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 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
applied for DIB and SSI benefits, alleging disability
beginning October 20, 2012. (R. 12, 138, 145). At the ALJ
hearing, Plaintiff alleged a closed period of disability
between October 20, 2012 and November 1, 2013. (R. 31).
Plaintiff exhausted proceedings before the Commissioner, and
now seeks judicial review of the final decision denying
benefits. She argues that the ALJ erred in evaluating
Plaintiff’s allegations of symptoms and in weighing the
opinion evidence of a treating medical source, a
non-examining medical source and a nurse-practitioner.
court’s review is guided by the Act. Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). 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 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. 1989).
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 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.
Commissioner next evaluates steps four and five of the
sequential process--determining whether, in light of the RFC
assessed, claimant can perform her past relevant work; and,
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 ALJ’s decision.
step two analysis, the ALJ found that “the medical
evidence does not support a disabling condition that would
have precluded work for 12 months.” (R. 14). Thereby he
determined that Plaintiff’s condition did not meet the
duration requirement of 20 C.F.R. §§ 404.1509,
416.909 (“your impairment . . . must have lasted or
must be expected to last 12 months”); see also
20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii)
(at step two a severe impairment or combination of severe
impairments that does not meet the duration requirement is
not disabling); 20 C.F.R. §§ 404.1505, 419.905
(defining disability as “the inability to do any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
record demonstrates, and both parties appear to agree that
when Plaintiff broke her leg on October 20, 2012 she became
unable to perform any substantial gainful activity, and that
inability continued until, or at least reemerged, in January
2013 when the hardware in her leg broke and had to be
surgically replaced. Even assuming, without deciding, that
Plaintiff’s inability to perform any substantial
gainful activity continued through those two periods of time,
if she recovered sufficiently to perform any substantial
gainful activity in the economy within a year, she did not
meet the duration requirement, and could not be found
disabled for the closed period from October 20, 2012 through
November 1, 2013. Plaintiff argues that she was unable to
perform substantial gainful activity for the closed period
noted above, and the Commissioner argues that she became able
to perform substantial gainful activity during that period.
court considers each error alleged by Plaintiff and finds no
basis for remand.
The ALJ’s ...