STEPHEN A. PERKINS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
John W. Lungstrum United States District Judge.
Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Social Security disability (SSD) benefits and Supplemental Security income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding error in the Commissioner’s failure to discuss the third-party opinions of M. Steele, an employee of the agency, regarding the severity of Plaintiff’s impairments, the court ORDERS that the Commissioner’s decision is REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING that decision for further proceedings.
Plaintiff applied for SSD and SSI on January 9, 2009, alleging disability beginning August 15, 2008. (R. 14, 113-20). The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (R. 14, 50-53, 74). Plaintiff’s request was granted, and Plaintiff appeared with counsel for a hearing before ALJ Evelyn M. Gunn on November 10, 2010. (R. 14, 22-24). At the hearing, testimony was taken from Plaintiff and from a vocational expert. (R. 14, 22-49). On December 21, 2010 ALJ Gunn issued her decision, finding that although Plaintiff has severe mental impairments of attention-deficit hyperactivity disorder and bipolar disorder, he has sufficient residual functional capacity (RFC) to perform his past relevant work both as generally performed and as actually performed. (R. 14-21).
Plaintiff requested Appeals Council review of the ALJ’s decision, and submitted a letter explaining the errors he believed the ALJ committed in reaching her decision along with an opinion letter provided by Plaintiff’s treating psychiatrist. (R. 10, 263-64, 387). The Council issued an order making counsel’s letter and the psychiatrist’s opinion letter a part of the administrative record, and considered that evidence. (R. 1, 4). Nevertheless, it determined that the evidence did not provide a basis to change the ALJ’s decision, found no reason under Social Security Administration rules to review the decision, and denied the request for review. (R. 1-4). Therefore, the ALJ’s decision became the final decision of the Commissioner; (R. 1); Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006); and Plaintiff now seeks judicial review of that decision. (Doc. 1).
II. Legal Standard
The court’s jurisdiction and review are guided by the Act. Weinberger v. Salfi, 422 U.S. 749, 763 (1975) (citing 42 U.S.C. § 405(g)); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (same); Brandtner v. Dep’t of Health and Human Servs., 150 F.3d 1306, 1307 (10th Cir. 1998) (sole jurisdictional basis in social security cases is 42 U.S.C. § 405(g)). Section 405(g) of the Act provides for review of a final decision of the Commissioner made after a hearing in which the plaintiff was a party. It also provides that in judicial review “[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual findings are supported by substantial evidence in the record and whether she applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988). The court may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005).
When deciding if substantial evidence supports the ALJ’s decision, the mere fact that there is evidence in the record which might support a contrary finding will not establish error in the ALJ’s determination. “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence. [The court] may not displace the agency’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, 489 F.3d at 1084 (citations, quotations, and bracket omitted); see also, Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966) (defining substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” and noting that “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”). Nonetheless, the determination 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 constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
An individual is disabled only if he can establish that he has a physical or mental impairment which prevents him from engaging in any substantial gainful activity, and which is expected to result in death or to last for a continuous period of at least twelve months. Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting identical definitions of a disabled individual from both 42 U.S.C. §§ 423(d)(1) and 1382c(a)(3)(A)); accord, Lax, 489 F.3d at 1084. The claimant’s impairments must be of such severity that he is not only unable to perform his past relevant work, but cannot, considering his age, education, and work experience, engage in any other substantial gainful work existing in the national economy. 42 U.S.C. § 423(d)(2)(A).
The Commissioner uses a five-step sequential process to evaluate disability. 20 C.F.R. § 404.1520 (2010); Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether he has a severe impairment(s), and whether the severity of his impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant’s RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process--determining at step four whether, in light of the RFC assessed, claimant can perform his past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
Plaintiff claims the ALJ erred in weighing the opinion of his treating psychiatrist, Dr. Risk, and the opinion of a non-examining physician, Dr. Schlosser. He claims error in the ALJ’s failure to discuss the recorded observations of an employee of the agency, M. Steele; and in the failure to properly evaluate Plaintiff’s past relevant work at step four of the sequential evaluation process. The Commissioner argues that the ALJ properly evaluated the medical opinions and that although the ALJ did not specifically discuss the third-party statements, they were largely cumulative of Plaintiff’s own allegations and as such the failure to discuss them does not require reversal. Finally, she argues that the vocational expert (VE) assessed Plaintiff’s past relevant work, that the ALJ cited the VE testimony approvingly and was entitled to rely on that testimony in comparing the RFC assessed with the physical and mental demands of Plaintiff’s past relevant work at step four of her evaluation. The court agrees with Plaintiff that the ALJ committed reversible error in failing to discuss and evaluate the opinions of the agency employee, M. Steele. While the court recognizes that there may be merit to Plaintiff’s argument regarding the ALJ’s evaluation of the medical opinions, remand is necessary in this case because of the ALJ’s error in evaluating the opinions of the agency employee. Therefore the court will not address the other issues here, but the Commissioner would be wise to consider them on remand.
III. Consideration of Opinions of Lay Witnesses
In his Social Security Brief, Plaintiff claims that the ALJ failed to consider third-party information and observations. He argues that the administrative record contains no fewer than four third-party statements, and that the “decision is completely silent regarding this evidence and the weight given” (Pl. Br. 17) it despite the regulatory requirement to consider all third-party opinions when making a credibility determination and when assessing RFC. Plaintiff specifically points to the observations of M. Steele, an agency employee, recorded in a field office disability report completed by M. Steele on January 15, 2009 when Plaintiff came in to apply for disability. (Pl. Br. 16-17) (citing R. 146-47). Plaintiff quotes the holding in Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) that “in addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely on, as ...