Magner v. Berryhill

Filing 8

MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Sam A. Crow on 5/17/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GARY L. MAGNER,
Plaintiff,
vs.

Case No. 16-4112-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits and supplemental security income payments.
The matter has been fully briefed by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).
1

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
1

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

The determination of 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 really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).
2

The claimant's physical or

mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
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If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On November 6, 2014, administrative law judge (ALJ) Rhonda

Greenberg issued her decision (R. at 148-158).

Plaintiff

alleges that he has been disabled since April 23, 2012 (R. at
148).

Plaintiff is insured for disability insurance benefits
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through September 30, 2014 (R. at 150).

At step one, the ALJ

found that plaintiff did not engage in substantial gainful
activity since the alleged onset date (R. at 150).

At step two,

the ALJ found that plaintiff had a severe combination of
impairments (R. at 150).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 153).

After determining plaintiff’s RFC (R. at 153), the

ALJ found at step four that plaintiff is unable to perform any
past relevant work (R. at 156).

At step five, the ALJ found

that plaintiff could perform other jobs that exist in
significant numbers in the national economy (R. at 156-157).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 157).
III.

Did the ALJ err in her evaluation of the medical opinion

evidence?
The opinions of physicians, psychologists, or psychiatrists
who have seen a claimant over a period of time for purposes of
treatment are given more weight than the views of consulting
physicians or those who only review the medical records and
never examine the claimant.

The opinion of an examining

physician is generally entitled to less weight than that of a
treating physician, and the opinion of an agency physician who
has never seen the claimant is entitled to the least weight of
all.

Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
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When a treating source opinion is inconsistent with the other
medical evidence, the ALJ’s task is to examine the other medical
source’s reports to see if they outweigh the treating source’s
reports, not the other way around.

Treating source opinions are

given particular weight because of their unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations.

If an ALJ

intends to rely on a nontreating physician or examiner’s
opinion, he must explain the weight he is giving to it.
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

Hamlin

The ALJ must

provide a legally sufficient explanation for rejecting the
opinion of treating medical sources in favor of non-examining or
consulting medical sources.

Robinson, 366 F.3d at 1084.

A treating physician’s opinion about the nature and
severity of the 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.
Castellano v. Secretary of Health & Human Services, 26 F.3d
1027, 1029 (10th Cir. 1994); 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2).

When a treating physician opinion is not given

controlling weight, the ALJ must nonetheless specify what lesser
weight he assigned the treating physician opinion.
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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
following factors:
(1) the length of the treatment relationship and the 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.
Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003).
After considering the above factors, the ALJ must give good
reasons in his/her decision for the weight he/she ultimately
assigns the opinion.

If the ALJ rejects the opinion completely,

he/she must then give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.
Dr. Zhuang, plaintiff’s treating physician,2 filled out a
questionnaire on September 13, 2013.

He opined that plaintiff

could sit for 4 hours and stand/walk for 4 hours in an 8 hour
workday.

She needs to continuously get up and move around,

would need approximately 2 hours before she could sit again, and
it would be necessary or recommended that she not stand/walk
2

Dr. Zhuang indicated that plaintiff began treatment with him on November 24, 2010, and that he had been seeing
him every six months. He last saw him on September 12, 2013, the day before he filled out the questionnaire (R. at
1077, 1084).
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continuously in a work setting.
pounds.

She can lift/carry over 50

She has significant limitations in doing repetitive

reaching, handling, fingering or lifting.

Dr. Zhuang then

stated that plaintiff has no limitations in grasping, turning,
or twisting objects, no limitation in using his fingers or hand
for fine manipulations, and no limitations in reaching (R. at
1079-1081).
Dr. Zhuang further indicated that plaintiff can do a full
time competitive job that requires keeping the neck in a
constant position on a sustained basis.

However, her pain,

fatigue or other symptoms are severe enough to interfere with
attention and concentration frequently to constantly.

He also

found that plaintiff is capable of high stress work.

Plaintiff

will need periods of rest of 15-20 minutes before returning to
work, and plaintiff will miss work more than 3 times a month due
to impairments or treatment.

Plaintiff should also not do any

kneeling, bending or stooping (R. at 1081-1083).
The ALJ stated that she basically agreed with Dr. Zhuang’s
opinion that plaintiff can perform some type of basic work
activity.

The ALJ then stated:
…there are some inconsistencies within this
report. For example, Dr. Zhuang notes the
claimant has significant limitations in
repetitive reaching, handling or fingering,
but later in this report, he indicated the
claimant had no limitations in grasping,
turning, twisting objects, using his
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finger/hands for fine manipulation or using
his arms for reaching (including overhead).
Thereby, this report is given partial
weight.
(R. at 155).
The record also contains a RFC report from Dr. Listerman,
dated September 9, 2013.

Dr. Listerman did not examine or treat

the patient, but reviewed the medical records.

Dr. Listerman

opined that plaintiff could sit for 6 hours, and stand/walk for
6 hours in an 8 hour workday.

He opined that he had some

postural, manipulative and environmental limitations (R. at 236240).

The ALJ gave substantial weight to the opinions of Dr.

Listerman (R. at 155).
Plaintiff argues that the ALJ failed to adopt most of the
physical limitations described by Dr. Zhuang or explain why such
findings were rejected.

This includes Dr. Zhuang’s opinion that

plaintiff can only sit for 4 hours a day and stand/walk for 4
hours a day; that his pain, fatigue or symptoms were severe
enough to frequently to constantly interfere with attention and
concentration; and that he would miss more than 3 days of work
per month because of his impairments or treatment (Doc. 4 at 18;
R. at 1079, 1082, 1083).
In his opinion, the ALJ stated that there were some
inconsistencies in the record, and gave the example of Dr.
Zhuang’s inconsistent statements regarding plaintiff’s ability

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to reach, handle and finger, as set forth above.

The ALJ stated

that because of the inconsistencies, the report was only given
partial weight.

The ALJ noted that he agreed with Dr. Zhuang

that plaintiff can perform some type of basic work activity (R.
at 155).
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.

Hackett v. Barnhart, 395

F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).

Although the court will

not reweigh the evidence, the conclusions reached by the ALJ
must be reasonable and consistent with the evidence.

See Glenn

v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must
affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as
adequate to support a conclusion).
the sufficiency of the evidence.

The court can only review

Although the evidence may

support a contrary finding, the court cannot displace the
agency’s choice between two fairly conflicting views, even
though the court may have justifiably made a different choice
had the matter been before it de novo.

Oldham v. Astrue, 509

F.3d 1254, 1257-1258 (10th Cir. 2007).
Medical evidence may be discounted if it is internally
inconsistent or inconsistent with other evidence.
Astrue, 500 F.3d 1074, 1078 (10th Cir. 207).
10

Pisciotta v.

The ALJ, because of

inconsistencies within Dr. Zhuang’s report, including one set
forth by the ALJ, only gave partial weight to his opinion.
There clearly is an inconsistency in Dr. Zhuang’s report when he
stated that plaintiff has ”significant” limitations in doing
repetitive reaching, handling, fingering or lifting, and then
states that plaintiff has “no” limitations in grasping, turning,
or twisting objects; using fingers/hands for fine manipulations;
or using his arms for reaching, including overhead.

It is not

unreasonable for the ALJ to discount not only Dr. Zhuang’s
opinions regarding plaintiff’s manipulative limitations because
of this inconsistency; this inconsistency could also serve as a
valid basis for the ALJ to discount other limitations contained
in Dr. Zhuang’s report as well.

It is not for this court to

reweigh the evidence or substitute its judgment for that of the
ALJ.
Furthermore, other portions of Dr. Zhuang’s report also
appear to be inconsistent.

The ALJ indicated that:

-Plaintiff can sit for 4 hours and
stand/walk for 4 hours in an 8 hour workday.
-It is necessary or recommended that
plaintiff not sit continuously.
-Plaintiff must get up and move around
continuously.
-When plaintiff gets up and moves around, it
will be about 2 hours before plaintiff can
sit again.

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-It is necessary or medically recommended
that plaintiff not stand/walk continuously
in a work setting.
(R. at 1079-1080).

Thus, Dr. Zhuang’s report indicates that

when plaintiff gets up from sitting, it will be about 2 hours
before plaintiff can sit again.

However, Dr. Zhuang then states

that plaintiff not stand/walk continuously in a work setting.
Dr. Zhuang indicates that plaintiff can sit for 4 hours and
stand/walk for 4 hours in an 8 hour workday; he does not
indicate that plaintiff needs to lie down during the workday.
If plaintiff, when he gets up from sitting, needs to move around
or stand/walk for 2 hours before sitting again, that seems to
contradict Dr. Zhuang’s statement that plaintiff not stand/walk
continuously in a work setting.

Furthermore, if plaintiff has

to get up from sitting continuously, and stand or walk, and
cannot sit again for 2 hours, it is not at all clear how
plaintiff can sit for 4 hours in an 8 hour workday.

Therefore,

on its face, there do appear to be some inconsistencies in Dr.
Zhuang’s report which serve as a valid basis for discounting
many of the limitations contained in his report.

For this

reason, the court finds no error by the ALJ in her analysis of,
and the weight accorded to, Dr. Zhuang’s opinions.
IV.

Did the ALJ err in her credibility analysis?
Credibility determinations are peculiarly the province of

the finder of fact, and a court will not upset such
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determinations when supported by substantial evidence.

However,

findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the
guise of findings.
Cir. 1995).

Kepler v. Chater, 68 F.3d 387, 391 (10th

Furthermore, the ALJ cannot ignore evidence

favorable to the plaintiff.

Owen v. Chater, 913 F. Supp. 1413,

1420 (D. Kan. 1995).
When analyzing evidence of pain, the court does not require
a formalistic factor-by-factor recitation of the evidence.

So

long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility, the ALJ will be deemed to
have satisfied the requirements set forth in Kepler.

White v.

Barnhart, 287 F.3d 903, 909 (10th Cir. 2002); Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000).

Furthermore, the ALJ need

not discuss every relevant factor in evaluating pain testimony.
Bates v. Barnhart, 222 F. Supp.2d 1252, 1260 (D. Kan. 2002).

An

ALJ must therefore explain and support with substantial evidence
which part(s) of claimant’s testimony he did not believe and
why.

McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir.

2002).

It is error for the ALJ to use standard boilerplate

language which fails to set forth the specific evidence the ALJ
considered in determining that a claimant’s complaints were not
credible.
2004).

Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir.

On the other hand, an ALJ’s credibility determination
13

which does not rest on mere boilerplate language, but which is
linked to specific findings of fact fairly derived from the
record, will be affirmed by the court.

White, 287 F.3d at 909-

910.
In addition to the ALJ’s analysis of the medical records,
the ALJ noted records indicating some exaggeration of symptoms
and limitations (R. at 154, 714-715, 718, 745).

The ALJ also

noted plaintiff’s daily activities, including yard work, driving
long distances, moving parts in a garage, welding and making
wagons (R. at 155).

The medical records also indicate that

plaintiff told his medical providers that he was applying for
disability benefits and was not interested in employment (R. at
155, 1267).

Dr. Listerman found that plaintiff’s allegations of

restrictions appear only partially credible at best, and
specifically found that plaintiff’s allegations of limitations
for lifting, standing, walking, bending, and stair climbing are
not credible and are not supported by clinical findings (R. at
239-240).
The court will not reweigh the evidence.

Furthermore, the

court finds no clear error in the ALJ’s credibility analysis.
The court finds that the balance of the ALJ’s summary and
evaluation of the evidence and her credibility findings are
supported by substantial evidence in the record.

Branum v.

Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004)( “While we have
14

some concerns regarding the ALJ’s reliance on plaintiff’s
alleged failure to follow a weight loss program and her
performance of certain minimal household chores, we conclude
that the balance of the ALJ’s credibility analysis is supported
by substantial evidence in the record”).
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
§ 405(g).
Dated this 17th day of May 2017, Topeka, Kansas.

Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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