Frakes v. Social Security Administration, Commissioner of

Filing 20

MEMORANDUM AND ORDER - It is ordered by the Court 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 04/13/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BETTY FRAKES,

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)
Plaintiff,
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v.
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)
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
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)
Defendant.
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________________________________________ )

CIVIL ACTION
No. 16-1066-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under
sections 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 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.
I.

Background

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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
is necessary.

Plaintiff applied for SSI benefits, alleging disability beginning December 9, 2006.
(R. 16, 207). 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 treating source opinion of her treating psychologist, Mr. Prouse, LMLP
(Licensed Masters Level Psychologist).
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
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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. § 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. § 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
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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 no error and addresses Plaintiff’s arguments in the order addressed
in her Social Security Brief.
II.

Discussion
Plaintiff acknowledges that the ALJ accorded significant weight to Mr. Prouse’s

treating source opinion (Pl. Br. 9), but argues that he committed a reversible error because
“he did not include many of the limitations [Mr.] Prouse opined [Ms.] Frakes had.” Id. at
12. Specifically, Plaintiff notes that Mr. Prouse opined that Plaintiff has moderate
limitations in the abilities to remember locations and work-like procedures; to accept
instructions and respond appropriately to criticism from supervisors; to perform activities
within a schedule, maintain regular attendance, and be punctual within customary
tolerances; and the ability to complete a normal workday and workweek without
interruption from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods. Id. at 13 (citing R. 443-44).
She argues that the RFC assessed does not include a limitation on ability to remember
locations and procedures, or a limitation “related to responding to supervision or
communicating with supervisors,” and that the remaining moderately limited abilities
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accepted by the ALJ “suggest[] that [Ms. Frakes] would have at least some problems with
pace, attendance, and working within a schedule,” but that the ALJ did not assess
“limitations related to any of these deficiencies.” (Pl. Br. 13). Plaintiff argues that the
ALJ “unequivocally accepted the moderate limitations addressed above but did not
formulate an RFC that captured all the concrete consequences of [Ms.] Frake’s severe
impairments,” and “provided no reason to exclude the limitations contained in [Mr.]
Prouse’s opinion from the RFC assessment.” Id. at 15. She then argues that the
hypothetical questions presented to the vocational expert did not relate with precision all
of Plaintiff’s limitations because it did not include all of the moderate limitations opined
by Mr. Prouse and accepted by the ALJ. Id.
In response, the Commissioner notes that the ALJ discounted Mr. Prouse’s
opinions that Plaintiff would be off task ten percent of the workday and would miss four
days of work each month because they are not consistent with the minimal clinical signs
and findings in the record. (Comm’r Br. 14). She argues that the inconsistencies relied
upon by the ALJ to discount this portion of Mr. Prouse’s opinion include inconsistencies
with the clinical signs and findings in Mr. Prouse’s own treatment notes, and that those
reasons are supported by the record evidence. Id. at 14-15. She argues three reasons
Plaintiff’s allegation of error should not be accepted. Id. at 16-18. She notes that the
Mental RFC Assessment form used by the Social Security Administration (SSA) has a
“Section I, Summary Conclusions” containing 20 mental abilities identical to the mental
abilities at issue here and contained in section II of the “Medical Source Statement 5

Mental” completed by Mr. Prouse. (Comm’r Br. 16). She points out that the SSA’s
Program Operations Manual System (POMS) provides that Section I of the SSA Mental
RFC Assessment form is only a worksheet to help decide the presence and degree of
functional limitations and the adequacy of the evidentiary documentation of those
limitations, but does not constitute the RFC assessment. Id. She points out that Section
III of the Commissioner’s Mental RFC Assessment form is the place where the actual
RFC assessment appears--where the medical source explains the limitations documented
in Section I in terms of the functional limitations in the claimant’s mental abilities in a
work setting. Id. She argues that in light of this usage of the SSA’s Mental RFC
assessment form, Mr. Prouse’s opinion regarding mild limitations or moderate limitations
is not an opinion regarding functional capacity because Mr. Prouse “did not ultimately
say what he believed Plaintiff’s residual functional capacity was.” Id. The
Commissioner next argues that the ALJ accounted for Mr. Prouse’s opinion regarding
moderate limitations when he restricted Plaintiff to unskilled work (simple to intermediate
work) and when he restricted Plaintiff to only occasional interaction with co-workers and
the public. Id. at 17. Finally, the Commissioner argues that if the moderate limitations
opined by Mr. Prouse are not accounted for in the RFC assessed, they are not supported
by the record evidence. Id. at 17-18.
Plaintiff replies to the Commissioner’s first argument, asserting that Mr. Prouse’s
opinion is in fact a medical opinion because the POMS applies only to the SSA, not to a
treating medical source, and that the Tenth Circuit has clearly held that check-box forms
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such as the Medical Source Statement completed by Mr. Prouse are medical opinions
which must be weighed in accordance with the regulations. (Pl. Reply 1) (citing POMS
§ DI 24510.060; Anderson v. Astrue, 319 F. App’x 712, 723 (10th Cir. 2009); and 20
C.F.R. § 404.1527(d)2). She next asserts that to argue that the ALJ accounted for all parts
of Mr. Prouse’s opinion is “simply irrational” because dealing with co-workers and the
public is not the same as accepting and responding appropriately to supervisors, and a
limitation to unskilled work does not capture the totality of the moderate limitations
opined. Finally, she argues that the Commissioner’s argument that the record evidence
does not support the limitations opined is merely a post-hoc rationalization.
Plaintiff is correct that a treating source opinion is generally entitled to “particular
weight” Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). And, even when it is not
accorded controlling weight it is still entitled to deference. Watkins v. Barnhart, 350 F.3d
1297, 1300-01 (10th Cir. 2003). Moreover, when an ALJ’s RFC assessment conflicts
with a medical source opinion, the ALJ must explain why he did not adopt the opinion,
and how any ambiguities and material inconsistencies in the evidence were considered
and resolved. Social Security Ruling (SSR) 96-8p, West’s Soc. Sec. Reporting Serv.,

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The regulation cited by Plaintiff does not apply to an application for SSI such as is
at issue in this case. Nevertheless, the court takes judicial notice of 20 C.F.R. § 416.927
which applies to SSI applications and is identical in every relevant respect to 20 C.F.R.
§ 404.1527.
Moreover, the regulations were amended in 2012, more than two years before the
ALJ decision in this case, and the subparagraph to which Plaintiff apparently cites as
authority for her argument was moved from subparagraph (d) to subparagraph (c) of both
20 C.F.R. §§ 404.1527 and 416.927.
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Rulings 149-50 (Supp. 2016). But, Plaintiff has not shown that the ALJ erred in his
application of this standard.
As Plaintiff argues, the ALJ accorded significant weight to Mr. Prouse’s opinion,
except that he rejected the opinions that Plaintiff would be off-task ten percent of the
workday and would miss four days of work each month. (R. 25). Thereby he accepted
the rest of Mr. Prouse’s treating source opinion. However, Plaintiff has not shown that in
making his RFC assessment the ALJ failed to account for any limitations opined by Mr.
Prouse.
As suggested by the Commissioner’s argument, the form completed by Mr. Prouse
contains a listing of 20 mental abilities. (R. 443-44). For each ability the form asks the
medical source to rate the claimant’s performance with one of four limitations; mildly
limited, moderately limited, markedly limited, or extremely limited. Id. The form does
not provide a category for a less-than-mild limitation such as “not significantly limited,”
or “not limited,” it does not define the term “Mildly Limited,” and it does not instruct the
medical source how he should fill out the form if the claimant’s performance in a
particular ability is less than mildly limited. Id. Not surprisingly, Mr. Prouse provided a
rating for Plaintiff for each of the mental abilities requested, using one of the four
categories provided on the form. He rated fifteen abilities “Mildly Limited” and five
abilities “Moderately Limited.” Id. The form provides a definition for “Moderately
Limited – Impairment levels are compatible with some, but not all, useful functioning.
Considered to be 1 standard deviation below the norm, or 30% overall reduction in
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performance.” (R. 443). Therefore, one considering Mr. Prouse’s opinions should
assume that Ms. Frakes has a 30% reduction in her functional performance in each of the
five mental abilities rated moderately limited. The ALJ stated he gave this portion of Mr.
Prouse’s opinion significant weight, and although Plaintiff understands the limitations
opined to be greater than the ALJ, she has not shown that the ALJ’s view is not supported
or that he did not accord substantial weight to this portion of Mr. Prouse’s opinion.
Plaintiff argues that the 30% percent reduction opined by Mr. Prouse would result
in greater “concrete consequences” from her mental impairments than assessed by the
ALJ. (Pl. Br. 15). But, as the Commissioner’s Brief suggests, neither Mr. Prouse’s
medical source statement nor his “To Whom It May Concern” letter provides an
explanation or a listing of the functional limits to work in Plaintiff’s mental performance
which are caused by his moderate limitations in the moderately limited mental abilities.
(R. 443-44, 446). As Plaintiff argues, the POMS does not apply to medical sources
completing medical source statements, and check box forms constitute medical opinions
which must be weighed in accordance with the law and the regulations. But, the Tenth
Circuit long ago held that reports consisting solely of check box forms “standing alone,
unaccompanied by thorough written reports or persuasive testimony, are not substantial
evidence.” Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987). While Plaintiff is correct
that the categorical rejection of such check box forms may not be applied to treating
source medical opinions, Anderson v. Astrue, 319 F. App’x 712, 723 (10th Cir. 2009), it
also recognized that “[e]xplanatory material is certainly relevant in deciding the weight a
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treating physician’s opinion should receive.” Id. (citing White, 287 F. 3d 907-08). Here,
Mr. Prouse simply did not provide any explanation demonstrating functional limitations
which are clearly more restrictive than the RFC assessed by the ALJ. The question for
the court is not whether Plaintiff can provide an evidentiary basis to support her view of
Mr. Prouse’s opinion, but whether the record evidence supports the ALJ’s findings in this
regard. It does.
As the Commissioner noted in her Brief, the ALJ explained his evaluation of each
of the medical opinions regarding Plaintiff’s mental impairments, assigning significant
weight to the non-examining source opinions of the state agency psychological
consultants, the non-treating source opinion of Dr. Mintz, and the treating source opinion
of Mr. Prouse. (R. 25). He explained that he gave the 2010 opinion of Dr. Ammons only
“some weight” because it “does not reflect the claimant’s functional capabilities during
the relevant period.” Id. In this context, the ALJ explained how he reached the mental
RFC limitations he assessed:
A review of the limitations resulting from the claimant’s impairments
indicates that they are “severe,” and require a reduction of the residual
functional capacity. The undersigned has accommodated the claimant’s
moderate difficulties in maintaining concentration, persistence and pace by
limiting her to simple to intermediate work, which is further defined as
unskilled work. Secondary to her moderate difficulties in social
functioning, the claimant is limited [to] only occasional interaction with
coworkers and the general public. The claimant’s assertions related to her
inability to function due to mental deficits have been considered, but are not
given great weight because the medical record does not support her
allegations.
(R. 25).
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Plaintiff’s argument that the assertion that the ALJ accounted for all of Mr.
Prouse’s opinion is erroneous because dealing with co-workers and the public is not the
same as accepting and responding appropriately to supervisors, and a limitation to
unskilled work does not capture the totality of the moderate limitations opined, is merely
an argument that the ALJ should have found that Mr. Prouse’s moderate limitations
provide greater functional limitations, but as noted above she has shown that greater
functional limitations are demonstrated or required by Mr. Prouse’s medical source
statement. As such, her argument is merely a request that the court reweigh the evidence,
assign greater functional limitations to the mental ability opinions of Mr. Prouse, and
substitute its judgment for that of the ALJ. As noted above, it may not do so. Bowman,
511 F.3d at 1272; accord, Hackett, 395 F.3d at 1172.
Plaintiff is also correct that a treating source’s opinions are generally worthy of
greater weight than the opinions of non-examining and non-treating sources. But in a
situation such as this, where the medical opinions are quite similar, the ALJ reconciled
the opinions and explained his bases for doing so, and most importantly, the treating
source opinion does not require greater limitations, there is no error in according identical
weight to the opinions.
In her final argument, Plaintiff claims the ALJ did not provide an adequate basis to
deny controlling weight to Mr. Prouse’s treating source opinion. A treating source
opinion must be afforded controlling weight if it is both well-supported by medically
acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with the
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other substantial evidence in the record. 20 C.F.R. § 416.927(c)(2); see also Watkins, 350
F.3d at 1300 (citing SSR 96-2p, (West’s Soc. Sec. Reporting Serv., Rulings 111-15
(Supp. 2016) (“Giving Controlling Weight to Treating Source Medical Opinions”))).
Plaintiff argues that the ALJ denied controlling weight because Mr. Prouse’s opinions
regarding being off task and missing work each month were internally inconsistent with
the moderate limitations Mr. Prouse opined, and asserts that this is not an adequate reason
to deny controlling weight. The court disagrees.
The threshold for denying controlling weight is low. 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). Plaintiff does not recognize that the ALJ denied controlling weight
because a portion of Mr. Prouse’s medical opinion was internally inconsistent with both
the five moderate limitations he opined and with the significant number (15) of mild
limitations he opined in Plaintiff’s mental abilities. (R. 25). As noted above, Plaintiff has
shown no error in the ALJ’s evaluation of Mr. Prouse’s opinion, and that evaluation
reveals inconsistencies between Mr. Prouse’s opinion that Plaintiff will be off-task or
missing work and his other opinions regarding Plaintiff’s mental capabilities. Moreover,
as discussed above the ALJ also properly accorded significant weight to the opinions of
the state agency psychological consultants and of Dr. Mintz, and those opinions also
constitute such relevant evidence as the ALJ appropriately accepted as adequate to
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support a conclusion that is contrary to Mr. Prouse’s medical opinion regarding time offtask and off work.
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 13th day of April 2017, at Kansas City, Kansas.

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

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