Newpher v. Social Security Administration
OPINION AND ORDER by Magistrate Judge T Lane Wilson , dismissing/terminating case (terminates case) (crp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security, )
Case No. 15-cv-479-TLW
OPINION AND ORDER
Plaintiff Douglas Newpher seeks judicial review of the decision of the Commissioner of
the Social Security Administration denying his claim for disability insurance benefits under Title
II of the Social Security Act (“SSA”), 42 U.S.C. §§ 416(i), 423. In accordance with 28 U.S.C. §
636(c)(1) & (3), the parties have consented to proceed before a United States Magistrate Judge.
(Dkt. 9). Any appeal of this decision will be directly to the Tenth Circuit Court of Appeals.
Plaintiff essentially challenges the Administrative Law Judge’s (“ALJ”) residual functional
capacity (“RFC”) decision arguing that (1) “the ALJ improperly weighed the physician opinions”
by giving less weight to treating physician Roger Kinney, M.D.’s opinion in favor of another
treating physician’s and two consultative examiners’ opinions; and (2) “failed to properly consider
[plaintiff’s] pain” when determining his credibility. (Dkt. 14 at 2 and 8).
Effective January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting
Commissioner of the Social Security Administration and is substituted as defendant in this action
pursuant to Federal Rule of Civil Procedure 25(d).
STANDARD OF REVIEW
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported by
substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). Substantial
evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. See id. The Court’s review is
based on the record, and 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. The Court may neither re-weigh the evidence nor substitute
its judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th
Cir. 2005). Even if the Court might have reached a different conclusion, if supported by substantial
evidence, the Commissioner’s decision stands. See White v. Barnhart, 287 F.3d 903, 908 (10th
RFC and Opinion Evidence
Plaintiff argues three specific issues under the broad allegation that the ALJ “improperly
weighed the physician opinions.” Specifically, plaintiff argues that the ALJ: (1) erred in evaluating
Dr. Kinney’s opinion by failing to conduct a proper treating physician analysis, (2) improperly
discounted plaintiff’s ability to walk and use his feet, and (3) improperly “cherry-picked” portions
of Dr. Snider’s consultative mental examination to support his decision that plaintiff is not
disabled. (Dkt. 14).
Dr. Kinney treated plaintiff for a variety of issues ranging from constipation to pain
mediation refills from November 2, 2012 to November 2, 2013. (R. 307-11, 326-29, 330-40, 34149, 350-55, 361-65). On April 26, 2013, Dr. Kinney completed a Medical Source Statement, in
which he said that he treated plaintiff for hypertension, chronic pain, back pain, anxiety, chronic
constipation, chronic knee pain, and a fractured coccyx. (R. 326-29; 350-55).2 He opined that
plaintiff was unable to work as of October 9, 20123 due to “low back pain” and “fracture, coccyx.”
(352-53). Dr. Kinney further opined that plaintiff’s ability to stand and walk would be affected by
chronic back pain and “old fracture, feet.” (R. 353). Although Dr. Kinney noted that pain would
be a “significant part of the above limitations” regarding standing and walking, he answered “N/A”
when asked “[w]hat causes the pain in the above impairments?” (R. 354). He stated pain would
limit plaintiff’s ability to complete an eight-hour workday and would interfere with plaintiff’s
concentration. Id. Further written answers on this statement are in a different handwriting, not that
of Dr. Kinney, with no signature of the author; however, those answers imply that plaintiff can sit
two hours out of eight, that plaintiff cannot stand or walk “without support of [a] cane or walker,”
that lifting causes pain, that he could not lift ten pounds “repeatedly for a third of a workday
without serious problems or pain exacerbations,” and that plaintiff would require unscheduled
breaks every 10 to 15 minutes during a workday. (R. 354-55).
Plaintiff submitted two Medical Source Statements from Dr. Kinney, both dated April 26, 2013,
containing the same information. (R. 326-29; 350-55). The only difference between Exhibit 8F
and Exhibit 11F is an undated, handwritten note, signed by Dr. Kinney and attached to the front
of Exhibit 11F stating “I have personally reviewed these forms and agree with all of the responses.”
(R. 351). The ALJ rejected this note during the December 26, 2013 hearing. (R. 71).
Plaintiff’s alleged onset date is April 1, 2012 (R. 32-33), and Dr. Kinney does not explain this
Dr. Kinney did not fill out half of the statement himself, the handwriting is markedly
different from question 12 forward, and at least two questions, how long he treated plaintiff and
how long he felt plaintiff’s restrictions “indicated above” would last, were left unanswered. (R.
350-55). During the hearing, the ALJ called both statements into question, and offered plaintiff’s
counsel additional time to resolve what he viewed as an inconsistent treating physician opinion;
however, plaintiff’s counsel declined the opportunity. (R. 71-72).
Ordinarily a treating physician’s opinion is entitled to controlling weight when it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2); see also Hackett, 395 F.3d at 1173-74 (citing Watkins v. Barnhart, 350 F.3d 1297,
1300-01 (10th Cir. 2003)). If the ALJ discounts or rejects a treating physician opinion, he is
required to explain his reasoning for so doing. See Frey v. Bowen, 816 F.2d 508, 513 (10th Cir.
1987) (stating that an ALJ must give specific, legitimate reasons for disregarding a treating
physician’s opinion); Thomas v. Barnhart, 147 F. App’x 755, 760 (10th Cir. 2005) (holding that
an ALJ must give “adequate reasons” for rejecting an examining physician’s opinion and adopting
a non-examining physician’s opinion).
The analysis of a treating physician’s opinion is sequential. First, the ALJ must determine
whether the opinion qualifies for “controlling weight,” by determining whether it is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and whether it is consistent
with the other substantial evidence in the administrative record. Watkins, 350 F.3d at 1300. If the
answer is “no” to the first part of the inquiry, then the analysis is complete. If the ALJ finds that
the opinion is well-supported, he must then confirm that the opinion is consistent with other
substantial evidence in the record. Id. “[I]f the opinion is deficient in either of these respects, then
it is not entitled to controlling weight.” Id.
However, even if the ALJ finds the treating physician’s opinion is not well-supported by
medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other
substantial evidence in the record, treating physician opinions are still entitled to deference and
must be evaluated in reference to the factors enumerated in 20 C.F.R. §§ 404.1527 and 416.927.
Those factors are as follows:
(1) the length of the treating relationship and the 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.
Watkins, 350 F.3d at 1301 (citing Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001)).
The ALJ must give good reasons in his decision for the weight he ultimately assigns the opinion.
Id. (citing 20 C.F.R. § 404.1527(d)(2)). The reasons must be of sufficient specificity to make clear
to any subsequent reviewers the weight the adjudicator gave to the treating physician’s opinion
and the reasons for that weight. See Anderson v. Astrue, 319 F. App’x 712, 717 (10th Cir. 2009)
Plaintiff argues that the ALJ failed to properly analyze Dr. Kinney’s opinion that he “is
permanently and totally disabled.” (Dkt. 14 at 2). Plaintiff further argues that “[w]hen a treating
physician’s opinion is inconsistent with other medical evidence,5 the ALJ’s task is to examine the
10th Cir. R. 32.1 provides that “[u]npublished opinions are not precedential, but may be cited for
their persuasive value.”
The Court notes that in making this argument, plaintiff essentially concedes that Dr. Kinney’s
opinion “is inconsistent” with the remaining evidence of record.
other physicians’ reports ‘to see if [they] outweigh[ ]’ the treating physician’s report, not the other
way around.” (Id. at 3.) (emphasis in original) (citing Reyes v. Bowen, 845 F. 2d 242, 244 (10th
Cir. 1988)). Plaintiff’s arguments misunderstand two important factors. First, the ALJ properly
considered Dr. Kinney’s opinion in light of 20 C.F.R. § 404.1527 and Social Security Ruling 962p. The ALJ determined that Dr. Kinney’s opinion was not “well supported by medically
acceptable clinical and diagnostic techniques,” was “inconsistent with the other substantial
evidence,” and that Dr. Kinney’s statement that plaintiff was disabled “can never be entitled to
controlling weight.” (R. 23-24) (citing 20 C.F.R. 404.1527 (c)(2); SSR 96-2p). Second, the ALJ
properly followed the logic found in Reyes, and analyzed the other physicians’ reports and records
to verify that Dr. Kinney’s opinion was outweighed by substantial evidence. (R. 24).
Plaintiff argues that Dr. Kinney’s records and opinion are “consistent with all of the other
doctor’s [sic] records and the testimony and written statements.”6 (Dkt. 14 at 6). A review of the
ALJ’s decision in conjunction with the record reveals that this statement is misleading. The
evidence discussed by the ALJ clearly does not support Dr. Kinney’s opinion.
The ALJ noted consultative examiner Dr. Krishnamurthi’s findings that plaintiff
experiences pain with both heel and toe walking, but has a normal gait; has normal ranges of
motion in his upper extremities; normal range of motion in his lumbosacral and cervical spine;
“diminished” range of motion in his right ankle due to pain; and normal range of motion in his left
lower extremity. (R. 22, 293-95). The ALJ also noted Dr. Krishnamurthi’s findings that plaintiff
was able to walk without a cane or brace, and that he sat on the examination table “without much
difficulty.” (R. 22, 294). The ALJ further relied on records from plaintiff’s physician Dr. Dunitz,
which showed “decreased range of motion in [his] right knee, but full range of motion of the left
As discussed infra, the Court finds no error with the ALJ’s credibility finding; therefore,
plaintiff’s subjective complaints do not support this argument.
knee and each hip. Most notably, [plaintiff’s] gait remained normal.” (R. 22, 359). Dr. Dunitz’s
records also contain an MRI of plaintiff’s right knee showing “mild to moderate chondromalacia
in the medial knee joint compartment” and no other significant findings. (R. 357). Dr. Kinney’s
own treatment notes consistently show that plaintiff denied “any new problems or complaints,”
and that his “[c]hronic pain [was] controlled on present regimen.” (See, e.g., R. 337, 338, 364).
See 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv) (an ALJ must consider the effectiveness of
None of these records, including Dr. Kinney’s own treatment records, support Dr. Kinney’s
limited opinion that plaintiff would need a break “every 10-15 minutes.” See Castellano v. Sec. of
Health and Human Services, 26 F.3d 1027, 1029 (10th Cir. 1994) (ALJ reasonably discounted
treating physician opinion that was not supported by his own notes). Further, the ALJ correctly
found that Dr. Kinney’s opinion was “not supportable and not indicated in other sources’ reports”;
therefore, it could not be given controlling weight. See SSR 96-2p, 1996 WL 374188.
While the ALJ’s opinion could be more clear, the Court is easily able to follow his
reasoning. The ALJ noted consistent contradictory evidence throughout the record from Dr.
Kinney and other physicians to support his finding that plaintiff’s subjective complaints are
unsupported, and that Dr. Kinney’s Medical Source Statement is unsupported. (R. 19-24). Any
technical errors are harmless, because the Court “cannot insist on technical perfection.” KeyesZachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012).
Thus, the ALJ’s treating physician analysis with respect to Dr. Kinney does not amount to
Plaintiff argues that the ALJ “attacks [plaintiff’s] ability to walk” and failed to include
limitations in his RFC to accommodate plaintiff’s severe impairment of status post crush injury of
both feet by relying on evidence from consultative examiner Dr. Krishnamuthi to discount the
severity of his condition. (Dkt. 14). Plaintiff contends that the ALJ’s RFC for a reduced range of
sedentary work is inconsistent with plaintiff’s subjective complaints,7 Dr. Kinney’s opinion, and
evidence from Timothy Siegfried, D.P.M., and Brian Hightower, D.O. Id.
The Court has already discussed Dr. Kinney’s opinion supra. Plaintiff argues that Dr.
Siegfried’s records show a CT scan of plaintiff’s right ankle, and that Dr. Siegfried “tried several
braces to immobilize [plaintiff’s] ankle (that affects standing and walking) with varying results
and injection therapy.” (Dkt. 14 at 5).
It is clear that the ALJ reviewed Dr. Siegfried’s records from his discussion and summary
of the same. (R. 21-22; R. 244-57). Dr. Siegfried’s records are not helpful to plaintiff. Dr. Siegfried
advised plaintiff on March 24, 2011, after the CT scan of his right ankle, that he was a good surgical
candidate to correct the damage, but he would have to “quit smoking at least six to eight weeks
prior to surgical correction.” (R. 252). Instead, plaintiff received conservative therapy in the form
of injections, boots, and inserts. Dr. Siegfried again discussed surgery during plaintiff’s May 31,
2011 appointment, and plaintiff again chose to wait. (R. 253). By plaintiff’s June 28, 2011 visit,
he was no longer a surgical candidate because he continued to smoke, so Dr. Siegfried sought and
received authorization for an Arizona brace which would allow plaintiff greater mobility and
This is a credibility challenge, and is discussed infra at 10. See Poppa v. Astrue, 569 F.3d 1167,
1170 (10th Cir. 2009) (“Since the purpose of the credibility evaluation is to help the ALJ assess a
claimant’s RFC, the ALJ’s credibility and RFC determinations are inherently intertwined.”).
reduce his pain. (R. 254). Plaintiff’s final visit with Dr. Siegfried shows that plaintiff was “doing
very well with the brace,” and he reported being “stable as an old ‘billy goat.’” (R. 257).
The one record plaintiff highlights from Dr. Hightower is a single visit on July 13, 2012,
and records plaintiff’s subjective complaints that his current treatment was not working for back
pain. (Dkt. 14 at 5-6; R. 266). Plaintiff failed to note a subsequent visit with Dr. Hightower on
September 10, 2012 which shows decreased back pain. (R. 262). These records do not support
plaintiff’s claims of total disability.
The Court finds the ALJ’s RFC is supported by substantial evidence.
Consultative Examining Psychologist
Plaintiff argues that because the ALJ should have given great weight to Dr. Kinney’s
treating physician opinion, the ALJ must have erred in giving great weight to the consultative
examining psychologist. (Dkt. 14). Plaintiff argues that Dr. Snider only examined plaintiff on one
occasion, and that the ALJ “cherry-picked” portions of Dr. Snider’s consultative mental
examination by leaving out one sentence of Dr. Snider’s opinion to support his decision that
plaintiff is not disabled. Id.
A consultative examiner’s opinion is generally entitled to less weight than a treating
physician’s opinion, but an ALJ may give a consultative examiner’s opinion more weight as long
as he gives a legally sufficient reason for doing so. 20 C.F.R. § 404.1527(1), (2); Soc. Sec. R. 96–
6p. See also Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (holding that an ALJ
may give greater weight to a non-examining agency physician over a treating physician if he gives
“a legally sufficient explanation for doing so.”).
The ALJ noted that Dr. Snider found that plaintiff suffers from mild depression,
generalized anxiety, and panic disorder. (R. 22). The ALJ found that these assessments are
consistent with the record evidence because plaintiff “has only a mild restriction” in his daily
activities and “little to mild impairment in his memory and concentration.” (R. 19, 23). At step
two, the ALJ specifically discussed that Dr. Snider “predicted there would be moderate difficulty
in [plaintiff’s] concentrating and persisting through a normal workday,” and there “could also be
a moderate disruption in his work schedule due to psychiatric symptoms.” (R. 19). These findings
mirror Dr. Snider’s opinion. (R. 303-04). Plaintiff argues that the ALJ “cherry-pick[ed]” the
evidence by omitting the second sentence. (Dkt. 14 at 6). Since the ALJ included both sentences
that plaintiff now complains he omitted, this argument is erroneous. The ALJ carried this step two
finding of moderate limitation on concentration, persistence, or pace forward to plaintiff’s RFC
with the limitation to “simple, routine, and unskilled work.” (R. 20). The ALJ referenced his
previous discussion of the evidence in reaching the conclusion that the consultative examiners
were entitled to great weight.
The ALJ’s findings are supported by substantial evidence in the record. To remand the case
for the ALJ to include both sentences in his RFC discussion would produce an absurd result that
would waste administrative resources. See generally Alvey v. Colvin, 536 F. App’x 792, 794 (10th
Cir. 2013) (holding that the Court could engage in a harmless error analysis “sua sponte on appeal
when, as here, the record is not overly long or complex, harmlessness is not fairly debatable, and
reversal would result in futile and costly proceedings.”) (citing Wyoming v. Livingston, 443 F.3d
1211, 1226 (10th Cir. 2006)). The ALJ’s decision to give great weight to this opinion was legally
proper and supported by substantial evidence.
Plaintiff argues that the ALJ’s credibility finding is in error and that plaintiff’s credibility
is supported by the same medical evidence that the ALJ allegedly ignored or minimized,
specifically, that the ALJ ignored pain caused by plaintiff’s fractured coccyx. (Dkt. 14 at 9-10).
The Commissioner argues that the ALJ cited multiple reasons to support his credibility findings.
This Court will not disturb an ALJ’s credibility findings if they are supported by substantial
evidence because “[c]redibility determinations are peculiarly the province of the finder of fact.”
Cowan v. Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008) (citing Diaz v. Sec’y of Health & Human
Svcs., 898 F.2d 774, 777 (10th Cir. 1990)). Credibility findings “should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.” Id.
(citing Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988) (footnote omitted)). The ALJ may
consider a number of factors in assessing a claimant’s credibility, including “the levels of
medication and their effectiveness, the extensiveness of the attempts . . . to obtain relief, the
frequency of medical contacts, the nature of daily activities, subjective measures of credibility that
are peculiarly within the judgment of the ALJ . . . and the consistency or compatibility of
nonmedical testimony with objective medical evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th
Here, the ALJ relied on medical evidence demonstrating plaintiff’s “normal range of
motion in his lower extremities and that he had a normal gait.” (R. 23; dkt. 17 at 8). Further, the
ALJ noted a number of contrary statements made by plaintiff and his wife. Id. For instance,
plaintiff alleges that he can only sit for fifteen minutes, yet he reported to Dr. Krishnamurthi that
he could “sit for ‘two hours.’” (R. 23). The ALJ noted that plaintiff could walk without his brace
or cane, even though he claimed he could not work because he was “‘not stable enough’ to get up
and walk.” Id. See 20 C.F.R. § 416.929(c)(4) (evidence evaluated includes conflicts and
inconsistences in plaintiff’s statements); SSR 96-7p, 1996 WL 374186 at *5 (“One strong
indication of the credibility of an individual’s statements is their consistency, both internally and
with other information in the case record.”).
Further, instances highlighted by plaintiff as proof of plaintiff’s “horrible fractured coccyx
pain which limited his sitting as Dr. Kinney described” are actually notations of an old fracture in
his medical record, not a new or ongoing problem. (Dkt. 14 at 9-10; R. 331-40). In fact, record of
an office visit on July 17, 2013 (R. 337) shows that plaintiff presented for a follow up visit to refill
his pain medication, “denie[d] any new problems or complaints,” and that his “chronic pain [was]
controlled on present regimen.” Id.
Further, none of plaintiff’s other doctors placed similar limitations on him, and the ALJ
notes that plaintiff’s gait consistently remained normal. (R. 22-23). These facts directly conflict
with plaintiff’s alleged impairments. The ALJ, then, satisfied his duty to link his credibility
findings to specific evidence.
For the foregoing reasons, the ALJ’s decision finding plaintiff not disabled is hereby
SO ORDERED this 29th day of March, 2017.
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