United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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 ...