Opinion
Case No. 01-4043-JAR
October 21, 2003
MEMORANDUM AND ORDER DENYING OBJECTION TO RECOMMENDATION AND REPORT
Plaintiff seeks review of a final decision of the Commissioner of Social Security (Commissioner) denying disability insurance benefits and supplemental security income under sections 216(i), 223, 1602 and 1614(a)(3)(A) of the Social Security Act (the Act). Plaintiff sought review of the Administrative Law Judges's (ALJ) decision and the Honorable John Thomas Reid issued a Recommendation and Report (Doc. 12) which found that the decision of the Commissioner should be reversed and remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for the limited purpose of determining whether Plaintiff's ability to concentrate is limited because of pain, and for any further proceedings necessary thereafter. No written objections were filed within ten days, and on May 19, 2003, this Court entered an Order (Doc. 13) and a Judgment (Doc. 14) adopting the Recommendation and Report.
42 U.S.C. § 416(i), 423, 1381 a, and 1382c(a)(3)(A).
The matter is currently before the Court on Defendant's Motion to Set Aside Judgment and to File Objection to Report and Recommendation Out of Time (Doc. 15). Attached to the motion is Defendant's Objection to Magistrate's Report and Recommendation with Suggestions in Support. The Court will address the merits of Defendant's objection to the Recommendation and Report.
The standards this Court must employ when reviewing objections to the recommendation and report are clear. Only those portions of the recommendation and report that have been specifically identified as objectionable will be reviewed. The review of those identified portions is de novo and the Court must "consider relevant evidence of record and not merely review the magistrate judge's recommendation."
See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72.
See Garcia v. City of Albuquerque, 232 F.3d 760, 767 (10th Cir. 2000); Gettings v. McKune, 88 F. Supp.2d 1205, 1211 (D. Kan. 2000).
See Griego v. Padilla, 64 F.3d 580, 584 (10th Cir. 1995) (citation omitted).
Defendant objects to the recommendation to remand this matter to determine whether Plaintiff experienced decreased concentration as a result of pain. Defendant argues that because Judge Reid found the ALJ's consideration of Plaintiff s subjective complaints was proper and supported by substantial evidence, and the ALJ properly considered the medical opinion evidence, the Commissioner's decision must be upheld.
Plaintiff claims that the RFC should include a limitation reflecting Plaintiff's limited capacity to concentrate due to pain. Plaintiff's claim is based upon a single entry in one of his treating physician's notes. This notation of back pain with secondary decreased concentration is the only place in the record where there is any indication that Plaintiff has reduced ability to concentrate resulting from pain. The ALJ did not comment on the treating physician's note regarding decreased concentration.
Defendant argues that an ALJ is not required to discuss every piece of evidence, and that the comment in the treating physician's notes is of little probative value because it is an isolated entry in the medical record, made during an initial evaluation and not later repeated, and is inconsistent with the other substantial evidence of record indicating that Plaintiff's pain was not of such severity as to cause concentration deficits.
Although Defendant is correct that the ALJ need not discuss every piece of evidence, the ALJ "must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects." Because the notation was by Plaintiff's treating physician, the Court cannot say that it is not "significantly probative" evidence. This Court may neither reweigh the evidence nor substitute its judgment for that of the agency. Because it is unclear whether the ALJ considered or rejected this evidence, the limited remand is appropriate. Defendant's objection is overruled based on the Court's de novo review, considering the relevant evidence of record. IT IS THEREFORE ORDERED that Defendant's Objection to Magistrate's Report and Recommendation (Doc. 15) shall be DENIED.
Clifton v. Chafer, 79 F.3d 1007, 1010 (10th Cir. 1996) (citations omitted).
Cf. Metivier v. Barnhart, 2003 WL 22176075 (D. Kan. 2003) (finding that the ALJ cannot be faulted for failing to attach significance to a statement in the notes of an interviewer in a Social Security Office, where no context or explanation is provided for the notation).
Casias v. Sec'y of Health Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).
See Oslin v. Barnhart, 69 Fed. Appx. 942, 946-47, 2003 WL 21666675 (10th Cir. 2003) (finding where ALJ's discussion of the mental impairment evidence did not mention the GAF scores or fully discuss the mental progress notes, it was unclear whether the ALJ considered or rejected this evidence); see also Briggs v. Massanari, 248 F.3d 1235, (10th Cir. 2001) (finding that the ALJ erred by ignoring test results completely).
IT IS FURTHER ORDERED that the Court's previous Order (Doc. 13) and Judgment (Doc. 14) accepting and adopting the May 2, 2003 Recommendation and Report (Doc. 12) shall remain in force.
IT IS SO ORDERED.