Blevins v. Social Security Administration, Commissioner of

Filing 29

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 3/26/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DAWN M. BLEVINS,
Plaintiff,
vs.

Case No. 12-1411-SAC

CAROLYN W. COLVIN,
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).

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

Substantial evidence requires more than a

1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue, the former 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
This case has a very long history.

Plaintiff filed for

disability benefits on January 9, 2003 (R. at 1201).

On April

19, 2006, administrative law judge (ALJ) Jesse H. Butler issued
the 1st decision denying plaintiff benefits (R. at 48-54).
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Plaintiff sought judicial review of the decision.

On March 4,

2008, based on defendant’s motion to remand, the decision of the
Commissioner was reversed and the case was remanded back for
further hearing after it was discovered that the tape recording
of the administrative hearing was blank, preventing the
preparation of a proper court record (R. at 56-60).
On May 13, 2009, a second decision was issued by ALJ Guy E.
Taylor, again denying plaintiff disability benefits (R. at 3142).

Plaintiff again sought judicial review of the decision.

On March 8, 2011, Judge Lungstrum issued an order reversing the
decision of the Commissioner and remanding the case for further
hearing (R. at 1200-1220).
On September 20, 2011, administrative law judge (ALJ) Guy
E. Taylor issued the 3rd ALJ decision (R. at 1157-1175).
Plaintiff alleges that she had been disabled since May 4, 2001
(R. at 1157).

Plaintiff is insured for disability insurance

benefits through June 30, 2003 (R. at 1159).

At step one, the

ALJ found that plaintiff did not engage in substantial gainful
activity since the alleged onset date (R. at 1159).

At step

two, the ALJ found that plaintiff has the following severe
impairments:

fibromyalgia, bilateral carpal tunnel syndrome,

Raynaud’s syndrome, status post lumbar spine fusion, chronic
obstructive pulmonary disease, edema, major depressive disorder,
and an anxiety disorder (R. at 1159).
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At step three, the ALJ

determined that plaintiff’s impairments do not meet or equal a
listed impairment (R. at 1160).

After determining plaintiff’s

RFC (R. at 1162), the ALJ determined at step four that plaintiff
is unable to perform past relevant work (R. at 1173).

At step

five, the ALJ determined that plaintiff could perform other jobs
that exist in significant numbers in the national economy (R. at
1173-1174).

Therefore, the ALJ concluded that plaintiff was not

disabled (R. at 1174-1175).

Plaintiff has again sought judicial

review of the decision.
III.

Did the ALJ err in the weight given to the opinions of Dr.

Tramp, a treating physician, and Dr. McGehee, a consultative
examiner?
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).

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
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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.
Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).

Robinson v.

A treating

source opinion not entitled to controlling weight is still

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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. Tramp is a treating physician who saw the plaintiff on
5 occasions in 2010-2011.

On August 4, 2011, he prepared a

medical source statement-physical.

Dr. Tramp set out numerous

limitations, including his opinion that plaintiff can only sit
for less than 2 hours in an 8 hour workday, and can only
stand/walk for less than 2 hours in an 8 hour workday.

He

further opined that plaintiff would need to lay down or recline
or elevate her feet several times during a workday, and would
need to take unscheduled restroom breaks during the workday.

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He

also stated that she would miss more than 4 days of work per
month as a result of her symptoms or for required treatment (R.
at 1683-1688).

These limitations would clearly preclude

plaintiff from working.
The ALJ gave little weight to his opinions because the ALJ
found that they were not well supported by medically acceptable
clinical and laboratory diagnostic techniques and because the
opinion is inconsistent with other substantial evidence in the
record.

The ALJ further stated that this opinion is

inconsistent with the objective medical findings that indicated
that plaintiff had only sparse episodes of edema and normal
neurological and musculoskeletal exams of the upper and lower
extremities.

The ALJ also found that plaintiff’s description of

activities of daily living are inconsistent with this opinion
(R. at 1172).
The ALJ took into consideration the consultative physical
exam performed by Dr. Verstraete on March 16, 2002 (R. at 290293).

Dr. Verstraete noted that there was no objective evidence

of any functional impairment noted clinically (R. at 293, 1163).
The ALJ also referenced a consultative examination by Dr.
Hendler on June 17, 2003 (R. at 312-315) indicating that
plaintiff had pain, myofascia with signs of fibromyalgia
syndrome, but commented that there are no objective findings
which preclude the patient from performing up to six hours per
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day of standing and/or walking (R. at 314, 1164).

The ALJ set

out in great detail these and many other physical examination
results (1163-1168) which provide specific support for the
medical findings identified by the ALJ for discounting the
opinions of Dr. Tramp.
The record also contains two physical RFC assessments from
non-examining physicians, Dr. Goering on September 19, 2003 (R.
at 316-323), and Dr. Shah on March 5, 2008 (R. at 660-669).
Both Dr. Goering and Dr. Shah made findings that plaintiff was
not as limited as opined by Dr. Tramp.

The ALJ found that their

opinions, and the opinions of Dr. Hendler are consistent with
the evidence in the file, and gave some weight to their opinions
(R. at 1171).
The record also contains two other medical source
statements-physical, one by advanced registered nurse
practitioners (ARNP) Lay and Long dated April 27, 2007 (R. at
213-218), and one by ARNP Long on January 18, 2008 (R. at 661662).

Both statements indicate that plaintiff has limitations

that would preclude work, including an inability to sit, stand
and/or walk for an 8 hour workday.

The ALJ gave little weight

to their opinions for various reasons, including the fact that
they are not acceptable medical sources (R. at 1171-1172).
Plaintiff does not argue that the ALJ erred in the weight the
ALJ accorded to these opinions.
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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 ALJ gave little weight to the opinions of Dr. Tramp
because he found that his opinions were not supported by the
medical record and are inconsistent with other substantial
evidence in the record.

The ALJ gave greater weight to other

consulting and non-examining medical sources, and set out in
detail a number of medical findings which were inconsistent with
the opinions of Dr. Tramp, including physical exams showing
normal musculoskeletal and neurological findings (R. at 11631168).

Dr. Verstraete found no objective evidence of any

functional impairment (R. at 293).

Dr. Hendler found no

objective findings which preclude plaintiff from standing and/or
walking up to 6 hours a day (R. at 314).

The assessment

approved by Dr. Shah stated that the RFC findings took into

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account plaintiff’s activities of daily living, which were found
to be not significantly limited (R. at 669).
The court will not reweigh the evidence.

The court will

review only the sufficiency of the evidence, not its weight,
Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007), and the
court finds that there was certainly enough evidence to support
the ALJ’s finding to give little weight to the opinions of Dr.
Tramp.

Although the evidence may have supported contrary

findings, the court 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.

Oldham, 509 F.3d at 1257-1258.

Dr. McGehee is a clinical psychologist who performed a
psychological evaluation on the plaintiff on June 9, 2009, and
prepared a medical source statement-mental (R. at 978-985).

Dr.

McGehee opined that plaintiff was not limited in 11 categories,
was moderately limited in 5 categories, and was markedly limited
in 4 categories (R. at 979-980).2

Dr. McGehee further opined

that plaintiff would miss more than 4 days of work per month as
a result of symptoms or treatment (R. at 981).

2

Dr. McGehee found that plaintiff was markedly limited in: 1) the ability to maintain attention and concentration for
extended periods, 2) the ability to perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances, 3) the ability to work in coordination with or proximity to others without being
distracted by them, and 4) the ability to complete a normal workday and work week without interruption from
psychologically based symptoms; and to perform at a consistent pace without an unreasonable number and length of
rest periods (R. at 979).
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The ALJ gave little weight to Dr. McGehee’s opinions
because the opinions were based on a single evaluation of the
plaintiff and there was no treatment relationship.

The ALJ

further found that the opinions were not well supported by the
medical record and inconsistent with other substantial evidence
in the record.

The ALJ further noted that her findings were

inconsistent with Dr. McGehee’s own finding that plaintiff’s
understanding and memory were within normal limits (R. at 1172,
985).
The ALJ took into consideration two mental status
examinations by Dr. Mintz (R. at 1163, 1164).

The first one, on

March 11, 2002, concluded by saying that plaintiff appears able
to understand simple and intermediate instructions, and has
related reasonably well to persons in the past (R. at 287-289).
The second one, dated August 19, 2003, states that plaintiff
appears able to understand simple and intermediate instructions,
and concentration capacity appears variable (R. at 308-310).
The ALJ also discussed numerous other mental status exams, with
most of them showing normal status except for plaintiff
appearing stressed or tired (R. at 1164-1166).
The record also contains two mental RFC assessments by nonexamining medical sources.

The first, by Dr. Diller, and dated

September 29, 2003, found that plaintiff was only moderately
limited in 5 of 20 categories (R. at 324-326).
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The second, by

Dr. Jessop, and dated January 22, 2008, found that plaintiff was
only moderately limited in 3 of 20 categories (R. at 672-674).
Thus, both these assessments found that plaintiff’s mental
impairments were far less severe than opined by Dr. McGehee.
The ALJ correctly stated that Dr. McGehee was only a
consulting medical source who did not treat the plaintiff.

Her

opinions are not supported by the medical record, including the
opinions of Dr. Mintz (in two separate reports), Dr. Diller, and
Dr. Jessop.

The ALJ also cited to numerous mental status exams

in the treatment records, most of which showed a normal status.
The court will not reweigh the evidence.

The court finds

that there was certainly enough evidence to support the ALJ’s
finding to give little weight to the opinions of Dr. McGehee.
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 26th day of March 2014, Topeka, Kansas.

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

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