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Mertes v. Colvin

United States District Court, D. Kansas

July 31, 2015

MELISSA DENISE MERTES, 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 Acting Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance benefits (DIB) and Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 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 DIB and SSI benefits, alleging disability beginning October 2, 2004. (R. 14, 232, 238). She exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. In a single argument section of approximately two pages, Plaintiff claims that the Commissioner's decision did not apply the correct legal standard and is not supported by substantial evidence.

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 she 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. §§ 404.1520, 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 she has a severe impairment(s), and whether the severity of her 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 her 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).

As noted above, Plaintiff provided only two pages of discussion in the "Argument" section of her brief, and one-half page is a restatement of three numbered paragraphs from the "Medical Records" section in her statement of facts. Although Plaintiff is represented by counsel before this court, much of her argument is incomprehensible to the court except in the most general of terms. She alleges errors that the ALJ made, but she does not support those allegations with explanations of a specific legal standard that was not applied, how a legal standard was applied improperly, why the evidence compels a finding contrary to that of the ALJ, or why the evidence cannot support the findings of the ALJ. Nevertheless, despite Plaintiff's deficient and exceedingly short and undeveloped argument, the court recognizes three allegations of error in Plaintiff's Brief, and will address each. It finds no error identified by Plaintiff.

II. Plaintiff Shows No Error at Step Three

Plaintiff first claims that the ALJ "failed to find that Plaintiff met Listing 12.06 and Listing 12.08, despite supporting medical record[s]." (Pl. Br. 17). In support of this claim, Plaintiff cites to three medical records. Id. First, she cites to a treating record from ComCare dated July 11, 2011 which reports an Axis II diagnosis of "Borderline Personality Disorder; per client report, " and a GAF (global assessment of functioning) score of 40 "On Admission." Id. (citing R. 468, 470). She cites a "Medication Management" note dated December 21, 2011 and prepared by Mr. Ahrens, her treating nurse practitioner, in which he diagnosed Plaintiff with post traumatic stress disorder (PTSD) and with borderline personality disorder, and in which he noted that even when symptoms attributable to "unipolar and bipolar depression" are eliminated, Plaintiff "still meets full DSM-IV criteria for Post Traumatic Stress Disorder." (R. 670) (cited in Pl. Br. 17). Finally, she refers without citation to an opinion letter written by Ms. Cummings, her treating social worker at Counseling & Mediation Center, in which Ms. Cummings noted that Plaintiff has "Bi-Polar Disorder, Borderline Personality Disorder and Addictions" and in which she opined that "I don't see any way for [Plaintiff] to hold a job." (R. 749) (discussed without citation in Pl. Br. 17). The Commissioner points out that the ALJ specifically considered whether these two mental Listings were met, and argues that she properly determined they were not. (Comm'r Br. 4-5).

Plaintiff "has the burden at step three of demonstrating, through medical evidence, that her impairments meet all of the specified medical criteria' contained in a particular [L]isting." Riddle v. Halter, No. 00-7043, 2001 WL 282344 at *1 (10th Cir. Mar. 22, 2001) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in Zebley)). "An impairment that manifests only some of [the Listing] criteria, no matter how severely, does not qualify" to meet or equal the Listing. Zebley, 493 U.S. at 530.

"The [Commissioner] explicitly has set the medical criteria defining the [L]isted impairments at a higher level of severity than the statutory standard. The [L]istings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just substantial gainful activity.'" Zebley, 493 U.S. at 532-33 (emphasis in original) (citing 20 C.F.R. § 416.925(a) (1989)). The Listings "streamlin[e] the decision process by identifying those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background." Bowen v. Yuckert, 482 U.S. 137, 153 (1987). "Because the Listings, if met, operate to cut off further detailed inquiry, they should not be read expansively." Caviness v. Apfel, 4 F.Supp.2d 813, 818 (S.D. Ind. 1998).

The Commissioner has promulgated a Psychiatric Review Technique for evaluating mental impairments such as those represented by the Listings presented here. 20 C.F.R. §§ 404.1520a, 416.920a. In evaluating the severity of mental impairments at steps two and three, the technique provides for rating the degree of functional limitation in each of four broad mental functional areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. Id. §§ 404.1520a(c) 416.920a(c). After rating the degree of ...


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