United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This is an action reviewing the final decision of the defendant Commissioner of Social Security ("Commissioner") that denied the claimant Raynell Hill's ("Hill") application for supplemental security income ("SSI") under Title XVI of the Social Security Act ("Act"). Alleging a disability onset set date of January 5, 2007, based on a combination of impairments including back and ankle pain related to a 1984 automobile accident, vision problems, anxiety, and depression. (R. 21, 23, 30-33). The administrative law judge ("ALJ") filed his decision on November 3, 2009, finding that Hill was not disabled. (R. 9-15). The Appeals Council on July 25, 2012, denied Hill's request for review, so the ALJ's decision stands as the Commissioner's final decision. With the administrative record (Dk. 9) and the parties' briefs on file pursuant to D. Kan. Rule 83.7.1 (Dks. 17, 22 and 27), 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. Persales, 402 U.S. 389, 401 (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 (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 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 (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).
At step one, the ALJ found Hill had not engaged in substantial gainful activity since January 5, 2007. At step two, the ALJ found the following severe impairments: "remote history of left ankle fracture with development of residual osteoarthritis." (R. 11). The ALJ excluded from this listing the following impairments as non-severe: hypertension, mild depression, adjustment disorder with mixed anxiety and depression. At step three, the ALJ did not find that the impairments, individually or together, equaled the severity of the Listing of Impairments. Before moving to steps four and five, the ALJ determined that Hill had the residual functional capacity ("RFC") to perform:
some light work as defined in 20 CFR 416.967(b) including lifting and carrying twenty pounds occasionally and ten pounds frequently, sitting six hours per day, standing and walking two hours per day, occasionally crouching, crawling, kneeling, bending, reaching, and climbing stairs, and never climbing ropes, ladders or scaffolds or operating foot controls.
(R. 12). At step four, the ALJ found that the claimant had no past relevant work. (R. 13). At step five, the vocational expert provided testimony from which the ALJ concluded that "the clamant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (R. 14). A decision of "not disabled" was filed.
ISSUE ONE: SUBSTANTIAL EVIDENCE FOR RFC FINDING
Citing and summarizing SSR 96-8p which interprets the rules for assessing RFC, the plaintiff challenges that the record lacks competent medical opinion evidence to sustain the ALJ's finding that Hill has the RFC to perform light work. Specifically, the plaintiff contends there is no medical evidence to show that Hill can lift and carry 20 pounds occasionally and 10 pounds frequently. The plaintiffs notes the only medical opinion on RFC comes from the consulting examiner, Dr. Tawadros, who reviewed Dr. Schultz' examination report and then concluded that Hill could lift and carry only ten pounds, both occasionally and frequently. (R. 454-460). The plaintiff challenges that the ALJ did not discuss or identify what weight was given Dr. Tawadros' opinion and did not mention the examination report prepared by Dr. Schultz. The plaintiff surmises that the ALJ ignored these opinions. Finally, the plaintiff attacks the ALJ's decision for not providing a narrative discussion of the evidence supporting the RFC assessment and, therefore, leaving the impression that the RFC assessment is based on no more than the ALJ's uninformed lay opinion.
As part of the RFC assessment, the ALJ found that Hill's statements were not credible insofar as they were contrary to the RFC assessment and that the evidence showed Hill "retained a substantial work capacity despite her alleged symptoms and limitations." (R. 13). The ALJ cited the objective medical evidence found in the 2006 consultative examinations which revealed some restricted motion in left ankle and mild impairment with gait and in the 2007 consultative examination which showed full range of motion with left ankle and no impairment in gait. (R. 13). The ALJ observed the claimant's inconsistent statements in testifying at the hearing that she could only walk two blocks and then in having said she "walks a lot" as found in a medical record. Id. The ALJ noted her extensive range of daily living activities and her ability to walk in the hearing room "without noticeable difficulty." (R. 13). The ALJ found nothing in the medical record to support Hill's testimony about a limitation on sitting. The ALJ also stated that the medical records from treating Hill's ...