United States District Court, D. Kansas
BRIAN L. WAGNER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant.
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge
an action reviewing the final decision of the Commissioner of
Social Security denying the plaintiff disability insurance
benefits and supplemental security income payments. The
matter has been fully briefed by the parties.
General legal standards
court's standard of review is set forth in 42 U.S.C.
§ 405(g), which provides that "the findings of the
Commissioner as to any fact, if supported by substantial
evidence, shall be conclusive." The court should review
the Commissioner's decision to determine only whether the
decision was supported by substantial evidence and whether
the Commissioner applied the correct legal standards.
Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
Substantial evidence requires more than a scintilla, but less
than a preponderance, and is satisfied by such evidence that
a reasonable mind might accept to support the conclusion. The
determination of 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 really constitutes
mere conclusion. Ray v. Bowen, 865 F.2d 222, 224
(10th Cir. 1989). Although the court is not to reweigh the
evidence, the findings of the Commissioner will not be
mechanically accepted. Nor will the findings be affirmed by
isolating facts and labeling them substantial evidence, as
the court must scrutinize the entire record in determining
whether the Commissioner's conclusions are rational.
Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan.
1992). The court should examine the record as a whole,
including whatever in the record fairly detracts from the
weight of the Commissioner's decision and, on that basis,
determine if the substantiality of the evidence test has been
met. Glenn, 21 F.3d at 984.
Social Security Act provides that an individual shall be
determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period
of twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA). The claimant's
physical or mental impairment or impairments must be of such
severity that they are not only unable to perform their
previous work but cannot, considering their age, education,
and work experience, engage in any other kind of substantial
gainful work which exists in the national economy. 42 U.S.C.
Commissioner has established a five-step sequential
evaluation process to determine disability. If at any step a
finding of disability or non-disability can be made, the
Commissioner will not review the claim further. At step one,
the agency will find non-disability unless the claimant can
show that he or she is not working at a “substantial
gainful activity.” At step two, the agency will find
non-disability unless the claimant shows that he or she has a
“severe impairment, ” which is defined as any
“impairment or combination of impairments which
significantly limits [the claimant's] physical or mental
ability to do basic work activities.” At step three,
the agency determines whether the impairment which enabled
the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled. If
the claimant's impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her
previous work; unless the claimant shows that he or she
cannot perform their previous work, they are determined not
to be disabled. If the claimant survives step four, the fifth
and final step requires the agency to consider vocational
factors (the claimant's age, education, and past work
experience) and to determine whether the claimant is capable
of performing other jobs existing in significant numbers in
the national economy. Barnhart v. Thomas, 124 S.Ct.
376, 379-380 (2003).
claimant bears the burden of proof through step four of the
analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120
(10thCir. 1993). At step five, the burden shifts
to the Commissioner to show that the claimant can perform
other work that exists in the national economy.
Nielson, 992 F.2d at 1120; Thompson v.
Sullivan, 987 F.2d 1482, 1487 (10th Cir.
1993). The Commissioner meets this burden if the decision is
supported by substantial evidence. Thompson, 987
F.2d at 1487.
going from step three to step four, the agency will assess
the claimant's residual functional capacity (RFC). This
RFC assessment is used to evaluate the claim at both step
four and step five. 20 C.F.R. §§ 404.1520(a)(4),
404.1520(e, f, g); 416.920(a)(4), 416.920(e, f, g).
History of case
December 22, 2014, administrative law judge (ALJ) Linda L.
Sybrant issued her decision (R. at 13-28). Plaintiff alleges
that he has been disabled since August 16, 2012 (R. at 13).
Plaintiff is insured for disability insurance benefits
through December 31, 2016 (R. at 15). At step one, the ALJ
found that plaintiff did not engage in substantial gainful
activity since the alleged onset date (R. at 15). At step
two, the ALJ found that plaintiff had a severe combination of
impairments (R. at 15). At step three, the ALJ determined
that plaintiff's impairments do not meet or equal a
listed impairment (R. at 18). After determining
plaintiff's RFC (R. at 19), the ALJ found at step four
that plaintiff is unable to perform any past relevant work
(R. at 26). At step five, the ALJ found that plaintiff could
perform other jobs that exist in significant numbers in the
national economy (R. at 26-27). Therefore, the ALJ concluded
that plaintiff was not disabled (R. at 27-28).
Did the ALJ err by not obtaining medical treatment records
regarding plaintiff's treatment for heat stroke in
October 22, 2013, a medical treatment record from Dr. Cannon
gave a diagnostic impression of mood disorder/Psychotic
disorder related to TBI (traumatic brain injury) (R. at
829-830). On July 29, 2014, a medical treatment record from
Dr. Cannon gave a diagnostic impression of traumatic brain
injury related to heat stroke (R. at 855-856). Another
treatment record signed by Lois Blackmon, BA, on December 6,
2012, stated that claimant appears to be borderline
intellectual functioning which has gotten worse since his
stroke (R. at 773-774). A medical record from July 10, 2013
stated that plaintiff reported he had a bad heat stroke and
was sent to the ICU in 2009 (R. at 38, 669). A medical record
from Dr. Habib, dated May 24, 2010, indicates that plaintiff
was admitted to the emergency room on May 23, 2010, noting a
5-day history of constant daily headaches, and stating that
he had been mowing many lawns today out in the heat. Dr.
Habib's impression included intractable tension-type
headaches, probably secondary to heat stroke (R. at 544-546).
Plaintiff and his wife reported that plaintiff had
experienced problems since he suffered from heat exhaustion
in 2009 (R. at 25, 467).
hearing on September 17, 2014, the transcript indicates as
ALJ:…There's a reference in 16F, 2, of being sent
to ICU for a heat stroke in 2009. So I want whatever hospital
E.R. or otherwise record on that?
(R. at 38). Later in the hearing, the transcript indicates
Q (by ALJ): Did you collect unemployment from that job?
A (by plaintiff): No, workman's comp deal - it was a -
when, I think, it's when ...