Snyder v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Signed by U.S. District Judge Sam A. Crow on 7/18/17. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 16-1198-SAC
NANCY A. BERRYHILL,
Acting Commissioner of
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits and supplemental security income payments.
The matter has been fully briefed by the parties.
General legal standards
The court's standard of review is set forth in 42 U.S.C.
§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
The court should review the Commissioner's
decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
Glenn v. Shalala, 21 F.3d 983, 984
On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
(10th Cir. 1994).
Substantial evidence requires more than a
scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
The determination of whether substantial evidence
supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.
the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.
The court should examine the record as a whole,
including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.
F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).
The claimant's physical or
mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.
42 U.S.C. § 423(d).
The Commissioner has established a five-step sequential
evaluation process to determine disability.
If at any step a
finding of disability or non-disability can be made, the
Commissioner will not review the claim further.
At step one,
the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
At step two, the agency will find non-disability
unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”
step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.
the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th
At step five, the burden shifts to the
Commissioner to show that the claimant can perform other work
that exists in the national economy.
Nielson, 992 F.2d at 1120;
Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Commissioner meets this burden if the decision is supported by
Thompson, 987 F.2d at 1487.
Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).
RFC assessment is used to evaluate the claim at both step four
and step five.
20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);
History of case
On May 6, 2009, ALJ Edmund Werre issued a decision denying
plaintiff benefits (R. at 11-18).
Plaintiff sought judicial
review, and on July 8, 2011, District Court Judge Richard D.
Rogers reversed the decision of the Commissioner, and remanded
the case for further hearing
(R. at 465-481; Case No. 11-1010-
On January 16, 2013, administrative law judge (ALJ) James
Harty issued a 2nd decision, denying plaintiff benefits (R. at
Plaintiff again sought judicial review, and on
September 2, 2014, this court reversed the decision of the
Commissioner, and remanded the case for further hearing (R. at
756-766; Case No. 13-1217-SAC).
ALJ Harty issued a 3rd decision on May 14, 2015 (R. at 672683).
Plaintiff alleges that he had been disabled since
February 5, 2005 (R. at 672).
Plaintiff is insured for
disability insurance benefits through June 30, 2009 (R. at 674).
At step one, the ALJ found that plaintiff did not engage in
substantial gainful activity since the alleged onset date (R. at
At step two, the ALJ found that plaintiff had the severe
impairment of degenerative disc disease of the lumbar spine,
status post fusion surgery.
The ALJ further found that since
October 1, 2011, he has the additional impairment of obesity (R.
At step three, the ALJ determined that plaintiff’s
impairments do not meet or equal a listed impairment (R. at 674675).
After determining plaintiff’s RFC (R. at 675), the ALJ
determined at step four that plaintiff is unable to perform past
relevant work (R. at 681).
At step five, the ALJ found that
plaintiff could perform work that exists in significant numbers
in the national economy (R. at 682-683).
Therefore, the ALJ
concluded that plaintiff was not disabled (R. at 683).
Did the ALJ err in the relative weight accorded to the
various medical opinions?
The opinions of physicians, psychologists, or psychiatrists
who have seen a claimant over a period of time for purposes of
treatment are given more weight than the views of consulting
physicians or those who only review the medical records and
never examine the claimant.
The opinion of an examining
physician is generally entitled to less weight than that of a
treating physician, and the opinion of an agency physician who
has never seen the claimant is entitled to the least weight of
Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
When a treating source opinion is inconsistent with the other
medical evidence, the ALJ’s task is to examine the other medical
source’s reports to see if they outweigh the treating source’s
reports, not the other way around.
Treating source opinions are
given particular weight because of their unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations.
If an ALJ
intends to rely on a nontreating physician or examiner’s
opinion, he must explain the weight he is giving to it.
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).
The ALJ must
provide a legally sufficient explanation for rejecting the
opinion of treating medical sources in favor of non-examining or
consulting medical sources.
Robinson, 366 F.3d at 1084.
A treating physician’s opinion about the nature and
severity of the claimant’s impairments should be given
controlling weight by the Commissioner if well supported by
clinical and laboratory diagnostic techniques and if it is not
inconsistent with other substantial evidence in the record.
Castellano v. Secretary of Health & Human Services, 26 F.3d
1027, 1029 (10th Cir. 1994); 20 C.F.R. §§ 404.1527(d)(2),
When a treating physician opinion is not given
controlling weight, the ALJ must nonetheless specify what lesser
weight he assigned the treating physician opinion.
Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004).
source opinion not entitled to controlling weight is still
entitled to deference and must be weighed using all of the
(1) the length of the treatment relationship and the frequency
(2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
(3) the degree to which the physician’s opinion is supported by
(4) consistency between the opinion and the record as a whole;
(5) whether or not the physician is a specialist in the area
upon which an opinion is rendered; and
(6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1300-1301 (10th Cir. 2003).
After considering the above factors, the ALJ must give good
reasons in his/her decision for the weight he/she ultimately
assigns the opinion.
If the ALJ rejects the opinion completely,
he/she must then give specific, legitimate reasons for doing so.
Watkins, 350 F.3d at 1301.
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.
Hackett v. Barnhart, 395
F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).
Although the court will
not reweigh the evidence, the conclusions reached by the ALJ
must be reasonable and consistent with the evidence.
v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must
affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as
adequate to support a conclusion).
the sufficiency of the evidence.
The court can only review
Although the evidence may
support a contrary finding, the court cannot displace the
agency’s choice between two fairly conflicting views, even
though the court may have justifiably made a different choice
had the matter been before it de novo.
F.3d 1254, 1257-1258 (10th Cir. 2007).
Oldham v. Astrue, 509
Dr. Winkler testified at a hearing on April 15, 2015 (R. at
She reviewed claimant’s file, including all of
the medical records (R. at 714).
Dr. Winkler testified that
plaintiff’s straight-leg raise tests were all over the place,
and that the significant variations in this case are not typical
(R. at 716).
Dr. Winkler further stated that plaintiff’s
alleged limitations are more significant than you would normally
expect, based on what objective evidence there was, including
the follow-up MRIs after surgery, as well as two normal EMG/NCV
tests performed in 2007 and 2012 (R. at 717).
According to Dr. Winkler, the normal EMGs and NCVs would
indicate no nerve root impingement, and no nerve damage.
would be no foot drop and you would not normally need a cane
with the normal test results (R. at 717).
questioned the finding of Dr. Gorecki regarding a non-union in
the lumber spine based on the MRI (R. at 718).
He found no
medical basis for a cane or wheelchair (R. at 718-719).
Dr. Winkler testified that plaintiff’s symptoms seemed to
be out of proportion to what you would normally expect based on
the fairly mild changes in the MRI after surgery and the two
normal EMG/NCVs that were done in 2007 and 2012 (R. at 719).
Dr. Winkler also indicated that failed back surgery is not a
valid diagnosis in this case (R. at 719-720).
Dr. Winkler then
provided RFCs for the plaintiff, indicating that due to
increased weight, plaintiff’s RFC increased in October 2011 (R.
The ALJ gave great weight to the opinions of Dr.
Winkler because her opinions were well-explained, informed by
her extensive review of the record and by her clinical practice
treating patients with back pain, and is consistent with the
evidence (R. at 680).
The ALJ’s RFC findings reflect the
opinions of Dr. Winkler (R. at 675).
Dr. Gorecki, plaintiff’s treating physician, stated on
January 8, 2008 that plaintiff’s ongoing incapacitating back and
bilateral hip pain restricted him to working no more than 4
hours a day.
He also opined that plaintiff cannot bend forward
or stoop, or pick up anything from the floor (R. at 320).
January 9, 2009, Dr. Gorecki filled out a form indicating that
plaintiff can only sit, stand and walk for 4 hours in an 8 hour
workday (R. at 355-358).
The ALJ set out in detail the evidence
which he relied on in discounting the opinions of Dr. Gorecki
(R. at 680).
This included the testimony of Dr. Winkler, who
questioned some of the findings of Dr. Gorecki (R. at 717-718).
The record also contains a physical RFC assessment by Dr.
Miller, an examining physician, dated October 12, 2011 (R. at
Dr. Miller opined that plaintiff could sit for 4
hours a day, stand for 2 hours a day, and walk for 2 hours a day
(R. at 611).
However, Dr. Miller opined that plaintiff required
the use of a cane (R. at 611).
The ALJ accorded little weight
to this opinion (R. at 681).
Dr. Winkler testified that she saw
no medical basis requiring the use of a cane (R. at 718).
Furthermore, Dr. Gorecki stated in his report that plaintiff did
not require the use of a cane or other assistive device for
standing or walking (R. at 357).
The record also contains a physical therapy evaluation
conducted on December 3, 2012 (R. at 643-645).2
indicated that plaintiff had a limited range of mobility.
included the statement of the physical therapist that plaintiff
was only able to ambulate in the clinic with a single-point cane
for a total distance of 200 feet (R. at 645).3
evaluation, plaintiff was allowed to use a cane to complete
numerous tasks (R. at 643-645).
The ALJ discounted this
evaluation, noting that testing performed on the same day showed
that plaintiff was within normal limits, with no clear evidence
Plaintiff’s reply brief states that Dr. Winkler testified that this evaluation was missing in the record, and therefore
was not considered by Dr. Winkler (Doc. 19 at 7). However, this argument was not raised in plaintiff’s initial brief.
Courts do not ordinarily review issues raised for the first time in a reply brief. Stump v. Gates, 211 F.3d 527, 533
(10th Cir. 2000); Liebau v. Columbia Casualty Co., 176 F. Supp.2d 1236, 1244-45 (D. Kan. 2001). Furthermore,
plaintiff, in his initial brief, stated that “the ALJ asked Dr. Winkler about an incident when plaintiff showed up in
wheel chair for his physical therapy evaluation by Jim Tharp on 12/3/12 [22F]” (Doc. 15 at 9). Finally, Dr. Winkler
The one thing I was looking for actually in the record, was that he referred to a back to work
physical therapy evaluation in 2009, and he mentioned in the physical therapy evaluation done, I
think in 22F that he had done that, but that’s missing.
(R. at 719). It therefore appears that Dr. Winkler was referencing a missing evaluation done in 2009, which plaintiff
had mentioned during the evaluation in Exhibit 22F, which is the Dec. 3, 2012 evaluation. Thus, it appears that the
Dec. 3, 2012 evaluation, which is Exhibit 22F, was before Dr. Winkler when he testified. Dr. Winkler had earlier
testified that he had the exhibits “up to 25F” (R. at 714).
However, Dr. Gorecki indicated that plaintiff can walk for at least 10 minutes at a time, and 90 minutes over an 8
hour workday (R. at 356), and Dr. Miller indicated that plaintiff can walk for 2 hours at one time without
interruption (R. at 611).
of neuropathy, plexopathy, myopathy, or radiculopathy (R. at
Furthermore, Dr. Winkler testified that there was no
medical basis for the requirement of a cane (R. at 718), and Dr.
Gorecki, plaintiff’s treating physician, stated that a cane or
other assistive device was not needed for standing or walking
(R. at 357).
The court finds that medical testing and the
evidence from acceptable medical sources, noted above, provides
a valid basis for questioning the findings of this evaluation.
The court finds no clear error by the ALJ in his analysis
of the medical opinion evidence.
The ALJ set out in detail his
reasons for discounting the opinions of Dr. Gorecki and Dr.
Miller, and the court finds no clear error in that analysis.
Certainly, contradictory evidence existed in the record which
provided a valid basis for discounting those opinions.
Furthermore, the ALJ could reasonably rely on the opinions of
Dr. Winkler, who provided 12 pages of testimony which discussed
in some detail the medical evidence and the opinions of Dr.
Winkler regarding plaintiff’s RFC limitations.
not reweigh the evidence.
The court will
The court finds that the balance of
the ALJ’s analysis of the medical opinion evidence is supported
by substantial evidence.
See Barnum v. Barnhart, 385 F.3d 1268,
1274 (10th Cir. 2004)(while the court had some concerns about the
ALJ’s reliance on plaintiff’s alleged failure to follow a weight
loss program and her performance of certain household chores,
the court concluded that the balance of the ALJ’s credibility
analysis was supported by substantial evidence in the record).
Furthermore, the ALJ did not need to explicitly discuss all
of the § 404.1527 factors for each of the medical opinions.
Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
sufficient if the ALJ provided good reasons in her decision for
the weight she gave to the treating source opinions.
more is required.
Did the ALJ err in evaluating plaintiff’s credibility?
Plaintiff also alleges error in the ALJ’s credibility
Credibility determinations are peculiarly the
province of the finder of fact, and a court will not upset such
determinations when supported by substantial evidence.
findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the
guise of findings.
Kepler v. Chater, 68 F.3d 387, 391 (10th
Furthermore, the ALJ cannot ignore evidence
favorable to the plaintiff.
Owen v. Chater, 913 F. Supp. 1413,
1420 (D. Kan. 1995).
When analyzing evidence of pain, the court does not require
a formalistic factor-by-factor recitation of the evidence.
long as the ALJ sets forth the specific evidence he relies on in
evaluating the claimant’s credibility, the ALJ will be deemed to
have satisfied the requirements set forth in Kepler.
Barnhart, 287 F.3d 903, 909 (10th Cir. 2002); Qualls v. Apfel,
206 F.3d 1368, 1372 (10th Cir. 2000).
Furthermore, the ALJ need
not discuss every relevant factor in evaluating pain testimony.
Bates v. Barnhart, 222 F. Supp.2d 1252, 1260 (D. Kan. 2002).
ALJ must therefore explain and support with substantial evidence
which part(s) of claimant’s testimony he did not believe and
McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir.
It is error for the ALJ to use standard boilerplate
language which fails to set forth the specific evidence the ALJ
considered in determining that a claimant’s complaints were not
Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir.
On the other hand, an ALJ’s credibility determination
which does not rest on mere boilerplate language, but which is
linked to specific findings of fact fairly derived from the
record, will be affirmed by the court.
White, 287 F.3d at 909-
The court finds no clear error by the ALJ in his
The ALJ reasonably relied on the opinions
of Dr. Winkler and the medical and other evidence in the record
in finding that plaintiff’s allegations of pain and limitations
were somewhat exaggerated (R. at 681).
The balance of the ALJ’s
credibility analysis was supported by substantial evidence in
See Barnum v. Barnhart, 385 F.3d 1268, 1274 (10th
Cir. 2004)(while the court had some concerns about the ALJ’s
reliance on plaintiff’s alleged failure to follow a weight loss
program and her performance of certain household chores, the
court concluded that the balance of the ALJ’s credibility
analysis was supported by substantial evidence in the record).
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
Dated this 18th day of July 2017, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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