Stalford v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER - That judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the final decision of the Commissioner. Signed by District Judge John W. Lungstrum on 3/8/2013. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JESSICA STALFORD,

)
)
Plaintiff,
)
)
v.
)
)
)
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 12-4011-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security disability benefits (SSD) and
Supplemental Security income (SSI) 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 Commissioner’s final decision, the court
ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C.
§ 405(g) AFFIRMING that decision.
I.

Background
1

On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of
Social Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Ms. Colvin is substituted for Commissioner Michael J. Astrue as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
is necessary.

Plaintiff applied for SSD and SSI on March 26, 2008, alleging disability beginning
July 15, 2005.2 (R. 12, 149-58). The applications were denied initially and upon
reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge
(ALJ). (R. 12, 65-68, 103-05). Plaintiff’s request was granted, and Plaintiff appeared
with counsel for a hearing before ALJ Linda L. Sybrant on June 17, 2010. (R. 12, 29).
At the hearing, testimony was taken from Plaintiff, from Plaintiff’s mother, and from a
vocational expert. (R. 12, 29-64).
On July 29, 2010,3 ALJ Sybrant issued her decision finding that Plaintiff has the
residual functional capacity (RFC) for a range of light work with certain postural,
manipulative, communicative, and environmental limitations, and that although Plaintiff
has no past relevant work, there are a significant number of jobs within the economy that
she is able to perform. (R. 12-22). Consequently, the ALJ determined Plaintiff is not
disabled within the meaning of the Act, and denied her applications. (R. 22).
Plaintiff sought Appeals Council review of the ALJ’s decision and submitted a
Representative Brief which the Council made a part of the administrative record in this
case. (R. 4, 6-8, 301-02). The Appeals Council found that the Representative Brief did

2

The Commissioner’s decision indicates Plaintiff’s SSD application was made on
March 25, 2008, and that Plaintiff alleged disability beginning July 16, 2005. (R. 12).
However, both applications indicate that Plaintiff applied on March 26, 2008, and that
Plaintiff alleged disability beginning July 15, 2005. (R. 149, 157).
3

Because the Commissioner’s decision in this case was issued on July 29, 2010, all
citations to the Code of Federal Regulations in this opinion refer to the 2010 edition of 20
C.F.R. Parts 400 to 499, revised as of April 1, 2010, unless otherwise indicated.
2

not provide a basis to change the ALJ’s decision, found no reason under Social Security
Administration rules to review the decision, and denied Plaintiff’s request for review. (R.
1-5). Therefore, the ALJ’s decision is the final decision of the Commissioner. (R. 1);
Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006). Plaintiff now seeks judicial review
of that decision. (Doc. 1).
II.

Legal Standard
The court’s jurisdiction and review are guided by the Act. Weinberger v. Salfi,

422 U.S. 749, 763 (1975) (citing 42 U.S.C. § 405(g)); Wall v. Astrue, 561 F.3d 1048,
1052 (10th Cir. 2009) (same); Brandtner v. Dep’t of Health and Human Servs., 150 F.3d
1306, 1307 (10th Cir. 1998) (sole jurisdictional basis in social security cases is 42 U.S.C.
§ 405(g)). Section 405(g) of the Act provides for review of a final decision of the
Commissioner made after a hearing in which the Plaintiff was a party. It also 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 factual findings are supported by substantial evidence in the record and
whether the ALJ 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
evidence as a reasonable mind might accept to support a conclusion. 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.
3

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). 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).
An individual is under a disability only if that individual can establish that she has
a physical or mental impairment which prevents her from engaging in any substantial
gainful activity, and which is expected to result in death or to last for a continuous period
of at least twelve months. Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting
identical definitions of a disabled individual from both 42 U.S.C. §§ 423(d)(1) and
1382c(a)(3)(A)); accord, Lax, 489 F.3d at 1084 (citing 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A)). The claimant’s impairments must be of such severity that she is not
only unable to perform her past relevant work, but cannot, considering her age, education,
and work experience, engage in any other substantial gainful work existing in the national
economy. 42 U.S.C. § 423(d)(2)(A).
The Commissioner uses a five-step sequential process to evaluate disability. 20
C.F.R. §§ 404.1520, 416.920 (2010); 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
4

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),
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 sequential process-determining whether claimant can perform past relevant work; and whether, considering
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 claimant to prove a disability that prevents
performance of past relevant work. Blea, 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 there are jobs in the economy
within Plaintiff’s RFC. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Plaintiff claims the ALJ erroneously weighed the medical opinions, both of her
treating physician, Dr. Veloor, and of the state agency medical consultants. (Pl. Brief 1923). Plaintiff also claims the ALJ failed to apply the correct legal standard to evaluate the
credibility of Plaintiff’s allegations of symptoms resulting from her impairments. (Pl.
5

Brief 23-31). Finally, Plaintiff claims that the ALJ erred in her RFC assessment as a
result of her errors in evaluating the credibility of Plaintiff’s allegations of symptoms and
as a result of her errors in weighing the medical opinion of Dr. Veloor. Id. at 31-32. The
Commissioner argues that the ALJ properly evaluated the medical opinion evidence and
properly evaluated the credibility of Plaintiff’s allegations of symptoms as required by the
holding of Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987), and in accordance with 20
C.F.R. §§ 404.1529, 416.929, and Social Security Rulings (SSR) 96-4p and 96-7p.
(Comm’r Br. 11-18). The Commissioner argues that because the ALJ did not err as
alleged by Plaintiff, her RFC assessment was supported by substantial record evidence
and was not erroneous. Id. at 18-19. The court finds no error in the ALJ’s decision. It
addresses each of the issues presented in the order suggested by Plaintiff’s Brief.
III.

Evaluation of the Medical Opinions
Plaintiff claims the ALJ erred in weighing Dr. Veloor’s medical opinion because

she failed to accord the opinion controlling weight, failed to state the precise weight she
accorded the opinion, and did not properly apply the regulatory factors in weighing the
opinion. (Pl. Brief 21). Plaintiff also claims that the ALJ erred in weighing the opinions
of the state agency physicians by merely stating that her RFC trumped that of the state
agency physicians. (Pl. Brief 22). The Commissioner argues that the ALJ properly
discounted Dr. Veloor’s opinion. (Comm’r Br. 12).
A.

Standard for Evaluating Treating Source Medical Opinions

6

“If [the Commissioner] find[s] that a treating source’s opinion on the issue(s) of
the nature and severity of [the claimant’s] impairment(s) is [(1)] well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is [(2)] not
inconsistent with the other substantial evidence in [claimant’s] case record, [the
Commissioner] will give it controlling weight.” 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2); see also, SSR 96-2p, West’s Soc. Sec. Reporting Serv., Rulings 111-15
(Supp. 2012) (“Giving Controlling Weight to Treating Source Medical Opinions”).
The Tenth Circuit has explained the nature of the inquiry regarding a treating
source’s medical opinion. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003)
(citing SSR 96-2p). The ALJ determines “whether the opinion is ‘well-supported by
medically acceptable clinical and laboratory diagnostic techniques.’” Id. at 1300 (quoting
SSR 96-2p). If the opinion is well-supported, the ALJ must also confirm that the opinion
is “not inconsistent” with other “substantial evidence” in the record. Id. “[I]f the opinion
is deficient in either of these respects, then it is not entitled to controlling weight.” Id.
SSR 96-2p, cited by the court in Watkins, explains that the term “substantial
evidence” as used in determining whether a treating source opinion is worthy of
“controlling weight” is given the same meaning as determined by the Court in Richardson
v. Perales, 402 U.S. 389 (1971). SSR 96-2, West’s Soc. Sec. Reporting Serv., Rulings
113 (Supp. 2010). The threshold for denying controlling weight is low. Inconsistent
evidence is “substantial evidence” precluding the award of “controlling weight,” if it is
“such relevant evidence as a reasonable mind would accept as adequate to support a
7

conclusion that is contrary to the conclusion expressed in the [treating source’s] medical
opinion.” Id.
If a treating source opinion is not given controlling weight, the inquiry does not
end. Watkins, 350 F.3d at 1300. Such an opinion 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.” Id.
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(d)(2-6),
416.927(d)(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)).
After considering the factors, the ALJ must give reasons in the decision for the
weight he gives the treating source opinion. Watkins, 350 F.3d at 1301. “Finally, if the
ALJ rejects the opinion completely, he must then give ‘specific, legitimate reasons’ for
doing so.” Id. (citing Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (quoting Frey
v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)).
B.

Dr. Veloor’s Opinion

Here, the ALJ considered Dr. Veloor’s treatment of Plaintiff:
8

Since March 2010, the claimant was followed by Sushmita Veloor, M.D.,
for management of her chronic pain. Dr. Veloor’s impression included
chronic neck pain and bilateral upper extremity pain secondary to cervical
degenerative disc disease and bilateral cervical radiculitis; cervicogenic
headaches; and low back pain with underlying lumbar degenerative disc
disease and mild facet arthropathy. He opined her neck pain was her worse
problem and was most likely due to underlying cervical degenerative disc
disease. He referred her for an EMG, which showed only mild neuropathy
at both wrists and no cubital tunnel syndrome (Exhibits 35F, 36F [(R. 62440)]). While these studies clearly indicate the claimant has a significant
impairment in her cervical and lumbar spines, which could reasonably cause
pain with exertional movements such as standing, walking, lifting, carrying,
bending, and stooping, there is no evidence that she is totally disabled. Her
arm pain is substantiated to some extent by the evaluation of mild bilateral
carpal tunnel syndrome. However, there is no evidence that leads the
undersigned to conclude that this claimant is unable to engage in work
activity due to mild carpal tunnel syndrome or the abnormalities noted on
objective studies cited.
(R. 18). Later, she discussed Dr. Veloor’s opinion and the weight accorded to it:
As for the opinion evidence, her treating pain specialist, Dr. Veloor, opined
the claimant was quite limited in her ability to perform the physical
demands of work activity, that she needed to lie down and would be absent
from work more than three times a month (Exhibit 32F [(R. 611-14)]).
Even though this opinion source is a treating physician, such opinion is not
accorded controlling weight as it is not consistent with other evidence of
record (Social Security Ruling (SSR) 96-2p). Dr. Veloor did not provide
explanations for the limitations on walking and standing only 5 hours of an
8 hour workday, for the need to lie down for 3 to 4 hours a day, or for
missing work. His opinion appears to be based on the claimant’s subjective
complaints and not objective or clinical evidence obtained during his
treatment.
(R. 20).
From this discussion, it is clear that the ALJ denied controlling weight to Dr.
Veloor’s opinion because it is “not consistent with other record evidence.” (R. 20). As
the Commissioner points out in her brief, Plaintiff told Dr. Spratt that she walked one to
9

two miles at a time, three times a week (R. 503, 543); Dr. Ryan, on a neurologic
consultation, saw no evidence of central or peripheral nervous system disease (R. 44243); Dr. Javaid found normal muscle strength and reflexes, and negative straight leg
raising (R. 557); and Dr. Lowry found an essentially normal physical examination. (R.
566-67). Moreover, the state agency non-examining medical consultants opined that
Plaintiff’s mental impairments are not severe (R. 392, 541) and that she is able to perform
a range of light work. (R. 539-40) (affirming as written the July 31, 2008 Physical RFC
assessment form completed by a Single Decisionmaker); see also (R. 238-45); (R. 40607) (Medical Consultant’s Review, agreeing with Single Decisionmaker’s Physical RFC
Assessment). Because at least the state agency consultants’ opinions are not consistent
with Dr. Veloor’s opinion, and are “such relevant evidence as a reasonable mind would
accept as adequate to support a conclusion that is contrary to the conclusion expressed in
[Dr. Veloor’s] medical opinion,” then substantial record evidence supports the ALJ’s
determination not to give controlling weight to Dr. Veloor’s opinion. The court finds no
error in the ALJ’s determination not to give controlling weight to Dr. Veloor’s opinion.
Plaintiff next argues that the ALJ “erred by failing to state the weight she provided
Dr. Veloor’[s]” opinion. (Pl. Br. 21). The court does not agree. As Plaintiff argues, an
“ALJ’s decision must be ‘sufficiently articulated so that it is capable of meaningful
review.’ ” (Pl. Brief 21) (quoting Spicer v. Barnhart, 64 F. App’x 173, 177-78 (10th Cir.
2003)). The court recognizes that an ALJ must provide reasons in the decision for the
weight she accords a medical opinion, and if she rejects a treating source opinion, she
10

must provide “specific, legitimate reasons” for doing so. Watkins, 350 F.3d at 1301.
ALJ’s frequently describe the weight accorded to medical opinions by using such terms
as “little weight,” “substantial weight,” “no weight,” “some weight,” “significant weight,”
or “controlling weight.” Other than the requirement that an ALJ must consider whether
the opinion of a treating source is worthy of controlling weight, and must indicate as
much in her decision, the court is aware of no authority which requires that an ALJ use
particular terms to specify the weight accorded to medical opinions. What is required is
that she provide reasons for the weight accorded and that her decision be capable of
meaningful judicial review.
While it would have been helpful if the ALJ had specifically stated that she
rejected or accorded no weight to Dr. Veloor’s opinion, that omission is not error
requiring remand, because in context the decision makes clear that she provided no
weight to the opinion; she provided specific, legitimate reasons for doing so; and that
determination is capable of meaningful judicial review. As the portion of the decision
quoted above makes clear, the ALJ determined first that Dr. Veloor’s opinion is not
consistent with the other record evidence and that consequently it would not be accorded
controlling weight. (R. 20). She then explained her further reasons for discounting the
opinion. First, she found Dr. Veloor provided no explanation for his determinations that
Plaintiff could sit, stand, and walk for a total of only 5 hours in a workday; that Plaintiff
needed to lie down 3 to 4 hours in a workday; or that Plaintiff’s impairments cause her to
miss work more than 3 times a month. (R. 20).
11

This finding is supported by the record. Dr. Veloor provided no explanation for
the limitations assessed. His opinion consists primarily of bare conclusions, with no
rationale or explanation provided to connect the limitations with Plaintiff’s conditions.
Moreover, the form completed by Dr. Veloor instructed him to “[i]dentify the particular
medical findings . . . which support your opinion regarding limitations,” and cautioned in
bold, all-capital letters that “it is important that you relate particular medical findings to
any reduction in capacity; the usefulness of your opinion depends on the extent to which
you do this.” (R. 611) (bolding and all caps omitted by the court). Dr. Veloor’s lack of
explanation is rendered more significant by the fact that the form explained what was
necessary, and highlighted the importance of that information, yet Dr. Veloor’s opinion
was not responsive to the instructions or to the needs of the SSA.
The ALJ next explained that Dr. Veloor’s opinion was rejected because it “appears
to be based on the claimant’s subjective complaints and [was] not [based on] objective or
clinical evidence obtained during [Dr. Veloor’s] treatment.” (R. 20). Once again, the
record evidence supports this finding. As the ALJ noted in summarizing Dr. Veloor’s
treatment notes (and as quoted above), Plaintiff was treated by Dr. Veloor “[s]ince March
2010," id. at 18 (citing Exs. 35F, 36F (R. 624-28, 633-37) (on March 25, and May 6,
2010) (the ALJ’s hearing was held on June 17, and the decision issued on July 29)), and
Dr. Veloor referred Plaintiff for an EMG, which revealed only mild neuropathy in both
wrists and no cubital tunnel syndrome. (R. 18) (R. 631, 640). Dr. Veloor’s treatment
notes reveal significant complaints of symptoms reported by Plaintiff, but those
12

significant limitations are not reflected in the clinical and laboratory findings or analyses
recorded in the treatment notes. (R. 624-40). The ALJ recognized that the treatment
notes reveal “significant impairment in [Plaintiff’s] cervical and lumbar spines, which
could reasonably cause pain with exertional movement,” and that “her arm pain is
substantiated to some extent by the evaluation of mild bilateral carpal tunnel syndrome.”
(R. 18). However, the ALJ also noted no evidence of total disability in those treatment
notes, and no evidence that would lead her “to conclude that this claimant is unable to
engage in work activity due to mild carpal tunnel syndrome or [due to] the abnormalities
noted on objective studies cited.” Id. Having recognized these facts, the only basis
remaining in the treatment notes which suggest the severe limitations opined by Dr.
Veloor is Plaintiff’s reports of disabling symptoms. In such circumstances, the ALJ
properly discounted Dr. Veloor’s opinion because it is based upon Plaintiff’s allegations
rather than upon the clinical and laboratory findings reflected in the treatment notes.
Plaintiff is correct to caution that a “reviewing court may not create post-hoc
rationalizations to explain the [ALJ’s] treatment of evidence when that treatment is not
apparent from the [ALJ’s] decision.” (Pl. Brief 21) (citing Grogan v. Barnhart, 399 F.3d
1257, 1263 (10th Cir. 2005). But, although a reviewing court “may not supply a reasoned
basis for the agency’s action that the agency itself has not given,” it may “uphold a
decision of less than ideal clarity if the agency’s path may reasonably be discerned.”
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(quoting, respectively, SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); and Bowman
13

Transp. Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)). Here the ALJ’s
treatment of the evidence cited is apparent from her discussion in the decision. The court
has not created a post-hoc rationalization for the decision, but has merely pointed to
record evidence which supports the ALJ’s rationale in this regard.
In her Reply Brief, Plaintiff asserts that an ALJ’s decision must be evaluated
“based solely on the reasons and evidence stated in the ALJ’s decision.” (Reply 2)
(emphasis added) (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168-69 (1962)). However, neither Burlington Truck Lines, nor the other cases controlling
on this issue suggest that an agency’s decision must be supported only by evidence cited
in the agency decision. Rather, they require that a decision be evaluated based upon the
rationale, bases, grounds, explanations, or reasons relied upon by the agency. Burlington
Truck Lines, 371 U.S. at 169 (“on the same basis articulated in the order by the agency”);
Chenery Corp., 332 U.S. at 196 (“solely by the grounds invoked by the agency”); Haga v.
Astrue, 482 F.3d 1205, 1207 (10th Cir. 2007) (“ALJ did not provide these explanations”);
Robinson v. Barnhart, 366 F.3d 1078, 1084-85 (10th Cir. 2004) (“decision should have
been evaluated based solely on the reasons stated in the decision”); Allen v. Barnhart, 357
F.3d 1140, 1142 (10th Cir. 2004) (court relied “upon certain analytical revisions offered
on judicial review,” and the “ALJ’s decision cannot stand on its own erroneous
rationale”); Ramirez v. Barnhart, No. Civ. A. 02-2261-KHV, 2003 WL 21105082, *6 (D.
Kan. April 4, 2003) (citing Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000)
(“decision must stand or fall with reasons set forth in decision”)).
14

Therefore, in evaluating an ALJ’s decision, the court must first determine the
ALJ’s rationale, bases, grounds, explanations, or reasons for the finding at issue, and then
determine whether substantial record evidence supports that finding and the rationale
relied upon. If the Commissioner points to record evidence which was considered by the
ALJ and which supports the ALJ’s rationale, the court may consider and rely on that
evidence, even if it was not cited in the decision at issue. After all, the primary question
the court must answer in judicial review of a decision of the Commissioner is whether
substantial record evidence supports the decision. Lax, 489 F.3d at 1084; accord, White,
287 F.3d at 905; see also 42 U.S.C. § 405(g) (“The findings of the Commissioner as to
any fact, if supported by substantial evidence, shall be conclusive.”). Nevertheless, if the
Commissioner points to record evidence (even evidence which was cited by the ALJ), and
attempts to provide an alternative rationale in support of the ALJ’s finding, the alternative
rationale is merely post-hoc rationalization which may not be relied upon by the court to
affirm the decision. Moreover, the court itself may not provide an alternative basis to
affirm the Commissioner’s decision. Grogan, 399 F.3d at 1263. It has not done so here.
Finally, Plaintiff argues that the ALJ “did not follow the regulatory factors” in
weighing Dr. Veloor’s opinion. (Pl. Brief 21). However, she does not point to particular
factors which were ignored by the ALJ or the consideration of which would require a
different result in weighing Dr. Veloor’s opinion. As noted above, the regulatory factors
for weighing medical opinions are: (1) length of treatment relationship and frequency of
examination; (2) the nature and extent of the treatment relationship, including the
15

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. 20 C.F.R. §§ 404.1527(d)(2-6),
416.927(d)(2-6). Although these factors are to be considered in weighing medical
opinions, the courts 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). That standard has been met here. Moreover, the court’s discussion
above reveals that the ALJ’s consideration included at least the first four factors listed.
C.

State Agency Physicians’ Opinions

Plaintiff argues that an ALJ is required to explain the weight assigned to state
agency physicians’ opinions, and that the ALJ erred by merely stating that her RFC
trumped that of the state agency physicians, and by failing to state the specific weight
accorded to the state agency physicians’ opinions in this case. The Commissioner did not
address this issue.

16

As Plaintiff’s argument suggests, the ALJ discussed the opinions of the state
agency non-examining medical consultants. (R. 20) (citing Exs. 10E,4 12F, 13F, 14F (R.
238-45, 392-410)). She stated the regulatory requirement to evaluate the opinions of state
agency consultants as medical opinions which are to be considered and weighed along
with the other medical opinions. (R. 20). She noted that the RFC she had assessed was
somewhat different from that assessed by the state agency consultants. Id. She then
explained that her RFC assessment was based upon all of the evidence in the case record
and included consideration of “evidence which was not available to [the] State agency
medical consultants.” (R. 21).
Although it would have been helpful if the ALJ had specified the particular weight
which she accorded to the consultants’ opinions, as discussed above an ALJ is not
required to use particular terms to specify the weight accorded to medical opinions. What
is required is that she provide reasons for the weight accorded those opinions and that her
determination be capable of meaningful judicial review. The dispositive question then, in
determining whether the ALJ in this case properly weighed the medical consultants’

4

Exhibit 10E is a “Physical Residual Functional Capacity Assessment” Form
completed by a Single Decisionmaker at the initial consideration of Plaintiff’s
applications. (R. 238-45). As such it is not a medical opinion and is worthy of no weight
in its own right in the ALJ’s consideration. E.g., Kempel v. Astrue, No. 08-4130-JAR,
2010 WL 58910, *7 (D. Kan. Jan. 4, 2010) (citing cases considering Single
Decisionmaker opinions). However, the Single Decisionmaker’s RFC assessment was
“agreed with” by Dr. Tella in Exhibit 13F (R. 406-07), and “affirmed, as written” by Dr.
Vopat in Exhibit 21F. (539-40). Thus, Exhibit 10E became the medical opinion of Dr.
Tella and of Dr. Vopat, and was appropriately considered and weighed by the ALJ.
17

opinions is whether the evidence which became a part of the record after the consultants
formulated their medical opinions supports the differences between the ALJ’s RFC
assessment and the RFC assessment of the medical consultants. In order to make that
determination, the court must first determine the extent of those differences.
With regard to mental limitations, the ALJ’s RFC assessment is no different than
that of the state agency consultants. Compare (R. 15) (ALJ’s finding that Plaintiff has no
severe mental impairment) with (R. 392) (state agency consultant’s Psychiatric Review
Technique Form finding “Impairments Not Severe”). The ALJ recognized that after the
state agency consultants found that Plaintiff had no severe mental impairments in July
2008, Plaintiff began, but did not follow through with, mental health treatment. (R. 15)
(citing Ex. 16F (R. 427-41)). She noted that Plaintiff testified that she continued to see a
social worker, but that she had provided no records of that alleged treatment. (R. 15).
She found that Plaintiff does not have a severe mental impairment. Id. This
determination is supported by the record evidence including the consultants’ opinions.
The ALJ found that Plaintiff is able to perform a range of light work as defined in
20 C.F.R. §§ 404.1567(b) and 416.967(b), and that finding is identical to many of the
exertional limitations opined by the state agency consultants. (R. 239) (see n.4 above).
Although the state agency consultants found Plaintiff capable of unlimited pushing and
pulling at the light exertional level, the ALJ found that she was limited to only occasional
pushing and pulling at the light level. (R. 16, 239). While the state agency consultants
found no limitation on Plaintiff’s ability to stoop, crouch, crawl, kneel, or climb (other
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than ladders, ropes, and scaffolds), the ALJ found she was limited to performing these
activities only occasionally. (R. 16, 240). The consultants found Plaintiff was unlimited
in reaching, whereas the ALJ found she could only perform occasional overhead
reaching. (R. 16, 241). The consultants found no communicative limitations, but the ALJ
determined Plaintiff must avoid constant voice communication due to hoarseness. (R. 16,
242). The consultants found Plaintiff must avoid even moderate exposure to hazards, but
the ALJ found she must avoid only concentrated exposure to hazards. (R. 16, 242). In all
other respects the limitations opined by the state agency consultants are identical to the
limitations assessed by the ALJ. Compare, (R. 16) with (R. 238-45). In discussing
Plaintiff’s capabilities in these areas, the ALJ noted that Plaintiff testified she was no
longer under treatment for seizure activity (R. 15); that Plaintiff has significant
impairments in her cervical and lumbar spine which would limit exertional movement
such as standing, walking, lifting, carrying, bending, and stooping (R. 18); that the
evidence shows limitations in the “ability to bend, stoop, lift, and/or carry because of
neck and back pain;” that the restrictions the ALJ assessed due to postural and hazard
limitations “are based on the evidence of neck and back impairments and obesity;” and
that Plaintiff “should not be required to use her voice as a primary function of her job.”
(R. 20). Contrary to Plaintiff’s argument, the decision, when read as a whole, reveals that
the ALJ explained her reasons for the differences between her RFC assessment and the
limitations opined by the medical consultants.

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Moreover, with one exception, each difference between the medical consultants’
opinion and the RFC assessed by the ALJ works to the benefit of Plaintiff. The ALJ
found that Plaintiff was more limited in pushing and pulling, in stooping, crouching,
crawling, kneeling, or climbing, in overhead reaching, and in voice communication than
did the medical consultants. Plaintiff was not prejudiced by the ALJ’s decision to find
greater limitations, and therefore, she cannot be heard to complain, because giving greater
weight to the consultant’s opinions would not have helped her. Keyes-Zachary v. Astrue,
695 F.3d 1156, 1162-63, and n.2 (10th Cir. 2012) (citing Chapo v. Astrue, 682 F.3d 1285,
1288 (10th Cir. 2012) (“[W]e are aware of no controlling authority holding that the full
adverse force of a medical opinion cannot be moderated favorably [toward the claimant]
unless the ALJ provides an explanation for extending the claimant such a benefit.”)
(brackets added in Keyes-Zachary)).
The one exception which works a detriment to Plaintiff is the ALJ’s determination
that Plaintiff is able to withstand moderate but not concentrated exposure to hazards. The
Physical RFC form expressing the medical consultants’ opinion explained that the
limitation to avoid even moderate exposure to hazards was because of a history of seizure
disorder. (R. 242); see also n.4 above. However, the ALJ explained that at the hearing
Plaintiff testified she was no longer under treatment for seizure activity. (R. 15). This is
a fact of which the medical consultants were unaware, and as the ALJ noted in her
decision, that fact justifies the difference in limitations. (R. 20-21). Plaintiff does not
argue that the record does not support this finding. Moreover, the ALJ explained that she
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required Plaintiff to avoid concentrated exposure to hazards because of neck and back
impairments and obesity, but in doing so she did not include Plaintiff’s history of seizure
disorder. (R. 20).
The ALJ stated that her RFC assessment was different from that of the state
agency medical consultants because of record evidence and testimony which was not
available to the state agency consultants. The record supports that finding. Plaintiff has
shown no error in the ALJ’s evaluation of the opinions of the state agency consultants.
IV.

Credibility Determination
In her next allegation of error, Plaintiff claims the ALJ failed “to apply appropriate

legal standards when evaluating Plaintiff’s subjective complaints.” (Pl. Brief. 23). In her
brief, she lays out the three-step framework for evaluating the credibility of a claimant’s
allegations of pain, as formulated by the Tenth Circuit in Luna, 834 F.2d 161, and argues
that the evidence shows Plaintiff has met the requirements of the first two steps of that
framework. (Pl. Brief 23-25). She claims that the ALJ was therefore required to apply
the third step of the framework and consider all of the evidence, both subjective and
objective, in determining whether her pain is in fact disabling. Id. at 25. She sets out six
factors which the Tenth Circuit provided in Luna and in Kepler v. Chater, 68 F.3d 387,
391 (10th Cir. 1995) which “are to be considered” in making the step-three determination.
(Pl. Brief 25). She then claims that “[i]nstead of examining relevant factors, the ALJ
focused on other factors,” and adopted the very position criticized in Luna, by relying on
the alleged absence of medical support for Plaintiff’s alleged level of pain. Id. Finally,
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she sets out her “analysis of the relevant factors” as sanctioned in Luna and Kepler, id.,
and argues that had the ALJ properly analyzed those factors she would have found
plaintiff’s allegation of disabling pain to be credible. Id. at 26-31.
The Commissioner argues that the ALJ properly applied the Luna standard, and
points out that the regulations provide factors for consideration in addition to the case law
factors when assessing the credibility of a claimant’s allegations of symptoms resulting
from her impairments. (Comm’r Br. 15) (citing 20 C.F.R. §§ 404.1529, 416.929).5 He
argues that substantial record evidence supports the ALJ’s credibility finding, and that the
finding should be affirmed. Id. at 16-18.
A,

Standard for Evaluating Credibility

As Plaintiff explains in her Brief, the Tenth Circuit has explained the analysis for
considering subjective testimony regarding symptoms. Thompson v. Sullivan, 987 F.2d
1482, 1488 (10th Cir. 1993) (dealing specifically with pain).
A claimant’s subjective allegation of pain is not sufficient in itself to
establish disability. Before the ALJ need even consider any subjective
evidence of pain, the claimant must first prove by objective medical
evidence the existence of a pain-producing impairment that could
reasonably be expected to produce the alleged disabling pain. This court
has stated: The framework for the proper analysis of Claimant’s evidence
of pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). We

5

The Commissioner cites to the 2012 edition of 20 C.F.R. (Comm’r Br. 15), but the
October 2010 and May 2011 amendments to the regulations are not relevant to the issues
presented here, and the 2010 edition of 20 C.F.R. contains the regulations applied by the
ALJ in this case. Rules and Regulations, Soc. Sec. Admin. 75 Fed. Reg. 62,676, 62,681,
62,683 (Oct. 13, 2010); Rules and Regulations, Soc. Sec. Admin. 76 Fed. Reg. 24,802,
24,807, 24,811-12 (May 3, 2011).
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must consider (1) whether Claimant established a pain-producing
impairment by objective medical evidence; (2) if so, whether there is a
“loose nexus” between the proven impairment and the Claimant’s
subjective allegations of pain; and (3) if so, whether, considering all the
evidence, both objective and subjective, Claimant’s pain is in fact disabling.
Thompson, 987 F.2d at 1488(citations and quotation omitted).
In evaluating symptoms at step three of the framework, the court has recognized a
non-exhaustive list of factors which should be considered. Luna, 834 F.2d at 165-66; see
also 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). These factors include:
the levels of medication and their effectiveness, the extensiveness of the
attempts (medical or nonmedical) to obtain relief, the frequency of medical
contacts, the nature of daily activities, subjective measures of credibility
that are peculiarly within the judgment of the ALJ, the motivation of and
relationship between the claimant and other witnesses, and the consistency
or compatibility of nonmedical testimony with objective medical evidence.
Kepler, 68 F.3d at 391 (quoting Thompson, 987 F.2d at 1489). The Commissioner has
promulgated regulations suggesting relevant factors which overlap and expand upon the
factors stated by the court: Daily activities; location, duration, frequency, and intensity of
symptoms; factors precipitating and aggravating symptoms; type, dosage, effectiveness,
and side effects of medications taken to relieve symptoms; treatment for symptoms;
measures plaintiff has taken to relieve symptoms; and other factors concerning limitations
or restrictions resulting from symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i-vii),
416.929(c)(3)(i-vii).
B.

Analysis

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As Plaintiff suggests, the ALJ at least implicitly recognized that the first two steps
of the Luna framework were met when she found that Plaintiff’s “impairments could
reasonably be expected to cause some of the alleged symptoms.” (R. 17). And, the
decision reveals that she made her credibility determination based upon all of the record
evidence. (R. 16-20). But, she determined that Plaintiff’s allegations regarding
limitations resulting from her symptoms “are not credible.” (R. 17). In reaching that
conclusion, the ALJ found that Plaintiff has a poor work history, that the medical record
does not support her allegations of disabling limitations ,id., that she has a tendency to
exaggerate her impairments, that she only occasionally took her prescribed medication,
that Plaintiff voluntarily quit, or quit showing up for work, at her jobs as a CNA (R. 19),
that she voluntarily limits her activities of daily living more than necessary, and that
“more often than not” she reported taking pain medication only “once or twice” a month.
(R. 20). Plaintiff does not assert that these findings are erroneous or are not supported by
record evidence. Rather, she implies that the facts considered by the ALJ are not
“relevant factors” as suggested by the court in Luna and Kepler and are unsanctioned
factors which should not be considered in evaluating credibility.
Plaintiff argues that by relying on the fact that the medical record does not support
Plaintiff’s allegations of disabling limitations, the ALJ adopted the position criticized in
Luna. In doing so, Plaintiff misunderstands Luna. In Luna, the court was confronted
with the plaintiffs’ allegations that the SSA was requiring objective medical evidence
demonstrating that pain was of disabling severity. 834 F.2d at 161. The SSA, on the
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other hand, argued that the decision maker first accepted the subjective allegations of pain
as true in order to determine whether they were “reasonably related” to the claimant’s
impairment, and that if the allegations met this nexus the decision maker would consider
all of the evidence, both objective and subjective, to determine whether the claimant’s
allegations were credible. Luna, 834 F.2d at 163. The court summarized Plaintiffs’
argument:
Plaintiffs argue that once a pain-producing impairment has been proven, the
Secretary, in primarily relying on objective medical evidence to determine
whether an impairment is “reasonably” likely to produce disabling pain,
places too great a burden on the claimant to demonstrate a causal
relationship between the impairment established and the severity of the pain
alleged.
Id. at 163-64.
The court recognized that the question before it was how tight a relation was
required between the impairment and the allegation of pain, and it determined that only a
loose nexus was required. Id. at 164. It explained, “if an impairment is reasonably
expected to produce some pain, allegations of disabling pain emanating from that
impairment are sufficiently consistent to require consideration of all relevant evidence.”
Id. (emphases in original). As the Luna court found, when the first two steps of the
framework are met, then all evidence must be considered, and that includes both
subjective and objective medical evidence. See, e.g. Thompson, 987 F.2d at 1488
(“considering all the evidence, both objective and subjective”). The medical evidence is
relevant to consideration of whether pain is disabling and, consequently, it was not error

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for the ALJ to consider it, along with the other relevant evidence, in determining the
credibility of Plaintiff’s allegations of disabling pain.
In discussing factors which should be considered in determining the credibility of
subjective allegations of disabling pain, the Luna court specifically recognized that the
Agency had also noted factors for consideration, and it went on to state that “no such list
can be exhaustive.” Luna, 834 F.2d at 166. Therefore, the Luna and Kepler list of
credibility factors is not a list of “sanctioned” factors which are of greater importance
than any other factors in evaluating the credibility of Plaintiff’s allegations. Rather, it is a
demonstrative list of the types of factors which might be relevant to a credibility
determination in a particular case. Plaintiff does not argue that the factors discussed by
the ALJ are not relevant to a determination of the credibility of her allegations, she
merely implies that they are not as important as is her demonstration of a “proper”
analysis of the factors listed in Luna and Kepler.
As the court’s discussion makes clear, contrary to Plaintiff’s argument, the ALJ
applied the correct legal standard in evaluating the credibility of Plaintiff’s allegations of
pain resulting from her impairments. She determined at steps one and two of the Luna
framework that by objective medical evidence Plaintiff established pain-producing
impairments of degenerative disc disease, obesity, fibromyalgia, and carpal tunnel
syndrome; and that there is a “loose nexus” between those impairments and Plaintiff’s
subjective allegations of pain. Then, as is required by the third step of the Luna
framework, she considered all of the record evidence to determine whether the allegations
26

are credible. She stated her reasons for finding Plaintiff’s allegations not credible, and
those reasons are supported by the record evidence.
An ALJ’s credibility determinations 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 the
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).
Plaintiff has not shown a sufficient reason not to defer to the ALJ’s credibility
determination in this case. The “analysis of the relevant factors” presented in Plaintiff’s
Brief merely seeks to have the court reweigh the evidence and substitute its judgment for
that of the ALJ, a request which is beyond its authority. Bowman, 511 F.3d at 1272;
accord, Hackett, 395 F.3d at 1172.
The starting point in the court’s review is the rationale presented in the
Commissioner’s decision and not what another party, or even the court, might view as a
“proper” weighing of the evidence. 42 U.S.C. § 405(g). Plaintiff should focus on
pointing out the error in the Commissioner’s analysis, not on explaining what a “proper”
analysis would reveal. “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
27

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).
Plaintiff has shown no error in the ALJ’s weighing of the opinion evidence or in
her credibility determination. Therefore, Plaintiff’s claim that the RFC assessment is not
supported by substantial evidence must also fail because it is based only on those
arguments.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the final decision of the
Commissioner.
Dated this 8th day of March 2013, at Kansas City, Kansas.

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

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