Deleon v. Berryhill

• Decision Date: 02 October 2018
• Docket Number: CIVIL ACTION No. 17-1190-JWL
• Parties: MARISELA DELEON, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Kansas

MARISELA DELEON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

CIVIL ACTION No. 17-1190-JWL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

October 2, 2018

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance Benefits (DIB) pursuant to sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision.

I. Background

Plaintiff argues that the Administrative Law Judge (ALJ) erred in evaluating the medical opinion evidence of Dr. Snodgrass, both by failing to apply the correct legal standard and by failing to accord appropriate weight; and "erred by adopting Dr. Tawadros'[s] assessment over Dr. Snodgrass'[s] opinion." (Pl. Brief 11). She argues

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that the ALJ also erred at step four of the sequential evaluation process in that she failed to apply properly the three-phase analysis of Plaintiff's past relevant work as required by Soc. Sec. Ruling (SSR) 82-62 and explained in Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996). She seeks a finding of disability, or remand for further administrative proceedings.

The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review "[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence in the record and whether she applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).

The court may "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (The court "may not reweigh the evidence in the record,

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nor try the issues de novo, nor substitute [the Court's] judgment for the [Commissioner's], even if the evidence preponderates against the [Commissioner's] decision.") (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). "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." Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether she has a severe impairment(s), and whether the severity of her impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses the claimant's residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.

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The Commissioner next evaluates steps four and five of the sequential process--determining at step four whether, considering the RFC assessed, claimant can perform her past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999). Here, the ALJ decided the case at step four, and the burden did not shift to the Commissioner.

The court considers the issues in the order presented in Plaintiff's Brief and finds no error in the ALJ's decision.

II. Medical Opinion Evidence

Plaintiff argues that Dr. Snodgrass and his nurse-practitioner, Ms. Snodgrass, treated Plaintiff, and that based on that treatment "Dr. Snodgrass provided a physical Medical Source Statement ('MSS') dated June 25, 2014." (Pl. Br. 5). She summarized Dr. Snodgrass's opinion and noted that "this MSS supports [Ms.] Deleon's argument that she cannot engage in substantial gainful activity ('SGA')." Id. at 6. She argues that Dr. Snodgrass's opinion is supported by the record evidence, contrary to the ALJ's findings.

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Id. at 8-10. She argues that "the ALJ erred by adopting Dr. Tawadros'[s] assessment over Dr. Snodgrass'[s] opinion." Id. at 11-12. Finally, Plaintiff argues that the ALJ failed to consider every regulatory factor for weighing medical opinions, and "only partially considered one factor, supportability, although she couched it as consistency." (Pl. Br. 13). She argues how that, in her view, if the other factors are properly considered, "Dr. Snodgrass's opinions should have been entitled to great weight." Id. at 14.

The Commissioner argues that "the ALJ made reasonable findings that are supported by substantial evidence in the record as a whole, and the Court should thus affirm." (Comm'r Br. 6). She argues, "The ALJ Reasonably Weighed the Opinions and Substantial Evidence Supports the ALJ's Adoption of a Middle Ground in the RFC Assessment." Id. 6-11. The Commissioner argues that the ALJ thoroughly discussed the record evidence, considered the medical opinions of Dr. Snodgrass and Dr. Tawadros, explained her reasons for discounting both opinions, and "adopted a middle ground in the RFC assessment that did not embrace either opinion." Id. at 7. She summarizes the ALJ's reasons for discounting each opinion, and argues that the record evidence supports those reasons, id. at 7-8, and that the ALJ appropriately "chose a middle ground between the opinions of Dr. Snodgrass and Dr. Tawadros in assessing Plaintiff's RFC." Id. at 9 (citing Smith v. Colvin, 821 F.3d 1264, 1268 (10th Cir. 2016); and Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012)). Finally, the Commissioner argues that the ALJ appropriately considered the regulatory factors and appropriately assessed an RFC more

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restrictive than Dr. Tawadros's opinion but less restrictive than Dr. Snodgrass's opinion. (Comm'r Br. 10-11).

A. Standard for Weighing Medical Opinions

"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s) including [claimant's] symptoms, diagnosis and prognosis." 20 C.F.R. § 404.1527(a)(2). Such opinions may not be ignored and, unless a treating source opinion is given controlling weight, all medical opinions will be evaluated by the Commissioner in accordance with factors contained in the regulations. Id.; SSR 96-5p, West's Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2018). A physician or psychologist who has treated a patient frequently over an extended period of time (a treating source)¹ is expected to have greater insight into the patient's medical condition, and his opinion is generally entitled to "particular weight." Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). But, "the opinion of an examining physician [(a nontreating

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source)] who only saw the claimant once is not entitled to the sort of deferential treatment accorded to a treating physicians opinion." Id. at 763 (citing Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995)). However, opinions of nontreating sources are generally given more weight than the opinions of nonexamining sources who have merely reviewed the medical record. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004); Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir. 1987) (citing Broadbent v. Harris, 698 F.2d 407, 412 (10th Cir. 1983), Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982), and Wier ex rel. Wier v. Heckler, 734 F.2d 955, 963 (3d Cir. 1984)).

"If [the Commissioner] find[s] that a treating source's opinion on the issue(s) of the nature and severity of [the claimant's] impairment(s) [(1)] is well-supported by medically acceptable clinical and laboratory diagnostic techniques and [(2)] is not inconsistent with the other substantial evidence in [claimant's] case record, [the Commissioner] will give it controlling weight." 20 C.F.R. § 404.1527(d)(2); see also, SSR 96-2p, West's Soc. Sec. Reporting Serv., Rulings 111-15 (Supp. 2018) ("Giving Controlling Weight to Treating Source Medical Opinions").

The...