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
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 error in the Administrative Law Judge's (ALJ)
evaluation of the medical source opinions, 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, consistent
applied for SSI benefits, alleging disability beginning
November 1, 2012. (R. 12, 165). Plaintiff exhausted
proceedings before the Commissioner, and now seeks judicial
review of the final decision denying benefits. Plaintiff
argues that the ALJ erred in weighing the medical opinions of
the consultative examiners and the “other”
medical source opinion of her nurse practitioner.
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.
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. § 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.
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
erroneously evaluated the medical source
claims the ALJ's reasons for discounting the opinions of
the consultative examiners and of her nurse practitioner are
insufficient. This is so in Plaintiff's view because in
discounting Dr. Allen's opinion the ALJ did not explain
how Plaintiff's different presentation at Dr.
Hackney's examination should discount Dr. Allen's
examination, because Dr. Allen formed her opinion while
accounting for the problems with Plaintiff's presentation
and Plaintiff's lack of effort at the examination, and
because the ALJ erred in finding that an inability to perform
job-related functions cannot be inferred from Plaintiff's
not being “used to” demonstrating the
self-discipline and organization necessary to most jobs. With
regard to discounting Dr. Hackney's opinion, Plaintiff
argues that Dr. Hackney specifically considered the
difference between Plaintiff's presentation at his
examination and its inconsistencies with Dr. Allen's
examination when formulating his opinion, and although the
ALJ found Dr. Hackney's opinion inconsistent with the
other record evidence he did not point to any specific
inconsistencies. Finally, she argues that the ALJ's
reasons for discounting nurse practitioner Coleman's
opinion are erroneous because he did not cite specific
activities engaged in by Plaintiff which are inconsistent
with the opinion, he ignored those of Ms. Coleman's
treatment notes which are consistent with her opinions, and
he did not point to specific evidence demonstrating that the
global assessment of functioning (GAF) score assessed by Ms.
Coleman is inconsistent with her opinion regarding
Commissioner begins her argument by pointing out that the ALJ
considered the inconsistencies in Plaintiff's statements,
noting that Dr. Hackney found her to be exaggerating and
malingering, was passive-aggressive and uncooperative, and
she provided information to Dr. Allen which was quite
different than that which she provided to him. (Comm'r
Br. 7). The Commissioner noted that Dr. Allen's
assessment was similar to Dr. Hackney's, specifically
that she questioned Plaintiff's effort, and noted
Plaintiff was vague. The Commissioner argues that
“[t]he ALJ appropriately considered the results of
these two examinations when he found that Plaintiff's
statements were inconsistent with the rest of the
record.” (Comm'r Br. 8). She argues that
“Plaintiff does not contest the ALJ's findings
regarding the consistency of her statements, and has
therefore waived any such argument.” Id. The
court perceives this as an argument that Plaintiff cannot
contest the ALJ's finding that her “statements
concerning the intensity, persistence and limiting effects of
[her] symptoms are not entirely credible.” (R. 17). The
Commissioner next argues that the ALJ reasonably discounted
portions of each of the medical source opinions. She argues
that Plaintiff's exaggerations and inconsistent
statements justify rejecting the psychologists' opinions
that Plaintiff cannot do a job or get along with others.
(Comm'r Br. 10). She argues that “it was valid for
the ALJ to consider evidence that Plaintiff's symptoms
were not as disabling as she alleged when deciding what
weight to accord medical opinions, ” because
“here Dr. Hackney found Plaintiff was malingering, that
she overstated her symptoms, and that she refused to perform
on testing.” (Comm'r Br. 11) (citing Riviera v.
Colvin, 629 F. App'x 842, 845 (10th Cir. 2015)). She
argues that it was appropriate to discount the opinions
because they were inconsistent with the other record
evidence, the objective findings, and Plaintiff's
treatment notes. Id. She argues that the state
agency psychologists also noted the inconsistencies and their
opinions bolster the ALJ's findings. Id. at 13.
Finally, she argues that Ms. Coleman's extreme opinions
are inconsistent with her treatment notes and with the GAF
score assessed, and that the ALJ reasonably relied upon the
fact that Plaintiff's activities are inconsistent with
Ms. Coleman's opinion.
The ALJ's Findings
Commissioner's Brief suggests, the ALJ found
Plaintiff's allegations of symptoms “are not
entirely credible, ” and he explained his reasons for
that finding, including “that there are inconsistencies
between the claimant's allegations and the medical
evidence of record.” (R. 20). ...