Frost, II ex rel. Frost v. Astrue

• Decision Date: 29 April 2008
• Docket Number: No. 07-4056-JAR.,07-4056-JAR.
• Citation: 627 F.Supp.2d 1216
• Parties: Randolph S. FROST II, o/b/o, Randolph S. FROST, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Kansas

627 F.Supp.2d 1216

Randolph S. FROST II, o/b/o, Randolph S. FROST, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 07-4056-JAR.

United States District Court, D. Kansas.

April 29, 2008.

COPYRIGHT MATERIAL OMITTED

Scott L. Johnson, Steven M. Tilton, Tilton & Tilton, Chtd, Topeka, KS, for Plaintiff.

Tanya S. Wilson, Office of United States Attorney, Topeka, KS, for Defendant.

ORDER ADOPTING RECOMMENDATION AND REPORT

JULIE A. ROBINSON, District Judge.

Ten days having passed, and no written objections being filed to the proposed findings and recommendations filed by Magistrate Judge John Thomas Reid, and after a de novo determination upon the record pursuant to Fed.R.Civ.P. 72(b), the Court accepts the recommended decision and adopts it as its own.

IT IS THEREFORE ORDERED that the decision of the Commissioner on remand be reversed, and that judgment be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g), remanding this case for further proceedings in accordance with the April 9, 2008 Recommendation and Report (Doc. 16).

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

JOHN THOMAS REID, United States Magistrate Judge.

Plaintiff seeks review of a partially favorable decision of the Commissioner of Social Security (hereinafter Commissioner) pursuant to sections 216(I), 223, 1602 and 1614(a)(3)(A) of the Social Security Act, finding the claimant disabled beginning Feb. 14, 2006, but denying disability insurance benefits and supplemental security income at any time prior thereto. 42 U.S.C. §§ 416(I), 423, 1381a, and 1382c(a)(3)(A)(hereinafter the Act). Finding error, the court recommends reversal and remand for further proceedings in accordance with the fourth sentence of 42 U.S.C. § 405(g).

I. Background

Claimant first applied for disability insurance benefits (DIB) and supplemental security income (SSI) in Nov. and Dec. 1996 alleging disability beginning Oct. 4, 1995 due to back problems. (R. 805). After proceedings which resulted in an Appeals Council remand and a new hearing, Administrative Law Judge (ALJ) Susan B. Blaney issued a decision on Jun. 13, 2000 finding claimant not disabled at any time prior to the decision, and denying the claims. Id.; see also, (R. 31-51). Eventually, claimant sought and received judicial review of ALJ Blaney's Jun. 2000 decision. Frost v. Barnhart, No. 02-4106-JAR, 2004 WL 2058264 (D.Kan. Sept.9, 2004).¹

The district court reversed the Commissioner's decision and remanded the case for further proceedings. (R. 869). Judgment was entered in that case pursuant to the fourth sentence of 42 U.S.C. § 405(g) on Sept. 10, 2004. (R. 870). Of particular relevance here, the district court found that the ALJ failed to address the opinions of treating source physicians, Dr. Vernon, Dr. Hoffman, and Dr. Johnson. (R. 860-61). The court found that Dr. Ebelke, Dr. Clymer, and Dr. Amundson were examining² source physicians, not treating sources (R. 861-62), and specifically found that their "opinions should not be used to make any determination of [claimant's] disability after November 1997." (R. 862). The court noted that treating source opinions are to be evaluated based upon the procedures and criteria expressed in Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir.2003). (R. 860-61 & nn. 25-28). It noted that examining source opinions are to be evaluated based upon the same regulatory factors as treating source opinions. (R. 862)(citing Goatcher v. Dep't of Health & Human Servs., 52 F.3d 288, 290 (10th Cir.1995)). It remanded the case for further proceedings. (R. 869).

While ALJ Blaney's decision was pending review, the claimant again filed claims for DIB and SSI, and in due course received an unfavorable ALJ decision on Nov. 8, 2002. (R. 805-06). Claimant again sought Appeals Council review. (R. 806).

In an order dated Jan. 11, 2005, the Appeals Council granted the claimant's request for review of the decision on the second set of claims, consolidated both sets of claims, vacated the prior hearing decisions, and remanded the "case for further proceedings on the consolidated claims." (R. 850). After remand ALJ Blaney held three hearings in the case. (R. 806). At the first hearing, the ALJ and plaintiff's counsel discussed issues regarding the court's remand order, the extensive record, and which physicians had rendered medical opinions in the case and the status of those physicians. (R. 1598-1676). Claimant died before the next scheduled hearing, and the cause of death was determined to be coronary atherosclerosis contributed to by hypertension. (R. 1554). Claimant's son was eventually named as a substitute party, plaintiff's mother testified at the continuation of the second hearing, and a vocational expert testified at the third hearing. (R. 806, 1681-1734). On Mar. 9, 2007, ALJ Blaney issued a decision on remand in which she found at step three that claimant met Listing 4.04C1 (coronary artery disease) for the six months before his death, but not at any earlier time. (R. 805-21). She continued with the sequential evaluation process with regard to claimant's remaining claims, but found claimant not disabled within the meaning of the Act at any time before he became disabled by coronary artery disease, but she did not find any earlier period of disability.

The Appeals Council did not assume jurisdiction of the decision on remand, and therefore that decision is the final decision of the Commissioner. Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.2004); 20 C.F.R. §§ 404.984, 416.1484. Plaintiff, claimant's son, now seeks judicial review.

II. Legal Standard

The court's review is guided by the Act. 42 U.S.C. §§ 405(g), 1383(c)(3). Section 405(g) provides, "The findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court must determine whether the factual findings are supported by substantial evidence in the record and whether the ALJ applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.2007); White v. Barnhart, 287 F.3d 903, 905 (10th Cir.2001). Substantial evidence is more than a scintilla, but less than a preponderance, it is such evidence as a reasonable mind might accept to support a conclusion. Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004); Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.1988). The court may "neither reweigh the evidence nor substitute [it's] judgment for that of the agency." White, 287 F.3d at 905 (quoting Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 800 (10th Cir.1991)); Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.2005). The determination of whether substantial evidence supports the Commissioner's decision, however, 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).

An individual is under a disability only if that individual can establish that he has a physical or mental impairment which prevents him from engaging in substantial gainful activity and is expected to result in death or to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d). The claimant's impairments must be of such severity that he is not only unable to perform his past relevant work, but cannot, considering his age, education, and work experience, engage in any other substantial gainful work existing in the national economy. Id.

The Commissioner has established a five-step sequential process to evaluate whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920 (2006); Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004); Ray, 865 F.2d at 224. "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." Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.1988).

In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity, whether he has severe impairments, and whether the severity of his impairments meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Id. at 750-51. If claimant's impairments do no meet or equal the severity of a listing, the Commissioner assesses his RFC. 20 C.F.R. §§ 404.1520, 416.920. This assessment is used at both step four and step five of the process. Id.

After assessing claimant's RFC, the Commissioner evaluates steps four and five—whether the claimant can perform his past relevant work, and whether he is able to perform other work in the national economy. Williams, 844 F.2d at 751. In steps one through four the burden is on claimant to prove a disability that prevents performance of past relevant work. 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 other jobs in the national economy within claimant's capacity. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir.1999).

In a 123-page brief, plaintiff made numerous allegations of error. He claimed the ALJ erred in weighing the opinions of ten physicians who were treating sources or examining sources, and of one who was a chiropractor, an "other" medical source. (Pl.Br.76-96). He claimed the ALJ erred in her credibility determination; in implying at step two that the ALJ's characterization of the "severe" impairments was agreed to by plaintiff; in determining the onset date of plaintiff's disabling coronary artery disease; and, as a result of the above-named errors, in relying upon the incomplete hypothetical presented to the vocational expert. (Pl.Br.97-120). Finally, plaintiff argued that the decision must be reversed and remanded for an immediate award of benefits because additional fact-finding cannot be had due to claimant's death, and because the Commissioner...