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 no error in the Commissioner's decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.
Plaintiff applied for SSD and SSI, alleging disability beginning September 7, 2006. (R. 15, 113-20). Plaintiff exhausted proceedings before the Commissioner, and seeks judicial review of the final decision denying benefits. He claims that the Administrative Law Judge (ALJ) erred by failing to allow counsel to question the vocational expert regarding the opinion of Plaintiff's treating physician, by failing to assess borderline intellectual functioning as a severe impairment in this case, and in weighing the medical opinions of his treating physician and his treating therapist. He argues that because of these errors, the court should remand for an immediate award of benefits.
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 court finds no error in the decision below and affirms that decision. It addresses each issue in the order it would appear when applying the sequential evaluation process, and begins with the last allegation of error in Plaintiff's Brief-that the ALJ erred by interfering with counsel's efforts to question the vocational expert and by adopting an adversarial role at the hearing. (Pl. Br. 38-41).
II. The ALJ's Interference with Cross-Examination
Plaintiff quotes the hearing transcript of an exchange which occurred when counsel began to question the vocational expert regarding mental limitations opined by Plaintiff's treating physician, Dr. Lassey. (Pl. Br. 39-40). In that exchange, after the ALJ determined that Dr. Lassey was not a mental health specialist, he stated that he would not allow counsel to ask such questions because the physician "has no expertise to even submit anything dealing with the mental issues." (R. 859). Counsel responded that Dr. Lassey is "a medical doctor who treats the Plaintiff and has prescribed psychotropic medications." Id . At that point, the ALJ stopped questioning Dr. Lassey's expertise with mental health issues but began questioning the duration and frequency of Plaintiff's treatment relationship with Dr. Lassey. Id. at 859-60.
Plaintiff argues that it was error for the ALJ to prevent counsel's line of questioning, because a medical doctor is qualified to treat his patient's mental health issues, because the opinion of a physician who has done so is worthy of consideration, and because the vocational implications of that opinion should be placed into the record and considered by the ALJ. (Pl. Br. 41). Plaintiff argues that by "preventing Plaintiff's counsel from questioning the expert vocational witness regarding the findings of the treating physician, the ALJ failed to accord Plaintiff a full and fair hearing, turning said hearing into an adversarial process." Id . The Commissioner argues that this alleged error does not require remand because the ALJ rejected the functional limitations assessed by Dr. Lassey, and even if this line of questioning had been allowed, it would not have affected the outcome of the decision. (Comm'r Br. 18).
The court finds that Plaintiff has shown no error because Plaintiff cannot show that the ALJ prevented counsel from questioning the vocational expert with regard to the issue of mental health opinions. To be sure, the ALJ expressed the intent not to allow that line of questioning because Dr. Lassey is not a mental health specialist. But, Plaintiff explained that Dr. Lassey is a medical doctor who has treated Plaintiff's mental health issues, and the ALJ did not finally decide that issue-apparently because he also questioned whether Dr. Lassey actually meets the definition of a "treating source"-and he began asking questions in that regard. Plaintiff never asked the ALJ for a definitive ruling whether he might question the vocational expert regarding Dr. Lassey's opinion regarding mental limitations.
In response to the ALJ's questioning regarding the treating source issue, counsel explained that Dr. Lassey had a two-year treating relationship with Plaintiff, and Plaintiff testified that he had seen Dr. Lassey "twice a month maybe" in that two years. (R. 860). The ALJ responded that the records do not reflect treatment by Dr. Lassey twice a month. Id . In a portion of the hearing transcript which Plaintiff did not quote in his Brief, Plaintiff admitted that he had seen Dr. Lassey "maybe six, seven" times in two or three years. Id . Counsel then explained that some of the records may be labeled as Family Practice Associates, where Dr. Lassey is an associate, he implied that the ALJ may have missed some of Dr. Lassey's treatment records because of that, and he suggested that even though some of the treatment at Family Practice Associates was provided by other people, those records should also be attributed to Dr. Lassey. Id . But, the ALJ never made a decision whether to allow the line of questioning. At ...