United States District Court, D. Kansas
PATRICK E. CLEMENT, Plaintiff,
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 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 failure of the "determination or decision" below to provide "specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, " which is "sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight, " Soc. Sec. Ruling (SSR) 96-2p, West's Soc. Sec. Reporting Serv., Rulings 115 (Supp. 2013), the court ORDERS that the Commissioner's 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 January 1, 2004. (R. 15, 136-46). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He claims that the Appeals Council erred in denying review of the Administrative Law Judge's (ALJ) decision, because the Council did not weigh the treating source medical opinion of Dr. Punswick in accordance with the controlling legal standard as explained in Watkins v. Barnhart , 350 F.3d 1297, 1300-01 (10th Cir. 2003). Plaintiff also claims that the ALJ erred both in evaluating Listing 1.04A at step three of the Commissioner's five-step sequential evaluation process and in propounding an erroneous hypothetical question to the vocational expert.
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 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 Commissioner acknowledges that since the Appeals Council considered the evidence presented for the first time after the ALJ's decision, and made it a part of the administrative record, then that evidence (Dr. Punswick's treating source opinion) must also be considered by the court upon judicial review of the ALJ's decision. (Comm'r Br. 9) (citing Chambers v. Barnhart , 389 F.3d 1139, 112 (10th Cir. 2004)). She argues, however, that even when the court considers that evidence, it must find that substantial record evidence supports the ALJ's finding that Plaintiff's condition does not meet or medically equal Listing 1.04A. Id. at 9-15. The Commissioner also argues that the hypothetical question presented to the vocational expert is not erroneous, both because the ALJ properly considered Listing 1.04A and found that it was not met or medically equaled, and because the hypothetical question properly included all of the limitations assessed in Plaintiff's RFC. Id. at 15-16. The Commissioner's arguments miss the point of Plaintiff's first argument-that remand is necessary because Dr. Punswick's treating source opinion has not been weighed in accordance with the correct legal standard. The court agrees with Plaintiff that remand is necessary because the correct legal standard was not applied to consideration of Dr. Punswick's treating source medical opinion.
The essence of Dr. Punswick's opinion is that Plaintiff's condition medically equals Listing 1.04A. Because Dr. Punswick's opinion has not been weighed in accordance with the correct legal standard, the Commissioner's argument (that substantial record evidence requires a finding that Listing 1.04A is not medically equaled) is premature, and resolution of that issue would require the court to weigh Dr. Punswick's opinion in the first instance to determine if it is worthy of controlling weight and, if not, to determine the weight of which it is worthy. The court is precluded from weighing medical opinions in the first instance. Therefore, the court may not consider the remaining issues raised in the parties' briefs because weighing Dr. Punswick's opinion is a condition precedent to deciding the other issues. Plaintiff may make his arguments in regard thereto to the Commissioner on remand.
II. The Appeals Council Determination Is Not Reviewable in This Case
In its "Notice of Appeals Council Action, " the Appeals Council considered Plaintiff's request for review of the ALJ's decision, "found no reason under [its] rules to review the Administrative Law Judge's decision, " and denied Plaintiff's request for review. (R. 7). Plaintiff claims "the Appeals Council erred by denying review" of the ALJ's decision below. (Pl. Br. 21). The "Notice of Appeals Council Action, " however, is not the final decision of the Commissioner, and the Council's determination to deny review is not subject to the court's review.
In 2000, the Supreme Court explained how a question regarding the "final decision of the Commissioner" is determined in accordance with the Act and the regulations promulgated thereunder.
The Social Security Act provides that "[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, ... may obtain a review of such decision by a civil action" in federal district court. 42 U.S.C. § 405(g). But the Act does not define "final decision, " instead leaving it to the SSA to give meaning to that term through regulations. See § 405(a); Weinberger v. Salfi , 422 U.S. 749, 766, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). SSA regulations provide that, if the Appeals Council grants review of a claim, then the decision that the Council issues is the Commissioner's final decision. But if, as [was the ...