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Parker v. Colvin

United States District Court, D. Kansas

September 30, 2014

MICHAEL E. PARKER, SR., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


DANIEL D. CRABTREE, District Judge.

Plaintiff, appearing before the Court pro se, seeks review of a decision of the Commissioner of Social Security denying disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act (the "Act"). 42 U.S.C. §§ 416(i), 423, 1381a, & 1382c(a)(3)(A). Having reviewed the administrative record and the briefs of the parties, the Court reverses the decision of the Commissioner, orders that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g), and remands the case to the agency for further proceedings consistent with this Order.

I. Background

This is plaintiff's second appeal of the Commissioner's decision denying him DIB and SSI. Plaintiff applied for both DIB and SSI in August 2008, alleging disability beginning August 1, 2005. (R. 123-133) The Commissioner denied plaintiff's applications initially and upon reconsideration, and plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (R. 12, 72-75, 97-98) The ALJ held a hearing on October 22, 2010. (R. 24) On December 21, 2010, the ALJ issued a decision finding that plaintiff had the residual functional capacity ("RFC") to perform his past relevant work. (R. 18) Alternatively, the ALJ found that other jobs that plaintiff could perform existed in the economy in significant numbers. (R. 18-19) Therefore, the ALJ concluded that plaintiff was not disabled within the meaning of the Act and denied his applications. (R. 19)

After the agency Appeals Council denied plaintiff's request for review, plaintiff filed a petition for review of the Commissioner's decision with our Court. (R. 1, 590) On April 5, 2012, Judge Lungstrum remanded the case to the Commissioner for further consideration. (R. 590-607) Judge Lungstrum found that the ALJ erred because he did not consider all of the opinions presented by plaintiff at the hearing and failed to perform a function-by-function assessment of plaintiff's work-related physical limitations, both of which required remand. (R. 607) Following the Court's remand order, the Appeals Council vacated the December 2010 ALJ decision and instructed the ALJ to offer plaintiff a new hearing. (R. 608-10)

The ALJ held a new hearing and plaintiff, represented by counsel, appeared at it on January 8, 2013. (R. 545) The ALJ heard testimony from plaintiff and a vocational expert. ( Id. ) On January 24, 2013, the ALJ issued his opinion, which concluded that plaintiff has not been disabled under the Act from the onset of the alleged disability in August 2008 through the date of the decision. (R. 537-38) Plaintiff asked the Appeals Council to review the ALJ's decision and presented new evidence, a medical opinion from plaintiff's treating physician, Dr. S.R. Reddy Katta. (R. 519) However, the Appeals Council concluded that Dr. Katta's opinion did not provide a basis for changing the ALJ's decision and declined to assume jurisdiction of plaintiff's case. ( Id. )

Plaintiff commenced this action pro se on July 26, 2013, filing a Complaint (Doc. 1) against the Commissioner. Plaintiff has filed numerous briefs with the Court, in violation of D. Kan. Rules 7.6 and 83.7.1(d) which limit a plaintiff to one Social Security brief. As a result, the Court in a June 10, 2014 Order struck several filings made by plaintiff (Doc. 29). The Court ordered plaintiff to file a conforming, responsive brief on or before July 2, 2014. Plaintiff filed his Social Security Brief (Doc. 31) on June 16, 2014, to which the Commissioner responded on August 1, 2014 (Doc. 33). Plaintiff filed his reply brief on August 4, 2014 (Doc. 34).

II. Legal Standard

Section 405(g) of the Act provides for review of a final decision of the Commissioner made after a hearing in which the plaintiff was a party. It also 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 factual findings are supported by substantial evidence in the record and whether the ALJ 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 that a reasonable mind might accept to support a conclusion. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 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). 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).

An individual is under a disability only if that individual can establish that he has a physical or mental impairment which prevents him from engaging in any substantial gainful activity, and which is expected to result in death or last for a continuous period of at least twelve months. Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993) (citing 42 U.S.C. § 423(d)); see also Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting identical definitions of a disabled individual from both 42 U.S.C. §§ 423(d)(1) and 1382c(a)(3)(A)); accord Lax, 489 F.3d at 1084 (citing 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). The claimant's impairments must be sufficiently severe that he is not only unable to perform his past relevant work, but cannot, considering his age, education, and work experience, engage in any other substantial gainful work existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

The Commissioner follows "a five-step sequential evaluation process to determine disa-bility." Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (discussing 20 C.F.R. § 404.1520 (govern-ing claims for DIB) and § 416.920 (governing claims for SSI)). 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 impair-ments 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, 933 F.2d at 801.

Because plaintiff proceeds pro se, the Court construes his pleadings, motions, briefs, and memoranda liberally. See Haines v. ...

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