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 Disability
Insurance Benefits (DIB) under sections 216(i) and 223 of the
Social Security Act, 42 U.S.C. §§ 416(i) and 423
(hereinafter the Act). Finding the Administrative Law Judge
(ALJ) erred in evaluating the medical opinion of the medical
expert, the court ORDERS that the final decision of the
Commissioner 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 opinion.
August 2, 2013, Plaintiff applied for DIB. (R. 164). Her
application was denied initially on November 12, 2013 and she
exhausted administrative proceedings before the Commissioner.
(R. 1, 16, 71, 81). Plaintiff now seeks judicial review of
the Commissioner's final decision denying benefits. (Doc.
1). Plaintiff argues that although the ALJ afforded great
weight to portions of Dr. Rubin's interrogatory opinion and
little weight to other portions, he apparently did not accept
Dr. Rubin's opinions regarding pushing, pulling, using
foot controls, or reaching, but did not discuss those
limitations or explain his reasons for not accepting them.
(Pl. Br. 10). She argues that therein he erred by
inadequately evaluating the medical opinion at issue, and by
failing to resolve the material inconsistency and ambiguity
created thereby. Id.
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. §
404.1520; 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.
§ 404.1520(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).
court considers the issue as presented in Plaintiff's
Brief and finds remand is necessary to adequately explain the
weight accorded Dr. Rubin's opinion and the reasons for
than the ALJ's acknowledgement that Dr. Rubin found
Plaintiff's condition did not meet the criteria of a
Listed Impairment (R. 23), the ALJ's consideration of Dr.
Rubin's opinion is reproduced in its entirety below:
Dr. [Rubin], the medical expert who responded to a medical
interrogatory, completed a Medical Source Statement opining
the claimant could frequently lift and carry up to 10 pounds
and occasionally lift and carry 20 pounds (Ex. 15F/5). She
could sit 4 hours at a time for a total of 6 hours in an
8-hour workday, stand 2 hours at a time for a total of
4-hours in an 8hour workday, and walk 2 hours at a time for a
total of 3 hours in an 8-hour workday (Ex. 15F/6). She does
not require the use of a cane for ambulation (Ex. 15F/6). Dr.
[Rubin] assessed some manipulative, postural, and
environmental limitations, but indicated the claimant could
engage in all activities of daily living (Ex.15F/7-10 [(R.
The undersigned affords Dr. [Rubin's] opinion partial
weight. Dr. [Rubin's] lifting restrictions are afforded
great weight because they are consistent with the record as a
whole and well supported by the objective evidence of record,
including the findings of the State Agency medical
consultants. However, little weight is given to Dr.
[Rubin's] other assessed exertional limitations. Rather,
in terms of sitting, standing, and walking limitations, more
weight is afforded to the opinions of the State Agency
medical consultants, which are more consistent with the
overall evidence of record. Specifically, including the
findings of the consultative examiner showing the claimant
had no difficulty with heel and toe walking, squatting and