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Robinson v. Colvin

United States District Court, Tenth Circuit

December 2, 2013

ABE ROBINSON, 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 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 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.

I. Background

Plaintiff applied for both SSD and SSI alleging disability beginning March 16, 2009. (R. 12, 111-12, 118-20). 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 assessing residual functional capacity (RFC) by failing to assign weight to the medical opinions of a non-treating psychologist, John Keough, [2] and a non-examining psychologist, Dr. Isenberg; by failing to consider a third party statement properly; by failing to accord proper weight to the disability determination made by the Veterans Affairs Department; and by failing to accord proper weight to Plaintiff’s allegations of symptoms resulting from his impairments. Finally, he argues that the ALJ erred by failing to make specific on-the-record findings regarding the physical and mental demands of Plaintiff’s past relevant work at step four of the sequential evaluation process.

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 she 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 failed to weigh the medical opinions of the psychologists, Mr. Keough and Dr. Isenberg, properly. Because the court determines remand is necessary, Plaintiff may make his remaining arguments to the Commissioner on remand, and the court will not address them here.

II. Evaluation of the Medical Opinions

Plaintiff argued that the ALJ erred as a matter of law because she failed to identify how she weighed the medical opinions of Mr. Keough and Dr. Isenberg in assessing Plaintiff’s RFC. He acknowledged the ALJ’s statement that the RFC she assessed was generally consistent with Dr. Isenberg’s opinion, but argued that because she failed to specify the weight given the opinions, “it is impossible for th[e] court to determine how the opinions were treated in the formulation of the RFC by the ALJ.” (Pl. Br. 11). The Commissioner argued that the ALJ properly considered and discussed the opinions of both Dr. Isenberg and Mr. Keough. She urged that Plaintiff’s argument that the ALJ must specify the weight accorded to each medical opinion elevates form over substance because “the intent of the regulations is to require an ALJ to consider and evaluate each medical opinion, ” and because “the Tenth Circuit recently noted, the ALJ’s decision is sufficient if it permits us [the reviewing court] to follow the adjudicator’s reasoning.” (Comm’r Br. 18, 19) (quotation marks omitted) (citing and quoting Soc. Sec. Rulings (SSR) 96-2p, 96-5p, 96-8p, 06-3p, and Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012)).

The Commissioner pointed out the ALJ’s statement that her RFC finding was generally compatible with the limitations assessed by Dr. Isenberg, and she pointed out Dr. Isenberg’s statement that Mr. Keough’s conclusions were weighted heavily. She pointed out that the “ALJ noted that her RFC finding was generally compatible with Dr. Isenberg’s limitations and supported by [Mr.] Keough’s opinion.” (Comm’r Br. 20). She explained how in her view Dr. Isenberg’s and Mr. Keough’s opinions are consistent with the RFC assessed by the ALJ, and concluded by arguing that “Plaintiff has not pointed to any significant limitations that the ALJ did not account for in her RFC determination.” Id. at 22.

In his Reply Brief, Plaintiff argued that “the general principle that the ALJ is not required to discuss every piece of evidence does not control when an ALJ has opinion evidence from a medical source, ” and the “mere mention of an opinion does not satisfy the regulatory requirements, ” but that unless a treating source opinion is given controlling weight, “the ALJ ‘must’ explain in the decision the weight given to the opinions of state agency medical or psychological consultants.” (Reply 1) (citing Knight v. Astrue, 388 Fed. App’x 768, 771 (10th Cir. 2010); Ray v. Astrue, No. 12-4029-SAC, 2013 WL 557175 (D. Kan. Feb. 13, 2013); 20 C.F.R. §§ 404.1527, 416.927; and SSR 96-2p, 96-6p, 96-8p). He concluded by pointing out that the RFC assessed is inconsistent with Mr. Keough’s opinion that Plaintiff is mildly to moderately impaired in the abilities to adapt to the environment of others, or to ...

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