United States District Court, D. Kansas
DAWN M. BLEVINS, 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 Commissioner of Social Security denying the plaintiff disability insurance benefits and supplemental security income payments. The matter has been fully briefed by the parties.
I. General legal standards
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards. Glenn v. Shalala , 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. The determination of 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 really constitutes mere conclusion. Ray v. Bowen , 865 F.2d 222, 224 (10th Cir. 1989). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan , 794 F.Supp. 1045, 1047 (D. Kan. 1992). The court should examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision and, on that basis, determine if the substantiality of the evidence test has been met. Glenn , 21 F.3d at 984.
The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that they have a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that they are not only unable to perform their previous work but cannot, considering their 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).
The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he or she is not working at a "substantial gainful activity." At step two, the agency will find non-disability unless the claimant shows that he or she has a "severe impairment, " which is defined as any "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant's impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do his or her previous work; unless the claimant shows that he or she cannot perform their previous work, they are determined not to be disabled. If the claimant survives step four, the fifth and final step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas , 124 S.Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan , 992 F.2d 1118, 1120 (10th Cir. 1993). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Nielson , 992 F.2d at 1120; Thompson v. Sullivan , 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson , 987 F.2d at 1487.
Before going from step three to step four, the agency will assess the claimant's residual functional capacity (RFC). This RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. §§ 404.1520(a)(4), 404.1520 (e, f, g); 416.920(a)(4), 416.920 (e, f, g).
II. History of case
This case has a very long history. Plaintiff filed for disability benefits on January 9, 2003 (R. at 1201). On April 19, 2006, administrative law judge (ALJ) Jesse H. Butler issued the 1st decision denying plaintiff benefits (R. at 48-54). Plaintiff sought judicial review of the decision. On March 4, 2008, based on defendant's motion to remand, the decision of the Commissioner was reversed and the case was remanded back for further hearing after it was discovered that the tape recording of the administrative hearing was blank, preventing the preparation of a proper court record (R. at 56-60).
On May 13, 2009, a second decision was issued by ALJ Guy E. Taylor, again denying plaintiff disability benefits (R. at 31-42). Plaintiff again sought judicial review of the decision. On March 8, 2011, Judge Lungstrum issued an order reversing the decision of the Commissioner and remanding the case for further hearing (R. at 1200-1220).
On September 20, 2011, administrative law judge (ALJ) Guy E. Taylor issued the 3rd ALJ decision (R. at 1157-1175). Plaintiff alleges that she had been disabled since May 4, 2001 (R. at 1157). Plaintiff is insured for disability insurance benefits through June 30, 2003 (R. at 1159). At step one, the ALJ found that plaintiff did not engage in substantial gainful activity since the alleged onset date (R. at 1159). At step two, the ALJ found that plaintiff has the following severe impairments: fibromyalgia, bilateral carpal tunnel syndrome, Raynaud's syndrome, status post lumbar spine fusion, chronic obstructive pulmonary disease, edema, major depressive disorder, and an anxiety disorder (R. at 1159). At step three, the ALJ determined that plaintiff's impairments do not meet or equal a listed impairment (R. at 1160). After determining plaintiff's RFC (R. at 1162), the ALJ determined at step four that plaintiff is unable to perform past relevant work (R. at 1173). At step five, the ALJ determined that plaintiff could perform other jobs that exist in significant numbers in the national economy (R. at 1173-1174). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 1174-1175). Plaintiff has again sought judicial review of the decision.
III. Did the ALJ err in the weight given to the opinions of Dr. Tramp, a treating physician, and Dr. McGehee, a consultative examiner?
The opinions of physicians, psychologists, or psychiatrists who have seen a claimant over a period of time for purposes of treatment are given more weight than the views of consulting physicians or those who only review the medical records and never examine the claimant. The opinion of an examining physician is generally entitled to less weight than that of a treating physician, and the opinion of an agency physician who has never seen the claimant is entitled to the least weight of all. Robinson v. Barnhart , 366 F.3d 1078, 1084 (10th Cir. 2004). When a treating source opinion is inconsistent with the other medical evidence, the ALJ's task is to examine the other medical source's reports to see if they outweigh the treating source's reports, not the other way around. Treating source opinions are given particular weight because of their unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations. If an ALJ intends to rely on a nontreating physician or examiner's opinion, he must explain ...