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Dalton v. Berryhill

United States District Court, D. Kansas

August 14, 2017

JANET L. DALTON, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum United States District Judge

         Plaintiff, proceeding pro se, [2] 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.

         I. Background

         Plaintiff 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.

         The 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. 1988).

         The 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. 1989).

         The 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. Id.

         The 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).

         The ALJ 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 decision.

         II. Discussion

         Plaintiff 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. Id.

         The 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.

         On 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.

         Plaintiff 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 ...


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