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Guerra v. Astrue

United States District Court, D. Kansas

January 16, 2013

Stephanie L. GUERRA, Plaintiff,
v.
Michael J. ASTRUE, Commissioner of Social Security, Defendant.

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[Copyrighted Material Omitted]

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Jean C. Owen, Law Office of Jean C. Owen, Mission, KS, for Plaintiff.

Andrea L. Taylor, Office of United States Attorney, Kansas City, KS, for Defendant.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

MEMORANDUM AND ORDER This is an action to review the final decision of the defendant Commissioner of Social Security

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(" Commissioner" ) denying the claimant Stephanie L. Guerra's applications for disability insurance benefits (" DIB" ) under Title II of the Social Security Act (" Act" ) and for supplemental security income (" SSI" ) under Title XVI of the Act. With the administrative record (Dk. 3) and the parties' briefs on file pursuant to D. Kan. Rule 83.7.1, (Dks. 6, 11, and 12), the case is ripe for review and decision.

STANDARD OF REVIEW

The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that the commissioner's finding " as to any fact, if supported by substantial evidence, shall be conclusive." The court also reviews " whether the correct legal standards were applied." Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.2005). Substantial evidence is that which " a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)(quotation and citation omitted). " It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.2007) (citation omitted). The review for substantial evidence " must be based upon the record taken as a whole" while keeping in mind " evidence is not substantial if it is overwhelmed by other evidence in the record." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.2009)(internal quotation marks and citations omitted). In its review of " whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, ... [the court] will not reweigh the evidence or substitute ... [its] judgment for the Commissioner's." Lax, 489 F.3d at 1084 (internal quotation marks and citation omitted).

The court's duty to assess whether substantial evidence exists: " is not merely a quantitative exercise. Evidence is not substantial ‘ if it is overwhelmed by other evidence— particularly certain types of evidence (e.g., that offered by treating physicians)— or if it really constitutes not evidence but mere conclusion.’ " Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir.1988)(quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir.1985)). At the same time, the court " may not displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Lax v. Astrue, 489 F.3d at 1084 (internal quotation marks and citation omitted). The court will " meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been made." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted).

By statute, a disability is the " inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to ... last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual " shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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)(2)(A).

A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). The first step entails determining whether the " claimant is presently engaged in substantial gainful activity." Wall v. Astrue, 561 F.3d at 1052 (internal quotation marks and citation omitted). The second step requires the

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claimant to show he suffers from a " severe impairment," that is, any " impairment or combination of impairments which limits [the claimant's] physical or mental ability to do basic work activities." Barnhart v. Thomas, 540 U.S. 20, 24, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003)(internal quotation marks and regulatory citations omitted). At step three, the claimant is to show his impairment is equivalent in severity to a listed impairment. Lax, 489 F.3d at 1084. " If a claimant cannot meet a listing at step three, he continues to step four, which requires the claimant to show that the impairment or combination of impairments prevents him from performing his past work." Id. Should the claimant meet his burden at step four, the Commissioner then assumes the burden at step five of showing " that the claimant retains sufficient RFC [residual functional capacity] to perform work in the national economy" considering the claimant's age, education, and work experience. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir.2010) (internal quotation marks and citation omitted). Substantial evidence must support the Commissioner's showing at step five. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir.1993). The evaluation at steps four and five makes use of the agency's RFC assessment. See 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). To meet his burden at step five, the Commissioner may rely on the Medical— Vocational Guidelines (grids). 20 C.F.R. Part 404, Subpt. P, App. 2. Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.1988). The grids contain tables of rules which direct a determination of disabled or not disabled on the basis of a claimant's RFC category, age, education, and work experience. Thompson, 987 F.2d at 1487.

PROCEDURAL HISTORY

Following a hearing at which Stephanie Guerra was represented by counsel, the administrative law judge (" ALJ" ) issued his decision on February 12, 2010. (R. 8-19). Guerra alleged she has been disabled since January 1, 2005, and she had coverage to remain insured through March 31, 2009. (R. 8). At step one, the ALJ found that Guerra had not engaged in substantial gainful activity since January 1, 2005. (R. 10). At step two, the ALJ found Guerra had the severe impairments of " (1) Degenerative disc disease, lumbar spine, (2) Fibromyalgia, (3) Chronic obstructive pulmonary disease, and (4) Obesity." Id. The ALJ found at this stage that Guerra also suffered from " (1) Depressive disorder, not otherwise specified, non-severe on medication, (2) Hearing loss, non-severe with hearing aid, (3) Antiphospholipid syndrome, and (4) Fibroid tumors with bleedings, status post August 2008 hysterectomy, which are not severe." Id. The ALJ found at step three that Guerra's impairments did not meet or equal a listed impairment. (R. 11-13). At step four, the ALJ determined that Guerra had the RFC to perform the full range of sedentary work and that she is unable to perform any past relevant work as a cook, medium work. (R. 13-18). Applying the Medical-Vocational guidelines based on findings that Guerra's age, education, work experience, and a RFC for a full range of sedentary work, the ALJ relied the " not disabled" finding directed by the guidelines. (R. 18-19).

ISSUE ONE: ARE THE ALJ'S FINDINGS ON THE CREDIBILITY OF GUERRA'S SUBJECTIVE COMPLAINTS SUPPORTED BY SUBSTANTIAL EVIDENCE?

The ALJ states that he " has considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." (R. 13). He outlined the two stages for considering the claimant's ...


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