Gilbert v. Social Security Administration, Commissioner of

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 05/28/2019. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PATRICIA L. G.,1

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

CIVIL ACTION
No. 18-2148-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 pursuant to 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). 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

The court makes all its “Memorandum and Order[s]” available online. Therefore, in the
interest of protecting the privacy interests of Social Security disability claimants, it has
determined to caption such opinions using only the initial of the Plaintiff’s last name.
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Plaintiff argues that the ALJ erred at steps two, three, and four of the
Commissioner’s sequential evaluation process by failing to cite evidence to support his
finding that certain of Plaintiff’s impairments are not “severe” within the meaning of the
Act, by finding that Plaintiff’s condition neither meets not equals the severity of a Listed
Impairment, in weighing the medical opinions, by inadequately evaluating the three
phases of the step four evaluation of Plaintiff’s past relevant work as required by the
court in Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996), by inadequately evaluating
Plaintiff’s allegations of symptoms resulting from her impairments, by relying on
portions of the evidence favorable to his findings while ignoring or mischaracterizing
other evidence, by inadequately evaluating the medical records from Saint Vincent
Clinic, by inadequately considering the testimony of her friend and co-worker, Louise
Bailes, by failing “to make any ‘findings regarding the actual functional demands of
[P]laintiff’s past relevant work’” (Pl. Brief 33) (quoting Clardy v. Barnhart, No. 03-2347JWL, 2004 WL 737486, at *6 (D. Kan. Apr. 5, 2004)), and by failing to include all of
Plaintiff’s limitations in the hypothetical question he posed to the vocational expert (VE).
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of 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 in the record 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
2

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,
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
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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), 416.920(e). This assessment is used at both step four and step five of the
sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the process--determining
at step four whether, considering the RFC assessed, claimant can perform her past
relevant work; and at step five whether, when also considering the vocational factors of
age, education, and work experience, she 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).
After considering Plaintiff’s allegations of error, the court finds no error in the
decision at issue.
II.

Preliminary Discussion
This case was decided at step four of the sequential evaluation process (R. 564),

and Plaintiff alleges errors at step two, step three, and step four of the process, without
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particularly organizing her Brief to provide all her arguments regarding a single issue
(such as medical opinions or Plaintiff’s allegations of limitations resulting from her
symptoms) in one place. The court has considered each of her arguments and will
generally address them in the order they appear when applying the Commissioner’s
sequential evaluation process.
The court notes that because this case was decided at step four of the sequential
evaluation process the burden was on Plaintiff at every step of the process to demonstrate
the requisite facts to show that she is disabled within the meaning of the Act and the
regulations and that she is unable to perform her past relevant work as a dispatcher either
as she performed it or as it is generally performed within the economy. The organization
of Plaintiff’s Brief presents the narrative that at step two she has more impairments that
are “severe” within the meaning of the Act and the regulations than the ALJ found; that at
step three her condition meets or equals the severity criteria of Listing 1.04A for
disorders of the spine with evidence of nerve root compression; that at step four she is
unable to perform her past relevant work as a dispatcher; and that “substantial and
uncontradicted evidence indicates Plaintiff is disabled and entitled to benefits” (Pl. Br.
34) requiring remand for an immediate award of benefits. Throughout her Brief, Plaintiff
points to record evidence tending to support her view and a finding of disability.
Moreover, although Plaintiff argues that the ALJ did not properly evaluate her allegations
of disabling symptoms and did not properly evaluate the opinion evidence, she spread
portions of these arguments throughout her briefing and did not organize each argument
into a cohesive unit.
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The approach Plaintiff has taken in her Brief ignores both the legal standard
applicable and the court’s responsibility in judicial review of a decision of the
Commissioner. The court must determine whether the Commissioner applied the correct
legal standard in evaluating Plaintiff’s application for benefits and whether substantial
evidence in the record as a whole (“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion”) supports the Commissioner’s final decision.
And, it is Plaintiff’s burden to prove that the Commissioner erred. The beginning point
in the court’s review is the final decision of the Commissioner (the ALJ’s decision in this
case), and Plaintiff must demonstrate that the ALJ applied an erroneous legal standard
and/or that the record evidence is insufficient to support the ALJ’s findings--that the
record evidence supporting the ALJ’s findings is not “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” The evidence in a
Social Security record is almost always equivocal. Therefore, Plaintiff must demonstrate
the error in the ALJ’s rationale or finding; the mere fact that there is evidence which
might support a contrary finding 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. [The court] may not displace the agency’s choice between two fairly
conflicting views, even though [it] 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).
III.

Step Two
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Plaintiff acknowledges the ALJ found she has “severe” impairments of
degenerative disc disease (DDD), degenerative joint disease (DJD), and a remote
laminectomy, but argues that “the ALJ found Plaintiff’s Chronic Obstructive Pulmonary
Disease and Insomnia were not severe because they were controlled by medication, but
cited no evidence to support his determination.” (Pl. Br. 4). Contrary to Plaintiff’s
assertion, the ALJ cited as an example for his determination Exhibit 19F at p. 155 (R.
1037) which reveals that Plaintiff’s COPD was assessed as stable and the plan was to
“continue medications as prescribed,” thereby suggesting that COPD is controlled by
medication—and Plaintiff has not shown otherwise. The question for judicial review is
whether the ALJ’s findings are supported by record evidence, not whether he cited to all
the record evidence supporting each finding. The burden of proof at step two is on
Plaintiff, and she does not direct the court to evidence demonstrating her insomnia and
COPD are “severe” within the meaning of the Act and regulations. In any case, as the
Commissioner argues, where the ALJ has found one or more severe impairments at step
two, the failure to find additional impairments are severe is not cause for reversal so long
as the ALJ, in determining the claimant’s RFC, considers the effects “of all of the
claimant’s medically determinable impairments, both those he deems ‘severe’ and those
‘not severe.’” Hill v. Astrue, 289 F. App’x. 289, 292, (10th Cir. 2008) (emphasis in
original). Plaintiff has not made the requisite showing.
IV.

Step Three
Plaintiff argues that the ALJ erred in finding Plaintiff’s condition does not meet or

medically equal the severity of Listing 1.04A. She argues this constitutes failure to apply
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the correct legal standard because the ALJ failed to provide the “‘specific weighing of the
evidence’ or ‘minimal level of articulation’” required by the Tenth Circuit. (Pl. Br. 6)
(quoting Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)). Plaintiff explains
how, in her view, the evidence, including medical opinions, demonstrates that the Listing
is met—or at least medically equaled—and she argues that “the ALJ failed to identify the
objective evidence he relied on or rejected in determining Plaintiff’s spine impairments
did not meet or equal the requirements of Listing 1.04A.” (Pl. Br. 11).
A.

Step Three Standard

The Commissioner has provided a “Listing of Impairments” which describes
certain impairments that she considers disabling. 20 C.F.R. §§ 404.1525(a), 416.925(a);
see also, Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If Plaintiff’s condition meets
or equals the severity of a listed impairment, that impairment is conclusively presumed
disabling. Williams, 844 F.2d at 751; see also Bowen v. Yuckert, 482 U.S. 137, 141
(1987) (if claimant’s impairment “meets or equals one of the listed impairments, the
claimant is conclusively presumed to be disabled”). However, Plaintiff “has the burden
at step three of demonstrating, through medical evidence, that h[er] impairments ‘meet all
of the specified medical criteria’ contained in a particular listing.” Riddle v. Halter, No.
00-7043, 2001 WL 282344 at *1 (10th Cir. Mar. 22, 2001) (quoting Sullivan v. Zebley,
493 U.S. 521, 530 (1990) (emphasis in Zebley)). “An impairment that manifests only
some of [the Listing] criteria, no matter how severely, does not qualify” to meet or equal
the listing. Zebley, 493 U.S. at 530.

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“The [Commissioner] explicitly has set the medical criteria defining the listed
impairments at a higher level of severity than the statutory standard. The listings define
impairments that would prevent an adult, regardless of h[er] age, education, or work
experience, from performing any gainful activity, not just ‘substantial gainful activity.’”
Zebley, 493 U.S. at 532-33 (emphasis in original) (citing 20 C.F.R. ' 416.925(a) (1989)).
The listings “streamlin[e] the decision process by identifying those claimants whose
medical impairments are so severe that it is likely they would be found disabled
regardless of their vocational background.” Yuckert, 482 U.S. at 153. “Because the
Listings, if met, operate to cut off further detailed inquiry, they should not be read
expansively.” Caviness v. Apfel, 4 F. Supp. 2d 813, 818 (S.D. Ind. 1998).
Medical equivalence to a listing may be established by showing that the claimant’s
impairment(s) “is at least equal in severity and duration to the criteria of any listed
impairment.” 20 C.F.R. §§ 404.1526(a), 416.926(a). The determination of medical
equivalence is made without consideration of vocational factors of age, education, or
work experience. 20 C.F.R. §§ 404.1526(c), 416.926(c).
B.

The ALJ’s Step Three Findings

The ALJ explained that he had reviewed all the evidence, and he concluded that
Plaintiff’s impairments do not meet or equal the severity of any Listing. (R. 551). He
noted that he had specifically considered Listing 1.04 (Disorders of the spine). Id. He
discussed two medical opinions which concluded that Plaintiff’s condition does not meet
or medically equal the severity of any Listing—those of the medical expert (ME) who
testified at the first ALJ hearing in this case, Dr. Axline, and of the state agency medical
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consultant who reviewed the record evidence at the reconsideration level, Dr. Siemsen.
Id. He also discussed the opinion of Plaintiff’s treating physician, Dr. Rettinger, that
Plaintiff’s condition meets the severity of Listing 1.04A. Id. at 560-61. Here is his
discussion:
With regard to the claimant’s physical impairments, the undersigned has
specifically considered Listing 1.02 (Major dysfunction of a joint(s) (due to
any cause) and Listing 1.04 (Disorders of the spine). The medical expert
who testified in this case, John W. Axline, M.D., who is a board certified
orthopedic surgeon, testified that in his opinion, the claimant’s lumbar
spine disorder does not meet or medically equal any listing. The
undersigned gives significant weight to this opinion from Dr. Axline
because it is consistent with the objective medical evidence in the record
and because he is an orthopedic specialist.
The undersigned also gives significant weight to the opinion of the State
[sic] agency medical consultant, Gerald Siemsen, M.D., on this issue
because it is consistent with the medical records in evidence. On
November 3, 2010, Dr. Siemsen affirmed the “Physical Residual Functional
Capacity Assessment” form that had previously been submitted by the State
[sic] agency on July 9, 2010 after opining that the claimant’s impairments
do not meet or medically equal any listed impairment (Exhibits 3A, 5A, 8F
[(R. 98, 100-07, 459)]).
(R. 551-52) (italics in original).
On July 12, 2016, following his most recent office visit with the claimant in
the record, Dr. Rettinger completed medical source statements that included
a “Medical Questionnaire” form and an annotation on a print out of “l.04
Disorders of the spine” (l6F [(R. 872-75)]). Dr. Rettinger opined in his
hand written annotation that the claimant “meets condition l.04A based on
physical exam, MRI findings, and clinical history,” and that “she has met
these conditions since April, 2008.” The undersigned gives no weight to
this opinion because it is conclusory and not supported by the objective
evidence expressly cited above in this decision.
In order to meet the criteria of Listing l.04A, the medical evidence must
show the following:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis,
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degenerative disc disease, facet arthritis, vertebral fracture),
resulting in compromise of a nerve root (including the cauda
equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of
the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine).
Since the claimant’s medical records do not show nerve root compression,
the claimant’s DDD of the lumbar spine does not meet the criteria of
Listing l.04A.
In the “Medical Questionnaire” form, Dr. Rettinger affirmed that the
limitations he identified in his June 14, 2013 letter and medical source
statement had continued since that date, and that they would continue to
exist one year form the date he completed this form. For the same reasons
set forth above regarding the June 14, 2013 letter and medical source
statement, the undersigned gives little weight to Dr. Rettinger’s statement
in this “Medical Questionnaire” form.
(R. 560-61) (quoting Listing 1.04A, 20 C.F.R., Pt. 404, Subpt. P, App. 1 ' 1.04A) (bold
and italics in original).
C.

Analysis

To meet Listing 1.04A as quoted above by the ALJ, an impairment must first meet
either criterion of paragraph 1.04: (I) compromise of a nerve root or (II) compromise of
the spinal cord. 20 C.F.R., Pt. 404, Subpt. P, App. 1 ' 1.04. In addition, Listing 1.04A
requires evidence of nerve root compression characterized by; (1) neuro-anatomic
distribution of pain, (2) limitation of motion of the spine, (3) motor loss accompanied by
either (a) sensory loss, or (b) reflex loss, and (only if the lower back is involved)
(4) positive straight-leg raising, while both (a) sitting and (b) supine. Id. ' 1.04A.
Moreover, the criteria in (1) through (4) must all be present simultaneously. Atkins v.
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Colvin, No. 15-1168-JWL, 2016 WL 2989393, at *6-12 (D. Kan. May 24, 2016) (Finding
that the Tenth Circuit would look primarily to the purpose and structure of the Social
Security regulations and agree with the Commissioner’s explanation in Acquiescence
Ruling (AR) 15-1(4) that the severity of Listing 1.04A is only met when all of the criteria
in Listing 1.04, paragraph A are simultaneously present.). The ALJ found that Listing
1.04A is not met in this case because the records do not show nerve root compression.
(R. 561).
In reaching this conclusion, the ALJ relied upon an MRI performed on June 4,
2009 which showed “no definite evidence of a focal herniated nucleus pulposus or focal
extradural nerve root compression,” id. at 364 (quoted in the decision at 555), and an
MRI performed on September 14, 2012 which “did not indicate any nerve root
compression or impingement.” (R. 560) (citing Exhibit 11F, pp. 1-2, R. 511-12) (italics
omitted). The evidence cited by the ALJ supports his finding. The report of the June
2009 MRI explicitly states what the ALJ quoted, and the September 2012 MRI reports
mild neural foraminal stenosis, and advanced disc space loss at L5-S1 (the location of the
laminectomy performed in 1982) “without significant disc herniation.” (R. 512).
Plaintiff cites online articles about facet arthropathy and neural foraminal stenosis
suggesting what is possible or what may occur when one of these conditions is present.
(Pl. Br. 5 & nn.3-5). She argues, quoting Clifton, that the ALJ’s “analysis does not
reflect the required ‘specific weighing of the evidence’ or ‘minimal level of articulation’
required to support a Step Three determination” because there is evidence Plaintiff’s
condition “may meet or equal a listed impairment’s requirements” but the ALJ did not
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adequately discuss that evidence. Id. at 7. She argues that the mild neural foraminal
stenosis reflected in the report of the September 2012 MRI demonstrates the error in the
ALJ’s finding that “‘none of the claimant’s imaging studies’ confirmed ‘nerve root
compression or impingement.’” Id. (citing an online definition and allegedly quoting
without citation the ALJ’s decision). Each of these arguments is without merit.
What is possible when one has a medical condition, or what may occur as a result
of that condition does not demonstrate that the criteria of a Listing are met. Rather, the
determinative inquiry is whether all the criteria of the Listing are met in a particular
case—and whether those criteria are met simultaneously in a case involving Listing
1.04A. Plaintiff does not point to record evidence demonstrating such facts here. Nor
does the holding of Clifton apply to this case. In Clifton, “the ALJ did not discuss the
evidence or his reasons for determining that appellant was not disabled at step three, or
even identify the relevant Listing or Listings; he merely stated a summary conclusion that
appellant’s impairments did not meet or equal any Listed Impairment.” 79 F.3d at 1009.
Here, on the other hand and as noted above, the ALJ discussed the evidence, identified
the Listings he specifically considered, and explained why he found Listing 1.04A was
not met. That is “specific weighing of the evidence” and at least the “minimal level of
articulation” has been met here.
Plaintiff’s attempt to equate mild neural foraminal stenosis with nerve
compression is equally unavailing. First, Plaintiff’s suggestion that the ALJ found “‘none
of the claimant’s imaging studies’ confirmed ‘nerve root compression or impingement,’”
is belied by the decision in this case. The ALJ stated that “the evidence shows that none
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of the claimant’s imaging studies have confirmed nerve root impingement.” (R. 560)
(italics in original). He did not state, however, that the evidence showed that none of the
imaging studies confirmed nerve root compression although he did state that the
September 2012 MRI did not indicate any nerve root compression or impingement. Id.
The ALJ’s statements were made when he was discussing Dr. Rettinger’s statement that
“radiology studies (x-rays and MRI’s) have confirmed that degenerative disc disease
(DDD) and osteoarthritis (OA) of the lumbar spine are the sources of [Plaintiff’s] nerve
root impingement and chronic, severe lumbar pain.” (R. 560, quoting R. 523). He
explained why Dr. Rettinger’s opinion in this regard was not accepted:
However, in fact, the evidence shows that none of the claimant’s imaging
studies have confirmed nerve root impingement. As noted above, the
lumbar spine MRI report dated June 4, 2009 specifically stated that there
was no definite evidence of nerve root compression (Exhibit 2F, pp. 20-21
[(R. 363-64)]). The lumbar spine MRI report dated September 14, 2012
also did not indicate any nerve root compression or impingement (Exhibit
11F, pp. 1-2 [(R. 511-12)]).
(R. 560) (italics in original).
Plaintiff argues based upon an online definition that neural foraminal stenosis
“refers to compression of a spinal nerve as it leaves the spinal canal through the
foramen,” and therefore equates to nerve root compression as that term is used in Listing
1.04A. (Pl. Br. 7). But, Plaintiff does not show that a “spinal nerve as it leaves the spinal
canal” is the same thing as a “nerve root,” and if it is not, then compression of that spinal
nerve is not equivalent to nerve root compression. Moreover, Plaintiff’s argument forgets
that the medical criteria defining a Listed Impairment are intended to be a higher level of
severity than the statutory standard and should not be read expansively. A claimant may
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not demonstrate Listing 1.04A is met with mere nerve root compression, but she must
show “compromise of a nerve root” with nerve root compression characterized by the
simultaneous presence of the four factors discussed above. 20 C.F.R., Pt. 404, Subpt. P,
App. 1 § 1.04 (underline added).
Plaintiff attempts to make this showing using Dr. Mongeau’s report of her June
21, 2010 examination of Plaintiff (Pl. Br. 8) (citing R. 422-23), in conjunction with a
June 25, 2010 progress note from Saint Vincent Clinic. (Pl. Br. 8) (citing R. 436). She
argues that “Dr. Mongeau documented neuro-anatomic distribution of pain; limitation of
motion of the spine; muscle weakness; and positive straight leg raising test (sitting and
supine),” and that the Saint Vincent progress note “documented ‘decreased sensitivity in
feet-heel/greater toes’ or ‘sensory loss.’” Id. (quoting R. 436). However, Plaintiff’s view
of the evidence is far too expansive. This is especially true in light of the fact that Dr.
Axline who is expert in the Social Security Administration’s regulations and the Listings,
reviewed both Dr. Mongeau’s report and Saint Vincent’s records and opined that
Plaintiff’s disc disease does not meet or equal a Listing. (R. 34). Plaintiff does not
explain how Dr. Mongeau’s finding of “5/5 motor strength in all major muscle groups at
the hips, knees, ankles and toes” but “[c]ore muscle weakness in the deep abdominal and
lumbar paraspinals muscle groups as well as pelvic stabilizers of gluteus medius and
minimus” equates to “motor loss” as defined in the Listing (atrophy with associated
muscle weakness or muscle weakness). Nor does she explain how “decreased sensitivity
in feet-heel/greater toes” as noted in the Saint Vincent Clinic note (R. 436) (emphasis
added) equates to the “sensory loss” required by the Listing to accompany motor loss.
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In a final attempt to show error in the ALJ’s Step three evaluation Plaintiff points
out that an individual is also found disabled if her condition is medically equal to a Listed
impairment (Pl. Br. 8-9); points to record evidence that she has “facet arthropathy;” cites
online articles suggesting symptoms that can characterize facet problems, Lumbar Facet
Syndrome, or Facet Joint Syndrome, id. at 9-10; cites record evidence suggesting such
symptoms and/or impairments are present in this case, id. at 10-11; and concludes that
“the ALJ failed to identify the objective evidence he relied on or rejected in determining
Plaintiff’s spine impairments did not meet or equal the requirements of Listing 1.04A.”
(Pl. Br. 11).
The discussion above belies Plaintiff’s argument that the ALJ failed to consider
and identify the evidence he relied upon. The ALJ explained his evaluation and the
evidence upon which it is based. Plaintiff’s appeal to online articles and to symptoms
and evidence suggesting that she has additional impairments not adequately considered or
discussed by the ALJ is simply an invitation to the court to reweigh the evidence, arrive
at a judgment different than that of the ALJ, and to substitute its judgment for that of the
Commissioner. There are two specific problems with that approach. First, its premise is
not supported by the evidence. The ALJ clearly considered the impairments suggested by
Plaintiff and specifically discussed “facet disease” (R. 552, 554, 562), “facet joints” (R.
555), and “facet arthritis” in the decision at issue. (R. 561 (an enumerated “disorder of
the spine”), 562 (revealed in an x-ray taken September 21, 2007)). Secondly, and as
already noted, the court is prohibited from reweighing the evidence and substituting its
judgment for that of the Commissioner. Bowman, 511 F.3d at 1272; accord, Hackett,
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395 F.3d at 1172; see also, Bowling, 36 F.3d at 434 (The court “may not reweigh the
evidence in the record, nor try the issues de novo, nor substitute [its] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”)
To the extent Plaintiff is arguing that the ALJ did not consider whether her
condition medically equals the severity of a Listed Impairment and did not identify
evidence demonstrating that it does not, the court notes it is Plaintiff’s burden to prove
that her condition medically equals a Listed Impairment, not the Commissioner’s burden
to prove otherwise. While Plaintiff suggests that her condition is medically equal to
Listing 1.04A, she does not point to record evidence demonstrating that her condition is
at least equal in severity and duration to each of the criteria of Listing 1.04A. Plaintiff
has shown no error in the ALJ’s step three evaluation.
V.

Step Four
Plaintiff argues that the ALJ’s step four evaluation is both legally deficient and not

supported by the record evidence. She argues that the ALJ erred by inadequately
evaluating the three phases of the step four evaluation of Plaintiff’s past relevant work as
required by the court in Winfrey, 92 F.3d at 1023, by inadequately evaluating Plaintiff’s
allegations of symptoms resulting from her impairments, by relying on portions of the
evidence favorable to his findings while ignoring or mischaracterizing other evidence, by
inadequately evaluating the medical records from Saint Vincent Clinic, in weighing the
medical opinions, by inadequately considering the testimony of her friend and co-worker,
Louise Bailes, by failing “to make any ‘findings regarding the actual functional demands
17

of [P]laintiff’s past relevant work’” (Pl. Brief 33) (quoting Clardy, 2004 WL 737486, at
*6), and by failing to include all of Plaintiff’s limitations in the hypothetical question he
posed to the VE. The court recognizes that most of the errors alleged in this section of
Plaintiff’s Brief (excepting phases two and three of the Winfrey analysis and the
hypothetical posed to the VE) are allegations of error in the ALJ’s assessment of
Plaintiff’s RFC—which takes place between step three and step four of the sequential
evaluation process. 20 C.F.R. §§ 404.1520(e), 416.920(e). Therefore, the court begins
with the alleged errors in the ALJ’s RFC assessment.
A.

Preliminary Considerations

The court notes that the decision in this case is a decision on remand from this
court of a decision by another ALJ. (R. 632-644). In that case, the court noted Plaintiff
alleged errors “in weighing the medical opinions of Dr. Rettinger; [the ALJ] failed to
make specific findings in the three phases of her step-four evaluation; and improperly
rejected the credibility of Plaintiff’s allegations of symptoms resulting from Plaintiff’s
impairments.” Id. at 634. The court found remand was necessary in that case “because
the Commissioner failed properly to explained [sic] her consideration of Dr. Rettinger’s
treating source opinions,” and noted that on remand the plaintiff could “make further
arguments regarding alleged errors in the ALJ’s RFC assessment, credibility
determination, and step four evaluation,” issues on which the court declined to provide an
advisory opinion. Id. at 636. On remand, the Appeals Council vacated the earlier
decision and remanded for the ALJ to offer a new hearing, take any action to complete
the administrative record and “for further proceedings consistent with the order of the
18

court.” Id. at 647. On remand the case was assigned to a different ALJ for reasons which
are not apparent from the record, but in her argument to the Appeals Council, Plaintiff
suggested that the reassignment was not made in accordance with HALLEX (Hearings,
Appeals, and Litigation Law Manual). Id. at 710-11. In her Brief before this court
Plaintiff does not allege error in this regard and the court does not address it. The
Council declined to assume jurisdiction over the decision on remand. Id. at 531.
Dr. Ashcraft treated Plaintiff at the Shawnee Mission Pain Management Center.
(R. 377-85). Although Dr. Aschraft did not provide a specific medical opinion, the ALJ
summarized his treatment records. Id. at 555-56. In doing so, he stated that Plaintiff
“reported good pain relief with the ESIs [(epidural steroid injections)] she received on
June 16, 2009, July 6, 2009, and July 20, 2009.” Id. at 556 (citing R. 324-27, 361-62,
380-81). Apparently because the records cited by the ALJ reveal only “transient good
relief” Plaintiff suggests the ALJ relied “upon ‘portions of evidence favorable to his
position while ignoring’ or mischaracterizing other evidence in the same medical
records.” (Pl. Br. 16) (quoting Harman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004)).
Plaintiff’s argument is without merit. Plaintiff admits the epidural injections “helped
initially.” Id. (quoting Dr. Rettinger’s treatment note at R. 414). Moreover, the ALJ also
noted Plaintiff’s report that the “[e]pidural steroid injections only helped temporarily.”
(R. 553). In context, the decision does not suggest that the ALJ ignored or even
mischaracterized this evidence.
In a similar fashion, Plaintiff points out that “the ALJ stated Plaintiff’s “treatment
records show very little in the way of back complaints or findings … [and] [h]er more
19

recent records show that naproxen has been the only medication prescribed for her DDD
and DJD impairments, which is not indicative of someone with disabling pain.” (Pl. Br.
16) (quoting R. 557 and citing R. 562 (“As noted above, her treatment records from Saint
Vincent Clinic show very little in the way of back complaints or findings”). Plaintiff then
cites some Saint Vincent Clinic records in which pain of some form is recorded. Id. at
17. As Plaintiff admits, the January 2010 treatment note states that Plaintiff was
“[a]dvised against Darvocet and Soma. [She] can use tylenol, ibuprofen or naprosyn.”
(R. 442) (underline in original). This evidence supports the ALJ’s finding that naproxen
has been the only medication prescribed for DDD or DJD in the recent records.
Moreover, the entire paragraph containing the ALJ’s summary of the Saint Vincent
Clinic records in this regard is as follows:
On June 25, 2010, the claimant requested a refill of Flexeril for her back
pain from her provider at Saint Vincent Clinic (Exhibit 7F, p. 12 [(R.
436)]). Following this visit, the claimant has continued to receive her
medical care at Saint Vincent Clinic for medication management and
routine follow up visits for her diabetes and hypertension conditions on a
regular basis through at least June of 2016, but her treatment records show
very little in the way of back complaints or findings (Exhibits 7F, l0F, 19F
[(R. 425-58, 464-510, 883-1064)]). Her more recent records show that
naproxen has been the only medication prescribed for her DDD and DJD
impairments, which is not indicative of someone with disabling pain
(Exhibit 19F [(R. 883-1064)]). On June 26, 2015, the claimant reported
having “no back pain” when she was seen for an injury to her right hip after
she fell out of a popup trailer (Exhibit 19F, p. 106 [(R. 988)]). On
September 8, 2015, it was noted that she “appears to be in good health and
spirits,” and her only musculoskeletal complaint was that her right hip
continued to hurt “but seems to be improving greatly” (Exhibit 19F, p. 121
[(R. 1003)]). On January 4, 2016, she reported that she was “feeling good”
and she did not have any musculoskeletal complaints (Exhibit 19F, p. 155
[(R. 1037)]). The medical provider who examined her at this visit noted no
musculoskeletal findings and a normal neurological exam.
20

(R. 557) (underline and italics in original).
A fair reading of this paragraph reveals the ALJ found that in the six years
between June 2010 and June 2016 Plaintiff had been prescribed naproxen for her pain
and that the records “show[ed] very little in the way of back complaints or findings.” The
court has reviewed Plaintiff’s argument that her “back pain is fully documented in the
Saint Vincent’s [sic] records,” and finds that although there is mention of back pain in the
records about which Plaintiff quibbles, the ALJ accounted for that fact, and his findings
in the paragraph at issue are supported by the record evidence (it is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion”).
Plaintiff complains, “The ALJ also failed to consider the other impairments
documented in Plaintiff’s medical records from Saint Vincent’s [sic].” (Pl. Br. 18). The
record does not support this argument. In his step two analysis, the ALJ recognized that
Plaintiff had argued to the Appeals Council that the ALJ in the earlier decision had failed
to consider all her impairments. (R. 551). He concluded, “The undersigned has
specifically considered all of the claimant’s documented medical impairments in the
record, but the only severe impairments are those set forth above in this finding.” Id.
The court’s general practice, from which it finds no reason to depart here “is to take a
lower tribunal at its word when it declares that it has considered a matter.” Flaherty v.
Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (quoting Hackett, 395 F.3d at 1173)).
Plaintiff claims the ALJ erred in considering the third-party lay opinion of her coworker, and friend, Ms. Bailes, because he found the testimony of “little value,” which
Plaintiff argues is contrary to the requirement stated in SSR 06-3p and SSR 16-3p that an
21

ALJ will consider such testimony. Again, Plaintiff is asking that the court reweigh the
testimony and accord it greater weight than did the ALJ—something it may not do.
The Tenth Circuit has explained the consideration due third-party lay opinions. In
the Tenth Circuit, an ALJ is not required to make specific, written findings regarding
each third-party opinion when the written decision reflects that the ALJ considered that
opinion. Blea, 466 F.3d at 914-15; Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996).
In Adams, the court “decline[d] claimant’s invitation to adopt a rule requiring an ALJ to
make specific written findings of each witness’s credibility, particularly where the written
decision reflects that the ALJ considered the testimony.” 93 F.3d at 715. The Adams
court determined “that the ALJ considered the testimony of claimant’s wife in making his
decision because he specifically referred to it in his written opinion,” and the court found
no error in the ALJ’s failure to make specific, written findings regarding the testimony.
Id. (emphasis added). Ten years later, the Tenth Circuit confirmed the rule that an ALJ is
not required to make specific written findings regarding third-party lay opinions if the
written decision reflects that the ALJ considered it. Blea, 466 F.3d at 915.
Here, as Plaintiff admits, the ALJ recognized that Ms. Bailes testified at the
supplemental hearing before the earlier ALJ, and he specifically summarized “[t]he most
probative portions of” her testimony. (R. 563). In a second paragraph, he explained the
weight accorded her testimony and the reasons for that weight:
Since Ms. Bailes is not a medical source and did not observe the claimant
in a professional capacity, her testimony is of little value in determining the
extent to which the claimant’s alleged limitations are a result of her medical
impairments. Moreover, by virtue of her relationship with the claimant,
Ms. Bailes cannot be considered to be a disinterested third party witness
22

whose statements would not tend to be colored by affection for the claimant
and a natural tendency to agree with the symptoms and limitations the
claimant alleges. Accordingly, the undersigned gives little weight to Ms.
Bailes’ [sic] testimony.
Id. (emphasis added by the court). The ALJ in this case did much more than is required.
In addition to demonstrating that he had considered the opinion, he explained his reasons
for discounting it.
B.

Medical Opinions

Plaintiff claims the ALJ erred in weighing the medical opinions of Dr. Rettinger
(Pl. Br. 3, 8, 22-25), Dr. Axline, id. at 6, 8, 23-25; and Dr. Siemsen. Id. at 6, 8, 23-25.
The Commissioner argues that the ALJ reasonably resolved the conflicting opinion
evidence. She points to record evidence supporting the ALJ’s evaluation of Dr.
Rettinger’s opinions and to the ALJ’s “detailed summary of the relevant evidence of
record in assessing Plaintiff’s RFC” (Comm’r Br. 13, 14).
1.

The ALJ’s Findings

As noted above, in his step three analysis the ALJ accorded significant weight to
the opinions (that Plaintiff’s condition did not meet or medically equal the severity of a
Listed Impairment) which were provided by the ME, Dr. Axline, and by the state agency
medical consultant, Dr. Siemsen. His reasons for doing so were that the opinions are
consistent with the record medical evidence and because Dr. Axline is an orthopedic
specialist. (R. 551-52).
The ALJ provided an unusually extensive summary of Plaintiff’s allegations of
symptoms resulting from her impairments and of the medical record evidence. (R. 552-

23

63). Within that summary, he summarized Dr. Mongeau’s report of her consultative
examination, recognizing Dr. Mongeau’s note that Plaintiff’s “ability to ambulate would
be enhanced if she had a single-point cane,” and finding that “Dr. Mongeau did not offer
any opinions with regard to the claimant’s specific physical functional capabilities or
limitations.” (R. 557). The ALJ summarized a visit with Dr. Rettinger on June 7, 2013,
four years after Plaintiff’s last visit with Dr. Rettinger and while she continued to receive
her primary care from the Saint Vincent Clinic, and the ALJ found “the purpose of the
visit was to marshal support for her disability claims in preparation for her appeal of [the
prior ALJ’s] unfavorable opinion to the Appeals Council.” Id. at 558. The ALJ accorded
minimal weight to Dr. Rettinger’s statements at that visit because the finding of disability
is an administrative finding reserved to the Commissioner, his statements appear to be
substantially based on subjective information provided by Plaintiff, his statements are not
supported by objective medical evidence, and are inconsistent with Dr, Axline’s opinion.
Id. at 558-59.
The ALJ accorded minimal weight to the medical source statement Dr. Rettinger
completed on Plaintiff’s initial office visit on September 20, 2007 because it was based
on speculation, was not supported by functional examinations or by the medical evidence,
was inconsistent with Dr. Axline’s opinion, and because Dr. Rettinger is not a specialist
in orthopedics or neurology. Id. at 559. The ALJ noted that Dr. Rettinger wrote a letter
to Plaintiff’s counsel dated June 14, 2013 in which he opined:
It is my firm opinion that since May 2009, and due to predicted worsening
of [Plaintiff’s] back pain, [she] should be limited to working up to four
hours per day, performing two hours of activity at a time, during which she
24

is allowed to alternate positions, followed by 1-2 hrs. of inactivity and
elevation of her lower extremities.
(R. 559) (quoting R. 521). The ALJ accorded minimal weight to this opinion because it
was based on speculation, was not supported by functional examinations or by the
medical evidence and was inconsistent with Dr. Axline’s opinion. Id. The ALJ also
summarized the opinions appearing in a “Physical Residual Functional Capacity
Assessment” form completed by Dr. Rettinger on June 14, 2013, the same date as the
letter to Plaintiff’s counsel. Id. at 559-60. In his discussion the ALJ noted:
Dr. Rettinger stated that he based his conclusions regarding these functions
on “radiology studies (x-rays and MRI’s) have confirmed that degenerative
disc disease (DDD) and osteoarthritis (OA) of the lumbar spine are the
sources of [Plaintiff’s] nerve root impingement and chronic, severe lumbar
pain.” However, in fact, the evidence shows that none of the claimant’s
imaging studies have confirmed nerve root impingement. As noted above,
the lumbar spine MRI report dated June 4, 2009 specifically stated that
there was no definite evidence of nerve root compression (Exhibit 2F, pp.
20-21). The lumbar spine MRI report dated September 14, 2012 also did
not indicate any nerve root compression or impingement (Exhibit 1lF, pp.
1-2).
(R. 560) (italics in original). The ALJ accorded minimal weight to this opinion for
several of the same reasons he accorded minimal weight to the opinion reflected in the
June 13, 2013 treatment notes—it appears to be substantially based on subjective
information provided by Plaintiff, is not supported by objective medical evidence, and is
inconsistent with Dr, Axline’s opinion. (R. 560).
The ALJ noted that Dr. Rettinger saw Plaintiff only two more times, November
23, 2015 and July 12, 2016, and that at the July 2016 visit he completed a medical source
statement including a “Medical Questionnaire” and his annotation on a printout of Listing

25

1.04A discussed hereinabove when considering the allegations of error at step two and
step three of the sequential evaluation process. As quoted above, he accorded no weight
to the opinion that Plaintiff meets Listing 1.04A because it is conclusory and not
supported by the medical evidence cited in the decision. (R. 561). He accorded little
weight to the opinions in the “Medical Questionnaire” for the same reasons he discounted
the June 14, 2013 letter and medical source statement—it was based on speculation, was
not supported by functional examinations or by the medical evidence and was
inconsistent with Dr. Axline’s opinion. (R. 561), compare (R. 559, 560).
2.

Standard for Evaluating Medical Opinions

A treating physician’s opinion about the nature and severity of a claimant’s
impairments should be given controlling weight by the Commissioner if well supported
by clinical and laboratory diagnostic techniques and if it is not inconsistent with other
substantial evidence in the record. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th
Cir. 2003); 20 C.F.R. '' 404.1527(c)(2), 416.927(c)(2). When a treating physician
opinion is not given controlling weight, the ALJ must nonetheless specify what lesser
weight he assigned the treating physician’s opinion. Robinson v. Barnhart, 366 F.3d
1078, 1083 (10th Cir. 2004).
A treating source opinion not entitled to controlling weight is “still entitled to
deference and must be weighed using all of the factors provided in 20 C.F.R. ' 404.1527
and 416.927.” Watkins, 350 F.3d at 1300. 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
26

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)). However, the court will not insist on
a factor-by-factor analysis so long as the “ALJ=s decision [is] ‘sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source=s medical opinion and the reasons for that weight.’” Oldham v. Astrue, 509 F.3d
1254, 1258 (10th Cir. 2007) (quoting Watkins, 350 F.3d at 1300).
After considering the above factors, the ALJ must give good reasons in his
decision for the weight he ultimately assigns the opinion. If the ALJ rejects the opinion
completely, he must give specific, legitimate reasons for doing so. Watkins, 350 F.3d at
1301.
3.

Analysis

Plaintiff’s suggestion that Dr. Rettinger’s opinions are worthy of greater weight
than those of Dr. Axline and Dr. Siemsen because he had the benefit of the September
2012 MRI report whereas they did not is without merit. The responsibility for the
determination of disability in a case such as this is that of the ALJ, not of a physician.
The ALJ considered the 2012 MRI report, and explained that Dr. Rettinger’s opinion that

27

report confirmed nerve root impingement was contrary to both the report itself and the
report of the June 2009 MRI. (R. 560). Plaintiff has not shown error in this finding.
Plaintiff claims error in the ALJ’s evaluation of Dr. Mongeau’s examination
report. (Pl. Br. 19-20). She argues that “whether Plaintiff’s extension was at 10 degrees
or reduced 10 degrees and/or her lateral bending was at 15 degrees or reduced 15 degrees,
her extension and lateral bending were significantly reduced.” Id. at 20. The court
agrees with Plaintiff that Dr. Mongeau’s report may be interpreted two ways and that
either interpretation results in a “significant reduction” in Plaintiff’s back extension and
flexion. However, as the ALJ specifically noted, “Dr. Mongeau did not offer any
opinions with regard to the claimant’s specific physical functional capabilities or
limitations.” (R. 557) (emphasis added). And Plaintiff does not point to functional
limitations from such decreased back flexion and extension which would preclude the
RFC assessed by the ALJ.
Plaintiff also points to Dr. Mongeau’s opinion that Plaintiff’s “ability to ambulate
within her home and community would be enhanced if she had a single point cane” (R.
423) and suggests error in the ALJ’s failure “to address Plaintiff’s need for a single point
cane when ambulating.” (Pl. Br. 20). But, Plaintiff ignores Dr. Mongeau’s statement
earlier in the same paragraph, “The patient reports the ability to ambulate a couple of
blocks before having to sit and rest.” (R. 423). While a single point cane might enhance
her ability to ambulate, Plaintiff does not explain how it was error for the ALJ to fail to
require the use of a single point cane in her RFC when she is able to ambulate a couple of
blocks without it before having to sit.
28

Plaintiff claims it was error for the ALJ to question “Dr. Rettinger’s opinion
Plaintiff was not a candidate for additional surgery [when] he failed to identify any
contrary medical evidence.” (Pl. Br. 22) (citing R. 559). This argument apparently relies
upon the ALJ’s discussion of Dr. Rettinger’s letter to Plaintiff’s counsel:
Dr. Rettinger noted that he also advised the claimant not to undergo any
additional back surgeries. However, there is no evidence in the record that
Dr. Rettinger is trained in the orthopedic or neurology fields of medicine, or
that he referred the claimant to any specialist who is trained in either of
those fields. The record shows that the claimant has not been
recommended for any new back surgery.
(R. 559). The court finds no error here. The ALJ was explaining his bases for
discounting Dr. Rettinger’s opinions expressed in the letter to Plaintiff’s counsel and the
fact Dr. Rettinger is not a specialist in orthopedics or neurology and did not refer Plaintiff
to either specialist is a basis to question his opinion in this regard. Moreover, the ALJ is
correct that there has been no recommendation for new back surgery.
Plaintiff claims error in the ALJ’s finding that Dr. Rettinger’s opinions were
“substantially based on subjective information that the claimant provided to him.” (Pl.
Br. 23) (quoting R. 560, but, see also R. 558). As Plaintiff argues, “In choosing to reject
the treating physician’s assessment, an ALJ may not make speculative inferences from
medical reports.” McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002). Where
the ALJ has no legal or evidentiary basis for finding that a treating physician’s opinion is
based only on plaintiff’s subjective complaints, his conclusion to that effect is merely
speculation which falls within the prohibition of McGoffin. Langley v. Barnhart, 373
F.3d 1116, 1121 (10th Cir. 2004). Such a conclusion must be based upon evidence taken

29

from the administrative record. Victory v. Barnhart, 121 F. App=x 819, 823-24 (10th Cir.
2005). Here, the ALJ based his finding on evidence from the record. Plaintiff’s
argument ignores the paragraph in the decision immediately before the ALJ’s first finding
that Dr. Rettinger’s opinion was based on Plaintiff’s subjective information:
During the June 7, 2013 office visit with Dr. Rettinger, the claimant
reported the following subjective complaints. Her back pain started 15
years ago and was now severe but stable. It was occurring persistently in
her lower back and radiating to her right calf. She described the pain as “an
ache, burning, shooting and throbbing.” Her symptoms were being
aggravated by ascending stairs, daily activities, descending stairs,
extension, flexion, lifting, twisting and walking. Her symptoms were
relieved by Naprosyn and tramadol that “help some.” She said she did not
tolerate Lortab. Upon examination and testing, Dr. Rettinger noted the
following pertinent findings regarding the claimant. She appeared in no
apparent distress. She had tenderness in her paraspinous muscles in her
lumbar spine and thoracic spine. She had pain in her right buttock but no
pain in her right greater trochanter. She had pain in her right sacroiliac
joint. The Patrick’s (Faber) sign was positive on the right. She showed
moderate pain with range of motion testing of her thoracic spine and severe
pain with range of motion testing of her lumbar spine. She had a normal
balance and gait. Her extremities appeared normal. Her sensory and motor
exams were normal. Dr. Rettinger listed a sole diagnosis of lumbago but
noted that the claimant’s right L5 radiculopathy “is severe and unchanged
for > 5 years.” Dr. Rettinger prescribed gabapentin, Naprosyn, and
tramadol “for back pain.”
(R. 558). Plaintiff reported that she was disabled, but what she presented was not the
picture of one who is “disabled by her chronic back pain with right-sided radiculopathy,”
as Dr. Rettinger stated in his office note, and the ALJ quoted. (R. 558, quoting R. 867).
As the ALJ noted, Dr. Rettinger diagnosed only lumbago, and prescribed pain
medications not usually associated with disabling pain.
Plaintiff’s appeal to the ALJ’s alleged failure to identify the evidence supporting
the inconsistencies he found is to a similar effect. As suggested by the paragraph quoted
30

above, the ALJ’s 19-page single-spaced decision was unusually thorough and well-cited
to the record. The ALJ’s reasoning is evident to any fair reader. At every turn, Plaintiff’s
citation to online articles suggesting what her impairments may cause, and limitations
which they can produce, along with her explanations of how the evidence should be
interpreted differently than did the ALJ leaves the court with the firm conviction that she
desires the court improperly to reweigh the evidence and substitute its judgment for that
of the ALJ. Lacking from her argument, is an explanation why the ALJ’s decision is not
supported by “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Perales, 402 U.S. at 401; see also, Wall, 561 F.3d at 1052;
Gossett, 862 F.2d at 804.
C.

Plaintiff’s Allegations of Symptoms

Plaintiff claims the reasons the ALJ provided for discounting Plaintiff’s
allegations of symptoms are contrary to the record evidence. (Pl. Br. 31-32). She argues,
“contrary to the ALJ’s statements, both the objective medical evidence and Dr. Axline’s
testimony were consistent with Plaintiff’s subjective complaints. Further, and as the ALJ
acknowledged, Plaintiff’s complaints of disabling pain and her limitations associated
with that pain are related to and consistent with her medical impairments.” (Pl. Br. 31).
(citing R. 554, where the ALJ found “that the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms”).
Plaintiff’s argument misapplies the legal standard for evaluating a claimant’s
allegations of symptoms resulting from her impairments. To be sure, the ALJ must
consider (1) whether Plaintiff has shown by objective medical evidence an impairment
31

which could produce the alleged disabling symptoms; (2) if so, whether there is a “loose
nexus” between that impairment and Plaintiff’s subjective allegations (using Plaintiff’s
words, factor two can be stated as, whether “Plaintiff’s complaints of disabling pain and
her limitations associated with that pain are related to and consistent with her medical
impairments”); and (3) if so, whether, considering all the evidence, both objective and
subjective, Plaintiff’s alleged symptoms are in fact disabling. Thompson v. Sullivan, 987
F.2d 1482, 1488 (10th Cir. 1993). Plaintiff’s argument that “both the objective medical
evidence and Dr. Axline’s testimony were consistent with Plaintiff’s subjective
complaints” (Pl. Br. 31) is merely an assertion that the first factor has been met. Plaintiff
has shown she has impairments that could produce the disabling symptoms alleged, so at
least in a broad sense the objective medical evidence and Dr. Axline’s testimony about
that evidence are consistent with those symptoms—if they were completely inconsistent
with those allegations, the first factor could not be met and the analysis would go no
farther. Her argument that “as the ALJ acknowledged, Plaintiff’s complaints of disabling
pain and her limitations associated with that pain are related to and consistent with her
medical impairments,” id., is merely an assertion that the second factor is met—there is a
“loose nexus” between the proven impairments and Plaintiff’s allegations of symptoms.
Plaintiff’s analysis ignores the third factor; which the ALJ applied and concluded that
Plaintiff’s allegations of symptoms “are not entirely consistent with the medical evidence
and other evidence in the record for the reasons explained in this decision.” (R. 554).
Plaintiff has not shown error in this conclusion. If the objective medical evidence and
Dr. Axline’s testimony were entirely consistent with Plaintiff’s subjective complaints—as
32

Plaintiff’s argument implies—Dr. Axline would have opined that she was disabled.
However, the functional limitations he opined would allow a range of light work (R. 3536) despite his acknowledgment that an individual such as Plaintiff that has had prior
back surgery and severe degenerative disc disease could have severe back pain. Id. at 39.
Plaintiff also argues “the ALJ’s RFC assessment did not include any discussion of
Plaintiff’s ability to sustain work activities” (Pl. Br. 12) and failed to link the medical
evidence to his RFC assessment. Id. at 13. Plaintiff is correct to the extent that the ALJ
did not specifically state “Plaintiff is able to sustain work activities with the RFC
assessed, eight hours a day, five days a week on a sustained basis,” and he did not state
that a particular piece of medical evidence or a particular medical opinion justified a
particular limitation assessed. But, he did state, “In sum, the evidence in this case shows
that the claimant is not precluded from all work. There is nothing in the record to show
that the claimant cannot perform work within the limitations set forth in her determined
residual functional capacity.” (R. 564). Moreover, as is sufficiently demonstrated by the
court’s discussion above, the extensive 19-page single-spaced decision at issue provided
the court and any fair-minded reader a roadmap through the ALJ’s rationale and the
reasons for his decision. “[T]here is no requirement in the regulations for a direct
correspondence between an RFC finding and a specific medical opinion.” Chapo v.
Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (citing Howard v. Barnhart, 379 F.3d 945,
949 (10th Cir. 2004)); Wall, 561 F.3d at 1068-69). The narrative discussion required by
SSR 96-8p to be provided in an RFC assessment does not require citation to a medical
opinion, or even to medical evidence in the administrative record for each RFC limitation
33

assessed. Castillo v. Astrue, No. 10-1052, 2011 WL 13627, *11 (D. Kan. Jan. 4, 2011).
“What is required is that the discussion describe how the evidence supports the RFC
conclusions, and cite specific medical facts and nonmedical evidence supporting the RFC
assessment.” Id. See also, Thongleuth v. Astrue, No. 10-1101-JWL, 2011 WL 1303374,
*13 (D. Kan. Apr. 4, 2011). There is no need in this case, or in any other, for the
Commissioner to base the limitations in his RFC assessment upon specific statements in
medical evidence or opinions in the record.
D.

The Three-Phase Winfrey Analysis

The first phase of the Winfrey analysis is an RFC assessment, which as discussed
above was adequately made in this case. Plaintiff argues that the ALJ erred at phase two
by failing to provide an on-the-record finding regarding the demands of Plaintiff’s past
relevant work, and “the ALJ merely delegated the phase two and phase three findings to
the vocational expert,” which is the specific error found in Winfrey. (Pl. Br. 33). The
Commissioner argues “The ALJ satisfied his duty to obtain specific information as to the
functional demands of Plaintiff’s past relevant work, including that he obtained the job’s
title, DOT number, exertional level, and skill level.” (Comm’r Br. 19) (citing Bales v.
Colvin, 576 F. App’x 792, 799-800 (10th Cir. 2014)). She adds that the ALJ
“approvingly incorporated the vocational expert’s testimony about the demands of
Plaintiff’s past relevant work at phases two and three of the step-four inquiry.” Id. at 20.
She points out that “an ALJ is permitted to incorporate a vocational expert’s testimony
and this was sufficient to satisfy the requirement for specific findings.” Id. (citing Doyal
v. Barnhart, 331 F.3d 758, 761 (10th Cir. 2003)). In her Reply Brief, Plaintiff
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distinguishes Bales and Doyal, arguing that the ALJ here did not question the VE at the
hearing regarding the demands of past work, the VE did not discuss those demands; and
the ALJ did not quote the VE testimony in support of his own findings. (Reply 15).
The court finds no error here. As Plaintiff suggests, at step four of the sequential
evaluation process, the ALJ is required to make specific findings in three phases.
Winfrey, 92 F.3d at 1023 (citing SSR 82-62, 1975-1982 West=s Soc. Sec. Reporting
Serv., Rulings 809 (1983)). In phase one, “the ALJ should first assess the nature and
extent of [the claimant’s] physical limitations.” Winfrey, 92 F.3d at 1023. In phase two,
the ALJ must “make findings regarding the physical and mental demands of the
claimant’s past relevant work.” Winfrey, 92 F.3d at 1024. Finally, in phase three, the
ALJ must determine “whether the claimant has the ability to meet the job demands found
in phase two despite the mental and/or physical limitations found in phase one.” Id., 92
F.3d at 1023. The findings at all three phases are to be made on the record by the ALJ.
Winfrey, 92 F.3d at 1025; see also, SSR 82-62, 1975-1982 West’s Soc. Sec. Reporting
Serv., Rulings, at 813 (“decision must contain ... specific findings of fact” regarding each
of the three phases).
The ALJ assessed Plaintiff’s limitations, found no mental limitations and stated
her physical limitations in the RFC assessed. (R. 552). He stated his phase two findings
regarding Plaintiff’s past relevant work as a dispatcher; that it is physically sedentary,
mentally semiskilled, and requires a specific vocational preparation (SVP) of 4. (R. 564).
He also stated his phase three findings:

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In response to the undersigned’s questions that assumed the existence of a
hypothetical individual of the claimant’s age, education, past relevant work
experience, and residual functional capacity, the vocational expert testified
that such an individual could perform the claimant’s past work as a
dispatcher. Based on the testimony from the vocational expert, the
undersigned finds that the claimant can perform her past relevant work as a
dispatcher.
(R. 564). Although a greater explanation would have been helpful to the court, more is
not required.
Plaintiff’s argument of error because the ALJ did not question the VE about the
functional demands of Plaintiff’s past relevant work at the hearing and the VE did not
discuss those requirements at the hearing is without merit. The record contains Exhibit
16E, a “Past Relevant Work Summary” which includes the VE’s evaluation of Plaintiff’s
work as a dispatcher, among other jobs. (R. 862) (cited in the decision at R. 564). That
summary notes that Plaintiff’s work as a dispatcher was sedentary and SVP 4, or
mentally semiskilled. Id. Although those specific facts were not discussed at the hearing
in this case, the ALJ specifically named exhibit 16E in his questioning of the VE and
explained, “You heard the discussion earlier between me and the attorney [(Plaintiff’s
attorney)]. It does appear that the Dispatcher is the only SGA [(significant gainful
activity)] job, so that’d be the only one I would consider past relevant work.” (R. 603).
Moreover, the VE later explained that Plaintiff did not acquire skills in her work as a
dispatcher that are readily transferable to other skilled or semiskilled work, id., and that if
an individual working as a dispatcher were providing wrong information, it “wouldn’t be
tolerated for long.” Id. at 605. The discussion at the hearing was sufficient to provide a

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basis to justify the ALJ’s reliance on Exhibit 16E as the VE’s opinion regarding past
relevant work as a dispatcher.
Likewise, Plaintiff’s argument that “the ALJ herein did not ‘quote the [VE’s]
testimony approvingly, in support of his own findings at phases two and three of the
analysis’” is without merit. (Reply 15) (citing R. 564, but apparently quoting Doyal, 331
F.3d at 761). The fact that the ALJ here did not quote the VE-supplied information or
testimony is irrelevant. He relied upon that information in reaching his phase two and
three findings, and that is appropriate.
Plaintiff next argues that this case is like “this Court’s [sic] decision in Nagengast
v. Astrue, No. 10-1287-JWL, 2011 WL 3794282, *32 (D. Kan. Aug. 25, 2011), where the
ALJ improperly “rel[ied] on the DOT job description alone to satisfy the requirement that
[h]e determine the demands of claimant’s past relevant work.” (Reply 15-16). This case
may be distinguished from this court’s decision in Nagengast. While it clearly would
have been helpful for the ALJ to have provided a more extensive explanation in this case,
the ALJ’s step four finding and analysis in Nagengast was quoted in its entirety in the
court’s decision. It consisted of the step four finding and a two-sentence paragraph
concluding that the plaintiff was able to perform her past relevant work as it is generally
performed. Nagengast, 2011 WL 3794283 at *3. Here, the ALJ’s explanation is much
more extensive, and he properly relied on information provided by the VE to reach his
phase two and three conclusions at step four of the sequential evaluation process.

The court notes a typographical error in Plaintiff’s citation. The correct Westlaw
citation is 2011 WL 3794283.
2

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Plaintiff has shown no error in the decision at issue. Therefore, the case will not
be remanded.
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 May 29, 2019, at Kansas City, Kansas.

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

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