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James v. Berryhill

United States District Court, D. Kansas

September 8, 2017

JANET J. JAMES, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          John W. Lungstrum United States District Judge

         Plaintiff 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.

         I. Background

         In a 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.[2] 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. 13-16).[3]

         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 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. 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. §§ 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.

         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 court finds no error in the decision at issue.

         II. Discussion

         As 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)).

         Plaintiff 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 2.10. Id.

         The 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).

         In her 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 ...

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