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Stallings v. Berryhill

United States District Court, D. Kansas

April 7, 2017

LAVITA A. STALLINGS, Plaintiff,
v.
NANCY A. BERRYHILL, 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 June 1, 2012. (R. 9, 108). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She argues that the ALJ's residual functional capacity (hereinafter RFC) assessment is not supported by the record evidence, that he erroneously relied on the opinion of the consultative examiner, Dr. White, and that he improperly evaluated Plaintiff's credibility.

         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 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).

         The court addresses each argument in the order presented in Plaintiff's Brief, and finds no error in the ALJ's decision.

         II. Whether the Record Evidence Supports the RFC Assessed

         Plaintiff first argues that “the substantial evidence of record supports a finding that Ms. Stallings is unable to perform the standing and walking required of light work.” (Pl. Br. 14). This is so, in Plaintiff's view, because of her long history of degenerative joint disease and osteoarthritis of the knees requiring injections and oral pain medication and eventually resulting in a total replacement of her left knee, and because of her testimony of missing at least two days at work each month. Id. She argues the ALJ implied that her knee replacement “cured her bilateral knee pain and limitations, ” but that after physical therapy she was only “‘modified independent' because she lacked functional knee extension during her gait, ” she had less than full range of motion and less than full strength in her left leg, and had not “been able to traverse a single flight of stairs or walk a distance without an assistive device.” Id. at 15 (citing R. 289, 290). Finally, she argues that the ALJ should have limited her stooping and bending at the knees because before her surgery she frequently reported pain with bending her knees, on her last physical therapy appointment she could only bend her left knee 103 degrees, and she testified at the hearing that she was limited in bending her knee. (Pl. Br. 15).

         The Commissioner argues that the ALJ properly considered all of the evidence in assessing RFC. She points to record evidence which supports the ALJ's RFC assessment, including minimal treatment; examination findings of abilities to squat and rise and perform other postural movements without difficulty, no effusion, no knee instability, and 4/5 strength; examination findings before left knee replacement of near normal range of motion, mild swelling, mild misalignment, ability to perform postural movements without difficulty, and absence of effusion, reported relief with injections and oral medications; improvement after left knee surgery with no instability; and normal alignment, no instability, and only slightly reduced strength in the right knee. (Comm'r Br. 8-10).

         In her Reply Brief, Plaintiff argues again that “the ALJ did not consider all of the relevant evidence of record including Ms. Stallings[‘s] medical history, effects of treatment, lay evidence, and recorded observations.” (Reply 1). She once again appeals to her long history of osteoarthritis and osteoarthrosis, osteophyte spurring, patellar grinding, and knee injections, id. at 2, and she argues that her knees were extremely painful and that her right knee was doing worse after her left knee surgery. Id. at 3.

         As is usually the situation in a Social Security disability case, the record evidence here is equivocal. There is evidence supporting a finding of “disabled” and there is evidence supporting a finding of “not disabled.” It is the ALJ's duty to weight that evidence and decide the issue of disability. It is not enough for the claimant to point to evidence which is contrary to the ALJ's decision and assert error. She must show that the ALJ's rationale is erroneous or that the record evidence cannot support the decision reached. “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. [The court] may not displace the agency's choice between two fairly conflicting views, even though the court would ...


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