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Gerard v. Colvin

United States District Court, D. Kansas

May 20, 2014

CYNTHIA M. GERARD, Plaintiff,
v.
CAROLYN W. COLVIN, 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 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.

I. Background

Plaintiff applied for SSD, alleging disability beginning July 14, 2010. (R. 18, 104-05). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She alleges the Administrative Law Judge (ALJ) erred in evaluating the medical opinions of Dr. Goering and Dr. Parry; failed to assess functional limitations in maintaining concentration, persistence, or pace, or in Plaintiff's ability to use her hands and fingers; and erred by making a credibility determination which is unsupported by the 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 she has a severe impairment(s), and whether the severity of her 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 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 her 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 erred in evaluating the medical opinions. Having found error requiring remand, the court will not assess the additional error's alleged in Plaintiff's brief. She may make those arguments, if desired, to the Commissioner on remand.

II. Evaluation of Medical Opinions

The ALJ's discussion of the medical opinion evidence occupied two paragraphs in his decision:

As for the opinion evidence, on September 28, 2010, a State agency single decision maker (SDM), Emily Brinkmeyer, reviewed the claimant's medical records and completed a physical residual functional capacity (PRFC) assessment (Exhibit B2A [(R. 49-54)]). In the PRFC, Ms. Brinkmeyer opined the claimant could lift and carry ten pounds frequently and twenty pounds occasionally, sit for six hours in an eight-hour day, and stand or walk for six hours in an eight-hour day (Exhibit B2A/2 [(R. 50)]). Ms. Brinkmeyer also opined the claimant could perform all postural activities on an occasional basis (Exhibit B2A/3 [(R. 50-51)]). Furthermore, Ms. Brinkmeyer opined the claimant has no visual, manipulative, or communicative workplace limitations, but she should avoid concentrated exposure to hazards (Exhibit B2A/3-4 [(R. 51-52)]). Ms. Brinkmeyer is not, for purposes of this decision, an acceptable medical source. However, on June 14, 2011, Emil Goering, M.D., affirmed Ms. Brinkmeyer's opinions in the PRFC (Exhibit B8F [(R. 256)]). Dr. Goering is an acceptable medical source and his opinion is consistent with the record as a whole. Accordingly, Dr. Goering's opinion is given very substantial weight.

In July 2011 and January 2012, the claimant's treating physician, Amy Parry, D.O., completed paperwork for the claimant to get a handicap-parking placard (Exhibits B12F/28 [(R. 298)] and B14F/8 [(R. 376)]). In the paperwork, Dr. Parry stated the claimant could not walk one-hundred feet without stopping to rest (Exhibits B12F/28 and B14F/8). However, Dr. Parry's assertion directly conflicts with the claimant's reports that she walks one mile for exercise per day (Exhibit B14F/21 [(R. 389)]). ...


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