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Maxwell v. Berryhill

United States District Court, D. Kansas

November 9, 2018

NOREEN ELIZABETH MAXWELL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum, United States District Judge.

         Plaintiff 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.

         I. Background

         Plaintiff 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).

         The 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. 1988).

         The 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. 1989).

         The 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.

         The 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).

         The 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 opinions.

         II. Discussion

         Plaintiff 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 conclusions.

(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).

         The 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 ...


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