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Patton v. Berryhill

United States District Court, D. Kansas

December 3, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          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 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 decision.

         I. Background

         Plaintiff 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 14.

         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 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. 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 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. 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 considers the issues as presented in Plaintiff's Brief.

         II. Dr. Davis's Opinions

         The ALJ 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)).

         Alternatively, 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.

         The 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.

         As the 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 ...

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