Diana L. v. Saul
| Decision Date | 07 November 2019 |
| Docket Number | CIVIL ACTION No. 18-2709-JWL |
| Parties | DIANA LYNNE L., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Kansas |
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.
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) () (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 whetherclaimant 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 . 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).
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 portionsof 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.
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 requiringremand. 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 speculateare 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...
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