United States District Court, D. Kansas
LAVITA A. STALLINGS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
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 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
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 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.
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).
court addresses each argument in the order presented in
Plaintiff's Brief, and finds no error in the ALJ's
Whether the Record Evidence Supports the RFC
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.
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).
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.
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 ...