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Kimberly K. L. v. Saul

United States District Court, D. Kansas

November 13, 2019

KIMBERLY K. L., [1] Plaintiff,
v.
ANDREW M. SAUL, [2] Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge.

         Plaintiff 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 this decision.

         I. Background

         Plaintiff 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.

         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” 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, 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 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. Discussion

         Plaintiff 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.

         A. The ALJ's Findings

         The ALJ 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 ...


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