Koerner v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER - It is ordered that the Commissioner's decision shall be REVERSED and judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING this case for further proceedings consistent herewith. Signed by District Judge John W. Lungstrum on 09/08/2020. (ses)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CURTIS JOSEPH K.,1
ANDREW M. SAUL,
Commissioner of Social Security,
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
denying Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI)
benefits pursuant to sections 216(i), 223, 1602, and 1614 of the Social Security Act, 42
U.S.C. §§ 416(i), 423, 1381a, and 1382c (hereinafter the Act). Finding error in the
Administrative Law Judge’s (ALJ) consideration of the medical opinions, the court
ORDERS the Commissioner’s decision shall be REVERSED and that judgment shall be
entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING this case for
further proceedings consistent with this opinion.
The court makes all its “Memorandum and Order[s]” available online. Therefore, in the
interest of protecting the privacy interests of Social Security disability claimants, it has
determined to caption such opinions using only the initial of the Plaintiff’s last name.
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In January and April 2016, Plaintiff protectively filed applications for DIB and
SSI benefits. (R. 1122, 1365, 1367). After exhausting administrative remedies before the
Social Security Administration (SSA), Plaintiff filed this case seeking judicial review of
the Commissioner’s decision pursuant to 42 U.S.C. § 405(g). Plaintiff claims the ALJ
erroneously failed to obtain the testimony of a vocational expert (VE), failed to assess
residual functional capacity (RFC) on a function-by-function basis, and erred in
evaluating the medical opinions.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether he applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). “Substantial evidence” refers to
the weight, not the amount, of the evidence. It requires more than a scintilla, but less
than a preponderance; it is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
Consequently, to overturn an agency’s finding of fact the court “must find that the
evidence not only supports [a contrary] conclusion, but compels it.” I.N.S. v. EliasZacarias, 502 U.S. 478, 481, n.1 (1992) (emphases in original).
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The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record,
nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless,
the determination 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 constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether he
has a severe impairment(s), and whether the severity of his impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
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assesses claimant’s RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e). This assessment is used
at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the process—determining
at step four whether, considering the RFC assessed, claimant can perform his past
relevant work; and at step five whether, when also considering the vocational factors of
age, education, and work experience, he is able to perform other work in the economy.
Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the
burden is on Plaintiff to prove a disability that prevents performance of past relevant
work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter,
245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the
burden shifts to the Commissioner to show that there are jobs in the economy which are
within the RFC previously assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th
Remand is necessary because the court finds error in the ALJ’s evaluation of the
medical opinions. Therefore, the court need not address the remaining issues and
Plaintiff may make any argument desired in that regard to the Commissioner on remand.
Plaintiff argues the ALJ failed to identify the weight accorded to the opinions of
Dr. West, Dr. Geis, Dr. Fluter, or a physical therapist, Mr. Fieser regarding his physical
abilities and limitations, or to the opinions of Dr. Stern and Dr. Locke regarding his
mental abilities and limitations. (Pl. Br. 30). He argues, “Dr. Locke apparently affirmed
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Dr. Stern’s opinions [Plaintiff] would do best with structure and pre-determined work
goals,” but the ALJ did not account for that fact in the RFC assessed. (Pl. Br. 30).
The Commissioner admits that the ALJ “did not explicitly weigh” the opinions of
Mr. Fieser, Dr. West, Dr. Geis, and Dr. Fluter, and that this is error. (Comm’r Br. 6). He
suggests the error was harmless and argues that it was Plaintiff’s burden to show harm,
that he did not, and these medical healthcare workers’ opinions were consistent with the
RFC assessed. (Comm’r Br. 6-7) (citing Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163
(10th Cir. 2012) (ALJ’s failure to assign a specific weight to a medical opinion was
harmless where the opinion was generally consistent with the ALJ’s RFC findings)). The
Commissioner concludes, “the medical opinions supported the ALJ’s assessment of
Plaintiff’s physical RFC. ‘A remand for the ALJ to weigh opinions that admittedly do
not support a finding of disability would be futile.’” Id. at 7 (quoting Thompson v.
Colvin, 551 F. App’x 944, 948 (10th Cir. Jan. 3, 2014)).
The Commissioner argues that the ALJ, however, accorded strong weight to the
opinions of Dr. Stern and Dr. Locke and went on to find Plaintiff is more limited than did
Dr. Locke—that he was capable of only simple, routine, and repetitive tasks. Id. at 8-9.
He argues that failure to “recite Dr. Locke’s opinion that [Plaintiff] would ‘likely do best
with structure and pre-determined work goals’” was not error because that was merely a
speculative opinion which need not be addressed. Id. at 10 (citing Paulsen v. Colvin, 665
F. App’x 660, 666 (10th Cir. 2016)). He concludes, “Plaintiff has not established that the
ALJ’s limitation to simple, routine, and repetitive work did not address Dr. Locke’s
opinion he would likely do best with structure and pre-determined work goals.” Id. at 11.
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Standard for Evaluating Medical Source Opinions
For claims filed before March 17, 2017, “[m]edical opinions are statements from
physicians and psychologists or other acceptable medical sources that reflect judgments
about the nature and severity of [a claimant’s] impairment(s) including [claimant’s]
symptoms, diagnosis and prognosis.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Such
opinions may not be ignored and, unless a treating source opinion is given controlling
weight, all medical opinions will be evaluated by the Commissioner in accordance with
factors contained in the regulations. Id. §§ 404.1527(c), 416.927(c); Soc. Sec. Ruling
(SSR) 96-5p, West’s Soc. Sec. Reporting Serv., Rulings 123-24 (Supp. 2019).
Those factors are: (1) length of treatment relationship and frequency of
examination; (2) the nature and extent of the treatment relationship, including the
treatment provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4) consistency between
the opinion and the record as a whole; (5) whether or not the physician is a specialist in
the area upon which an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion. 20 C.F.R. '' 404.1527(c)(2-6),
416.927(c)(2-6); see also Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001)
(citing Goatcher v. Dep=t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995)).
The Commissioner issued SSR 96-8p “[t]o state the Social Security
Administration’s policies and policy interpretations regarding the assessment of residual
functional capacity (RFC) in initial claims for disability benefits.” West’s Soc. Sec.
Reporting Serv., Rulings 143 (Supp. 2019). The Ruling includes narrative discussion
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requirements for the RFC assessment. Id. at 149. Among other requirements, the
discussion must include an explanation how any ambiguities and material inconsistencies
in the evidence were considered and resolved. Id.
The ALJ’s Findings
The ALJ assessed Plaintiff with the RFC “to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except that he can perform no more than occasional
overhead reaching with the right upper extremity. Mentally, he can perform occupations
that consist of simple, routine, and repetitive tasks and can tolerate only occasional
interaction with the general public.” (R. 1132) (finding no. 5, bold omitted). The ALJ
discussed several opinions relating to Plaintiff’s right shoulder impairment and explained
it was “reasonable to preclude him from performing any more than occasional overhead
reaching with the right upper extremity, which is consistent with Dr. DeCarvalho’s
February 2013 recommendation.” (R. 1136-37). He concluded the evidence did not
merit further physical limitations.
He then discussed the opinions regarding Plaintiff’s mental impairments. Id. at
1137-38. He discounted the opinion of Plaintiff’s treating APRN and supervising
psychiatrist because it was inconsistent with the treatment notes and the conservative
treatment, and when coupled with Plaintiff’s interest in medication only, and a heavy
focus “on complaints of anxiety without significant reports of escalating depressive
symptoms,” made the opinion appear “to be based on subjective complaints and not an
objective assessment of his functional capacity.” He found that “in contrast to the
opinions of the psychological consultant opinions [sic] that are, accordingly, afforded
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strong weight.” Id. at 1137. He discussed Dr. Berg’s opinion to which he accorded some
weight except he accorded little weight to his opinion Plaintiff was “prone to lapses in
attention that could interfere with his ability to perform [unskilled] tasks in a reliable
manner … because it is inconsistent with the longitudinally unremarkable mental status
examination findings with regard to the claimant’s attention and concentration.” (R.
The court agrees with the Commissioner that Plaintiff has the burden to prove
disability and the burden to show an error is harmful. However, it goes a step too far to
argue “Plaintiff has not established that the ALJ’s limitation to simple, routine, and
repetitive work did not address Dr. Locke’s opinion that he would likely do best with
structure and pre-determined work goals.” (Comm’r Br. 11). It is by no means obvious
that a limitation to simple, routine, and repetitive tasks encompasses the provision of
structure and pre-determined work goals. While it may be that a particular understanding
of the two concepts may result in the first encompassing the second, that understanding is
not intuitively obvious, and nothing in this record suggests the ALJ was of that
understanding, or why. Moreover, as noted above, it is the ALJ’s duty to resolve
ambiguities and material inconsistencies in the evidence. And Plaintiff will be found to
have met his burden to show error when he points to such an unresolved ambiguity or
That fact is highlighted in a case such as this where the ALJ’s only mention of Dr.
Locke’s opinion is his oblique note that the “psychological consultant opinions” are given
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strong weight because they are to the contrary effect from the opinions of Plaintiff’s
psychiatrist and nurse. (R. 1137). The ALJ did not mention Dr. Locke by name, he did
not cite the exhibit containing Dr. Locke’s opinion, he did not summarize the opinion,
and he made no mention of the opinion regarding structure and pre-determined work
goals. Moreover, Dr. Stern provided the identical opinion regarding Plaintiff’s adaptation
limitations (R. 1202) with the identical results.
Finally, the ALJ admittedly “did not explicitly weigh” the opinions of Mr. Fieser,
Dr. West, Dr. Geis, and Dr. Fluter, and this is error. (Comm’r Br. 6). In many cases the
court would likely agree with the Commissioner’s argument the error was harmless.
However, where the ALJ here so obviously failed to resolve the ambiguities regarding
Dr. Locke’s and Dr. Stern’s opinions, that fact adds support to the inference the ALJ
failed to adequately consider and evaluate the medical source opinions. The court cannot
find harmless error in these circumstances and remands for a proper consideration and
explanation of the weight accorded the medical source opinions.
IT IS THEREFORE ORDERED that the Commissioner’s decision shall be
REVERSED and judgment shall be entered pursuant to the fourth sentence of 42 U.S.C.
§ 405(g) REMANDING this case for further proceedings consistent herewith.
Dated September 8, 2020, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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