Barthelman v. Social Security Administration, Commissioner of et al

Filing 29

MEMORANDUM AND ORDER: Defendants decision denying Plaintiff disability benefits is AFFIRMED. Signed by District Judge Julie A. Robinson on 1/8/2014. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ZACHARY LEE BARTHELMAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil No. 12-1349-JAR

MEMORANDUM AND ORDER
This matter is before the Court for review of the final decision of Defendant
Commissioner of Social Security denying Plaintiff Zachary Barthelman’s applications for
disability benefits under Title II of the Social Security Act,1 and supplemental security income
benefits under Title XVI of the Social Security Act.2 Because the Court finds that Defendant
Commissioner’s findings are supported by substantial evidence, the Court affirms the decision of
the Defendant Commissioner.
I.

Procedural History
On August 12, 2008, Plaintiff protectively applied for a period of disability, disability

insurance benefits and supplemental security income benefits. His application claimed an onset
date of July 16, 2008; and he was last insured for disability insurance benefits on June 30, 2009.
Plaintiff’s application was denied initially and upon reconsideration. Plaintiff timely requested a

1

42 U.S.C. §§ 401–434.

2

42 U.S.C. §§ 1381–1383f.

1

hearing before an administrative law judge (“ALJ”). After a hearing, the ALJ issued a decision
finding that Plaintiff was not disabled; the Appeals Council denied Plaintiff’s request for review
of the ALJ’s decision. Plaintiff then timely sought judicial review before this Court.
II.

Standard for Judicial Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether Defendant’s decision is

supported by substantial evidence in the record as a whole and whether defendant applied the
correct legal standards.3 The Tenth Circuit has defined “substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”4 In the course
of its review, the court may not reweigh the evidence or substitute its judgment for that of
Defendant.5
III.

Legal Standards and Analytical Framework
Under the Social Security Act, “disability” means the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental
impairment.”6 An individual “shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.”7 The Secretary has

3

See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec’y of Health &
Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)).
4

Id. (quoting Castellano, 26 F.3d at 1028).

5

Id. (citation omitted).

6

42 U.S.C. § 423(d)(1)(A); § 416(i); § 1382c(a)(3)(A).

7

Id. § 423(d)(2)(A); § 1382c(a)(3)(B).

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established a five-step sequential evaluation process to determine whether a claimant is
disabled.8 If the ALJ determines the claimant is disabled or not disabled at any step along the
way, the evaluation ends.9
Plaintiff does not challenge the ALJ’s determination at step one that Plaintiff has not
engaged in substantial gainful activity10 since July 16, 2008, the alleged onset date. Nor does
Plaintiff challenge the ALJ’s determination at step two that Plaintiff has medically “severe”
impairments: major depressive disorder with elements of bipolar disorder; anxiety disorder;
panic disorder; polysubstance abuse in recent remission; and osteopenia.
But Plaintiff challenges the ALJ’s determination: (1) at step three that Plaintiff’s
impairments did not meet or equal a listing; (2) of Plaintiff’s Residual Functional Capacity
(RFC) at step four based on the ALJ’s erroneous evaluation of the medical evidence, including
his erroneous failure to give controlling weight to the opinion of Plaintiff’s treating physician
and his erroneous evaluation of Plaintiff’s credibility; and (3) at step five based on the ALJ’s
erroneous hypothetical question to the vocational expert, tainted by the ALJ’s errors in steps
three and four of the analysis.
IV.

Discussion
A. Plaintiff’s Impairments Did not Meet Listings 12.04 and 12.06
Plaintiff contends that the ALJ erred in determining that Plaintiff’s mental impairments,

considered singly and in combination, did not meet or equal the criteria for Listings 12.04 and

8

Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993) (citations omitted).

9

Id. (citations omitted).

10

See Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988).

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12.06.11 Plaintiff has the burden at step three of demonstrating, through medical evidence, that
his impairments “meet all of the specified medical criteria” contained in a particular listing.12
Moreover, “[w]hether the findings for an individual’s impairment meet the requirements of an
impairment in the listings is usually more a question of medical fact than a question of medical
opinion . . . [i]n most instances, the requirements of listed impairments are objective, and
whether an individual’s impairment manifests these requirements is simply a matter of
documentation.”13 As discussed further, the Court finds that the ALJ properly found that
Plaintiff failed to meet his burden of proving, through medical evidence, that his impairments
met or equaled either Listing 12.04 or 12.06.
Listing 12.04, Affective Disorders,14 requires a showing that claimant’s impairments
either meet the requirements of paragraphs A and B, or meet the requirements of paragraph C.
And Listing 12.06 (Anxiety Related Disorders),15 requires a showing that claimant’s impairments
either meet the requirements of paragraphs A and B, or meet the requirements of paragraph A
and C.
With respect to both Listings 12.04 and 12.06, paragraph B requires that the claimant
have at least two of the following: marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining concentration,

11

See Doc. 19 at 4–5; Doc. 10–2 at 15.

12

See Riddle v. Halter, 10 F. App’x 665, 667 (10th Cir. March 22, 2001) (quoting Sullivan v. Zebley, 493
U.S. 521, 530 (1990)).
13

Avery v. Astrue, 313 F. App’x 114, 121–22 (10th Cir. 2009) (quoting SSR 96-5p, 1996 WL 374183, at *3
(July 2, 1996)).
14

See 20 C.F.R. 404, Subpt. P, App. 1 at 12.04 (2013).

15

See id. at 12.06.

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persistence or pace; or repeated episodes of decompensation, each of extended duration.16 But,
the ALJ found that Plaintiff had only moderate difficulties in activities or daily living,
maintaining social functioning and maintaining concentration, persistence or pace; and further
found that Plaintiff had experienced only one to two episodes of decompensation each of
extended duration, fewer than the requisite three such episodes within one year, or an average of
once every four months for a duration of at least two weeks.17
And, with respect to Listing 12.04, paragraph C requires that the claimant have:
C. Medically documented history of a chronic affective disorder of at least 2
years’ duration that has caused more than a minimal limitation of ability to do
basic work activities, with symptoms or signs currently attenuated by medication
or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate;
or
3. Current history of 1 or more years’ inability to function outside a highly
supportive living arrangement, with an indication of continued need for
such an arrangement.18
With respect to Listing 12.06, the paragraph C criterion is simpler, the mental disorder is one
“[r]esulting in complete inability to function independently outside the area of one’s home.”19
But, with regard to paragraph C, the ALJ found that there is no evidence that Plaintiff has
an inability to function outside a highly supportive living arrangement, nor that he has a residual

16

Id.

17

Doc. 10–2 at 15.

18

20 C.F.R. 404, Subpt. P, App. 1 at 12.04 (2013).

19

Id. at 12.06.

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disease process that would result in decompensation due to even a slight increase in mental
demands or change in environment, nor a history of at least one year’s inability to function
outside a highly supportive environment or a complete inability to function independently
outside of the home.20
Plaintiff contends that the ALJ erred in failing to give controlling weight to the opinions
of his treating psychologist, Dr. Goodman, whose opinions, if credited, would have provided
substantial evidence that Plaintiff meets the requirements of paragraphs B and C and thus meets
or equals Listings 12.04 and 12.06. Indeed, Dr. Goodman rendered two statements of opinion,
one dated January 13, 2010, and a second dated May 10, 2010. In the January 2010 statement,
Dr. Goodman opined that Plaintiff’s depression, augmented by anxiety, anger and frustration,
causes Plaintiff to be incapacitated. He further opined that Plaintiff has difficulty concentrating,
and has marked restrictions of activities of daily living, moderate difficulties maintaining social
functioning and frequent deficiencies of concentration, persistence and pace. Dr. Goodman also
opined that Plaintiff has had substantially more than three episodes of deterioration that each
lasted several days or several weeks. Nothing in Dr. Goodman’s treatment notes reflect these
episodes of decompensation. In the May 10, 2010 statement, Dr. Goodman opined that
Plaintiff’s level of functioning was up and down, and would be “far worse” if he resided outside
of the structured and supportive environment of his parents’ home, and that if Plaintiff tried to
work his functioning would deteriorate. Dr. Goodman also challenged the ALJ’s finding that
Plaintiff had not been particularly motivated to work, noting that lack of motivation is
symptomatic of his depression.

20

Doc. 10–2 at 16.

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Any medical source’s opinion of disability or employability is not dispositive.21 But final
responsibility for determining ultimate issues, such as a claimant’s RFC and whether a claimant
is disabled, are reserved to the Commissioner.22 However, with respect to issues other than the
ultimate issues, a treating source’s opinion may be given controlling weight if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques,” and is not
inconsistent with other substantial evidence in the record, but if it is “deficient in either of these
respects, then it is not entitled to controlling weight.”23 Of course, even if a treating physician’s
opinion is not entitled to controlling weight, “[t]reating source medical opinions are still entitled
to deference.”24
Had the ALJ given controlling weight to the opinions of Dr. Goodman, this would have
been substantial medical evidence that Plaintiff met the paragraph B and paragraph C criteria for
Listings 12.04 and 12.06. But the ALJ did not give controlling weight to Dr. Goodman’s
opinion, and in fact, gave “little weight” to Dr. Goodman’s opinions, for, in the Court’s view,
substantial and justifiable reasons. The ALJ adequately explained his reasons for giving only
little weight to Dr. Goodman’s opinions, discussing a number of the so-called Goatcher factors
to be considered in evaluating the opinion of a treating source. These factors include:
(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
21

Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (citation omitted).

22

SSR 96-5p, 1996 WL 374183, at *2 (July 2, 1996).

23

Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting 20 C.F.R. § 404.1527(d)(2) and
citing SSR 96-2p, 1996 WL 374188, at *2 (July 2, 1996)).
24

Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (citation omitted).

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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.25
Here, as the ALJ found, Dr. Goodman treated Plaintiff frequently over a course of one
year, almost weekly, from August 2008 to October 2009. Dr. Goodman, a psychologist,
provided psychological counseling and treatment, in his area of expertise. But despite Dr.
Goodman’s statements of opinion in January and May, 2010, his contemporaneous treatment
notes demonstrate that while Plaintiff suffered from severe depression throughout the course of
treatment, his depression improved over time and caused him only moderate or mild limitations,
not marked limitations. In March of 2009, Dr. Goodman prepared a long summary, noting that
Plaintiff continued to suffer from severe depression, fear, anger, nervousness, and experienced
difficulty socially, and difficulty with concentration.
At the same time, Dr. Goodman consistently noted that Plaintiff’s Global Assessment of
Functioning score (GAF) was 53, until May 14, 2009, when Dr. Goodman scored Plaintiff’s
GAF at 55. Although Plaintiff’s condition improved or worsened periodically, by the latter half
of 2009, with few exceptions, Dr. Goodman noted that Plaintiff was: highly motivated for
treatment; experiencing less depression; oriented to time, place and person; and exhibited no
signs of delusions or hallucinations. In addition, by the latter half of 2009, Plaintiff was tapering
off methadone, was drug and alcohol free for several months without relapse, and was gaining
positive results from his prescribed medications. This was not a surprising development, given
Plaintiff’s newly found sobriety, since Dr. Goodman had continually advised Plaintiff that his
25

Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (citing 20 C.F.R. §
404.1527(d)(2)–(6)).

8

use of illicit drugs interfered with the efficacy of the prescribed medications.
The ALJ properly discounted Dr. Goodman’s January and May 2010 statements of
opinion, given that Dr. Goodman’s contemporaneous treatment notes reflected ongoing
improvement with nothing more serious than moderate limitations. There simply is no support
in Dr. Goodman’s notes for a finding that Plaintiff meets the paragraph B criteria of marked
limitations, as opposed to moderate or mild limitations in activities of daily living, social
functioning, or maintaining concentration, persistence or pace. And, although Plaintiff reported
in 2009 that he was experiencing worsening symptoms of agoraphobia, Dr. Goodman
encouraged Plaintiff to engage in more activities, including seeking employment, enrolling in
classes, and exercising. Dr. Goodman also prescribed medications, as well as administered
cognitive therapy, including having Plaintiff listen to “stress tapes;” and his notes reflect that
those therapies proved helpful. Dr. Goodman’s notes also reflect that although Plaintiff had
difficulty maintaining concentration, at times, Plaintiff took copious notes of suggestions and
recommendations Dr. Goodman offered during their weekly therapy sessions.
In short, the ALJ gave specific, legitimate reasons for disregarding Dr. Goodman’s
opinions, in particular, the inconsistency of his opinions with his contemporaneous treatment
notes.26 Notably, in his May 2010 statement, Dr. Goodman attempted to explain away the
positive tone of his treatment notes, as well as his consistent scoring of Plaintiff in a range of 53
to 55 GAF scores, which is characterized as moderate. Dr. Goodman offers an explanation of his
practices in recording GAF scores, noting that he does not follow rigid GAF definitions in the
DSM manual and that his scoring does not reflect the downturns in Plaintiff’s condition but only

26

See Goatcher, 52 F.3d at 290.

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the upturns. Dr. Goodman also offered that his treatment notes are “primarily a record of
progress,” and “focus on the positive” because he “already knew” how poorly Plaintiff was
functioning. The Appeals Council considered this “new” evidence, in the May 2010 statement,
but found that it did not provide a basis for changing the ALJ’s decision. This Court agrees.
Not only does Dr. Goodman’s May 2010 explanatory statement and opinion provide
further reason to discredit him, the ALJ properly relied upon other Goatcher factors in
determining to give little weight to Dr. Goodman’s opinions, including other medical and
nonmedical evidence. Notably, the ALJ found that both of Dr. Goodman’s January and May
2010 statements of opinion were actually drafted by Plaintiff’s counsel, not Dr. Goodman.
To be sure, another treating provider, nurse practitioner Ahrens offered similar dire
opinions concerning the severity of Plaintiff’s impairments, but her opinions also do not find
support in the contemporaneous treatment notes. Moreover, while “acceptable medical sources”
include licensed physicians, licensed or certified psychologists, licensed optometrists, licensed
podiatrists, and qualified speech-language pathologists,27 they do not include nurse
practitioners.28 Rather, nurse practitioners are considered “other medical sources” from whom
the ALJ will accept and use evidence showing the severity of a claimant’s impairment and how
the impairment affects the claimant’s ability to work.29
Furthermore, the ALJ properly considered other medical evidence, including other
medical evidence from Behavioral Health and Addiction Services, which assessed GAF scores

27

20 C.F.R. § 416.913(a).

28

Id. at § 416.913(d).

29

Id.

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from 60 in August 2008 to 62 in February 2009 and 70 in October 2009. While GAF scores are
not determinative of mental impairment, as the ALJ noted, DSM-IV, American Psychiatric
Association Diagnostic and Statistical Manual of Mental Disorders indicates that GAF scores in
the range of 51 to 60 indicate moderate limitation in functioning, while scores in the range of 61
to 70 indicate only mild symptoms. When a treating physician’s opinion is inconsistent with
other medical evidence, the ALJ must examine reports of other physicians to see if they
outweigh the reports of the treating physician.30 The ALJ ultimately must weigh and resolve
evidentiary conflicts, and the Court cannot reweigh the evidence.31 The Court finds that the ALJ
properly weighed and resolved evidentiary conflicts, including determining that the reports of
other physicians outweighed the opinions of Dr. Goodman.
The ALJ also considered nonmedical evidence, including Plaintiff’s own testimony,
claims and statements, but discredited those as well. Plaintiff contends that the ALJ erred in
failing to properly evaluate Plaintiff’s credibility. As the Tenth Circuit has explained,
“[c]redibility determinations are peculiarly the province of the finder of fact, and we will not
upset such determinations when supported by substantial evidence.”32
Here, the ALJ acknowledged Plaintiff’s testimony and stated that he had “considered all
symptoms and the extent to which these symptoms can reasonably be accepted as consistent with
the objective medical evidence,” referencing a number of sections of the Social Security Act and

30

See Goatcher, 52 F.3d at 290.

31

Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000); see also White v. Barnhart, 287 F.3d 903, 909
(10th Cir. 2001).
32

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (citation omitted).

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its regulations.33 The ALJ expressly discussed the requirements of SSR 96-7p,34 that the
Commissioner perform a two step evaluation, first determining whether there is an underlying
medically determinable physical or mental impairment that could reasonably be expected to
produce the individual’s symptoms; and then, taking into the consideration the entire case
record, evaluating the intensity, persistence, and functionally limiting effects of the symptoms to
determine the extent to which the symptoms affect the individual’s ability to do basic work
activities.35 The ALJ further acknowledged the requirement that whenever the claimant’s
claimed symptoms are not substantiated by objective medical evidence, the ALJ must make a
finding on the credibility of the statements, based on consideration of the entire case record, and
that findings as to credibility should be closely and affirmatively linked to substantial evidence.36
Here, the ALJ properly noted the incongruity of reports by Plaintiff and his family that
Plaintiff avoids going out in public, and relies upon family to take him places or run errands,
with Plaintiff’s reports that he drives himself to visit family and friends, and drives himself to
buy illicit drugs and music supplies. To be sure, Plaintiff lived in a supportive living
arrangement for more than one year, but there is no evidence that he cannot function at all
outside of this arrangement. But, as the ALJ noted, Plaintiff is able to do household tasks, and
despite his avoidance of public settings, drives his car to buy drugs, music supplies, and to go
visit family and friends.

33

Doc. 10-2, at 16 (citing 20 CFR §§ 404.1529, 416.929; SSR 96-4p, 1996 WL 374187 (July 2, 1996); SSR
96-7p, 1996 WL 374186 (July 2, 1996)).
34

SSR 96-7P, 1996 WL 374186 ( July 2, 1996).

35

Id.; Jones v. Astrue, 500 F. Supp. 2d 1277, 1288–89 (D. Kan. 2007).

36

See Jones, 500 F. Supp. 2d at 1288–89; SSR 96-7p.

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And, although Plaintiff and his family, and even Dr. Goodman reported that Plaintiff
struggled with personal care and hygiene, substantial evidence suggests otherwise. Dr.
Goodman never noted this in his treating notes. And, records of the Behavioral Health and
Addiction Services, from whom Plaintiff received drug treatment, consistently noted that his
dress was appropriate and his hygiene was good. Nor is there evidence of repeated episodes of
extended duration. Finally, there is no evidence that a minimal increase in mental demands or a
change in environment would cause Plaintiff to decompensate. In fact, Dr. Goodman
encouraged Plaintiff to increase his mental demands by enrolling in classes and seeking
employment.
Based on the medical and nonmedical evidence, the ALJ properly discounted Dr.
Goodman’s opinion and properly concluded that there was not substantial evidence supporting
Plaintiff’s complete inability to function independently outside of his home. Plaintiff routinely
drove himself to his methadone clinic, to the homes of friends and family, to stores, and to
procure illicit drugs. In short, the ALJ properly found that Plaintiff did not meet either Listing
12.04 or 12.06.
B. Substantial Evidence Supported RFC and Hypothetical Question Posed to
Vocational Expert
Plaintiff contends that the ALJ’s determination of RFC at Step 4, and the corresponding
hypothetical question posed to the vocational expert which incorporated that RFC, were
erroneous. Plaintiff claims error because neither the RFC, nor the hypothetical question
incorporated Dr. Goodman’s opinion that Plaintiff had marked limitations in categories 6-9, 11,
14 and 15 of the Medical RFC Questionnaire. But the ALJ properly gave little weight to Dr.
Goodman’s opinions regarding Plaintiff’s limitations for all of the reasons previously discussed.
13

Other than the claim that the RFC and hypothetical question should have included Dr.
Goodman’s opined limitations, Plaintiff does not otherwise challenge the ALJ’s RFC
determination, nor the hypothetical question. From the Court’s review, there is substantial
evidence supporting the RFC determination that Plaintiff can perform a range of sedentary work
with a position change every 45-60 minutes for up to five minutes at a time, while remaining at
the work station. And, there is substantial evidence supporting the RFC determination that
Plaintiff is limited to simple, unskilled work with no contact with the general public and only
occasional contact with coworkers and supervisors. Therefore, the hypothetical question which
incorporated the ALJ’s RFC determination was also proper.
V.

Conclusion
For these reasons, the Court concludes that the ALJ did not err in finding Plaintiff not

disabled at steps three, four or five. Accordingly, the decision of the Commissioner will be
affirmed.
IT IS THEREFORE ORDERED BY THE COURT THAT Defendant’s decision
denying Plaintiff disability benefits is AFFIRMED.
IT IS SO ORDERED.
Dated: January 8, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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