JACK T. GREGORY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
SAM A. CROW, U.S. DISTRICT SENIOR JUDGE
This is an action reviewing the final decision of the Commissioner of Social Security denying the plaintiff disability insurance benefits. The matter has been fully briefed by the parties.
I. General legal standards
The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence requires 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 really constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992). The court should examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision and, on that basis, determine if the substantiality of the evidence test has been met. Glenn, 21 F.3d at 984.
The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that they have a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that they are not only unable to perform their previous work but cannot, considering their 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).
The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he or she is not working at a “substantial gainful activity.” At step two, the agency will find non-disability unless the claimant shows that he or she has a “severe impairment, ” which is defined as any “impairment or combination of impairments which significantly limits [the claimant’s] physical or mental ability to do basic work activities.” At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant’s impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do his or her previous work; unless the claimant shows that he or she cannot perform their previous work, they are determined not to be disabled. If the claimant survives step four, the fifth and final step requires the agency to consider vocational factors (the claimant’s age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 124 S.Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10thCir. 1993). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Nielson, 992 F.2d at 1120; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.
Before going from step three to step four, the agency will assess the claimant’s residual functional capacity (RFC). This RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. §§ 404.1520(a)(4), 404.1520(e, f, g); 416.920(a)(4), 416.920(e, f, g).
II. History of case
On December 22, 2010, administrative law judge (ALJ) Patricia E. Hartman issued her decision (R. at 19-29). Plaintiff alleges that he has been disabled since October 1, 2008 (R. at 19). Plaintiff is insured for disability insurance benefits through December 31, 2013 (R. at 21). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since the alleged onset date (R. at 21). At step two, the ALJ found that plaintiff has the following severe impairments: mild degenerative disc disease, attention deficit hyperactivity disorder, posttraumatic stress disorder, Asperger’s syndrome and depression (R. at 21). At step three, the ALJ determined that plaintiff’s impairments do not meet or equal a listed impairment (R. at 21). After determining plaintiff’s RFC (R. at 23), the ALJ found at step four that plaintiff can perform past relevant work as a product assembler, light (R. at 27). In the alternative, at step five, the ALJ found that plaintiff can perform other work that exists in significant numbers in the national economy (R. at 28-29). Therefore, the ALJ concluded that plaintiff was not disabled (R. at 29).
III. Did the ALJ err in her consideration of the opinions of Dr. Nottingham, a treating physician?
On August 26, 2010, Dr. Robert Nottingham wrote the following letter:
This letter is regarding Jack Gregory, date of birth September 28, 1960. This gentleman has been a patient in [this] office for the past 2 years’ time. He has been seen on multiple occasions during that time complaining of a variety of arthritic complaints including his lumbar spine, thoracic spine, and cervical spine. He has had physical therapy. He is on multiple medications for these problems, yet he continues to be disabled because of the pain involved in ordinary activities. He presently is taking muscle relaxants, narcotics, and anti-inflammatories to try and control the pain, which at least has been fairly successful. He has been seen by neurosurgery and he has had physical therapy done, none of which has seemed to relieve his pain in any substantial manner.
Diagnosis is possible fibromyalgia and osteoarthritis… His subjective complaints are fairly unchanging. He complains of chronic pain with almost any kind of motion, extremities included. There is no swelling. There is no discoloration. Pulses are good. Range of motion seems good. He just complains of pain with most any kind of activity. He has developed Dupuytren’s contractures of the hand, and he has seen the plastic surgeons for that. He seems to be fairly well limited in his ability to function. This is because of the pain. It is very subjective in its presentation, but he seems consistent in his ...