United States District Court, D. Kansas
TIMOTHY J. LACY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
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 Timothy J. Lacy's ("Lacy") Title II application for disability insurance benefits and his Title XVI application for supplemental security income ("SSI") under the Social Security Act ("Act"). Born in 1977, Lacy alleges a disability onset set date of January 1, 2005, based on a combination of mental and physical impairments. The administrative law judge ("ALJ") filed his decision on July 5, 2012, finding that Lacy was not under a disability through the date of his decision. (Tr. 14-28). With the Appeals Council's denial of Lacy's request for review, the ALJ's decision stands as the Commissioner's final decision. The administrative record (Dk. 8) and the parties' briefs are on file pursuant to D. Kan. Rule 83.7.1 (Dks. 9, 14 and 19), 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 Awhether the correct legal standards were applied." Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Substantial evidence is that which Aa reasonable mind might accept as adequate to support a conclusion." Richardson v. Persales, 402 U.S. 389, 401 (1971) (quotation and citation omitted). AIt 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 Amust be based upon the record taken as a whole" while keeping in mind Aevidence 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 Awhether 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 Amay 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 Ameticulously 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 Ainability 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 Aclaimant 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 Asevere impairment, " that is, any Aimpairment 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 Lacy had not engaged in substantial gainful activity since the application's earliest alleged onset date of his disability. At step two, the ALJ found the following severe impairments: "degenerative changes of the lumbar spine, vision loss in the right eye, bipolar disorder also diagnosed as major depressive disorder and depressive disorder not otherwise specified, generalized anxiety disorder also diagnosed as anxiety disorder not otherwise specified, and rule-out attention deficit hyperactivity disorder." (Tr. 16). While Lacy testified to fibromyalgia, the ALJ found no laboratory or clinical findings or medical observations that validated those symptoms so as to make fibromyalgia medically determinable or a severe impairment. The ALJ also noted the plaintiff's history included a diagnosis of pedophilia, but the evidence showed this condition produced no more than mild limitations.
At step three, the ALJ did not find that the impairments, individually or together, equaled the severity of the Listing of Impairments. (R. 17). Before moving to steps four and five, the ALJ determined that Lacy had the residual functional capacity ("RFC") to perform:
medium work as defined in 20 CFR 404.1567(c) and 416.967(c), or work requiring lifting and/or carrying 50 pounds occasionally and 25 pounds frequently, standing and/or walking for 6 hours out of an 8-hour workday, and sitting 6 hours out of an 8-hour workday. The claimant can frequently stoop, kneel, crouch, crawl, and climb ramps and stairs, and can occasionally balance. The claimant must avoid climbing ladders, ropes and scaffolds; he must avoid concentrated exposure to dangerous machinery and unprotected heights. The claimant can frequently use visual depth perception, field of vision and accommodation. The claimant can perform simple, routine, repetitive tasks that are not performed in a fast-paced production environment or as an integral part of a team; and he can occasionally interact with coworkers and the general public.
(Tr. 19). At step four, the ALJ found that the claimant's past relevant work as a grocery stocker was not precluded by this RFC. (Tr. 26). Alternatively, based on the vocational expert's testimony, the ALJ concluded that, "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (Tr. 27).
Lacy testified he was released from prison in the Fall of 2010 after being imprisoned approximately five and one-half years for "lascivious acts and indecent contact with a minor" and for escape while on work release. (Tr. 50, 52-53). Lacy also explained at the hearing that after committing these offenses for several years with three victims, he attempted suicide as he "was sick of living that life" so he confessed his conduct to a psychologist during his hospital intake evaluation. (Tr. 55-56). While in prison from 2005 through 2010, Lacy received psychiatric treatment and medications which he described as lacking, using excessive and inappropriate medications, and failing to diagnose a vitamin deficiency. (Tr. 57-59). Since his release from prison, Lacy has been taking Cymbalta for depression and anxiety and lacks the financial means for more medical treatment (Tr. 60), but he was hospitalized for a short ...