United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, District Judge.
This is an action reviewing the final decision of the defendant Commissioner of Social Security ("Commissioner") that denied the claimant Vickie Bergin's ("Bergin") Title II application for disability insurance benefits and Title XVI application for supplemental security income under the Social Security Act ("Act"). (Tr. 124-25). Born in 1952, Bergin alleges a disability onset set date of June 15, 2010, based on chronic pain and on the side effects from medication prescribed for the pain. (Tr. 17, 32-33). The administrative law judge ("ALJ") filed his eight-page decision on June 14, 2012, finding that Bergin was not under a disability through the date of his decision. (Tr. 17-24). With the Appeals Council's denial of Bergin's request for review, the ALJ's decision stands as the Commissioner's final decision. The administrative record (Dk. 9) and the parties' briefs are on file pursuant to D. Kan. Rule 83.7.1 (Dks. 10, 15 and 16), 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 "whether the correct legal standards were applied." Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Persales, 402 U.S. 389, 401 (1971) (quotation and citation omitted). "It 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 "must be based upon the record taken as a whole" while keeping in mind "evidence 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 "whether 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 "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." Lax v. Astrue, 489 F.3d at 1084 (internal quotation marks and citation omitted). The court will "meticulously 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 "inability 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 "claimant 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 "severe impairment, " that is, any "impairment 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 Bergin had not engaged in substantial gainful activity since June 15, 2010. At step two, the ALJ found the following severe impairments: "history of a left ankle fracture, status post multiple surgeries and development of reflex sympathetic dystrophy." (Tr. 19). At this step, the ALJ noted that the record suggested other impairments including, "fibromyalgia, osteoarthritis, and a loss of cognition, but these are not documented by objective evidence and are therefore found to be non (sic) medically determinable." (Tr. 20).
At step three, the ALJ found that the impairments, individually or in combination, did not equal the severity of the Listing of Impairments. (Tr. 20). Before moving to steps four and five, the ALJ determined that Bergin had the residual functional capacity ("RFC") to perform:
sedentary work as defined in 20 CFR 404.1567(a) including lifting and carrying ten pounds frequently and occasionally, sitting six of eight hours, standing and walking two hours, and occasionally stooping, bending, reaching, climbing stairs and ramps, crawling, and kneeling. She cannot crouch or climb ropes, ladders or scaffolds. She cannot operate foot controls with her left foot. She cannot crouch.
(Tr. 20). At step four, the ALJ found that the claimant was able to perform her past relevant work as a social services department manager and education director. (Tr. 23). In the alternative, the ALJ found that, "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, the claimant has also acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy." (Tr. 23). The ALJ concluded that Bergin has not been under a disability from June 15, 2010, through the date of his decision. (Tr. 24).
TESTIMONY AND EVIDENCE RELEVANT TO ISSUES
In 1998, Bergin fell off a roof and fractured the calcaneus in her left foot that was repaired surgically with pins. The pain still worsened, and degenerative changes to the subtalar joint were observed. (Tr. 244). Subtalar fusion surgery was done by Dr. Bonar in 2004 and 2006. Dr. Bonar operated again in 2008 removing the hardware and performing other procedures on the left foot. Because of continued pain in February of 2009, Dr. Bonar referred Bergin to Dr. Simon for an evaluation on managing nerve pain in the left foot. In November of 2009, Dr. Grossman performed more surgical procedures on the left foot. Despite nine surgeries, Bergin's chronic pain so interfered with her ability to work ...