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Rickard v. Colvin

United States District Court, D. Kansas

March 20, 2015

DIRK RICKARD, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under sections 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 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 SSI, alleging disability beginning January 1, 2006. (R. 9, 171-90). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. Plaintiff argues that the Administrative Law Judge (ALJ) erred because her residual functional capacity (RFC) assessment is not supported by substantial record evidence. (Pl. Brief 8). Specifically, he argues that the ALJ erroneously relied upon the opinions of two non-examining physicians, Dr. Goldsmith and Dr. Raju, and of Plaintiff's treating chiropractor, Dr. Jansen. (Pl. Br. 10). He argues that such reliance is "misplaced in the context of [Mr.] Rickard's more recent functioning, " id., and in view of Dr. Bruner's examination on August 23, 2012 at which he recommended bilateral knee replacements and a two-level fusion in Plaintiff's cervical spine. Id. at 11-12.

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. § 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 evaluation of the medical opinions or in her RFC assessment.

II. Assessment of RFC

As noted above, Plaintiff argues that the ALJ erroneously relied upon the opinions of Dr. Goldsmith, Dr. Raju, and Dr. Jansen. (Pl. Br. 10). He argues that such reliance is "misplaced in the context of [Mr.] Rickard's more recent functioning, " id., and in view of Dr. Bruner's examination on August 23, 2012 at which he recommended bilateral knee replacements and a two-level fusion in Plaintiff's cervical spine. Id. at 11-12. He notes that Dr. Bruner diagnosed Plaintiff with severe bilateral degenerative joint disease in his knees and severe degenerative disc disease in his cervical spine, and that none of these three doctors was aware of Dr. Bruner's diagnoses and recommendations. Id . He argues that the ALJ erred in finding that Dr. Bruner's examination did not reveal evidence of paresthesias, and ignored Dr. Bruner's recommendation for a two-level fusion. (Pl. Br. 12-13) (citing Belcher v. Astrue, Civ. A No. 09-2299-KHV-GBC, 2010 WL 2232697 (D. Kan. May 4, 2010) rep. and rec. adopted, 2010 WL 2232694 (D. Kan. June 1, 2010)). In his final argument, Plaintiff suggests that in light of Dr. Bruner's examination and recommendations a "more reasonable RFC" would limit Plaintiff to sedentary work. Id. at 13. The Commissioner argues that Dr. Bruner never identified any functional limitations to which Plaintiff was restricted (Comm'r Br. 5), that the ALJ appropriately determined that Dr. Bruner's "positive x-ray and examination findings support limiting the claimant's stooping, crouching, crawling, and climbing of ramps, stairs, ladders, ropes, and scaffolds, " and she limited them accordingly (Comm'r Br. 7), and that her RFC assessment is supported by substantial record evidence. Id. at 6-8. In his Reply Brief, Plaintiff acknowledges that the ALJ quoted Dr. Bruner's statement that "the claimant needs knee replacement as well as 2 level cervical spine fusion and decompression" (Reply 2) (quoting R. 17), but he argues that the ALJ did not explain how he "handled Dr. Bruner's opinion that [Mr.] Rickard is not employable' and that [Mr.] Rickard needed multiple surgeries." Id.

A. The ALJ's Evaluation

The ALJ determined Plaintiff has the RFC to perform work which requires lifting no more than 20 pounds at a time, and frequently lifting up to 10 pounds, and which requires a good deal of walking or standing, or which involves sitting most of the time with some pushing and pulling of arm or leg controls. (R. 15) (citing 20 C.F.R. § 416.967(b)). She determined that Plaintiff was further limited to only occasional stooping, crouching, crawling, and climbing of ramps, stairs, ladders, ropes, and scaffolds. Id . In reaching this determination, the ALJ found that Plaintiff's impairments could reasonably be expected to cause the symptoms alleged, but that Plaintiff's statements regarding the intensity, persistence, and limiting effects of his symptoms are not credible. (R. 15).

The ALJ noted that Plaintiff's treating chiropractor, Dr. Jansen, completed a medical source statement in June of 2012 in which he opined that Plaintiff is able to perform a range of light work. (R. 18-19) (citing Ex. 10F, R. 359-61). The ALJ acknowledged that although Dr. Jansen treated Plaintiff from 2008 through 2012, he had only treated him three times in the last three years. (R. 19). She also noted that Dr. Jansen's opinion "certainly ...


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