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Burnett v. Colvin

United States District Court, D. Kansas

January 21, 2015

SHENETTA L. BURNETT, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge.

Plaintiff Shenetta Burnett seeks disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. An Administrative Law Judge ("ALJ") found that plaintiff was not disabled, which stands as the final decision of the Commissioner of Social Security ("Commissioner"). Plaintiff contends the ALJ erred in evaluating the credibility of her subjective allegations, assessing her residual function capacity ("RFC"), and relying upon vocational expert testimony to find her not disabled. For the reasons stated below, the court remands the case for reconsideration consistent with this opinion.

I. Legal Standard

The court must determine whether the Commissioner's final decision is "free from legal error and supported by substantial evidence." Walls v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Accordingly, this court applies a two-pronged review of the ALJ's decision: (1) Are the factual findings supported by substantial evidence in the record? (2) Did the ALJ apply the correct legal standards? Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). "Substantial evidence" is a term of art, meaning "more than a mere scintilla" and "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hunter v. Astrue, 321 F.Appx. 789, 792 (10th Cir. 2009) (quoting Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)). When evaluating whether the standard has been met, the court is limited; it may neither reweigh the evidence nor replace the ALJ's judgment with its own. Bellamy v. Massanari, 29 F.Appx. 567, 569 (10th Cir. 2002) (citing Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995)). On the other hand, the court must examine the entire record-including any evidence that may detract from the ALJ's decision. Jarmillo v. Massanari, 21 F.Appx. 792, 794 (10th Cir. 2001) (citing Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994)).

II. Analysis

Plaintiff is a forty-two-year-old woman with two years of college education and has engaged in past work as a warehouse worker, laser operator, machine operator, and day care worker. Plaintiff filed an application for disability insurance benefits based primarily on seizures, diabetes, mellitus, retinopathy, hypertension, asthma, chest pain (following an myocardial infarction), obesity, and memory loss. Plaintiff alleges she became disabled in August 2010.

The ALJ considered plaintiff's claim and concluded that her allegations of disabling symptoms were not credible. The ALJ also determined that plaintiff retained the RFC to perform sedentary work but had a limited ability to push and pull with the left upper extremity; could not reach with the left upper extremity; and could occasionally climb, balance, stoop, kneel, crouch, and crawl. Plaintiff was also limited to simple work at a specific vocational preparation ("SVP") level of three or less as defined in the Dictionary of Occupational Titles ("DOT"). Relying on vocational expert ("VE") testimony, the ALJ concluded that plaintiff could perform work that exists in significant numbers in the national economy, including work as a telephone solicitor, credit card processor, and room service order clerk.

A. Plaintiff's Credibility

The ALJ considered plaintiff's own statements about her impairments, the medical evidence, her daily activities, her use of medication, and a statement from a prior employer in evaluating the credibility of her subjective allegations. (Doc. 3-1 at 26-30.) The ALJ concluded that plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely credible. ( Id. at 30.) The ALJ based his credibility determination on the following findings:

• Plaintiff stopped working for reasons other than her medical conditions.
• The medical evidence did not support plaintiff's contention that she had a stroke.
• The ALJ considered plaintiff's purported noncompliance with medication and concluded that her medical conditions improved with treatment.
• Plaintiff underrepresented her activities of daily living.

Plaintiff claims these findings are erroneous. First, plaintiff first argues the ALJ erroneously found that she stopped working for reasons other than her medical conditions. Plaintiff worked at Last Word, Inc. ("Last Word") from 2005 until December 5, 2009, and then at MarTech beginning in June 2010. Plaintiff alleges that she had to stop working in August 2010 due to side effects from her medications. ( Id. at 148.) In assessing plaintiff's credibility, the ALJ noted that the record contained an employer statement that plaintiff presented no problems as an employee and that plaintiff stopped working because she was "laid off due to [a] slowdown in work." ( Id. at 30 and 169.) However, the court believes the ALJ was referring to plaintiff's prior former employer Last Word-not MarTech- because the employer statement came from Last Word. In fact, at the hearing, plaintiff admitted she was laid off from Last ...


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