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 Commissioner of Social Security denying the plaintiff disability insurance benefits and supplemental security income payments. The matter has been fully briefed by the parties.
I. General legal standards
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. The determination of 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 really constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992). The court should examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision and, on that basis, determine if the substantiality of the evidence test has been met. Glenn, 21 F.3d at 984.
The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that they have a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that they are not only unable to perform their previous work but cannot, considering their 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).
The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he or she is not working at a "substantial gainful activity." At step two, the agency will find non-disability unless the claimant shows that he or she has a "severe impairment, " which is defined as any "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant's impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do his or her previous work; unless the claimant shows that he or she cannot perform their previous work, they are determined not to be disabled. If the claimant survives step four, the fifth and final step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 124 S.Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Nielson, 992 F.2d at 1120; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.
Before going from step three to step four, the agency will assess the claimant's residual functional capacity (RFC). This RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. §§ 404.1520(a)(4), 404.1520(e, f, g); 416.920(a)(4), 416.920(e, f, g).
II. History of case
On June 15, 2012, administrative law judge (ALJ) John B. Langland issued his decision (R. at 15-36). Plaintiff alleges that he had been disabled since January 19, 2004 (R. at 15). Plaintiff meets the insured status requirements for social security disability benefits through March 31, 2009 (R. at 18). At step one, the ALJ found that plaintiff did not engage in substantial gainful activity after the alleged onset date (R. at 18). At step two, the ALJ found that plaintiff had numerous severe impairments (R. at 18). At step three, the ALJ determined that plaintiff's impairments do not meet or equal a listed impairment (R. at 18). After determining plaintiff's RFC prior to April 4, 2011 (R. at 19), the ALJ determined at step four that plaintiff was unable to perform past relevant work (R. at 33). At step five, the ALJ found that plaintiff, prior to April 4, 2011, can perform other jobs that exist in significant numbers in the national economy (R. at 33). Therefore, the ALJ concluded that plaintiff was not disabled prior to April 4, 2011 (R. at 35). The ALJ provided a different RFC beginning on April 4, 2011 (R. at 32), and based on that RFC, found that beginning on April 4, 2011, plaintiff could not perform other work in the national economy, and was therefore disabled (R. at 34-35).
III. Did the ALJ err in discounting the opinions of Dr. Genilo prior to April 4, 2011?
Dr. Genilo, a neurologist, began treating plaintiff on April 4, 2011 (R. at 775). In a statement prepared by counsel following a telephone conversation between counsel and Dr. Genilo (R. at 778), Dr. Genilo, on October 31, 2011, opined that plaintiff was too slow and lacked adequate judgment to function even at an unskilled competitive level. Plaintiff was found to be markedly limited in his ability to understand, remember, or carry out even short simple instructions, maintain attention and concentration for extended periods, remember locations and work-like procedures, sustain an ordinary routine without special supervision, perform at a consistent pace without an unreasonable number and length of rest periods, ask simple question or request assistance, respond appropriately to changes in the work setting, travel in unfamiliar places or use public transportation, set realistic goals, or make plans independently of others (R. at 777). Dr. Genilo opined that these limitations have existed since 2004 based on his review of the 2003 CT and the notes of Dr. Abbas from 2004 which noted objective evidence of the brain damage that caused the cognitive difficulties that he had observed (R. at 778).
On December 18, 2011, Dr. Moeller, a psychologist, prepared a psychological evaluation based on an exam performed on November 29, 2011 (R. at 781). He concluded that, at the time of the evaluation, plaintiff did not appear to have the necessary psychological skills to maintain simple, gainful employment (R. at 788). He found that plaintiff had moderate or marked impairments in dealing with complex instructions or decisions (R. at 793), that he was moderately limited in responding to usual work situations and changes in a work setting, and markedly limited in interacting appropriately with supervisors or co-workers (R. at 794).
The ALJ gave substantial weight to the opinions of Dr. Moeller, which he found to be congruent with the opinion of Dr. Genilo regarding plaintiff's abilities at the present time. The ALJ therefore gave substantial weight to the opinions of Dr. Genilo as of April 4, 2011, when he first started treating plaintiff. The ALJ concluded that the record did not support the opinion of Dr. Genilo that plaintiff's limitations, as expressed in Dr. Genilo's report, go back to 2004. The ALJ stated that it is ...