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Low v. Saul

United States District Court, D. Kansas

November 7, 2019

DIANA LYNNE L.,[1] Plaintiff,
ANDREW M. SAUL,[2] Commissioner of Social Security, Defendant.



         Plaintiff 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.

         I. Background

         On 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)[3] (citing R. 5).

         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 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).

         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 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).

         II. The Final Decision

         In 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.

         III. Evidence the ALJ Allegedly Failed to Consider

         Plaintiff 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)).

         As 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.

         Dr. 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 stated:

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. 2016).

         To a 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.

         IV. The Opinion Evidence

         Plaintiff 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.

         A. Third-Party Opinions

         Plaintiff 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).

         The ALJ 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.

         B. Medical Opinions

         Plaintiff 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);[4] and footnoting Combs v. Berryhill, 878 F.3d 642, 646 (8th Cir. 2017) (quoting Strongson v. Barnhart, 361 F.3d 1066, 1071 (8th Cir. 2004))).

         1. Standard for Evaluating Medical Opinions

         For claims filed before March 17, 2017, “[m]edical opinions are statements from physicians and psychologists or other acceptable medical sources[5] 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)).

         “If [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 Medical Opinions”).

         If the 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 ...

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