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Garrett v. Colvin

United States District Court, D. Kansas

September 28, 2017

Lori Lee Garrett, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          J. Thomas Marten, Judge.

         Lori Lee Garrett applied for Disability Insurance Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, on February 22, 2013, and supplemental social security (SSI) under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3), on February 26, 2013. The Commissioner of Social Security denied her application upon initial review (Dkt. 8, Tr. 103, 108) on April 26 and June 25, 2013, and Garrett sought review by an Administrative Law Judge (ALJ). Following a hearing on August 4, 2014 (Tr. 34-85), the ALJ determined that Garrett was not disabled within the meaning of the Act. (Tr. 18-33). The decision of the Commissioner became final when the Appeals Council declined Garrett's request for review. (Tr. 1-7)

         Garrett then filed this appeal, raising only one argument. Garrett contends that the ALJ's conclusions are not supported by substantial evidence. (Dkt. 9, at 6-12). In support of this general argument, Garrett contends that the ALJ should have given greater weight to her treating rheumatologist, Dr. Cameron Jones. She also contends the ALJ should not have discounted the credibility of her statements as to the subjective level of pain associated with her impairments.

         Plaintiff-claimant Garrett was born on July 11, 1964, and has stated that she became disabled beginning May 1, 2006, due to ailments with her back and neck. She alleges that these injuries were caused or aggravated by a car accident in 2000.

         Garrett has a high school education. At the hearing, she also reported having a bachelor's degree in biology. (Tr. 46). She has previously worked as a customer service representative and as the manager of inventory and the storeroom for the publications department of an insurance company.

         After the evidentiary hearing, ALJ Linda Sybrant concluded that Garrett had severe impairments in cervical spine sprain or strain, chronic low back pain secondary to a small central disc protrusion, and hearing loss in her right ear. However, the ALJ also determined that Garrett's injuries do not meet or exceed any listed impairment, and found that she retained the residual functional capacity (RFC) to perform light work, as that term is defined by Social Security regulations. See 20 C.F.R. §§ 404.1567(b) and 461.967(b).

         As determined by the ALJ, Garrett can perform light work with the following exceptions. She can lift and carry 25 pounds occasionally and 10 pounds frequently. She cannot lift above her shoulders, and cannot sit, stand or walk for more than 6 hours during the workday. She can occasionally climb stairs and ramps, but never ladders, ropes or scaffolds. She can sometimes-but not repetitively-kneel, crouch, stoop or bend. She cannot crawl or use dangerous or heavy vibrating machines. She cannot face unprotected heights, extreme cold, or loud noise.

         The ALJ determined that, with these limitations, Garrett can still perform her past relevant work as a customer service representative or inventory specialist. Alternatively, she can perform other work in the national economy, including cashier, wire wrapping machine operator, or production assembler.

         Under the Act, the court takes as conclusive the factual findings of the Commissioner so long as these are “supported by substantial evidence.” 42 U.S.C. § 405(g). The court thus looks to whether those factual findings have such support, and whether the ALJ applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial evidence” means “more than a scintilla, but less than a preponderance; in short, it is such evidence as a reasonable mind might accept to support the conclusion.” Barkley v. Astrue, 2010 WL 3001753, *1 (D. Kan. July 28, 2010) (citing Castellano v. Sec'y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994)). In making this determination, the court must “neither reweigh the evidence nor substitute [its] judgment for that of the [Commissioner].” Garrett v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.3d 799, 800 (10th Cir. 1991)).

         A claimant is disabled if he or she suffers from “a physical or mental impairment” which stops the claimant “from engaging in substantial gainful activity and is expected to result in death or to last for a continuous period of at least twelve months.” Brennan v. Astrue, 501 F.Supp.2d 1303, 1306-07 (D. Kan. 2007) (citing 42 U.S.C. § 423(d)). This impairment “must be severe enough that she is unable to perform her past relevant work, and further cannot engage in other substantial gainful work existing in the national economy, considering her age, education, and work experience.” Barkley, 2010 WL 3001753, *2 (citing Barnhart v. Walton, 535 U.S. 212, 217-22 (2002)).

         Pursuant to the Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled. Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010); see also 20 C.F.R. § 404.1520(a). The steps are designed to be followed in order. If it is determined, at any step of the evaluation process, that the claimant is or is not disabled, further evaluation under a subsequent step is unnecessary. Barkley, 2010 WL 3001753, at *2.

         The first three steps of the sequential evaluation require the Commissioner to assess: (1) whether the claimant has engaged in substantial gainful activity since the onset of the alleged disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3) whether the severity of those impairments meets or equals a designated list of impairments. Lax, 489 F.3d at 1084; see also Barkley, 2010 WL 3001753, *2 (citing Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). If the impairment does not meet or equal one of these designated impairments, the ALJ must then determine the claimant's residual functional capacity, which is the claimant's ability “to do physical and mental work activities on a sustained basis despite limitations from her impairments.” Barkley, 2010 WL 3001753, *2; see also 20 C.F.R. §§ 404.1520(e), 404.1545.

         Upon assessing the claimant's residual functional capacity, the Commissioner moves on to steps four and five, which require the Commissioner to determine whether the claimant can either perform his or her past relevant work or whether he or she can generally perform other work that exists in the national economy, respectively. Barkley, 2010 WL 3001753, *2 (citing Williams, 844 F.2d at 751). The claimant bears the burden in steps one through four to prove a disability that prevents performance of his or her past relevant work. Lax, 489 F.3d at 1084. The burden then shifts to the Commissioner at step five to show that, despite his or her alleged impairments, the claimant can perform other work in the national economy. Id.

         Here, the plaintiff complains that the ALJ erred in relying on the testimony of Dr. Allan Neil Levine, an orthopedic specialist, noting that Dr. Levine did not review records for medical events occurring after 2012. With respect to Dr. Jones, who submitted a medical source statement in July, 2014, Garrett cites authority concluding that that an ALJ may not simply reject the opinion of a treating physician which is rendered by checkbox form. See Anderson v. Astrue, 319 Fed.Appx. 712, 722-23 (10th Cir. 2009). Garrett contends that the record supports Dr. Jones's opinion, citing ...


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