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) and Supplemental Security Income
(SSI) benefits pursuant to 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). Finding the ALJ erred in evaluating
the treating source opinion of Dr. Chediak, 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.
argues that the Administrative Law Judge (ALJ) erred in
weighing Dr. Chediak's opinion. He seeks an order
“[d]irecting the Commissioner to pay [Disability
Insurance] Benefits.” (Pl. Br. 11).
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, 416.920; 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
he has a severe impairment(s), and whether the severity of
his 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), 416.920(e). This assessment is used
at both step four and step five of the sequential evaluation
Commissioner next evaluates steps four and five of the
sequential process--determining at step four whether,
considering the RFC assessed, claimant can perform his 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 in Plaintiff's Brief and
finds reversible error in the ALJ's evaluation of the
treating source opinion of Dr. Chediak.
argues that the ALJ should have given Dr. Chediak's
opinion controlling weight pursuant to the treating physician
rule, and that in any case the only reason given to discount
“Dr. Chediak's opinion was that his
‘contemporaneous treatment notes were largely not
included within the record.'” (Pl. Br. 8) (quoting
R. 25) (brackets omitted). Pointing to Dr. Chediak's
treatment records in the administrative record, Plaintiff
argues that “there is no reason to believe the record
does not include all of Dr. Chediak's records, ”
and the only reason given by the ALJ to discount his opinion
is erroneous. Id.
Commissioner argues that “[t]he ALJ reasonably found
that Plaintiff was performing substantial gainful activity,
which precludes an award of disability benefits” at
step one of the sequential evaluation process, and that
“Plaintiff does not dispute this dispositive
finding” which should be affirmed by the court.
(Comm'r Br. 5) (bolding omitted). She also provides an
alternative argument, that “Plaintiff has not meet
[sic] his burden to show that he was harmed by any error that
the ALJ made in discounting Dr. Chediak's opinion.”
(Comm'r Br. 8) (bolding omitted). She argues that
although Plaintiff relies on the vocational expert
(hereinafter VE) testimony to argue that absenteeism of eight
to ten days a year or less than one day a month precludes
performance of competitive work, he ignores the VE testimony
that a hypothetical individual with characteristics such as
Plaintiff who missed work once or twice a month on a regular
basis would be able to sustain employment in the
representative jobs to which the VE testified. Id.
at 9. Therefore, in her view, a remand would result in the
same outcome as here. Id.
The ALJ's Decision
court begins, as it must, with the final decision of the ALJ
in the case under review. At step one of the sequential
evaluation process, the ALJ stated his finding, “The
claimant has not engaged in substantial gainful activity
since March 1, 2011, the alleged onset date.” (R. 19)
(bolding omitted). He noted that Plaintiff had worked after
the alleged onset date and that the work in 2011 and 2012 ...