Mosher v. Astrue
| Decision Date | 19 March 2007 |
| Docket Number | Civil Action No. 06-2001-KHV. |
| Citation | 479 F.Supp.2d 1196 |
| Parties | Daniel D. MOSHER, Plaintiff, v. Michael J. ASTRUE,<SMALL><SUP>1</SUP></SMALL> Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Kansas |
Patrick E. Henderson, Henderson Law Office, Atchison, KS, for Plaintiff.
Christopher Allman, Office of United States Attorney, Kansas City, KS, for Defendant.
Daniel D. Mosher appeals the final decision of the Commissioner of Social Security to deny disability insurance benefits. On January 19, 2007, Magistrate Judge John T. Reid recommended that the Commissioner's decision be reversed and that the case be remanded for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). See Report And Recommendation (Doc. # 15). This matter is before the Court on Defendant's Objection To Magistrate's Report And Recommendation With Suggestions In Support (Doc. # 16) filed February 2, 2007. For reasons stated below, the Court overrules defendant's objection and adopts the magistrate judge's report and recommendation as follows.
Defendant argues that the Court should not adopt the magistrate's recommendation because (1) the magistrate based his recommendation to remand on an issue not raised in plaintiffs brief; (2) the magistrate improperly recommended remand based on Appeals Council findings which are not subject to judicial review; and (3) the magistrate did not evaluate whether the Commissioner's final decision was supported by substantial evidence.
Defendant objects that the magistrate based his decision on an issue not raised in plaintiffs brief: whether the ALJ properly articulated how he weighed the opinion of the treating physician. Plaintiff correctly notes that he raised this issue in his complaint. See Complaint (Doc. # 1) filed January 3, 2006, ¶¶ 12-13 (). The Tenth Circuit has not specifically addressed whether the district court can rely on an issue raised in a social security complaint but not specifically addressed in the claimant's brief.2 Plaintiff certainly should have raised the issue in his brief. Because plaintiff raised the issue in his complaint, however, the Court does not believe the magistrate should be precluded from addressing the issue. See generally 5 U.S.C. § 706 (); 42 U.S.C. § 405(g) (). The Court therefore overrules defendant's objection on this ground.
Defendant objects that the magistrate improperly recommended remand based on Appeals Council findings which are not subject to judicial review. The magistrate stated as follows:
The Appeals Council's statement that no additional clinical evidence was provided to support the opinion of disability is not supported by the evidence contained in the record. The additional evidence accepted by the Appeals Council includes Dr. Seibert's treatment notes which constitute clinical evidence. (R. 603-04). If the Appeals Council intended to assert that the clinical evidence provided does not support a finding of disability, it did not state what is deficient or lacking in the treatment notes, and the court may not "create post-hoc rationalizations to explain the Commissioner's treatment of evidence when that treatment is not apparent from the Commissioner's decision itself." Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir.2005) (); see also, Knipe v. Heckler, 755 F.2d 141, 149 n. 16 (10th Cir.1985). Remand is therefore necessary for the Commissioner to properly evaluate the medical opinions and explain the weight given.
Report And Recommendation (Doc. # 15) at 14. Defendant argues that to the extent the magistrate recommended remand based on the alleged error by the Appeals Council, such a recommendation is improper because the denial of plaintiff's request for review by the Appeals Council was not the Commissioner's final decision. In context, however, the magistrate's recommendation appears to be based on both the ALJ failure to properly evaluate the opinion of plaintiff's treating physician and the Appeals Council findings on plaintiff's request for, review. The Commissioner does not dispute that to the extent Judge Reid relies on the ALJ failure to properly evaluate the opinion of plaintiffs treating physician, his recommendation is sound.3 The Court therefore adopts the magistrate's report and recommendation to the extent it relies on that ground. The Court therefore need not evaluate whether the magistrate could also rely on the findings of the Appeals Council.
Defendant objects that the magistrate did not evaluate whether the Commissioner's final decision was supported by substantial evidence. Defendant maintains that an ALJ's inadequate articulation of a substantive finding is harmless if the Commissioner's decision is nonetheless supported by the record. See Defendant's Objection (Doc. # 16) at 5 (citing Fisher-Ross v. Barnhart, 431 F.3d 729, 735 (10th Cir.2005)). The Commissioner's decision can be upheld on this basis only in the "exceptional circumstance," Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.2004), where the Court can "confidently say that no reasonable administrative fact-finder, following the correct analysis, could have resolved the factual matter in any other way," Fischer-Ross, 431 F.3d at 733-34. For substantially the reasons in the magistrate judge's Report And Recommendation (Doc. # 15) and Plaintiffs Social Security Brief (Doc. # 9), the Court finds that the Commissioner's final decision cannot be affirmed under a harmless error analysis. The Court therefore overrules defendant's objection on this ground.4
IT IS THEREFORE ORDERED that Defendant's Objection To Magistrate's Report And Recommendation With Suggestions In Support (Doc. # 16) filed February 2, 2007 be and hereby is OVERRULED. The Court adopts the magistrate judge's report and recommendations as set forth above.
IT IS FURTHER ORDERED that the Commissioner's decision be and hereby is REVERSED. This case is REMANDED pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings.
Plaintiff seeks, review of a final decision of the Commissioner of Social Security (hereinafter Commissioner) denying disability insurance benefits under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). The matter has been referred to this court for a report and recommendation. The court recommends the Commissioner's decision be REVERSED and the case be REMANDED for proceedings consistent with this opinion.
Plaintiffs applications for disability insurance benefits were denied initially and upon reconsideration. (R. 32, 59-62). Plaintiff sought and was given a hearing before an Administrative Law Judge (ALJ). Plaintiff was represented by an attorney at the hearing, and testimony was taken from plaintiff, his wife, and a vocational expert. (R. 32, 607-39). The ALJ issued a decision dated May 10, 2004 in which he found, plaintiff not disabled within the meaning of the Act, and denied his applications. (R. 32-43). Specifically, the ALJ found that plaintiff has a severe combination of impairments which does not meet or equal the severity of an impairment listed in the Listing of Impairments, but which prevents performance of plaintiffs past relevant work. He determined that plaintiff is capable of performing other work existing in the economy and is, therefore, not disabled. Consequently, he denied plaintiff's application for disability insurance benefits and refused to reopen an earlier application.
Plaintiff sought review by the Appeals Council (R. 11-28) and submitted additional evidence to the Council consisting of an opinion letter from Dr. John K. Eplee, and three opinion letters and two progress notes concerning office visits on Mar. 10, 2003 and July 9, 2004 from Dr. Dina J. Seibert. (R. 598-606). On Nov. 1, 2005, the Appeals Council issued an order making the additional evidence a part of the administrative record in plaintiffs case (R. 10) and notified plaintiff of its decision to deny review. (R. 7-9). Therefore, the ALJ decision is the final decision of the Commissioner. (R. 7); Threet v. Barnhart, 353 F.3d 1185, 1187 (10th Cir.2003). Plaintiff now seeks judicial review.
The court's review is guided by the Act. 42 U.S.C. § 405(g). "The findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." Id. 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. 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 the conclusion. 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)). 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...
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