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) failed to explain
why he did not adopt Dr. Hunter's opinion that Plaintiff
should “avoid even moderate exposure” to noise,
despite according significant weight to Dr. Hunter's
opinion, the court ORDERS that the Commissioner's final
decision shall be REVERSED, and that judgment shall be
entered pursuant to the fourth sentence of 42 U.S.C. §
405(g) REMANDING this case for further proceedings consistent
with this decision.
applied for SSI benefits, alleging disability beginning June
17, 1999. (R. 14, 170). Plaintiff exhausted proceedings
before the Commissioner, and now seeks judicial review of the
final decision denying benefits. She argues that the ALJ
failed to explain why he did not adopt Dr. Hunter's
opinion that Plaintiff should “avoid even moderate
exposure” to noise, despite according significant
weight to Dr. Hunter's opinion; and that he erroneously
concluded that Plaintiff has no functional limitation in
concentration, persistence, or pace despite three medical
opinions that her concentration was impacted by her
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, with
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).
is necessary because the court finds error in the ALJ's
failure to explain why he rejected Dr. Hunter's opinion
regarding noise. Therefore, the court need not consider
whether the ALJ erred in evaluating Plaintiff's
concentration, persistence, or pace. Plaintiff may make her
arguments in this regard, if desired, on remand.
notes that the ALJ accorded significant weight to the
non-examining source medical opinion of Dr. Hunter, and that
the ALJ limited Plaintiff to an environment with no more than
moderate background noise. (Pl. Br. 7) (citing (R. 18, 21).
She argues that Dr. Hunter opined that Plaintiff must
avoid even moderate exposure to noise, and that the
ALJ failed his duty pursuant to Social Security Ruling (SSR)
96-8p to provide a narrative discussion explaining why he did
not adopt this opinion of Dr. Hunter which conflicts with the
ALJ's assessment of a need only to avoid more
than moderate noise. The Commissioner acknowledges that
“the ALJ did not adopt Dr. Hunter's more
restrictive limitation from exposure to even moderate
noise.” (Comm'r Br. 9). She argues that assessing
RFC is the ALJ's duty, and “the issue is whether
substantial evidence supports the ALJ's decision, not the
Plaintiff's position.” Id. at 10. She
points out that it is “the ALJ's duty to resolve
conflicts in the evidence.” Id. (citing
Perales, 402 U.S. at 401). Specifically, she argues:
Contrary to Plaintiff's contention that the ALJ failed to
explain why he provided less limitation in this regard (from
exposure to more than moderate noise) despite affording Dr.
Hunter's opinion significant weight, or to acknowledge
this discrepancy (Plaintiff's Brief at 7-8, 10), the
ALJ's finding in this regard was supported by
Plaintiff's improvement with hearing aids, as discussed
Id. at 9-10.
Plaintiff suggests, the Commissioner issued SSR 96-8p
“[t]o state the Social Security Administration's
policies and policy interpretations regarding the assessment
of residual functional capacity (RFC) in initial claims for
disability benefits.” West's Soc. Sec. Reporting
Serv., Rulings 143 (Supp. 2017). The Ruling also includes
narrative discussion requirements for the RFC assessment
which must include consideration of medical opinions
regarding plaintiff's capabilities. Id. at
149-50. If the ALJ's RFC assessment conflicts with a
medical source opinion, the ALJ must explain why he did not
adopt the opinion. Id. at 150. Here, as the
Commissioner recognizes, the ...