TINA M. BALCH, 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 under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding error in the Commissioner’s evaluation of the medical opinions, 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.
Plaintiff applied for SSD alleging disability beginning June 14, 2008. (R. 20, 264-65). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She now alleges that the Appeals Council erred in failing to secure vocational expert testimony, that the Appeals Council and the Administrative Law Judge (ALJ) erred in weighing the medical opinions, and that the ALJ erred in considering her obesity and in evaluating the credibility of her allegations of symptoms resulting from her 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; 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 she has a severe impairment(s), and whether the severity of her 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 residual functional capacity (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 her 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).
In this case, the Appeals Council granted Plaintiff’s request for review of the ALJ’s decision, and issued a “Decision of the Appeals Council” finding that Plaintiff is not disabled within the meaning of the Act, and denying her application for benefits. (R. 4-7). Therefore the decision of the Appeals Council is the final decision of the Commissioner which is the object of the court’s review. (R. 1); 20 C.F.R. § 404.981. In its decision, however, the Council adopted much of the ALJ’s decision including her statement of the facts, her findings at each of the steps in the sequential evaluation process, and her credibility determination. (R-5). In reviewing the final decision of the Commissioner, the court will keep in mind those portions of the ALJ’s decision which were adopted by the Appeals Council.
The Council found that the ALJ had not considered the medical opinion of Dr. Fantz, a state agency medical consultant, weighed that opinion, and accorded it “substantial weight.” (R. 5). Consequently, it found that Plaintiff “would be able to work around others and get along with coworkers and supervisors, but would likely have some problems in a job that required constant contact with the public.” (R. 6). Based upon this change in the RFC assessment, the Council reviewed the representative jobs found by the ALJ and determined that two of the jobs do not require sustained contact with the public and could be performed by an individual with Plaintiff’s RFC (garment sorter, and folding machine operator), but that one of the jobs (ticket taker) required sustained contact with the public, and could not be performed by Plaintiff. (R. 6). It determined Plaintiff is not disabled, and denied her application. Id. at 7.
Remand is necessary in this case because the court’s review of the decision reveals error in the evaluation of the record medical opinions. Therefore, the court need not address Plaintiff’s allegations of error in failing to seek vocational expert testimony, in evaluating obesity, or in considering the credibility of Plaintiff’s allegations of symptoms. Plaintiff may make her arguments in this regard to the Commissioner on remand.
II. Evaluation of the Medical Opinions
Plaintiff claims error in the evaluation of the medical opinions. She argues that Dr. Fantz’s opinion should not have been given “significant weight;” that the final decision did not mention the medical opinion of a testifying medical expert, Dr. Karsh, and did not specify the weight accorded to the non-treating source opinion of Dr. Schemmel or to the treating source opinion of Dr. Radadiya; and that the opinion of Dr. Winkler, a second testifying medical expert, should not have been given any weight. The Commissioner argues that the medical opinions were properly considered. Specifically, she argues that Dr. Radadiya’s treating source opinion was properly considered and discounted, that Dr. Winkler’s opinion was properly accorded significant weight, and that Dr. Fantz’s opinion was properly accorded substantial weight. She tacitly admits that the ALJ did not specify the weight accorded to Dr. Schemmel’s opinion, but argues that “it is clear from the RFC that the ...