United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
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.
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.
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); 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.
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.
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).
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).
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.
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).
The ALJ's Decision
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