United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten, Judge.
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)
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.
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.
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
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)
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.
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
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
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)).
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.
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),
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.
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 ...