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 error in the Commissioner's failure either to develop the record regarding diffusing capacity or to explain why further development is not necessary, 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.
Plaintiff applied for SSD and SSI, alleging disability beginning August 18, 2005. (R. 20, 153-63). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the decision denying benefits. She claims the Administrative Law Judge (ALJ) failed to develop the record regarding diffusing capacity of the lungs for carbon monoxide (DLCO or diffusing capacity); erred in weighing the medical opinions of record and in evaluating the credibility of allegations of disabling symptoms; did not comply with the requirements of Social Security Ruling (SSR) 96-8p in assessing residual functional capacity (RFC); and did not provide a proper step-four analysis.
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 relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401 (1971); see also, 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 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 failed to either develop the record regarding diffusing capacity or to explain why further development is not necessary. Because a proper development of the record may affect the evaluation of the medical opinions and the credibility determination, the court will not attempt to address Plaintiff's remaining arguments here. She may make such arguments to the Commissioner on remand.
III. Duty to Develop the Record
Plaintiff points out that the ALJ found that Plaintiff has "pulmonary insufficiency, " and that the Listing of Impairments recognizes three types of pulmonary insufficiency; chronic obstructive pulmonary disease (COPD), chronic restrictive ventilatory disease, or chronic impairment of gas exchange. (Pl. Br. 22) (citing (R. 22) and 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 3.02(A, B, C)). She points out that the medical expert, Dr. Puestow, testified at the hearing that the record did not contain evidence of diffusing capacity testing or of a fiber optic bronchoscopy, and that those tests would provide valuable information regarding Plaintiff's pulmonary insufficiency. At the end of the hearing, Plaintiff asked the ALJ to obtain the two tests, and the ALJ denied the request for bronchoscopy, stating that it was invasive and had already been done, but he stated that he would take the request for a diffusing capacity test under advisement. (R. 77). Plaintiff argues that by failing to order the DCLO test and by not stating why he refused to do so, the ALJ failed in his duty to develop the record. (Pl. Br. 23). The Commissioner argues that it is the ALJ's duty to inform himself of the facts relevant to the decision and to learn Plaintiff's version of the facts, and that he did so in this case. She argues that the ALJ is not required to order such tests before making a decision, and that "[t]here was sufficient evidence in the record for the ALJ to make a determination of Plaintiff's disability, and he did so here." (Comm'r Br. 9). In reply, Plaintiff argues that the regulations require that a DLCO should be purchased in a case where there is evidence of chronic pulmonary insufficiency but the existing evidence is not adequate to establish the level of functional impairment. (Reply 7).
A. Standard for Evaluating the ALJ's Duty to Develop the Record
The Commissioner "has broad latitude in ordering consultative examinations." Hawkins v. Chater , 113 F.3d 1162, 1166 (10th Cir. 1997).
[But, t]he ALJ has a basic obligation in every social security case to ensure that an adequate record is developed during the disability hearing consistent with the issues raised. This is true despite the presence of counsel, although the duty is heightened when the claimant is unrepresented. The duty is one of inquiry, ensuring that the ALJ is informed ...