United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying Disability
Insurance benefits (DIB) 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 the Administrative Law Judge
(ALJ) did not apply the correct legal standard in weighing
the medical opinions of the state agency non-examining
physicians, 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 decision.
applied for DIB and SSI benefits, alleging disability
beginning January 15, 2012. (R. 11, 176, 180). Plaintiff
exhausted proceedings before the Commissioner, and now seeks
judicial review of the final decision denying benefits. He
argues that the Administrative Law Judge (ALJ) erred in
failing to weigh or otherwise discuss the medical opinions of
the state agency non-examining psychologists, Dr. Cohen and
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.
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.
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 residual functional capacity (RFC). 20 C.F.R.
§§ 404.1520(e), 416.920(e). This assessment is used
at both step four and step five of the sequential evaluation
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).
court finds that remand is necessary because the ALJ failed
to weigh the medical opinions of Dr. Cohen and Dr. Blum, and
thereby failed to resolve the ambiguities regarding
Plaintiff's mental capabilities for work.
parties agree that the ALJ erred in failing to specifically
discuss and weigh the medical opinions of Dr. Cohen and Dr.
Blum. (Pl. Br. 12-13 & n.1) (Comm'r Br. 6-7).
Plaintiff acknowledges that the real question for the court
is whether the error is harmless. (Pl. Br. 12). He points out
that both psychologists opined that Plaintiff “would
likely have difficulty with . . . work requiring sustained
attention over long periods of time, ” id. at
13 (quoting R. 75, 94), and that Plaintiff would need work
that requires less than frequent contact with the public.
Id. at 15 (citing R. 75, 94). He argues that the
error in failing to discuss the inability to maintain
sustained attention over long periods of time is not harmless
because although the Program Operations Manual System (POMS)
explains that most jobs require the ability to maintain
“attention for extended periods” involving the
general two-hour period between breaks, the psychologists
used a different term, “attention over long periods of
time, ” did not define the term, and the ALJ did not
resolve the ambiguity between the use of the different terms,
so a reader of the decision or a reviewing court is unable to
know with certainty whether the limitation opined by the
psychologists is the same as, more liberal, or more
restrictive than the usual requirement for most simple work.
(Pl. Br. 13-14). He argues that the failure to discuss the
restriction from frequent contact with the general public is
also not harmless because the ALJ did not assess any
restriction in social contact, and although he accorded
minimal weight to Dr. Seibert's opinion that Plaintiff
was extremely limited in the ability to interact
appropriately with the general public, he did not even
mention Dr. Cohen's and Dr. Blum's opinions regarding
moderate limitation in this ability and restriction
from only frequent contact with the general public.
Commissioner argues that the error is harmless, in the first
place, because “the ALJ's findings largely tracked
Drs. Cohen and Blum's findings . . . and there is no
meaningful conflict between their opinions, the RFC assessed
by the ALJ, and the unskilled jobs identified by the
vocational expert.” (Comm'r Br. 7). She argues that
although “a claimant must be able to ‘maintain
attention for extended periods of 2-hour segments, ' . .
. ‘concentration is not critical, '” there is
increased need for concentration and persistence in
semi-skilled and skilled work, so the ALJ's limitation to
unskilled jobs “can sufficiently account for a
claimant's moderate concentration difficulties.”
Id. at 8 (citing POMS DI 25020.010(B)(3)(d) and
(4)(b)). She argues that although the psychologists found
difficulties in sustaining concentration for “long
periods of time, ” they found Plaintiff could performs
jobs involving simple tasks in settings with low social
demands, which limitations are satisfied by the
representative jobs the ALJ accepted. Id. at 10.
Finally, she argues that even if the limitations opined by
Dr. Cohen and Dr. Blum are greater than those assessed by the
ALJ, the record evidence will not support such greater
limitations. Id. at 10-12.
court agrees with Plaintiff. The decision at issue contains
no mention whatsoever of Dr. Cohen or Dr. Blum or of their
opinions. The closest it comes to discussing their opinions
is in finding at step two of the evaluation that Plaintiff
has moderate difficulties in maintaining concentration,
persistence, or pace, and that “[t]he evidence
indicates that he has moderate limitations in his ability to
maintain attention and concentration for extended periods and
in his ability to carry out detailed instructions.” (R.
14) (citing Exs. 3A, 7A) (documents containing Dr.
Cohen's opinion, Ex. 3A (R. 53-55, 59-61), and Dr.
Blum's opinion, Ex. 7A (R. 87-89, 93-94)). But, as the
ALJ specifically noted, the step two findings which result
from applying the Commissioner's Psychiatric Review
Technique are not an RFC assessment, but are merely used to
rate the severity of mental impairments at steps two and
three of the sequential evaluation process. (R. 15).
Moreover, in the same documents cited by the ALJ, Dr. Cohen
and Dr. Blum found that Plaintiff also has moderate
difficulties in maintaining social functioning. (R. 54, 88).
But, in his step two analysis the ALJ found that Plaintiff
has only mild difficulties in social functioning,
and did not acknowledge the psychologists' contrary
opinion, there or elsewhere in the decision. This failure
produced an ambiguity in the decision which was never
resolved. Further, as Plaintiff points out in his Brief, the
ALJ specifically accorded only minimal weight to Dr.
Seibert's opinion regarding an extreme limitation in
Plaintiff's ability to interact appropriately with the
general public and did not provide any discussion of the
ALJ's step ...