Krosse v. Social Security Administration
Filing
18
OPINION AND ORDER by Magistrate Judge Paul J Cleary Affirming the Commissioner's desision (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
JEFF CLAYTON KROSSE,
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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
Case No. 13-CV-270-PJC
OPINION AND ORDER
Claimant, Jeff Clayton Krosse (“Krosse”), pursuant to 42 U.S.C. § 405(g), requests
judicial review of the decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying his application for disability insurance benefits pursuant to the Social
Security Act, 42 U.S.C. §§ 401 et seq. In accordance with 28 U.S.C. § 636(c)(1) and (3), the
parties have consented to proceed before a United States Magistrate Judge. Any appeal of this
order will be directly to the Tenth Circuit Court of Appeals. Krosse appeals the decision of the
Administrative Law Judge (“ALJ”) and asserts that the Commissioner erred because the ALJ
incorrectly determined that Krosse was not disabled. For the reasons discussed below, the Court
AFFIRMS the Commissioner’s decision.
Claimant’s Background
Krosse was 42 years old at the time of the hearing before the ALJ on April 10, 2012. (R.
25, 129). He was 5' 7" tall, and he weighed about 320 pounds. (R. 36). He had attended some
college, and he had a certificate in nursing assistance from Tulsa Job Corps Center in 1990. (R.
37). Krosse testified that there were periods when he did not get treatment or take prescription
medications for his medical conditions because he could not afford it and he did not have
insurance. (R. 37-38). He said that since he qualified for Medicaid in September 2010, he had
been compliant in taking all medications. (R. 38). Krosse was using a cane on the day of the
hearing. (R. 37). He said that he had purchased the cane himself and had not been prescribed a
cane by a physician. Id.
Krosse said that he could not stand for long periods of time because of his lower back and
right knee. (R. 38). He said that he had low back pain even while sitting. Id. Krosse testified
that he had injured his right knee in 1992 while working and that the physicians told him x-rays
showed osteoarthritis. (R. 38-39). He said that the pain in his right knee had gotten worse over
the years, and it was also increased by bad weather. (R. 39). He estimated his daily pain level
for his knee at around 5 on a scale of 1-10. (R. 39-40). He also had problems with his hip. (R.
40).
Krosse estimated that he could stand for about 15 minutes before the pain and spasm in
his lower back would cause him to need to sit. (R. 41). He could sit for about 30 to 45 minutes
before needing to stand. Id. He could walk for about two blocks before he would be out of
breath and his low back and hips would hurt. (R. 41-42). Krosse thought that he could lift about
5 or 10 pounds in an 8-hour day. (R. 43). He thought that his low back problems were the cause
of his inability to lift. Id. He could not bend over, and kneeling was hard for him. (R. 42).
2
Krosse thought that his grip strength was not as strong as it had been. (R. 42-43). He had
experienced some tendonitis in his right arm. (R. 43). He could probably write for 15-25
minutes before needing to take a break. Id.
Krosse estimated that he slept about 6 or 7 hours a night. (R. 44). He had previously
been on medication for sleep, but he could no longer afford it because Medicaid would not cover
it. Id. He took one-hour naps about 3 or 4 times a week. Id. Krosse said that he was a diabetic,
and his blood sugar levels were often uncontrolled in the 200s or 300s. (R. 40). This left him
feeling as though he had no energy. Id. He felt tired during the day, and he did not think that he
could sustain activity for 8 hours a day. (R. 44-45). He did not think that he could sit for 8 hours
a day because of pain in his low back and hip. (R. 45). At the time of the hearing, he was not
driving because his license had been suspended for lack of insurance. (R. 45-46).
Krosse and his wife received assistance from a home health agency, and the aide did
cleaning and cooked a lunch. (R. 50-51). Krosse did most of the dinner cooking and sometimes
cooked breakfast. (R. 51). When he was cooking, he had problems with spasms and pain in his
low back, and he sometimes sat down. (R. 51-52). Krosse went grocery shopping once a month,
and he would have pain in his knee, low back, and hip. (R. 52). He used the grocery cart for
support. Id.
Krosse testified that he was getting treatment for depression at Family & Children’s
Services (“F&CS”). (R. 55). Sleeplessness and fatigue were his main symptoms from his
depression. (R. 55-56).
Krosse was seen by J. Dewayne Geren, D.O. on October 19, 2007 for a follow-up visit for
his hypertension and diabetes. (R. 227). Dr. Geren increased his Lisinopril and continued his
other medications. Id. On November 26, 2007, Krosse had a high blood pressure reading, and
3
Dr. Geren assessed his hypertension as “less than adequately controlled.” Id. On March 19,
2008, Dr. Geren assessed Krosse with borderline ketoacidosis in addition to his diabetes and
hypertension. (R. 226). Dr. Geren sent Krosse to an emergency room for further evaluation and
treatment. Id. Krosse saw Dr. Geren again in June 2008. (R. 225).
On January 6, 2009, Krosse saw Stephen Kroth, D.O. at Johnson City Family Care Center
in Johnson City, New York (the “New York Clinic”) to establish care as a new patient. (R. 31620). He said that he had sprained his right knee a couple of weeks earlier, and he thought that he
had recently injured his back in the area of his right lower ribs. (R. 316). He also wanted insulin
and needles. Id. On examination, his right ribs were tender to palpation. (R. 319). Krosse was
assessed with chronic uncomplicated and poorly controlled type II diabetes, and medications
were prescribed. Id. He was also assessed with acute sprain/strain of his ribs and instructed to
use over-the-counter pain relief medications. (R. 320).
Krosse had a follow-up appointment at the New York Clinic on January 22, 2009. (R.
312-15). His diabetes medications were adjusted. (R. 314). He was also screened for depression
and found to not meet many criteria. Id. Krosse was seen again for diabetes follow-up on
February 10, 2009 and March 6, 2009. (R. 297-300, 305-09). On March 14, 2009, Krosse was
assessed with hypertension that was poorly controlled, and he was prescribed Lisinopril. (R.
292-96).
On May 22, 2009, Krosse presented for right knee pain that had started two weeks earlier.
(R. 288-91). He was referred to physical therapy and instructed to take nonsteroidal antiinflammatory drugs (“NSAIDs”) for pain control. (R. 290). At a follow-up appointment on June
5, 2009, Krosse said that his knee was better, but his neck had a sharp pain that had started that
day. (R. 284-87). On examination, his neck had full range of motion with mild tenderness. (R.
4
286). His knee had full range of motion, and was “tender at middle of patella.” Id. He was
prescribed Flexeril, advised to continue with NSAIDs, and directed to follow-up on his referral to
physical therapy. Id. On August 3, 2009, Krosse presented with situational stress due to his
mother’s hospitalization in Oklahoma, and he was prescribed clonazepam. (R. 277-80).
On August 21, 2009, Krosse complained of foot pain in both feet. (R. 273-76). His
diabetes and hypertension were described as being under good control. (R. 275). On September
24, 2009, Krosse was again doing well, and his medications were continued. (R. 262-65).
On December 21, 2009, Krosse presented with increased symptoms of depression and
anxiety, and he was prescribed Celexa. (R. 249-51). On January 6, 2010, Krosse presented with
right rib pain, reporting that he had been diagnosed with two rib fractures at an emergency room.
(R. 246-48). The physician said the fractures were confirmed by x-ray, and on examination
Krosse was tender over those ribs. (R. 247). Krosse was prescribed pain medications. Id.
Krosse was seen for a diabetes follow-up appointment on April 2, 2010, and his glycemic
control was described as “questionable.” (R. 240-45). He was asked to closely monitor his
blood sugar levels for one week for evaluation. (R. 243).
Krosse saw Debra Paxton, D.O. at the New York Clinic on April 27, 2010 and was
treated with osteopathic manipulation. (R. 235-39).
On May 11, 2010, Krosse was seen at the New York Clinic for back pain. (R. 231-34).
On examination, Krosse had “posterior tenderness” of his spine, but normal range of movement,
with slight pain on rotation. (R. 233). He had an area of tenderness on the right side around the
T10 area. Id. He was assessed with sprain/strain of his ribs and instructed to continue heat, ice,
and stretching. Id.
5
Krosse was seen by Asim Maqsood, M.D., at Morton Comprehensive Health Services,
Inc. (the “Morton Clinic”) in Tulsa on October 11, 2010 to establish care as a new patient. (R.
354-56). Krosse’s weight was 227. (R. 355). Assessments were benign essential hypertension,
hyperlipidemia, and “poorly controlled” diabetes. Id. Dr. Maqsood ordered laboratory tests, and
he prescribed Celexa and medications for diabetes and high blood pressure. (R. 355-56). At a
follow-up appointment on November 2, 2010, the certified physician’s assistant assessed anemia
and continued the other previous assessments. (R. 351-54).
Krosse was evaluated by Elka Serrano, M.D., at F&CS on November 16, 2010. (R. 34243). On Axis I,1 she assessed recurrent, moderate major depressive disorder, and she assessed
Krosse’s Global Assessment of Functioning (“GAF”)2 as 65/70. (R. 343). She increased the
dosage of Celexa and added Trazodone for sleep. Id.
On November 30, 2010, Krosse returned to Dr. Maqsood for follow-up of his lab results
and also mentioned soreness in his low back after a fall the day before. (R. 350-51). On
examination, there was no tenderness of the low back, and range of motion was intact. (R. 351).
Assessments were anemia and poorly controlled diabetes. Id. It appears that Krosse was seen at
the Morton Clinic on December 10, 2010 by Michael Opong-Kusi, D.O., but the computer record
is incomplete and says that details were dictated. (R. 349). The record does state that Krosse
was told to rest and use ice as needed and that an NSAID was prescribed. Id.
1
The multiaxial system “facilitates comprehensive and systematic evaluation.” See
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 27
(Text Revision 4th ed. 2000) (hereinafter “DSM IV”).
2
The GAF score represents Axis V of a Multiaxial Assessment system. See DSM IV at
32-36. A GAF score is a subjective determination which represents the “clinician’s judgment of
the individual’s overall level of functioning.” Id. at 32. See also Keyes-Zachary v. Astrue, 695
F.3d 1156, 1162 n.1 (10th Cir. 2012).
6
Krosse returned to Dr. Serrano at F&CS on February 22, 2011, and she continued the
diagnosis of major depressive disorder. (R. 447). She increased the dosage of Elavil to help with
sleep and depression. Id. A document from F&CS reflects that Krosse discontinued services
with them in 2011. (R. 442).
Krosse returned to Dr. Opong-Kusi at the Morton Clinic on April 6, 2011 with a
complaint of chronic low back pain and a request for referral for manipulation. (R. 406-07).
Krosse said that he had symptoms in his back, hip, and knee. (R. 406). On examination, Krosse
had low back pain and multiple tender points in the sacral/lumbar region. (R. 407). Straight leg
raising was negative. Id. Krosse ambulated with a slight limp. Id. Assessments were ankle
joint pain, benign essential hypertension, hyperlipidemia, poorly controlled diabetes, and myalgia
and myositis. Id. At a follow-up on April 19, 2011, Dr. Maqsood prescribed Flexeril and
Tramadol while Krosse was waiting for a scheduled appointment with a pain specialist. (R. 40405). A physician’s assistant saw Krosse on May 6, 2011 because of continued pain in his right
ankle after a normal x-ray. (R. 402). The physician’s assistant explained that his symptoms were
likely due to arthritis and that he should use ice and heat as tolerated, in addition to his NSAID.
Id.
On May 9, 2011, Ashok Kache, M.D., evaluated Krosse as a new patient for his
complaints of chronic mild to moderate back pain for 5 or 6 years. (R. 417-18). On
examination, Dr. Kache found that Krosse had only mild outward tenderness in his lumbar spine.
(R. 418). He had minimal tenderness in the gluteal muscles adjacent to the iliac crest, and there
were no trigger points. Id. His gait was normal. Id. Dr. Kache’s impressions were mechanical
back pain syndrome and residual chronic pain of his right knee after injury. Id. He prescribed
Mobic, Lortab, and Flexeril. Id.
7
Krosse saw Dr. Maqsood at the Morton Clinic for follow-up of his diabetes and
hypertension on June 8, 2011. (R. 431-32). At an appointment with Dr. Opong-Kusi on
September 14, 2011, it was noted that Krosse had not been compliant with diet and medications.
(R. 424-26). It was noted that examination of his lumbar spine and knee showed
“abnormalities.” (R. 425). Dr. Maqsood saw Krosse on October 11, 2011. (R. 422-24). Krosse
returned to Dr. Maqsood on January 3, 2012 for follow-up, and Dr. Maqsood adjusted his
medications. (R. 421-22).
Krosse saw Mark Crouch, M.D. as a new patient on February 14, 2012. (R. 456-58).
Assessments were uncontrolled diabetes, mixed hyperlipidemia, benign hypertension, and
morbid obesity. (R. 457-58).
Examining agency consultant Timothy W. Winter, D.O. completed a physical
examination of Krosse on February 25, 2011. (R. 370-76). Krosse weighed 272 pounds and
reported that he had gained 50 pounds in the previous six months. (R. 370-71). On examination,
Krosse had decreased range of motion of the spine. (R. 371). Krosse had attended the
examination with a cane, but Dr. Winter stated that without the use of assistive devices, Krosse’s
gait was stable. Id. He noted that Krosse moved easily about the examination room. Id. His
assessments were low back pain; poorly-controlled diabetes; hypertension; high cholesterol;
depression; flat feet with history of plantar fasciitis; osteoarthritis of the right knee; sleep
disorder; and status post eye muscle surgery and tonsillectomy as a child. (R. 371-72). The
accompanying Range of Joint Motion Evaluation Chart showed some limitation of back flexion,
and hip flexion. (R. 373). The Backsheet also reflected reduced flexion of the back and noted
pain. (R. 376). Straight leg raising was positive bilaterally. Id. Tenderness of both the cervical
spine and lumbar spine was noted. Id.
8
Nonexamining agency consultant Luther Woodcock, M.D., completed a Physical
Residual Functional Capacity Assessment on March 24, 2011. (R. 391-98). Dr. Woodcock
indicated that Krosse could occasionally lift or carry up to 50 pounds and frequently lift or carry
up to 25 pounds. (R. 392). He found that, in an 8-hour workday, Krosse could stand and/or walk
for about 6 hours and could sit for about 6 hours. Id. For narrative explanation, Dr. Woodcock
reviewed Krosse’s treatment for his diabetes in 2008 and his improved control in 2010. Id. His
2010 office visit for a 3-day onset of back pain was also noted. Id. An x-ray from 2009 showing
mild degenerative joint disease of his right knee was noted. Id. Dr. Woodcock summarized Dr.
Winter’s consultative examination report. (R. 392-93). He also summarized Krosse’s activities
of daily living, stated there were “some limitations due to depression.” (R. 393). Dr. Woodcock
found no postural, manipulative, visual, communicative, or environmental limitations were
established. (R. 393-95). On June 24, 2011, nonexamining agency consultant David M. Bailey,
M.D. came to the same conclusions as Dr. Woodcock on a second Physical Residual Functional
Capacity Assessment. (R. 409-16). Dr. Bailey summarized the May 9, 2011 office visit of
Krosse with Dr. Kache as part of his narrative explanation for his findings. (R. 410-11).
Agency examining consultant Michael D. Morgan, Psy.D. completed a mental status
examination of Krosse on February 8, 2011. (R. 362-67). Dr. Morgan’s impression on Axis I
was anxiety disorder not otherwise specified, and he scored Krosse’s GAF as 76-80. (R. 365).
In a paragraph under the title “prognosis,” Dr. Morgan noted that Krosse’s anxiety was related to
“unresolved issues of origin, living with chronic pain, diabetes, being unemployed and ongoing
financial difficulties.” Id. Dr. Morgan stated that Krosse could achieve a higher level of
functioning within one year with appropriate mental health treatment. Id.
9
Agency nonexamining consultant Janice B. Smith, Ph.D., completed a Psychiatric
Review Technique form dated March 15, 2011. (R. 377-90). For Listing 12.04, Dr. Smith noted
two symptoms of depressive syndrome. (R. 380). For Listing 12.06, Dr. Smith noted anxiety.
(R. 382). For the “Paragraph B Criteria,”3 checkmarks indicated that Krosse had mild restriction
of activities of daily living, mild difficulties in maintaining social functioning, and mild
difficulties in maintaining concentration, persistence, or pace, with no episodes of
decompensation. (R. 387). In the “Consultant’s Notes” portion of the form, Dr. Smith briefly
summarized Krosse’s 2010 visit with Dr. Serrano. (R. 389). She also briefly summarized Dr.
Morgan’s report, and Krosse’s activities of daily living. Id. Dr. Smith stated that there was no
evidence of a severe, disabling mental impairment which would prevent Krosse from working.
Id. She said that Krosse’s “mental allegations” were nonsevere. Id.
Procedural History
Krosse filed an application on November 22, 2010, seeking disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. (the “Act”). (R. 129-35).
Krosse alleged onset of disability as September 3, 2009. (R. 129). The application was denied
initially and on reconsideration. (R. 69-73, 75-77). A hearing before ALJ Deborah L. Rose was
held April 10, 2012. (R. 25-62). By decision dated May 25, 2012, the ALJ found that Krosse
was not disabled. (R. 11-20). On March 13, 2013, the Appeals Council denied review of the
3
There are broad categories known as the “Paragraph B Criteria” of the Listing of
Impairments used to assess the severity of a mental impairment. The four categories are (1)
restriction of activities of daily living, (2) difficulties in maintaining social functioning, (3)
difficulties in maintaining concentration, persistence or pace, and (4) repeated episodes of
decompensation, each of extended duration. Social Security Ruling (“SSR”) 96-8p; 20 C.F.R.
Part 404 Subpt P, App. 1 (“Listings”) § 12.00C. See also Carpenter v. Astrue, 537 F.3d 1264,
1268-69 (10th Cir. 2008).
10
ALJ’s findings. (R. 1-4). Thus, the decision of the ALJ represents the Commissioner’s final
decision for purposes of this appeal. 20 C.F.R. § 404.981.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment.” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Act only if his
“physical or mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work in the national economy.” 42 U.S.C. § 423(d)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a disability
claim. 20 C.F.R. § 404.1520.4 See also Wall v. Astrue, 561 F.3d 1048, 1052-53 (10th Cir. 2009)
(detailing steps). “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.” Lax, 489 F.3d at 1084 (citation
and quotation omitted).
4
Step One requires the claimant to establish that he is not engaged in substantial gainful
activity, as defined by 20 C.F.R. § 404.1510. Step Two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that significantly limit his
ability to do basic work activities. See 20 C.F.R. § 404.1520(c). If the claimant is engaged in
substantial gainful activity (Step One) or if the claimant’s impairment is not medically severe
(Step Two), disability benefits are denied. At Step Three, the claimant’s impairment is compared
with certain impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App.1 (“Listings”). A claimant
suffering from a listed impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry. If not, the evaluation proceeds to Step Four,
where the claimant must establish that he does not retain the residual functional capacity
(“RFC”) to perform his past relevant work. If the claimant’s Step Four burden is met, the burden
shifts to the Commissioner to establish at Step Five that work exists in significant numbers in the
national economy which the claimant, taking into account his age, education, work experience,
and RFC, can perform. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Disability
benefits are denied if the Commissioner shows that the impairment which precluded the
performance of past relevant work does not preclude alternative work. 20 C.F.R. § 404.1520.
11
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g). This Court’s review is limited to two inquiries: first, whether the decision was supported
by substantial evidence; and, second, whether the correct legal standards were applied. Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted).
Substantial evidence is such evidence as a reasonable mind might accept as adequate to
support a conclusion. Wall, 561 F.3d at 1052 (quotations and citations omitted). Although the
court will not reweigh the evidence, the court will “meticulously examine the record as a whole,
including anything that may undercut or detract from the ALJ’s findings in order to determine if
the substantiality test has been met.” Id.
Decision of the Administrative Law Judge
The ALJ found that Krosse met insured status requirements through September 30, 2013.
(R. 13). At Step One, the ALJ found that Krosse had not engaged in any substantial gainful
activity since his asserted onset date of September 3, 2009. Id. At Step Two, the ALJ found that
Krosse had severe impairments of diabetes, degenerative joint disease, and obesity. Id. The ALJ
found that Krosse’s medically determinable mental impairments were nonsevere. (R. 14-15). At
Step Three, the ALJ found that Krosse’s impairments did not meet a Listing. (R. 15).
The ALJ determined that Krosse had the RFC to perform the full range of medium work,
with no other limitations. Id. At Step Four, the ALJ found that Krosse was able to perform past
relevant work. (R. 19). Therefore, the ALJ found that Krosse was not disabled from September
3, 2009 through the date of her decision. (R. 20).
Review
Krosse asserts three arguments before this Court. First, he states that the ALJ did not
properly consider his nonsevere mental impairments in determining his RFC. Plaintiff’s Opening
12
Brief, Dkt. #15, pp. 6-7. Second, he asserts that the ALJ gave “undue weight” to the opinion
evidence of Dr. Woodcock, the nonexamining agency consultant. Id. at 7-9. Third, Krosse
asserts that the ALJ failed to resolve discrepancies in the record. Id. at 9-10. Regarding the
issues raised by Krosse, the Court finds that the ALJ’s decision is supported by substantial
evidence and complies with legal requirements. Thus, the ALJ’s decision is AFFIRMED.
Nonsevere Mental Impairments
The undersigned finds Krosse’s argument regarding his nonsevere mental impairments to
be unpersuasive. The ALJ stated at Step Two of her analysis that Krosse’s mental impairments
did not cause more than minimal limitation in his ability to perform basic mental activities. (R.
14). She considered the Paragraph B Criteria in some detail and explained the evidentiary basis
for her finding for each criteria that Krosse’s limitations were only “mild.” Id. Later in her
decision, the ALJ explained that Krosse’s history of treatment for his alleged mental impairments
was inconsistent with a claim that those impairments were disabling. (R. 19). She noted that
Krosse had limited contacts with mental health practitioners at F&CS and had discontinued
services there. Id.
In response to the ALJ’s finding that Krosse’s mental impairments were nonsevere and
her implicit decision that he had no limitations arising from those nonsevere impairments that
should be included in the RFC determination, Krosse argues repeatedly that the ALJ “failed” to
consider his nonsevere mental impairments and failed to include any mental impairments in her
RFC determination. Plaintiff’s Opening Brief, Dkt. #15, pp. 6-7. Contrary to Krosse’s
argument, the ALJ was not required to find that his nonsevere depression resulted in limitations
in his ability to do work-like functions. See, e.g., Alvey v. Colvin, 536 Fed. Appx. 792, 795 (10th
Cir. 2013) (unpublished) (affirming in part because there was “no substantial evidence that
13
would allow a reasonable administrative factfinder to include any mental limitations” in the
claimant’s RFC). Further, the Psychiatric Review Technique form completed by nonexamining
agency consultant Dr. Smith, including her statement that there was no evidence of a severe,
disabling mental impairment that would prevent Krosse from working, is substantial evidence
supporting the ALJ’s omission of any mental limitations in her RFC determination. (R. 389);
Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007). The ALJ did not err in her
consideration of Krosse’s nonsevere mental impairment.
Dr. Woodcock’s Opinion Evidence
Krosse appears to be under a fundamental misunderstanding of the ALJ’s obligation to
analyze opinion evidence. The first sentence of this section of his brief states: “Where
conflicting opinions exist between a consulting physician and a treating physician, the burden
falls on the shoulders of the ALJ to determine the validity of each position.” Plaintiff’s Opening
Brief, Dkt. #15, p. 7. Krosse cites to a Ninth Circuit opinion for this proposition, but this
statement is consistent with the approach of this circuit as well. Robinson v. Barnhart, 366 F.3d
1078, 1084 (10th Cir. 2004) (in general the opinion of a treating physician is given more weight
than that of an examining consultant, and the opinion of a nonexamining consultant is given the
least weight). Here, however, Krosse does not assert that there was any treating physician
opinion or any examining physician opinion that should have been given precedence over the
opinion of Dr. Woodcock. Plaintiff’s Opening Brief, Dkt. #15, pp. 7-8. He does not identify one
single “conflicting opinion” that the ALJ should have considered before allocating great weight
to the opinion evidence of Dr. Woodcock. Id.
The Tenth Circuit in Cowan v. Astrue, 552 F.3d 1182, 1188-89 (10th Cir. 2008)
explained that a “true medical opinion” was one that contained a doctor’s “judgment about the
14
nature and severity of [the claimant’s] physical limitations, or any information about what
activities [the claimant] could still perform.” Thus, the court found that a statement by a treating
physician that the claimant had a stroke “and I feel he may never return to work” was not a true
medical opinion. Id. See also Martinez v. Astrue, 316 Fed. Appx. 819, 822-23 (10th Cir. 2009)
(unpublished) (ALJ did not need to provide specific legitimate reasons for rejecting portion of
treating physician’s letter that contained only generalized statements).
Here, in his Reply Brief, Krosse states that the treating records contain “notes detailing
[Krosse’s] impairments, including his mental health impairments of anxiety and depression.”
Plaintiff’s Reply Brief, Dkt. #17, p. 2. As Cowan and Martinez explain, treating notes that
describe impairments are not opinion evidence; instead, the notes must actually address the
functional limitations of the claimant in order to be opinion evidence. The Court has found no
statements in any treating records in the administrative transcript that constitute opinion
evidence, and, as noted, Krosse has not cited to any. See Gilbert v. Astrue, 231 Fed. Appx. 778,
782 (10th Cir. 2007) (unpublished) (“In the absence of essential references to the record in a
party’s brief, the court will not ‘sift through’ the record to find support for the claimant’s
arguments.”) (further quotation and citation omitted). In Krosse’s case, there was simply no
treating opinion evidence for the ALJ to consider.
Moreover, the ALJ was entitled to rely opinion Dr. Woodcock’s assessment as substantial
evidence. See Flaherty, 515 F.3d at 1071 (nonexamining consultant’s opinion was an acceptable
medical source which the ALJ was entitled to consider and which supported his RFC
determination). The ALJ did not commit any reversible error regarding opinion evidence.
15
Credibility Assessment
Krosse’s third argument appears to be that the ALJ erred by noting inconsistencies in his
testimony without “resolving” those inconsistencies. Plaintiff’s Opening Brief, Dkt. #15, pp. 910. Credibility determinations by the trier of fact are given great deference. Hamilton v.
Secretary of Health & Human Services, 961 F.2d 1495, 1499 (10th Cir. 1992).
The ALJ enjoys an institutional advantage in making [credibility determinations].
Not only does an ALJ see far more social security cases than do appellate judges,
[the ALJ] is uniquely able to observe the demeanor and gauge the physical
abilities of the claimant in a direct and unmediated fashion.
White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2002). In evaluating credibility, an ALJ must
give specific reasons that are closely linked to substantial evidence. See Kepler v. Chater, 68
F.3d 387, 391 (10th Cir. 1995); Social Security Ruling 96-7p, 1996 WL 374186. “[C]ommon
sense, not technical perfection, is [the] guide” of a reviewing court. Keyes-Zachary, 695 F.3d at
1167.
First, the Court finds that the ALJ did, indeed, resolve the factual questions posed by
Krosse’s case. She determined Krosse’s RFC, and she therefore rejected all of Krosse’s
testimony that claimed that he had impairments that were more severe than reflected by that
RFC. She stated that Krosse’s statements were “not credible to the extent they are inconsistent
with” her RFC determination. (R. 18). She then gave several examples of inconsistencies which
she found justified a finding that Krosse was not completely credible. She found his testimony
that he had attended special education classes to be inconsistent with his completion of course
work at Tulsa Community College. Id. She found that medical records that stated that Krosse’s
knee pain had been alleviated with warm compresses indicated that his knee pain was not at a
level that was disabling, as he asserted. Id. She said that the activities Krosse described in a
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function report were not consistent with back pain that was claimed to be disabling. Id. She
contrasted his claims of disabling back pain with the treating records of Dr. Kache. Id. She
found that if Krosse suffered from pain that was severe enough to be disabling, he would have
made more attempts to obtain treatment for his back and knee conditions. (R. 18-19).
These were all proper examples that supported a finding that Krosse was less than fully
credible. Findings that subjective complaints are inconsistent with reported activities or with
objective medical evidence are legitimate reasons that support an adverse credibility assessment.
Newbold v. Colvin, 718 F.3d 1257, 1267 (10th Cir. 2013). Failure of a claimant to be diligent in
seeking treatment for allegedly disabling impairment is a legitimate factor supporting an adverse
credibility assessment. Qualls v. Apfel, 206 F.3d 1368, 1372-73 (10th Cir. 2000). Krosse
appears to be arguing that the ALJ had an obligation to do more, but that is simply not true. She
adequately resolved all conflicts by determining Krosse’s RFC and by finding that his subjective
complaints that went beyond the limitations she found were not credible. The ALJ’s credibility
assessment was properly supported by legitimate reasons that were linked to substantial
evidence. The Court therefore finds that the ALJ’s credibility assessment was sufficient, and the
ALJ’s decision is hereby AFFIRMED.
Conclusion
The decision of the Commissioner is supported by substantial evidence and complies with
legal requirements. The decision is AFFIRMED.
Dated this 3rd day of April 2014.
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