JON R. HEGWER, 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) terminating Social Security Disability(SSD) benefits under section 223 of the Social Security Act. 42 U.S.C. § 423 (hereinafter the Act). Finding error in the ALJ’s failure to weigh Dr. Majure-Lees’s medical opinion, the court ORDERS that the decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent with this opinion.
In May, 2001 Plaintiff was found disabled beginning on June 28, 2000 because of fractures of his arms requiring ongoing medical management. (R. 15). In a continuing disability review on August 30, 2003, Plaintiff’s disability was determined to continue. Id. In a second review dated May 19, 2008, it was determined that Plaintiff’s condition was medically improved beginning May 15, 2008, and his period of disability was terminated effective July 31, 2008. Id. at 15, 27. Plaintiff objected, and in due course he exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision terminating benefits. He alleges the Administrative Law Judge (ALJ) erred in finding medical improvement related to the ability to work at steps three and four of the Commissioner’s eight-step sequential process used to evaluate the termination of benefits, erred in assessing Plaintiff’s residual functional capacity (RFC) based on all of his current impairments at step seven, and erred in relying on vocational expert testimony at step eight of the process. The court finds that remand is necessary because in assessing RFC at step seven of the sequential process the ALJ failed to weigh Dr. Majure-Lees’s medical opinion and that failure may be material to the determination whether Plaintiff is able to perform substantial gainful work.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act 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). 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).
The Commissioner has promulgated an eight-step sequential process to evaluate termination of benefits. Hayden v. Barnhart, 374 F.3d 986, 988 (10th Cir. 2004); Jaramillo v. Massanari, 21 Fed.Appx. 792, 794 (10th Cir. 2001); 20 C.F.R. § 404.1594(f)(1-8). If at any step a determination can be made that a recipient is unable to engage in substantial gainful activity, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1594(f). In step one, the Commissioner must determine whether the recipient is presently engaged in substantial gainful activity. Id. § 404.1594(f)(1). Step two considers whether the recipient has a medically severe impairment or combination of impairments which is equivalent to one of the impairments listed in Appendix 1 to subpart P of the regulations. Id. § 404.1594(f)(2). If any or all of the recipient’s current impairment(s) meets or equals a listed impairment, his disability is conclusively presumed to continue. Id. In step three, the Commissioner determines if the recipient’s impairment(s) which was present at the most recent favorable decision has undergone medical improvement. Id. § 404.1594(f)(3)&(b)(1). To determine whether medical improvement has occurred, the ALJ compares “the current medical severity of that impairment(s) which was present at the time of the most recent favorable medical decision . . . to the medical severity of that impairment(s) at that time.” Id. § 404.1594(b)(7) (emphases added). Medical improvement has occurred where there is a decrease in medical severity, which is shown by “changes (improvement) in the symptoms, signs or laboratory findings associated with that impairment(s).” Id. § 404.1594(c)(1).
If medical improvement is found in step three, step four involves a determination whether that medical improvement is related to the recipient’s ability to work. Id. § 404.1594(f)(4). In deciding whether medical improvement is related to the ability to work, the ALJ will compare the recipient’s current RFC “based upon this previously existing impairment(s) with [his] prior residual functional capacity.” Id. § 404.1594(b)(7). “Unless an increase in the current residual functional capacity is based on changes in the signs, symptoms, or laboratory findings, any medical improvement that has occurred will not be considered to be related to [the recipient’s] ability to work.” Id. § 404.1594(c)(2) (emphasis added).
If, however, the most recent favorable decision was based upon a finding that the recipient’s condition met or equaled the severity of an impairment in the Listing of Impairments (20 C.F.R. Pt. 404, Subpt. P, App.1), an RFC assessment would not have been made because RFC is not assessed until after consideration of the Listing of Impairments. Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988); compare, 20 C.F.R. § 404.1520(e) (RFC assessed if impairment(s) do not meet or equal a listing), with § 404.1594(c)(3)(i) (if most recent favorable decision was based on a finding the impairment(s) met or equaled a listing, an assessment of RFC would not have been made). In such a case, where “medical improvement has occurred and the severity of the prior impairment(s) no longer meets or equals the same listing section used to make [the] most recent favorable decision, [the Commissioner] will find that the medical improvement was related to [the recipient’s] ability to work.” 20 C.F.R. § 404.1594(c)(3)(i).
If the Commissioner determines, at step three, that there has been no medical improvement or, at step four, that any medical improvement is not related to the recipient’s ability to work, he will determine that disability continues unless he finds at step five that certain statutory exceptions apply. Id. § 404.1594(f)(5). If medical improvement related to the recipient’s ability to work is found at steps three and four, the commissioner will determine, at step six, whether all of the recipient’s current impairments in combination are severe. Id. § 404.1594(f)(6). If the recipient’s current impairments in combination are severe, the Commissioner will assess his RFC at step seven “based on all [his] current impairments, and consider whether [he] can still do work [he has] done in the past.” Id. § 404.1594(f)(7). If so, the recipient’s disability benefits will be terminated. Id. If not, then the Commissioner will determine at step eight whether (when considering the recipient’s current RFC, age, education, and past work experience) he can perform other work existing in the economy. Id. § 404.1594(f)(8). If so, the recipient’s disability benefits will be terminated. Id.
The burden in a termination case is on the Commissioner to show both (1) medical improvement related to the recipient’s ability to work, and (2) that the recipient is currently able to engage in substantial gainful activity. Patton v. Massanari, 20 Fed.Appx. 788, 789 (10th Cir. 2001) (citing Glenn v. Shalala, 21 F.3d 983, 987 (10th Cir. 1994); and 20 C.F.R. 404.1594(a)); Jaramillo, 21 Fed.Appx. at 794 (same).
II. Consideration of Medical Source Opinions
Plaintiff argues that the ALJ erred in weighing the opinions of several medical sources including Dr. Majure-Lees, Dr. Rosamond, Dr. Debroy, and a physician’s assistant, Ms. Ensminger. The court finds that remand is necessary because the ALJ did not evaluate the medical opinion of Dr. Majure-Lees. Therefore, it will not address the alleged errors in evaluating the other medical source opinions, and Plaintiff may make his arguments in that regard to the Commissioner on remand.
Plaintiff points out that Dr. Majure-Lees completed a Physical RFC Assessment form for the agency which included certain limitations which were not included in the RFC assessment determined by the ALJ in this case: occasional climbing ramp/stairs, occasional stooping, occasional kneeling, avoid concentrated exposure to extreme cold, and avoid concentrated exposure to hazards such as machinery, heights, etc. (Pl. Br. 9) (citing R. 339, 340). He also points out that the ALJ did not discuss or cite Dr. Majure-Lees’s opinion in the decision here, and did not explain the weight accorded to that opinion, if any. Id. Plaintiff argues that several regulations and rulings promulgated by the Commissioner require that ...