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 error in the
Administrative Law Judge's (ALJ) consideration of the
treating source opinion of Dr. Moreland, the court ORDERS
that the Commissioner's decision 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.
argues that the ALJ erred when he discounted Dr.
Moreland's medical opinion for the sole reason
“that it was ‘based on [Plaintiff's]
subjective complaints during the visit, rather than objective
medical evidence.'” (Pl. Br. 12) (quoting R. 21).
She seeks an order directing the payment of benefits or
remand for further administrative proceedings. 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,
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 considers the issue raised by Plaintiff, agrees that
the ALJ erred in considering Dr. Moreland's opinion, and
finds that remand is necessary.
points out that the medical opinion of a treating source may
be accorded controlling weight if it is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and if it is not inconsistent with the other
substantial evidence in the record. (Pl. Br. 11). She argues
that, in any case, a treating source opinion is generally
worthy of deference. Doyal v. Barnhart, 331 F.3d
758, 762 (10th Cir. 2003). Plaintiff argues that when, as
happened here, an ALJ discounts a treating source opinion
because it is based on a claimant's subjective complaints
but does not provide a legal or evidentiary basis grounded in
the record evidence for that finding, the court will find
that rationale is merely impermissible speculation. (Pl. Br.
at 12) (citing Langley v. Barnhart, 373 F.3d 1116,
1121 (10th Cir. 2004); McGoffin v. Barnhart, 288
F.3d 1248, 1252 (10th Cir. 2002); and Victory v.
Barnhart, 121 F. App'x. 819, 823-24 (10th Cir.
2005). Plaintiff argues that here the ALJ provided no other
basis to discount Dr. Moreland's opinion, and this case
fits comfortably within this court's holding in James
v. Colvin, CV 15-1379-JWL, 2016 WL 6267947, at *3 (D.
Kan. Oct. 26, 2016). (Pl. Br. 13).
Commissioner argues that the ALJ reasonably evaluated Dr.
Moreland's opinion. (Comm'r Br. 4). She argues that
“[a]s the ALJ found, … Dr. Moreland based her
opinion on Plaintiff's subjective complaints, which
… the ALJ considered and reasonably found were not
consistent with the objective and other evidence of
record.” Id. at 6 (citations omitted). She
points out inconsistencies between Dr. Moreland's opinion
and other record evidence which, in her view justifies
assigning only some weight to that opinion. Id. at
6-8. She distinguishes this court's opinion in
James because here the ALJ did not discount Dr.
Moreland's opinion solely because it relied on
Plaintiff's subjective complaints, but “also noted
that Dr. Moreland did not base her opinion on objective
medical evidence.” Id. at 8. The Commissioner
points to the reasons the ALJ found Plaintiff's
subjective complaints are inconsistent with the record
evidence and implies those are additional bases to find error
in Dr. Moreland's reliance on Plaintiff's subjective
complaints. Id. at 8-12.
The ALJ's Evaluation of Dr. ...