Hansel v. Social Security Administration, Commissioner of

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 final decision. Signed by District Judge John W. Lungstrum on 05/01/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHERYL HANSEL,

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

CIVIL ACTION
No. 16-1181-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance benefits (DIB) under sections
216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the
Act). Finding no error in the 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 DIB, alleging disability beginning July 4, 2008. (R. 20, 237).
Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review
of the final decision denying benefits. She argues that the ALJ erred pursuant to Social
Security Ruling (SSR) 02-1p when considering Plaintiff’s obesity, erred in weighing the
medical opinion of her primary care physician, and failed when assessing residual
functional capacity (RFC) to consider adequately the impairments found not severe.
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
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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; 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 RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step
four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform her
past relevant work; and at step five whether, when also considering the vocational factors
of age, education, and work experience, claimant is able to perform other work in the
economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
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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 addresses each alleged error in the order presented in Plaintiff’s Brief.
II.

Consideration of Obesity
Plaintiff claims the ALJ made inconsistent findings relating to the functional

effects of her obesity and therefore it is impossible to understand the basis for the RFC
assessed. (Pl. Br. 12-13). She argues that SSR 02-1p recognizes the potentially “wide
ranging effects of obesity, including pulmonary function, mental health functioning, and
fatigue,” and that each of these issues is present in this case. Id. at 14. She concludes that
“[b]ecause the ALJ failed to provide any analysis about the effect of obesity on these
underlying problems, we are unable to determine whether her decision complied with” the
SSR. Id. The Commissioner argues that the ALJ adequately considered obesity. She
argues that there is no discrepancy such as that alleged by Plaintiff, that the ALJ gave
great weight to the opinions of the state agency physicians–thereby accounting for the
functional effects of obesity–and that the ALJ repeatedly addressed Plaintiff’s obesity in
the decision at issue. (Comm’r Br. 5-6). In her Reply Brief, Plaintiff argues that “it is
entirely unclear whether the ALJ considered the effects of obesity at step four and five,”
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and that the court “cannot determine whether the sedentary work capacity [assessed]
includes consideration of obesity or not.” (Reply 2). She argues that, in any case, the
ALJ did not consider the effects of obesity on her Chronic Fatigue Syndrome–which
would likely cause her to miss work more than three times a month and would likely
cause a need for extra breaks during the workday–and failed to consider obesity’s effect
on breathing problems wherein she “repeatedly complained of shortness of breath.” Id. at
3-4.
As Plaintiff argues, SSR 02-1p, Titles II and XVI: Evaluation of Obesity provides
guidance on Social Security Administration (SSA) policy concerning the evaluation of
obesity in disability claims, and requires that adjudicators will explain how they reached
their conclusion whether obesity caused any physical or mental limitations. West’s Soc.
Sec. Reporting Serv., Rulings 257 (Supp. 2016). In her step three discussion whether
Plaintiff’s condition meets or medically equals a Listed impairment, the ALJ noted that
she had considered Plaintiff’s obesity pursuant to SSR 02-1p. (R. 25). In finding no
Listing met or medically equaled, she noted that “the medical evidence does not indicate
that the claimant’s obesity has resulted in any significant adverse effect on her functional
abilities.” Id. (emphasis added). When discussing RFC assessment between step three
and step four of the evaluation, the ALJ weighed the medical opinions and accorded great
weight to the opinions of the state agency physicians and psychologists who prepared the
Disability Determination Explanation, “particularly the most recent assessment.” (R. 30)
(citing Ex. 4A (R. 162-76)).
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As Plaintiff points out, the state agency physicians found Plaintiff was limited to
sedentary level exertion in part “because of severe obesity with a BMI [(body mass
index)] of 45.1” (R. 172), has postural limitations “because of chronic knee pain
secondary to claimant’s obesity and probable DJD [(degenerative joint disease)],” id., and
has environmental limitations “because of severe obesity, [and] problems breathing
(undiagnosed etiology).” (R. 173). Plaintiff argues that there is a “discrepancy” between
these opinions of the state agency physicians and the ALJ’s step three finding that obesity
has not resulted in any significant adverse effect on Plaintiff’s functional abilities, making
it impossible to understand the ALJ consideration of obesity. (Pl. Br. 13).
Plaintiff’s argument misunderstands the decision. A step three determination is
concerned with whether a claimant’s condition meets or equals the severity of a Listed
impairment. “The listings define impairments that would prevent an adult, regardless of
[her] age, education, or work experience, from performing any gainful activity, not just
‘substantial gainful activity.’” Sullivan v. Zebley, 493 U.S. 521, 532-33 (1990)
(emphasis in original) (citing 20 C.F.R. § 416.925(a) (1989)). At step three, therefore, it
is notable that obesity has not resulted in any significant adverse effect on Plaintiff’s
functional abilities because without such significant adverse effect, Plaintiff’s condition
cannot meet or equal a Listing. Contrary to Plaintiff’s implications, the ALJ did not find
that Plaintiff’s obesity had no adverse effect on her functional abilities, just no significant
adverse effect. As the Commissioner argues, the presence of such effects is confirmed by

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the fact the ALJ gave great weight to the state agency physicians’ opinions which,
precisely as Plaintiff argues, were based in large part on the effects of Plaintiff’s obesity.
There is no instance in which the ALJ assessed lesser functional limitations than
those assessed by the state agency psychologists or physicians. (R. 153-57, 169-73).
However, he found postural and environmental limitations greater than those opined by
the state agency physicians. He found that Plaintiff can only rarely–rather than
occasionally–climb ramps and stairs and can never–rather than occasionally–crawl.
According to the state agency physicians, these areas were limited because of obesity, and
the ALJ’s greater limitations reasonably relate to the same basis. With regard to
environmental restrictions, the ALJ found that Plaintiff should additionally avoid
concentrated exposure to humidity and wetness. The state agency physicians attributed
their environmental limitations in part to breathing problems, and the ALJ’s greater
limitations reasonably relate to the same basis. It is not error for an ALJ to accord a
claimant the benefit of the doubt and assess greater limitations than did the medical
sources.
Plaintiff’s argument that the ALJ did not consider the effects of obesity in
combination with her non-severe impairments including pulmonary function, mental
health functioning, and fatigue is also unavailing. Even were the court to assume that the
ALJ did not consider the effects of obesity in accordance with SSR 02-1p–as she said she
did–Plaintiff has shown no harm resulting from that alleged error because she points to no

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record evidence demonstrating limitations greater than those assessed by the ALJ and
resulting from the effects of obesity in combination with the non-severe impairments.
Plaintiff argues that Dr. McCarty’s opinion that she would likely need extra breaks
and would miss work more than three times a month is attributable to fatigue resulting
from obesity, but Dr. McCarty does not attribute those limitations to this basis. (R. 83738). Moreover, the ALJ accorded little weight to Dr. McCarty’s opinion, and as will be
discussed later, the court finds no error in that determination. Plaintiff’s reliance on her
reports of fatigue or breathing difficulties are likewise unavailing. Fatigue, exhaustion, or
breathing difficulties as reported by Plaintiff are symptoms, not functional limitations.
The ALJ found Plaintiff’s allegations regarding the limiting effects of her symptoms “not
entirely credible” (R. 29), and Plaintiff does not allege error in that finding.
Plaintiff has shown no error in the ALJ’s consideration of obesity.
III.

Evaluation of Dr. McCarty’s Treating Source Opinion
Plaintiff claims the ALJ erred in weighing Dr. McCarty’s opinion. She argues that

discounting the opinion because it was provided after Plaintiff’s date last insured is error
because Dr. McCarty’s treatment record was longitudinal, most of the records were
before the date last insured, and there was no indication of improvement or decline after
the date last insured. (Pl. Br. 15). She argues that discounting the opinion because Dr.
McCarty did not reference specific testing is error because Dr. McCarty indicated she
relied on tender trigger points, MRI, X-rays, abnormal labs showing inflamation, and
documentation from referrals. Id. Finally, she argues that discounting the opinion
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because of insufficient clinical or laboratory findings is error because the record shows
antalgic gait, weakness in lower extremities, swelling, elevated lab markers for
inflammation, and consistent diagnoses of morbid obesity. Id. at 15-16. She concludes
that “Dr. McCarty is simply in the best position to determine the level of dysfunction due
to Ms. Hansel’s impairments as magnified by obesity. Id. at 16.
The Commissioner argues that the ALJ reasonable discounted Dr. McCarty’s
opinion. She argues that the opinion was properly discounted because it was rendered
nine months after Plaintiff’s date last insured but was not given as a retrospective opinion.
(Comm’r Br. 7-8). She argues that the ALJ correctly discounted the opinion because it
was not related to any specific findings, and the matters upon which Dr. McCarty
purportedly relied were merely vague, general references. Id. at 8. Finally, she argues
that the ALJ properly found that the record evidence does not support the degree of
limitations opined by Dr. McCarty. Id. at 8-10.
A.

Standard for Weighing a Treating Source Opinion

A treating physician’s opinion about the nature and severity of a claimant’s
impairments should be given controlling weight by the Commissioner if it is well
supported by clinical and laboratory diagnostic techniques and if it is not inconsistent
with other substantial evidence in the record. Watkins v. Barnhart, 350 F.3d 1297, 130001 (10th Cir. 2003); 20 C.F.R. § 404.1527(c)(2). When a treating physician’s opinion is
not given controlling weight, the ALJ must nonetheless specify what lesser weight she
assigned it. Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).
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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.” 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); 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 above factors, the ALJ must give good reasons in her
decision for the weight she ultimately assigns the opinion. If the ALJ rejects the opinion
completely, she must give specific, legitimate reasons for doing so. Watkins, 350 F.3d at
1301.
B.

The ALJ’s Findings
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As noted previously, the ALJ accorded significant weight to the opinions of the
state agency consultant physicians and psychologists. (R. 30). Moreover, the ALJ found
that Plaintiff was insured for DIB only through December 31, 2013. (R. 20). And the
ALJ considered the treating source opinion of Dr. McCarty, and accorded it little weight.
Id. She provided three reasons for discounting Dr. McCarty’s opinion. The opinion was
rendered after Plaintiff’s date last insured “and is therefore not relevant to the current
claim.” Id. The physician did not relate her opinion to specific testing. And there are
insufficient clinical or laboratory findings to support the opinion. Id.
C.

Analysis

Plaintiff does not deny that her date last insured was December 31, 2013 or
challenge the assignment of significant weight to the state agency physicians’ and
psychologists’ opinions. And, as the ALJ noted, Dr. McCarty did not provide an opinion
regarding Plaintiff’s limitations until September 29, 2014–nearly ten months after her
date last insured. (R. 838). Moreover, the opinion does not indicate in any way that it is
retrospective to the period before Plaintiff’s date last insured. It uses the present tense
exclusively and does not provide an effective date for the opinion. The court agrees with
Plaintiff that a physician’s treatment is longitudinal, but her argument breaks down there.
Although Plaintiff argues that “the bulk of the records on which the opinion is based are
prior to the date” last insured (Pl. Br. 15), the opinion simply does not indicate the records
upon which it is based. The ALJ and the court may not assume that Dr. McCarty’s
opinion, dated September 29, 2014, is based upon all of her treatment records, including
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those dated as early as November 2008, which was three years before Plaintiff’s amended
alleged onset date, December 28, 2011. (R. 112). It was not error to discount Dr.
McCarty’s opinion because it was formed after Plaintiff’s date last insured.
Plaintiff’s argument that it was error to discount Dr. McCarty’s opinion because it
did not rely on specific testing is also unpersuasive. This argument, noting that Dr.
McCarty indicated she relied on tender trigger points, MRI, X-rays, abnormal labs
showing inflamation, and documentation from referrals, while technically true, is not
inconsistent with the ALJ’s finding. As Plaintiff’s brief suggests, Dr. McCarty stated that
her opinion is supported by “tender trigger points, MRI, xrays, referral physicians
documentations, abnormal lab showing inflammation [(sic)].” (R. 838). However, as the
ALJ found there is nothing in Dr. McCarty’s report indicating what the specific tests
were, when they were performed, what opinions were supported by which tests or
findings, and how the tests lead to the opinions expressed. In fact, she did not even
provide citations to where the test results may be found. As the Commissioner points out,
the more relevant evidence a medical source cites in support of her opinion and the better
an explanation she provides for it, the greater weight it will be given. (Comm’r Br. 8)
(citing 20 C.F.R. § 404.1527(c)(3)). The ALJ did not err in relying on this basis to
discount Dr. McCarty’s opinion.
In a related argument, Plaintiff asserts that contrary to the ALJ’s reasons for
discounting Dr. McCarty’s opinion, the physician did provide sufficient clinical or
laboratory findings to support her opinion. She points to records showing antalgic gait,
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weakness in her lower extremities, swelling in her hands, and very high inflammatory
markers. But, as the Commissioner points out, the ALJ’s point was that the clinical and
laboratory findings do not support the degree of functional limitation opined by Dr.
McCarty. (R. 30). Although Plaintiff points to evidence generally supporting a finding
of some limitations, neither she nor Dr. McCarty suggest why the cited findings preclude
sitting or standing/walking more than two hours in a workday; why she can only rarely
lift less than ten pounds, and never more; or why she can never twist, stoop/bend, crouch,
or climb stairs, and can only rarely reach, handle, finger, or feel. There is no error here.
Plaintiff also argues that the ALJ erred because she did not consider the regulatory
factors of examining relationship, supportability, consistency, specialization, and other
factors. (Pl. Br. 16). Contrary to Plaintiff’s argument, even the most cursory reading of
the decision or the discussion above reveals that the ALJ considered at least the factors of
relationship, supportability, and consistency. Moreover, as noted above, the court will
not require a factor-by-factor analysis so long as the decision makes clear the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that weight.
Oldham, 509 F.3d at 1258. The ALJ has done so here, and more is not required.
IV.

Consideration of Impairments Found Not Severe
In her final argument Plaintiff asserts, rather obliquely, that it is not clear the ALJ

considered Plaintiff’s non-severe impairments in assessing RFC. Particularly, she argues
that the ALJ did not discuss the mild limitations in social functioning and in maintaining
concentration, persistence, or pace which were opined by the state agency psychologists,
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and she assessed no functional limitations resulting from Plaintiff’s fatigue. (Pl. Br. 17).
As the court discussed above, Plaintiff has shown no functional limitations resulting from
fatigue beyond those assessed by the ALJ. The court will not repeat its analysis here.
With regard to the mental limitations found by the state agency psychologists, and
allegedly ignored by the ALJ, the court notes that the state agency psychologists found
Plaintiff’s mental impairments are not severe (R. 153-54, 169-70) and the ALJ followed
suit (R. 25) and accorded great weight to their opinions, particularly the reconsideration
opinion. (R. 30) (citing Ex. 4A (R. 162-76)). An impairment is not severe only if it does
not have more than a minimal effect on a claimant’s ability to do basic work activities.
Williams, 844 F.2d at 751. In this light, both the ALJ and the state agency psychologists
found that Plaintiff’s mild mental limitations have only a minimal effect on her ability to
perform basic mental work activities, and Plaintiff does not point to record evidence of
functional mental limitations which were not included in the RFC assessed.
Moreover, and most importantly, although Plaintiff implies that the ALJ may not
have considered the effects of her non-severe impairments, she does not point to evidence
that they were in fact not considered. The ALJ stated the legal standard for her
consideration and stated that she “must consider all of the claimant’s impairments,
including impairments that are not severe.” (R. 21) (citing 20 C.F.R. §§ 404.1520(e) and
404.1545, and SSR 96-8p). And, several times in the decision at issue she stated that she
had in fact considered all of the evidence. (R. 20, 22, 25, 29). A reviewing court’s
general practice is to take a lower tribunal at its word when it states it has considered a
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matter. Hackett, 395 F.3d at 1172-73. Plaintiff has provided no basis to depart from that
practice in this case.
She has shown no reversible error in the decision at issue.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.
Dated this 1st day of May 2017, at Kansas City, Kansas.

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

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