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Frakes v. Berryhill

United States District Court, D. Kansas

April 13, 2017

BETTY FRAKES, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         Plaintiff 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.

         I. Background

         Plaintiff 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 Level Psychologist).

         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. § 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. 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 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).

         The court finds no error and addresses Plaintiff's arguments in the order addressed in her Social Security Brief.

         II. Discussion

         Plaintiff 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.

         In 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.

         Plaintiff 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)[2]). 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 rationalization.

         Plaintiff 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) ...

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