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Durbin v. Colvin

United States District Court, D. Kansas

November 13, 2014

SUSAN R. DURBIN, 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, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's decision.

I. Background

Plaintiff applied for SSD and SSI alleging disability beginning December 31, 2008. (R. 12, 215-16). 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 excluding certain record evidence from his consideration of disability and erroneously considered Plaintiff's activities of daily living in his credibility determination.

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 relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); see also, 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 residual functional capacity (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).

The court addresses each issue raised in the order presented in Plaintiff's Brief.

II. Improper Consideration of Evidence

Plaintiff claims the ALJ erroneously found that Plaintiff "worked part time at a retail store where she unloaded trucks and stocked shelves, as well as at a fast food restaurant and community center;" erroneously relied upon his personal medical opinion in finding that Plaintiff had extensive nerve damage from her history of methamphetamine use; and erred in finding that "no credible treating source imposed functional limitations in excess of the State examiners' assessments." (Pl. Br. 48-50) (quoting (R. 20, 21)). Plaintiff also claims the ALJ completely failed to consider, and erroneously ignored, the opinions of her treating physicians, Dr. Rodgers and Dr. Goin, and of her physical therapist, Mr. Mark Hall. Id. at 51-55.

First, the court finds that substantial record evidence supports the ALJ's findings of which Plaintiff complains. With regard to the ALJ's findings that Plaintiff worked part time at a retail store (K-Mart), a fast food restaurant (McDonald's), and a community center, he specifically cited to Exhibits 6D, 1E, 5F, and to Plaintiff's hearing testimony. (R. 20). And, these exhibits support his findings. Exhibit 6D demonstrates that Plaintiff was paid in the third and fourth quarters of 2009 and in the first and second quarters of 2010 for work at K-Mart Corporation, and was paid in the third quarter of 2010 for work performed at McDonald's in Hutchinson, Kansas. (R. 230). Exhibit 1E is a Work Activity Report in which Plaintiff reported working 32 hours at McDonald's in Hutchinson, KS in July 2010, and reported working 24 hours a week on average at K-Mart between September 2009 and June 2010. (R. 247). Exhibit 5F is a Consultation Report of a psychological examination in which the examiner, Dr. Berg, recorded Plaintiff's report that she last worked at a retail store for several months ending in June 2010. (R. 497).

In her hearing testimony Plaintiff testified that she last worked at K-Mart on June 15, 2010, and at McDonald's for two days on July 22 and 23. (R. 62). She testified that she started at K-Mart as a cashier, and that they promoted her to a position in which she unloaded trucks and put stock on the shelves. Id. at 63. When the ALJ questioned her about unloading trucks, she testified that when she first started that position, she unloaded the trucks, but that "then the girls knew I was hurting so bad that they'd help me sit on a little stool." Id. at 63-64. Moreover, in an Adult Function Report dated February 2, 2011, Plaintiff stated that "maybe twice a month" she goes to a community center to help pass out food, and that although she needs help "moving the bulk boxes, " she "can do the main task alone." (R. 347). Clearly the record evidence supports the ALJ's findings with regard to Plaintiff's exertional activities at K-Mart, McDonald's, and a community center.

Plaintiff's argument that she had to quit unloading the trucks and that she was unable to continue working at McDonald's does not undermine the ALJ's findings. The ALJ did not find that Plaintiff is now able to perform the extensive lifting and standing required by these activities. His reliance upon those activities was to show that Plaintiff is not as limited as she alleges, and that she attempted to perform jobs requiring significantly greater abilities than she alleges she is able to do. Rather, the ALJ found that Plaintiff is able only to perform a limited range of light work and is able only to stand and/or walk for two hours total in an eight-hour workday. Plaintiff's assertion that she "never worked at a community center" (Pl. Br. ...

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