Bryant v. Social Security Administration, Commissioner of

Filing 21

MEMORANDUM AND ORDER. The motion to reverse the decision of the Commissioner and to remand for further hearing (Doc. 17-18) is granted. The decision of the Commissioner is reversed, and the case is remanded (sentence four remand) for further hearing in accordance with this opinion. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 5/30/2013. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TINA BRYANT,
Plaintiff,
vs.

Case No. 12-4059-SAC

CAROLYN W. COLVIN,
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.

After plaintiff filed his brief (Doc. 12),

defendant filed a motion to reverse the decision of the
Commissioner, and to remand the case for further hearing (Doc.
17-18).

Plaintiff filed an objection to the motion to remand

(Doc. 19).
I.

Defendant then filed a reply brief (Doc. 20).

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
1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue, the former Commissioner of Social Security.
1

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
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
2

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
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.
the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
3

If

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.

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).
II.

History of case

4

On September 13, 2007, administrative law judge (ALJ)
Edmund C. Were issued the 1st decision finding that plaintiff was
not disabled (R. at 15-27).

Plaintiff sought judicial review of

the agency action, and on November 8, 2010, the U.S. District
Court for the District of Kansas reversed the decision of the
Commissioner and remanded the case for further hearing (Doc.
477-506; Case No. 09-4159-RDR).

On March 28, 2012, ALJ James

Harty issued a 2nd decision, again finding that plaintiff was not
disabled (R. at 455-475).

Plaintiff has again sought judicial

review of the agency action.
III.

Should the case be remanded for further hearing or for an

award of benefits?
Plaintiff’s initial brief raises 3 issues: (1) the date in
which plaintiff was last insured was incorrect, (2) the ALJ
failed to properly consider the medical source opinions, and (3)
the ALJ erred in his credibility analysis (Doc. 12 at 9-16).
Defendant’s motion to remand concedes that the ALJ erred on the
1st issue, but does not address the remaining two issues (Doc.
18).

Plaintiff argues that the unsupported rejection of three

medical opinions warrants a remand for an award of benefits
(Doc. 19).
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
5

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

Ragland v.
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.
F.2d 178, 184, 185 (3rd Cir. 1986).
6

Gilliland v. Heckler, 786

The first issue for the court to consider is the amount of
time that the case has been pending.

Plaintiff filed her

application for disability insurance on July 12, 2005 (R. at
15).

Therefore, this case has now been pending nearly 8 years.

This case has already been remanded once by the U.S. District
Court because of errors in the 1st ALJ decision.
The second issue for the court to consider is whether a
remand would serve any useful purpose, or would merely delay the
receipt of benefits.

Plaintiff argues that the ALJ’s rejection

of the various medical opinions (Dr. Burden, Dr. Anderson, and
Ms. Anderson) was “unsupported” (Doc. 19 at 1).

The ALJ, in

making his RFC findings, gave greater weight to a state agency
medical assessment by Dr. Siemsen (R. at 468), and noted the
varying opinions of Dr. Burden, Ms. Anderson, Dr. Anderson, Dr.
Witt, and Dr. Adams regarding plaintiff’s mental impairments and
limitations (R. at 468-473).

The ALJ gave significant weight to

the opinions of Dr. Adams, who provided a state agency
assessment (R. at 471), and gave some weight to the opinions of
Dr. Anderson (R. at 469).
In a number of cases, the 10th Circuit has reversed the
decision of the Commissioner and remanded the case for an award
of benefits.

Groberg v. Astrue, 415 Fed. Appx. 65, 73 (10th

Cir. Feb. 17, 2011 (given a proper analysis and evaluation of
his mental impairments, there is no reasonable probability that
7

Groberg would be denied benefits); Madron v. Astrue, 311 Fed.
Appx. 170, 182 (10th Cir. Feb. 11, 2009)(giving due
consideration to Ms. Madron’s significant back pain, there is no
reasonable probability that she would be denied benefits);
Huffman v. Astrue, 290 Fed. Appx. 87, 89-90 (10th Cir. July 11,
2008)(six years have passed since claimant applied for benefits;
given the lengthy delay that has occurred from the
Commissioner’s erroneous disposition of the matter, the court
exercised its discretion to award benefits); Salazar v.
Barnhart, 468 F.3d 615, 626 (10th Cir. 2006)(given the lack of
evidence that she would not be disabled in the absence of drug
or alcohol use, a remand would serve no useful purpose); Sisco
v. U.S. Dept. of HHS, 10 F.3d 739, 746 (10th Cir. 1993)(case
pending with Secretary for 8 years; plaintiff exceeded what a
claimant can legitimately be expected to prove to collect
benefits; furthermore, the record revealed that the ALJ resented
plaintiff’s persistence, refused to take her case seriously, and
at times treated her claim with indifference or disrespect);
Williams v. Bowen, 844 F.2d 748, 760 (10th Cir. 1988)(the record
fully supports a determination that claimant is disabled); see
also Graham v. Sullivan, 794 F. Supp. 1045, 1053 (D. Kan.
1992)(Crow, J., several physicians, including treating
physician, opined that plaintiff is disabled, and their opinions
stand uncontroverted).
8

In other cases, the 10th Circuit reversed the decision of
the Commissioner and remanded the case for further hearing.
Hamby v. Astrue, 260 Fed. Appx. 108, 113 (10th Cir. Jan. 7,
2008)(based on the record, the court was not convinced that a
remand would be an exercise in futility); Tucker v. Barnhart,
201 Fed. Appx. 617, 625 (10th Cir. Oct. 19, 2006)(even though
case pending for 9 years, additional fact-finding and
consideration by ALJ appropriate in the case); Miller v. Chater,
99 F.3d 972, 978 (10th Cir. 1996)(in light of use of incorrect
legal framework and other errors, and because the appeals court
does not reweigh the evidence, the case was remanded for further
proceedings even though court acknowledged that there had
already been four administrative hearings).
In five of the seven cases cited above in which the court
remanded for an award of benefits, the court found that the
evidence clearly established that plaintiff was disabled.

By

contrast, in Hamby, the court found that, based on the facts of
the case, a remand would not be an exercise in futility.

In

Tucker, the court remanded the case for further hearing even
though it had been pending for 9 years because the court found
that additional fact-finding and consideration by the ALJ would
be appropriate.

In Miller, the court remanded the case for

further hearing despite numerous errors, noting that the appeals
court does not reweigh the evidence.
9

In the prior court decision, Judge Rogers found that the
ALJ failed to properly consider medical source evidence in his
opinion (R. at 505).

However, the court, in its earlier

decision, remanded the case for further hearing, stating that it
was unconvinced that a remand for further factfinding would not
serve a useful purpose (R. at 506).
As the court noted above, there are a number of varying
medical opinions in this case regarding plaintiff’s mental and
physical limitations.

This is reflected in both the earlier

court opinion and the ALJ’s 2nd decision.

In light of the

variance in medical opinions regarding plaintiff’s RFC, the
court finds that a remand for further hearing would serve a
useful purpose.

On remand, the ALJ is directed to discuss each

of the medical opinions regarding plaintiff’s RFC, and make a
determination of the relative weight that will be accorded to
each opinion, fully complying with the requirements set out in
SSR 96-8p.

Furthermore, the Commissioner is reminded that he is

not entitled to adjudicate a case ad infinitum.
IT IS THEREFORE ORDERED that the motion to reverse the
decision of the Commissioner and to remand for further hearing
(Doc. 17-18) is granted.

The decision of the Commissioner is

reversed, and the case is remanded (sentence four remand) for
further hearing in accordance with this opinion.

10

Dated this 30th day of May, 2013, Topeka, Kansas.

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

11