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Estrada v. Colvin

United States District Court, Tenth Circuit

November 6, 2013

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 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 no error, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the final decision of the Commissioner.

I. Background

Plaintiff applied for SSD and SSI alleging disability beginning December 25, 2007, when he was 19 years old. (R. 15, 146-55). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He alleges that the Administrative Law Judge (ALJ) erred in assessing his residual functional capacity (RFC) because the ALJ accorded “substantial weight” to the medical opinion of Dr. Witt, but failed to include a mental limitation in his RFC assessment which Dr. Witt had included in his opinion of Plaintiff’s limitations. He also argues that the ALJ erred in his credibility analysis of Plaintiff’s allegations of symptoms resulting from his impairments.

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). Although both a credibility determination and evaluation of the weight accorded to a medical opinion will affect an ALJ’s RFC assessment, the court will address the issues in the order they were raised in Plaintiff’s Brief.

II. Failure to Include Dr. Witt’s Limitations in the RFC Assessed

Plaintiff claims the ALJ erred when he purported to accord “substantial weight” to Dr. Witt’s medical opinion but failed to include in the RFC he assessed a moderate limitation in the ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes, as opined by Dr. Witt. (Pl. Br. 10-13) (citing Soc. Sec. Ruling (SSR) 96-8p; McLeland v. Astrue, No. 07-1233-MLB, 2009 WL 348290 (D. Kan. Feb. 11, 2009); Anderson v. Barnhart, No. 06-1182-WEB, 2007 WL 1223992 (D. Kan. March 20, 2007); Bosch v. Barnhart, No. 05-1289-MLB, 2006 WL 4045924 (D. Kan. Jun. 5, 2006); Brown v. Comm’r of Soc. Sec. Admin., 245 F.Supp.2d 1175, 1187 (D. Kan. 2003), for the proposition that remand is necessary where an ALJ purports to base his RFC findings on a state agency assessment but fails to explain why his findings are inconsistent with the assessment). He then argues that because the ALJ failed to include Dr. Witt’s limitation on the ability to get along with coworkers or peers, the ALJ also propounded an erroneous hypothetical to the vocational expert. The Commissioner argues that, unlike the cases cited by Plaintiff, the ALJ here explained why he did not include a limitation for Plaintiff’s interaction with coworkers and peers, and gave the Plaintiff the benefit of the doubt in concluding that he was limited to only occasional interaction with the public. (Comm’r Br. 20). Plaintiff argues in his reply that the Commissioner’s reference to the ALJ’s step three analysis regarding coworkers, peers, and the public does not address the ALJ’s treatment of the medical opinions. (Reply 1).

As Plaintiff argues, SSR 96-8p includes narrative discussion requirements for the ALJ’s RFC assessment. West’s Soc. Sec. Reporting Serv., Rulings 149 (Supp. 2013). The discussion is to cite specific medical facts and nonmedical evidence to describe how the evidence supports each conclusion, discuss how the plaintiff is able to perform sustained work activities, and describe the maximum amount of each work activity the plaintiff can perform. Id. The discussion must include an explanation how any ambiguities and material inconsistencies in the evidence were considered and resolved, and it must include consideration of the credibility of plaintiff’s allegations of symptoms and consideration of medical opinions regarding plaintiff’s capabilities. Id. at 149-50. If the ALJ’s RFC assessment conflicts with a medical source opinion, the ALJ must explain why she did not adopt the opinion. Id. at 150.

Here, the ALJ included a narrative discussion in his decision which fulfills the requirements of SSR 96-8p. (R. 18-24). The fact that a portion of the narrative discussion occurred in the ALJ’s step three discussion is merely a product of the fact that Plaintiff’s condition includes mental impairments which must be assessed by application of the Commissioner’s special psychiatric review technique beginning at steps two and three of the sequential evaluation process. 20 C.F.R. §§ 404.1520a, 416.920a. Judicial review of the Commissioner’s decisions is concerned more with the substance than the form the decision takes, and the questions to be answered here are whether the ALJ provided a narrative discussion of Plaintiff’s RFC which met the legal standard of SSR 96-8p, and whether as a part of that narrative discussion he explained the weight accorded Dr. Witt’s medical opinion and the reasons for that weight. The answer to both questions is yes.

Plaintiff is correct that remand is necessary where an ALJ purports to base his RFC findings on a particular medical opinion but fails to explain why his findings are inconsistent with that opinion. However, that is not what happened in this case. Contrary to Plaintiff’s argument, the ALJ did not “purport[] to rely on” Dr. Witt’s opinion. (Pl. Br. 11). He did not adopt the opinion or state that his RFC assessment was based on the opinion. Rather, he accorded “substantial weight” to the opinion, and stated that Dr. Witt “determined that the claimant was capable of performing work consistent with the mental limitations established” in the RFC assessed in the ALJ’s decision. (R. 23) (emphasis added). Standing alone, the ALJ’s statements that Dr. Witt’s opinion is internally consistent, consistent with the evidence as a whole, and well-supported suggests that the ALJ accepted the opinion completely. However, those statements do not stand alone. The ALJ specifically stated that he accorded the opinion “substantial weight, ” suggesting that portions of the opinion had not been accepted. (R. 23). Earlier in his decision, the ALJ had accorded “substantial weight” to Dr. Nystrom’s opinion, specifically noting that Dr. Nystrom opined that Plaintiff was capable of “maintaining appropriate social interaction with coworkers, supervisors, and the general public.” (R. 21).

Moreover, in his discussion of the broad mental area of social functioning, the ALJ had already explained in some detail his evaluation of Plaintiff’s ability to interact ...

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