The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GORDON WETSELLINE, )
Plaintiff,
Vv. Case No. CIV-18-1148-SM
COMMISSIONER OF
SOCIAL SECURITY, )
Defendant.
MEMORANDUM OPINION AND ORDER
Gordon Wetselline (Plaintiff) brings this action for judicial review of the
Commissioner of Social Security’s final decision that he was not “disabled”
under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g),
423(d)(1)(A). The parties have consented under 28 U.S.C. § 636(c) to proceed
before a United States Magistrate Judge. Docs. 5, 11.! After a careful review
of the record (AR), the parties’ briefs, and the relevant authority, the court
affirms the Commissioner’s decision.
1 Citations to the parties’ pleadings and attached exhibits will refer to this
Court’s CM/ECF pagination. Citations to the Administrative Record will refer
to its original pagination.
I. Administrative determination.
A. Disability standard.
The Social Security Act defines “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration
requirement applies to the claimant’s inability to engage in any substantial
gainful activity, and not just his underlying impairment.” Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-
19 (2002)).
B. Burden of proof.
Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that he can no longer engage in his prior work activity.”
Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that
prima facie showing, the burden of proof then shifts to the Commissioner to
show Plaintiff retains the capacity to perform a different type of work and that
such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. Administrative Law Judge’s findings.
The ALJ assigned to Plaintiffs case applied the standard regulatory
analysis in order to decide whether Plaintiff was disabled during the relevant
timeframe. AR 18-31; see 20 C.F.R. § 416.920(a)(4); see also Wall v. Astrue, 561
F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically,
the ALJ found Plaintiff:
(1) had severe degenerative disc disease of the cervical spine,
status post cervical fusion in September 2017; and
hypertension;
(2) did not have an impairment or combination of impairments
that met or medically equaled the severity of a listed
impairment;
(3) had the residual functional capacity? (RFC) for light work
with various additional exertional and nonexertional
restrictions;
(4) could not perform his past relevant work;
(5) was unable to perform any past relevant work, but could
perform jobs that exist in substantial numbers in the
national economy, such as apparel stock checker, motel
cleaner, and small parts assembler; and thus
(6) had not been under a disability as defined by the Social
Security Act since August 31, 2015, the date the application
was filed.
AR 18-31.
2 Residual functional capacity “is the most [a claimant] can still do despite
[a claimant’s] limitations.” 20 C.F.R. § 416.945(a)(1).
2. Appeals Council’s Findings.
The SSA’s Appeals Council denied Plaintiffs request for review, so the
ALJ’s unfavorable decision is the Commissioner’s final decision in this case.
Id. at 1-4; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. Judicial review of the Commissioner’s final decision.
A. Review standard.
The court reviews the Commissioner’s final decision to determine
“whether substantial evidence supports the factual findings and whether the
ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326,
1330 (10th Cir. 2016). Substantial evidence is “more than a scintilla, but less
than a preponderance” and means “only” such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Lax, 489
F.3d at 1084; Bistek v. Berryhill, 189 S. Ct. 1148, 1154 (2019). A decision is
not based on substantial evidence “if it is overwhelmed by other evidence in
the record.” Wall, 561 F.3d at 1052 (citation omitted). The court will “neither
reweigh the evidence nor substitute [its] judgment for that of the agency.”
Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).
B. Issue for judicial review.
Plaintiff argues the ALJ “improperly weighed the medical evidence.”
Doc. 14, at 8-13. Plaintiff maintains the ALJ gave “little weight” to the treating
physician’s report “because it was provided eight days before he performed
surgery.” Id. at 9. He also maintains that “[t]he ALJ gave ‘great weight’ to the
nontreating, nonexamining State agency medical consultants....” Id. (citing
AR 81-83, 94-97).
III. Analysis.
A. Opinion evidence.
The ALJ was required to consider all the medical source opinions
regarding Plaintiffs claimed impairments—physical and mental. See 20
C.F.R. § 416.927(c) (“Regardless of its source, [the ALJ] will evaluate every
medical opinion [he] receive[s].”).
Under § 404.927(c)(2),
fi]f [the ALJ] find[s] that a treating source’s medical opinion on the
issue(s) of the nature and severity of your impairment(s) is well-
supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record, [the ALJ] will give it
controlling weight.
See also Watkins v. Barnhart, 350 F.3d 1297, 1800 (10th Cir. 2003).
Conversely, “if the [treating physician’s medical] opinion is deficient [because
it is not well-supported or is inconsistent with other substantial evidence in
the record], then it is not entitled to controlling weight.” Jd.
“Unless [the ALJ] give[s] a treating source’s medical opinion controlling
weight .. ., [the ALJ will] consider [six regulatory] factors in deciding the
weight .. . [to] give to any medical opinion,” § 416.927(c) (emphasis added),
including a treating source’s opinion. In other words, “resolving the controlling
weight issue does not end our review.” Watkins, 350 F.3d at 1300 Gnternal
quotation marks omitted). Instead, if the ALJ determines the treating source’s
opinion is not entitled to controlling weight, the ALJ must consider the
regulatory factors in § 416.927(c)(2)-(6) to determine what weight to assign to
the opinion.
Those factors are: (1) the length of the treatment relationship and
the frequency of the 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 physician’s opinion is supported by relevant evidence;
(4) consistency between the opinion and the record as a whole;
(5) whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to the
ALJ’s attention which tend to support or contradict the opinion.
Watkins, 350 F.3d at 1300-01 (Gnternal quotation marks omitted).
As an overarching principle, the ALJ should “[g]enerally . . . give more
weight to the medical opinion of a source who has examined [the claimant]
than to the medical opinion of a medical source who has not examined [the
claimant].” § 416.927(c)(1). Nonetheless, “[a]n opinion found to be an
examining rather than treating medical-source opinion may be dismissed or
discounted,” so long as the ALJ bases the decision “on an evaluation of all the
factors set out in [§ 416.927(c)] and [he] . . . provide[s] specific, legitimate
reasons for rejecting it.” Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012)
(internal quotation marks omitted).
B. Substantial evidence supports the weight the ALJ ascribed
to Dr. Stephen K. Ofori’s opinion.
As Plaintiff explains, Dr. Ofori gave an opinion Plaintiff was not
employable eight days before performing surgery on Plaintiff. Doc. 14, at 9.
The ALJ noted:
On September 20, 2017, Stephen K. Ofori, M.D, checked a
box indicating the claimant is not employable. He reported
the claimant’s diagnosis of C3-C4, C4-C5, C5-C6, and C6-C7
disc herniation with central canal and foraminal stenosis.
The doctor noted the claimant complained of neck pain,
numbness, tingling, and weakness in both arms, left worse
than right. The form requests an “Interpretation of the
diagnosis in relation to the way it affects the patient.
Indicate any secondary physical, mental or personality
difficulties which affect the individual’s capacity to engage
in the occupation he is prepared to do” (Exhibit 27E/3). In
response, Dr. Ofori wrote the claimant has numbness and
weakness of the arms and that the spinal cord and nerve
supplying the claimant’s arms are pinched at the four
specified levels in his neck. The doctor noted he
recommended surgery and wrote the claimant’s condition is
temporary if he gets the surgical treatment proposed. The
doctor wrote that treatment with neck conditioning and
physical rehabilitation may improve the claimant's condition
sufficiently to make the claimant employable.
The undersigned gives little weight to the doctor's
statements as his opinion was provided only eight days
before he performed the September 28, 2017 surgery, and on
October 6, 2017, the claimant reported to Toni White, M.D.,
that “his pain is controlled” (Exhibits 18F, 19F, and
20F/quote on 11), so the doctor’s opinion is inconsistent with
other substantial evidence-the claimant’s own
acknowledgement of improvement in his pain. The doctor
rendered his opinion before the surgery. There is no
indication the claimant would not be able to perform SGA
within 12 months after the surgery. Moreover, the doctor is
not a vocational expert. In addition, the form asks how the
claimant’s condition affects his ability to engage in the
occupation he is prepared to do{] (Exhibit 27E/3). The
undersigned agrees the claimant could not return to his past
medium exertional level work.
AR 29.
Plaintiff appears to argue the ALJ failed to give a reason regarding the
amount of weight he gave Dr. Ofori’s opinion, beyond noting Plaintiffs
reporting that his pain was controlled. Doc. 14, at 13. Plaintiff argues that a
one-sentence rejection of a treating physician’s opinion does not qualify under
Krauser. Id.
The ALJ found substantial medical evidence that contradicted Dr.
Ofori’s opinion: On October 6, 2017, Plaintiff acknowledged “his pain was
controlled.” AR 29. At that exam, Dr. Toni White noted no muscle atrophy and
equal muscular symmetry. Id. at 26. And the physical therapist reported on
that date that Plaintiffs rehabilitation potential was “good.” Zd. And, Dr. Ofori
gave his opinion just days before performing surgery. Id.
Although an examining opinion may be dismissed or discounted, that
determination must be based on an evaluation of the factors in § 416.927(c)(2)-
(6), and the ALJ “must provide specific, legitimate reasons for rejecting it.”
Chapo, 682 F.3d at 1291 (internal quotation marks omitted). The ALJ did not
specifically mention the factors in § 404.1527(c)(2)-(6), but he clearly had them
in mind when he found that Dr. Ofori’s pre-surgery opinion was not well-
supported, inconsistent with the record as a whole, and contradicted by how
Plaintiff presented himself. Substantial evidence supports the ALJ’s decision.
C. Substantial evidence supports the “great weight” the ALJ
ascribed to the State agency medical consultants.
Plaintiff next challenged the ALJ’s giving great weight to the two State
agency medical consultants who reviewed the medical record in late 2015. Doc.
14, at 12. The consultants considered the 105 MRI study, showing “small disc
protrusions at C4-C5 and C5-C6.” Jd. (quoting AR 559). But these consultants
did not review the 2017 MRI Dr. Ofori reviewed. Jd. As such, Plaintiff
continues, their options were too remote and could not anticipate the any
changes in his medical condition. Jd. at 13.
As Plaintiff notes, an ALJ may rely on State agency medical consultants’
opinions if they have adequate medical evidence support. Jd. These
consultants deemed Plaintiff capable of performing light work, AR 28, and the
ALJ added further postural and reaching limitations than those the
consultants suggested. Id. The ALJ noted that in 2016 Plaintiff admitted he
performed construction work, maintenance work, and admitted he could lft
fifty pounds. Id. at 27. And the ALJ discounted Plaintiffs credibility regarding
his reported limited activities and his testimony at the hearing. Jd. at 30. And,
the ALJ found that “[t]reatment notes in the record fail to support [Plaintiffs]
allegations of disabling pain and limitations.” Jd. Plaintiff challenges neither
finding.
State agency medical consultants are highly qualified experts in Social
Security evaluation. See § 416.918a(b)(1). Moreover, the absence of a specific
discussion is harmless if there is no inconsistency between the opinion and the
ALJ’s RFC assessment. See Mays v. Colvin, 739 F.3d 569, 578-79 (10th Cir.
2014); see also Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012).
Here, the ALJ’s RFC finding is consistent with the State agency consultants’
opinion, with the exception of limitations favorable to Plaintiff that the State
agency consultants did not propose. Substantial evidence supports the ALJ’s
decision.
As the Commissioner points out, the ALJ considered the entire record as
a whole in formulating the RFC that limited Plaintiff to the greatly reduced
physical demands of light work. Doce. 18, at 13-14 (citing Clifton v. Chater, 79
F.3d 1007, 1009-10 (10th Cir. 1996). Substantial evidence supports the ALJ’s
decision.
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IV. Conclusion.
The court AFFIRMS the Commissioner’s decision.
ENTERED this May of July, 2019.
€ Hie MITCHELL
UNITED STATES MAGISTRATE JUDGE
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