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
Supplemental Security Income (SSI) benefits pursuant to
sections 1602 and 1614(a)(3)(A) of the Social Security Act,
42 U.S.C. §§ 1381a and 1382c(a)(3)(A) (hereinafter
the Act). Finding error in the Commissioner's evaluation
of the treating source opinion of Dr. Franz, the court ORDERS
that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) REVERSING and REMANDING
the Commissioner's final decision for further
argues that the Administrative Law Judge (ALJ) erred in
evaluating the treating source opinion of Dr. Franz and in
evaluating Plaintiff's allegations of symptoms resulting
from her impairments. She seeks remand for immediate award of
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. § 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 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.
§ 416.920(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).
is necessary because of error in the evaluation of Dr.
Franz's opinion. Consequently, the Commissioner must
reassess RFC on remand, which will necessarily include
reconsideration of Plaintiff's allegations of symptoms.
Therefore, the court need not address the allegations of
error in the credibility determination and it may not provide
an advisory opinion regarding credibility. Plaintiff may make
her arguments in that regard on remand.
argues that Dr. Franz's opinion should have been accorded
controlling weight. Specifically, she argues that the ALJ
“failed to provide any reason supported by the evidence
for not giving Dr. Franz's opinion controlling
weight.” (Pl. Br. 14). In any case, she argues, Dr.
Franz's opinion is worthy of deference and should have
been given greater weight than the opinion of the state
agency medical consultant, Dr. Timmerman. The Commissioner
argues that the ALJ reasonably weighed the medical source
opinions of Dr. Franz and Dr. Timmerman. She points to record
evidence which in her view supports the ALJ's evaluation,
and argues that the court should affirm the ALJ's
evaluation even though the record might support two
inconsistent conclusions. (Comm'r Br. 8-9) (citing
Lax, 489 F.3d at 1084). The court cannot find
controlling weight is due, but agrees that the ALJ did not
cite evidence supporting his weighing of the opinion.
Standard for Weighing Medical Source
opinions are statements from physicians and psychologists or
other acceptable medical sources that reflect judgments about
the nature and severity of [a claimant's] impairment(s)
including [claimant's] symptoms, diagnosis and
prognosis.” 20 C.F.R. ' 416.927(a)(2). Such
opinions may not be ignored and, unless a treating source
opinion is given controlling weight, all medical
opinions will be evaluated by the Commissioner in accordance
with factors contained in the regulations. Id. '
416.927(c); Soc. Sec. Ruling (SSR) 96-5p, West's
Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2017). A
physician who has treated a patient frequently over an
extended period (a treating source) is expected to have
greater insight into the patient's medical condition, and
his opinion is generally entitled to “particular
weight.” Doyal v. Barnhart, 331 F.3d 758, 762
(10th Cir. 2003). But, “the opinion of an examining
physician [(a nontreating source)] who only saw the claimant
once is not entitled to the sort of deferential treatment
accorded to a treating physician's opinion.”
Id. at 763 (citing Reid v. Chater, 71 F.3d
372, 374 (10th Cir. 1995)). However, opinions of nontreating
sources are generally given more weight than the opinions of
nonexamining sources who have merely reviewed the medical
record. Robinson v. Barnhart, 366 F.3d 1078, 1084
(10th Cir. 2004); Talbot v. Heckler, 814 F.2d 1456,
1463 (10th Cir. 1987) (citing Broadbent v. Harris,
698 F.2d 407, 412 (10th Cir. 1983), Whitney v.
Schweiker, 695 F.2d 784, 789 (7th Cir. 1982), and
Wier ex rel. Wier v. Heckler, 734 F.2d 955, 963 (3d
[the Commissioner] find[s] that a treating source's
opinion on the issue(s) of the nature and severity of [the
claimant's] impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in
[claimant's] case record, [the Commissioner] will give it
controlling weight.” 20 C.F.R. ' 416.927(c)(2);
see also, SSR 96-2p, West's Soc. ...