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Lang v. Astrue

United States District Court, Tenth Circuit

September 30, 2013

Denise M. Lang, Plaintiff,
v.
Michael J. Astrue, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, JUDGE

Plaintiff Denise M. Lang has applied for Social Security disability insurance benefits. Her application was denied by Administrative Law Judge (ALJ) Janice Barnes-Williams on May 13, 2011, a decision affirmed by the Appeals Council on May 21, 2012. There are two allegations of error by Lang. First, she contends that the ALJ erred in failing to develop a narrative explaining the Residual Functional Capacity (RFC) which she adopted. Second, she contends that the ALJ erred in failing to determine that her headaches and irritable bowel syndrome (IBS) were non-severe.

Plaintiff-claimant Lang was born on March 19, 1957. She has stated that she became disabled beginning October 1, 2008. She has a high school education, and has previously worked as a cashier, computer operator, and data entry clerk. She has cited a variety of ailments, including headaches, bowel trouble, breathing problems, and pain in the low back and knees. The detailed facts of the case, which are incorporated herein, are set forth independently in the ALJ’s opinion (Tr. 13-19), and the briefs of Lang (Dkt. 11, at 2-10) and the Commissioner (Dkt. 17, at 2-9).

The ALJ determined that Lang suffers from severe impairments in chronic obstructive pulmonary disease, osteoarthritis is both knees, obesity, and mild degenerative disc disease of the lumbar spine. (Tr. 13). None of these impairments met or exceeded any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 14). Lang has an RFC which would preclude her from the full range of light work, as defined by 20 C.F.R. 404.1567(b). She can at times lift and carry 20 pounds, and 10 pounds often.

However, she must work in a non-captive position that allows for the ability to alternate between sitting and standing at least every 30 minutes. The claimant retains the ability to occasionally climb ramps and stairs, but she may never climb ladders, ropes or scaffolds. The claimant is able to frequently balance, but she is only able to occasionally stoop. Further, she must avoid kneeling, crouching or crawling as well as concentrated exposure to extremes of cold or heat, excessive vibration, pulmonary irritants, operational control of moving machinery, unprotected heights, and hazardous machinery.

(Tr. 15).

The ALJ determined that this RFC precludes Lang from returning to her former work. However, with the assistance of a vocational expert, he determined that Lang is still able to peform light, unskilled work such as information clerk, office helper, or storage rental clerk, and thus was not disabled. (Tr. 20).

The Commissioner determines whether an applicant is disabled pursuant to a five-step sequential evaluation process (SEP) pursuant to 20 C.F.R. §§ 404.1520 and 416.920. The applicant has the initial burden of proof in the first three steps: she must show that she is engaged in substantial gainful activity, that she has a medically-determinable, severe ailment, and whether that impairment matches one of the listed impairments of 20 C.F.R. pt. 404, subpt P., app. 1. See Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). If a claimant shows that she cannot return to her former work, the Commissioner has the burden of showing that she can perform other work existing in significant numbers in the national economy. 20 C.F.R. § 404.1520(f). See Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984).

The court’s review of the Commissioner’s decision is governed by 42 U.S.C. 405(g) of the Social Security Act. Under the statute, the Commissioner’s decision will be upheld so long as it applies the “correct legal standard, ” and is supported by “substantial evidence” of the record as a whole. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).

Substantial evidence means more than a scintilla, but less than a preponderance. It is satisfied by evidence that a reasonable mind might accept to support the conclusion. The question of whether substantial evidence supports the Commissioner’s decision is not a mere quantitative exercise; evidence is not substantial if it is overwhelmed by other evidence, or in reality is a mere conclusion. Ray, 865 F.2d at 224. The court must scrutinize the whole record in determining whether the Commissioner’s conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan. 1992).

This deferential review is limited to factual determinations; it does not apply to the court with an insufficient basis to determine that correct legal principles were applied, is grounds for reversal. Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987).

Lang argues the ALJ’s opinion is inconsistent with SSR 96-8p, which provides that the ALJ must evaluate the relevant evidence, articulating how that evidence affects his findings in a manner that is “capable of meaningful review.” Brant v. Barnhart, 506 F.Supp.2d 476, 485-86 (D. Kan. 2007)(citing Spicer v. Barnhart, 64 Fed.Appx. 173, 177-178 (10th Cir.2003)). In addition, she argues that the ALJ failed to consider the effect of her headaches and IBS in determining her RFC. And she contends that the ALJ erred in failing to determine that her headaches and IBS were severe impairments at step two of the SEP.

Although an ALJ is not an acceptable medical source qualified to render a medical opinion, it is “the ALJ, not a physician, [who] is charged with determining a claimant's RFC from the medical record.” Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir.2004). “And the ALJ's RFC assessment is an administrative, rather than a medical determination.” McDonald v. Astrue, 492 F. App’x 875, 885 (10th Cir.2012) (citing SSR 96–5p, 1996 WL 374183, at *5 (July 1996)). Because an RFC assessment is made based on “all of the evidence in the record, not only the medical evidence, [it is] well within the province of the ALJ.” Dixon v. Apfel, No. 98–5167, 1999 WL 651389, at *2 (10th Cir. Aug. 26, 1999). Moreover, the final responsibility for determining RFC rests with the Commissioner. 20 C.F.R. § § 404.1527(e)(2), 404.1546, 416.927(e)(2), 416.946.

Topper v. Colvin, 12-1119-JWL, 2013 WL 2458503, *7 (D. Kan. 2013). See McDonald v. Astrue, 492 Fed.Appx. 875, 885-86 (10th Cir. 2012). The RFC assessment takes account of the entire record, including treatment history, objective medical assessments, the plaintiff’s daily activity, and evidence from lay witnesses. SSR 96-8p, 1996 WL 374184. Under the Rule, the assessment “must include a narrative discussion describing ...


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