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 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.
Plaintiff applied for SSD and SSI, alleging disability beginning May 31, 2000. (R. 18, 137-50). 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 severity of his mental impairments at step three of the Commissioner's five-step sequential evaluation process and erred in assessing residual functional capacity (RFC) by assessing insufficient limitations resulting from his borderline intellectual functioning and by weighing the medical source opinions erroneously.
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. Id .; Haddock v. Apfel , 196 F.3d 1084, 1088 (10th Cir. 1999).
The court finds that remand is necessary because the ALJ erroneously evaluated the medical source opinions. Therefore, the court will not provide an advisory opinion regarding the step three evaluation or the evaluation of borderline intellectual functioning. Plaintiff may present his arguments with regard to these alleged errors, if desired, to the Commissioner on remand.
II. Evaluation of the Medical Source Opinions
Plaintiff claims the ALJ erroneously rejected the medical source opinions of everyone who treated or examined Plaintiff for his mental impairments: Dr. Schwartz, the psychologist who provided a report of his psychological evaluation of plaintiff for the Social Security Administration; Ms. Martin, a psychiatric nurse-practitioner, who began treating Plaintiff for his mental impairments in July 2009, provided a medical source statement to the ALJ dated January 11, 2010 regarding limitations resulting from Plaintiff's mental impairments, and provided a letter to the Appeals Council dated July 27, 2010 clarifying the opinions expressed in her medical source statement; and Mr. Bremyer, a Licensed Clinical Professional Counselor, who provided therapy to Plaintiff beginning in July 2009, and provided a letter to the Appeals Council dated August 2, 2010, agreeing with the opinions expressed in Ms. Martin's medical source statement dated January 11, 2010.
The Commissioner argues that the ALJ properly evaluated and assigned appropriate weight to the medical source opinions of Dr. Schwartz; Dr. Fantz, a state agency psychologist who reviewed the record and completed a Psychiatric Review Technique form and a Mental RFC Assessment form for the Social Security Administration; Ms. Martin; and Dr. Warrender, a state agency psychiatrist who reviewed the record and affirmed the opinions of Dr. Fantz. The Commissioner's brief does not address the opinions of Ms. Martin and Mr. Bremyer presented for the first time to the Appeals Council after the ALJ issued his decision.
The court finds that remand is necessary because the decision of the Commissioner does not properly justify according greater weight to the opinions of the non-examining psychologist and psychiatrist over the opinions of the non-treating psychologist and the nurse-practitioner and counselor who provided medical and mental health treatment for Plaintiff. The court does not hereby intend to imply that on remand the opinions of the treating and non-treating healthcare providers must be accorded greater weight than those of the non-examining sources, but if the opinions of the non-examining sources are ...