United States District Court, D. Kansas
JANET L. DALTON, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge
proceeding pro se,  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 final decision.
applied for DIB, alleging disability beginning August 30,
2005. (R. 16, 144). She exhausted proceedings before the
Commissioner, and now seeks judicial review of the final
decision denying benefits. Plaintiff asks the court to review
and “to modify the Commissioner of Social
Security's decision and to grant retroactive, monthly
maximum Social Security disability insurance benefits”
to her. (Doc. 8, p.1) (entitled “Response/Brief,
” hereinafter, Pl. Br.). She argues that her
impairments of lichen planus, back and hip pain
caused by spine disease, and asthma all cause her disability
and that the Administrative Law Judge (ALJ) erred in finding
that her impairments are not “severe” within the
meaning of the Act at step two of his decision.
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
she 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 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).
decided this case at step two, finding that Plaintiff did not
meet her burden to show that her impairments in combination
were “severe” within the meaning of the Act
before her date last insured for DIB--September 30, 2013.
Therefore, she did not apply steps three through five of the
sequential evaluation process. The court must determine
whether the ALJ applied the correct legal standard to her
evaluation, and whether the record evidence supports her
argues that the ALJ did not accord appropriate weight to the
opinions of Mr. Colwell who testified in her behalf at the
disability hearing, of her sister, of her friends Ms.
Thornton or Ms. Ghilino, or of her neighbor Ms. Burns. (Pl.
Br. 4-5). Plaintiff points out that the Social Security
Notice of Reconsideration (Ex. 3B (R.88-91)), which was dated
June 14, 2013 wrongly determined her date last insured was
September 30, 2012 and stated that the evidence “shows
you currently have a severe condition.” (Pl. Br. 5).
She argues this statement demonstrates the error in the
ALJ's determination that her condition was not severe
before her actual date last insured--September 30, 2013.
Commissioner argues that the ALJ properly found
Plaintiff's condition is not “severe” within
the meaning of the Act because it had no more than a minimal
effect on Plaintiff's ability to perform basic work
activities before her date last insured. She argues that the
record evidence supports the step two finding because there
is no record evidence of any treatment other than medications
for Plaintiff's condition before 2013. (Comm'r Br. 4)
(“prescriptions for topical medications”). She
argues that other than a “handful of treatment records,
the record is simply devoid of any evidence related to
Plaintiff's skin condition during the relevant period,
” id. at 5, and that “treatment records
dated after the date [Plaintiff] was last insured did not
support that [she] had a severe impairment during the
relevant time period.” Id. at 8-9. She argues
that record medical evidence is “similarly
scarce” regarding treatment for Plaintiff's hip and
back problems before her date last insured. Id. at
5-6. She points to Plaintiff's reported daily activities
as further evidence that her impairments are not
“severe, ” and argues that the ALJ properly
discounted Dr. Davis's unsupported opinion of disability.
(Comm'r Br. 6-7). Finally, the Commissioner argues that
the ALJ properly considered the opinion statements and
testimony of Plaintiff's family, friends, and
neighbor--and discounted them. Id. at 7-8.
January 26, 2017 Plaintiff filed a Reply Brief responding to
the Commissioner's Brief. (Doc. 12) (entitled
“Brief by Plaintiff, ” hereinafter Reply).
Plaintiff takes issue with the Commissioner's statement
that her only treatment for her condition before 2013 was
prescriptions for topical medications, and cites numerous
instances where she was prescribed oral medications also.
(Reply 1-2). She argues that although Nurse-Practitioner
Moran stated in December 2010 that Plaintiff's skin was
intact with no rashes or bruises, it was in a “quick
clinic, ” and she was fully dressed and did not reveal
her skin lesions. Id. at 2-3.
argues that the prescriptions support Dr. Davis's
opinion, and she repeats her argument that the
reconsideration notice found her condition severe and
debilitating in June 2013, before her date last insured of
September 30, 2013. Id. at 3-4. She points out that
after the reconsideration notice, she submitted additional