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Selkirk v. Berryhill

United States District Court, D. Kansas

November 2, 2017

TRENITA Y. SELKIRK, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge.

         Plaintiff 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's (ALJ) decision 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 herewith.

         I. Background

         Plaintiff applied for SSI and DIB, alleging disability beginning December 3, 2012. (R. 14, 227, 235). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She argues that the ALJ erred in his residual functional capacity (RFC) assessment in weighing the medical opinions, in evaluating her shoulder and headache pain, with an inadequate narrative discussion, and in failing to explain why he did not include in the RFC assessment all of the mental limitations he credited.

         The 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 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); see also, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the [Commissioner's], even if the evidence preponderates against the [Commissioner's] decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). 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. §§ 404.1520, 416.920 (2015)[2]; 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.

         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 that remand is necessary because the ALJ either failed to accommodate or to explain how he had accommodated Dr. Blum's[3] opinion that Plaintiff “may experience difficulty sustaining focus over long periods of time.” (R. 119, 136). Because a proper evaluation of Dr. Blum's opinion regarding sustained concentration will require a reassessment of Plaintiff's RFC, the court need not definitively evaluate the remaining RFC errors alleged by Plaintiff, but Plaintiff may make her arguments in that regard to the Commissioner on remand.

         II. Discussion

         Plaintiff argues that because the ALJ did not state the weight he gave to the state agency psychologists' opinions but accepted them as supported and consistent with the record evidence, “it appears that he simply adopted [them] as entitled to controlling weight.” (Pl. Br. 16). She points out that only a treating source opinion may be entitled to controlling weight, and that it is reversible error to accord such weight to the opinion of a nonexamining source. Id., at 16-17. She argues that the reasons given to accept the opinions are mere boilerplate, leaving the court to reweigh the opinions in order to determine the bases for the ALJ's acceptance. Id., at 17. Finally, she argues that the record evidence does not support the opinions in any case, noting that the psychologists could not review the evidence which was submitted after their opinions were rendered, and arguing that they did not explain the bases for their opinion and that their summaries were factually inaccurate. Id., at 17-18. In a later section of her Brief where she argued that the ALJ erred in assessing RFC, Plaintiff also argues that the ALJ failed to explain why he rejected “Dr. Blum's opinion that the plaintiff is moderately limited in her ability to accept instructions and respond appropriately to criticism from supervisors, ” id., at 31 (citing R. 119, 136), and his opinion “that the plaintiff may experience difficulty sustaining focus over long periods of time.” Id., at 32.

         The Commissioner argues that the ALJ provided valid, supported reasons for crediting Dr. Blum's opinions. (Comm'r Br. 10). She argues that because the ALJ's RFC assessment did not exactly match Dr. Blum's opinion, it is clear he did not accord it controlling weight but that he accorded it significant or substantial weight. Id. She argues that Plaintiff's challenge to the degree of evidentiary support for the opinion is merely a request for the court to reweigh the evidence. Id., at 11. Lastly, she argues that Plaintiff's argument relating to her ability to accept instructions and respond to criticism from supervisors misunderstands the proper use of the agency's Mental Residual Functional Capacity Assessment, that Dr. Blum explained his opinion regarding social interaction limitations, and that the ALJ appropriately addressed those limitations when he “limited Plaintiff to work involving only simple tasks, no interaction with the public, and only ‘brief' and ‘incidental' interaction with coworkers.” Id., at 11-12.

         A. The ALJ's Findings

         At step two of his consideration, the ALJ found that Plaintiff has a severe combination of impairments which includes mental impairments of mood disorder, panic disorder, personality disorder, and psychotic disorder. (R. 16). At step three he applied the Commissioner's psychiatric review technique, and determined that Plaintiff's mental impairments, individually, or in combination, do not meet or medically equal the criteria of any listed mental impairments. (R. 17). He found that Plaintiff has mild restrictions in activities of daily living, moderate difficulties in both social functioning and ...


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