Owen 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 02/19/2021. (ses)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JANET GRACE O.,1
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
denying Supplemental Security Income (SSI) benefits pursuant to sections 1602, and
1614 of the Social Security Act, 42 U.S.C. §§ 1381a, and 1382c (hereinafter the Act).
Finding no error in the Administrative Law Judge’s (ALJ) evaluation of Dr. Hackney’s
medical opinion, 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.
The court makes all its “Memorandum and Order[s]” available online. Therefore, in the
interest of protecting the privacy interests of Social Security disability claimants, it has
determined to caption such opinions using only the initial of the Plaintiff’s last name.
On July 9, 2021, Kilolo Kijakazi was appointed as Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Ms.
Kijakazi is substituted for Commissioner Andrew M. Saul as the defendant. In
accordance with the last sentence of 42 U.S.C. § 405(g), no further action is necessary.
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Plaintiff protectively filed an application for SSI benefits on August 9, 2018. (R.
15). After exhausting administrative remedies before the Social Security Administration
(SSA), Plaintiff filed this case seeking judicial review of the Commissioner’s decision
pursuant to 42 U.S.C. § 405(g). Plaintiff claims the ALJ erred in considering the
opinions of her examining psychologist, Dr. Hackney.
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” refers to
the weight, not the amount, of the evidence. It requires more than a scintilla, but 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).
Consequently, to overturn an agency’s finding of fact the court “must find that the
evidence not only supports [a contrary] conclusion, but compels it.” I.N.S. v. EliasZacarias, 502 U.S. 478, 481, n.1 (1992) (emphases in original).
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
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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); see also, Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record,
nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). 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. § 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.
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§ 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 process—determining
at step four whether, considering 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, she 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 previously assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th
Cir. 1999). The court addresses the error alleged in Plaintiff’s Social Security Brief.
Evaluation of the Medical Opinions Regarding Plaintiff’s Mental Limitations
Plaintiff claims the RFC assessed is unsupported by substantial evidence because
the ALJ “failed  properly [to] weigh the opinion of consultative psychological examiner
Gary R. Hackney, Ph.D.” (Pl. Br. 7). She argues the ALJ erred in failing to apply Tenth
Circuit case law. Id. at 8. Plaintiff acknowledges that new SSA regulations regarding
evaluation of medical opinions apply here because the application in this case was filed
after March 27, 2017, but she argues the ALJ failed to discuss the consistency and
supportability of significantly probative evidence from Dr. Hackney’s report and to
discuss other significantly probative record evidence, and thereby erred in her decision.
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(Pl. Br. 10-11) (citing Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996); and Cox v.
Saul, No. CIV 19-1117 KBM, 2020 WL 6701426, at *4 (D.N.M. Sept. 9, 2020)).
The Commissioner argues the ALJ properly evaluated Dr. Hackney’s medical
opinion and the prior administrative medical findings of Dr. Bucklew and Dr. Lark.
(Comm’r Br. 10-12). He suggests Plaintiff’s argument that certain other record evidence
supports Dr. Hackney’s opinion is an improper attempt to get the court to reweigh the
evidence in Plaintiff’s favor. Id. at 12-13.
In her Reply Brief Plaintiff reiterates her argument that certain record evidence
was significantly probative evidence which the ALJ failed to address. She argues that the
Commissioner’s response was largely a restating of the evidence which is an improper
“attempt to bolster the ALJ’s decision with post hoc rationalization.” (Reply 2). She
argues this so because although the ALJ discussed Dr. Hackney’s examination results she
“failed  properly [to] explain how these results factored into the weighing of Dr.
Hackney’s opinion.” Id.
As noted above, to demonstrate that the ALJ’s finding of fact is erroneous,
Plaintiff must point to record evidence that compels a contrary conclusion. EliasZacarias, 502 U.S. at 481, n.1. The mere fact that the evidence might also support a
contrary finding will not establish error in the ALJ’s determination. “The possibility of
drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency’s findings from being supported by substantial evidence. We 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
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novo.” Lax, 489 F.3d at 1084 (citations, quotations, and bracket omitted); see also,
Consolo v. Fed. Maritime Comm=n, 383 U.S. 607, 620 (1966).
The court’s review begins with the decision of the ALJ, not what the plaintiff—or
even the court—believes should have been the better, or best, decision. If the ALJ
applied the correct legal standard and the record contains “such relevant evidence as a
reasonable mind might accept as adequate to support [the ALJ’s] conclusion,’ Richardson
v. Perales, 402 U.S. at 401, the court must affirm that decision.
As Plaintiff acknowledges, the Commissioner propounded new regulations
regarding the evaluation of medical opinions for claims filed, such as was the present
claim, on or after March 27, 2017. 20 C.F.R. § 404.1520c (2019). An ALJ is to evaluate
medical opinions using five factors; supportability, consistency, relationship of source to
claimant, specialization, and other factors tending to support or contradict a medical
opinion or prior administrative medical finding. 20 C.F.R. § 404.1520c(a)(c)(1-5)
(2019). The most important factors are supportability and consistency, id., and the ALJ
will articulate how persuasive she finds all medical opinions. Id. § 404.1520c(b).
The ALJ evaluated Plaintiff’s mental impairments at step two and three and found
that she has moderate limitations in each of the four broad areas of mental functioning:
understanding, remembering, or applying information; interacting with others;
concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 1819). She found that Plaintiff’s mental impairments do not meet or medically equal the
severity of any listed mental disorders. Id. The ALJ noted certain evidence relevant to
each of the broad mental functional areas:
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Consulting psychologist Gary Hackney, Ph.D., found the claimant’s
memory to be poor, although he also noted that she was able to provide a
good history (Exhibit 8F at 5 [(R. 437)]). None of the claimant’s treatment
providers have observed any cognitive deficits. In her Adult Function
Report, the claimant does not allege any problems with memory (Exhibit
5E at 10 [(R. 263)]). The claimant does have a limited education, and
reports having been in special education classes during her schooling
(Exhibit 8F at 3 [(R. 435)]). Despite her limited education and memory
problems, however, the claimant has a history of performing skilled and
semi-skilled work (Exhibit 22E [(R. 353)]).
Dr. Hackney found the claimant to be pleasant and cooperative, with good
eye contact, and normal, unpressured, speech (Exhibit 8F at 4-5 [(R. 43637)]). The claimant’s treatment providers have not noted any behavioral
abnormalities, or difficulty with interpersonal interaction. The claimant
reports a “good” ability to get along with authority figures, and denies ever
having been fired from a job due to interpersonal conflict (Exhibit 5E at 10
Dr. Hackney, while noting some cognitive impairment, observed the
claimant to be “very attentive,” and adequately focused during her testing
(Exhibit 8F at 4, 5 [(R. 436, 437)]).
The ALJ summarized the record evidence regarding Plaintiff’s mental status,
capabilities, and limitations:
The claimant was abused as a child, and has struggled, as an adult, with
depression and posttraumatic stress disorder related to this trauma (Exhibit
8F at 3 [(R. 435)]). She has also reported that her depression is, at least in
part, related to her chronic pain (Exhibit 5F at 6 [(R. 405)]). The claimant
is receiving outpatient treatment, with medication, which appears to be
successful in controlling her symptoms. The claimant’s treatment records
described her mood as stable, and note euthymic mood, appropriate affect,
good eye contact, and normal speech and motor activity (Exhibits 7F at 12;
10F at 8 [(R. 422, 447)]).
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The claimant was hospitalized for carbon monoxide poisoning as a
teenager, and has reported that her cognitive abilities declined following
this experience (Exhibit 8F at 3 [(R. 435)]). She testified that she did not
complete high school, and was in special education classes prior to leaving
school. Consulting psychologist Gary Hackney, Ph.D., who examined the
claimant in January of 2019, assessed her intelligence as falling within the
borderline range of intellectual functioning, although this has not been
confirmed through formal intelligence testing. Dr. Hackney diagnosed the
claimant with an unspecified mild neurocognitive disorder (Exhibit 8F at 5
[(R. 435)]). The undersigned notes, however, that none of the claimant’s
treatment providers have reported any cognitive deficits, and the claimant
has worked, in the past, in skilled and semi-skilled occupations, suggesting
greater cognitive abilities than opined to by Dr. Hackney (Exhibit 22E [(R.
(R. 22). The ALJ explained her evaluation of the persuasiveness of the psychologists’
In assessing the claimant’s mental functional abilities, the undersigned has
found persuasive the opinion of State [sic] agency psychological consultant
Russell Lark, Ph.D. (Exhibit 4A [(R. 85-99)]). His opinion is wellexplained, and well-supported by, and consistent with, the treatment
records which show the claimant was appropriately dressed and groomed,
was cooperative, had a normal cognitive examination, a logical thought
process, was able to maintain focus, had adequate attention and
concentration and good insight, but did manifest at times lacking or fair
judgment (Exhibits 1F/8, 3F/10, 7F/12-16, 8F [(R. 370, 392, 422-26, 43338)]). State agency psychological consultant, J. Edd Bucklew, Ph.D.,
essentially provided the same opinion except that the claimant’s
understanding and memory was not limited (Exhibit 1A [(R. 71-82)]). Dr.
Lark’s opinion is more persuasive in that regard as he considered the
psychological evaluation finding in January 2019 of a 24/30 score on the
MMSE and he opined that the claimant had more than minimal deficits in
understanding, remembering and applying information (Exhibit 8F [(R.
The “opinions” of Dr. Bucklew and Dr. Lark, the state agency psychological
consultants, are properly referred to as “prior administrative medical findings.”
However, in cases such as this, medical opinions and prior administrative medical
findings are considered and articulated in the same manner. 20 C.F.R. § 404.1520c
(2019). The court refers to them here as medical opinions.
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The undersigned has not found persuasive the opinion of Dr. Hackney, who
opined that the claimant is unable to perform even simple tasks in an
average amount of time, maintain concentration over an eight-hour
workday, or keep a work schedule with average performance demands
(Exhibit 8F at 5 [(R. 437)]). This opinion is not consistent with the
claimant’s treatment records, which do not reflect the significant cognitive
deficits opined to by Dr. Hackney. The undersigned notes that, despite
whatever cognitive impairment the claimant may have suffered as a result
of her carbon monoxide poisoning, she has been able to work in skilled and
semi-skilled positions over the years (Exhibit 22E [(R. 352)]). While it is
certainly plausible that the claimant’s recently worsened depression could
result in some additional limitation in this area, as noted above the
claimant’s treatment records indicate that her depression has responded
well to medication, and is generally well-controlled. The evidence
certainly does not support the degree of limitation opined to by Dr.
The court finds the ALJ fairly considered and discussed the evidence relating to
Plaintiff’s mental condition and to Dr. Hackney’s evaluation and report of that condition.
The ALJ explained her evaluation of the persuasiveness of the medical opinions of the
mental health professionals in this case. The court’s review of the record reveals the
ALJ’s evaluation is supported by the record. Plaintiff does not attempt to demonstrate
factual error in the ALJ’s analysis or that the evidence compels a different result. Rather,
she points to the principle that an ALJ must discuss the evidence supporting her position,
uncontroverted evidence she chooses not to rely upon, and significantly probative
evidence she rejects. Plaintiff then points to Dr.Hackney’s individual, specific findings
(scaled scores, specific failures of recall, failure to do serial sevens, etc), implies such
specific findings are significantly probative evidence and argues that the ALJ’s alleged
failure to discuss these specific findings is, therefore, error.
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The court does not agree. Although the ALJ did not discuss every detail of Dr.
Hackney’s report and opinion (or of the findings and opinions of Drs. Lark’s and
Bucklew’s reports), she provided a fair and thorough consideration and discussion of Dr.
Hackney’s report and opinion as is demonstrated by the court’s relevant quotations
above. As Plaintiff argues, the Tenth Circuit has long recognized “[t]he record must
demonstrate that the ALJ considered all of the evidence, but an ALJ is not required
to discuss every piece of evidence. Rather, in addition to discussing the evidence
supporting [her] decision, the ALJ also must discuss the uncontroverted evidence [she]
chooses not to rely upon, as well as significantly probative evidence [she] rejects.”
Clifton, 79 F.3d at 1009-10 (citations omitted). Here, the ALJ stated he considered all
the evidence and Plaintiff has not shown otherwise. Nor has she shown that the evidence
she cites was either significantly probative or rejected by the ALJ. Plaintiff points to low
scaled scores of three and one respectively in Logical Memory I and II, some confusion
on dates and times, inability to do serial sevens, missing all three recall items, poor
abstraction skills, a scaled score of three on similarities, poor insight and judgment, and a
scaled score of five in comprehension. The ALJ did not discuss these issues specifically
but she noted Dr. Hackney’s report Plaintiff was able to provide a good history, none of
her treatment providers noted cognitive deficits, she did not allege memory problems on
her Adult Function Report, that despite her education and memory problems she has a
history of skilled and semi-skilled work, and Dr. Hackney noted her to be “very
attentive” and adequately focused. (R. 19). The ALJ provided all the consideration,
discussion, and articulation she was required in this regard.
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Moreover, while the scaled scores provided by Dr. Hackney are low numerically,
he provides no indication of the range of the scale on which he evaluated. The court
notes the only “tests” he reported giving were Consultation and Mental Status
Psychological Interview, and a Mini Mental Status Exam (MMSE), on which he reported
Plaintiff “received a score of 24 out of 30.” (R. 435, 437). The ALJ noted that Dr.
Hackney did not give Plaintiff an intelligence test on which to base his assessment of
borderline intellectual functioning. Id. at 22. It is likely that a psychologist reading Dr.
Hackney’s report would recognize the probative significance of the scaled scores
reported, but the ALJ, Plaintiff’s counsel, and this court are not psychologists and are not
required or expected to have such medical expertise. However, Dr. Lark is a state agency
psychologist who read Dr. Hackney’s report and noted that Plaintiff reported a lot of
symptoms to Dr. Hackney “but her MSE [(Mental Status Examination] was relatively
normal psychologically speaking” and “[s]he scored 24/30 on the MMSE.” (R. 96).
Moreover, Dr. Lark found Plaintiff is not disabled and the ALJ found his opinion
persuasive and more persuasive than Dr. Bucklew’s opinion.
As noted above, the ALJ complied with her duty pursuant to Clifton. And the
district court case Plaintiff cites does not support her argument. As Plaintiff suggests, the
court in Cox quoted Clifton for the principal that the record must demonstrate the ALJ
considered all the evidence and must discuss the evidence supporting her decision,
uncontroverted evidence not relied upon, and significantly probative evidence she rejects.
Cox, 2020 WL 6701426, at *4. In Cox, the ALJ found the state agency consultants’
opinions “highly persuasive,” and the plaintiff argued the ALJ failed to discuss the
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consultants’ opinions regarding “well-defined expectations” and “limited personal
interactions.” As the court has done here, the court in Cox found that the express
limitations were adequately accounted for in the ALJ’s RFC assessment and declined to
reverse on the grounds presented. Id. at *5.
The remaining evidence cited by Plaintiff to show error in the ALJ’s finding Dr.
Hackney’s opinion inconsistent with Plaintiff’s treatment notes does not require a
different result. Plaintiff cites evidence of a dysphoric mood, blunted affect or
tearfulness, a diagnosis of major depressive disorder, trouble concentrating on things and
a referral to a clinical social worker for treatment. (Pl. Br. 10). While in a very general
and broad sense such evidence might be seen as consistent with aspects of Dr. Hackney’s
opinion, it is not evidence suggesting Plaintiff has the disabling limitations opined by Dr.
Hackney—inability “to understand and perform simple tasks in an average amount of
time, … to sustain concentration over an eight-hour day in routine activity or [to] keep a
work schedule with average performance demands.” (R. 437).
To find this evidence consistent with and supportive of Dr. Hackney’s opinion, the
court would have to reweigh the evidence and substitute its judgement for that of the
Commissioner, a prospect from which it is prohibited and which, as the Commissioner
suggests, Plaintiff is apparently seeking.
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.
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Dated July 19, 2021, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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