Summary
holding that Commissioner should have opportunity to perform step five analysis in first instance
Summary of this case from Baines v. AstrueOpinion
Case No. 01-4112-JAR
September 30, 2002
MEMORANDUM AND ORDER GRANTING MOTION TO REVERSE AND REMAND
The issue in this case is whether Plaintiff is entitled to supplemental security income (SSI) benefits under Title XVI of the Social Security Act. The matter is currently before the Court upon Defendant's Motion to Reverse and Remand (Doc. 15).
Plaintiff filed an application for Supplemental Security Income benefits under Title XVI of the Social Security Act on May 14, 1999. Plaintiff's application was denied initially and on reconsideration. Plaintiff requested a hearing and an administrative hearing was held by the Administrative Law Judge (ALJ) on March 14, 2000. On May 11, 2000, the ALJ rendered a written decision unfavorable to Plaintiff. Plaintiff's request for review by the Appeals Council was denied on June 15, 2001. Plaintiff timely filed a Complaint with this Court seeking an order reversing the ALJ's decision.
Record at 85-90.
Record at 53-64.
Record at 30-51.
Record at 13-20.
Record at 6-7.
The Court shall review the Commissioner's decision to determine only whether the decision is supported by substantial evidence and whether the Commissioner applied the correct legal standards. Substantial evidence is 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 constitutes mere conclusion.
Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
Id. at 804-05.
Defendant's motion seeks remand for the Administrative Law Judge (ALJ): to consider the opinion of Ken Okano, M.D., Plaintiff's treating physician; to formulate a residual functional capacity that accounts for Plaintiff's mental limitations; and to obtain vocational expert testimony that supports the ALJ's decision at step five of the sequential evaluation process. Plaintiff objects to the motion to remand, arguing that the ALJ already considered Dr. Okano's opinion and that Plaintiff has established a prima facie case of disability.
The ALJ states in his decision that "[t]he undersigned has reviewed Exhibits 1, 2, and 7F and notes that the outpatient treatment records do not indicate ongoing severe disabling mental depression." The ALJ did not otherwise discuss Dr. Okano's opinion.
Record at 18.
Whether to remand the case for additional fact-finding or for an immediate award of benefits is within the discretion of the district court. Where remand for additional fact-finding would serve no useful purpose, the court may order an immediate award. 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 on the record as a whole indicates that the claimant is disabled and entitled to benefits. Remand is appropriate where the ALJ makes minimal findings that are not supported by adequate evaluation of the evidence in the record.
Taylor v. Callahan, 969 F. Supp. 664, 673 (D.Kan. 1997) (citing Dixon v. Heckler, 811 F.2d 506, 511 (10th Cir. 1987)).
Sorenson v. Bowen, 888 F.2d 706, 713 (10th Cir. 1989) (citations omitted).
Gilliland v. Heckler, 786 F.2d 178, 184-85 (3rd Cir. 1986) (citations omitted).
Taylor v. Callahan, 969 F. Supp. 664, 673 (D.Kan. 1997) (citing Talbot v. Heckler, 814 F.2d 1456, 1465 (10th Cir. 1987)).
The Court is unable to say that remand would serve no useful purpose. There has been no proper consideration and findings regarding the weight to be given to the opinions of Plaintiff's treating physician. To establish the facts and weigh the evidence in the first instance is the duty of the ALJ. Therefore, remand is necessary to fully develop the record.
The ALJ found, "claimant's intermittent depression and attending limitations do not prohibit him from performing his past relevant work as a stocker or a machine operator." The ALJ found that:
Record at 20.
Claimant has at all times retained the residual functional capacity for a range of medium exertional work where he has the ability to lift and carry 50 pounds maximum with 25 pounds occasional lifting and carrying, he can stand and walk for six out of eight hours and sit for six out of eight hours and he does, secondary to his intermittent depression, experience moderate limitations on his ability to understand and remember detailed instructions, moderate difficulties in his ability to carry out detailed instructions, moderate dysfunction in terms of his ability to maintain attention and concentration for extended periods and moderate social dysfunction in terms of his ability to interact appropriately with the general public.
Record at 19-20 (emphasis added).
The ALJ also found that "[m]entally, claimant does have intermittent depression, which has resulted in no restrictions of activities of daily living, slight difficulties in maintaining social functioning, often results in deficiencies of concentration, persistence or pace, and has never resulted in an episode of deterioration or decompensation in work or work-like settings." These findings are ambiguous, if not contradictory, and the ALJ did not rely on his finding that Plaintiff "often" has deficiencies in concentration, persistence or pace, when posing his hypothetical to the Vocational Expert (VE).
Record at 18 (emphasis added).
Plaintiff argues that there can be no other determination than to find Plaintiff disabled at step 5, and the Court should therefore reverse for an immediate award of benefits. Where evidence is fully developed and unequivocally points to a specific finding, the Court may reverse without remand. In this case, however, the evidence is not fully developed nor does it unequivocally point to a specific finding.
Gatson v. Bowen, 838 F.2d 442 (10th Cir. 1988); Biri v. Apfel, 4 F. Supp.2d 1276 (D.Kan. 1998).
The five-step analysis is sequential. Thus, if a claimant is found to be disabled (or not) at any step, the Commissioner is not required to proceed to the next step. The ALJ concluded that "claimant is capable of performing his past relevant work despite his depression and attending symptoms and he is therefore not disabled within the meaning of the Social Security Act, as amended." Other courts have held that when the ALJ erroneously determines, at Step 4 of the sequential evaluation, that the claimant can return to past relevant work, remand is necessary so that the agency has the opportunity to determine whether or not the claimant is capable of doing other work, at Step 5 of the sequential evaluation process. Plaintiff has alleged errors in the ALJ's hypothetical question to the VE that testified at the hearing. Plaintiff's counsel attempted to remedy the errors through his questioning of the VE. It is unclear whether the ALJ did a Step-5 analysis, and in any event, the record is undeveloped in that regard. The Commissioner, and not the Court, should have the opportunity to make the Step 5 determination in the first instance.
Record at 19.
See, e.g., Williams v. Apfel, 204 F.3d 48 (2nd Cir. 1999).
Plaintiff states that "[t]he ALJ walks a very fine line as to whether or not he stopped his analysis at step 4, or continued to step 5." Plaintiff's Initial Brief (Doc. 9) at p. 13.
This case shall be remanded to enable the ALJ: to consider the opinion of Ken Okano, M.D., Plaintiff's treating physician; to formulate a residual functional capacity that accounts for Plaintiff's mental limitations; and to obtain vocational expert testimony that supports the ALJ's decision at step five of the sequential evaluation process.
IT IS THEREFORE ORDERED that Defendant's Motion to Reverse and Remand (Doc. 15) shall be GRANTED.
IT IS FURTHER ORDERED that this case be reversed and remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with this Memorandum and Order Granting Motion to Reverse and Remand.
IT IS SO ORDERED.