Gonzales v. Social Security Administration, Commissioner of

Filing 18

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 3/24/15. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAREE GONZALES,
Plaintiff,
vs.

Case No. 14-1013-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff
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

scintilla, but less than a preponderance, and is satisfied by

1

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).

The claimant's physical or

mental impairment or impairments must be of such severity that
2

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.
the claimant survives step four, the fifth and final step
3

If

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 February 4, 2013, administrative law judge (ALJ) Rhonda

Greenberg issued her decision (R. at 14-25).

Plaintiff alleges

that she had been disabled since May 26, 2010 (R. at 14).
step one, the ALJ found that plaintiff did not engage in
substantial gainful activity after the application date of
4

At

September 20, 2010 (R. at 16).

At step two, the ALJ found that

plaintiff had severe impairments of ischemic heart disease,
affective disorder, pulmonary sarcoidosis, and substance abuse
(R. at 16).

At step three, the ALJ determined that plaintiff’s

impairments do not meet or equal a listed impairment (R. at 16).
After determining plaintiff’s RFC (R. at 18), the ALJ determined
at step four that plaintiff is unable to perform past relevant
work (R. at 24).

At step five, the ALJ found that plaintiff

could perform jobs that exist in significant numbers in the
national economy (R. at 24-25).

Therefore, the ALJ concluded

that plaintiff was not disabled (R. at 25).
III.

Did the ALJ err in the relative weight given to the

medical source opinions?
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
5

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

Robinson v.

A treating

source opinion not entitled to controlling weight is still
6

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.
The only issue raised by the plaintiff concerns plaintiff’s
mental impairments and limitations.

The ALJ’s mental RFC

findings limit plaintiff to simple, routine tasks (R. at 18).
Dr. Nystrom, a licensed psychologist, conducted a mental health
examination on the plaintiff on December 13, 2010 (R. at 344346).

Dr. Nystrom diagnosed plaintiff with alcohol dependence,

adjustment disorder and personality disorder.

He concluded as

follows:
There was no psychological disorder
identified that would prevent her from being
7

able to understand and remember simple
instructions; be capable of sustained
concentration, persistence, and keeping pace
in a work setting. She would be able to
maintain appropriate social interactions
with coworkers, supervisors, and the general
public.
(R. at 346).
The first state agency mental RFC assessment by a nonexamining physician was done by Dr. Snyder on January 25, 2011
(R. at 54-55, 58-59).

After reviewing the records, he opined

that plaintiff had marked difficulties in maintaining social
functioning (R. at 54).

He specifically opined that plaintiff

had marked limitations in dealing with the public and with
supervisors.

She would be moderately limited in getting along

with coworkers, and moderately limited in the ability to
maintain socially appropriate behaviors and adhering to basic
standards of neatness and cleanliness.

He further opined that

plaintiff is moderately limited in the ability to respond
appropriately to changes in the work setting.

He concluded by

indicating that plaintiff’s frustration tolerance and stress
tolerance are low, and would probably be worsened by physical
pain, interpersonal issues, and fast-paced and/or high
production work quotas.

He recommended no public contact and

very little coworker/supervisor contact, and no
negotiation/confrontation (R. at 58-59).

8

The second state agency mental RFC assessment by a nonexamining physician was done by Dr. Wilkinson on July 5, 2011
(R. at 39-40, 44-45).

She opined that plaintiff had moderate

difficulties in maintaining social functioning (R. at 40).

She

more specifically opined that plaintiff had moderate limitations
in the ability to deal with the public, supervisors and
coworkers.

She also indicated that plaintiff had moderate

limitations in the ability to maintain socially appropriate
behavior and adhere to basic standards of neatness and
cleanliness, and to changes in the work setting.

She concluded

by indicating that plaintiff’s frustration tolerance and stress
tolerance are low, and would probably be worsened by physical
pain, interpersonal issues, and fast-paced and/or high
production work quotas.

He recommended no public contact and

very little coworker/supervisor contact, and no
negotiation/confrontation (R. at 44-45).
The ALJ stated that he considered all three opinions, but
gave more weight to the opinion of Dr. Nystrom because he was an
examining source.

The ALJ noted that Dr. Snyder and Dr.

Wilkinson reviewed plaintiff’s records, but gave little weight
to the opinions of Dr. Wilkinson and Dr. Snyder (R. at 23).
Plaintiff argues that the ALJ erred by not giving greater
weight to the non-examining medical sources because their
opinions are more consistent with each other, and because they
9

had access to the entire record available at the time in which
they offered their opinions.

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).
evidence.

The court can only review the sufficiency of the

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).
As noted above, the opinions of examining physicians are
generally entitled to greater weight to the opinion of a nonexamining physician.

In appropriate circumstances, opinions

from non-examining medical sources may be entitled to greater
weight than the opinions of treating or examining sources.
96-6p, 1996 WL 374180 at *3 (emphasis added).

10

However, the

SSR

court will not reweigh the evidence.

The ALJ could reasonably

give greater weight to the examining source.
IV.

Did the ALJ err by not finding that plaintiff suffered from

a personality disorder?
At step two, the ALJ found that plaintiff suffered from
affective disorder and substance abuse.

The ALJ did not make a

finding that plaintiff suffered from a personality disorder.
Dr. Nystrom, Dr. Snyder and Dr. Wilkinson all diagnosed
plaintiff with a personality disorder (R. at 346, 54, 39-40).
Dr. Nystrom also diagnosed adjustment disorder and alcohol
dependence (R. at 346), while Dr. Snyder and Dr. Wilkinson
diagnosed affective disorder and alcohol/substance abuse
disorder (R. at 54, 39-40).

The ALJ gave great weight to the

opinion of Dr. Nystrom in making his RFC findings (R. at 23).
Thus, the ALJ gave great weight to the opinion of a treating
source whose diagnoses included personality disorder.
The ALJ in his decision stated that he considered all the
evidence, and specifically referenced and gave great weight to
the opinions of Dr. Nystrom.

The opinions of Dr. Nystrom were

based on a number of diagnoses, including personality disorder.
In light of the fact that the ALJ’s decision gave great weight
to the opinions of Dr. Nystrom, and Dr. Nystrom’s diagnoses
included personality disorder, the court finds that the ALJ
adequately considered all of plaintiff’s mental impairments,
11

including personality disorder.

The ALJ’s failure to

specifically mention the impairment of personality disorder, on
the facts of this case, is, at best, harmless error.
V.

Did the ALJ err by failing to consider whether plaintiff’s

impairments met or equaled listed impairment 12.08 (personality
disorders)?
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
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 his decision, the ALJ did not discuss listed impairment
12.08.

Plaintiff has presented no evidence that plaintiff’s

impairments meet or equal listed impairment 12.08.

There is no

medical opinion evidence in the record that this listed
impairment is met or equaled.

In fact, both Dr. Snyder and Dr.

Wilkinson opined that plaintiff’s listed impairments did not
meet the criteria of listed impairment 12.08 (R. at 54-55, 40).
Plaintiff has the burden to present evidence establishing
that her impairments meet or equal a listed impairment.
12

In

light of the medical opinion evidence that the criteria of
listed impairment 12.08 are not met in this case, and the
absence of any medical evidence that demonstrates that the
criteria of listed impairment 12.08 is met or equaled in this
case, the court finds that the ALJ did not err by not discussing
listed impairment 12.08.
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 24th day of March, Topeka, Kansas.

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

13