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Grace v. Colvin

United States District Court, Tenth Circuit

November 1, 2013

PATRICK RICHARD GRACE, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, 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 evaluation of the 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 proceeding consistent with this opinion.

I. Background

Plaintiff applied for SSD and SSI, alleging disability beginning April 2, 2006. (R. 12, 107-11). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He alleges the Administrative Law Judge (ALJ) erred in evaluating his back impairments at step three of the Commissioner's five-step sequential evaluation process; erroneously evaluated the medical opinions in the record; and erroneously discounted the credibility of Plaintiff's allegations of symptoms.

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 uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. §§ 404.1520, 416.920; 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 v. Barnhart , 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).

The court finds that remand is necessary because the ALJ erroneously evaluated the medical opinions in the record. Finding that remand is necessary in this case, the court declines to address the remaining allegations of error suggested by Plaintiff. He may make those arguments to the Commissioner on remand.

II. Evaluation of the Medical Opinions

Plaintiff claims the ALJ provided insufficient and erroneous reasons to discount the medical opinions of three physicians who examined Plaintiff, and erroneously accorded too much weight to the opinion of a non-examining state agency physician who reviewed the record evidence and formulated her opinion without the benefit of two of the examining physicians' reports regarding restrictions resulting from Plaintiff's impairments. The Commissioner responds that the ALJ properly considered the regulatory factors and properly weighed the medical opinion evidence, explaining the evidentiary bases for the weight accorded each opinion. She argues that substantial record evidence supports the ALJ's findings in this regard.

A. The ALJ's Findings

The ALJ identified four physicians who provided medical opinions regarding Plaintiff's abilities and restrictions resulting from his impairments, Dr. Lapre, who examined Plaintiff for the Department of Veterans' Affairs (VA) and provided an evaluation of his capabilities; Dr. Surber, who provided a report of a physical examination at the request of the state agency; Dr. Kent, who provided a report of a physical examination at the request of Plaintiff's attorney; and Dr. Chaudhuri, a state agency physician, who reviewed the medical records and completed a Physical Residual Functional Capacity Assessment form. (R. 16-17). The ALJ evaluated the medical opinions of each of these physicians, accorded weight to the opinions, and explained the reasons for the weight accorded. Id . He accorded "little weight" to Dr. Lapre's opinion because it "is not consistent with the physician's own medical findings" (R. 16), "limited weight" to Dr. Surber's opinion because Dr. Surber examined Plaintiff only once and because his opinion does not reflect his medical findings, id., "little weight" to Dr. Kent's opinion "because he was hired by the claimant to ...


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