United States District Court, D. Kansas
KIMBERLY K. L.,  Plaintiff,
ANDREW M. SAUL,  Commissioner of Social Security, Defendant.
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) and
Supplemental Security Income (SSI) benefits pursuant to
sections 216(i), 223, 1602, and 1614(a) of the Social
Security Act, 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a) (hereinafter the Act). Finding error in the
Administrative Law Judge's (ALJ) failure to evaluate the
opinion of Dr. Steventon, who examined Plaintiff at the
request of the Commissioner, the court ORDERS that the final
decision shall be REVERSED and that judgment shall be entered
pursuant to the fourth sentence of 42 U.S.C. § 405(g)
REMANDING the case for further proceeding consistent with
filed applications for DIB and SSI on August 4, 2014. (R.
230-42). At the hearing Plaintiff amended her onset date to
July 28, 2012. Id. at 35. 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). Plaintiff argues that the ALJ
erred in accepting the vocational expert (VE) testimony
without explaining why he accepted the testimony that was
inconsistent with the Dictionary of Occupational
Titles (DOT). She argues that the ALJ erred in
evaluating the medical opinion of Plaintiff's treating
physician, Dr. Slomka, both by applying an incorrect standard
and by according his opinion insufficient weight.
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”
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, 416.920; 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), 416.920(e). This assessment is used
at both step four and step five of the sequential evaluation
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).
argues that Dr. Slomka treated Plaintiff from September 6,
2012 through the date of the ALJ hearing, July 12, 2017, that
the Commissioner requires a particular procedure to evaluate
a treating physician's opinion, and that the ALJ did not
follow that procedure. She argues that Dr. Slomka opined that
Plaintiff is a candidate for disability but that the ALJ
erroneously accorded no weight to this opinion. (Pl. Br. 10)
(citing R. 21, 462). She argues that Dr.Slomka's opinion
is supported by the objective evidence including the report
of an examination made by Dr. Steventon. Id. at
10-11 (quoting R. 446). In response, the Commissioner argues
that Dr. Slomka did not render a “medical
opinion” within the meaning of the Act and regulations
and it was not error for the ALJ to accord that opinion no
weight. He argues that in any case the ALJ provided good
reasons to discount Dr. Slomka's opinion.
The ALJ's Findings
summarized Plaintiff's treatment with Dr. Slomka and the
other treatment providers at the Ellsworth Medical Clinic.
(R. 19-21) (citing Exs. 13F, 16F, 17F). She noted that in
2012 and 2013 Plaintiff was treated primarily for a broken
right wrist and associated pain and “she failed to
report experiencing any additional physical
complaints.” (R. 19) (citing Ex. 13F/15). She noted
that in 2014 the only treatment recommended for
Plaintiff's breathing problems was medications, inhaler,
and nebulizer. Id. at 20. She recognized treatment
with Dr. Slomka in February 2015 when Plaintiff
presented to her providers for completion of her disability
paperwork and reported that she was experiencing increasing
back pain and depression (Ex. 13F/7). However, notably, while
her provider reported that the claimant's back and neck
pain (according to her) did make it substantially difficult
for her to obtain gainful employment, upon examination, this
provider noted that her neck was supple and showed no
tenderness, her gait was normal and strength remained five
out of five (Ex. 13F/8).
(R. 20). She noted, “This presentation continued
throughout 2015 and 2016, as providers continued to find the
claimant physically stable and in no acute distress (Ex.
16F/12, 17F/5, 20).” Id. She later continued,
“while the claimant did continue to report to her
providers with the occasional complaints of depression, her
providers recommended nothing more than medications and