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Duensing v. Colvin

United States District Court, D. Kansas

March 13, 2015

AMBER M. DUENSING, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of the final decision of the Commissioner of Social Security Administration ("Commissioner") denying her application for disability insurance benefits under Title II and Title XVI of the Social Security Act, as amended. Plaintiff has filed a brief (Doc. 9) seeking judicial review of the Commissioner's decision. The Commissioner has filed a brief in opposition (Doc. 14) and submitted the administrative record contemporaneously with her Answer (Doc. 8). When plaintiff filed her reply brief (Doc. 15), this matter became ripe for determination. Having reviewed the administrative record and the parties' briefs, the Court affirms the Commissioner's decision.

I. Factual Background and Procedural History

Plaintiff applied for Social Security Disability ("SSD") benefits and supplemental security income ("SSI") under Title II and Title XVI of the Social Security Act, 18 U.S.C. §§ 401-434, 1381-1385, alleging disability beginning November 1, 2010. (R. 11) The Social Security Administration denied plaintiff's application on March 1, 2011 ( Id. at 76-80), and again denied it upon reconsideration on June 15, 2011 ( Id. at 84-92). Plaintiff requested a hearing by an Administrative Law Judge ("ALJ") ( Id. at 93-98), who held a hearing on August 16, 2012 ( Id. at 11, 22). During that hearing, plaintiff amended the date of her disability onset to July 1, 2011. ( Id. at 11, 29) On September 19, 2012, the ALJ issued a decision denying plaintiff's application for SSD benefits because he determined that plaintiff was not disabled from July 1, 2011 through the date of the decision under sections 216(i) and 223(d) of the Social Security Act ( Id. at 11-19). 42 U.S.C. §§ 416(i), 423(d). The ALJ also denied plaintiff's application for SSI benefits for the same reason under section 1614(a)(3)(A) of the Social Security Act (R. 11-19). 42 U.S.C. § 1382c(a)(3)(A).

Plaintiff filed an appeal with the Appeals Council on October 12, 2012. (R. 7) The Appeals Council denied plaintiff's appeal on July 26, 2013. ( Id. at 1-5) Plaintiff has exhausted the proceedings before the Commissioner and now seeks judicial review of the final decision denying her SSD and SSI benefits.

II. Legal Standard

A. Standard of Review

Section 405(g) of Title 42 of the United States Code grants federal courts authority to conduct judicial review of final decisions of the Commissioner and "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision... with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). Judicial review of the Commissioner's denial of benefits is limited to whether substantial evidence in the record supports the factual findings and whether the Commissioner applied the correct legal standards. Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); 42 U.S.C. § 405(g).

"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" but it must be "more than a scintilla, " although it need not be a preponderance. Lax, 489 F.3d at 1084 (citations and internal quotation marks omitted). While the courts "consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, " they neither reweigh the evidence nor substitute their judgment for the Commissioner's. Id. (citation and internal quotation marks omitted). But they also do not accept "the findings of the Commissioner" mechanically or affirm those findings "by isolating facts and labeling them substantial evidence, as the court[s] must scrutinize the entire record in determining whether the Commissioner's conclusions are rational." Alfrey v. Astrue, 904 F.Supp.2d 1165, 1167 (D. Kan. 2012) (citation omitted). When determining whether substantial evidence supports the Commissioner's decision, the courts "examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision." Id. (citation omitted). "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." Lawton v. Barnhart, 121 F.Appx. 364, 366 (10th Cir. 2005) (quoting Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987)).

A "failure to apply the proper legal standard may be sufficient grounds for reversal independent of the substantial evidence analysis." Brown ex rel. Brown v. Comm'r of Soc. Sec., 311 F.Supp.2d 1151, 1155 (D. Kan. 2004) (citing Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994)). But such a failure justifies reversal only in "appropriate circumstances"-applying an improper legal standard does not require reversal in all cases. Glass, 43 F.3d at 1395; accord Lee v. Colvin, No. 12-2259-SAC, 2013 WL 4549211, at *5 (D. Kan. Aug. 28, 2013) (discussing the general rule set out in Glass ). Some errors are harmless and require no remand or further consideration. See, e.g., Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161-63 (10th Cir. 2012); Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004); Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).

B. Disability Determination

Claimants seeking SSD and SSI benefits carry the burden to show that they are disabled. Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009) (citation omitted). In general, [1] the Social Security Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

The Commissioner follows "a five-step sequential evaluation process to determine disa-bility." Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (discussing 20 C.F.R. § 404.1520 (govern-ing claims for disability insurance benefits) and § 416.920 (governing claims for supplemental security income)). As summarized by the Tenth Circuit, this familiar five-step process is as follows:

Step one requires the agency to determine whether a claimant is presently engaged in substantial gainful activity. If not, the agency proceeds to consider, at step two, whether a claimant has a medically severe impairment or impairments.... At step three, the ALJ considers whether a claimant's medically severe impairments are equivalent to a condition listed in the appendix of the relevant disability regulation. If a claimant's impairments are not equivalent to a listed impairment, the ALJ must consider, at step four, whether a claimant's impair-ments prevent [the claimant] from performing [the claimant's] past relevant work.

Even if a claimant is so impaired, the agency considers, at step five, whether [the claimant] possesses the sufficient residual functional capability [RFC] to perform other work in the national economy.

Wall, 561 F.3d at 1052 (citations and internal quotation marks omitted); accord 20 C.F.R. § 404.1520(b)-(g). The claimant has the "burden of proof on the first four steps, " but the burden shifts to the Commissioner "at step five to show that claimant retained the RFC to perform an alternative work activity and that this specific type of job exists in the national economy.'" Smith v. Barnhart, 61 F.Appx. 647, 648 (10th Cir. 2003) (quoting Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). This analysis terminates if the Commissioner determines at any point that the claimant is or is not disabled. Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).

III. Discussion

The ALJ found that plaintiff has the following "severe impairments:" fibromyalgia, disorder of the back, disorder of the heart, affective disorder, anxiety disorder, and PTSD. (R. 13) However, the ALJ concluded that plaintiff does not have an impairment or combination of impairments that meets the severity of one of the listed impairments in 20 C.F.R. Part 404. ( Id. at 13-14) Instead, the ALJ found that plaintiff has the RFC

to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except the work must be a simple, repetitive, routine job as stress free as possible, with an SVP of 2; she must be allowed a sit/stand option of 4 hours each at will; only occasional bending; no kneeling, crawling, crouching or squatting; no lifting from the floor level; work must be on a smooth level surface with no use of foot controls; no repetitive overhead lifting or reaching with the right shoulder; no repetitive movement of the neck; no extremes of hot or cold; and work must be in a controlled humidity area.

( Id. at 15) Based on that RFC, the ALJ determined that plaintiff was unable to perform any past relevant work. ( Id. at 18) Still, based on plaintiff's age, education, work experience, and RFC, the ALJ found that "there are jobs that exist in significant numbers in the national economy that the claimant can perform." ( Id. at 18)

Plaintiff challenges the ALJ's findings in four ways. She argues that (1) the ALJ erred as a matter of law by applying an incorrect legal standard; (2) the ALJ failed to assign weight to all the opinions of record; (3) the ALJ's determination of plaintiff's RFC is not supported by the substantial evidence of the record; and (4) the ALJ did not sustain the Commissioner's burden at step five. The Court addresses each argument in turn.

A. The ALJ's Use of the "Preponderance of Evidence" Standard

Plaintiff argues that the ALJ imposed an improper legal standard in his assessment of the evidence. Plaintiff claims that the ALJ's use of a "preponderance of evidence" standard is not the correct legal standard. (R. 18) Instead, she contends, the ALJ should have applied the "substantial evidence" standard. But, as defendant correctly points out, the "substantial evidence" standard defines the standard of review that the Court must employ when reviewing the ALJ's decision. Mays, 739 F.3d at 571; Lax, 489 F.3d at 1084; 42 U.S.C. § 405(g). The "substantial evidence" standard does not apply to the ALJ's determination. Instead, the Commissioner's regulations require the "administrative law judge [to] base the decision on the preponderance of the evidence offered at the hearing or otherwise included in the record." 20 C.F.R. §§ 404.953(a), 416.1453(a) (emphasis added). Thus, the ALJ did not err by applying the preponderance of the evidence standard in his decision.

B. The ALJ's Evaluation of Medical Opinions

Plaintiff next asserts that the ALJ failed to identify the weight he assigned to the medical opinions of the state agency nonexamining doctors and some of the consulting doctors. Specifically, plaintiff argues that the ALJ ignored the medical opinions of Dr. Singh, Dr. Neufeld, Dr. Suansilppongse, Dr. Warren, and Dr. Fantz. Defendant concedes that the ALJ's decision fails to state the weight given to these medical opinions, but defendant argues that, even if the ALJ had considered the medical findings of these five doctors, he would not have concluded that plaintiff is disabled. Thus, defendant argues, the ALJ's error is harmless and does not require remand.

1. Standard for Evaluation of Medical Opinions

The applicable regulations require the ALJ to consider all medical opinions. See 20 C.F.R. § 404.1527(c). The ALJ also must discuss the weight assigned to such opinions. See id. § 404.1527(e)(2)(ii) ("[T]he administrative law judge must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant or other program physician, psychologist, or other medical specialist, as the administrative law judge must do for any opinions from treating sources, nontreating sources, and other nonexamining sources who do not work for us.").

"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s) including [a claimant's] symptoms, diagnosis and prognosis, what [a claimant] can still do despite impairment(s), and [a claimant's] physical or mental restrictions."[2] 20 C.F.R. § 404.1527(a)(2). The regulations identify three types of "acceptable medical sources": (1) treating sources, i.e., medical sources who have treated or evaluated the claimant or have had "an ongoing treatment relationship" with the claimant; (2) nontreating sources, i.e., medical sources who have examined the claimant but lack an ongoing treatment relationship; and (3) nonexamining sources, i.e., medical sources who render an opinion without examining the claimant. See id. § 404.1502; Pratt v. Astrue, 803 F.Supp.2d 1277, 1282 n.2 (D. Kan. 2011). The Commissioner generally gives more weight to opinions from examining sources than to opinions from nonexamining sources. 20 C.F.R. § 404.1527(c)(1). And the Commissioner generally gives more weight to treating sources because

these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.

Id. § 404.1527(c)(2).

a. Treating Sources

The Commissioner will give a medical opinion of a treating source controlling weight when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(c)(2). The ALJ must consider these two factors when determining whether a treating physician's medical opinion "is conclusive, i.e., is to be accorded controlling weight, ' on the matter to which it relates." Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011) (citation omitted). First, the ALJ must consider whether such an opinion is well-supported. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). If it has adequate support, then next the ALJ must "confirm that the opinion is consistent with other substantial evidence in the record." Id. And an ALJ "may decline to give controlling weight to the opinion of a treating physician where he articulate[s] specific, legitimate reasons for his decision." Raymond v. Astrue, 621 F.3d 1269, 1272 (10th Cir. 2009) (citation and internal quotation marks omitted).

The ALJ's inquiry does not end by determining that a medical opinion does not deserve controlling weight. See Krauser, 638 F.3d at 1330; Watkins, 350 F.3d at 1300.

Even if a treating opinion is not given controlling weight, it is still entitled to deference; at the second step in the analysis, the ALJ must make clear how much weight the opinion is being given (including whether it is being rejected outright) and give good reasons, tied to the factors specified in the cited regulations for this particular purpose, for the weight assigned.

Krauser, 638 F.3d at 1330; accord Watkins, 350 F.3d at 1300-01. Unless the ALJ gives the treating source opinion controlling weight, it must evaluate the medical opinion in accordance with factors contained in the regulations. 20 C.F.R. § 404.1527(c); SSR 96-5p, 1996 WL 374183, at *1, 3. Those factors are

(1) length of treatment relationship and frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is ...

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