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Schmidt v. Berryhill

United States District Court, D. Kansas

April 3, 2017

KURT J. SCHMIDT, Plaintiff,
v.
NANCY A. 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) 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 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 and SSI benefits, alleging disability beginning November 8, 2012. (R. 14, 204, 211). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He argues that the ALJ erred in evaluating Plaintiff's mental impairments at step two of the evaluation.

         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, 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 he has a severe impairment(s), and whether the severity of his 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 his 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).

         The court finds no error in the Commissioner's final decision. The ALJ applied the correct legal standard in making his step two evaluation, and substantial record evidence supports his evaluation. Plaintiff does not point to record evidence that any basic mental work activity has been affected more than minimally by his mental impairments. And, he has not shown that the ALJ relied on the opinions of the state agency psychologists, Dr. Stern and Dr. Maxfield, to find Plaintiff's mental impairments are not severe, so even if the court found those opinions to be stale, that would not impact the ALJ's finding that Plaintiff's mental impairments are not severe. Finally, the evidence cited by Plaintiff to show limitations resulting from mental impairments does not compel finding more-than-minimal limitations, and is no more than an invitation to the court to reweigh the evidence and substitute its judgment for that of the ALJ.

         II. Discussion

         Plaintiff acknowledges that the first question raised here is whether Plaintiff's mental impairments are severe. (Pl. Br. 13). He notes that the ALJ found Plaintiff's mental impairments are not severe within the meaning of the Act, and argues that the ALJ must have accorded great weight to the medical opinions of Dr. Stern and Dr. Maxfield in this regard “due to the similarity between [Dr. Stern's and Dr. Maxfield's] assessment and the ALJ's step two finding.” Id. He argues that the ALJ's reliance on these opinions was error because the opinions were stale in light of the complete record. Id.

         He argues that the record evidence, including Dr. Schwartz's opinion that Plaintiff had a severe cognitive impairment; Dr. Moore's examination finding pressured speech, tangential thinking, restless motor activity, and verbose streams of thought; and Ms. Husling's finding of circumstantial association, “suggest[s] at least moderate limitations in concentration, persistence, and pace.” Id. at 16. He argues that limitations in social functioning are supported by plaintiff's anger and report of homicidal tendencies, and by Ms. Hernandez's recommendation of inpatient care. Id.

         In response, the Commissioner argues that the step two finding that Plaintiff's mental impairments are not severe is supported by the record evidence. She points out that the ALJ applied the Commissioner's psychiatric review technique for evaluating mental impairments and concluded that Plaintiff's mental impairments are not severe. (Comm'r Br. 6). She explains the ALJ's evaluation and argues that the evidence upon which he relied supports his evaluation. Id. at 6-8.

         A. The ...


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