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Johnston v. Berryhill

United States District Court, D. Kansas

May 4, 2017

MICHAEL JOSEPH JOHNSTON, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE

         Plaintiff Michael Johnston filed a claim for disability insurance benefits under Title II of the Social Security Act, alleging a disability beginning October 31, 2012. After his claim was denied initially and upon reconsideration by the agency, plaintiff sought a hearing before an Administrative Law Judge (ALJ). Plaintiff appeared and testified at a hearing on September 19, 2014, in Kansas City, Missouri, before ALJ Linda L. Sybrant. The ALJ issued a written ruling on December 2, 2014, finding plaintiff was not disabled within the meaning of the Act because he retained the capacity to perform certain unskilled light jobs, including retail marker, electronics sub-assembler, and small parts assembler.

         Plaintiff alleges that the ALJ's ruling was erroneous in three respects. First, he contends the ALJ erred in determining his residual functional capacity (RFC), because the ALJ improperly discounted the opinion of one of plaintiff's treating physicians, Dr. Ronald Graham, and also failed to take into account other evidence. Dkt. 8 at 25-31. Second, he argues the ALJ erred in evaluating his credibility. Id. at 32-34. And third, plaintiff argues the ALJ erred in asking a vocational expert a hypothetical that failed to take account of all of plaintiff's limitations.

         I. Legal standard

         Under the Act, the court must accept the factual findings of the Commissioner if they are supported by substantial evidence. 42 U.S.C. § 405(g). The court accordingly looks to whether the factual findings are supported by substantial evidence and whether the ALJ applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial evidence” means “more than a scintilla, but less than a preponderance; in short, it is such evidence as a reasonable mind might accept to support the conclusion.” Barkley v. Astrue, 2010 WL 3001753, *1 (D. Kan. July 28, 2010) (citing Castellano v. Sec'y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)). In making this determination, the court must “neither reweigh the evidence nor substitute [its] judgment for that of the [Commissioner].” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.3d 799, 800 (10th Cir. 1991)).

         A claimant is disabled if he suffers from a physical or mental impairment which stops the claimant “from engaging in substantial gainful activity and is expected to result in death or to last for a continuous period of at least twelve months.” Brennan v. Astrue, 501 F.Supp.2d 1303, 1306-07 (D. Kan. 2007) (citing 42 U.S.C. § 423(d)). This impairment “must be severe enough that she is unable to perform her past relevant work, and further cannot engage in other substantial gainful work existing in the national economy, considering her age, education, and work experience.” Barkley, 2010 WL 3001753, *2 (citing Barnhart v. Walton, 535 U.S. 212, 217-22 (2002)).

         Pursuant to the Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010); see also 20 C.F.R. § 404.1520(a). The steps are designed to be followed in order. If it is determined at any step of the evaluation process that the claimant is or is not disabled, further evaluation is unnecessary. Barkley, 2010 WL 3001753, at *2. The first three steps require the Commissioner to assess: (1) whether the claimant has engaged in substantial gainful activity since the onset of the alleged disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3) whether the severity of those impairments meets or equals a designated list of impairments. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); see also Barkley, 2010 WL 3001753, *2 (citing Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). If the impairment does not meet or equal a designated impairment, the ALJ must then determine the claimant's residual functional capacity, which is the claimant's ability “to do physical and mental work activities on a sustained basis despite limitations from her impairments.” Barkley, 2010 WL 3001753, *2; see also 20 C.F.R. §§ 404.1520(e), 404.1545. Upon determining the claimant's residual functional capacity, the Commissioner moves on to steps four and five, which require a determination of whether the claimant can either perform his past relevant work or can perform other work that exists in the national economy. Barkley, 2010 WL 3001753, *2 (citing Williams, 844 F.2d at 751).

         The claimant bears the burden at steps one through four to prove a disability that prevents performance of his past relevant work. Lax, 489 F.3d at 1084. The burden then shifts to the Commissioner at step five to show that, despite the impairments, the claimant can perform other work in the national economy. Id. See Weir v. Colvin, No. 15-1300-JTM, 2016 WL 6164313, at *1-2 (D. Kan. Oct. 24, 2016).

         II. Discussion.

         Plaintiff was 51 years old at the time of his application. Prior to making his claim, he worked for over thirty years as a stone or marble mason. The ALJ found that plaintiff suffered from two severe impairments: degenerative disc disease of the lumbar spine and status-post aortic valve replacement, as well as several non-severe impairments. The ALJ found no impairments or combination of impairments that met or equaled the impairments listed in the regulations. The ALJ found that plaintiff has the capacity to perform less than a full range of light work, as defined in 20 CFR § 404.1567(b), with occasional stooping, crouching, crawling, kneeling, and climbing (but no ladders, ropes, or scaffolds); he needs to avoid concentrated exposure to temperature extremes, humidity, fumes, odors, dust, gases, and other environmental irritants; and he cannot do work involving unprotected heights, hazardous moving machinery, or sharp objects. Tr. at 37. Relying on the testimony of a vocational expert, the ALJ found plaintiff was unable to perform his past work as a marble mason (a skilled job at the heavy exertional level), but that he could perform jobs that exist in significant numbers in the national economy.

         1. Determination of residual functional capacity. Plaintiff contends that “[a]s a result of the errors made by the ALJ in assessing the medical evidence and opinions, her residual functional capacity findings are not supported by substantial evidence in the record.” Tr. at 23. Among the errors alleged by plaintiff are the ALJ's decision to give no or little weight to the opinions of plaintiff's treating physicians or providers, including those of Dr. Ronald Graham.

         An ALJ must give controlling weight to a treating source opinion about the nature and severity of an impairment if the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with other substantial evidence in the record. 20 CFR § 404.1527(c)(2). When the opinion is not entitled to controlling weight, it is still to be evaluated under the regulatory factors, including:

(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the [source's] opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the [source] is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion.

Van Norman v. Berryhill, No. 16-2209-EFM, 2017 WL 1397536, at *6 (D. Kan. Apr. 19, 2017) (citing Krauser v. Astrue, 638 F.3d 1324, 1331 (10th Cir. 2011)). The ALJ is not required to discuss all six regulatory factors, but must “give good reasons, tied to the factors specified in the cited regulations … for the weight assigned” to a treating source opinion. Van Norman, at *6 (quoting Krauser, 638 F.3d at 1330)). The reasons must be sufficiently specific to make clear the weight given to the opinion and the reasons for that weight. Allman v. Colvin, 813 F.3d ...


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