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Wagner v. Berryhill

United States District Court, W.D. Oklahoma

September 11, 2017

JOHN WAGNER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.[1]



         Plaintiff John Wagner 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 (“SSA”) denying Plaintiffs application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f The parties have consented to the jurisdiction of a United States Magistrate Judge. Doc. No. 16. The Commissioner has answered and filed the administrative record (Doc. No. 11, hereinafter “R.”).[2] The parties have briefed their positions and the case is now ready for decision. For the reasons set forth below, the Court affirms the Commissioner's decision.


         Plaintiff protectively filed his application for SSI on November 7, 2012, initially alleging a disability onset date of December 24, 2011, but later amending the date to November 7, 2012. R. 30-31, 150-55, 164-66. Following denial of his application initially and on reconsideration, an Administrative Law Judge (“ALJ”) held a hearing. R. 26-58, 61-90. The ALJ issued an unfavorable decision on August 29, 2014. R. 11-25. The SSA Appeals Council denied Plaintiff's request for review, making the ALJ's unfavorable decision the final decision of the Commissioner. R. 1-6; see also 20 C.F.R. § 416.1481. Plaintiff then filed this action for judicial review.


         As relevant here, a person is “disabled” within the meaning of the Social Security Act if he or she is “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Commissioner uses a five-step sequential evaluation process to determine entitlement to disability benefits. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20 C.F.R. § 416.920.

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 7, 2012, the application date. R. 13. At step two, the ALJ determined that Plaintiff had the following severe impairments: “shortness of breath; depression; anxiety; diabetes; hypertension; sleep apnea; substance abuse; [gastroesophageal reflux disease]; rheumatoid arthritis (knees); and chronic pain in the back, hands, and fingers.” R. 13. At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 13-15.

         The ALJ next assessed Plaintiff's residual functional capacity (“RFC”) based on all of his medically determinable impairments. R. 15-19. The ALJ found that Plaintiff has the RFC to perform light work, specifying that Plaintiff is able to “lift and or carry 20 pounds; stand and/or walk 6 hours in an 8-hour workday; and sit 6 hours in an 8-hour workday all with normal breaks.” R. 15; see 20 C.F.R. § 416.967(b) (defining “light” work). The ALJ assessed the following additional limitations:

[Plaintiff] can occasionally climb, bend, stoop, squat, kneel, crouch, crawl, push/pull, operate foot controls, and reach overhead. He has a slight limitation with finger and grip (between frequent and constant). He should avoid dusts, fumes, gases, unprotected heights, fast and dangerous machinery, rough and uneven surfaces, and cold damp and damp work environment. He should have easy access to restroom (on site and easily available). Due to depression, anxiety, and substance abuse, the work should be simple, repetitive, and routine. He should have limited contact with the public (contact with the public should be brief, cursory and incidental). He has a slight limitation in contact with co-workers (contact should be brief and cursory) and supervisors (no restrictions of ordinary supervision). The claimant is afflicted with symptomatology from a variety of sources that produces mild to moderate chronic pain, this will be of sufficient severity as to be noticeable to him at all times; but nonetheless, he would be able to remain attentive and responsive in a work setting, and could carry out normal work assignments satisfactorily. The claimant takes medication for relief of his symptomatology; the medication will not preclude [work] at the sedentary and the light level as restricted and the claimant would remain reasonably alert to perform required functions by his work setting. The claimant[, ] while functioning at the sedentary and light levels as restricted, would find it necessary to change position from time to time to relieve his symptomatology.

R. 15.

         At step four, the ALJ found that Plaintiff was unable to perform any past relevant work and that transferability of job skills was not a material issue. R. 19. At step five, the ALJ considered whether there are jobs existing in significant numbers in the national economy that Plaintiff-in view of his age, education, work experience, and RFC-could perform. Taking into consideration the testimony of a vocational expert (“VE”) regarding the degree of erosion to the unskilled light occupational base that is caused by Plaintiffs additional limitations, the ALJ concluded that Plaintiff could perform occupations such as marking clerk, hotel or housekeeper cleaner, routing clerk, and document preparer, all of which offer jobs that exist in significant numbers in the national economy. R. 20-21. On this basis, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, from November 7, 2012, through the date of the decision. R. 21.


         Judicial review of the Commissioner's final decision is limited to determining whether factual findings are supported by substantial evidence in the record as a whole and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (internal quotation marks omitted). “A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004) (internal quotation marks omitted). The court “meticulously examine[s] the record as a whole, ” including any evidence “that may undercut or detract from the ALJ's findings, ” “to determine if the substantiality test has been met.” Wall, 561 F.3d at 1052 (internal quotation marks omitted). While a reviewing court considers whether the Commissioner followed applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).


         Plaintiff contends that the ALJ improperly evaluated the medical evidence, alleging that the ALJ did not properly consider the opinions of Plaintiff's treating physicians. Pl.'s Br. (Doc. No. 15) at 14-19. Plaintiff further alleges that the ALJ failed to evaluate Plaintiff's subjective complaints under the correct legal standards. Id. at 19-22.


         A. Medical evidence

         1. Physical Impairments: Opinions of Dr. Cao and Dr. Roberts

         The record includes treatment notes from treating physician Hiep Cao, MD, through April 2014 as well as a Physical Medical Source Statement dated April 2, 2014. See R. 371-418, 419-22, 423-31. The record also includes the January 28, 2013 report of reviewing consultant Suzanne Roberts, MD. R. 68-69.

         Dr. Roberts reviewed Plaintiff's medical record, including the 2011 and 2012 treatment records of Dr. Cao. See R. 68. Dr. Roberts assessed a physical RFC for light exertion work. R. 68-69; see also R. 16. The ALJ gave Dr. Roberts' opinion “great weight, ” stating that “it appears consistent with the totality of medical evidence of record.” R. 16.

         Dr. Cao, in his April 2014 Physician Medical Source Statement, assessed greater limitations than those found by Dr. Roberts. Compare R. 419-22, with R. 68-69. The ALJ considered Dr. Cao's opinion and “afford[ed] it little weight, ” stating:

[T]he severity presented by Dr. Cao is not supported by the totality of medical evidence of record, specifically treatment records from Exhibit 8F [Dr. Cao's treatment records dated 10/2/12 through 3/18/14] (discussed above), which are internally not supportive of Dr. Cao's Medical Source statement. All of the examinations performed by Dr. Cao at Exhibit 8F show range of motion intact, moving all extremities and . . . normal gait. Furthermore the claimant “has been doing well with the current medications.” Lastly, there is no objective medical evidence to support Dr. Cao's opinion.

R. 17.

         a. Dr. Cao's opinion

         Plaintiff asserts that the opinion of Dr. Cao (Plaintiff's treating physician) was entitled to more weight than the opinion of Dr. Roberts (a nonexamining agency consultant). In evaluating a treating physician's opinion, “the ALJ must complete a sequential two-step inquiry, each step of which is analytically distinct.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). First, the ALJ must consider whether the opinion is entitled to controlling weight. That requires finding the opinion is both “well-supported by medically acceptable clinical or laboratory diagnostic techniques” and “not inconsistent with other substantial evidence in the record.” Id. Second, if the opinion is not entitled to controlling weight, the ALJ must “make clear how much weight the opinion is being given (including whether it is being rejected outright) and give good reasons, tied to the factors specified in [20 C.F.R. § 416.927][3] for this particular purpose, for the weight assigned.” Id.

         Plaintiff is correct that a treating physician's opinion is presumed to be entitled to controlling weight so long as it is well-supported and consistent with the record. Pl.'s Br. at 15; see Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). But “[m]edical evidence may be discounted if it is internally inconsistent or inconsistent with other evidence.” Pisciotta v. Astrue, 500 F.3d 1074, 1078 (10th Cir. 2007) (internal quotation marks omitted). Here, the ALJ determined Dr. Cao's opinion was entitled to “little weight” for specific reasons. The ALJ noted that the limitations set forth by Dr. Cao were not supported by “the totality of medical evidence of record, ” including Dr. Cao's own treatment records, and specifically by no objective medical findings. See R. 17; see also 20 C.F.R. § 416.927(c)(3) (“The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion.”); .927(c)(4) (“[T]he more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.”). Additionally, the ALJ stated that Dr. Cao's treatment records showed intact range of motion, ability to move all extremities, and a normal gait, as well as that Plaintiff had been doing well with medication. R. 17; cf. Hamlin v. Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004) (indicating that the ALJ should “specifically highlight” portions of the record that were inconsistent with treating physician's opinion); Hackett v. Barnhart, 395 F.3d 1168, 1174 (10th Cir. 2005) (stating that ALJ properly rejected treating physician's opinion because, among other things, the ...

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