United States District Court, D. Kansas
CHRISTINA K. COMPTON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
Sam A. Crow, U.S. District Senior Judge
This is an action reviewing the final decision of the defendant Commissioner of Social Security ("Commissioner") that denied the claimant Christina K. Compton’s (“Compton”) Title II application for disability insurance benefits and Title XVI application for supplemental security income under the Social Security Act (“Act”). She filed her applications in late 2010, alleging a disability beginning in the summer of 2010. (Dk. 8-16, pp. 3, 7). After both applications were denied initially and on reconsideration, Compton requested an administrative hearing that was held on August 22, 2012. (Dk. 8-3, pp. 21-41). On October 15, 2012, the administrative law judge (“ALJ”) issued his decision finding that Compton was not disabled as she remains “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” (Dk. 8-3, p. 20). With the Appeals Council’s denial of the claimant’s request for review, the ALJ’s decision stands as the Commissioner’s final decision. (Dk. 8-3, p. 2). The administrative record (Dk. 8, attachments) and the parties' briefs are on file pursuant to D. Kan. Rule 83.7.1 (Dks. 13, 16 and 18), the case is ripe for review and decision.
Born in 1960 and a high school graduate, Compton testified she last worked as a receptionist for Langston and Associates and in 2010 her employment ended because of panic attacks and a nervous breakdown. (Dk. 8-3, pp. 25, 28). On her disability report, Compton listed the following medical conditions as limiting her ability to work: memory and concentration problems, anxiety, depression, post-traumatic stress disorder (“PTSD”), and panic attacks. (Dk. 8-7, p. 6). She testified to having daily panic attacks and described them as rendering her unable to see, hear and breathe and as causing her to shake all over. (Dk. 8-3, p. 29). She relies on deep breathing exercises to alleviate symptoms, but she does not take medication for the attacks. Id. She takes medication for depression and experiences the side effects of drowsiness and weight gain. Id. For her different conditions, she is seeing Dr. Schliep every two weeks and Dr. Jones every three months. Id.
On appeal, Compton argues the ALJ failed to apply the correct legal standards and to give proper weight to the medical opinions, failed to make credibility findings concerning her complaints and symptoms that are supported by substantial evidence, and failed to consider properly the third-party statement of her former employer. As a result of these errors, Compton concludes that the ALJ’s assessment of her residual functional capacity (“RFC”) is not supported by substantial evidence.
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 Awhether the correct legal standards were applied." Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Substantial evidence is that which Aa reasonable mind might accept as adequate to support a conclusion." Richardson v. Persales, 402 U.S. 389, 401 (1971) (quotation and citation omitted). AIt 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 Amust be based upon the record taken as a whole" while keeping in mind Aevidence 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 Awhether 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 Amay 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 Ameticulously 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 Ainability 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 Aclaimant 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 Asevere 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 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 Compton to have not engaged in substantial gainful activity since July 23, 2010. At step two, the ALJ found Compton to have the following severe impairments: “anxiety disorder and depression.” (Dk. 8-3, p. 12). At step three, the ALJ found that Compton’s impairments, individually or in combination, did not equal the severity of the Listing of Impairments. Id. At 13.
Before moving to step four, the ALJ determined that Compton had the residualfunctional capacity (“RFC”) to perform:
a full range of work at all exertional levels but with some non-exertional limitations. The claimant’s impairments allow her to do simple tasks but limit her to jobs that do not demand attention to details or complicated instructions or job tasks. She may work in proximity to others, but is limited to jobs that do not require close cooperation and interaction with co-workers, in that, she would work better in relative isolation. She is limited to occasional interaction and cooperation with the public. She retains the ability to maintain attention and concentration for two-hour periods at a time, adapt to changes in the workplace on a basic level, and accept supervision on a basic level.
(Dk. 8-3, pp. 14-15). At step four, the ALJ found that Compton was unable to perform her past relevant work as a receptionist or a bank teller. (Id. at p. 18). “Considering the claimant’s age, education, work experience and residual functional capacity, ” and relying on the vocational expert’s testimony that the Compton could perform the occupational requirements for a subassembler, hand bander, and folding ...