Goodwin v. Social Security Administration, Commissioner of

Filing 24

MEMORANDUM AND ORDER. The judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 3/12/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOHNATHAN M. GOODWIN,
Plaintiff,
vs.

Case No. 12-2021-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits and supplemental security income payments.
The matter has been fully briefed by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue, the former Commissioner of Social Security.
1

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

The determination of 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 really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).
2

The claimant's physical or

mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
3

If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On July 20, 2009, administrative law judge (ALJ) Guy E.

Taylor issued a decision denying plaintiff disability benefits
(R. at 9-17).

Plaintiff sought judicial review of the agency

action, and on September 8, 2010, the U.S. District Court of
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Kansas reversed and remanded the case for further hearing,
granting defendant’s motion to reverse and remand.

Goodwin v.

Astrue, Case No. 09-2623-JWL (D. Kan. Sept. 8, 2010; Doc. 25).
On September 13, 2011, administrative law judge (ALJ) Guy
E. Taylor issued a 2nd decision (R. at 760-769).

Plaintiff

alleges that he has been disabled since January 9, 2007 (R. at
760).

At step one, the ALJ found that plaintiff has not engaged

in substantial gainful activity since plaintiff’s alleged onset
date (R. at 762).

At step two, the ALJ found that plaintiff had

the following severe impairments: attention deficit
hyperactivity disorder and Asperger’s disorder (R. at 763).

At

step three, the ALJ determined that plaintiff’s impairments do
not meet or equal a listed impairment (R. at 763).

After

determining plaintiff’s RFC (R. at 764), the ALJ determined at
step four that plaintiff has no past relevant work (R. at 767).
At step five, the ALJ determined that plaintiff could perform
other jobs that exist in significant numbers in the national
economy (R. at 768).

Therefore, the ALJ concluded that

plaintiff was not disabled (R. at 769).
III.

Did the ALJ err in his consideration of the opinions of

the treatment providers?
The record contains a June 10, 2009 letter from Dr. Risk,
plaintiff’s treating psychiatrist from June 1, 2006 to June 10,
2009.

Dr. Risk indicated that he did not believe that plaintiff
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could work, noting that he is unreliable and unlikely to
complete assigned tasks and apparently continues to speak to
imaginary people.

Dr. Risk indicated that plaintiff has marked

impairments in maintaining social functioning, marked
deficiencies of concentration, persistence or pace resulting in
failure to complete tasks in a timely manner, and has repeated
episodes of decompensation.

Dr. Risk further opined that even a

minimal increase in mental demands or change in the environment
would be predicted to cause the plaintiff to decompensate (R. at
744-749).
The ALJ discounted the opinions of Dr. Risk, stating as
follows:
Both Dr. Risk and the case manager indicated
claimant was not always compliant with his
medication. The bulk of the evidence shows
that claimant’s condition is stable provided
he is consistent with his medication
regimen. Claimant testified he had not
taken any medication for at least nine
months. There is, however, no showing that
with a consistent medication regimen,
claimant would not be able to maintain
employment. Claimant’s concentration and
attention may be reduced but that does not
keep him from simple work activity as he has
demonstrated he is capable of performing
even without medication. Claimant’s moods
can be controlled with medication… .
(R. at 766-767).

However, the ALJ failed to mention this

statement from the Appeals Council when the case was remanded:
It appears from the discussion of this
evidence [the opinions of Dr. Risk] in the
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hearing decision that the Administrative Law
Judge rejected this opinion because the
medical evidence of record reflected that
the claimant was noncompliant with
medication and that when the claimant was
compliant, the claimant’s impairments were
not as severe as alleged by Dr. Risk.
However, the record contains evidence
consisting of copies of medication refills
indicating that the claimant was taking
medication at the time Dr. Risk rendered his
opinion.
(R. at 854).2

The Appeals Council directed the ALJ to resolve

this issue.
In his 2nd ALJ decision, the ALJ stated that there was no
showing that with a consistent medication regimen, the plaintiff
would not be able to maintain employment (R. at 766).

However,

as the Appeals Council noted, the record contains evidence
consisting of copies of medication refills indicating that the
plaintiff was taking medication at the time Dr. Risk rendered
his opinions.

The ALJ did not mention this evidence, and the

ALJ does not cite to any evidence that plaintiff was not taking
medication at the time Dr. Risk rendered his opinions.
Therefore, Dr. Risk stated that plaintiff was not able to work
even when plaintiff was taking his medication.

Thus, contrary

to the ALJ’s assertion, there was a showing, in the form of Dr.
Risk’s opinion, that even with a consistent medication regimen,
plaintiff would not be able to work.
2

The Appeals Council issued the remand order on October 15, 2010, after the 1st ALJ decision, and prior to the 2nd
ALJ decision now before the court.
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Dr. Scher, a non-examining medical source, testified at the
hearing (R. at 797).

Dr. Scher opined that plaintiff’s

limitations were less severe than those set forth by Dr. Risk
(R. at 801-805).

Dr. Scher also testified that the medication

was effective when plaintiff took it (R. at 803); however, he
further testified as follows:
He has quite a few limitations due to his
condition…Even under the best of
circumstances with the medications he’s
receiving, he still has potential for
exhibiting irritability, poor social
judgment. Maybe angry outbursts.
…………
There is no question that there’s episodic
defective behavior that is related to—-the
notes and to Dr. Risk’s notes and Dr.
Sharma’s notes.
But, again, these are not
pervasive and continuous and, certainly, are
much improved when he is taking medication.
But, despite taking medication, I still
believe this is someone who is still at risk
and would have to have great limitations in
terms of the kind of work that he could
consistently do.
…………
However, this is somebody, if you deviate
from a repetitive kind of setting, he would
have difficulty making reasoned judgment.
So, although, he was able to be educated
enough and practiced enough to drive a car,
I don’t think that it’s even a safe thing,
because something might happen that would be
a sort of routine for most people to
tolerate and deal with that he would find
intolerable and not deal with it
appropriately.

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…………
[When asked if there was just a minimal
increase in demands or changes in that job
environment, would he be able to handle
that, Dr. Scher responded as follows:]
I think with proper support and education
and patience, he would be able to handle
them. I think if it was unexpected,
unplanned and abruptly confronted with these
changes, I don’t think he could deal with
that.
(R. at 811, 812, 813-814, emphasis added).
In the ALJ’s RFC findings, plaintiff was limited to simple,
routine work with limited contact with supervisors, co-workers
and the public and with the opportunity for a lead worker to be
available for assistance (R. at 764).

The ALJ gave greater

weight to the opinions of Dr. Scher (R. at 767).

However, the

ALJ did not mention in his decision the opinion of Dr. Scher
that plaintiff, despite taking medication, is someone who is
still at risk and would have to have “great” limitations in
terms of the kind of work that he could consistently do, or that
even under the best circumstances with the medication he is
receiving, he still has the potential for exhibiting
irritability, poor social judgment, and maybe angry outbursts.
Neither did the ALJ mention or include in his RFC findings that
if plaintiff was abruptly confronted with an unexpected or
unplanned minimal increase in demands or changes in the job, he

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would not be able to handle it.3

These statement do not support

the ALJ’s assertion that plaintiff’s condition is stable
provided that he is consistent with his medication.

As Dr.

Scher noted, although he is much improved when he is taking
medication, he is still at risk, would have to have “great”
limitations in terms of the kind of work he could consistently
do, and could not handle a situation if confronted with an
unexpected or unplanned minimal increase in demands or changes
in a job environment.

Dr. Scher also testified that plaintiff

would need to occasionally have job coaching and assistance in
role playing and dealing with a situation; in other words, a
very limited environment (R. at 807).

The ALJ’s RFC findings do

not fully incorporate all of the limitations noted by Dr. Scher,
especially the limitation if plaintiff is abruptly confronted
with an unexpected or unplanned minimal increase in demands or
changes in a job environment; a similar limitation is included
in the report from Dr. Risk.
Furthermore, the record also contains a mental impairment
questionnaire prepared by Dr. Sharma, plaintiff’s treating
psychiatrist from March 2010 through January 2011 (R. at 11791184).

Dr. Sharma opined on May 4, 2011 that plaintiff has

marked limitations in activities of daily living, marked
difficulties in maintain social functioning, marked deficiencies
3

This opinion is similar to the opinion of Dr. Risk that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate (R. at 747).
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of concentration, persistence, or pace resulting in failure to
complete tasks in a timely manner, and has repeated episodes of
decompensation.

Dr. Sharma indicated that plaintiff would miss

more than four days a month because of his impairments or
treatment (R. at 1317-1320).

Dr. Scher disagreed with the

opinions of Dr. Sharma when he testified (R. at 805-807).
However, the ALJ, although he mentioned Dr. Scher’s testimony
regarding the opinions of Dr. Risk, never mentioned Dr. Scher’s
testimony regarding the opinions of Dr. Sharma.

At no time in

his decision did the ALJ discuss or mention the opinions of Dr.
Sharma, or indicate what weight, if any, he was according to the
opinions of Dr. Sharma.
An ALJ must evaluate every medical opinion in the record.
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

This

rule was recently described as a “well-known and overarching
requirement.”

Martinez v. Astrue, 2011 WL 1549517 at *4 (10th

Cir. Apr. 26, 2011).

Even on issues reserved to the

Commissioner, including plaintiff’s RFC and the ultimate issue
of disability, opinions from any medical source must be
carefully considered and must never be ignored.
Ruling (SSR) 96-5p, 1996 WL 374183 at *2-3.

Social Security

The ALJ “will”

evaluate every medical opinion that they receive, and will
consider a number of factors in deciding the weight to give to
any medical opinion.

20 C.F.R. §§ 404.1527(c), 416.927(c).
11

It

is clear legal error to ignore a medical opinion.

Victory v.

Barnhart, 121 Fed. Appx. 819, 825 (10th Cir. Feb. 4, 2005).
Furthermore, according to SSR 96-8p:
If the RFC assessment conflicts with an
opinion from a medical source, the
adjudicator must explain why the opinion was
not adopted.
1996 WL 374184 at *7.
Although an ALJ is not required to discuss every piece of
evidence, the ALJ must discuss significantly probative evidence
that he rejects.
(10th Cir. 1996).

Clifton v. Chater, 79 F.3d 1007, 1009-1010
Furthermore, the general principle that the

ALJ is not required to discuss every piece of evidence does not
control when an ALJ has opinion evidence from a medical source.
In such a situation, the ALJ must make clear what weight he gave
to that medical source opinion.

Knight v. Astrue, 388 Fed.

Appx. 768, 771 (10th Cir. July 21, 2010).
Defendant argues that the failure of the ALJ to address the
opinions of Dr. Sharma is harmless error because the ALJ
considered the testimony of Dr. Scher, who testified regarding
the opinions of Dr. Sharma.

Courts should apply the harmless

error analysis cautiously in the administrative review setting.
Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005).
However, it may be appropriate to supply a missing dispositive
finding under the rubric of harmless error in the right

12

exceptional circumstance where, based on material the ALJ did at
least consider (just not properly), the court could confidently
say that no reasonable factfinder, following the correct
analysis, could have resolved the factual matter in any other
way.

Fischer-Ross, 431 F.3d at 733-734; Allen v. Barnhart, 357

F.3d 1140, 1145 (10th Cir. 2004).
An ALJ must not consider the opinions of one treating
source in isolation, but his opinions must be considered in
light of the entire evidentiary record, including the opinions
and assessments of other treating sources.

The court is

concerned with the necessarily incremental effect of each
individual report or opinion by a source on the aggregate
assessment of the evidentiary record, and, in particular, on the
evaluation of reports and opinions of other medical treating or
examining sources, and the need for the ALJ to take this into
consideration.

See Lackey v. Barnhart, 127 Fed. Appx. 455, 458-

459 (10th Cir. April 5, 2005).

In general, more weight is given

to the opinions of a treating medical source than to the
opinions of other medical sources, and the opinions of an
examining medical source are entitled to more weight than the
opinions of a non-examining medical source.
404.1527(c)(1,2); 416.927(c)(1,2).

20 C.F.R. §

Furthermore, the ALJ must

provide a legally sufficient explanation for rejecting the
opinions of treating and examining medical sources in favor of a
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non-examining medical source.

Robinson v. Barnhart, 366 F.3d

1078, 1084 (10th Cir. 2004).
In light of the fact that two treating sources have opined
that plaintiff has more severe mental limitations than those
found by the ALJ, the problems with the ALJ’s analysis of the
opinions of Dr. Risk, and the failure to discuss or incorporate
all of the testimony of Dr. Scher regarding plaintiff’s
limitations in his RFC findings, the court cannot say that the
failure to discuss the opinions of Dr. Sharma was harmless
error.

Therefore, this case shall be remanded in order for the

ALJ to give proper consideration to all the medical opinion
evidence.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 12th day of March, 2013, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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