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) pursuant to sections 216(i) and 223
of the Social Security Act, 42 U.S.C. §§ 416(i) and
423 (hereinafter the Act). Finding no error in the
Commissioner's final decision, the court ORDERS that
judgment shall be entered pursuant to the fourth sentence of
42 U.S.C. § 405(g) AFFIRMING that decision.
argues that the Administrative Law Judge (ALJ) erred when he
accorded “the treating source opinion substantial
weight, but then failed to include the limitations that
opinion suggested.” (Pl. Br. 1) (issue 1). The court
does not agree.
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,
considering 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 finds no error in the ALJ's decision.
the ALJ gave “significant weight” to opinions
from Dr. Shah, [Ms.] Haugen's treating psychiatrist, Dr.
Berg, an examining source, and Dr. R. E. Schulman, a
non-examining source. (Tr. at 20). However, the ALJ failed to
include many of the limitations within Dr. Shah's
opinion. This omission demands a remand because the ALJ is
responsible for formulating an RFC that include[s] all of
Haugen's credible limitations, especially those more
restrictive than what he assessed.
(Pl. Br. 8). She points to two limitations allegedly opined
by Dr. Shah (that Plaintiff would be off task 10 percent of a
workday and that she “would be unable to perform
activities within a schedule, maintain regular attendance,
and be punctual up to thirty percent of the time”) and
argues that despite according significant weight to Dr.
Shah's opinion and finding the opinion well supported and
consistent with the evidence, he erred in failing to include
these limitations in the RFC assessed. Id. at 8-9
(citing R. 579, 580). She argues that the ALJ explicitly
found the opinion “well-supported” and
“implicitly found the opinion consistent with other
substantial evidence when he found it consistent with Dr.
Berg's findings and other treatment notes.”
Id. at 9. Consequently, she concludes that
“the ALJ had no choice but to give controlling weight
to Dr. Shah's opinion, ” and Dr. Shah's opinion
“trumps” any differing opinion. Id. at
9-10. Plaintiff cites opinions from several courts of this
District for the proposition that when an ALJ accords weight
to a medical source opinion, does not accept the entire
opinion, and fails to explain why he did not accept portions
of the opinion, he has erred. (Pl. Br. 10-11) (citing
Frakes v. Berryhill, CV 16-1066-JWL, 2017 WL
1354863, at *4 (D. Kan. Apr. 13, 2017); James v.
Colvin, No. 13-1387-JWL, 2014 WL 6610308 (D. Kan. Nov.
20, 2014); Schmitt v. Colvin, No. 13-1129-SAC, 2014
WL 3519091, at *6-7 (D. Kan. July 16, 2014); Henderson v.
Astrue, No. 11-2645-JWL, 2013 WL 141610, at *4 (D. Kan.
Jan. 11, 2013); and Lodwick v. Astrue, No.
10-1394-SAC, 2011 WL 6253799, at *4 (D. Kan. Dec. 13, 2011)).
brief, the Commissioner cites considerable record evidence
which supports the decision of the ALJ, including the medical
opinions of Dr. Shah, Dr. Berg, Dr. Locke, and Dr. Schulman.
(Comm'r Br. 9-13). She then argues that “[t]o the
extent Dr. Shah's opinion connotes further restrictions,
the ALJ did not adopt such.” Id. a 13. She
argues that the ALJ properly declined to afford controlling
weight to Dr. Shah's opinion, and that the two ...