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Herrman v. Colvin

United States District Court, D. Kansas

February 26, 2014

LEO HERRMAN, Jr., Plaintiff,
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.


JOHN W. LUNGSTRUM, District Judge.

Plaintiff, Leo Herrman, Jr., seeks review of a final decision of the Commissioner of Social Security (hereinafter Commissioner) made after remand from the U.S. District Court for the District of Kansas, in which the Commissioner denied Social Security Disability (SSD) benefits and Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error in the Commissioner's final decision as alleged by Plaintiff, 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

This case has a long and tortuous history. In so far as is relevant here, Plaintiff first protectively filed for SSD and SSI benefits on January 20, 2004, alleging disability beginning November 15, 2003.[2] (R. 175-77, 816-19, 820, 929, 941). In proceedings before the Commissioner, a decision was issued on December 1, 2006 denying benefits, but on November 5, 2008 the Appeals Council granted Plaintiff's request for review, vacated the decision, and remanded for further proceedings. (R. 45-54, 126-28). After remand, the administrative law judge (ALJ) conducted further proceedings including a new hearing, and issued a decision again denying benefits on June 10, 2009. (R. 21-36). Plaintiff exhausted his remedies before the Commissioner, and in due course filed a complaint in this court seeking judicial review of that decision. (R. 10-17, 967-990); see also, Herrman v. Astrue, 09-1297-SAC (D. Kan. Sept. 24, 2009) (Doc. 1).

The court found errors in the Commissioner's decision, reversed it, and remanded the case for further proceedings to reevaluate the medical evidence, reevaluate the credibility of Plaintiff's allegations, properly evaluate the objective evidence in light of Plaintiff's diagnosis with fibromyalgia or chronic pain syndrome, and make residual functional capacity (RFC) findings in accordance with Social Security Ruling (SSR) 96-8p. (R. 95-113); see also, Herrman v. Astrue, 09-1297-SAC (D. Kan. Sept. 29, 2010) (Doc. 19) (all further citation to the court's Memorandum and Order will be to the administrative record in this case). On remand, the Appeals Council vacated the ALJ's decision dated June 10, 2009, and remanded the case to an ALJ for further proceedings consistent with the court's order. (R. 993-94).

The case was remanded to a different ALJ, Melvin B. Werner, who conducted further proceedings, held another hearing and issued a new decision dated October 21, 2011 again finding Plaintiff is not disabled, and denying Plaintiff's applications. (R. 929-41). Plaintiff once again sought review of the final decision of the Commissioner after remand (R. 899-925), but the Appeals Council declined to assume jurisdiction (R. 895-98) and Plaintiff filed a timely complaint with this court seeking judicial review of the decision. (Doc. 1). Plaintiff alleges that the ALJ erroneously formulated an RFC which is vague and ambiguous; that the ALJ improperly rejected the medical opinions of treating physicians, Dr. Fan, Dr. Preston, and Dr. Rodgman; and that the ALJ failed to properly evaluate the evidence when assessing the credibility of Plaintiff's allegations of symptoms and did not explain how he reached his credibility finding.

The court's review is guided by the Act. Wall v. Astrue , 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act 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). 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).

The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. §§ 404.1520, 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 he has a severe impairment(s), and whether the severity of his 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 his 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 v. Barnhart , 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).

The court finds that Plaintiff has shown no error in the final decision of the Commissioner and affirms the decision on that basis. The court first addresses what is the final decision of the Commissioner in this case, and then considers whether Plaintiff has met his burden to show error in that decision. It addresses each of the errors alleged in Plaintiff's briefs.

II. The Final Decision

The Act provides that:

"Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, ..., may obtain a review of such decision by a ...

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