Wilkins-Beaver v. Commissioner of Social Security

Filing 23

MEMORANDUM OPINION AND ORDER. The Court AFFIRMS the Commissioner's decision. Signed by Magistrate Judge Suzanne Mitchell on 3/6/17. (lb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHARLOTTE L. WILKINS-BEAVER,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case No. CIV-16-556-SM

MEMORANDUM OPINION AND ORDER
Charlotte L. Wilkins-Beaver (Plaintiff) brings this action for judicial
review of

the Defendant

Acting

Commissioner

of

Social Security’s

(Commissioner) final decision that she was not “disabled” under the terms of
the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). The parties have
consented under 28 U.S.C. § 636(c) to proceed before a United States
Magistrate Judge. Doc. 10.
After a careful review of the record, the parties’ briefs, and the relevant
authority, the court affirms the Commissioner’s decision. See 42 U.S.C. §
405(g).
I.

Administrative determination.
A.

Disability standard.

The Social Security Act defines “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable

physical or mental impairment that can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration requirement
applies to the claimant’s inability to engage in any substantial gainful activity,
and not just h[er] underlying impairment.” Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B.

Burden of proof.

Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that [s]he can no longer engage in h[er] prior work
activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff
makes that prima facie showing, the burden of proof then shifts to the
Commissioner to show Plaintiff retains the capacity to perform a different type
of work and that such a specific type of job exists in the national economy. Id.
C.

Relevant findings.
1.

Administrative Law Judge (ALJ) findings.

The ALJ assigned to Plaintiff’s case applied the standard regulatory
analysis and concluded Plaintiff had not met her burden of proof. AR 11-31;
see 20 C.F.R. § 404.1520(a)(2); see also Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009) (describing the five-step process). Specifically, and relevant to
this action, the ALJ found Plaintiff:
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(1)

was severely impaired by migraine headaches, bipolar
disorder, obsessive compulsive disorder, and personality
disorder;

(2)

did not have an impairment or combination of impairments
that met or medically equaled the severity of a listed
impairment;

(3)

had the residual functional capacity1 (RFC) to perform
sedentary work with some limitations: she occasionally can
lift and/or carry and push and/or pull ten pounds and
frequently can lift and/or carry and push and/or pull less
than ten pounds; she can stand and/or walk for a total of two
hours in an eight-hour workday and can sit for a total of six
hours in an eight-hour workday; she cannot climb ladders,
ropes, or scaffolds, and cannot balance; she must avoid
exposure to unprotected heights and hazardous, unprotected
machinery; she can perform simple tasks with routine
supervision but cannot perform customer service work or
have any public contact; she can interact appropriately with
supervisors and co-workers on a superficial work basis and
can adapt to work situations;

(4)

was unable to perform any past relevant work;

(5)

was able to perform jobs existing in the national economy;
and so,

(6)

had not been under a disability, as defined in the Social
Security Act, from March 31, 2012—her alleged onset of
disability date—through September 18, 2014, the date of the
ALJ’s decision.

AR 19-31.

Residual functional capacity “is the most [a claimant] can still do despite
[a claimant’s] limitations.” 20 C.F.R. § 404.1545(a)(1).
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1

2.

Appeals Council action.

The Social Security Administration’s (SSA) Appeals Council found no
reason to review that decision, so the ALJ’s decision is the Commissioner’s final
decision. Id. at 1-5; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II.

Judicial review of the Commissioner’s final decision.
A.

Review standard.

The court reviews the Commissioner’s final “decision to determine
whether the factual findings are supported by substantial evidence and
whether the correct legal standards were applied.” Mays v. Colvin, 739 F.3d
569, 571 (10th Cir. 2014) (internal quotation marks omitted). Substantial
evidence is “more than a scintilla, but less than a preponderance.” Lax, 489
F.3d at 1084.

A decision is not based on substantial evidence “if it is

overwhelmed by other evidence in the record.” Wall, 561 F.3d at 1052 (internal
quotation marks omitted). The court will “neither reweigh the evidence nor
substitute [its] judgment for that of the agency.” Newbold v. Colvin, 718 F.3d
1257, 1262 (10th Cir. 2013) (internal quotation marks omitted).
B.

Issues for judicial review.

Plaintiff contends the ALJ (1) did not perform a proper evaluation of the
medical source evidence; (2) improperly weighed the third-party opinion
evidence; (3) erred in finding she did not meet or equal the requirements for
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Listing § 12.04 Affective Disorder; and (4) performed a faulty credibility
determination. Doc. 15, at 2.
C.

Analysis.
1.

The ALJ’s evaluation of the medical source evidence.

Through its governing regulations, the SSA tells claimants that,
“[g]enerally, we give more weight to opinions from your treating sources . . . .”
20 C.F.R. § 404.1527(c)(2). It explains this is so
since these sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations such as
consultative examinations or brief hospitalizations.
Id. Binding court precedent underscores the significance of treating source
opinion evidence, holding that when an ALJ “evaluat[es] the medical opinions
of a claimant’s treating physician, the ALJ must complete a sequential twostep inquiry, each step of which is analytically distinct.” Krauser, 638 F.3d at
1330.
At the first step, the ALJ must determine if the opinion “is wellsupported by medically acceptable clinical or laboratory diagnostic techniques
and is not inconsistent with other substantial evidence in the record.” Id. “If
the opinion is deficient in either of these respects, it is not to be given
controlling weight.”

Id.

If the ALJ finds the opinion is not entitled to
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controlling weight, he must then proceed to the second step of the inquiry to
“make clear how much weight the opinion is being given (including whether it
is being rejected outright) and give good reasons, tied to the factors specified
in the cited regulations for this particular purpose, for the weight assigned.”
Id. These factors are:
(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
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.
Id. at 1331 (quotation omitted). So long as the ALJ provides a well-reasoned
discussion, his failure to “explicitly discuss” all the factors “does not prevent
[the] court from according his decision meaningful review.” Oldham v. Astrue,
509 F.3d 1254, 1258 (10th Cir. 2007).
The ALJ considered treating physicians Dr. Adonis S. Al-Botros’s and
Dr. Shawn Kharavi’s opinions, and determined they were not “consistent with
the other substantial evidence in the record.” Krauser, 638 F.3d 1330, AR 2527. The ALJ stated she had “considered the opinion evidence in accordance
with the regulations and applicable Social Security Rulings that discuss the
weight to give a treating doctor’s opinion.” Marshall v. Astrue, 315 F. App’x
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757-60 (10th Cir. 2009) (“not requir[ing] the ALJ to discuss both components
[under SSR 96-2p]2 if one was not met”).
On Krauser’s second step, the ALJ clarified the weight (“some limited
weight”) she gave these opinions, and she considered the Krauser factors. AR
26, 27, 28. All that the ALJ was required to do was to properly consider and
explain her treatment of the treating physicians’ opinions. Krauser, 638 F.3d
at 1330. The court concludes that the ALJ fulfilled her duty.
The ALJ gave “some limited weight” to Dr. Al-Botros’s December 18,
2012 opinion. AR 27. She noted the mental impairment questionnaire Dr. AlBotros completed found Axis I Bipolar I disorder, Axis II deferred, and Axis III
migraine headaches. Id. at 807, 27. The ALJ observed Dr. Al-Botros identified
Plaintiff’s symptoms as mood disturbance and difficulty thinking or
concentrating. Id. at 808, 27.

And that he listed “med management” as

“Treatment and response.” Id. She noted he checked off “Fair” or “Poor or
none” for all of her “mental abilities and aptitude needed to do unskilled work”
and semi-skilled work. Id. at 810-11, 27-28. The ALJ indicated Dr. Al-Botros
listed as “good” four abilities and aptitude to do particular types of jobs, and
one as “fair.” Id. And finally, the ALJ noted that Dr. Al-Botros indicated

2

SSR 96-2p, 1996 WL 374188 (July 2, 1996).
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Plaintiff often has episodes of deterioration and often has deficiencies in
concentration, persistence or pace. Id. at 812, 28.
Plaintiff argues the ALJ “ignores [her] impoverished functioning
fluctuate[d]” and only selected and relied upon “so-called ‘normal’ assessments
. . . .” Doc. 15, at 4. But as the ALJ noted, Dr. Al-Botros’s treatment notes
appear inconsistent with the mental questionnaire’s severe limitations. Id. at
28 (citing id. at 816 (“mild anxiety,” “fully oriented,” “organized” thought
process, “relevant” thought content, euthymic mood)), 817, 818 (reports feeling
“a little better,” “doing better,” one instance of “cooperative” attitude and one
instance of “resistant” attitude, euthymic mood, “appropriate” affect, “intact”
and “oriented x3” thought, “intact” memory, “good” judgment, “normal”
energy); see also id. at 666 (“doing well, no problems” but “anxious” mood); 667
(“doing well on her Meds. No problems” and “anxious” mood); 670 (“doing quite
well” with “euthymic” mood); 672 (started Adderall for “poor concentration,”
“euthymic” mood, intact thought and cooperative attitude); see also id. 822
(post-opinion) (noting adequate memory, no psychotic thoughts, normal
associations, and that “headaches resolved” after treatment but increased
symptoms of depression); 823 (post-opinion) (symptoms “stable,” “moderate
risk”).

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Plaintiff’s argument the ALJ should have “followed up with Dr. Al-Botros
to resolve any conflict or ambiguity” is misplaced. Doc. 15, at 4 (citing Robinson
v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004)). Unlike in Robinson, here
the ALJ did not reject Dr. AL-Botros’s opinion, either implicitly or explicitly,
nor did she characterize the opinion as “vague.” See 366 F.3d at 1082-83. Nor
did the ALJ neglect to indicate what weight she gave the opinion, or to
articulate the reasons she did so. Id. at 1083-84. As the Commissioner points
out, the ALJ had sufficient evidence to determine whether Plaintiff was
disabled. Doc. 20, at 13; Marshall, 315 F. App’x at 761 (affirming the denial of
benefits where the treating physician’s “decision lacked consistency with the
records as a whole,” which amounts to a “sufficient reason”).
The ALJ also gave “some limited weight” to treating physician Dr.
Khavari’s October 2011 mental status form. AR 28, 411. The ALJ noted the
opinion indicated Plaintiff has significant functional impairment during the
day secondary to depression, has significant impairments for simple and
complex tasks, but that she can handle funds. Id. at 28. Dr. Khavari stated
she “[h]as been able to work,” “has made slight improvement,” has a “guarded”
prognosis, and is “easily overwhelmed and has difficulty interacting with
others.” Id. at 411; 28. The ALJ noted this opinion also contrasted with
Plaintiff’s treatment records. Id. at 28. Those records indicate Plaintiff’s
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“condition improved with treatment.” Id. at 24-35. The ALJ determined when
Plaintiff ceased taking her medications, her symptoms increased, but she
reported feeling better after their resumption. Id. at 25. Again, substantial
evidence supports the ALJ’s conclusions.
Plaintiff objects to the ALJ’s accordance of “great weight” to the stateagency psychologists’ opinions.

Although the ALJ gave the state-agency

psychologist consultant’s mental RFC assessment great weight, the ALJ
imposed additional limitations beyond those recommended. Id. at 27. The ALJ
concluded Plaintiff cannot interact with the public and should be limited to
simple tasks. Id. The ALJ based her decision not to give controlling weight to
Plaintiff’s treating physicians on the conflicting treatment notes and opinions.
SSR 96-2p. The ALJ gave specific and legitimate reasons for the weight he
gave to the state-agency opinions. 20 C.F.R. § 404.1527. Substantial evidence
supports the ALJ’s conclusions.
Finally, Plaintiff argues the ALJ should have considered Dr. Roy. M.
Isenberg’s February 19, 2010 report regarding Plaintiff’s psychological testing.
Doc. 15, at 5. And she contends the ALJ erred in failing to assign any weight
to Dr. Robert R. Waller, while she recited “a good deal of his reported
observations.” Id. at 6.

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As the Commissioner notes, Dr. Isenberg’s report predates Plaintiff’s
alleged onset of disability date by more than a year, which is “outside the
relevant disability period.” Taylor v. Berryhill, ___ F. App’x ___, No. 16-5046,
2017 WL 586440, at *3 (10th Cir. Feb. 14, 2017); Doc. 20, at 17; see Lackey v.
Barnhart, 127 F. App’x 455, 458 (10th Cir. 2005) (“[N]o authority is cited for
the proposition that medical reports prior to the operative onset date are
categorically irrelevant, and, indeed, our precedent is to the contrary.”);
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (“[E]ven if a doctor’s
medical observations regarding a claimant’s allegations of disability date from
earlier, previously adjudicated periods, the doctor’s observations are
nevertheless relevant to the claimant’s medical history and should be
considered by the ALJ.”).
“[W]hile the record must show the ALJ considered all the evidence, he is
not required to discuss every piece.” Bradley v. Colvin, 643 F. App’x 674, 676
(10th Cir. 2016) (citing Mays, 739 F.3d at 576). The ALJ must present a
“statement of the case, in understandable language, setting forth a discussion
of the evidence, and stating the Commissioner’s determination and the reason
or reasons upon which it is based.” Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). Here the ALJ did just that. The ALJ “carefully read and considered
all of the evidence, regardless of whether specific references to exhibits appear
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in this Decision.” AR 22; see id. at 21 (“After consideration of the entire
record”); see also id. 26 (noting “careful review of the record” and “careful
consideration of the evidence”); see also Taylor, 2017 WL 586440, at *3. When
an ALJ states she has considered all the evidence, a reviewing court generally
accepts that statement as true. See Flaherty v. Astrue, 515 F.3d 1067, 1071
(10th Cir. 2007).

Further, the Tenth Circuit has explained, “[t]here is

obviously no requirement that the ALJ reference everything in the
administrative record.” Wilson v. Astrue, 602 F.3d 1136, 1148 (10th Cir. 2010).
And as Plaintiff notes, the ALJ considered and relied upon Dr. Waller’s report
to discredit her credibility. Doc. 15 at 6 n.3 (citing AR 24-25). Plaintiff suggests
nothing in Dr. Waller’s observations are inconsistent with the RFC, which she
also does not challenge.
2.

The ALJ’s weighing of the third-party opinion
evidence.

SSR 06-03p provides the relevant guidelines for the ALJ to follow in
evaluating “other source” opinions from non-medical sources like Plaintiff’s
husband. See SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006). An ALJ evaluates
other source opinion evidence by considering: (i) the nature and extent of the
relationship; (ii) whether the evidence is consistent with other evidence; and
(iii) any other factors that tend to support or refute the evidence. Id. at *6.
The ALJ considered and addressed the Third Party Function Report completed
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by Plaintiff’s spouse but gave that report “only some limited weight.” AR at
28, 20, 21. The ALJ discounted the report because Plaintiff’s spouse “is not
medically trained to make exacting observations . . . .” and “by virtue of the
relationship as the spouse of the claimant, she cannot be considered a
disinterested third party . . . .” Id. at 29. The ALJ noted Mr. Weaver also gave
some contradictory information to that given by Plaintiff and gave some
information that contradicted Plaintiff’s own report. Id. at 20. The ALJ also
found, “[m]ost importantly, [that] significant weight cannot be given to the
report because it is simply not consistent with the preponderance of the
opinions and observations by medical doctors in this case.” Id. at 29.
Plaintiff contends this boilerplate rejection amounted to an improper
evaluation of the third-party function report. The ALJ considered the entire
record. AR 21, 22; Wall, 561 F.3d at 1070 (“Where, as here, the ALJ indicates
he has considered all the evidence our practice is to take the ALJ at his word.”)
(alteration and internal quotation marks omitted). The ALJ correctly noted
some contradictory statements as one of several factors in discounting them.
“The fact that the ALJ is required to consider such third-party statements does
not mandate that the ALJ adopt them in full.” Shelton v. Colvin, 2015 WL
5569024, at *17 (W.D. Okla. Aug. 24, 2015) (unpublished op.); see also Blea v.
Barnhart, 466 F.3d 903, 914 (10th Cir. 2006) (“In actuality, the ALJ is not
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required to make specific written findings of credibility only if the written
decision reflects that the ALJ considered the testimony.”) (citation omitted).
And, the undersigned’s recommended disposition of the ALJ’s credibility
determination regarding Plaintiff further bolsters the ALJ’s evaluation and
weight given to Mr. Beaver’s function report. See Best-Willie v. Colvin, 514 F.
App’x 728, 736 (10th Cir. 2013) (“[A]lthough the ALJ’s decision does not
expressly address this lay witness evidence, any error in failing to do so is
harmless because the same evidence that the ALJ referred to in discrediting
[the claimant’s] claims also discredits [the lay witness’s] claims.”) (citation
omitted).

Substantial evidence supports the ALJ’s assessment of the lay

witness opinion.
3.

The ALJ’s alleged step-three error.

The Commissioner has provided a “Listing of Impairments” which
describes certain impairments she considers disabling.

20 C.F.R. §

404.1525(a); see also Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If a
claimant’s condition meets or equals the severity of a listed impairment, that
impairment is conclusively presumed disabling. Williams v. Bowen, 844 F.2d
748, 751 (10th Cir. 1988); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (if
claimant’s impairment “meets or equals one of the listed impairments, the
claimant is conclusively presumed to be disabled”).
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Plaintiff argues her mental health diagnoses, her testimony, disability
reports, third-party reports and medical records “could have shown she meets
or equals Listing § 12.04.” Doc. 15, at 8. A severe impairment “meets” a listing
if it “satisfies all of the criteria of that listing, including any relevant criteria
in the introduction, and meets the [twelve-month] duration requirement.” 20
C.F.R. § 404.1525(c)(3).
Listing

12.04

covers

affective

disorders,

including

depression,

“[c]haracterized by a disturbance of mood, accompanied by a full or partial
manic or depressive syndrome.” 20 C.F.R. pt. 404, subpart P, app. 1 § 12.04.
“The required level of severity for these disorders is met when the
requirements in both [Paragraphs] A and B are satisfied, or when the
requirements in [Paragraph] C are satisfied.”

Id.

Paragraph B requires

evidence that the depressive syndrome “result[s] in at least two of the
following:” marked restrictions performing activities of daily living; marked
difficulties maintaining social functioning; marked difficulties maintaining
concentration, persistence, or pace; or repeated episodes of decompensation,
each of extended duration. See id. § 12.04(B)(1)-(4).
Plaintiff bears “the burden at step three of demonstrating, through
medical evidence, that h[er] impairments ‘meet all of the specified medical
criteria’ contained in a particular listing.” Riddle v. Halter, No. 00-7043, 2001
15

WL 282344 at *1 (10th Cir. Mar. 22, 2001) (unpublished op.) (quoting Sullivan
v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in Zebley) (brackets added)). “An
impairment that manifests only some of [the listing] criteria, no matter how
severely, does not qualify” to meet or equal the listing. Sullivan, 493 U.S. at
530. The “claimant must provide specific medical findings” to establish that a
severe impairment meets all of the criteria in a particular listing. Lax, 489
F.3d at 1085 (citing 20 C.F.R. § 404.1525).
After considering the medical evidence, the third-party function report,
Plaintiff’s statement, and her testimony in evaluating Plaintiff’s mental
impairments under the “paragraph B” criteria, the ALJ found no marked
limitations in the “paragraph B” criteria. AR 20-21; see also id. at 812. The
court agrees that substantial evidence supports the ALJ’s finding that
Plaintiff’s mental impairments do not satisfy the paragraph B criteria for
Listing 12.04.
The ALJ determined “the evidence fails to establish the presence of the
‘paragraph C’ criteria.” Id. at 21. Plaintiff does not argue otherwise. See
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 10th Cir. 2012) (“We will consider
and discuss only those of her contentions that have been adequately briefed for
our review.”).

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4.

The credibility determination.

Lastly, Plaintiff challenges the ALJ’s “faulty” credibility determination.
Doc 15, at 9.

The ALJ found Plaintiff’s statements about the “intensity,

persistence and limiting effects” of her alleged symptoms to be “not entirely
credible . . . .” AR 26. “Credibility determinations are peculiarly the province
of the finder of fact, and [the court] will not upset such determinations when
supported by substantial evidence.” Hackett v. Barnhart, 395 F.3d 1168, 1173
(10th Cir. 2005) (internal quotation marks omitted). However, an ALJ should
closely and affirmatively link her credibility findings “to substantial evidence
and not just a conclusion in the guise of findings.” Id. An ALJ’s credibility
findings reflect her consideration of Plaintiff’s allegations of disabling
symptoms in order to “decide whether he believe[d them].”

Thompson v.

Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993) (citation omitted). In making
this determination, an ALJ should consider factors such as:
the levels of medication and their effectiveness, the extensiveness
of the attempts (medical or nonmedical) 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, the motivation of and relationship between
the claimant and other witnesses, and the consistency or
compatibility of nonmedical testimony with objective medical
evidence.
Wilson, 602 F.3d at 1145 (citation and quotation marks omitted). But, as long
as the ALJ provides the specific evidence he has relied on in assessing a
17

claimant’s credibility, “a formalistic factor-by-factor recitation of the evidence”
is not required in the Tenth Circuit. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th
Cir. 2000).
As the Commissioner points out, the ALJ considered Plaintiff’s
medication levels and their effectiveness. Doc. 20, at 17-18; AR 23 (Plaintiff
“quickly reported significant improvement” in treatment for migraine
headaches; “minimal headaches”; headaches are “not as intense”; noting
headaches “starting to evolve again” after missing a treatment). AR 23-24, 25,
854, 863. Plaintiff often did “well on her meds,” and reported “no problems,”
but when not on medication, she felt anxious and had insomnia. Id. at 25, 26.
The ALJ also considered Plaintiff’s substantial activities of daily living. Id. at
20, 22-23, 26, 28, 203-08. The ALJ concluded that Plaintiff’s “acknowledged
daily activities and the improvement in her symptoms with medication suggest
less limitation than” she alleged. Id. at 26. The ALJ considered Mr. Beaver’s
report, and gave it some limited weight, noting some contradictions within it.
Id. at 28-29, 20-21. The ALJ closely and affirmatively linked her findings to
substantial record evidence, and substantial evidence supports her credibility
determination.

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III.

Conclusion.
The court AFFIRMS the Commissioner’s decision.
ENTERED this 6th day of March, 2017.

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