Seastrom v. Social Security Administration, Commissioner of

Filing 17

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 11/13/2012. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ALAN W. SEASTROM,
Plaintiff,
vs.

Case No. 11-4125-SAC

MICHAEL J. ASTRUE,
Commissioner of
Social Security,
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

scintilla, but less than a preponderance, and is satisfied by

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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).

The claimant's physical or

mental impairment or impairments must be of such severity that
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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.
the claimant survives step four, the fifth and final step
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If

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 October 28, 2010, administrative law judge (ALJ) James

S. Stubbs issued his decision (R. at 11-20).

Plaintiff alleges

that he has been disabled since October 1, 2007 (R. at 11).
Plaintiff is insured for disability insurance benefits through
December 31, 2012 (R. at 13).

At step one, the ALJ found that
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plaintiff has not engaged in substantial gainful activity since
plaintiff’s alleged onset date (R. at 13).

At step two, the ALJ

found that plaintiff had the following severe impairments:
degenerative joint disease of both the cervical and lumbar
spines (R. at 13).

At step three, the ALJ determined that

plaintiff’s impairments do not meet or equal a listed impairment
(R. at 14).

After determining plaintiff’s RFC (R. at 15), the

ALJ determined at step four that plaintiff is capable of
performing past relevant work as a bank technical
support/computer systems analyst (R. at 19).

Therefore, the ALJ

concluded that plaintiff was not disabled (R. at 20).
III.

Did the ALJ err by failing to consider the opinions of

ARNP (advanced registered nurse practitioner) Traci Harsch?
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
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any medical opinion.

20 C.F.R. §§ 404.1527(c), 416.927(c).

is clear legal error to ignore a medical opinion.

It

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).
The record contains two physical RFC assessments by
physicians who did not treat or examine the plaintiff, but
reviewed the medical records, one by Dr. Parsons (R. at 442449), and another one by Dr. Williamson (R. at 623-630).

Their

limitations were identical, except that Dr. Parsons included one
additional environmental limitation (avoid concentrated exposure
to vibration) that was not included in Dr. Williamson’s report.

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The ALJ indicated that his RFC findings were similar to the
findings of Dr. Williamson (R. at 19).
The record also includes an independent medical evaluation
from Dr. Curtis, dated May 17, 2010 (R. at 647-659, 677-681,
Exhibits 24F and 27F).

Dr. Curtis opined that plaintiff could

not stand, walk and sit for a full 8-hour day (R. at 677).

He

also indicated that plaintiff would need to shift at will from
sitting to standing/walking, would need to lie down at
unpredictable times during a work shift (R. at 678), and would
miss work more than three times a month because of his
impairments or treatment (R. at 680).

Dr. Curtis stated that

plaintiff’s impairments equal listed impairment 1.04A (R. at
680-681).

The ALJ noted that this opinion “was procured for

purposes other than the instant matter herein” (R. at 18).1

The

ALJ stated that the medical expert, Dr. Axline, testified that
the opinions of Dr. Curtis, including the environmental
limitations, were invalid.

The ALJ also stated that the

opinions of Dr. Curtis were not consistent with other evidence
of record (R. at 18).
At a hearing on July 1, 2010, the ALJ took testimony from
Dr. Axline, who testified as a non-examining medical expert
after reviewing plaintiff’s medical records (R. at 22, 50-59).
Dr. Axline testified that plaintiff’s lumbar disorder did not
1

However, the ALJ failed to explain the relevance or significance of the statement that the opinion was procured for
purposes other than the instant matter herein.
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meet or equal a listing (R. at 57).

Dr. Axline made RFC

findings which were adopted by the ALJ (R. at 58-59, 15, 19).
However, not mentioned by the ALJ was the medical opinion
regarding plaintiff’s physical RFC prepared by ARNP (advanced
registered nurse practitioner) Traci Harsch on July 7, 2009 (R.
at 632-635).

ARNP Harsch agreed with Dr. Curtis that plaintiff

could not stand, walk and/or sit for an 8-hour workday (R. at
632).

ARNP Harsch agreed with Dr. Curtis that plaintiff would

need to shift at will from sitting to standing/walking, and
would need to lie down at unpredictable times during a work
shift (R. at 633).

ARNP Harsch also agreed with Dr. Curtis that

plaintiff would miss work more than three times a month due to
his impairments or treatment (R. at 635).

On September 9, 2009

ARNP Harsch indicated that plaintiff was disabled because of
cervical and lumbar spinal stenosis.

The report also described

the severity of the disabling medical condition, and plaintiff’s
physical limitations (R. at 419-420).
Treatment records from the Shawnee County Health Agency
indicate that ARNP Harsch reviewed and signed a patient health
history on the plaintiff on May 26, 2009 (R. at 433-436), and
signed provider progress notes on the plaintiff on May 28, 2009
and July 8, 2009 (R. at 431-432, 425-426).

A provider order

sheet also shows entries in plaintiff’s medical records signed
by ARNP Harsch on July 29, 2009, August 18, 2009, September 1,
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2009, September 30, 2009 and October 29, 2009 (R. at 422).
Thus, it appears from the medical records that ARNP Harsch was a
medical treatment provider for the plaintiff, and thus was the
only medical source providing opinions regarding plaintiff’s RFC
who treated the plaintiff.
The term “medical sources” refers to both “acceptable
medical sources” and other health care providers who are not
“acceptable medical sources.”
*1.

SSR 06-03p, 2006 WL 2329939 at

“Acceptable medical sources” include licensed physicians

and licensed or certified psychologists.

20 C.F.R. §

404.1513(a)(1)-(2); 20 C.F.R. § 404.1502.
A nurse practitioner is not an “acceptable medical source”
under the regulations.

20 C.F.R. § 404.1513(a).

However,

evidence from “other medical sources,” including a nurse
practitioner, may be based on special knowledge of the
individual and may 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
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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.
ARNP Harsch was the only medical source providing opinions
regarding plaintiff’s RFC who treated the plaintiff.

Her

opinions, and those of Dr. Curtis, an independent medical
examiner, both indicate that plaintiff cannot sit, stand and/or
walk for an 8-hour workday.

However, the ALJ never even

mentioned the opinions of ARNP Harsch, and therefore failed to
indicate what weight, if any, should be attached to her
opinions.

The regulations, rulings, and case law, as set forth

above, clearly dictate that the ALJ must discuss all medical
opinion evidence, particularly when the ALJ’s RFC findings
conflict with those medical opinions.

The need to discuss the

medical opinion evidence is even more apparent when that
evidence is from a treating medical source, and when those
opinions are similar to those of an independent medical
examiner.

Although the ALJ discounted the opinions of Dr.

Curtis because they were allegedly inconsistent with the
evidence of record, the record demonstrates that the opinions of
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Dr. Curtis were in fact similar to those of a treating medical
source.

Therefore, this case shall be remanded in order for the

ALJ to determine what weight should be accorded to the opinions
of ARNP Harsch.
When this case is remanded, the ALJ must not consider the
opinions of ARNP Harsch in isolation, but her opinions must be
considered in light of the entire evidentiary record, including
the opinions and assessments of other medical 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
non-examining medical source.

Robinson v. Barnhart, 366 F.3d

1078, 1084 (10th Cir. 2004).
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IV.

Other issues raised by the plaintiff
Plaintiff also asserts error by the ALJ as to whether

plaintiff’s impairments meet or equal listed impairment 1.04A,
and the weight to be accorded to plaintiff’s testimony.

The

court will not discuss these issues in detail because they may
be affected by the ALJ’s resolution of the case on remand after
considering the medical source opinions of ARNP Harsch.

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 13th day of November 2012, Topeka, Kansas.

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

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