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Hiner v. Colvin

United States District Court, Tenth Circuit

July 2, 2013

CHARLES D. HINER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security [1], Defendant.


Sam A. Crow, U.S. District Senior Judge

This is an action reviewing the final decision of the Commissioner of Social Security denying the plaintiff disability insurance benefits and supplemental security income payments. The matter has been fully briefed by the parties.

I. General legal standards

The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. The determination of whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it really constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992). The court should examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision and, on that basis, determine if the substantiality of the evidence test has been met. Glenn, 21 F.3d at 984.

The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that they have a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that they are not only unable to perform their previous work but cannot, considering their 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).

The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he or she is not working at a “substantial gainful activity.” At step two, the agency will find non-disability unless the claimant shows that he or she has a “severe impairment, ” which is defined as any “impairment or combination of impairments which significantly limits [the claimant’s] physical or mental ability to do basic work activities.” At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant’s impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do his or her previous work; unless the claimant shows that he or she cannot perform their previous work, they are determined not to be disabled. If the claimant survives step four, the fifth and final step requires the agency to consider vocational factors (the claimant’s age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 124 S.Ct. 376, 379-380 (2003).

The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10thCir. 1993). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Nielson, 992 F.2d at 1120; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will assess the claimant’s residual functional capacity (RFC). This RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. §§ 404.1520(a)(4), 404.1520(e, f, g); 416.920(a)(4), 416.920(e, f, g).

II. History of case

On October 12, 2010, administrative law judge (ALJ) Mark R. Dawson issued his decision (R. at 9-23). Plaintiff alleges that he has been disabled since December 31, 2008 (R. at 9). Plaintiff is insured for disability insurance benefits through March 31, 2013 (R. at 11). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since plaintiff’s alleged onset date (R. at 11). At step two, the ALJ found that plaintiff has the following severe impairments: degenerative changes, lumbar spine; obesity; type II diabetes mellitus; bipolar disorder and anxiety disorder (R. at 11). At step three, the ALJ determined that plaintiff’s impairments do not meet or equal a listed impairment (R. at 12). After determining plaintiff’s RFC (R. at 14), the ALJ determined at step four that plaintiff is unable to perform his past relevant work (R. at 21). At step five, the ALJ determined that plaintiff could perform other jobs that exist in significant numbers in the national economy (R. at 22-23). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 23).

III. Did the ALJ err in his weighing of the medical opinion evidence regarding plaintiff’s mental impairments?

Dr. Gambrill and ARNP (advanced registered nurse practitioner) Canterbury treated plaintiff from February 27, 2006 through January 11, 2010 (R. at 456-498, 687-689, 833, 936-948, 1032-1038). They opined on April 13, 2009 that plaintiff had marked impairments in 9 out of 20 categories, and moderate impairments in another 6 categories (R. at 830-832). They further opined that plaintiff’s impairments met or equaled listed impairment 12.04 and/or 12.06 (R. at 826-829). The ALJ gave no weight to these opinions (R. at 20). By contrast, the ALJ gave great weight to the opinions of Dr. Cohen, a non-examining state agency physician (R. at 20). Dr. Cohen opined that plaintiff was moderately limited in his ability to understand, remember and carry out detailed instructions; in his ability to maintain attention and concentration for extended periods; and in his ability to interact appropriately with the general public. Dr. Cohen rendered this opinion on July 30, 2008, five months prior to plaintiff’s onset date (R. at 683-685). The ALJ included many of these limitations in his RFC findings for the plaintiff (R. at 14).

The ALJ gave a number of reasons for discounting the opinions of Dr. Gambrill and ARNP Canterbury. The ALJ noted that the treatment providers indicated that “despite multiple trials of medications he still has had periods of time when symptom severity required hospitalization” (R. at 833). However, the ALJ found that plaintiff had only been hospitalized once in June 2007 for anxiety (R. at 19). This finding by the ALJ is not disputed by plaintiff in his brief.

The ALJ further stated that the treatment providers’ findings of marked restrictions is “not explained, ” and that the opinions do not appear to be a reasoned analysis that persuasively explains how the proposed limitations are supported by the objective medical evidence, exam findings, and treatment ...

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