United States District Court, D. Kansas
TRENITA Y. SELKIRK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
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) 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.
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
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.
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.
Commissioner uses the familiar five-step sequential process
to evaluate a claim for disability. 20 C.F.R. §§
404.1520, 416.920 (2015); 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 because the ALJ either
failed to accommodate or to explain how he had accommodated
Dr. Blum's 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.
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.
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.
The ALJ's Findings
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 ...