United States District Court, D. Kansas
STEFANY L. SCHASSAR, Plaintiff,
CAROLYN W. COLVIN,  Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
GERALD L. RUSHFELT, Magistrate Judge.
Within fourteen days after a party is served with a copy of this Report and Recommendation, that party may, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, file written objections to the Report and Recommendation. A party must file any objections within the fourteen-day period allowed if that party wants to have appellate review of the proposed findings of fact, conclusions of law, or the recommended disposition. If no objections are timely filed, no appellate review will be allowed by any court.
REPORT AND PROPOSED FINDINGS
The above-captioned action comes before the undersigned magistrate judge upon referral of Plaintiff's request for review of the final decision of the Commissioner of Social Security to deny Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq.
I. Procedural Background
Plaintiff protectively filed her application for SSI benefits on December 13, 2007, alleging a May 16, 2007 onset date of disability. Plaintiff's claim was denied initially and on reconsideration. Following a hearing, the Administrative Law Judge (ALJ) issued a decision on May 20, 2010 denying Plaintiff benefits. The Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. Section 1631(c)(3) of the Act, 42 U.S.C. § 1383(c), provides for judicial review of a final decision of the Commissioner.
II. ALJ Findings
The ALJ found that Plaintiff had not engaged in substantial gainful activity since the date of her application for benefits. At step two, the ALJ found Plaintiff to have "severe" impairments of degenerative disc disease with radiculopathy, degenerative joint disease, spinal stenosis, and fibromyalgia. The ALJ proceeded to step three and concluded that Plaintiff did not have an impairment or combination of impairments that meet or equal a listed impairment in 20 CFR Part 404, Subpart P, Appendix 1. The ALJ then established Plaintiff's residual functional capacity (RFC) to be for a full range of sedentary work as defined in 20 CFR 416.967(a). At step four, the ALJ concluded that Plaintiff had no past relevant work. The ALJ proceeded to step five and determined that Medical-Vocational Rule 201.27 directed a finding of "not disabled."
III. Standard of Review
The Court reviews the Commissioner's decision to determine whether it is "free from legal error and supported by substantial evidence." Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It requires "more than a scintilla, but less than a preponderance." Whether the Commissioner's decision is supported by substantial evidence is based on the record taken as a whole. Evidence is not substantial if it is "overwhelmed by other evidence in the record or constitutes mere conclusion." To determine if the decision is supported by substantial evidence, the Court will not reweigh the evidence or retry the case, but will meticulously examine the record as a whole, including anything that may undercut or detract from the Commissioner's findings.
Plaintiff must demonstrate the error in the ALJ's rationale or finding; the mere fact that there is evidence which might support a contrary finding will not establish error in the ALJ's determination. "The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. We 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."
IV. Legal Standards and Analysis
Plaintiff bears the burden of proving disability under the Social Security Act. Plaintiff is under a disability only if she can establish that she has a physical or mental impairment which prevents her from engaging in any substantial gainful activity, and which is expected to result in death or to last for a continuous period of at least 12 months. Claimant's impairments must be of such severity that she is not only unable to perform her past relevant work, but cannot, considering her age, education and work experience, engage in other substantial gainful work existing in the national economy.
The Commissioner uses a five-step sequential process to evaluate disability. In the first three steps, the Commissioner determines (1) whether claimant has engaged in substantial gainful activity since the alleged onset, (2) whether she has severe impairment(s) and (3) whether the severity of any impairment meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). If claimant satisfies steps one, two and three, she will automatically be found disabled; if claimant satisfies steps one and two but not three, she must satisfy step four.
At step four, the ALJ must make specific findings of fact at three phases: (1) claimant's RFC, (2) the physical and mental demands of prior jobs or occupations and (3) claimant's ability to return to her past occupation given her RFC. If claimant satisfies step four, the burden shifts to the Commissioner to establish that claimant is capable of performing work in the national economy.
Plaintiff does not challenge the ALJ's determinations at steps one, two and three. However, Plaintiff challenges the ALJ's determinations at steps four and five, arguing that the ALJ erred in giving "no weight" to the opinions of Nurse Practitioner Sego; that the ALJ's credibility determination is not supported by the substantial evidence of record and does not comply with the applicable legal standards; that the ALJ's RFC is not based on the substantial evidence of record; and that the ALJ erred in relying on the Medical-Vocational Rules to find Plaintiff not disabled.
A. Medical Opinion Evidence
Plaintiff argues that the ALJ erred in giving no weight to Nurse Sego's opinion; that the ALJ should have used the factors in SSR 06-3p; and that the ALJ ignored the opinions of Nurse Sego, Dr. ...