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 error in the Administrative
Law Judge's (ALJ) evaluation of the opinion evidence, the
court ORDERS that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) REVERSING the
Commissioner's final decision and REMANDING this case for
argues that the ALJ's determination of an onset date is
not supported by substantial evidence, and his residual
functional capacity (RFC) assessment with regard to both
mental and physical impairments is unsupported because he
erred in weighing the medical opinions in the record. His
final argument is that the ALJ failed to consider properly
the record evidence consisting of third-party statements of
Plaintiff's wife and son, and of the limitations
resulting from his history of cubital tunnel syndrome. He
seeks remand with an order directing the Commissioner to
“grant his claims for disability insurance benefits and
supplemental security income benefits.” (Pl. Brief 57).
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 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 process. Id.
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 notes that the ALJ determined Plaintiff was disabled
beginning May 9, 2013. Therefore, to the extent that
Plaintiff asserts error in the ALJ's evaluation of
opinions formulated thereafter or impairments diagnosed
thereafter, any such error appears to be harmless.
Nevertheless, because the court finds error in the ALJ's
evaluation of Dr. Banks's medical opinions and the
third-party opinions which were formulated before May 9,
2013, it finds that remand is necessary for a proper
evaluation. Therefore, it will not consider whether
allegations of subsequent errors provide another basis for
remand. Plaintiff may make any argument he desires in that
regard to the Commissioner on remand.
Plaintiff seeks remand for an immediate award of benefits, he
provided no legal authority for that argument and did not
develop it in his Brief. Wall, 561 F.3d at 1066
(issue presented without developed argumentation is waived).
Plaintiff has waived consideration of this issue by failing
to develop any argument regarding it. Franklin Sav. Corp.
v. U.S., 180 F.3d 1124, 1128 n.6 (10th Cir. 1999)
(arguments presented superficially are waived) (citing
Sports Racing Servs., Inc. v. Sports Car Club of America,
Inc. 131 F.3d 874, 880 (10th Cir. 1997) (dismissing
claims never developed, with virtually no argument
Dr. Banks's 2010 Opinions
argues that the ALJ erred in weighing Dr. Banks's October
2010 opinion and according it “no weight beyond the
limitation to sedentary work.” (R. 1820). This is so in
Plaintiff's view because the ALJ erroneously relied on
his finding that a December 10, 2010 MRI of his right knee
revealed only mild osteoarthrosis. (Pl. Br. 51) (citing the
ALJ's decision at R. 1820). He argues that the MRI report
reveals, first, increased signal from the earlier repair of
the anterior cruciate ligament, suggesting that partial tear,
early graft impingement, or graft degeneration should be
considered; and second, “mild tricompartmental
degenerative arthrosis and chondromalacia with 3mm
osteochondral defect along the weightbearing surface of the
medial femoral condyle, new from prior study.”
Id. (quoting R. 1264). He also argues that the
ALJ's finding that Plaintiff was only limited due to his
leg pain is unsupported by the record. Id. at 52.
Finally, Plaintiff points to opinions Dr. Banks formulated on
August 18, and August 31, 2010 and argues that the ALJ failed
to consider or to identify the weight accorded to these
Commissioner argues that the ALJ gave good reasons supported
by the record to discount Dr. Banks's opinion. She argues
that, as the ALJ found, nothing in the record suggests
debilitating symptoms during that period, as evidenced by
only “mild degenerative spurring, and mild degenerative
arthrosis” on the right knee MRI's, and by
Plaintiff's report to Dr. Banks that he could not
exercise due to leg pain. (Comm'r Br. 6). She argues that
although the ALJ did not discuss the August 2010 opinions,
those opinions pertain to the issue of disability itself
which is reserved to the Commissioner, and any error was
harmless because an ALJ is not required to discuss every
piece of evidence, and he did discuss the October 2010
opinion issued just two months later. Id. at 7-8.
She also points out that the ALJ discussed Dr. Bleazard's
July 2010 opinion which found Plaintiff's walking was
unimpaired. Id. at 8.
The ALJ's Evaluation of Dr. ...