The opinion of the court was delivered by: John W. Lungstrum United States District Judge
Plaintiff Carolyn Grant-Lewis initiated this suit to challenge Defendant Commissioner Michael J. Astrue's denial of benefits under the Social Security Act. The Magistrate Judge filed a Report and Recommendation (Doc. 16) recommending that this court affirm the Commissioner's decision. Ms. Grant-Lewis objects to a portion of that Report (Doc. 17). For the reasons discussed below, the Report is adopted and the decision of the Commissioner is affirmed.
Ms. Grant-Lewis initially applied for benefits in 2001. That request was denied by the Commissioner, but the district court remanded for further proceedings. In the meantime, Ms. Grant-Lewis again applied for benefits. This second application was also initially denied but was ultimately consolidated with Ms. Grant-Lewis's first application.
The Administrative Law Judge (ALJ) then held a hearing in May 2006, at which Ms. Grant-Lewis testified and, through her attorney, presented testimony from a vocational expert. The ALJ denied Ms. Grant-Lewis's request for benefits. The Appeals Council of the Social Security Administration declined to review her case, making the ALJ's determination the final decision of the Commissioner. Ms. Grant-Lewis sought review of that decision here in the district court. The Magistrate Judge recommends affirming the Commissioner's decision, and Ms. Grant-Lewis objects.
This court has limited review of the Commissioner's determination that a plaintiff is not disabled within the meaning of the Social Security Act. See Hamilton v. Secretary of HHS, 961 F.2d 1495, 1497 (10th Cir. 1992). The court examines whether the Commissioner's decision is supported by substantial evidence in the record as a whole and whether the Commissioner applied the correct legal standards. See Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). "A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Id. But the court "neither reweighs the evidence nor substitutes its judgment for that of the Commissioner." Id.
The court reviews de novo those portions of the Magistrate Judge's Report and Recommendation to which a written objection has been made. See D. Kan. Rule 72.1.4(b); Fed. R. Civ. P. 72(b). Those portions to which neither party objects are deemed admitted, and failure to object constitutes a waiver of any right to appeal. See Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1114 (10th Cir. 2004); Johnson v. Barnhart, 402 F. Supp. 2d 1280, 1282 (D. Kan. 2005). The court is afforded considerable discretion in determining what reliance it may place upon the Magistrate Judge's recommendations and findings. See Johnson, 402 F. Supp. 2d at 1282. The Court may accept, reject, or modify the Magistrate Judge's disposition.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Johnson, 402 F. Supp. 2d at 1282.
In evaluating an application for social security benefits, an ALJ performs a sequential five-step analysis to determine if the claimant is disabled. The ALJ must determine whether (1) the claimant is presently engaged in substantial gainful activity, (2) the claimant has a medically severe impairment or impairments, (3) the impairment is equivalent to one of the impairments listed in the appendix of the relevant disability regulation, (4) the impairment prevents the claimant from performing his or her past work, and (5) the claimant possesses a residual functional capability (RFC) to perform other work in the national economy, considering his or her age, education, and work experience.
Step four, requiring analysis of whether the claimant's impairment prevents performing past work, is at issue in this case. Step four itself consists of three phases of analysis: "first the ALJ must evaluate a claimant's physical and mental residual functional capacity (RFC); [second,] he must determine the physical and mental demands of the claimant's past relevant work; [and finally,] the ALJ determines whether the claimant has the ability to meet the job demands found in phase two despite the mental and/or physical limitations found in phase one." Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (citing Winfrey v. Chater, 92 F.3d 1217, 1023 (10th Cir. 1996)). The ALJ must make specific findings at each phase of this analysis, id., but the claimant bears the burden of proof, Andrade v. Sec'y of Health & Human Servs., 985 F.2d 1045, 1050 (10th Cir. 1993).
Ms. Grant-Lewis argued in her opening brief that the ALJ erred in finding that she could perform her past relevant work. As the Magistrate Judge noted in his Report, her precise claim of error was not entirely clear from her brief. She seemed to assert that the ALJ failed to fully develop the record regarding her past work. She described her testimony about her mental difficulties at work and then maintained that the ALJ failed to consider the combined effect of her physical and mental impairments on her ability to work. "Thus," she contended, "the ALJ failed to meet his burden in ...