Dunlap v. Social Security Administration

Filing 15

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 06/17/2015. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JEREMY WAYNE DUNLAP,

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

CIVIL ACTION
No. 14-1240-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) and
Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding no error, the court ORDERS that judgment
shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the
Commissioner’s decision.
I.

Background
Plaintiff applied for DIB and SSI, alleging disability beginning March 4, 2010. (R.

21, 422, 436). He exhausted proceedings before the Commissioner, and now seeks
judicial review of the decision denying benefits. Plaintiff argues that the Administrative

Law Judge (ALJ) erred: in determining that Plaintiff’s condition does not meet or equal
Listing 1.02A of the Listing of Impairments; in according “little weight” to the opinion of
his treating physician, Dr. Bruner; and in failing to assess limitations in his residual
functional capacity (RFC) resulting from non-severe right carpal tunnel syndrome.
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 she 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
2

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).
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 he
has a severe impairment(s), and whether the severity of his 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 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 his
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,
3

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
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court considers each alleged error, but finds no error in the Commissioner’s
decision. Because Plaintiff relies on Dr. Bruner’s opinion in his argument that Listing
1.02 is met or equaled (Pl. Br. 12, 13, 15) (citing R. 665, 669), the court begins with
consideration of the ALJ’s evaluation of Dr. Bruner’s opinion.
II.

Evaluation of Dr. Bruner’s Treating Source Opinion
Plaintiff claims the ALJ erred in evaluating Dr. Bruner’s medical opinion. He

claims the opinion should have been given controlling weight. He argues that the three
reasons given by the ALJ to discount Dr. Bruner’s medical opinion are not specific,
legitimate reasons sufficient to justify discounting the treating source opinion, and that
even if they justify the failure to accord controlling weight, they are insufficient to justify
according only “little weight” to the opinion. The Commissioner argues that the ALJ
properly declined to afford controlling weight to Dr. Bruner’s opinion because it was
inconsistent with Dr. Bruner’s treatment notes. She argues that the reasons given to
discount Dr. Bruner’s opinion are supported by the record evidence. The court agrees
with the Commissioner.
A.

Standard for Evaluating a Treating Source Opinion

4

A treating physician’s opinion about the nature and severity of a claimant’s
impairments should be given controlling weight if it is well supported by clinical and
laboratory diagnostic techniques and if it is not inconsistent with other substantial record
evidence. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003); 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2). When a treating source opinion is not given
controlling weight, the ALJ must specify what lesser weight she assigned the treating
physician’s 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)). 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
5

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

The ALJ’s Findings

As Plaintiff recognizes, the ALJ did not give controlling weight to Dr. Bruner’s
medical opinion, but stated that she accorded it only “little weight.” (R. 31). She
provided three reasons for doing so. First, she found that the opinion is not supported by
the medical evidence or the doctor’s treatment notes. Id. She found that Dr. Bruner did
not provide rationale or evidence to support his sitting, standing, or walking restrictions,
and finally, she noted that Dr. Bruner provided a disability opinion which is reserved to
the Commissioner. Id.
C.

Analysis

Plaintiff asserts that the ALJ’s enumeration of Plaintiff’s daily activities in reason
number one is inconsistent with Plaintiff’s testimony and written statements, and with the
medical evidence of record. With regard to Plaintiff’s allegations of limitations in daily
activities resulting from his impairments, the ALJ provided a thorough credibility analysis
in her decision (R. 27-30), and found that Plaintiff’s allegations “are not entirely
credible.” (R. 30). Although Plaintiff is correct that the ALJ’s findings regarding daily
activities are inconsistent with Plaintiff’s allegations, the ALJ discounted the credibility
6

of Plaintiff’s allegations, and Plaintiff does not even make an argument that the ALJ’s
credibility determination is erroneous. Plaintiff has shown no error in this regard.
Moreover, although Plaintiff asserts that the ALJ’s findings regarding daily
activities are inconsistent with the record medical evidence, he does not cite to or name a
single, specific inconsistency in that evidence. The ALJ discussed the record evidence
and the medical records in the decision, and the court agrees with her that Dr. Bruner’s
opinion is not supported by the medical evidence or by Dr. Bruner’s treatment notes. As
but one glaring example of this lack of support, in almost every treatment note after
Plaintiff’s alleged onset date, Dr. Bruner stated Plaintiff’s weight bearing status is full.
(R. 639, 651, 809, 812, 824).
Plaintiff also asserts that the ALJ’s second reason was wrong to say that Dr.
Bruner provided “no rationale or evidence to support the sitting, standing, walking
restrictions.” (R. 31). Dr. Bruner’s medical source statement had a space for the doctor
to “[i]dentify the particular medical or clinical findings . . . which support your
assessment or any limitations and why the findings support the assessment.” (R. 665).
As Plaintiff argues, Dr. Bruner inserted a “rationale” in that space – “Severe arthritis of
the knee” - “xrays reveal severe arthritis.” Id. However, as the ALJ found, this
“rationale” does not support the sitting, standing, and walking restrictions of Dr. Bruner.
The mere presence of severe arthritis does not justify limitations to sit 2 hours in a day,
stand 1 hour in a day, or walk 2 hours in a day. Moreover, despite the instructions on the

7

form, Dr. Bruner did not explain why the findings of severe arthritis support the
limitations assessed.
As to the final reason given by the ALJ--that “Dr. Bruner gives an opinion on
disability which is reserved to the Commissioner” (R. 31)--Plaintiff argues that “Dr.
Bruner did not offer an opinion on whether Mr. Dunlap is disabled, he only indicated that
Mr. Dunlap was unable to work eight hours per day.” (Pl. Br. 17) (citing R. 665). The
court finds that, in context, Dr. Bruner’s statement is a “statement that [Plaintiff is]
disabled” within the meaning of the regulations, and as such, is an opinion on an issue
reserved to the Commissioner and may be given no special significance. 20 C.F.R.
§§ 404.1527(e), 416.927(e). On his medical source statement, Dr. Bruner checked blocks
indicating his opinion that in an eight-hour workday Plaintiff would be able to sit 2 hours,
stand 1 hour, and walk two hours. (R. 665). Immediately thereafter, the form asks, “If
the total time for sitting, standing and walking does not equal or exceed 8 hours, what
activity is the individual performing for the rest of the 8 hours?” Id. It was in response to
that inquiry that Dr. Bruner responded, “He will not be able to work 8 hours in a day.”
Id. This statement is not an opinion on Plaintiff’s sitting, standing, walking, or any other
functional limitations, those limitations appear elsewhere in the medical source statement.
This is a statement of the doctor’s opinion regarding disability. The ALJ is correct to
discount Dr. Bruner’s opinion, in part, because he gave an opinion on disability.
Having failed to show error in the ALJ’s reasons for discounting Dr. Bruner’s
opinion, Plaintiff next argues that the “other” regulatory factors suggest that greater
8

weight should be accorded to Dr. Bruner’s opinion. (Pl. Br. 18). This is simply an
invitation to the court to reweigh Dr. Bruner’s opinion and to substitute its judgment
regarding that opiunion for that of the ALJ. As noted above, the court may not do so.
Bowman, 511 F.3d at 1272; Hackett, 395 F.3d at 1172. The ALJ applied the correct legal
standard to evaluate Dr. Bruner’s opinion and substantial record evidence supports her
findings in that regard. The court finds no error.
III.

Listing 1.02A, Major Dysfunction of a Joint
Plaintiff claims that his condition meets or equals Listing 1.02A because he has

been diagnosed with end stage osteoarthritis in his left knee, he has been recommended
for a total knee replacement, and he is unable to ambulate effectively as defined in the
Musculoskeletal System Listings. He points out that the ALJ found that Plaintiff “does
not have an ‘extreme’ limitation in the ability to ambulate effectively” (R. 26), and argues
that in making this finding she applied a more demanding standard than the Listing
contains. He argues that his testimony and written statements indicate he is unable to
ambulate effectively and that the ALJ did not discuss Plaintiff’s own description of his
ambulation. He argues that the ALJ did not recognize that “someone with obesity and
arthritis affecting a weight-bearing joint may have more pain and limitation than might be
expected from the arthritis alone,” and that she determined that Plaintiff’s obesity was not
disabling merely because it did not affect Plaintiff’s cardiac or pulmonary function,
without realizing that obesity magnifies Plaintiff’s pain and other limitations resulting
from arthritis. (Pl. Br. 13) (quoting Social Security Ruling (SSR) 02-1p, 2000 WL
9

628049, at *6). Finally, Plaintiff argues that the ALJ isolated facts that support her
decision while ignoring facts which detract from the decision.
The Commissioner argues that even if Plaintiff’s condition is assumed to meet the
other requirements of Listing 1.02A, the evidence does not establish inability to ambulate
effectively. She points out that “inability to ambulate effectively” requires an “extreme
limitation of the ability to walk,” and argues that Plaintiff’s contention that the ALJ erred
in requiring an extreme limitation is without merit. (Comm’r Br. 10) (quoting 20 C.F.R.,
Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b)(1)).
A.

Step Three Standard

The Commissioner has provided a “Listing of Impairments” which describes
certain impairments that she considers disabling. 20 C.F.R. §§ 404.1525(a), 416.925(a)
(2013); see also, Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If a claimant’s
condition meets or equals the severity of a Listed impairment, his impairment is
conclusively presumed disabling. Williams, 844 F.2d at 751; see Bowen v. Yuckert, 482
U.S. 137, 141 (1987). However, 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.” Riddle v. Halter, No. 00-7043, 2001 WL 282344 at *1
(10th Cir. Mar. 22, 2001) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)
(emphasis in Zebley)). “An impairment that manifests only some of [the Listing] criteria,
no matter how severely, does not qualify” to meet or equal the Listing. Zebley, 493 U.S.
at 530.
10

“The [Commissioner] explicitly has set the medical criteria defining the listed
impairments at a higher level of severity than the statutory standard. The listings define
impairments that would prevent an adult, regardless of his age, education, or work
experience, from performing any gainful activity, not just ‘substantial gainful activity.’”
Zebley, 493 U.S. at 532-33 (emphasis in original) (citing 20 C.F.R. § 416.925(a) (1989)).
The listings “streamlin[e] the decision process by identifying those claimants whose
medical impairments are so severe that it is likely they would be found disabled
regardless of their vocational background.” Yuckert, 482 U.S. at 153. “Because the
Listings, if met, operate to cut off further detailed inquiry, they should not be read
expansively.” Caviness v. Apfel, 4 F. Supp. 2d 813, 818 (S.D. Ind. 1998).
B.

Analysis

As the parties agree, Listing 1.02A is met or equalled in this case only if, among
other criteria, the claimant’s impairment(s) result in an “inability to ambulate effectively.”
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.02A. Here, the ALJ determined that the criteria
of Listing 1.02A are not met or equaled because the evidence does not show an “inability
to ambulate effectively.” “Inability to ambulate effectively means an extreme limitation
of the ability to walk.” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b)(1) (emphasis
added). “To ambulate effectively, individuals must be capable of sustaining a reasonable
walking pace over a sufficient distance to be able to carry out activities of daily living.”
Id., § 1.00(B)(2)(b)(2). And, they must be able to travel to and from a place of
employment without companion assistance. Id.
11

Plaintiff argues that his testimony and written statements show he is unable to
ambulate effectively, and that the ALJ erroneously ignored his testimony and statements.
As noted above, the ALJ found that Plaintiff’s allegations are not entirely credible, and
Plaintiff makes no argument of error in that regard. Plaintiff shows no error in the ALJ’s
rejection of his testimony and statements regarding an inability to ambulate effectively.
Plaintiff also argues that Dr. Bruner’s opinion supports a finding that he is unable
to ambulate effectively as defined in the regulations. But, as the court found above, the
ALJ properly discounted Dr. Bruner’s opinion and, consequently, the failure to rely on
that opinion to show an inability to ambulate effectively is not error.
Next, Plaintiff argues that the ALJ applied the incorrect legal standard when she
stated that in order to meet or equal Listing 1.02A Plaintiff must have an “extreme”
limitation in the ability to ambulate effectively. The court finds no error. While it is true
that Listing 1.02A does not use words requiring an “extreme” limitation in the ability to
ambulate effectively, the Listing does require a major dysfunction of a major peripheral
weight-bearing joint “resulting in inability to ambulate effectively as defined in1.00B2b.”
20 C.F.R., Pt. 404, Subpt. P, App. 1 § 1.02A (emphasis added). It strikes the court that
the inability to ambulate effectively is in itself an extreme limitation. And, as quoted
above, the regulations specifically explain--in these words--that “[i]nability to ambulate
effectively means an extreme limitation in the ability to walk.” Id. § 1.00(B)(2)(b)(1)
(emphases added). The court finds no error in the ALJ’s phrasing of the regulatory
criterion. Moreover, Plaintiff has shown no extreme limitation in his ability to walk. As
12

the ALJ noted, Plaintiff clearly has knee pain, and has been recommended for a total knee
replacement. (R. 30). However, the record also supports the ALJ’s finding that
Plaintiff’s medications have been controlling his pain, and that he was “‘working under
the table’ at an oil company doing general maintenance and labor activities, which
included mowing.” Id. This does not evince an extreme limitation in the ability to walk.
Finally, Plaintiff argues that the ALJ failed to evaluate properly the role of obesity
in considering Plaintiff’s impairments. Again, the court finds no error. Plaintiff quotes
SSR 02-1p for the proposition that obesity can combine with other impairment to produce
greater limitations than either would produce alone, and that obesity when present along
with arthritis in a weight-bearing joint may produce “more pain and limitation that might
be expected from the arthritis alone.” (Pl. Br. 13) (quoting 2000 WL 628049, at *6). He
then argues that the ALJ did not indicate how she considered the magnifying effects of
obesity in her decision. Plaintiff’s argument turns the burden of proof in a Social Security
case on its head. It is Plaintiff’s burden to prove that he has impairments which preclude
substantial gainful activity. It is not the ALJ’s burden to prove that Plaintiff’s
impairments are not disabling. Plaintiff points to no record evidence demonstrating that
his obesity in combination with his knee arthritis produces greater pain and limitations
than assessed by the ALJ. In fact, in light of the evidence that Plaintiff was “‘working
under the table’ at an oil company doing general maintenance and labor activities, which
included mowing,” the court sees no such evidence of aggravation. Plaintiff shows no
error in the ALJ’s determination that his impairments do not meet or equal Listing 1.02A.
13

IV.

Consideration of Impairments in Combination
In his final allegation of error, Plaintiff notes that the ALJ found that Plaintiff has

the medically determinable impairment of right hand carpal tunnel syndrome which is not
severe within the meaning of the Act, and argues that it was error for the ALJ to fail to
include functional limitations resulting from Plaintiff’s carpal tunnel syndrome. The
problem with this argument is that Plaintiff does not point to record evidence
demonstrating functional limitations resulting from his carpal tunnel syndrome which
were not adequately accounted for in the RFC assessed by the ALJ. Plaintiff’s argument
implies that he is unable to perform work with his right hand for more than five minutes
at a time, but Plaintiff does not point to any record evidence requiring such a limitation.
Plaintiff has not met his burden to show error in this regard.
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.
Dated this 17th day of June 2015, at Kansas City, Kansas.

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

14