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Newpher v. Berryhill

United States District Court, N.D. Oklahoma

March 29, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.


          T. Lane Wilson United States Magistrate Judge.

         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).


         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 Cir. 2002).


         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

         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, 341-49, 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, 2012[3] 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).

         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 “well-supported 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 ...

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