United States District Court, D. Kansas
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. 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
March 26, 2015, administrative law judge (ALJ) Ben Willner
issued his decision (R. at 12-26). Plaintiff alleges that he
has been disabled since February 1, 2009 (R. at 12). The ALJ
denied plaintiff's implied request for reopening a prior
denial, and evaluated plaintiff's current application
from the earliest potential onset date, October 13, 2011 (R.
at 12). Plaintiff is insured for disability insurance
benefits through December 31, 2014 (R. at 14). At step one,
the ALJ found that plaintiff has not engaged in substantial
gainful activity since the alleged onset date (R. at 15). At
step two, the ALJ found that plaintiff has severe impairments
(R. at 15). At step three, the ALJ determined that
plaintiff's impairments do not meet or equal a listed
impairment (R. at 16). After determining plaintiff's RFC
(R. at 18-19), the ALJ found at step four that plaintiff is
unable to perform any past relevant work (R. at 24). At step
five, the ALJ found that plaintiff could perform other jobs
that exist in significant numbers in the national economy (R.
at 24-25). Therefore, the ALJ concluded that plaintiff was
not disabled (R. at 25-26).
Does substantial evidence supports the ALJ's
determination that plaintiff is not disabled?
court would note that plaintiff is proceeding pro se. A pro
se litigant's materials are entitled to a liberal
reading, and consequently, the court will make some
allowances for the pro se litigant's failure to cite
proper legal authority, their confusion of various legal
theories, their poor syntax and sentence construction, or
their unfamiliarity with pleading requirements, but the court
cannot take on the responsibility of serving as the
litigant's attorney in constructing arguments and
searching the record. Weaver v. Astrue, 353
Fed.Appx. 151, 154 (10th Cir. Nov. 18, 2009).
initial brief simply states that she does not agree with the
decision of the Commissioner of Social Security. She does not
raise any specific issues in this brief (Doc. 14). In her
reply brief, the only issue she raises is that she cannot
work because of her migraines (Doc. 16).
making his RFC findings, the ALJ noted that plaintiff was
released to work without restrictions by Dr. O'Boynick on
October 24, 2008, following a procedure to alleviate her
headaches (R. at 20, 315). The ALJ gave controlling weight to
the opinion of Dr. Appelbaum, a treating physician, who
stated on February 20, 2013 that plaintiff had no physical
limitation on her activities (R. at 20, 399). The treatment
note from February 20, 2013 indicates that she was treated
for chronic intractable migraine headaches on that date (R.
at 399). The ALJ also gave great weight to the opinions of
Dr. Timmerman, a non-examining physician who reviewed the
record and opined on September 18, 2013 that plaintiff's
only physical ...