Morse 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 8/11/17. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT LEE MORSE,
Case No. 16-2678-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 6, 2015, administrative law judge (ALJ) Michael D.
Mance issued his decision (R. at 132-143).
that he has been disabled since September 1, 2012 (R. at 132).
Plaintiff is insured for disability insurance benefits through
March 31, 2015 (R. at 134).
At step one, the ALJ found that
plaintiff has not engaged in substantial gainful activity since
the alleged onset date (R. at 134).
At step two, the ALJ found
that plaintiff has severe impairments (R. at 134).
three, the ALJ determined that plaintiff’s impairments do not
meet or equal a listed impairment (R. at 136).
determining plaintiff’s RFC (R. at 137-138), the ALJ found at
step four that plaintiff is unable to perform any past relevant
work (R. at 141).
At step five, the ALJ found that plaintiff
could perform other jobs that exist in significant numbers in
the national economy (R. at 142-143).
Therefore, the ALJ
concluded that plaintiff was not disabled (R. at 143).
Did the Appeals Council err by failing to consider medical
opinion evidence submitted to them after the ALJ decision?
In his decision, the ALJ found that plaintiff has the RFC
to perform work at all exertional levels, but with the following
ropes, and scaffolds.
he should never climb ladders,
He should work in a temperature
He should avoid concentrated exposure
to unprotected heights and hazardous machinery.
He is limited
to the performance of unskilled work only, requiring no more
than occasional contact with the public and coworkers.
cannot be required to perform any high production rate jobs, but
low and medium production rate jobs are okay (R. at 138).
this RFC, the ALJ concluded that plaintiff could perform other
work in the national economy, and was therefore not disabled.
After the ALJ decision, plaintiff submitted to the Appeals
Council letters from Dr. Davis, a licensed clinical
psychologist, Dr. Pashek, a speech-language pathologist and
cognitive rehabilitation specialist, and Dr. Falola, a physician
(R. at 9-13).
The Appeals Council reviewed these documents and
other medical records submitted to them and concluded that this
new information was about a later time, and did not affect the
decision about whether plaintiff was disabled on or before March
6, 2015, the date of the ALJ decision (R. at 2).
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.
Dr. Falola wrote his letter on November 20, 2015.
indicates that he has been treating plaintiff for the past few
His letter states the following:
Patient is a 51 yo veteran diagnosed with
PTSD (non combat related). The patient
reported the PTSD symptoms secondary to an
auto accident that occurred in 31 May, 2011.
A review of his CPRS medical records
indicated that he has been having problems
with dealing with daily psychosocial
stressors and has been having a steady
decline in his ability to function and
maintain a steady job since the above
mentioned auto accident. This trauma
triggered extreme anxiety symptoms,
increased irritability, insomnia,
difficulties dealing with stressful
situations both at home and at work.
Patient also reported angry outbursts,
fluctuation of his mood including
depression. Considering the clinical
symptoms, some of which were named above, it
is evident that this patient has been unable
and will continue to have difficulty
maintaining a job and take care of his
needs. This provider is support of this
patient requesting for Social Security
(R. at 13, emphasis added).
Dr. Pashek wrote her letter on April 5, 2016.
This application is to support the
application of Mr. Robert Morse…to receive
Social Security Disability status. Mr.
Morse was involved in a serious accident as
an over-the-road trucker in 2011 in which he
suffered a traumatic brain injury (TBI) and
from which he developed PTSD. He has
ongoing emotional and cognitive (attention
and executive functions) deficits as a
result of this accident and is unable to be
employed despite his multiple attempts to
return to work. He deficits are well
documented in his VAMC [Veterans
Administration Medical Center] medical
record, by Psychiatry (see notes of Dr.
Duong 2012-2015) and Dr. Falola (2015-2016),
and Psychology (notes of Dr. Davis), as well
as by Neuropsychology (Dr. Skadeland/Dr.
Harbaugh) and my personal Cognitive
Rehabilitation evaluation of the patient
(12/19/15) and ongoing treatment notes…..
This writer’s opinion is that he is not
employable at this time.
(R. at 11, emphasis added).
The third letter, from Dr. Davis, is dated April 22, 2016,
and states, in relevant part:
…I have been conducting individual therapy
sessions with Mr. Morse since May 6,
2014…After being involved in a motor vehicle
accident in 2011, Mr. Morse began
experiencing anxiety, depression, sleep
problems, and difficulties with focus and
concentration, which has significantly
impacted his psychosocial functioning.
Based on testing an clinical observations,
Mr. Morse has been diagnosed with
Posttraumatic Stress Disorder (PTSD) and
Insomnia Disorder. His PTSD is very severe
and causes him to struggle with intrusive
memories, severe anxiety and depression,
anger, sleep problems, irritability and poor
concentration. Mr. Morse has been compliant
with treatment and previously completed
components of a 12-session evidence based
treatment program for PTSD, during which I
spent a considerable amount of one on one
time with Mr. Morse. Mr. Morse did
experience mild improvement with therapy,
but continues to exhibit these same symptoms
which I firmly believe preclude his ability
to successfully return to work activity at
this time. Mr. Morse has attempted a few
part-time jobs in the past two years;
however, his mental health symptoms appeared
to cause problems and distress; resulting in
terminations and/or needing to leave the
positions. Testing has recently shown that
Mr. Morse also struggles with Traumatic
Brain Injury (TBI), which further exacerbate
his PTSD and Insomnia, making it
exceptionally difficult for him to follow
basic work tasks. His irritability from
mental health symptoms, combined with
struggles from the TBI, creates intense
emotional reactions that would certainly
cause problems maintaining employment. It
is also my opinion that return to work by
Mr. Morse at this time would undo the
progress he has made thus far, as stress
tends to exacerbate PTSD symptoms.
(R. at 9-10, emphasis added).
The letters from Drs. Falola, Pashek, and Davis are new and
material regarding plaintiff’s impairments and limitations.
question before the court is whether they are related to the
period on or before the date of the ALJ’s decision, March 6,
The letters were written on November 20, 2015, April 3,
2016 and April 22, 2016.
The letter from Dr. Falola does not
mention any specific time period for his opinions, and Dr.
Falola indicates that his treatment had been for the past few
months (prior to November 2016).
However, Dr. Falola states
that plaintiff’s PTSD dates from an auto accident on May 31,
He also notes a steady decline by plaintiff in his
ability to function and maintain a steady job since the
The letter from Dr. Pashek also does not mention any
specific time period for her opinions, but notes that
plaintiff’s emotional and cognitive deficits are well documented
in the medical records, including those of Dr. Duong from 20122015.
Finally, the letter from Dr. Davis states that she had
been treating plaintiff since May 6, 2014, 10 months prior to
the ALJ decision.
Dr. Davis noted that plaintiff’s symptoms
date from the time of the vehicular accident in 2011.
In the case of Baca v. Department of Health and Human
Services, 5 F.3d 476, 479 (10th Cir. 1993), the court held that
evidence bearing upon an applicant’s condition subsequent to the
date upon which the earning requirement was last met is
pertinent evidence in that it may disclose the severity and
continuity of impairments existing before the earning
requirement date or may identify additional impairments which
could reasonably be presumed to have been present and to have
imposed limitations as of the earning requirement date.2
principle equally applies to whether evidence presented to the
Appeals Council is related to the period on or before the date
of the ALJ’s decision.
In Baca, the medical records deemed relevant were records for medical care made within 14 months of the
expiration of plaintiff’s insured status. 5 F.3d at 479.
Dr. Davis had been treating plaintiff since May 6, 2014, 10
months prior to the ALJ’s decision.
Dr. Pashek, in her letter,
relied on medical records and treatment by Dr. Duong from 20122015.
Dr. Falola noted a steady decline in plaintiff’s ability
to function and maintain a job since the accident.
treatment providers clearly indicated that plaintiff’s symptoms
and impairments stem from the vehicular accident in 2011.
the facts of this case, the court finds that the opinions
offered to the Appeals Council from three treatment providers
are new, material, and related to the period on or before the
date of the ALJ’s decision.
In his decision, the ALJ rejected the medical source
opinions from two non-examining state agency psychologists, who
found no severe mental impairments.
However, the ALJ indicated
he gave “some” weight to their opinions.
The ALJ found that
plaintiff’s mental impairments were severe (R. at 140), but made
mental RFC findings in the absence of any medical source
opinions regarding the extent and severity of plaintiff’s mental
However, an exact correspondence between a medical
opinion and the RFC is not required.
In reaching his RFC
determination, an ALJ is permitted, and indeed required, to rely
on all of the record evidence, including but not limited to
medical opinions in the file.
That said, in cases in which the
medical opinions appear to conflict with the ALJ’s decision
regarding the extent of a plaintiff’s impairment(s) to the point
of posing a serious challenge to the ALJ’s RFC assessment, it
may be inappropriate for the ALJ to reach an RFC determination
without expert medical assistance.
Wells v. Colvin, 727 F.3d
1061, 1071-1072 (10th Cir. 2013) (in Wells, the ALJ rejected 3
medical opinions, finding that they were inconsistent with the
other evidence in the file; the court directed the ALJ, on
remand, to carefully reconsider whether to adopt the
restrictions on plaintiff’s RFC detailed in the medical
opinions, or determine whether further medical evidence is
needed on this issue).
Furthermore, 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 claimant.
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.
Robinson v. Barnhart, 366 F.3d 1078, 1084
(10th Cir. 2004).
In the case before the court, at the time of the ALJ
decision, the only medical opinion evidence regarding
plaintiff’s mental RFC, that plaintiff did not have severe
mental impairments, was rejected by the ALJ.
However, the ALJ
stated that he gave “some” weight to their opinions (R. at 140).
These medical opinions were from non-examining medical sources,
whose opinions are entitled to the least weight.
The ALJ then
made mental RFC findings in the absence of any medical source
opinions regarding the extent and severity of plaintiff’s mental
The medical opinions of plaintiff’s three
treatment providers, who are accorded more weight, clearly
conflict with the mental RFC findings made by the ALJ.
statements from the three treatment providers include one from
Dr. Davis, who began treating plaintiff 10 months prior to the
Dr. Pashek relied on plaintiff’s medical records,
including treatment records from Dr. Duong, a psychiatrist who
treated plaintiff from 2012-2015.
Dr. Falola noted a steady
decline in plaintiff’s ability to function and work since the
All three treatment providers make it clear that
plaintiff’s symptoms, impairments, and limitations stem from his
vehicular accident in 2011.
Furthermore, the court cannot say that the failure to
consider this additional opinion evidence from three treatment
providers is harmless error.3
In fact, the new evidence from Dr.
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
Falola, Dr. Pashek, and Dr. Davis provides a clear basis for
changing the ALJ’s decision.
681 (10th Cir. 2004).
Hardman v. Barnhart, 362 F.3d 676,
In addition to their opinions that
plaintiff cannot work, Dr. Davis states that plaintiff would
have difficulty with focus and concentration.
Dr. Davis also
indicated that plaintiff suffers from severe anxiety and
depression, anger and sleep problems, irritability and poor
As a result of his PTSD, TBI, and insomnia, Dr.
Davis believes that it would be exceptionally difficult for
plaintiff to follow basic work tasks.
Dr. Davis also stated
that plaintiff’s irritability stemming from his mental health
symptoms and TBI creates intense emotional reactions that would
certainly cause problems maintaining employment (R. at 9).
Pashek also indicated that plaintiff has ongoing emotional and
cognitive (attention and executive function) deficits which
would preclude employment (R. at 11).
Finally, Dr. Falola noted
that trauma stemming from plaintiff’s 2011 accident has
triggered extreme anxiety symptoms, increased irritability,
insomnia, and difficulties dealing with stressful situations at
home and at work (R. at 13).
In light of the evidence set forth above, the court finds
that substantial evidence does not support the ALJ’s RFC
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).
Therefore, this case shall be reversed and remanded
in order for the Commissioner to consider the opinions of the
three treatment sources and any related medical records.
Other issues raised by the plaintiff
Plaintiff has raised other issues, including the ALJ’s
credibility analysis, and whether the Commissioner sustained his
burden at step five.
The court will not address these issues
because they may be affected by the ALJ’s resolution of the case
on remand after considering the opinions of Dr. Falola, Dr.
Pashek, and Dr. Davis, along with any related medical records.
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 11th day of August 2017, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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