United States District Court, D. Kansas
DAWN J. ZACHARIAS, 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 the Commissioner's
applied for DIB, alleging disability beginning May 2, 2013.
(R. 15, 145). Plaintiff exhausted proceedings before the
Commissioner, and now seeks judicial review of the final
decision denying benefits. She argues that the ALJ erred both
in considering Listing 14.06B at step three of the decision
and in his credibility determination.
court's review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). 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 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.
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 v. Bowen, 862
F.2d 802, 804 (10th Cir. 1988); Ray v. Bowen, 865
F.2d 222, 224 (10th Cir. 1989).
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 residual functional capacity (RFC). 20 C.F.R.
§ 404.1520(e). This assessment is used at both step four
and step five of the sequential evaluation process.
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).
Plaintiff's allegation of step three error relies in part
on her testimony or her other reports of limitations, the
court addresses the alleged errors in the ALJ's
credibility determination before addressing the alleged step
three error. It concludes that Plaintiff has shown no error
in the ALJ's decision.
argues that the ALJ found her not credible on the basis of
three factors, inconsistencies in the medical record, her
reasons for stopping work, and her activities of daily
living. She argues that the ALJ incorrectly evaluated these
factors and erroneously discounted her allegations of
symptoms. (Pl. Br. 18-20). The Commissioner argues that the
court should defer to the ALJ's credibility
determination. (Comm'r Br. 7). She points to record
evidence that supports the ALJ's credibility findings,
id. at 7-9, and argues that “[e]ven if
evidence could support another conclusion, the ALJ's
decision is supported by substantial evidence and is entitled
to deference.” Id. at 9.
Standard for Evaluating Credibility
framework for a proper credibility analysis is set out in
Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). An ALJ
must consider (1) whether the claimant has established a
symptom-producing impairment by objective medical evidence;
(2) if so, whether there is a “loose nexus”
between the proven impairment and the claimant's
subjective allegations of pain; and (3) if so, whether,
considering all the evidence, both objective and subjective,
the claimant's symptoms are in fact disabling.
See, Thompson v. Sullivan, 987
F.2d 1482, 1488 (10th Cir. 1993) (explaining the
Luna framework). The Commissioner has promulgated
regulations suggesting relevant factors to be considered in
evaluating credibility: Daily activities; location, duration,
frequency, and intensity of symptoms; factors precipitating
and aggravating symptoms; type, dosage, effectiveness, and
side effects of medications taken to relieve symptoms;
treatment for symptoms; measures plaintiff has taken to
relieve symptoms; and other factors concerning limitations or
restrictions resulting from symptoms. 20 C.F.R. §
404.1529(c)(3)(i-vii). The court has recognized a
non-exhaustive list of factors which overlap and expand upon
the factors promulgated by the Commissioner. Luna,
834 F.2d at 165-66. These factors include:
the levels of medication and their effectiveness, the
extensiveness of the attempts (medical or nonmedical) to
obtain relief, the frequency of medical contacts, the nature
of daily activities, subjective measures of credibility that
are peculiarly within the judgment of the ALJ, the motivation
of and relationship between the claimant and other witnesses,