United States District Court, D. Kansas
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 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 April 4, 2004. (R. 22, 153-60). 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 failing to develop the record regarding his mental impairments; in evaluating the credibility of his allegations of symptoms resulting from his impairments; and in evaluating the medical opinions. He also claims the ALJ failed to apply the correct legal standard 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 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 he has a severe impairment(s), and whether the severity of his impairment(s) meets or equals the severity of any Listed 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 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's evaluation of the opinions of the medical sources is not sufficiently specific to make clear the weight the adjudicator gave to them, or the reasons for that weight. The court will not address Plaintiff's remaining allegations of error, and on remand Plaintiff may present those arguments to the Commissioner who will address the need for further development of the record or for further consideration of those arguments.
II. Evaluation of the Medical Providers' Opinions
Plaintiff notes that the ALJ discounted the medical opinions of treating physicians Dr. Childers and Dr. Franco because the opinions are "too restrictive, " but he argues this is erroneous because the only evidence used to support the finding was minimal daily activities which is insufficient as a matter of law to reject two concurring treating source opinions. (Pl. Br. 13-14) (citing Tolbert v. Heckler , 814 F.2d 1456, 1462-64 (10th Cir. 1987)). Next, Plaintiff argues that the report of Dr. Burger should have been rejected because Dr. Burger was provided no background information or medical records, because Dr. Burger's 2008 report was "stale" in light of later evidence, because the examination lasted only ten minutes and Plaintiff was not even asked to disrobe, and because Plaintiff presented evidence that Dr. Burger had had hospital privileges permanently revoked in the past and had been found not to be a credible witness in an earlier court proceeding. Id. at 15-18. Later in his Brief, Plaintiff noted that counselor Dennis completed an assessment noting several moderate mental limitations, but that the ALJ found Plaintiff's depression does not cause more than minimal limitations in his mental ability to work. Id. at 22-23. Plaintiff argues that it was error for the ALJ to discount counselor Dennis's findings on the basis that counselor Dennis is not an acceptable medical source, because Plaintiff was diagnosed with depression by two acceptable medical sources, and the regulations, rulings, and case law contemplate that the opinion of an "other medical source" may be used to consider the severity of and limitations resulting from medically determinable impairments. Id. at 23 (citing 20 C.F.R. § 404.1513(a); Soc. Sec. Ruling (SSR) 06-3p; Frantz v. Astrue , 509 F.3d 1299, 1301-02 (10th Cir. 2007)).
The Commissioner argues that the ALJ properly evaluated the opinions of the medical providers, properly gave greater weight to the opinion of Dr. Burger than to the opinion of either Dr. Childers or Dr. Franco, and properly assigned "significant weight" to the opinions of the nonexamining state agency medical sources. She points to evidence in the record tending to support the ALJ's findings and argues that Plaintiff did not dispute the ALJ's discounting of Mr. Dennis's opinion. Finally, she argues that there is no merit to Plaintiff's attempt to reject Dr. Burger's opinion on the basis of loss of medical privileges or other credibility issues.
While the court finds some merit in the arguments of both parties, it reminds the parties that its duty is to review the ALJ's decision, determine whether the correct legal standard was applied and, if so, to determine whether substantial record evidence supports the ALJ's determination. In the circumstances of this case, the court is unable to answer either question with regard to the medical source opinions, and it must remand for the Commissioner to ...