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 under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the decision.
Plaintiff applied for SSD, alleging disability beginning November 15, 2008. (R. 12, 133-37). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He alleges the Administrative Law Judge (ALJ) erred in finding that his condition does not meet or equal Listing 11.03; improperly rejected the treating source opinion of Dr. Mullinix, substituted his own medical judgment for that of Dr. Mullinix, and placed controlling weight on the state agency doctors' opinions; should have recontacted Dr. Mullinix or ordered a consultative examination regarding Plaintiff's seizures; did not consider Plaintiff's limitations resulting from his impairments and improperly assumed that Plaintiff would only be off task about 10% of the time; and failed to conduct a determination whether Plaintiff's impairments are medically equivalent to a Listed Impairment.
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 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).
Although Plaintiff's arguments are somewhat jumbled and do not necessarily follow a logical sequence, the court will attempt to address each argument in an order which reduces the number of times the court relies upon the ALJ's findings on an issue with regard to which Plaintiff alleges the ALJ erred before the court has considered that alleged error. Because Plaintiff's argument with regard to Listing 11.03 relies upon allegations of error in the ALJ's weighing of the medical opinions, the court begins its analysis with consideration of the weight assigned to the opinion evidence.
II. Evaluation of the Opinion Evidence
Plaintiff claims the ALJ erred in weighing the medical opinion of Dr. Mullinix, his treating neurologist, and improperly assigned "controlling weight" to the state agency physicians' opinions. He argues that the ALJ misunderstood the medical records of Dr. Mullinix and erroneously substituted his lay opinion for that of the physician even though "he admits that Dr. Mullinix made an inadvertent error in her otherwise controlling authority report." (Pl. Br. 9). The court does not agree.
On August 3, 2011, Dr. Mullinix provided a five-section "Medical statement regarding [Plaintiff's] seizures." (R. 449). In section one she noted that Plaintiff suffered from generalized seizures, myoclonic seizures, and staring seizures. Section two asked for the "[a]pproximate frequency of convulsive seizures, " and Dr. Mullinix checked the block, "[m]ore than once a day." Id . Section three asked for the "[a]pproximate frequency of non-convulsive seizures, " and Dr. Mullinix crossed out the entire section. In section four, Dr. Mullinix stated that Plaintiff had "[e]xcellent" compliance with treatment, and in section five she indicated that cognitive impairment was a side effect of Plaintiff's medications. Id.
The ALJ explained his evaluation of Dr. Mullinix's opinion:
Janis [sic] Mullinix, M.D., the claimant's medical provider, indicated that the claimant has multiple types of seizures, including generalized seizures, myoclonic seizures, and staring (Exhibit 18F, p.l). However, Dr. Mullinix indicated the claimant has convulsive seizures more than one a day and never has non-convulsive seizures. This is inconsistent with the medical record and the claimant's own testimony. As a result, it appears Dr. Mullinix inadvertently reversed the "checkboxes" when completing this form. Accordingly, that portion of the form receives little weight, though the rest of the form is credited.
The ALJ's finding is supported by the record evidence. Dr. Mullinix's records from May 2009 through August 2011 record only two grand mal seizures-in February and October 2010 (R. 414, 466, 469)-and daily "myoclonic jerks" (R. 414, 421, 466) or "daily little spells in which his hands shake as he is falling asleep." (R. 426). Clearly, Dr. Mullinix did not intend to assert that Plaintiff has zero non-convulsive seizures and more than one convulsive seizure every day. Therefore, it was correct for the ALJ to credit the physician's opinions regarding types of seizures, compliance with treatment, and cognitive impairment as a side effect of medications, while according little weight to the portion of the form regarding daily convulsive seizures and zero non-convulsive seizures.
Plaintiff agrees with the ALJ's assessment regarding section two of Dr. Mullinix's form, noting that the ALJ recognized the physician's answer in section two was inadvertent, but he argues that Dr. Mullinix intended to mark section three to indicate that Plaintiff experienced non-convulsive seizures more than once a day. (Pl. Br. 7). However, Plaintiff has not shown that the ALJ found otherwise. The ALJ did not substitute his own opinion for that of Dr. Mullinix, rather, he appears to have given effect to Dr. Mullinix's "actual" opinion. The ALJ recognized that Plaintiff's seizure disorder was a severe impairment (R. 14), and that he has infrequent grand mal seizures (R. 17, 18), and more frequent myoclonic jerks or staring seizures. (R. 15, 17, 18). This is consistent with Dr. Mullinix's form-even as Plaintiff understands it, and with the weight the ALJ accorded to that form. Although the ALJ points to some record evidence "which is not consistent with reports of daily petit mal seizures" (R. 18), he accepted that "claimant has some continued seizure activity that includes myoclonic jerks or staring' episodes, " and he found "some evidence of staring or petit mal seizures [is] credible." (R.18). Moreover, the ALJ found that Plaintiff has moderate limitations in concentration, persistence, and pace, and "may have brief episodes totaling up to 10% of the workday in which he is off-task due to symptom manifestation (of underlying seizure & cognitive disorder)." (R. 16) (underline added). The court notes that up to 10% of a workday totals as much as 48 minutes each day of being off-task due to cognitive disorder, myoclonic jerks, or staring seizures.
Plaintiff argues that the ALJ should have contacted Dr. Mullinix for an "explanation as to why she inadvertently checked box 2 instead of box 3." (Pl. Br. 8). However, as both the ALJ and Plaintiff agree, Dr. Mullinix's checking of box 2 instead of box 3 was clearly inadvertent. Therefore, there is no reason to contact Dr. Mullinix. Contrary to Plaintiff's argument, and as discussed above, the ALJ did not ignore Dr. Mullinix's findings. He evaluated them, and as to her actual, intended findings, he "credited" them-indicating that he accepted them. (R. 18).
The fact that the ALJ also accorded significant weight to the opinion of the examining psychologist, Dr. Smith, and to the opinions of the state agency physicians and psychologists does not mean that he gave controlling weight or greater weight to those opinions. The court does not find, and Plaintiff does not cite to, any of those opinions which is inconsistent with or which cannot be accepted alongside of Dr. Mullinix's opinion. Moreover, the ALJ specifically noted that he had assessed additional limitations beyond those opined by the state agency physicians because of the potential hazards that could result from Plaintiff's seizures. (R. 18).
Plaintiff appears to be of the opinion that the mere presence of non-convulsive seizures occurring more than once a day is conclusive of disability, and that if the ALJ had credited Dr. Mullinix's opinion to that affect he would have found that Listing 11.03 is met, and would have approved Plaintiff's application. (Pl. Br. 7-8) (If Dr. Mullinix had checked box 3 instead of box 2 "[P]laintiff's DIB application surely would have been granted by the ALJ, as [P]laintiff meets Listing 11.03 based on Dr. Mullinix's evaluation."). As will be demonstrated in the court's consideration of Plaintiff's argument that his condition meets Listing 11.03, the mere ...