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 the Administrative Law Judge (ALJ) erred in
considering and explaining his evaluation of the medical
opinions of the state agency psychologists, 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 with this decision.
applied for SSI benefits, alleging disability beginning
November 11, 1992. (R. 16, 157). Plaintiff exhausted
proceedings before the Commissioner, and now seeks judicial
review of the final decision denying benefits. He argues that
the ALJ erred in his determination that drug addiction or
alcoholism (hereinafter DAA) is a contributing factor
material to the determination of Plaintiff's disability,
and in failing to consider the “paragraph C”
criteria of Listings 12.04 and 12.06 when determining whether, if
Plaintiff stopped his substance use, his condition would meet
or equal a listed impairment.
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 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.
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 his 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 opinions of the state
agency psychologists. Therefore, it need not consider whether
it was reversible error to fail to consider the paragraph C
criteria of Listings 12.04 and 12.06. Plaintiff may make his
arguments in this regard on remand.
determined that Plaintiff is disabled, but he found that
there is in the record, medical evidence of DAA, and in
accordance with 42 U.S.C. § 1382c(a)(3)(J) he determined
that Plaintiff's DAA is a contributing factor material to
the determination of disability and that Plaintiff is not
disabled within the meaning of the Act. (R. 16).
Consequently, he denied Plaintiff's SSI application.
Id. at 30.
argues that the ALJ's materiality determination is not
supported by substantial evidence because he erroneously
relied on global assessment of functioning (GAF) scores, he
erroneously relied on Plaintiff's functioning while in a
highly structured treatment setting, and he improperly
separated Plaintiff's functioning as a result of DAA from
his functioning as a result of his co-occurring mental
impairments. (Pl. Br. 14-18). He argues that the ALJ
mischaracterized the reports of the state agency
psychologists when he relied upon those reports in support of
the functional limitations he assessed would be remaining if
Plaintiff stopped using drugs and alcohol. Id. at
19. Finally, he argues that the ALJ erred in weighing the
“other” medical source opinions of Ms. Duston,
Plaintiff's social worker, and Ms. Franklin,
Plaintiff's nurse practitioner. Id. at 19-21.
Commissioner argues that the ALJ's materiality
determination was a reasonable understanding of the record
evidence, that the evidence was conflicting and the ALJ
correctly performed his duty to resolve the conflicts.
(Comm'r Br. 3-4). She argues that GAF scores are properly
considered as one factor in assessing a claimant's
functioning and that the ALJ appropriately considered
Plaintiff's functioning during periods of abstinence from
drug or alcohol use, specifically considering the context of
those periods. (Comm'r Br. 4-6). She argues that the
record evidence demonstrates, contrary to Plaintiff's
argument, that the state agency psychologists' reports
were actually based on periods when Plaintiff abstained from
drugs and alcohol. Id. at 6-7. Finally, she argues
that the ALJ properly evaluated the opinions of Ms. Franklin
and Ms. Duston. Id. at 7-8.
court notes that the ALJ's explanation and application of
the legal standard applicable to a disability case involving
the issue of DAA is one of the best the court has seen in
many years reviewing Social Security disability cases. (R.
18-27). Nevertheless, the ALJ missed a significant fact
regarding the state agency psychologists' evaluation of
the medical evidence in this case, and consequently did not
recognize that his step three assessment, when considering
DAA, conflicts with the state agency psychologists'
medical opinions, did not explain why he did not adopt their
opinions, and did not ...