Clement v. Social Security Administration, Commissioner of

Filing 24

MEMORANDUM AND ORDER - It is ordered that 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 the case for further proceedings consistent herewith. Signed by District Judge John W. Lungstrum on 05/30/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PATRICK E. CLEMENT,

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)
Plaintiff,
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v.
)
)
)
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
)
)
Defendant.
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________________________________________ )

CIVIL ACTION
No. 12-4165-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security Disability (SSD) benefits and
Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding error in the failure of the “determination or
decision” below to provide “specific reasons for the weight given to the treating source’s
medical opinion, supported by the evidence in the case record,” which is “sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the
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On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of
Social Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Ms. Colvin is substituted for Commissioner Michael J. Astrue as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
is necessary.

treating source’s medical opinion and the reasons for that weight,” Soc. Sec. Ruling
(SSR) 96-2p, West’s Soc. Sec. Reporting Serv., Rulings 115 (Supp. 2013), the court
ORDERS that 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 the case
for further proceedings consistent with this opinion.
I.

Background
Plaintiff applied for SSD and SSI, alleging disability beginning January 1, 2004.

(R. 15, 136-46). In due course, Plaintiff exhausted proceedings before the Commissioner,
and now seeks judicial review of the final decision denying benefits. He claims that the
Appeals Council erred in denying review of the Administrative Law Judge’s (ALJ)
decision, because the Council did not weigh the treating source medical opinion of Dr.
Punswick in accordance with the controlling legal standard as explained in Watkins v.
Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003). Plaintiff also claims that the ALJ
erred both in evaluating Listing 1.04A at step three of the Commissioner’s five-step
sequential evaluation process and in propounding an erroneous hypothetical question to
the vocational expert.
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
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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 is more than
a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind
might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
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). 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
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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
assesses claimant’s residual functional capacity (RFC). 20 C.F.R. § 404.1520(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 sequential process-determining at step four whether, in light of 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, claimant 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 assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The Commissioner acknowledges that since the Appeals Council considered the
evidence presented for the first time after the ALJ’s decision, and made it a part of the
administrative record, then that evidence (Dr. Punswick’s treating source opinion) must
also be considered by the court upon judicial review of the ALJ’s decision. (Comm’r Br.
9) (citing Chambers v. Barnhart, 389 F.3d 1139, 112 (10th Cir. 2004)). She argues,
however, that even when the court considers that evidence, it must find that substantial
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record evidence supports the ALJ’s finding that Plaintiff’s condition does not meet or
medically equal Listing 1.04A. Id. at 9-15. The Commissioner also argues that the
hypothetical question presented to the vocational expert is not erroneous, both because
the ALJ properly considered Listing 1.04A and found that it was not met or medically
equaled, and because the hypothetical question properly included all of the limitations
assessed in Plaintiff’s RFC. Id. at 15-16. The Commissioner’s arguments miss the point
of Plaintiff’s first argument--that remand is necessary because Dr. Punswick’s treating
source opinion has not been weighed in accordance with the correct legal standard. The
court agrees with Plaintiff that remand is necessary because the correct legal standard was
not applied to consideration of Dr. Punswick’s treating source medical opinion.
The essence of Dr. Punswick’s opinion is that Plaintiff’s condition medically
equals Listing 1.04A. Because Dr. Punswick’s opinion has not been weighed in
accordance with the correct legal standard, the Commissioner’s argument (that substantial
record evidence requires a finding that Listing 1.04A is not medically equaled) is
premature, and resolution of that issue would require the court to weigh Dr. Punswick’s
opinion in the first instance to determine if it is worthy of controlling weight and, if not,
to determine the weight of which it is worthy. The court is precluded from weighing
medical opinions in the first instance. Therefore, the court may not consider the
remaining issues raised in the parties’ briefs because weighing Dr. Punswick’s opinion is
a condition precedent to deciding the other issues. Plaintiff may make his arguments in
regard thereto to the Commissioner on remand.
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II.

The Appeals Council Determination Is Not Reviewable in This Case
In its “Notice of Appeals Council Action,” the Appeals Council considered

Plaintiff’s request for review of the ALJ’s decision, “found no reason under [its] rules to
review the Administrative Law Judge’s decision,” and denied Plaintiff’s request for
review. (R. 7). Plaintiff claims “the Appeals Council erred by denying review” of the
ALJ’s decision below. (Pl. Br. 21). The “Notice of Appeals Council Action,” however,
is not the final decision of the Commissioner, and the Council’s determination to deny
review is not subject to the court’s review.
In 2000, the Supreme Court explained how a question regarding the “final decision
of the Commissioner” is determined in accordance with the Act and the regulations
promulgated thereunder.
The Social Security Act provides that “[a]ny individual, after any final
decision of the Commissioner of Social Security made after a hearing to
which he was a party, ... may obtain a review of such decision by a civil
action” in federal district court. 42 U.S.C. § 405(g). But the Act does not
define “final decision,” instead leaving it to the SSA to give meaning to that
term through regulations. See § 405(a); Weinberger v. Salfi, 422 U.S. 749,
766, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975). SSA regulations provide that,
if the Appeals Council grants review of a claim, then the decision that the
Council issues is the Commissioner’s final decision. But if, as [was the
case in Sims], the Council denies the request for review, the ALJ’s opinion
becomes the final decision. See 20 CFR §§ 404.900(a)(4)-(5), 404.955,
404.981, 422.210(a) (1999).
Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Here, as in Sims, the Appeals Council
denied review, and the ALJ’s decision is the “final decision” for the court’s review.

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That fact, however, does not mean that the Commissioner’s evaluation of new,
material, and chronologically relevant evidence presented for the first time to the Appeals
Council is not subject to judicial review. Where the Appeals Council accepts new
evidence and makes it a part of the administrative record, the court interprets those facts
“as an implicit determination [plaintiff] had submitted qualifying new evidence for
consideration.” Martinez v. Barnhart, 444 F.3d 1201, 1207 (10th Cir. 2006). Even if an
ALJ did not have the benefit of that evidence, when it is made a part of the administrative
record by the Council, a reviewing court must consider it to determine whether substantial
record evidence supports the decision. See O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir.
1994) (holding that “new evidence becomes part of the administrative record to be
considered when evaluating the [Commissioner]’s decision for substantial evidence”);
Chambers, 389 F.3d at 1142 (same). It is the court’s task to determine whether the new
evidence upsets the ALJ’s decision. Martinez v. Astrue, 389 Fed. Appx. 866, 869 (10th
Cir. 2010). Thus, the court’s task is not to determine whether the Appeals Council erred
in its “Notice of Appeals Council Action” but to determine whether the Commissioner’s
factual findings are supported by substantial evidence in the record and whether she
applied the correct legal standard. Lax, 489 F.3d at 1084; accord, White, 287 F.3d at 905.
That is what it now proceeds to do.
III.

Evaluation of the Treating Source Medical Opinion
In his argument regarding error in the Appeals Council’s denial of review, Plaintiff

argues that his treating physician, Dr. Punswick, provided a form for the first time to the
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Appeals Council in which he opined that Plaintiff’s condition is medically equivalent to
the severity of Listing 1.04A. Id. at 18-19. He acknowledges that the Appeals Council
made Dr. Punswick’s opinion a part of the administrative record and stated that it had
considered that additional evidence. Id. at 20. But, he argues that the Council’s finding
that the evidence “does not provide a basis for changing the Administrative Law Judge’s
decision” is conclusory, id. (quoting R. 7-8), and that this case should be remanded
because the Council did not properly weigh the treating source medical opinion in
accordance with the correct legal standard. Id. at 20-22 (citing Watkins, 350 F.3d at
1300-01; and Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir. 1987)).
The Commissioner argues that even considering the evidence presented for the
first time to the Appeals Council, the court must find that substantial record evidence
supports the ALJ’s finding that Plaintiff’s condition does not meet or medically equal
Listing 1.04A. Id. at 9-15. Therefore, her brief addresses Plaintiff’s argument that the
ALJ erred in evaluating Listing 1.04A at step three of the Commissioner’s sequential
evaluation process, but does not specifically address the argument that the Commissioner
failed to apply the correct legal standard in evaluating Dr. Punswick’s opinion.
Plaintiff argues that although the Appeals Council said it considered Dr.
Punswick’s opinion, it made a conclusory finding that the opinion would not provide a
basis to change the ALJ’s decision, and did not explain whether the opinion was worthy
of controlling weight, or explain the weight accorded to the opinion pursuant to the
regulatory factors for weighing medical opinions. Therefore, he “request[s] that this case
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be remanded for consideration of the entire record . . . and particularly the medical
opinion of Dr. Punswick.” (Pl. Br. 22). Although Plaintiff’s brief attributes the alleged
error to the Appeals Council, the court’s duty is to determine whether the final decision-the decision of the ALJ--when viewed in light of all of the record evidence, reveals that
the correct legal standard was applied and whether substantial record evidence supports
the Commissioner’s final decision.
As Plaintiff’s brief states, the court in Watkins explained the correct standard for
reviewing a treating source medical opinion:
Under the regulations, the agency rulings, and our case law, an ALJ must
“give good reasons in [the] notice of determination or decision” for the
weight assigned to a treating physician's opinion. 20 C.F.R. §
404.1527(d)(2); see also Social Security Ruling 96–2p, 1996 WL 374188,
at *5; Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003). Further, the
notice of determination or decision “must be sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator gave to the
treating source’s medical opinion and the reasons for that weight.” SSR
96–2p, 1996 WL 374188, at *5.
Watkins, 350 F.3d at 1300. The Watkins court went on to explain that if the ALJ rejects a
treating source medical opinion completely he must “give specific, legitimate reasons for
doing so.” Id. 350 F.3d at 1300 (citations and quotations omitted).
Here, as Plaintiff’s brief suggests, there is nothing in the ALJ’s decision providing
any reason for the weight assigned to Dr. Punswick’s opinion. And, the decision does not
make clear to reviewers such as this court what weight was given to that treating source
medical opinion or the reasons for that weight. Moreover, this is not a case wherein the
ALJ weighed some opinion or opinions of the treating source, explained the weight
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accorded and the reasons for that weight, and thereafter the plaintiff provided additional
opinions of that source or additional evidence relating to those opinions. The decision at
issue contains citations to certain of Dr. Punswick’s treatment records, but it does not
contain evaluations regarding those records which reflect negatively on those records or
on Dr. Punswick, and, it does not even mention Dr. Punswick’s name. Thus, the
Commissioner found that Plaintiff’s condition does not meet or equal the severity of
Listing 1.04A, and in effect accorded no weight to Dr. Punswick’s opinion that Plaintiff’s
condition medically equals that Listing--all without specifically stating that she accorded
no weight to the opinion, without providing any basis for that determination, and without
providing specific, legitimate reasons for rejecting the opinion.
It is true that the record before the ALJ did not contain the opinion of Dr.
Punswick presented for the first time to the Appeals Council and, in fact, did not contain
any opinion by Dr. Punswick regarding Plaintiff’s limitations or restrictions. Thus, one
would not anticipate that the ALJ’s decision would address Dr. Punswick’s opinion.
However, SSR 96-2p, quoted by the court in Watkins explains that “[p]aragraph (d)(2)2 of
20 CFR 404.1527 and 416.927 requires that the adjudicator will always give good reasons
in the notice of the determination or decision for the weight given to a treating source’s
medical opinion(s).” West’s Soc. Sec. Reporting Serv., Rulings 114 (Supp. 2013). It also

2

Paragraph (d)(2) of 20 C.F.R. 404.1527 and 416.927 were renumbered as
paragraph (c)(2) in a revision effective February 23, 2012. 77 Fed. Reg. 10651, at 10656,
10657.
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requires the explanation to be “sufficiently specific to make clear to any subsequent
reviewers” the weight accorded to the opinion, and the reason for that weight. West’s
Soc. Sec. Reporting Serv., Rulings 115 (Supp. 2013).
Despite the Appeals Council’s finding that Dr. Punswick’s opinion “does not
provide a basis for changing the Administrative Law Judge’s decision,” the controlling
legal standard requires more. Because Dr. Punswick’s opinion is a treating source
medical opinion, the ALJ is required to explain the weight accorded to the opinion and
the reasons for that weight in his decision. The decision does not contain that
explanation. Thus, contrary to the Appeals Council’s rationale, the opinion specifically
provides a basis for, and actually requires, a change to the ALJ’s decision. Moreover, the
decision did not apply the correct legal standard to evaluation of Dr. Punswick’s opinion,
and remand is necessary for application of the correct legal standard.
The court’s decision does not require remand in every case where a claimant
presents a treating source medical opinion for the first time to the Appeals Council along
with a request for review. The court’s experience shows that in most cases the treating
source will have provided a medical opinion which was before the ALJ, and the ALJ will
have explained the weight accorded that earlier opinion and the reasons for that weight.
In such a case, the court need only to determine whether substantial evidence in the
record as now constituted supports the ALJ’s explanation. Moreover, the court notes
cases in which the Appeals Council has denied review, but in the notice thereof has
explained specific reasons for discounting the medical opinion evidence. E.g., Beauclair
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v. Barnhart, 453 F. Supp. 2d 1259, 1272 (D. Kan. 2006); Smith v. Barnhart, No. 05-2496JWL, 2006 WL 4045940 *1-2 (D. Kan. Nov. 13, 2006); Buscher v. Astrue, No. 08-4120JAR, 2009 WL 2448802 *5 (D. Kan. Aug. 7, 2009). Had the Appeals Council followed
that course in this case, the decision (or at least the record) would contain an explanation
of the weight accorded Dr. Punswick’s opinion and the reasons for that weight, and the
court would be able to determine if that explanation was supported by record evidence.
Remand is necessary for the Commissioner to evaluate Dr. Punswick’s opinion in
the first instance and to explain the reasons for the weight given that opinion.
IT IS THEREFORE ORDERED that 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 the case for further proceedings consistent herewith.
Dated this 30th day of May 2014, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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