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Gifford v. Colvin

United States District Court, D. Kansas

February 18, 2014

BOBBY GIFFORD, 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 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 SSD and SSI alleging disability beginning June 1, 2007. (R. 13, 147-60). 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 the medical opinions of both his treating psychiatrist and the non-treating psychologist, Dr. Mintz, and in evaluating the credibility of his allegations of disabling symptoms. He also claims that the residual functional capacity (RFC) assessed is not supported by substantial record evidence.

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 for Plaintiff. Id .; Haddock v. Apfel , 196 F.3d 1084, 1088 (10th Cir. 1999).

The court finds that remand is necessary because the record evidence does not support the ALJ's weighing of the medical opinions. Because remand is necessary in any case, the court will not now address Plaintiff's claims regarding credibility and RFC assessment, and Plaintiff may make those arguments to the Commissioner on remand.

II. Evaluation of the Medical Opinions

A. The Parties' Arguments

Plaintiff claims the ALJ erred in failing to accord great weight to the opinion of his long-time treating psychiatrist, Dr. El-Halawany, and in adopting the limitations opined by the non-treating psychologist, Dr. Mintz. He argues that despite the ALJ's contrary findings, the limitations assigned by Dr. Mintz are not compatible with the record, and the record supports Dr. El-Halawany's opinion. He argues that Dr. El-Halawany's opinion should have been accorded controlling weight, but if not, it should have been accorded greater weight at least. Much of Plaintiff's claim that the ALJ's RFC assessment is not supported by the evidence also rests on the argument that the ALJ erred in weighing the medical opinions. In that section of his brief, Plaintiff argues that the ALJ expressed a rationale for rejecting Dr. El-Halawany's second opinion dated in October 2010, but failed to evaluate Dr. El-Halawany's first opinion completed in May 2010:

The ALJ failed to even address this Medical Source Statement. While the ALJ noted Dr. El-Halaway's[2] second Medical Source Statement and summarily dismissed it as "reflect[ing] the symptomology that was presented during that period of decompensating..., " Dr. El-Halaway's earlier opinion, offered in May 2010 is not mentioned in the ALJ's decision except in passing. The ALJ offers no discussion of the weight offered Dr. El-Halaway's earlier opinion and essentially ignores this opinion except to state "The claimant's treating psychiatrist, Nabil A. El-Halaway, M.D., authored mental source statements providing marked limitations that are not supported by the overall medical records and are not given great weight." Beyond this ...

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