United States District Court, D. Kansas
CHERI L. OLSEN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This is an action reviewing the final decision of the defendant Commissioner of Social Security ("Commissioner") that denied the claimant Cheri L. Olsen's ("Webb") Title II application for disability insurance benefits under the Social Security Act ("Act"). Olsen alleged a disability onset set date of November 30, 2007, based on a combination of impairments. Olsen remained insured through June 30, 2011, so her disability must be established on or before that date. The administrative law judge ("ALJ") filed her decision on May 1, 2012, finding that Olsen was not under a disability through June 30, 2011. (Tr. 31-41). With the Appeals Council's denial of Olsen's request for review, the ALJ's decision stands as the Commissioner's final decision. The administrative record (Dk. 3) and the parties' briefs are on file pursuant to D. Kan. Rule 83.7.1 (Dks. 4, 9 and 10), 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 she suffers from a "severe impairment, " that is, any Aimpairment 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 her 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, she 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 her 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 that, the claimant Olsen had not engaged in substantial gainful activity from her alleged onset date through her last insured date of disability. At step two, the ALJ found the following severe impairments: "lumbar spondylosis; major depressive disorder; DAA [drug and alcohol addiction] in remission." (Tr. 33). At step three, the ALJ did not find that the impairments, individually or together, equaled the severity of the Listing of Impairments. Before moving to steps four and five, the ALJ determined that Olsen had the residual functional capacity ("RFC") to perform:
a limited range of light work as defined in 20 CFR 404.1567(b). She could sit six hours out of an 8-hour day; stand/walk 4 hours out of an 8-hour day with normal breaks; and lift/carry up to 10 lbs. frequently and 20 lbs. occasionally. She was precluded from using foot pedals and could not use her lower extremities for repetitive movements. She could not climb ladders, ropes, or scaffolds; she could occasionally climb stairs, bend, balance, stoop, kneel, crouch, or crawl; she was precluded from work around unprotected heights. She could perform moderately complex tasks, following 3 to 5 step instructions; she was precluded from jobs requiring hypervigilence; she should not have been in charge of safety operations of others; she was precluded from intense interpersonal interactions (i.e. should not be taking complaints or in situations like those encountered by law enforcement or emergency personnel); and she could occasionally travel to unfamiliar locations.
(Tr. 35). At step four, the ALJ found the claimant was unable to perform her past relevant work. (Tr. 39). At step five, the vocational expert provided testimony from which the ALJ concluded that, "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, the claimant had acquired work skills from past relevant work that were transferable to other occupations with jobs existing in significant numbers in the national economy." Id.
ISSUE ONE: ERRONEOUS ASSESSMENT OF RFC
For the most part, the court will address the plaintiff's arguments in the order she has made them. First is the contention that the ALJ's decision fails to cite and discuss the evidence supporting the mental limitations used for the RFC finding. "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)." Social Security Ruling (SSR) 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996). Observing that the ALJ made highly specific and narrowly tailored limitations on mental RFC, the plaintiff disputes that these findings address all of her mental limitations in the medical record and challenges the findings as not supported by substantial evidence. Specifically, she faults the ALJ's decision for not discussing the reasons for excluding the state agency medical consultant Dr. Witt's findings of a moderate functional limitation in maintaining concentration, persistence or pace (Tr. 350) and a moderate limitation of the ability to get along with coworkers (Tr. 337), as well as, the consulting examining psychiatrist Dr. Pulcher's findings of "[a]daptibility and persistence would appear to be limited both by her depression and by her self-reported fibromyalgia." (Tr. 370).
In completing the Psychiatric Review Technique ("PRT"), Dr. Witt recorded a global rating of a moderate limitation on the general category of concentration, persistence and pace. (Tr. 350). And on the Mental Residual Functional Capacity Assessment ("MRFCA"), under the general category of "Sustained Concentration and Persistence, " Dr. Witt marked the function of ability to carry out detailed instructions as moderately limited and marked no other functions as so limited. (Tr. 336). Thus, there is no inconsistency between Dr. Witt's PRT and MRFCA, and his completion of the two forms explains his opinion on this moderate limitation. See Chrismon v. Colvin, 531 Fed.Appx. 893, 898 (10th Cir. ...