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) under sections 216(i) and 223 of the
Social Security Act. 42 U.S.C. §§ 416(i), and 423
(hereinafter the Act). Finding the Administrative Law
Judge's (ALJ) decision is not supported by the record
evidence and is inadequately explained, 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
applied for DIB, alleging disability beginning January 1,
2005. (R. 227).Plaintiff exhausted proceedings before the
Commissioner, and now seeks judicial review of the final
decision denying benefits. Plaintiff claims numerous errors
in the ALJ's consideration of her medically determinable
severe impairments and in her assessment of Plaintiff's
residual functional capacity (RFC).
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). 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 and
whether she 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; 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 RFC. 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the
sequential evaluation process. Id.
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 that remand is necessary here because the
ALJ's stated basis for according substantial weight to
the medical opinion of Dr. Byrd, the state agency medical
consultant, is nothing more than boilerplate which is
unreviewable by the court without impermissibly weighing that
opinion in the first instance. Although the court finds
little support for Plaintiff's remaining allegations of
error, it has determined that remand is necessary because of
the error in weighing Dr. Byrd's opinion. The court may
not provide an advisory opinion, and therefore it will not
address the remaining issues.
claims the ALJ erred in weighing the non-examining source
medical opinion of Dr. Byrd. She argues this is so because
Dr. Byrd's opinion regarding exertional limitations is
inconsistent with Plaintiff's testimony and with Dr.
Johnson's opinion (Pl. Br. 28), her opinion regarding
manipulative limitations is inconsistent with Plaintiff's
activities of daily living and with Dr. Johnson's
opinion, and her opinion regarding environmental limitations
is inconsistent with the fact Plaintiff has chronic
obstructive pulmonary disease (COPD). Id. at 30.
Plaintiff then argues that a state agency consultant's
opinion “may be given weight only to the extent [her]
opinions are supported by evidence in the record and the ALJ
must explain the weight given to such opinions.”
Id. at 31 (citing Soc. Sec. Ruling (SSR) 96-6p). She
argues that a boilerplate recitation without a
“thorough analysis linking the conclusions to record
evidence is improper.” Id. (citing Hardman
v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004)). The
Commissioner argues that the ALJ “reasonably explained
that she gave substantial weight to Dr. Byrd's opinion
(that Plaintiff could perform medium work with some
manipulative limitations) because it was well-explained and
grounded in the medical and nonmedical evidence of
record.” (Comm'r Br. 12-13).
Standard for Evaluating Medical Opinions
opinions may not be ignored and, unless a treating source
opinion is given controlling weight, they will be evaluated
in accordance with factors contained in the regulations. 20
C.F.R § 404.1527(c); SSR 96-5p, West's Soc. Sec.
Reporting Serv., Rulings 123-24 (Supp. 2016). 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 rendered; and (6) other
factors brought to the ALJ's attention which tend to
support or contradict the opinion. Watkins v.
Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003); 20
C.F.R. § 404.1527(c)(2-6); see also Drapeau v.
Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (citing
Goatcher v. Dep't of Health & Human Servs.,
52 F.3d 288, 290 (10th Cir. 1995)).
considering the factors, the ALJ must give reasons in the
decision for the weight she gives the opinion. Id.
350 F.3d at 1301. “Finally, if the ALJ rejects the
opinion completely, [s]he must then give ‘specific,
legitimate reasons' for doing so.” Id.
(citing Miller v. Chater, 99 F.3d ...