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Murray v. Colvin

United States District Court, D. Kansas

August 19, 2014

BRIAN K. MURRAY, 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 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.

I. Background

Plaintiff applied for SSD and SSI, alleging disability beginning October 8, 2008. (R. 13, 146-58). In due course, Plaintiff exhausted proceedings before the Commissioner and now seeks judicial review of the final decision denying benefits. He alleges that the Administrative Law Judge (ALJ) erred in evaluating the record medical opinions, failed to provide a narrative discussion regarding the residual functional capacity (RFC) assessment as required by Social Security Ruling (SSR) 96-8p, and failed to properly define her terms, and that the ALJ's RFC is not supported by substantial 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 she 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 (2011);[1] 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 erred in weighing the medical opinions. Because a proper weighing of medical opinions necessarily involves a new assessment of Plaintiff's RFC, and because each of the remaining errors alleged by Plaintiff relates to RFC assessment, the court will not address those errors in this opinion. Plaintiff may make his arguments in that regard to the Commissioner on remand.

II. Evaluation of the Medical Opinions

Plaintiff claims the ALJ erred in evaluating the opinion of his treating psychologist, Dr. Schemmel, because she failed to consider the global assessment of functioning (GAF) scores in Dr. Schemmel's treatment notes which were in the range of 41-50 and were consistent with the GAF scores assigned by other treating sources. He also claims error in that the ALJ purported to accord significant weight to the opinion of the nonexamining state agency psychologist, Dr. Blum, but rejected Dr. Blum's opinion that Plaintiff is moderately limited in the ability to interact appropriately with the general public without explaining her basis for doing so.

The Commissioner argues that the ALJ properly evaluated the medical opinions. With regard to Dr. Schemmel's opinion she argues that Dr. Schemmel's primary opinion was provided as a report of a consultative examination performed at the request of the state agency, and that Dr. Schemmel did not begin treating Plaintiff until thereafter, so that opinion, formed after only one examination, is not a treating source opinion within the meaning of the Act and the regulations. She argues that the ALJ did not "omit" portions of Dr. Schemmel's opinion, because the GAF scores alleged by Plaintiff to be omitted were a part of Dr. Schemmel's treatment records and not a part of the medical opinion contained within the report of his consultative examination. Moreover, she argues that GAF scores are designed to be used by practitioners in making treatment decisions, that the Commissioner has declined to endorse GAF scores for use in disability evaluation, and that the GAF scores cited by Plaintiff are contained within records of treatment providers who generally agree that Plaintiff does not have significant limitations in mental functioning. Finally, she argues that the ALJ provided several reasons for discounting Dr. Shemmel's opinion in addition to the GAF score.

The Commissioner also argues that the ALJ properly explained why she accorded significant weight to Dr. Blum's opinion. She acknowledges Dr. Blum's opinion that Plaintiff had moderate limitations in the abilities to carry out detailed instructions and to interact appropriately with the general public, and argues that the "ALJ assigned significant weight to the opinion because it was consistent with substantial ...


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