United States District Court, D. Kansas
JANET J. JAMES, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) made after a prior
remand by this court in which she denied Disability Insurance
benefits (DIB) and Supplemental Security Income (SSI)
benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A)
of the Social Security Act. 42 U.S.C. §§ 416(i),
423, 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 the Commissioner's final decision.
decision issued November 20, 2014, this court remanded an
earlier case wherein Plaintiff sought review of a decision
denying Plaintiff's applications for DIB and SSI
benefits. James v. Colvin, Case No. 13-1387-JWL,
slip op., (D. Kan. Nov. 11, 2014) (appearing in
the administrative rec. at 882-91). In that case, the
court found that the ALJ erred in failing to explain why he
accorded significant weight to a state agency psychological
consultant's opinion that Plaintiff is able perform
“simple tasks, ” but assessed a residual
functional capacity (RFC) to perform “simple to
intermediate tasks” (R. 888), and remanded for further
proceedings to correct that issue. Id. at 891. On
remand, further proceedings were held and the same ALJ issued
another decision dated September, 22, 2015 finding Plaintiff
not disabled during the relevant time period. Id. at
768-79. Plaintiff requested Appeals Council review
of the decision after remand, id. at 761, and the
Council declined to assume jurisdiction. Id. at 753.
Therefore, the ALJ's decision is the final decision of
the Commissioner subject to this court's review.
Plaintiff argues that in the decision at issue the ALJ erred
in evaluating the medical opinion of a different state agency
medical consultant, Dr. Tawadros. (Pl. Br.
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
he 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. §§
404.1520, 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
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 RFC. 20 C.F.R. §§ 404.1520(e),
416.920(e). This assessment is used at both step four and
step five of the sequential evaluation process. Id.
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).
court finds no error in the decision at issue.
Plaintiff argues, the Commissioner's “RFC
assessment ‘must include a narrative discussion
describing how the evidence supports each conclusion,
'” and must “include an explanation how any
ambiguities and material inconsistencies in the evidence were
considered and resolved.” (Pl. Br. 11-12) (quoting
Soc. Sec. Ruling (SSR) 96-8p, 1996 WL 374184, at *7
(July 2, 1996). And, as Plaintiff argues, this court has held
that where an ALJ does not cite evidence supporting his
finding and fails to explain how he arrived at his
conclusions in that regard, remand is necessary. Id.
at 12-13 (citing Grundy v. Astrue, Civ. A. No.
09-1342-JWL, 2010 WL 4025756, at *5 (D. Kan. Oct. 13, 2010)).
argues that the ALJ “gave weight” to Dr.
Tawadros's opinion that Plaintiff should avoid all
exposure to noise, but found only that Plaintiff should avoid
loud background noise and failed to explain the difference
between Dr. Tawadros's opinion and the RFC assessed. (Pl.
Br. 14). Plaintiff argues that the only reason the ALJ gave
to discount Dr. Tawadros's opinion was because
later-acquired evidence warranted additional exertional
limitations. (Pl. Br. 14). Plaintiff argues that the Appeals
Council's suggestion that there was no error because
Plaintiff's supervisor said her hearing was better than
alleged is unpersuasive because Dr. Tawadros discussed this
evidence and nonetheless opined that Plaintiff needed an
environment with no noise. (Pl. Br. 15). Finally, Plaintiff
argues that the medical records support a need for no noise
exposure, most relevantly, the Commissioner's subsequent
determination that Plaintiff's hearing meets Listing
Commissioner counters that the ALJ was not required to mirror
Dr. Tawadros's opinion verbatim, the RFC assessment must
be based on all of the relevant evidence, and the ALJ
considered, discussed, and accorded significant weight to
record evidence demonstrating that Plaintiff's
“auditory functioning is better than she
alleged.” (Comm'r Br. 7) (quoting R. 777). She
points to the ALJ's finding that Plaintiff worked while
alleging disability, that this work was as a drive-through
cashier at a fast-food restaurant, and her supervisor
indicated that she has no problems hearing him, hearing the
customers, or hearing other co-workers. Id. at 8
(citing R. 777). She argues that the ALJ properly considered
all of the evidentiary record, that the record supports the
finding, and the court may not reweigh the evidence and
substitute its judgment for that of the Commissioner.
Id. at 9. Finally, she argues that Plaintiff's
argument ignores the fact that her hearing progressively
worsened, the medical evidence did not confirm that her
condition meets Listing 2.10 until December, 2013, and there
is no evidence that her condition was disabling during the
relevant period of this case. (Comm'r Br. 10).
Reply Brief, Plaintiff argues that despite the
Commissioner's reliance on the earlier court decision,
this is a new case reviewing a new decision and is subject to
de novo review. (Reply 1). She next suggests that if
this court had been aware of the Commissioner's finding
of disability while the earlier case was pending, it may have
remanded for an award of benefits in the earlier decision,
and that the ALJ's decision does not resolve the marked
difference between his finding of no disability on June 13,
2014 and the Commissioner's finding that she met a
Listing the very next day. Id. She reiterates her
argument from her Social Security Brief that the ALJ only
discounted Dr. Tawadros's opinion because it was