United States District Court, D. Kansas
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
Plaintiff filed his application for social security disability on March 3, 2005 (R. at 17). On December 20, 2007, administrative law judge (ALJ) Edmund C. Were issued the 1st ALJ decision denying plaintiff disability benefits (R. at 17-32). Following the decision of the Appeals Council on June 6, 2009 denying review of the ALJ decision (R. at 14-16), plaintiff sought judicial review of the agency decision. On August 17, 2010, Judge Lungstrum reversed the decision of the Commissioner and remanded the case for further hearing (R. at 524-548).
On November 18, 2011, administrative law judge (ALJ) James Harty issued the 2nd ALJ decision (R. at 474-493). Plaintiff alleges that he had been disabled since November 1, 2003 (R. at 474). Plaintiff is insured for disability insurance benefits through March 31, 2009 (R. at 477). At step one, the ALJ found that plaintiff did not engage in substantial gainful activity since the alleged onset date (R. at 477). At step two, the ALJ found that plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine status/post discectomy, major depressive disorder, and alcohol dependence (R. at 477). At step three, the ALJ determined that plaintiff's impairments, including the substance abuse disorder, meet a listed impairment (R. at 479). If the plaintiff stopped the substance use, the ALJ found that plaintiff's impairments would not meet a listed impairment (R. at 480). After assessing plaintiff's RFC (R. at 481), the ALJ found at step four that, absent substance use, plaintiff would be unable to perform past relevant work (R. at 492). At step five, the ALJ found that plaintiff could still perform a significant number of jobs in the national economy (R. at 492-493). The ALJ concluded that substance use disorder is a contributing factor material to the determination of disability because the plaintiff would not be disabled if he stopped the substance use. Because the substance use is a contributing factor material to the determination of disability, the plaintiff has not been disabled at any time from the alleged onset date through the date of the ALJ decision (R. at 493).
III. Did the ALJ err in his consideration of the medical evidence?
Plaintiff first argues that the ALJ erred by failing to identify the weight given the opinions of Dr. Morrow or Dr. Oommen (Doc. 15 at 27). Dr. Oommen prepared a consultative examination and assessment on October 15, 2005 (R. at 271-275), and Dr. Morrow prepared a consultative examination and assessment on February 19, 2010 (R. at 870-872).
The ALJ referenced both examinations in his decision (R. at 484, 485, 486, 489-490). The ALJ cited to the findings of Dr. Oommen to discount opinions of Dr. Goertzen (R. at 489-490). The ALJ also cited to the findings of Dr. Morrow to discount plaintiff's allegations (R. at 486). However, neither Dr. Oommen nor Dr. Morrow offered any opinions regarding plaintiff's ability to work. Thus, neither offered an opinion that could be evaluated by the ALJ for purposes of making RFC findings. Endriss v. Astrue, 506 Fed.Appx. 772, 778 (10th Cir. Dec. 26, 2012) (although physical therapist indicated that plaintiff had limitations in claimant's cervical range of motion, she did not opine as to how those limitations would affect claimant's ability to function; ...