United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
seeks review of a decision of the Commissioner of Social
Security 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 final decision of the Commissioner,
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.
December 11, 2013 Plaintiff applied for DIB alleging
disability beginning July 7, 2011. (R. 309). After exhausting
administrative remedies before the Social Security
Administration (SSA), Plaintiff filed this case seeking
judicial review of the Commissioner's decision pursuant
to 42 U.S.C. § 405(g). (Doc. 1). Plaintiff argues that
the Commissioner's final decision (the Appeals Council
decision) is erroneous because the Administrative Law Judge
(ALJ) erroneously evaluated the opinion evidence and did not
account for all of Plaintiff's mental limitations in the
residual functional capacity (RFC) assessed. She also argues
that the Appeals Council (AC) failed to apply the correct
legal standard at step five of the sequential evaluation
process because it failed to consult a vocational expert (VE)
in determining that “an RFC for simple, routine,
repetitive tasks would not significantly erode the
occupational base.” (Pl. Br. 28-30) (citing R. 5).
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 Commissioner'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”
refers to the weight of the evidence. It requires more than a
scintilla, but 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).
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 previously assessed. Id.; Haddock v.
Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
The Final Decision
accordance with sentence one and sentence two of 42 U.S.C.
§ 405(g) it is the final decision of the Commissioner
which may be reviewed by a district court of the United
States. The AC made the final decision in this case, and it
is that decision which is subject to this court's review.
(R. 4-6). Nevertheless, the AC adopted certain portions of
the ALJ's decision (R. 4-5) and those portions constitute
a part of the final decision in this case which is subject to
judicial review by this court. Consequently, it is
appropriate for Plaintiff to argue that the ALJ erred in
those portions of his decision adopted by the AC. The court
addresses the errors alleged in the order in which they are
addressed in Plaintiff's Brief.
Evidence the ALJ Allegedly Failed to Consider
first argues remand is necessary because the ALJ failed to
consider and properly evaluate both the opinion evidence from
Dr. Faber who treated Plaintiff and the opinion provided by
one of the agency's employees. (Pl. Br. 22) (citing R.
388, 912). The Commissioner argues that the SSA
employee's observation was neither uncontroverted nor
significantly probative evidence which it was not error to
disregard. (Comm'r Br. 19-20). He admits that the ALJ did
not weigh Dr. Faber's opinion but argues that the ALJ
could have discounted Dr. Faber's opinion with the same
rationale he used to discount Dr. Cordova's opinion and
the opinion was facially speculative and therefore not
requiring discussion. Id. at 17-18. In her Reply
Brief, Plaintiff argues that the Commissioner's argument
that Dr. Faber's opinion was facially speculative is a
post hoc rationale and that in any case “it
was not ‘speculative' that [Plaintiff] continued to
have problems with the frontal lobe” because the
“SPECT [(Single-Photon Emission Computed Tomography)]
scan demonstrated a left frontal lobe hypoperfusion.”
(Reply 4) (citing R. 912). Plaintiff argues that the
Commissioner is required to at least acknowledge the
statement of his employee and because he did not, that is
error requiring remand. Id. (citing Simpson v.
Astrue, Civ. A. No. 11-2648-JWL, 2012 WL 5199744 (D.
Kan. Oct. 22, 2012)).
Plaintiff suggests, the Commissioner is required to evaluate
and explain the weight accorded to each medical opinion in
the record. 20 C.F.R. § 404.1527; Soc. Sec.
Ruling (SSR) 96-5p, West's Soc. Sec. Reporting
Serv., Rulings 123-24 (Supp. 2019). Moreover, an ALJ is
required to consider each third-party opinion in the record,
but he is not required to make specific written findings
regarding third-party lay opinions if the written decision
reflects that the ALJ considered it. Blea v.
Barnhart, 466 F.3d 903, 914-15 (10th Cir. 2006);
Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996).
Nevertheless, the court finds that the “opinions”
at issue here are not really opinions within the meaning of
the Act and regulations, are not probative to the
Commissioner's consideration of disability in this case,
and it was not error to fail to discuss them.
Faber's “opinion” appears in a “To Whom
It May Concern” letter dated April 11, 2014 from Dr.
Faber at the Amen Clinic in Atlanta, Georgia. (R. 912).
Plaintiff argues that Dr. Faber opined that Plaintiff
“would have continued problems with her left frontal
lobe, and it would be very difficult for her to complete
routine tasks at her job.” (Pl. Br. 22). Dr.
Faber's letter states that almost a year earlier
Plaintiff “came to a clinic for a psychiatric
evaluation including SPECT Scans on May 21, 2013.” (R.
912). The record does not contain the treatment notes from
Plaintiff's 2013 visit, the reports of the SPECT Scans,
or any treatment notes from the Amen Clinic. Dr. Faber
At the time I saw [Plaintiff] in our office last year, she
was struggling with her ability to function and follow
through with job related tasks. Should she continue to have
problems with her left frontal lobe, which I speculate are
continuing to occur, it would be very difficult for [her] to
complete routine tasks at her job.
Id. This “opinion” reveals two
speculative conditions. First, Dr. Faber speculated a year
after seeing Plaintiff and with no intervening treatment that
Plaintiff was continuing to have (undefined)
“problems” with her left frontal lobe. Second, he
speculated that if the first speculation was in fact
true, it would be “difficult” for Plaintiff to
complete routine tasks. There is simply no rational, concrete
way to evaluate this “opinion.” As the
Commissioner suggests, merely speculating on possible
difficulties without opining on functional limitations does
not require consideration of the “opinion.”
Paulsen v. Colvin, 665 Fed.Appx. 660, 666 (10th Cir.
similar effect is the court's consideration of the
opinion of the agency's employee. The
“opinion” at issue here is contained in a form
completed on December 11, 2013 by the employee at issue, J.
Hutcheson. (R. 387-89). This was a “Form SSA-3367,
” “Disability Report - Field Office.” At
issue is Section 9 of the form, entitled
“Observations/Perceptions.” Id. at 388.
That section contains a list of 14 functions an individual
performs including hearing, breathing, understanding,
coherency, concentration, talking, writing, etc., along with
a catch-all category titled “Other (specify).”
Id. The directions for completing section 9 explain:
“If the claimant had difficulty with the following,
explain in Observations, or show ‘No' or ‘Not
observed/perceived.'” Id. The only
function the employee marked “Yes” was
“Understanding.” Id. Under
“Observations, ” the employee entered: “At
times she would pause and ‘blank out' and then
engage in the question.” Id. The employee did
not indicate that Plaintiff did not understand certain
questions, did not indicate that Plaintiff ignored the
question, did not indicate that she asked that the questions
be repeated or explained. Rather, the employee indicated that
Plaintiff would pause and blank out “at times, ”
but would then engage in the question. Again, there is no
rational, concrete way to evaluate this
“opinion.” It is not an opinion relevant to
disability and as the Commissioner argues it is not
significantly probative or worthy of an attempted
explanation. The court finds no error in the ALJ's
failure to discuss in his decision either Dr. Faber's
statement or the statement of the SSA employee.
The Opinion Evidence
claims the ALJ erroneously evaluated the opinions of her
spouse and of her friend and the medical opinions of her
treating physicians, Dr. Willson and Dr. Cordova.
argues that the ALJ rejected the third-party opinions of her
spouse and her friend because these individuals “are
not medically trained and they lack ‘medically
acceptable standards, '” and that thereby he
applied the incorrect legal standard because “[t]he
purpose of third party statements is to go beyond what is
contained in the medical records and shed additional light on
how [Plaintiff] is affected by the symptoms as the symptoms
experienced can demonstrate greater severity than the
objective medical evidence alone.” (Pl. Br. 23)
(quoting R. 55).
explained his evaluation of these third-party opinions:
These other sources generally support the claimant's
allegations. However, because these other sources have no
medical training to make exacting observations as to dates,
frequencies, types and degrees of medical signs and symptoms,
or of the frequency or intensity of unusual moods or
mannerisms, the accuracy of the information provided is
questionable. However, the undersigned has considered these
opinions in terms of helping to understand the severity of
the claimant's various symptoms overtime [sic] as
explained in SSR 06-03p (also see 20 CFR 404.1512 and
416.912). Even so, these reports from the claimant's
spouse and friend do not establish that she is disabled, and
cannot carry the claimant's burden of proof. Therefore,
the undersigned gives little weight to these other sources
assessing the claimant's current functional limitations
because of their lack of medically acceptable standards.
(R. 55). While Plaintiff is correct that an adjudicator must
use third-party opinions to shed additional light on the
effect of the claimant's symptoms, that is precisely what
the ALJ did here. Although Plaintiff is correct that the ALJ
stated he discounted these individuals' statements
“because of their lack of medically acceptable
standards, ” he also specifically noted that he had
considered the opinions to help “to understand the
severity of the claimant's various symptoms” over
time. Id. He considered the opinions and explained
how he had evaluated them in accordance with the requisite
standard. More is not required.
argues that the record evidence is contrary to the ALJ's
reasons for discounting Dr. Willson's opinion and she
“was unable to locate Dr. Willson's assessment of a
GAF [(Global Assessment of Functioning)] score of
60-80.” (Pl. Br. 24-25). She argues that Dr.
Cordova's treatment notes were not as
“normal” as the ALJ found, and that “[t]he
ALJ has clearly and repeatedly improperly substituted his own
‘medical expertise' for that of the treating
physicians.” Id. at 26 (erroneously citing
Kemp v. Bowen, 186 F.2d 1469, 1476 (10th Cur.
1987); and footnoting Combs v.
Berryhill, 878 F.3d 642, 646 (8th Cir. 2017) (quoting
Strongson v. Barnhart, 361 F.3d 1066, 1071 (8th Cir.
Standard for Evaluating Medical Opinions
claims filed before March 17, 2017, “[m]edical opinions
are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature
and severity of [a claimant's] impairment(s) including
[claimant's] symptoms, diagnosis and prognosis.” 20
C.F.R. § 404.1527(a)(2). Such opinions may not be
ignored and, unless a treating source opinion is given
controlling weight, all medical opinions will be
evaluated by the Commissioner in accordance with factors
contained in the regulations. Id. §
404.1527(c); SSR 96-5p, West's Soc. Sec. Reporting Serv.,
Rulings 123-24 (Supp. 2019). A physician who has treated a
patient frequently over an extended period (a treating
source) is expected to have greater insight into the
patient's medical condition, and his opinion is generally
entitled to “particular weight.” Doyal v.
Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). But,
“the opinion of an examining physician [(a nontreating
source)] who only saw the claimant once is not entitled to
the sort of deferential treatment accorded to a treating
physician's opinion.” Id. at 763 (citing
Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995)).
However, opinions of nontreating sources are generally given
more weight than the opinions of nonexamining sources who
have merely reviewed the medical record. Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004);
Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir.
1987) (citing Broadbent v. Harris, 698 F.2d 407, 412
(10th Cir. 1983), Whitney v. Schweiker, 695 F.2d
784, 789 (7th Cir. 1982), and Wier ex rel. Wier v.
Heckler, 734 F.2d 955, 963 (3d Cir. 1984)).
[the Commissioner] find[s] that a treating source's
opinion on the issue(s) of the nature and severity of [the
claimant's] impairment(s) [(1)] is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and [(2)] is not inconsistent with the other
substantial evidence in [claimant's] case record, [the
Commissioner] will give it controlling weight.” 20
C.F.R.' 404.1527(c)(2); see also, SSR 96-2p,
West's Soc. Sec. Reporting Serv., Rulings 111-15 (Supp.
2019) (“Giving Controlling Weight to Treating Source
treating source opinion is not given controlling weight, the
inquiry does not end. Id. A treating source opinion
is “still entitled to deference and must be weighed
using all of the factors provided in 20 C.F.R.'
404.1527.” Id. Those factors are: (1) length
of treatment relationship and frequency of examination; (2)
the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination
or testing performed; (3) the degree to which the
physician's opinion is supported by relevant evidence;
(4) consistency between the opinion and the record as a
whole; (5) whether or not the physician is a specialist in
the area upon which an opinion is rendered; and (6) other
factors brought to the ALJ's attention which tend to
support or contradict the opinion. Watkins v.
Barnhart, 350 F.3d ...