PAUL J. CLEARY, Magistrate Judge.
Plaintiff, Angela L. Liggins, seeks judicial review of the decision of the Commissioner of the Social Security Administration ("Commissioner" and "SSA") denying Liggins' applications for disability insurance benefits and for supplemental security income benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq. For the reasons discussed below, the Commissioner's decision is
Liggins filed her applications for disability insurance benefits and supplemental security income benefits with a protective filing date of June 20, 2011. [R. 14, R. 273]. She originally alleged onset of disability as of October 5, 2007. [R. 251, 253]. Liggins claimed she was disabled due to multiple sclerosis, a slipped disc at L4 and L5, numbness in her left hand headaches and tingling in both legs. [R. 277].
The applications were denied initially and on reconsideration. [R. 151, 162]. An administrative hearing was held before Administrative Law Judge ("ALJ") John W. Belcher on November 7, 2012. [R.29-52]. At the hearing, the onset date was amended to June 20, 2010, and her attorney asked the ALJ to consider a listing for multiple sclerosis. [R. 45-46, R. 104]. The ALJ announced that he needed further development of the record with respect to this issue, and adjourned the hearing. [R. 52-53].
At the request of the ALJ, a consultative neurological examination was performed on Liggins January 11, 2013, by Shashi Husain, M.D. A second hearing was held on July 2, 2013. [R. 54-139]. Ronald Devere, M.D., an impartial medical expert, testified by telephone during the hearing. [R. 59-79]. By decision dated October 24, 2013, the ALJ ruled that Liggins had not been under a disability from October 25, 2007, through the date of the decision. [R. 24].
The Appeals Council affirmed the denial on February 28, 2015. [R. 1-3]. Liggins timely sought review by this court.
Liggins was born September 1, 1966, and was 47 years old at the time of the ALJ's decision. [R. 469]. She has a twelfth grade education, graduated with a diploma, and completed one year of college at a vocational school. [R. 36-37].
In an Adult Function Report completed August 3, 2011, Liggins reported she prepares meals daily, does laundry, washes dishes and cleans her room. [R. 286 (Ex. 3E)]. She drives a car, shops every two weeks for household goods, shoes and personal needs and once a month for food. [R. 287]. She listens to music, watches television and reads every day; she exercises three times a week. [R. 288]. She talks on the phone daily, and visits relatives and goes to church on a regular basis. Id. She can no longer go to night clubs, walk distances or ride a bike. Id. She doesn't go out into public too often and doesn't dance because she is afraid her legs will give out. [R. 289]. She has trouble with squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, using hands and getting along with others. Id. She can walk a block before needing to stop and rest, and can resume walking after about two minutes rest. Id. She is able to follow written and spoken instructions, gets along well with authority figures, and has never been fired or laid off because of problems getting along with other people. [R. 290]. She handles stress poorly, handles changes in routine fair, and is easily irritated when she is stressed. Id.
At the hearings, Liggins testified that she lives with her mother in a house in Tulsa. [R. 34-35]. She takes over the counter Motrin, Advil and Aleve, and prescription Lortab, 10. [R. 44-45]. She also takes Tiazac for Raynaud's disorder. [R. 94]. She testified she would be able to use her fingers for typing for about 30 minutes at a time before she would need to stop and give them a break. [R. 95-96]. Cold weather makes the problem worse. [R. 98]. She takes about three naps a day because she is tired and fatigued. [R. 99-100]. Since she was in a car wreck on June 20, 2010, her lower back and legs have bothered her. [R.100]. She has tingling in her hands and legs, and experiences sharp pain in her lower back. [R. 100, R. 102].
On a good day, she can only sit thirty to forty minutes before she gets stiff and has to stand up. [R. 104]. On a bad day, she can only sit ten to fifteen minutes. [R. 115]. She can walk the length of two blocks. [R. 115-116]. When she walks, she stumbles if she turns a certain way. [R. 104]. Three to four days a week her symptoms are more severe. [R. 104-105]. On those days she just lies around and doesn't leave the house. [R. 105]. She does not get a full night's sleep because her right hip gives her problems. Id. She can lift less than ten pounds because her hands give out. [R. 114]. She has headaches three to four times a day. [R. 116]. If she takes a Lortab, the headache lasts about an hour, but it eventually comes back. [R. 116].
Liggins gets dizzy and can't run. Id. She cannot get on the floor and crawl because she can't bend down and get back up without holding onto something, due to her legs and back. [R. 121-122]. She can't concentrate. [R. 122]. Her hair has fallen out. Id. She was doing great until the car wreck. Id. She usually has other people drive her because she isn't comfortable driving anymore. [R. 118]. After the car wreck, she hired a lawyer, who submitted a claim to the insurance company, but the insurance company went bankrupt. [R. 119-121].
Liggins has previous work experience in customer service, sedentary, SVP 4. [R. 127].
Disability under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Act only if his "physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. § 404.1520.
Judicial review of the Commissioner's determination is limited in scope to two inquiries: first, whether the decision was supported by substantial evidence; and, second, whether the correct legal standards were applied. Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004).
"Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Wall, 561 F.3d at 1052 (quotation and citation omitted). Although the court will not reweigh the evidence, 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.
In his decision, the ALJ found that Liggins met insured status requirements through December 31, 2012, and, at Step One, that she had not engaged in any substantial gainful activity since her alleged onset date of October 25, 2007. [R. 16]. He found at Step Two that Liggins had the severe impairment of degenerative disc disease lumbar spine non-symptomatic. Id. Additionally, he found Liggins' light neuropathy (sub-clinical) was non-severe. Id. He found a lack of objective evidence to substantiate that claimant's alleged symptoms of multiple sclerosis, hand numbness, leg tingling, headaches and polymyositis were medically determinable impairments. [R. 17]. At Step Three, he found that claimant did not have an impairment or combination of impairments that meets or medically equals the severity of any listing. Id. He found that Liggins had the RFC to perform sedentary work with the following limitations: claimant can lift and/or carry ten pounds occasionally and less than ten pounds frequently; stand and/or walk two hours in an eight-hour workday and sit six hours in an eight-hour workday all with normal breaks; she should avoid climbing ropes, ladders and scaffolds; she can occasionally climb stairs, balance, bend or stoop, kneel crouch and crawl; she should avoid hazardous or fast machinery, unprotected heights and driving. Id.
At Step Four, the ALJ determined that Liggins was capable of performing past relevant work as a Customer Service Representative. [R. 24]. The ALJ concluded that Liggins had not been disabled from October 25, 2007, through the date of his decision. Id.
On appeal, Liggins argues the ALJ improperly gave more weight to the opinion of testifying expert Ronald Devere, M.D., and the findings of consultative neurologist Shasi Husain, M.D., than to the opinions of her treating physician, David Traub, M.D.
Generally the opinion of a treating physician is given more weight than that of an examining consultant, and the opinion of a non-examining consultant is given the least weight. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). A treating physician opinion must be given controlling weight if it is supported by "medically acceptable clinical and laboratory diagnostic techniques," and it is not inconsistent with other substantial evidence in the record. Mays v. Colvin, 739 F.3d 569, 574 (10th Cir. 2014). "When assessing a medical opinion, the ALJ must consider the factors listed in 20 C.F.R. § 404.1527(c)(2) and give good reasons for the weight he assigns to the opinion." Vigil v. Colvin, 805 F.3d 1199, 1202 (10th Cir. 2015) (citations omitted). When an RFC conflicts with an opinion from a medical source, the ALJ must explain why the opinion was not adopted. SSR 96-8P (S.S.A.), 1996 WL 374184 at *7. However, ultimately the ALJ—not a physician—is charged with determining a claimant's RFC from the medical record. See Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004) (citing 20 C.F.R. § 416.927(e)(2); SSR 96-5p, 1996 WL 374183, at *5).
Liggins contends that Dr. Traub's multiple sclerosis diagnosis and MSS are supported by her brain MRI and abnormal spinal fluid; his clinical findings that she had dizziness/vertigo, weakness, parathesia in her legs; and medical records of treating physicians Gerald Snider, M.D., and Kris Parchuri, D.O. Dkt. #15 at 6. Similarly, she argues that Dr. Traub's assessment of her low back impairment is supported by the spinal MRI, x-rays and EMG findings; his clinical findings; and medical records of other treating physicians. Id.
The ALJ gave "very little credence" to Dr. Traub's opinions and "great weight" to the opinions of Drs. Devere, Husain and Fielding, "as their findings and/or opinions are consistent with the totality of medical evidence." [R. 22, 24]. He thoroughly discussed the medical evidence, and supported his assignment of weight by citing to the medical record, as follows:
When faced with conflicting medical evidence, "[t]he trier of fact has the duty to resolve that conflict." Richardson v. Perales, 402 U.S. 389, 399 (1971). Here, the ALJ did just that. In doing so, he fulfilled his obligation to explain the weight he assigned to each opinion. See Vigil, 805 F.3d at 1202.
"The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. We may not displace the agenc[y's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
Liggins' argument that the ALJ should have given more weight to Dr.Traub's opinion is essentially a request that this court re-evaluate the evidence, emphasizing the evidence that supports her disability claim and discounting the evidence that does not. The court cannot, however, reweigh the evidence. Newbold v. Colvin, 718 F.3d 1257, 1265 (10th Cir. 2013). While Liggins' case might be susceptible to conclusions that differ from those made by the ALJ, it is not the court's role to make findings in the first instance. 42 U.S.C. § 405(g) ("The findings of the Commissioner of the Social Security as to any fact, if supported by substantial evidence, shall be conclusive."); Allen v. Barnhart, 357 F.3d 1140, 1143-45 (10th Cir. 2004) (court acts within confines of its administrative authority).
For the reasons set forth above, the Commissioner's decision is hereby
