Antoun v. Social Security Administration, Commissioner of

Filing 19

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 12/19/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CAROLINE ANTOUN,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
________________________________________ )

CIVIL ACTION
No. 13-1366-JWL

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 decision, the court
ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C.
§ 405(g) AFFIRMING that decision.
I.

Background
Plaintiff applied for SSD, alleging disability beginning November 1, 2009. (R. 10,

130-31). In due course, Plaintiff exhausted proceedings before the Commissioner, and
now seeks judicial review of the final decision denying benefits. She claims the

Administrative Law Judge (ALJ) erred in evaluating the medical opinion of her treating
physician, Dr. Knight.
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 he 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 relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971); see also, 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).
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The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; 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 she
has a severe impairment(s), and whether the severity of her 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 residual functional capacity (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 her
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
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economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds no error in the ALJ’s evaluation of Dr. Knight’s treating source
opinion and, therefore, affirms the decision below.
II.

The Parties’ Arguments
Plaintiff claims the ALJ failed to provide sufficient reasons to discount Dr.

Knight’s treating source opinion because although he found that the opinion was not
worthy of controlling weight, he did not evaluate the opinion in light of the regulatory
factors for weighing medical opinions. (Pl. Br. 15-17). She also claims that the reasons
given for discounting Dr. Knight’s opinion are not supported by substantial record
evidence because contrary to the ALJ’s findings, the evidence shows that Plaintiff has
scoliosis of the spine, the evidence shows that Plaintiff had taken hydrocodone, the ALJ
ignored many treatment notes supporting Dr. Knight’s opinion, and Dr. Knight provided a
medical source statement regarding Plaintiff’s limitations but did not provide an opinion
on an issue reserved to the Commissioner. Id. at 17-20.
The Commissioner argues that in accordance with the legal standard for evaluating
a treating physician’s opinion the ALJ first determined that Dr. Knight’s opinion was not
worthy of controlling weight and then determined that the opinion was worthy of “little
weight.” (Comm’r Br. 12-13). She then explains how that in her view substantial
evidence supports the ALJ’s determination. Id. at 14-17.
III.

The ALJ’s Evaluation
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The ALJ explained his evaluation of Dr. Knight’s opinion:
The undersigned has considered the Medical Source Statement - Physical,
completed on December 6, 2011 by the claimant’s treating physician Denis
Knight, D.O. (Exhibit B24F). In his statement, Dr. Knight limited the
claimant to less than a full range of sedentary work, and noted that she “has
still been unable to gain or maintain any meaningful employment” (Exhibit
B24F/4). If a treating source’s medical opinion is well-supported and
consistent with the evidence in the case record, it must be given controlling
weight (20 CFR 404.1527 and SSR 96-2p ). When the aforementioned
factors are considered, the opinion of Dr. Knight is not given controlling
weight.
This opinion is [(1)] without support from the other evidence of record,
which renders it less persuasive. Further, [(2)] while Dr. Knight references
the claimant’s back pain, the record does not establish that the claimant has
any significant musculoskeletal impairment. Although an x-ray of the
lumbar spine performed in April 2010 noted scoliosis and minimal
degenerative changes (Exhibit B8F/2), subsequent records from Heartland
Cardiology dated in December 2011 noted no evidence of scoliosis (Exhibit
B20F/8). [(3)] While the claimant’s obesity may impose some functional
limitation, her symptoms improved even by her own testimony prior to Dr.
Knight’s completion of the source statement. [(4)] In addition, while Dr.
Knight noted side effects from Hydrocodone, the claimant’s treatment
records do not support the claimant took such medication. [(5)] Further,
treating source opinions on issues that are reserved to the Commissioner are
never entitled to controlling weight or special significance (SSR 96-5p).
In addition, [(6)] Dr. Knight’s opinion is not consistent with his own
treatment notes. Results of a physical examination performed on October
31, 2011 indicated that the claimant’s sensory and motor function was
within normal limits, motor strength was 5/5 bilaterally, deep tendon
reflexes were bilateral and symmetric, and cranial nerves II-XII were
normal (Exhibit B23F/3). For the reasons stated above, the undersigned
finds the opinion of Dr. Knight entitled to little weight.
(R. 19-20) (numbering added for ease of reference).
III.

The Standard for Evaluating a Treating Source Medical Opinion

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A treating physician’s opinion about the nature and severity of a claimant’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(c)(2), 416.927(c)(2). When a treating
physician’s opinion is not given controlling weight, the ALJ must nonetheless specify
what lesser weight he assigned that opinion. Robinson v. Barnhart, 366 F.3d 1078, 1083
(10th Cir. 2004).
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 and 416.927.” Watkins, 350 F.3d at 1300. Those factors are: (1) length of
treatment relationship and 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. Id. at 1301; 20 C.F.R. §§ 404.1527(c)(2-6), 416.927(c)(2-6); see
also Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (citing Goatcher v.
Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995)).

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After considering the regulatory factors, the ALJ must give good reasons in his
decision for the weight he ultimately assigns the opinion. If the ALJ rejects the opinion
completely, he must give specific, legitimate reasons for doing so. Watkins, 350 F.3d at
1301.
IV.

Analysis
As the Commissioner suggests, in accordance with the legal standard for

evaluating a treating physician opinion, the ALJ first determined that Dr. Knight’s
opinion would not be given controlling weight. (R. 19). The first reason given by the
ALJ to discount Dr. Knight’s opinion was that it “is without support from the other
evidence of record.” Id. This reason constitutes a finding that Dr. Knight’s opinion
should not be accorded controlling weight because it is “inconsistent with the other
substantial evidence in [claimant’s] case record.” 20 CF.R. § 404.1527(c)(2).
The standard to deny controlling weight is low. Social Security Ruling (SSR) 962p, cited by the court in Watkins, 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. 2014). As the
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.”

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Here, Dr. Siemsen “affirmed as written” the RFC assessment completed on July
21, 2010 by a single decisionmaker. (R. 374). That RFC assessment concluded that
Plaintiff is able to perform a range of light work with certain additional postural,
manipulative, and environmental limitations. (R. 366-73). Because Dr. Siemsen is a
medical doctor who reached his opinion based upon a review of all of the evidence then
in Plaintiff’s case file, his opinion constitutes relevant evidence that a reasonable mind
might accept as adequate to support a conclusion which is contrary to Dr. Knight’s
conclusion that Plaintiff is much more limited in her abilities, and “that she has been and
continues to be disabled.” (R. 517). Based upon that reason alone, there can be no error
in the ALJ’s determination not to give controlling weight to Dr. Knight’s opinion.
The ALJ continued his analysis beyond the question of controlling weight and
expressed five additional reasons as quoted above to accord “little weight” to Dr.
Knight’s opinion. (R. 19-20). Plaintiff’s argument that the ALJ did not evaluate Dr.
Knight’s opinion in light of the regulatory factors for weighing medical opinions is
without merit. It is true that the ALJ did not discuss and analyze each of the six factors
cited above. 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 treating source’s medical opinion and the reasons
for that weight.’” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (quoting
Watkins, 350 F.3d at 1300). There can be no question but that standard was met here.

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Contrary to Plaintiff’s arguments, the reasons given by the ALJ to discount Dr.
Knight’s opinion are supported by record evidence. Plaintiff argues that the second
reason given to discount Dr. Knight’s opinion is erroneous because the record contains xray evidence of scoliosis, and although a cardiologist’s findings “did not reveal scoliosis,”
that “is not a sufficient reason to discount Dr. Knight’s opinion that [Ms. Antoun] did
suffer from back pain.” (Pl. Br. 18). Plaintiff’s argument misses the point of reason
number two. The point of reason two was that although Dr. Knight’s opinion makes
much of Plaintiff’s back pain, the record does not establish a significant musculoskeletal
impairment. (R. 19). The ALJ specifically acknowledged that an x-ray of Plaintiff’s
lumbar spine in April 2010 noted scoliosis1 and minimal degenerative changes. (R. 1920) (citing Ex. B8F/2 (R. 346)). But, the ALJ also pointed to a subsequent treatment note
from Heartland Cardiology in December 2011 which specifically noted “no evidence of
scoliosis.” (R. 568).2 As Plaintiff points out, the treatment note at issue is the report of a
physical examination performed by a cardiologist when Plaintiff was being treated for
rapid heart rate and lightheadedness. (Pl. Br. 18). As Plaintiff’s argument implies, a lay
person would not expect the physical examination of a cardiologist relating to a specific
heart complaint to be concerned with issues of scoliosis. However, the ALJ’s reference is

1

The x-ray report stated, “The patient has mild scoliosis of the lumbar spine.” (R.
346) (Ex. B8F/2).
2

The decision cites this record as Ex. B20F/8, but the actual treatment note is at Ex.
B30F/8 (R. 568). Plaintiff acknowledges that this is the treatment note cited by the ALJ.
(Pl. Br. 18) (citing the first page of this treatment note (R. 567)).
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not to a case where the physical examination report just failed to mention or otherwise
note the presence of scoliosis, the cardiologist specifically reported “no evidence of
scoliosis.” (R. 568). As the ALJ noted, an x-ray revealed mild scoliosis, but a year-anda-half later a medical doctor specifically reported no evidence of scoliosis on a physical
examination. As the ALJ found, this inconsistency reveals a record which does not
establish a significant musculoskeletal impairment of the back.
Plaintiff next attacks reason number four (Dr. Knight noted side effects from
hydrocodone, but the treatment records do no indicate Plaintiff took such medication).
Plaintiff points to the discharge summary from her gastric bypass surgery which reveals
that she was prescribed about a week’s supply of Lortab Elixer, and to the National
Institutes of Health website which states that Lortab is a combination form of
hydrocodone, and argues that this evidence supports Dr. Knight’s opinion regarding side
effects. While Plaintiff is apparently technically correct that she did in fact take
hydrocodone at one time, she has shown no prejudice from this error. She points to
nothing in Dr. Knight’s treatment records which indicate that she reported side effects
from hydrocodone (or Lortab) to Dr. Knight. Moreover, she admits that she is not
presently taking hydrocodone, and does not establish that it has any affect on her
functioning at the present time. At worst, this error has little if any affect on the ALJ’s
analysis.
Plaintiff argues that reason number six (that Dr. Knight’s opinion is inconsistent
with his treatment notes) is error because the ALJ cited a single examination report from
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October 31, 2011 and ignored “11 other appointments which do support Dr. Knight’s
opinion.” (Pl. Br. 19). From those 11 other treatment notes, Plaintiff argues that Dr.
Knight’s suggestion of disability and functional limitations which include lifting a
maximum of five pounds and standing, walking, or sitting only two hours each in an
eight-hour workday is supported by his notations on occasion that she appeared older than
her stated age, appeared uncomfortable, had a loss of lumbar lordosis, exhibited
lumbosacral tenderness and lumbar muscle spasm, had positive straight leg raising, and
range of motion was limited due to pain. Id. (citing R. 310, 314, 319-20, 461, 463, 497).
The evidence relied upon by Plaintiff is from Dr. Knight’s recording of his physical
examination in each of the treatment notes cited. However, Plaintiff does not explain
how the evidence cited demonstrates that her functional limitations are as great as Dr.
Knight opines. Moreover, half of the notes cited occurred before Plaintiff’s gastric
bypass surgery. Of the three cited visits occurring after the surgery, one occurred days
after the surgery (R. 463) (4/20/2011) and one occurred about a month after surgery. (R.
461) (5/23/2011). Even one month after surgery, Dr. Knight noted that, “[s]he is
successfully losing weight.” (R. 462). Finally, nowhere in the treatment notes (before or
after bypass surgery) does Dr. Knight suggest functional limitations as severe as opined in
his medical source statement, and he does not relate any of the negative examination
findings to specific functional limitations. As the ALJ found, Dr. Knight’s opinion is not
consistent with his treatment notes.

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Finally, Plaintiff points to reason number five (opinions on issues reserved to the
Commissioner are entitled to no special significance) and argues that Dr. Knight’s
opinion was a medical source statement regarding functional limitations and was
therefore not on an issue reserved to the Commissioner. (Pl. Br. 20-21). To the extent of
Dr. Knight’s medical source statement form, Plaintiff is correct. But, her argument
ignores that Dr. Knight’s opinion included a narrative “To whom it may concern” letter in
which Dr. Knight opined that despite her gastric bypass and subsequent weight loss
Plaintiff has been “unable to gain or maintain any meaningful employment,” and that “she
has been and continues to be disabled.” (R. 517). As the ALJ noted, opinions that a
claimant is disabled or opinions regarding vocational factors are issues reserved to the
Commissioner and will not be given any special significance. 20 C.F.R. §§ 404.1527(d),
416.927(d). The ALJ did not err in stating this as one basis to discount Dr. Knight’s
opinion.
The ALJ provided six, specific, legitimate reasons to discount Dr. Knight’s
opinion as required by the law of the Tenth Circuit. Although Plaintiff has shown a
technical deficiency in a portion of the ALJ’s reason number four, she has not shown
error resulting from that deficiency because she has not shown that she was taking
hydrocodone on a regular basis during the period at issue.
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.
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Dated this 19th day of December 2014, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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