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Gleason v. Berryhill

United States District Court, D. Kansas

February 21, 2017

HARLAN T. GLEASON, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

         This matter is before the Court for review of the final decision of Defendant Commissioner of Social Security[1] denying Plaintiff Harlan T. Gleason's applications for a period of disability and disability insurance benefits under Title II of the Social Security Act.[2] Because the Court finds that Defendant Commissioner's findings are not supported by substantial evidence, the Court reverses and remands Defendant's decision.

         I. Procedural History

         In September 2008, Plaintiff protectively applied for disability insurance benefits and supplemental security income, alleging an onset date of January 2, 2003. Plaintiff was last insured for disability benefits on June 30, 2004. Plaintiff's applications were denied initially. Upon reconsideration, Plaintiff's application for supplemental security income was granted in March 2009, [3] but his application for disability insurance benefits was denied upon reconsideration. After a hearing, the administrative law judge (“ALJ”) issued a decision finding that Plaintiff was not disabled and the Appeals Council denied Plaintiff's request for review.

         Plaintiff sought judicial review; and on September 25, 2013, United States District Court Judge Sam A. Crow reversed the Commissioner's decision and remanded pursuant to sentence four of 42 U.S.C. §405(g). Judge Crow concluded that the ALJ had erred in finding that the record was void of evidence that Plaintiff had any medically determinable impairment, and remanded for the ALJ to determine whether Plaintiff's medically determinable impairment of left hand tremor was severe, and to further make findings under the sequential evaluation process. Upon remand, after a hearing, the ALJ issued a decision that Plaintiff was not disabled between the alleged onset date of January 2, 2003 and June 30, 2004. The Appeals Council denied Plaintiff's motion for review, and this action followed.

         II. Standard for Judicial Review

         Judicial review under 42 U.S.C. § 405(g) is limited to whether Defendant's decision is supported by substantial evidence in the record as a whole and whether Defendant applied the correct legal standards.[4] The Tenth Circuit has defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[5] In the course of its review, the Court may not re-weigh the evidence or substitute its judgment for that of Defendant.[6]

         III. Legal Standard

         Under the Social Security Act, “disability” means the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.”[7] 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.”[8] The Secretary has established a five-step sequential evaluation process to determine whether a claimant is disabled.[9] If the ALJ determines the claimant is disabled or not disabled at any step along the way, the evaluation ends.[10]

         Plaintiff does not challenge the ALJ's determination at step one that Plaintiff did not engage in substantial gainful activity during the period of January 2, 2003 through June 30, 2004. Nor does Plaintiff challenge the ALJ's determination at step two that Plaintiff has a medically “severe” impairment, tremors. Plaintiff does not challenge the ALJ's determination that this impairment did not meet or have medical equivalence to one of the listed impairments.

         But Plaintiff challenges the ALJ's determination of Plaintiff's Residual Functional Capacity (“RFC”), which Plaintiff argues is erroneous in that the ALJ failed to retain a medical expert pursuant to SSR 83-20 to determine the appropriate onset date of the disability since the evidence was unclear.

         IV. Discussion

         The ALJ found Plaintiff has the RFC to perform medium work, as defined in 20 C.F.R. 404.1567(c), except he could never climb ladders, ropes, and scaffolds. He could frequently handle or finger, but not constantly. He needed to avoid concentrated exposure to pulmonary irritants, excessive vibrations, and hazardous machinery.” Plaintiff has had a left hand tremor since at least 1966, when it was documented in a treatment note. The medical record is sparse. In fact, until 2007, when Plaintiff was examined by Dr. Susmita Veloor, an agency consulting physician, there is no medical documentation of the tremor, as there are no medical records between 1966 and 2007. The ALJ repeatedly attempted, to no avail, to obtain records from Goodyear, Plaintiff's employer, from 1985 to 1990 that may include medical records. Needless to say, there are no contemporaneous medical records concerning the tremor during the pertinent time period between the alleged onset date and the date of last insurance, that is January 2, 2003 through June 30, 2004.

         In determining the RFC, the ALJ gave substantial weight to the opinion of Dr. Veloor, who examined Plaintiff in 2007, and some weight to the opinion of Dr. Duncan, who examined Plaintiff in 2008. But Dr. Veloor did not render an opinion as to the severity and limitations associated with the tremor during the pertinent time period of January 2003 through June 2004. Dr. Veloor's opinion was not retrospective. Nor was Dr. Duncan's 2008 opinion retrospective. The ALJ thus erred in according Dr. Veloor's opinion substantial weight and in finding that it related to 2003 to 2004. The ALJ similarly erred in finding Dr. Duncan's 2008 opinion was retrospective, though the ALJ accorded it lesser weight since it was more remote in time than Dr.Veloor's 2007 opinion.

         There was one medical opinion regarding Plaintiff's impairment and its severity and effect during 2003 to 2004. Dr. John Listerman reviewed the sole medical record -the 1966 treatment note- and opined that Plaintiff had the tremor in 2003 to 2004 and that it rendered Plaintiff's left arm and left hand useless. The ALJ appropriately gave no weight to that opinion, particularly because the ...


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