Purkeypyle v. Social Security Administration, Commissioner of
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 final decision. Signed by District Judge John W. Lungstrum on 01/31/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VICKI L. PURKEYPYLE,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
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 in the Administrative Law Judge’s
(ALJ) decision, the court ORDERS that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
On Jan. 20, 2017, Nancy A. Berryhill, became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure,
Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
Plaintiff applied for DIB and SSI benefits, alleging disability beginning August 30,
2012. (R. 19, 206, 216). Plaintiff exhausted proceedings before the Commissioner, and
now seeks judicial review of the final decision denying benefits. She argues that the ALJ
erred in weighing the medical opinions and in evaluating the credibility of Plaintiff’s
allegation of symptoms resulting from her impairments.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). 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 determines whether the ALJ’s 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
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 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),
416.920(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
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds that the record evidence supports the ALJ’s weighing of the
medical opinions and her evaluation of the credibility of Plaintiff’s allegations of
Evaluation of the Medical Opinions in the Record
Plaintiff claims the ALJ erred in weighing the medical opinions of her treating
healthcare providers, Dr. Sokolova, Dr. Jensen, and Dr. Cillessen. She argues it was error
to accord little weight to the opinion of her treating psychiatrist, Dr. Sokolova, no weight
to the opinion of her treating psychologist, Dr. Jensen, and little weight to the opinion of
her treating physician, Dr. Cillessen. Specifically, she argues that Dr. Sokolova’s opinion
is supported by “extensive mental status abnormalities throughout the treatment records”
(Pl. Br. 19), that the ALJ failed to specifically identify evidence contradicting Dr.
Sokolova’s opinions, id. at 21, and that reliance on non-examining mental healthcare
sources over treating sources is “particularly problematic” because “it is unethical for a
psychiatrist to offer a professional opinion unless he or she has conducted an examination
and has been granted proper authorization for such a statement.” Id. at 21-22 (quoting
Westphal v. Eastman Kodak Co. No. 05-CV-6120, 2006 WL 1720380 *5 (W.D.N.Y.
June 21, 2006) (quoting Am. Psych. Assn., The Principles of Medical Ethics, § 7, ¶3,
2006 Ed.)); (and citing Bethea v. Astrue, No. 310-cv-744 (JCH), 2011 WL 977062 *11
(D. Conn. Mar. 17, 2011) (applying Westphal in a Social Security case)). She argues that
the ALJ should not have relied on Plaintiff’s response to treatment to discount Dr.
Sokolova’s opinion (Pl. Br. 22), and that Dr. Sokolova’s opinion is supported by relevant
factors not adequately considered by the ALJ. Id. at 23. Finally, Plaintiff argues that “the
ALJ gave short shrift to the relevant” regulatory factors when weighing Dr. Cillessen’s
medical opinion and failed to specify the evidence which supports her finding that
Plaintiff is physically able to perform medium exertion and thereby erroneously
interposed his lay opinion over that of a physician. Id. at 24-25 (citing Kemp v. Bowen,
816 F.2d 1469, 1476 (10th Cir. 1987) and Soc. Sec. Ruling (SSR) 96-8p).
The Commissioner argues that the ALJ reasonably weighed the medical opinions.
She argues that the ALJ properly found Dr. Sokolova’s opinions inconsistent with the
record evidence including her own treatment notes (Comm’r Br. 6-7) and inconsistent
with Plaintiff’s activities of daily living, id. at 10, and relied excessively on Plaintiff’s
allegations. Id. at 11. She argues that the ALJ identified the evidence she relied upon to
discount Dr. Sokolova’s opinion and properly declined to accord Dr. Sokolova’s opinion
controlling weight. Id. She argues that an ALJ is not required to expressly apply every
regulatory factor and properly accorded greater weight to non-examining source opinions
because, despite the case law cited by Plaintiff, it is well-settled that the Social Security
Administration may rely on the opinions of non-examining consultants to make disability
decisions. (Comm’r Br. 12-13). Finally, she argues that the ALJ properly determined to
accord no weight to Dr. Jensen’s opinion and little weight to Dr. Cillessen’s opinion.
The ALJ’s Weighing of the Medical Opinions
The ALJ noted when she was considering the severity of Plaintiff’s mental
impairments at steps two and three of the sequential evaluation process, that she
considered the opinions of the state agency psychological consultants who reviewed the
evidence and completed the Psychiatric Review Technique at the initial level and at the
reconsideration level. (R. 24). She explained that the reconsideration level consultant
affirmed the opinion of the initial consultant with one notable exception--on
reconsideration the consultant found that Plaintiff has moderate restrictions in social
functioning rather than the mild restrictions found earlier. Id. The ALJ accorded weight
to the consultants’ opinion that Plaintiff’s mental impairments do not meet or equal a
Listing, because state agency consultants have expertise in evaluating impairments and
because she found no record evidence contradicting their conclusion. Id. She found that
the moderate restriction in social functioning was consistent with the record evidence, and
consequently accorded the opinion of the reconsideration consultant greater weight than
that of the initial consultant. Id., see also (R. 28) (same).
The ALJ found that Plaintiff has severe, but not disabling physical impairments,
and noted that she did not give great weight to the opinion of the state agency medical
consultant that Plaintiff’s degenerative joint disease was not severe, because it was
inconsistent with evidence received later and with the hearing testimony. (R. 27-28).
The ALJ considered the medical opinion of Dr. Cillessen regarding Plaintiff’s
physical capabilities, and accorded it little weight because Dr. Cillessen’s treatment visits
with Plaintiff were relatively infrequent, her opinion is inconsistent with medical
evidence showing mild diagnostic findings and minimal clinical signs, she apparently
relied quite heavily on Plaintiff’s report of symptoms and limitations, and because the
opinion is inconsistent with Plaintiff’s work activity and activities of daily living. (R.
28). The ALJ then turned to the medical opinions regarding Plaintiff’s mental
impairments, and reiterated her determination to accord greater weight to the opinion of
the state agency psychological consultant who reviewed the record at the reconsideration
level. Id. She noted that Dr. Jensen had treated Plaintiff for only three visits in slightly
more than a year, and provided no weight to Dr. Jensen’s opinion because “Dr. Jensen
declined to provide functional limitations due to her brief contact with the claimant.” Id.
The ALJ summarized the opinions prepared by Plaintiff’s treating psychiatrist, Dr.
Sokolova in May 2013, June 2013, and July 2014. (R. 29). She accorded little weight to
Dr. Sokolova’s opinions because they were inconsistent with the record evidence as a
whole and with Dr. Sokolova’s treatment notes. Id. She found them inconsistent with
Plaintiff’s work activities and with her activities of daily living, and found that in
completing the “Impairment Questionnaires” Dr. Sokolova “relied quite heavily on the
subjective report of symptoms and limitations provided by the claimant, and seemed to
uncritically accept as true most, if not all, of what the claimant reported.” (R. 29).
Finally, the ALJ noted that Dr. Sokolova referred Plaintiff to Dr. Blair for a
neuropsychological assessment, and accorded some weight to Dr. Blair’s “assessment that
sustained concentration is likely problematic.” Id.
The Standard for Weighing Medical Opinions
“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of [a
claimant’s] impairment(s) including [claimant’s] symptoms, diagnosis and prognosis.”
20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Such opinions may not be ignored and,
unless a treating source opinion is given controlling weight, all medical opinions will be
evaluated by the Commissioner in accordance with factors contained in the regulations.
Id. §§ 404.1527(c), 416.927(c); SSR 96-5p, West’s Soc. Sec. Reporting Serv., Rulings
123-24 (Supp. 2016). A physician or psychologist who has treated a patient frequently
over an extended period of time (a treating source) is expected to have greater insight into
the patient’s medical condition, and his opinion is generally entitled to “particular
weight.” Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). But, “the opinion of an
examining physician [(a nontreating source)] who only saw the claimant once is not
entitled to the sort of deferential treatment accorded to a treating physician’s opinion.”
Id. at 763 (citing Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995)). However, opinions
of nontreating sources are generally given more weight than the opinions of
nonexamining sources who have merely reviewed the medical record. Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004); Talbot v. Heckler, 814 F.2d 1456, 1463
(10th Cir. 1987) (citing Broadbent v. Harris, 698 F.2d 407, 412 (10th Cir. 1983), Whitney
v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982), and Wier ex rel. Wier v. Heckler, 734
F.2d 955, 963 (3d Cir. 1984)).
“If [the Commissioner] find[s] that a treating source’s opinion on the issue(s) of
the nature and severity of [the claimant’s] impairment(s) [(1)] is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and [(2)] is not
inconsistent with the other substantial evidence in [claimant’s] case record, [the
Commissioner] will give it controlling weight.” 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2); see also, SSR 96-2p, West’s Soc. Sec. Reporting Serv., Rulings 111-15
(Supp. 2016) (“Giving Controlling Weight to Treating Source Medical Opinions”).
The Tenth Circuit has explained the nature of the inquiry regarding a treating
source’s medical opinion. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003)
(citing SSR 96-2p). The ALJ first determines “whether the opinion is ‘well-supported by
medically acceptable clinical and laboratory diagnostic techniques.’” Id. at 1300 (quoting
SSR 96-2p). If the opinion is well-supported, the ALJ must confirm that the opinion is
also consistent with other substantial evidence in the record. Id. “[I]f the opinion is
deficient in either of these respects, then it is not entitled to controlling weight.” Id.
If the treating source opinion is not given controlling weight, the inquiry does not
end. Id. A treating source opinion 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.” Id. 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
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 the decision
for the weight he gives the opinion. Id. 350 F.3d at 1301. “Finally, if the ALJ rejects the
opinion completely, he must then give ‘specific, legitimate reasons’ for doing so.” Id.
(citing Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (quoting Frey v. Bowen, 816
F.2d 508, 513 (10th Cir. 1987)).
Plaintiff’s argument that Dr. Sokolova’s opinion should have been accorded
controlling weight fails because controlling weight is proper only if Dr. Sokolova’s
opinion “is not inconsistent with the other substantial evidence in [claimant’s] case
record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The threshold for denying
controlling weight is low. To deny controlling weight, the ALJ need only find evidence
which 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 [treating source’s]
medical opinion.” SSR 96-2, West’s Soc. Sec. Reporting Serv., Rulings 113 (Supp.
2016). At the very least, Dr. Sokolova’s opinion regarding marked mental limitations is
inconsistent with Dr. Wilkinson’s Mental RFC which provides for at most moderate
limitations. (R. 118-19, 132-33). While Plaintiff disagrees with Dr. Wilkinson’s opinion,
she does not, and she cannot, argue that it is an opinion which no reasonable mind would
accept to support a conclusion that Plaintiff has at most moderate mental limitations. The
ALJ did not err in failing to accord controlling weight to Dr. Sokolova’s opinion.
Plaintiff’s arguments, that the ALJ failed to identify evidence contradicting Dr.
Sokolova’s opinion and evidence that supports the ALJ’s finding that Plaintiff can
perform medium exertion, are belied by the court’s discussion above, and by the ALJ’s
summary and discussion of the record evidence in the decision. (R. 22, 24, 26-30). Her
related argument, that reliance on non-examining mental healthcare sources is
problematic because it is unethical for a psychiatrist to offer a professional opinion
without an examination and authorization, is misplaced. The responsibility for evaluating
the severity of a claimant’s mental impairments at the initial and reconsideration levels
has long been placed on psychological experts working as consultants for the agency. 20
C.F.R. §§ 404.1520a(e)(1), 416.920a(e)(1); see also 20 C.F.R. § 405.5 (defining
“Psychological expert”). Plaintiff does not argue that this process is contrary to the Act
or is unconstitutional. If Plaintiff believes it is an ethical violation for the consultants to
perform such work, her first recourse lies with the agencies that license the consultants,
not with this court. Moreover, the consultants in this case are psychologists, not
psychiatrists. And at first blush it appears to the court that Plaintiff’s applications for
benefits would constitute her authorization for the consultants to evaluate the severity of
her mental impairments in this context.
The cases relied upon by Plaintiff in this regard do not require a different
conclusion. First, the court notes that both case cited by Plaintiff are unpublished
decisions by district courts in other jurisdictions and are not binding on this court.
Moreover, the court finds them unpersuasive because the are distinguishable from this
case. Westphal is a case brought under the Employee Retirement Income Security Act
(ERISA). 2006 WL 1720380, at *1. Although Westphal concerned long term disability
pursuant to the terms of the ERISA plan at issue in that case, disability under the Social
Security Act is not determined in accordance with that plan, and the laws and regulations
controlling consideration of an ERISA claim are not related to judicial review of a
disability decision by the Social Security Administration. Bethea is a case involving
judicial review of the Commissioner’s denial of an application for SSI, but the controlling
issue there was that the ALJ relied on the opinion of a non-examining source over the
opinion of a non-treating source who had examined the claimant, Dr. Chwastiak. 2011
WL 977062, at *11. The non-examining source relied exclusively on Dr. Chwastiak’s
examination, but reached a different conclusion without discrediting Dr. Chwastiak’s
conclusion and without explaining why his opinion differed from that of Dr. Chwastiak.
Id. The court in Bethea relied upon Westphal only for the principal that the opinion of a
physician who has examined a claimant is generally worthy of greater weight than that of
a non-examining source. Id. (noting Westphal’s holding that the sole reliance on nonexamining physicians’ opinions in the face of conflicting evidence was an abuse of
discretion). To the extent that the court in Bethea may have held that an opinion
regarding a claimant’s mental impairments from a non-examining source may never be
given weight over that of a mental healthcare provider who examined the claimant
because an opinion regarding mental impairments requires the healthcare provider to
perform an examination before formulating an opinion, this court disagrees. That
proposition is contrary to the disability determination process used for many years by the
Social Security Administration and would require the Commissioner to either accept
without question the opinion of an examining healthcare provider procured by the
claimant or procure a consultative examination in every case where mental impairment
might be an issue.
Plaintiff’s arguments, that Dr. Sokolova’s opinion is supported by relevant factors
not adequately considered by the ALJ and that the ALJ did not adequately consider the
relevant regulatory factors when weighing Dr. Cillessen’s medical opinion, seek merely
to have the court reweigh the evidence for Plaintiff’s benefit--which it may not do.
Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (quoting Hamilton v. Sec’y of
Health & Human Servs., 961 F.2d 1495, 1500 (10th Cir. 1992)). The arguments
presented in Plaintiff’s Brief and rejected by the court above illustrate the error in
The question for the court on judicial review of an agency decision is not whether
the plaintiff can present a case which is based upon record evidence, but whether the
Commissioner’s final decision is supported by the record evidence. As the Supreme
Court noted long ago, “the possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966).
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.” Lax, 489 F.3d at 1084 (quotations and brackets omitted)
The court’s duty on judicial review is to determine whether the Commissioner’s
decision is supported by the record evidence. Therefore, it is incumbent on Plaintiff to
demonstrate that the evidence relied upon by the ALJ does not support the conclusion
reached or that the record evidence precludes the conclusion. Plaintiff has not done that
here, but has merely suggested other potential interpretations of the evidence.
The ALJ accorded little weight to Dr. Cillessen’s opinion because although she
was a treating source, she saw Plaintiff relatively infrequently, her limitations to
sedentary work and to a six hour day are inconsistent with mild diagnostic findings and
minimal clinical signs, she seemed to uncritically accept Plaintiff’s report of limitations as
true, and her opinion is inconsistent with Plaintiff’s daily activities and the fact that
Plaintiff was concurrently working. (R. 28). Plaintiff’s only response to the reasons
given by the ALJ is that although Dr. Cillessen treated Plaintiff relatively infrequently,
she was a part of a “treatment team” at the Veterans’ Affairs Medical Center where
Plaintiff was treated regularly. (Pl. Br. 24). But, Plaintiff points to no evidence that the
VA was using a team approach to treatment which would overcome the infrequent contact
between Plaintiff and Dr. Cillessen and justify greater weight to Dr. Cillessen’s opinion.
And, instead of addressing any of the remaining reasons given by the ALJ, Plaintiff
merely points to other record evidence which in her view supports Dr. Cillessen’s
opinion. But as noted above the court may not reweigh the evidence.
Plaintiff acknowledges that Dr. Jensen did not provide specific functional
limitations, and she does not argue that the evidence required greater weight be accorded
to Dr. Jensen’s opinion. She merely asserts that Dr. Sokolova’s opinion should have been
accorded greater weight because Dr. Jensen’s opinion the Plaintiff “cannot withstand
even low stress work” is “consistent with findings from Dr. Sokolova.” (Pl. Br. 24). As
the ALJ found, Dr. Jensen did not provide any functional limitations for Plaintiff. (R.
341-44). In fact, she stated that her conclusions with regard to Plaintiff’s mental abilities
were: “Unknown, given my brief contact w/ pt. at a crisis point in her life.” (R. 341).
This is ample evidentiary support for the ALJ’s decision to give no weight to Dr. Jensen’s
opinion. Moreover, contrary to Plaintiff’s assertion that Dr. Jensen opined that Plaintiff
“cannot withstand even low stress work” (Pl. Br. 24), the record reveals that Dr. Jensen
checked the block indicating Plaintiff is capable of low stress work. (R. 345).
With regard to Dr. Sokolova’s opinions, the ALJ accorded them only little weight
because they were inconsistent with the record evidence as a whole, inconsistent with Dr.
Sokolova’s treatment notes which showed a positive response to pharmacotherapy,
inconsistent with Plaintiff’s work activities and with her activities of daily living, and
because in completing the “Impairment Questionnaires” Dr. Sokolova “relied quite
heavily on the subjective report of symptoms and limitations provided by the claimant,
and seemed to uncritically accept as true most, if not all, of what the claimant reported.”
(R. 29). Plaintiff points to the regulatory standard for evaluating mental impairments and
to record evidence which in her view supports Dr. Sokolova’s opinions, but does not
demonstrate fallacies in the ALJ’s decision. She argues that the positive response to
pharmacotherapy does not demonstrate the significant improvement necessary to function
without the limitations opined by Dr. Sokolova. Plaintiff is correct that a positive
response to medication does not prove ability to work, but Plaintiff did have the positive
response noted by the ALJ, and that is not the only basis the ALJ relied upon to discount
Dr. Sokolova’s opinion. Plaintiff admits that she worked during the relevant time, but
argues that the work activity did not reach the level of significant gainful activity and
does “not preclude a finding of disability.” (Pl. Br. 22). Plaintiff’s argument turns the
burden of proof in a disability case on its head. It is not the Commissioner’s
responsibility to point to evidence that precludes a finding of disability, it is Plaintiff’s
burden to present evidence that shows an inability to perform any substantial gainful
Plaintiff has shown no error in the ALJ’s evaluation of the medical opinions.
Plaintiff claims the ALJ failed to evaluate her credibility properly. And in
supporting her claim, her primary argument is that the ALJ applied “flawed reasoning”
and substituted “his [sic] interpretation of the clinical and objective evidence for the
treating experts’ opinions.” (Pl. Br. 27) see also id. at 25 citing Kemp v. Bowen, 816
F.2d 1469, 1476 (10th Cir. 1987). She also argues that the ALJ erroneously
“overemphasized Ms. Purkeypyle’s response to treatment,” and “failed to explain how”
Plaintiff’s work activity and activities of daily living contradict a finding of disability. Id.
at 28. The Commissioner points to the ALJ’s findings regarding credibility, and argues
that the record evidence supports those findings. (Comm’r Br. 18-20). She argues that
“any arguable deficiency” in the ALJ’s reliance on Plaintiff’s activities of daily living or
her positive response to medication would not change the credibility determination
because the ALJ relied on multiple factors in reaching that determination. Id. at 20.
The ALJ’s Findings
The ALJ found that Plaintiff’s allegations of symptoms resulting from her
impairments are partially (R. 30), but not entirely, credible. (R. 29). She relied upon
several factors in reaching this conclusion and discounting Plaintiff’s allegations: the
medical findings and treatment history, Plaintiff’s daily activities, id., her continued
seeking of employment after her alleged onset date, the part-time job she had maintained
since April 2013, and that medications had helped to relieve her symptoms. Id. at 30.
As Plaintiff’s Brief suggests, the Tenth Circuit has explained the analysis for
considering subjective testimony regarding symptoms. Thompson v. Sullivan, 987 F.2d
1482, 1488 (10th Cir. 1993) (dealing specifically with pain).
A claimant’s subjective allegation of pain is not sufficient in itself to
establish disability. Before the ALJ need even consider any subjective
evidence of pain, the claimant must first prove by objective medical
evidence the existence of a pain-producing impairment that could
reasonably be expected to produce the alleged disabling pain. This court
has stated: The framework for the proper analysis of Claimant’s evidence
of pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). We
must consider (1) whether Claimant established a pain-producing
impairment by objective medical evidence; (2) if so, whether there is a
“loose nexus” between the proven impairment and the Claimant’s
subjective allegations of pain; and (3) if so, whether, considering all the
evidence, both objective and subjective, Claimant’s pain is in fact disabling.
Thompson, 987 F.2d at 1488 (citations and quotation omitted).
In evaluating credibility, the court has recognized a non-exhaustive list of factors
which should be considered. Luna, 834 F.2d at 165-66. These factors include:
the levels of medication and their effectiveness, the extensiveness of the
attempts (medical or nonmedical) to obtain relief, the frequency of medical
contacts, the nature of daily activities, subjective measures of credibility
that are peculiarly within the judgment of the ALJ, the motivation of and
relationship between the claimant and other witnesses, and the consistency
or compatibility of nonmedical testimony with objective medical evidence.
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Thompson, 987 F.2d at
The Commissioner has promulgated regulations suggesting relevant factors to be
considered in evaluating credibility which overlap and expand upon the factors stated by
the court: Daily activities; location, duration, frequency, and intensity of symptoms;
factors precipitating and aggravating symptoms; type, dosage, effectiveness, and side
effects of medications taken to relieve symptoms; treatment for symptoms; measures
plaintiff has taken to relieve symptoms; and other factors concerning limitations or
restrictions resulting from symptoms. 20 C.F.R. § 404.1529(c)(3)(i-vii). Again, the court
does not require a formalistic factor-by-factor recitation of the evidence. So long as the
ALJ sets forth the specific evidence she relies on in evaluating the claimant’s credibility,
the dictates of Kepler are satisfied.
The court’s review of an ALJ’s credibility determination is deferential. Credibility
determinations are generally treated as binding on review. Talley v. Sullivan, 908 F.2d
585, 587 (10th Cir. 1990); Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983).
“Credibility determinations are peculiarly the province of the finder of fact” and will not
be overturned when supported by substantial evidence. Wilson, 602 F.3d at 1144; accord
Hackett, 395 F.3d at 1173. Therefore, in reviewing the ALJ’s credibility determinations,
the court will usually defer to the ALJ on matters involving witness credibility. Glass v.
Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). “However, ‘[f]indings as to credibility
should be closely and affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.’” Wilson, 602 F.3d at 1144 (quoting Huston v.
Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988); Hackett, 395 F.3d at 1173 (same).
Once again, Plaintiff’s arguments regarding “flawed reasoning,” that Plaintiff’s
work activities and activities of daily living do not contradict a finding of disability, and
that the ALJ overemphasized Plaintiff’s response to treatment seek to have the court
reweigh the evidence, which it cannot do. Flaherty, 515 F.3d at 1071. Plaintiff’s
suggestion that the ALJ substituted her interpretation of the evidence for that of the
treating healthcare providers is misplaced. Plaintiff is correct that the court in Kemp held
that while “the ALJ is authorized to make a final decision concerning disability, [s]he can
not interpose h[er] own ‘medical expertise’ over that of a physician,” especially the
regular treating physician. Kemp, 816 F.2d at 1476. But, that holding was based upon
the fact that in Kemp “there was not even evidence from a consulting physician retained
by the agency to contradict the medical diagnosis, findings, and conclusions of [Mrs.
Kemp’s] treating physician.” Id. Here, on the other hand, there is conflicting medical
evidence, and as the Kemp court recognized when the evidence is equivocal and the
medical opinions are conflicting, it is the ALJ’s duty to resolve the ambiguities and the
conflicts and to make the final decision concerning disability. That is what she did here,
and Plaintiff has shown no error in her credibility finding.
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 final decision.
Dated this 31st day of January 2017, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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