United States District Court, D. Kansas
MEMORANDUM AND ORDER
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 under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error in the Commissioner's decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING it.
Plaintiff applied for SSD, alleging disability beginning March 15, 2008. (R. 12, 117-18). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He claims the Administrative Law Judge (ALJ) erred in failing to provided a proper narrative discussion which adequately explained his residual functional capacity (RFC) assessment as required by Social Security Ruling (SSR) 96-8p.
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 he has a severe impairment(s), and whether the severity of his 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 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 his 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 finds no error in the ALJ's narrative discussion regarding her RFC assessment.
II. The Parties' Arguments
Plaintiff claims the ALJ failed to explain how she arrived at her RFC conclusions. He argues that the only medical opinions regarding Plaintiff's capabilities are those of the non-examining state agency doctors, that their opinions were formed based on a review of the record evidence in May 2011 before Plaintiff had various surgeries for ischemia in his right leg and compartment syndrome of the right calf, and before he developed right foot drop, and that the ALJ failed to explain how Plaintiff's peripheral artery disease (PAD) and right foot drop were considered and resolved in her narrative discussion. He claims that the standing and/or walking limitations assessed are not supported by substantial record evidence. Plaintiff points to treatment notes indicating home health care, extended wound care after surgery for compartment syndrome, need for an assistive device during recovery from the surgery, and reports of malaise, fatigue, weight loss, claudication, shortness of breath, and joint pain, as record evidence contrary to the RFC assessed.
The Commissioner argues that the ALJ's entire RFC analysis is the narrative discussion required by SSR 96-8p, and that the discussion meets the requirements of that ruling and is supported by the record evidence. She notes that the ALJ found Plaintiff's allegations of symptoms resulting from his impairments are not credible, and she argues that the sit/stand option and the postural limitations assessed by the ALJ constitute greater limitations than opined by any medical source and, therefore, any error in assessing such restrictions operates in Plaintiff's favor, and is harmless. She argues that the ALJ properly discussed the evidence relating to Plaintiff's PAD and compartment syndrome.
In his reply brief, Plaintiff cites the case of Luzier v. Astrue, No 10-1186-JWL, 2011 WL 2470243, *4 (D. Kan. June 20, 2011) for the proposition that a Social Security decision must explain how ambiguities were resolved, and he argues that in this case "the ALJ did not explain how [Mr.] Edward's peripheral artery disease and right foot drop were considered and resolved." (Reply 2). He argues that the record contains evidence that ...