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Jackson v. Berryhill

United States District Court, D. Kansas

October 30, 2017




         Plaintiff Penny Lynn Jackson seeks review of a final decision by the Commissioner of Social Security (“Commissioner”) denying her application for both disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act.[1] Plaintiff alleges error with regard to the Administrative Law Judge's (“ALJ”) assessment of her residual functional capacity. For the reasons stated below, the Court reverses and remands the Commissioner's decision.

         I. Factual and Procedural Background

         Plaintiff applied for disability insurance benefits and supplemental security income on June 23, 2014, alleging an onset date of May 1, 2014. The Commissioner denied Plaintiff's application upon initial review and upon consideration. Plaintiff timely requested a hearing before an ALJ. She appeared and testified at a hearing before ALJ Michael R. Dayton on March 10, 2016.

         The ALJ issued an unfavorable decision against Plaintiff on April 6, 2016. He concluded that Plaintiff was not disabled within the meaning of the Act. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, and Plaintiff timely filed an appeal with this Court pursuant to 42 U.S.C. § 405(g).

         II. Standard for Judicial Review

         Judicial review under 42 U.S.C. § 405(g) is limited to whether the ALJ's decision is supported by substantial evidence in the record as a whole and whether the ALJ applied the correct legal standards.[2] The Tenth Circuit has defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[3] In the course of its review, the Court may not re-weigh the evidence or substitute its judgment for that of the agency.[4] Additionally, the Court evaluates the ALJ's decision based solely on the reasons stated in that decision.[5]

         III. Legal Standards and Analytical Framework

         Under the Social Security Act, “disability” means the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.”[6] An individual “shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.”[7] The Commissioner has established a five-step sequential evaluation process to determine whether a claimant is disabled.[8] If the ALJ determines the claimant is disabled or not disabled at any step along the way, the evaluation ends.[9]

         The ALJ determined at step one that Plaintiff had not engaged in substantial gainful activity since the alleged onset date.[10] He determined at step two that Plaintiff has the following severe impairments: diabetes with neuropathy and gastric paresis, major depressive disorder, and post-traumatic distress disorder.[11] He determined at step three that Plaintiff's impairments did not meet or equal the severity of one of the listed impairments in 20 CFR 404.1520(d), 404.1525 and 404.1526.[12] Continuing, he determined that Plaintiff has the residual functional capacity (“RFC”) to perform light work, except:

[she] can lift and carry, push and pull 20 pounds occasionally, 10 pounds frequently. [She] can stand and/or walk a total of 4 hours in an 8 hour workday with normal breaks, and can sit a total of 6 hours in an 8 hour workday with normal breaks. She can climb ramps and stairs frequently; ladders, ropes and scaffolds occasionally. [She] can balance frequently; stoop occasionally; and can kneel, crouch, and crawl occasionally. She has no limitations in her ability to reach, handle, finger, and feel. [She] can have no more than frequent use of foot controls. [She] must avoid concentrated exposure to extreme cold and heat, and even moderate exposure to vibrations and hazards such as unprotected heights and hazardous machinery. [She] has the ability to understand and remember simple instructions, maintain concentration, persistence and pace to complete simple tasks in a work environment or work environment that limits contact with the general public and coworkers to occasional, and can adapt to work environment that is well structured, routine, and repetitive.[13]

         He determined at step four that Plaintiff was unable to perform her past relevant work as a certified nurse's aide, laundry worker, personal attendant/caregiver, or cashier-checker.[14] At step five, the ALJ concluded that Plaintiff was not disabled because considering her age, education, work experience, and RFC, she was capable of making a successful adjustment to jobs that exists in significant numbers in the national economy, such as mail clerk, bonder, or patcher/wirewrapper.[15]

         IV. Analysis

         Plaintiff challenges the ALJ's mental RFC, arguing it is not supported by substantial evidence. She claims the ALJ erred by: 1) giving significant weight to the opinion of a non-examining State agency consultant, while giving little weight to the opinions of her treating therapist and a consultative examiner; and 2) failing to address two of her former employers' statements on their Work Activities Questionnaires.

         A. Evaluation of Medical Opinions In Wickliffe v. Berryhill, [16] Judge Crow summarized the rules for weighing various medical opinions as follows:

The opinions of physicians, psychologists, or psychiatrists who have seen a claimant over a period of time for purposes of treatment are given more weight than the views of consulting physicians or those who only review the medical records and never examine the claimant. The opinion of an examining physician is generally entitled to less weight than that of a treating physician, and the opinion of an agency physician who has never seen the claimant is entitled to the least weight of all. When a treating source opinion is inconsistent with the other medical evidence, the ALJ's task is to examine the other medical source's reports to see if they outweigh the treating source's reports, not the other way around. Treating source opinions are given particular weight because of their unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations. If an ALJ intends to rely on a nontreating physician or examiner's opinion, he must explain the weight he is giving to it. The ALJ must provide a legally sufficient explanation for rejecting the opinion of treating medical sources in favor of non-examining or consulting medical sources.
A treating physician's opinion about the nature and severity of the claimant's impairments should be given controlling weight by the Commissioner if well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with other substantial evidence in the record. When a treating physician opinion is not given controlling weight, the ALJ must nonetheless specify what lesser weight he assigned the treating physician opinion. A treating source opinion not entitled to controlling weight is still entitled to deference and must be weighed using all of the following factors:
(1) the length of the treatment relationship and the 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.
After considering the above factors, the ALJ must give good reasons in his decision for the weight he ultimately assigns the opinion. If the ALJ rejects the opinion completely, he must then give specific, legitimate reasons for doing so.[17]

         In this case, the ALJ gave significant weight to the opinion of the State agency consultant, Richard Kaspar, Ph.D., who opined that Plaintiff has mild restrictions of activities of daily living and moderate difficulties in maintaining social functioning and in maintaining concentration, persistence, and pace. Conversely, he gave little weight to the opinions of Plaintiff's treating therapist and the State agency consultative examiner, who both opined that Plaintiff had significant or marked limitations in her ability to process and execute simple tasks and to interact with other people.

         1. The Consultative Examiner's Opinion

         Melvin Berg, Ph.D., a State agency consultant, examined and evaluated Plaintiff on August 6, 2014. He opined that:

The Claimant does demonstrate significant limitations in her ability to attend to and process simple information. Her ability to retain and execute simple instructions is limited. She does not persist at simple tasks, as she is prone to give up. The Claimant's ability to accommodate to the demands of superficial interpersonal interactions is likely limited, as she is irritable. She reported easily becoming annoyed with other people and losing her last job due to her inability to get along with coworkers.[18]

         The ALJ gave little weight to Dr. Berg's opinion because it was based primarily on Plaintiff's subjective complaints and was inconsistent with her reported ...

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