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
Supplemental Security Income (SSI) benefits under sections
1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C.
§§ 1381a, and 1382c(a)(3)(A) (hereinafter the Act).
Finding no error in the Administrative Law Judge's (ALJ)
decision, the court ORDERS that judgment shall be entered
pursuant to the fourth sentence of 42 U.S.C. § 405(g)
AFFIRMING the Commissioner's final decision.
applied for SSI benefits, alleging disability beginning
December 9, 2006. (R. 16, 207). Plaintiff exhausted
proceedings before the Commissioner, and now seeks judicial
review of the final decision denying benefits. She argues
that the ALJ erred in weighing the treating source opinion of
her treating psychologist, Mr. Prouse, LMLP (Licensed Masters
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. § 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 residual functional capacity (RFC). 20 C.F.R.
§ 416.920(e). This assessment is used at both step four
and step five of the sequential evaluation process.
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).
court finds no error and addresses Plaintiff's arguments
in the order addressed in her Social Security Brief.
acknowledges that the ALJ accorded significant weight to Mr.
Prouse's treating source opinion (Pl. Br. 9), but argues
that he committed a reversible error because “he did
not include many of the limitations [Mr.] Prouse opined [Ms.]
Frakes had.” Id. at 12. Specifically,
Plaintiff notes that Mr. Prouse opined that Plaintiff has
moderate limitations in the abilities to remember locations
and work-like procedures; to accept instructions and respond
appropriately to criticism from supervisors; to perform
activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances; and the ability
to complete a normal workday and workweek without
interruption from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number
and length of rest periods. Id. at 13 (citing R.
443-44). She argues that the RFC assessed does not include a
limitation on ability to remember locations and procedures,
or a limitation “related to responding to supervision
or communicating with supervisors, ” and that the
remaining moderately limited abilities accepted by the ALJ
“suggest that [Ms. Frakes] would have at least some
problems with pace, attendance, and working within a
schedule, ” but that the ALJ did not assess
“limitations related to any of these
deficiencies.” (Pl. Br. 13). Plaintiff argues that the
ALJ “unequivocally accepted the moderate limitations
addressed above but did not formulate an RFC that captured
all the concrete consequences of [Ms.] Frake's severe
impairments, ” and “provided no reason to exclude
the limitations contained in [Mr.] Prouse's opinion from
the RFC assessment.” Id. at 15. She then
argues that the hypothetical questions presented to the
vocational expert did not relate with precision all of
Plaintiff's limitations because it did not include all of
the moderate limitations opined by Mr. Prouse and accepted by
the ALJ. Id.
response, the Commissioner notes that the ALJ discounted Mr.
Prouse's opinions that Plaintiff would be off task ten
percent of the workday and would miss four days of work each
month because they are not consistent with the minimal
clinical signs and findings in the record. (Comm'r Br.
14). She argues that the inconsistencies relied upon by the
ALJ to discount this portion of Mr. Prouse's opinion
include inconsistencies with the clinical signs and findings
in Mr. Prouse's own treatment notes, and that those
reasons are supported by the record evidence. Id. at
14-15. She argues three reasons Plaintiff's allegation of
error should not be accepted. Id. at 16-18. She
notes that the Mental RFC Assessment form used by the Social
Security Administration (SSA) has a “Section I, Summary
Conclusions” containing 20 mental abilities identical
to the mental abilities at issue here and contained in
section II of the “Medical Source Statement -
Mental” completed by Mr. Prouse. (Comm'r Br. 16).
She points out that the SSA's Program Operations Manual
System (POMS) provides that Section I of the SSA Mental RFC
Assessment form is only a worksheet to help decide the
presence and degree of functional limitations and the
adequacy of the evidentiary documentation of those
limitations, but does not constitute the RFC assessment.
Id. She points out that Section III of the
Commissioner's Mental RFC Assessment form is the place
where the actual RFC assessment appears--where the medical
source explains the limitations documented in Section I in
terms of the functional limitations in the claimant's
mental abilities in a work setting. Id. She argues
that in light of this usage of the SSA's Mental RFC
assessment form, Mr. Prouse's opinion regarding mild
limitations or moderate limitations is not an opinion
regarding functional capacity because Mr. Prouse “did
not ultimately say what he believed Plaintiff's residual
functional capacity was.” Id. The Commissioner
next argues that the ALJ accounted for Mr. Prouse's
opinion regarding moderate limitations when he restricted
Plaintiff to unskilled work (simple to intermediate work) and
when he restricted Plaintiff to only occasional interaction
with co-workers and the public. Id. at 17. Finally,
the Commissioner argues that if the moderate limitations
opined by Mr. Prouse are not accounted for in the RFC
assessed, they are not supported by the record evidence.
Id. at 17-18.
replies to the Commissioner's first argument, asserting
that Mr. Prouse's opinion is in fact a medical opinion
because the POMS applies only to the SSA, not to a treating
medical source, and that the Tenth Circuit has clearly held
that check-box forms such as the Medical Source Statement
completed by Mr. Prouse are medical opinions which must be
weighed in accordance with the regulations. (Pl. Reply 1)
(citing POMS § DI 24510.060; Anderson v.
Astrue, 319 F. App'x 712, 723 (10th Cir. 2009); and
20 C.F.R. § 404.1527(d)). She next asserts that to argue
that the ALJ accounted for all parts of Mr. Prouse's
opinion is “simply irrational” because dealing
with co-workers and the public is not the same as accepting
and responding appropriately to supervisors, and a limitation
to unskilled work does not capture the totality of the
moderate limitations opined. Finally, she argues that the
Commissioner's argument that the record evidence does not
support the limitations opined is merely a post-hoc
is correct that a treating source opinion is generally
entitled to “particular weight” Doyal v.
Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). And, even
when it is not accorded controlling weight it is still
entitled to deference. Watkins v. Barnhart, 350 F.3d
1297, 1300-01 (10th Cir. 2003). Moreover, when an ALJ's
RFC assessment conflicts with a medical source opinion, the
ALJ must explain why he did not adopt the opinion, and how
any ambiguities and material inconsistencies in the evidence
were considered and resolved. Social Security Ruling (SSR)