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Loman v. Colvin

United States District Court, D. Kansas

September 18, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


DANIEL D. CRABTREE, District Judge.

Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of the final decision of the Commissioner of Social Security Administration denying her application for disability insurance benefits and supplemental security income under Title II and Title XVI of the Social Security Act, as amended. Plaintiff has filed a brief (Doc. 17) seeking judicial review of the Commissioner's decision. The Commissioner has filed a brief in opposition (Doc. 22) and submitted the administrative record (Doc. 10) contemporaneously with her Answer (Doc. 9). When plaintiff filed her Reply (Doc. 26), this matter became ripe for determination. Having reviewed the administrative record and the briefs of the parties, the Court affirms the decision of the Commissioner.

I. Factual Background and Procedural History

Plaintiff applied for Social Security Disability ("SSD") benefits and Supplemental Security Income ("SSI") alleging disability beginning January 18, 2009. (R. 9) The Social Security Administration denied plaintiff's applications on March 17, 2010 (R. 9) and again denied them on September 13, 2010. (R. 9) Plaintiff requested a hearing by an Administrative Law Judge ("ALJ") (R. 9), who held a hearing on August 3, 2011. (R. 9) During that hearing, plaintiff amended the date of her disability onset to October 15, 2009. (R. 9) On September 11, 2011, the ALJ issued a decision denying plaintiff's application for SSD benefits because the ALJ determined that plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act (R. 22). 42 U.S.C. §§ 416(i), 423(d). The ALJ also denied plaintiff's application for SSI benefits for the same reason under section 1614(a)(3)(A) of the Social Security Act (R. 23). 42 U.S.C. § 1382(c).

Plaintiff filed an appeal with the Appeals Council on September 21, 2011. (R. 5) The Appeals Council denied plaintiff's appeal on March 27, 2013. (R. 1-3) Plaintiff has exhausted the proceedings before the Commissioner and now seeks judicial review of the final decision denying her SSD and SSI benefits.

II. Legal Standard

A. Standard of Review

42 U.S.C. § 405(g) grants federal courts authority to conduct judicial review of final decisions of the Commissioner and "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision... with or without remanding the cause for a rehearing." Judicial review of the Commissioner's denial of benefits is limited to whether substantial evidence in the record supports the factual findings and whether the Commissioner applied the correct legal standards. Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); 42 U.S.C. § 405(g).

"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" but it must be "more than a scintilla, " although it need not be a preponderance. Lax, 489 F.3d at 1084 (citations and internal quotation marks omitted). While the courts "consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, " they neither reweigh the evidence nor substitute their judgment for the Commissioner's. Id. (citation and internal quotation marks omitted). But they also do not accept "the findings of the Commissioner" mechanically or affirm those findings "by isolating facts and labeling them substantial evidence, as the court[s] must scrutinize the entire record in determining whether the Commissioner's conclusions are rational." Alfrey v. Astrue, 904 F.Supp.2d 1165, 1167 (D. Kan. 2012) (citation omitted). When determining whether substantial evidence supports the Commissioner's decision, the courts "examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision." Id. (citation omitted). "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." Lawton v. Barnhart, 121 F.Appx. 364, 366 (10th Cir. 2005) (quoting Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987)).

A "failure to apply the proper legal standard may be sufficient grounds for reversal inde-pendent of the substantial evidence analysis." Brown ex rel. Brown v. Comm'r of Soc. Sec., 311 F.Supp.2d 1151, 1155 (D. Kan. 2004) (citing Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994)). But such a failure justifies reversal only in "appropriate circumstances"-applying an improper legal standard does not require reversal in all cases. Glass, 43 F.3d at 1395; accord Lee v. Colvin, No. 12-2259-SAC, 2013 WL 4549211, at *5 (D. Kan. Aug. 28, 2013) (discussing the general rule set out in Glass ). Some errors are harmless and require no remand or further consideration. See, e.g., Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161-63 (10th Cir. 2012); Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004); Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).

B. Disability Determination

Claimants seeking SSD and SSI benefits carry the burden to show that they are disabled. Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009) (citation omitted). In general, the Social Security Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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).

The Commissioner follows "a five-step sequential evaluation process to determine disability." Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (discussing 20 C.F.R. § 404.1520 (governing claims for disability insurance benefits) and § 416.920 (governing claims for supplemental security income)). As summarized by the Tenth Circuit, this familiar five-step process is as follows:

Step one requires the agency to determine whether a claimant is presently engaged in substantial gainful activity. If not, the agency proceeds to consider, at step two, whether a claimant has a medically severe impairment or impairments.... At step three, the ALJ considers whether a claimant's medically severe impairments are equivalent to a condition listed in the appendix of the relevant disability regulation. If a claimant's impairments are not equivalent to a listed impairment, the ALJ must consider, at step four, whether a claimant's impairments prevent [him or] her from performing [his or] her past relevant work. Even if a claimant is so impaired, the agency considers, at step five, whether [he or] she possesses the sufficient residual functional capability ["RFC"] to perform other work in the national economy.

Wall, 561 F.3d at 1052 (citations and internal quotation marks omitted); accord 20 C.F.R. § 404.1520(b)-(g). The claimant has the "burden of proof on the first four steps, " but the burden shifts to the Commissioner "at step five to show that claimant retained the RFC to perform an alternative work activity and that this specific type of job exists in the national economy.'" Smith v. Barnhart, 61 F.Appx. 647, 648 (10th Cir. 2003) (quoting Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). This analysis terminates if the Commissioner determines at any point that the claimant is or is not disabled. Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).

III. Discussion

The ALJ found that plaintiff has the following "severe impairments": mild degenerative disc disease, fibromyalgia, gout, arthritis, and a depressive disorder. (R. 12) However, the ALJ concluded that plaintiff does not have an impairment or combination of impairments that meets the severity of one of the listed impairments in 20 CFR Part 404. (R. 12) Instead, the ALJ found that plaintiff has the RFC

to perform somewhat less than a full range of "light work" as that term is otherwise defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, [plaintiff] can lift and carry up to 20 pounds occasionally and 10 pounds frequently. She can stand or walk for a total of 6 hours and can sit for at least 6 hours out of an 8-hour workday. She can occasionally stoop, kneel, crouch, crawl, and climb-but not ladders, ropes, or scaffolding. She can perform work not involving exposure to temperature extremes or workplace hazards such as unprotected heights and dangerous moving machinery. She can perform simple, unskilled work involving routine, repetitive tasks. She can perform occasional, simple, work-related decision-making, but no complex planning or negotiation. She can tolerate minor, infrequent changes within the workplace. She can perform work not requiring more than an 8th grade mathematics or literacy level. The claimant could perform work without need for redirection to job tasks on more than a weekly basis.

(R. 13-14) Based on that RFC, the ALJ determined that plaintiff was unable to perform any past relevant work. (R. 21) Still, based on plaintiff's age, education, work experience, and RFC, the ALJ found that "there are jobs that exist in significant numbers in the national economy that the claimant can perform." (R. 21)

Plaintiff argues (1) that the ALJ's determination of plaintiff's RFC is not supported by substantial evidence and is based on incorrect rules of law; and (2) that the ALJ erred by finding that plaintiff could perform "other work" existing in significant numbers in the national economy. The Court addresses each argument in turn.

A. Plaintiff's RFC

Upon review of the evidence, the ALJ concluded that plaintiff has the following "severe impairments": mild degenerative disc disease, fibromyalgia, gout, arthritis, and depressive disorder. Thus, the issue presented is not whether plaintiff suffers from serious and debilitating ailments, but rather whether plaintiff's ailments preclude her from performing work in the national economy.

"The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Hendron v. Colvin, No. 13-3243, 2014 WL 4377700, at *3 (10th Cir. Sept. 5, 2014). The ALJ's determination is supported by a proper narrative statement, much of which plaintiff does not dispute.

The ALJ found that "[a] review of all of the evidence does not indicate significant limitations in daily activities." (R. 19) The ALJ noted that:

[Plaintiff] has reported the ability to care for herself and her home. She is able to drive, shop and handle finances. Despite reports of problems concentrating, she has reported hobbies including puzzles, television and reading without difficulty. On the daily activity statement completed by [plaintiff] on June 10, 2010, she reported an inability to do yard work due to the pain.... However, she told Comcare on April 1, 2010 that her interests included outside activities including yard work and going to the zoo.... A ...

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