Artzer v. Social Security Administration, Commissioner of
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 decision. Signed by District Judge John W. Lungstrum on 03/17/2014. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TED L. ARTZER,
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security Disability (SSD) benefits under
sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423
(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.
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
Plaintiff applied for SSD, alleging disability beginning June 30, 1999. (R. 16, 56).
Plaintiff’s date last insured for SSD benefits was September 30, 2006. (R. 16, 553).2 At a
hearing on December 5, 2007, Plaintiff amended his onset date to June 15, 2004. (R.
520). Consequently, the relevant period for the court’s review of the question of
disability is June 15, 2004 through September 30, 2006. Plaintiff exhausted proceedings
before the Commissioner and in July 2008 sought judicial review of the Commissioner’s
decision denying benefits. Artzer v. Astrue, Case No. 10-4088-JAR (D. Kan. July 28,
2010) (Complaint). In proceedings before Judge Robinson of this court, the
Commissioner made a motion to remand, and the parties provided an “Agreed Order of
Reversal and Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g),” which the court
entered. Id. (D. Kan. Feb. 22, 2011) (Doc. 16); see also, (R. 572-73) (all further citation
to proceedings before Judge Robinson will be to copies of documents in the
administrative record of this case).
On remand, a new Administrative Law Judge (ALJ) held another hearing, and
issued another decision denying benefits. (R. 553-65). The Appeals Council declined to
assume jurisdiction of the ALJ’s decision and that decision became the “final decision of
the Commissioner of Social Security after remand by the court.” (R. 539-40). Plaintiff
timely filed another complaint seeking judicial review of that decision. (Doc. 1).
As cited, both ALJ decisions found that Plaintiff is insured for SSD benefits only
through September 30, 2006. Plaintiff does not allege error in this finding.
Plaintiff claims the ALJ erred in her RFC assessment because she improperly
evaluated the medical opinions, because the credibility determination is not supported by
the record, and because she did not perform a function-by-function discussion of
Plaintiff’s abilities before expressing the RFC in terms of the exertional levels of work.
He also claims the hypothetical question relied upon by the ALJ is not supported by the
record, and the ALJ did not properly apply the Medical-Vocational Guidelines.
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 she 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. Richardson v. Perales, 402 U.S. 389, 401 (1971);
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). 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; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th
Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a
determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether he
has a severe impairment(s), and whether the severity of his 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 RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step
four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform his
past relevant work; and at step five whether, when also considering the vocational factors
of age, education, and work experience, claimant is able to perform other work in the
economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
through four the burden is on Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord,
Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2.
At step five, the burden shifts to the Commissioner to show that there are jobs in the
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999). The court addresses each allegation of error presented in
Plaintiff’s Brief, but it begins by considering the credibility determination because
Plaintiff argues that the alleged error in the credibility findings demonstrates the error in
evaluating Dr. Winkler’s opinion.
The Credibility Determination
Plaintiff claims that the ALJ’s credibility determination is not supported by the
record. He argues that the record evidence supports the credibility of his allegations of
symptoms, and that the reasons relied upon by the ALJ to discount Plaintiff’s credibility
actually support it. The Commissioner argues that substantial evidence supports the
ALJ’s credibility determination. She points out that the question is not whether Plaintiff
experiences the symptoms complained of, but whether the severity of the symptoms is
disabling. She points to record evidence supporting each of the reasons given by the ALJ
to discount Plaintiff’s allegations.
The ALJ’s Credibility Findings
The ALJ noted that the first ALJ’s decision was issued after Plaintiff’s date last
insured and “contains a detailed analysis of the medical evidence during the relevant
period,” and that Plaintiff “has not submitted any new or material evidence [since then]
that relates or dates back to the relevant period,” and consequently the ALJ “adopted and
incorporat[ed] by reference the prior Administrative Law Judge’s summary and analysis
of the medical evidence” (R. 21-23) into her decision. (R. 558). She also summarized the
record evidence and hearing testimony in her decision. (R. 556-57, 558-63). In this
analysis, she included a summary and evaluation of Plaintiff’s allegations of disabling
symptoms resulting from his impairments, and determined that the allegations “are not
credible” (R. 558), and “are less than fully credible.” (R. 560).
The court discerns seven reasons given by the ALJ to discount Plaintiff’s
credibility: (1) “the objective evidence has been underwhelming and is not consistent
with allegations of severe and unremitting pain” (R. 560); (2) clinical signs and findings
were relatively normal during the relevant period, id.; (3) Plaintiff’s medical treatment
reveals that he responded well to carpal tunnel surgeries; that he was self-limiting during
physical therapy, and that he was using mostly over-the-counter pain medication;
(4) Plaintiff’s activities are inconsistent with disabling pain; (5) Plaintiff’s reports of
activities in the medical record, in his reports to the Social Security Administration, and at
the hearings have been inconsistent; (6) no physician opined that Plaintiff must lie down
during the day and Plaintiff’s function reports do not indicate such a need; and
(7) Plaintiff’s poor work history reflects negatively on his credibility. (R. 561).
As Plaintiff acknowledges, the court’s review of an ALJ’s credibility
determination is deferential. 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); but see Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir.
1993) (“deference is not an absolute rule”). Moreover, Plaintiff must demonstrate the
error in the ALJ’s rationale or finding; the mere fact that there is record 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. We may
not displace the agency’s choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the matter been before it de
novo.” Lax, 489 F.3d at 1084 (citations, quotations, and bracket omitted); see also,
Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966) (same). But, “[f]indings as
to credibility should be closely and affirmatively linked to substantial evidence and not
just a conclusion in the guise of findings.” Huston v. Bowen, 838 F.2d 1125, 1133 (10th
Cir. 1988). Therefore, where the ALJ reaches a reasonable conclusion that is supported
by substantial evidence in the record, the court will not reweigh the evidence and reject
that conclusion even if it might have reached a contrary conclusion in the first instance.
Much of Plaintiff’s credibility argument reflects merely that he views the evidence
in a different light than did the ALJ. For example, Plaintiff points out that the ALJ noted
that Plaintiff received reminders from his physicians to remain compliant with his
medications and that the “physicians questioned why he did not receive benefit from
Methotrexate and Sulfasalazine.” (Pl. Br. 39) (quoting R. 561). He argues that he
“should not be penalized and found less than credible because his physicians reminded
him of the importance of taking his medications properly,” or “because his medications
were not eff[ic]acious.” Id. While Plaintiff’s view of the evidence is permissible, that
does not make the ALJ’s view erroneous or unreasonable. Moreover, Plaintiff’s
argument looks at but two of the factors in the paragraph in which the ALJ discussed
Plaintiff’s medical treatment and determined as reason number 3 above that it did not
support the severity of symptoms alleged by Plaintiff.
In a similar vein, Plaintiff attacks the ALJ’s analysis of his daily activities and
alleges that the ALJ’s characterization of “frequent” visits with friends and family does
not comport with a function report wherein he stated that he did this “on the weekends.”
The court finds no merit in such a hypertechnical view of the evidence that weekly visits
cannot be characterized as frequent. Further, Plaintif argues that going fishing once a
month is not inconsistent with allegations of disability. While it is true that, considered in
isolation, fishing once a month is not conclusive of a finding of “no disability,” Plaintiff
ignores that “fishing once a month” was but one factor in a paragraph in which the ALJ
considered Plaintiff’s reports of numerous activities and concluded that when considered
in context with contemporaneous reports during the relevant period and reports that
Plaintiff keeps active around the house doing housework and yardwork, that considered in
totality, the activities are inconsistent with allegations of disabling pain.
Moreover, Plaintiff’s argument that his activities merely demonstrate the ability to
perform a limited daily routine does not square with the evidence as cited by the ALJ.
Plaintiff also argues that the ALJ chose to ignore much of the evidence, but the evidence
he cited in that regard was his own testimony. It is Plaintiff’s testimony which is the
object of a credibility determination, and although Plaintiff cites authority for the
proposition that an ALJ must consider all of the evidence, he does not provide authority
for the proposition that an ALJ must accept as true a claimant’s testimony when
considering the credibility of that claimant’s allegations of symptoms.
Plaintiff acknowledges that his performance in physical therapy was self-limited,
but he argues that the ALJ did not question him about that during the hearing, and did not
consider whether the “self-limiting” was due to pain. The court does not see the point of
this argument. The ALJ did not find that Plaintiff was malingering, so the court will
assume she found Plaintiff’s self-limitation was due to pain. However, the Tenth Circuit
has long recognized that the inability to work pain-free is not a sufficient reason to find a
claimant disabled. E.g., Qantu v. Barnhart, 72 F. App’x 807, 811 (10th Cir. 2003); James
v. Sullivan, No. 91-7075, 1992 WL 95466 (10th Cir. April 30, 1992).
Plaintiff also argues that relying on self-limitation was error, because before an
ALJ may rely upon a claimant’s failure or refusal to pursue treatment, she must apply the
four-factor Frey test. (Pl. Br. 42-43) (citing Frey v. Bowen, 816 F.2d 508, 517 (10th Cir.
1987). The Frey test is inapposite here because Plaintiff did not fail or refuse to pursue
treatment. Rather, he specifically participated in physical therapy but limited his effort in
performance during that therapy.
Plaintiff argues that the ALJ erred when she noted that “no physician has opined
that the claimant should lie down during the day. The two function reports during the
relevant period, dated October 13, 2004, and May 9, 2005, do not mention that the
claimant was lying down during the day.” He argues that the ALJ’s error is demonstrated
by the fact that one of the two function reports cited by the ALJ states that Plaintiff
watches “TV daily. Lay [sic] down on couch with pillows propped under my knees.”
(PL. Br. 45) (citing R. 125). The court cannot agree that error is shown. While Plaintiff
is correct that one function report demonstrates that he lies down when viewing TV, the
court finds no error, in context. The purpose of the ALJ’s credibility determination is to
evaluate the credibility of a claimant’s allegations of symptoms resulting from his
impairments. The essence of the ALJ’s finding is that the record evidence reveals no
medical need to lie down during the day, and the only thing demonstrated by the function
report cited by Plaintiff is that he chooses to watch TV lying down with pillows under his
knees. It does not suggest that Plaintiff lies down to rest or that lying down while
watching TV is a necessity. The ALJ’s finding that there is no medical need to lie down
is not error. Any error in failing to note that Plaintiff lies down to watch TV is harmless.
Finally, Plaintiff acknowledges that an ALJ may consider work history in the
credibility analysis, but implies that the ALJ erred in finding that his work history reflects
negatively on his credibility. He argues this is so because he worked occasionally at a
union job in which he was never hired full time with benefits, and that the rest of the time
he survived by drawing unemployment. (Pl. Br. 46). That is the very point of the ALJ’s
finding regarding work history. Many years of only occasional work performed at below
the level of substantial gainful activity, and otherwise relying on unemployment, suggests
low motivation to work, which suggests that Plaintiff’s allegations of disabling symptoms
are also not credible. The court finds no error in the ALJ’s credibility determination.
Evaluation of the Medical Opinions
Plaintiff claims the ALJ erred in weighing the medical opinions of his treating
physician, Dr. Dasaraju, and of Dr. Winkler, a rheumatologist who reviewed the medical
evidence and provided an opinion in response to written interrogatories propounded by
the ALJ in May 2011. He argues that the reasons given by the ALJ to discount Dr.
Dasaraju’s opinion are not legitimate and are not supported by the record evidence, but
that the record evidence, in fact, supports Dr. Dasaraju’s opinion. With regard to Dr.
Winkler’s opinion, Plaintiff argues that the physician’s opinion does not account for the
severity of Plaintiff’s pain and psoriatic arthritis, and that the evidence does not support
the weight accorded that opinion by the ALJ. The Commissioner argues that the ALJ
considered and properly evaluated the conflicting medical opinions of Dr. Dasaraju, Dr.
Winkler, and another physician who reviewed the record medical evidence, Dr.
Tawadros. She argues that the ALJ properly denied “controlling weight,” but accorded
“limited weight” to Dr. Dasaraju’s opinion, accorded no weight to Dr. Tawadros’s
opinion, and accorded “significant weight” to Dr. Winkler’s opinion, and that the record
evidence supports these findings.
The ALJ’s Evaluation of the Medical Opinions
As previously noted, the ALJ adopted the first ALJ’s summary and analysis of the
medical evidence (R. 21-23), and summarized the record evidence in her decision. (R.
556-62). She then explained her evaluation of and the weight she accorded to the medical
opinions of Dr. Winkler, Dr. Tawadros and Dr. Dasaraju as introduced above; Dr. Vopat,
a state agency physician who reviewed the record evidence and provided an opinion; and
Dr. White, an orthopedic surgeon who reviewed the medical evidence and provided an
opinion in response to written interrogatories propounded by the ALJ in April 2011. (R.
562-63). The ALJ accorded no weight to Dr. Tawadros’s opinion, “some weight” to Dr.
Vopat’s opinion, “limited weight” to the opinions of Dr. White and Dr. Dasaraju, and
“significant weight” to Dr. Winkler’s opinion. Plaintiff alleges error only in the ALJ’s
evaluation of the opinions of Dr. Dasaraju and of Dr. Winkler. Therefore, the court
accepts the ALJ’s evaluation of the opinions of Dr. Tawadros, Dr. Vopat, and Dr. White,
and considers them only in relation to its evaluation of the opinions of Dr. Dasaraju and
Legal Standard for Evaluating Medical Opinions
A treating physician’s opinion about the nature and severity of plaintiff’s
impairments should be given controlling weight by the Commissioner if it is 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, 130001 (10th Cir. 2003); 20 C.F.R. § 404.1527(d)(2). When a treating physician opinion is
not given controlling weight, the ALJ must nonetheless specify what lesser weight she
assigned the treating physician’s opinion. Robinson v. Barnhart, 366 F.3d 1078, 1083
(10th Cir. 2004).
In such a case, all medical opinions will be evaluated in accordance with factors
contained in the regulations. 20 C.F.R. § 404.1527(d); Soc. Sec. Ruling (SSR) 96-5p,
West’s Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2013). And, a treating source
opinion which is 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.” Watkins, 350 F.3d
at 1300. 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 . . . medical opinion[s] 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 regulatory factors, the ALJ must give good reasons
in his decision for the weight he ultimately assigns the opinions. If the ALJ rejects the
treating source opinion completely, he must give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.
The ALJ determined he could not accord controlling weight to Dr. Dasaraju’s
opinion because it was inconsistent with the opinions of Drs. Vopat, Winkler, and
Tawadros, and that determination is correct. An opinion may be given controlling weight
only if it is “not inconsistent with the other substantial evidence” in the record. 20 C.F.R.
§ 404.1527(d)(2); SSR 96-2p, West’s Soc. Sec. Reporting Serv., Rulings 112 (Supp.
2012). Therefore, the threshold for denying controlling weight is low. SSR 96-2p
explains that “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. 2013). As that ruling explains, 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 conclusion that is
contrary to the conclusion expressed in the medical opinion.” Id.
Because the opinion of either Dr. Vopat, Dr. Winkler, or Dr. Tawadros is a
medical opinion of both a medical expert and an expert in evaluating disability pursuant
to the Social Security Act and regulations, each opinion is relevant evidence which a
reasonable mind would accept as adequate to support a conclusion that is contrary to Dr.
Dasaraju’s opinion. Therefore Dr. Dasaraju’s opinion is inconsistent with the other
substantial evidence in the case record and may not be accorded controlling weight.
Having determined that Dr. Dasaraju’s opinion is inconsistent with other
substantial evidence in the record, the ALJ articulated six additional reasons to discount
Dr. Dasaraju’s opinion. (1) The opinion is vague as to the onset of the limitations
assessed. (R. 563). (2) The opinion that Plaintiff is limited to “sedentary sit down desk
type work” (R. 512), is an opinion regarding RFC which is an issue reserved to the
Commissioner. (R. 563). (3) There is nothing in the record to support a restriction to
sedentary work. Id. (4) Dr. Winkler opined that Plaintiff was able to lift at least twenty
pounds, and was able to stand and walk over six hours in a workday. Id. (5) The
evidence does not support limitations in Plaintiff’s use of his hands and arms. Id. And,
(6) Dr. Dasaraju’s progress notes do not support his retrospective opinion. Id.
Plaintiff argues error in reason (2), noting that even opinions regarding issues
reserved for the Commissioner may not be ignored and must be evaluated in accordance
with factors contained in the regulations. (Pl. Br. 32) (citing SSR 96-5p). Plaintiff is
correct that Dr. Dasaraju has “an absolute right” to express an RFC opinion, but such
opinions will not be given any special significance or controlling weight. 20 C.F.R.
§ 404.1527(e)(2 & 3); SSR 96-5p, West’s Soc. Sec. Reporting Serv. 123-24 (Supp. 2013);
SSR 96-8p, West’s Soc. Sec. Reporting Serv. 150, n.8 (Supp. 2013). Therefore, it is not
error for an ALJ to note while weighing such an opinion that it is on an issue reserved to
the Commissioner, and to discount it, in part, on that basis.
Plaintiff argues that the ALJ’s finding that “there is nothing in the record to
support a restriction to ‘sedentary’ work,” is contrary to the ALJ’s own finding in the
same paragraph that “there is evidence of disorganization of motor functioning.” (Pl. Br.
32) (quoting R. 563) (emphasis in Pl. Br.). While Plaintiff’s argument is literally correct,
in context it is clear that the decision contains a typographical error, and the ALJ’s
finding actually was that there is no evidence of disorganization of motor functioning.
Twice in the decision prior to making the statement which Plaintiff quotes, the
ALJ noted that there is no evidence of disorganization of motor function. First, when
explaining her step three analysis the ALJ found that “there is no evidence that the
claimant’s diabetes resulted in end organ damage such as neuropathy with persistent
disorganization of motor function.” (R. 557) (emphases added). Later, when
summarizing the record evidence in her RFC assessment, the ALJ discussed the evidence
relating to diabetes and stated once again that “there is no evidence during the relevant
period consistent with the claimant’s testimony of significant pain or numbness in the
bilateral feet resulting in disorganization of motor function.” (R. 559) (emphases added).
In light of these earlier findings, it would be unusual indeed when explaining that “there
is nothing in the record to support a restriction to ‘sedentary’ work” for the ALJ to find
for the first time that “there is evidence of disorganization of motor functioning.” (R.
563) (emphasis added).
The court’s understanding is supported by the context and organization of the
ALJ’s conclusion. Her explanation in its entirety is presented here:
Additionally, I note that there is nothing in the record to support a
restriction to “sedentary” work. As noted above, the claimant’s gait and
station has remained steady and intact (Ex. 2F [(R. 142-43)]). There is no
evidence of joint instability from the arthritis in the claimant’s knees.
Although the claimant had some numbness in his right foot from his
neuropathy, there is evidence of disorganization of motor functioning.
Quite simply, the medical evidence of record does not reflect that the
claimant was unable to do the standing, walking and lifting typically
required of light work.
The statement that “there is evidence of disorganization of motor functioning”
simply does not fit within this paragraph. The paragraph lists examples of evidence
which will not support a restriction to sedentary work; such as, gait and station is steady
and intact; and no joint instability in the knees. Logically, the next sentence fits in this
list only if it refers to no disorganization of motor function.
Moreover, the structure of the sentence in which the clause regarding
disorganization of motor functioning appears requires that there be no evidence of
disorganization of motor functioning. Logically, “some numbness in his right foot from
his neuropathy” would suggest that there might also be disorganization of motor
functioning. However, the sentence begins with the contrasting conjunction “although,”
meaning “regardless of the fact that;” The Am. Heritage Coll. Dict. 42 (4th Ed. 2002);
and suggesting that the second clause is not expected to follow logically from, but is in
contrast with the premise of the first clause. Therefore, the first clause, “Although the
claimant has some numbness in his right foot from his neuropathy,” should be in contrast
to the second clause. As written “there is evidence of disorganization of motor
functioning” flows from and confirms the premise of the first clause rather than
contrasting with it or being “regardless of” it. On the other hand, the thought that there is
no evidence of disorganization of motor functioning would properly fill the expected
second clause position, contrast with, be regardless of, and not logically follow from the
premise of the first clause--that Plaintiff has some numbness from neuropathy. In the
context of the sentence, the paragraph, and the entire decision, there can be no doubt that
the ALJ found no evidence of disorganization of motor functioning.
Plaintiff argues that it was error for the ALJ to rely upon Dr. Winkler’s finding that
Plaintiff could stand and walk more than six hours in a work day because “she previously
found against Dr. Winkler for failing to find that Plaintiff suffers from psoriatic arthritis.”
(Pl. Br. 33). Plaintiff’s argument fails for two reasons. First, he cites no authority for the
proposition that an ALJ might reject certain opinions of a physician while accepting her
other opinions. While it is true that an ALJ may not “pick and choose among medical
reports, using portions of evidence favorable to h[er] position while ignoring other
evidence;” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012); that is not
what happened here. Here, the ALJ recognized both portions of Dr. Winkler’s opinion,
and explained her findings with regard to both.
Second, the record does not reveal that the ALJ “found against Dr. Winkler for
failing to find that Plaintiff suffers from psoriatic arthritis,” as suggested by Plaintiff. The
ALJ accorded significant weight to Dr. Winkler’s opinion, and she did not reject the
physician’s opinion that Plaintiff did not have psoriatic arthritis. Here is the ALJ’s entire
discussion regarding the finding of psoriatic arthritis:
Furthermore, the claimant’s physicians made a possible diagnosis of
psoriatic arthritis (Ex. B7F/108, 109). The claimant was prescribed
Methotrexate and Sulfasalazine (Ex. B7F/109). I note that subsequent
physicians, including Nancy Nowlin, M.D., a rheumatologist, have
questioned the diagnosis of psoratic arthritis. Specifically, Dr. Nowlin
noted that the objective studies and the claimant’s clinical presentation were
most consistent with osteoarthritis and not psoriatic arthritis (Ex. B9F/3637; BI2F/116). Anne Winkler, M.D., a board certified rheumatologist, also
opined that the claimant does not have psoriatic arthritis (Ex. B11F).
However, I have given the claimant the benefit of the doubt and have
included psoriatic arthritis as a severe, medically determinable impairment.
(R. 560). The ALJ did not reject Dr. Winkler’s opinion regarding psoriatic arthritis.
Rather, she gave Plaintiff the benefit of the doubt in that regard. There is no error in the
ALJ’s decision to fully credit Dr. Winkler’s opinion that Plaintiff can stand and walk
more than six hours in a work day while also giving Plaintiff the benefit of the doubt (a
very generous benefit in the circumstances) that he has psoriatic arthritis.
In a similar rationale, Plaintiff argues that it was error to decide that Dr. Dasaraju’s
opinion was not worthy of controlling weight in part because it is inconsistent with Dr.
Tawadros’s opinion, while at the same time purporting to accord “no weight” to Dr.
Tawadros’s opinion. Again, this is not error. As Plaintiff suggests, the ALJ accorded no
weight to Dr. Tawadros’s opinion, and Plaintiff points to no portion of that opinion upon
which the ALJ relied in assessing Plaintiff’s RFC. With regard to affording controlling
weight to Dr. Dasaraju’s opinion, the ALJ stated that it could not be done because the
opinion was inconsistent with Dr. Tawadros’s opinion (among others).
Controlling weight is required to be given to the opinion of a treating physician if
that opinion is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in the case record.
Watkins, 350 F.3d at 1300; see also 20 C.F.R. § 404.1527(d)(2). Here, the opinion could
not be afforded controlling weight because it did not meet the second requirement--it was
inconsistent with Dr. Tawadros’s opinion. That determination does not rest on the further
question of what weight is given to Dr. Tawadros’s opinion. The first question is whether
the treating source opinion is worthy of controlling weight. It is not until that question is
answered in the negative that the ALJ must consider all of the medical opinions and
decide the relative weight of which they are worthy. Id. 350 F.3d at 1300-01; see also 20
C.F.R. § 404.1527(d). The ALJ followed the correct standard here. He determined Dr.
Dasaraju’s opinion could not be given controlling weight because it was inconsistent with
Dr. Tawadros’s opinion--which is other substantial evidence in the record. Then, he
weighed Dr. Tawadros’s opinion and determined it was worthy of no weight. That
determination does not change the fact that Dr. Tawadros’s opinion is “such relevant
evidence as a reasonable mind would accept as adequate to support a conclusion that is
contrary to the conclusion expressed in [Dr. Dasaraju’s] medical opinion.” SSR 96-2,
West’s Soc. Sec. Reporting Serv., Rulings 113 (Supp. 2013).
Plaintiff’s claim that the ALJ accorded too much weight to Dr. Winkler’s opinion
rests on his earlier arguments that the ALJ erred in considering Plaintiff’s daily activities,
and that the ALJ erred in according significant weight to Dr. Winkler’s opinion that
Plaintiff does not have psoriatic arthritis. Because the court has already addressed these
issues and determined that they do not constitute error, Plaintiff has not shown error in the
weight accorded Dr. Winkler’s opinion. The ALJ stated that she had accorded significant
weight to Dr. Winkler’s opinion because (1) Dr. Winkler reviewed the entire medical
record from the relevant period, (2) the opinion is “generally consist” with other opinions
including Dr. Vopat’s opinion, (3) Dr. Winkler is a board-certified rheumatologist, and
(4) the opinion is well-supported by the clinical signs and findings and (5) by claimant’s
daily activities. Plaintiff has shown no error in the ALJ’s rationale, and the court finds
that it is supported by the record evidence. Plaintiff has shown no error in the evaluation
of the medical opinions.
Further Errors in Assessing RFC
Plaintiff also argues that the ALJ failed to express Plaintiff’s RFC on a function-
by-function basis before expressing it in terms of the exertional basis of light work, and
that the ALJ’s hypothetical presented to the vocational expert is not supported by the
record. Neither argument has merit.
With regard to her RFC assessment, the ALJ specifically discussed and
summarized the record evidence, considered the credibility of Plaintiff’s allegations, and
weighed the opinion evidence. (R. 556-63). Moreover, she specifically explained her
function-by-function assessment of Plaintiff’s capabilities:
Although the claimant’s allegations of total disability are not fully credible,
I find the claimant’s impairments require a reduction of the residual
functional capacity. Based on the totality of evidence, I find the claimant
was capable of performing less than the full range of light work (i.e., lifting,
carrying, pushing, or pulling twenty pounds occasionally and ten pounds
frequently; standing and walking six hours in an eight hour day and sitting
for six hours in an eight hour workday). The claimant remained able to
climb ramps and stairs occasionally, but he was not able to climb ladders or
scaffolds secondary to his arthritis in the shoulders. However, he remained
able to occasionally crawl and frequently balance, stoop, kneel and crouch.
Additionally, due to his carpal tunnel syndrome, the claimant could
frequently reach, handle, finger, feel, push and pull with his hands
bilaterally. However, the claimant could only occasionally reach overhead
with the left upper extremity due to his arthritis in the shoulders.
Furthermore, the claimant was limited to frequent operation of foot controls
bilaterally secondary to his diabetic neuropathy. Additionally, the claimant
could frequently tolerate exposure to moving mechanical parts; dusts odors,
fumes and pulmonary irritants and vibration. He would also be able to
tolerate frequent operation of a motor vehicle. However, the claimant could
only occasionally tolerate exposure to humidity and wetness and extremes
of heat and cold secondary to his overall complaints of arthritis in several
joints. Finally, the claimant would be precluded from any exposure to
unprotected heights due to his obesity and neuropathy. Weighing all
relevant factors, I find that claimant’s subjective complaints do not warrant
any additional limitations beyond those established in the residual
functional capacity previously outlined in this decision.
(R. 561-62). The ALJ also stated her RFC assessment on a function-by-function basis in
finding number five:
After careful consideration of the entire record, I find that, through
the date last insured, the claimant had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) in that the claimant
could lift and carry twenty pounds occasionally and ten pounds frequently.
The claimant could stand and walk for six hours in an eight-hour day and he
could sit for six hours in an eight-hour day. The claimant could frequently
reach, handle, finger, feel, push and pull with his hands bilaterally.
However, the claimant could only occasionally reach overhead with the left
upper extremity. The claimant retained the ability to frequently operate foot
controls. Although the claimant was unable to climb ladders or scaffolds,
he could occasionally climb stairs and ramps. The claimant could
occasionally crawl and frequently balance, stoop, kneel and crouch.
Additionally, the claimant could frequently tolerate exposure to moving
mechanical parts, dusts, odors, fumes and pulmonary irritants and vibration.
He would also be able to tolerate frequent operation of a motor vehicle.
However, the claimant could only occasionally tolerate exposure to
humidity and wetness and extremes of heat and cold. Finally, the claimant
would be precluded from any exposure to unprotected heights.
(R. 557-58) (bolding omitted). Both of these quotations illustrate the ALJ’s identification
of Plaintiff’s functional limitations on a function-by-function basis. Plaintiff points to no
functional limitation which has been erroneously omitted from or erroneously included in
the ALJ’s consideration.
To the extent Plaintiff may be arguing that it was error for the ALJ to state in each
of these paragraphs that she found Plaintiff able to perform a range of light work before
she stated in the same paragraph the function-by-function limitations she assessed for
Plaintiff, the court finds no error. Once again, Plaintiff relies upon a hypertechnical
reading of the ruling. To be sure, SSR 96-8p, as cited by Plaintiff states that an RFC may
be expressed in terms of the exertional levels of work only after the limitations are
expressed on a function-by-function basis. SSR 96-8p, West’s Soc. Sec. Reporting Serv.
143 (Supp. 2013). However, the ruling clarifies that the function-by-function assessment
is necessary before evaluating steps four and five of the sequential evaluation process in
order to preclude the introduction of errors at those steps by applying exertional levels
without considering each and every functional limitation. SSR 96-8p, West’s Soc. Sec.
Reporting Serv. 145-47 (Supp. 2013). Here Plaintiff cannot show that a function-byfunction assessment was not made, and she does not argue that the ALJ failed to consider
and apply any particular functional limitation.
Plaintiff’s argument that the hypothetical question presented to the vocational
expert is not supported by the record, rests upon his assertion that “Plaintiff’s true RFC
opined by Dr. Dasaraju was improperly rejected by the ALJ.” (Pl. Br. 48). Because the
court found no error in the ALJ’s evaluation of Dr. Dasaraju’s medical opinion, Plaintiff’s
argument of error based thereon cannot stand. Plaintiff has shown no error in the ALJ’s
assessment of Plaintiff’s RFC.
Application of the Medical-Vocational Guidelines
Plaintiff’s argument with regard to application of the Medical-Vocational
Guidelines is also predicated upon the fact that “Dr Dasaraju opined Plaintiff has been
limited to sedentary work.” (Pl. Br. 49). Again, because the court found no error in the
ALJ’s evaluation of Dr. Dasaraju’s medical opinion, Plaintiff’s argument of error based
thereon cannot stand. Plaintiff has shown no error in the decision at issue.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s decision.
Dated this 17th day of March 2014, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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