Zagorsky v. Social Security Administration, Commissioner of
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 9/8/17. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HEATHER LAYLA FOXX ZAGORSKY,
Case No. 16-2636-SAC
NANCY A. BERRYHILL,
Acting Commissioner of
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
The matter has been fully briefed by the
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
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.
Glenn v. Shalala, 21 F.3d 983, 984
On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
(10th Cir. 1994).
Substantial evidence requires more than a
scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
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
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.
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
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.
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).
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
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.”
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.
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.
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
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).
Commissioner meets this burden if the decision is supported by
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).
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);
History of case
On March 5, 2015, administrative law judge (ALJ) Christina
Young Mein issued her decision (R. at 39-48).
that she has been disabled since July 31, 2010 (R. at 39).
Plaintiff is insured for disability insurance benefits through
December 31, 2015 (R. at 41).
At step one, the ALJ found that
plaintiff has not engaged in substantial gainful activity since
the alleged onset date (R. at 41).
At step two, the ALJ found
that plaintiff has severe impairments (R. at 41).
three, the ALJ determined that plaintiff’s impairments do not
meet or equal a listed impairment (R. at 41).
plaintiff’s RFC (R. at 43), the ALJ found at step four that
plaintiff is unable to perform any past relevant work (R. at
At step five, the ALJ found that plaintiff could perform
other jobs that exist in significant numbers in the national
economy (R. at 46-47).
Therefore, the ALJ concluded that
plaintiff was not disabled (R. at 48).
Did the Appeals Council err by failing to consider medical
opinion evidence submitted to them after the ALJ decision?
The ALJ’s RFC findings limited plaintiff to simple,
routine, repetitive tasks requiring no independent decision
making and only occasional changes in the work setting.
Plaintiff could tolerate occasional interaction with the public
and coworkers (R. at 43).
Plaintiff’s treating psychiatrist since 2006 is Dr. Kevin
Mays (R. at 364).
Dr. Mays filled out a mental RFC assessment
on February 11, 2013, opining that plaintiff was moderately
limited in 7 categories and markedly limited in 3 categories (R.
Dr. Mays also wrote letters on November 6, 2012,
April 2, 2014, and on June 25, 2014 discussing plaintiff’s
inability to work (R. at 337, 407-408, 403).
The ALJ considered
these opinions by Dr. Mays, but gave them little weight because
the ALJ found that his opinions were inconsistent with his
treatment notes and clinical findings.3
The ALJ stated that Dr.
Mays found that plaintiff’s mental status examinations were
consistently normal, and the ALJ stated that Dr. Mays frequently
indicated moderate improvement with medication.
The ALJ also
noted that Dr. Mays does not discuss decompensation or bipolar
cycling in his treatment notes (R. at 45).
The ALJ gave great weight to two non-examining medical
sources, Dr. Cohen and Dr. Blum (R. at 45).
Dr. Cohen set out
her opinions on March 6, 2013 (R. at 92-96), and Dr. Blum set
out his opinions on May 31, 2013 (R. at 103-107).
discussion by Dr. Cohen and Dr. Blum are identical (R. at 93,
104), and does not mention or discuss the mental RFC evaluation
by Dr. Mays, or the letter from 2012.
The letters written by
The rating scale defined a moderate limitation as one that significantly affects but does not preclude the
individual’s ability to perform the activity. A marked limitation is defined as effectively precluding the individual
from performing the activity in a meaningful way. The three areas of marked limitations, according to Dr. Mays,
are: (1) the ability to perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerance; (2) the ability to complete a normal workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and
(3) the ability to accept instructions and respond appropriately to criticism from supervisors (R. at 366-368).
The ALJ had previously noted that Dr. Mays had consistently observed a euthymic mood, appropriate affect, intact
memory, maintained attention, logical thought processes, average intellect, good reasoning, and realistic selfperception (R. at 44). The ALJ later noted that it appeared to her that plaintiff’s mental conditions had been
controlled with fairly conservative treatment (R. at 45).
Dr. Mays in 2014 were written after the mental RFC evaluations
by Dr. Cohen and Dr. Blum in 2013.
After the ALJ decision on March 5, 2015, plaintiff
submitted to the Appeals Council a letter from Dr. Mays, dated
May 12, 2015.
It states, in relevant part, as follows:
This letter is regarding Mrs. Foxx-Zagorsky
whom I have been treating since
2006…Unfortunately her condition has
deteriorated over the years in spite of
medication intervention. It has been
brought to my attention through her
attorney’s letter…that there were some
questions that needed to be clarified per
the Administrative Law Judge and their
review of my records.
I think it is important to clarify that my
treatment records are not generated in order
for substantiation nor interpretation as to
whether a person is able to work. My
treatment notes are simply a snapshot for
how persons reporting their symptoms at the
time of their appointment. While it can
include indicators of a person having
distress in between appointments, the
general mental status examination at the
time of their appointment is not a
cumulative review of how they have been for
the previous one to three months in between
appointments. Therefore I think
interpreting it as such is erroneous and it
[is] not what it is intended to accomplish.
It assumes that the mental status
examination was what the person is reporting
and/or showing at the time of their
Therefore the Administrative Law Judge’s
assessment that because the mental status
examination at the time of appointment
reflected euthymic mood and appropriate
affect does not imply that this patient has
a sustained level affect at all times.
Furthermore, the notations are more in
reflection again of an aggregate as to how a
person is doing and if overall the patient
is doing well, there may be some subtle
changes or limited changes in the
medication. There have actually been
numerous medication changes in her case over
the last several years. There had been a
plateau reached where I believe that because
of different side effects from medication
that there were limitations generated from
going any further with medication. I
believe it was answered appropriately when I
did her assessments for showing limitation
based on her capacity to sustain a 40-hour
week at the level that she had previously
been able to accomplish, which I still
believe is not going to happen and it is not
likely to happen in the future.
Therefore the conclusion that I have been
showing moderate improvement with medication
but did not discuss decompensation or
bipolar cycling in the treatment notes is
false because there are notes reflecting the
fact that she has had decompensation on
numerous occasions over the years. So if the
question is asked, “Do I think the person is
going to have marked limitations and
challenges to successfully meet a 40-hour
week without significant impairments from
the Mood Disorder”, I believe wholeheartedly
that that is accurate and that this
individual does have a diagnosis of
psychiatric illness which has included
psychotic mood cycles requiring
hospitalization, that her chances of being
able to obtain and sustain gainful
employment are markedly limited, and I
believe she needs to have a further review
on the context of the Administrative Law
Judge who interpreted my notes and
furthermore they don’t agree that they match
up, that she should have a thorough
evaluation through an independent party if
they believe that would be more favorably
warranted and accepted by the Administrative
(R. at 29-30, emphasis added).
The Appeals Council noted that they received a letter from
Dr. Mays dated May 12, 2015, but stated that this information
“is about a later time.
Therefore, it does not affect the
decision about whether you were disabled beginning on or before
March 5, 2015” (R. at 2).4
The basic principle, derived from the relevant regulations,
is well-established: the Appeals Council must consider
additional evidence offered on administrative review-after which
it becomes part of the court’s record on judicial review-if it
is (1) new, (2) material, and (3) related to the period on or
before the date of the ALJ’s decision.
F.3d 1324, 1328 (10th Cir. 2011).
Krauser v. Astrue, 638
Where the Appeals Council
rejects new evidence as non-qualifying, and the claimant
challenges that ruling on judicial review, it is a question of
law subject to the court’s de novo review.
The letter from Dr. Mays dated May 12, 2015 is clearly new
evidence, it is clearly material, and it is clearly related to
the period on or before the date of the ALJ’s decision.
letter from Dr. Mays clearly relates to plaintiff’s treatment
Defendant erred in her brief when she stated that the Appeals Council admitted this letter into the record, but found
that it did not provide a basis for changing the ALJ’s decision (Doc. 7 at 4, 7 n.3). The Appeals Council did admit
into evidence and consider some additional evidence submitted to them by the plaintiff (R. at 5-6), but refused to
consider other evidence submitted to them because it was about a later time, including the letter of Dr. Mays dated
May 12, 2015 (R. at 2).
records prior to the date of the ALJ decision, the ALJ’s
interpretation of those records, and the rationale for the ALJ’s
The Appeals Council decision that this letter is
about a later time is clearly erroneous.
Because the evidence
qualifies (as new, material, and related to the period on or
before the date of the ALJ’s decision), and the Appeals Council
failed to consider it, the case should be remanded for further
Chambers v. Barnhart, 389 F.3d 1139, 1142 (2004).
Furthermore, the court cannot say that the failure to
consider this additional opinion evidence from plaintiff’s
treatment provider is harmless error.5
The May 12, 2015 letter
from Dr. Mays, which directly challenges the findings of the ALJ
and the ALJ’s interpretation of the treatment notes from Dr.
Mays, provides a clear basis for changing the ALJ’s decision.
Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004).
In the case of Wilson v. Colvin, Case No. 12-1365-JWL, 2014
WL 1689293 (D. Kan. April 29, 2014), Ms. Martin, a psychiatric
nurse-practitioner, had provided a medical source statement, but
the ALJ accorded it little weight.
Instead, the ALJ gave great
weight to the opinions of state agency consultants.
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 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).
1689293 at *4.
Ms. Martin then submitted an opinion letter
explaining and clarifying her earlier statement; this letter was
first submitted to the Appeals Council.
submitted to the Appeals Council a letter from Mr. Bremyer,
plaintiff’s treating therapist, which affirmed the opinions of
2014 WL 1689293 at *5-6.
The court held that this
additional evidence, including Ms. Martin’s explanation, if
accepted, provides material information which would
significantly alter the ALJ’s decision, for it tends to negate
much of the ALJ’s basis for discounting the opinions of Ms.
Martin and Dr. Schwartz.
The court noted that if those opinions
are not properly discounted, disability is the only remaining
The court indicated that it could not weigh this
evidence in the first instance, and remanded the case in order
for the Commissioner to consider the letters provided to the
Appeals Council and to determine what weight should be accorded
to the medical opinions in light of all the record evidence.
2014 WL 1689293 at *6.
See Gatewood v. Colvin, Case No. 13-
1339-SAC (D. Kan. Sept. 30, 2014; Doc. 26 at 6-12)(a sentence
six remand case; the court found that a subsequent statement
from Dr. Davis provided material information which, if accepted,
would significantly alter the ALJ’s decision, for it tended to
negate much of the ALJ’s basis for discounting the earlier
opinions expressed by Dr. Davis).
As was the case in Wilson and Gatewood, the 2015 letter
from Dr. Mays, if accepted, provides material information which
could significantly alter the ALJ’s decision.
In general, the
opinions of physicians, psychologists, or psychiatrists who have
seen a claimant over a period of time for purposes of treatment
are given more weight than the views of consulting physicians or
those who only review the medical records and never examine the
The opinion of an examining physician is generally
entitled to less weight than that of a treating physician, and
the opinion of an agency physician who has never seen the
claimant is entitled to the least weight of all.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).
Dr. Mays, in his
letter of May 12, 2015, clearly challenges the findings of the
ALJ and her interpretation of the treatment notes by Dr. Mays.
The ALJ, after rejecting the opinions of Dr. Mays, gave greater
weight to two non-examining medical sources who did not see
many, if not all, of the letters and mental RFC findings from
As noted above, their opinions are entitled to the
least weight of all.
The May 12, 2015 letter from Dr. Mays, if accepted,
provides material information which would significantly alter
the ALJ’s decision, for it tends to negate much of the ALJ’s
basis for discounting the opinions of Dr. Mays.
cannot weigh the evidence in the first instance.
this case shall be remanded in order for the Commissioner to
consider the May 12, 2015 letter from Dr. Mays, and determine
what weight to accord that letter in light of all the record
Did the ALJ err in evaluating plaintiff’s credibility?
Plaintiff has also asserted error by the ALJ in evaluating
The court will not address this issue
because it may be affected by the ALJ’s resolution of the case
on remand after the ALJ considers the May 12, 2015 letter from
Dr. Mays (and the October 12, 2015 letter from plaintiff’s
therapist, Ms. Lewis).
See Robinson v. Barnhart, 366 F.3d 1078,
1085 (10th Cir. 2004).
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 8th day of September 2017, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
Although not raised in the briefs, the court would note that plaintiff also submitted to the Appeals Council a letter,
dated October 12, 2015, from Ms. Williams, plaintiff’s treating therapist since 2004. Ms. Williams also opines that
plaintiff would be unlikely to sustain employment due to the significant limitations caused by her illness (R. at 8-9).
Because this case is being remanded in order for the Commissioner to consider the May 12, 2015 letter from Dr.
Mays, the Commissioner should also consider the relevance and relative weight to accord to his opinion from a
treating therapist in light of the opinions of Dr. Mays and the other record evidence.
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