United States District Court, D. Kansas
SUSAN M. JONES, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This is an action reviewing the final decision of the defendant Commissioner of Social Security ("Commissioner") that denied the claimant Susan m. Jones' ("Jones") applications for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act") and supplemental security income benefits under Title XVI of the Act. Jones initially alleged an onset date of July 1, 2004, (R. 125), but at the hearing, she amended this date to August 14, 2008, which is after the administrative law judge's ("ALJ") decision on her prior application. (R. 26). After a hearing on the claimant's current applications, the ALJ filed his decision on November 23, 2010, finding the following severe impairments: fibromyalgia syndrome, possible chronic fatigue syndrome, one seizure, and depression/anxiety. The ALJ's conclusion was that Jones was not disabled as she had the residual functional capacity ("RFC") to perform some unskilled work at the light-exertion level. The Appeals Council denied Jones' request for review, so the ALJ's decision stands as the Commissioner's final decision. (R. 1-3). With the administrative record (Dk. 3) and the parties' briefs on file pursuant to D. Kan. Rule 83.7.1 (Dks. 9, 16, ad 17), the case is ripe for review and decision.
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that the Commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." The court also reviews "whether the correct legal standards were applied." Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Persales, 402 U.S. 389, 401 (1971) (quotation and citation omitted). "It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). The review for substantial evidence "must be based upon the record taken as a whole" while keeping in mind "evidence is not substantial if it is overwhelmed by other evidence in the record." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks and citations omitted). In its review of "whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, ... [the court] will not reweigh the evidence or substitute... [its] judgment for the Commissioner's." Lax, 489 F.3d at 1084 (internal quotation marks and citation omitted).
The court's duty to assess whether substantial evidence exists: "is not merely a quantitative exercise. Evidence is not substantial if it is overwhelmed by other evidence-particularly certain types of evidence (e.g., that offered by treating physicians)-or if it really constitutes not evidence but mere conclusion.'" Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)). At the same time, the court "may not displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Lax v. Astrue, 489 F.3d at 1084 (internal quotation marks and citation omitted). The court will "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been made." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted).
By statute, a disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to... last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. § 423(d)(2)(A).
A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The first step entails determining whether the "claimant is presently engaged in substantial gainful activity." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted). The second step requires the claimant to show he suffers from a "severe impairment, " that is, any "impairment or combination of impairments which limits [the claimant's] physical or mental ability to do basic work activities." Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (internal quotation marks and regulatory citations omitted). At step three, the claimant is to show his impairment is equivalent in severity to a listed impairment. Lax, 489 F.3d at 1084. "If a claimant cannot meet a listing at step three, he continues to step four, which requires the claimant to show that the impairment or combination of impairments prevents him from performing his past work." Id. Should the claimant meet his burden at step four, the Commissioner then assumes the burden at step five of showing "that the claimant retains sufficient RFC [residual functional capacity] to perform work in the national economy" considering the claimant's age, education, and work experience. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (internal quotation marks and citation omitted). Substantial evidence must support the Commissioner's showing at step five. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
At step one, the ALJ found that Jones had not engaged in substantial gainful activity from August 14, 2008, her amended onset date. At step two, the ALJ found the claimant to have the following severe impairments: "fibromyalgia syndrome, possible chronic fatigue syndrome, one seizure and depression/anxiety." (R. 14). The ALJ next determined that the medical records did not meet the criteria for the applicable listings and that there were no specific listings covering fibromyalgia and chronic fatigue syndrome. (R. 15).
Before moving to steps four and five, the ALJ determined that Jones has the following residual functional capacity ("RFC"):
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), including the ability to lift and/or carry 10 pounds frequently and 20 pounds occasionally and stand, walk, and/or sit for 6 hours in an 8 hour workday. The claimant can do occasional postural, but cannot climb ladders, ropes or scaffolds or be around hazards, such as dangerous machinery and unprotected heights. Due to her mental impairments, the claimant cannot have contact with the general public or perform detailed work or instructions, but she can have occasional contact with co-workers.
(R. 16). At step four, the ALJ accepted the vocational expert's testimony that this RFC left Jones unable to perform her past relevant work as an appraiser, salesperson, child-care worker and office worker. At step five, the vocational expert provided testimony from which the ALJ concluded that, "the clamant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy, " such as the unskilled light occupations of housekeeper, laundry sorter and optical goods assembler. (R. 20). A decision of "not disabled" was filed.
ERROR IN WEIGHING OPINION OF TREATING MENTAL SOURCES
In this circuit, it is well settled that "the opinions of physicians who have seen a claimant over a period of time for purposes of treatment are given more weight over the views of consulting physicians or those who only review the medical records and never examine the claimant." Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (internal quotation marks and citations omitted). A treating physician's opinion is entitled to such weight due to the unique perspective afforded in the treating relationship "that cannot be obtained from the objective medical findings alone." Id. As a general matter, the greatest weight is given to the treating physician's opinion with less to the examining physician and even less to an agency physician. Id. An ALJ is not to "pick and choose from a medical opinion, using only ...