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Smiley v. Colvin

United States District Court, D. Kansas

July 8, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


MONTI L. BELOT, District Judge.

This is an action reviewing a final decision of the Commissioner of Social Security denying plaintiff disability insurance benefits.

I. General Legal Standards

The court's standard of review is contained in 42 U.S.C. § 405(g), which provides in part that "[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive, ..." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. The determination of 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 really constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). Although the court is not to reweigh the evidence, the findings of the Commissioner will not be mechanically accepted. Nor will the findings be affirmed by isolating facts and labeling them substantial evidence, as the court must scrutinize the entire record in determining whether the Commissioner's conclusions are rational. Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D.Kan. 1992). The court should examine the record as a whole, including whatever in the record fairly detracts from the weight of the Commissioner's decision and, on that basis, determine if the substantiality of the evidence test has been met. Glenn, 21 F.3d at 984.

The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that she has a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents her from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that she is not only unable to perform her previous work but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.[1] 42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that she is not working at a "substantial gainful activity." At step two, the agency will find non-disability unless the claimant shows that she has a "severe impairment, " which is defined as any "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant's impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do her previous work; unless the claimant shows that she cannot perform her previous work, she is determined not to be disabled. If the claimant survives step four, the fifth and final step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003).

The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (1993). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Nielson, 992 F.2d at 1120; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487. Before going from step three to step four, the agency will assess the claimant's residual functional capacity (RFC). This RFC assessment is used to evaluate the claim at both step four and step five. 20 C.F.R. § 404.1520(a)(4); 404.1520(f, g).

II. History of the case

Plaintiff sought disability benefits beginning January of 2009 based on impairments including degenerative disk disease (DDD) and related pain. She received a favorable decision from an ALJ on September 23, 2011. After that initial ruling, the Continuing Disability Investigations Unit (CDI) submitted a report containing evidence that plaintiff had engaged in physical activities inconsistent with the evidence at the initial hearing and inconsistent with the residual functional capacity (RFC) determined by the ALJ. The ALJ held a supplemental hearing and considered the CDI report but again issued a favorable decision for plaintiff.

The Appeals Council reviewed the decision on May 11, 2012. Doc. 5 at 201-204. Among other things, the Council found that the ALJ gave inconsistent consideration to the CDI report. The Council further found the ALJ's ruling was not supported by substantial evidence and did not follow proper procedures for reopening a prior decision based upon fraud or similar fault. The Council remanded with directions to assign the case to another ALJ.

On remand, ALJ Deborah Van Vleck held a hearing and issued a written decision on November 2, 2012. After considering the evidence, including a CDI surveillance video of plaintiff, the ALJ concluded the video made it apparent that plaintiff could do various thing she had previously claimed not to be able to do, including:

[W]alking and standing with ease without an assistive device; walk through a large farm with uneven surfaces while wearing flip flops shoes and without an assistive device for over 15 minutes; climbing over bars; [lean] against a wall with one leg... propped up; step up stairs without difficulty; get up from a seated position with a baby in her arms; stand continuously for almost 20 minutes while holding a baby estimated to weigh 12-16 pounds and occasionally use one arm to point or make a phone call; bend and reach for a medium sized garbage bag and lift and carry the garbage bag; bending over on several occasions; bend and crouch down into a catcher-like stance; reach into the bed of a pickup truck and lift up a baby walker; walk backwards; step up into her truck and drive her truck for at least 10 minutes; sit for several minutes on a low-seated sidewalk step; and squatting down.

Doc. 5 at 20-21.

The ALJ noted that at plaintiff's initial hearing, the prior ALJ had relied primarily on the opinions of plaintiff's treating physician Reddy Katta, M.D., and chiropractor Michelle Robin, whom the first ALJ had mistakenly characterized as a medical doctor.[2] Katta had opined that plaintiff was able to lift and carry less than 5 pounds frequently and 5 pounds occasionally; stand/walk less than 15 minutes continuously and for a total of 2 hours in an 8-hour day; sit for less than 15 minutes and for a total of 2 hours in an 8-hour day; minimally (if at all) push and/or pull; occasionally climb, balance and reach but never stoop, kneel or crawl; and must lay down every hour. After Katta was shown portions of the CDI video, however, he told CDI agents that it changed his opinions about plaintiff's limitations and indicated that she did not appear disabled. In a subsequent letter, Katta summarized plaintiff's treatment history and noted that from the video he "felt like she is not in any distress doing the tasks she is doing like getting in and out of the truck or picking up her grandbaby or bending over." Katta also subsequently ...

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