United States District Court, D. Kansas
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 Gary Lynn Archer's ("Archer") Title II application for disability insurance benefits and Title XVI application for supplemental security income under the Social Security Act ("Act"). He filed his applications in August of 2010, alleging a disability beginning September 9, 2008. After both applications were denied initially and on reconsideration, Archer requested an administrative hearing that was held on June 1, 2012. (Dk. 3-1, Transcript "Tr." at 31-59). On July 12, 2012, the administrative law judge ("ALJ") issued his decision finding that Archer was not disabled as he remains capable of performing his past relevant work as a data entry clerk. (Tr. 17-29). With the Appeals Council's denial of the claimant's request for review, the ALJ's 2012 decision stands as the Commissioner's final decision. (Tr. 1). The administrative record (Dk. 3-1) and the parties' briefs are on file pursuant to D. Kan. Rule 83.7.1 (Dks. 6, 11 and 14), the case is ripe for review and decision.
Born in 1961 and a high school graduate, Archer has past relevant employment as a data entry clerk, farmhand, lab technician/manager, and groundskeeper. Archer alleged the following conditions limited his ability to work: back and leg pain, no sweat glands, hypothyroidism, neuropathy, low sex drive, anxiety and severe burns over 65% of his body. (Tr. 155). On appeal, Archer argues the ALJ mischaracterized and isolated medical evidence in evaluating his pain allegations, the ALJ assessed a residual functional capacity ("RFC") that is not supported by substantial evidence, and the ALJ's credibility findings are lacking.
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 he suffers from a "severe impairment, " that is, any "impairment 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 his 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, he 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 his 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 Archer to have not engaged in substantial gainful activity since September 9, 2008. At step two, the ALJ found Archer to have the following severe impairments: "degenerative disc disease, history of extensive burns and resulting neuropathy, and hypothyroidism." (Tr. 14). At step three, the ALJ found that Archer's impairments, individually or in combination, did not equal the severity of the Listing of Impairments. (Tr. 17).
Before moving to step four, the ALJ determined that Archer had the residual functional capacity ("RFC") to perform:
a range of "sedentary work, " as that term is otherwise defined in 20 CFR 404.1567(a) and 416.967(a). Specifically, the claimant can lift and carry up to 10 pounds occasionally and less than 10 pounds frequently. He can stand or walk a total of 2 hours and can sit for about 6 hours out of an 8-hour workday provided that he may alternate between sitting and standing postures every 20 to 30 minutes. He can only occasionally climb ramps and stairs, and would be unable to climb ladders, ropes, or scaffolding. He could occasionally stoop, crouch, and kneel, but could not perform any crawling. He could perform work not involving exposure to temperature extremes. He could perform work not involving operation of vibrating tools or equipment.
(Tr. 18). At step four, the ALJ found that Archer was "capable of performing past relevant work as a data entry clerk" as this work did not require activities precluded by his RFC. (Tr. 23). Based on these findings and conclusions, the ALJ entered his order deciding that Archer had not been under a disability from ...