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Ketron v. Colvin

United States District Court, Tenth Circuit

September 16, 2013

SHANE KETRON, Plaintiff,
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant


John W. Lungstrum United States District Judge

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under sections 1602 and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a and 1382c(a)(3)(A) (hereinafter the Act). Finding error in the Administrative Law Judge’s (ALJ) explanation of the weight accorded to a treating physician’s opinion, the court ORDERS that the Commissioner’s decision shall be REVERSED, and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING, this case for further proceedings consistent with this opinion.

I. Background

Plaintiff applied for SSI on December 14, 2009, alleging disability beginning July 1, 1999. (R. 14, 127-30). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an ALJ. (R. 14, 63-64, 87-89). Plaintiff’s request was granted, and Plaintiff appeared with counsel for a hearing before ALJ Michael R. Dayton on March 23, 2011. (R. 14, 34-35). At the hearing, counsel amended Plaintiff’s alleged onset date to December 14, 2009, and testimony was taken from Plaintiff and from a vocational expert. (R. 14, 34-62). After the hearing, additional interrogatories were propounded to and answered by the vocational expert between June and September, 2011. (R. 14, 262-95).

ALJ Dayton issued a decision on the case on November 21, 2011. (R. 14-28). In his decision, the ALJ determined that Plaintiff has severe impairments which produce a residual functional capacity (RFC) allowing only for a limited range of sedentary work. (R. 19-20). He determined that although Plaintiff’s limitations preclude performance of his past relevant work, when considering his age, education, work experience, and RFC, jobs exist in significant numbers in the economy that Plaintiff is able to perform. (R. 27-28). Therefore, he determined that Plaintiff is not disabled within the meaning of the Act, and he denied Plaintiff’s application. (R. 28).

Plaintiff sought Appeals Council review of the ALJ’s decision, and submitted a Representative Brief explaining the bases for his disagreement with the decision. (R. 7-10). The Council made the Representative Brief a part of the administrative record in this case, and considered it in deciding whether to grant review. (R. 1, 5). Nonetheless, the Council determined that the Brief did not provide a basis for changing the ALJ’s decision, found no reason under the rules of the Social Security Administration to review the decision, and denied Plaintiff’s request for review. (R. 1-2). 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 he 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.”). Moreover, 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. § 416.920 (2011);[2] 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. § 416.920(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 makes two claims of error in the decision, both dealing with the ALJ’s handling of the medical source opinions of Plaintiff’s treating physician, Dr. Fast. First, he claims the ALJ erred in purporting to accord “controlling weight” to Dr. Fast’s opinion regarding Plaintiff’s physical limitations, while at the same time and without explanation assessing a physical RFC which is materially different and less restrictive than the limitations contained in Dr. Fast’s opinion. Then, he claims the ALJ erred in according “minimal weight” to Dr. Fast’s opinion regarding Plaintiff’s mental limitations merely because Dr. Fast is not a mental health professional. The Commissioner argues that the ALJ did not err. She argues that the administrative record supports the ALJ’s RFC assessment, that the ALJ provided an extensive, detailed summary of all the evidence, and that the decision explains each RFC conclusion by reference to record evidence, thus satisfying the requirements of Social Security Ruling (SSR) 96-8p. Finally, she argues that the ALJ discounted Dr. Fast’s opinion regarding Plaintiff’s mental limitations based upon several specific reasons supported by the record evidence in addition to the fact that Dr. Fast is not a specialist in mental health.

The court agrees with the Commissioner that the ALJ discounted Dr. Fast’s opinion regarding mental limitations for at least three specific reasons in addition to the fact that Dr. Fast is not a mental health specialist. (R. 25) (Dr. Fast prescribed medication for Plaintiff’s mental condition based only on Plaintiff’s report of symptoms, Dr. Wilkinson’s opinion was more consistent with the record as a whole, Dr. Fast’s opinion is not consistent with his own treatment notes). Nonetheless, the court need not address whether the reasons relied upon are sufficient to support the ALJ’s determination in that regard because even if there is no error in the ALJ’s ...

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