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Barnshaw v. Berryhill

United States District Court, D. Kansas

August 25, 2017

AARON BARNSHAW, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE

         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits under sections 1602 and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 1381a, and 1382c(a)(3)(A) (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 that decision.

         I. Background

         Plaintiff applied for SSI benefits, alleging disability beginning September 22, 1994. (R. 10, 143). Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. He argues that the ALJ erred in weighing the medical opinions of the state agency psychological consultants and of the psychologist who examined Plaintiff at the request of the agency.

         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); see also, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the [Commissioner's], even if the evidence preponderates against the [Commissioner's] decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). 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. § 416.920; 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 he has a severe impairment(s), and whether the severity of his 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. § 416.920(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 his 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 (citing 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).

         II. Discussion

         Plaintiff points out that the state agency psychological consultants opined that Plaintiff would be most successful in an environment with direct supervision and limited social contact. (Pl. Br. 11) (citing R. 56, 72). He argues that while the ALJ limited the Plaintiff to occasional interaction with co-workers and the general public, he omitted any discussion of the need for direct supervision. Id. at 12. He argues, based upon Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007), that this is error because an ALJ must explain why he adopted some of an acceptable medical source's opinions but not others. Id. He argues that the need for direct supervision is supported by record evidence which was not properly discounted by the ALJ. Id. at 12-16. Plaintiff argues that among that record evidence is the opinion of Dr. Kovach who examined Plaintiff twice at the request of the agency, and the ALJ erroneously discounted her opinion. (Pl. Br. 13-15).

         The Commissioner argues that the ALJ need not accept any medical opinion completely, even those she accords great weight, and that her discussion of the evidence reveals that she rejected the alleged need for direct supervision because she accepted conflicting evidence. (Comm'r Br. 4-5). She argues that the ALJ properly discounted Dr. Kovach's opinion and her reasons are supported by the record evidence. Id. at 6-8. And, she argues that the ALJ's decision is supported by the record evidence. Id. at 9-10.

         In his Reply Brief Plaintiff argues that the court in Haga rejected the argument that the evidence discussed by the ALJ was sufficient to demonstrate that he had rejected a portion of the consultant's opinion. (Reply 2-4).

         A. The ALJ's Decision

         As is always true in Social Security cases, the court's review must begin with the decision of the Commissioner, because the central question is whether the Commissioner applied the correct legal standard and whether the record evidence supports the Commissioner's decision. Lax, 489 F.3d at 1084. It is irrelevant that the evidence might also support a different decision. Id. (The court “may not displace the agency's choice between two fairly ...


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