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 no error in the
Administrative Law Judge's (ALJ) decision, the court
ORDERS that judgment shall be entered pursuant to the fourth
sentence of 42 U.S.C. § 405(g) AFFIRMING the final
argues that the ALJ “improperly reweighed and relied on
opinion evidence from a prior application to reject opinion
evidence from Plaintiff's current application” (Pl.
Br. 10) (bolding omitted), and that she failed to develop the
record regarding Dr. Forbes's opinion. Id. at
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
she 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 residual functional capacity (RFC). 20 C.F.R.
§ 404.1520(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).
court considers the issues as presented in Plaintiff's
Dr. Davis's Opinions
noted that Plaintiff had filed an earlier Social Security
disability application in March 2014 which was denied on
September 19, 2014. (R. 17). She found no basis to reopen
that decision, and stated that “any discussion of the
evidence prior to that time is for historical and contextual
purposes only and does not constitute reopening.”
Id. Plaintiff points out that the ALJ nonetheless
relied upon an opinion by Dr. Davis formed on September 13,
2014 (rendered six days within the previously adjudicated
period, and before the amended alleged onset date of March 2,
2015) to discount an October 2015 opinion, also by Dr. Davis
and rendered within the period at issue. She argues that the
earlier opinion of Dr. Davis is irrelevant to the period at
issue here and it was error for the ALJ to rely on it. (Pl.
Br. 11-12) (citing Allison v. Heckler, 711 F.2d 145,
147 (10th Cir. 1983); Timmons v. Colvin, No.
11-cv-1369, 2013 WL 1288647 at *3 (W.D. Okla. Feb. 26, 2013);
Myers v. Astrue, 870 F.Supp.2d 1164, 1170 (D. Colo.
2012)). Plaintiff clarifies that she is not arguing error in
the ALJ's consideration of or discussion of Dr.
Davis's 2014 opinion, but that the ALJ erred when she
reweighed the opinion evidence from a prior
application and relied upon it to reject Dr. Davis's
“more current” opinion from October 2015. (Pl.
Br. 12). She argues that “[a]n ALJ is entitled to
consider evidence from a prior denial for the limited
purposes of reviewing the preliminary facts or cumulative
medical history necessary to determine whether the
claimant was disabled at the time of his second
application.” (Pl. Br. 12) (quoting Hamlin v.
Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (emphasis
in Pl. Brief). Plaintiff argues that the court is left to
speculate how the opinion was evaluated in the prior
decision, and the entire record of the prior decision should
have been included in this record. Id. (citing
Blevins v. Colvin, No. 15-cv-159, 2016 WL 5408130 at
*3 (E.D. Okla. Sept. 29, 2016)).
Plaintiff argues that in her latest opinion Dr. Davis
explained she had considered her prior opinion, that
Plaintiff's condition had deteriorated in the interim,
and that the objective findings supported her opinion. She
argues that the ALJ erred because the record evidence
supports Dr. Davis's conclusions in her second opinion.
Commissioner argues that the ALJ properly evaluated Dr.
Davis's opinions. She points out Dr. Davis's
September 2014 opinion is part of the administrative record
before the ALJ in this case, and argues that neither Tenth
Circuit law nor agency regulations prohibit consideration of
record evidence dated before the alleged onset date.
(Comm'r Br. 3-4). She argues that the cases cited by
Plaintiff do not stand for the proposition asserted, and that
Hamlin's “holding runs contrary to
Plaintiff's position, ” leaving the decision at
issue consistent with Hamlin. Id. at 4-5.
The Commissioner argues that the ALJ must consider all the
record opinion evidence, she did so here, and the record
evidence supports her findings as to both opinions of Dr.
Davis. Id. at 5-6.
Commissioner points out, an ALJ is required to consider every
medical opinion in the administrative record before her. 20
C.F.R. § 405.1527(b, c) (2016); see also,
Soc. Sec. Rul. (SSR) 96-5p, West's Soc. Sec.
Reporting Serv., Rulings 123-24 (Supp. 2018) (medical source
opinions must not be ignored); SSR 96-8, West's Soc. Sec.
Reporting Serv., Rulings 149-50 (Supp. 2018) (narrative
discussion must include consideration of medical opinions
regarding the claimant's capabilities). And the record is
required to include a “complete medical history for at
least the 12 months preceding the month in which you file
your application.” 20 CFR § 404.1512(d) (2016).
Plaintiff protectively filed her application in this case ...