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
Commissioner's final decision.
argues that the ALJ erred when he accorded substantial weight
to the opinions of certain medical sources but failed to
include limitations opined by those sources in the residual
functional capacity (RFC) assessed or to explain why he
rejected those limitations.
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
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,
she 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).
admits that the ALJ properly explained the amount of weight
accorded to the medical source opinions. (Pl. Br. 9). She
argues, however, that “the problem with [the] ALJ's
decision is that he found opinions persuasive and consistent
with the record but excluded material limitations within
those decisions from the RFC.” Id. She argues
that the limitations which were erroneously excluded from the
RFC assessed were Dr. Vitosh's and APRN (Advanced
Practice Registered Nurse) Marshall's opinions that
Plaintiff would miss work more than two days a month, Dr.
Vitosh's opinion Plaintiff would be off-task 25% of a
workday, and especially APRN Marshall's opinion of
numerous moderate mental limitations. Id. at 9-10.
Plaintiff concludes her argument that “the ALJ does not
have to adopt an opinion, but he does have to explain why he
ignored portions he did not include in the RFC.”
Id. at 14.
Commissioner argues that “the ALJ reasonably limited
Plaintiff to a restricted range of light work, ” and
substantial evidence supports that determination. (Comm'r
Br. 8). She argues the mental RFC assessed is also supported
by substantial evidence, id. at 9, and “this
Court [sic] should not disturb the ALJ's decision upon
appeal.” Id. at 10. She then argues that
“Plaintiff's argument is based on a
misinterpretation of how the ALJ weighed the relevant opinion
evidence” (Comm'r Br. 11) and ignores the ALJ's
actual analyses of Dr. Vitosh's and APRN Marshall's
opinions. Id. at 11-13. She argues that the
evaluation of an “other medical source” opinion
such as that of Ms. Marshall requires only that the
“decision allows a claimant or subsequent reviewer to
follow the adjudicator's reasoning.” Id.
at 13 (quoting Soc. Sec. Ruling (SSR) 06-3p). She
concludes by arguing “the ALJ's decision reflects
that the ALJ decided to attribute greater weight to the
acceptable medical source opinions from Dr. Maxfield and Dr.
Ogden, who both opined that Plaintiff was capable of
performing full-time work without excessive
absenteeism.” Id. at 14.
The Legal Standard Applicable
court agrees with Plaintiff's statement of the standard
applicable to this case. The Commissioner issued SSR 96-8p
“[t]o state the Social Security Administration's
policies and policy interpretations regarding the assessment
of residual functional capacity (RFC) in initial claims for
disability benefits.” West's Soc. Sec. Reporting
Serv., Rulings 143 (Supp. 2018). The Ruling includes
narrative discussion requirements for an RFC assessment.
Id. at 149. The discussion is to cite specific
medical facts and nonmedical evidence to describe how the
evidence supports each conclusion, discuss how the claimant
is able to perform sustained work activities, and describe
the maximum amount of each work activity the claimant can
perform. Id. The discussion must include an
explanation how any ambiguities and material inconsistencies
in the evidence were considered and resolved. Id. If
the ALJ's RFC assessment conflicts with a medical source
opinion, the ALJ must explain why he did not adopt the
opinion. Id. at 150.
assessment is based on all the evidence of record and is an
administrative assessment. SSR 96-8p, 1996 WL 374184 (Soc.
Sec. Admin. July 2, 1996). It is the Commissioner's final
responsibility to determine the RFC. 20 C.F.R. §§
404.1527(e)(2), 404.1546. The ALJ's RFC, however, must be
supported by the substantial evidence of record. Cowan v.
Astrue, 552 F.3d 1182, 1190 (10th Cir. 2008). In
addition to requiring an explanation regarding any material
inconsistencies or ambiguities in the evidence, SSR 96-8p
requires that “[i]f the RFC assessment conflicts with
an opinion from a medical source, the ALJ must explain why
the opinion was not adopted.” 1996 WL 374184 at *7. In
Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. April
3, 2007), the Tenth Circuit explained that when an ALJ gives
weight to an opinion, the ALJ must explain why he rejects
some of the limitations ...