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) failure to consider the
“other medical source” opinion of Plaintiff's
physical therapist, the court ORDERS that the
Commissioner's final 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 decision.
argues that the ALJ erred in applying Social Security Ruling
(SSR) 12-2p and in weighing the medical opinions of her
treating physicians, Dr. Dehning and Dr. Radadiya.
Accordingly, Plaintiff “respectfully requests the Court
to exercise its discretion to enter an order for the
immediate award of benefits.” (Pl. Br. 16).
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 RFC. 20 C.F.R. § 404.1520(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 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 begins with consideration of the ALJ's evaluation
of Dr. Radadiya's opinion. It finds no error in that
evaluation, but because the court's consideration reveals
error as a matter of law in the ALJ's failure to evaluate
the physical therapist's opinions, remand is necessary
for a proper evaluation. The court may not provide an
advisory opinion regarding the remaining alleged errors, but
on remand it will be necessary for the Commissioner to assess
RFC once again, and at that point she will apply SSR 12-2p
regarding the limitations resulting from Plaintiff's
fibromyalgia, and will reevaluate the opinion evidence in
light of her evaluation of the physical therapist's
claims error because:
the ALJ fails to articulate in any detail the rationale for
rejecting Dr. Radadiya's medical opinions as to her lack
of stamina on a sustained regular basis and the limitations
of using her arms. Tr. 26. In particular, there is no
substantial rationale advanced for rejecting the various
specific limitations on Plaintiff's arm and hand
activity. The physician indicated that he was relying in part
on the testing which he requested from a physical therapist
in assessing limitations. The ALJ's conclusion is indeed
a curious rationale for rejecting the medical opinion when in
other circumstances the agency looks to whether there are
tests or other laboratory findings to support medical
(Pl. Brief 13). The Commissioner argues, “The ALJ found
that Dr. Radadiya declined to render an opinion about
Plaintiff's functional limitations, and the record bears
this out: Dr. Radadiya declined to complete a Residual
Functional Capacity Assessment stating instead that he does
‘not do this evaluation.'” (Comm'r Br. 4)
(quoting R. 868) (citations omitted).
Commissioner's argument is correct that the ALJ
discounted Dr. Radadiya's opinion because he stated he
did not do RFC evaluations, and therefore provided no opinion
regarding any of Plaintiff's functional limitations. (R.
27) (“Dr. Radadiya refused to completed [sic] the
residual functional assessment … and there was no
clear explanation regarding the claimant's inability to
sustain work”). In so far as it goes, the ...