ failed to follow administrative guidelines for
obtaining medical expert testimony. Second, Billings claims that the ALJ ignored the regulatory
procedure for weighing a treating source opinion. These procedural errors, according to Billings,

13

Lax, 489 F.3d at 1084; see also Barkley, 2010 WL 3001753, at *2 (citing Williams v. Bowen, 844 F.2d
748, 751 (10th Cir. 1988)).
14

Barkley, 2010 WL 3001753, at *2; see also 20 C.F.R. §§ 404.1520(e), 404.1545 and 416.920(e),

416.945.
15

Barkley, 2010 WL 3001753, at *2 (citing Williams, 844 F.2d at 751).

16

Lax, 489 F.3d at 1084.

17

Id.

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produced determinations of her residual functional capacity and her ability to obtain gainful
employment that lack the support of substantial evidence in the record. The Commissioner
contends that the ALJ properly obtained and considered the medical opinion evidence and that
the ALJ’s resulting conclusions are properly supported by substantial evidence in the record.
A. Administrative Guidelines
Billings’ first allegation of procedure-based error suggests a failure to observe two
provisions of the Hearings, Appeals, and Litigation Law Manual (“HALLEX”).

The first

provision directs the ALJ to provide a medical expert with “relevant evidence that will assist”
him in providing his opinion.18 Billings argues that the ALJ failed to provide medical expert Dr.
Mark Scher with certain medical records and a statement from one of her former employers. The
second provision instructs the ALJ to discuss certain matters on the record before a medical
expert testifies at a hearing.19 These matters—which Billings claims the ALJ omitted from the
hearing involving Dr. Scher—include a summary of “the opening statement or relevant
testimony on the record if the [medical expert] was not present” and colloquy to “ensure on the
record that the [medical expert] has examined all medical and other evidence of record.”20 The
Commissioner counters that Dr. Scher’s interrogatory response and the references to that
response in the ALJ’s decision demonstrate the ALJ’s compliance.
The Court need not decide this issue of the ALJ’s compliance with HALLEX. As
Billings points out in her brief, this Court has determined HALLEX generally to be non-

18

HALLEX I-2-5-38(C), 1994 WL 637373 (S.S.A.).

19

HALLEX I-2-5-39(A), 1994 WL 637374 (S.S.A.).

20

Id.; see also ALJ Decision, Doc. 15, pp. 39–40.

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binding.21 Billings argues, however, that the ALJ’s “responsibility to develop an adequate
record” obligated him to satisfy the demands of HALLEX’s provisions for obtaining medical
expert testimony.22 The Court disagrees. HALLEX provisions are enforceable only to the extent
that they restate an administrative regulation.23

Here, the provisions “go[] beyond the

regulations,”24 providing mere “guidance for processing and adjudicating claims.”25 As such, the
Court concludes that HALLEX provisions I-2-5-38(C) and I-2-5-39(A) “do not have the force of
law, are not binding on the [Commissioner], and do not provide a basis for the Court to rule.”26
Any failure by the ALJ to comply with HALLEX provisions, moreover, did not impair
the adequacy of the record. The duty to develop an adequate record originates from the rule that,
at a hearing, “the administrative law judge look[] fully into the issues.”27 Generally, this means
that the ALJ has a duty to obtain “pertinent, available medical records” concerning “substantial”
issues raised by the claimant that are material to the ALJ’s disability determination.28 The
obligation also imposes a duty of inquiry, “requiring the decision maker ‘to inform himself about

21

See McCoy v. Barnhart, 309 F. Supp.2d 1281, 1284–85 (D. Kan. 2004).

22

Plaintiff’s Brief In Support of Reversal, Doc. 15, p. 39 (citing Hawkins v. Charter, 113 F.3d 1162, 1164
(10th Cir. 1997)).
23

McCoy, 309 F. Supp.2d at 1284–85.

24

Id. at 1284.

25

HALLEX I-1-0-1, 2005 WL 1863821 (S.S.A.).

26

McCoy, 309 F. Supp.2d at 1285; see also Schweiker v. Hansen, 450 U.S. 785, 789 (1981) (finding that
the 13-volume Claims Manual is a handbook for use by Social Security employees and has no legal force and does
not bind the Social Security Administration); Moore v. Apfel, 216 F.3d 864, 868–69 (9th Cir. 2000) (characterizing
HALLEX manual as strictly an internal document).
27

20 C.F.R. §§ 404.944 and 416.1444; see also Hawkins, 113 F.3d at 1164.

28

Hawkins, 113 F.3d at 1167–68.

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facts relevant to his decision and to learn the claimant’s own version of those facts.’ ”29 Overall,
the duty operates to ensure that the ALJ’s determination is based on a sufficient record of
medical evidence. Billings does not identify for the Court the exact inadequacy created by the
ALJ’s alleged failure to adhere to HALLEX’s provisions for obtaining medical expert testimony.
And, as discussed below, the Court finds the record adequately developed to provide substantial
evidence to support the ALJ’s disability determination. Thus, the Court dismisses Billings’
creative effort to recast non-binding HALLEX instructions as a binding benchmark for
measuring the adequacy of the record.
B. Treating Psychiatrist’s Opinion
Billings’ second allegation of procedure-based error accuses the ALJ of improperly
evaluating the opinion of her treating psychiatrist, Dr. Danielle Skirchak. To perform a proper
evaluation of a treating source opinion, the ALJ must give good reasons in the notice of decision
for the weight assigned to a treating doctor’s opinion.30 Generally, the ALJ should “give more
weight to opinions from [claimant’s] treating sources.”31
To determine the exact weight to assign a treating source’s opinion, the ALJ must follow
a two-step inquiry.32 At the first step, the ALJ must decide whether to afford the opinion
controlling weight. The ALJ will give controlling weight to a treating source opinion about the
nature and severity of impairment only if the opinion is: (1) well-supported by medically
acceptable clinical and laboratory diagnostic techniques and (2) consistent with other substantial
29

Id. at 1164 (quoting Heckler v. Campbell, 461 U.S. 471 n. 1 (1983)).

30

20 C.F.R. §§ 404.1527(c) and 416.927(c); Social Security Ruling 96-2p, 1996 WL 374188, at *5; Doyal
v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003).
31

20 C.F.R. §§ 404.1527(c) and 416.927(c).

32

Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011).

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evidence in claimant’s case record.33 An opinion that is deficient in either support or consistency
with other evidence is not entitled to controlling weight.34 But such a finding does not mean that
the opinion automatically should be rejected.35 Even if it is not given controlling weight, a
treating opinion is still entitled to deference.36 As such, finding that a treating source’s opinion is
deficient enough to be not given controlling weight only raises the question of how much weight
to give the opinion, but it does not answer the question.37
To determine “whether the opinion should be rejected altogether or assigned some lesser
weight,” the ALJ must proceed to the second step of the evaluation process.38 At the second
step, the ALJ must consider the factors specified 20 C.F.R. §§ 404.1527(c) and 416.927(c) for
weighing medical opinions.39 These factors include:
(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 [source’s] opinion is supported by relevant evidence; (4) consistency
between the opinion and the record as a whole; (5) whether or not the [source] 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.40

33

20 C.F.R. §§ 404.1527(c) and 416.927(c).

34

Krauser, 638 F.3d at 1330.

35

Id. (quoting SSR 96-2p, 1996 WL 374188, at *4).

36

Hackett v. Barnhart, 395 F.3d 1168, 1173–74 (10th Cir. 2005).

37

Krauser, 638 F.3d at 1330–31.

38

Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007).

39

Id.

40

Krauser, 638 F.3d at 1331; see also 20 C.F.R. §§ 404.1527(c)(1)–(6) and 416.927(c)(1)–(6).

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Though the ALJ is not required to discuss all six of these regulatory factors,41 the ALJ must
“give good reasons, tied to the factors specified in the cited regulations . . . , for the weight
assigned” a treating source opinion.42 This analysis must be “sufficiently specific to make clear
to any subsequent reviewers the weight the adjudicator gave to the treating source’s medical
opinion and the reason for that weight.”43 And if the ALJ rejects a treating source’s opinion, “he
must articulate specific, legitimate reasons for his decision.”44 If the ALJ fails to make clear
either the weight given or the reasons supporting that weight, remand is required.45
Billings challenges the ALJ’s decision not to afford controlling weight to Dr. Skirchak’s
opinion. Specifically, Billings argues that the ALJ failed to properly evaluate Dr. Skirchak’s
opinion under the applicable regulations and that substantial evidence does not support the ALJ’s
findings.
1. The ALJ Properly Concluded that Dr. Skirchak’s Opinion is Not Entitled to Controlling
Weight.
The Court first considers whether the ALJ properly analyzed Dr. Skirchak’s opinion to
determine if it was entitled to controlling weight. Dr. Skirchak presented her opinion of Billings’
alleged disability in a “Mental Impairment Questionnaire” form organized around the regulatory
listing criteria for determining disability by mental disorder.46 The questionnaire includes a

41

Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).

42

Krauser, 638 F.3d at 1330 (internal citation omitted).

43

Id. at 1331 (quoting Langley v. Barnhart, 373 F.3d 1116, 1120 (10th Cir. 2004)).

44

Cowan v. Astrue, 552 F.3d 1182, 1188 (10th Cir. 2008) (quotation omitted).

45

Krauser, 638 F.3d at 1330.

46

See 20 C.F.R. § 404, Subpart P, Appendix 1, at 12.00.

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DSM-IV multiaxial assessment of Billings’ mental health which lists, among other diagnoses,
bipolar I disorder. Dr. Skirchak indicated Billings’ symptoms to include twenty of the thirty
listed:
poor memory; appetite disturbance with weight change; sleep disturbance; mood
disturbance; emotional liability; delusions or hallucinations; recurrent panic
attacks; anhedonia or pervasive loss of interests; psychomotor agitation or
retardation; feelings of guilt/worthlessness; difficulty thinking or concentrating;
suicidal ideation or attempts; oddities of thought, perception, speech, or behavior;
perceptual disturbances; social withdrawal or isolation; blunt, flat[,] or
inappropriate affect; decreased energy; manic syndrome; generalized persistent
anxiety; and hostility and irritability.47
Dr. Skirchak indicated that Billings’ mental conditions afflict her with marked limitations in all
functional areas—activities of daily living; social functioning; concentration, persistence, or
pace—and with repeated, extended episodes of decompensation.

Dr. Skirchak noted that

Billings’ struggle “to remain stable” would make working at a regular job on a sustained basis
difficult. If considered alone and entitled to controlling weight, these and Dr. Skirchak’s other
responses on the form could support a determination of disability.
The ALJ, however, concluded that Dr. Skirchak’s opinion is not entitled to controlling
weight. The ALJ considered Dr. Skirchak’s opinion for both support and consistency. The ALJ
identified the absence of accepted medical tests to support both Billings’ bipolar disorder
diagnosis and the severity of her condition. Considering the testimony of a psychiatry board
certified medical expert, Dr. Mark Scher, the ALJ noted that Billings’ bipolar “diagnosis has
been carried [over] since [Billings] was 13 years old without any documentation of symptoms
(objective or subjective) sufficient to make this diagnosis.”48 The ALJ later confirmed that “no

47

Mental Impairment Questionnaire (26F), Doc. 8-1, p. 1052.

48

ALJ Decision, Doc. 8-1, p. 14.

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objective medical test reveals the claimant has any condition that would present the severity of
the symptoms alleged.”49
The ALJ also evaluated Dr. Skirchak’s opinion for consistency.

When considering

Billings’ bipolar diagnosis, the ALJ determined that “the weight of the evidence” supported the
conclusion that Billings’ medical records do not justify a diagnosis of bipolar disorder.50 The
ALJ identified as well-supported the observation of Dr. Scher that the twenty symptoms Dr.
Skirchak identifies on the “Mental Impairment Questionnaire” form are either unreported or
inconsistently documented in Dr. Skirchak’s treatment notes.51 The ALJ further explained the
lack of support for Dr. Skirchak’s opinion, stating:
As for Dr. Skirchak’s opinion, the undersigned finds that it is not fully
supported by her treatment records and is internally inconsistent as well. Dr.
Skirchak has consistently assessed the claimant’s global assessment of
functioning as 50, which is inconsistent with the severity Dr. Skirchak contends.
As Dr. Scher pointed out, one would expect an individual with all of the
symptoms and limitations documented in Dr. Skirchak’s statement to be much
more functionally limited than the claimant has shown herself to be. Even the
claimant reported she writes poems, reads daily, does not need special reminders
to take care of grooming or take medication, is able to manage her own finances,
and can follow spoken instructions “okay” and written instructions better than
verbal. . . .She is able to take her children to school, work, bathe them, feed
them, do household chores, pick them up from school, read to them, work on
their homework, and cook dinner. She was also able to go to school from 11 am
to 2:50 pm three days a week before her third pregnancy.52

49

Id. at 24.

50

Id. at 15.

51

Id. at 17 (“When comparing the signs and symptoms of Dr. Skirchak’s medical source statement to the
signs and symptoms documented in her treatment notes, Dr. Scher testified that there are symptoms that have
occurred in some point in time, although some are not accurate at all, but they have not all existed on any consistent
basis during her treatment of the claimant.”).
52

Id. at 18 (citations to record omitted).

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Therefore, the ALJ declined to give Dr. Skirchak’s opinion controlling weight because he found
Dr. Skirchak’s responses in the Medical Impairment Questionnaire to be without the support of
medically acceptable tests, “internally inconsistent” with Dr. Skirchak’s own medical records,
and inconsistent with the balance of the administrative record.53 Having made these findings, the
ALJ sufficiently explained that Dr. Skirchak’s opinion is not entitled to controlling weight.
2. The ALJ Properly Rejected Dr. Skirchak’s Opinion.
Next, the Court considers whether the ALJ applied proper legal standards in effectively
rejecting Dr. Skirchak’s opinion. The ALJ does not specify the exact weight he actually gave to
Dr. Skirchak’s opinion. But it is readily apparent from the ALJ’s contrary conclusions that he
effectively rejected Dr. Skirchak’s opinion regarding Billings’ bipolar diagnosis and the severity
of her functional limitations. Because the Court can ascertain the weight given, the failure to
specify the exact weight assigned Dr. Skirchak’s opinion does not preclude the Court from
conducting a meaningful review of the ALJ’s decision.54
Billings contends that the ALJ failed to discuss all of the relevant factors when
considering what weight to give Dr. Skirchak’s opinion, and instead “[relied] heavily on the
opinions expressed by Dr. Scher, who neither treated, nor examined” Billings.55 The Court
disagrees. The ALJ addressed the length of the treatment relationship, frequency of examination,
and Dr. Skirchak’s specialization in the field of mental illness by introducing Dr. Skirchak as

53

Id.

54

See Mays v. Colvin, 739 F.3d 569, 575 (10th Cir. 2014) (rejecting request for reversal based on ALJ’s
failure to expressly state weight given opinion because the court could “tell from the decision that the ALJ declined
to give controlling weight to Dr. Chorley’s opinion.”); Kruse v. Astrue, 436 Fed. Appx. 879, 883 (10th Cir. 2011)
(concluding that ALJ’s failure to “state a specific weight he attached to [treating source’s opinion]” did not preclude
meaningful review because weight could be implied from ALJ’s discussion of 20 C.F.R. § 416.927 factors).
55

Plaintiff’s Brief In Support of Reversal, Doc. 15, p. 39.

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Billings’ “treating psychiatrist . . . since at least July 2008 on a regular basis.”56 The ALJ’s
discussion of Billings’ medical history during his residual functional capacity analysis
demonstrates his comprehensive review of the nature and extent of Dr. Skirchak’s treatment
relationship with Billings.57 As previously described, the ALJ evaluated the supportability and
consistency of Dr. Skirchak’s opinion.58 An ALJ’s reasons for declining to give controlling
weight to a treating source’s opinion also may support giving the opinion diminished weight.59
And even Billings acknowledges that the ALJ discussed “that Dr. Skirchak’s opinions are not
fully supported by her treatment records and were internally inconsistent.”60 Therefore, the
Court finds that the ALJ properly followed regulatory procedure to identify specific, legitimate
reasons for his decision to effectively reject Dr. Skirchak’s opinion.
As for Billings’ claim that the ALJ “erred in relying upon the opinion of . . . Dr. Scher, a
non-treating, non-examining physician rather than the well supported opinion of Dr. Skirchak,”
the Court finds no error.61 If a treating source’s opinion is inconsistent with other medical
evidence, the ALJ’s task is to examine the other doctors’ reports to see if they outweigh the
treating source’s report, not the other way around.62 The ALJ’s examination should consider the

56

ALJ Decision, Doc. 8-1, p. 16; see also 20 C.F.R. §§ 404.1527(c)(2)(i), (5) and 416.927(c)(2)(i), (5).

57

ALJ Decision, Doc. 8-1, pp. 19–24; see also 20 C.F.R. §§ 404.1527(c)(2)(ii) and 416.927(c)(2)(ii).

58

See 20 C.F.R. §§ 404.1527(c)(3), (4) and 416.927(c)(3), (4).

59

See Payton v. Astrue, 480 F. App’x 465, 469 (10th Cir. 2012) (noting that the treating physician’s
opinion lacked consistency with the record as a whole and was contradicted by his own treatment notes); Armijo v.
Astrue, 385 F. App’x 789, 795–96 (10th Cir. 2010) (noting that supportability and consistency factors had
significant bearing on ALJ’s finding that treating physician’s opinion was entitled to little weight).
60
61
62

Plaintiff’s Brief In Support of Reversal, Doc. 15, p. 45.
Id.
Goatcher v. U.S. Dept. of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995).

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relevant of the six previously identified factors for examining medical opinions under 20 C.F.R.
§§ 404.1527 and 416.927.63 These factors include: “the consultant’s medical specialty and
expertise in our rules, the supporting evidence in the case record, supporting explanations the . . .
psychological consultant provides, and any other factors relevant to the weighing of the
opinions.”64 The ALJ’s examination should also indicate the weight given to the consultant’s
opinion.65
Here, the ALJ assigned “considerable weight” to Dr. Scher’s opinion.66

The ALJ

introduced Dr. Scher as “an independent and impartial medical expert Board Certified in
psychiatry and neurology”67 that “does not have a treating relationship with the claimant.”68 The
ALJ indicated that Dr. Scher’s position as a non-treating consultant enabled him to objectively
review the record for medical evidence to support Billings’ claimed impairments, symptoms, and
prognosis.69

The ALJ explained Dr. Scher’s findings in great detail and documented the

“persuasive support from the record for [Dr. Scher’s] opinion.”70 For example, Dr. Scher opines
that Billings is “histrionic and exaggerates her symptoms.”71 In support, the ALJ cites treatment
notes from one of Billings’ attending psychiatrists that indicate “a tendency to overly report

63

20 C.F.R. §§ 404.1527(e)(2)(ii) and 416.927(e)(2)(ii).

64

20 C.F.R. §§ 404.1527(e)(2)(ii) and 416.927(e)(2)(ii).

65

20 C.F.R. §§ 404.1527(e)(2)(ii) and 416.927(e)(2)(ii).

66

ALJ Decision, Doc. 8-1, p. 18.

67

Id. at 16.

68

Id. at 15.

69

Id.

70

Id. at 18.

71

Id. at 16.

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psychopathology.”72 To support further Dr. Scher’s opinion that “claimant’s self-reports are
unreliable,” the ALJ offers Dr. Scher’s observation from the record that “claimant reports
drinking a fifth of liquor on the weekends but denies any drugs or alcohol since her teenage
years.”73 Dr. Scher also discounted the alleged severity of Billings’ impairments based on
Billings recorded ability to attend school and manage her home life.74 These and many other
passages from the ALJ’s decision convince the Court that the ALJ correctly observed the
regulatory procedure for weighing Dr. Scher’s opinion.
The Court also disagrees with Billings’ assertion that a different result is required
because the ALJ impermissibly adopted Dr. Scher’s “bias rationale” as a basis for discounting
Dr. Skirchak’s opinion.75 Dr. Scher partially discredited Dr. Skirchak’s opinion as being a wellintended generosity designed to improve a sympathetic patient’s chances of receiving disability
benefits.76 The ALJ included Dr. Scher’s estimation while reviewing the entirety of Dr. Scher’s
testimony. But the Court cannot ascertain—and Billings does not provide—any evidence from
the record that, after discussing all of Dr. Scher’s testimony, the ALJ endorsed Dr. Scher’s

72

Id. Made during Billings’ May 2008 hospitalization for suicidal ideation, the treatment notes report: “In
summary, the patient endorsed a variety of mood and anxiety symptoms; however, per psychometric and behavioral
data, she appears to have a tendency to overly report psychopathology. This appeared, to strongly be the case per
the MMPI too.” Inpatient Hospital Records (1F), Doc. 8-1, p. 378.
73

ALJ Decision, Doc. 8-1, p. 16. Compare Drug and Alcohol Questionnaire (7E), Doc. 8-1, p. 327 with
JCMH Treatment Records (5F), Doc 8-1, p. 444.
74

The ALJ explained, “[Dr. Scher] noted that [Billings] was able to go to school, her grades were okay, she
was motivated to learn and improve her situation, she gets her kids ready for school, clothes the kids, helps them
with homework, and makes sure they get to their doctor appointments. [Dr. Scher] further noted [that from] the
claimant’s ability to manage the job of raising children, one that most would find one of the hardest jobs in life, it is
clear that her personality disorder, in and of itself, does not affect her ability to function to the extent alleged.” ALJ
Decision, Doc. 8-1, p. 17.
75

Plaintiff’s Brief In Support of Reversal, Doc. 15, p. 46.

76

April 2012 Oral Hearing, Doc. 8-1, p. 48.

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speculative bias-opinion as a basis for rejecting Dr. Skirchak’s opinion. This is not the case, as
Billings urges and case law condemns, where an ALJ rejects a treating source’s opinion based
upon the dismissive “assertion that a treating physician ‘naturally advocates’ for his patient.”77
As discussed above, the ALJ provided sufficient, non-speculative conclusions that address the
regulatory factors for weighing the medical opinions. The regulations do not—and the Court
will not—require more.
3. Substantial Evidence Supports the ALJ’s Evaluation of Dr. Skirchak’s Opinion.
Billings’ remaining arguments amount to an assertion that substantial evidence does not
support the ALJ’s findings concerning Dr. Skirchak’s opinion. An ALJ’s findings may be
supported by substantial evidence even if two inconsistent conclusions may be drawn from the
evidence.78

This Court may not displace the ALJ’s choice between two fairly conflicting

views.79 Here, there is substantial evidence to support the ALJ’s specific, legitimate reasons for
rejecting Dr. Skirchak’s opinion.
First, the ALJ accurately noted at step two that Billings’ asserted bipolar diagnosis has
been carried over since Billings was thirteen years old without substantial support for the
diagnosis.80 The diagnosis appears in many of Billings’ medical records, including those of Dr.
Skirchak. But the record does not clearly present a medical basis for the bipolar diagnosis that is
distinguishable from Billings other mental conditions. What the record provides are Billings’

77

Charboneau v. Astrue, No. 11-CV-547-PJC, 2012 WL 5334748, at *6 (N.D. Okla. Oct. 26, 2012); see
also Plaintiff’s Brief in Support of Reversal, Doc. 15, p. 46.
78

Lax, 489 F.3d at 1084.

79

Id.

80

Treatment records indicate that Billings received the bipolar diagnosis during her first hospitalization for
suicidal ideation at age thirteen. Inpatient Hospital Records (1F), Doc. 8-1, p. 376.

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self-reported symptoms and a history of medication.

Even accepting Billings’ ability to

accurately and honestly describe her mental condition, Billings’ own statements “alone are not
enough to establish that there is a . . . mental impairment.”81 Self-reported symptoms—whether
offered directly by Billings or indirectly by Billings’ medical records—must be verified by
medically acceptable clinical diagnostic techniques.82

Though Dr. Skirchak’s records

occasionally include notes of observable phenomena,83 the remaining content of her notes
amounts to second-hand summaries of Billings’ self-reports.84 Furthermore, records indicate that
although Dr. Skirchak began seeing Billings in July 2008,85 she did not formally include her
diagnosis of bipolar disorder until July 2011,86 over three years from Billngs’ alleged disability
onset date and less than one year before the ALJ issued his decision.87 From this record, the ALJ
could only credit Dr. Scher. Thus, the ALJ explained that,
The use of medications for affective instability [bipolar disorder] . . . is
appropriate according to Dr. Scher, but by themselves do not confirm a
81

20 C.F.R. §§ 404.1528(a) and 416.928(a).

82

20 C.F.R. §§ 404.1528(a) and 416.928(a); see also 20 C.F.R. §§ 404.1512(b)(1) and 416.912(b)(1)
(defining “evidence” to include “objective medical evidence”—medical signs and laboratory findings).
83

The regulations authorize the ALJ to consider as evidence “signs.” 20 C.F.R. §§ 404.1512(b)(1) and
416.912(b)(1). Signs must “be shown by observable facts that can be medically described and evaluated” through
medically acceptable clinical diagnostic techniques. 20 C.F.R. §§ 404.1528(b) and 416.928(b).
84

See e.g. JCMH Treatment Records (5F), Doc. 8-1, p. 444 (recording Billings’ self-reports under section
titled “Subjective” and brief observations under “Mental Status Examination”).
85

See id. at 454.

86

See JCMH Treatment Records (28F), Doc. 8-1, p. 1115.

87

To support a finding of disability, the ALJ must be able to conclude that claimant is unable “to engage in
any substantial gainful activity by reason of any medically determinable . . . mental impairment which . . . 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)
(emphasis added). Dr. Skirchak’s late diagnosis and the ambiguity it creates regarding her former treatment notes
that list a bipolar diagnosis both complicated the ALJ’s ability to make, based on Dr. Skirchak’s opinion, the
requisite impairment and duration findings to support a determination that Billings’ is disabled by means of bipolar
disorder.

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diagnosis qualifying under 12.04 [the listing criteria for diagnosing affective
disorder as a recognized mental impairment] . . . . Although the claimant reports
mood disturbance, Dr. Scher found no objective evidence that this is persistent
or meets the criteria for true affective [bipolar] disorder.88
A reasonable mind might accept these findings to support the ALJ’s decision to exclude Billings’
alleged bipolar diagnosis from her list of severe impairments.89
Second, the ALJ appropriately identified at step three the inconsistencies surrounding Dr.
Skirchak’s opinion. The ALJ determined that Dr. Skirchak’s assessment of Billings’ global
assessment of functioning (GAF) score contradicts the number and severity of Billings’
symptoms.90 Dr. Skirchak regularly designates Billings’ GAF score as fifty.91 But, in the
questionnaire she completed on Billings’ behalf, she presents Billings’ symptoms as extensive
and Billings’ functional limitations as marked in all areas. The ALJ found Dr. Skirchak’s
opinion of Billings’ symptoms and limitations too extreme to corroborate the consistently
assigned fifty GAF score. Dr. Scher endorsed this opinion, noting that “an individual with all of
the signs and symptoms described [in Dr. Skirchak’s questionnaire] would be institutionalized
and would not be seen on an outpatient basis.”92 Dr. Skirchak does not identify the exact
symptom(s) or circumstance(s) on which she bases her GAF score determination. And without
88

ALJ Decision, Doc. 8-1, p. 16.

89

See Barkley, 2010 WL 3001753, at *1 (citing Castellano, 26 F.3d at 1028).

90

The Global Assessment of Functioning (GAF) assigns a numerical score between 0 and 100 to a
subjective clinical judgment of the individual’s overall functioning level. The criteria for score assessment
considers psychological, social, and occupational functioning, but excludes physical or environmental limitations.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (Text Revision 4th ed.
2000) at 32.
91

JCMH Treatment Records (18F), Doc. 8-1, pp. 782, 790, 810; JCMH Treatment Records (20F), Doc. 81, pp. 852, 857, 860, 861; JCMH Treatment Records (28F), Doc. 8-1, pp. 1072, 1083, 1096, 1107. A GAF score of
41 to 50 indicates “serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational or school functioning (e.g. no friends, unable to keep a job).” American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (Text Revision 4th ed. 2000) at 34.
92

ALJ Decision, Doc. 8-1, p. 17.

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explanation linking Dr. Skirchak’s GAF assessment to specific problems related to Billings’
ability to maintain employment, the ALJ could not accept the score itself as evidence of an
impairment that seriously interferes with Billings’ ability to work.93
The ALJ also fairly identified the contradiction between Dr. Skirchak’s questionnaire
response and her treatment notes.

Dr. Skirchak’s opinion indicates Billings’ symptoms to

include twenty of the thirty listed. Billings contends that the “record contains hundreds of pages
of treatment notes by Dr. Skirchak and [P]laintiff’s therapists chronicling her pervasive
symptoms.”94 The ALJ acknowledged these records in his discussion but determined that Dr.
Skirchak’s opinion improperly overstates the medical evidence in the record. Specifically, the
ALJ found the evidence to favor the position that “some [of the symptoms] are not accurate at
all” and “they have not all existed on any consistent basis during [Dr. Skirchak’s] treatment of
the claimant.”95 For example, Dr. Skirchak’s opinion describes Billings’ symptoms to include:
“delusion or hallucinations,” “psychomotor agitation or retardation,” and “poor memory.”96 Dr.
Skirchak’s treatment notes, however, consistently deny both hallucinations97 and abnormal
psychomotor activity.98 The notes also omit entirely any observations regarding memory.99
93

See Whelchel v. Barnhart, 94 F. App’x 703, 709 (10th Cir. 2004) (“Moreover, plaintiff’s GAF score of
47 may indicate problems not necessarily related to her ability to hold a job, see DSM-IV-TR at 34, and therefore
standing alone, without any further narrative explanation, this rating does not support an impairment seriously
interfering with her ability to work.”).
94

Plaintiff’s Brief In Support of Reversal, Doc. 15, p. 45.

95

ALJ Decision, Doc. 8-1, p. 17.

96

Mental Impairment Questionnaire (26F), Doc. 8-1, p. 1052.

97

JCMH Treatment Records (5F), Doc. 8-1, pp. 453, 454; JCMH Treatment Records (18F), Doc. 8-1, pp.
781, 789, 795, 808; JCMH Treatment Records (28F), Doc. 8-1, pp. 1071, 1082, 1095, 1106.
98

JCMH Treatment Records (5F), Doc. 8-1, pp. 447, 450, 452, 453, 454; JCMH Treatment Records (18F),
Doc. 8-1, pp. 794, 808; JCMH Treatment Records (20F), Doc. 8-1, pp. 857, 860, 861; JCMH Treatment Records
(28F), Doc. 8-1, pp. 1070, 1094, 1105.

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Additionally, Dr. Skirchak’s treatment reviews present a more optimistic prognosis than that
opined in the questionnaire.100
The ALJ also determined that documentation of Billings’ noncompliance with prescribed
treatment undermines Dr. Skirchak’s estimation of the number and severity of Billings’
symptoms. An ALJ may deny a claimant benefits based upon a finding that claimant failed to
comply with prescribed treatment.101 Here, the ALJ correctly identified that Dr. Skirchak’s
progress notes “reveal[] that [Billings] has not always been entirely compliant with the
prescribed medical care.”102 Dr. Skirchak “strongly advised” Billings to avoid alcohol and drugs
because their consumption can “make mood and anxiety problems worse.”103 Nonetheless,
Billings disregarded Dr. Skirchak’s sobriety instructions.104 Dr. Skirchak’s progress notes also

99

Though Dr. Skirchak makes no observations regarding memory, her treatment notes do routinely indicate
linear thought process. JCMH Treatment Records (5F), Doc. 8-1, pp. 444, 447, 450, 452, 453, 454; JCMH
Treatment Records (18F), Doc. 8-1, pp. 781, 789, 809; JCMH Treatment Records (20F), Doc. 8-1, pp. 853, 857,
860, 861; JCMH Treatment Records (28F), Doc. 8-1, pp. 1071, 1082, 1095, 1106.
100

Dr. Skirchak assessed Billings’ prognosis in the questionnaire to be “guarded, decompensation periods
in past resulting in hospitalizations, SI, psychotic symptoms.” JCMH Treatment Records (28F), Doc. 8-1, p. 1054.
Her treatment reviews for roughly the same period, however, designate that she “[e]xpect[s] improvement, but
anticipate[s] less than normal functioning.” Id. at 1116, 1121, 1125.
101

20 C.F.R. §§ 404.1530 and 416.930; see also Bales v. Colvin, 576 F. App’x 792, 796 (10th Cir. 2014)
(affirming ALJ decision to give “limited weight” to treating physician’s opinion, in part, because “ALJ observed
that [claimant’s] symptoms improved when she was taking her medications”); Hackett, 395 F.3d at 1174
(concluding that ALJ properly rejected treating physician’s opinion because, among other reasons, the opinion was
“not supported by [the physician’s] own records which indicate[d] improvement and stabilization on medications).
102

ALJ Decision, Doc. 8-1, p. 24.

103

JCMH Treatment Records (5F), Doc. 8-1, p. 444; see also JCMH Treatment Records (18F), Doc. 8-1,
pp. 807 (“she discussed cravings to drink alcohol. last marijuana 30 days ago. . . . reminded that she should not be
using alcohol with her meds.”), 811 (“discussed substance abuse treatment, she declined at this time. warned of
serious medical and psychiatric risks of use of alcohol.”); JCMH Treatment Records (28F), Doc. 8-1, p. 1108 (“also,
her alcohol addiction confounds the situation and can make her [symptoms] worse. discussed dangerousness of
alcohol with all her meds”).
104

The extent of Billings’ alcohol and marijuana use is unclear because Billings “[i]dentified that she
usually doesn’t disclose substance abuse/use because of fear of losing custody of her children.” JCMH Treatment
Records (18F), Doc. 8-1, p. 864.

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indicate that when drinking or during pregnancy Billings often refused to take her medication as
prescribed.105

Billings’ noncompliance aggravated her symptoms.106

The ALJ therefore

determined that “when the claimant is compliant with recommended treatment her condition
improves” sufficiently to permit gainful employment.107 The Court is satisfied that substantial
evidence—including Dr. Skirchak’s treatment notes—supports the ALJ’s determination.
Finally, the ALJ appropriately concluded that Dr. Skirchak’s opinion of Billings’
limitations is inconsistent with the balance of the record. The ALJ could not reconcile Dr.
Treatment notes, however, document self-reported occasional use of alcohol and marijuana. See JCMH
Treatment Records (5F), Doc. 8-1, p. 444 (“Drinks alcohol on the weekends . . . Drinks a fifth of whiskey on the
weekend, and at first doesn’t realize that this is a great amount of alcohol.”); JCMH Treatment Records (18F), Doc.
8-1, pp. 807 (“[Billings] discussed cravings to drink alcohol. last marijuana 30 days ago. . . . reminded that she
should not be using alcohol with her meds.”), 811 (“discussed substance abuse treatment, [Billings] declined at this
time. warned of serious medical and psychiatric risks of use of alcohol.”); JCMH Treatment Records (20F), Doc. 81, p. 882 (“[Billings was positive for THC.”); JCMH Treatment Records (28F), Doc. 8-1, pp. 1018 (“Urine drug
screen positive for benzodiazepines and THC.”), 1104 (“[Billings] is drinking on the weekends now.”), 1108 (“also,
her alcohol addiction confounds the situation and can make her [symptoms] worse. discussed dangerousness of
alcohol with all her meds”).
Billings’ prior psychiatrist and her therapist also note Billings’ struggle to abstain from alcohol. See JCMH
Treatment Records (17F), Doc. 8-1, pp. 729 (“[Billings] reports . . . urges to drink”), 740 (“[Billings] reported
getting intoxicated with her friends . . . She reports drinking more periodically with friends. . . . [Billings] reports
craving alcohol more lately.”).
105

See Treatment Records (12F), Doc. 8-1, pp. 640 (“client is taking less [medication] than prescribed”),
645 (“[Billings] has been taking less of each [medication]”); JCMH Treatment Records (17F), Doc. 8-1, p. 740
(“[Billings] reports not taking her medication when she drinks;” “[Billings] reports increased depression and mood
liability, likely due to the increased drinking, stress and not taking her medicine when drinking.”); JCMH Treatment
Records (20F), Doc. 8-1, pp. 857 (“Hasn’t taken Seroquel in a month due to feeling too sleepy.”); 860 (“trying to not
take much meds due to pregnancy. . . . She doesn’t take the Seroquel then;” “Med compliance is an issue as well.”),
861 (“Has had varied med compliance.”); JCMH Treatment Records (28F), Doc. 8-1, p. 1104 (“she reports she stops
her Xanax only on the weekend, . . . she is drinking on the weekends now . . . she stopped the temapazpam.”).
106

See JCMH Treatment Records (20F), Doc. 8-1, pp. 860 (“[Billings has serious mental health symptoms
at present . . . . Med compliance is an issue as well. –Continue current meds for mood stabilization and anxiety.”),
861–62 (“[Billings] has serious mental health symptoms at present and the risk of not taking meds on this client and
the baby include suicidal gestures/attempts, worsening depression, mood swings and anxiety, and another
psychiatric hospitalization.”); JCMH Treatment Records (28F), Doc. 8-1, pp. 1069 (“when she misses her meds
completely, she feels more moody, and depressed”), 1108 (“also, her alcohol addiction confounds the situation and
can make her [symptoms] worse. discussed dangerousness of alcohol with all her meds”).
Billings also indicated in her March 2010 Disability Report that during her pregnancy she “had to change
and discontinue . . . medications.” March 2010 Disability Report (9E), Doc. 8-1, p. 337. As a “direct result” of the
change, Billings “found [her] symptoms [were] worsening.” Id.
107

ALJ Decision, Doc. 8-1, p. 24.

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Skirchak’s opinion with the other expert opinions, vocational assessment, and functional reports
in the record. No other medical professional agreed with Dr. Skirchak that Billings suffers
marked functional limitations or repeated episodes of decompensation as required by the
“paragraph B” criteria for the listed mental impairments.108 Dr. Scher identified only mild
difficulties in maintaining social functioning and, as discussed above, offered evidence from the
record to suggest that Billings “is histrionic and exaggerates her symptoms.”109 Dr. R. E.
Schulman, a state agency psychological consultant, found that Billings’ “[a]llegations of
limitations [aren’t] fully credible.”110 Dr. Schulman and Dr. Norman S. Jessop, a second state
agency psychological consultant, both identified a mixture of moderate and mild functional
limitations.111

Both Dr. Schulman and Dr. Jessop concluded, however, that, despite these

limitations, Billings is still “able to function at adequate levels and . . . capable of certain types of
work.”112 Dr. Jessop also added that Billings’ mental diagnoses were “further stressed by a
pregnancy whose effects should end at term.”113 And Dr. Scher, Dr. Schulman, and Dr. Jessop
found no evidence of episodes of decompensation.114

108

See 20 C.F.R. Part 404, Subpart P, Appendix 1, at 12.00 (listing the “paragraph B” criteria for
measuring severity of functional limitations).
109

Medical Source Statement (27F), Doc. 8-1, pp. 1060, 1064.

110

December 2009 Psychiatric Review Technique (8F), Doc. 8-1, p. 607.

111

Id. at 605; June 2010 Psychiatric Review Technique (13F), Doc. 8-1, p. 681.

112

December 2009 Psychiatric Review Technique (8F), Doc. 8-1, p. 607; June 2010 Psychiatric Review
Technique (13F), Doc. 8-1, p. 683.
113

June 2010 Psychiatric Review Technique (13F), Doc. 8-1, p. 683.

114

December 2009 Psychiatric Review Technique (8F), Doc. 8-1, p. 605; June 2010 Psychiatric Review
Technique, Doc. 8-1, p. 681; Medical Source Statement (27F), Doc. 8-1, p. 1060.

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The record also includes a vocational assessment and several functional reports that
reinforce the ALJ’s decision. A 2009 “Vocational Assessment Report” provides additional
evidence that Billings’ actual limitations do not interfere with her employability. The report
characterizes Billings as “a quick learner . . . able to understand and follow directions without
difficulty . . . to work independently” and “capable of routine office work and the operation of
routinized equipment.”115

Similarly, two functional reports completed by Billings and one

completed by her mother explain that Billings, though sometimes tired or unmotivated, is
generally able to manage her home life, interact socially with family and close friends, and
follow written and oral instructions. No objective medical evidence contradicts this evidence.
Billings’ treatment records do not mention specific limitations expected to last more than one
year that preclude Billings from employment. And the fact that Billings occasionally receives
assistance with daily activities does not undercut evidence that Billings possesses sufficient
functional ability to perform personal and select professional tasks.116
The ALJ weighed this evidence and determined that he cannot fully credit Dr.
Skirchak’s opinion. The ALJ based his findings in the record. The Court finds the ALJ’s
decision and the record replete with evidence that a reasonable mind would acknowledge to
discredit Dr. Skirchak’s opinion. As such, the Court will “neither reweigh the evidence nor
substitute [its] judgment for that of the [Commissioner].”117

115

Vocational Assessment and Eligibility Determination (3F), Doc. 8-1, pp. 403, 406.

116

Here, the Court refuses to disturb the Commissioner’s judgment and therefore rejects Billings’
allegation that the ALJ failed to account for “all the assistance [P]laintiff was provided including that of her parents,
as well as ‘in-home care’ from Johnson County Mental Health Center and regular help from her case manager, in
addition to her therapist and her psychiatrist.” Plaintiff’s Brief In Support of Reversal, Doc. 15, p. 47.
117

Bowman, 511 F.3d at 1272 (quoting Casias, 933 F.3d at 800).

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C. Residual Functional Capacity Determination
Billings also contends that the ALJ erred at the end of step three in formulating her
residual functional capacity. Residual functional capacity considers physical, mental, and other
impairments (such as pain) to measure the most a claimant can still do on a sustained basis
despite their limitations.118

As noted above, the ALJ found that Billings has the residual

functional capacity to perform certain sedentary work. The ALJ qualified this assessment with
the exception that Billings be “limited to simple, unskilled work with no contact with the general
public and only occasional interaction with coworkers and supervisors. In addition, she should
have no more than moderate exposure to pulmonary irritants and normal access to restroom
facilities.”119 Here, Billings alleges without elaboration a single error, that “the ALJ did not
consider the limitations described in the medical questionnaire completed by Dr. Skirchak and,
instead, relied heavily upon the opinions of Dr. Scher with regard to the severity of plaintiff’s
functional limitations.”120
The Court refuses to readdress the ALJ’s evaluation of Dr. Skirchak’s opinion. For the
reasons discussed above, the Court finds that the ALJ followed the proper procedure for
weighing the opinions within the record and that substantial evidence supports the ALJ’s
determination to discredit Dr. Skirchak’s opinion regarding the severity of Billings’ limitations.
D. Representation of Billings’ RFC to Vocational Expert
Finally, Billings argues that the ALJ erred at step five in relying on the vocational
expert’s testimony. After the ALJ assessed Billings’ residual functional capacity and determined
118

20 C.F.R. §§ 404.1545(a)(1) and 416.945(a)(1).

119

ALJ Decision, Doc. 8-1, p. 19.

120

Plaintiff’s Brief In Support of Reversal, Doc. 15, pp. 48–49.

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that she could not perform her past work, the burden shifted to the Commissioner to produce
evidence of jobs in the national economy that Billings could perform.121 To satisfy this burden,
the ALJ obtained the testimony of an impartial vocational expert.

The ALJ provided a

hypothetical to the vocational expert, describing a person with the age, education, work
experience, and residual functional capacity that he attributed to Billings. The vocational expert
determined that jobs exist in the national economy for such an individual. But Billings asserts
that the hypothetical that the ALJ presented to the vocational expert was defective. In arguing
that the ALJ’s hypothetical was flawed, Billings does not indicate any specific circumstances
that the ALJ incorrectly included or excluded. Impliedly, however, Billings indicates that the
hypothetical should have incorporated a residual functional capacity based on Dr. Skirchak’s
opinion. Limitations based on such a hypothetical would “preclude all work in the national
economy.”122
Again, the Court will not belabor the ALJ’s valid appraisal of Dr. Skirchak’s opinion.
Hypothetical questions posed to the vocational expert must reflect with precision a claimant’s
impairments, but only to the extent that they are shown by the evidentiary record.123

As

explained above, the Court finds that the ALJ properly evaluated Billings’ mental condition and
provided adequate support from the record for his evaluation. The hypothetical that the ALJ
presented to the vocational expert accurately represented the ALJ’s findings. Accordingly, the
ALJ did not err while obtaining or relying on the vocational expert’s testimony.
121

See 20 C.F.R. §§ 404.1560(c)(2) and 416.960(c)(2) (“In order to support a finding that you are not
disabled at this fifth step of the sequential evaluation process, we are responsible for providing evidence that
demonstrates that other work exists in significant numbers in the national economy that you can do”).
122

December 2011 Oral Hearing, Doc. 8-1, p. 88.

123

Decker v. Charter, 86 F.3d 953, 955 (10th Cir. 1996).

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E. Attorney’s Fees and Court Costs
Billings requests that this Court award her attorney’s fees and court costs, although
Billings fails to provide any basis for or documentation of the amount she is requesting. Section
206(b) of the Act provides that “[w]henever a court renders a judgment favorable to a
claimant . . . the court may determine and allow as part of its judgment a reasonable [attorney]
fee . . . not in excess of 25 percent of the past due benefits.”124 This provision allows a court to
award attorney fees in conjunction with a remand for further proceedings where a claimant
ultimately recovers past due benefits.125 No provision of the Act explicitly permits costs to be
charged against the Commissioner. But, under certain circumstances, the Equal Access to
Justice Act authorizes courts to “award to a prevailing party other than the United States fees and
other expenses, in addition to [certain] costs.”126 As stated above, this Court denies Billings’
request to reverse and remand the ALJ’s decision. Without a favorable judgment, Billings is not
eligible for payment of attorney’s fees or court costs. As such, Billings’ request for fees and
costs is denied.

124

42 U.S.C. § 406(b).

125

See Wrenn ex rel. Wrenn v. Astrue, 525 F.3d 931, 933 (10th Cir. 2008).

126

28 U.S.C. § 2412(d)(1)(A); see also Blue v. Colvin, 2013 WL 1898552, at *1 (E.D. Okla. May 7, 2013)
(awarding fees and costs under Equal Access to Justice Act to plaintiff who prevailed in district court on review of
ALJ’s denial of social security benefits).

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IT IS THEREFORE ORDERED that the decision of the Commissioner is
AFFIRMED.
IT IS SO ORDERED.
Dated this 31st day of October, 2014.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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