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Davidson v. Berryhill

United States District Court, D. Kansas

March 20, 2018

CARL LESTER DAVIDSON III, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge

         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) finding medical improvement related to Plaintiff's ability to work on June 1, 2013, 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) between June 1, 2013 and February 28, 2016, and finding that Plaintiff became disabled again within the meaning of the Act on February 29, 2016. Finding no error as alleged by Plaintiff in the Commissioner's final decision (the Appeals Council decision dated February 6, 2017), the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.

         I. Background

         On February 22, 2010, Plaintiff was found disabled as of March 17, 2009. (R. 82). Thereafter, based on a continuing disability review, it was determined that Plaintiff was no longer disabled as of June 1, 2013. (R. 78). Plaintiff disagreed with this determination, sought reconsideration, and after the reconsideration decision yielded the same result, sought a hearing before an administrative law judge (ALJ). (R. 135, 157-67, 171-72). After that hearing, an ALJ issued a decision on June 18, 2014 finding that Plaintiff's disability ended as of June 1, 2013. (R. 82-93). Plaintiff sought Appeals Council review of the decision (R. 212-14), which the Council granted and remanded the case for an ALJ to also adjudicate the period after June 1, 2013. (R. 103-04). On remand, a different ALJ held further proceedings and issued a decision on September 14, 2016 finding that Plaintiff's disability ended on June 1, 2013 and that he remained not disabled within the meaning of the Act through the date of that decision. (R. 109-21). Again, Plaintiff sought review of the ALJ's decision. (R. 15-21). Once again, on December 29, 2016 the Appeals Council granted Plaintiff's request and notified Plaintiff of its intent to decide that Plaintiff's disability ended on June 1, 2013, but that he became disabled again on February 29, 2016. (R. 266-69). The Appeals Council issued a decision to that effect on February 6, 2017. (R. 7-12).[1] Plaintiff filed a Complaint in this court seeking review of the Commissioner's decision on March 6, 2017. (Doc. 1).

         Proceedings are now complete and the case is ripe for decision. Plaintiff argues that the decision is unsupported by the evidence because the ALJ erroneously accorded excessive weight to the medical opinions of the state agency consultants and insufficient weight to the medical opinions of Plaintiff's primary care physician and his chiropractor, and that the mental residual functional capacity (RFC) is unsupported because the ALJ erroneously rejected the opinion of Plaintiff's therapist.

         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 Commissioner's factual findings are supported by substantial evidence in the record and whether she 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 has promulgated an eight-step sequential process to evaluate termination of benefits. Hayden v. Barnhart, 374 F.3d 986, 988 (10th Cir. 2004); Jaramillo v. Massanari, 21 Fed.Appx. 792, 794 (10th Cir. 2001); 20 C.F.R. § 404.1594(f)(1-8). If at any step a determination can be made that a recipient is unable to engage in substantial gainful activity, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1594(f). In step one, the Commissioner must determine whether the recipient is presently engaged in substantial gainful activity. Id. § 404.1594(f)(1). Step two considers whether the recipient has a medically severe impairment or combination of impairments which is equivalent to one of the impairments listed in Appendix 1 to subpart P of the regulations. Id. § 404.1594(f)(2). If any or all of the recipient's current impairment(s) meets or equals a listed impairment, his disability is conclusively presumed to continue. Id. In step three, the Commissioner determines if the recipient's impairment(s) which was present at the most recent favorable decision has undergone medical improvement. Id. § 404.1594(f)(3)&(b)(1). To determine whether medical improvement has occurred, the ALJ compares “the current medical severity of that impairment(s) which was present at the time of the most recent favorable medical decision . . . to the medical severity of that impairment(s) at that time.” Id. § 404.1594(b)(7) (emphases added). Medical improvement has occurred when there is a decrease in medical severity, which is shown by “changes (improvement) in the symptoms, signs or laboratory findings associated with that impairment(s).” Id. § 404.1594(c)(1).

         If medical improvement is found in step three, step four involves a determination whether that medical improvement is related to the recipient's ability to work. Id. § 404.1594(f)(4). In deciding whether medical improvement is related to the ability to work, the ALJ will compare the recipient's current RFC “based upon this previously existing impairment(s) with [his] prior residual functional capacity.” Id. § 404.1594(b)(7). “Unless an increase in the current residual functional capacity is based on changes in the signs, symptoms, or laboratory findings, any medical improvement that has occurred will not be considered to be related to [the recipient's] ability to work.” Id. § 404.1594(c)(2) (emphasis added).

         If, however, the most recent favorable decision was based upon a finding that the recipient's condition met or equaled the severity of an impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App.1), an RFC assessment would not have been made because RFC is not assessed until after consideration of the Listing of Impairments. Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988); compare, 20 C.F.R. § 404.1520(e) (RFC assessed if impairment(s) do not meet or equal a listing), with § 404.1594(c)(3)(i) (if most recent favorable decision was based on a finding the impairment(s) met or equaled a listing, an assessment of RFC would not have been made). In such a case, where “medical improvement has occurred and the severity of the prior impairment(s) no longer meets or equals the same listing section used to make [the] most recent favorable decision, [the Commissioner] will find that the medical improvement was related to [the recipient's] ability to work.” 20 C.F.R. § 404.1594(c)(3)(i).

         If the Commissioner determines, at step three, that there has been no medical improvement or, at step four, that any medical improvement is not related to the recipient's ability to work, he will determine that disability continues unless he finds at step five that certain statutory exceptions apply. Id. § 404.1594(f)(5). If medical improvement related to the recipient's ability to work is found at steps three and four, the commissioner will determine, at step six, whether all the recipient's current impairments in combination are severe. Id. § 404.1594(f)(6). If the recipient's current impairments in combination are severe, the Commissioner will assess his RFC at step seven “based on all [his] current impairments, and consider whether [he] can still do work [he has] done in the past.” Id. § 404.1594(f)(7). If so, the recipient's disability benefits will be terminated. Id. If not, then the Commissioner will determine at step eight whether (when considering the recipient's current RFC, age, education, and past work experience) he can perform other work existing in the economy. Id. § 404.1594(f)(8). If so, the recipient's disability benefits will be terminated. Id.

         The burden in a termination case is on the Commissioner to show both (1) medical improvement related to the recipient's ability to work, and (2) that the recipient is currently able to engage in substantial gainful activity. Patton v. Massanari, 20 Fed.Appx. 788, 789 (10th Cir. 2001) (citing Glenn v. Shalala, 21 F.3d 983, 987 (10th Cir. 1994); and 20 C.F.R. 404.1594(a)); Jaramillo, 21 Fed.Appx. at 794 (same). This eight-step sequential evaluation process relates to the Commissioner's determination that Plaintiff's disability ended as of June 13, 2013 and will be considered by the court with respect to his “current” condition at that time. The Commissioner determined that on February 29, 2016, Plaintiff's condition began once again to meet the criteria of Listing 13.05(A)(1) of the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1 § 13.05(A)(1) (Listing 13.05(A)(1)). (R. 8). Plaintiff does not allege error in that determination.

         Because each issue raised by Plaintiff alleges error in the ALJ's evaluation of the opinions of medical sources, and because the applicable standard is the same, the court addresses all of the alleged errors in one section.

         II. Medical Opinions

         Plaintiff argues that Dr. Geis's, Dr. Kaur's, and Dr. Lebeau's opinions are not substantial evidence capable of supporting the Commissioner's decision. This is so, in Plaintiff's view, because these physicians are non-examining sources, and the opinions of such physicians, when unaccompanied by thorough written reports or persuasive testimony are not substantial evidence. (Pl. Br. 42) (citing without pinpoint citation Fleetwood v. Barnhart, 211 F. App'x 736 (10th Cir. 2007)). He argues that although Dr. Geis addressed Plaintiff's lymphoma and renal cell carcinoma he “did not address Plaintiff's other ‘severe' physical impairment of chronic pain syndrome and did not opine any functional limitations related thereto, ” and did not consider or address Plaintiff's “non-severe” impairments. (Pl. Br. 42-43). Plaintiff argues that Dr. Kaur accorded great weight to a physical capacity profile to which the ALJ and the Appeals Council accorded only little weight. He asserts this opinion is “in direct conflict with the [Commissioner's] decision, ” rendering it error to afford Dr. Kaur's opinion great weight. He argues that, like Dr. Geis, Dr. Kaur and Dr. Lebeau (to whose opinion the ALJ accorded only partial weight) did not account for limitations resulting from chronic pain syndrome or from Plaintiffs “non-severe” impairments. (Pl Br. 43).

         Plaintiff next argues that the ALJ erroneously rejected the opinions of Plaintiff's treating providers, Dr. Eplee and Dr. Pregont. He argues that the ALJ's rejection of Dr. Pregont's opinion because she is not an acceptable medical source “is not a proper legal basis on which to reject the opinion, ” and that he is required to weigh such an opinion in accordance with the regulatory factors used in weighing medical source opinions. Id. at 44. He argues that the ALJ's conclusory statement that Dr. Pregont's opinion is not supported by the objective evidence failed to identify the inconsistencies upon which he relied and deprives the court of meaningful review, thus requiring remand. Id., citing Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004); Krauser v. Astrue, 638 F.3d 1324, 1331 (10th Cir. 2011); Hamlin v. Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004); and Cagle v. Astrue, 266 F. App'x 788, 794 (10th Cir. Feb. 25, 2008).

         Plaintiff argues that the ALJ also erroneously rejected Dr. Eplee's opinion. He argues that it “simply isn't the case” that Dr. Eplee's opinion was based on Plaintiff's subjective reports as the ALJ found. Id. at 44-45. He argues that the ALJ's finding that “there was no evidence of back arthritis or [of] hip, neck, and knee pain ... conflicts with the ALJ's own findings [sic] of a ‘severe' impairment of chronic pain syndrome.” Id. at 45. He argues that the ALJ erred when she stated that “Plaintiff didn't report his fatigue and pain to other physicians, ” and when he found Dr. Eplee's opinion inconsistent with Plaintiff's daily activities. (Pl. Br. 45). He argues that the ALJ did not consider the deference to which Dr. Eplee's opinion is due. Id. at 47-48.

         Finally, Plaintiff argues error in the ALJ's evaluation of the opinion of a Licensed Professional Counselor (LPC) who treated Plaintiff--Mr. Fangman, LPC. He argues it was error to discount LPC Fangman's opinion because not being an “acceptable medical source” is not a proper basis to reject the opinion and because Plaintiff was prescribed medication for his mental impairments from Dr. Eplee, and there was no requirement that he see a psychiatrist or psychologist. Id. at 48-49.

         The Commissioner argues that the ALJ properly evaluated the medical source opinions and that the record evidence supports that evaluation. She points out that an ALJ is entitled to consider and rely on the opinions of non-examining physicians so long as she explains the weight accorded, and gives good reasons for doing so. (Comm'r Br. 5-6). She argues that the non-examining physicians' opinions do not conflict with the ALJ's finding of “severe” chronic pain syndrome and that the ALJ's decision to accord only partial weight to Dr. Lebeau's opinion operated in Plaintiff's favor because if the ALJ had accorded that opinion greater weight it would have resulted in the ALJ assessing fewer and/or lesser functional limitations. Id. at 6-7.

         She argues that the ALJ's reasons for discounting Dr. Eplee's opinions are supported by the record evidence, and that the ALJ properly considered Plaintiff's level of activity in evaluating Dr. Eplee's opinions. Id. at 7-8. She argues that Plaintiff has not provided evidence or argument to establish that Dr. Eplee's opinion is due any special deference in the circumstances of this case. Moving to Dr. Pregont's opinion, the Commissioner argues that the ALJ is entitled to rely on the fact Dr. Pregont, as a chiropractor, is not an “acceptable medical source” within the meaning of the regulations, as one among several reasons to discount her opinion. Id. at 9. Finally, she argues that the ALJ properly considered LPC Fangman's opinion, and the record evidence supports her evaluation. Id. at 10.

         In his Reply Brief, Plaintiff argues that the Commissioner's arguments supporting the ALJ's evaluation of Dr. Geis's opinion are “a disingenuous attempt at post hoc justification of Dr. Geis' [sic] opinions” because Dr. Geis could not have relied on later-produced records in formulating his opinion. (Reply 2). He cites the treatment records in the evidence and explains why in his view they cannot support Dr. Geis's opinion. Id. at 2-4. He reasserts his argument that the Commissioner's summary conclusion, that Dr. Geis's and Dr. Kaur's opinions are consistent with the record considered as a whole, is beyond meaningful judicial review, and reiterates his other arguments regarding consideration of Plaintiff's other impairments, regarding the July 2013 physical capacity profile, and regarding Dr. Lebeau's opinion. Id. at 4-6.

         Plaintiff reasserts the evidentiary bases for his view that the ALJ did not provide good reasons for rejecting Dr. Eplee's opinions. Id. at 7-8. He admits that Dr. Pregont's treatment notes are not in the record, and argues that the ALJ should have fulfilled his duty to develop the record and obtained these records even though Plaintiff was represented by counsel. Id. at 9. For the first time, Plaintiff argues in his Reply Brief that the ALJ missed that Plaintiff's renal cell carcinoma was not in remission until November 2015 and implies that consequently, his condition did not experience medical improvement in June 2013. Id. at 10. Plaintiff also reiterates his argument regarding LPC Fangman's opinion.

         A. Standard for Evaluating Medical ...


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