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) 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.
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). Plaintiff filed a
Complaint in this court seeking review of the
Commissioner's decision on March 6, 2017. (Doc. 1).
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.
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.
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 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).
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
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. §
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.
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.
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.
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).
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).
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.
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.
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.
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.
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.
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.
Standard for Evaluating Medical ...