United States District Court, D. Utah, Northern Division
HEIDI F. KEMP, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
M. Warner Magistrate Judge
ORDER ADOPTING REPORT & RECOMMENDATION
Waddoups United States District Judge
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.)
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.)
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
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 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
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).)
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 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.
de novo review of the record, the court APPROVES AND
ADOPTS Magistrate Judge Warner's Report and
Recommendation in its entirety. (Dkt. No. 31.) ...