Kemp v. Colvin
Filing
34
ORDER ADOPTING 31 REPORT AND RECOMMENDATIONS as to 2 Complaint: the case is dismissed with prejudice. Signed by Judge Clark Waddoups on 12/19/16 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
HEIDI F. KEMP,
ORDER ADOPTING REPORT &
RECOMMENDATION
Plaintiff,
Case No 1:14-cv-37-CW-PMW
vs.
Judge Clark Waddoups
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Magistrate Judge Paul M. Warner
Defendant.
Plaintiff Heidi F. Kemp appeals the Social Security Administration’s denial of her
application for disability insurance benefits under Title II of the Social Security Act, 42
U.S.C. §§ 401–434. This case was assigned to United States District Court Judge Clark
Waddoups, who then referred it to United States Magistrate Judge Paul M. Warner under
28 U.S.C. § 636(b)(1)(B). (Dkt. No. 14.) On May 9, 2016, Judge Warner recommended
that the court affirm the Commissioner’s decision denying Ms. Kemp’s application for
disability insurance benefits and dismiss her social security appeal. (Dkt. No. 31.) On
May 23, 2016, Ms. Kemp filed an Objection to Judge Warner’s Report and
Recommendation. (Dkt. No. 32.) On June 1, 2016 the government filed a response to Ms.
Kemp’s Objection. (Dkt. No. 33.)
Upon review of the file de novo, the court agrees with Judge Warner that the
ALJ’s failure to send Ms. Kemp’s updated medical records to Dr. Atkin constitutes
harmless error. (Dkt. No. 31 at 2–3.)
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Plaintiff objects that to find such error harmless would render the Appeals
Council’s remand order “toothless” or “impotent.” (Dkt. No. 32 at 1, 5.) On finding the
original administrative record incomplete, the Appeals Council directed the ALJ to obtain
updated treatment records and additional evidence concerning Ms. Kemp’s mental
impairments, and, if necessary, obtain evidence from a qualified medical expert to clarify
the nature and severity of those impairments. (Tr. 113–14.) As Judge Warner notes, the
ALJ’s obtaining updated records and additional evidence “was not a condition precedent”
to seeking a medical expert opinion, even if the ALJ found medical expert evidence
necessary to clarify Ms. Kemp’s mental impairments. (Dkt. No. 31 at 3.) By its terms, the
Council’s remand order does not create an obligation on the part of the ALJ to request a
medical expert opinion based on the updated information. (See tr. 114.) Nor do the
Commissioner’s guidelines require the ALJ to obtain an updated medical opinion in these
circumstances; consistent with the remand order, the guidelines give the ALJ discretion
to determine whether an updated opinion is necessary. SSR 96-6p, 1996 WL 374180, at
*3–4 (July 2, 1996) (discussing how an ALJ must obtain an updated medical expert
opinion when, in the ALJ’s opinion, additional medical evidence is received that may
change the medical consultant’s findings).
The ALJ retains the responsibility for deciding the legal question of whether a
claimant’s impairment meets or equals a listing and is therefore disabled. SSR 96-6p,
1996 WL 374180, at *3 (reflecting that only the ALJ can determine medical equivalence,
and the ALJ need not defer to a state agency consultant’s findings or expert opinion
evidence); 20 C.F.R. § 404.1527(d)(1) & (2) (stating that the Commissioner is
responsible for determining medical equivalence to a listing, as well as the ultimate
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disability determination); see White v. Massanari, 271 F.3d 1256, 1259 (10th Cir. 2001)
(observing that “a treating physician’s opinion is not dispositive on the ultimate issue of
disability”) (citing Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027, 1029
(10th Cir. 1994)). The ALJ need only weigh the medical opinion and articulate valid
reasons for rejecting it. See Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007)
(holding the ALJ need only provide “good reasons” for the weight assigned to treating
source opinions).
Ms. Kemp complains that the ALJ rejected Dr. Atkin’s expert opinion largely
because Dr. Atkin failed to review critical evidence after October 2011––evidence over
which, Ms. Kemp emphasizes, the ALJ had exclusive control and ability to send to Dr.
Atkin. While the ALJ did indeed reject Dr. Atkin’s opinion for failing to review critical
exhibits in the updated record, the ALJ also articulated other valid, supportable reasons
for rejecting Dr. Atkin’s opinion. The ALJ found Dr. Atkin’s opinion was “not well
explained” and discussed how Dr. Atkin’s specific interrogatory responses did not
indicate Ms. Kemp’s mental impairment met or equaled a listing. (Tr. 16.) Judge Warner
notes that Dr. Atkin failed to explain contradictions between the medical evidence on
record and his conclusion that Ms. Kemp’s mental impairment met or equaled a listing.
(Dkt. No. 31 at 5–6; see 20 C.F.R. § 404.1527(c)(4) (noting the ALJ will consider an
opinion’s consistency with the record as a whole).)
In any event, the Court agrees that substantial evidence supports the ALJ’s
finding that Ms. Kemp’s mental impairments do not satisfy the B or C criteria for Listing
12.04. (Dkt. No. 31 at 4–5; tr. 15–16.) Ms. Kemp does not indicate how the updated
treatment records would have changed Dr. Atkin’s opinion, or the ALJ’s reasons for
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discounting Dr. Atkin’s opinion, or the ALJ’s ultimate determination that Ms. Kemp was
not disabled under the meaning of the Act. The court concludes any error in the ALJ’s
failure to send Dr. Atkin the updated medical records is harmless.
After de novo review of the record, the court APPROVES AND ADOPTS
Magistrate Judge Warner’s Report and Recommendation in its entirety. (Dkt. No. 31.)
Accordingly, this case is hereby DISMISSED with prejudice.
DATED this 19th day of December, 2016.
BY THE COURT:
______________________________
Clark Waddoups
United States District Judge
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