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Duff v. Colvin

United States District Court, D. Kansas

May 14, 2014

HOLLY M. DUFF, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

MEMORANDUM AND ORDER

RICHARD D. ROGERS, District Judge.

On February 1, 2010, plaintiff filed applications for social security disability insurance benefits and supplemental security income benefits. These applications alleged a disability onset date of February 29, 2008. On January 10, 2012, a hearing was conducted upon plaintiff's applications. The administrative law judge (ALJ) considered the evidence and decided on February 8, 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 applications for benefits. After due consideration, the court shall reverse and remand the decision for further administrative review because the court is convinced that the ALJ did not properly evaluate the opinion of a treating physician.

I. STANDARD OF REVIEW

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).

For supplemental security income claims, a claimant becomes eligible in the first month where he or she is both disabled and has an application on file. 20 C.F.R. §§ 416.202-03, 416.330, 416.335.

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)).

II. THE ALJ'S DECISION (Tr. 13-21).

There is a five-step evaluation process followed in these cases which is described in the ALJ's decision. (Tr. 14-15). 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 determined that plaintiff maintained the residual functional capacity to perform her past relevant work as a nanny, daycare attendant, security guard or hostess.

The ALJ made the following specific findings in his decision. First, plaintiff meets the insured status requirements for Social Security benefits through March 31, 2012. Second, plaintiff did not engage in substantial gainful activity after February 29, 2008, the alleged onset date of disability. Third, plaintiff has the following severe impairments: pelvic fracture; pituitary adenoma; Charcot-Marie-Tooth Syndrome; hypothyroidism; hypertension; inflammatory pericardial effusion; obesity and osteopenia.[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 perform the full range of light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b). And, finally, the ALJ determined that plaintiff is able to perform her past relevant work as nanny, daycare attendant, security guard or hostess. This last finding was based in part upon the testimony of a vocational expert, specifically the following exchange:

Q. Second hypothetical, we have the same individual. This person can sit six hours in an eight-hour day, stand and walk four hours in an eight-hour day, can occasionally lift 20 pounds, frequently lift 10 pounds. This person can occasionally climb stairs, balance, stoop, kneel, crouch, crawl, should never climb ladders, scaffolds, or ropes. Based on hypothetical number two, would she be able to return to any of the past jobs?
A. Your Honor, based on the description in the record... As performed, yes to the nanny and the daycare...

(Tr. 45). However, the vocational expert did not make reference to plaintiff's past relevant work as security guard or hostess, other than to say that these occupations are classified as light work. (Tr. 44).

III. THE DECISION TO DENY BENEFITS SHALL BE REVERSED AND REMANDED FOR FURTHER CONSIDERATION BECAUSE THE ALJ DID NOT PROPERLY EVALUATE THE OPINION OF DR. ...


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