Hegwer 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. Signed by U.S. District Senior Judge Sam A. Crow on 2/10/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JON R. HEGWER,
Plaintiff,
vs.

Case No. 15-9285-SAC

NANCY A. BERRYHILL,
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.

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).
1

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

Substantial evidence requires more than a

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting 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).
This case involves termination of benefits after plaintiff
was found disabled.

An eight-step sequential evaluation process

is used in termination-of-benefit reviews in a case involving
disability insurance benefits.

If the Commissioner meets his

burden of establishing that the claimant’s medical condition has
4

improved and that the improvement is related to the claimant’s
ability to work, the Commissioner must then demonstrate that the
claimant is currently able to engage in substantial gainful
activity.
2004).

Hayden v. Barnhart, 374 F.3d 986, 988 (10th Cir.

The burden of proof is on the Commissioner in a

termination-of-benefits review.

Hayden, 374 F.3d at 991; Glenn

v. Shalala, 21 F.3d 983, 987 (10th Cir. 1994).
The eight-step sequential evaluation process is as follows:
(1) Is the claimant engaged in substantial gainful activity? (If
yes, and any applicable trial work period has been completed,
the agency will find that disability has ended).
(2) Does the claimant have an impairment or combination of
impairments which meets or equals the severity of a listed
impairment? (If yes, the claimant is still disabled.)
(3) If not, has there been medical improvement?

If there has

been medical improvement, as shown by a decrease in medical
severity, see step 4.

If there has been no decrease in medical

severity, there has been no medical improvement (see step 5).
(4) If there has been medical improvement, the agency must
determine whether it is related to the claimant’s ability to
work (whether there has been an increase in the residual
functional capacity (RFC) based on the impairment that was
present at the time of the most favorable medical
determination).

If medical improvement is not related to the
5

claimant’s ability to work, see step 5.

If medical improvement

is related to claimant’s ability to work, see step 6.
(5) If no medical improvement was found at step 3, or that the
medical improvement was found at step 4 not to be related to
claimant’s ability to work, the agency considers a number of
exceptions; if none of them apply, claimant’s disability will be
found to continue.
(6) The agency will next determine whether all of the claimant’s
current impairments in combination are severe.

If claimant has

no severe impairments, claimant will no longer be considered
disabled.
(7) If claimant’s impairments are severe, the agency will assess
the claimant’s current ability to do substantial gainful
activity.

The agency will assess the claimant’s RFC and

consider whether the claimant can perform past work.

If

claimant can perform past work, claimant will no longer be
considered disabled.
(8) If claimant cannot perform past work, the agency will
consider, given claimant’s RFC, whether claimant can perform
other work in the national economy.
20 C.F.R. § 404.1594(f).
To apply the medical improvement test, the ALJ must first
compare the medical severity of the current impairment(s) to the
severity of the impairment(s) which was present at the time of
6

the most favorable medical decision finding the claimant
disabled.

Then, in order to determine that medical improvement

is related to ability to work, the ALJ must reassess a
claimant’s RFC based on the current severity of the
impairment(s) which was present at the claimant’s last favorable
medical decision.

The ALJ must then compare the new RFC with

the RFC before the putative medical improvements.

The ALJ may

find medical improvement related to an ability to work only if
an increase in the current RFC is based on objective medical
evidence.

Shepherd v. Apfel, 184 F.3d 1196, 1201 (10th Cir.

1999).
II.

History of case
In May 2001 plaintiff was found disabled as of June 28,

2000 because of fractures of his arms requiring ongoing medical
management.

A continuing disability review dated May 19, 2008

found that plaintiff’s condition had medically improved
beginning May 15, 2008, and his period of disability was
terminated effective July 31, 2008 (R. at 491).

After

exhausting administrative remedies, plaintiff sought judicial
review, and on October 24, 2013 Judge Lungstrum reversed and
remanded the decision of the Commissioner because of her failure
to evaluate the medical opinion of Dr. Majure-Lees (R. at 490500).

7

On June 2, 2015, administrative law judge (ALJ) George M.
Bock issued his decision (R. at 469-476).

The most recent

favorable medical decision finding that plaintiff was disabled
is the decision dated August 30, 2003.
comparison point decision (CPD).

This is known as the

At the time of the CPD,

plaintiff had medically determinable impairments which met a
listed impairment.

Through May 1, 2008, the date plaintiff’s

disability ended, plaintiff did not engage in substantial
gainful activity.

As of May 1, 2008, plaintiff had medically

determinable impairments (R. at 471).

However, those

impairments did not meet or equal a listed impairment (R. at
472).
The ALJ then found that medical improvement occurred as of
May 1, 2008.

The ALJ found that the medical improvement is

related to the ability to work because, as of May 1, 2008,
plaintiff’s CPD impairment no longer met or medically equaled
the same listing that was met at the time of the CPD.

As of May

1, 2008, plaintiff continued to have a severe impairment or
combination of impairments.

The ALJ then determined plaintiff’s

RFC as of May 1, 2008, which limited plaintiff to light work
with some additional limitations (R. at 472).

The ALJ

determined that, as of May 1, 2008, plaintiff was unable to
perform past relevant work, but was able to perform a
significant number of other jobs in the national economy (R. at
8

475-476).

Therefore, the ALJ concluded that plaintiff’s

disability ended as of May 1, 2008 (R. at 476).
III.

Did the ALJ err by failing to consider the opinions of Dr.

Brooks, plaintiff’s treating physician?
An ALJ must evaluate every medical opinion in the record.
Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

This

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

Martinez v. Astrue, 422 Fed. Appx. 719, 724 (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).

is clear legal error to ignore a medical opinion.

Victory v.

Barnhart, 121 Fed. Appx. 819, 825 (10th Cir. Feb. 4, 2005).
According to SSR 96-8p:
The RFC assessment must always consider and
address medical source opinions. 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.

9

It

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).
At the hearing on March 19, 2015, plaintiff’s counsel
notified the ALJ that they were adding to the record treatment
records from Dr. Brooks (R. at 920).

The transcript index shows

that those medical records were added subsequent to the hearing
(R. at 4J).
On October 6, 2014, Dr. Brooks noted that plaintiff’s left
knee had some obvious degenerative changes, and that he has
limited flexion and extension.
left lower extremity.

He found diminished power in the

He further noted a flat affect with

limited ability to think abstractly consistent with TBI
(traumatic brain injury).
shoulder (R. at 914).

Pain was also noted in the right

On November 3, 2014, Dr. Brooks assessed

generalized anxiety with panic and chronic pain (R. at 896).
On December 1, 2014, Dr. Brooks mentioned in relation to
plaintiff’s recent work activity that plaintiff had trouble
10

being on his feet for more than 4 hours and had a very difficult
time with memory.

Dr. Brooks stated: “Cannot imagine being able

to work due to the injuries and pain and also due to the memory
problems” (R. at 900).
related to TBI.

Dr. Brooks also noted memory problems

Dr. Brooks recorded plaintiff’s mother as

indicating that plaintiff’s coping skills are minimal, that he
is angry or depressed, that he cannot spell and write very well
(a major change from the past), that he has a lot of difficulty
completing tasks and multitasking, that he has no drive or
initiative, and he has no focus.

Dr. Brooks concluded his

report by stating: “I do think he is totally and chronically
disabled and would support disability in his case” (R. at 900).
Dr. Brooks saw plaintiff on December 30, 2014.

He noted

that plaintiff was having a lot of right shoulder pain, and pain
in the left elbow and left knee.

He stated that plaintiff’s

memory was worsening and that he suffered from chronic pain.

He

stated that: “I do agree that the disability route is
appropriate for him” (R. at 912).
Dr. Brooks saw plaintiff on January 27, 2015.

He noted

that plaintiff had ongoing pain issues and was having trouble
with memory.

He assessed chronic pain and traumatic brain

injury (R. at 908).
The final report from Dr. Brooks is on March 19, 2015.

He

states that plaintiff continue to have a lot of pain in his left
11

knee and that he has not been able to stand for long periods of
time.

Dr. Brooks notes that plaintiff’s memory seems to be

worsening.

He found that plaintiff’s left knee has diffuse

tenderness, limited flexion and full extension, and some joint
space hypertrophy as well (R. at 916).
In these medical reports, Dr. Brooks stated that, in his
opinion, plaintiff is totally and chronically disabled.

In

addition to the problems with plaintiff’s left arm (the ALJ
found that plaintiff had no use of his left arm or left hand, R.
at 472), Dr. Brooks also noted that plaintiff had degenerative
changes in his left knee with limited flexion and extension; Dr.
Brooks further assessed plaintiff with TBI (traumatic brain
injury) with memory problems; he also noted on two occasions
that plaintiff had a lot of right shoulder pain.
However, the ALJ failed to mention these reports, including
the opinion of Dr. Brooks that plaintiff was disabled, even
though he was notified at the hearing by plaintiff’s counsel
that he would be adding these medical records to the record in
this case, and the transcript index indicates that they were in
fact added after the hearing.

The failure to mention these

reports and the opinion of Dr. Brooks is especially inexcusable
in light of the fact that this case was previously remanded by
Judge Lungstrum because of the same ALJ’s failure in his 2010
decision to discuss the medical opinion of Dr. Majure-Lees (R.
12

at 15-26, 490-500).

As Judge Lungstrum stated in his opinion,

citing to SSR 96-8p, the RFC assessment must always consider and
address medical opinions.

If the RFC conflicts with an opinion

from a medical source, the ALJ must explain why the opinion was
not adopted (R. at 497).

The regulations, rulings and case law

are clear and unambiguous that every medical opinion must be
addressed by the ALJ.
In the case before the court, Dr. Brooks opined that
plaintiff was disabled, and further discussed plaintiff’s
impairments and limitations regarding his left arm, left knee,
right shoulder and TBI with related memory issues.

As this

court set forth above, even on issues reserved to the
Commissioner, including whether an individual is disabled,
opinions from any medical source on an issue reserved to the
Commissioner must be carefully considered and must never be
ignored.

SSR 96-5p, 1996 WL 374183 at *2-3.

In the case of Ramirez v. Astrue, 255 Fed. Appx. 327 (10th
Cir. Nov. 20, 2007), Dr. Davis examined the claimant and found a
number of impairments, which he noted in his report.

Dr. Davis

concluded, given his multiple health problems, that it was
unlikely that he would be able to engage in any significant type
of work activity until he is recovered.

255 Fed. Appx. at 328.

However, the ALJ made no reference to the opinion of Dr. Davis
that claimant could not work.

The court held that because the
13

opinion of Dr. Davis that plaintiff could not work conflicted
with the ALJ’s determination that Mr. Ramirez could perform
light work, the ALJ was directed on remand to make specific
findings explaining why he did not adopt the opinions of Dr.
Davis in accordance with SSR 96-8p.

The court stated that

although the issue of whether Mr. Ramirez was able to work is an
issue reserved to the Commissioner, the court, citing to SSR 965p, held that the controlling rules nonetheless provide that
ALJs must always consider medical source opinions about any
issue, including opinions about issues that are reserved to the
Commissioner.

255 Fed. Appx. at 332-333.

In the case of Marsh v. Colvin, 792 F.3d 1170 (9th Cir.
2015), Dr. Betat stated in his medical note on the claimant that
she has chronic bursitis to the point that she is pretty much
nonfunctional, and cannot concentrate enough to do office work.
He indicated that the patient “appears to be disabled” and that
it seems to be legitimate, although it is sometimes difficult to
tell for sure.

792 F.3d at 1171.

The ALJ failed to even

mention Dr. Betat or his medical notes, including his opinion
that she appears to be disabled.

792 F.3d at 1172.

The court

held that an ALJ cannot in its decision totally ignore a
treating doctor and his or her notes which contain a medical
opinion.

792 F.3d at 1172-1173.

that the error was not harmless.
14

The court further concluded
792 F.3d at 1173.

Finally, in the case of Watkins v. Barnhart, 350 F.3d 1297
(10th Cir. 2003), Dr. Rowland stated that because of plaintiff’s
multiple health problems, including chronic back pain, knee
pain, and sleep apnea, Dr. Rowland concluded that plaintiff was
unable to work an eight-hour day doing anything, sitting or
standing.

350 F.3d at 1299.

This opinion clearly addresses

whether the claimant was disabled, an issue reserved to the
Commissioner.

The ALJ, contrary to the opinion of Dr. Rowland,

found that plaintiff could perform light work.
1299-1300.

350 F.3d at

The court held as follows:
Here, the ALJ failed to articulate the
weight, if any, he gave Dr. Rowland’s
opinion, and he failed also to explain the
reasons for assigning that weight or for
rejecting the opinion altogether. We cannot
simply presume the ALJ applied the correct
legal standards in considering Dr. Rowland’s
opinion. We must remand because we cannot
meaningfully review the ALJ’s determination
absent findings explaining the weight
assigned to the treating physician’s
opinion.

350 F.3d at 1301.
Defendant argues that the opinions of Dr. Brooks are not
entitled to any special significance, and that the ALJ did
discuss the opinions of Ms. Ensminger, an assistant to Dr.
Brooks.

Defendant argues that the ALJ’s reasoning for

discounting the opinions of Ms. Ensminger would apply with equal
force to the statements and opinions of Dr. Brooks, and that the

15

error is therefore harmless (Doc. 21 at 18).

This also raises

the issue of whether the ALJ erred in his consideration of the
opinions of Ms. Ensminger.

For the reasons set forth below, the

court finds that the ALJ erred in his analysis of the opinions
of Ms. Ensminger.

The court further concludes that defendant’s

argument that the ALJ’s failure to consider the opinions of Dr.
Brooks is harmless error is without merit.
Ms. Ensminger, a physician assistant (who worked for Dr.
Brooks), opined on July 29, 2010 that due to the severe nature
of plaintiff’s injuries he continues to suffer from ongoing pain
and debilitating orthopedic problems.

She opined that plaintiff

will have some degree of disability for the rest of his life and
at present is completely disabled (R. at 384).

The ALJ

discounted her opinions because they are inconsistent with
plaintiff’s lack of treatment, and because the source is not an
acceptable medical source (R. at 474).
First, the ALJ discounted her opinions because they were
inconsistent with her lack of treatment.

However, at the

hearing in 2010, plaintiff testified that he had lost his health
insurance, and thus had not been able to see his health care
providers (R. at 455).

SSR 96-7p states the following:

On the other hand, the individual's
statements may be less credible if the level
or frequency of treatment is inconsistent
with the level of complaints, or if the
medical reports or records show that the
16

individual is not following the treatment as
prescribed and there are no good reasons for
this failure. However, the adjudicator must
not draw any inferences about an
individual's symptoms and their functional
effects from a failure to seek or pursue
regular medical treatment without first
considering any explanations that the
individual may provide, or other information
in the case record, that may explain
infrequent or irregular medical visits or
failure to seek medical treatment...The
explanations provided by the individual may
provide insight into the individual's
credibility.

SSR 96-7p, 1996 WL 374186 at *7 (emphasis added); cited with
approval in Madron v. Astrue, 311 Fed. Appx. 170, 178 (10th Cir.
Feb. 11, 2009).

The fact than an individual may be unable to

afford treatment and may not have access to free or low-cost
medical service is a legitimate excuse.
at 178; SSR 96-7p, 1995 WL 374186 at *8.

Madron, 311 Fed. Appx.
Thus, the ALJ erred by

discounting the opinion of the physician assistant without
considering plaintiff’s testimony that he could not afford
medical treatment due to the loss of insurance.
Second, the ALJ discounted the opinion of the physician
assistant because she is not an acceptable medical source.

A

physician assistant is not an “acceptable medical source” under
the regulations.

20 C.F.R. § 404.1513(a).

However, evidence

from “other medical sources,” including a physician assistant,
may be based on special knowledge of the individual and may

17

provide insight into the severity of an impairment and how it
affects the claimant’s ability to function.

Opinions from other

medical sources are important and should be evaluated on key
issues such as impairment severity and functional effects, along
with the other relevant evidence in the file.

The fact that an

opinion is from an “acceptable medical source” is a factor that
may justify giving that opinion greater weight than an opinion
from a medical source who is not an “acceptable medical source”
because “acceptable medical sources” are the most qualified
health care professionals.

However, depending on the particular

facts in a case, and after applying the factors for weighing
opinion evidence, an opinion from a medical source who is not an
“acceptable medical source” may outweigh the opinion of an
“acceptable medical source,” including the medical opinion of a
treating source.

SSR 06-03p, 2006 WL 2329939 at **2,3,5.

Thus,

the ALJ should have considered the opinion of the physician
assistant in accordance with SSR 06-03p.
Third, unlike Ms. Ensminger, Dr. Brooks is an acceptable
medical source, whose opinions are generally entitled to greater
weight.

Thus, discounting the opinion of a physician assistant

because her opinion is not that of an acceptable medical source
has no bearing on weighing the opinion of an acceptable medical
source.

18

Fourth, the fact that an acceptable medical source also
found plaintiff to be disabled, may, to a reasonable factfinder,
provide corroboration for the earlier opinion of Ms. Ensminger,
and may therefore result in the ALJ being less dismissive of Ms.
Ensminger’s assessment.

See Trujillo v. Colvin, 626 Fed. Appx.

749, 751-752 (10th Cir. Sept. 24, 2015).

The ALJ must not

consider the opinions of the medical and other examining sources
in isolation, but their opinions must be considered in light of
the entire evidentiary record, including the opinions and
assessments of all of the medical and other examining 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 all of
the medical and other 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).
Fifth, the opinions of Dr. Brooks were made concurrent with
treatment provided from October 2014 through March 2015, over 4
years after the opinions offered by Ms. Ensminger.

Those

treatment records include assessments of plaintiff’s left knee,
right shoulder and TBI impairments.

The ALJ must examine the

opinions of Dr. Brooks in light of all the medical records,

19

including the treatment records from the time period in which
those opinions were offered.
Sixth, as the regulations, rulings and case law cited above
make clear, the ALJ must address a medical source opinion that a
plaintiff is disabled or unable to work.

As set forth above,

even on issues reserved to the Commissioner, including the
ultimate issue of disability, opinions from any medical source
must be carefully considered and must never be ignored.

Social

Security Ruling (SSR) 96-5p, 1996 WL 374183 at *2-3.
Finally, defendant argues that the ALJ is not required to
discuss every piece of evidence in the record, including the
opinions of Dr. Brooks (Doc. 21 at 18).
statement of the law.

This is not a correct

Again, as set forth above, although an

ALJ is not required to discuss every piece of evidence, the ALJ
must discuss significantly probative evidence that he rejects.
Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th Cir. 1996).
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).

For all of these reasons, the

court concludes that the failure to consider the opinions of Dr.
Brooks is not harmless error.
20

The ALJ has yet again failed to address a medical source
opinion.

Therefore, this case shall be remanded in order for

the Commissioner to consider the reports of Dr. Brooks regarding
plaintiff’s left knee impairment, right shoulder pain and TBI
(and related memory problems), and his opinion that plaintiff is
disabled.

The ALJ must also reexamine the weight to be accorded

to the opinions of Ms. Ensminger, a physician assistant, for the
reasons set forth above.
Plaintiff has also taken issue with the ALJ’s RFC findings
and his credibility analysis.

The court will not address these

issues because they may be affected by the ALJ’s resolution of
the case on remand after the ALJ gives further consideration to
the medical evidence and medical opinions, as set forth above.
See Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004).
IV.

Should this case be reversed for an award of reinstatement

of benefits or for further hearing?
When a decision of the Commissioner is reversed, it is
within the court’s discretion to remand either for further
administrative proceedings or for an immediate award of
benefits.

When the defendant has failed to satisfy their burden

of proof at step five, and when there has been a long delay as a
result of the defendant’s erroneous disposition of the
proceedings, courts can exercise their discretionary authority
to remand for an immediate award of benefits.
21

Ragland v.

Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993).

The defendant is

not entitled to adjudicate a case ad infinitum until it
correctly applies the proper legal standard and gathers evidence
to support its conclusion.

Sisco v. United States Dept. of

Health & Human Services, 10 F.3d 739, 746 (10th Cir. 1993).

A

key factor in remanding for further proceedings is whether it
would serve a useful purpose or would merely delay the receipt
of benefits.

Harris v. Secretary of Health & Human Services,

821 F.2d 541, 545 (10th Cir. 1987).

Thus, relevant factors to

consider are the length of time the matter has been pending, and
whether or not, given the available evidence, remand for
additional fact-finding would serve any useful purpose, or would
merely delay the receipt of benefits.
F.3d 615, 626 (10th Cir. 2006).

Salazar v. Barnhart, 468

The decision to direct an award

of benefits should be made only when the administrative record
has been fully developed and when substantial and uncontradicted
evidence in the record as a whole indicates that the claimant is
disabled and entitled to benefits.

Gilliland v. Heckler, 786

F.2d 178, 184, 185 (3rd Cir. 1986).
Although the court is gravely concerned with the delay
engendered by the ALJ twice failing to consider all of the
medical opinion evidence, the court does not find substantial
and uncontradicted evidence that plaintiff is disabled.
Therefore, this case shall be remanded for further hearing.
22

However, defendant is again reminded that it is not entitled to
adjudicate a case ad infinitum until it correctly applies the
proper legal standard and gathers evidence to support its
conclusion.
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 10th day of February 2017, Topeka, Kansas.

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

23