Koloen v. Social Security Administration
Filing
17
OPINION AND ORDER by Magistrate Judge Frank H McCarthy (Affirming the Commissioner's decision) (tjc, Dpty Clk)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DANETTE D. K.,
PLAINTIFF,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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CASE NO. 17-CV-624-FHM
OPINION AND ORDER
Plaintiff, DANETTE D. K., seeks judicial review of a decision of the Commissioner
of the Social Security Administration denying Social Security disability benefits.1
In
accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before
a United States Magistrate Judge.
Standard of Review
The role of the court in reviewing the decision of the Commissioner under 42 U.S.C.
§ 405(g) is limited to a determination of whether the decision is supported by substantial
evidence and whether the decision contains a sufficient basis to determine that the
Commissioner has applied the correct legal standards.
See
Briggs
ex
rel.
Briggs
v.
Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th
1
Plaintiff Danette D. K.’s application was denied initially and upon reconsideration.
A hearing
before an Administrative Law Judge (ALJ) John W. Belcher
was held April 6, 2016.
By decision dated
May 18, 2016, the ALJ entered the findings which are the subject of this appeal.
The Appeals Council
denied Plaintiff’s request for review on September 11, 2017.
The decision of the Appeals Council
represents the Commissioner's final decision for purposes of further appeal.
20 C.F.R. §§ 404.981,
416.1481.
1
Cir. 1996); Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th
Cir. 1994). Substantial evidence is more than a scintilla, less than a preponderance, and
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.2d
842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The
court may neither reweigh the evidence nor substitute its judgment for that of the
Commissioner. Casias v. Secretary of Health & Human Servs., 993 F.2d 799, 800 (10th
Cir. 1991). Even if the court would have reached a different conclusion, if supported by
substantial evidence, the Commissioner’s decision stands. Hamilton v. Secretary of Health
& Human Servs., 961 F.2d 1495 (10th Cir. 1992).
Background
Plaintiff was 52 years old on the alleged date of onset of disability and 56 years old
on the date of the denial decision. She has a Bachelor’s Degree and her past relevant
work includes a tobacco product sales representative. [R. 38]. Plaintiff claims to have
been unable to work since April 8, 2013 due to degenerative disc disease of her back and
neck with radiculitis into her legs and arms. [R. 30, 221].
The ALJ’s Decision
The ALJ determined that Plaintiff has the following severe impairments:
degenerative disc disease of the lumbar and cervical spine, peripheral neuropathy, left
knee cyst and tendinosis, carpal tunnel syndrome, and status-post left shoulder
arthroscopy. [R. 32]. The ALJ determined that the Plaintiff has the residual functional
capacity to perform sedentary work, specifically, Plaintiff can lift and/or carry up to 10
2
pounds occasionally and 10 pounds frequently; can stand/walk for 2 hours in an 8-hour
workday but no more than 15 minutes at a time. Plaintiff can sit for 6 to 8 hours in an 8hour workday. She can occasionally perform postural movements such as climbing stairs
and ramps, balancing, bending, kneeling, stooping, crouching, and crawling. She can
never climb ladders, ropes, and scaffolds. She can occasionally overhead reach and
frequently finger and handle. Due to medications, she should avoid hazardous or fastpaced machinery, unprotected heights, and driving. [R. 33]. The ALJ determined that
Plaintiff is unable to perform her past relevant work, however, based on the testimony of
the vocational expert, there are a significant number of jobs in the national economy that
Plaintiff could perform. [R. 38-39]. Accordingly, the ALJ found Plaintiff was not disabled.
The case was thus decided at step five of the five-step evaluative sequence for
determining whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748, 750-52
(10th Cir. 1988) (discussing five steps in detail).
Plaintiff’s Allegations
Plaintiff asserts the ALJ erred as a matter of law in failing to properly consider the
opinion of the treating physician. [Dkt. 13, p. 6].
Analysis
Treating Physician’s Opinion
Plaintiff argues that the ALJ failed to properly consider the opinion of her treating
physician, neurosurgeon Allen Rodgers, M.D. [Dkt. 13, p. 7-11]. Plaintiff contends that the
ALJ’s statement that the opinion of Dr. Rodgers was not fully supported by the entire
3
evidence of record is incorrect and not based on substantial evidence. [Dkt. 13, p. 9, R.
36].
A treating physician's opinion is accorded controlling weight if it is well-supported by
medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent
with other substantial evidence in the record. However, if the opinion is deficient in either
of these respects, it is not given controlling weight. When an ALJ decides to disregard a
medical report by a claimant's physician, he must set forth specific, legitimate reasons for
his decision. An ALJ "may reject a treating physician's opinion outright only on the basis
of contradictory medical evidence and not due to his or her own credibility judgments,
speculation or lay opinion." Watkins v. Barnhart, 350 F.3d, 1297, 2003 WL 22855009
(10th Cir. 2003). If the ALJ decides that a treating source's opinion is not entitled to
controlling weight, he must determine the weight it should be given after considering: (1)
the length of the treatment 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 treating source's opinion is
supported by objective evidence; (4) whether the opinion is consistent with the record as
a whole; (5) whether or not the treating source is a specialist in the area upon which an
opinion is given; and (6) other factors brought to the ALJ's attention which tend to support
or contradict the opinion. See 20 C.F.R. § 404.1527(d)(2)-(6).
In May 2013 Richard D. Thomas, M.D. referred Plaintiff to Dr. Rodgers. [R. 356].
Dr. Rodgers had previously seen Plaintiff in 2005 and 2008 and diagnosed her with
multilevel cervical disc degeneration as well as lumbar disease from L2 through the
sacrum. Dr. Rodgers did not believe surgery would be beneficial. [R. 392]. During Dr.
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Rodgers’ September 2013 examination, Plaintiff reported she was much better; her pain
was 2-3/10 and seldom rose above 5/10.
Plaintiff no longer took oxycodone or
hydrocodone and took Ibuprofin if needed. The examination revealed that extension of her
back was more problematic for Plaintiff than forward flexion and she avoided all bending,
stooping, and lifting. [R. 392]. Plaintiff had full strength in her upper and lower extremities;
no paraspinal spasms; could heel/toe walk; and no atrophy or fasciculations in her lower
extremities. Plaintiff seemed very calm, not particularly depressed, and was elated with
her recent improvement. [R. 394]. Dr. Rodgers also reviewed Plaintiff’s cervical MRI dated
June 20, 2013 and lumber MRI dated April 9, 2013 and found multilevel cervical disc
degeneration with chronic cervicalgia; multilevel lumbar disc degeneration status post
discectomy L4-L5 in 1984 with chronic low back pain, mechanical discogenic without
neurological deficit or nerve tension signs. Dr. Rodgers was of the opinion Plaintiff should
retire from her current employment and remain temporarily disabled. [R. 394-396].
On November 14, 2013, Dr. Rodgers found Plaintiff’s arms and legs were strong
and straight leg raises caused very little pain. He recommended Plaintiff return to gainful
employment on November 25, 2013 without restrictions. [R. 388, 390]. On November 19,
2013 and December 15, 2013, Dr. Rodgers was of the opinion that Plaintiff could return
to work with limitations of lifting no more than 15 pounds; no overhead activities; and the
imposition of several postural limitations. [R. 384-386]. On March 12, 2014, Dr. Rodgers
opined Plaintiff could return to work once she received consent from Dr. Boone2 in a
modified position with no bending, lifting, stooping, or carrying over 10 to 15 pounds away
2
Bradford
Boone,
M.D.,
treated
Plaintiff
in
5
relation
to
her
shoulder
impairments.
[R.
398-414].
from the body. [R. 375]. On May 1, 2014 Dr. Rodgers noted that physical therapy had
been helpful and Plaintiff stated that she was getting stronger. Dr. Rodgers was unsure
whether Plaintiff could go back to work in any position that required bending, stooping, and
lifting. [R. 451]. Just days later on May 7, 2014, Dr. Rodgers was of the opinion that
Plaintiff had no ability to work. [R. 597]. On June 6, 2014, Dr. Rodgers opined that it would
not be best for Plaintiff to return to her same position and she remained temporarily totally
disabled. [R. 447, 449]. In July 2014, it was Dr. Rodgers’ opinion that Plaintiff was
restricted to lifting up to 10 pounds; no repetitive lifting over 10 pounds; and no repetitive
activities. In August 2014, Dr. Rodgers opined that Plaintiff had no ability to work; severe
limitation of functional capacity; and was incapable of minimal activity. [R. 599].
The ALJ addressed Dr. Rodgers’ opinions as follows:
Although a treating source, the varying opinions of Dr. Rodgers
are given little weight. The majority of Dr. Rodger’s (sic)
opinions reflects temporary restrictions and do not provide an
assessment of the claimant’s overall functional capacity. For
example, Dr. Rodgers’ assessment shifting from finding that
claimant could not work prior to her shoulder surgery to finding
that she could return to work with restrictions after her surgery,
with approval of Dr. Boone. One month after he assessed that
the claimant could return to work with restrictions in July 2014,
he opined that the claimant had no ability to work in August
2014. Dr. Rodgers did not specify, and the record does not
demonstrate a marked worsening in the claimant’s physical
condition to support such change in his opinion. Instead,
subsequent evidence indicates that the claimant has
demonstrated improvements. (Exhibits 7F/7; 21F/2-3; 27F).
Therefore, the opinion of Dr. Rodgers is not fully supported by
the entire evidence of record. Additionally, whether a claimant
is “disabled” is reserved for the Social Security Commissioner.
[R. 36].
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As a treating physician, Dr. Rodgers’ opinion was entitled to deference. However,
the ALJ accorded little weight to Dr. Rodgers’ opinion as it is internally inconsistent. As
noted by the ALJ, from September 2013 through August 2014 Dr. Rodgers offered several
opinions that conflicted with the extent of Plaintiff’'s functional restrictions and her ability
to work. [R. 36]. Dr. Rodgers’ opinions reflect temporary restrictions and do not provide
an assessment of Plaintiff’s overall functional capacity. Further, subsequent evidence
indicates Plaintiff made improvements. [R. 36, 380-81, 631-32, 721]. The court finds the
reduced weight given to Dr. Rodgers’ opinion by the ALJ is justified by these
inconsistencies and is supported by substantial evidence.
Plaintiff also argues that the ALJ did not properly considered all of the factors
provided in 20 C.F.R. § 404.1527 as required by Social Security Ruling (SSR) 96-2p and
Watkins v. Barnhart, 350 F.3d 1297 (10th Cir. 2003). [Dkt. 13, p. 11]. Plaintiff contends
that the ALJ did not discuss the length of Plaintiff’s treatment and frequency of
examinations with Dr. Rodgers, the nature and extent of the treatment relationship, nor the
kinds of examinations performed by Dr. Rodgers. Further, the ALJ did not discuss the
degree to which Dr. Rodgers’ opinion was supported by relevant evidence. [Dkt. 13, p. 10].
The court does not agree.
The ALJ listed the factors and the denial decision reflects that he adequately
considered them. [R. 34, 36]. The ALJ acknowledged Dr. Rodgers as Plaintiff’s treating
physician and noted his specialization as a neurosurgeon.
The ALJ discussed Dr.
Rodgers’ treatment records from September 2013 through August 2014 which
demonstrated Plaintiff’s improvement. The ALJ also outlined Dr. Rodgers’ inconsistent
opinions, which he found not fully supported by the evidence. [R. 36]. As Plaintiff
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acknowledged it is not necessary for the ALJ to address each factor expressly or at length.
[Dkt. 13, p. 10]. First, " 'not every factor for weighing opinion evidence will apply in every
case.' " Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir.2007) (quoting SSR 06-03p,
2006 WL 2329939, at *5, with regard to identical factors under 20 C.F.R. § 404.1527(d)).
Second, we do not require an explicit discussion of the factors in a decision. Id. All that is
required is that "good reasons" are given in a decision, id., and that "the discussion of the
evidence in the determination or decision allows a claimant or subsequent reviewer to
follow the adjudicator's reasoning, when such opinions may have an effect on the outcome
of the case[,]" SSR 06-03p, 2006 WL 2329939, at *6. The court finds the ALJ properly
considered the factors provided in 20 C.F.R. § 404.1527.
Conclusion
The court finds that the ALJ evaluated the record in accordance with the legal
standards established by the Commissioner and the courts. The court further finds there
is substantial evidence in the record to support the ALJ’s decision. Accordingly, the
decision of the Commissioner finding Plaintiff not disabled is AFFIRMED.
SO ORDERED this 15th day of November 2018.
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