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 defendant Commissioner of Social Security ("Commissioner") that denied the claimant Pamela Sue Webb's ("Webb") Title II application for disability insurance benefits and her Title XVI application for supplemental security income ("SSI") under the Social Security Act ("Act"). Webb alleged a disability onset set date of May 15, 2003, based on a combination of impairments. The administrative law judge ("ALJ") filed her decision on March 19, 2012, finding that Webb was not under a disability from the alleged onset date through the date of her decision. (Tr. 12-23). With the Appeals Council's denial of Webb's request for review, the ALJ's decision stands as the Commissioner's final decision. The administrative record (Dk. 8) and the parties' briefs are on file pursuant to D. Kan. Rule 83.7.1 (Dks. 9, 14 and 15), the case is ripe for review and decision.
STANDARD OF REVIEW
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that the Commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." The court also reviews Awhether the correct legal standards were applied." Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Substantial evidence is that which Aa reasonable mind might accept as adequate to support a conclusion." Richardson v. Persales, 402 U.S. 389, 401 (1971) (quotation and citation omitted). AIt requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). The review for substantial evidence Amust be based upon the record taken as a whole" while keeping in mind Aevidence is not substantial if it is overwhelmed by other evidence in the record." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks and citations omitted). In its review of Awhether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, ... [the court] will not reweigh the evidence or substitute... [its] judgment for the Commissioner's." Lax, 489 F.3d at 1084 (internal quotation marks and citation omitted).
The court's duty to assess whether substantial evidence exists: "is not merely a quantitative exercise. Evidence is not substantial if it is overwhelmed by other evidence-particularly certain types of evidence (e.g., that offered by treating physicians)-or if it really constitutes not evidence but mere conclusion.'" Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985)). At the same time, the court Amay not displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Lax v. Astrue, 489 F.3d at 1084 (internal quotation marks and citation omitted). The court will Ameticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been made." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted).
By statute, a disability is the Ainability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to... last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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)(2)(A).
A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The first step entails determining whether the Aclaimant is presently engaged in substantial gainful activity." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted). The second step requires the claimant to show he suffers from a Asevere impairment, " that is, any Aimpairment or combination of impairments which limits [the claimant's] physical or mental ability to do basic work activities." Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (internal quotation marks and regulatory citations omitted). At step three, the claimant is to show his impairment is equivalent in severity to a listed impairment. Lax, 489 F.3d at 1084. "If a claimant cannot meet a listing at step three, he continues to step four, which requires the claimant to show that the impairment or combination of impairments prevents him from performing his past work." Id. Should the claimant meet his burden at step four, the Commissioner then assumes the burden at step five of showing "that the claimant retains sufficient RFC [residual functional capacity] to perform work in the national economy" considering the claimant's age, education, and work experience. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (internal quotation marks and citation omitted). Substantial evidence must support the Commissioner's showing at step five. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
At step one, the ALJ found that Webb had not engaged in substantial gainful activity since the alleged onset date of his disability. At step two, the ALJ found the following severe impairments: "affective mood disorder, degenerative disc disease of the lumbar spine, coronary artery disease, hypertension, and substance abuse." (Tr. 14). The ALJ excluded the plaintiff's impairment of the right wrist as non-severe. At step three, the ALJ did not find that the impairments, individually or together, equaled the severity of the Listing of Impairments. Before moving to steps four and five, the ALJ determined that Webb had the residual functional capacity ("RFC") to perform:
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) involving lifting and carrying up to 10 pounds occasionally, standing and walking for two hours in an eight-hour day, and sitting for six hours in an eight-hour day. She can occasionally perform all postural positions, except she can never climb ladders, ropes or scaffolds. She can understand and remember simple instructions to complete simple work-related tasks. She would work better with things, rather than people. She should have no contact with the public.
(Tr. 17). At step four, the ALJ found that the claimant had no past relevant work. (Tr. 22). At step five, the vocational expert provided testimony from which the ALJ concluded that, "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform." Id.
ISSUE ONE: PROPER EVALUATION OF MEDICAL OPINION EVIDENCE ON MENTAL IMPAIRMENTS
In 2009, the plaintiff began seeing her current treating physician, Dr. Regina Carolina at the Wyandot Mental Health Center for the initial diagnostic impressions of post-traumatic stress disorder, mood disorder and continuous symptoms of mood lability, anxiety and depression with a note to rule out bipolar disorder II. Dr. Carolina completed a medical source statement in April of 2011 noting that Webb had marked limitations in interacting with the public, supervisors and co-workers and in responding appropriately to pressures or changes in the typical work setting. (Tr. 757). In support of this, Dr. Carolina wrote: "Easily overwhelmed, tearful. Decompensates w/ (more) stressors. Poor coping skills." Id. In February of 2012, Dr. Carolina completed a second medical source statement with similar assessments but added marked limitations for understanding and carrying out detailed instructions and an extreme limitation for responding appropriately to work pressures in usual work setting. (Tr. 1062-63).
The plaintiff challenges that in her evaluation of Dr. Carolina's opinions, the ALJ "essentially disregarded all of the directives for evaluating the opinions of treating physicians" and failed to provide an "explanation supported by evidence in the record" for concluding that Dr. Carolina's opinions were not supported by medically acceptable techniques or were inconsistent with other evidence of record. (Dk. 9, p. 19). The plaintiff further points out that the ALJ did not state what lesser weight was given Dr. Carolina's opinions and did not provide an explanation supported by the record for accepting parts of the opinions and rejecting others. The plaintiff complains that the ALJ's evaluation of Dr. Carolina's opinions is conclusory, is based on the ALJ's own speculative conclusions or lay judgment, and is not ...