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Kinnard v. Berryhill

United States District Court, D. Kansas

November 28, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.


          John W. Lungstrum United States District Judge

         Plaintiff 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 proceedings.

         I. Background

         Plaintiff 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.

         The 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. 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. § 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. 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 erroneously evaluated the medical source opinions.[2]

         II. Discussion

         Plaintiff 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 functioning.

         The 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.

         A. The ALJ's Findings

         As the 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). ...

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