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. 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 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.
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 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. 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.
The claimant bears the burden of proof through step four of the analysis.
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 May 31, 2016, administrative law judge (ALJ) Michael Comisky issued his decision (R. at 21-36). Plaintiff alleges that she has been disabled since November 1, 2012 (R. at 21). Plaintiff is insured for disability insurance benefits through September 30, 2014 (R. at 24). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since the alleged onset date (R. at 24). At step two, the ALJ found that plaintiff has severe impairments (R. at 25). At step three, the ALJ determined that plaintiff's impairments do not meet or equal a listed impairment (R. at 26). After determining plaintiff's RFC (R. at 27), the ALJ found at step four that plaintiff is unable to perform past relevant work (R. at 34). At step five, the ALJ found that plaintiff could perform other work that exists in significant numbers in the national economy (R. at 35-36). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 36).
In his decision, the ALJ made mental RFC findings that plaintiff could understand, remember and carry out short, simple instructions and work tasks at an SVP 2 level. Plaintiff could have frequent contact with coworkers and supervisors, but only occasional contact with the general public. Working with the general public should not be a primary job duty (R. at 27).
In making his mental RFC findings, the ALJ considered two medical source opinions. Dr. Wilkinson, a non-examining medical source, prepared a mental RFC assessment on November 25, 2014 after reviewing the record in this case. Dr. Wilkinson summarized the record in support of his findings (R. at 113-114). Dr. Wilkinson found that plaintiff had a moderate limitation in the ability to carry out detailed instructions. She found that plaintiff was able to carry out simple and some intermediate instructions, and can sustain routine tasks and complete a normal work week. Dr. Wilkinson further found that plaintiff was moderately limited in her ability to interact appropriately with the general public. She indicated that plaintiff can relate to supervisors, but can only work in jobs with infrequent interaction with the public (R. at 118-120). The ALJ accorded great weight to this opinion, finding that Dr. Wilkinson's opinions were consistent with the medical record and plaintiff's daily activities (R. at 34).
The ALJ also considered a consultative examination from Dr. Schemmel, who examined plaintiff on one occasion and prepared a report on November 11, 2015 (R. at 1601-1603). Dr. Schemmel opined as follows:
(R. at 1603). The ALJ stated that this opinion was provided long after the expiration of plaintiff's insured status [plaintiff was insured through September 30, 2014; plaintiff was interviewed by Dr. Schemmel on November 11, 2015]. The ALJ also found that Dr. Schemmel's findings were inconsistent with the treatment records, mental status exams and plaintiff's reported level of functioning during the relevant period. The ALJ also noted that the report provided little insight into plaintiff's level of functioning within the relevant period. As such, the ALJ concluded that the opinion "has not been given much weight" (R. at 34).
Plaintiff argues the ALJ erred in the relative weight accorded to the medical source opinions. The opinions of physicians, psychologists, or psychiatrists who have seen a claimant over a period of time for purposes of treatment are generally given more weight than the views of consulting physicians or those who only review the medical records and never examine the claimant. The opinion of an examining physician is generally entitled to less weight than that of a treating physician, and the opinion of an agency physician who has never seen the claimant is entitled to the least weight of all.
At the initial hearing on October 26, 2015, the ALJ indicated that he would order a consultative examination, noting that he did not have a mental health RFC assessment (R. at 67-69). However, the ALJ did have the mental RFC assessment from Dr. Wilkinson. Subsequently, Dr. Schemmel performed a consultative examination.
The court will not reweigh the evidence or substitute its judgment for that of the Commissioner.
Although a non-examining physician is generally entitled to the least weight, the ALJ accorded the opinions of Dr. Wilkinson great weight, while giving little weight to the opinions of a consultative examination by Dr. Schemmel. Dr. Wilkinson had reviewed the records in this case, including plaintiff's medical treatment records, while Dr. Schemmel interviewed plaintiff on one occasion and prepared a report.
The ALJ discussed the mental treatment records in some detail (R. at 29-30, 34), as did Dr. Wilkinson (R. at 113-114). Dr. Wilkinson clearly relied on the mental treatment records in making his RFC findings, and the ALJ gave greater weight to the report of Dr. Wilkinson because he found that it was more consistent with the medical records and plaintiff's daily activities than the report from Dr. Schemmel. The court will not reweigh the evidence. The court finds that there is sufficient evidence which a reasonable mind might accept as adequate to give greater weight to the opinions of Dr. Wilkinson.
In his decision, the ALJ stated that he accorded great weigh to the state agency medical and psychological opinions found in Exhibits 2A and 4A (R. at 34). The only opinion contained in Exhibit 2A is a physical RFC assessment by an SDM (R. at 95-98). An SDM is not a medical professional of any stripe, and the opinion of an SDM is entitled to no weight as a medical opinion, nor to consideration as evidence from other non-medical sources.
The ALJ also stated that his RFC findings are supported by the evidence of record, and he gave special emphasis to the state agency assessments by Dr. Wilkinson (mental) and Dr. Coleman (physical) (R. at 34). The ALJ's physical RFC findings are nearly identical to the physical RFC assessment by Dr. Coleman (R. at 27, 115-118). Thus, despite the ALJ's erroneous reference to Exhibit 2A, which only contained an opinion by an SDM, the ALJ's physical RFC findings clearly gave great weight to the opinions of an acceptable medical source, Dr. Coleman.
Furthermore, in this case, plaintiff does not cite to any medical opinion evidence which conflicts with or contradicts the findings of the ALJ or the opinions of Dr. Coleman. The ALJ is allowed to engage in less extensive analysis where none of the record evidence conflicts with the ALJ's conclusion that plaintiff can perform work at a certain exertional level.
At step five, the ALJ found that plaintiff could perform three sedentary jobs: (1) wire wrapper (aka: patcher), 34,000 jobs nationally, (2) lens inserter, 20,000 jobs nationally), and (3) production checker (aka: dowel inspector), 39,000 jobs nationally (R. at 35-36). In making these findings, the ALJ adopted the opinions of the vocational expert (VE), who testified at the hearing (R. at 80-81).
Plaintiff first argues that cases to which they cite indicate that there are only 8,000 lens inserter jobs and 20,000 production checker jobs nationally (Doc. 11 at 33). However, this information or evidence was not before the ALJ in this case, and the plaintiff made no effort to provide this information to the ALJ. Court review of the Commissioner's denial of social security disability benefits is limited to a consideration of the pleadings and transcript filed by the Commissioner. It is not a trial de novo. The court is not at liberty to consider evidence not in the record certified by the Commissioner.
The second issue raised by the plaintiff is whether the jobs identified by the ALJ conflict with the ALJ's RFC finding that plaintiff could "
An ALJ must inquire about and resolve any conflicts between the VE testimony and the description of that job in the DOT.
In dicta, the court in
662 Fed. Appx. at 594. The court found a conflict between the VE's testimony and the job descriptions in the DOT; the ALJ's failure to have the VE reconcile this conflict was found to be reversible error. 662 Fed. Appx. at 594.
As noted above, a reasoning level of 2 requires the ability to carry out detailed but uninvolved written or oral instructions. The ALJ stated that plaintiff can understand, remember, and carry out short, simple work instructions, the same limitation as that given in
The court would note that defendant does not argue that even if the ALJ erred by failing to inquire about and resolve the conflict between the RFC findings and the patcher job as identified in the DOT, such error is harmless because the VE identified two other jobs that did not conflict with the DOT, and 59,000 of those jobs exist in the national economy according to the VE. Thus, the issue is not before the court. Even if the court were to consider the issue of harmless error, the court would not find the error harmless. In the case of
On the other hand, in
In the case before the court, the remaining number of jobs is 825 in Kansas and 59,000 nationally (R. at 35-36, 80-81). Thus, the remaining number of jobs is closer to the cases cited above (the remaining number of jobs were 49,957 and 55,000) in which the courts declined to find harmless error on the grounds that the remaining number of jobs nationally is significant as a matter of law, and remanded the case for a determination of whether the number of jobs is sufficient to qualify as significant. By contrast, the remaining number of jobs in the case before the court is far less than the cases cited above (the remaining number of jobs nationally ranged from 152,000 to 215,000) in which the courts determined that no reasonable factfinder could have determined that a suitable number of jobs do not exist in the national economy. Based on the facts of this case, and the guidance provided by the cases cited above and in
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.