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O'Brien v. Colvin

United States District Court, D. Kansas

April 17, 2014

CAROLYN W. COLVIN Acting Commissioner of Social Security, Defendant.


RICHARD D. ROGERS, District Judge.

On June 9, 2010, plaintiff filed an application for social security disability insurance benefits. This application alleged a disability onset date of October 31, 2009. A hearing was conducted upon plaintiff's application on March 9, 2012 and a supplemental hearing was held on May 24, 2012. The administrative law judge (ALJ) considered the evidence and decided on June 7, 2012 that plaintiff was not qualified to receive benefits. This decision has been adopted by defendant.

This case is now before the court upon plaintiff's motion to reverse and remand the decision to deny plaintiff's application for benefits. Plaintiff is a well-educated young woman who has suffered an unfortunate number of medical problems. Although plaintiff's treating physician has remarked that plaintiff is disabled from gainful employment, the ALJ determined that the treating physician's opinion was not consistent with the entire record. The ALJ was more persuaded by the reviews of nonexamining physicians. Although the opinion of a treating physician is entitled to deference, the court has decided that the ALJ's analysis follows the law and is supported by substantial evidence. For this reason and for the other reasons which follow, the court shall reject plaintiff's arguments to reverse the decision to deny benefits.


To qualify for disability benefits, a claimant must establish that he or she was "disabled" under the Social Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the claimant had "insured status" under the Social Security program. See Potter v. Secretary of Health & Human Services , 905 F.2d 1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131. To be "disabled" means that the claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

The court must affirm the ALJ's decision if it is supported by substantial evidence and if the ALJ applied the proper legal standards. Rebeck v. Barnhart , 317 F.Supp.2d 1263, 1271 (D.Kan. 2004). "Substantial evidence" is "more than a mere scintilla;" it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id., quoting Richardson v. Perales , 402 U.S. 389, 401 (1971). The court must examine the record as a whole, including whatever in the record fairly detracts from the weight of the defendant's decision, and on that basis decide if substantial evidence supports the defendant's decision. Glenn v. Shalala , 21 F.3d 983, 984 (10th Cir. 1994) (quoting Casias v. Secretary of Health & Human Services , 933 F.2d 799, 800-01 (10th Cir. 1991)). The court may not reverse the defendant's choice between two reasonable but conflicting views, even if the court would have made a different choice if the matter were referred to the court de novo. Lax v. Astrue , 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A. , 372 F.3d 1195, 1200 (10th Cir. 2004)).


There is a five-step evaluation process followed in these cases which is described in the ALJ's decision. (Tr. 12-13). First, it is determined whether the claimant is engaging in substantial gainful activity. Second, the ALJ decides whether the claimant has a medically determinable impairment that is "severe" or a combination of impairments which are "severe." At step three, the ALJ decides whether the claimant's impairments or combination of impairments meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Next, the ALJ determines the claimant's residual functional capacity and then decides whether the claimant has the residual functional capacity to perform the requirements of his or her past relevant work. Finally, at the last step of the sequential evaluation process, the ALJ determines whether the claimant is able to do any other work considering his or her residual functional capacity, age, education and work experience.

In this case, the ALJ decided plaintiff's application should be denied on the basis of the fourth step of the evaluation process. The ALJ decided that plaintiff maintained the residual functional capacity to perform past relevant work as a secretary, a tariff agent, a billing clerk, a programmer analyst and a conference services coordinator. It is noteworthy that at step four, plaintiff has the burden of demonstrating that her impairments prevent her from performing her previous work. Fischer-Ross v. Barnhart , 431 F.3d 729, 731 (10th Cir. 2005).

The ALJ made the following specific findings in her decision. First, plaintiff meets the insured status requirements for Social Security benefits through December 31, 2014. Second, plaintiff did not engage in substantial gainful activity after October 31, 2009, the alleged onset date of disability. Third, plaintiff has the following severe impairments: fibromyalgia and interstitial cystitis ("IC").[1] Fourth, plaintiff does not have an impairment or combination of impairments that meet or medically equal the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Fifth, plaintiff has the residual functional capacity: to lift and carry ten pounds frequently and twenty pounds occasionally; she can sit, stand, or walk for six hours each in an eight-hour day; she can frequently balance and bend, but she should only occasionally crawl and climb stairs, ladders, ropes, or scaffolds; she has no manipulative, communicative, or visual workplace limitations; she should avoid unprotected heights and concentrated exposure to cold, wetness, and humidity; and she would need to use the bathroom at will. (Tr. 15). The ALJ also found that plaintiff has no more than mild limitations in the activities of daily living, no more than mild limitations in social functioning, and no more than mild limitations in concentration, persistence or pace. (Tr. 14).


Plaintiff's first argument to reverse the decision to deny benefits is that the ALJ did not include plaintiff's difficulties in social functioning and maintaining concentration, persistence or pace in the ALJ's consideration of plaintiff's residual functional capacity ("RFC"). Doc. No. 10, p. 21. At steps two and three of the analytical process, the ALJ concluded that plaintiff had "no more than a mild" limitation in activities of daily living, social functioning, and concentration, persistence or pace because of any mental dysfunction. (Tr. 14). The ALJ stated in her decision that these limitations were "not a residual functional capacity assessment." (Tr. 15). This is in accord with the Tenth Circuit's decision in Wells v. Colvin , 727 F.3d 1061, 1069 (10th Cir. 2013) where, quoting SSR 96-8p, the court stated:

In assessing a claimant's RFC, "[t]he adjudicator must remember that the limitations identified in the paragraph B'... criteria [for severity] are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process.... The mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments and summarized on the [Psychiatric Review Technique Form]."

The ALJ repeated the above underlined language in her decision on page 15 then said that "the following residual functional capacity assessment reflects the degree of limitation the undersigned has found in the paragraph B' mental function analysis." (Tr. 15). The RFC findings that the ALJ listed later on the same page expressed no mental limitations. In discussing the evidence in the record, the ALJ mentioned plaintiff's claims of anxiety and difficulty concentrating (although plaintiff did not list a mental impairment in her application for disability benefits). (Tr. 16). She also mentioned the treating physician's diagnosis of generalized anxiety disorder and description of cognitive problems and difficulty handling stress. (Tr. 17 & 18). The ALJ, however, concluded that no mental limitation should be included as part of plaintiff's RFC.

These findings are not inconsistent with the ALJ's step two findings which were that plaintiff had "no more than mild" limitations in mental functioning. Nor are they clearly inconsistent with Dr. R.E. Schulman's review of plaintiff's medical records and of functional reports done by plaintiff and third parties. The notes made by Dr. Schulman stated in part:

Employer from 4/08-3/10 stated [plaintiff] generally could do job with no mental problems. [Plaintiff] could learn job duties in an expected amount of time, accepted instructions, cooperated [with] co-workers, maintained adequate pace & regular [hours], adapted to changes, understood/carried out simple directions in a reasonable amount of time, understood/followed safety guidelines, & needed an ordinary amount of supervision.

(Tr. 578).

The functional reports, according to the ALJ, indicated that plaintiff can:

Provide for her own personal care, prepare meals, shop for groceries, drive, manage her money, read, watch television, clean around the house, do the laundry, iron, exercise, use a computer and work as a nanny. [Also] watch television... run errands, vacuum, and workout at the gym.

(Tr. 18).

The ALJ's decision stated that she considered the "entire record" and "all symptoms and the extent to which these symptoms can reasonably be accepted... with the... evidence" in determining plaintiff's RFC. (Tr. 15). This, in addition to the reference to plaintiff's mental symptoms and diagnoses, provide the court with adequate grounds to believe that the ALJ took into account plaintiff's alleged mental limitations when formulating plaintiff's RFC. See Wall v. Astrue , 561 F.3d 1048, 1070 (10th Cir. 2009). Thus, the ALJ's decision and the record support the conclusion that ...

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