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 the Commissioner's
applied for DIB, ultimately alleging disability beginning
February 1, 2012. (R. 11, 29). Plaintiff exhausted
proceedings before the Commissioner, and now seeks judicial
review of the final decision denying benefits. She argues
that the Administrative Law Judge (ALJ) accorded “some
weight” to the opinion of her former employer and
“significant weight” to the medical opinions of
the state agency psychologists, but erroneously failed to
assess residual functional capacity (RFC) limitations in
accordance with the weight he accorded those 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 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 finds no error in the ALJ's RFC assessment.
Plaintiff correctly stated the legal standard applicable to
the court's review of the issues presented here:
RFC is an assessment of the most a claimant can do on a
regular and continuing basis despite h[er] limitations. It is
an administrative assessment, based on all of the evidence,
of how plaintiff's impairments and related symptoms
affect h[er] ability to perform work related activities. SSR
96-5p, 1996 WL 374183 at *5 (“The term ‘residual
functional capacity assessment' describes an
adjudicator's findings about the ability of an individual
to perform work-related activities.”); SSR 96-8p, 1996
WL 374184 at *2 (“RFC is an administrative assessment
of the extent to which an individual's medically
determinable impairment(s) ... may cause physical or mental
limitations or restrictions that may affect his or her
capacity to do work-related physical and mental
The Commissioner issued SSR 96-8p “[t]o state the
Social Security Administration's policies and policy
interpretations regarding the assessment of residual
functional capacity (RFC) in initial claims for disability
benefits.” SSR 96-8p, 1996 WL 374184. That ruling
includes narrative discussion requirements for the RFC
assessment. The discussion is to cite specific medical facts
and nonmedical evidence to describe how the evidence supports
each conclusion, discuss how the plaintiff is able to perform
sustained work activities, and describe the maximum amount of
each work activity the plaintiff can perform. The discussion
must include consideration of the credibility of
plaintiff's allegations of symptoms and consideration of
medical opinions regarding plaintiff's capabilities. If
the ALJ's RFC assessment conflicts with a medical source
opinion, the ALJ must explain why he did not adopt the
(Pl. Br. 5-6) (citations omitted).
that is precisely what the ALJ did. He found that Plaintiff
has only non-exertional limitations permitting only simple
work involving occasional interaction with co-workers and no
interaction with the general public, and that she is able to
accept supervision on a basic level. (R. 15). He noted that
Plaintiff was able to work successfully as a limousine
driver, a job exceeding the limitations he assessed, during
the period she alleged she was disabled, that Plaintiff
admitted that her symptoms got no worse when she was working
or when her mother died, and that medication helps her
symptoms a lot. Id. at 16. He found that
Plaintiff's allegations of symptoms resulting from her
mental impairments “are not entirely credible, ”
id., and Plaintiff does not contest that finding.
The ALJ fairly ...