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Barger v. Colvin

United States District Court, D. Kansas

July 24, 2015

KIMBERLY BARGER, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, District Judge.

Plaintiff Kimberly Barger has applied for Social Security supplemental security income benefits. Her claim was denied initially and on reconsideration. After a November 27, 2012 hearing, her application was denied by the Administrative Law Judge (ALJ) on January 25, 2013. The Appeals Council declined to review this determination, rendering final the denial of benefits. In the present appeal, Barger alleges that the ALJ's decision does not rest upon substantial evidence, and that the ALJ erred in assessing her credibility.

Plaintiff-claimant Barger was born on July 28, 1968. She has stated that she became disabled by September 27, 2010, citing "nerve damage, DDD (degenerative disk disease), facet arthritis, depression, bipolar, back osteophyte, numbness in left leg and foot, low thyroid, loss of muscle control, and migraine headaches." (Tr. 173). She has previously worked as a deli clerk, stamper, circuit board assembler, and sales route driver. The detailed facts of the case, which are incorporated herein, are set forth independently in the ALJ's opinion.

The ALJ found that Barger had the severe impairments of degenerative disc disease, and back and affective disorders under 20 C.F.R. § 416.920(c). However, she also determined that while Barger has a history of migraine headaches, there is no evidence that these are severe. The headaches are managed by medication, with a number of scans yielding normal results. The ALJ further found that Barger's impairments, whether alone or in combination, do not meet the severity standards of 20 C.F.R. § Part 404, Subpart P, Appendix 1.

In determining Barger's residual functional capacity (RFC), the ALJ found that the claimant can still do "simple, routine, repetitive tasks." (Tr. 16). She can "perform a less than full range of sedentary work[, ] can occasionally climb ramps and stairs, stoop and crouch, but must avoid ladders, ropes and scaffolds, unprotected heights and hazardous machinery. She is able to have occasional interaction with coworkers, but no interaction with the general public." ( Id. )

This court reviews the ALJ's decision under 42 U.S.C. § 405(g) to "determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied." Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion." Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (citation omitted). "Substantial evidence requires more than a scintilla but less than a preponderance." Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (citation omitted). The court's role is not to "reweigh the evidence or substitute its judgment for the Commissioner's." Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008). The possibility that two inconsistent conclusions may be drawn from the evidence does not preclude a finding that the Commissioner's decision was based on substantial evidence. Zoltanski, 372 F.3d at 1200.

An individual is under a disability only if she can "establish that she has a physical or mental impairment which prevents her from engaging in substantial gainful activity and is expected to result in death or to last for a continuous period of at least twelve months." Brennan v. Astrue, 501 F.Supp.2d 1303, 1306-07 (D. Kan. 2007) (citing 42 U.S.C. § 423(d)). This impairment "must be severe enough that she is unable to perform her past relevant work, and further cannot engage in other substantial gainful work existing in the national economy, considering her age, education, and work experience." Barkley v. Astrue, No. 09-1163-JTM, 2010 WL 3001753, at *2 (D. Kan. July 28, 2010) (citing Barnhart v. Walton, 535 U.S. 212, 217-22 (2002)).

Pursuant to the Act, the Social Security Administration has prescribed a five-step sequential analysis to determine whether disability existed between the time of claimed onset and the date the claimant was last insured under the Act. Wilson, 602 F.3d at 1139; 20 C.F.R. § 404.1520(a)(4). If the trier of fact finds at any point during the five steps that the claimant is disabled or not disabled, the analysis stops. Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir. 1988). The first three steps require the Commissioner to assess: (1) whether the claimant has engaged in substantial gainful activity since the onset of the alleged disability; (2) whether the claimant has a medically severe impairment or combination of impairments; and (3) whether the severity of those impairments meets or equals a listed impairment. Wilson, 602 F.3d at 1139 (citing Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)). If the impairments do not meet or equal a designated listing in step three, the Commissioner then assesses the claimant's RFC based on all medical and other evidence in the record. 20 C.F.R. § 404.1520(e). RFC is the claimant's ability "to do physical and mental work activities on a sustained basis despite limitations from her impairments." Barkley, 2010 WL 3001753, at *2; see also 20 C.F.R. §§ 404.1520(e), 404.1545. "RFC is not the least an individual can do despite his or her limitations or restrictions, but the most." SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996) (emphasis in original). The Commissioner then proceeds to step four, where the RFC assessment is used to determine whether the claimant can perform past relevant work. Lax, 489 F.3d at 1084; 20 C.F.R. § 404.1520(e). The claimant bears the burden in steps one through four of proving disability that prevents performance of her past relevant work. 42 U.S.C. § 423(d)(5)(A); Lax, 489 F.3d at 1084.

If a claimant meets the burdens of steps one through four, "the burden of proof shifts to the Commissioner at step five to show that the claimant retains sufficient RFC to perform work in the national economy, given her age, education, and work experience." Lax, 489 F.3d at 1084 (brackets omitted). The ALJ determines RFC by evaluating a claimant's impairments that are "demonstrable by medically acceptable clinical and laboratory diagnostic techniques, " then weighing evidence to determine the nature and severity of those impairments. 20 C.F.R. §§ 404.1527(a), 416.927(a). Such evidence may include medical opinions, other opinions, and a claimant's subjective complaints. Id .; see also Poppa v. Astrue, 569 F.3d 1167, 1170-71 (10th Cir. 2009).

While Barger now asserts an onset date of September 27, 2010, for disability due to the impairments previously described, in her August 29, 2011, consultative examination by Dr. T.M. Venkat at Coffeyville Doctors Clinic, she reported that she had "all of the above-mentioned problems since 2004." (Tr. 568-69). That is, the impairments began with her report of an assault in which she was "pinned... against her car in the parking lot." (Tr. 18.) Barger was not hospitalized following the report, and has not worked since then. Prior to the present request for benefits, she has filed four unsuccessful applications for disability insurance benefits, and one unsuccessful application for supplemental income benefits.

Barger underwent artificial disc (L-5) replacement surgery in March, 2007, and her mother and daughter began to receive payments from Southeast Kansas Independent Living (SKIL) an assistance agency, to help her with daily living needs and do household chores. Barger has received no additional treatment since the surgery. She has seen neurologists, but all testing has been negative. (Tr. 18-19).

Barger watches television, reads, does puzzles, plays Yahtzee, and goes out to play bingo several times a month. She naps several hours a day. She sometimes becomes dizzy and has experienced two falls in the last year. She reported such falls in two emergency room visits during the year prior to the ALJ hearing. She feels stressed because of her financial condition. She does not drive, although no doctor has told her to avoid driving. There is some evidence that she "[h]istorically has been a fairly heavy drinker, Captain Morgan being her friend of choice." (Tr. 618) However, the record does not indicate that her drinking "is signficant or material to the finding of disability." (Tr. 19).

On September 25, 2012, Dr. Lee reported that Barger had "[n]o recent falls, " with one exception. On the Fourth of July, after having a few drinks, she "sat down on the lawn chair with it folding in on her." (Tr. 608).

The ALJ examined in detail Barger's medications and treatment following her surgery, including her emergency room reports of August 30, 2011, and October 27, 2011. In the first visit, to the Neosho Memorial Regional Medical Center, she reported back pain stemming from the fall from the lawn chair. The therapist at the emergency room applied moist heat and recommended stretching for the lumbar region. Barger ...


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