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Gilmore v. Colvin

United States District Court, Tenth Circuit

September 26, 2013

ARMEDA GILMORE, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

John W. Lungstrum United States District Judge

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under sections 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error in the Commissioner’s final decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.

I. Background

Plaintiff applied for SSI on March 5, 2004, alleging disability beginning February 17, 1997. (R. 62-65, 542). In due course, Plaintiff exhausted her remedies before the Commissioner and sought judicial review of the Commissioner’s decision before the district court. (R. 578-89). On July 26, 2010, the district court found that the ALJ had erred in weighing the medical opinions, and remanded the case pursuant to sentence four of 42 U.S.C. § 405(g) for consideration of “all the medical opinion evidence.” and for a proper narrative discussion. (R. 586-87). The Appeals Council remanded the case to an administrative law judge (ALJ) by order dated August 14, 2010. (R. 592-93). While the case was proceeding before the district court, Plaintiff filed a new application for SSI benefits (R. 649-52) and the Council instructed the ALJ to “associate the claim files and issue a new decision on the associated claims.” (R. 592).

The case was referred to a different ALJ, Alison K. Brookins, on remand. The record was completed and a hearing at which Plaintiff was represented by counsel was held on September 8, 2011. (R. 895-919). Plaintiff and a vocational expert testified at the hearing. Id. On October 6, 2011 ALJ Brookins issued a decision finding that Plaintiff was not disabled within the meaning of the Act at any time between the date of Plaintiff’s first application, March 5, 2004 and the date of the decision. (R. 542-62). The ALJ considered two time periods, March 5, 2004 through January 31, 2010, and February 1, 2010 through the date of the decision, and determined that Plaintiff had different severe impairments in each period and assessed different residual functional capacities (RFC) in each period, but determined nonetheless that during each period there were significant numbers of jobs in the economy that Plaintiff was able to perform. Id. Therefore, she determined that Plaintiff was not disabled within the meaning of the Act, and denied Plaintiff’s application for SSI benefits. (R. 562). Plaintiff requested Appeals Council review of the ALJ’s decision (R. 537-38), but the Council declined to assume jurisdiction of the decision after remand. (R. 534-36). Therefore, the decision after remand became the final decision of the Commissioner after remand. (R. 534); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); see also 20 C.F.R. § 416.1484(a) (2011)[2] (after remand, the ALJ’s decision becomes the “final decision of the Commissioner after remand . . . unless the Appeals Council assumes jurisdiction of the case”). Plaintiff filed this case, seeking judicial review of the final decision after remand. (Doc. 1).

II. Legal Standard

The court’s jurisdiction and review are guided by the Act. Weinberger v. Salfi, 422 U.S. 749, 763 (1975) (citing 42 U.S.C. § 405(g)); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (same); Brandtner v. Dep’t of Health and Human Servs., 150 F.3d 1306, 1307 (10th Cir. 1998) (sole jurisdictional basis in social security cases is 42 U.S.C. § 405(g)). Section 405(g) of the Act provides for review of a final decision of the Commissioner made after a hearing in which the plaintiff was a party. It also provides that in judicial review “[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual findings are supported by substantial evidence in the record and whether he applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988). The court may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005).

When deciding if substantial evidence supports the ALJ’s decision, the mere fact that there is evidence in the record which might support a contrary finding will not establish error in the ALJ’s determination. “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence. [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, 489 F.3d at 1084 (citations, quotations, and bracket omitted); see also, Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966) (defining substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” and noting that “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”). Nonetheless, the determination 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 constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

An individual is disabled only if she can establish that she has a physical or mental impairment which prevents her from engaging in any substantial gainful activity, and which is expected to result in death or to last for a continuous period of at least twelve months. Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting identical definitions of a disabled individual from both 42 U.S.C. §§ 423(d)(1) and 1382c(a)(3)(A)); accord, Lax, 489 F.3d at 1084. The claimant’s impairments must be of such severity that she is not only unable to perform her past relevant work, but cannot, considering her age, education, and work experience, engage in any other substantial gainful work existing in the national economy. 42 U.S.C. § 423(d)(2)(A).

The Commissioner uses a five-step sequential process to evaluate disability. 20 C.F.R. § 416.920; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether she has a severe impairment(s), and whether the severity of her impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant’s RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.

The Commissioner next evaluates steps four and five of the sequential process--determining at step four whether, in light of the RFC assessed, claimant can perform her past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

Plaintiff makes several claims of error in the decision after remand. She claims the ALJ erred in failing to find severe physical impairments before February 1, 2010 because the ALJ weighed the medical opinions erroneously, failed to give substantial weight or appropriate deference to the opinions of her treating physician, Dr. Brown, and gave excessive weight to the opinions of the other treating, non-treating, and non-examining physicians. (Pl. Br. 16-22). Plaintiff also claims the ALJ erred in assessing an RFC for both time periods at issue. Id. at 22-29. With regard to the period from March 2004 through January, 2010, she argues that the ALJ failed to consider any of Plaintiff’s physical impairments in assessing an RFC, and failed to base the RFC upon substantial record evidence because the ALJ “relied on Dr. Blum’s non-examining opinion to the exclusion of the treating source opinion of Dr. Brown.” Id. at 24-25. Regarding the period from February 2010 through the date of the decision, Plaintiff claims the RFC assessed is not supported by substantial evidence in the record, argues that the ALJ erroneously relied solely upon the opinions of the state agency physician and psychologist and of a consultant psychologist, and explains how in his view the evidence supports a finding of disability. Id. at 26-28. Finally, Plaintiff claims the ALJ erroneously disregarded her testimony regarding symptoms and failed to recognize that Plaintiff’s allegations are consistent with the record medical evidence.

The Commissioner argues that the ALJ articulated her bases for finding Plaintiff’s allegations of symptoms are not credible, and that those bases are supported by the record evidence. (Comm’r Br. 14-21). She argues that the ALJ properly evaluated all of the medical opinions of record as required by the district court’s remand order in the prior case, that the ALJ properly discounted Dr. Brown’s treating source opinion and properly examined the opinions of the other medical sources and determined they outweighed the opinion of Dr. Brown. Id. at 21-26. Finally, she argues that the ALJ properly assessed an RFC for Plaintiff for each period of time, considering all of the relevant evidence, and providing a narrative discussion explaining the rationale for the RFC assessed. The ...


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