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Scott v. Berryhill

United States District Court, D. Kansas

February 27, 2017

JO ANN SCOTT, Plaintiff,
v.
NANCY W. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.

         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Disability Insurance benefits (DIB) under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). Finding no error in the Administrative Law Judge's (ALJ) decision, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING that decision.

         I. Background

         Plaintiff applied for DIB, alleging disability beginning December 20, 2012. (R. 12, 147). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She implies that the ALJ erred at step three of his consideration, and argues that he erred in evaluating the credibility of her allegation of symptoms, and in considering the medical opinions.

         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 he 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; 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 residual functional capacity (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). Here, the ALJ decided at step four that Plaintiff is able to perform her past relevant work as a hospital cleaner as she actually performed it. He did not make an alternative determination at step five, and the burden never shifted.

         After considering the arguments in Plaintiff's Brief, the court finds no error. The structure of Plaintiff's Brief implies that the ALJ erred at step three of the sequential evaluation process. She provides “Evaluation at step 3 of the Sequential Evaluation Process” as a major heading in the “Arguments and Authorities” section of her brief (Pl. Br. 3) and discusses four specific errors under that heading: failing to apply Social Security Ruling (SSR) 12-2p correctly, id. at 3-6; failing to accord sufficient weight to the opinions of Plaintiff's treating physicians, id. at 6-9; finding Plaintiff's allegations of symptoms only partially credible, id. at 9-11; and according excessive weight to the opinion of the state agency non-examining physician. Id. at 11.

         II. Discussion

         It is not clear what error Plaintiff is alleging at step three of the ALJ's evaluation. The question at step three is whether Plaintiff has an impairment that meets or equals the severity of an impairment listed in the Listing of Impairments. 20 C.F.R. § 404.1520(a)(4)(iii). But Plaintiff does not point to a listed impairment for which she argues that the criteria are met or equaled. The closest she comes is to assert that “the ALJ is emphatic that all other diagnoses are excluded that could support evaluation under other Listings.” (Pl. Br. 6) (citing R. 16).

         The ALJ noted that fibromyalgia is not a listed impairment and that therefore Plaintiff's condition cannot meet a Listing. (R. 16) (citing SSR 12-2p). He recognized that under these circumstances he must consider whether Plaintiff's condition medically equals a Listing, and explained that he had considered whether Plaintiff's condition medically equals the musculoskeletal listings 1.02 through 1.08, and the immune system listings, 14.02, 14.04, 14.06, and 14.09. Id.

         Medical equivalence to a listing may be established by showing that the claimant's impairment(s) “is at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a). Not only does Plaintiff fail to point to a Listing which in her view is medically equaled, she does not suggest how her condition is equal in severity or duration to the criteria of any Listing. She simply ...


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