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Robb v. Colvin

United States District Court, D. Kansas

August 8, 2014

DIANA ROBB, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JOHN W. LUNGSTRUM, District Judge.

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying 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 decision, 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

Plaintiff applied for SSD and SSI benefits, alleging disability beginning December 31, 2008. (R. 9, 132-41). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She alleges the Administrative Law Judge (ALJ) erred in evaluating her residual functional capacity (RFC).

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 she has a severe impairment(s), and whether the severity of her 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 her 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).

II. Discussion

Plaintiff claims that substantial evidence does not support the ALJ's RFC assessment because the record evidence does not support the ALJ's determination to accord significant weight to the non-examining source medical opinion of the state agency consultant, Dr. Singh. She argues this is so because Dr. Singh's opinion is inconsistent with the report of the consultative examination of Dr. Hughey and the medical evidence as a whole, and is contradicted by record evidence. She argues that the ALJ articulated only one reason to accord weight to Dr. Singh's opinion-that Dr. Singh had reviewed all of the medical evidence of record-and that this reason is both erroneous and insufficient. She argues that the "preponderance of the evidence shows that [Plaintiff] could not perform more than a sedentary job." (Pl. Br. 11).

The Commissioner argues that the ALJ properly accorded Dr. Singh's opinion substantial weight-that Dr. Singh reviewed the entire record as it was constituted when he formulated his opinion, and that the later-received evidence was largely state agency medical opinions and treatment records related primarily to Plaintiff's vision which would not suggest a need to change Dr. Singh's opinion. She argues that the ALJ did not rely solely on Dr. Singh's opinion to assess RFC, but performed his own evaluation of the record evidence-including both the medical evidence and the nonmedical evidence. She points out that there is no other medical opinion in the record suggesting greater limitations than those assessed by the ALJ, and argues that the need for express analysis is weakened in a case such as this where the ALJ does not need to reject or weigh other medical opinions unfavorably.

The ALJ found that Plaintiff has the severe impairments of obesity, blindness in the left eye, and swelling in the lower extremities, and based his RFC assessment upon limitations caused by those impairments. (R. 11). He found that Plaintiff could lift or carry 20 pounds occasionally and 10 pounds frequently and could sit, or stand and walk, up to six hours in an eight-hour workday, but that she must work at a job that allows her to alternate between sitting and standing at 30 minute intervals. He found that she must never climb ladders, ropes, or scaffold, but could occasionally climb ramps and stairs, and that she may only occasionally perform each of the other postural movements. He found that Plaintiff is limited to jobs which do not require binocular vision or peripheral vision to the left, that she must avoid prolonged exposure to temperature extremes and all exposure to unprotected heights and hazardous machinery. Plaintiff's allegations of error relate to the ALJ's evaluation of Dr. Singh's medical opinion and not to the restrictions assessed based upon vision impairments.

Plaintiff's first argument appears to be that, because Dr. Singh's opinion is contained in a "check-box form unaccompanied by a thorough written report, " it is simply not substantial evidence and, therefore, may not be relied upon by the ALJ. (Pl. Br. 10) (citing Frey v. Bowen , 816 F.2d 508, 515 (10th Cir. 1987); and Fleetwood v. Barnhart , 211 F.App'x 736, 740 (10th Cir. 2007)). Plaintiff recognizes that in the past this court has distinguished the holding in Frey in cases where the record contained the opinions of only state agency consultants, which this court found credible. Id . (citing Hokanson v. Astrue, Civ. A. 10-1403-JWL, 2011 WL 5506284 at *10-11 (D. Kan.Nov. 9, 2011); and Howard v. Astrue, Civ. A. 11-1035-JWL, 2011 WL 6151408 at *10 (D. Kan. Dec. 12, 2011)).

Plaintiff's argument misses the point of the courts' holdings in Frey, Fleetwood, Hokanson, and Howard. The principle of Frey and Fleetwood is not that an RFC assessment produced on a check-box form and unaccompanied by a thorough written report may never be relied upon by an ALJ. The point is that in every case an ALJ must evaluate all of the record evidence, and his opinion must be supported by substantial evidence in the record. Early in its opinion, the Frey court ...

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