Romero v. Social Security Administration, Commissioner of

Filing 27

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

HOLLY CATHERINE ROMERO,
Plaintiff,
vs.

Case No. 13-1064-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.
3

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 September 23, 2011, administrative law judge (ALJ) James

Harty issued his decision (R. at 21-34).

Plaintiff alleges that

she had been disabled since February 5, 2009 (R. at 21).
Plaintiff is insured for disability insurance benefits through
4

March 31, 2010 (R. at 24).

At step one, the ALJ found that

plaintiff did not engage in substantial gainful activity since
the alleged onset date (R. at 24).

At step two, the ALJ found

that plaintiff has the following severe impairments:

headaches,

reactive airways, bipolar I disorder, general anxiety
disorder/anxiety disorder, personality disorder-not otherwise
specified, major depressive disorder with psychotic features,
post traumatic stress disorder, panic disorder with agoraphobia,
dependent personality disorder (R. at 24).

At step three, the

ALJ determined that plaintiff’s impairments do not meet or equal
a listed impairment (R. at 25).

After determining plaintiff’s

RFC (R. at 26), the ALJ determined at step four that plaintiff
is unable to perform any past relevant work (R. at 31).

At step

five, the ALJ determined that plaintiff could perform other jobs
that exist in significant numbers in the national economy (R. at
32-33).

Therefore, the ALJ concluded that plaintiff was not

disabled (R. at 34).
III.

Did the ALJ err in finding that plaintiff’s impairments do

not meet or equal listed impairment 12.04, 12.06 and/or 12.08?
Plaintiff has the burden to present evidence establishing
that his impairments meet or equal a listed impairment.
Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005).
In order for the plaintiff to show that his impairments match a
listing, plaintiff must meet “all” of the criteria of the listed
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impairment.

An impairment that manifests only some of those

criteria, no matter how severely, does not qualify.

Sullivan v.

Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 891 (1990)(emphasis
in original).
In the case before the court there are two medical source
opinions that address whether plaintiff’s impairments meet or
equal listed impairments 12.02, 12.04, and 12.08.

One opinion

is from a treatment provider (R. at 442-447), and the other one
is from a non-examining medical source (R. at 410-426, 435).
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
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
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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
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;

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(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.
Treating source opinions on issues that are reserved to the
Commissioner2 should be carefully considered and must never be
ignored, but they are never entitled to controlling weight or
special significance.

Giving controlling weight to such

opinions would, in effect, confer upon the treating source the
authority to make the determination or decision about whether an
individual is under a disability, and thus would be an
abdication of the Commissioner’s statutory responsibility to
determine whether an individual is disabled.

SSR 96-5p, 1996 WL

374183 at *2-3.

2

Issues reserved to the Commissioner include: (1) whether an claimant’s impairment meets or is equivalent in
severity to a listed impairment, (2) a claimant’s RFC, (3) whether a claimant can perform past relevant work, and (4)
whether a claimant is disabled. SSR 96-5p, 1996 WL 374183 at *2.
8

Plaintiff alleges that the ALJ erred by rejecting the
medical opinion evidence of Dr. Lear, a treatment provider, that
plaintiff’s impairments met the “B” criteria of 12.04, 12.06 and
12.08.

The ALJ found that plaintiff’s impairments did not meet

or equal listed impairment 12.04 (affective disorders), 12.06
(anxiety related disorders) or 12.08 (personality disorders).3
More specifically, the ALJ found that plaintiff’s impairments do
not meet the “B” criteria of 12.04, 12.06 and 12.08 (R. at 2526).

The “B” criteria of 12.04, 12.06 and 12.08 are as follows:
B. Resulting in at least two of the
following:
1. Marked restriction of activities of daily
living; or
2. Marked difficulties in maintaining social
functioning; or
3. Marked difficulties in maintaining
concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each
of extended duration.

20 C.F.R. Pt. 404, Subpt. P, App. 1 (2013 at 511-513).
Dr. Lear and ARNP (advanced registered nurse practitioner)
Mileham opined that plaintiff had moderate restrictions in
activities of daily living; marked restrictions in maintaining
social functioning; marked deficiencies of concentration,

3

Listed impairments 12.04, 12.06 and 12.08 are met when both the “A” and the “B” criteria are satisfied. 20 C.F.R.
Pt. 404, Subpt. P, App. 1 (2013 at 511-513, emphasis added).
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persistence or pace; and three episodes of decompensation (R. at
446).

The ALJ stated the following regarding this opinion:
The opinion cites that the claimant has had
three episodes of decompensation in the last
twelve months, each of at least two weeks
duration. However, there is no objective
evidence in the record of such occurrences.
Records above show that the claimant did not
report any such episodes in the last twelve
months. In addition, they stated that the
claimant had a current history of being
unable to function outside of a highly
supportive living arrangement and that even
a minimal change in the claimant’s
environment caused her to decompensate.
Again, there is no evidence of these types
of conditions in the record and no
explanation of where such allegations come
from in the objective evidence. Claimant
was also rated as marked in areas of social
functioning, concentration, persistence and
pace. There is no evidence of these marked
limitations, as the claimant in June 2009
had no problems with memory according to
objective testing and did not no records of
a treatment provider show such limitations.
There are notes that the claimant is unable
to process detailed instructions and that
she has a social phobia which prevents her
from dealing with the public, but those
limitations are reflected in other opinions
which do not conclude such extreme
limitations are warranted. (Exhibit 8F at 4)
This opinion is given some weight, as the
record does show the claimant is somewhat
limited by large groups of people and that
she has some problems with detailed
instructions. However, the functional
limitations described by the narrative and
supported by the objective medical testing
and treatment notes as of the date of this
opinion do not support such extreme
limitations and certainly do not support the
listing level allegations in this opinion.

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(R. at 30).
The record also includes a psychiatric review technique
form by Dr. Adams, dated June 10, 2009.

Dr. Adams opined that

plaintiff had mild restrictions in activities of daily living;
moderate difficulties in maintaining social functioning;
moderate difficulties in maintaining concentration, persistence,
or pace, and no episodes of decompensation (R. at 410-422).
These opinions were reviewed and affirmed by Dr. Stern on
December 11, 2009 (R. at 435).
The ALJ noted that Dr. Adams reviewed a psychological
evaluation performed by Dr. Milner on June 5, 2009 (R. at 31,
405-409).

Dr. Milner interviewed plaintiff and conducted a

mental status examination.
term memory was good.

She found that plaintiff’s short-

Plaintiff was found to be functioning in

the average range of intelligence and was able to understand,
remember and carry out a variety of instructions.

Plaintiff was

found to be able to interact appropriately with supervisors and
co-workers but panics with too many people.

Plaintiff was also

found to be able to maintain concentration and attention
sufficient to carry out simple one or two step tasks.

Under

prognosis, Dr. Milner stated that plaintiff is immobilized by
anxiety and depression much of the time and seems never to be
stable.

She also opined that plaintiff is a poor prospect for

work due to her loser attitude, not caring about anything, bi11

polar swings, anxiety around others and possible brain damage
following several head trauma experiences (R. at 407-408).
The ALJ gave significant weight to the opinions of Dr.
Milner because her opinions were based on objective testing and
is from a mental health provider (R. at 30).

The ALJ gave

significant weight to the opinions of Dr. Adams and Dr. Stern,
noting its reliance on the opinions of Dr. Milner; it was thus
consistent with the testing performed by Dr. Milner (R. at 31).
Plaintiff argues that the ALJ erred by finding that
plaintiff had only a mild impairment in activities of daily
living; plaintiff argues that the evidence supports a marked
limitation in this category (Doc. 16 at 31).

However, even Dr.

Lear opined that plaintiff only had a moderate limitation in
this category (R. at 446).

There is no medical opinion evidence

that supports a finding of a marked limitation in this category.
Given the undisputed medical evidence in this category, the
court finds that plaintiff’s argument is without merit.
Plaintiff next argues that the evidence supports a marked
limitation in social functioning (Doc. 16 at 32); the ALJ found
that plaintiff only had a moderate limitation in this category
(R. at 26).

Although Dr. Lear found that plaintiff had a marked

limitation in this category, Dr. Adams opined that plaintiff
only had a moderate limitation in this category.

Dr. Milner,

based on a mental status examination, found that plaintiff was
12

able to interact appropriately with supervisors and co-workers,
but panics with too many people (R. at 408).

The ALJ gave

significant weight to the opinions of Dr. Milner based on her
testing.
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 court finds that there

is sufficient evidence to support a finding that plaintiff only
has moderate difficulties in social functioning.
Plaintiff next argues that the evidence supports a marked
limitation in concentration, persistence, or pace (Doc. 16 at
33); the ALJ found that plaintiff only had a moderate limitation
in this category (R. at 26).

Although Dr. Lear found that

plaintiff had a marked limitation in this category, Dr. Adams
opined that plaintiff only had a moderate limitation in this
category.

Dr. Milner opined that plaintiff is able to maintain

concentration and attention sufficiently to carry out simple one
13

or two step tasks (R. at 408).

Plaintiff cites to a medical

record dated May 5, 2010 stating that plaintiff had poor
attention span and concentration (R. at 489).

However, mental

health treatment records from October 27, 2009, December 16,
2009, February 2, 2010, May 5, 2010, August 9, 2010 and
September 7, 2010 indicate that plaintiff’s attention and
concentration were intact (R. at 430, 454, 462, 472, 515, 522).
The court finds that there is sufficient evidence to support a
finding that plaintiff only has moderate difficulties in
concentration, persistence, or pace.4
In summary, for the reasons set forth above, the court
finds that sufficient evidence exists in the record to support
the ALJ’s determination that plaintiff’s impairments do not
satisfy the “B” requirements for these listed impairments.

For

this reason, the court finds no error in the ALJ’s finding that
plaintiff’s impairments do not meet or equal listed impairment
12.04, 12.06 and 12.08.
IV.

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

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

However,

findings as to credibility should be closely and affirmatively

4

Plaintiff does not contest the ALJ’s finding that plaintiff has experienced no episodes of decompensation.
Furthermore, plaintiff does not dispute the ALJ finding that there is no objective evidence in the record that supports
Dr. Lear’s assertion that there had been three episodes of decompensation in the last 12 months (R. at 30).
14

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

which does not rest on mere boilerplate language, but which is
linked to specific findings of fact fairly derived from the
15

record, will be affirmed by the court.

White, 287 F.3d at 909-

910.
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).
Plaintiff takes issue with the ALJ’s reference to
plaintiff’s activities of daily living.

The ALJ does reference

those activities, but does not indicate that such activities
indicate that plaintiff is capable of working (R. at 27-28).
The court finds no error in the ALJ’s discussion of plaintiff’s
activities of daily living.
16

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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