United States District Court, N.D. Oklahoma
OPINION AND ORDER
Lane Wilson United States Magistrate Judge.
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
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).
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).
and Opinion Evidence
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.
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). He opined that plaintiff was
unable to work as of October 9, 2012 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).
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).
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).
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
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 ...