Gartz v. Colvin

Filing 19

MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision. Signed by District Judge John W. Lungstrum on 09/19/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MISTI LEA GARTZ,

)
)
Plaintiff,
)
)
v.
)
)
)
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 15-9938-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) and
Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding no error in the Administrative Law Judge’s
(ALJ) decision, the court ORDERS that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
I.

Background

1

On Jan. 20, 2017, Nancy A. Berryhill became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Ms.
Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant. In
accordance with the last sentence of 42 U.S.C. § 405(g), no further action is necessary.

Plaintiff applied for DIB and SSI benefits, alleging disability beginning October
20, 2012. (R. 12, 138, 145). At the ALJ hearing, Plaintiff alleged a closed period of
disability between October 20, 2012 and November 1, 2013. (R. 31). Plaintiff exhausted
proceedings before the Commissioner, and now seeks judicial review of the final decision
denying benefits. She argues that the ALJ erred in evaluating Plaintiff’s allegations of
symptoms and in weighing the opinion evidence of a treating medical source, a nonexamining medical source and a nurse-practitioner.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). The Act provides that in judicial review “[t]he findings of the
Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.”
42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual findings are
supported by substantial evidence and whether he applied the correct legal standard. Lax
v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d
903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than
a preponderance; it is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala,
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36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record,
nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless,
the determination whether substantial evidence supports the Commissioner’s decision is
not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether she
has a severe impairment(s), and whether the severity of her impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the sequential evaluation process. Id.

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The Commissioner next evaluates steps four and five of the sequential process-determining whether, in light of the RFC assessed, claimant can perform her past relevant
work; and, when also considering the vocational factors of age, education, and work
experience, claimant is able to perform other work in the economy. Wilson, 602 F.3d at
1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff
to prove a disability that prevents performance of past relevant work. Blea v. Barnhart,
466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184
(10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the
Commissioner to show that there are jobs in the economy which are within the RFC
assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
The court finds no error in the ALJ’s decision.
II.

Discussion
In his step two analysis, the ALJ found that “the medical evidence does not

support a disabling condition that would have precluded work for 12 months.” (R. 14).
Thereby he determined that Plaintiff’s condition did not meet the duration requirement of
20 C.F.R. §§ 404.1509, 416.909 (“your impairment . . . must have lasted or must be
expected to last 12 months”); see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii)
(at step two a severe impairment or combination of severe impairments that does not meet
the duration requirement is not disabling); 20 C.F.R. §§ 404.1505, 419.905 (defining
disability as “the inability to do any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
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death or which has lasted or can be expected to last for a continuous period of not less
than 12 months”).
The record demonstrates, and both parties appear to agree that when Plaintiff
broke her leg on October 20, 2012 she became unable to perform any substantial gainful
activity, and that inability continued until, or at least reemerged, in January 2013 when
the hardware in her leg broke and had to be surgically replaced. Even assuming, without
deciding, that Plaintiff’s inability to perform any substantial gainful activity continued
through those two periods of time, if she recovered sufficiently to perform any substantial
gainful activity in the economy within a year, she did not meet the duration requirement,
and could not be found disabled for the closed period from October 20, 2012 through
November 1, 2013. Plaintiff argues that she was unable to perform substantial gainful
activity for the closed period noted above, and the Commissioner argues that she became
able to perform substantial gainful activity during that period.
The court considers each error alleged by Plaintiff and finds no basis for remand.
A.

The ALJ’s Credibility Determination

Plaintiff argues that the ALJ erred as a matter of fact in his credibility
determination when he found that Plaintiff was able to care for her two children during
the closed period and that Dr. Maguire did not indicate that Plaintiff needed to elevate her
legs. (Pl. Br. 11-12). And she argues the ALJ erred as a matter of law when he found
that other than the surgical repairs to her broken leg and the broken hardware, her
treatment was conservative, and that her failure to seek treatment for six months after
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October of 2013 suggested her symptoms were not as disabling as alleged. Id. at 12-13
(citing Soc. Sec. Ruling (SSR) 16-3p2). The Commissioner argues that the ALJ
reasonably determined the credibility of Plaintiff’s allegations of symptoms. She argues
that Plaintiff misunderstands the ALJ’s finding regarding elevating Plaintiff’s legs, and
points to record evidence which in her view supports the ALJ’s credibility determination.
(Comm’r Br. 4-6).
The court’s review of credibility determinations is deferential. They are generally
treated as binding on review. Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir. 1990);
Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983). “Credibility determinations are
peculiarly the province of the finder of fact” and will not be overturned when supported
by substantial evidence. Wilson, 602 F.3d at 1144; accord Hackett, 395 F.3d at 1173.
Therefore, in reviewing an ALJ’s credibility determinations, the court will usually defer
to the ALJ on matters involving witness credibility. Glass v. Shalala, 43 F.3d 1392, 1395
(10th Cir. 1994); but see Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993)
(“deference is not an absolute rule”). “However, ‘[f]indings as to credibility should be
closely and affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.’” Wilson, 602 F.3d at 1144 (quoting Huston v. Bowen, 838 F.2d 1125,
1133 (10th Cir. 1988)); Hackett, 395 F.3d at 1173.

2

SSR 16-3p was effective March 16, 2016. The decision at issue is dated
September 18, 2014. (R. 19). That SSR was not the law applicable in this case.
Therefore, the ALJ could not, and the court will not apply that SSR in this case.
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Because the court’s review must begin with the decision at issue and involves
consideration whether that decision is supported by substantial evidence in the record as a
whole, and because the parties both seem to have missed the significance of the
credibility determination in context in this case, the court finds it useful to quote the
ALJ’s entire rationale in which he found Plaintiff’s allegations are not credible.
Overall, the claimant’s allegations are not credible. She fractured two
bones in her lower right leg but she did not experience an open fracture and
she had no neurologic problems at the time of injury. She was subsequently
treated with two surgeries, which were performed without complication,
and post-surgical records show continued improvement. She did experience
some ongoing pain and swelling but she had only trace edema by mid-2013
and she was exercising at the gym regularly. Exams were largely
unremarkable by mid-2013 as well, and significant swelling was only noted
with prolonged standing or walking. In fact, severe swelling was never
present during clinical visits although the claimant walked into the exams.
She also continued to be the primary care taker for two young children
during this period. Her Function Report is given little weight overall as it
was completed shortly after surgery and, thus, represents her functional
capacity during her worst period. (Ex. 2E [(R. 170-79)]).
The undersigned also notes that her allegations at the hearing were not
substantiated by the record during the requested closed period. By way of
example, Dr. Maguire never noted that the claimant alleged she needed to
elevate her leg 3-4 hours and he never opined that this was necessary. She
reported needing crutches and a walker 4-5 months after her second surgery
but this is not consistent with post-surgical notes. Sleep problems also were
not reported or treated. Overall, this suggests exaggeration.
Additionally, aside from surgeries, which were performed early during the
requested closed period, the claimant’s care was conservative, consisting of
medication management and conservative treatment measures (e.g., shoe
inserts & compression socks) to alleviate swelling and foot discomfort.

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(R. 17). The evidence upon which the ALJ relied in reaching his credibility determination was
summarized and cited on the previous page of his decision, and the court finds it is a fair
summarization of the record evidence. (R. 16).

Plaintiff takes a different view, but much of her view is not supported by the
record evidence, as will be discussed below. To the extent that portions of her view are
supported by the record evidence, the court notes that the mere fact that there is evidence
which might support a finding contrary to that of the ALJ will not establish error in the
ALJ’s determination. “The possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence. We may not displace the agency’s choice between two fairly
conflicting views, even though the court would justifiably have made a different choice
had the matter been before it de novo.” Lax, 489 F.3d at 1084 (citations, quotations, and
bracket omitted); see also, Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966).
With regard to elevating her leg, Plaintiff ignores the ALJ’s finding that Dr.
Maguire “never noted” that Plaintiff asserted a need to elevate her leg 3-4 hours and
never opined that it was necessary to do so, and argues that in March 2013 Dr. Maguire
noted Plaintiff’s report that she “continued to get swelling toward the end of the day
which would go away after she propped her foot up,” and that on December 22, 2012
Plaintiff was instructed to elevate her leg and to avoid standing in one place for a long
time. (Pl. Br. 11-12). Plaintiff is correct in her citation to the record, but her argument
supports rather than belies the ALJ’s finding. The December, 2012 treatment note cited
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by Plaintiff relates to an emergency department visit by Plaintiff just two months after her
leg was first broken and surgically repaired, and just three days after she had finished a
ten-day course of antibiotics. (R. 240). And, the treatment notes specifically state,
“Exam and lab work is not indicative of on-going infection. Findings more suggestive of
not well fit walking boot. Swelling also likely a result of increased walking activity over
past 3 weeks.” (R. 241) (emphases added). Moreover, the hardware used to repair
Plaintiff’s foot broke in January 2013 requiring surgical repair once again. (R. 366-67).
The ALJ specifically cited Dr. Maguire’s treatment notes which showed
improvement. (R. 16). In March 2013, Dr. Maguire stated, “There is no swelling.” (R.
361). In April, she was out of the boot, and in May, Dr. Maguire reported she “seems to
be getting better and better,” she “has been going to the gym and working out,” she “does
get swelling toward the end of the day,” and he noted that on his physical examination
“there is not really much swelling or edema today.” (R. 359-60). In August, Dr. Maguire
noted Plaintiff’s report that she “does not seem to be having quite as much swelling.” (R.
358). In September he noted Plaintiff’s report of “some pain and swelling at the fracture
site.” (R. 357). In his final treatment note on October 10, 2013, Dr. Maguire noted
Plaintiff’s report that “[i]f she is up on her feet for any period of time, then it swells and
becomes very uncomfortable. I don’t think she is going to be able to do any sort of work
that requires prolonged standing and walking. I think she might be able to get back to
something that’s more sedentary.” (R. 355).

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As the ALJ found, Dr. Maguire’s notes do not reveal that Plaintiff reported
needing to elevate her foot 3-4 hours or that Dr. Maguire provided such an opinion.
Moreover, instructions to elevate her leg in December 2012 shortly after Plaintiff’s
surgery, after an acute incident requiring an emergency department visit and before
another surgery does not suggest that Plaintiff was required to elevate her leg three to four
hours every day, especially several months later after recovery from the surgical repair.
While Plaintiff suggests that two surgeries in the course of a year is not
conservative treatment, she again misses the point of the ALJ’s finding that other than the
surgical repairs to her broken leg, the remaining treatment was conservative, particularly
after March 2013. Giving the ALJ’s credibility analysis due deference, Plaintiff has
shown no error.
B.

Opinion Evidence

The ALJ accorded significant weight to Dr. Maguire’s opinion that Plaintiff is
limited to sedentary work and cannot engage in prolonged standing and walking. (R. 17).
He accorded great weight to Dr. Parsons’s opinion that Plaintiff would be capable of
sedentary work within a year from the original break of her leg. (R. 17); see also (R. 75,
84). And, he accorded no weight to the opinion letter submitted by Ms. Frick, APRN
(Advanced Practice Registered Nurse). (R. 17): see also (R. 353).
Plaintiff alleges error in the evaluation of each of these opinions. She argues that
given Dr. Maguire’s prohibition of prolonged standing and walking “Plaintiff cannot
perform the 2 hours of walking and/or standing required by the ALJ’s RFC. (Pl. Br. 13).
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She argues that Dr. Parsons’s opinion stated limitations expected 12 months after
Plaintiff’s onset and is consistent with a closed period of disability. She also argues that
as the opinion of a state agency medical consultant Dr. Parsons’s opinion is of suspect
reliability, and he did not have all of the “pertinent evidence” including Dr. Maguire’s
and Ms. Frick’s opinions when he formulated his opinion. Id. at 14. She argues that
discounting Ms. Frick’s opinion because she is not an acceptable medical source is not a
proper legal basis and contrary to the ALJ’s findings, Ms. Frick’s opinion is consistent
with Dr. Maguire’s opinion. Id. at 14-15.
“Medical opinions may not be ignored and, unless a treating source opinion is
given controlling weight, all medical opinions will be evaluated by the Commissioner in
accordance with factors contained in the regulations. 20 C.F.R. §§ 404.1527(c),
416.927(c); SSR 96-5p, West’s Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2017).
A physician or psychologist who has treated a patient frequently over an extended period
of time (a treating source) is expected to have greater insight into the patient’s medical
condition, and his opinion is generally entitled to “particular weight.” Doyal v. Barnhart,
331 F.3d 758, 762 (10th Cir. 2003). But, “the opinion of an examining physician who
only saw the claimant once is not entitled to the sort of deferential treatment accorded to a
treating physician’s opinion.” Id. at 763 (citing Reid v. Chater, 71 F.3d 372, 374 (10th
Cir. 1995)). However, opinions of non-treating sources are generally given more weight
than the opinions of non-examining sources who have merely reviewed the medical
record. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004); Talbot v. Heckler,
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814 F.2d 1456, 1463 (10th Cir. 1987) (citing Broadbent v. Harris, 698 F.2d 407, 412
(10th Cir. 1983), Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982), and Wier ex
rel. Wier v. Heckler, 734 F.2d 955, 963 (3d Cir. 1984)).
If a treating source opinion is not given controlling weight, it is still entitled to
deference and must be weighed using the regulatory factors in 20 C.F.R. § 404.1527 and
416.927. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003) (citing SSR 962p). Those factors are: (1) length of treatment relationship and frequency of
examination; (2) the nature and extent of the treatment relationship, including the
treatment provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency between
the opinion and the record as a whole; (5) whether or not the physician is a specialist in
the area upon which an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion. Id. at 1301; 20 C.F.R.
§§ 404.1527(c)(2-6), 416.927(c)(2-6); see also Drapeau v. Massanari, 255 F.3d 1211,
1213 (10th Cir. 2001) (citing Goatcher v. Dep’t of Health & Human Servs., 52 F.3d 288,
290 (10th Cir. 1995)).
Recognizing the reality that an increasing number of claimants have their medical
care provided by health care providers who are not “acceptable medical sources”--nurse
practitioners, physician’s assistants, social workers, and therapists, the Commissioner
promulgated SSR 06-3p. West’s Soc. Sec. Reporting Serv., Rulings 327-34 (Supp.
2017). In that ruling, the Commissioner noted:
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With the growth of managed health care in recent years and the emphasis
on containing medical costs, medical sources who are not “acceptable
medical sources,” such as nurse practitioners, physician assistants, and
licensed clinical social workers, have increasingly assumed a greater
percentage of the treatment and evaluation functions previously handled
primarily by physicians and psychologists. Opinions from these medical
sources, who are not technically deemed “acceptable medical sources”
under our rules, are important and should be evaluated on key issues such as
impairment severity and functional effects, along with the other relevant
evidence in the file.
Id. Rulings, 330-31.
SSR 06-3p explains that such opinions will also be evaluated using the regulatory
factors for evaluating medical opinions; id. at 331-32 (citing 20 C.F.R. §§ 404.1527,
416.927); and explains that the ALJ “generally should explain the weight given to
opinions from these ‘other sources,’ or otherwise ensure that the discussion of the
evidence in the . . . decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome of the
case.” Id. at 333; see also Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007)
(remanding for consideration of a nurse-practitioner’s opinions in light of SSR 06-3p).
The ALJ applied this legal standard, and the court finds no error in his evaluation
of the opinion evidence. He recognized that Dr. Maguire is a treating source, and
accorded his opinion significant weight. Plaintiff’s argument that the ALJ erred in
evaluating Dr. Maguire’s opinion misunderstands the definition of sedentary work in the
Social Security disability context and is therefore without merit. In the Social Security
regulations, work is still defined as sedentary “if walking and standing are required

13

occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).
The regulation explain that this is so because even though “a sedentary job is defined as
one which involves sitting, a certain amount of walking and standing is often necessary.”
Id. The Social Security Administration (SSA) has explained that “occasionally” in the
context of sedentary work means “occurring from very little up to one-third of the time,”
and that “at the sedentary level of exertion, periods of standing or walking should
generally total no more than about 2 hours of an 8-hour workday, and sitting should
generally total approximately 6 hours of an 8-hour workday.” [1983-1991] West’s Soc.
Sec. Rep. Serv., Rulings 29 (1992) (emphasis added). This is the standard the ALJ used,
and he specifically found that Plaintiff could stand or walk 2 hours throughout an 8-hour
workday and sit 6 hours throughout an 8-hour workday. (R. 15). Plaintiff cites no
authority for the proposition that standing or walking for 2 hours total throughout an 8hour workday would involve prolonged sitting or standing, or that any of the
representative jobs relied upon by the ALJ require prolonged sitting or standing.
Plaintiff’s assertion that the “ALJ did not allow for any breaking up of the 2 hours of
walking and/or standing” (Pl. Br. 13) ignores that the very definition of sedentary work
requires the “breaking up” of the 2 hours of walking and standing over the course of an 8hour workday. The court will not accept the unsupported assumption that any sedentary
job could require standing and/or walking for a prolonged period (even 30 minutes) at one
time, and it certainly will not assume that the jobs relied upon by the ALJ conflict with

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his agreement with Dr. Maguire’s opinion that Plaintiff cannot stand or walk for a
prolonged period. The ALJ did not err in weighing Dr. Maguire’s opinion.
Nor did the ALJ err in weighing Ms. Frick’s opinion. The ALJ specifically stated
that he had considered the “opinion evidence in accordance with the requirements of . . .
SSR[] . . . 06-3p.” (R. 15). The court’s general practice “is to take a lower tribunal at its
word when it declares that it has considered a matter,” and Plaintiff does not provide a
basis for departing from the general practice. Hackett, 395 F.3d at 1172-73. The ALJ
considered Ms. Frick’s opinion in accordance with the regulatory factors and determined
that it was unworthy of weight because Ms. Frick is not an acceptable medical source and
because her opinion is not consistent with the record including Dr. Maguire’s treatment
notes and Ms. Frick’s own report of only minimal swelling when she examined Plaintiff.
(R. 17). The record evidence supports the ALJ’s finding, and the court may not reweigh
the evidence and substitute its judgment for that of the Commissioner. Bowman, 511
F.3d at 1272; Hackett, 395 F.3d at 1172. While it is true the opinion of an “other”
medical source such as Ms. Frick may not be discounted merely because she is not an
acceptable medical source, the ALJ did not do that here. That was but one basis for his
decision, and he also noted, and supported, that her opinion was inconsistent with the
treatment notes of an acceptable medical source who was also a treating source, and was
inconsistent with her own examination of Plaintiff. That is a sufficient basis.
Finally, the court finds no error in the ALJ’s evaluation of Dr. Parsons’s opinion.
First, contrary to Plaintiff’s assertion, Dr. Parsons’s opinion is not consistent with a
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closed period of disability because Dr. Parsons specifically opined, “by end of duration
(10/2013) she will be capable of Sedentary [sic] levels of work.” (R. 75, 84). Thus, just
as did the ALJ, Dr. Parsons concluded that the medical evidence does not support that
Plaintiff’s medical condition would preclude work for twelve months–it was a denial
because Plaintiff’s condition does not meet the duration requirement. Although Dr.
Parsons’s opinion was formed without the benefit of Ms. Frick’s opinion, or Dr.
Maguire’s treatment notes after April 2013, he did have the benefit of Dr. Maguire’s
earlier treatment notes, and specifically noted that x-rays on March 13, 2013 showed bone
formation, and on April 25, 2013, Dr. Maguire reported Plaintiff was doing much better,
that she was “out of the boot,” and “walks today without much of a limp.” (R. 75, 84).
Moreover, it is the ALJ’s responsibility to evaluate the opinion evidence and assess RFC,
and he reviewed all of the evidence--which indicated that Plaintiff’s recovery proceeded
in accordance with Dr. Parsons’s expectations--and he reached the same conclusion.
Plaintiff has shown no error in the decision at issue.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
Dated this 19th day of September 2017, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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