SAM A. CROW, Senior District Judge.
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.
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner of Social Security 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. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir.1994). 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. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D.Kan.1992). 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
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. 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, 540 U.S. 20, 124 S.Ct. 376, 379-380, 157 L.Ed.2d 333 (2003).
The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th 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).
On September 25, 2009, administrative law judge (ALJ) James Francis Gillet issued his decision (R. at 16-30). Plaintiff alleges that he has been disabled since November 15, 2004 (R. at 16). Plaintiff is insured for disability insurance benefits through December 31, 2009 (R. at 18). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since the alleged onset date of disability (R. at 18). At step two, the ALJ found that plaintiff had the following severe impairments: residual pain and infection from left lower extremity below the knee amputation, left hip pain, lumbar pain, depression, and a personality disorder (R. at 19). At step three, the ALJ determined that plaintiff's impairments do not meet or equal a listed impairment (R. at 21). After determining plaintiff's RFC (R. at 23), the ALJ found at step four that plaintiff is unable to perform past relevant work (R. at 28). At step five, the ALJ found that plaintiff could perform other jobs that exist in significant numbers in the national
The ALJ made RFC findings which included the following mental limitations:
(R. at 23). In making these mental RFC findings, the ALJ rejected the opinions of two medical sources, Dr. McGehee, who performed a psychological evaluation on October 24, 2007 (R. at 221-224), and who filled out a medical source statement-mental dated January 31, 2008 (R. at 226-227), and Dr. Ball, who filled out a medical source statement-mental on December 29, 2008 after seeing the plaintiff on two occasions (R. at 232-233, 259-260).
Dr. McGehee found that plaintiff was markedly limited in 9 categories, and moderately limited in 11 categories (R. at 226-227). His evaluation consisted of a clinical interview, mental status exam and the administration of the Millon Clinical Multiaxial Inventory-III (MCMI-III) (R. at 222). His test results and evaluation summary are as follows:
(R. at 222-223, emphasis added). Dr. McGehee diagnosed plaintiff with bipolar disorder and personality disorder. He also indicated that plaintiff had a GAF of 38
Dr. Ball also prepared a medical source statement-mental. He opined that plaintiff was markedly limited in 6 categories, moderately limited in 6 categories, and not significantly limited in 8 categories (R. at 232-233).
The ALJ stated the following in regards to the report and opinions of Dr. Ball and Dr. McGehee:
(R. at 27).
The ALJ rejected the opinions of Dr. McGehee because, according to the ALJ, Dr. McGehee apparently relied quite heavily on plaintiff's subjective complaints and uncritically accepted as true most, if not all, of what plaintiff reported. However, there is absolutely no evidence in the record or in Dr. McGehee's evaluation to support this assertion. Dr. McGehee never indicated that he relied quite heavily on plaintiff's complaints or uncritically accepted most or all of what plaintiff reported. In fact, as set forth above, Dr. McGehee's evaluation was based, not just on a clinical interview and a mental status exam, but also relied on test results from the MCMI-III. Dr. McGehee stated that the test results were valid (R. at 222), and set forth in great detail the results of that test (R. at 222-223).
In the case of Langley v. Barnhart, 373 F.3d 1116, 1121 (10th Cir.2004), the court held:
Subsequently, in the case of Victory v. Barnhart, 121 Fed.Appx. 819 (10th Cir. 2005), the court held:
121 Fed.Appx. at 823-824.
As in Langley and Victory, in the case before the court, the ALJ had no legal or evidentiary basis for finding that Dr. McGehee's opinions relied quite heavily on plaintiff's subjective complaints. Again, as in Langley and Victory, there was nothing in Dr. McGehee's evaluation to indicate that he relied quite heavily on plaintiff's subjective complaints. Furthermore, the ALJ's finding erroneously ignored and failed to mention that Dr. McGehee's evaluation was based in large part on the MCMI-III test results, which were found to be valid. After describing the test results in some detail, Dr. McGehee's summary indicates that "Test results reveal him to be ..." (R. at 223). The ALJ's basis for discounting the opinions of Dr. McGehee is clearly not supported by the evidence.
The ALJ also discounted the mental RFC opinions of Dr. Ball, noting that his opinions are not supported by treatment notes, clinical or diagnostic testing, and are inconsistent with the evidence as a whole (R. at 27). However, Dr. Ball's statement indicates that his findings are based on medical history, clinical and/or laboratory findings, diagnosis, treatment, and/or prognosis (R. at 233). Most importantly, Dr. Ball's opinions are consistent with the opinions of Dr. McGehee; in fact, his limitations are generally less restrictive than those of Dr. McGehee, whose results are based on valid test results. By contrast, there is no evidence in the record that disputes or contradicts the findings of Dr. Ball, or that indicates that plaintiff's mental limitations are less severe than those of Dr. Ball. Thus, the ALJ's bases for discounting the opinions of Dr. Ball are also clearly not supported by the evidence.
The ALJ also asserts that the opinions of Dr. Ball and Dr. McGehee regarding plaintiff's mental limitations "are even worse than the claimant's own testimony" (R. at 27). However, the court has carefully reviewed plaintiff's testimony, and finds nothing in his testimony inconsistent with the opinions of Dr. Ball or Dr. McGehee. This assertion by the ALJ is not supported by the evidence.
According to SSR 96-8p, the RFC assessment "must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts ... and nonmedical evidence." SSR 96-8p, 1996 WL 374184 at *7. However, the ALJ did not cite to any evidence in support of his mental RFC findings. Furthermore, the court finds that there is no evidence in the record that would support the ALJ's mental RFC findings; in fact, the uncontroverted medical evidence clearly establishes that plaintiff's mental
In light of the clear error by the ALJ in his mental RFC findings, the court will only briefly consider the ALJ's physical RFC findings. The ALJ's physical RFC findings limited plaintiff to sedentary work, a limit to lifting and/or carrying less than 10 pounds, standing and/or walking for 20 minutes at a time, the need to shift positions while seated, no pushing/pulling with lower extremities, no use of air or vibratory tools, no use of motor vehicles, and avoid climbing or unprotected heights (R. at 23). In making these findings, the ALJ gave great weight to the opinions of Dr. Zeimet (R. at 27, 207-210). The ALJ's findings are also generally consistent with the opinions of Dr. Mauldin (R. at 25, 214-219).
Dr. Ball prepared a medical source statement-physical on December 29, 2008 indicating that plaintiff had greater limitations than those found by the ALJ (R. at 229-230); the ALJ stated that Dr. Ball's opinions were not supported by the treatment notes or by clinical or diagnostic testing and were inconsistent with the evidence as a whole (R. at 27). On the one hand, the court will not reweigh the evidence or substitute its judgment for that of the Commissioner. Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir.2005); White v. Barnhart, 287 F.3d 903, 905, 908, 909 (10th Cir.2002). However, the ALJ did not discuss whether or not there was a need to recontact Dr. Ball in accordance with 20 C.F.R. § 404.1512(e)(1), § 416.912(e)(1), and SSR 96-5p.
Plaintiff also asserts errors by the ALJ at step five (Doc. 11 at 25-28). The court will not reach these issues because they might be affected by the ALJ's resolution of the case after making RFC findings in accordance with the medical opinion evidence and SSR 96-8p. Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir.2004).
Plaintiff's briefs seek either a reversal and remand for an award of benefits, or, in
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 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. Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993). 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. Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir.2006). 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. Gilliland v. Heckler, 786 F.2d 178, 184, 185 (3rd Cir.1986).
The first factor for the court to consider is the length of time the matter has been pending. Plaintiff filed for disability benefits on May 22, 2007 (R. at 16); therefore, this case has been pending for 4 years.
The second factor for the court to consider is whether a remand for additional fact-finding would serve any useful purpose, or would merely delay the receipt of benefits. The medical opinions of both Dr. Ball and Dr. McGehee indicate that plaintiff has numerous marked and moderate mental limitations. The testimony of the vocational expert (VE) was that a person with the mental limitations set forth in the reports of either Dr. McGehee (Exhibit 4F) or Dr. Ball (Exhibit 6F) would not be able to work (R. at 73-74). Defendant failed to point to any evidence in the record that disputes or contradicts the opinions of these two medical sources regarding plaintiff's mental limitations.
In the case of Graham v. Sullivan, 794 F.Supp. 1045, 1053 (D.Kan.1992), this court held as follows:
Graham, 794 F.Supp. at 1053. In the case before the court (Farmer) the ALJ's reasons for discounting the opinions of Dr. Ball and Dr. McGehee are not supported by substantial evidence. Two medical sources have opined that plaintiff has numerous marked and moderate mental limitations; the VE testified that a person with such limitations could not work. These opinions stand uncontroverted. Nothing in plaintiff's testimony is inconsistent with the opinions of these two medical sources.
In Graham, the court relied on the fact that a treating physician had opined that plaintiff was disabled. In the case before the court, Dr. Ball, although acknowledged by the ALJ to be a treatment provider, had only seen plaintiff on two occasions before offering his opinion. However, what is less clear is whether or not Dr. McGehee was a treatment provider. Plaintiff states in his reply brief that he is not arguing that Dr. McGehee was a treating source, but only an examining source (Doc. 15 at 7). However, plaintiff, in his testimony, stated that he had been seeing Dr. McGehee for about two years, once every 3 months, for about 30 minutes per visit (R. at 54-55). Thus, there is evidence in the record that Dr. McGehee may have been a treatment provider for the plaintiff.
As noted above, although it has been determined that reversal of the ALJ decision is warranted, neither plaintiff's briefs nor defendant's brief discuss the issue of whether the case should be remanded for an award of benefits or for further hearing. Furthermore, it is not clear from the record whether Dr. McGehee is a treatment provider or a one-time only consultative examiner. For these reasons, the court will remand this case for further hearing. On remand, the court shall ascertain whether Dr. McGehee is a treatment provider. If he is found to be a treatment provider, then, in light of the fact that two treatment providers have opined that plaintiff has mental limitations which prevent him from working, unless the Commissioner can point to evidence which both controverts their opinions and is sufficient to overcome the opinions of two treating sources, plaintiff should be found to be disabled, in accordance with Graham, and the Commissioner should ascertain the onset of disability in accordance with SSR 83-20.
On the other hand, if Dr. McGehee is found to be only a one-time only examining medical source, then the Commissioner must make a determination of what weight to accord to the opinions of Dr. McGehee, an examining medical source who relied on valid test results when setting forth his opinions, and Dr. Ball, a treatment provider who saw plaintiff on two occasions before offering his opinions. Unless the Commissioner can point to any evidence in the record which controverts their opinions, the ALJ should find plaintiff to be disabled and determine the onset date of disability in accordance with SSR 83-20.
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.
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) (4th ed., text revision, American Psychiatric Association 2000 at 34) (emphasis in original).
366 F.3d at 1084 (emphasis added). In addition, SSR 96-5p states the following:
1996 WL 374183 at *6 (emphasis added).