Weaver v. Social Security Administration

Filing 15

MEMORANDUM AND ORDER affirming the Commissioner's decision. Signed by Chief Judge J. Thomas Marten on 2/6/15. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RALPH DOUGLAS WEAVER,
Plaintiff,
v.

Case No. 14-2235-JTM

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Ralph Douglas Weaver seeks review of a final decision by defendant,
the Commissioner of Social Security (“Commissioner”), denying his application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the
Act”). Plaintiff alleges that the Commissioner erred in determining that he can perform
light work. Upon review, the court finds that the Commissioner’s decision was
supported by substantial evidence contained in the record and is therefore affirmed.
I. Background
Plaintiff’s relevant health issues date back to at least March 2011, when he visited
Dr. James Warner complaining of neck pain. Dr. Warner noted recent cervical spine xrays indicating mild abnormalities and prescribed pain medication. In a follow-up
appointment with Dr. Kimberly Moore, plaintiff was diagnosed with osteoarthritis of
the neck, aggravated by work. Cervical spine examination revealed full range of motion
with tenderness. On May 19, 2011, Dr. Warner examined plaintiff for right knee pain.
Dr. Warner noted normal muscle strength, full range of motion, and a normal gait. X1

rays revealed right knee joint effusion and Dr. Warner adjusted plaintiff’s medication
for his neck and knee pain. In June 2011, Dr. Warner again assessed plaintiff as having
normal strength and reflexes, but with limited cervical spine range of motion.
On October 24, 2011, plaintiff was treated by Dirk Dunfee, a nonphysician
provider associated with Dr. Sharon Lee. Dunfee noted limited cervical spine range of
motion, right knee tenderness, limited right knee range of motion, an antalgic gait, and
an absence of right knee effusion. Dunfee examined plaintiff again on November 8,
2011, noting normal gait, limited right knee range of motion, absence of right knee
swelling, and limited cervical spine ranges of motion. Dunfee wrote plaintiff pain
medication prescriptions on both occasions.
On November 18, 2011, Dr. Joseph B. Noland, an orthopedist, examined plaintiff
for neck, right upper extremity, and knee pain. Dr. Noland noted symmetrical upper
body extremity strength, stable right knee stress testing, and an antalgic gait. Cervical
spine x-rays revealed moderate to severe degenerative changes. Dr. Noland later
ordered a cervical spine MRI, which proved unremarkable.
On November 29, 2011, Scott Koeneman, Psy. D., examined plaintiff. Koneman
noted normal gait and that plaintiff reported shopping and running errands.
Dr. Kyle Timmerman, a state agency physician, performed a residual functional
capacity (“RFC”) assessment of plaintiff on November 30, 2011. Dr. Timmerman
determined that plaintiff could lift or carry 20 pounds occasionally and 10 pounds
frequently; stand and/or walk and sit about six hours in an eight-hour day; push/pull
within his lifting capacity; climb ramps or stairs, balance, and stoop frequently; kneel,
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crouch, and crawl occasionally; and perform work allowing avoidance of concentrated
exposure to cold, heat, vibration, and hazards such as machinery and heights, more
than limited overhead reaching, or any ladder/rope/scaffold climbing; and that he had
no visual, communicative, or other manipulative or environmental limitations.
Dr. Noland again examined plaintiff on December 1, 2011. Dr. Noland noted
bilateral knee osteoarthritis, degenerative changes in the tricompartment of both knees,
and an unremarkable cervical spine MRI. Dr. Noland indicated that plaintiff would
undergo a course of Hyalgan knee injections. Dunfee treated plaintiff on December 6,
2011, and January 9, 2012, prescribing pain medication on both occasions.
Dr. Noland administered a series of five Hyalgan injections into plaintiff’s knees
from December 8, 2011, to January 5, 2011.
Dr. Talal Khan treated plaintiff from February 2012, to September 2012. During
that period, Dr. Khan treated plaintiff with four cervical spine injections. Right knee xrays from February 20, 2012, revealed “moderate or moderate to marked” osteoarthritis
in the medial joint space of plaintiff’s right knee, with moderate joint effusion.
On April 25, 2012, Dr. Noland examined plaintiff for follow-up of a right ankle
fracture. Dr. Noland noted that plaintiff was out of his cam walker and was
asymptomatic. On May 10, 2012, Dr. Noland treated plaintiff for his right knee pain.
The knee was stable to stress testing, with x-rays showing fairly advanced medial joint
space narrowing of both knees with tricompartmental degenerative changes. Plaintiff
opted to persist with careful observation and pain medication treatment, which Dr.
Noland noted was reasonable.
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Dr. Khan performed a final cervical spine injection on September 17, 2012.
Dr. Stephen W. Munns, another orthopedist, examined plaintiff on December 7,
2012, for bilateral knee pain. X-rays revealed bilateral knee osteoarthritis. Physical
examination revealed left knee range of motion from 0 to 110 degrees, and right knee
range of motion from 0 to 105 degrees with pain in deep flexion. Dr. Munns noted that
plaintiff’s knees were both stable to varus/valgus stress, with 5/5 strength in the left
lower extremities and 4/5 strength in the right lower extremities. Dr. Munns recorded
that “[i]t was discussed with the patient that he may seek disability paperwork from his
primary care doctor or Dr. Noland but regarding his knee pain he has had successful
relief of his symptoms with Hyalgan injection in the past and has not tried
corticosteroid injections.” (Dkt. 9-1, at 485). Dr. Munns wrote Dr. Noland on December
7, 2012, stating that the Hyalgan injections had worked but that plaintiff’s symptoms
had started to recur, noting that plaintiff’s knees “are certainly not severe enough yet to
warrant arthroplasty.”
On December 18, 2012, Dr. Noland completed an RFC questionnaire regarding
plaintiff.
At his hearing on January 14, 2013, plaintiff testified before an administrative law
judge (“ALJ”) that he had neck and bilateral knee disorders, and that treatment with
oral medication, injections, and ice were somewhat effective. Plaintiff also testified that
he drove and went to the store, visited others about once a month, could lift a case of
sodas from a desk and place it on the floor, and could pick his keys up off the floor by
sitting down.
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Vocational expert Denise W. Waddell testified that jobs existed in the regional
and national economies that could be performed by a person of plaintiff’s age,
education, and a residual functional capacity to lift 20 pounds occasionally and 10
pounds frequently.
In a decision dated January 31, 2013, the ALJ concluded that plaintiff had severe
impairments of osteoarthritis in both knees and degenerative disk disease in the cervical
spine. He found that plaintiff’s subjective complaints were not credible to the extent
alleged and that plaintiff had the RFC to perform light work. The ALJ only afforded Dr.
Noland’s opinion some weight because it was not well-supported. The ALJ determined
that plaintiff could not perform his past work, but that there were a significant number
of jobs in the national economy plaintiff could perform, given his limitations. He
concluded that plaintiff was not disabled.
Plaintiff timely filed an appeal with this court pursuant to 42 U.S.C. § 405(g).
II. Legal Standard
This court reviews the ALJ’s decision under 42 U.S.C. § 405(g) to “determine
whether the factual findings are supported by substantial evidence and whether the
correct legal standards were applied.” Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir.
2003). Substantial evidence is that which “a reasonable mind might accept as adequate
to support a conclusion.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (citation
omitted). “Substantial evidence requires more than a scintilla but less than a
preponderance.” Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (citation
omitted). The court’s role is not to “reweigh the evidence or substitute its judgment for
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the Commissioner’s.” Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008). The
possibility that two inconsistent conclusions may be drawn from the evidence does not
preclude a finding that the Commissioner’s decision was based on substantial evidence.
Zolantski, 372 F.3d at 1200.
An individual is under a disability only if he or 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.” Brennan v. Astrue, 501 F. Supp. 2d 1303, 1306-07 (D. Kan. 2007) (citing
42 U.S.C. § 423(d)). This impairment “must be severe enough that []he is unable to
perform h[is] past relevant work, and further cannot engage in other substantial gainful
work existing in the national economy, considering [his] age, education, and work
experience.” Barkley v. Astrue, 2010 U.S. Dist. LEXIS 76220, at *3 (D. Kan. July 28, 2010)
(citing Barnhart v. Walton, 535 U.S. 212, 217-22 (2002)).
Pursuant to the Act, the Social Security Administration has prescribed a five-step
sequential analysis to determine whether disability existed between the time of claimed
onset and the date the claimant was last insured under the Act. Wilson, 602 F.3d at 1139;
20 C.F.R. § 404.1520(a)(4). If the trier of fact finds at any point during the five steps that
the claimant is disabled or not disabled, the analysis stops. Reyes v. Bowen, 845 F.2d 242,
243 (10th Cir. 1988). The first three steps 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) whether the severity of those impairments meets or equals a listed
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impairment. Wilson, 602 F.3d at 1139 (citing Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007)). If the impairments do not meet or equal a designated listing in step three, the
Commissioner then assesses the claimant’s RFC based on all medical and other
evidence in the record. 20 C.F.R. § 404.1520(e). RFC is the claimant’s ability “to do
physical and mental work activities on a sustained basis despite limitations from her
impairments.” Barkley, 2010 U.S. Dist. LEXIS 76220, at *5; see also 20 C.F.R. §§
404.1520(e), 404.1545. “RFC is not the least an individual can do despite his or her
limitations or restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996).
The Commissioner then proceeds to step four, where the RFC assessment is used to
determine whether the claimant can perform past relevant work. Lax, 489 F.3d at 1084;
20 C.F.R. § 404.1520(e). The claimant bears the burden in steps one through four of
proving disability that prevents performance of his past relevant work. 42 U.S.C. §
423(d)(5)(A); Lax, 489 F.3d at 1084.
If a claimant meets the burdens of steps one through four, “the burden of proof
shifts to the Commissioner at step five to show that the claimant retains sufficient RFC
to perform work in the national economy, given his age, education, and work
experience.” Lax, 489 F.3d at 1084 (brackets omitted).
III. Analysis
Plaintiff argues that the ALJ’s RFC determination is not supported by substantial
evidence. Specifically, he argues that (1) Dr. Noland’s opinion should have been given
controlling weight, (2) Dr. Timmerman’s opinion was given too much weight, and (3)
the record as a whole does not support the RFC determination.
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A. Weighing a Treating Physician’s Opinion
The ALJ determines RFC by evaluating a claimant’s impairments that are
“demonstrable by medically acceptable clinical and laboratory diagnostic techniques,”
then weighing evidence to determine the nature and severity of those impairments. 20
C.F.R. §§ 404.1527(a), 416.927(a). Such evidence may include medical opinions, other
opinions, and a claimant’s subjective complaints. Id.; see also Poppa v. Astrue, 569 F.3d
1167, 1170-71 (10th Cir. 2009). Statements from physicians are considered “medical
opinions” for the RFC determination. 20 C.F.R. §§ 404.1527(a), 416.927(a).
Medical opinions are weighed by evaluating all relevant factors including: (1) the
length, nature, and extent of any examining or treatment relationship; (2) whether the
opinion source presents supporting evidence, such as medical signs and laboratory
results; (3) how well the source explains the opinion; (4) whether the opinion is
consistent with the record; (5) whether the source has specialty related to the claimant’s
impairments; and (6) all other relevant factors of which the ALJ is aware that may bear
on what weight should be given to a medical opinion. 20 C.F.R. §§ 404.1527, 416.927; see
Knight ex rel P.K. Colvin, 756 F.3d 1171, 1176-77 (10th Cir. 2014). “[T]he ALJ must give
good reasons in the notice of determination or decision for the weight he ultimately
assigns the opinion.” Knight, 756 F.3d at 1177 (quoting Watkins v. Barnhart, 350 F.3d
1297, 1300 (10th Cir. 2003)).
A treating physician’s statement is entitled to controlling weight if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques.”
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (quoting SSR 96-2p, 1996 WL
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374188, at *2). If the treating physician’s statement is not well-supported or is otherwise
inconsistent with substantial evidence on record, then it is not entitled to controlling
weight and is weighed as any other medical opinion. Id.
Here, the ALJ gave Dr. Noland’s opinions only “some weight” because “they are
not supported by his own treatment notes or any of the other medical evidence in the
record,” and because Dr. Noland opined pain symptoms exceeding plaintiff’s
testimony. (Dkt. 9-1, at 28).
Dr. Noland opined that plaintiff’s osteoarthritis limits him to: walking one block,
sitting for a maximum of 30-45 minutes continuously, standing for a maximum of 10-15
minutes continuously, and standing or walking a maximum of 2 hours per 8-hour work
day. (Dkt. 9-1, at 512-13). He further opined that plaintiff: must walk for 5-10 minutes
every 15-30 minutes; can lift less than 10 pounds frequently, 10 pounds occasionally, 20
pounds rarely, and can never lift 50 pounds; can only occasionally look up or hold his
head in a static position; can occasionally twist, can rarely stoop, climb ladders or stairs,
and can never crouch or squat; and has no limitations with reaching, handling, or
fingering. (Dkt. 9-1, at 513-14). Finally, Dr. Noland opined that plaintiff’s claims of pain
were credible, that the symptoms and limitations have persisted since June 2011, and
that his pain would further limit the ability to perform the activities described above.
(Dkt. 9-1, at 514-15).
Dr. Noland’s notes describe: “fairly advanced joint space narrowing” shown by
x-ray (Dkt. 9-1, at 466); shoulder and arm pain with “some evidence of rotator cuff
impingement” and “evidence of cervical radiculopathy” (Dkt. 9-1, at 480), with
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appropriate physical exam procedures to support the findings; and degenerative disk
disease. (Dkt. 9-1, at 480). A radiology report ordered by Dr. Noland notes “moderate to
severe degenerative changes of the medial right knee and moderate medial joint space
narrowing on the left.” (Dkt. 9-1, at 488). The clinical and laboratory techniques
associated with Dr. Noland’s treatment support his findings of osteoarthritis and
cervical radiculopathy.
However, Dr. Noland’s opinion of the degree of plaintiff’s limitations is
inconsistent with the objective evidence in the record. For example: an MRI revealed an
“unremarkable” cervical spine (Dkt. 9-1, at 478); Dr. Munns concluded that plaintiff’s
knees did not warrant arthroplasty (Dkt. 9-1, at 482); plaintiff opted to persist with pain
medication treatment rather than surgical evaluation (Dkt. 9-1, at 466); and plaintiff
responded well to knee injections (Dkt. 9-1, at 482). Dr. Noland suggests very limited
mobility because of plaintiff’s knees, but Dr. Munns reported that Hyalgan injections
were effective in alleviating knee symptoms for nearly six months. (Dkt. 9-1, at 52-53,
482).
Dr. Noland’s opinion is also inconsistent with plaintiff’s testimony. Plaintiff
stated that his knee pain is only a five or six on a scale of one to ten, which does not
suggest that the pain would be severe enough to further limit plaintiff’s ability to less
than light work. (Dkt. 9-1, at 45, 515). Plaintiff stated on August 31, 2011, that he could
lift 25 pounds, whereas Dr. Noland opined that plaintiff could only rarely lift up to 20
pounds. (Dkt. 9-1, at 189). Further, plaintiff stated that he cared for his own personal

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needs, performed household chores, visited others occasionally, prepared meals, and
went to the store. (Dkt. 9-1, at 185-88).
Dr. Noland’s opinion is not supported by his own records. Dr. Noland’s notes do
not indicate the degree of plaintiff’s pain, nor do they indicate limitations on lifting,
sitting, walking, or standing. He also found plaintiff’s choice to continue conservative
treatment “reasonable.” (Dkt. 9-1, at 466). Moreover, Dr. Noland opined that plaintiff
has experienced the symptoms and limitations described above since June 2011, but he
did not begin treating plaintiff until November 18, 2011. (Dkt. 9-1, at 480). Dr. Noland
therefore has no records to support the opined onset date, and such opinion is
speculation.
Dr. Noland’s opinion that plaintiff cannot perform light work is not well
supported by the record and is therefore not entitled to controlling weight. The ALJ’s
decision to grant Dr. Noland’s opinion some weight, but not controlling weight is
supported by substantial evidence in the record.
B. Dr. Timmerman’s Opinion
The ALJ granted Dr. Timmerman’s evaluation greater weight than Dr. Noland’s
because it was “supported by the medical evidence in the record and [plaintiff’s] own
testimony.” (Dkt. 9-1, at 28). Dr. Timmerman’s RFC opinion incorporates existing
medical imaging of plaintiff’s knees and spine, as well as clinical evaluations of
plaintiff’s range of motion and daily activities. (Dkt. 9-1, at 87). The opinion is wellexplained in nearly one half of a page of narrative. (Dkt. 9-1, at 87). The opinion is
consistent with the medical imaging in the record, as well as medical opinions that
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plaintiff’s knees are not degraded to a degree warranting arthroplasty. It is also
consistent with plaintiff’s testimony that he goes to the store to buy groceries and
climbs stairs. Accordingly, the ALJ’s decision to grant it greater than “some” weight is
supported by substantial evidence in the record.
C. The Record as a Whole Supports the RFC Determination
Plaintiff argues that the record does not support an RFC of “light work” because
he “is clearly not able” to lift and carry 10 pounds frequently and 20 pounds
occasionally, stand or walk a total of 6 hours per 8-hour workday, or frequently stoop.
(Dkt. 12, at 16). Plaintiff cites his testimony and Dr. Noland’s opinion in opposition to
the ALJ’s finding. However, nowhere does plaintiff’s testimony claim that he cannot do
the “light work” requirements. As discussed above, Dr. Noland’s opinion was
considered and given some weight. Plaintiff further references the medical imaging in
the record that shows progressing osteoarthritis in his knees. However, the medical
imaging supports only a finding of the “severe impairment” of osteoarthritis in both
knees noted by the ALJ. (Dkt. 9-1, at 14). The imaging does not indicate what level of
pain or pain limitations plaintiff experiences.
The ALJ extensively detailed the substantial evidence in the record that supports
his RFC determination. That twelve-page narrative included: plaintiff’s testimony about
his daily activities; detailed medical records from July 21, 2009, to December 7, 2012,
indicating that plaintiff had good muscle strength, responded well to knee injections,
and that he did not need surgery; and the State agency medical expert review of the
record to help determine RFC. The above medical records include those of treating
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physicians, such as Dr. Munns. (Dkt. 9-1, at 16-28). It is not the court’s job to re-weigh
the evidence. The ALJ’s RFC determination is supported by substantial evidence.
IT IS ACCORDINGLY ORDERED this 6th day of February, 2015, that the
Commissioner’s decision is AFFIRMED.

s\ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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