Novak v. Commissioner of the Social Security Administration

Filing 28

MEMORANDUM OPINION AND ORDER -- The Court has reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties. Based on the forgoing analysis, the Court AFFIRMS the Commissioner's decision. Signed by Magistrate Judge Shon T. Erwin on 4/27/2021. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CURTIS B. NOVAK,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of the Social Security
Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-20-203-STE

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of the Social Security Administration denying Plaintiff’s
application for disability insurance benefits under the Social Security Act. The
Commissioner has answered and filed a transcript of the administrative record
(hereinafter TR. ____). The parties have consented to jurisdiction over this matter by a
United States magistrate judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court AFFIRMS the
Commissioner’s decision.
I.

PROCEDURAL BACKGROUND
On March 29, 2017, Mr. Novak protectively filed for disability insurance benefits

alleging a disability beginning January 1, 2016. (TR. 15). Initially and on reconsideration,
the Social Security Administration (SSA) denied Plaintiff’s application for benefits.
Following an administrative hearing, an Administrative Law Judge (ALJ) issued an

unfavorable decision on May 6, 2019. (TR. 12-23). The Appeals Council denied Plaintiff’s
request for review (TR. 1-3), making the ALJ’s decision the final decision of the
Commissioner. (TR. 1-6).
II.

THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency

regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R.
§ 404.1520. At step one, the ALJ determined that Mr. Novak had not engaged in
substantial gainful activity as defined in the regulations since his alleged onset date. (TR.
14). At step two, the ALJ determined Mr. Novak had severe impairments consisting of
ischemic heart disease, acute myocardial infarction, hypertension, obesity and
generalized anxiety disorder. (TR. 15).
At step three, the ALJ considered whether Mr. Novak’s impairments were severe
enough to meet the requirements of any of the presumptively disabling impairments listed
at 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listings). (TR. 15-16). The ALJ considered
the Listings 4.04, Ischemic heart disease, and 12.06, Anxiety and obsessive-compulsive
disorders, and determined the medical evidence of record did not demonstrate that
Plaintiff’s severe impairments met or equaled either listing. (TR. 15-16).
At step four, the ALJ concluded that Mr. Novak retained the residual functional
capacity (RFC) to lift and carry up to 20 pounds occasionally and ten pounds frequently
and to stand, walk and sit six hours in an eight-hour workday. The ALJ determined Mr.
Novak could never climb ladders, ropes or scaffolds, but could frequently climb ramps

2

and stairs. Finally, the ALJ limited Mr. Novak to simple, routine repetitive tasks and
occasional interaction with coworkers, supervisors and the public (TR. 16-17).
With this RFC, the ALJ concluded that Plaintiff could not perform his past relevant
work. (TR. 22). But based on the testimony of the vocational expert (VE), the ALJ
determined there were other jobs existing in sufficient numbers in the national economy
that Mr. Novak could perform. (TR. 22). Given the limitations identified by the ALJ in a
series of hypothetical questions, the VE identified three light, unskilled jobs from the
Dictionary of Occupational Titles that a hypothetical person with Plaintiff’s impairments
could perform: night cleaner, laundry worker and router clerk. (TR. 23). At step five, the
ALJ found the VE’s testimony to be consistent with the information in the Dictionary of
Occupational Titles and adopted the VE’s testimony, concluding Plaintiff was not disabled
based on his ability to perform the identified jobs. (TR. 25).
III.

ISSUE PRESENTED
Mr. Novak contends the ALJ erred in failing to properly evaluate the Medical

Evidence of Record. Specifically, Mr. Novak contends the ALJ should have given deference
to the records of Plaintiff’s treating sources in accordance with Tenth Circuit case law
decided prior to March 27, 2017. Defendant Commissioner contends that, because
Congress expressly gave the Commissioner the authority to promulgate and implement a
regulatory scheme governing the consideration of evidence in a disability case, the 2017
regulatory revisions abrogated prior case law to the contrary.

3

IV.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final decision “to determin[e] whether the

Commissioner applied the correct legal standards and whether the agency’s factual
findings are supported by substantial evidence.” Noreja v. Commissioner, SSA, 952 F.3d.
1172, 1177 (10th Cir. 2020) (citation omitted). Under the “substantial evidence” standard,
a court looks to an existing administrative record and asks whether it contains “sufficien[t]
evidence” to support the agency’s factual determinations. Biestek v. Berryhill, 139 S. Ct.
1148, 1154 (2019). “Substantial evidence … is more than a mere scintilla … and means
only—such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Biestek v. Berryhill, 139 S. Ct. at 1154 (internal citations and quotation
marks omitted).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court will “neither reweigh
the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805
F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
V.

ANALYSIS
A.

Applicability of Treating Source Rule

Mr. Novak challenges the weight the ALJ afforded records and opinions of his
treating physician. According to Mr. Novak, the change in the regulation regarding
evaluation of medical opinions did not alter previously-decided Tenth Circuit case law
requiring special deference be given to opinions of a claimant’s treating physician. Mr.
Novak contends these cases have not been specifically overruled and are still good law.

4

Before March 27, 2017, the regulations did provide for special handling of the
opinions of acceptable treating source opinions:
Treatment relationship. Generally, we give more weight to medical opinions
from your treating sources, 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. If we find that a treating source’s
medical opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling weight.
When we do not give the treating source's medical opinion controlling
weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of
this section, as well as the factors in paragraphs (c)(3) through (c)(6) of
this section in determining the weight to give the medical opinion. We will
always give good reasons in our notice of determination or decision for the
weight we give your treating source’s medical opinion.
20 C.F.R. § 404.1527.
On March 27, 2017, just before Mr. Novak applied for benefits, the current
regulation became effective:
We will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administrative medical
finding(s), including those from your medical sources. When a medical
source provides one or more medical opinions or prior administrative
medical findings, we will consider those medical opinions or prior
administrative medical findings from that medical source together using the
factors listed in paragraphs (c)(1) through (c)(5) of this section, as
appropriate. The most important factors we consider when we evaluate the
persuasiveness of medical opinions and prior administrative medical
findings are supportability (paragraph (c)(1) of this section) and consistency
(paragraph (c)(2) of this section). We will articulate how we considered the
medical opinions and prior administrative medical findings in your claim
according to paragraph (b) of this section.
20 C.F.R. § 404.1520c. (effective March 27, 2017).

5

Mr. Novak’s contention that the ALJ should have applied prior Tenth Circuit case
law affording deference to treating physician opinions is without merit. The revised
regulation abrogates prior case law to the contrary. By implementing 42 U.S.C. § 405(a),
Congress assigned to the Commissioner the “full power and authority” to carry out the
provisions of the SSA and to “adopt reasonable and proper rules and regulations to
regulate and provide for the nature and extent of proofs and evidence” required to prove
disability.
Further, the Supreme Court has limited review of regulations promulgated by the
Commissioner; federal courts can review such regulations only to determine whether they
are arbitrary, capricious or in excess of the Commissioner’s authority. See Bowen v.

Yukert, 482 U.S. 137, 145 (1987); see also Chevron, U.S.A., Inc. v. Nat. Res. Def Council,
Inc., 467 U.S. 837, 842-844 (1984) (legislative regulations are given controlling weight
unless they are arbitrary, capricious, or manifestly contrary to the statute). The post
March 27, 2017 regulations are a reasonable result of the Commissioner’s rule-making
authority. Accordingly, the ALJ did not misapply the regulations in this case. Moreover,
the Court finds the ALJ’s decision to be supported by substantial evidence in the record
as a whole.
B.

Support for ALJ’s Decision

Mr. Novak points to the opinions of Dr. Todd Krehbiel, his primary physician, as
opinions to which the ALJ should have afforded more weight. On March 27, 2017, Dr.
Krehbiel stated Mr. Novak was “unable to work.” (TR. 404). The ALJ rejected this opinion

6

on the ultimate issue of disability because such decisions must be determined by the ALJ.
Moreover, the ALJ noted the opinion did not include functional limitations. (TR. 20).
Dr. Krehbiel completed a check-box form entitled “Medical Source Statement of
Ability to do Work-Related Activities (Physical)” on November 2, 2018. (TR. 496-503). Dr
Krehbiel checked boxes indicating Plaintiff could not lift any weight, could sit without
interruption for eight hours, could stand for one hour and could walk for one hour. (TR.
497-498).
Dr. Krehbiel also completed a check-box form entitled “ Medical Source Statement
of Ability to do Work-Related Activities (Mental).” (TR. 503-505). On this form, Dr.
Krehbiel checked boxes indicating several “extreme” limitations in areas such as ability to
understand, remember and carry out complex instructions and make judgments on work
decisions. However, Dr. Krehbiel did not include a written explanation for these findings,
and the ALJ determined the findings were unsupported by his own treatment notes and
other evidence in the record. (TR. 21). Having reviewed the record, the Court agrees with
the ALJ concerning the weight given to Dr. Krehbiel’s opinions.
Stephanie C. Crall, Ph.D., a consultative psychological examiner, reported that Mr.
Novak had average mental abilities and adequate functioning for simple and some
complex tasks. (TR. 422-423). But in view of Mr. Novak’s self-reported limitations and his
need for psychotropic medications, the ALJ’s mental RFC was more restrictive than that
suggested by Dr. Crall’s report. The ALJ limited Plaintiff to simple, routine repetitive work
with limited social interactions. (TR. 17, 20).

7

The ALJ’s findings regarding Mr. Novak’s physical and mental limitations are
supported by substantial evidence in the record as a whole and are not overwhelmed by
other evidence. Moreover, the ALJ applied the correct legal standards. Thus, the final
decision of the Commissioner is affirmed.
ORDER
The Court has reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties.
Based on the forgoing analysis, the Court AFFIRMS the Commissioner’s decision.
ENTERED on April 27, 2021.

8