United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. MCCARTHY United States Magistrate Judge.
CARLETTA ELAINE ECKWOOD, seeks judicial review of a decision
of the Commissioner of the Social Security Administration
denying disability benefits. In accordance with 28 U.S.C.
§ 636(c)(1) & (3), the parties have consented to
proceed before a United States Magistrate Judge.
role of the court in reviewing the decision of the
Commissioner under 42 U.S.C. § 405(g) is limited to a
determination of whether the decision is supported by
substantial evidence and whether the decision contains a
sufficient basis to determine that the Commissioner has
applied the correct legal standards. See Briggs ex rel.
Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir.
2001); Winfrey v. Chater, 92 F.3d 1017 (10th Cir.
19');">1996); Castellano v. Secretary of Health & Human
Servs., 26 F.3d 1027, 1028 (10th Cir. 19');">1994). Substantial
evidence is more than a scintilla, less than a preponderance,
and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28
L.Ed.2d 842 (19');">1971) (quoting Consolidated Edison Co. v.
NLRB, 19');">197');">305 U.S. 19');">197, 229 (19');">1938)). The court may neither
reweigh the evidence nor substitute its judgment for that of
the Commissioner. Casias v. Secretary of Health &
Human Servs., 993 F.2d 799, 800 (10th Cir. 19');">1991). Even
if the court would have reached a different conclusion, if
supported by substantial evidence, the Commissioner's
decision stands. Hamilton v. Secretary of Health &
Human Servs., 961 F.2d 1495 (10th Cir. 19');">1992).
was 42 years old on the alleged date of onset of disability
and 45 on the date of the denial decision. Plaintiff has an
11 th grade education and her past work experience includes
fast-food worker, laundry worker, and hair stylist. Plaintiff
claims to have become disabled as of January 10,
due to knee problems, back injury, arthritis, osteoporosis,
diabetes, high blood pressure, and bipolar disorder. [R. 58,
found that Plaintiff has severe impairments relating to
lumbar spine degenerative disc disease; osteoarthritis of the
knees; major depressive disorder; generalized anxiety
disorder; and learning disorder. [R. 14]. The ALJ determined
that Plaintiff has the residual functional capacity to
perform a reduced range of light work in that she can
lift/carry 20 pounds occasionally and 10 pounds frequently;
stand/walk for 4 hours out of an 8-hour workday; sit for 6
hours out of an 8-hour workday; occasionally climb ramps or
stairs, stoop, kneel, crouch, and crawl; never climb ladders,
ropes, or scaffolds. Plaintiff is limited to simple tasks and
can have superficial and incidental work-related interaction
with coworkers, supervisors, and the public. [R. 16]. The ALJ
determined that Plaintiff is unable to perform any past
relevant work, but found based on the testimony of the
vocational expert, there are a significant number of jobs in
the national economy that Plaintiff could perform. [R. 25,
26]. Accordingly, the ALJ found Plaintiff was not disabled.
The case was thus decided at step five of the five-step
evaluative sequence for determining whether a claimant is
disabled. See Williams v. Bowen, 844 F.2d 748,
750-52 (10th Cir. 19');">1988) (discussing five steps in detail).
asserts that the ALJ failed to give proper weight to the
expert medical opinions of a treating orthopedic specialist
and a treating mental health counselor. [Dkt. 19');">19, p. 4].
Plaintiff argues that the ALJ did not give proper weight to
the opinion of treating orthopedic specialist, Dr. Jean
Bernard, M.D. A treating physician's opinion is accorded
controlling weight if it is well-supported by medically
acceptable clinical or laboratory diagnostic techniques and
is not inconsistent with other substantial evidence in the
record. However, if the opinion is deficient in either of
these respects, it is not given controlling weight. When an
ALJ decides to disregard a medical report by a claimant's
physician, he must set forth specific, legitimate reasons for
his decision. An ALJ "may reject a treating
physician's opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion."
Watkins v. Bamhart, 350 F.3d, 1297, 2003 WL 22855009
(10th Cir. 2003). If the ALJ decides that a treating
source's opinion is not entitled to controlling weight,
he must determine the weight it should be given after
considering: (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 treating source's opinion is
supported by objective evidence; (4) whether the opinion is
consistent with the record as a whole; (5) whether or not the
treating source is a specialist in the area upon which an
opinion is given; and (6) other factors brought to the
ALJ's attention which tend to support or contradict the
opinion. See § 404.1527(d)(2)-(6). Plaintiff was treated
by Dr. Jean Bernard, M.D. from January 24, 2011 to April 15,
2015. [R. 848-885, 1262-1267, 1417-1427, 1431-1433,
19');">1969-2002, 2155-2209, 2424-2434]. Dr. Bernard completed a
Medical Source Statement - Physical (MSS-P) on July
9, 2014. The MSS-P form limits Plaintiff to lift/carry less
than 10 pounds occasionally; stand/walk less than 2 hours in
an 8-hour workday; sit less than 2 hours in an 8-hour
workday; must periodically alternate sitting and standing;
limited pushing/pulling with upper and lower extremities;
occasionally balance/stoop; no climbing, crouching, or
crawling; less than occasional reaching, handling, fingering,
or feeling; and avoid concentrated exposure to extreme cold,
heat, wetness, humidity, noise, vibrations, fumes, and
hazards. Dr. Bernard also states that Plaintiff suffered from
chronic back pain for many years; surgery was not an option;
and she had undergone monthly epidural steroid injections.
[R. 1431-1433]. The ALJ gave little weight to the opinion of
Dr. Bernard noting that the limitations seem to be greatly
exaggerated. [R. 22-23]. The ALJ determined Dr. Bernard's
postural and manipulative limitations were unsupported by his
own treatment records because his treatment of Plaintiff did
not include upper back, neck, shoulder, or arm impairments
that would result in postural or manipulative limitations for
the upper extremities. [R. 21, 23].
discussed Dr. Bernard's treatment records including
Toradol injections for Plaintiff's subjective complaints
of pain. The ALJ also noted that physical examinations
consistently revealed normal sensory and motor exam inations
with muscle strength grossly 5/5 on all extremities, negative
Spurling test, and no tremor or cogwheel sign. [R. 1040,
1078-79, 1086, 1094, 1126, 1136, 1158, 1180, 1185, 1241].
Five lumbar MRI's were performed from 2011 through 2014
which reveal mostly mild degenerative changes of the lumbar
spine with no spinal canal stenosis or foraminal stenosis at
any level. [R. 879, 885, 1123, 2001, 2415]. Moreover,
orthopedic surgeon, Richard Drake, D.O., who ...